text:
    Gerald LAVERGNE, Plaintiff-Appellant, v. DEPARTMENT OF DEVELOPMENT AND TRANSPORTATION et al., Defendants-Appellees.
    No. 7425.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 1980.
    Rehearing Denied April 2, 1980.
    Chris B. Fruge, Ville Platte, for Dept, of Transp.
    Onebane, Donahoe, Bernard, Torian, Diaz, McNamara & Abell by Henry C. Per-ret, Jr., Jones, Walker, Waechter, Poitev-ente, Carrere & Denegre, Anthony M. Faz-zio, Lafayette, for Gerald Lavergne.
    J. Minos Simon, Edward J. Milligan, Lafayette, for plaintiff-appellant.
    McBride & Brewster, Norman P. Foret, Logan, deLaunay & Stutes, Gerald C. de-Launay, Lafayette, Roy & Forrest, Alex A. Lopresto, III, New Iberia, for defendants-appellees.
    Before FORET, CUTRER and DOUCET, JJ.
   CUTRER, Judge.

Gerald Lavergne appeals from a judgment of the trial court which dismissed his suit against the Department of Transportation and Development on the ground that Lavergne was barred from a recovery of damages due to his contributory negligence.

For the reasons assigned in the companion case of Albert Sinitiere Jr., et al. v. Gerald W. Lavergne et al., 381 So.2d 522 (La.App. 3rd Cir. 1979), in which a separate judgment is being rendered this date, we find that Gerald W. Lavergne was not guilty of contributory negligence that would bar his recovery against the Department of Transportation and Development (Department). Thus, the trial court judgment will be reversed.

Since the trial judge dismissed the demands of Lavergne against the Department, no damages were determined. We will, therefore, based on the record, which contains evidence of Lavergne’s injuries and medical expenses, award damages to Lavergne.

The record reflects that Lavergne was thrown from the van as a result of the collision. Lavergne was rendered unconscious shortly after the accident. He regained consciousness prior to being examined in the emergency room of Iberia Parish Hospital.

Dr. Elias treated Lavergne after Lav-ergne arrived by ambulance at the hospital. His examination revealed that Lavergne had a severe, 6 inch long laceration of the left parietal area of his scalp from which Lavergne was bleeding heavily. On Lav-ergne’s left hand, there was a 1 inch long laceration between his thumb and index finger. These lacerations were sutured by the doctor. Lavergne had multiple abrasions on his lower extremities. It was found by X-rays that Lavergne had an un-displaced fracture of the second and third left transverse process of the lumbar vertebra. He also suffered a cervical strain and a mild brain concussion. Lavergne remained in the hospital from May 19 through 21, 1977. Dr. Elias stated that the wounds were healing well while Lavergne was hospitalized.

Lavergne also saw Dr. William I. Smith. Dr. Smith testified by deposition that he saw Lavergne on May 26, 1977. Lavergne was wearing a cervical collar that had been prescribed by Dr. Elias and complained of neck and back pain. Examination revealed stiffness in the neck and the mid-back. The pain was aggravated by motion. Lavergne also complained of a headache which had existed since the accident. The examination of the sutured wounds revealed that they were healing. Dr. Smith’s deposition corroborates the injuries found by Dr. Elias, though no mention was made of the’fracture of the second and third left transverse process of the lumbar verebra. Dr. Smith saw Lavergne again on June 2, 1977. Lav-ergne still complained of neck pain and headaches, but his back was improved. He was still wearing the cervical collar. Dr. Smith determined that there was a slight impairment of the extension of the neck and subjective complaints of aggravation of pain when Lavergne turned his head. Dr. Smith recommended, and Lavergne received, physical therapy for his neck. This therapy included deep ultra sound therapy and then several days later, intermittent cervical traction.

This therapy program was continued until June 6, 1977. At that time, Lavergne had improved considerably though he still was experiencing some pain in his neck and right shoulder. There remained a slight impairment of forward flexion and extension of the upper neck. Therapy was lessened to two or three times a week. On June 16, 1977, Dr. Smith suggested that Lavergne could return to his job on the following Monday, June 20,1977, on a limited basis. He was to do no heavy lifting.

Therapy continued until June 29, 1977, at which time Lavergne had completed a range of motion with no symptoms of pain. On the last visit to Dr. Smith on July 1, 1977, Lavergne reported no discomfort in his head or neck. He did not complain of headaches on or after June 16, 1977. The wound to the left hand healed without complication.

On' May 27, 1977, Lavergne visited the emergency room of Lafayette General Hospital complaining of tingling in his right hand, weakness, sensation of internal warmth and irregular breathing. These symptoms had appeared suddenly and subsided while he was at the hospital. The problem was diagnosed by Dr. Smith as an anxiety attack but with a remote chance that it was a reaction to pain medication. He was not prepared to express an opinion as to the cause, but did indicate it possibly could be related to the accident.

Lavergne was unable to work for approximately four weeks, which included 21 working days. His rate of pay was $3.00 per hour and he worked eight hours per day.

We will award for the general damages of pain and suffering the sum of $10,000.00. Special damages for medical expenses are stipulated to be $1,297.77. Lost wages are to be awarded in the amount of $504.00.

For the reasons assigned above and in the companion case of Albert Sinitiere, Jr. et al. v. Gerald W. Lavergne et al., we reverse the judgment of the trial court dismissing Gerald Lavergne’s demands, as plaintiff, against the State of Louisiana through the Department of Transportation and Development in this case. It is now ordered, adjudged and decreed that there be judgment herein in favor of plaintiff, Gerald Lavergne, and against defendant, State of Louisiana Through the Department of Transportation and Development, in the amount of $11,801.77, with legal interest from date of judicial demand until paid. Defendant is cast for all costs, both in the trial court level and on appeal.

REVERSED AND RENDERED.

FORET, J., concurs and assigns written reasons.

DOUCET, J., concurs for reasons assigned by FORET, J.

FORET, Judge,

concurring.

I concur for the reasons given in the concurring opinion in the companion case, Number 7424 entitled “Albert Sinitiere, Jr. et al. v. Gerald W. Lavergne et al.”, 381 So.2d 522 (La.App. 3 Cir. 1980).


source: Caselaw Access Project

author: REDMANN, Judge.

license: Public Domain

text:
    Kieth GIOE v. DUCOTE AND LEE CORPORATION.
    No. 11152.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 20, 1980.
    Mary Beoubay Petruccelli, Arabi, for plaintiff.
    Jerald N. Andry, Gilbert V. Andry, III, New Orleans, for defendant.
    Before REDMANN, LEMMON and SCHOTT, JJ.
   REDMANN, Judge.

The record in this case supports the trial court’s decision that defendant did not exercise the reasonable care owed by a depositary in respect to plaintiff’s new outboard engine. Defendant knew that its yard’s chain-link fence, although protected by barbed wire at its top, had a ten to 15 inch opening at its bottom over a three to five foot area which, as one would reasonably foresee, would greatly facilitate the theft of an outboard motor. Moreover, defendant knew that it had been the victim of motor theft in the past. We simply cannot reverse the trial court’s reasonable inference that defendant breached its duty towards plaintiff. See Canter v. Koehring Co., La. 1973, 283 So.2d 716.

Affirmed.


author: BOUTALL, Judge. REDMANN, Judge,

text:
    Josie Scavone, Wife of/and Dr. Povilas VITENAS, v. Vincent P. CENTANNI et al.
    No. 10463.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 22, 1980.
    Peter J. Vernaci, Metairie, for Josie Sca-vone, w/o and Dr. Povilas Vitenas plaintiffs-appellees.
    George H. Jones, of Frank J. D’Amico and George H. Jones, New Orleans, for Vincent P. Centanni, defendant-appellant.

      Carl L. Aspelund, Law Offices of James J. Morse, New Orleans, for The Travelers Ins. Co., third party defendant-appellant.
    Eugene R. Preaus, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, for Fidelity and Deposit Company of Maryland, defendant third party plaintiff-appellee.
    Before REDMANN, LEMMON and BOU-TALL, JJ.
   BOUTALL, Judge.

This is a suit for breach of warranty arising out of a building contract. Dr. and Mrs. Povilas Vitenas entered into a building contract with Vincent P. Centanni, a general contractor, and Fidelity & Deposit Company of Baltimore, Maryland provided the performance bond as surety. After the building was constructed and accepted by the owner, a number of serious defects began to appear in the premises, and Dr. and Mrs. Vitenas filed suit against the general contractor and the performance bond surety. Centanni subsequently filed a third-party demand against the Travelers Indemnity Company alleging coverage under an insurance policy which he placed with it, and praying for judgment against it. The trial court awarded partial judgment in favor of plaintiff against all three defendants in solido, and determined the third-party demands of the defendants amongst themselves. All four parties have appealed that judgment.

All of the issues flow out of the rights and obligations of the general contractor, Centanni, and we first direct our inquiry into the recovery of plaintiff against him.

Vitenas initially sued for over $15,000 in damages and then amended the petition to ask for in excess of $20,000. The complaint is that, after the building was accepted and occupancy begun, water leaks became apparent on all of the balconies of the structure, that the sliding aluminum doors as well as many windows leaked, and failed to operate properly, that the carport foundation sloped inward and allowed water to . gáther next to the wall of the main building, that the rear carport column is improperly supported, and a number of smaller items. His suit encompasses the cost of necessary repairs to correct the defects, fees paid to various architects and engineers in connection therewith, the fee and cost of a building lien, interest paid on a necessary loan, and attorney’s fees. The trial court awarded only $2,395 in damages, $5,500 as attorney’s fees, $100.00 for the cost of erasing the lien and $700 for expert witness’ fees. Plaintiffs appeal the damage award as being incorrect and insufficient, and the defendants contest the other items awarded. The trial court found that the carport was improperly constructed in two instances: First, the roof rested on supporting columns, and the fascia board of the roof was placed on top of the column such that the weight rested on the board rather than the roof beams, causing a deterioration of the fascia boards and weakness to the roof; secondly, the concrete floor of the carport sloped towards the house and water puddled up near the house despite the contractor’s attempt to repair this by placing a drain. He awarded $2,395 for these items, and the defendants do not contest them.

However, the contest is over the responsibility for the other defects which were enumerated above. It is adequately proven that water entered this house quite freely in periods of rain, and the issue is narrowed only as to who is responsible for the entry of the water. The trial judge cast this responsibility upon plaintiff who furnished the plans and specifications, pointing out that the defects were not caused by improper workmanship but because of deficiency in the plans and specifications. The major problem was in the area where the balconies joined the main house, and the sliding glass doors which were exposed to the elements without the protection of adequate overhang. Although there is some evidence that indicates that improper workmanship may have been the cause of some of the problem, the evidence overwhelmingly indicates that most of the problems arose because of the lack of sufficient pitch on the balconies to permit drainage away from the house, and the design of the flashing installation, intended to make a waterproof seal between the balconies and the walls of the house. The trial judge gave a summarization of the evidence in reaching his conclusions, and we agree with them. Additionally, it was necessary that the judge assess and weigh the credibility of some of the witnesses, and the evidentia-ry value of their testimony. It is evidence that he gave considerably more weight to the testimony of the contractor and his witnesses and we find no manifest error in his conclusions. The defects in chief were defects occasioned because of the fault and insufficiency of the plans and specifications, including Dr. Vitenas’ verbal instructions.

L.S.A. R.S. 9:2771 states:

“§ 2771. Non-liability of contractor for destruction or deterioration of work.
“No contractor shall be liable for destruction or deterioration of or defects in any work constructed, or under construction, by him if he constructed, or is constructing, the work according to plans or specifications furnished to him which he did not make or cause to be made and if the destruction, deterioration or defect was due to any fault or insufficiency of the plans or specifications. This provision shall apply regardless of whether the destruction, deterioration or defect occurs or becomes evident prior to or after delivery of the work to the owner or prior to or after acceptance of the work by the owner. The provisions of this Section shall not be subject to waiver by the contractor.”

The principles of this statute have been applied by us in the cases of Pittman Construction Company, Inc. v. City of New Orleans, 178 So.2d 312 (La.App. 4th Cir. 1965), writs refused; Katz v. Judice, 252 So.2d 532 (La.App. 4th Cir. 1971) writ refused; and LeBreton v. Brown, 260 So.2d 767 (La.App. 4th Cir. 1972), affirmed, 277 So.2d 645 (La.1973). Accordingly, we would affirm the amount of damages awarded by the trial judge, as well as the $100 payment for cancellation of the lien.

We do not agree with the award of attorney’s fees under the terms of the building contract. The only obligation for attorney’s fees to which we are referred is that provided during the progress of the work if the contractor should default as specified. We quote from the contract:

“During the progress of the work, if said Contractor should become bankrupt, refuse or neglect to supply a sufficiency of material or of workmen, or cause any unreasonable neglect or suspension of work, or fail or refuse to follow the Plans and Specifications, or comply with any part of this contract, the said Owner, or his agent, shall have the right and power to enter upon and take possession of the premises, and may at once terminate this contract, whereupon all claims of said Contractor hereunder shall cease and the said Owner may provide material and workmen sufficient to complete the said work, after giving forty-eight hours notice, in writing, directed and delivered to said Contractor in person, or at his residence or place of business, and the expense of the notice, and the completing of various works, together with all costs, charges or attorney’s fees incident to the completion or enforcement of this contract shall be a charge and lien against said Contractor and his surety, and may be deducted from the amount due or to become due him, and in such case no scaffolding or fixed tackle of any kind shall be removed, so long as the same is wanted for said work. Said Owner shall not be liable or accountable to said Contractor in any way for the manner in which he may have completed said work, nor shall the remedies and rights above given be construed as a substitute or a waiver of any of the legal rights of said Owner against said Contractor and his surety, growing out of this contract.”

We have previously interpreted the provisions in a similar building contract in the case of Woods v. Langenbeck, 318 So.2d 134 (La.App. 4th Cir. 1975). We held (P. 145):

“The pertinent language of the building contract, as we interpret it, provides for the assessment of attorney’s fees against the contractor when the contract has not been completed and the owner takes possession of the premises and completes the job. We are not of the opinion that the provisions for the assessment of attorney’s fees apply when the contract has been accepted and the owner occupies the premises, as in the instant case.”

We adopt that principle here, and reverse the award of attorney’s fees.

The next specification of error is the award to plaintiff of $500 for expert witness’ fees for Maurice Singer, and $200 for expert witness’ fees for William White. Defendants contest this as excessive. .The record discloses that Mr. Singer, an architect, examined the premises on a number of occasions and was called upon to make examinations and reports of various defects, a number of which were corrected in the course of negotiations between the parties In addition to his testimony at trial, the record discloses that he spent 3. lh hours preparing for trial at $35 an hour or $122.50. Additionally, he was paid in excess of $900 for various services performed at the premises in its inspection, etc. We cannot determine precisely the amount of this work that would be attributable to his fee as an expert, but in any event, we cannot conclude that $500 is manifestly erroneous. Insofar as the fee of William White is concerned, he was an engineer who also had examined the premises on a number of occasions. He was initially produced as a fact witness, and when efforts began to qualify him as an expert, he insisted that he should be paid a fee of $150 for so testifying. He had previously been paid in excess of $1,000 for his employment by Vitenas. As with Singer, we cannot find manifest error under these facts. We affirm that portion of the judgment.

We now pass to a consideration of the relationship of the parties. Plaintiffs are entitled to recover the amounts above enumerated against defendant Centanni, he being the general contractor and party to the contract. Similarly, plaintiff is entitled to judgment in solido against Fidelity & Deposit Company of Maryland, the surety on the contract. For reasons to be discussed later, plaintiff is not entitled to judgment against Travelers Insurance Company. Although Centanni and Fidelity are liable in solido to plaintiff as between them, Fidelity is entitled to judgment on its third party demand against Centanni. As noted the relationship between them is general contractor and surety on the performance bond. The application for bond by Centan-ni to Fidelity contains an indemnity agreement whereby Centanni agrees to indemnify Fidelity against all loss, costs, damages, expenses and attorney’s fees incurred by the company in its undertaking as surety, and accordingly, Fidelity is entitled to judgment against Centanni indemnifying it against the judgment on the main demand, as well as the stipulated attorney’s fees and costs incurred by Fidelity in the amount of $2,446.10. See Grady v. Alfonso, 315 So.2d 832 (La.App. 4th Cir. 1975). We see no necessity to increase that amount.

The next item is the liability of Travelers Insurance Company under its policy placed by Centanni. That policy is a Comprehensive Automobile-General Liability policy which was in effect at the time of the construction. The trial court held that there was coverage under the policy, and cast Travelers in judgment on the main demand in solido with Centanni and Fidelity, and on Centanni’s third party demand, cast Travelers for the virile portion of the judgment for which Centanni was cast. We would reverse these judgments, being of the opinion .that there is no liability under the coverage afforded.

The policy, under its comprehensive general liability coverage, provides that the company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of property damage to which this insurance applies, caused by an occurrence. Under the policy definition, occurrence means “an accident, including injurious exposure to conditions, which results, during the policy period, in bodily injury or property damage neither expected nor intended from the standpoint of the insuredUnder the facts of this case, there was no occurrence as defined in the policy. The liability of the contractor is dependent solely upon his improper construction of the carport by slanting the concrete slab the wrong direction and by resting the roof facia board on the support column. It is claimed however that there may be liability present under either completed operations hazard provisions of the contract or under the products hazard provisions. It is contended that there are discrepancies amongst the exclusions which apply, and that, since ambiguous or conflicting statements should be resolved in favor of the insured, coverage is still obtained. The basis of this contention is the applicability of the following exclusions found in the policy as follows:

“EXCLUSIONS
This insurance does not apply:
“(a) to liability assumed by the insured under any contract or agreement except an incidental contract; but this exclusion does not apply to a warranty of fitness or quality of the named insured’s products or a warranty that work performed by or on behalf of the named insured will be done in a workmanlike manner;
“(k) to bodily injury or property damage resulting from the failure of the named insured’s products or work completed by or for the named insured to perform the function or serve the purpose intended by the named insured, if such failure is due to a mistake or deficiency in any design, formula, plan, specifications, advertising material or printed instructions prepared or developed by any insured; but this exclusion does not apply • to bodily injury or property damage resulting from the active malfunctioning of such products or work;
“(I) to property damage to the named insured’s products arising out of such products or any part of such products;
“(m) to property damage to work performed by or on behalf of the named insured arising out of the work or any portion thereof, or out of materials, parts or equipment furnished in connection therewith;”

Primarily we find no conflict in these exclusions. Exclusion (a) is simply contained within itself, and the remainder of that exclusion does not apply to the policy generally, only to the effect of that liability assumed except an incidental contract. The exclusions which apply to this case are those enumerated in (k), (1) and (m), all of which are consistent with each other. These exclusions supplement the named policies’ provisions that there must be an occurrence or accident. Similar policy provisions have been considered and held not to insure any obligation of the contractor to repair or replace his own defective work or defective product. We refer to the cases of Vobill Homes, Inc. v. Hartford Accident & Indemnity Company, 179 So.2d 496 (La.App. 3rd Cir. 1965); Breaux v. St. Paul Fire & Marine Insurance Company, 345 So.2d 204 (La. App. 3rd Cir. 1977); and Peltier v. Seabird Industries, 304 So.2d 695 (La.App. 3rd Cir. 1974). Since we find no coverage under the policy, we can find no liability on the Travelers Indemnity Company, and accordingly we must reverse the judgments as to it.

Accordingly, for the reasons above expressed, we affirm the judgment appealed in part, and reverse in part and recast it as follows:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment in favor of plaintiffs, Josie Scavone, wife of, and Dr. Povilas Vitenas, and against defendants, Vincent P. Centanni and Fidelity & Deposit Company of Baltimore Maryland, jointly and in solido as follows: 1.) in the full and true sum of $2,395, together with legal interest from date of judicial demand until paid; 2.) in the sum of $100 for the cost of erasing the lien; 3.) expert witness fees of $500 for Maurice Singer and $200 for William White, taxable as costs of court; 4.) for all costs of the proceedings in the trial court.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of third-party plaintiff, Fidelity & Deposit Company of Maryland and against Vincent P. Centanni, requiring the said Centanni to indemnify it against the judgment for which it was cast on the main demand in favor of plaintiffs, as well as judgment in the full sum of $2,446 as attorney’s fees and costs incurred by it.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment in favor of Travelers Insurance Company and against all other parties, dismissing their demands against Travelers Insurance Company.

Appellants Josie Scavone, wife of and Dr. Povilas Vitenas shall bear their own costs of this appeal. Appellant Vincent P. Centanni shall bear all other costs of this appeal.

AFFIRMED IN PART, REVERSED IN PART, AND RECAST.

REDMANN, J., dissents in part.

REDMANN, Judge,

dissenting in part.

Rather than have defendant-appellant bear all costs, we should divide the costs— especially the expert fees — because plaintiffs did not prevail as to most of their claims. Plaintiffs lost on claims which greatly increased not only the length of the record but also the expert fees, and defendant should not pay plaintiffs’ costs of presenting unsuccessful claims.

      . One of the main problems arose due to changing the balcony from redwood flooring to lightweight concrete. Dr. Vitenas’ verbal instructions were, according to the contractor’s testimony, to pitch the concrete (substituted for redwood) balcony only three fourths of an inch over its 12-foot width (rather than the three inches the contractor deemed appropriate), and to start the concrete flush with the door sill's (rather than an inch and a half below the sills).


text:
    Howard HO and Luyen Ho, wife of Howard Ho v. INTERSTATE PROPERTIES, INC., d/b/a Tanglewood Apartments, et al.
    No. 10548.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 22, 1980.
    James F. Willeford, Steeg & O’Connor, New Orleans, for Howard Ho and Luyen Ho, wife of Howard Ho.

      Montgomery, Barnett, Brown & Read, Thomas E. Loehn, New Orleans, for Interstate Properties, Inc., d/b/a Tanglewood Apartments.
    Before BOUTALL, REDMANN and LEMMON, JJ.
   BOUTALL, Judge.

Plaintiffs, former tenants of Tanglewood Apartments, sue the landlord-owners of the leased property, as well as the managers, claiming damages for unreasonable and illegal harassment and invasion of privacy designed to force plaintiffs to move from the premises. The trial court dismissed plaintiffs’ suit and they appeal.

Plaintiffs contend that the lessors failed to maintain the leased property by not repairing a dishwasher despite repeated no-, tice, not repairing an air-conditioning machine despite repeated notice, not maintaining and replacing old rotted carpet, and not painting the apartment in accordance with the lease terms. They charge that their complaints, instead of serving to obtain correction of the defects, apparently caused defendants to file two eviction suits against them, both without cause or grounds, and to cause the seizure of their automobile by the Westwego Police Department. The defendants respond that they were justified in bringing the eviction suits because the plaintiffs were in violation of the lease, and that the car was apparently abandoned and disabled, causing a hazard to the leased premises and the community.

Both sides have offered testimony in support of their positions and that testimony is in direct conflict. It is apparent that the trial judge believed the testimony of the defendants and disbelieved the testimony of plaintiffs. The documentary evidence would in general support the testimony of the defendants. Under these circumstances, we cannot say that the trial judge erred in his resolution of the issues. The evidence supports a finding that the dishwasher was repaired, and the worn carpets replaced. Despite a number of complaints that the air-conditioner was defective, no defects were found upon examination. Each eviction suit was based upon a violation of the lease and the first was dismissed when the attorney for plaintiffs agreed that plaintiffs would move. The second suit was in process when the plaintiffs finally moved. The defendants had determined that an unreported fire had taken place in plaintiffs’ apartment, damaging the apartment, and that no notification of the fire had ever been made. The removal of plaintiffs’ car was accomplished along with a number of other vehicles of which complaint was made to the Westwego Police Department as abandoned, and plaintiffs’ vehicle was noted as having remained in one spot for over one month with no battery in the vehicle and the insides torn out. Its removal appears justified.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

REDMANN, J., dissents in part.

REDMANN, Judge,

dissenting in part.

Plaintiffs might be entitled to some damages for defendants’ breach of their obligation to maintain the dishwasher in usable condition. On the other hand, despite plaintiffs’ own and an independent witness’s testimony that the stove hood was burned from the first time they saw it in 1975, the trial judge obviously believed defendants’ testimony that plaintiffs burned the stove hood late in their occupancy, and therefore defendants might be entitled to damages for that. Perhaps those two claims should about balance out, but even balancing them out would call for a division of court costs.

Except for the claim for having plaintiffs’ automobile towed away, we cannot reverse the trial judge’s rejection of other items, accepting (as we must) the trial judge’s credibility evaluation. For example, defendants’ witness conceded that plaintiffs often complained that the air conditioning would not work, but that witness testified that no problems were ever found except that on one occasion plaintiffs had the ducts closed. We are simply not in a position to reverse a trial judge’s credibility call in the absence of some physical or other indisputable evidence which makes the believed testimony inescapably false.

On the car-towing incident, nevertheless, there is no credibility question because defendants concede that they had plaintiffs’ automobile impounded by the police and the police records show that the police were told that the car was abandoned over two months. The car was parked in front of 1214 Cypress in defendant’s apartment complex and plaintiffs’ apartment was at 1215 Cypress. Defense counsel’s question-preface “If I told you the police report indicated the car had flat tires . . . ” was objectionable because the police report contained no such indication. See Wigmore on Evidence (1940 ed.) § 1808.

The main point of law is that a lessor owes to its tenants the peaceable possession of the leased premises, La.C.C. 2692(3). An apartment complex lessor breaches his obligation to maintain his tenant in peaceable possession by causing the tenant’s automobile to be impounded by the police notwithstanding that, in the lessor’s judgment, the automobile sitting in front of the tenant’s apartment “appears abandoned” and the lessor has a printed clause in his lease authorizing removal of “vehicles which appear abandoned or parked illegally . . . .” That clause in the lease can at best be interpreted to refer to vehicles which appear to the reasonable person to be abandoned, and the only evidence in this record about plaintiffs’ small foreign car’s appearance was that its back seat had been removed (plaintiffs said to make more room for newspapers their son distributed). (That the battery had been removed that weekend did not create an appearance of abandonment because the presence or absence of a battery does not appear at all, unless the car has a transparent hood.) Moreover, the lease’s authority to “remove or dispose of” does not include authority to have the police impound. It was defendants’ burden of proof to show that they acted within the authority of their lease in having the police impound plaintiffs’ automobile, and defendants did not bear that burden.

There should be judgment for plaintiffs for perhaps $750.


author: BOUTALL, Judge.

text:
    Judith Thibodaux, wife of Robert Louis BETTENCOURTT v. Robert Louis BETTENCOURTT.
    No. 10758.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 22, 1980.
    Writ Refused March 28, 1980.

      Mmahat, Gagliano, Duffy & Giordano, Jerald L. Album, Metairie, for Robert Louis Bettencourtt, defendant-appellant.
    Nel F. Vezina, Gretna, for Judith Betten-courtt, plaintiff-appellee.
    Before SAMUEL, BOUTALL and GARRISON, JJ.
   BOUTALL, Judge.

The wife files suit against her husband on the grounds of cruel treatment. Her husband reconvened and alleged cruel treatment on her part and that she abandoned the matrimonial domicile. The lower court found in favor of the wife and her husband brings the appeal. We affirm.

The parties were married on May 22, 1970. During the marriage two children were born. They lived together until October 7, 1977 when the wife was admitted into DePaul’s Hospital. The evidence is basically the testimony of the wife against the testimony of the husband. The trial court made it quite clear in its reasons for judgment that it believed’ the testimony of the wife.

In the area of domestic relations much discretion must be vested in the trial judge, and particularly in evaluating the weight of evidence which is to be resolved primarily on the basis of the credibility of witnesses. Trosclair v. Trosclair, 337 So.2d 1216 (La.App.1st Cir. 1976).

The wife’s complaints were not of physical cruelty, but mental harassment. Her complaints were of a continuing nature which started at the beginning of their marriage and lasted until their separation. He restricted her friends and constantly tried to dominate her. The stress caused by her husband was one of the factors causing her to seek psychiatric help, yet he continually protested her seeking psychiatric help.

The combination of this continued harassment' eventually became a series of studied vexations and provocations causing mental anguish and constitutes cruel treatment. Sadoff v. Sadoff (La.App.2d Cir. 1968) 210 So.2d 614. It became necessary for her to be hospitalized because of her extreme depression and be removed from the environment at home.

The husband contends cruel treatment on the part of his wife: one, that she refused to cook and clean the home; two, because of statements made by her that she no longer loved him prior to her entering De-Paul’s hospital. Also, he contends she abandoned the matrimonial domicile when she entered the hospital.

The trial court found, and the evidence shows, that Mrs. Bettencourtt kept a tidy house and cooked meals for her family. The record further shows that Mrs. Betten-courtt was under severe strain during the last few months prior to entering the hospital, and that statements made at this time concerning her lack of love for her husband were apparently made because she felt her husband constantly communicated to her that she did not really perform adequately sexually and that there was something wrong with her. These statements fall within the rule expressed in Courville v. Courville (La.App.3rd Cir. 1978) 363 So.2d 954. There the court found that actions that could normally constitute cruelty, when involuntarily induced by a pre-exist-ing mental condition would legally excuse the wife from “fault” with respect to the separation.

We find that the wife did not abandon the matrimonial domicile. She left to be admitted into the hospital. Upon leaving the hospital she returned to the matrimonial domicile.

We affirm the trial court’s judgment.

AFFIRMED.


author: JONES, Judge. PRICE, Judge,

text:
    S. Alan SEARCY et al., Plaintiffs-Appellees, v. Lucien PORTER, Jr., et al., Defendants-Appellants.
    No. 14035.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 25, 1980.
    En Banc. Rehearing Denied April 3, 1980.

      Bodenheimer, Jones, Klotz & Simmons by G. M. Bodenheimer, Jr., Shreveport, for defendants-appellants.
    James R. Malsch, Shreveport, for plaintiffs-appellees.
    Before PRICE, JONES and McCLEN-DON, JJ.
   JONES, Judge.

Plaintiffs, Alan and Dannie Searcy, sue defendants, Lucien Porter; his employer, Eagle Trucking Co.; and its insurer, Commercial Standard Ins. Co., for the wrongful death of their infant son Matthew. The father, as administrator of his son’s estate, also asserts a survival action on behalf of his son against these defendants. Liability is now admitted and defendants’ appeal seeks only a reduction of the amount of the judgment against them. Plaintiffs answer the appeal requesting increases in certain of the awards received by them. We affirm.

On August 1, 1977, decedent Matthew Ryan Searcy was riding as a passenger in a car which was collided into by a truck driven by defendant Porter who had run a red light. Matthew, a three month old child, sustained multiple cuts, abrasions, skull fractures and brain injuries in the accident. Matthew was taken to the hospital and remained conscious for lVz hours. He then became comatose and suffered respiratory arrest and two heart failures. Matthew was operated on in an emergency procedure to relieve severe pressure on his brain, but the procedure was not successful. Matthew died eight hours after the wreck.

The jury before whom the case was tried rendered verdict in favor of plaintiffs and against the three defendants in solido in the following amounts:

Dannie Searcy — $50,000

Alan Searcy individually — $48,085.20 ($40,000 as general damages and $8,085.20 as special damages)

Alan Searcy as administrator — $8,000.

The judgment appealed from is the amount of the jury verdict.

Defendants urge that the general damages awarded each of the plaintiffs are an abuse of discretion and should be reduced to $20,000 each (the highest amount possible to not constitute an abuse of discretion of the jury). Plaintiffs answer the appeal urging that the father’s general damage award should be equalized with the mother’s, that the $8,000 survival award is inadequate, and that both awards are an abuse of the jury’s discretion. The correctness of the amounts of these awards is the only issue on appeal.

Our codal guide to reviewing general damages is LSA-C.C. art. 1934(3).

“In the assessment of damages . much discretion must be left to the [trial] jury.”

The most recent Louisiana Supreme Court case analyzing this article and its application to the review of the appellate courts is Reck v. Stevens, 373 So.2d 498 (La.1979). Reck and Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976), explained that before a reviewing court can change an award made by the trial court, the record must clearly reveal that the trier of fact abused its discretion in making the award. As stated in Coco at page 335:

“We do reemphasize, however, that before a Court of Appeal can disturb an award made by a trial court that the record must clearly reveal that the trier of fact abused its discretion in making its award, [citations omitted] Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award . . . ”

The initial inquiry to be made and the role that prior awards are to play in the inquiry was first discussed in Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963). At page 158 the • supreme court stated:

“The primary question before the appellate court, then, is whether the judge or the jury in fixing the amount of the award has abused its great discretion vested in them by law . . . [Prior decisional awards] relied upon may be similar in that each of them involves a similar injury such as a broken arm, the loss of an eye or eyes, or the loss of some member of the body. Thereafter, however, the similarity ceases for each case is different, and the adequacy or inadequacy of the award should be determined by the facts or circumstances peculiar to the case under consideration.”

The method of using a scale of prior awards given for generically analogous injuries is condemned by Gaspard, supra, re-criticized by Coco, and exprobrated anew by Reck:

“Such a hypothetical scale of hypothetical awards cannot be used to determine whether or not this trier of fact has abused its discretion in the award to this particular plaintiff under the facts and circumstances peculiar to this case.” Id. pp. 500-501.
“Thus the initial inquiry must always be directed at whether the trier court’s award for the particular injuries and their effects upon this particular injured person is a clear abuse. of the trier of fact’s ‘much’ discretion, La.Civ.C. art. 1934(3) in the award of damages. It is only after articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review, for articulated reason, be considered either excessive [citations omitted] or insufficient.” Id. at 501.

See also Rogers v. Weiser Detectives & Security Services, Inc., 375 So.2d 942 (La.1979) and Rogers v. Weiser Detectives & Security Services, Inc., 378 So.2d 502 (La.App.4th Cir. 1979).

We, as the reviewing court, must find there has been an abuse of the trial jury’s-discretion before we can either raise or lower the award. To make this primary determination, the appellate court can examine prior awards only in an extremely limited role. They can be used only if the facts and circumstances of the past awards are closely similar to the award under review.

“The prior awards may serve as an aid in this determination [of whether the award constitutes an abuse of discretion] only where, on an articulated basis, the present award is shown to be greatly disproportionate to past awards (not selected past awards, but the mass of them) for (truly) ‘similar’ injuries.” Id. at 501.

If we do not find initially that the trial court’s great discretion has been abused under the facts of this case, then we shall not disturb the awards for general damages.

Decedent Matthew was Alan and Dannie Searcy’s youngest child. They have two older sons who were age four and seven at the time of trial, and there was no testimony as to their present inability to have future children. Dannie’s sister, Alan’s father, Dannie and Alan testified that for several months following Matthew’s death Alan and Dannie visited his grave daily. At the time of trial (almost two years later) they still went weekly to the gravesite and trimmed the grass around it. Dannie baked a birthday cake for Matthew on what would have been his second birthday and for the past two Christmases she had a stocking for him. Both Dannie and Alan often wonder how Matthew would look and act as compared to their other boys. The other boys bring back sad memories of Matthew to Dannie because they frequently question her about their brother. Every day Dannie sees her friend’s child, who is only two months older than Matthew would have been, and cannot help thinking how Matthew would look and act. Dannie testified that because Matthew was born on Mother’s Day, he was a special child. He seemed to her to be much older than his real age and was always alert. Alan is a registered pharmacist and active in professional organizations. The family attends Highland Baptist Church regularly. Alan participates in the YMCA’s Indian Guide program which develops father-son closeness. He sets aside weekends for the boys and his wife. Testimony from a family friend and the evidence generally reveal that the Sear-cys are devoted parents and outstanding spouses. After the accident, however, the Searcys were transformed from:

“Real happy, energetic, outgoing people” (tr. 56)

to depressed and sad persons. The Searcys were obviously deeply affected by the loss of their son, perhaps more so than other couples would have been. We do not focus, however, on what most parents would have felt but rather on the above articulated facts and circumstances which reflect the loss to these particular parents.

Reviewing our jurisprudence, we find in Meaux v. Gulf Ins. Co., 182 So. 158 (La.App.1st Cir. 1938), $1,500 was awarded to each parent for the loss of their three month old child. In this case we also find the language that compensation for the death of an infant should not be as great as for the death of an older child. This idea was reiterated in Norton v. Argonaut Ins. Co., 144 So.2d 249 (La.App.1st Cir. 1962), which gave $5,000 to each parent for the loss of a three month old child. We do not agree with this concept, and we believe that Coco and Reck, supra, would mandate against using any such broad, hard-and-fast rule to determine damages, rather than looking at the particular facts and circumstances of this particular case.

In Bell v. Sparrow, 220 So.2d 729 (La. App.lst Cir. 1969), the amount awarded to the parents of a one-hour old infant was increased to $2,500 each. Ten Thousand Dollars was awarded to the father (the only surviving parent) of a deceased 18-month old child by this court in Winzer v. Lewis, 251 So.2d 650 (La.App.2d Cir. 1971). The parents of a five-year old wrongful death victim had their awards increased to $13,350 for the father and $12,500 for the mother in Yates v. Kimble, 256 So.2d 303 (La.App.1st Cir. 1971). In Gonzales v. Xerox Corp., 329 So.2d 818 (La.App.lst Cir. 1976), $25,000 was awarded to each parent on account of the death of their four-year old child. The parents of two children, aged two and three years, received $15,000 per child in Cain v. Houston Gen. Ins. Co., 327 So.2d 526 (La.App.2d Cir. 1976). This award was made in the appellate court after reversing the trial court on liability, and there was not one word in the opinion about the relationship between the parents and the children.

In making an award to parents because of the wrongful death of their child, the shrinking value of the dollar may and should be taken into account. Johnson v. International Ins. Co., 347 So.2d 1279 (La.App.1st Cir. 1977).

None of the above cases cited had the specifically articulated facts aforementioned which serve to show the extenuating circumstances of this particular case. The problem of assessing general damages for loss of love and affection was stated in Dyson v. Gulf Modular Corp., 345 So.2d 1222 (La.App.1st Cir. 1977), at p. 1225:

“Love and affection are by their very nature subjective and the degree of devotion one has for another is an intangible human trait which, for the purpose of compensation, must be measured by objective standards. While it is difficult to say whether this is a true measure of one’s attachment to another, it remains in reality the only practical means available to our courts. Accordingly, the visible manifestations utilized to determine love and affection between a parent and child are those interactions between members of the family which tend to reflect the closeness of the family unit, the congeniality between its members, their common interests, and generally, the type of treatment and conduct which not only engenders love and affection but nurtures it to its fullest extent.”

We find the facts and circumstances here show a great deal of love and affection existing between the Searcys and their deceased son. Their conduct was of the type to engender love and affection and nurture love to its fullest extent.

Under the guidelines of Reck, supra, we find there has been no abuse of discretion in the amounts awarded to plaintiffs. Since there is no abuse of discretion, we need not reach the issue of what would have been the highest possible amount to which the awards could have been lowered.

Alan Searcy complains his general damage award should be raised to equal that of his wife. Plaintiff-appellee does not call the award of $10,000 less to him than to his wife an abuse of the trial court’s discretion but only hypothesizes that the trial jury must have confused special damages with general damages and considered the $48,085 total given Alan Searcy as comparable to the $50,000 given Dannie Searcy. He contends since he had $8,085 in special damages, his $40,000 general damages should be increased by $10,000 to equalize his award with his wife’s award, or so the plaintiff speculates. No cases are cited to show us that the $40,000 awarded to Alan Searcy constitutes an abuse of discretion. Under the language of Reck, supra, and under the facts earlier articulated, Mr. Searcy’s general damage award cannot be said to be an abuse of discretion. Awards cannot be lowered or raised simply because a party believes the jury confused the award, but only if there has been an abuse of discretion.

Plaintiff also complains that the amount awarded to him as administrator of his son’s estate is inadequate. Plaintiff argues the $8,000 for Matthew’s pain and suffering is an abuse of discretion. The record establishes that Matthew was semiconscious for IV2 hours after the accident and was comatose for the remaining 6V2 hours. Matthew’s pediatrician, who was present in the emergency room with him, testified the baby responded to painful stimuli and definitely experienced pain during the time he was semi-conscious. For the remaining 6V2 hours when Matthew was unconscious, he felt no pain.

The following cases are cited by plaintiff:

Walker v. St. Paul Ins. Companies, 339 So.2d 441 (La.App.1st Cir. 1976), in which a $2,000 award was given for 15 minute pain and suffering one decedent had after a wreck and $5,000 award for the 1-hour suffering of the other decedent; Aymond v. St. Dept. of Hwys., 333 So.2d 383 (La.App.3d Cir. 1976), in which the decedent’s pain prior to death after landing his car in a canal was compensated by an award of $7,500;
Hall v. St. Dept. of Hwys., 213 So.2d 169 (La.App.3d Cir. 1968), in which $2,000 was awarded for a few conscious minutes of pain the decedent suffered prior to drowning in her car; and
LeBlanc v. Estate of Blanchard, 266 So.2d 918 (La.App.4th Cir. 1972), in which $2,000 was awarded for a few conscious minutes of suffering the decedent suffered prior to drowning in her car.

Our own recent case of Marceleno v. St. Dept. of Hwys., 367 So.2d 882 (La.App.2d Cir. 1979), approved a $10,000 award for the 36-hours of pain decedent suffered while in a primary comatose state. There was evidence that decedent had groaned, occasionally moved her limbs, and her eyes on occasions responded to light.

In light of the articulated facts and circumstances of Matthew’s suffering before death, and in light of the mandates of Reck, supra, we find no abuse of discretion in the trial court’s award of $8,000.

The judgment is AFFIRMED at appellants’ cost.

PRICE, Judge,

dissenting.

I must respectfully dissent from the majority opinion. I do not agree with the holding that the age of the child should not be given consideration in the assessment of damages to a parent for loss of a child. It is more logical that the bonds of attachment to the child increase with each year of a child’s age in a normal parent-child relationship. Age has always been a substantial factor in the consideration of damages for such losses in all prior decisions of appellate courts. I do not believe Coco and Reck preclude consideration of the age of the child as indicated by the majority opinion.

An award of $30,000 to each parent would be more than double the amount of any prior award in a reported appellate decision in this state for the loss of a child of such a young age.

As noted in the majority opinion this court fixed an award of $15,000 for two and three-year-old children in Cain v. Houston Gen. Ins. Co., supra, in 1976.

I consider an award of $50,000 to the mother and $40,000 to the father for general damages for the death of a less than three-month-old infant an abuse of the discretion afforded the jury and would reduce the awards to $25,000 each.


author: JONES, Judge.

text:
    Elzie HEBERT, Plaintiff-Appellant, v. CONFEDERATE MEMORIAL MEDICAL CENTER et al., Defendants-Appellees.
    No. 14043.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 25, 1980.
    En Banc. Rehearing Denied April 3, 1980.
    Bruscato & Loomis by Anthony J. Brus-cato, Monroe, for plaintiff-appellant.
    William M. Cady, Asst. Atty. Gen., Shreveport, for defendants-appellees.
    Before PRICE, JONES and McCLEN-DON, JJ.
   JONES, Judge.

In this medical malpractice action against Louisiana Health & Human Resources Administration, plaintiff, Elzie Hebert, appeals the dismissal of his suit by the sustaining of an exception of prescription. We find the exception of prescription has no merit and reverse the judgment.

Plaintiff entered Confederate Memorial Hospital in Shreveport on August 23, 1971 to undergo a laminectomy. On August 31st, five days after the low back surgery was performed at the L-4 and L-5 level, an orderly employed by Confederate gave plaintiff an enema which caused plaintiff great pain. Evidence tends to establish that the enema device was not injected into the body in the proper place, but rather was forced into the area alongside the rectal canal. Plaintiff’s problem of pain in his abdomen and rectum was first diagnosed as a paralytic ileus caused as a result of the anesthesia given at the time of the disc operation. When plaintiff’s wife examined him, she found patches of what appeared to be dried black blood in the area, and she then asked that a doctor examine him. When Dr. Charles Byrd examined plaintiff on September 4, 1971 he was horrified to find air in the tissues of the rectum. He immediately had a proctoscopic examination performed upon plaintiff which revealed that the lower wall of the rectal area was black in color and necrotic in composition. The gangrene in the rectum created a life-threatening situation because of the dangers of the massive abscesses and the resulting sepsis, a rapidly spreading bloodstream infection. Plaintiff mentioned the enema to Dr. Byrd, but Dr. Byrd did not associate the painful enema with plaintiff’s rectal problem. Dr. Byrd was puzzled as-to the cause of this condition because he did not know how the infection in the rectal area was related to the laminectomy. Dr. Byrd consulted with a staff physician of the hospital, and it was decided to immediately perform a loop colostomy which would pre-' vent bowel movements in this area.

At the time the loop colostomy was performed an attempt was made to remove as much of the necrotic tissue in the rectal area as possible. Plaintiff later underwent another operation for removal of more of the necrotic tissue. These two surgeries failed to heal and repair the grossly infected rectum, and it became necessary on September 23rd to perform a total colostomy which permanently removed plaintiff’s colon. Plaintiff was discharged from Confederate on October 15, 1971.

Plaintiff testified he was unaware of the reason for the colostomy, but he thought the cause of his colostomy may have been cancer because his family physician, Dr. Tugwell, told' him, after his discharge from the hospital, that malignancies of the colon were, usually the reason for colostomies. Plaintiff first became aware that the colostomy was caused by the enema in February, 1974 when he went to Confederate for a check-up. ■ While there he overheard two doctors discussing the cause of his colostomy as being an enema. After having overheard this conversation, plaintiff secured all of his medical records from Confederate and instituted this suit on December 31, 1974.

The trial judge stressed in his reasons for judgment, wherein he found plaintiff had constructive knowledge of his malpractice action more than one year before the suit was filed, the following notation from the emergency operation report wherein the loop colostomy was performed on September 5, 1971:

“Approximately 1V» weeks post-op the patient noted after receiving an enema severe pain in the rectal area.”

The trial court concluded:

“The court holds that plaintiff had the notice required by law to begin the running of prescription and he had this notice from the time the enema was administered combined with the date of the emergency surgery Sept. 5, 1971.”

A review of plaintiff’s operation report of September 5, 1971 reflects that the full context of the section of the report from which the trial court obtained the quoted language reads as follows:

“49 year old white male admitted to the Orthopedic Service and underwent surgery on his lower back. Approximately IV2 weeks post op the patient noted after receiving an enema severe pain in the rectal area. He was found to have a necrotic area on the left anal wall and at proctoscopy, the necrosis extended up the rectum involving the left wall to approximately 11 cms. It was felt the patient should have a diverting colostomy with excision and drainage of the necrotic anal and rectal tissue.”

We do not construe this language as stating that Dr. Bagley, who signed the operating report, was diagnosing the cause of the gangrene in plaintiff’s rectum as being the enema. Dr. Byrd, who assisted in the operation, performed the initial examination when the gangrene was discovered in plaintiff’s rectum. He testified he was told of the enema but did not relate the enema to the gross infection which required the emergency surgery. Of further significance with regard to evaluating the language of the operation report of September 5 is the following statement contained on the operation report of September 23rd when the total colostomy was performed:

“49 year old white male who developed gangrene of the rectum of unknown etiology and had extensive debridement. He was presented to the staff and it was recommended that he have abdominoperi-neal resection since this area could never be adequately reconstructed and repaired. He also had a diverting colostomy done previously.”

This report was signed by Dr. Johnson, but the report reflects that Drs. Bagley and Williamson assisted him in the performance of the colostomy. It would seem that if Dr. Bagley had related the gangrene of the rectum to the enema that at the time this operation was performed he would have related this information to Dr. Johnson and it would have been incorporated in the report as the cause of the gangrene, rather than the statement that the gangrene was of “unknown etiology”. Dr. Williamson, who had assisted in this surgery, examined plaintiff in the out-patient clinic on January 8, 1972, and in his description of this examination referred to the colostomy as being required by “gangrene of the rectum beyond repair secondary to an unknown infection”.

These observations establish that at least Drs. Byrd, Johnson and Williamson did not relate plaintiff’s enema to the cause of the gangrene which required the colostomy. Though Dr. Bagley had alluded to the enema in the operation report signed by him on September 5th, this report contained no definitive statement by Dr. Bagley that he concluded the enema caused the gangrene.

Plaintiff’s family physician, Dr. Tugwell of Bastrop, with the authority of plaintiff, sought plaintiff’s medical records from Confederate having as one purpose of the request to determine the cause for the colostomy. Dr. Tugwell’s request was dated June 30, 1972 and read as follows:

“Elzie Hebert
Will you please send me the medical records on the above named patient. I am treating him now and need this information.”

In response to this request Dr. Tugwell received a letter dated July 6, 1972 from Confederate stating:

“Elzie Hebert was admitted to this hospital 8 — 23—71 discharged 10-15-71 with final diagnosis — Herniated Nucleus Pulpo-sus; Gangrene of Rectum; Wound Infection. Operative procedure; Laminecto-my; Abdomino-perineal Resection; Colostomy; Debridement of Necrotic tissue in rectum.
The patient was last seen in clinic on 5-15-72. A copy of the clinic notes is attached.”

Dr. Tugwell testified that the words “wound infection” following the words “gangrene of rectum” and separated from these words by the semi-colon contained in Confederate’s letter did not impart to him information that the gangrene of the rectum was related to any particular trauma, but rather he considered the wound infection could have related to the surgical wound created by the laminectomy or the colostomies. Dr. Tugwell’s failure to construe the words “wound infection” as throwing up a red flag with regard to the cause of the gangrene in the rectum is supported by the information contained in the out-patient clinic reports which were attached to Confederate’s July 6th letter. In these out-patient reports is Dr. Williamson’s description of his examination of plaintiff on January 8,1972 when he stated:

“4 months postop abdominal perineal resection because of gangrene of the rectum beyond repair, secondary to an unknown infection. Has done well, but returns today with complaints of pain around the colostomy and symptoms of pus draining from this area from time to time. Examination reveals no definite inflammation, no abscess, no drainage, and no evidence of infection. He has a normal temperature. Darvon-N, Valium 5 mgs. t.i.d., and Achromycin 250 mgs. q.i.d. imperically has been prescribed with t.i.d. warm soaks in the tub, for physical therapy. Return in 1 week for follow up on this treatment.
s/ Dr. Williamson/bg”.

The trial judge in his reasons for judgment stressed that Dr. Tugwell, as plaintiff’s private physician, upon obtaining the letter from Confederate dated July 6th stating plaintiff had gangrene of the rectum, should have pursued his investigation and sought further records from Confederate. The trial judge stated that if he had, he would have found the operating report of September 5th and would have found a statement made by Dr. Baskin in an out-patient clinic report regarding a visit plaintiff made on August 14, 1972, which related plaintiff’s gangrene of the rectum as occurring “following complication from an enema”.

The medical records on plaintiff’s colostomy received by Dr. Tugwell were indeed scanty, but there was no reason for Dr. Tugwell to request additional information since he had been clearly told by Dr. Williamson’s out-patient clinic report that the surgery was caused by the gangrene but that Confederate did not know the cause of the gangrene.

The only issue presented on appeal is whether plaintiff’s suit, filed within less than one year of the time when he overheard the doctors’ conversation in February 1974 to the effect that his colostomy was caused by an enema, was not timely filed because he either had actual or constructive knowledge that the enema was the cause of the infection of his rectum from other circumstances more than one year before he instituted this suit.

Prescription does not run until the party has actual or constructive knowledge of the tortious act, the damage, and the causal relationship between the tort and the damage. Knowledge of all three elements more than one year prior to the institution of the suit must be present in order for plaintiff’s action to have prescribed. Du-hon v. Saloom, 323 So.2d 202 (La.App.3d Cir. 1975), and cases cited therein. See also Quick v. Aetna Cas. & Sur. Co., 347 So.2d 59 (La.App.2d Cir. 1977).

The trial court relied upon the decision of Cartwright v. Chrysler Corp., 255 La. 598, 232 So.2d 285 (1970), and Quick, supra, as authority for sustaining defendant’s plea of prescription. Cartwright, supra, involved a case where plaintiff, seeking damages as the result of injuries sustained when her car was struck from the rear by another car, sued the manufacturer of the car which caused her injuries and the company which serviced the car. She alleged their negligence in the manufacture and service of the braking system on the vehicle caused the accident and her resulting injuries. This suit was filed more than one year after the accident. Plaintiff had earlier sued within one year of the date of the accident the driver of the vehicle which caused her injuries, alleging the accident was due to his negligent operation of the car. Following the trial of this case, the court found that the accident was not caused by the negligence of the driver, but rather was unavoidable because of sudden brake failure. Plaintiff contended her second suit was timely filed because it was filed four days after the trial of the first suit when she for the first time learned the real cause of the accident was defective brake lines in the car which collided into the rear of her automobile. The evidence established that plaintiff was told at the scene of the accident by the driver of the car which collided with her that his brakes had failed. The Cartwright case held that this information provided notice enough to require that plaintiff make further inquiry as to the exact cause of the brake failure. The court recognized the principle that actual knowledge is not required, but constructive notice exists when plaintiff acquired sufficient knowledge to “call for inquiry” and when these circumstances exist, the running of prescription commences at the time constructive notice is acquired. The court was here saying that when plaintiff acquired the knowledge at the scene of the accident that the car ran into the rear of her automobile because of brake failure, she was not required to know what part of the braking system failed or the exact cause of the failure before prescription commenced to run. The court sustained the plea of prescription.

In Quick, supra, plaintiff instituted a malpractice action based upon the blindness caused a premature baby by placing her in an incubator containing excessive oxygen. The baby was born April 8, 1973, and in September, 1973, plaintiff was told by an opthamologist:

“. . . the problem was oxygen related in that the eyes of a premature child, being extremely sensitive, may be damaged by being exposed to oxygen in an incubator.” Id. at 60.

In February 1974 plaintiff was given a pamphlet by an Association for the Blind which contained the following information:

“Then in 1954 research confirmed that RLF [a form of blindness] was not caused directly by an infant’s prematurity, or by prenatal factors, but rather by the high concentration of oxygen that was being administered routinely to premature babies.
Many premature infants, especially ‘blue babies’, must be given oxygen to survive. But investigation indicated that careful administration is required to give just enough — but not too much — oxygen and that too many babies were getting oxygen as a precaution.” Id. at 61.

The court cited Cartwright, supra, and quoted the following language from it:

“. . . whatever is notice enough to excite attention and put the owner on his guard and call for inquiry is tantamount to knowledge or notice of everything to which inquiry may lead and such information or knowledge as ought to reasonably put the owner on inquiry, is sufficient to start the running of prescription.” Id. at 61.

The suit filed by plaintiff more than one year following receipt of the pamphlet containing the quoted information had prescribed because from the information contained in the pamphlet there existed sufficient information to arouse curiosity that the cause of the baby’s blindness was connected with the administration of the oxygen in the incubator. Under these circumstances plaintiff had constructive knowledge of the alleged tort more than one year before the suit was filed. The Cartwright case where plaintiff was told on the day of the accident that it was caused by brake failure, a circumstance which would raise a red flag on the entire braking system to any auto driver, and the Quick case where plaintiff received in black and white a writing telling him that the baby’s blindness could be caused by too much oxygen in an incubator are totally factually dissimilar from those reflected by the recitation of the facts surrounding plaintiff’s colostomy. These cases are not authority for holding plaintiff had constructive knowledge of the relation between the enema and his colostomy, where evidence established that at least three physicians did not relate the forceful enema [tort] to the colostomy [damage].

In Henson v. St. Paul Fire & Marine Ins. Co., 363 So.2d 711 (La.1978), the supreme court.made the following statement with regard to constructive knowledge:

“Basically, prescription does not run against one who is ignorant of the existence of facts that would entitle him to bring suit, as long as such ignorance is not willful and does not result from his neglect.” Id. at 713.

The supreme court in the late case of Young v. Clement, 367 So.2d 828 (La.1979), made the identical statement:

“Prescription does not run against one who is ignorant of the existence of facts that would entitle him to bring a malpractice action, as long as such ignorance is not willful and does not result from his neglect.” Id. at 830.

In this case plaintiff’s malpractice action was based upon blockage of a ureter by the surgeon’s negligent stitching at the time he performed an operation on January 26,1973 removing plaintiff-wife’s ovaries and fallopian tubes. Plaintiffs’ suit also alleged that the tubes and ovaries were healthy and their removal was unwarranted. The ureter blockage was relieved by corrective surgery performed on February 1, 1973 by a surgeon other than the defendant in the suit, and this surgeon advised plaintiff that her pain was caused by a blockage of the ureter. In July, 1975, plaintiffs asked the surgeon who had removed the blockage of the ureter what had caused the blockage. They were prompted to inquire of the reason for the blockage because of rumors about the reason for the doctor’s, who had performed the initial surgery, departure from Lake Charles. Plaintiffs were told by the physician who had corrected the blockage of the ureter that it was caused by a misplaced stitch during the removal of her tubes and ovaries. Plaintiffs instituted their suit within less than one year of acquiring this knowledge. The trial court sustained the plea of prescription holding that plaintiffs should have asked the doctor what caused the blockage of the ureter when the blockage was removed in February 1973.

The trial court further held that the portion of plaintiffs’ suit directed against the wrongful removal of plaintiff-wife’s fallopian tubes and ovaries had also prescribed because the doctor who had performed the removal of these organs had shortly after the surgery read to her a pathology report which contained information that there was no acute inflammation of these organs at the time of their removal. The supreme court reversed the judgment sustaining the. plea of prescription holding that plaintiffs were not required, based upon the knowledge of the blockage of the ureter, to have asked why the blockage occurred, nor were they to be held to a superior ability to interpret the pathology report. This report contained some information which could have been construed to have justified the removal of the tubes and ovaries. The court in the opinion stressed the fact that plaintiff-husband was a butcher and both plaintiffs had confidence in the doctor who performed the surgery.

We conclude that the rationale of Young v. Clement, supra, is applicable to plaintiff, Hebert. See also Zeno v. Lincoln Gen. Hospital, 376 So.2d 1284 (La.App.2d Cir. 1979), wherein we held that a plaintiff who had a hemorrhoidectomy and removal of a rectal abscess in 1969 and who had endured pain in this area for years thereafter did not have knowledge of the malpractice until she was advised in 1977 by another doctor that the physician who had performed the surgery had cut her too deeply and that under these circumstances, her suit instituted within one year of having received this information had not prescribed.

Plaintiff, Hebert, who had only a fifth-grade education, received the forceful enema at a time when he was already enduring substantial pain and discomfort in the low back, an area of the body not far removed from the place where he received the painful enema. There is evidence establishing he was having constipation problems as an after-effect of the anesthesia he received at the time of the performance of the laminectomy. There is no reason why plaintiff should be considered as having been put on notice by the pain of the enema on August 31st that the pain and discomfort he was having in the rectal and colon area on September 5th were related to it. There can be no justification for placing this superior knowledge of the causal relation between the enema and the colostomy upon plaintiff when at least three of the physicians who participated in thé surgeries required by the gangrene of the rectum and who were aware of the enema did not relate the enema to the cause of the gangrene. Plaintiff’s ignorance cannot be said to be willful or resulting from his neglect when he had his family doctor write Confederate for the medical records and when these records were received by his physician they indicated that one of the doctors at Confederate who examined plaintiff on January 8, 1972 stated that the reason for the gangrene was unknown. Plaintiff’s family doctor was not required to consider this information unreliable and to continue to seek additional information from the hospital hoping that somewhere there could be found a reason for the infection which caused the colostomy.

The fact that there exists in the hospital records positive statements by physicians that the enema caused the gangrene, which caused the colostomy, cannot be construed as constructive knowledge on the part of plaintiff who was unaware that these opinions had been expressed by physicians familiar with his case. Neither the operation report of September 5th nor the out-patient clinic report of Dr. Baskin of August 14th, referred to by the trial judge in his reasons for judgment, was included in the information sent to Dr. Tugwell by Confederate.

We conclude that plaintiff had no notice requiring him to make additional investigations as to the cause of his colostomy which could possible be construed as constructive knowledge. Under these circumstances, the suit filed by plaintiff within less than one year after he first learned of the relationship of the enema to the colostomy in February, 1974 was timely filed.

The judgment sustaining the plea of prescription is REVERSED and the case is REMANDED for further proceedings consistent with the views herein expressed. Costs of the trial of the exception and of this appeal are assessed against defendant.


author: HALL, J.

text:
    Napoleon B. MARSHALL, Plaintiff-Appellant, v. James B. WELLS, Defendant-Appellee.
    No. 14045.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 25, 1980.
    Piper & Brown by Frank E. Brown, Jr., Shreveport, for plaintiff-appellant.
    Lunn, Irion, Switzer, Johnson & Salley by Richard H. Switzer, Shreveport, for defendant-appellee.
    Before HALL, MARVIN and McCLEN-DON, JJ.
   HALL, J.

On March 23, 1979 plaintiff, Napoleon B. Marshall, filed suit against defendant, James B. Wells, an attorney, seeking to annul and rescind a contract of employment entered into between plaintiff and his brother and the defendant in 1973 and deeds from plaintiff and his brother to defendant conveying certain real estate pursuant to the employment contract, and for reconveyance of the property with all royalties, interest, and monies collected therefrom. Defendant filed a plea of prescription of five years based on LSA-C.C. Art. 3542. The plea of prescription was sustained, plaintiff’s suit was dismissed, and plaintiff appealed.

On appeal, plaintiff contends that the contingent-fee contract for the handling of a succession was unreasonable, a breach of the attorney’s fiduciary duty for his own financial advantage and in contravention of the Code of Professional Responsibility. Plaintiff urges that the contract was in derogation of public order and good morals and, therefore, the five-year prescriptive period established by LSA-C.C. Art. 3542 is inapplicable. Plaintiff further urges that this is a personal action, governed by the ten-year prescriptive period of LSA-C.C. Art. 3544.

Plaintiff’s petition alleges: Plaintiff solicited the services of defendant and thereafter retained his services as an attorney to have plaintiff and his brother placed in possession of the estate of Josephine Byrd. Defendant performed these services and several ancillary matters in connection with leasehold rights and interests. In consideration for his services defendant was paid a retainer fee which was reasonable and commensurate with the work to be accomplished. On September 29, 1973 defendant sent a contract of employment to plaintiff, essentially contingency in nature, providing for plaintiff to pay 25 percent of whatever amount was collected if the claim was settled or 33V3 percent if it was necessary to institute a lawsuit. On or about October 29, 1973 defendant forwarded to plaintiff and his brother deeds by which they conveyed a 33Vs interest in and to the Succession of Josephine Byrd to the defendant. Defendant’s services were performed in connection with another attorney and his work and efforts were routine and required no special effort. The contract of employment was unreasonable, constituted excessive consideration for services actually performed, was overreaching, was executed by plaintiff in error, was contracted in bad faith by defendant, was an unjust enrichment, and was unethical in violation of the Code of Professional Responsibility. Plaintiff prayed that there be judgment rescinding the contract of employment and deeds and that the court declare the contract and deeds to be an absolute nullity. Plaintiff further prayed that defendant be ordered to recon.vey the subject property with all royalties, interest, and monies collected therefrom.

This suit is not a personal action but is an action to annul and rescind contracts — the contract of employment and the contracts of sale executed pursuant thereto.

There is nothing, per se, illegal or in derogation of public order or morals about a contingency-fee contract for professional-services to be rendered in connection with the handling of a succession and ancillary matters in connection with leasehold rights and interests, or in an attorney acquiring an interest in the succession property as consideration for professional services rendered. Accordingly, the contract and deeds, although perhaps voidable under the allegations of the petition, are not absolutely null and imprescriptible. See Reed v. Thomas, 355 So.2d 277 (La.App.2d Cir. 1978), writ denied 357 So.2d 1153 (La.1978). See also Fried v. Bradley, 219 La. 59, 52 So.2d 247 (1950) and Whitney National Bank of New Orleans v. Schwob, 203 La. 175, 13 So.2d 782 (1943).

It would seem, therefore, that this action seeking to annul and rescind contracts executed more than five years prior to the filing of suit is barred by the five-year prescriptive period of LSA-C.C. Art. 3542. We have, however, considered the possible applicability of LSA-C.C. Art. 2221, even though no issue is raised in the briefs. Article 2221 provides:

“In all cases, in which the action of nullity or of rescission of an agreement, is not limited to a shorter period by a particular law, that action may be brought within ten years.
“That time commences in case of violence, only from the day on which the violence has ceased; in case of error or deception, from the day on which either was discovered.
“With regard to acts executed by persons under interdiction, the time commences only from the day that the interdiction is taken off; and with regard to acts executed by minors, only from the day on which they become of age.”

According to a Law Review comment appearing in 21 Tul.L.Rev. 438 (1947):

“The apparent conflict of Articles 2221 and 3542 has confounded the jurist and confused Louisiana jurisprudence with extensive ambiguity. . . .”

The conflict between the two articles was directly presented to the Supreme Court for the first time in Mulford v. Wimbish, 2 La.Ann. 443 (1847). Minor heirs sued to annul fraudulent contracts after more than five but less than ten years had elapsed. The court held that the ten-year prescriptive period of Article 2221 was applicable and that articles governs cases of error, fraud, or violence in agreements which are expressly mentioned in the article.

The conflict between the articles was again placed at issue in Brownson v. Weeks, 47 La.Ann. 1042, 17 So. 489 (1895). In that case a woman sought the nullity of a contract of security for her husband’s debt in a suit brought six years after the death of her husband. The court held that the action was prescribed by the lapse of five years under Article 3542. The Supreme Court criticized the earlier Mulford decision holding that Article 3532, dealing specifically with prescription, was sweeping in its scope and included actions of nullity or rescission of contracts based on fraud, error, violence, and deception, which are the usual grounds for annulling and rescinding contracts.

Numerous subsequent cases have applied one article or the other without dealing specifically with the conflict between the two. See Vaughan v. Christine, 3 La.Ann. 328 (1848); Ross v. Ross, 3 La.Ann. 533 (1848); Badillo v. Tio, 6 La.Ann. 129 (1851); Calais v. Semere, 10 La.Ann. 684 (1855); Wilson v. Porter, 13 La.Ann. 407 (1858); Succession of Wilder, 22 La.Ann. 219 (1870); Blake v. Nelson, 29 La.Ann. 245 (1877); Miller v. Miller, 32 La.Ann. 437 (1880); Board of School Directors of Union Parish v. Trimble, 32 La.Ann. 793 (1880); Succession of Justus, 45 La.Ann. 190, 12 So. 130 (1893); Cox v. Lea’s Heirs, 110 La. 1030, 35 So. 275 (1902); Munholland v. Fakes, 111 La. 931, 35 So. 983 (1903); Ackerman v. Larner, 116 La. 101, 40 So. 581 (1905); Doucet v. Fenelon, 120 La. 18, 44 So. 908 (1907); Malbrough v. Roundtree, 128 La. 39, 54 So. 463 (1911); Hamilton v. Hamilton, 130 La. 302, 57 So. 935 (1912); Weathersby v. Springfield Lumber Co., 141 La. 577, 75 So. 416 (1917); Louisiana Sulphur Mining Co. v. Brimstone R. & Canal Co., 143 La. 743, 79 So. 324 (1918); Welch v. Forest Lumber Co., 151 La. 960, 92 So. 400 (1922); Strong v. Haynes, 152 La. 695, 94 So. 322 (1922); Barnes v. Barnes, 155 La. 981, 99 So. 719 (1924); Miller v. Utley-Holloway Sawmill Co., 168 La. 934, 123 So. 625 (1929); Berry v. Franklin State Bank & Trust Co., 186 La. 623, 173 So. 126 (1937); Whitney National Bank of New Orleans v. Schwob, supra; Fried v. Bradley, supra; Giuffria Realty Company v. Kathman-Landry, Inc., 173 So.2d 329 (La.App.4th Cir. 1965); Moore v. Shell Oil Company, 228 So.2d 205 (La.App.3d Cir. 1969), writ denied 255 La. 278, 230 So.2d 587 (1970); Reed v. Thomas, supra.

Our view, consistent with Brownson, is that Article 2221, the source of which was Article 1304 of the French Civil Code, established a ten-year prescriptive period for actions to annul or rescind agreements, unless a shorter period was established for such an action by a particular article of the code or statute. Article 3542, which has no counterpart in the French Civil Code, dealing specifically with prescription, establishes a shorter period for actions to annul or rescind contracts. This latter article applies to any action to annul or rescind a contract which is voidable but subject to ratification or confirmation.

Such is the nature of the action here. Although the petition is practically devoid of allegations of fact as distinguished from conclusions, it may well set forth a cause of action for nullity of the contract and deeds for error, fraud, or breach of the attorney/client relationship. See Searcy v. Novo, 188 So. 490 (La.App.2d Cir. 1939). Under the allegations, if proved, the contract and deeds may have been voidable for reasons established for the protection of individuals and subject to confirmation and ratification.

We hold this action is governed by the five-year prescriptive period of Article 3542 and since the action was not commenced until more than five years after the execution and performance of the contracts, and there are no allegations that would cause prescription to commence running at some later time, the action has prescribed. The judgment of the district court dismissing plaintiff’s suit is affirmed at appellant’s costs.

Affirmed.

      . LSA-C.C. Art. 3542:
      “The following actions are prescribed by five years:
      “That for the nullity or rescission of contracts, testaments or other acts.
      “That for the reduction of excessive donations.
      “That for the rescission of partitions and guarantee of the portions.
      “This prescription only commences against minors after their majority.”

      . LSA-C.C. Art. 3544:
      “In general, all personal actions, except those before enumerated, are prescribed by ten years.”


author: PRICE, Judge.

text:
    Richard D. ELSTON et al., Plaintiffs-Appellants, v. VALLEY ELECTRIC MEMBERSHIP CORPORATION, Defendant-Appellee.
    No. 14052.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 25, 1980.

      Goode & Overdyke by D. F. Overdyke, III, Shreveport, for plaintiffs-appellants.
    Mayer, Smith & Roberts by Walter 0. Hunter, Jr., Shreveport, for defendant-ap-pellee.
    Before PRICE, MARVIN and JONES, JJ.
   PRICE, Judge.

Plaintiffs filed this suit for damages resulting from defendant’s negligent replacement of an electrical transformer which serviced their home. Although liability was admitted by defendant, both parties appeal the trial court’s award of damages. We affirm.

In January 1977 plaintiffs began extensive remodeling of their home located on the Ellerbe Road south of Shreveport. On November 2, 1977, approximately two months after plaintiffs moved in, defendant’s employees mistakenly replaced the electrical transformer servicing the home with one of twice its capacity. This caused a surge of electricity which destroyed all the electrical appliances, light fixtures, and outlets and caused some minor cosmetic damage to the interior of the home.

Defendant conceded liability and the bulk of plaintiffs’ damages for replacement of the appliances and repairs to the home was stipulated. Trial was held regarding plaintiffs’ other items of alleged damage which included lost wages and inconvenience, mental anguish, and diminution in the market value of the home. The court awarded Mr. Elston $500 for lost wages and inconvenience but found he had sustained no mental anguish. Mrs. Elston was awarded $600 for lost wages and an additional $5,000 for her mental anguish. No recovery was allowed plaintiffs for diminution in the market value of the home.

Plaintiffs appeal claiming the trial court erred in denying Mr. Elston damages for mental anguish and in denying recovery for diminution in the market value of the home. Defendant answers the appeal contending the trial court’s award to Mrs. E1-. ston for mental anguish was improper.

Neither plaintiff was present when the initial surge of electricity occurred. Mr. Elston arrived home from a business trip shortly after the damage occurred and traced a burning odor to a television set in a bedroom. He then turned on a switch in the hall. This apparently caused a light bulb to explode. In the kitchen and in the utility room he noticed that two refrigerators and a freezer were short cycling. The refrigerator in the kitchen was hot to the touch, so he pulled it away from the wall and unplugged it. He then telephoned defendant and turned off the electricity at the outside breaker box. Mrs. Elston arrived home some time later with their two children.

For three or four years before the incident Mrs. Elston had recurring nightmares about suffocation. These nightmares caused her some anxiety but she did not seek professional help. After the damage to her home, however, these nightmares became more intense and frequent. While hysterical during one nightmare, Mrs. El-ston cut herself when she broke a bedroom window with her hands in an attempt to get air. On another occasion she found herself in an extreme panic attempting to rescue her son from imagined suffocation.

The increased frequency and severity of the nightmares prompted her to consult a psychiatrist who testified that the intensification of Mrs. Elston’s problem was directly related to the trauma caused by the electrical damage to her newly remodeled home. The psychiatrist explained that although the home was repaired and tested for safety, Mrs. Elston’s subconscious anxiety was substantially increased by the fact that the electricity had seriously malfunctioned and threatened the security of her home. This threat to the home was particularly disturbing to Mrs. Elston because she lived in the home during her childhood and had developed a strong emotional attachment to it. He further stated that her psychological condition was serious enough to pose a real threat to her life.

The cases dealing with the question of damages for mental anguish resulting from injury to one’s property reveal several different approaches as to whether or not such damages are recoverable. In Farr v. Johnson, 308 So.2d 884 (La.App.2d Cir. 1975) this court categorized the cases allowing recovery into four general areas: (1) where the property was damaged by an intentional or illegal act; (2) where the property was damaged by acts giving rise to strict or absolute liability; (3) where the property was damaged by activities amounting to a continuous nuisance; and (4) where the property was damaged under circumstances where the owner was present or nearby at the time the damage occurred and suffered a psychic trauma in the nature of or similar to a physical injury as a direct result of the incident itself.

The criteria set forth in Farr, under which recovery for mental anguish may be allowed, are not inflexible or exclusive. See Todd v. Aetna Casualty & Surety Co., 219 So.2d 538 (La.App.3rd Cir. 1969). Due to the highly subjective nature of mental anguish claims and their susceptibility to fabrication or exaggeration, our courts developed these criteria to limit recovery to cases where both the mental injury and the causal relation to the property damage are clearly established. Furthermore we note that the cases in which recovery was denied on the ground that plaintiff was not physically present when the property damage occurred emphasized that absent the circumstance of his presence, the plaintiff could not show that the anguish he suffered was directly caused by the accident. Dugas v. St. Martin Parish Police Jury, 351 So.2d 271 (La.App.3rd Cir. 1977); Hymel v. Tom Alexander Brokerage Co., 348 So.2d 104 (La.App.4th Cir. 1977). In the present case Mrs. Elston has clearly shown that she has suffered a psychic trauma in the nature of or similar to a physical injury, and that this trauma was a direct result of the damage to her home. The trial court’s award of damages to Mrs. Elston was proper, notwithstanding that she was not physically present the moment the incident occurred.

The trial court correctly rejected Mr. Elston’s claim for damages for mental anguish. In Farr, supra, we held that the “mental anguish” must be a real mental injury. The usual worry over the consequences of property damage (where a plaintiff suffers no direct mental injury from the negligent act) will not justify an award for mental anguish damages. The $500 awarded to Mr. Elston included lost wages and compensation for the inconvenience in attending to the repair of the damages.' We find no error in the trial court rejecting his demand for mental anguish damage.

Plaintiffs’ demand for damages for diminution in the market value of their home was also rejected. The wiring in the Elston home was tested after the incident and found to be safe and undamaged. Plaintiffs contend, however, that a potential buyer who knew of the accident would be apprehensive of possible future electrical problems and would consequently be less eager to purchase the home. Plaintiffs further contend that the proper measure of damage for this loss of value should be the cost of rewiring the home.

The incident caused no damage to the wiring, and therefore it is not necessary to totally rewire the house. The trial court correctly considered that plaintiffs’ claim for loss of value was speculative under these circumstances.

The expert testimony regarding the loss in market value of the home was based on an assumed possibility that the wiring was actually damaged and that a potential buyer aware of such a possibility would not be assured the home was safe without a total rewiring. Since the wiring has been tested by an expert electrical engineer and found to be safe and undamaged such a possibility does not exist.

The judgment is affirmed. Costs of this appeal shall be taxed equally to plaintiffs and defendant.