author: COLE, Judge.

text:
    Ross H. ROBERTSON, Individually and on Behalf of his minor Daughter, Janice Dianne Robertson v. Samuel TRAVIS et al.
    No. 13700.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.
    Rehearing Denied Jan. 26, 1981.

      L. B. Ponder, Jr., Amite, for plaintiff-ap-pellee.
    Johnnie A. Jones, Baton Rouge, for defendant-appellant Samuel & Charles Travis.
    Roy L. Wood, Amite, for defendant-appellant Mrs. Olevia Webb.
    Leonard Yokum, Dist. Atty., Amite, for defendant-appellant St. Helena Parish School Bd.

      Duncan S. Kemp, III, Hammond, for defendant-appellant Travelers Ins. Co.
    Jesse Lagarde, Amite, for defendant-appellant Employer’s Ins. Co.
    Iddo Pittman, Jr. & Alton Lewis, Hammond, for defendant-appellant State Farm Ins. Co.
    Before ELLIS, COLE and WATKINS, JJ.
   COLE, Judge.

Plaintiffs Ross Robertson and Janice Dianne Robertson appeal from a judgment rendered in favor of all defendants. The trial judge did not assign reasons for the judgment.

On December 7, 1966, Janice Robertson, age 9 years 11 months, was a passenger in Olevia Webb’s station wagon. Mrs. Webb was employed by the St. Helena Parish School Board as a bus driver. She used her privately owned station wagon to transport several children to and from school in Greensburg, Louisiana. The light blue-green 1963 Chevrolet station wagon was not marked as a school bus in any way.

The Webb vehicle was headed south on the Montpelier-Greensburg Road (La. Hwy. 43) and stopped approximately 3 miles south of Greensburg to allow Janice Robertson to get out of the car to go home. Janice lived down a gravel lane on the opposite side of the road so it was necessary for her to cross Highway 43 to reach her house. Testimony taken by deposition showed Mrs. Webb stopped in the right hand lane at the top of a hill opposite the gravel road. Her right wheels were slightly off the road and she applied her emergency brake and her left turn indicator. She testified she saw no cars in the rear view mirror so proceeded to get out of the car to escort Janice across the road. Janice exited from the front right door and walked around the front of the car to meet Mrs. Webb. Mrs. Webb stated in her deposition she was standing at her open front left door, crossing flag in her hand, and was about to walk Janice across the highway when a car being driven by Samuel Travis appeared suddenly from the rear. The Travis ear was also traveling south on Highway 43 and was attempting to pass the stopped Webb vehicle. Mrs. Webb stated there was no time for her to do anything but jump back into the car to avoid being hit by the Travis car. Janice, obviously confused and frightened, attempted to cross the highway alone. As she crossed the left lane she was struck by the Travis car. Janice survived the accident but was seriously injured.

Testimony at trial and by depositions showed Janice remained unconscious for 25 days. She was hospitalized for seven weeks with her body in a cast from the chest down. Her left leg was broken which has caused one leg to be slightly shorter than the other, resulting in a permanent limp. She also suffered from a concussion at the time of the accident and complains today of a seriously weakened left arm. Janice testified she feels she is mentally slower than her peers and that she found school to be so difficult she dropped out in the seventh grade.

Plaintiff filed suit against the following parties: Olevia Webb and her husband Pete Webb; Webb’s insurer, Employers’ Liability Assurance Corporation, Ltd.; St. Helena Parish School Board and its insurer Travelers Indemnity Company; and Charles Travis (Samuel’s father) as the administrator of his minor son’s estate. Plaintiff also made a claim against his own insurer, State Farm Mutual Automobile Insurance Company, to recover damages cause by any uninsured motorist.

The procedural delays in this case are phenomenal. Although the accident occurred in late 1966, numerous continuances resulted in such delay that the trial did not take place until ten years later, in September of 1976. The testimony taken at the 1976 trial was never transcribed and the record indicates the court reporter may have lost her notes. Due to the lack of the transcript, plaintiff obtained a retrial in May of 1978. Because 12 years had elapsed since the accident the witnesses were obviously not able to recall the facts with as much detail as would have been desired. This is particularly true of the several witnesses who were children at the time of the accident. Fortunately for the fact finder, depositions of several parties taken in 1968 and in 1970 were admitted into evidence. Judgment was rendered in favor of all defendants and against plaintiff. Plaintiff has appealed. Since there are numerous defendants in this suit we will discuss separately the issues concerning each.

NEGLIGENCE OF SAMUEL TRAVIS

The issue concerning Travis is whether or not his behavior fell below the standard of reasonable care. We find the trial court was not clearly wrong in rendering a judgment in favor of Samuel Travis. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), rehearing denied 1979. Travis testified he saw the Webb vehicle come to a stop and he observed Mrs. Webb standing by the side of the car. He stated he did not see anyone other than Mrs. Webb emerge from the vehicle. His contention that he did not see Janice Robertson is quite credible in that his view of the child standing in front of the car would be blocked by the vehicle itself. The Webb car was not marked in any way to indicate to Travis that the car was transporting school children. He testified he did not know Mrs. Webb and was unaware of her employment as a driver of school children.

The trial judge apparently found Travis acted reasonably in slowing his car to 40 or 45 miles per hour as he proceeded to pass the Webb vehicle. Travis saw the Webb vehicle was stationary and would not be turning left (in spite of the blinking left turn indicator). It would be reasonable for him to assume that Mrs. Webb, an adult, would not cross the road while he was passing. Since Travis’ view of the child was blocked by the Webb vehicle, he had no reason to anticipate that a child would dart from in front of the car into his lane of traffic. A motorist who is driving at a lawful and reasonable rate of speed and who is obeying rules of the road as to proper lookout will not be held liable when a child suddenly darts or runs into his path from a concealed position in such a manner that the motorist is unable to avoid striking the child. Anderson v. Janes, 234 So.2d 238 (La.App. 2d Cir. 1970).

Certainly we would be compelled to reach a different result if the station wagon had been marked as a school bus, for then Travis would have been under a duty to anticipate children would be likely to emerge from the vehicle. There are numerous statutes and jurisprudential rules governing the standard of care of drivers approaching a marked school bus, but because this car was not marked none are applicable to Travis.

For the foregoing reasons, the judgment in favor of Samuel and Charles Travis is affirmed.

NEGLIGENCE OF MRS. WEBB

The issue presented in this part of the case is whether or not Mrs. Webb breached the duty of care owed as a driver of school children. She knew her vehicle was being used as a school bus and is therefore held to the standard of care imposed upon school bus drivers. We find the trial court committed manifest error in not finding a breach of the duty owed by Mrs. Webb and that the breach was a cause of the accident. We, therefore, reverse that portion of the judgment.

School bus drivers have been likened to common carriers and although they are not insurers they must exercise the highest degree of care for their passengers. Sepulvado v. General Fire and Casualty Co., 146 So.2d 428 (La.App. 3d Cir. 1962), cert. denied 1963. Landry v. Travelers Indemnity Co., 155 So.2d 102 (La.App. 1st Cir. 1963). We find the evidence shows Mrs. Webb breached this high degree of care.

Her initial act of negligence was stopping the vehicle in the highway. La. R.S. 32:141 provides in part:

“A. Upon any highway outside of a business or residence district, no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main traveled part of the highway when it is practicable to stop, park or so leave such vehicle off such part of said highway, but in every event an unobstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicles shall be available from a distance of two hundred feet in each direction upon such highway.”

The record reflects Mrs. Webb’s car was only slightly off the highway. We find she could have pulled the car further off the road or she could have turned left onto the gravel road which led to Janice Robertson’s house. There is no reason why she had to stop on the highway, leaving the car obstructing the southbound lane of traffic. This maneuver was made even more dangerous by the fact that she stopped the car at the top of a hill.

We are aware that it is a general practice for school busses to stop in the road to unload children. However it is one thing for a clearly marked school bus, equipped with appropriate lights, signals and signs, to stop in the highway and quite another thing for a plain blue-green station wagon to stop in the highway. Although Mrs. Webb knew her car was being used as a school bus and is therefore held to the higher standard of care, there was nothing to indicate to other drivers the vehicle was transporting children. We feel this lack of notice to other motorists imposes an even greater duty upon Mrs. Webb to take extreme care in her unloading procedures. Since the car was unmarked, approaching drivers would not anticipate that children would be emerging from the vehicle. Because the car appeared to be a regular passenger vehicle rather than a school bus, we feel Mrs. Webb was required to observe the usual safety rules applicable to ordinary automobiles, such as La.R.S. 32:141.

The violation of La.R.S. 32:141 is negligence per se and if this negligence is the legal cause of the accident it is actionable. Piggly-Wiggly Operators’ Warehouse, Inc. v. Commercial Union Ins. Co., 174 So.2d 207 (La.App. 2d Cir. 1965), writ denied 1965. A motorist who parks his car on the traveled portion of the highway is a prima facie violator of this statute and in order to avoid liability for damages resulting therefrom, it is incumbent upon the violator to affirmatively show why it was necessary for him to have so parked his vehicle. Odom v. Texas Farm Products Co., 229 So.2d 118 (La.App. 2d Cir. 1969). The record shows Mrs. Webb offered no explanation as to why she had to park her car on the traveled portion of the highway. Janice Robertson lived on a gravel road directly opposite the place where Mrs. Webb stopped the ear. Mrs. Webb testified at a deposition that she chose to drop Janice off on the highway, rather than turning into the gravel road, simply because she wanted to stay ahead of the other school busses that were behind her car.

The second aspect of Mrs. Webb’s negligence was her failure to see what she should have seen after she stopped the vehicle. The dangerous situation she created by stopping in the highway required she use the utmost care in her procedure of unloading the children. She knew she was obstructing the highway by stopping her unmarked vehicle at the top of the hill. She testified she looked in her rear view mirror but did not see any cars approaching from the rear. It is conceded the position of her car, atop a hill, may have made it difficult for her to see the Travis car in the mirror. Nonetheless, as a driver of school children she was under a duty to make absolutely certain no cars were coming from behind before allowing any children to exit the car.

There is evidence in the record indicating her vision may have been blocked by certain things in the rear of the station wagon. Mrs. Webb testified she was carrying laundry in baskets in the third section of the car but that the baskets weren’t tall enough to block her vision. L. K. Travis, a passenger in the Travis car, testified he saw “hog slop” cans in the auto and that these cans prevented him from seeing the children’s heads through the rear window. Gary Mer-idy, another passenger, said he saw large garbage cans in the rear of the station wagon. Tall cans would certainly have impaired the vision of the driver in determining whether or not a car was coming from behind.

In Mire v. LaFourche Parish School Board, 62 So.2d 541 (La.App. 1st Cir. 1952), a seven year old child was struck by a car as she attempted to cross the road after alighting from a school bus. This court found that the bus driver had breached his duty to ascertain whether or not it was safe for the child to cross the highway. As a whole we find Mrs. Webb’s behavior fell well below the standard of care required of a school bus driver. We feel her actions are the proximate cause of Janice’s injuries. Under a duty-risk analysis it can easily be said Mrs. Webb had the duty to stop the car in a safe place and to make sure no vehicles were coming from behind, precisely to avoid the risk of a car striking a child as the child crossed the road.

We have no trouble finding Mrs. Webb to be on a community mission at the time of the accident. She was in the course and scope of her employment and any money earned would belong to the community. La.Civ.Code art. 2402. Therefore, her husband, as head and master of the community, is vicariously liable for her torts. Gauthier v. Henry, 255 So.2d 378 (La.App. 1st Cir. 1971); Hill v. Benoit, 358 S.2d 326 (La.App. 4th Cir. 1978).

For the above reasons, the trial court’s judgment in favor of Olevia and Pete Webb is reversed.

CANCELLATION OF THE EMPLOYERS’ POLICY

Employers’ allege the insurance policy on Mrs. Webb’s 1963 Chevrolet wagon was cancelled as of December 4, 1966. Mrs. Webb contends she received no notice of cancellation and was not aware she was uninsured until she reported the accident to her insurance agency (Carter’s Insurance Agency) the day after the accident. The issue is whether or not Employers’ notice of cancellation was effective so as to render Mrs. Webb without coverage as of the day of the accident. We note the trial court did not have to reach this issue because it found Mrs. Webb to be free of negligence. Therefore, we do not have the benefit of simply determining whether or not the trial court was clearly wrong — instead we must make a de novo determination from the facts presented in the record. Although there is conflicting evidence on this issue we find the record shows it is more probable than not Mrs. Webb did not receive notice of the cancellation. Therefore, we reverse the trial court’s judgment in favor of Employers’.

The policy in dispute (# E93-649355) was to be in effect from January 29,1966 to January 29, 1967. At a deposition in April of 1970, Prentiss Carter, owner of Carter Insurance Agency, produced several documents concerning the policy. One such document was a letter from Employers’ Ruston office informing Carter that Mrs. Webb’s policy was going to be cancelled because she had filed two claims within one year. The letter stated if Carter did not return the policy to Employers’, they would assume he wanted them to forward the “Registered Notice of Cancellation” directly to the assured. Mr. Carter also produced the original and two copies of the notice of cancellation written by Employers. The notice was dated November 23, 1966 and states that Mrs. Webb’s insurance will be cancelled as of December 4, 1966. Mrs. Webb’s name and address appears on the right hand side of the paper, Carter Insurance Agency’s name and address is on the left hand side.

La.R.S. 22:636 sets forth the requirements of notice for an insurer cancelling a policy. The statute provides “Written notice of such cancellation must be actually delivered or mailed to the insured or to his representative ... not less than five days prior to the effective date of cancellation.” There have been many cases dealing with the interpretation of this statute. Prior to 1973 the trend had been that proof of mailing was considered proof of cancellation.

This trend was reversed in Broadway v. All-Star Insurance Corporation, 285 So.2d 536 (La.1973). The court noted the purpose of notice of cancellation was to inform the insured his policy was being terminated and to allow him sufficient time to obtain other insurance. The court stated the language of the statute, “actually delivered or mailed to the insured” was subject to two interpretations. The first interpretation would be the language means the simple depositing of the notice in the U. S. mails, addressed to the insured. The court noted it was somewhat unfair to say this act alone conclusively terminated coverage. The second interpretation of the language is that “mailed to the insured” means a completed process, the transmission of the notice through the U. S. mails. The court adopted the latter definition and held that under this interpretation affirmative proof of non-delivery renders the notice ineffectual.

Therefore, in order to successfully prove cancellation Employers’ must show the notice was actually mailed to the insured. In order to defeat cancellation the insured must prove she did not receive the notice. We cannot say conclusively that Employers’ proved that the notice of cancellation was mailed to Mrs. Webb. (The notice was obviously mailed to Carter because they possessed the original and two copies.) There was no testimony by deposition or at trial by any employee of the Employers’ Ruston office concerning the mailing of the notice. Freddie Carter, Prentiss Carter’s brother and employee, testified the insurance company usually mails the original notice of cancellation to the insured and mails the copies to the agency. He could not, however, explain how the original was put into his files. He stated he assumed Mrs. Webb brought the original to his office, but he had no personal recollection of her doing so. Although it is tempting to assume Mrs. Webb received the original and brought it to the agent’s office, she denies receipt of the notice and there is simply no evidence supporting this conclusion.

There is an exhibit in the record that appears to be some sort of a receipt showing that one piece of ordinary mail was sent from the Employers’ Ruston office to Mrs. Webb at her address. The receipt is stamped by the Ruston post office on November 23, 1966. Because there is no accompanying explanation concerning this receipt, we are unable to evaluate its importance. It is obviously not a receipt for a piece of registered or certified mail. We note there is a place on the cancellation notice for the employee mailing the notice to sign his name, stating the notice was mailed on a certain date. This part of the notice is left blank.

Regardless of whether or not the above evidence proves the notice was mailed to Mrs. Webb we find the record shows Mrs. Webb has adequately proven she did not receive notice of the cancellation.

We are impressed by three factors which lead us to conclude Mrs. Webb did not receive notice of cancellation. The first piece of evidence is her unequivocal testimony that she did not receive the notice of cancellation. Her testimony taken by deposition in April 1970, was as follows:

“Q. Now, were you sent a notice of cancellation by Employers’ Group?
A. I don’t remember—
Q. On or about November the 23rd, 1977?
A. I don’t remember getting any.
Q. Could you have gotten it without remembering it?
A. I didn’t get any.
Q. It is your testimony that you did not get any?
A. That is right.
Q. Did you have an occasion to talk with Mr. Prentiss Carter after November 23, 1966 in regards to your—
A. No sir.
Q. Insurance?
A. No sir.
Q. You did not see Mrs. (sic) Carter in regards to your receiving a Notice of Cancellation from the Employers Insurance Company?
A. No sir.
“Q. I show you what purports to be a photostatic copy, which is designated Notice of Cancellation, addressed to Mrs. 0. E. Webb, Route 1, Amite, Louisiana and ask you if you ever received the original of that copy?
A. Just like that, absolutely not.
Q. Did you receive anything similar to this?
A. No.
Q. You have never received anything from the Employers Assurance Corporation?
A. No sir.”

The only evidence offered to refute her denial of receipt of notice was a statement by Frederick Carter that he recalled talking to Mrs. Webb about the cancellation sometime before the accident. A careful examination of his deposition reveals his testimony is vague and somewhat self-contradictory on this matter. Counsel questioned Mr. Carter concerning Mrs. Webb coming to his office as follows:

“Q. Do you recall whether or not this meeting between you, Mrs. Webb and your secretary — whether it took place prior to December 7th, 1966 or after December 7th, 1966?
A. I remember this much, specifically, that we discussed the cancellation prior to the accident, what date, I don’t remember.”

At another point during the deposition Frederick Carter responded to questions on the same subject as follows:

“Q. Did you have occasion to talk to Mrs. Webb that day?
A. Well, if she was in there, I am sure I did.
Q. Do you recall whether this was before the accident of December 7th, 1966?
A. When was the accident?
Q. December 7th, 1966?
A. Yes sir, yes sir. Well, I am going— this is assumption — going by the date of the cancellation. The notice is sent out prior — you have to give the assured ten days notice and the date of cancellation on here is on the 4th.
Q. And it is your recollection that Mrs. Webb came to your office prior to the accident?”
(At this point appellant’s counsel objected to the question. The question was not answered.)

After carefully studying the entire deposition we conclude Frederick Carter’s testimony concerning when Mrs. Webb came into his office is something less than definite. It must be remembered that almost four years had passed from the time of the alleged cancellation and the time of the deposition. We feel Mrs. Webb’s testimony is more certain on the matter.

The second factor which persuades us that Mrs. Webb has shown she did not receive the notice is that no one can explain how Carter came into possession of the original of the notice. Mrs. Webb firmly stated she had never seen the notice and she did not bring it to the insurance agency. There is no evidence to refute her statements. Frederick Carter admitted he had no personal recollection of Mrs. Webb bringing the notice to the agency. He could only say he assumed she had done so, because the customer usually receives the original. He conceded it was possible the original was sent by error to the agency rather than to Mrs. Webb.

The third factor that influences our findings is a subtle but significant situation. Frederick Carter testified his theory was that Mrs. Webb received the original notice from Employers’ and came to his office prior to the accident to discuss the cancellation of her policy. If this were the case, why did Carter Insurance do nothing to obtain more insurance for Mrs. Webb until after the accident? It seems logical that if Mrs. Webb was aware she was soon to be uninsured, she would have instructed the agency to apply for other insurance in her behalf. Yet nothing was done to obtain more insurance until after Mrs. Webb called the office on December 8, 1966 and found her policy had been cancelled.

The very fact she called the office to report her accident can be taken as an indication she believed she was insured. Such a call would have been a futile effort if Mrs. Webb had known her policy had been cancelled. We feel the Carters’ absence of action to reinsure is an indication Mrs. Webb had not previously come to their office to discuss the cancellation. This fact, coupled with the fact there was no explanation as to how the original notice came into Carter’s possession, indicates it is more probable than not Mrs. Webb never received notice of cancellation.

For these reasons, the judgment in favor of Employers’ Liability Assurance Corporation Limited is reversed. Employers’ is cast for the full amount of their policy limits ($5,000), plus legal interest from date of judicial demand.

CONTRIBUTORY NEGLIGENCE OF JANICE ROBERTSON

Appellees State Farm and Employers’ urge Janice Robertson should be barred from recovery because of her contributory negligence. We concede if Janice had been an adult her behavior would be characterized as being below that behavior required by a reasonable adult in the same circumstances. It is well settled that a child of nine or ten years old may be guilty of contributory negligence. Jones v. Firemen’s Insurance Co. of Newark, 240 So.2d 780 (La.App. 2d Cir. 1970), writ refused 1970. However, it is also well established the contributory negligence of a child is not measured by the same standard of care as an adult, but only by the self-care expected of a child of similar age, intelligence and experience, under the particular circumstances of the case. Dufrene v. Dixie Automobile Ins. Co., 373 So.2d 162 (La.1979), on remand for issue of quantum 376 So.2d 507 (La.App. 4th Cir. 1979), writ refused 378 So.2d 1390 (1980).

Appellees cite Jones v. Firemen’s, supra, for the proposition that a child of ten years is contributorily negligent when crossing a highway into the path of an oncoming car. The facts of Jones are similar to the instant case in that a child almost ten years old exited a car from the right hand lane of the highway and crossed the highway to reach her house. She was struck by an oncoming car as she attempted to cross. The court held the child was contributorily negligent because the evidence showed she was an extremely bright child and was familiar with the dangers of the highway. She had lived in the same house all her life and had crossed this highway in the same manner innumerable times.

The facts of the present case are distinguishable from Jones. There is no evidence in the record that Janice Robertson was a bright child. The evidence shows she was a less than average student, as illustrated by the fact she was in the third grade for three consecutive years and dropped out of school in the seventh grade. The most significant difference in the two cases is the relationship between the driver and the child. In Jones the driver was a friend of the family with no special duty or obligation to help the child cross the road. The child was accustomed to crossing the road alone and was used to relying upon her own judgment in crossing safely. Mrs. Webb, however, occupied the status of a school bus driver and had an extraordinary duty to see that the child crossed the road safely. Janice had lived in the area for only three weeks and was just beginning to become familiar with the procedure of crossing the highway. As a student under Mrs. Webb’s supervision she was accustomed to relying upon Mrs. Webb’s instructions in crossing the road, rather than upon her own judgment. Unlike the Jones child who was on her own from the moment she emerged from the car, Janice was completely dependent upon Mrs. Webb’s guidance in crossing. Mrs. Webb had initiated the unloading procedure and was supervising Janice’s crossing at the moment of the accident. We find under these facts, Janice Robertson was not contributorily negligent.

We realize the determination of contributory negligence is a difficult inquiry. Because there were no reasons for judgment we do not know if the trial court found Janice to be contributorily negligent or if the court found the defendants to be free of negligence. Any uncertainties about Janice’s contributory negligence can be settled by the “sudden emergency doctrine.” The doctrine is based upon the theory a person confronted with a sudden emergency (not of his own making) is not held to the same degree of care as when he has time for reflection. LaCour v. Continental Southern Lines, Inc., 124 So.2d 588 (La.App. 1st Cir. 1960). This rule has been applied to a plaintiff’s behavior so that it is appropriate to consider a sudden emergency when evaluating contributory negligence. Hickman v. Southern Pacific Transport Company, 262 So.2d 385 (La.1972), rehearing denied 1972.

In this instance Janice found herself faced with a sudden emergency. She was a young child accustomed to relying upon the instructions of her driver while crossing the road. She was instructed to get out of the car and understood Mrs. Webb would get out with her flag and escort her across the road. As the crossing procedure was about to take place Janice became aware of a car bearing down toward her. She saw her driver suddenly jump back into the car and close the door, leaving her quite alone on the highway near the path of the oncoming car. Mrs. Webb’s action of jumping back into the car indicated to Janice that danger was imminent. Faced with this emergency she panicked, moved in the wrong direction, and was struck by the car. This behavior is certainly not what one would expect if there had been time for cool reflection. Yet the law does not expect one to exercise the same degree of judgment in an emergency where his personal safety is threatened as would be expected in a situation where he is not subject to the fear of sudden disaster. Snodgrass v. Centanni, 229 La. 915, 87 So.2d 127 (La.1956). Because of the emergency situation, we feel Janice’s behavior should not bar her recovery.

STATE FARM’S UNINSURED MOTORIST COVERAGE

The issue presented here is whether or not appellant is entitled to recover from State Farm Mutual, his uninsured motorist carrier. Appellant’s petition sought recovery from State Farm in the event any of the responsible defendants were uninsured motorists.

Defendant Samuel Travis is an uninsured motorist but has been found not negligent so there can be no recovery based on his actions. The other motorist, Mrs. Webb, is insured. Although La.R.S. 22:1406 was amended in 1972 and 1974 to allow an insured to collect from his uninsured motorist coverage for damage caused by an “underinsured” motorist, this amendment has been held to have prospective application only. Walker v. Landry, 336 So.2d 951 (La.App. 3d Cir. 1976), Smith v. State Farm Mutual Automobile Ins. Co., 328 So.2d 679 (La.App. 3d Cir. 1976). Since the accident occurred in 1966 appellant cannot take advantage of the underinsured motorist provision. Therefore, appellant is not entitled to recover from his uninsured motorist carrier.

For these reasons, the judgment in favor of State Farm Mutual is affirmed.

LIABILITY OF ST. HELENA PARISH SCHOOL BOARD

Sovereign Immunity

The issue that concerns us here is whether or not the School Board is immune from suit. We find it is not. The doctrine of sovereign immunity was abrogated in Board of Commissioners of Port of New Orleans v. Splendour Shipping and Enterprises Company, Inc., 273 So.2d 19 (La. 1973), rehearing denied 1973. The court reasoned in that case the doctrine of sovereign immunity was jurisprudentially created rather than constitutionally created. The court held “... the Board of Commissioners of the Port of New Orleans, and other such boards and agencies, are not immune from suit for tort.”

The theory of Splendour was made a part of the 1974 Constitution. Art. XII, § 10 proscribes immunity as to the state, state agencies and political subdivision for suit and liability in contract and tort. In 1975 the Supreme Court was faced with the issue of whether or not the abolition was effective for causes of action arising prior to the effective date of the 1974 constitution, which is midnight of December 31, 1974. La.Const. art. XIV, § 35. In Darville v. Associated Indemnity Corporation, 323 So.2d 441 (La.1975), the court refused to allow the Department of Corrections to plead governmental immunity, even though the cause of action arose in 1972, prior to the effective date of the 1974 constitution.

This court, in Muse v. St. Paul Fire and Marine Insurance Company, 328 So.2d 698 (La.App. 1st Cir. 1976), held the Department of Health and Human Resources could not claim governmental immunity, even for a cause of action arising prior to the effective date of the 1974 constitution. The same decision was made concerning a defendant school board in Genusa v. Krulee, 305 So.2d 752 (La.App. 4th Cir. 1974). The jurisprudence clearly establishes the St. Helena Parish School Board cannot claim to be immune from suit.

Direct Negligence of the School Board

Plaintiff alleges direct negligence of the school board in failing to comply with statutes requiring certain markings on school busses. La.R.S. 32:318 requires school busses to be marked with certain lights and colors. La.R.S. 32:1 defines a school bus as a motor vehicle designed to carry more than ten people. The record shows Mrs. Webb’s car was a nine passenger station wagon. Her vehicle does not fit the definition of a bus and is therefore not required to meet the standards set forth in La.R.S. 32:318.

For this reason, we find no direct negligence on the part of the School Board.

Vicarious Liability

Appellant alleges the School Board is vicariously liable for the torts of its employee, Olevia Webb. La.Civ.Code art. 2320. In order to establish vicarious liability it must be proven a master-servant relationship existed and the tortious act was committed within the scope and during the course of the employment. St. Paul Fire & Marine Insurance Co. v. Roberts, 331 So.2d 529 (La.App. 1st Cir. 1976).

There is no dispute that Mrs. Webb was an employee of the St. Helena Parish School Board. She so testified and this fact was not questioned during discovery or during trial. The evidence clearly established Mrs. Webb was within the scope and course of her employment when the accident occurred. She was employed as a school bus driver and at the precise moment of the accident she was supervising a child leaving the school bus and crossing the highway.

We find the School Board to be vicariously liable and for the foregoing reasons the judgment in favor of the School Board is reversed.

LIABILITY OF TRAVELERS

The only issue as to Travelers is whether or not an exclusion in the insurance policy absolves them from any liability for the negligence of the St. Helena Parish School Board or its employees. An endorsement to the policy reads as follows:

“The insurance applies to the transportation hazard except in connection with watercraft, automobiles or aircraft owned, operated or hired by or for the insured or any officer, employee or member of the teaching, supervising or administrative staff of the insured. For the purpose of this paragraph the word ‘hired’ shall be deemed to include any contract to furnish transportation of pupils to and from school.”

The endorsement is clear and requires no further discussion. The policy obviously does not cover injuries that arise out of the transportation of pupils to and from school. We therefore affirm the judgment in favor of defendant Travelers Insurance Company.

QUANTUM

Because the trial court found plaintiffs were not entitled to recover from any defendant it did not address the issue of quantum. The record supports an award of $1,133.80 for plaintiff, Ross H. Robertson, and an award of $35,000 for plaintiff, Janice Dianne Robertson. These sums, for medical expenses and for personal injuries, are to bear legal interest from date of judicial demand. We note The Charity Hospital of Louisiana at New Orleans has previously made demand upon Ross H. Robertson for all but $55.00 of the amount awarded him for the medical expenses which he incurred as a result of his daughter’s injuries. If its demand has not been satisfied, Robertson is obligated to reimburse the hospital out of amounts paid to him by the judgment debtors.

CONCLUSION

For the above and foregoing reasons, we affirm the judgment of the trial court insofar as it dismisses plaintiffs’ demands against Samuel Travis, Charles Travis, State Farm Mutual Automobile Insurance Company and Travelers Indemnity Company; and, we reverse that part of the judgment rendered in favor of Olevia Webb, Pete Webb, Employers’ Liability Assurance Corporation, Ltd., and the St. Helena Parish School Board.

Judgment is now rendered in favor of plaintiff, Ross H. Robertson, and against the defendants, Olevia Webb, Pete Webb, Employers’ Liability Assurance Corporation, Ltd., and the St. Helena Parish School Board, in solido, for the sum of $1,133.80, plus legal interest thereon from date of judicial demand, until paid.

Judgment is further rendered in favor of plaintiff, Janice Dianne Robertson, and against the defendants, Olevia Webb, Pete Webb, Employers’ Liability Assurance Corporation, Ltd., and the St. Helena Parish School Board, in solido, for the sum of $35,-000, plus legal interest thereon from date of judicial demand, until paid.

The liability of Employers’ Liability Assurance Corporation, Ltd. for the sums awarded plaintiffs is limited to its policy limits.

Costs are assessed one-third to Olevia and Pete Webb; one-third to Employers’ Liability Assurance Corporation, Ltd.; and one-third to the St. Helena Parish School Board, subject to any applicable statutory exemptions.

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

      . When this suit was initially filed Janice Robertson was a minor. When she became of age she joined the suit as a proper party plaintiff.

      . Plaintiff alleged that Mrs. Webb was on a community mission at the time of the accident.

      . Art. 2402 has now been replaced by art. 2338 as a part of the revision of the matrimonial regime law.

      . The court so held in spite of La.Const. art. XIV, § 33, which says the waiver is effective only for causes of action arising after the effective date.


source: Caselaw Access Project

license: Public Domain

text:
    Donna MARYLAND v. WINN-DIXIE, LOUISIANA, INC.
    No. 13766.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.
    Rehearing Denied Jan. 26, 1981.
    Writ Refused April 6, 1981.

      Gordon Hackman, Boutte, for plaintiff and appellant.
    Robert Peyton, New Orleans, for defendant and appellant.
    Before ELLIS, COLE and WATKINS, JJ.
   COLE, Judge.

The issue in this slip and fall case is whether or not the defendant store has exculpated itself from liability. Because we find the evidence shows defendant has sufficiently rebutted the presumption of negligence, we reverse the judgment of the trial court.

Both parties to this suit have appealed. Defendant Winn-Dixie argues direct evidence showed the foreign substance was on the floor only a few minutes before the accident occurred and therefore the presumption of negligence is rebutted. Plaintiff Donna Maryland appeals to have the amount of judgment increased.

The facts of the case are as follows: On November 3, 1977, Donna Maryland was shopping in a Winn-Dixie store in Houma, Louisiana. Just as she was ready to check out, she remembered she wanted to purchase some beer. She left her grocery cart near the check out stand with her companion, McKinley Carter, and quickly walked toward the part of the store where the beer was displayed. When she reached a spot directly in front of the manager’s office, she slipped on a foreign substance and fell to the floor. She was helped up by a customer and she complained of leg and back pain.

The substance was later identified as cole slaw. It covered a four to five inch area on the floor and the one-half pint container and lid lay near by. It is well settled that once a customer proves a foreign substance was on the floor, she did not see the substance, she stepped into the substance and the substance caused her to slip, fall and be injured, the defendant store is required to exculpate itself by rebutting the presumption of negligence. Gonzales v. Winn-Dixie, Louisiana, Inc., 326 So.2d 486 (La.1976). The store usually exculpates itself by showing there were periodic inspections of the floor area. Gonzales, supra; McCauley v. Nicholas, 297 So.2d 914 (La. App. 1st Cir. 1974).

The testimony at trial showed there were no periodic inspections in this store. The policy was that every employee was to be constantly watching the floor for accident hazards. The manager, Mr. Irvin Landry, testified by deposition that it was his job to constantly inspect the floor when on duty. Based on this testimony alone, we would have to conclude defendant had not exculpated itself. But we need not concern ourselves with the requirement of periodic inspections because the record contains direct evidence the cole slaw was on the floor for only a few moments before the accident.

It must be noted that the rationale behind the requirement of periodic inspections is to insure that foreign substances do not remain on the floor for unreasonable periods of time. Gonzales, supra. Kevin Na-quin, the assistant manager, testified he was stocking a shelf down the aisle from where the accident occurred. Shortly before the accident he left his position on the aisle, passed over the spot where Ms. Maryland later fell, and walked to the manager’s office to greet some visitors. After fifteen minutes he left the manager’s office, again passing the scene of the accident, returned to his place on the aisle and resumed stocking the shelves. He then became aware Ms. Maryland had fallen as he observed a customer helping her off the floor. He stated the cole slaw and the container were clearly visible on the floor.

Mr. Naquin testified he was well aware of his duty to constantly survey the floor for foreign substances. He stated he did not see any cole slaw when he passed over the exact spot of the accident moments before. Naquin estimated only two minutes had passed from the time he walked over the accident site until the time he saw Ms. Maryland being helped to her feet. We feel Naquin’s testimony establishes that more probably than not, the cole slaw was not on the floor when he walked through the area two minutes before the accident. The cole slaw had spilled from a half-pint container. The spot was four to five inches big and the container and lid were clearly visible on the floor. We conclude this assistant manager, instructed to constantly watch for hazards, would have seen the cole slaw had it been on the floor when he passed the area several minutes before the accident. The evidence indicates the cole slaw was dropped only a moment before Ms. Maryland stepped in it.

In light of this evidence, we are obligated to hold the defendant store has exculpated itself from the presumption of negligence. To hold otherwise would be to place an impossible burden on stores and would be holding them strictly liable for any slip and fall accident. Without even reaching the issue of periodic inspections (which simply raises the implication as to how long the substance has been on the floor) we hold the store was not negligent because the cole slaw had been on the floor for only a few minutes.

Perhaps our reasoning can be illustrated best in terms of causation analysis. In most cases, the lack of periodic inspections is presumed to have been a cause in fact as well as the proximate cause of the accident. Typically, one can say but for the lack of periodic inspection the foreign substance would have been discovered before passage of an unreasonable amount of time and the accident therefore would have been avoided. Under a duty-risk analysis it can easily be said a store owner has a duty to make periodic inspections to protect against the risk of having foreign substances on the floor for an unreasonable length of time. In the present case we cannot say the lack of inspection is a cause in fact of the accident. We cannot say but for the lack of periodic inspections the substance would have been discovered and the accident wouldn’t have occurred. The evidence shows the cole slaw was on the floor only a few moments. Even if periodic inspections had been scheduled every half hour or every fifteen minutes the substance would not have been discovered by the time Ms. Maryland stepped in it.

For the foregoing reasons, the judgment of the trial court is reversed. Plaintiff Donna Maryland is to pay all costs of these proceedings.

REVERSED.


text:
    UNITED BRIDGE COMPANY, INC. v. LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 13773.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.
    Rehearing Denied Jan. 26, 1981.
    Thomas R. Elkins, Baton Rouge, counsel for plaintiff-appellee United Bridge Company, Inc.
    Sharon F. Lyles, Executive Asst. Gen. Counsel, James B. Frederick, Jr., Baton Rouge, counsel for defendant-appellant Louisiana Department of Transportation and Development.
    Before ELLIS, COLE and WATKINS, JJ.
   COLE, Judge.

Louisiana Department of Transportation and Development (DOTD) appeals a judgment rendered in favor of United Bridge Company, Inc. The issue presented is whether or not appellee has proven by a preponderance of the evidence DOTD prevented United Bridge from following specifications in fulfillment of a bridge construction contract. United Bridge alleges DOTD interfered with the work and forced United Bridge to accept DOTD’s interpretation of certain specifications concerning concrete mixing. United Bridge argues this interference resulted in part of the project being rendered unacceptable which DOTD ordered replaced. Plaintiff seeks to be reimbursed for its expenses in reconstructing that part of the bridge span. The parties stipulated to damages of $36,250.27 in the event liability was proven at trial. After a careful examination of the record we find the trial court was clearly wrong in concluding plaintiff proved its case by a preponderance of the evidence. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), rehearing denied 1979.

This case arose from the “Bayou Chene Bridge and Approaches” project in Jefferson Davis Parish. The contract provided the specifications for the project would be governed by the 1977 edition of the Louisiana Standard Specifications for Roads and Bridges. On July 26, 1978 appellee was in the process of laying a slab for a bridge span when a dispute arose as to the interpretation of § 901.12(c) of the specifications. This section dealt with the mixing standard for concrete and read in part as follows:

“. . . When a truck mixer is used for complete mixing, each batch shall be mixed for not less than 70 nor more than 100 revolutions of the drum or blades at the rate of rotation designated as mixing speed by the manufacturer of the equipment on the metal plate on the mixer....
“When the prescribed water is added at the batching plant and the slump is on the low side at the delivery site, it will be permissible to add a minimum of 75 percent of the mixing water at the time the cement and aggregates are added at the batching plant and the remaining mixing water at the job site, provided additional mixing is performed at the job site to insure thorough incorporation of the added water into the mix. The truck mixer shall be equipped with means of accurately measuring the amount of water used in each batch. The additional mixing shall be within the range of 20 to 30 revolutions at mixing speed. Water added at the job site shall not exceed the water-cement ratio.”

Three interpretations of this section were offered at trial. Mr. William Hansel, superintendent for United Bridge, testified he interpreted the section to mean that as long as the water-cement ratio and time limits were met, there was no limit as to how often water could be added or how many revolutions could be made at the job site. He stated the 100 revolution limit pertained to situations where all water was added at once at the cement plant and had no application at all to water added at the job site. In the case the concrete had been turned 70 times at the plant. Mr. Hansel contended it could have been turned as many times as necessary at the job site in order to achieve the desired moisture.

Mr. Fitzhugh Cox, District Construction Engineer for DOTD testified he interpreted § 901.12(c) to mean the total number of rotations could not exceed 100. Therefore, if a batch had been rotated 70 times at the plant it could only have been rotated 30 times at the job site. He stated too much mixing would weaken the strength of the concrete.

The third interpretation is that of DOTD as set forth in an interdepartmental memorandum circulated after this incident. In a memorandum dated August 7, 1978, DOTD stated § 901.12(c) was to be interpreted to mean that the total maximum revolutions allowable was 130, 70 at the plant and 30 revolutions for each of the two allowable additions of water at the job site.

The information concerning the various interpretations of the specification is pertinent only in understanding the background of the controversy. The ultimate determination to be made upon review is a purely factual one. Did DOTD prevent Mr. Hansel from adding water pursuant to his own interpretation of the specification? We find the testimony shows plaintiff has failed to prove by a preponderance of the evidence that Mr. Hansel was impeded from adding the extra water to the batch. To the contrary, we find defendant DOTD has proven Mr. Hansel proceeded to add the water as he desired, in spite of the protests of the DOTD employees.

At trial Mr. Hansel testified he added ten gallons of water to the mixing truck in question (the truck was officially truck # 3 but is referred to in the record as “the second truck” because it was second in line). He stated the concrete was still too dry so he attempted to add water a second time but was prevented from doing so by Mr. LeBlanc, the project engineer. No other witnesses testified to support Mr. Hansel’s testimony. One exhibit, a “batch ticket” showed the truck in question had turned only 25 revolutions at the job site, indicating water was added only once.

Testimony by three DOTD employees directly contradicted Mr. Hansel’s testimony. Lester LeBlanc testified Mr. Hansel added water three times to the truck, turning the truck 20 to 30 revolutions after each addition. He stated he advised Mr. Hansel not to add more water after the first addition, but Hansel ignored his warnings. Mr. Le-Blanc specifically told Hansel that it was against specifications, as interpreted by Mr. Cox, to add water more than once.

Mr. John Young, a certified concrete technician for DOTD testified Hansel added water three times with twenty to thirty revolutions after each. He stated he heard Mr. LeBlanc inform Mr. Hansel that specifications had been broken when water was added the second time. Young acknowledged the batch ticket showed only 25 revolutions but said the employee marking the ticket was working his first day of the job at that time. He felt the employee didn’t fully understand his duties in marking the revolutions and marked only the last cycle of turns rather than the complete number. The DOTD employees felt it was useless to correct the ticket at the time because they were well aware specifications had been violated and the slab was going to have to be torn down. He explained the employee who wrote the ticket, Darold Watson, left the department a few months after the incident in question. He was not called as a witness.

Robert Broussard, another certified concrete technician and inspector for DOTD, gave testimony corroborating that of Le-Blanc and Young. He was present on the job site at the time of the incident and testified unequivocally Hansel added water to the truck three times with approximately 20 revolutions being applied after each addition. He concluded his additional testimony, if adduced, would be substantially the same as that of Mr. Young.

A fourth employee of DOTD, Mr. Fit-zhugh Cox, testified he had a pre-job conference with Mr. Hansel and explained his interpretation of the section dealing with mixing revolutions and addition of water. (Mr. Hansel did not have recall of any such meeting or discussion.) Mr. Cox stated Mr. Hansel did not question his interpretation of the section at the pre-job meeting. Cox testified Hansel called him from the job site on July 26, 1978 to inform him of the trouble with the dry concrete. He said no questions were raised at that time about the addition of more water. Hansel asked if he could proceed with the work by putting in a horizontal joint. Cox informed him a joint would not be satisfactory and the slab would have to be torn out.

In his brief reasons for judgment the trial judge indicated he was impressed by the batch ticket which showed the concrete had been turned only 25 times at the job site. We are satisfied with the explanation given by John Young concerning the error made by the new employee. The trial court noted the employee who wrote the batch ticket, Darold Watson, was not called as a witness. This statement alludes to a negative inference that is sometimes drawn from the failure to call a witness. We feel such an inference is unjustified in this case. Professor George W. Pugh discussed this inference in a law review article as follows:

“Whether in a particular trial a party’s failure to call a witness is to be used against him is so much a part of the context in which it arises that it is extremely difficult to formulate hard and fast rules which will govern in future cases.” The Work of the Louisiana Appellate Courts for the 1967-68 Term — Evidence, 29 La.L.Rev. 310, 318 (1969).

Mr. Pugh goes on to say that normally the failure to call a witness should not create an inference that the testimony would have been unfavorable. We feel in the context of the present case, no negative inference should be drawn. Mr. Young explained the employee worked for only several months and was no longer employed by the DOTD. In light of the abundance of direct testimony that the mixing truck was turned 60 to 90 times at the job site (20 to 30 revolutions after each addition), DOTD may have deemed it unnecessary to call this witness to explain the alleged error on the ticket. Regardless, the testimony of Darold Watson would seem to be on the side of United Bridge, if called, as the ticket indicated only one addition of water was made at the bridge site. If anything, the failure to call Watson should create an inference or presumption his testimony would not have been favorable to United Bridge. However, since his whereabouts were apparently unknown, no unfavorable presumption should result against either plaintiff or defendant. Universal C. I. T. Corp. v. Kennedy, 185 So.2d 542 (La.App. 1st Cir. 1966).

The trial judge also mentioned there was obviously some ambiguity in the specification, as illustrated by the interdepartmental memorandum circulated later. Although we agree the pertinent specification was ambiguous, the ambiguity is irrelevant to plaintiff’s burden of proof. Plaintiff alleges Mr. Hansel was prevented from adding the water in the manner he deemed to be in accordance with the specifications and this lack of water caused the concrete to be faulty. The evidence shows he did add the water as desired, in spite of the warnings by the DOTD employees. Since we find Hansel added the water three times, the issue of ambiguity of the specification becomes irrelevant. Plaintiff has simply failed to prove his case by a preponderance of the evidence.

For the foregoing reasons, the judgment of the trial court is reversed. Appellee United Bridge is to pay all costs of these proceedings.

REVERSED.


text:
    Nita L. LINDNER v. BEER AND LIQUOR AD HOC STUDY COMMITTEE et al.
    No. 13776.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.
    Writ Granted Feb. 13, 1981.
    Frank M. Coates, Jr., Baton Rouge, for plaintiff-appellee Nita Laverdet-Lindner.
    Charles M. Raymond, Asst. Parish Atty., East Baton Rouge, Mary Olive Pierson, Baton Rouge, for defendants-appellants Beer & Liquor ad hoc Study Committee of the Councils of the City of Baton Rouge and the Parish of East Baton Rouge and Allen West.

      Before ELLIS, COLE and WATKINS, JJ.
   COLE, Judge.

Allen West and the Beer and Liquor Ad Hoc Study Committee appeal a judgment rendered in favor of appellee, ordering a writ of mandamus to be issued directing appellants to permit appellee to inspect and copy certain documents. The issues raised on appeal are whether or not the trial judge erred in overruling an exception of prematurity and whether or not Allen West is the custodian of the records.

The Ad Hoc committee had been created by the city and parish councils for the purpose of studying and recommending possible changes to the local beer and liquor ordinances. Allen West, a member of the committee, prepared certain proposed changes and circulated typed copies to the various members of the committee. Mr. West testified at trial he was undecided whether or not he would present the proposals to the committee as a formal presentation. He stated he circulated the copies in order to receive input from the other committee members.

On May 8, 1980, appellee asked Mr. West to supply her with a copy of the proposed changes. He refused to comply. On May 9, 1980, appellee filed suit under La.R.S. 44:31 which allows any person of the age of majority to inspect and copy any public record, subject to certain exceptions. Prior to trial appellants filed a dilatory exception, raising the objection of prematurity. La.Code Civ.P. art. 926. They argued that under La.R.S. 44:35(A), appellee should not have filed suit until the passage of five judicial days. The statute reads as follows:

“A. Any person who has been denied the right to inspect or copy a record under the provisions of this Chapter, either by a final determination of the custodian or by the passage of five days, exclusive of Saturdays, Sundays and legal public holidays, from the date of his request without receiving a final determination in writing by the custodian, may institute proceedings for the issuance of a writ of mandamus, injunctive or declaratory relief, together with attorney’s fees, costs and damages as provided for by this Section, in the district court for the parish in which the office of the custodian is located.” (Emphasis supplied.)

The trial judge overruled the exception, noting the statute granted the right to sue when there had been a final determination by the custodian or the passage of five judicial days. The judge concluded Mr. West was the custodian of the records and since he had unequivocally refused to allow appellee to inspect the records, there had been a final determination by the custodian.

We disagree with the conclusion of the trial judge. A custodian is defined by La.R.S. 44:1 as follows:

“(3) As used in this Chapter, the word ‘custodian’ means the public official or head of any public body having custody or control of a public record, or a representative specifically authorized by him to respond to requests to inspect any such public records.”

Testimony at trial clearly established Mr. Lynn Williams is the chairman of the ad hoc committee and, as such, is head of the public body having control of the records. No evidence was put forth to show Mr. West was a public official or head of the public body from which appellee sought access to records. Nor was Mr. West authorized to respond to requests to inspect the records. Therefore, Mr. West clearly does not fit the definition of custodian as set forth by the statute. Since he is not the custodian of the records, it was error for the trial judge to conclude there had been a final determination by the custodian. Ap-pellee’s suit was filed before any request was made of the person designated by law to respond and, therefore, the suit was filed prematurely.

We are aware the Public Records Law must be liberally interpreted so as to extend rather than restrict access to public records by the public. Webb v. City of Shreveport, 371 So.2d 316 (La.App. 2d Cir. 1979). However, a reading of the statute reveals an orderly procedure for obtaining access to public records without which uncertainty, confusion and possible damage to the documents would result. Section 32 provides “The custodian shall present any public record to any person of the age of majority who so requests.” It provides further “examinations of records . . . must be conducted during regular office or working hours, unless the custodian shall authorize examination of records in other than regular office or working hours.” Additionally, it provides if any record contains material which is not a public record, “the custodian may separate the nonpublic record and make the public record available for examination.” Section 32 also provides: “It shall be the duty of the custodian of a public record to provide copies of it to persons so requesting. The custodian may establish and collect reasonable fees for making copies of the public record.”

The law does not contemplate a person may be called upon to produce a public record simply because he is a contributing member of a multi-person public body. The appellee testified she called upon Mr. West for the documents because he was easy to reach. Accessibility of a committee member does not obviate the necessity to follow clearly outlined procedure. When Section 32 is read in pari materia with Section 1(A)(3) and 35(A), it becomes quite clear while any person of the age of majority is entitled to a public record, the request must be made of the official custodian who is presumed to have “regular office or working hours.” Mr. West owes no duty to produce documents simply because he has a copy or is easy to contact.

It should not be overlooked that while the custodian owes a duty to provide access to public records upon request, it is also his duty under the law to protect the public’s interest by safeguarding the records from loss, damage or alteration. The law also accords him the discretion involved in separating nonpublic material from what constitutes a public record before providing access. These duties and responsibilities cannot be divided among the many members of a public body and left to their individual dictates without conflicts in judgment, confusion and loss of documental integrity.

Appellant West sought attorney’s fees for his defense of this action. Section 35(E) allows the award of attorney’s fees in such instances “to the custodian”. This again demonstrates the statutory scheme establishing only the defined custodian as the person of whom the request for access is to be made and who is a necessary party defendant. Because Mr. West is not the custodian of the records, we can not award him attorney’s fees. The equity of the situation does not overcome the absence of statutory authority to award attorney’s fees.

For the foregoing reasons, the judgment of the trial court is reversed and suit is dismissed. Appellee is to pay all costs.

REVERSED.

      . We do not reach a determination of whether the documents in question constitute “public records.”


text:
    Ralph MORGAN v. ALLSTATE INSURANCE COMPANY et al.
    No. 13780.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.

      Paul H. Due and John deGravelles, Baton Rouge, Joseph H. Simpson, Amite, for plaintiffs.
    Duncan S. Kemp, III, and Gail K. Sheffield, Asst. Dist. Atty., Amite, for Tangipa-hoa Parish Police Jury.
    Jesse P. Lagarde, Amite, for Wayne Nor-wood and American Employers Ins. Co.
    Iddo Pittman, Jr., Hammond, for State Farm Ins. Co.
    Ronald L. Ronzello, Metairie, James B. Doyle, Baton Rouge, for Carter Mobile Homes.
    Before ELLIS, COLE and WATKINS, JJ.
   COLE, Judge.

Appellant Ralph Morgan appeals a judgment on the pleadings rendered in favor of the Tangipahoa Parish Police Jury and a summary judgment rendered in favor of Carter Mobile Homes. The issues on appeal are whether or not the pleadings establish appellant had a right to recover from the Police Jury and whether or not there is any genuine issue of material fact as to Carter’s liability.

This case arose from an intersectional collision that occurred when appellant was traveling west on Black Cat Road and defendant Wayne Norwood was traveling south on Huck Road. The stop sign normally in position for southbound traffic on Huck Road had been knocked down. Nor-wood entered the intersection and was turning left on to Black Cat Road when the collision occurred. Appellant named the following parties defendants: Wayne Nor-wood and his insurer, State Farm Mutual Automobile Insurance Company; American Employers Insurance Company, the insurer of the owner of the ear driven by Norwood; the Tangipahoa Parish Police Jury; and Carter Mobile Homes and its insurer, Fidelity and Casualty Company of New York. Various third party demands were also filed by the several defendants.

JUDGMENT ON THE PLEADINGS

The Police Jury moved for a judgment on the pleadings, as provided by La.Code of Civ.P. art. 965. Without assigning reasons the trial judge granted the motion and rendered judgment dismissing the suit as to the Police Jury. We assume that trial court was persuaded by the Police Jury’s arguments set forth in two memoranda. The Police Jury argues that under the current jurisprudence the responsible public entity does not have the duty to guard against a motorist entering what appears to be an uncontrolled intersection. The motorist must approach the intersection with due care and proceed across only after he ascertains that it is safe to do so. Pepitone v. State Farm Mut. Auto. Ins. Co., 369 So.2d 267 (La.App. 4th Cir. 1979), writ refused 1979; Peterman v. City of Hammond, 378 So.2d 181 (La.App. 1st Cir. 1979). The Police Jury further argues the public entity will be responsible only when the failure to maintain the traffic signal creates a “trap” for the motorists. Lochbaum v. Bowman, 353 So.2d 379 (La.App. 4th Cir. 1977), writ refused 1978. They allege plaintiff’s petition did not state the intersection was a hazardous one and therefore the pleadings do not establish a right to relief.

We are not impressed by appellee’s argument concerning the lack of allegations in the petition. Paragraph 9 of plaintiff’s petition reads in part as follows:

“... plaintiffs allege .. . that defendant, Tangipahoa Parish Police Jury ... had the legal ownership custody, possession and garde of the roadway in question and of the stop sign governing southbound traffic on Huck Road as it approached its intersection with Black Cat Road, and inasmuch as the stop sign was not in its proper erected place, the roadway and the intersection constituted a dangerous defective condition, thereby rendering defendant, Tangipahoa Parish Police Jury, strictly liable for injuries and damages . .. . ” (Emphasis added.)

Paragraph 10 alleges the Police Jury was negligent for failure to replace the stop sign or to give adequate warning to motorists. We find the petition clearly alleges the lack of the stop sign created a dangerous situation.

Regardless of the sufficiency of the pleadings in respect to the hazardous nature of the intersection, we feel the jurisprudence does not support the Police Jury’s argument that plaintiff is not entitled to relief under the law. We find the cases relied on by the Police Jury to be readily distinguishable from the instant case. Pe-terman, supra, and Pepitone, supra, each involve plaintiffs who were traveling on the road with the missing stop sign. The plaintiffs attempted to sue the public entity to recover for damages received in the inter-sectional collision. In each case the court said the public entity was not responsible to plaintiff for plaintiff’s own failure to use due care upon entering the intersection. Both courts reasoned a person approaching what appears to be an uncontrolled intersection must proceed with care in order to safely cross the intersection. The lack of a stop sign does not give them the right to proceed as if they have the right of way. In other words, both courts found the proximate cause of plaintiffs’ injuries to be plaintiffs’ negligence rather than the negligence of the public entity.

The facts of Lochman are also easily distinguishable. Lochman was cited in Pepi-tone and Peterman for the proposition that the public entity has the duty to control signs only so as not to create a trap or an undue danger to the motorist. This holding must be interpreted in light of the particular facts of the Lochman case. The plaintiff was traveling on the superior highway and the defendant was on the inferior road. Defendant approached the intersection and observed the semaphore traffic signal was not working properly in that the light was stuck on red. He stopped at the light and was proceeding to enter the intersection when the collision occurred. The trial court found the State Department of Highways solidarily liable. The Fourth Circuit reversed, reasoning that the Highway Department’s negligence was not a proximate cause of the injury. The court stated:

“The more difficult inquiry is whether the risk created (that a motorist, knowing the signal was inoperative, would enter the intersection without first ascertaining that it was safe to do so) was within the scope of protection intended by the imposition of the duty to maintain traffic signals properly.”

The court found the malfunction of the traffic light did not cause the defendant to enter the intersection with his utter failure to ascertain whether or not it was safe to do so. He knew the light was not working properly so he could not claim to have been “trapped” by its malfunction.

In the instant case, the public entity cannot claim the defendant knew that the stop sign was down. There was nothing to indicate he was required to stop at this intersection. Unlike the facts in Lochman, it can be assumed that the lack of the stop sign is precisely what caused the defendant to enter the intersection without the appropriate amount of due care.

In spite of any arguments as to the applicability of Lochman, this court can be guided by a decision from this circuit. Funderburk v. Temple, 268 So.2d 689 (La.App. 1st Cir. 1972), writ refused 1973. The facts of Funderburk are very similar to the instant case. The plaintiff was driving on the superior road, the defendant was on the inferior road. The stop sign on the inferior road had been bent so that it was not noticeable to drivers on that road. In the lawsuit concerning the intersectional collision, the defendant third-partied the parish for failure to maintain the stop sign. This court affirmed the trial court’s judgment holding the parish solidarily liable, based upon the presumption that if the stop sign had been in its proper position the defendant would have heeded it. The type of accident that occurred was the exact type of accident the sign was designed to prevent.

The same result was reached in Vallot v. Touchet, 337 So.2d 687 (La.App. 3d Cir. 1976). The defendant, who had been traveling on the road with the missing stop sign, third partied the Police Jury. The court found the Police Jury liable in that it must be assumed that if the sign had been in place, the driver would have stopped. See also Wall v. American Emp. Ins. Co., 377 So.2d 369 (La.App. 2d Cir. 1979), writ denied on issue of Police Jury’s liability, 378 So.2d 1383 (La.1980), writ granted and case heard on other issues 386 So.2d 79 (La.1980).

In conclusion, an examination of the applicable cases reveal two basic situations that arise frequently in the missing stop sign cases. On the one hand there is the situation where the plaintiff is traveling on the road normally controlled by the stop sign. The plaintiff is involved in an inter-sectional collision and sues the public entity for his damages. The courts have refused to allow recovery in this situation, reasoning that plaintiff’s breach of his duty in failing to approach the intersection with due care is the sole proximate cause of the accident. Although the public entity’s negligence may well be a cause in fact the courts obviously feel it inequitable to allow a negligent plaintiff to recover in this situation. Pepitone, supra; Peterman, supra.

On the other hand, there are situations where the plaintiff is traveling on the superior road and rightfully has the right of way. The defendant is traveling on the inferior road with the missing stop sign and proceeds through the intersection without stopping. As to the innocent plaintiff, courts have been willing to find solidary liability on the part of the negligent driver and the negligent public entity. Funder-burk, supra; Willis v. Everett, 359 So.2d 1080 (La.App. 3d Cir. 1978). The courts reason that if the stop sign had been in its proper place the driver would have heeded it. The exception to this rule seems to be the Lochman situation where the defendant driver is aware of a malfunctioning signal and, is, therefore, on notice that he must take extreme care in crossing the intersection, yet fails to do so.

A judgment on the pleadings is to be rendered on the basis of the pleadings alone and should be granted when there is no legal right for the adverse party to recover. The legal right of the mover must be clearly established. Succession of Mack, 366 So.2d 1063 (La.App. 1st Cir. 1978). In light of the foregoing discussion on the jurisprudence, it cannot be said the mover (Police Jury) has clearly established a right to a judgment on the pleadings. The case is remanded for trial on the merits.

SUMMARY JUDGMENT

Carter Mobile Homes successfully moved for summary judgment. La.Code of Civ.P. art. 966 provides that a summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, admissions on file and affidavits show there is no genuine issue of material fact and if the mover is entitled to judgment as a matter of law. Art. 967 elaborates as to what is required to defeat a motion for summary judgment. The article reads in part as follows:

“When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.”

In the present case, other than the usual allegations and denials in the petition and answer, the only evidence offered at the hearing on the motion was a set of interrogatories propounded by Carter and answered by the Police Jury. The pertinent questions and answers are set forth below:

Q. “(1) When did the Police Jury, or any of its agents or employees, first discover that the stop sign was missing at this intersection?”
A. “(1) Several days, not more than a week prior to the accident.”
Q. “(3) After the discovery of the missing stop sign, what steps, if any, were taken to correct this?”
A. “(3) The sign was replaced the day following receipt of information as to its being down.”

According to the information provided in the answers the sign allegedly knocked down by Carter was replaced several days before the accident. The interrogatories were filed into the record on October 18, 1979 and the answers on November 5, 1979. The minute entry indicates that at the hearing on January 18, 1980 the court granted counsel for Carter one week to mail copies of his interrogatories to all other attorneys. The court granted the other attorneys two weeks to respond and stated the court would render a decision in three weeks. The record does not reflect whether or not Carter’s attorney provided the others with this information, although the attorney has attached to his brief a letter indicating the documents were mailed. Regardless of whether or not the other attorneys received copies of the interrogatories, we find nothing in the Code of Civil Procedure that would require Carter to supply copies of these items to anyone other than the party to whom the interrogatories are propounded.

Appellant argues it would be inequitable to affirm the judgment because he did not receive a copy of the interrogatories and the answers. This complaint is unfounded. Appellant was well aware of the existence of the interrogatories and the answers because the matter was argued at the hearing on January 18th. Further, the documents were part of the record so any party could have obtained a copy.

In his brief appellant contends there is a genuine issue of material fact concerning the replacement of the stop sign because various persons were deposed (after the summary judgment was rendered) and have testified the sign was never replaced. These depositions cannot be considered in judging the propriety of the summary judgment because they were obtained after the judgment was signed. The summary judgment must be examined as of the time it was rendered and at that time the court had before it answers to interrogatories which showed the damage allegedly done by Carter had been repaired prior to the accident. This uncontroverted fact clearly established Carter is entitled to be dismissed in that the damaging of the sign was Carter’s only alleged involvement in the suit. Since counsel for appellant was well aware of the existence of the answers and interrogatories he should have filed any opposing depositions during the two week extension granted by the court. Certainly this court would be crippling the procedural device of summary judgment if we allowed evidence obtained after rendition of the judgment to be submitted to show the existence of an issue of material fact.

For the foregoing reasons the judgment on the pleadings rendered in favor of the Police Jury is reversed and remanded; the summary judgment rendered in favor of Carter Mobile Homes is affirmed. Appellant and the Police Jury are to share the costs of these proceedings.

REVERSED IN PART; AFFIRMED IN PART; AND REMANDED.

      . Art. 965. Motion for judgment on pleadings
      “Any party may move for judgment on the pleadings after the answer is filed, or if an incidental demand has been instituted after the answer thereto has been filed, but within such time as not to delay the trial. For the purposes of this motion, all allegations of fact in mover’s pleadings not denied by the adverse party or by effect of law, and all allegations of fact in the adverse party’s pleadings shall be considered true.”

      . These depositions were admitted as proffers at the hearing on the motion for the new trial. The trial judge correctly refused to allow them as evidence because they were not taken until after the rendition of the summary judgment. The motion for a new trial was denied.


text:
    John B. LANE v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY. Ernest JACKSON v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY. Billy HOUSE v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY.
    Nos. 13786, 13787 and 13788.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.

      A. Wayne Stewart, Denham Springs, for plaintiff in case no. 13786.
    Michael Barron, Dept, of Public Safety, Baton Rouge, for defendant-appellant in all cases.
    Billy W. House, in pro. per.
    James Kuhn, Denham Springs, for plaintiff in case no. 13788.
    John B. Lane, in pro. per.
    Before ELLIS, COLE and WATKINS, JJ.
   COLE, Judge.

This appeal involves three consolidated cases wherein the district court granted plaintiffs-appellees restricted driving privileges in accordance with La.R.S. 32:415.1. The issue in each case is whether or not the plaintiff is entitled to restricted driving privileges in light of the requirement the applicant must have had his license revoked or suspended only one time. Each plaintiff had been recently convicted of violation of La.R.S. 14:98 (Driving While Intoxicated) and petitioned the district court to be granted limited driving privileges in order to get to and from work.

La.R.S. 32:415.1 provides a person whose license has been revoked or suspended for the first time may apply for restricted driving privileges. If the court is satisfied economic hardship would result because of the suspended license, it may grant the limited driving privileges to the applicant. The statute reads in part as follows:

“A. (1) Upon suspension, revocation, or cancellation of a person’s drivers license for the first time only as provided for under R.S. 32:414(B) (C) (D) (E) and R.S. 32:415 said person . .. shall have the right to file a petition in the district court .. . alleging that revocation of his driving privileges will deprive him or his family of the necessities of life or will prevent him from earning a livelihood.”

In case number 13,786 the Department submitted an exhibit attached to its answer consisting of a certified conviction record of John B. Lane. The record shows three convictions for DWI. The dates of the convictions range from November 1975 to January 1977. Lane admitted pleading guilty to these charges when he testified at the hearing on his restricted driving privileges. He also admitted his license had been suspended in 1975 or 1976 for a period of one year. The record clearly reflects the current suspension is not Mr. Lane’s first suspension. Therefore, the district court acted improperly in issuing restricted driving privileges to John Lane. A prior suspension of a driver’s license has consistently been considered an absolute bar to the issuance of a judgment for a restricted license. Perry v. State, Department of Public Safety, Drivers License Division, 353 So.2d 318 (La.App. 1st Cir. 1977), writ denied 1978. Howard v. Louisiana Department of Public Safety, 360 So.2d 228 (La. App. 1st Cir. 1978); Bradley v. State, Department of Public Safety, 372 So.2d 1259 (La.App. 3d Cir. 1979); Wenfrey v. Department of Public Safety, 374 So.2d 119 (La. App. 4th Cir. 1979).

In case number 13,787, plaintiff Ernest Jackson was first convicted of DWI on April 30, 1979. Although an exhibit attached to the Department’s answer shows his license was suspended in connection with this offense, plaintiff testified he had never received notice of a suspension and in fact had never surrendered his driver’s license. His second conviction for DWI was in July of 1979. He admitted at the hearing his license had been suspended for this offense and stated he received notice of the suspension on August 19, 1979. (A copy of the notice was admitted into evidence.) The suspension was to be in effect until August 19, 1980. In the meantime, after Mr. Jackson received the second DWI conviction but before he received the notice of suspension, he was ticketed on July 31, 1979 for driving while under revocation. He pled guilty to this offense in September of 1979.

Under La.R.S. 32:415(A) it is unlawful for a person to drive while their license is suspended. The sanction for violation of this statute is that the original period of suspension is extended one year beyond the date it would normally have ended. La.R.S. 32:415(B). Under La.R.S. 32:414(E) the Department is to send a certified letter to the person whose license is to be suspended informing them of the suspension. The person has five days to surrender his driver’s license to the Department.

The record shows Mr. Jackson should not have been ticketed with violation of La.R.S. 32:415 on July 31, 1979, because at that time he had not been notified of the suspension. He pled guilty to the charge of driving under revocation. Unfortunately, plaintiff’s delays for appeal have long since run. Although he may have pled guilty to an invalid charge the conviction is presumed valid until otherwise attacked. Therefore, we have no choice but to consider the conviction for driving under revocation to be valid.

The issue is whether or not, at the time of the application for restricted driving privileges, the applicant’s license had been suspended only once. We hold his license had been suspended twice, therefore the district court should not have granted him restricted driving privileges.

We reach this conclusion by considering the purpose of the statute. La.R.S. 415.1 was obviously designed to give some relief to those persons who have had a serious violation or several lesser violations resulting in the suspension of their driver’s license. However, the statute is not designed to grant relief to all persons affected by suspensions or revocations, but only that class of persons who have had their license suspended one time only. The legislature apparently felt this class of persons deserved some leniency if they proved economic hardship. To the contrary, those who have committed offenses so serious as to have their license suspended more than once have removed themselves from the class of persons given lenient treatment.

In this case the plaintiff was convicted twice for DWI and his license was suspended after the second conviction. Before the period of suspension had run he was convicted of driving while under revocation. Under La.R.S. 32:415 the original period of suspension is automatically extended. Although Mr. Jackson was technically still under his first suspension at the time of his application for limited driving privileges, we cannot say that at that time his license had been suspended one time only. By statute, his license had been automatically suspended a second time for one year beyond the original period. Mr. Jackson did not file a brief in this case but he would undoubtedly argue the second suspension had not begun to run at the time he petitioned the court for driving privileges, therefore the second suspension should not be considered. The facts clearly show at the time plaintiff petitioned the court he had received two suspensions. It is immaterial that the second suspension had not yet begun to run.

We are assured of the logic of our conclusion when we examine the results if we were to consider Mr. Jackson to have received only one suspension. Plaintiff would be allowed to exercise limited driving privileges during his period of first suspension. When this period ended, the second suspension would have taken effect. Because it would be the second suspension plaintiff would not be eligible for limited driving privileges. Therefore, without having committed any further offense plaintiff would have to give up his driver’s license. This type of interpretation would allow a person under a first suspension to continue to violate the suspension and receive numerous convictions and extension of the suspension. Yet because that person would technically be serving his first suspension, he would be eligible for limited driving privileges during that period. As soon as the first suspension period ended he would then be under the second suspension and would have no opportunity for restricted driving privileges. This interpretation leads to undesirable, unpredictable results.

We feel the legislature did not desire this result. The intent was to prohibit those so careless as to deserve more than one suspension from receiving the limited privileges. At the time he petitioned the court Mr. Jackson was the recipient of two suspensions and should not have been allowed the restricted driving privileges.

In case number 13,788 Billy House’s license was also suspended because of a DWI conviction. At the hearing he testified he was previously convicted of DWI in 1977. He further admitted his license had been suspended six or seven years earlier and he was without his license for a period of five years. We find the record clearly shows the contested suspension is not the first suspension for Mr. House. For the same reasons as discussed above, no driving privileges should have been granted under La.R.S. 32:415.1. Perry, supra; Howard, supra.

For the foregoing reasons, the judgment of the trial court in each of these consolidated cases is reversed. Appellees are to share the costs of these proceedings in the amount of one-third each.

REVERSED.

      . It must be noted we are dealing with the issue of the number of suspensions as of the date of plaintiff’s petition for the driving privileges, February 1980. As of the date of this opinion the first suspension period has already run and the plaintiff is clearly under the second suspension. Our task, however, is to judge the propriety of the trial court’s actions as of the date the petition was filed and the matter heard.


text:
    STATE of Louisiana In the Interest of Richard D. KORKOSZ.
    No. 13789.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.

      Carolyn Fanning Lahr, Denham Springs, for defendant-appellant.
    Joe Arthur Sims, Hammond, for plaintiff-appellee.
    Before ELLIS, COLE and WATKINS, JJ.
   COLE, Judge.

Richard Korkosz appeals a judgment of disposition rendered following an adjudication of juvenile delinquency. The issue is whether or not the state proved beyond a reasonable doubt appellant committed the charged offense of hit and run driving. Because we find the state did not meet its burden, we reverse.

This case arose from an incident occurring on Highland Avenue in Denham Springs. Appellant, age 16, was driving a pickup truck and was accompanied by Troy Bell. Linda Sibley, age 13, and Rene Manor were walking along the edge of the street, headed in the same direction as the truck. All witnesses testified the truck moved from its own lane into the left lane in order to pass close to the girls. As the truck approached from the rear the girls moved onto the shoulder of the road. After the truck had passed, Linda realized the truck had made contact with her right elbow. She became aware of this fact because of a scratch on her elbow. Each girl testified there was no noise upon impact. The girls continued to walk along the shoulder of the road and did not call out or motion to Richard to inform him the truck had hit Linda. Richard and Troy each stated they had no knowledge that the truck had made contact with Linda. The record reflects Troy looked back after the truck had passed and did not observe anything unusual about the behavior of the girls.

The La.Code of Juvenile Procedure (La.C. J.P.) art. 73 sets forth the burden of proof required in an adjudication proceeding. The article reads in part as follows:

“If the petition requests that the child be adjudicated a delinquent, the state shall prove beyond a reasonable doubt that the child committed a delinquent act alleged in the petition.”

In this case the petition filed seeks to have Richard Korkosz adjudicated a juvenile delinquent for violation of La.R.S. 14:100 in that “he did while operating a pickup strike one Linda Sibley and then left the scene of the accident.”

As can be seen by reading La.R.S. 14:100, the failure to stop to render aid must be an intentional act. In order to intentionally fail to stop the driver must be aware that an accident has occurred. The official comments to La.R.S. 14:100 indicate the word “intentional” was added specifically because many accidents happen at night and the driver is not aware that an accident has occurred. The record indicates although Linda was aware of the impact between herself and the truck, she did not cry out, fall down or attempt to alert the driver that an accident had occurred. Indeed, when the passenger turned around to look at the girls there was ample opportunity to make motions that would inform the boys Linda had been hurt. Instead, the girls simply continued to walk along the road. The state has not proven beyond a reasonable doubt that the driver intentionally failed to stop to give aid.

The logical question that arises next is whether or not the trial judge has the discretion to adjudicate appellant a delinquent based on the evidence before him, regardless of the particular offense charged. We find that unless the appellant is guilty of committing a lesser and included offense, the trial judge cannot adjudicate him a delinquent.

The Supreme Court has recently held a juvenile’s constitutional right to due process and fair notice are not violated when he is adjudicated a delinquent on the basis of evidence showing he has committed a lesser included offense, rather than the greater offense charged. State In Interest of Batiste, 367 So.2d 784 (La.1979). The defendant will have fair notice because by definition the lesser offense will consist of some element charged in the greater offense.

An examination of La.R.S. 14:100 reveals the offense of hit and run driving does not contain any lesser and included offenses. Although appellant could have been appropriately charged with other crimes such as negligent injury (La.R.S. 14:39) or reckless driving (14:99), the elements of these offenses are not contained within the offense of hit and run driving (La.R.S. 14:100). La. C.J.P. art. 48 requires that the petition set forth the statute or ordinance which the child is alleged to have violated. The only offense set forth in the petition charging Korkosz is the violation of La.R.S. 14:100. The state did not prove the charged offense beyond a reasonable doubt so we must reverse. The State is to pay stenographer’s costs in accordance with La.R.S. 13:4521.

REVERSED.

      . La.R.S. 14:100 reads in part as follows:
      “Hit and run driving is the intentional failure of the driver of a vehicle involved in or causing any accident, to stop such vehicle at the scene of the accident, to give his identity and to render reasonable aid.”