text:
    Edward James GAIDRY v. Thayne Hamilton GAIDRY.
    No. 12837.
    Court of Appeal of Louisiana, First Circuit.
    April 7, 1980.
    Stephen M. LaRussa, Houma, for plaintiff and appellee.
    Guy A. Módica, Baton Rouge, for defendant and appellant.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ON APPLICATION FOR REHEARING

PER CURIAM.

The application for rehearing, La.App., 380 So.2d 644, was received in this office on January 30, 1980. The official U.S. postmark on the envelope in which the application was enclosed was January 29, 1980. Since the last day for filing the application was January 28, 1980, we refused to consider it.

Appellant Edward James Gaidry has now filed in this court affidavits by Stephen M. LaRussa, his counsel; Denise Heigl, Mr. LaRussa’s secretary; and Cindy Hall, a secretary with the law firm of Gaidry & La-Russa, to the effect that the application was completed and deposited in the mail on January 23, 1980, and that a certificate of mailing showing that date was obtained. There is also filed an affidavit by J. C. Dusenbery, Postmaster for the United States Post Office on Lafayette Street, Houma, Louisiana, that he had personally examined the certificate of mailing, and that the date thereon is January 23, 1980. The original certificate is attached to the affidavit of Cindy Hall.

The records in the office of the Clerk of this court indicate that the original rehearing application is dated January 23,1980, by Mr. LaRussa. The letter forwarding the application is dated January 24, 1980. The postage meter date, affixed, we presume, by personnel in the office of Mr. LaRussa, is January 28, 1980.

We have examined the original certificate of mailing, and, to the naked eye it is illegible. However, under high magnification it becomes clear that the date thereon is January 29,1980. It is most charitable to say that the persons making the affidavits furnished by Mr. LaRussa are mistaken in their recollections and perceptions.

We adhere to our opinion that the application for rehearing was not timely filed.


source: Caselaw Access Project

author: COLE, Judge.

license: Public Domain

text:
    Milton KENT, Jr., as Curator of the Estate of his Interdicted Son, Keith Kent v. GULF STATES UTILITIES COMPANY et al.
    No. 13205.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.

      Charles R. Moore, Baton Rouge, for plaintiff-appellant Milton Kent, Jr., Etc.
    William L. Wilson, Baton Rouge, for defendant-appellant Gulf States Utilities Co.
    William J. Doran, Jr., Baton Rouge, for defendant-appellant W. L. Landon, Jr. & Killian H. Kupp.
    Frank Fertitta, Baton Rouge, for defendant-appellee Hilliard Barber, A. L. Barber, Jr., Allstate Ins. Co.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COLE, Judge.

Milton Kent, Jr. instituted this tort action as curator of the estate of his interdicted son, Keith Kent. Keith was involved in an electrocution accident on January 22, 1976, sustaining very severe injuries resulting in permanent physical and mental disabilities. He was eighteen years old at the time.

Impleaded as defendants were Gulf States Utilities Company, the State of Louisiana (through the Department of Highways, now the Department of Transportation and Development), L. Hilliard Barber, A. L. Barber, Jr., W. L. Landon, Jr., Killian H. Kupper and Allstate Insurance Company. The State of Louisiana filed the peremptory exception, raising the objection of no cause of action based upon La.R.S. 23:1032, 1061 (exclusiveness of workmen’s compensation remedy). The court, agreeing the state was the statutory employer of Keith Kent, sustained the exception and rendered judgment dismissing this defendant.

After a lengthy trial by jury and closing arguments by counsel, a settlement agreement was entered into by plaintiff and the Barbers. This resulted in judgment dismissing plaintiff’s demands against these two individuals and their liability insurer, Allstate.

Defendants, Landon and Kupper, stipulated the dismissal of their third party demand against the Barbers reserving their third party demand rights against Barber Brothers Contracting Co., Inc. and its bonding surety who, coincidentally, was Allstate. As employees of the Department of Highways, they contend an indemnity clause in a construction contract entered into by Barber Brothers and the Department for construction of a four-lane segment of Green-well Springs Road protects them from damages. Alternatively, Landon and Kupper seek contribution if cast in judgment.

Before the trial court instructed the jury, motions and amended pleadings accommodated the posture of the litigation resulting from the settlement. Over the objection of plaintiff, the court concluded it was necessary to charge the jury relative to liability of the Barbers in addition to the remaining defendants, Landon, Kupper and Gulf States. Underlying the court’s decision was the solidary nature of any obligation owed plaintiff by all tort-feasors and the right of each defendant, if cast, to enforce contribution. La.C.C. art. 2103.

Following its deliberations, the jury returned a general verdict in favor of Keith Kent and against L. Hilliard Barber, A. L. Barber, Jr. and Gulf States Utilities for the sum of $3,000,000.00. The court, applying La.C.C. art. 2203 and its jurisprudential interpretations, entered judgment against Gulf States for $1,000,000.00, legal interest, and one-third of the costs. It dismissed plaintiff’s claims against Landon and Kup-per and, based upon the settlement, dismissed plaintiff’s claims against the Barbers and Allstate as their individual insurer. The court further dismissed the third party demand of Landon and Kupper against Barber Brothers and against Allstate in its separate capacity. In so doing, the court held the indemnity clause relied upon did not apply to the negligence of the Highway Department’s own employees. Lastly, the court included dismissal of the state in the judgment.

Keith Kent was employed by the Barber Brothers firm at the time of the accident and was engaged in construction work arising out of the contract for four-laning Green well Springs Road. He sued Landon, Kupper and the two Barbers in their capacities as executive officers or those having supervisory control over the project. L. Hilliard Barber was safety superintendent for Barber Brothers and A. L. Barber, Jr. was its vice-president in charge of the project. Landon and Kupper were Project Engineer and Inspector, respectively, for the Department of Highways. Gulf States owned and maintained the high voltage distribution line which inflicted the injuries suffered by Keith Kent.

Plaintiff appeals seeking to have liability imposed upon Landon, Kupper and the State. He also seeks an increase in the amount awarded. Landon and Kupper, in order to protect their interests should they ultimately be cast in judgment, appealed the dismissal of their third party demand against Barber Brothers and Allstate. Gulf States appeals the assessment of liability against it and urges that the $3,000,000.00 awarded is vastly in excess of anything that might be justified in this case.

Plaintiff assigns as errors the trial court’s refusal to enter judgment against Gulf States in the amount of damages assessed by the jury less a credit for the amount of the settlement ($500,000); the jury’s failure to find Kupper liable (apparently abandoning his appeal as to Landon); the trial court’s release of the State (Highway Department) on the basis of immunity under the workmen’s compensation law; and, the failure of the trial court to access all court costs against Gulf States.

Landon and Kupper assign as error the trial court’s finding that the indemnity clause in the construction contract was not applicable to them thereby denying them protection from any damages for which they may ultimately be assessed.

Gulf States specifies a total of fifteen errors of which ten relate to the court’s instructions to the jury. The remaining errors assigned raise questions as to the admissability into evidence of a document (employer’s report of injury), the lack of responsibility for Kent’s injuries, and the defenses of contributory negligence, assumption of risk and intervention of a third party.

We find it unnecessary to enunciate and treat all the issues raised by the errors assigned. The only issue essential to a determination of this case is whether the conduct of Keith Kent bars his recovery. We hold, regardless of the several theories of liability urged by plaintiff, the conduct of Keith Kent does bar his recovery and it was manifest error for the jury not to so find. We assume, without holding, the facts and law would otherwise impose liability upon Gulf States, Kupper and the State; and we assume, without holding, the jury verdict was based upon or guided by essential and correct legal principles. The facts relative to the defenses of contributory negligence, assumption of risk and victim fault are so clear and compelling they mandate resolution of this litigation by treatment of those facts.

Early in 1971 the Department of Highways notified Gulf States it would be necessary to relocate various electrical facilities in connection with the four-laning of Greenwell Springs Road. By letter dated May 13, 1971, the Department approved an agreement with Gulf States for that purpose and authorized work to begin. Gulf States, in February 1974, completed the construction of eighteen 7620 volt distribution lines across the road, including the one which injured Keith Kent approximately two years later.

On August 24, 1973, the contract for the construction of the Courtland Drive-Sullivan Road segment of the project was entered into by the Department and Barber Brothers. Thereafter the Department decided the new concrete road surface should undergo a scratching (grooving) process to aid in preventing the hydroplaning of automobiles during wet weather. To accomplish this purpose a “force account” was imposed upon Barber Brothers which essentially was a cost-plus amendment to the basic contract. The “scratching” began in October 1974.

Keith Kent was hired by Barber Brothers a few weeks prior to the electrocution accident. His duties on the project were to scratch the new concrete with a metal rake to groove the surface. The metal rake, five feet in width, was pulled across the freshly poured concrete by use of an aluminum pole attached to it which consisted of various joints screwed together to get the desired length. Testimony relating to events leading up to the accident and to circumstances attendant to the scene is summarized, as follows.

On the day before the accident the construction crew began full-width paving of the two westbound lanes having a width of 26.5 feet. Mr. Landon observed Keith Kent and his co-worker, David Jenkins, scratching the new surface using what is described as the “push-pull” method. With the use of the aluminum pole which had been extended to approximately thirty feet in length, one of the men would pull the rake across the surface, move it over to the adjoining area and then push it back across. The pushing aspect caused a gouging effect in the concrete which did not meet contract specifications. As project engineer for the Department of Highways, Landon ordered the men to cease using the push-pull method and to employ the “bench” method of scratching. This entailed the use of a walk bench or bridge device which is common to such jobs and the rental of which was specifically included in the force account for the scratching process. The bench, on wheels, straddled the full-width slab and afforded a means of transferring the rake from one side to the other by sliding it across. This eliminated the need to push the rake.

Mr. Landon testified the bridge was not needed when only a single or split slab was poured and the pouring of a single slab was done quite a bit on the job. He further testified he had never seen the “flip-flop” method of scratching used on a full-width slab but recalled it being used in a few instances around some intersections. The flip-flop method entailed holding onto the rake head, raising the aluminum pole into the air, and then causing the pole to fall across the slab where it was caught by the companion worker who would pull the rake across the road surface. The reverse of this process would follow thus creating the characteristic flip-flop motion. Both L. Hilliard Barber and A. L. Barber, Jr., testified they had never seen the flip-flop method of scratching used on the job.

On the day of the accident Keith Kent and David Jenkins, as working partners, continued with the scratching process. Jenkins testified they began their work that day using the bench to get the scratching device back and forth across the full-width slab. He explained that during the morning the concrete finishers needed the bench and it was relinquished to them. Thereafter, he and Kent began using the flip-flop method. In a statement given six months after the accident, Jenkins was unable to say who instructed them to use the flip-flop method. However, at trial he testified Kupper (the Highway Department inspector) told them to give the bench to the finishers and to use the flip-flop method. He stated Kupper demonstrated the method since “. .. otherwise, we wouldn’t have known how to do it.” Jenkins stated it was the first time he had ever used the method of flipping the tool over. At this time, according to Jenkins, he and Kent were approximately fifty feet from the high voltage line involved in the accident. The line was one of three parallel lines strung between two poles and crossing the highway area at an angle.

Jenkins testified he and Kent were aware of the presence of the power lines. He admitted Kupper told them about the lines and that a concrete finisher, Wes Smith, mentioned them several times. Jenkins recounted how he and Kent discussed the presence of the lines, and the fact they could be electrocuted, and in explicit detail described the precautions they took to avoid the lines as they got closer to them. At one point in his testimony, Jenkins said:

“I can put it like this and probably clear it up. We did state the fact that the line was there and one of us could be electrocuted.”

To minimize the danger, Jenkins and Kent would walk the tool away from the lines and flip the pole across the slab. They would then walk the lowered pole and rake back to the immediate vicinity of the lines and pull the rake across the surface. This technique, which was worked out by Jenkins and Kent, was repeated several times until they had worked underneath and beyond the lines a distance of about eight to ten feet. In the words of Jenkins:

“So we would walk back away from the power line until we passed completely under it. We had passed under the power line when the accident happened. And once we got on the other side of the power line, we were walking also away from, the power line in the opposite direction then and ... to flip-flop; hold his end and hold my end up and then walk back to sit it down to work it.”

The aluminum pole, when extended to approximately thirty feet, was described as being limber, clumsy and wobbly. An examination of it reveals it to be somewhat flexible. Jenkins testified it was impossible to swing the pole back and forth through the air in a horizontal manner and it had a tendency to whip back in the opposite direction from which it was pulled when raised in the air.

When the accident happened Keith Kent was closer to the power lines than was Jenkins due to the angle at which the lines crossed the area. Jenkins estimated he was about sixteen to twenty feet from the lines. An examination of the lines after the accident established the pole made contact with the inside of the nearest outside line. It follows the pole was between the middle line and the outside line when it either touched the line or came within a fraction of an inch which caused the current to arc. The area in and around the scene of the accident was unlevel in places as one might expect a construction site to be.

Although Jenkins testified he did not actually see the accident happen, he did observe sparks coming from the line and pole when the two met. Jenkins said he was looking up in the air at the time waiting to catch the pole “because the pole was in the air.” When asked if he tried to warn Kent about the power line, Jenkins testified:

“The only warning that Keith and I discussed was on this side of the line; We were aware of the line being there, and we discussed the line a bit. As far as I’m concerned, when I got on that side of the line I was sure, you know, that the line was still there and I was aware of it. But we didn’t really discuss it after that.”

Jenkins estimated the bench was about fifty to seventy-five feet from them at the time of the accident. He did not ask anyone if he and Kent could use the bench when they got to the immediate vicinity of the power lines. He admitted no one told him he could not get the bench and use it nor did anyone tell him he had to use the flip-flop method under the wires. He could not recall if the finishers were using the bench at the time he and Kent needed it.

Kupper testified he had seen the flip-flop method used prior to the accident but never on a double width slab such as was being poured at the time of the accident. He stated this was the first time the bridge (bench) had not been used under those circumstances. He knew someone had gotten the bridge from Jenkins and Kent and the flip-flop method was in use by them. He emphatically denied the statement of Jenkins that he, Kupper, had instructed Jenkins and Kent to flip the pole back and forth.

As regards the danger caused by the presence of the power lines and whether he warned Kent and Jenkins of the danger, Kupper testified:

“Yes, sir, I did. Approximately forty-five or fifty minutes previous to the accident I had warned them that the wire was existing up there and showed them the wire.”
“I told them to be careful because the wire existed and for them to look out for it. And, of course, they heard me and I never thought any more about it.”

Kupper also testified he later heard Wes Smith warn Kent and Jenkins about the power lines. Kupper stated: “They were in close range of the lines whenever Wes Smith alerted them about the lines, say fifty or a hundred feet.”

Kupper’s job entailed moving up and down the entire paving operation inspecting the work product of the contractor to make sure contract specifications were fulfilled. He did not observe Kent and Jenkins working under the power lines. When he heard the electrical boom resulting from contact with a wire he was some distance away.

Charles Wesley Smith, the cement finisher, testified he saw Kent and Jenkins using the flip-flop method just prior to the accident. According to Smith, he had never seen the method used before this time. Smith was working approximately thirty-five or forty feet from the power lines at a point where the paving ended. Upon observing the power lines and the men with the scratching device, he left the side where he was working and went around the “header” to warn the men. The “header” is a piece of wood at the end of the slab used to contain the concrete.

Because of its factual impact upon the issue under consideration, we quote the following from the transcript of Smith’s testimony:

“A. I quit my work and went around the header; I told Keith Kent — I tapped him on the shoulder; I said, watch the wires. He laughed. He just laughed at me.
Q. What was his reaction? Did he know what you were talking about?
A. Oh, yeah.
Q. What was his reaction?
A. He laughed. He said, it’s not going to get me; it will get my partner.
Q. And how far away from the wires were they at the time?
A. Oh, they were — I don’t know how many feet it was, but it was very close.
Q. What happened after that?
A. After I told him, after he laughed about it and said the few words he said I walked off. And I walked about twenty feet at the most and that’s when the accident occurred. I heard the noise.
Q. Did you stop along the way or did you just walk the twenty feet?
A. I just walked — continuous walk.
Q. At the time that you told Keith Kent about the lines, did he have anything in his hands?
A. Yes, sir, he had the aluminum pole.
Q. In his hand at the time?
A. In his hand at the time.
Q. Did you see the accident occur yourself?
A. No, my back was turned to it.
Q. Tell the jury what you heard and saw.
A. What I heard and saw — about the noise? I heard a noise that went “Boom” like that and then popped just like lightning hit. And then when it popped I turned around fast and the pole was falling and he had fell slumped outside the slab.”

Under cross-examination Smith made contradictory statements about whether he thought the aluminum pole was long enough to reach the wires. It is more reasonable to believe his assertion he warned the men because he thought it possible the pole would get into the wires. And, contrary to other contentions, he denied telling A. L. Barber, Jr. he saw Kent lose his balance, or trip and fall.

Smith further testified there were two benches on the job, one behind the “joint machine” used by him, and another one behind it for use in the scratching operation. He noted Kent and Jenkins could have used one of the benches, thus eliminating raising the pole in the air, had they chosen to do so since both were available and not in use at the time. Smith also agreed if Kent and Jenkins wanted to avoid the wire, they could have taken the rake and walked around the header with it and then pulled it across the slab. He explained they were close enough to the header to do so.

Homer Lee Harvey was employed by Barber Brothers at the time of the accident. At the time of trial he was employed by a construction firm in Houston, Texas. He testified his position on the Greenwell Springs Road project was that of foreman in charge of the concrete finishers and the two men (Kent and Jenkins) doing the scratching or texturing. His duties included warning employees of unsafe acts or conditions on the job.

According to Harvey, earlier in the day of the accident he told Kent and Jenkins to use the push-pull method of scratching. Later, he observed them using the flip-flop method. Not more than an hour before the accident, he warned Kent and Jenkins to watch out for the power lines. He testified:

“Well, we were about a hundred and fifty, two hundred feet from the power lines. And I went back there to bring the curing machine on up there. They were already up with the brooms and stuff. So I told them they were going to be getting close to the power lines with the brooms so to watch out for them.”

Harvey said both men acknowledged his instructions. Although he had not seen the flip-flop method used before, Harvey saw nothing unsafe about the procedure except when used close to the lines. And, he said: “David and both Keith said they would look out for them when they got up there.”

Harvey’s testimony also covered these points. Kent and Jenkins screwed the pole joints together. He did not instruct them to use the flip-flop method nor prohibit its use. He did not remember anyone telling them to use the method but assumed Kup-per may have told them to use it. He did not suggest to them they use a bench although two benches twenty-five or thirty feet away were available. At the time, Kent and Jenkins could have gotten either of the benches to use under the lines. Or they could have walked the rake and pole around the header (the end of the concrete) which was about twenty-five feet away. Walking the pole away from the lines to flip it across the slab was a technique the men thought of themselves. Harvey felt this demonstrated the men were heeding his warning. He also thought there was no need to flip the pole around the wires.

James L. Mitchell, an employee of the Highway Department, heard Wes Smith warn Kent and Jenkins about the lines. Ben Foster, another Department employee, upon hearing the noise turned around in time to see Kent falling. Neither of these workers saw Kent raise the pole into the line.

The day after the accident Thurman 0. McKnight, claims supervisor for Gulf States, went to the scene of the accident and measured the height of the line at the point it was contacted by the aluminum pole. He found it to be twenty-five feet, eight inches from the ground and twenty-four feet, eight inches from the concrete slab. It is undisputed the National Electric Safety Code requires such a line to be elevated a minimum distance of twenty feet. While the height of the line exceeded the Code requirements by about twenty-five per cent, the experts called by the parties disagreed whether various general provisions of the Code were being violated at the time of the accident. The disposition of this case does not require us to examine these contentions. The fact the line was not insulated with a protective covering of one sort or the other was known to all persons involved, including Keith Kent.

Criteria for determining if Keith Kent was contributorily negligent as regards Kupper and the State are: (1) relative knowledge of the danger by the supervising employee (Kupper) and the injured employee (Kent); (2) relative control over the employee’s situation; (3) the degree to which the employee’s conduct is voluntary on his part; (4) alternatives available to the employee; (5) obviousness of the danger; and (6) relative ability to eliminate the danger. Miller v. Employers Mutual Liability Insurance Company of Wisconsin, 349 So.2d 1353 (La.App. 2d Cir. 1977).

When we apply the above criteria, the evidence before us establishes Keith Kent had as much knowledge of the danger posed by the high voltage line as did Kupper. Over and over he had been warned of the line. He not only discussed with his coworker the possibility of electrocution, but moments before the accident jokingly told another person the electrocution would befall his co-worker, not himself.

It is questionable whether Kupper had any real control over Kent’s situation. His primary job was to see the work being done by the contractor fulfilled specifications. Kent was not working for Kupper but for Barber Brothers. Barber Brothers had supervisory personnel on the job under whom Kent performed his duties. Kupper was required to observe the entire project not just the scratching operation. He was not in the immediate area when the accident happened. The technique employed by Kent and Jenkins in the vicinity of the power lines was voluntary on their part. If Kupper had any right of control over Kent’s situation, it was subordinate to Kent’s control of the specific manner in which his assignment was carried out.

It cannot be seriously contended Kent’s conduct was involuntary. Nothing in the record suggests he would have gotten in trouble with his employer or jeopardized his employment had he used alternative methods of scratching the slab while near the power lines. There was ample time to bring over a bench and use it. Or, as pointed out by witnesses, he was a short distance from the end of the slab and could have walked the rake and pole to the other side. These were safe alternatives but Kent chose to ignore the many warnings and expose himself to the known, obvious danger. Under the circumstances attendant to the then existing work situation Kent had as much, if not more, ability to eliminate the danger as did Kupper.

We are aware Kent may have stumbled as he raised the pole. And, we acknowledge where there are no eyewitnesses and the plaintiff, as here, is unable to testify how the accident occurred, it is presumed he acted with ordinary care. These concerns are answered by the evidence. A reasonable person would have been aware of the distinct possibility of stumbling in uneven terrain while attempting to control a device having the physical characteristics possessed by the scratching device. Losing one’s stability under those circumstances was a foreseeable event of which a reasonably prudent person would have been aware. The possibility of Kent having stumbled does not raise his conduct to that degree of care which we might reasonably expect a person to exercise for his own safety and protection.

With respect to the presumption, we conclude there were eyewitnesses to the accident. What was seen and heard by several witnesses is tantamount to a full explanation of how the accident occurred. The conclusion is inescapable. Kent raised the pole while dangerously close to the high voltage lines. One may speculate whether Kent failed to control the pole due to stumbling or due to its physical characteristics, whether he misjudged the distance involved, or whether he momentarily lost sight of the line. In any event, we know from the evidence the pole was in Kent’s hand moments before the accident, it was seen at the moment of contact, it was seen falling, and Kent was seen slumping to the ground. It may not be clear why the pole made contact but witnesses to the accident establish beyond doubt Kent raised it while very close to the line. From a purely logistical view point, the length of the pole, the height of the line, and the point of contact placed Kent almost directly under the distribution facilities. Even if we were to find there were no eyewitnesses to the accident, the presumption Kent acted with ordinary care has been rebutted by substantial evidence.

We conclude Kent’s conduct was not that of a reasonable person; it did not conform to the standard required for his self-protection. He was contributorily negligent and as a matter of law is denied recovery from Kupper and Kupper’s employer, the State of Louisiana.

Turning to Gulf States, we must test the defenses asserted against the theories of liability for which instructions were given by the trial court. After stating a different standard of care applied to Gulf States, the trial court proceeded to instruct the jury with respect to three distinct bases for liability. Each of these concerns an activity in which Gulf State may be said to have been involved and which under varying circumstances produces legal fault. They are: custody of a thing presenting an unreasonable risk of harm (strict liability under La. C.C. art. 2317); maintaining a potentially dangerous facility requiring a high degree of care (negligence under La.C.C. art. 2315); and, engaging in an ultrahazardous activity (strict liability without proof of negligence under La.C.C. art. 2315).

It is arguable whether the facts of this case justify giving to a jury the question of whether the high voltage line entailed an unreasonable risk of harm. The initial decision of whether a thing poses an unreasonable risk of harm is one of law for the court to make and must be based upon the court’s appreciation of whether reasonable minds can differ on the point. If the court believes the thing does present an unreasonable risk of harm, or that reasonable minds could differ, only then is it appropriate to instruct the jury on the law set forth in Article 2317 of our Civil Code. Even in this instance, the jury should be cautioned that if it finds the thing does not pose an unreasonable risk of harm, negligence must be proved in order to permit recovery. Adequate guidelines are set forth in the case of Loescher v. Parr, 324 So.2d 441 (La.1976).

It is also arguable if a proper question for the jury was whether the activity of Gulf States was an ultrahazardous undertaking. Again, the initial decision is one of law and the approach discussed above should be employed. Guidelines for this area of concern are found in Langlois v. Allied Chemical Corporation, 258 La. 1067, 249 So.2d 133 (1971).

Prior jurisprudence has treated electrocution accidents as negligence cases falling within the purview of Article 2315 of our Civil Code and subject to the defense of contributory negligence. See Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976); Simon v. Southwest Louisiana Electric Membership Corporation, 380 So.2d 1242, 1245 (La.App. 3d Cir. 1980); McKowen v. Gulf States Utilities Co., 358 So.2d 675 (La.App. 1st Cir. 1978); Boure v. New Orleans Public Service, Inc., 255 So.2d 776 (La.App. 4th Cir. 1971), writ refused, 260 La. 857, 257 So.2d 432. The duty imposed by these authorities upon those who operate high voltage electrical lines is one requiring the exercise of “utmost care,” “a high degree of care,” “the highest degree of care.” The trial court in this case spoke simply of “a high degree of care.” We hold, regardless of the verbiage, and for the reasons detailed in our discussion relative to Kupper and the State, the conduct of Keith Kent nullified any possible liability of Gulf States because of omissions or commissions constituting a violation of its legal duty. In short, Kent did not exercise that degree of care one might reasonably expect a person to exercise for his own safety and protection. Viewed objectively, his actions equate to contributory negligence. Gulf States carried the burden of proving this defense by a clear preponderance of the evidence.

To escape liability for injury caused by a thing presenting an unreasonable risk of harm (La.C.C. art. 2317), the owner or guardian having custody, of the thing must show the injury was caused by the fault of the victim, by the fault of a third person, or by an irresistible force. Loescher, supra. See also Holland v. Buckley, 305 So.2d 113 (La.1974); Turner v. Bucher, 308 So.2d 270 (La.1975). In this regard, we need address only the question of whether Kent’s injuries were caused by his own fault.

Jurisprudential standards for what constitutes victim fault sufficient to relieve a defendant of liability under Article 2317 are in a developmental stage. Loescher tells us fault of the victim must be a substantial fact in bringing about the harm producing incident. This court, in American Road Insurance Company v. Montgomery, 354 So.2d 656 (La.App. 1st Cir. 1978), writ denied, 356 So.2d 430, 434, 435 (La.1978), equated “substantial factor” with “cause in fact.” Under the facts of Daniel v. Cambridge Mutual Fire Insurance Company, 368 So.2d 810 (La.App. 2d Cir. 1979), writ denied, 369 So.2d 1063, the court concluded: “Defendant is exculpated from fault and liability by the fault of the victim, that is, her assumption of risk.” A writ denial in Hebert v. Maryland Casualty Company, 369 So.2d 708 (La.1979), elicited these comments from Justice Tate:

“[T]he fault of the victim that defeats recovery for harm occasioned by strict liability imposable upon a defendant involves a voluntary exposure to the risk with full knowledge and appreciation of the danger. Langlois v. Allied Chemical Corp., 258 La. 1067, 249 So.2d 133, 140-141. The trier of fact could properly have found that the plaintiff, an experienced horsewoman, had so assumed the risk.
“Although the language of the court of appeal incorrectly suggests that the objective test of contributory negligence rather than the subjective test of assumption of the risk defeats a recovery based on strict liability, the result is correct. See Daniel v. Cambridge Mutual Fire Insurance Co., 368 So.2d 810 (La.App. 2nd Cir. 1979) in which writs were denied this day, for a correct statement of the principles involved.”

For purposes of this decision, we need not look beyond the principle that where the facts of a case prove plaintiff fully understood the danger which was involved and then voluntarily exposed himself to the danger, he is guilty of victim fault precluding recovery. In plain language, facts which establish the defense of assumption of risk are always sufficient to establish the defense of victim fault as related to imposition of strict liability. The jury was correctly instructed in this regard.

The evidence in this case overwhelmingly proves Keith Kent fully understood the danger involved in contacting the high voltage distribution line and that he voluntarily exposed himself to the danger by raising the aluminum pole into the air while in close proximity to the line. Without repetitious detail, it suffices to say Kent before the accident discussed the danger of electrocution, acknowledged it could happen and jokingly downplayed the danger. Rejecting repeated warnings he then unnecessarily exposed himself to the danger.

Lastly, we note the defense to liability based upon the theory Gulf States was engaged in an ultrahazardous activity is, in this instance, the same defense as that applicable to liability based on custody of a thing presenting an unreasonable risk of harm. This defense is, of course, assumption of risk. Liability arising from an ul-trahazardous activity (here contended to be the operation of a high voltage electrical distribution line) is a form of strict liability imposed by our courts. The landmark decision of Langlois v. Allied Chemical Corporation, supra, treats this subject matter. It holds contributory negligence is not a defense in these type cases but adopts the majority view that assumption of risk is a defense. To determine if the plaintiff in Langlois assumed the risk, the court examined: (1) plaintiff’s appreciation and knowledge of the risk; (2) plaintiff’s ability to avoid or minimize the risk; and (3) whether plaintiff consented to encounter the risk. The court noted plaintiff was not required to surrender valuable rights and privileges because defendant’s conduct threatened him but stated:

“Yet if the plaintiff could readily avoid or mitigate the damage caused by defendant’s conduct and he knows how to do so, he cannot act in such a manner as to invite injury.”

The court in Langlois held the determination of whether a plaintiff has assumed a risk is made by subjective inquiry, whereas contributory negligence is determined objectively under the reasonable man standard. Applying the criteria of Langlois to the actions of Keith Kent leaves no doubt as to the validity of the defense of assumption of risk. Established facts mandate inferences and conclusions fully satisfying subjective inquiry.

For these reasons, we hold the jury in this case committed manifest error in failing to find the conduct of Keith Kent bars his recovery. We reverse the judgment appealed insofar as it cast Gulf States Utilities Company for damages, legal interest and one-third of the costs. In all other respects, the judgment is affirmed. Plaintiff is assessed all costs of court.

REVERSED IN PART AND AFFIRMED IN PART.


author: LOTTINGER, Judge.

text:
    Joseph B. MODICUT v. Wilford E. BREMER.
    No. 13561.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.

      Gail H. Ray, Baton Rouge, for appellant.
    Randall J. Cashio, Baton Rouge, for ap-pellee.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   LOTTINGER, Judge.

ON MOTION TO DISMISS

The narrow issue presented on this appeal is whether the defendant-lessee is entitled to appeal suspensively a judgment ordering his eviction from premises leased by the plaintiff-lessor.

The plaintiff-lessor claims that the lessee failed to satisfy the provisions of La.C.C.P. art. 4735, which prohibits a suspensive appeal from a judgment of eviction unless the lessee answers under oath and pleads an affirmative defense entitling him to retain possession of the premises.

Plaintiff sued for eviction claiming nonpayment of lease rental, and the defendant-appellant answered contending he had “complied with all terms and conditions of his lease.”

VERIFIED ANSWER

In an affidavit on the last page of the answer, the defendant swore before “the undersigned Notary” that the allegations in his answer were true and correct. The attorney-notary’s signature appears below the defendant’s signature on the same page as the affidavit, but appears in connection with the standard attorney’s certificate attesting that a copy of the answer has been served on all counsel of record.

In opposition to the motion to dismiss, the attorney-notary executed an affidavit claiming that her signature below the defendant’s affidavit in connection with a certificate of service was intended also to be a notarization of the defendant’s signature on the affidavit.

We pretermit the question of whether the answer is verified, because we conclude that an affirmative defense was not pleaded.

AFFIRMATIVE DEFENSE

An affirmative defense is one which raises a new matter not covered by the plaintiff’s petition and which will defeat the plaintiff’s demand on its merits, even if the plaintiff proves all of the allegations in his petition. Webster v. Rushing, 316 So.2d 111 (La.1975); see also La.C.C.P. art. 1005.

The lessee alleges that his answer-claiming compliance with all the terms and conditions of the lease is an affirmative defense which would defeat the plaintiff’s action. We disagree.

The assertion of merely complying with all terms and conditions of the lease is nothing more than a general denial of plaintiff’s allegation of non-payment of rent. There is no question that if the lessee had proved he paid the rent, his proof would defeat the plaintiff’s action for eviction. It does not follow, however, that such a plea constitutes an affirmative defense. Every allegation in an answer which if proven would defeat plaintiff’s suit does not constitute an affirmative defense.

The plea of compliance does not raise new matter which would defeat plaintiff’s claim even if plaintiff’s claim were found to be true. Compliance with the terms of a contract is not one of those affirmative defenses illustrated in La.C.C.P. art. 1005, nor has any case been cited to us, nor have we been able to find any holding such to be an affirmative defense. Therefore, we are of the opinion that such a plea in an answer does not constitute an affirmative defense.

At the lessee’s behest, however, we will consider the appeal as a devolutive one and will hear it on the merits when it comes before this court.

Therefore, for the above and foregoing reasons, the motion to dismiss the suspen-sive appeal is granted, and the appeal is maintained as a devolutive one with all costs of this proceeding to be paid by appellant, and further costs to await the final outcome.

MOTION TO DISMISS SUSPENSIVE APPEAL GRANTED, APPEAL MAINTAINED DEVOLUTIVELY.


author: ELLIS, Judge.

text:
    Noah SMITH, Sr., Individually and as Administrator of the Estate of the Minor, Noah Smith, Jr. v. Leonard TRAHAN and Rosalie Stewart Trahan et al.
    No. 13339.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.

      Stephen M. LaRussa, Houma, for plaintiff and appellant.
    A. D. O’Neal, Jr., Houma, for defendants and appellees Leonard Trahan & Rosalie S. Trahan.
    John L. Lanier, Thibodaux, for defendant third party Liberty Mut. Ins. Co.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge.

This is a suit for damages for personal injuries brought by Noah Smith, Sr., individually and on behalf of his minor son, Noah Smith, Jr. Young Noah was injured when he was struck by a pickup truck being driven by Rosalie Stewart Trahan. Defendants are Mrs. Trahan, her husband, Leonard Trahan, and Liberty Mutual Insurance Company, uninsured motorist insurer of plaintiffs. After trial on the merits, judgment was rendered dismissing plaintiff’s suit, and he has appealed.

The accident happened on Naquin Street in Houma, Louisiana, a narrow paved street, with narrow sidewalks immediately adjacent to the travelled portion of the street. Mrs. Trahan testified that she was driving on Naquin Street. Since cars were parked adjacent to the curb on the right side of the street, she was compelled to drive her truck down the middle of the street. As she entered the block in which the accident happened, she was driving about 15 miles per hour. She stated that she saw young Noah riding his tricycle on the sidewalk on the left side of the street, about half a block ahead.

Mrs. Trahan testified that she continued without decreasing her speed, or paying any particular attention to young Noah. She stated that she was looking where she was going. As she approached young Noah, he pedalled his tricycle down an inclined driveway and into the street. Mrs. Trahan stated that she applied her brakes at almost the same moment that she struck the child.

The duty of a motorist in such a situation was expressed by the court in Dufrene v. Dixie Auto Ins. Co., 373 So.2d 162 (La.1979):

“The jurisprudence of this state places a high degree of care upon a motorist who sees a child on or near the road and imposes upon him a duty to anticipate that the child, possessed of limited judgment, might be unable to appreciate impending danger, is likely to be inattentive, and might suddenly place himself in a position of peril.”

We think that Mrs. Trahan did not exercise the requisite degree of care in this case. By operating her vehicle at a slow rate of speed and looking where she was going, she certainly exercised ordinary care. However, in this case, on a narrow street immediately adjacent to a narrow sidewalk, she cannot assume that a child on the sidewalk is in a place of safety and will not suddenly put himself in peril. She is required to anticipate that a child might do exactly what young Noah did in this case. We find Mrs. Trahan to have been guilty of negligence which was a proximate cause of the accident. Of course, young Noah, at age five, was too young to have been guilty of contributory negligence.

The trial judge stated in his reasons for judgment that the parents of young Noah were guilty of contributory negligence in permitting their child to play unsupervised near a heavily travelled street. Both parents were outside near young Noah when the accident happened, the father painting a ladder in a neighbor’s yard, and the mother across the street in another neighbor’s yard. Neither of them were immediately supervising young Noah’s activities, but both knew that he was riding his tricycle on the same side of the street as his home. In Smolinski v. Taulli, 276 So.2d 286 (La.1973), the court said:

“Failure to take every precaution against every foreseeable risk or to use extra ordinary skill, caution, and foresight does not constitute negligence or contributory negligence. (Citations omitted.) A mother of small children is not required to chain them up or to act as their constant jailer in order to absolutely secure them from exposure to hazards negligently created or maintained by a tortfeasor. She is required only to use reasonable precautions, and her conduct in this regard is not negligent if, by a commonsense test, it is in accord with that of reasonably prudent persons faced with similar conditions and circumstances. (Citations omitted.)”

Under the circumstances of this case, we find no contributory negligence on the part of the parents.

Fortunately, young Noah was not severely injured. Mrs. Trahan was able to stop her truck before rolling over the child. However, he did suffer a broken right upper arm, a cracked rib and a number of abrasions and contusions. One of the abrasions left a raised scar on the side of his knee. Otherwise, there was no residual effects of the accident. The accident happened on March 30, 1979, and young Noah was discharged as fully recovered on May 7, 1979. He made some visits to his doctors after that time, and will continue to need periodic checkups for about another year.

Medical expenses were stipulated to be $1,168.45, including a three-day hospitalization immediately after the accident. For general damages, we think that the sum of $5,000.00 will amply compensate young Noah for his injuries.

Mr. Smith also claimed lost wages for the time Mrs. Smith had to leave work in order to care for young Noah. At the time of the accident, she was employed at $3.00 per hour, and would have missed a little over five weeks work. We think that $660.00 will fully compensate that loss.

The judgment appealed from is therefore reversed and set aside, and there will be judgment herein in favor of Noah Smith, Sr., individually, in the sum of $1,828.45, with legal interest from date of judicial demand until paid; and in favor of Noah Smith, Sr., on behalf of his minor son, Noah Smith, Jr., and against the said defendants, in the full sum of $5,000.00, together with legal interest from date of judicial demand until paid, and for all costs of these proceedings.

REVERSED AND RENDERED.


text:
    Lynn G. DIFFERDING v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY through Malcolm R. Millet, Director.
    No. 12914.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.
    Douglas H. Greenburg, Houma, for plaintiff and appellee.
    Foye L. Lowe, Jr., Associate Gen. Counsel, Baton Rouge, for defendant and appellant.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge.

ON REHEARING

We granted rehearing herein because we were advised for the first time in the applications for rehearing, that plaintiff had died prior to oral argument herein. Of course, a personal non-heritable action is abated by the death of the plaintiff. There was, therefore, nothing for this court to rule on when our original opinion was handed down.

The opinion is therefore withdrawn, and the action declared abated as of the date of death of the plaintiff, August 5, 1979. Apparently, the attorneys for both parties were aware of Mr. Differding’s demise, but neither saw fit to advise the Court of that fact. Costs shall therefore be equally shared by both parties.

JUDGMENT RECALLED.


text:
    Marguerite T. LITTLES v. SOUTHEASTERN FIDELITY INSURANCE CO. et al.
    No. 13573.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.
    Edgar N. Quillin, Arabi, for plaintiff-appellant Marguerite T. Littles.
    Richard B. Nevils, Baton Rouge, for defendant-appellee Southeastern Fidelity Ins. Co.
    Patrick J. Briney, Lafayette, for defendants-appellees Orleans Oil Co. and Trinity Universal Ins. Co. of Kansas, Inc.
    Before ELLIS, COLE and WATKINS, JJ.
   COLE, Judge.

This is an appeal from a judgment of involuntary dismissal without prejudice under the provisions of La.Code Civ.P. art. 1810(B) because of plaintiff’s failure to show a right to relief. The issues raised on appeal are whether or not the trial court erred in rendering the judgment of dismissal and whether the judgment should have been with or without prejudice.

Plaintiff Marguerite Littles alleges that on May 19, 1977 she was a passenger in the rear seat of a car being driven by Bernard Gains. The Gains’ car was proceeding north in the far left lane on I — 110 in Baton Rouge when it was struck on the right side by a 1972 Mack truck traveling in the same direction. The truck was allegedly owned by Orleans Oil Company and was being driven by an employee, Aeray Guillot. The petition states the Mack truck had been forced into the far left lane by a 1969 Buick being driven by Henry Harris. Plaintiff alleges the collision caused her to be thrown to the floor of the car resulting in injuries to her back, neck and right leg. She and her daughter were taken by ambulance to Our Lady of the Lake Medical Center.

Plaintiff-appellant filed suit for her injuries against Southeastern Fidelity Insurance Company, the insurer of Harris, and against Orleans Oil Company and its insurer, Trinity Universal Insurance Company of Kansas.

The only witnesses called by counsel for plaintiff were Mrs. Littles and Bernard Gains. Mrs. Littles testified she had been involved in various accidents and had filed several lawsuits for personal injuries caused by those accidents. Her first accident occurred while riding a New Orleans Public Service (NOPSI) bus in 1958. Her claim against NOPSI was settled out of court. Her second accident occurred in March of 1977, two months prior to the accident at issue here, again while she was a passenger on a NOPSI bus. That suit has also been settled. Plaintiff’s third accident was the accident that occurred while she was a passenger in Bernard Gains’ car on the Baton Rouge interstate. Her fourth accident occurred in December of 1978, in Arabi, Louisiana. Plaintiff has consulted a lawyer but has not yet filed suit. Plaintiff’s testimony indicated she suffered back and neck injuries in all four accidents.

Depositions of various doctors that had treated plaintiff were introduced at trial. The deposition of Dr. Matko Milicic, who examined Mrs. Littles immediately after the 1977 New Orleans accident showed she had been diagnosed as having a contusion on the right shoulder and a sprained back. Although plaintiff visited Dr. Milicic in June of 1977, which was after the Baton Rouge accident, she did not tell him she had been injured in another accident.

After the Baton Rouge accident plaintiff sought treatment from Dr. Stewart Phillips. His deposition revealed that she was diagnosed as having a ruptured lumbar disc. She complained of pain in the neck, right shoulder, right arm, back and right leg. Dr. Phillips testified plaintiff did not tell him she had been in an accident in New Orleans only two months before.

The deposition of Dr. Hammond Newman was also introduced. He also treated Mrs. Littles after her Baton Rouge accident. He found she had a torn ligament in the cervical region. Again, Mrs. Littles made no mention of the New Orleans accident.

Finally, there was introduced the deposition of Dr. John Thomas, who had been employed by the defendants to examine Mrs. Littles for the purpose of this lawsuit. He testified that a comparison of x-rays made after her New Orleans accident and x-rays made after the Baton Rouge accident showed her condition was virtually the same. That is, her back and neck injuries did not seem to be any worse after the Baton Rouge accident than before.

The remainder of plaintiff’s testimony dealt with her description of the accident which was simply that she saw the big truck bearing down upon the ear in which she was riding and then felt the truck make contact with the right side of the car. She testified the driver of the Mack truck, alleged to be Aeray Guillot, stopped his truck and approached the car, saying “I’m sorry, is anyone hurt?” Mrs. Littles had no personal knowledge about the 1969 Buick allegedly driven by Harris. She stated that Mr. Guillot gave , his medical card to the ambulance driver and said “Take them to the hospital.”

Bernard Gains testified the truck hit the right side of the car. He stated the truck driver said he was sorry and that it was his fault. Gains also had no recollection of the 1969 Buick being driven by Harris.

When counsel for plaintiff rested, both defendants moved for an involuntary dismissal under La.Code Civ.P. art. 1810(B), asserting that the plaintiff had not proven her case by a preponderance of the evidence. Although counsel objected that he had planned to cross-examine on rebuttal ■ the person allegedly driving the Mack truck, the court granted the motion for dismissal.

Plaintiff moved to reopen the case so that she could call Mr. Guillot, the alleged truck driver, under La.Code Civ.P. art. 1634. The court refused, noting that counsel had been given ample opportunity to call Mr. Guillot during his case in chief.

Plaintiff-appellant contends the trial court erred in rendering the judgment of dismissal in that plaintiff proved her case. The trial court is granted much discretion and its findings will not be disturbed unless the judgment is clearly wrong. The record reflects there has been no manifest error in this case. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), rehearing denied 1979.

La.Code Civ.P. art. 1810(B) grants the trial judge the right to dismiss a case.

“B. In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.”

The article does not specify what standard should be applied in determining whether plaintiff has shown a right to relief. The Fourth Circuit recently held that dismissals under La.Code Civ.P. art. 1810(B) should be governed by the “preponderance of the evidence” standard. Sevin v. Shape Spa for Health & Beauty, Inc., 384 So.2d 1011 (La. App. 4th Cir. 1980). This standard is to be distinguished from the one applicable to jury trial cases dismissed under 1810(A) (directed verdicts) which is that the judge must view the evidence in the light most favorable to the party opposing the motion. If reasonable minds could arrive at a contrary verdict, the motion should be denied. Campbell v. Mouton, 373 So.2d 237 (La.App. 3d Cir. 1979).

A trial judge has the discretion to refuse to reopen a case after one side has rested. La.Code Civ.P. art. 1632. Poche v. Frazier, 232 So.2d 851 (La.App. 4th Cir. 1970). We find the judge did not abuse this discretion.

Evidence offered by plaintiff simply established that an accident occurred and that Mrs. Littles has suffered from back and neck problems. There was no evidence to establish how the accident occurred, who was at fault or what injuries were caused by this particular accident. None of the testimony at trial established the truck allegedly involved in the accident to be the truck owned by defendant Orleans Oil Company. There was not one iota of evidence that connected Henry Harris, allegedly driving the 1969 Buick, to this accident.

Plaintiff’s contention that defendants Orleans and Trinity made a “judicial admission” in their answer cannot be sustained. The answer merely admits Orleans was the owner of a 1972 Mack truck being driven by an employee, Aeray Guillot, at the time of the accident. The pleading does not admit the vehicle was involved in the accident.

Plaintiff argues the extra-judicial statements made by the truck driver immediately after the collision should be admitted as part of the res gestae. This argument is moot since Mr. Guillot was never formally identified as the driver of the truck. Although reference was made to him throughout the testimony of plaintiff’s witnesses, Mr. Guillot was sequestered in the hallway and was never actually identified.

Regardless of Mr. Guillot’s identification, his hearsay statements were in fact admitted into evidence, without objection. The court apparently felt that these “admissions” were not to be given much weight. The statement Mr. Guillot allegedly made to Mrs. Littles was “I’m sorry, is anybody hurt?” Mrs. Littles testified that she too told him that she was sorry. Such a statement is ambiguous at best and simply cannot be labeled as an admission. Mrs. Littles also stated Mr. Guillot gave the ambulance driver his medical card and said “take my medical card and take her to the hospital.” The statements allegedly made by Mr. Guil-lot to Bernard Gains were “I’m sorry, it was my fault.” Without corroborating evidence, these statements do not establish liability. Extra-judicial admissions of fault and offers to pay for medical treatment, standing alone, are not sufficient to establish liability if the evidence does not support that the person making the admission was negligent. Liability cannot be created by defendant’s sudden exclamations, nor even admissions made under reflection unless there is in fact liability under the law. Parker v. Employers’ Casualty, 152 So. 373 (La.App. 2d Cir. 1934).

Plaintiff argues the dismissal was erroneous because the law is well settled that when an innocent third party, such as Mrs. Littles, is injured as a result of a collision between two drivers, each of the drivers is deemed guilty of negligence per se and the burden of exculpating himself is on each driver. Poche v. Frazier, supra. This court recently interpreted the Poche holding in Smith v. Travelers Indemnity Co. of R. I., 374 So.2d 708 (La.App. 1st Cir. 1979), at p. 711:

“ ‘The rule (Poche rule) does not exempt a plaintiff from the ultimate requirement that he prove his case. It merely provides the plaintiff with an early advantage in the trial of the case. This advantage, however, may be obtained only after the plaintiff has first proved his own innocence and then that the circumstances compel a finding that one or the other of the defendants was at fault.’ ” (Parenthesis ours.)

The trial judge correctly found plaintiff had not proved her case. Therefore the Poche rule does not apply.

Defendant Orleans Oil Company and its insurer Trinity Universal filed an answer to the appeal, arguing the court erred in rendering the judgment “without prejudice.” We disagree. La.Code of Civ.P. art. 1810(B) does not specify whether the dismissal should be with prejudice or without prejudice. Article 1672 allows involuntary ■ dismissals when the plaintiff fails to appear on the day set for trial and gives the judge discretion whether to render the judgment with or without prejudice. One can analogize that this same discretion should be allowed in the involuntary dismissal under art. 1810(B). The trial judge no doubt felt that it was unfair to make a final disposition of the matter simply because of plaintiff’s counsel’s tactical error.

For the foregoing reasons, the judgment of the trial court is affirmed. Plaintiff is to pay all costs.

AFFIRMED.

ON REHEARING

In our original decision, we affirmed the trial court’s judgment granting a dismissal without prejudice of plaintiff’s suit for personal injury, based on La.Code Civ.P. art. 1810B. We now conclude we were in error as to the dismissal of Orleans Oil Company and their insurer Trinity Universal Insurance Company of Kansas (Trinity). We affirm the dismissal of the other defendants, Henry Harris and Southeastern Fidelity Insurance Company (Southeastern). However, because we conclude the dismissal should have been with prejudice, we reverse that portion of the judgment which held the dismissal to be without prejudice.

The details of the accident which gave rise to this litigation are set forth in our original opinion. There we affirmed the dismissal because the evidence indicated plaintiff had failed to prove her case by a preponderance of the evidence. The only evidence relevant to liability was testimony by Mrs. Littles and Bernard Gains, the driver of the ear in which she was riding. Mrs. Littles stated a big truck was traveling behind the car in which she was riding and began to pass her car. The truck made contact with the right side of her car and caused Gains to swerve to the left. Bernard Gains testified an eighteen wheeler Mack truck struck the right side of the car he was driving and that the truck driver stopped and said he was sorry. We initially concluded this evidence did not create a prima facie case because there was no real identification of the truck as being the truck owned by Orleans and insured by Trinity. We overlooked two important admissions of fact which must be considered. The first is that paragraph five of the answer filed by Orleans and Trinity acknowledges Orleans “was the owner of the 1972 Mack truck being driven by its employee Aeray Guillot at the time of the accident in question.” Although this is certainly not an admission of negligence it is an admission that the truck involved in the accident was the truck owned by Orleans. The second is a document entitled “Defendants, Trinity Universal Insurance Company of Kansas, Inc., and Orleans Oil Companies’ Contribution to the Proposed Pre-trial Order.” Therein the defendants claim the accident was caused by a 1969 Buick being driven by Henry Harris cutting in front of the Orleans truck and that the truck was then forced slightly into the far left lane occupied by a 1975 Buick, (the car in which Mrs. Littles was riding). Clearly, this document admits the Orleans truck was involved in the accident. This fact, being admitted in the answer and in the above pleading, need not have been established at trial. Therefore, we must conclude the dismissal was improper because plaintiff’s unrefuted testimony that an accident occurred, coupled with the admissions mentioned above, was sufficient evidence to establish a prima fa-cie case as to defendants Orleans and Trinity. We remand the case to the trial court for proceedings consistent with this opinion.

With regard to the other defendants, Harris and Southeastern, the dismissal was entirely proper. There were no admissions in the answer or in any other pleadings establishing Harris’ involvement in the accident. The testimony of Mrs. Littles and of Mr. Gains did not implicate Harris in any way; neither one had any knowledge of the Harris car causing the Orleans truck to swerve. Therefore, the trial court was correct in ruling that plaintiff had failed to prove her case against these two defendants.

In our original opinion we held the dismissal should have been without prejudice. However, after careful reconsideration we conclude La.Code Civ.P. art. 1810B should be interpreted as requiring such dismissals to be rendered with prejudice.

We are influenced in our decision by two factors. First, certain language found in the federal article (on which our codal article is based) is conspicuously absent from the language of La.Code Civ.P. art. 1810B. The Louisiana article reads as follows:

“In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to’him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.”

Federal Rule 41(b) reads as follows:

“For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him. After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a). Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.” (Emphasis added.)

The language, “Unless the court. . . otherwise specifies, a dismissal under this subdivision. .. operates as an adjudication upon the merits.” implies the judge has the discretion to render the judgment with or without prejudice. Since the Louisiana article is patterned almost verbatim after the federal article, we find the absence of this language indicates the Louisiana courts do not have the discretion granted the federal courts.

Second, we are impressed by the wording of the Louisiana article. The article specifically states “The court may then determine the facts and render judgment against the plaintiff.” Clearly, if the judge is basing his decision upon the facts of the case he is ruling on the merits (rather than ruling on a procedural matter). A ruling on the merits equates to a final disposition of the case and after the delays for appeal have run the matter becomes res judicata. On original hearing we had analogized that since the judge has the discretion to dismiss a case with or without prejudice when the plaintiff failed to appear for trial, under La.Code Civ.P. art. 1672, he should have the same discretion with the 1810B dismissal. As appellees have pointed out, the analogy was erroneous because article 1672 deals with a procedural matter, whereas article 1810B addresses a substantive issue.

For the foregoing reasons the judgment of the trial court is affirmed as to the dismissal of Harris and Southeastern. It is reversed as to the dismissal being without prejudice. The judgment of the trial court is further reversed insofar as it dismissed Orleans and Trinity. The case is remanded to the trial court for further proceedings in relation to the liability of Orleans and Trinity. Costs should be assessed equally between Orleans (and Trinity) and Mrs. Lit-tles.

REVERSED IN PART; AFFIRMED IN PART; and REMANDED.


text:
    BATON ROUGE COCA-COLA BOTTLING COMPANY, LTD. v. GENERAL TRUCK DRIVERS, WAREHOUSEMEN AND HELPERS LOCAL UNION NO. 5, Affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America.
    No. 14041.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 22, 1980.

      G. Michael Pharis, Baton Rouge, for plaintiff-appellee Baton Rouge Coca-Cola Bottling Co., Ltd.
    Lawrence R. Anderson, Jr. and William Hardy Patrick, III, Baton Rouge, for defendant-appellant General Truck Drivers, Warehousemen and Helpers Local Union No. 5, Affiliated with Intern. Broth, of Teamsters, Chauffeurs, Warehousemen and Helpers of America.
    Before ELLIS, COVINGTON, LOTTINGER, CHIASSON and EDWARDS, JJ.
   ELLIS, Judge.

In this suit, Baton Rouge Coca-Cola Bottling Company, Ltd., seeks an injunction to prevent General Truck Drivers, Warehouse-men and Helpers Local Union No. 5, Affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, from indulging in certain allegedly illegal picketing practices. A temporary restraining order was issued, and, after a hearing, a judgment granting a preliminary injunction was signed. Local No. 5 has appealed.

During the trial, plaintiff’s witnesses testified to numerous incidents of harassment by the use of obscenities; spitting on persons crossing the picket line, or on their vehicles; obstructing the passage into the Coca-Cola plant, and other similar acts. Defendant’s witnesses, who were among the pickets, testified that no such acts took place, except for some exchanges of obscenities between strikers and workers.

The trial judge found as a fact that the various acts of harassment had indeed occurred, and granted the injunctive relief prayed for.

In this court, the main thrust of defendant’s argument is that the trial court erred in failing to follow the provisions of R.S. 23:841 et seq., the Little Norris-La Guardia Act, particularly R.S. 23:844. It is now settled that these statutes “do not apply where injunctive relief is sought to prevent acts or threats of violence, intimidation or coercion to the extent that the public’s health, safety or general welfare is at stake.” Good Hope Refineries v. Oil, Chemical, Etc., 386 So.2d 378 (La.App. 4th Cir., 1980); Douglas Public Service Corp. v. Gaspard, 225 La. 972, 74 So.2d 182 (1954); Godchaux Sugars v. Chaisson, 227 La. 146, 78 So.2d 673 (1955).

In this case, the findings of the trial court that the picketing was not peaceful, and that there were threats, violence and intimidation by the picketers, are clearly substantiated by the record. We agree with the trial judge that his authority to enjoin such conduct is not restricted by the provisions of R.S. 23:841 et seq. The judgment herein rendered forbids the defendant from engaging in the illegal picketing practices which had been carried on by its members, and reasonably restricts the picketing to legal methods not calculated to interfere with public safety and general welfare. We find no abuse of the discretion of the trial judge in so acting.

Finally, the defendant complains that the bond of $2,500.00 set by the trial judge for the preliminary injunction is too small. The record, however, contains no evidence which might indicate this to be the case. We therefore find no abuse of discretion by the trial judge in this respect.

The judgment appealed from is affirmed, at defendant’s cost.

Affirmed.


author: PONDER, Judge.

text:
    CITIZEN’S FINANCE SERVICE DISCOUNT OF BATON ROUGE, INC. v. Lender J. HOLLIER and Mildred Evans Hollier.
    No. 13955.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 14, 1980.
    Johnny C. Moore, Baton Rouge, for plaintiff-respondent.
    Leo J. Berggreen and Wyatt & Weimer, Woodrow W. Wyatt, Baton Rouge, for defendant-relator.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

This is a suit to enjoin a foreclosure by executory process.

Defendant failed to pay two hand notes, secured by a collateral mortgage on his home. Plaintiff had the home seized under a writ of seizure and sale. From a judgment of the trial court denying an injunction, defendant applied for supervisory writs. We issued an alternative writ. The court elected not to issue the injunction; there has been no other response.

The issues are: usury, a variance between the petition and the mortgage note, and variances in the authentic evidence. We make the writ peremptory.

Defendant, alleging the hand notes to be usurious, claims the debt is unenforceable to the extent of all interest due.

At the time that the loans were made to petitioners LSA-R.S. Art. 9:3503 read as follows:

“Notwithstanding any other law to the contrary, particularly but not exclusively Revised Civil Code Article 2924, the amount of simple conventional interest on obligations bearing interest from date and secured in whole or in part, directly or indirectly, by a mortgage on immovable property, shall not exceed ten per cent per annum. The same must be fixed in writing; testimonial proof of it is not admitting in any case.”

This section is modified by LSA-R.S. Art. 9:3506 which reads:

“The provisions of R.S. 9:3502-9:3506 shall apply only to conventional obligations bearing interest from date on the unpaid balance and shall not apply to or affect discount loans; nor shall it affect the enforceability or collectibility of notes or obligations as provided in Revised Civil Code Article 2924.”

We find the hand notes are not usurious. Both notes bear interest from maturity, not from date. The clear language of LSA-R.S. Arts. 9:3503 and 9:3506 reveals only conventional obligations bearing interest “from date” on the unpaid balance are governed by the provision of LSA-R.S. Art. 9:3503. Thrift Funds of Baton Rouge, Inc. v. Jones, 274 So.2d 150 (La.1973).

Because executory process is a harsh remedy, there must be strict compliance with the letter of the law. Cameron Brown, Inc. v. East Glen Oaks, 341 So.2d 450 (La.App. 1st Cir. 1976).

LSA-C.C.P. Art. 2751 provides that the defendant in an executory proceeding may enjoin the seizure and sale “if the procedure required by law for an executory proceeding has not been followed.” LSA-C.C.P. Art. 2635 provides that the plaintiff, to “prove his right to use executory process to enforce the mortgage,” must attach to the petition authentic evidence of: (1) “The note .. . evidencing the obligation secured by the mortgage,” and, (2) the authentic act of mortgage.

Because a discrepancy between the recitals of the note and the one described in the mortgage necessitates the introduction of extrinsic evidence to establish that they represent the same obligation, any variance between the note and the mortgage precludes the use of an executory proceeding. Myrtle Grove Packing Co. v. Mones, 226 La. 287, 76 So.2d 305 (1954).

As stated in the early case of Ricks v. Bernstein, 19 La.Ann. 141, “every fact must be patent upon the face of the papers, and if there is any matter in pais some other proceeding than one via executiva must be resorted to, to prove it.”

Defendant alleges there is a variance between plaintiff’s petition and the collateral mortgage note. In his petition, plaintiff requests 25% attorney fees, the amount authorized by the hand note. The collateral mortgage note authorized 20%. In support of his claim, defendant cites Margolis v. Allen Mortgage and Loan Corporation, 268 So.2d 714 (La.App. 4th Cir. 1972). Although the opinion mentions that the petition and the mortgage note in question were in variance, the court denied the use of executory process because of numerous deficiencies. Of major importance were the absence of an authentic act of mortgage and authentic evidence to identify the holder of order paper payable to a third party.

Because of the hybrid nature of the collateral mortgage, there may be many instances in which a petition, seeking to enforce a hand note by proceeding via execu-tiva against the collateral mortgage note, will not correspond to the collateral mortgage note. See Nathan and Marshall, “The Collateral Mortgage,” 33 La.L.R. 497. Generally the hand note will be for an amount less than the collateral mortgage note. The petition will of necessity be at a variance with the mortgage note as the debtor is only obligated to the extent of the hand note and the collateral mortgage note. In “The Collateral Mortgage: Reassessment and Postscript,” at 36 La.L.R. 973, the authors point out that in a collateral mortgage package, the actual obligation is the hand note. Interest and attorney’s fees are integral parts of this indebtedness secured by the same collateral, i. e.: the collateral mortgage and note. Because the creditor is secured for the whole indebtedness within the limits of the collateral note and mortgage, he can claim the attorney fees authorized by the hand note, within the limits of the collateral note and mortgage, of course. For this reason, we find the variance between plaintiff’s petition and the mortgage note does not negate the use of executory process.

Defendant also claims there is a variance between the collateral note and the collateral mortgage. The collateral mortgage note provides a maximum of twenty (20%) percent additional as attorney fees. The act of mortgage recites that the note identified with it provides for mortgagor to pay either (1) “all attorney fees, together with all such costs, charges and expenses as the holder of this note shall or may incur or pay,” or (2) twenty (20%) percent additional as attorney fees.

We find the discrepancy in the amount of authorized attorney fees in the collateral mortgage note and the collateral mortgage constitutes a material variance sufficient to preclude plaintiff’s use of executory process.

For the above reasons, it is ordered that the writ be made peremptory. The lower court is ordered to issue a preliminary injunction herein enjoining the Sheriff of East Baton Rouge Parish from proceeding with the sale of the following described property under the writ of seizure and sale dated July 10, 1980:

“One certain lot or parcel of land, together with all the buildings and improvements thereon, situated in that subdivision of the Parish of East Baton Rouge, State of Louisiana, known as SHARON HILLS SUBDIVISION, and being more particularly described according to the official plan of said subdivision on file and of record in the office of the Clerk and Recorder for the Parish of East Baton Rouge, Louisiana, as LOT 64, said subdivision, said lot measuring Seventy-five (75') feet front on the east side of Mable Drive by a depth between equal and parallel lines of One Hundred Sixty (160') feet; said lot being subject to a Twenty (20') foot servitude across the rear; and being the same property acquired by present mortgagor by act of record in Conveyance Book 1620, Folio 439, and corrected by judgment of record in Conveyance Book 2453, Folio 536.
“The property herein mortgaged is the family home of the mortgagor.”

Our stay order is thereupon recalled. Plaintiff is cast with all costs.

WRIT MADE PEREMPTORY.


text:
    ESTATE OF Hollis G. BORER et al. v. LOUISIANA HEALTH SERVICE & INDEMNITY CO.
    No. 13758.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 25, 1980.

      Thomas B. Waterman, Ponchatoula, for plaintiffs.
    Charles G. Walker, Hammond, for defendant.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This is a suit by representatives of the Estate of Hollis G. Borer to collect hospitalization and medical benefits under two policies of insurance issued by the defendant, Louisiana Health & Indemnity Company (Blue Cross). From a trial court judgment granting recovery, Blue Cross appeals.

The issue on appeal is whether Blue Cross can raise the defense of pre-existing illness when it failed to attach copies of the insurance applications to the policies.

Hollis G. Borer became insured by Blue Cross under an individual hospitalization and medical policy around October 28, 1977. As an employee of Sizeler Realty, he became insured under that company’s group policy on April 1, 1978. Although applications were submitted by Mr. Borer for each of the policies, neither policy had an application attached to it when delivered to Mr. Borer. A complete copy of the individual policy was mailed to Mr. Borer. The group policy, however, was reflected by a certificate of insurance issued to him by Blue Cross through his employer. Under this state’s jurisprudence, the certificate is considered to be the policy. Smith v. North American Company for Life, Accident and Health Insurance, 306 So.2d 751 (La.1975).

Mr. Borer was admitted into Baton Rouge General Hospital on May 3, 1978, where he underwent extensive tests and gall bladder surgery. He died in the hospital on June 13, 1978, from causes which his physicians were unable to specifically ascertain.

Mrs. Borer filed claims with Blue Cross for almost $20,000.00 in hospital and medical expenses, but Blue Cross refused payment on the grounds that Mr. Borer’s demise was caused by a condition which existed prior to issuance of the policies and which resurfaced within one year of the issuance of the policies. An exclusionary clause printed upon the face of the individual policy and on the face of the group base policy provides that:

“No Health Care Allowance will be provided for:
“1. services rendered during the first year of coverage for or as a result of, any ailment, disease, or physical condition, the symptoms of which exhibit themselves before the Original Effective Date; ...”

This suit was filed on February 15, 1979, for hospital and medical bills totaling $20,-248.34. The plaintiffs also sought penalties and attorney’s fees for arbitrary and capricious failure to pay the claims. The trial court rendered judgment in favor of the plaintiffs under the group policy for $17,-333.34 plus 12% penalties and $5,000.00 in attorney’s fees. He also rendered judgment in favor of the plaintiffs under the individual policy in the sum of $17,797.34 plus 12% penalties and attorney’s fees for $5,000.00.

On appeal, Blue Cross claims the trial court erred (1) in refusing to allow the introduction and consideration of evidence of the existence of a condition which preexisted the effective date of the policies in question, (2) in holding that an application for insurance should have been attached to the group policy in order for Blue Cross to be permitted to assert the defense of preexisting condition, (3) in failing to find plaintiff was suffering from a pre-existing condition, and (4) in finding Blue Cross arbitrary and capricious.

ERRORS NOS. 1, 2 AND 3

Blue Cross claims that it should be allowed to raise the defense of pre-existing illness under the clear wording of the exclusionary provisions in both policies. Failure to attach the applications to the policies prohibits the introduction of the applications into evidence, and not the introduction of evidence relating to the pre-existing exclusion, the company asserts, citing La.R.S. 22:618 which prohibits the introduction of an application unless the application is attached to or otherwise made a part of the policy when issued.

The plaintiffs contend, however, that failure to attach the application precludes the insurance company from raising any defense dealing with pre-existing conditions. They cite Smith, supra; and Truelove v. Blue Cross of Louisiana, 356 So.2d 1113 (La.App. 2nd Cir. 1978), writ denied, 358 So.2d 644 (La.1978). At trial, the plaintiffs objected to the introduction of any evidence regarding Mr. Borer’s pre-existing condition, and the trial judge sustained the objections, although allowing the evidence to be introduced under a proffer for appellate purposes.

In the Smith case, supra, the insurance company issued a certificate of credit, accident and health insurance to the plaintiff but failed to attach a copy of the application to the certificate. Prominently printed across the face of the certificate was the clause “disability caused by pre-existing conditions is not covered.” The certificate also stated that it insured against “sickness or disease contracted and first manifesting itself after the effective date and prior to the expiration date” of the certificate. The trial judge admitted a copy of the application form into evidence and ruled against the plaintiff. The Supreme Court reversed, holding that the trial court erroneously admitted the application into evidence. “Thus all evidence concerning pre-existing conditions not disclosed in the application which may have resulted in [the insured’s] disability ... was improperly considered,” the court held. “Failure to disclose that evidence is not available to the insurer as a defense because a correct copy of the application for insurance was not ‘attached to or otherwise made a part of the policy.’ ” 306 So.2d at 754. Relying on two older cases interpreting the predecessor provisions of La.R.S. 22:618(A), the Supreme Court said the spirit of the current legislation requiring the application to be attached to the policy is not satisfied by any clause or provision in the base policy which is not delivered to the insured. See Fisette v. Mutual Life Ins. Co., 162 La. 620, 110 So. 880 (1926); and Whitmeyer v. Liberty Industrial Life Ins. Co., 166 La. 328, 117 So. 268 (1928). The court went on to say that, “it is unnecessary to consider whether [the insured] had a pre-existing condition prior to the effective date of the insurance which was responsible for his disability.”

Relying on Smith, the Second Circuit in Truelove, supra, held that evidence of a pre-existing condition is inadmissible when a correct copy of the insurance application is not attached to the policy, even though the insurer defends solely and exclusively on the basis of an exclusion as authorized by another provision of the insurance code. See La.R.S. 22:213(A)(13)(b). The Truelove court cited its previous decision in Henderson v. Minnesota Mutual Life Insurance Company, 347 So.2d 53 (La.App. 2nd Cir. 1977), writ denied, 351 So.2d 167 (La.1977) wherein it held that the “all-inclusive nature of the Smith decision also precludes consideration of whether or not plaintiff had a pre-existing condition, prior to the effective date of the insurance, which was responsible for his disability.” 347 So.2d at 55.

In the case at bar, Blue Cross claims that the Second Circuit in Truelove and Henderson went too far in relying on Smith for the propositions expounded in those cases. Blue Cross would limit the Smith decision to a holding that only the application is inadmissible when it is not attached to the policy.

Although La.R.S. 22:618(A) speaks only in terms of admissibility of the application which is not attached to the policy, the Smith decision makes a broader sweep. Under the ruling in Smith, “all evidence concerning pre-existing conditions not disclosed in the application” is inadmissible. Our brethren on the Second Circuit recognized the “all-inclusive nature” of Smith and we must agree with their interpretation. Failure to attach an application to a policy when issued precludes the insurance company from introducing any evidence concerning pre-existing condition even though the policy itself contains a pre-exist-ing condition exclusionary clause. Therefore, we find these specifications of error to be without merit.

ERROR NO. 4

Under La.R.S. 22:658, an insurer who fails to make payment within 60 days of proof of demand and whose failure to pay is found to be “arbitrary, capricious, or without probable cause” is subject to a penalty of 12% of the total amount of the loss plus reasonable attorney’s fees for prosecution and collection of the money. The trial court in this case found that the penalty and attorney’s fees provision should apply because the insurer herein is the same company as the insurer in the Truelove ease, and the company should have known that its position was untenable.

Blue Cross contends that it was not arbitrary and capricious in denying coverage because its claims personnel and staff nurses believed the applications had been attached to the policies. When a claim for benefits is submitted a staff of registered nurses reviews the medical information submitted with the claim and makes a decision as to coverage. The company asserts that when the Borer claim was submitted, two medical reports accompanying the claim clearly indicated that Mr. Borer had been suffering from pre-existing coronary artery disease with arrythmia and from a lingering gall bladder illness. The company says it was reasonable for a nurse and claims personnel to consider these conditions preexisting, thereby invoking the exclusionary provision of the policies. The company further claims that “it would be improper to hold claims personnel responsible for knowledge of whether or not an application for insurance was attached to a policy when delivered to an insured....” The head of Blue Cross’s claims division testified that his department is aware of Blue Cross’s standard procedure of attaching applications to the policies and that he and his staff should be able to depend upon those procedures being carried out.

Whether an insurance company’s claims personnel or nursing staff knows or believes that an application has or has not been attached to a policy does not control the issue of whether a company is arbitrary or capricious in denying benefits. If it is the policy of a company to attach applications to the contracts when issued, then claims personnel and nursing staffs would in almost all cases be justified in believing that the application had been attached. If such knowledge was the primary factor in determining whether attorney’s fees and penalties should be awarded, there would be few cases in which the penalty provision could be invoked.

The primary factor for determining whether penalties and attorney’s fees will be awarded is whether the application is in fact attached to the insurance policy — not whether claims personnel or nursing staffs believed that an application has been attached pursuant to a company’s administrative procedures. Blue Cross should have determined whether or not the applications were attached to the policies. Upon discovering that they were not attached, the company was bound to pay the benefits. This is so because Blue Cross was the insurance company involved in the Truelove case, supra, and Blue Cross was found liable in that case on the same issue which is before the court in this case. As indicated in the Truelove citation, supra, writs were denied by the Louisiana Supreme Court. Having litigated the issue in another circuit in a case in which writs were denied, Blue Cross was bound to pay the benefits due under the policies or to take the risk that the Truelove case would be followed by this circuit with the subsequent imposition of penalties and attorney’s fees. The company took the risk and lost. It was arbitrary and capricious in refusing to pay the amounts sought by the Borers, and the trial court’s award for penalties and attorney’s fees will be affirmed.

Therefore, for the above and foregoing reasons, the decision of the trial court is affirmed in all respects. Blue Cross will bear the costs of this appeal.

AFFIRMED.


author: COVINGTON, Judge. COVINGTON, Judge.

text:
    L. W. EATON CONSTRUCTION COMPANY, INC. v. STATE of Louisiana, Through the DIVISION OF ADMINISTRATION.
    No. 13799.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.
    On Rehearing April 13, 1981.

      Frank P. Simoneaux, Baton Rouge, Bert R. Oastler, Atlanta, Ga., for plaintiff-appel-lee, L.W. Eaton Const. Co., Inc.
    Joseph S. Cage, Jr., Monroe, for defendant-appellant State of Louisiana, through the Division of Administration.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   COVINGTON, Judge.

This is an appeal by the State of Louisiana, through the Division of Administration, from a judgment of the District Court homologating, confirming and making the judgment of the Court the award of the arbitrators in the matter of the arbitration of L.W. Eaton Construction Company, Inc. and the State of Louisiana, Case No. 71-10-0125-78, American Arbitration Association. The Court further entered judgment in favor of Eaton and against the State in the amount of $5,770,000.00 in accordance with the award, with legal interest; declared that the Louisiana State University School of Veterinary Medicine was “substantially complete” as of October 4, 1977; cast the State with all administrative fees and expenses and all costs of the proceedings; and denied the counterclaims or reconventional demands of the State. The judgment also denied the State’s motion to stay and overruled its plea of prematurity.

The instant appeal arises out of the proceeding instituted by Eaton to confirm the arbitration award pursuant to LSA-R.S. 9:4209. The State filed, in response, a pleading styled “Motion for Stay and, Alternatively for an Exception of Prematurity.” Thereafter, the State filed a pleading entitled “Notice of Motion to Vacate.” Only the State’s request for a stay order is presented for review on this appeal.

Since the appeal was taken, this Court, in the matter of “State of Louisiana, through the Office of the Governor, Division of Administration and the Facility Planning and Control Department versus L.W. Eaton Construction Company, Inc., et al.,” Numbers 13,284 and 13,835 on the docket of this Court, decided October 6, 1980, has affirmed the judgment of the District Court, which upheld the validity of the contract for the construction of the School of Veterinary Medicine on the Louisiana State University campus in Baton Rouge and refusing to grant the State injunctive relief against the arbitration proceedings instituted by L.W. Eaton Construction Company, Inc., after construction of the school was completed. In affirming the judgment, this court found that “there was no material departure in the contract from the plans and specifications upon which the bids were submitted. The minor change in the type of steel allowed to be used on the job resulted in no favoritism to one contractor over the other and did nothing to defeat the purpose of the law requiring contracts to be let upon bids submitted according to advertised specifications.”

In view of this finding that the contract was valid, no purpose would be served by granting the State’s motion to stay arbitration until a judicial determination of the existence of a valid contract could be made. We are unable to grant the requested relief to the State, since the question presented is now moot. A matter is considered moot in a case when the rendition of the judgment can have no practical legal effect upon the existing controversy. It is well established that courts will not rule on questions which become moot since the decree will render no useful purpose and give no practical relief. Cook v. Cook, 320 So.2d 612 (La.App. 4 Cir. 1975), writ denied, 323 So.2d 477 (La.1975). It is equally well-founded that moot questions will not be considered on appeal. State ex rel. Guste v. Louisiana Milk Commission, 297 So.2d 750 (La.App. 1 Cir. 1974). In view of this Court’s finding that the contract in question was valid, the issue of a stay order until determination of its validity is no longer viable. Since the matter before us has become moot, we must dismiss the appeal.

For the above and foregoing reasons, the appeal is dismissed. Costs of this appeal are assessed against the State in the amount of $105.91.

APPEAL DISMISSED.

ON REHEARING

COVINGTON, Judge.

In our original decision, we dismissed the appeal as moot, ruling that this Court in the matter entitled “State of Louisiana, through the Office of the Governor, Division of Administration and the Facility Planning and Central Department versus L.W. Eaton Construction Company, Inc., et al.” Numbers 13,284 and 13,835 on the docket of this Court, decided October 6, 1980, affirmed the judgment of the District Court upholding the validity of the contract for the construction of the School of Veterinary Medicine on the Louisiana State University campus in Baton Rouge, so that no good purpose would be served by granting the State’s motion for a stay of arbitration until a judicial determination of the existence of a valid contract could be made.

On February 11, 1981, we granted the application of the State for a rehearing on briefs previously filed. Since our granting of the rehearing, the Louisiana Supreme Court has denied writs to the State in its application from the decisions in Numbers 13,284 and 13,835. This action of the Supreme Court terminates the judicial attack upon the validity of the subject public works contract. Consequently, we reinstate our original opinion to the effect that: In view of this Court’s finding (confirmed by the Supreme Court’s denial of writs) that the contract in question was valid, the issue of a stay order until judicial determination of its validity is no longer viable.

Accordingly, since this matter before us is moot, we dismiss the State’s appeal. Costs of this appeal are assessed against the State in the amount of $252.98 .

APPEAL DISMISSED.

      . This matter was before this Court previously on Eaton’s Motion to Dismiss. The motion to dismiss was denied because the arbitration was not finally complete at that time, and it was then still possible for the State to obtain the relief it sought in the Court of Appeal.

      . In our original opinion, costs of $105.91 were cast. Obviously, that figure was incorrect; the new amount is correct.