author: SAMUEL, Judge. DUFRESNE, Judge,

text:
    GENERAL INVESTMENT, INC. v. Willie THOMAS, a/k/a Willis Thomas.
    No. 5-133.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 18, 1982.
    Rehearing Denied Dec. 17, 1982.
    John David Cassanova, Metairie, for plaintiff-appellee.
    Patrick D. Breeden, New Orleans, for defendant-appellant.
    Before SAMUEL, CURRAULT and DU-FRESNE, JJ.
   SAMUEL, Judge.

The facts involved in this appeal are not in dispute.

General Investment foreclosed by execu-tory process on a chattel mortgage covering defendant’s automobile. Following extensive court proceedings, there was judgment in favor of plaintiff in the sum of $838, with legal interest and 25% attorney’s fees, and judgment (for illegal seizure) in favor of the defendant, Thomas, in the amount of $300, with legal interest and a $2,412.50 attorney’s fee. Subsequent to the seizure involved, Thomas was convicted of a felony and sentenced to the state penitentiary, where he is now incarcerated.

Counsel for Thomas then filed a rule to show cause why the plaintiff should not be required to pay defendant the full amount of the judgment in his favor. On the hearing of that rule plaintiff contended it was entitled to compensation under the appropriate civil code articles.

After the hearing, there was judgment allowing plaintiff to compensate for the judgment in its favor prior to paying the judgment in favor of Thomas. As we understand this judgment on the rule, it permits plaintiff to deduct its full judgment, including the attorney fee award, from the full judgment for which it was cast, also including that attorney fee award, and satisfy the latter by paying the defendant the difference between the two.

Both Thomas and his attorney have appealed. In this court they contend the trial court erred in not holding R.S. 9:5001 provided the attorney for Thomas a first lien and privilege on the attorney’s fee awarded Thomas. The matter of the attorney’s fee awarded Thomas is the only issue presented by this appeal.

The pertinent codal articles on compensation read:

“When two persons are indebted to each other, there takes place between them a compensation that extinguishes both the debts, in the manner and cases hereafter expressed.” LSA-C.C. Art. 2207.
“Compensation takes place of course by the mere operation of law, even unknown to the debtors; the two debts are reciprocally extinguished, as soon as they exist simultaneously, to the amount of their respective sums.” LSA-C.C. Art. 2208.
“Compensation takes place only between two debts, having equally for their object a sum of money, or a certain quantity of consumable things of one and the same kind, and which are equally liquidated and demandable.
The days of grace are no obstacle to the compensation.” LSA-C.C. Art. 2209.

In our view, the issue raised relative to attorney’s lien and privilege is not material. What is material is the answer to this question: Does the award for the attorney’s fee belong to the defendant litigant or to his attorney?

If it belongs to the defendant, compensation takes place to the full amount of both the defendant’s award based on illegal seizure and the attorney’s fee resulting from that seizure because, quite clearly, the litigants are “indebted to each other” as expressed in C.C. Art. 2207. If, on the other hand, the attorney’s fee award belongs to the attorney and not to his defendant client, compensation is not available insofar as that award is concerned because plaintiff and defendant’s attorney are not “indebted to each other” as expressed in C.C. Art. 2207; plaintiff is indebted to defendant’s attorney, but plaintiff’s attorney is not indebted to plaintiff.

Our jurisprudence establishes that the attorney’s fee award belongs to the attorney and not to his client. The lead case is Foundation Finance Co. v. Robbins, 179 La. 259, 153 So. 833. The Court of Appeal had held attorney’s fees in a note belonging to the client-noteholder and not to his attorney. The Supreme Court reversed, saying at page 836 of the Southern citation:

“.... The only sense in which it can be said that the attorney’s fee stipulated in a promissory note belongs to the owner of the note is that the owner of the note may sue for and recover the fee in his own name when he sues on the note. But that is only one of the many instances where a plaintiff may, nominally, maintain an action for the benefit of another party.”

The Fourth Circuit used the above quotation in Jefferson Bank and Trust Company v. Post, La.App., 312 So.2d 907, as authority for the proposition that “once the note is placed in the hands of attorneys for collection, the attorney’s fee stipulated for belongs to the attorney so employed.” The rationale of both cases is that the ethics of the profession prohibit the sharing of an attorney’s fee between attorneys and non-attorneys. The Post case was cited with approval by the Fourth Circuit in Ethridge v. Merchants Trust and Sav. Bank, La.App., 389 So.2d 865.

In Police Jury of Tangipahoa Parish v. Begnaud, 200 La. 1020, 9 So.2d 399, the Supreme Court cited the Robbins case as authority for the proposition that the holder of a note containing a stipulation for attorney’s fees “has the right” to collect the entire amount, including attorney’s fees, but he must pay the fee to the attorney employed to collect the debt.

In Daspit v. Sinclair Refining Co., 198 La. 9, 3 So.2d 259, a former attorney for the Collector of Revenue was granted an injunction to prohibit Sinclair Refining Company from paying ten percent statutory attorney’s fees to the Collector of Revenue. The court reasoned that if the money was paid to the Collector, it would be deposited by him into the state’s general fund, and the plaintiff attorney could not have collected the fee without an act of the legislature to authorize his suit. Citing the Robbins case, the court stated that when a party collects on an obligation to pay a stipulated fee, such as an attorney’s fee, “the plaintiff owes the fee to the attorney or attorneys who obtained the judgment. The plaintiff in such a case has no right to retain the attorney’s fee for himself unless perhaps he is licensed to practice law.” In this case, a change of administration in Baton Rouge caused plaintiff to lose his job as attorney for the Collector before the judgment containing attorney’s fees became final. The Supreme Court allowed him to sue to restrain payment of the fee to the state. The court also allowed another attorney who was co-counsel with the plaintiff to attempt to collect an interest in the ten percent fee. Therefore, the Daspit case gives an attorney a right of action to sue for his attorney’s fee, at least after the proceeding has been reduced to judgment.

Another case extensively discussing an attorney’s right to sue in his own name for attorney’s fees stipulated in a promissory note is American Gen. Inv. Corp. v. St. Elmo Lands, La.App., 391 So.2d 570, in which the Fourth Circuit approved the Robbins case and the Post case, but refused to allow a discharged law firm to intervene and assert a separate right of action for attorney’s fees where the plaintiff and the defendant settled the case prior to the sale of the mortgaged property. The court in this case did not mention the Daspit case and did not emphasize the stipulation for attorney’s fees in the promissory notes. One of the notes in question was sought to be enforced by executory process and the other by ordinary process. The St. Elmo court expressly refrained from deciding the firm’s right to compensation from the plaintiff (its client), and it is clear the court was primarily interested in the law firm’s duty to withdraw from the case once the plaintiff dismissed the firm.

St. Elmo is not clear authority one way or the other on the attorney’s right to sue in his own behalf to collect attorney’s fees because: (1) The court did not want the attorney’s suit to interfere with the settlement between the parties; and (2) the parties escrowed a sufficient amount of funds to cover the law firm’s fees. However, while the law is somewhat confusing with regard to an attorney’s right to sue in his own name for a contractual or statutory attorney’s fees, Robbins, Begnaud, Post, Ethridge and Daspit all make clear that once a claim is placed in the hands of an attorney and the attorney obtains a judgment in favor of his client, the attorney’s fees stated in the judgment belong to the attorney whether sued for procedurally by his client or by him.

Thus, as here, when a plaintiff obtains a judgment against a defendant, and the defendant is successful on his reconven-tional demand against the plaintiff for damages and for attorney’s fees, it appears clear that compensation does not take place between the plaintiff and the defendant as to that part of the judgment awarding the defendant attorney’s fees. While in the instant case the defendant was a proper party procedurally to sue for the attorney’s fee, the cases listed above clearly establish that such attorney’s fees belong to the attorney. Therefore, the judgment in favor of defendant cannot be extinguished by compensation to the extent of any sums awarded as attorney’s fees.

Finally, plaintiff-appellee suggests a resolution of this proceeding may not be possible because under the provisions of Civil Code Article 2148 the defendant, now incarcerated in the state penitentiary, may be without capacity to effectuate a satisfaction of judgment. Civil Code Article 2148 reads:

“But if the incapacity to receive the payment arose from the privation of civil rights by the effect of a sentence, then the payment is not good, although the payment were applied to the utility of the creditor.” LSA-C.C. Art. 2148.

We believe the complete answers to this argument are: (1) Article 2148 refers only to an incapacity to receive payment which arises from “the privation of civil rights by the effect of a sentence”, and the record is devoid of any evidence showing or tending to show that the sentence which sent Thomas to the penitentiary in any way deprived him of his capacity to receive payment of a judgment in his favor; and (2) we order payment to the attorney, and not to his client.

It should be noted that defendant’s present attorney has represented defendant in this matter from its inception.

For the reasons assigned, that part of the judgment appealed from which is concerned with codal compensation is reversed and it is now ordered that there be judgment in favor of defendant’s attorney, Patrick D. Breeden, and against the plaintiff, General Investment, Inc., in the full sum of $2,412.50, together with legal interest thereon from date of judicial demand until paid.

REVERSED.

DUFRESNE, J., concurs.

DUFRESNE, Judge,

concurring.

I respectfully concur.

      . In the 24th Judicial District Court and in the Fourth Circuit (311 So.2d 95 and 400 So.2d 1081).

      . Arrived at on the basis of a stipulated hourly rate and hours worked.

      .In the District Court.

      . “A special privilege is hereby granted to attorneys at law for the amount of their professional fees on all judgments obtained by then, and on the property recovered thereby, either as plaintiff or defendant, to take rank as a first privilege thereon.”


source: Caselaw Access Project

author: GULOTTA, Judge. PER CURIAM:

license: Public Domain

text:
    Rudolph F. TADDONIO, Jr. v. Sherdeane KINNEY-TADDONIO.
    No. 13274.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 2, 1982.
    Rehearings Denied Dec. 21, 1982.

      Anthony L. Glorioso, New Orleans, for Rudolph F. Taddonio.
    Robert C. Lowe, Sessions, Fishman, Ro-senson, Boisfontaine & Nathan, Terence L. Hauver, New Orleans, for Sherdeane Kinney-Taddonio.
    Before REDMANN, GULOTTA and SCHOTT, JJ.
   GULOTTA, Judge.

The issue in this appeal is whether a suit for divorce based on a continuous one year voluntary separation (LSA-R.S. 9:301) may be commenced where an appeal has been taken (is pending and not lodged) from a judgment of separation and a finding of mutual fault.

Relying on LSA-R.S. 9:302, which provides in pertinent part:

Judgment of divorce after judgment of separation; alimony; custody and care of children
Where there has been no reconciliation between the spouses for a period of one year or more from the date the judgment of separation from bed and board was signed, either spouse may obtain a judgment of divorce.
If an appeal is taken a suit for divorce may not be commenced until the day after the date upon which the judgment becomes definitive as provided by Article 1842 of the Louisiana Code of Civil Procedure or until the expiration of the time stated in the preceding paragraph, whichever is later....,

the defendant wife, appealing, claims the trial judge erred in failing to stay plaintiff’s petition for divorce until such time that a final judgment has been rendered in the separation suit and on the question of mutual fault.

Although the judgment of separation was not included in the designation of the record in this appeal, the divorce judgment orders the payment of “alimony pendente lite and child support pendente lite” be continued “until such time as a final determination has been made on the issue of fault”.

The plaintiff husband, also appealing, claims the trial judge erred in awarding alimony pendente lite after the judgment of divorce became final.

STATUTORY CONSTRUCTION

In seeking a stay of the plaintiff husband’s suit for divorce, the defendant wife contends the pertinent language in LSA-R.S. 9:302 applies to a divorce sought either under LSA-R.S. 9:301, or LSA-R.S. 9:302. The broad statutory construction the defendant seeks would bar the commencement of any suit for divorce even where the parties have been voluntarily living apart for a period of one year (LSA-R.S. 9:301) or where no reconciliation has been affected for a period of one year subsequent to the judgment of separation (LSA-R.S. 9:302).

We find no merit to defendant’s interpretation of the statute. The language relied upon in paragraph two of the statute does not prohibit the commencement of any suit for divorce. The pertinent language in this second paragraph prescribes a time before which a suit for divorce under LSA-R.S. 9:302 may not be commenced. This paragraph refers to an instance where a judgment of separation has been granted, and a spouse seeks a divorce based on no reconciliation for a period of one year or more from the date of the judgment of separation. Accordingly, we conclude the pending appeal of the judgment of separation and the question of mutual fault is not a bar to a separate suit for divorce when the requirements for a divorce under LSA-R.S. 9:301 have been met. We hold, therefore, the trial judge properly denied the defendant wife’s motion to stay the divorce proceedings and properly granted the judgment of divorce.

ENTITLEMENT TO ALIMONY PENDENTE LITE

The more perplexing problem is that part of the trial court’s judgment (after the granting of the divorce) which continues alimony pendente lite in effect until a final determination has been made on the issue of fault.

Well settled is the rule that any judgment awarding alimony or child support obtained incident to a suit for separation ceases to have effect following a final judgment of divorce. See Lewis v. Lewis, 404 So.2d 1230 (La.1981); Graham v. Metzler, 402 So.2d 768 (La.App. 4th Cir.1981); Kennedy v. Kennedy, 261 So.2d 657 (La.App. 4th Cir.1972). Any order continuing in effect penente lite alimony subsequent to the finality of a divorce judgment runs contrary to established jurisprudence. However, under the peculiar circumstances in the instant case, pending the final determination of mutual fault question, the wife is entitled to alimony, albeit it not LSA-C.C. Art. 148 alimony.

Confronted with the question of entitlement to after-divorce alimony pending determination of the mutual fault question, and confronted further with a designation of record that does not include testimony relating to the needs of the wife and ability to pay of the husband, we are compelled to remand this matter to the trial court for the purpose of setting after-divorce alimony (LSA-C.C. Art. 160) pending final determination of the fault question.

Consistent with the foregoing, the judgment of the trial court granting the divorce is affirmed. That part of the judgment awarding alimony pendente lite after divorce is reversed and set aside. The matter is remanded to the trial court for the purpose of setting after-divorce alimony under LSA-C.C. Art. 160 pending a final determination of the fault question. The assessment of costs to await the final determination of fault.

AFFIRMED IN PART.

REVERSED IN PART AND REMANDED.

ON REHEARING

PER CURIAM:

In application for rehearing, the defendant wife correctly points out a misstatement of law in our original opinion that “any judgment awarding alimony or child support obtained incident to a suit for separation ceases to have effect following a final judgment of divorce”. The properly stated rule of Lewis v. Lewis, 404 So.2d 1230 (La.1981) is that, although an award of alimony pendente lite ceases to have effect after divorce, the parental obligation of child support does not terminate with the dissolution of the marriage.

Accordingly, we recast our decree as follows:

Consistent with the foregoing, the judgment of the trial court granting the divorce is affirmed. That part of the judgment awarding alimony pendente lite after divorce is reversed and set aside. That part of the judgment relating to child support remains in effect. The matter is remanded to the trial court for the purpose of setting after-divorce alimony under LSA-C.C. Art. 160, pending a final determination of the fault question. The assessment of costs to await final determination of fault.


author: GULOTTA, Judge.

text:
    Delores TRASK, Individually and on Behalf of Her Minor Daughter, Nadine LeBLANC v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 13206.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 2, 1982.
    Rehearing Denied Dec. 21, 1982.

      James Maher, III, New Orleans Public Service, Inc., New Orleans, for defendant.
    Law Office of Bendana & Carlton, Orlando G. Bendana, Wayne H. Carlton, Jr., New Orleans, for plaintiffs.
    Before REDMANN, GULOTTA and SCHOTT, JJ.
   GULOTTA, Judge.

Defendant appeals from a judgment in the sum of $2,311.00 for a foot injury sustained by Nadine LeBlanc when she fell from a NOPSI bus. Liability only is at issue.

On October 29, 1979, the then thirteen-year-old Nadine fell while alighting through the rear door of the bus. Plaintiff’s version of the accident, as related by Nadine and a school friend, was that Nadine slipped and fell on a “Dorito” bag on the last step of the bus after which the vehicle ran over Nadine’s foot while she was on the ground.

NOPSI contends, in this appeal, that plaintiff failed to establish the bus operator either knew or should have known the Dori-to bag was on the step; that Nadine was contributorily negligent for failing to see the bag; and that inconsistencies between Nadine’s deposition, statements to the investigating officer and her testimony, as well as the eyewitness’ prior contradictory statements, cast doubt on the credibility of Nadine’s version of the accident.

The trial judge concluded in written reasons that defendant had failed to overcome the presumption of negligence because of a failure to inspect the condition of the bus “when he ‘began his run from the barn’.” He apparently concluded also that Nadine had slipped on the Dorito bag while leaving the bus.

At the outset, despite the evidentiary inconsistencies, we cannot say the trial judge erred in accepting the credibility of plaintiff’s version of the accident. Apparently the trial judge placed little or no significance on the complained of discrepancies and we do not disturb his conclusions.

The more serious question is whether the bus operator failed to make the proper inspection and should have known the Dorito bag was on the rear step. Also of serious concern is the question of Nadine’s contributory negligence.

Regarding the bus driver’s duty, the rule is well settled that a public carrier is required to use the highest degree of care, and the mere showing of injury to a fare paying passenger establishes a prima facie case of negligence imposing the burden on the carrier of overcoming the presumption of negligence. However, a bus driver is not required to make a continuous inspection of every part of the vehicle, and cannot be charged with the violation of his duty where a reasonable inspection has been made and the foreign object was on the last step of the rear exit of the bus. See Hurst v. New Orleans Public Service, Inc., 235 So.2d 103 (La.App. 4th Cir.1970).

Applying these rules to the facts of our case, we conclude the driver did not violate his high standard of care by his failure to see the Dorito bag. His uncon-tradicted testimony was that before leaving the barn on the day of the accident at 3:07 p.m. he had cheeked the bus for debris before commencing his first run. Nadine and her friend boarded the bus within a half-hour after having been let out of school at 3:15 p.m. The bus driver stated he had started his second trip on the day of the accident at 4:23 p.m. Clearly then, the accident occurred during the first trip after the driver had made the inspection before leaving the barn. Under these circumstances, the driver met the inspection requirements in Hurst, supra. We find no violation, therefore, of the driver’s duty to inspect.

However, even if the driver had violated the duty of inspection, Nadine’s contributory negligence is apparent because of her failure to see the Dorito bag on the step. In this connection, her friend, who had preceded Nadine from the bus, testified that she had no problem in seeing the “yellow and red” bag. We conclude, therefore, that plaintiff’s entitlement to recovery does not result from Nadine’s actions or those of the bus driver before Nadine left the bus.

Although we find no breach of the driver’s duty to inspect the bus for debris in this case, the evidence does support a finding of liability based on his failure to see plaintiff after her fall.

Nadine testified that the wheel of the bus “ran over” her foot after she slipped. Her statement in this regard was corroborated by her companion’s testimony that the bus moved back and rolled over Nadine’s foot after they alighted. Plaintiff’s treating physician was of the opinion that, even though plaintiff suffered no broken bones, her moderate to moderately severe soft tissue injury was consistent with the mechanism of a rubber tire having struck her foot. This witness testified that the tire “could have gone against her foot rather than over it.”

Public carriers, while not insurers of their passengers, are required to exercise the highest degree of care to transport the passengers safely to destination. Matte v. Continental Trailways, Inc., 278 So.2d 60 (La.1973); Schenker v. Randle, 209 So.2d 327 (La.App. 4th Cir.1968). In light of the evidence we are led to conclude that the bus driver violated his high duty of care by failing to observe Nadine through the side-view mirror, after she had fallen from the bus and was on the ground in a position of danger from the moving bus.

Having so concluded we affirm the judgment of the trial court.

AFFIRMED.

      .According to defendant, Nadine stated in deposition that she was the first person to exit, but testified at the trial that her two friends had preceded her off the bus. Defendant points out also that plaintiff’s eyewitness friend testified that the rear wheel of the bus rolled backward over Nadine’s foot, contradicting her earlier statement. Defendant also points out that plaintiffs version of slipping on the step conflicts with the investigating police officer’s testimony that the witness and Nadine both had told him that Nadine had slipped on the curb.

      . See Skidmore v. New Orleans Public Service, Inc., 311 So.2d 511 (La.App. 4th Cir.1975; Wise v. Prescott, 244 La. 157, 151 So.2d 356 (1963).

      . See Galland v. New Orleans, Public Service, Inc., 377 So.2d 84 (La.1979).

      . The bus driver was unaware of the accident and injury until a supervisor stopped and noti-fled him several blocks from the scene.


author: GARRISON, Judge.

text:
    Henry LANDRY, Sr. v. AETNA INSURANCE COMPANY, et al. (Consolidated with No. 12594, Lonnie Landry v. Aetna Insurance Company, et al.).
    No. 12593.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 2, 1982.
    Rehearing Denied Dec. 21, 1982.

      Wayne C. Giordano, Belle Chasse, for plaintiff s-appellants.
    Herman L. Bastían, Jr. and Bernette Johnson, Deputy City Attys., Salvador An-zelmo, City Atty., New Orleans, for defendant-appellee.
    Hulse, Nelson & Wanek, Michael E. Wan-ek, New Orleans, for defendant-appellee, Lonnie Landry.
    Lemle, Kelleher, Kohlmeyer & Matthews, Paul B. Deal, New Orleans, for defendants-appellees, The Asplundh Companies and Aetna Cas. and Sur. Co.
    Before SAMUEL, GARRISON and WILLIAMS, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court granted in favor of a guest passenger and dismissing all other claims. From that judgment the guest passenger appeals, arguing that the damages awarded are inadequate. The driver of the vehicle in which the guest passenger was riding also appeals.

On March 9, 1977 Lonnie Landry, the driver of the vehicle, and his father-guest passenger, Henry Landry, Sr., were involved in an accident when a truck driven by Ernest Williams “ran” a stop sign. Ernest Williams was driving a truck owned by his employer, Asplundh Tree Services, and was acting within the course and scope of his employment. The stop sign at issue had been removed.

At trial all testimony agrees that Lonnie Landry’s vehicle was on the right of way street and was traveling at a low rate of speed, 15 to 20 miles per hour, when his car collided with the defendant’s truck which was traveling at the excessive rate of 30 to 35 miles per hour. Williams was traveling on the secondary street and should have stopped; however, the stop sign had been removed.

The trial court found that Landry was contributorily negligent. We agree. Although the Landry vehicle had the right of way, in light of the absence of the stop sign, the driver was nonetheless charged with the burden of exercising due vigilance and reasonable care. In Simmons v. Baumgartner, 393 So.2d 904 (La.App. 4th Cir.1981) this court stated:

“One who is in charge of operating an automobile has a duty to look and observe, which never ceases; that which they can see, they must see and in legal contemplation they do see. Failure to see what they could have seen by the exercise of due diligence does not absolve from liability. McCandless v. Southern Bell Telephone & Tel. Co., 239 La. 983, 120 So.2d 501 (1960); Smith v. Borchers, 243 La. 746, 146 So.2d 793 (La.1962). Even when the motorist has the right of way, she is not relieved of the necessity of looking into the direction from which others may be expected to come, and where such care would have prevented the accident, she who fails to look or to keep a proper lookout cannot recover, even though the other party was grossly at fault. Martin v. Adams, 88 So.2d 476 (La.App. 2nd Cir.1956); Smith v. Borchers, supra.” (at 906)

Accordingly, we cannot conclude that the trial court was manifestly erroneous in its factual determinations on this point nor did it commit an error of law.

Turning to the other parties, the City of New Orleans was sued by almost all parties. Under the law, as then effective, the City is liable if there is (1) actual notice of the defect and (2) a reasonable time in which to remedy the defect. The City’s only argument was that they logged the defect the day after the accident and replaced the stop sign the next day. Jack Anschuntz alleged in his testimony that he had notified the City that the stop sign was down three days before the accident. ■ We note, however, that great weight is given to the credibility assessments of the trial judge, who is in the better position to assess credibility because he is able to observe the demeanor of the witness. As the trial judge has apparently made a credibility determination against Anschultz’s testimony, this court is bound by the manifest error rule. We cannot conclude that manifest error occurred in this instance.

Turning to the last issue, Henry Landry argues that the lump sum amount of $10,-000.00 awarded to him is so low as to constitute a clear abuse of discretion.

Henry Landry’s special damages are as follows:

Dr. Schiro’s bill $ 531.88
Tulane Medical Center 40.00
Jo Ellen Smith Hospital 113.45
South. Jefferson Hospital 1,840.50
Drugs 173.83
Total Medicals $2,649.66 Lost Wages 2,600.00
TOTAL $5,249.66

Accordingly, the amount of $4,750.34 must have been for pain and suffering. Henry Landry was under a doctor’s care for 88 visits from March of 1977 through April 17,1978. He suffered scalp avulsion (a hole the size of a nickel in his scalp), cervical strain, numbness of the left hand and multiple contusions. He wore a cervical collar for three months, was prescribed physical therapy, muscle relaxants and analgesics. He suffered some straightening of the forward curvature of the spine and narrowing of the intervertebral foramin on the left side between 3 cervical discs and on the right side between 5 cervical discs as a result of the accident. At the time of trial he still suffered residual pain, but he refused to have a myelogram performed.

We find that the amount of $4,750.34 for a patient under treatment for one year and one month who still suffers pain and who wore a cervical collar for three months is so low as to constitute a clear abuse of discretion. Reck v. Stevens, 373 So.2d 498 (La.1979). In the absence of proof of a permanent disability, we find that the sum of fifteen thousand dollars is adequate compensation to this particular plaintiff under these particular circumstances.

For the reasons discussed the judgment of the district court is amended as follows and, as amended, is affirmed:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of the plaintiff, Henry Landry, Sr., and against the defendants, Ernest Williams, Asplundh Tree Service Company, Aetna Insurance Company, subject to policy limits, Asplundh Brush Control Company, Asplundh Tree Expert Company, Lonnie Landry and Automobile Club Insurance Company, subject to policy limits, in solido, in the full sum of $20,249.66, together with legal interest thereon from date of judicial demand, until paid, and for all costs of these proceedings.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that plaintiffs suit against the City of New Orleans herein, be and the same is hereby dismissed at his costs.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the subro-gation claim of Automobile Club Insurance Company be and the same is hereby dismissed.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that case No. 12594, entitled Lonnie Landry v. Aetna Insurance Company, et al., 422 So.2d 1290 (La.App.) be and the same is hereby dismissed at plaintiffs costs.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the third-party demands of the City of New Orleans be and hereby are dismissed.

AMENDED AND AFFIRMED.

      . Henry Landry also incurred the transportation expense for 88 visits to the doctor. However, no evidence of the cost per trip was produced and plaintiff shared the trips with Lonnie Landry for 84 of the 88 trips.


text:
    Lonnie LANDRY v. AETNA INSURANCE COMPANY, et al. (Consolidated with No. 12593, Henry Landry, Sr. v. Aetna Insurance Company, et al).
    No. 12594.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 2, 1982.
    Rehearings Denied Dec. 21, 1982.
    Wayne C. Giordano, Belle Chasse, for plaintiffs-appellants.
    Herman L. Bastían, Jr. and Bernette Johnson, Deputy City Attys., Salvador An-zelmo, City Atty., New Orleans, for defendant-appellee.
    Hulse, Nelson & Wanek, Michael E. Wan-ek, New Orleans, for defendant-appellee, Lonnie Landry.
    Lemle, Kelleher, Kohlmeyer & Matthews, Paul B. Deal, New Orleans, for defendants-appellees, The Asplundh Companies and the Aetna Cas. and Sur. Co.
    Before SAMUEL, GARRISON and WILLIAMS, JJ.
   GARRISON, Judge.

For the reasons assigned in No. 12593, Henry Landry, Sr. v. Aetna Insurance Company, et al., 422 So.2d 1287 (La.App.) the judgment of the district court is amended and affirmed.

AMENDED AND AFFIRMED.

SAMUEL, J., was of the opinion that rehearing should be granted.


author: WILLIAMS, Judge. BARRY, Judge, PER CURIAM.

text:
    Jo Ann Womack STAHEL v. Stanley G. BROWN, Registrar, Office of Vital Records, State of Louisiana.
    No. 13241.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 2, 1982.
    Rehearing Denied Dec. 21, 1982.
    Amendment to Judgment Jan. 20, 1983.
    Paul M. Hebert, Jr., Breazeale, Sachse & Wilson, Baton Rouge, for plaintiff-appellant.
    Jane C. Scheuermann, Louisiana Dept, of Health and Human Resources, New Orleans, for defendant-appellee.
    Before BARRY, LOBRANO and WILLIAMS, JJ.
   WILLIAMS, Judge.

Plaintiff Jo Ann Womack Stahel is appealing from a decision by the trial court refusing to allow her to view her birth certificate or to appoint a curator ad hoc to view the certificate for her.

Plaintiff Stahel was born on February 28, 1939 and was adopted in New Orleans on September 17,1941. She has instituted this action to learn the identity of her natural parents. She filed a mandamus proceeding against defendant seeking a court order to' produce the sealed birth certificate. After a trial on the merits, the district court found no compelling reason for the sealed records to be opened. It is from this judgment that plaintiff is now appealing.

The plaintiff claims there are five compelling reasons why she should be allowed to view her birth certificate: (1) she has been unable to obtain a passport, because Texas authorities will not recognize her certificate of adoption; (2) she has a pre-ulcer condition and an allergy to the sun and would like to know her family’s medical history; (3) she was told by her adopted mother that her natural family was a family “of means,” and she wants to know if she has any inheritance rights from them; (4) she would like to be able to help any natural brothers and sisters that she might have; and (5) her children will be attending school in Louisiana, and she is concerned because there is a possibility that they might marry first cousins without knowing it. Alternatively, the plaintiff is seeking to have a curator ad hoc appointed to view the sealed records to determine if any of these reasons are compelling.

La.R.S. 40:79 was adopted in 1979. It states in pertinent part:

(A) Whenever a final decree of adoption shall be entered, the Clerk of Court shall forward, on a form supplied by the Department of Health and Human Resources, a certificate of the decree to the State Registrar who shall make a new certificate of live birth of the person adopted in the new name, if the name has been changed in the decree. If the child is adopted by a single person and the name of the child is changed, the word ‘adopted’ shall be written on the new birth certificate. The State Registrar shall seal and file the original certificate of birth with the certificate of the decree. This sealed package may be opened only on order of a competent court whether upon its own motion, or upon the demand of the adopted person, or if deceased, by his or her descendants, or the adoptive parent, or the State Registrar for compelling reasons and only to the extent necessary to satisfy such compelling necessity. In satisfying the requirement that information shall be the revealed only to the extent necessary to satisfy the compelling necessity shown, the court is authorized to use the services of a curator ad hoc appointed pursuant to Article 509.12 of the Louisiana Code of Civil Procedure.

We find that it is clear that on the basis of her passport difficulties, her medical history, her possible contact with siblings, and worries about her children marrying first cousins, the plaintiff has failed to prove the necessity for the opening of the sealed records, or for the appointment of a curator ad hoc. After reviewing the transcript of the trial, we are unable to disagree with the trial court’s decision that these four reasons are not compelling. Plaintiff presented no evidence other than her testimony, which was minimal at best. We find no abuse of the trial court’s discretion. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The plaintiff argues that a curator ad hoc should be appointed to view her records to determine the possibility of inheritance rights. In Prentice v. Parker, 376 So.2d 568 (La.App. 4th Cir.), this court held, that in view of the right of an adopted person to inherit from his or her natural parents and other relatives, the determination of inheritance may be a compelling reason for the opening of the sealed records. To do so, however, the court must first establish that a plaintiff does have a claim to an estate and in order to do so, the court must examine the records. See Kirsch v. Parker, 383 So.2d 384 (La.1980). The trial court, therefore, should have appointed a curator ad hoc to view the sealed records for the limited purpose of determining whether plaintiff has any inheritance rights.

One of the primary purposes of La.R.S. 40:79 is to protect the privacy of natural parent(s). Kirsch v. Parker, supra. Allowing a mere “barebone” allegation of the possibility of inheritance rights to be the basis of opening a sealed record, however, appears to us to defeat this purpose. Nevertheless, we are compelled to follow the dictates of the Louisiana Supreme Court until that court or the legislature provides different guidelines for resolving this apparent conflict of policy considerations: the inheritance rights of adopted persons and the expectations of privacy of those people who gave up their children for adoption.

For the foregoing reasons, the decision of the trial court is affirmed in part, reversed and remanded in part, allowing the appointment of a curator ad hoc to view the sealed records for the limited purpose of determining whether plaintiff has any inheritance rights from her natural relatives. Defendant-appellee is to pay all costs of this appeal.

AFFIRMED IN PART.

REVERSED AND REMANDED IN PART.

BARRY, J., concurs.

BARRY, Judge,

concurring.

I feel the mere expectation or hope of inheritance (which we all have) is insufficient to constitute a “compelling reason” to violate this sealed adoption record.

Massey v. Parker, 369 So.2d 1310 (La.1979), based on the unsupported allegation of possible inheritance, created the opening for intrusion into the heretofore sanctity of adoption proceedings. See Prentice v. Parker, 376 So.2d 568 (La.App. 4th Cir.1979).

As noted by the majority here, we are compelled to follow Massey.

AMENDMENT TO JUDGMENT

PER CURIAM.

La.R.S. 40:31 exempts the appellee from payment of court costs. Accordingly, we amend our previous decree and order each party to bear its own costs until the final disposition of this matter.


author: AUGUSTINE, Judge.

text:
    Talib ALEEM v. AABCO CONTRACTORS, INC.; Joseph Jackson: Louisiana State University Medical Center, a Division of the State of Louisiana; Employers Insurance of Wausau: Western World Insurance Company; and Leonard Pigott.
    No. 13233.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 5, 1982.

      Robert W. Drouant, Heisler & Wysocki, New Orleans, for plaintiff-appellant.
    Richard S. Vale, Metairie, for defendants-appellees AABCO Contractors, Inc., Employers Ins. of Wausau and Leonard Pigott.
    Peter T. Dazzio, William E. Scott, Watson, Blanche, Wilson & Posner, Baton Rouge, for defendants-appellees Bd. of Sup’rs of Louisiana State University and Agr. and Mechanical College.
    Before GULOTTA, KLEES and AUGUSTINE, JJ.
   AUGUSTINE, Judge.

Talib Aleem prosecutes this suit under the Louisiana Workmen’s Compensation statute and under general tort law as a result of injuries which he suffered during the course of his employment on April 11, 1980. Aleem named several defendants as his employer: Louisiana State University Medical Center, AABCO Contractors, Inc., Leonard Pigott, and Joseph Jackson. The trial court dismissed the tort claim on defendant’s plea of prescription. Following trial on the merits of the plaintiff’s workmen’s compensation suit, the trial court found that Aleem’s sole employer at the time of injury was Joseph Jackson. Accordingly, the court dismissed the suit as to all other defendants. Talib Aleem now brings this appeal.

LIABILITY

This controversy has its distant origin in the decision of Louisiana State University to expand its medical school facilities, a project which required the demolition of many structures upon the university’s properties near New Orleans’ downtown area. To this end, LSU awarded a demolition contract to AABCO, a sole proprietorship owned by defendant Leonard Pigott. By the terms of that contract, the properties were to be delivered to the complete possession and control of AABCO on April 11, 1980. The agreement also provided, among other things, that AABCO was to assume all responsibility for injuries to third persons on the premises. It was further understood that AABCO would acquire ownership of whatever salvageable material there might remain after demolition.

On the day work was scheduled to begin, Leonard Pigott arrived at the site to find that Rev. Joseph Jackson, a sometime business associate, had already occupied certain premises delivered to AABCO by the contract with LSU. Rev. Jackson’s regular trade was salvage, and within the previous three weeks, he had been scavenging bricks and timber from the many demolished houses in the area. Jackson himself performed little of the physical work. That task was divided among Jackson’s handful of casual laboreres, hired for the occasion from street corners and other places where the neighborhood’s unemployed would gather. Among them was Talib Aleem, whom Jackson had hired only a few hours before on the corner of Cleveland and Derbigny, not far from the demolition site. The loose arrangement between Jackson and Aleem provided for pay at five dollars per hour, payable in cash that afternoon. Although Aleem had previously found work with other salvagers in the area, this was the first occasion for his employment by Jackson.

While Jackson’s men went about their work on one side of the street, AABCO proceeded to demolish an old residence on the other. AABCO’s crew that day consisted of Pigott himself and Edward Resendez, the bulldozer operator. After Resendez le-velled the house and loaded its remains into AABCO’s dump truck, Pigott drove the truck to the city land fill site and there deposited the debris.

While Pigott was away on that errand, Jackson approached Resendez and requested his assistance in loading the materials which Jackson’s crew had scavenged from the house across the street. Resendez agreed to allow the workers to load their salvage into the bulldozer’s front end. The materials were then deposited into one of Jackson’s trucks.

Meanwhile, Talib Aleem had been sent by Jackson to the loft of one of the old residences, where in the course of retrieving timber, he stepped through a rotten floorboard and injured his leg. Rev. Jackson instructed one of his workers to drive Aleem to the hospital and told Aleem that he should look to his employer, Leonard Pigott, for financial reparation. When Aleem returned to the work site on crutches a few days later, Pigott denied having ever been his employer and named Rev. Jackson as the employer responsible for his injury under the workmen’s compensation law. The trial court agreed.

We are now asked to decide whether, upon these facts, the trial court committed error in finding that Talib Aleem’s sole employer was Rev. Joseph Jackson.

Ill

Inasmuch as appellant relies for recovery upon that part of Louisiana’s Workmen’s Compensation law which defines a “statutory employer”, La.R.S. 23:1061, the plaintiff bears the burden to prove this essential element: the existence of a contract which governs the performance by Rev. Jackson of part of Pigott’s (AABCO’s) work. Whether it is proper to also name Leonard Pigott as Aleem’s employer therefore presents a question of fact whose resolution we will not disturb absent manifest error. Arceneaux v. Domingne, 365 So.2d 1330 (La.1979).

Since there is no written contract between Pigott and Rev. Jackson, and since no one claims to have witnessed such an oral agreement between them, plaintiff’s case for the existence of such a contract is wholly circumstantial. Thus, Aleem contends that AABCO had sole possession of the property upon which the accident occurred; that AABCO, by its contract with LSU, was solely responsible for injuries occurring to third persons on the premises; that Rev. Jackson conducted himself like a foreman when Pigott came to the work-sight; that the work performed by Rev. Jackson’s crew was for the benefit of AAB-CO; that prior dealings reveal a steady pattern of employment of the Rev. Jackson by Mr. Pigott; that Mr. Pigott did not attempt to evict Rev. Jackson upon arrival at the work site; that the sum of the above parts is the contractual relation between Pigott (AABCO) and Rev. Jackson, and that, being directly employed by Jackson, the plaintiff is therefore statutorialy employed by Pigott as well.

As to the plaintiff’s contentions, we begin by noting that although the salvage material had some monetary value, Mr. Pigott testified that he was not financially interested in that aspect of the operation. The truth of this was born out by the fact that when Pigott drove the debris-laden dump truck to the land fill, the load contained salvage bricks and timber as well as useless scrap. The salvage work was therefore performed for the benefit of Rev. Jackson, not AABCO.

Moreover, the trial record discloses that in sworn testimony, Leonard Pigott explicitly denied having any contractual arrangement with Rev. Jackson and denied receiving any benefit from the work performed by the latter on April 11, 1980. Pigott’s testimony on that point is not inconsistent with the circumstances upon which the plaintiff’s case depends, and if believed, establishes a perfect defense against the plaintiff’s suit. It is apparent from the trial judge’s findings that he believed the testimony of Leonard Pigott. Concerning a trial judge’s estimate of a witness’ credibility, we are admonished to follow the well-known dictate of Canter v. Koehring, Co., 283 So.2d 716 (La.1973) wherein it was stated:

“... the reviewing court must give great weight to the factual conclusions of the trier of fact where there is conflict in the testimony, reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.” Id at 724.

We conclude that the trial judge did not commit manifest error in assigning credibility to the testimony of Leonard Pi-gott, and therefore, that the court did not err in finding that there existed no employer-employee relationship between Pigott and Talib Aleem. Accordingly, plaintiff has failed to establish the validity of his claim under La.R.S. 23:1061.

PRESCRIPTION

Appellant assigns as error the trial court’s dismissal of the tort action filed by him against the above-named defendants. The basis of dismissal was prescription, it having been established by the defendants that more than one year had elapsed between the injury-causing event and the filing of suit for tort damages. Appellant contends that the timely filing of the workmen’s compensation suit interrupted prescription as to the tort claim. Although he does not expressly say so, appellant’s reliance is upon La.R.S. 9:5801, which provides:

“All prescriptions affecting the cause of action therein sued upon are interrupted as to all defendants ... by the commencement of a civil action in a court of competent jurisdiction and in the proper venue.” Italics added.

It is clear from the above statute that the timely filing of suit interrupts only those prescriptions affecting “the cause of action therein sued upon".

The issue thus raised by appellant is simply whether his original petition, which stated a cause of action under the workmen’s compensation statute, sufficiently stated, in addition, a cause of action for tort damages so as to interrupt the applicable one-year prescriptive period.

Appellant’s original petition alleges, in essence, that on April 11, 1980, he was employed as a laborer by Rev. Jackson and by AABCO Contractors, Inc., and that he was “accidentally injured” while in the course and scope of his employment. The petition is devoid of any allegation that appellant’s injury was caused by breach of legal duty. We therefore conclude that appellant’s timely-filed suit for workmen’s compensation benefits did not interrupt prescription for tort damages and was correctly dismissed.

In so holding, we expressly reaffirm the principles stated in Lee v. State Farm Fire and Casualty Co., 400 So.2d 330 (La.App. 4th Cir.1981), but find them inapplicable to the case before us. There, the question was whether the plaintiff’s claim' against the officers of a steel corporation had prescribed because the petition bringing them into the action was filed more than one year after the date of the accident. Applying the principle that, “so long as the proper person has been apprised of the demand in any legal capacity, prescription is interrupted”, Lee, supra, at 332, we reasoned that inasmuch as the defendants had been timely and adequately apprised of the plaintiff’s claim, the filing of suit against the corporate officers’ insurer interrupted prescription as to the officers themselves.

In the present case, plaintiff’s petition stated only the barest facts to support a cause of action for workmen’s compensation. .The defendants were not informed of any facts whatsoever which would support a claim in tort until well after the expiration of the prescriptive period. Under these circumstances, Lee should not be applied so as to find an interruption of prescription.

CONCLUSION

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

AFFIRMED.

      . Where any person (in this section referred to as principal) undertakes to execute any work, which is part of his trade, business, or occupation or which he had contracted to perform, and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him; and where compensation is claimed from, or proceedings are taken against, the principal, then, in the application of this Chapter reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the employer by whom he is immediately employed.


text:
    STATE of Louisiana v. Freddie HINES.
    No. K-0198.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 1982.
    Harry F. Connick, Dist. Atty., Jack Pee-bles, Frank Bruno, Asst. Dist. Attys., New Orleans, for relator.
    Murray, Murray, Ellis, Braden & Landry, Michael H. Ellis, Julian R. Murray, Jr., Jacobs, Loeffelholz & Trestman, Joel P. Loef-felholz, Alan B. Tusa, New Orleans, for respondent.
    Before GULOTTA, BYRNES and LO-BRANO, JJ.
   GULOTTA, Judge.

In this writ application, the State complains the trial judge erred when she ordered the State to produce information requested in defendant’s application for a bill of particulars.

The defendant-respondent was charged with first-degree murder and attempted murder for allegedly shooting to death one victim and severely wounding the victim’s female companion. Pursuant to LSA C.Cr.P. Art. 484, defendant filed a motion for a bill of particulars consisting of seventy-two requests. At a hearing on the motion, the trial court ordered the State to respond to seven particulars to which the State objected.

Specifically, relator claims the court erred in ordering the State to: 1) search for arrest and conviction records of state witnesses and provide them to the defense; 2) provide the defense with the names and addresses of witnesses it intends to call; 3) provide to defendant the exact room or place within the house where the defendant was located when he allegedly fired the shots; and 4) state the number of spent pellets in the house, and the number and location of bullet holes, spent casings and cartridges.

Regarding the arrest and conviction records of its witnesses, the State did not object to producing any information in its possession, but objected to being ordered to seek out new information in the absence of a showing of need by defendant. We agree.

Citing State v. Washington, 407 So.2d 1138 (La.1982) this court, in State v. Williams, (K-0006), set aside an order of the trial court which had ordered the State to search for conviction records of its witnesses.

In Washington, the Louisiana Supreme Court held the trial court did not err in refusing to require the State to provide the defendant with arrest and conviction records of State witnesses after it has been ascertained by the court that the State did not have in its possession any “rap sheets” except the ones furnished to the defense, and that the State had no knowledge of any other “rap sheets”. See also State v. Harvey, 358 So.2d 1224 (La.1978).

In our case the trial judge ordered, over the State’s objection, production of criminal records of State witnesses when the State indicated it did not have such records. The objection by the State met the requirement of Harvey and Washington since the State indicated it did not have “knowledge or possession” of such records. See also State v. Moore, 414 So.2d 340 (La.1982). Accordingly, we conclude the trial judge erred in ordering the State to seek out and produce records it did not then know of or possess.

Likewise, we agree with the relator that the court erred in ordering the State to provide the defense with names of witnesses it intended to call. Although generally a defendant is not entitled to the names and addresses of State witnesses [State v. Passman, 345 So.2d 874 (La.1977) ], where a determination has been made that “there exist peculiar and distinctive reasons why fundamental fairness requires such discovery”, no prohibition of the right of discovery exists. See C.Cr.P. Art. 723; State v. Washington, 411 So.2d 451 (La.1982) and State v. Walters, 408 So.2d 1337 (La.1982). In recent writ applications, this court and the Supreme Court set aside the trial court’s order requiring production of the list where no showing had been made of a violation of fundamental fairness or the existence of peculiar and distinctive circumstances. See State v. Thibodeaux, (K-0161) and State v. Smith, 418 So.2d 515 (La.1982).

In the instant case, the defense had access to a partial list of witnesses, but the State declined to disclose which witnesses it intended to use and indicated it intended to call witnesses (not eyewitnesses) who were not on the list. The defendant’s attorney stated he had “counselled” with his client and had “made other independent investigations” to find additional witnesses, but was unsuccessful. Under the circumstances, we conclude that no showing has been made that fundamental fairness has been violated or that there existed peculiar and distinctive circumstances requiring disclosure by the State. That is, no showing has been made that defendant could not prepare an adequate defense through normal investigative means. State v. Walters, supra. Accordingly, we conclude the trial judge erred when she compelled the State to provide the defense with the names and addresses of witnesses it intends to call at trial.

We further conclude the trial judge erred in ordering the State to provide defendant with the exact location in the home where defendant allegedly fired the shots in question, the exact number of spent pellets, and the number and location of bullet holes, spent casings and cartridges.

Although a defendant is entitled to inspection of tangible objects or physical evidence (see LSA-C.Cr.P. Art. 718), the State cannot be compelled to disclose how it intends to use that evidence. As was stated in State v. Walker, 344 So.2d 990 (La.1977) ... “a bill of particulars may not be used to discover the details of the evidence with which the State expects to prove its case.”

In the instant case, the State has not only furnished to the defendant a crime scene report containing much of the requested information, but also has agreed to allow full inspection of any physical evidence it has in its possession. To require the State to disclose each and every detail of its case is inconsistent with the purposes of a defendant’s right to ask for a bill of particulars and/or a motion for discovery. Under these circumstances, we conclude the trial judge erred in requiring the State to furnish this information.

DECREE

Accordingly, we rescind and set aside the trial judge’s orders insofar as they compel the State, in response to the defendant’s motion for bill of particulars: 1) to specify the precise location of the defendant within the house at the time of the alleged crime; 2) to specify the number and location of bullet holes found at the crime scene; 3) to give the number of spent pellets found at the crime scene; 4) to give precise locations and number of spent casings and cartridges found at the crime scene; 5) to produce the names and addresses of the State’s witnesses and 6) to “run rap sheets”, i.e., to search for and produce arrest and conviction records as far as they exist of all “lay” witnesses of the State.

The matter is remanded to the trial court for further proceedings.

WRIT GRANTED.

RESCINDED; SET ASIDE AND REMANDED.


author: GRISBAUM, Judge.

text:
    Lillian Bechtel, Wife of Thompson F. BECHTEL, and Thompson F. Bechtel v. ENTRINGER BAKERIES, INC. d/b/a McKenzie’s Pastry Shoppes, et al.
    No. 5-69.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 10, 1982.
    Rehearing Denied Dec. 17, 1982.

      Wiley J. Beevers, Jerome Friedman, A Professional Law Corp., Jerome Friedman, Metairie, for plaintiffs-appellants.
    Sylvia Landry Holder, New Orleans, Thomas L. Gaudry, Jr., Rene A. Pastorek, Daniel A. Ranson, Gretna, Bagot & Gniady, John H. Gniady, Gus A. Fritchie III, New Orleans, for defendants-appellees First Nat. Bank of Commerce Building et al.
    Before BOUTALL, DUFRESNE and GRISBAUM, JJ.
   GRISBAUM, Judge.

Plaintiffs-appellants Lillian Bechtel and Thompson F. Bechtel appeal a judgment of the Twenty-Fourth Judicial District Court in favor of defendants, Entringer Bakeries, Inc., d/b/a McKenzie’s Pastry Shoppes, United States Fidelity and Guaranty Company, John Barnes and Aetna Casualty and Surety Company in an action arising from an accident which occurred on December 10, 1977 on the premises of a McKenzie’s Pastry Shoppe when Lillian Bechtel injured her ankle as she was leaving the store. At the trial by jury, the plaintiffs alleged that Mrs. Bechtel’s injuries were due to the defective construction of the door and door structure at the McKenzie Pastry Shoppe located at 3700 Airline Highway. Mrs. Bechtel injured her ankle as she was in the doorway of the bakery shop. Defendants Entringer Bakeries (lessee of the building), John Barnes (the owner and lessor of the building), and their respective insurers contended that the design and construction of the door and door structure were not defective; therefore, defendants were not liable under the theory of strict liability or negligence and that Mrs. Bechtel’s injuries were caused by her own contributory negligence. After a three-day trial, a jury returned a verdict in favor of defendants finding that neither Entringer Bakeries nor John Barnes were “negligent” in regard to plaintiff’s injury.

On appeal plaintiffs-appellants allege that the trial court erred in:

1) failing to allow plaintiffs’ architectural expert to testify as to violations of the Jefferson Parish Building Code, the Life Safety Code, and/or the Fire Marshal’s Code;

2) failing to grant plaintiffs’ motion for a directed verdict;

3) failing to give those jury charges requested by the plaintiffs that the court had agreed to give;

4) failing to give to the jury plaintiffs’ requested charges on strict liability; and

5) failing to confer with plaintiffs’ counsel on the proposed general jury verdict form and interrogatories applicable to a verdict in favor of the plaintiffs.

Addressing these specifications of errors, we do not find reversible error for the following reasons:

At trial plaintiffs called as an expert in architecture, Mr. Ladd P. Ehlinger. Plaintiffs qualified Mr. Ehlinger as an expert in architecture. He was allowed to testify to the facts that he found to exist structurally and to whether the building’s design and construction complied to good architectural practice at the time it was built. However, when questioned as to violations of a parish ordinance, the court sustained objection to such testimony. We find the court did not err in excluding plaintiffs’ expert testimony as to violation of the parish building code. Generally a witness is only allowed to testify to facts within his knowledge; opinions or impressions are usually not allowed. However, an exception to this general rule exists when experts are called to testify. See State of Louisiana v. Bruce Wheeler, 416 So.2d 78, 80 of the docket of the Supreme Court of Louisiana handed down June 21, 1982 and not as yet reported, and McCormick on Evidence, §§ 10, 11, 12, 13 (1972). State v. Wheeler sets forth two elements that must be present before an expert can give his “opinion.” Although addressing the admissibility of expert opinion. in a criminal context, we find these elements also pertinent in this civil case:

“(a) the subject of the inference must be so distinctly related to some science, profession, business or occupation as to be beyond the understanding of the average layman; and (b) the witness must have sufficient skill, knowledge or experience in that field or calling as to make it appear that his opinion or inference will probably aid the trier of fact in his search for truth.” State v. Wheeler, supra at p. 80, citing McCormick on Evidence, §§ 12, 13 (1972).

Applying the above principles, we do not find under the facts of this case that questions as to building code violations are beyond the understanding of the average juror. The trial court properly excluded expert testimony on this issue.

We find no error in the trial court’s denial of plaintiffs’ motion for a directed verdict. Counsel for plaintiffs has not demonstrated to this court any reason that the trial court should have directed a verdict for the plaintiffs after the close of the defendants’ ease.

Finally, the last specifications of error pertain to jury instructions and jury interrogatories. Plaintiffs complain on appeal that the trial court did not give a jury charge which had been granted and that improper jury interrogatories were submitted to the jury. It is not clear from the record whether or not plaintiffs’ jury charge number 4 was in fact given. However, plaintiffs did not timely object to its omission nor did plaintiffs object to the form of the jury interrogatories given by the trial court judge. Thus, plaintiffs have waived their right to object on appeal to this omission and the jury verdict interrogatories. La.C.C.P. Art. 1793; See Troxlair v. Illinois Central Railroad Company, 291 So.2d 797, 802 (La.App. 4th Cir.1974).

Plaintiffs also contend that the trial court erred in not giving the jury numerous charges pertaining to strict liability. Plaintiffs made an “en globo” objection to the court’s denial of their requested charges. La.C.C.P. Art. 1793 states in part:

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

In order to preserve the right to appeal from the failure to give requested instructions or the giving of an improper instruction, a litigant adversely affected must state specifically the matter which he finds objectionable and the grounds for his objection to the jury instructions. Watts v. Aetna Casualty & Surety Co., 309 So.2d 402, 405 (La.App. 2nd Cir.1975). Plaintiffs made only a blanket objection to the failure of the court to submit its jury charges and did not state specifically the matter objected to and the grounds. This does not comply with the provisions of La.C.C.P. Art. 1793. See Geisler v. Louisiana Power and Light Co., 346 So.2d 339, 344 (La.App. 4th Cir.1977); Caldwell v. Parker, 340 So.2d 695, 697 (La.App. 4th Cir.1977); Watts, supra.

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

AFFIRMED.

      . It seems the jury may not have considered the question of strict liability due to omission by the trial judge of a strict liability jury charge and strict liability interrogatories. (See discussion infra.)

      . The trial judge read the pertinent parts of the code to the jury in his charge.

      . Plaintiffs Charge Number 4 reads:
      “Once an injured person shows the thing which caused the damage is defective and that the damage resulted from the defect, the custodian or owner of the thing can escape liability only by proving the harm was caused by the fault of the injured person, by the fault of the third person, or by an irresistible force.”

      .Plaintiffs merely objected that the insurers were not named specifically. Only on appeal do plaintiffs claim that the judge erred by not conferring with their counsel as to appropriate form for a verdict for plaintiffs.


author: BOWES, Judge.

text:
    Joseph D. HOLMES, Sr. v. TEXACO, INC. and Olden P. Breaux.
    No. 5-188.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 10, 1982.

      Victor L. Marcello, Donaldsonville, for plaintiff-appellee.
    Wiley G. Lastrapes, Jr., New Orleans, for defendant-appellant.
    Before BOUTALL, BOWES and CUR-RAULT, JJ.
   BOWES, Judge.

An automobile accident involving the plaintiff, Joseph Holmes, and the defendant, Olden Breaux, occurred on September 13, 1978. The defendant Texaco, Breaux’s employer, was sued on the theory of respon-deat superior. After a trial on the merits, there was judgment in favor of the plaintiff, holding the defendants solidarily liable for the negligence of Breaux, in the amount of $175,000.00 for general pain and suffering; $252,643.41 for past and future wage losses; and $10,183.46 for medical expenses. The trial court later amended the wage award to correct an error in calculation to $216,133.11 for past and future wage loss.

Defendants do not appeal the issue of liability, nor do they argue the applicability of the theory of respondeat superior. It is therefore unnecessary for this court to discuss the facts of the accident itself.

Defendant does strenuously contest the quantum of damages awarded, and sets forth four specifications of error:

1. The District Court’s award of $175,-000 general damages was grossly excessive and an abuse of its discretion.
2. The District Court erred by awarding future lost income in any amount.
3. The District Court erred in refusing to give a credit against lost future income to offset what plaintiff would earn at a minimum wage or other job.
4. The District Court erred in accepting actuarial computations that were an inaccurate measure of lost wages because they started from too high a base, used an unrealistic retirement date and a low discount rate, and was calculated on gross income, not net income after taxes.

We shall address these issues as follows.

Initially, defendant argues that the $175,-000.00 awarded plaintiff for pain and suffering was a gross abuse of discretion. In support of this contention, defendant cites numerous cases in which lesser amounts were upheld as sufficient, or reduced as having been excessive.

In his reasons for judgment, the trial judge concluded that the plaintiff suffered at least three, and possibly five, ruptured discs; that he underwent major surgery twice; had been hospitalized on some five occasions, and treated by some six different physicians. He will have a permanent ringing in his ears (with a resultant loss of hearing). He is unable to participate in normal recreational activities that he enjoyed prior to the accident. Delineating the above reasons, the lower court concluded that plaintiff was entitled to the $175,-000.00 award. We cannot say this was manifestly erroneous, nor do we feel compelled to wade through case after case of similar and dissimilar awards.

And whether two cases are so similar as to produce like quantum judgments is hardly discernible by gleaning the facts of the comparable decision from simply a written opinion of an appellate tribunal. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977).

Civil Code article 1934(3) and numerous cases grant the court much discretion in awarding damages. Williams v. Pelican Natural Gas Co., 187 La. 462, 175 So. 28 (La.1937) and Neville v. Johnson, 398 So.2d 111 (La.App. 3rd Cir.1981) are early and later expressions of that maxim. We affirm this portion of the trial court’s decision.

Appellants also argue that the district court erred in accepting actuarial computations that started from too high a base, erred on unrealistic retirement date, and was calculated on gross income.

The judgment reflects an award of $216,133.11 for future wage losses. It appears that the court used the retirement age of 65, although the testimony of plaintiff’s expert and exhibit # 1 shows the value at age 65 to be $224,432.27, not $224,-443.41, as in the original judgment. The amended judgment credits plaintiff for $8,310.30, which he actually earned. The retirement age of 65 is certainly a reasonable one, the norm, and there is no evidence in the record to support defendant’s conclusion that the plaintiff would not have been able to work until that time. Defendant’s contention that “actual” retirement at Kaiser is age 62 is apparently based on the plaintiff’s statement at trial that he (plaintiff) could not name anyone in his position who had worked past age 62. This hardly constitutes “evidence” to sustain defendant’s point. Neither is the medical testimony of Dr. Ioppolo, relative to plaintiff’s degenerative spinal condition, persuasive. Dr. Ioppolo did not venture an opinion as to whether or not the plaintiff would have been forced to retire earlier than age 65 were it not for the automobile accident. This court is not gifted with psychic abilities to foresee what will happen, and declines to speculate on the possibilities; there was nothing unrealistic in the trial court’s use of the retirement age of 65.

It is proper to use gross income in computing wage loss. Green v. Farmers Ins. Co., 412 So.2d 1136 (La.App. 2nd Cir.1982); Black v. Ebasco, 411 So.2d 1159 (La.App. 1st Cir.1982).

Defendant also contends that the expert calculations started from too high a base, using figures that were calculated in part from earlier years when there was substantial overtime at Kaiser, as opposed to low overtime available in 1978 and forecast for the future. The record reveals that the expert, Mr. Brady, used one year, from September 1977 through September 1978, to calculate projected income. In 1977, there were 300 hours of overtime; in 1978, overtime decreased to 86 hours. While this is certainly a dramatic change, the fact that the majority of time used by Mr. Brady fell in 1978 mitigates to a great extent the three and a half months of 1977 figured. There is no evidence in the record to indicate that overtime from 1978 through the present will decline further; the assumption or statement of defendant, that “no change is in sight” regarding increasing overtime, is too speculative to convince the court that the base used by Mr. Brady was too high. Other factors were enunciated by Mr. Brady, through which he determined expected increases in wages: average annual increase in weekly earnings, tax records of the plaintiff, and union wage scales, each of which indicated expected increases of 8.35% and higher. We find that the 8% expected increase on which Mr. Brady made his calculations was fair and conservative, and more than offsets any “inflated” overtime figures claimed by defendants.

Defendant contends additionally that the 7% discount rate used by Mr. Brady was too low, and that a higher discount rate of 10% would have been proper. Defendant offered no expert witness to affirm this figure, but rather seems to have derived it from a statement made by plaintiff’s expert that certificates of deposit at the time of trial ran at 9.5%. Defendant alleges in his brief that “treasury bills have yielded anywhere from ten to fifteen per cent and intermediate government bonds have yielded close to that.” (at page 17). This court does not dispute these statements, although the latter in particular seems to be more of defendant counsel’s conclusion as much as actual fact. Defendant goes further in his argument, figuring the possible awards, if discount rates of 10% and 12% were used.

This court is not obliged to accept defense counsel as an economic expert in this matter, nor is it inclined to accept defendant’s argument. A 7% discount rate is conservative, but in no way improper. Mr. Brady explained at trial that his calculations permitted the plaintiff to make investments that will return to him his annual income on an annual basis. A two-year certificate of deposit would guarantee his income two years hence; a six-month certificate would do so in six months. At the end of these time periods, interest rates, like the economy, change. In one-year certificates of deposit or passbook savings, a' plaintiff would have access to the principal at the end of that year. In other words, the plaintiff has access to his yearly income every year, without gambling on the stock market or most other aspects of the economy. This court would not require more, or less, of the plaintiff. Mr. Brady used perfectly sound principles of investment, and insisted that his calculations were prudent. This court can find nothing in the record of this case to dispute this wisdom. Given the evidence and testimony at trial, to increase the discount rate would be to require the plaintiff to take certain risks. Considering that the money in question represents the majority of future earnings for Mr. Holmes, we are not prepared to do so. Further, in Philippe v. Browning Arms Co., 395 So.2d 310 (La.1980), the Supreme Court approved an award in which a discount rate of 7% was used. Awards for lost wages are speculative by nature and cannot be calculated with mathematical certainty; the trial court necessarily must have much discretion in fixing lost wage awards. Black v. Ebasco, supra.

We find no abuse of discretion in the trial judge’s acceptance of the economic expert’s calculations of projected loss income for plaintiff through age 65.

However: “The question is not whether a different award might have been more appropriate, but whether the award of the trial court can be reasonably supported by the evidence and justifiable inference from the evidence before it. That such evidence might also support a greater (or smaller) award will not justify a change in the amount by the appellate court. Only when the trial court abuses its broad discretion should the award be adjusted, up or down.” Bitoun v. Landry, 302 So.2d 278 (La.1974).

We find defendant’s argument that a credit for minimum wage should have been used to offset future lost income meritorious in this case. Although plaintiff himself testified that he could do very little without suffering pain and discomfort after a short period of time, the point is well’ taken that plaintiff’s physician testified both in his deposition and at trial that he believed plaintiff could perform some sedentary work.

In Profit v. Linn, 346 So.2d 253 (La.App.1977), the First Circuit held that a plaintiff, forbidden by his injury to do strenuous work, nevertheless, “In cases of this nature ... must prove that either he can do no other work, or, although with his physical disability he is able to perform other work, he will suffer a loss of income.”

We are mindful of the obligation of the defendant tortfeasor to show to what extent damages should be mitigated. Lucas v. Deville, 385 So.2d 804 (La.App. 3rd Cir.1979). However, the record in this case discloses that plaintiff was offered in the past a job as supervisor, which would require no lifting, and turned it down because he did not want to take the responsibility; that plaintiff felt his age would make vocational training not “feasible”; and that his physician did not feel plaintiff was disabled from all work. There was no evidence contradicting Dr. Ioppolo on that point and it is a justifiable inference that plaintiff is able to do at least light or sedentary work. Therefore, we feel that plaintiff did not prove that he can do no other work within the meaning of Profit.

However, the record contains little to show the real employment opportunities for a man of plaintiff’s age, education, and disabilities. We feel, therefore, that an amount equal to what plaintiff could earn at a minimum wage job is fair to both plaintiff and defendant. Accordingly, we find that the trial judge erred by not allowing a minimum wage offset, which amount was prefigured by plaintiff’s economist and is a matter of record. Consequently, we reduce that portion of the plaintiff’s award for future wage loss to reflect a credit for minimum wage employment to age 65. According to Mr. Brady, this present value of plaintiff’s total expected income from minimum wage to age 65 would be $47,739.02.

For the reasons assigned, the judgment appealed from is amended to reflect the correction of the sum due for lost wages to $224,432.27, subject to a reduction of $47,-739.02; all other portions of the judgment are affirmed.

AFFIRMED IN PART.

AMENDED IN PART.


text:
    AETNA INSURANCE COMPANY as Subrogee of Mr. and Mrs. James M. Develle and St. Paul Insurance Co. as Subrogee of Conrad M. Kuebel v. Michael FRITSCHER & State Farm Mutual Insurance Company.
    No. 5-218.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 10, 1982.
    Gregory W. Roniger, Jefferson, for plaintiff-appellant.

      Ben C. Toledano, New Orleans, for defendant-appellee.
    Before BOUTALL, BOWES and CUR-RAULT, JJ.
   BOWES, Judge.

Aetna Insurance Co. (hereinafter Aetna) and St. Paul Insurance Co. (hereinafter St. Paul) as subrogees of their respective insureds, Mr. and Mrs. James M. Develle, and Conrad Kuebel, appeal from the judgment of the trial court dismissing at their costs this action to recover sums paid to the insureds in settlement of their claims generated by a fire which started in a multiple dwelling townhouse being built by Michael Fritscher, the insured of State Farm Mutual Insurance Co. (hereinafter State Farm).

In the early morning hours of June 13, 1977, a fire of unknown origin broke out at 3236 Delaware Avenue in the triplex townhouse being built by Michael Fritscher. The fire not only destroyed that building, but spread to 3240 Delaware, the residence of the Develles, and 3244 Delaware, the Kuebel residence, doing substantial damage to both structures. At the trial, Officer Robert Krause, a fire inspector for the Ken-ner Fire Department, testified that the cause of the fire was “possible arson.” Officer Krause, who lives only about two hundred feet away from the fire scene, had passed the site about fifteen minutes before the fire was reported and had noticed nothing unusual. He was the first fireman on the scene and testified that upon his arrival the buildings were already “totally involved.”

Next called to the stand was Patty Belch-er, a neighbor who lived on Connecticut Street. Ms. Belcher testified that just after the fire broke out, two men, in a light-colored Volkswagen, stopped in front of her house, took a piece of cardboard out of her garbage, covered their license plate, and, when she called to them, “took off.”

Robert Preveaux of the State Fire Marshall’s office testified that he investigated the fire and that the origin of the fire was highly suspicious and that arson was a possibility.

The fire started in a building which was under construction; there was no electricity or gas within the structure; and no work had been done at the site for approximately forty hours previous to the fire (the fire broke out early on a Monday morning).

The owner of the building, Mr. Fritscher, accompanied by his daughter, had inspected the construction site on Saturday afternoon, and his uncontradicted testimony establishes that there was no flammable substance (including paint) in the building at that time, that the building was broom clean, and that, when he left, the doors and windows were secured.

Appellants contend that the defendant had the burden of proof to exculpate himself from negligence in connection with the origin of the fire and base this- contention on Keller v. Kelly, 378 So.2d 1006 (La.App. 4th Cir.1979). They assign as error the trial court’s failing to so rule.

It is amazing how far afield appellant’s counsel has cast in attempting to expand the liability imposed by the laws and jurisprudence of this state to encompass the damage sustained by their clients.

The Keller case is obviously distinguishable from the case at bar and totally inapplicable. In imposing liability in Keller, supra, the Fourth Circuit held:

Nevertheless the evidence establishes inescapably that the fire was caused either by the fault of the owner (including premises defects under C.C. 2322 [] and 2695 [], see also C.C. 670[]) or by the fault of the tenants at whose apartments the fire began, and not by the fault of plaintiff’s decedent. Under that proof, our conclusion is that the burden of going forward with the evidence shifts to the owners. Unless the owners show that the fire was not their fault, they must be held liable.... (emphasis added).

Not one shred of evidence was introduced at the trial to show any vice in construction or any negligence on the part of the owners. To the contrary, testimony established that Mr. Fritscher inspected and secured the construction site after work was halted for the weekend. It was also established that there was no gas or electric service in the building and that no flammable material was stored therein. These facts convince this court that it was neither vice in construction nor negligence on the part of the owners which caused the unfortunate fire. Therefore, the burden never shifted to the owners to exculpate themselves from any negligence or fault.

In addition, Keller is also distinguishable from our case as the Keller case involves a landlord-lessee relationship which we do not have here. Accordingly, there was no affirmative duty imposed on Fritscher as there would be if plaintiffs had been invitees or lessees, so article 2695 of the Civil Code never became involved. Moreover, Fonseca v. Marlin Marine Corporation, 385 So.2d 341, 342 (La.App. 1st Cir.1980) points out: “... Art. 2322 does not apply, and strict liability is not imposed, if a building is in the process of being constructed.” Such was the case with 3236 Delaware Avenue on the morning of the fire.

Lastly, we turn to the words of this state’s Supreme Court in Loescher v. Parr, 324 So.2d 441, 1975, Rehearing Denied 1976, where the court states:

Under Louisiana law, founded on articles 670 and 2322, the owner of a building is liable to a neighbor or passerby injured through the fall of his building due either to a vice in its original construction or to his neglect to repair it.... He is absolved from such liability only if the thing owned by him falls, not because of its defect, but rather because of the fault of some third person or of the person injured thereby, or because the fault is caused by an irresistible cause or force not usually foreseeable....

Under the facts of the case (no proven defects) in' construction or neglect to repair), we find the trial court eminently correct in its holding that there was no basis for attaching liability to the appellee, Michael Fritscher.

For the reasons above, we find that the trial court was correct in its dismissal of plaintiffs’ suit and, accordingly, we affirm the trial court’s judgment.

AFFIRMED.

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

      . The lessor guarantees the lessee against all the vices and defects of the thing, which may prevent its being used even in case it should appear he knew nothing of the existence of such vices and defects, at the time the lease was made, and even if they have arisen from the fault of the lessee; and if any loss should result to the lessee from the vices and defects,

      .See note 3 on page 1308. the lessor shall be bound to indemnify him for the same.
      3. Everyone is bound to keep his buildings in repair, so that neither their fall, nor that of any part of the materials composing them, may injure the neighbors or passengers [passersby], under the penalty of all losses and damages, which may result from the neglect of the owner in that respect.


author: CURRAULT, Judge.

text:
    Harold H. SUTTLES v. Theresa H. GIBSON, Clarence Holloway and Prudential Property and Casualty Insurance Company.
    No. 5-209.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 10, 1982.

      Gordon Hackman, Boutte, for defendants and appellants.
    Jerry L. Finley, Louisiana Dept, of Transp. and Development, Baton Rouge, for plaintiff.
    Before BOUTALL, BOWES and CUR-RAULT, JJ.
   CURRAULT, Judge.

As a consequence of a suit arising from an automobile accident, defendants and appellants herein, Clarence Holloway and Theresa Gibson, filed a reconventional demand and third-party demand against plaintiff Harold L. Suttles, Prudential Property & Casualty Insurance Company and appellee, the Louisiana State Department of Transportation and Development, Office of Highways. The State of Louisiana subsequently filed a peremptory exception of no cause of action alleging that appellants’ petition failed to state any facts upon which relief could be granted. In a judgment rendered May 18, 1981, the trial court granted the exception and dismissed the action against the Louisiana State Department of Transportation without prejudice. Following the trial court’s denial of a new trial on September 18,1981, appellants perfected this appeal.

The sole issue for our consideration is whether the trial judge erred when he failed to grant appellant leave to amend the defective petition upon sustaining the exception of no cause of action.

Citing Louisiana Code of Civil Procedure Article 934, appellants argue that the mandatory nature of the Article compels the trial judge to order amendment, if the grounds of the objections can be removed.

The Article provides as follows:

When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection cannot be so removed, or if the plaintiff fails to comply with the order to amend, the action shall be dismissed.

The mandatory nature of the right to amend is clear and unambiguous, but notably qualified by the restriction that the objections must be curable. The jurisprudence has consistently favored amendment whenever possible. Hays v. Muller, 248 La. 934, 183 So.2d 310 (1966); Newman v. Polite, 400 So.2d 1186 (La.App. 1st Cir.1981); Hodges v. LaSalle Parish Police Jury, 368 So.2d 1117 (La.App. 3d Cir.1979); Aetna Finance Co. v. Antoine, 343 So.2d 1195 (La.App. 4th Cir.1977). Where amendment would be a vain and useless act, however, amendment of the petition is not required prior to dismissal of the action. Woolridge v. Mouledoux, 398 So.2d 1272 (La.App. 4th Cir.1981); Louisiana & Southern Life Insurance Co. v. New Orleans Steamship Association, International Longshoreman’s Association (A.F. of L.-C.I.O.) Welfare Plan, 384 So.2d 594 (La.App. 4th Cir.1980); Perkins v. Desrochers, 359 So.2d 323 (La.App. 4th Cir. 1978), writ denied, 362 So.2d 578 (La.1978).

In the case herein, the allegations of the petition concerning appellee read as follows:

Gibson and Holloway also complain of the Department of Highways that it continually had notice of the inoperation or character of the light, averring that that negligence and strict liability caused the collision in whole or in part.

We find that the trial court was not in error in sustaining the exception, but it is also apparent that the factual defects are susceptible of being cured. Thus, amendment is dictated in this case. Furthermore, and despite the fact that the dismissal of appellant’s case is without prejudice thereby allowing a new suit to be instituted, judicial economy compels amendment. Forcing appellants to institute a new suit in this case would only create unnecessary burdens on the parties and the court. Pursuant to the mandate of LSA-C.C.P. art. 934, therefore, we remand the case and order the trial court to allow plaintiff 30 days to amend his petition.

For the foregoing reasons, the judgment sustaining the exception of no cause of action is affirmed, but it is reversed insofar as it failed to allow plaintiff leave to amend his petition. The case is hereby remanded for further proceedings consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.


author: KLIEBERT, Judge.

text:
    Anna Burglass DeSalvo DUNKER v. NEW ORLEANS BAPTIST THEOLOGICAL SEMINARY and Finance Funds Groups, Inc.
    No. 5-154.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 10, 1982.

      Anna Burglass DeSalvo Dunker, in pro. per.
    A. Morgan Brian, Jr., New Orleans, for defendants-appellees.
    Before SAMUEL, KLIEBERT and GRISBAUM, JJ.
   KLIEBERT, Judge.

The litigation of which this ease forms a part has been in being for more than ten years. The plaintiff has filed three separate suits seeking damages or recovery of the property she sold to the Finance Funds Group, Inc. (FFG). Her first two suits, seeking recovery of the property or damages were ultimately dismissed. See Anna Burglass deSalvo Dunker v. Finance Funds Group, Inc., 333 So.2d 331, 332 (La.App., 4th Cir.1976) and Anna Shirley Burglass De Salvo Dunker v. Edward Wood, et al, 315 So.2d 783 (La.App., 4th Cir.1975). When these judgments became final, FFG conveyed the property to third parties.

The petition in the present suit was filed in 1973 and prayed for damages against FFG and New Orleans Baptist Theological Seminary (Seminary). Seven years later, the plaintiff sought to amend her original petition to seek a return of the property and to add as party defendants Carol Taulli and Eileen Taulli, the then owners of the property and Mr. Edward Wood, individually and in his capacity as liquidator of Finance Funds Group, Inc. In response to this amending petition, the Seminary filed an exception of improper cumulation of actions and improper joinder of parties with a motion to strike (dismiss) all of those allegations of the amended petition which asserted the improperly cumulated actions against the improperly joined parties, i.e., the nullity of the final judgment in the suit decided in 333 So.2d 331 and the subsequent sales of the property made by FFG to the third parties (Taulli) and the recovery of the property from the third party purchasers.

The trial judge maintained the exceptions and the motion and dismissed the amended petition in its entirety with prejudice. In his reasons for judgment, the trial judge based his dismissal on the grounds the plaintiff was improperly attempting to join an in rem action with an in personam action then pending before the court.

While the appeal was pending, the trial judge dismissed the original suit on the merits. Thus, the original defendants, Seminary and FFG, have been dismissed from the action. No appeal was taken from that dismissal and the time for doing so has expired. Only the Taulli owners filed briefs as appellees on this appeal. Edward Wood and FFG were never served, are not represented and made no appearances in either the lower court or in this court. The Taulli appellees have no interest in whether or not Wood was or was not properly dismissed in his individual capacity or in his capacity as the liquidator of FFG. Thus, the focus of the appeal narrows to whether the Taulli owners were properly dismissed from the litigation. We agree with the trial judge’s ruling dismissing them from the suit.

The plaintiff was attempting to join an “in rem” action with a pending action in personam. The in rem action should be the subject of a different suit and its cumulation with the in personam action was improper because it had no community of interest with the pending in personam action. La.C.C.P. 463.

The pleading labeled by the defendant “A MOTION TO STRIKE AND A RULE TO SHOW CAUSE” filed in the trial court contained a plea of prescription which is also argued here. Defendant argues that insofar as the amended petition purported to be an action of nullity to set aside the previously rendered judgment for fraud or ill practice, the same was untimely. Under La.C.C.P. Article 2004, an action to annul the judgment on those grounds must be brought within one year of the discovery of the fraud or ill practice. Here, plaintiff’s “Answer to Request for Admission of Gen-uiness and Third Party Petition” filed on June 15, 1979 shows she knew, at the time of filing same, all of the facts alleged in the amended petition regarding the supposed frauds. Since the amended petition was not filed until August 11, 1980, more than one year later, the prescriptive period of Article 2004 had run.

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

AFFIRMED.

ON MOTION TO SEAL

The defendant counsel also filed in this Court “MOTION TO STRIKE AND SEAL PARTS OF THE RECORD”, which motion was referred to the merits. On the date set for oral arguments, plaintiff filed an answer to the motion and attached to her answer various documents and pleadings which defendant was seeking to have sealed. Since those documents have no application to this case, the defendant’s motion is granted and the Clerk is ordered to fully implement the order of Judge Collins as revised on June 12, 1981 and to include within said order the plaintiffs answer to the motion to strike.