text:
    Mae McWilliams WILLIAMS, Plaintiff-Appellee, v. BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND AGRICULTURAL AND MECHANICAL COLLEGE, Defendant-Appellant.
    No. 14207.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 1980.
    En Banc. Rehearing Denied Sept. 29,1980.

      William J. Guste, Jr., Atty. Gen., Car-mack M. Blackmon, Asst. Atty. Gen. by Charles E. Welsh, Asst. Atty. Gen., Shreveport, for defendant-appellant.
    Skeels, Baker, Coleman & Strickland by Charles W. Strickland, Shreveport, for plaintiff-appellee.
    Before HALL, JASPER E. JONES and FRED W. JONES, JJ.
   FRED W. JONES, Judge.

In June 1979 the Louisiana State University Medical Center School of Medicine in Shreveport, Louisiana (“Medical Center”) advertised for bids on various items of hospital room equipment, including 177 hospital beds. The bids submitted were opened on July 11, 1979 and on July 17, 1979 a purchase order was issued by the Medical Center to Luffey’s Medical & Surgical Supply, Inc. (“Luffey”) for the 177 hospital beds.

The owners of Williams’ Physicians & Surgeons Supplies (“Williams”), another bidder on the hospital beds, filed this suit on September 24,1979 against The Board of Supervisors of Louisiana State University and Agricultural and Mechanical College, asking for a preliminary injunction to enjoin the execution of the contract between the defendant and Luffey for purchase of the hospital beds, for annulment of the awarding of the contract and for damages.

After a hearing on the rule for a preliminary injunction, judgment was rendered in favor of Williams enjoining execution by defendant of the contract with Luffey. Defendant perfected a suspensive appeal from this judgment, urging that the trial judge erred in the following respects:

(1) Finding that the bid submitted by plaintiff conformed to the specifications.
(2) Finding that the bid submitted by Luffey was ambiguous.
(3) Holding that plaintiff’s bid was arbitrarily rejected.

According to the record the Medical Center’s invitation for bids on the hospital beds listed five brand name beds, with serial numbers, as beds deemed to be acceptable based upon past experience of Medical Center personnel. In addition, the invitation set forth in detail a description of an acceptable bed, including essential equipment and features. The following clause was contained in the body of the detailed description:

“Bed shall be equipped with five inch Rhombus or Tente solid stem casters, two with positive locking mechanisms or tread breaks. Two locking casters to have' stem lock.”

The purpose of furnishing the detailed description was to give prospective bidders an opportunity to submit bids on beds which were equivalent to the five listed and to specify additional equipment that might not be a part of the enumerated basic beds.

In its bid on the 177 hospital beds Williams inserted in the space provided on the bid form the InterRoyal bed which was listed as one of the five acceptable beds, quoting a unit price of $772.53 each. Also inserted in the described space was an alternate bid describing an InterRoyal bed which was not one of the five listed as acceptable.

The bids for the hospital room equipment were opened on July 11, 1979 by Richard H. Chandler, the Medical Center’s Director of Purchasing. Since Williams’ bid on the hospital beds did not mention casters, Chandler testified that he immediately checked the InterRoyal catalog and found that this particular brand bed was equipped with standard casters rather than the Rhombus or Tente casters specified in the bid invitation. To verify this information, Chandler queried O. E. Moncrief, Williams’ contract department manager, concerning the type of casters on the InterRoyal bed. Moncrief replied that he did not know and would have to check with the manufacturer in New York. The following morning Chandler was informed by Jim Cotton, Williams’ general manager, that the bed for which the bid was submitted came equipped with Tente casters. However, because the bid did not specifically list either Rhombus or Tente casters as equipment on the Inter-Royal beds, Chandler decided to reject the Williams bid as not conforming to specifications set forth in the bid invitation.

In connection with its bid on the 177 hospital beds, Luffey submitted a primary bid listing a Joerns bed with five inch casters, for a unit price of $771.32 each. In addition Luffey submitted three alternate bids on Joerns beds. Neither the bed described in the primary bid nor those in the alternate bids were on the list of five acceptable beds.

Chandler testified that the only Luffey bid conforming to specifications was an alternate quoting a unit price of $822.20 for each bed and described as follows:

Joerns # VA660BA bed as specified (emphasis added) with 5" Rhombus caster two positive locking casters, one with stem lock with full length or half length rails.

After a telephone conversation with a Luffey representative, Chandler was satisfied that this Joerns bed did in fact come with two stem locks as required by the bid specifications. Since this was deemed to be the lowest bid conforming to specifications, a purchase order for the 177 hospital beds was transmitted to Luffey.

In his written reasons for judgment on the rule for a preliminary injunction, the trial judge concluded that “the Williams’ bid was in conformity with the specifications as spelled out in page 3 of the invitation bid and acceptance form, whereas, the Luffey bid is somewhat ambiguous,” and held that the bid was arbitrarily awarded to Luffey.

Appellant argues that the trial court was in error because it is impossible to ascertain from the face of the Williams bid document that the specified InterRoyal bed came equipped with either Rhombus or Tente casters as required by the bid invitation. It further contends that to allow a bidder to explain or clarify his bid after the sealed bids have been publicly opened would amount to negotiation which is proscribed by the public bid laws of this state.

On the other hand, appellee asserts that it had been led to believe, based upon its experience of submitting bids to the Medical Center for some eight years, that the simple listing of ,an acceptable brand-named item indicated an intention to conform to specifications unless the bidder affirmatively signified a deviation. In support of this position appellee pointed out that in its bid on items other than the hospital beds (Joint Exhibit # 2), certain specifications were marked through in order to indicate nonconformity with those requirements.

The basic statutory law of this state governing public bidding is contained in La. R.S. 38:2212 which stipulates that all public work exceeding a specified sum must be advertised and let by contract to the lowest responsible bidder whose bid conforms to the advertised specifications.

This statute is an expression of and predicated upon public policy, formulated to protect the taxpaying citizen against contracts of public officials entered into because of favoritism and possibly involving exorbitant and extortionate prices. Smith v. Town of Vinton, 216 La. 9, 43 So.2d 18 (1949); Boxwell v. Dept. of Highways, 203 La. 760, 14 So.2d 627 (1943).

Our jurisprudence has interpreted similar statutory provisions as vesting in the awarding authority the power and discretion to determine the responsibility of the bidder and to reject all bids if none is satisfactory, but as not permitting the arbitrary selection of a higher bid and the rejection of lower bids. St. Landry Lumber Co. v. Mayor and Board, 155 La. 891, 99 So. 687 (1924).

The awarding agency has the right to be wrong in the exercise of its discretion, but not the right to be “unfairly, arbitrarily wrong.” Tide Equipment Co. v. Pointe Coupee Parish Police Jury, 312 So.2d 154 (La.App. 1st Cir. 1975); Toye Bros. Yellow Cab Co. v. City of New Orleans, 264 So.2d 768 (La.App. 4th Cir. 1972).

In Haughton Elevator Division v. State Division of Administration, 367 So.2d 1161 (La.1979), the State had disqualified Haughton, the lowest bidder on elevator maintenance contracts, as not being a “responsible” bidder under the public bid laws. The Louisiana Supreme Court reversed the lower courts’ decisions which denied injunc-tive relief and held that the lowest responsible bidder (conforming to the specifications) has a right to receive the advertised contract if any is let and such right is entitled to the protection of procedural due process.

Consideration of the cited statutory law and jurisprudence leads to the conclusion that the sole issue presented on this appeal is: did the Medical Center act arbitrarily in rejecting the Williams bid because it did not list the special casters described in the bid invitation?

Preliminary to answering this question, it should be pointed out that, unlike Haughton which involved the disqualification of a bidder as not responsible, we are dealing with a disqualification for not bidding according to advertised specifications. Since all of the information needed by the awarding authority in our case is contained in the bid, the elaborate procedural requirements enunciated in Haughton are inapplicable. We recognize, as dictated by Haugh-ton, that the lowest responsible bidder, bidding in conformity to specifications, does have a statutory entitlement entailing due process requirements. However, under our particular factual situation due process simply requires that the awarding authority, after a careful consideration of the written bid, act in a manner that is not arbitrary.

Next, we emphasize the practical importance of a bid conforming on its face to the advertised specifications. To require any less would constitute an open invitation to the kind of impropriety and abuse the public bid laws were designed to prevent.

In this case the advertised specifications required that the 177 hospital beds be equipped with either Rhombus or Tente casters. Williams’ bid simply quoted a price on an InterRoyal bed, one of the five listed as acceptable, without describing the type of caster with which the bed was equipped. Chandler took the logical step of examining the InterRoyal catalog with reference to this particular bed and found that it was equipped with a standard caster rather than one of those required by the specifications.

At this point the Medical Center would have been fully justified in rejecting Williams’ bid, without taking further action. After all, immediate acceptance of the bid would have placed the Medical Center in the vulnerable position of uncertainty that it could compel delivery of beds from Williams with Rhombus or Tente casters.

However, out of an abundance of caution and to verify the catalog information, Chandler brought the matter of casters up with the Williams employee who prepared its bid. Interestingly enough, that employee confessed ignorance with reference to the casters and requested an opportunity to check with the manufacturer of the bed. Although the latter subsequently assured Williams that the particular InterRoyal bed would be equipped with Tente casters, it is significant that no one ever contended that that information relating to casters obtained by Chandler from the InterRoyal catalog was erroneous.

There was some evidence that in the past Williams had marked through specifications when bidding on the Medical Center’s bid invitations as a method of indicating deviations from the specifications. However, there is no authority for holding that this ex parte practice by the bidder would serve to bind the awarding agency with the presumption that the bid conformed to the specifications unless there was an expressed deviation.

Adverting to the appellee’s contention that the Medical Center sought clarification of the Williams and Luffey bids from both parties and then arbitrarily awarded the contract to Luffey, we note only that there was a minor discrepancy in the accepted Luffey bid (relating to a stem lock) which was insignificant in comparison to the critical omission of specified casters in Williams’ bid.

In conclusion, we find that the Medical Center, through its Director of Purchasing, acted within its discretion in rejecting the Williams bid on the 177 hospital beds because that bid did not conform to the specifications relating to casters. Even if that decision had been wrong, we find no evidence in the record that the Medical Center arbitrarily rejected the Williams bid and accepted the Luffey bid.

For these reasons, we hold that the trial judge was in error in granting the preliminary injunction, and reverse. The preliminary injunction is set aside and the case is remanded to the trial court for further appropriate proceedings consistent with this opinion. Costs of this appeal are assessed against the appellee.

      . The pertinent part of this statute provides:
      “All public work exceeding the sum of ten thousand dollars including both labor and materials and all purchases of materials or supplies exceeding the sum of two thousand five hundred dollars to be paid out of public funds, to be done by a public entity shall be advertised and let by contract to the lowest responsible bidder who had bid according to the contract, plans, and specifications as advertised, and no such public work shall be done and no such purchase shall be made except as provided in this Part.”

      . There is often no necessity for a trial on the merits after evidence has been presented on the rule for a preliminary injunction. However, unless the parties have agreed otherwise, the case is determined on its merits only after a full trial under ordinary process. See Schwegmann Bros. Giant Super Markets v. La. Milk Commission, 290 So.2d 312 (La. 1974).


source: Caselaw Access Project

author: HALL, Judge.

license: Public Domain

text:
    LANIER BUSINESS PRODUCTS, INC., Plaintiff-Appellant, v. FIRST NATIONAL BANK OF RAYVILLE, Defendant-Appellee.
    No. 14211.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 1980.

      Charles W. Robinson, West Monroe, for plaintiff-appellant.
    Cotton, Bolton, Roberts & Hoychick by John Hoychick, Rayville, for defendant-ap-pellee.
    Before HALL, JASPER E. JONES, and FRED W. JONES, JJ.
   HALL, Judge.

Lanier Business Products, Inc. sued the First National Bank of Rayville to recover the purchase price of a microfilm camera system, with an endorser package, alleged to have been sold by plaintiff to defendant under a sales order signed by defendant’s president on November 10, 1977. Defendant denied liability, contending that the sales order was not a completed contract but was subject to defendant’s final evaluation and approval and, further, that there was an unreasonable delay in delivery of the complete system which justified defendant in refusing delivery. After trial, the district court found that a clause contained in the printed sales order form made the order subject to trial and evaluation and that the delay in providing the machine for testing purposes was unreasonable, justifying cancellation of the order. From a judgment rejecting its demands, plaintiff appealed. For reasons expressed in this opinion, we reverse the judgment of the trial court and render judgment in favor of the plaintiff.

In the fall of 1977 the bank was interested in purchasing a new microfilm and endorser system to replace its existing Kodak system on which the warranty and service agreement was to expire on December 31. Discussions were had between a sales representative of plaintiff, which was installing a sound system in the bank’s new building under construction, and Phillip F. Stafford, president of the bank. After Stafford reviewed brochures and discussed the matter with some of his personnel, a sales order form was filled out by the sales representative describing the equipment and setting forth the price which was $3,650 for the microfilm unit, $800 for the endorser package, plus tax of $222.50, or a total of $4,672.50. Also included in the sales order was a service policy. The sales order form was signed at the bottom on a line which appears as follows: “ORDER APPROVED BY: s/Phillip F. Stafford”.

Plaintiff did not keep this equipment in stock and specially ordered it from Canon, a Japanese manufacturing company. The microfilm unit was manufactured in Japan, shipped to New York, and then shipped to plaintiff. The endorser package was manufactured at a Canon installation in New York and was shipped separately to plaintiff.

Plaintiff received the microfilm unit and delivered it to the bank on or about February 1, 1978, without the endorser package. The endorser package was not received in Lanier’s Monroe office until late February or early March, 1978. On March 28, Lanier personnel went to the bank, picked up the microfilm unit, and took it to the Monroe office to attach the endorser. At this time they were told by Stafford that the bank did not want the equipment. Stafford later refused delivery of the completed unit and said the bank would not pay for it.

In the meantime, in the latter part of January or the early part of February, Stafford had discussions with representatives of the Eastman Kodak Company and a new Kodak microfilm camera and endorser system was installed in the bank, for evaluation and comparison purposes according to Stafford. The Kodak unit was invoiced to the bank on February 10,1978 and was paid for by the bank the latter part of April.

In support of its contention that the sales order to Lanier was not a binding contract but was subject to evaluation and approval by the bank, defendant relies on the following clause in the contract:

“The undersigned acknowledges receipt of the above listed equipment for the purpose of conducting a final approval evaluation and agrees to return to Lanier Business Products, Inc., upon demand, in good condition, the listed equipment or to pay the value at list price of such equipment which he cannot or refuses to return. Received: -”

The printed form used by Lanier is a multipurpose form, used both for orders for equipment and for delivery of equipment on approval. The clause quoted above and relied on by the bank is not applicable to the instant transaction because it is an express acknowledgment of receipt of listed equipment and there was no delivery or receipt of any equipment in this case at the time the sales order form was signed. The inapplicability of that clause is further illustrated by the fact that Stafford did not sign the line marked “Received” following that clause on the form. Rather, Stafford signed the line marked “Order Approved By:” on the form.

Stafford testified that he would not have agreed to buy and pay for the equipment without first testing it to make sure it performed the function for which it was being purchased. Certainly, under principles of warranty and redhibition, the bank would not have been obligated to pay for the equipment if it would not perform the function which it was represented to perform and for which it was purchased by the bank. Here, however, the bank never conducted any test or evaluation of the equipment. The microfilm unit was in the bank several weeks and could have been tested during that period but was not. The bank refused to allow delivery of the complete unit after the endorser package was attached and never tested the complete unit. There is no evidence in the record that the equipment would not, in fact, perform as represented and expected.

There is nothing in the contract or in the law generally which gave the defendant, at its own discretion, the right to cancel or terminate its agreement to purchase.

The written contract does not specify a delivery date. Under these circumstances parol evidence is admissible to explain this ambiguous portion of the contract. Southern Hardware Co., Ltd. v. Honeywell Information Systems, Inc., 373 So.2d 738 (La.App.2d Cir. 1979), writ refused 376 So.2d 319 (1979). However, the testimony of Stafford and the Lanier sales representative does not establish any agreement as to a delivery date. Stafford testified that he wanted the new unit after the bank moved into its new building, which was in December 1977, and at the time the warranty expired on the old unit, which was December 31, 1977. The sales representative testified that it ordinarily takes 60 or 90 days to receive equipment ordered from Canon. The testimony does not, however, establish that the sale was conditioned on any particular delivery date or deadline.

Even though a delivery date was not specified in the contract, every sales contract implies an obligation to deliver within a reasonable time. Failure to deliver within a reasonable time gives the buyer the option of cancelling the sale. LSA-C.C. Art. 2485. What is a reasonable time is to be determined by the particular circumstances surrounding the particular sale. See H. T. Cottam & Co. v. Moises, 149 La. 305, 88 So. 916 (1921); Morvant v. Russell & Clemmons, 11 So.2d 45 (La.App. 1st Cir. 1942).

Here, the sales order was signed on November 10, 1977. Plaintiff tendered the complete unit on or about March 28, 1978, some 4V2 months later. Our view is that this was not an unreasonable time for delivery of the complicated and complex office equipment ordered from a foreign manufacturer. The circumstances surrounding this particular sale strongly indicate that early delivery was not an essential part of the contract. The bank had a Kodak unit which was performing the needed function satisfactorily and which the bank continued to use until it installed the new Kodak unit, at which time it had both the old and new units available. At the time the Canon microfilm unit was delivered the first part of February, Stafford made no complaint and raised no issue about delivery of the completed unit, other than to tell plaintiff that he would like to have the completed unit as soon as possible. There was no further communication by Stafford to plaintiff concerning a need for delivery up to the time when the completed unit was available and Stafford notified plaintiff he no longer wanted it. There was no putting in default and plaintiff was not given an opportunity to comply with any required delivery deadline.

Under these circumstances a delay of 4V2 months was not an unreasonable period of time, did not constitute a breach of the contract by plaintiff, and did not justify defendant in cancelling the contract.

There being a binding sales contract, accompanied by a tender of delivery of the items sold by plaintiff within a reasonable time, plaintiff is entitled to enforce the contract and to recover the agreed purchase price of $4,672.50.

Plaintiff urges on appeal that it is also entitled to recover attorney’s fees under a clause in the sales order form providing that purchaser agrees to pay all costs of collection, if necessary, including attorney’s fees as allowed by law and actual court costs. Plaintiff did not allege or pray for attorney’s fees in its petition and raises the issue for the first time in its brief on appeal. Attorney’s fees are items of special damages and must be specifically alleged. LSA-C.C.P. Art. 861; Townsend v. Cleve Heyl Chevrolet-Buick, Inc., 318 So.2d 618 (La.App. 2d Cir. 1975); McGowan—Rigsby Sup., Inc. v. Charles Carter & Co., Inc., 268 So.2d 716 (La.App. 1st Cir. 1972). There being no allegations in the petition or any evidence at the trial constituting fair notice to the defendant that plaintiff claimed attorney’s fees, recovery cannot be allowed for this item of special damage. Wexler v. Martin, 367 So.2d 111 (La.App. 4th Cir. 1979), cited by plaintiff, is not applicable because it involved a claim for items of general damages. Boudreaux v. Mazda Motors of America, Inc., 347 So.2d 504 (La. App. 4th Cir. 1977), citing LSA-C.C.P. Arts. 862 and 2164, allowed recovery of attorney’s fees for services rendered, on appeal in a situation similar to the instant case where they were not prayed for (except in brief) or awarded in the trial court. We decline to follow that ease here, being of the opinion it would not be just, legal or proper to award on appeal an item of special damage not claimed or put at issue in any manner in the trial court.

For the reasons assigned, the judgment of the district court is reversed. Judgment is rendered in favor of plaintiff, Lanier Business Products, Inc., and against defendant, First National Bank of Rayville, in the amount of $4,672.50, together with legal interest thereon from March 28, 1978 until paid, and all costs of this suit.

Reversed and rendered.


author: FRED W. JONES, Jr., Judge.

text:
    Anthony J. DANNA, Plaintiff-Appellee, v. HOWARD GRIFFIN, INC., et al., Defendants-Appellants.
    No. 14213.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 1980.

      Theus, Grisham, Davis & Leigh by R. L. Davis, Jr., Monroe, for defendants-appellants.
    Bruscato & Loomis by Anthony J. Brus-cato, Monroe, for plaintiff-appellee.
    Before PRICE, MARVIN and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

Anthony J. Danna filed suit against Howard Griffin, Inc. (“Griffin”) and its liability insurance carrier for injuries allegedly sustained when plaintiff’s Volkswagen struck the extended arm of Griffin’s forklift. From a judgment in favor of plaintiff assessing total damages of $38,357.00, defendants appeal, asserting that the trial judge erred in (1) finding negligence on the part of Griffin’s employees; (2) failing to find plaintiff contributorily negligent; (3) assessing excessive general damages; and (4) awarding plaintiff as an element of damages “loss of income.”

Plaintiff answered the appeal, seeking an increase in the damage award.

Factual Context

Griffin operates a large commercial business in Monroe, Louisiana, that includes among its enterprises the sale of boats and motors. In connection with this endeavor defendant owns property on both sides of Miro Street, a two lane hard-surfaced street running east and west.

Just before noon on June 17, 1975 a tractor-trailer rig with a load of boats for delivery to Griffin was parked in the north lane of Miro Street near its intersection with St. John Street, a one-way thoroughfare for traffic traveling south. One of Griffin’s forklifts, which was being used to unload the boats, was stalled because of a weak battery in a driveway across Miro Street from the stationary truck. The arms of the stricken forklift, measuring from 12 to 14 feet in length, protruded into Miro Street from the curb about 30 inches, were three or four feet high, and were covered by a dark carpet material.

While the vehicles were positioned as described in the Miro Street area, and before Griffin’s employees could secure a battery for the stalled forklift, plaintiff made a right turn in his Volkswagen off St. John Street to proceed west on Miro Street, shifting into second gear at a speed of from 10 to 15 miles per hour. Since the large truck obstructed his traffic lane, plaintiff moved his car over into the opposite lane, whereupon the windshield on the driver’s side of the Volkswagen struck the tips of the protruding arms of Griffin’s stalled forklift, resulting in injuries to plaintiff.

Liability

The defendant in Page v. Green, 306 So.2d 847 (La.App. 2nd Cir. 1975) had obstructed a highway by extending a cable across the road to pull a vehicle from a ditch. The only warning given to approaching motorists consisted of arm waving. Finding for the plaintiff, the court held:

“Considering that the winch cable, an object not usually encountered in the roadway, was difficult to see and presented an extreme danger to highway users, we find that these warnings were woefully inadequate, and that Green breached his legal duty to give warning commensurate with the danger presented.”

Addressing the subject of the moving automobile driver’s duty, the court in Adams v. Allstate Insurance Co., 212 So.2d 204 (La.App. 4th Cir. 1968), stated:

“. . . a motorist using ordinary care has the right to presume that the thoroughfare in front of him is free from unusual hazards. He will not be charged with negligence if he strikes an object which no person could reasonably suspect would be there and could not have seen in time by the use of ordinary care.”

In this case the trial judge found that Griffin had violated its duty to “maintain warnings or flagmen in order that unsuspecting motorists will not find themselves in a hazardous or dangerous situation.” On the plea of contributory negligence he concluded that “plaintiff could not have avoided the accident.”

Since a review of the record convinces us that these factual findings are not clearly in error, we are mandated to leave them undisturbed. Arceneaux v. Dominque, 365 So.2d 1330 (La.1978); Cadiere v. West Gibson Products Co., Inc., 364 So.2d 998 (La.1978).

Obviously, the protruding of the forklift arms into Miro Street was a cause-in-fact of the accident. Griffin had a duty to warn motorists of this hazard by posting appropriate signs, signals and/or guards to protect against the specific risk of a vehicular collision with those arms. Since the required action was not taken, as found by the trial judge, the duty was breached. On the other hand, plaintiff’s duty to observe .and to avoid objects in the road does not extend to unexpected and practically invisible hazards. Therefore, he was not contrib-utorily negligent. ■ Consequently, the lower court correctly held defendants liable for plaintiff’s damages resulting from the accident.

Quantum

It was established by the testimony of expert medical witnesses that as a result of his accident plaintiff had a bulging disc at the L — 4 or L-5 level, characterized by Dr. Ray King, orthopedic specialist, as a “minimal protrusion.” For this injury the trial court allowed general damages of $30,-000.00. Since the record does not clearly reveal that there was an abuse of discretion in making this award, it must remain undisturbed. Cheatham v. City of New Orleans, 378 So.2d 369 (La.1979).

Plaintiff complains that the lower court should have awarded $1,000.00 to pay for the cost of anticipated back surgery. In view of the time that had elapsed between the accident (1975) and the trial (1978) without surgery being performed, the trial judge apparently concluded that plans for the operation were too speculative. We do not disagree.

With respect to appellants’ final specification of error, we find that the trial judge incorrectly characterized his $5,000.00 award as being for “loss of future income” when it should have been for “loss of future earning capacity.” See Folse v. Fakouri, 371 So.2d 1120 (La.1979).

Since the record clearly established that plaintiff would experience some diminution in his earning capacity, the trial judge properly acted within his wide discretion in fixing this amount.

For the reasons set forth, we affirm the judgment of the lower court at appellants’ cost.


author: MARVIN, Judge.

text:
    The PRUDENTIAL INSURANCE COMPANY OF AMERICA, Plaintiff-Appellee, v. S. J. MILLER, Defendant-Appellant.
    No. 14214.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 1980.
    Massey & Grant by John S. C. Massey, West Monroe, for defendant-appellant.
    Hudson, Potts & Bernstein by Ben R. Hanchey, Monroe, for plaintiff-appellee.
    Before PRICE, MARVIN and FRED W. JONES, Jr., JJ.
   MARVIN, Judge.

The defendant, an employee of Olinkraft, appeals a summary judgment against him in favor of Olinkraft’s group insurer for $7,166, the total of periodical disability benefits paid the employee by the insurer under the group policy. This policy provided benefits for a non-work disability but not for a disability which was covered by the worker’s compensation law.

After the insurer began paying disability benefits, the employee sued the employer in a worker’s compensation action, alleging that his disability was work-connected. After the employee’s worker’s compensation action was filed, the group insurer filed this action to recover the group disability benefits paid the employee.

The worker’s compensation action was still pending when the summary judgment here appealed was rendered. The issues there are not directly before us, although the employee contends here that we should withhold our opinion in this appeal until the forthcoming appeal by the employer of the worker’s compensation action can be heard. In this respect the employee argues, that he is entitled to benefits, either under the policy or under the worker’s compensation law, and that he should not be cast in judgment in this case until the issue of whether or not the disability was work-connected is resolved for both cases.

The employee’s predicament is self-inflicted. Besides alleging in his worker’s compensation action that the disability was work-connected, the employee has admitted in depositions in this action that he knew the difference between the two coverages and that group disability benefits were not provided for work-connected disability. He said he knowingly made a false statement when he claimed the group disability benefits because he was in financial straits and because he considered these benefits would be more quickly paid than would worker’s compensation benefits.

Notwithstanding these admissions, the employee argues that his “reasons” for claiming group disability and the group insurer’s reasons “why” the employee was required to agree to reimburse the group insurer in the event he was awarded worker’s compensation benefits for the disability, “demonstrate . . . material issues of fact that have not been resolved.” These respective “reasons”, in our opinion, are irrelevant to the question of whether the admissions show no genuine issue of material fact. CCP 966. The material factual issue is whether the employee falsely led the group insurer to pay benefits because of a work-connected disability, a condition that is expressly excluded by the group policy. Since the employee candidly admits this, the only question is whether the group insurer is entitled to summary judgment as a matter of law. CCP 966. CC Art. 2301 provides that he who knowingly receives what is not due is obligated to repay it. See also articles following and particularly 2311.

This summary judgment correctly grants the plaintiff-group insurer all of the relief it prayed for, that is, a money judgment for the amount the employee misled the insurer into paying. CCP 966, 968, 1915, 2083. Even though this action was consolidated with the employee’s worker’s compensation action, summary judgment in this action is proper. See Smith v. Hanover Insurance Company, 363 So.2d 719 (La.App.2d Cir. 1978). The employee’s motion to stay further proceedings in this appeal pending our consideration of the appeal in the worker’s compensation action is denied, and the judgment, at appellant’s cost, is

AFFIRMED.


text:
    Emma D. DUNN, Plaintiff-Appellant, v. Charles B. SNYDER et al., Defendants-Appellees.
    No. 14215.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 1980.

      C. William Gerhardt, Shreveport, for plaintiff-appellant.
    Mayer, Smith & Roberts by Walter 0. Hunter, Jr., Shreveport, for defendants-ap-pellees.
    Before HALL, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

Emma D. Dunn sued Charles B. Snyder and his liability insurance carrier for damages sustained as the result of an automobile accident at the intersection of Hearne Avenue and Lakeshore Drive in Shreveport, Louisiana, involving vehicles owned and operated respectively by plaintiff and defendant Snyder. From a judgment rejecting her demands, plaintiff appeals, urging that the trial court erred in enunciating the legal proposition that a motorist involved in an accident while turning left at an intersection controlled by traffic lights is exempted from the standard presumption of negligence. We agree with appellant and reverse.

The record shows that on the afternoon of November 13, 1978 plaintiff was driving south on Hearne Avenue, a four lane thoroughfare that intersects with Lakeshore Drive; another four lane street. At the time Snyder was driving north on Hearne Avenue, intending to turn left onto Lake-shore Drive. The intersection of Hearne Avenue and Lakeshore Drive is controlled by electric semaphore lights. Motorists approaching the intersection who desire to turn left are afforded an extra designated inner lane for that maneuver with a traffic light sequence which includes an illumined green arrow signaling that it is safe to make a left turn. Of course, when the arrow is lighted traffic coming from the opposite direction faces a red light.

Plaintiff testified that as she approached the described intersection at a speed of less than 35 miles per hour the traffic light facing her was green. She proceeded into the intersection and was struck by Snyder’s left-turning automobile. Her statement concerning the traffic light was corroborated by the testimony of two other witnesses. Charles W. Waters, Sr., then an employee of a service station located on the northwest corner of the intersection, was standing in front of the station when the collision occurred. He testified that upon hearing the noise of the impact he immediately looked up and noticed that the traffic .light facing southbound motorists on Hearne Avenue was green. John Woodard, who was driving west on Lakeshore Drive, had stopped on the east side of the intersection in the northernmost lane in obedience to a red light. It was his testimony that plaintiff faced a green light as she entered the intersection.

On the other hand, Snyder was positive that the light facing him as he approached the intersection from the south was green and, that, as he came to a rolling stop in the left-turn lane the green arrow was illumined. Thereupon he proceeded to turn left and was struck by plaintiff’s car.

Just prior to the accident Alma Shaffer was driving out onto Hearne Avenue, planning to proceed north, from a service station situated on the southeast corner of the intersection. She testified that Snyder was facing an illumined green arrow as he started to turn left onto Lakeshore Drive.

In his oral reasons for judgment the trial judge candidly admitted that he could not resolve the contradictory versions of the accident and would decide the case on a “burden of proof” basis. He then held in essence that because this was a controlled intersection the left-turning motorist, Snyder, was not burdened by the usual presumption of negligence; that plaintiff had to prove her case by a preponderance of the evidence; and that plaintiff had failed to discharge that burden.

In this state both statutory law and jurisprudence require that the driver of a vehicle intending to turn left within an intersection yield to oncoming vehicles which are “within the intersection or so close thereto so as to constitute an immediate hazard.” La.R.S. 32:104, 122: Bennett v. U. S. Fidelity & Guaranty Co., 373 So.2d 1362 (La.App. 1st Cir. 1979); City Auto Wreckers, Inc. v. Wright, 346 So.2d 873 (La.App. 4th Cir. 1977).

It was pointed out in Estes v. Hartford Accident & Indemnity Co., 187 So.2d 149 (La.App. 2d Cir. 1966) that the motorist desiring to make a left turn within an intersection must:

“. . . ascertain before attempting to do so that such a maneuver can be made safely and without danger or undue delay to overtaking or oncoming traffic. He must refrain from making a left turn unless the way is clear and, if a collision occurs while he is attempting such a maneuver, the burden rests heavily on him to show that he was free from negligence.”

We are unable to find either statutory or jurisprudential authority for the trial judge’s holding as a matter of law that the control of traffic at an intersection by semaphore lights operates to exempt a left-turning motorist from the described burden of proof. In fact, in a similar situation, this court in Allstate Ins. Co. v. State Farm Mutual Automobile Ins. Co., 320 So.2d 351 (La.App. 2d Cir. 1975) held that a motorist who claimed that he turned left because he faced a green arrow had not “borne the burden of proving that he legally preempted the intersection so as to absolve himself of negligence under the circumstances.”

We hold, therefore, that as the left — turning motorist within an intersection, the defendant Snyder had the burden of proving that he was free from negligence, i. e., that he either faced an illumined green arrow or that he had preempted the intersection. Since this is a question of fact we must advert to the trial judge's expressed holding on this issue. According to his oral reasons, if the contention of plaintiff that Snyder had the burden of proving himself free of negligence were correct, then plaintiff “should win.” Implicit therein is the factual conclusion that Snyder had not proved either that he faced an illumined green light or preempted the intersection when making his left turn. Since we are unable to state that the lower court was clearly wrong on this finding of fact, we are bound by it. Consequently, plaintiff is entitled to judgment against defendants for her damages.

With reference to physical injuries, plaintiff was examined on January 17,1979, some two months after the accident, by Dr. Keith Mason who found that she had a mild whiplash which would probably clear up within six to eight months. However, on March 8, 1979, Dr. A. E. Dean, Jr., an orthopedic surgeon, could find “no cause for this patient’s continued difficulties with pain and discomfort. She possibly did have some cervical and lumber sprain initially and possibly some contusion about the right knee. She may have also had some slight scalp lacerations previously or superficial lacerations, but no evidence of this exists at this time.” In summary, Dr. Dean found no residual difficulties.

Under the circumstances, we find that an award of $1,500.00 will adequately compensate plaintiff for her physical pain and suffering. She is also entitled to the recovery of $190.00 in medical expenses.

Although it was stipulated that plaintiff’s automobile had a value of $750.00 at the time of the accident, there was no evidence that it was a total loss because of the collision with Snyder’s car. Furthermore, if the vehicle was repairable, there was no testimony relating to the cost of those repairs. Consequently, there is no basis for an award for this claimed element of damage.

For the reasons stated the judgment of the trial court is reversed, and there is judgment in favor of plaintiff and against the defendants solidarily for the sum of $1,690.00, with legal interest as provided by law. All court costs, both in the lower court and on appeal, are assessed against defendants.


text:
    Larry DAVENPORT, Plaintiff-Appellant, v. McCULLOGH SERVICE BAROID DIVISION, N. L. Industries, Inc. and Employers National Insurance Company, in Solido, Defendants-Appellees.
    No. 14216.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 1980.
    En Banc. Rehearing Denied Sept. 29, 1980.

      C. William Gerhardt, Shreveport, for plaintiff-appellant.
    Cook, Yancey, King & Galloway by Herschel E. Richard, Jr., and Charles G. Tutt, Shreveport, for defendants-appellees.
    Before HALL, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   HALL, Judge.

In this workmen’s compensation case the plaintiff-appellant contends the trial court was clearly wrong in finding that plaintiff failed to prove a job — related brain injury and resulting disability, in admitting into evidence certain military service records and past employment records of the plaintiff, and in failing to award total and permanent disability benefits and penalties and attorney’s fees. Concluding that there is substantial evidence to support the trial court’s findings, we affirm.

Plaintiff, Larry Davenport, 23 years old at the time of the accident on April 2,1978, was employed by McCullough Services, an oil field service company, as a serviceman. His job was primarily manual labor, assisting operators in perforating wells. As plaintiff was winding a cable back onto a truck, the cable struck him on the back of the head, rendering him unconscious. He regained consciousness within a few minutes and was taken to Bossier General Hospital where he was treated in the emergency room as an outpatient on April 2 and 3. He experienced headaches, dizziness, and nausea and was diagnosed as having suffered a slight laceration and a concussion.

Plaintiff was seen by Dr. Bailey, a general practitioner, on April 5, 7, and 10. Dr. Bailey released plaintiff from further treatment, but at plaintiff’s request referred him to a neurologist.

Plaintiff was seen by Dr. Schwendimann, a neurologist, on April 19, May 5 and 26, June 6, 16 and 30. Dr. Schwendimann found no brain damage, physical or neurological problem but felt plaintiff could not return to work because of his anxiety and other emotional upsets which resulted from his injury on the job. At plaintiff’s suggestion, Dr. Schwendimann referred him to a psychiatrist. In August, the doctor reported to the defendant insurer that there was no reason from a neurological standpoint that plaintiff could not return to work.

Dr. McBride, a psychiatrist, examined plaintiff on July 10. His diagnosis was a conversion reaction with tension headache (psyehophysiological headaches and dizziness). Dr. McBride recommended a psychological study which was performed by a psychologist, Mr. Rosenzweig, on July 20. Intelligence tests showed plaintiff to have an I.Q. of 76-77, borderline mental retardation. Mr. Rosenzweig found no organic brain damage or any recent changes in plaintiff’s intellectual ability, but felt plaintiff was in need of psychotherapy in order to accept himself and his limitations more comfortably and learn how to cope more adequately with his life situations. Mr. Rosenzweig was of the opinion that plaintiff could function on the open labor market successfully but would probably do better in job placement if he had some extra training through vocational rehabilitation services.

Dr. McBride felt that Mr. Rosenzweig’s study confirmed his initial impression and, believing that psychotherapy would benefit plaintiff, referred him to Dr. Phillips, another psychiatrist, for further treatment.

Dr. Phillips first saw plaintiff on August 1. In an effort to relieve the tension headaches, Dr. Phillips treated plaintiff as an outpatient at his office for about three weeks. Because plaintiff was not responding, the doctor had him admitted to Brent-wood Hospital on August 21, where he stayed for 25 days undergoing evaluation and treatment. Neuropsychological testing was performed by Mr. Gucker, a psychologist, who was of the opinion plaintiff had definite evidence of organic brain syndrome (brain damage). The final diagnosis was organic brain syndrome, with severe depression and anxiety secondary to trauma.

Dr. Phillips continued to see plaintiff on at least a weekly basis through March 1979; then on a less frequent basis in April and June 1979.

At the instance of the defendant-insurer, plaintiff was examined by another psychiatrist, Dr. Ware, on May 22,1979. Dr. Ware found no evidence of any disability, no evidence of brain damage, and believed plaintiff was consciously misleading or evasive with him. He saw “clear evidence suggesting to me that he was malingering.”

Compensation benefits were paid to plaintiff from the time of the accident in April until September 11, 1978, at which time payment of benefits was terminated based on Dr. Schwendimann’s August report to the insurance company.

At the trial of the case in June 1979, each side presented expert witnesses who reached opposite conclusions with reference to plaintiff’s condition and each side also presented testimony of lay witnesses, primarily related to whether there had been a significant change in the plaintiff’s ability and behavior after the accident and bearing on plaintiff’s credibility. The thrust of the defense was that plaintiff’s representations to his doctors were inaccurate and unreliable and that the doctors’ opinions were not valid because they were based on inaccurate information.

The expert testimony upon which plaintiff primarily relied consisted of that of Dr. Phillips and Mr. Gucker. The thrust of their testimony was that, based to some extent on information furnished by plaintiff and to some extent upon a battery of psychological tests, there had been a dramatic change in plaintiff’s intellectual ability, personality, and behavior since the accident due to brain damage caused by the accident, and that plaintiff was disabled from engaging in gainful employment.

The gist of the defense was that plaintiff had only suffered a slight concussion because of the blow to his head and that he had fully recovered from the effects of the accident. Defendant’s experts, Dr. Ware and Mr. Rosenzweig, testified there was no evidence of brain damage and that plaintiff suffered from no job-connected disability. Dr. Schwendimann testified there were no neurological or physical reasons for plaintiff’s complaints. Dr. Bailey testified as to the minor nature of the physical injury received by plaintiff.

The lay testimony presented by both sides was designed to show either that plaintiff had changed since the accident or that plaintiff had not changed since the accident. Plaintiff’s testimony as to his disabling headaches and dizziness, depression, anxiety, lack of interest in things, and the like, was corroborated by the testimony of his wife. Several of plaintiff’s witnesses testified that he was functioning adequately in his work prior to the accident.

Defendants offered several witnesses who testified that plaintiff’s work in his job prior to the accident was far less than adequate, that he was extremely slow to learn, that he had a bad attitude, and that he had been discharged from several jobs for these reasons. Military records admitted into evidence showed that plaintiff, who had enlisted in the Air Force for a six-year tour of duty, was discharged after less than two years because of unsuitability, without having achieved any advancement in rank. School records showed that plaintiff made poor grades in school, dropped out of high school after the tenth grade, and received a GED from high school through the Air Force.

The record establishes that the plaintiff gave inaccurate information to the examining experts concerning his pre-accident school, military service, and employment records. However, although the apparent change in plaintiff’s intellectual level and behavior after the accident as compared to prior to the accident was an important factor in the experts’ opinions and diagnoses, the plaintiff’s experts testified that the information developed at trial would not change their opinions.

It is apparent from the trial court’s written opinion that the testimony of plaintiff’s expert witnesses was discounted to a large extent because their conclusion that plaintiff had experienced a dramatic change due to the accident was based largely upon inaccurate information furnished by the plaintiff. Generally, the experts were under the impression that plaintiff had achieved a high school diploma with average grades, that he functioned well in the military service with advancement in rank, and that he was functioning well in his work prior to the accident. To the contrary, the evidence establishes that plaintiff had never functioned adequately either in school, military service, or work.

It is the duty of the trial judge to evaluate the testimony of all of the witnesses, both lay and medical. After making such an evaluation, he may accept or reject any opinion expressed by any medical expert, depending on how impressed he is with the qualifications, credibility, and testimony of that expert. In short, the trial judge is obliged to evaluate testimony of a medical witness according to the same rules applicable to other witnesses. Jennings v. Halliburton Co., 346 So.2d 268 (La.App. 4th Cir. 1977).

In cases involving a claim of a brain or mental injury such as the one presented here, the court must proceed with utmost caution and exercise extreme care because of the nebulous characteristics of such a condition and the possibility of the symptoms being feigned. Evidence in cases of this nature should be scrutinized carefully. Jennings v. Halliburton Co., supra; Victoriana v. Orleans Parish Sch. Bd., 346 So.2d 271 (La.App. 4th Cir. 1977); Smith v. Wiley Wood Construction Company, 247 So.2d 904 (La.App. 4th Cir. 1971). The standard of proof in suits for recovery for mental afflictions requires that the plaintiff be honest, sincere, and truthful. Awards for mental conditions are not generally made when the record discloses that the plaintiff is dishonest, untruthful, or unworthy of belief. A medical opinion formed exclusively or in significant part from the claimant’s statements is valid only insofar as the claimant relates and the doctor receives an adequate picture of the claimant’s condition. Smith v. Wiley Wood Construction Company, supra.

Implicit in the opinion of the trial judge in this case is the factual conclusion that plaintiff failed to prove by a preponderance of the evidence the claimed job-related disability. We are not permitted to disturb this finding unless it is “clearly wrong”. Cadiere v. West Gibson Products Co., Inc., 364 So.2d 998 (La.1978); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The trial court specifically accorded greater weight to the testimony of Dr. Ware and Mr. Rosenzweig than to that of Dr. Phillips and Mr. Gucker, the latter’s opinions having been formed in substantial part on the basis of inaccurate background information furnished by the plaintiff. Their opinions were necessarily based in large degree upon the plaintiff’s own statements of his headaches, dizziness, and other complaints. In evaluating plaintiff’s testimony, the trial court was obviously influenced by the various misrepresentations made by the plaintiff to his employers and to his doctors. Very significantly, the trial judge noted that his own impression of plaintiff at trial was identical to that of Dr. Ware who found the plaintiff to be evasive and to be making a conscious effort to avoid or delay responses to tough or challenging questions. The transcript of plaintiff’s testimony bears out the trial court’s impression.

This is without question a very close case on the facts. There is substantial evidence supporting both the plaintiff’s and the defendants’ cases. On appeal the brief filed on behalf of the plaintiff vigorously and expertly attacks the trial court’s findings of fact and emphasizes the evidence favorable to the plaintiff’s case. For example, plaintiff points out that Mr. Gucker performed more extensive and refined psychological tests than did Mr. Rosenzweig. Plaintiff emphasizes that ordinarily greater weight should be given to the treating physician, Dr. Phillips, than to the physician, Dr. Ware, who only made one examination of the plaintiff. Plaintiff points out that there is no direct evidence contradicting the testimony of plaintiff and his wife as to his disabling headaches and dizziness.

After thorough consideration of the plaintiff’s arguments and after review of all of the evidence we cannot say that the trial court was clearly wrong and we find that the trial court’s conclusions are supported by substantial evidence, justifying its conclusions.

Plaintiff argues that the trial court was in error in admitting into evidence past employment records of the plaintiff and in admitting testimony concerning plaintiff’s poor performance on jobs prior to the accident. These matters pertain directly to the factual issue of the plaintiff’s claimed change in ability and behavior after the accident and were relevant and admissible.

Plaintiff also argues that plaintiff’s service records should not have been admitted into evidence because they were not authenticated in the manner required by Article 1395 of the Code of Civil Procedure. Although the cover sheet of the entire package of service records offered into evidence contains a signature over the printed name of the Chief, Air Force Records Branch, is on a form provided by the National Personnel Records Center (Military Personnel Records) of the General Services Administration, states “the GSA seal is proof of these documents authenticity”, and each page contains the GSA imprinted seal, the package of documents is not authenticated as required by code article. The trial judge correctly excluded the greater portion of the service records, which are in the record only as an offer of proof and were not considered by the trial court or this court. The trial court did allow into evidence, however, certain documents contained in the package which purport to bear the signature of the plaintiff. On cross-examination the plaintiff admitted the signature appeared to be his, and although he did not specifically identify the documents as having been signed by him, he did not deny that they contained his signature. The documents containing plaintiff’s signature were properly identified and admitted into evidence, and reflect the matters relating to plaintiff’s service record, particularly his early discharge for unsuitability, as mentioned above in this opinion.

For the reasons assigned, the judgment of the district court is affirmed at appellant’s costs.

Affirmed.


author: JASPER E. JONES, Judge.

text:
    STATE of Louisiana in the Interest of the Minor Children GARZA.
    No. 14217.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 1980.
    Elizabeth Ward, Asst. Dist. Atty., for Parish of Bossier, Benton, for plaintiff-ap-pellee.
    Stinson & Stinson, Ford E. Stinson, Jr., Benton, for defendant-appellant.
    Before PRICE, HALL and JASPER E. JONES, JJ.
   JASPER E. JONES, Judge.

The State of Louisiana, Health & Human Resources Administration, Office of Human Development, petitioned the Juvenile Court of Bossier Parish for a determination that Daughter A, age 12; Daughter B, age 10; Daughter C, age 9; Daughter D, age 6, and Son E, age 8 are abused children and should be made wards of the court. These proceedings were instituted under the provisions of LSA-R.S. 14:403. Judgment was rendered declaring Daughter D and Daughter C to be abused and neglected children and making them wards of the court. The judgment placed the children in the conditional custody of their mother, Mrs. Y, subject to her and her husband, Mr. X, complying with certain conditions. Y and X appeal. We affirm.

This sordid and pathetic tale of child abuse centers around the short, though already scarred, lives of Daughter D and Daughter C. In February 1979 Daughter D was admitted to L.S.U. Medical Center in Shreveport and diagnosed as having gonorrhea. Subsequent treatment cured this venereal disease, but tragically on August 28, 1979 Daughter D was re-admitted to L.S.U. Medical Center along with her sister Daughter C. At this time both girls had gonorrhea. Daughter D had stated in February, 1979 that her step-brother Junior, age 18, and his friend Elbert, age 18, had “fooled with” her. The trial judge, however, found there was no evidence to show Junior to be the cause of the girls’ gonorrhea. Mr. X made Junior leave the family home in February. He now lives two or three blocks from X and Y’s residence but maintains close contact with his father, Mr. X.

Testimony from Dr. McVee, an expert in pediatrics, revealed it is virtually impossible to contract gonorrhea without an intimate personal contact by an infected person. Mr. X and Mrs. Y’s misguided belief that the girls got the disease from using the bathroom facilities in either the skating rink or church is quite unfounded.

Though the trial judge placed the conditional custody of Daughters D and C only in their mother she was not separated from their father; therefore, the children would be in the home of both their mother and father and their two sisters and brother. For these reasons many of the conditions of custody which are below set forth were directed to Mr. X and Mrs. Y.

“1. The parents, Mr. and Mrs. X and Y, must attend the weekly sessions of Parents Anonymous for such period of time as will be determined by the Office of Human Development through the Welfare Social Worker.
2. Daughters D and C are required to undergo a regular medical examination at least once a month from this date, November 21, 1979, either at the L.S.U. Medical Center or at the Bossier Health Unit, if facilities are available at such unit. The purpose of such visits will be to determine sexual abuse or contraction of any venereal disease or to determine any other endangerment to the girls’ health or emotional stability.
3. In case Mrs. Y absents herself from the home, for any reason, for more than a period of three hours at a time, she is to insure that the children will be supervised by a person who has been approved by the Office of Human Development. Mrs. Y is to submit any names of any persons to the department in order that they may be approved but may not leave her children with anyone who has not been so approved.
4. Mr. X and Mrs. Y are not to permit Junior or Elbert to come to their home at any time for any reason.
5. Mr. X and Mrs. Y are to request that Junior move to some other place of residence other than the one where he is now residing. .
6. Mr. X and Mrs. Y are to allow monthly visitations by the Welfare Social Worker through the Office of Human Development. These visitations must occur once a month, either at X and Y’s home or at the Office of Human Development during the regular office hours which are 8:00 A.M. to 4:30 P.M.
7. Mrs. Y is not to permit sexual abuse or neglect of any kind to her children by any person and shall do whatever is required to see that the conditions of probation are carried out.”

Mr. X and Mrs. Y appeal this judgment assigning as error the admission of a certain letter into evidence which was hearsay. Appellants contend that without this hearsay evidence the State failed to prove their daughters were abused and neglected. The letter in question was dictated by Mr. X’s daughter Z to her fiancé. At the time of trial Z was déad. Z did not have enough education to have written the letter herself, but she signed it. The letter made various allegations against Mr. X, primarily that he had compelled Z to have intercourse with him.

Appellants urge that the trial judge considered this letter and in so doing tainted the proceedings with nullity. Appellee argues, however, that since this is a civil proceeding, the letter is admissible and only goes to the weight of the evidence.

The letter is clearly hearsay. Appellants had no opportunity to cross-examine the author of the letter and therefore had no way tó test and determine the truth of the hearsay statements against Mr. X. We cannot find, and have not been directed to, any exception to the hearsay rule under which this letter may fall. C.J.P. Art. 71 provides that the hearing shall be conducted according to the rules of evidence applicable to civil proceedings. The introduction of this letter was certainly violative of the rule against hearsay evidence. However, because we find the trial judge did not consider this letter in making his determination of abuse and neglect, the proceedings have not been stricken with nullity.

In cases in which the appellate court could not determine that the juvenile court did not rely upon hearsay evidence in making its decision, the proceedings were held to have been stricken with nullity and the determinations were reversed. See St. in Int. of Prestridge, 323 So.2d 868 (La.App. 2d Cir. 1975), wherein the court stated:

“The report, containing hearsay, opinion, and otherwise inadmissible evidence is in the record. Absent any contrary indication we must conclude that whatever is in the record was considered by the juvenile judge.” . Id. at 870. [emphasis added].

See also State in Interest of Simmons, 299 So.2d 906 (La.App. 3d Cir. 1974), wherein the court stated:

“The report, containing hearsay, opinion, and otherwise inadmissible evidence is in the record. Absent any contrary indication we must conclude that whatever is in the record was considered by the juvenile judge.” Id. at 908-909. [emphasis added].

In In Re: St. in Interest of Elliott, 206 So.2d 802 (La.App. 2d Cir. 1968), there was inadmissible hearsay evidence introduced, but this error was not the basis for the reversal. The court stated that even considering the hearsay evidence the over-all record did not support a finding that the children have been neglected.

In the present case we know that the juvenile judge did not rely on the hearsay evidence in making his determination of abuse and neglect. The trial judge’s reasons for judgment clearly shows that he attached no weight to the letter allegedly written by the deceased Z. The trial judge found Daughters D and C were abused children solely based upon a finding of fact that they had contracted gonorrhea.

We agree with the trial judge that the evidence which established Daughter D had become infected with gonorrhea twice in seven months and that C also had the disease and that it was transmitted only by sexual contact established the young girls had been abused as result of neglect. We also note there was nothing in the letter that contributed to these conclusions. The trial judge also noted that the evidence failed to prove that Mr. X did it. Had the juvenile judge considered the letter he would not have left the two children in the home with Mr. X.

The trial judge’s determination in custody matters is entitled to great weight and his discretion in those matters will not be disturbed on review in absence of a clear showing of abuse. St. in Interest of Purcell, 337 So.2d 637 (La.App. 3d Cir. 1976); St. in Interest of Thompson, 372 So.2d 1255 (La.App. 3d Cir. 1979).

Following the trial judge’s determination of abuse and neglect, which we have found was supported by the admissible evidence, he did not abuse his discretion by placing the two young girls in the custody of their mother subject to the conditions set forth earlier in this opinion. The conditions are all designed to avoid a recurrence of the abuse to which these children were subjected.- Mr. X testified of his closeness to Junior, the adult half-brother'of D and C and their possible abuser, and because of it his inability to totally prevent the visits of Junior to his home. For this reason alone the juvenile judge was justified in placing the conditional custody of the abused children solely in Mrs. Y and requiring her not to leave the children alone for more than three hours unless they were supervised by a person approved by appellee.

For the reasons assigned the judgment is AFFIRMED at appellants’ cost.

      . The names of the parties involved in this juvenile proceeding have been designated by letters of the alphabet where necessary to protect the confidentiality of this juvenile proceeding.

      . “Now there has been a lot of extraneous things about which I’ve heard evidence of some sort or another. But what I find to be a fact is that D, and I believe the evidence shows that she is now seven, has contracted gonorrhea in February, 1979 and in August of 1979, and that C, who I believe the evidence shows is age nine, contracted gonorrhea in August, 1979 In fact there is no evidence to show who transmitted the gonorrhea to the girls, or either of them ... I don’t believe under the testimony we’ve got, I just do not believe that there is any way these girls could have gotten gonorrhea, particularly D having contracted it twice within a period of less than a year, unless somebody abused her. It is inconceivable to me that that child has not been sexually abused for her to contract gonorrhea twice, and I believe that also C has been abused. So first of all I find that those two girls are abused children. Now secondly, I don’t think it is necessary under the statute for me to find who did the abusing. Nobody has, as counsel, one or both counsel, have pointed out, nobody is really on trial here for that, and Mr. X is not on trial for it. I’ll say this, if he is on trial for it the evidence fails to prove he did it. I can’t say that Mr. X did it. I don’t know who did it. The fact of the matter is as I said the evidence doesn’t show who did it . Now the law provides that the parents are responsible for the children And it is inconceivable to me that it could be concluded any other way, a girl who as a seven years old lives in the home and contracts gonorrhea twice within a period of 7 months. Now I cannot specify from this evidence exactly what X and Y did or didn’t do which constituted neglect, but something they did was neglectful or that girl would not have been allowed to have had gonorrhea twice, and particularly after-she got it the first time . . . And I just can’t see any way that this Court could find that there was not some neglect involved in the allowing these girls to obtain-contract gonorrhea the second time. The first time I could understand, I can’t really understand that, that is not correct. But I suppose you’d say the first time I could overlook. But I can’t see any rational reason being given for the second time. So I find, as I said, number one, that the children are abused, and number two, I find that the children have been neglected.”


author: PRICE, Judge.

text:
    Mary Zeagler BARTLEY, Plaintiff-Appellant, v. INSURANCE COMPANY OF NORTH AMERICA et al., Defendants-Appellees.
    No. 14228.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 1980.

      Sanders & Castete, Ltd. by Martin S. Sanders, Jr., Winnfield, for plaintiff-appellant.
    Provosty, Sadler & Delaunay by Albin Provosty, Alexandria, for defendants-ap-pellees.
    Before PRICE, HALL and JASPER E. JONES, JJ.
   PRICE, Judge.

Plaintiff appeals a judgment awarding her workmen’s compensation benefits contending the trial court erred in failing to award penalties and attorney fees. We affirm.

Plaintiff began working for defendant, Ditto Apparel of California, Inc., on November 28, 1978, operating an automatic sewing machine. During her first day at work her fingers became numb and painful and she was unable to make a fist. She mentioned the problem to her supervisor but continued working. When she returned the next day her condition had worsened and she was no longer able to perform her job. She again complained to her supervisor who relayed the complaint to the plant manager. The manager responded with instructions for plaintiff to see her own doctor since the problem did not occur on the job.

Plaintiff was unable to return to work and her family physician referred her to an orthopedic specialist. The specialist examined her on December 11 and diagnosed her condition as a carpul tunnel syndrome involving the compression of a nerve in her wrist. She underwent surgery on December 28.

Although plaintiff had informed her supervisor and the plant manager of her treatment prior to the surgery, she made no demand for compensation benefits until suit was filed on February 1, 1979. After trial the court held that while plaintiff was entitled to compensation benefits, she had given no notice to her employer of a job-related accident and her demand for penalties and attorney fees was denied.

Plaintiff appeals the denial of penalties and attorney fees contending her initial complaints to her superiors were sufficient to constitute notice to defendants. She contends that since her employer was aware she was being treated by a physician regarding her complaints, its failure to investigate her claim to determine her entitlement to benefits was equivalent to an arbitrary refusal to pay.

We do not agree. After her initial complaints to her superiors, plaintiff made no demand for compensation until suit was filed. No medical bills or other reports from her physician were ever sent to her employer. Although her employer was aware of her treatment, plaintiff made no assertions that her condition was the result of an accident on the job.

A deposition of plaintiff’s physician was taken approximately one week before trial and he stated the exact cause of her condition could not be determined. Although the court ultimately found plaintiff to be entitled to compensation benefits, no clear relationship between her condition and her job activities was evident, particularly since no specific incident or “accident” as such had occurred. Under these circumstances we do not find defendants were unreasonable in their refusal to pay benefits until after the case had been tried and decided.

The judgment is affirmed at appellant’s cost.


text:
    Jem HERNDON, Jr., Plaintiff-Appellant, v. Hattie Dixon HERNDON, Lou Patsy Herndon Harris, Joe Herndon, Harold H. Herndon, Lee Ernest Herndon, and Maggie Herndon Payne, Defendants-Appellees.
    No. 14235.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 1980.
    Larry S. Butler, Shreveport, for plaintiff-appellant.
    Fish, Montgomery & Robinson by Roy M. Fish, Springhill, for defendants-appellees Lou Patsy Herndon Harris, Joe Herndon, Harold H. Herndon and Lee Ernest Hern-don.
    Lawrence L. May, Jr., Vivian, for defendant-appellee Hattie Dixon Herndon.
    Arthur E. Rollo, Shreveport, for defendant-appellee, Maggie Herndon Payne.
    Before PRICE, HALL and JASPER E. JONES, JJ.
   PRICE, Judge.

Plaintiff, an alleged acknowledged natural child of decedent, Jem Herndon, seeks to annul and set aside a prior judgment sending decedent’s widow and collateral relations into possession of the community and separate property left by decedent. Plaintiff alleges the judgment was obtained by fraud or ill practice as the defendants herein did not disclose to the court the fact that decedent left an acknowledged natural child which would have precluded the distribution of decedent’s property as now provided in the judgment.

The trial court sustained exceptions of no cause of action on the basis that plaintiff has no right to inherit from decedent as an acknowledged natural child under La.C.C. Art. 919 since decedent left a spouse and collateral relations. Plaintiff has appealed and we affirm for the reasons assigned.

Plaintiff for the first time raises the issue of the unconstitutionality of C.C. Art. 919 on this appeal. He relies on Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977) and the recent decision of this court in Succession of Brown, 379 So.2d 1172.

The sole basis on which plaintiff has alleged the judgment is invalid is fraud or ill practice because of the failure of the defendants to inform the court of his existence as an acknowledged illegitimate child. At the time of the proceeding on November 9, 1979, there was no decision of an appellate court of this state holding Art. 919 unconstitutional. Therefore defendants had no reason or duty to advise the court of plaintiff’s existence as he was not a presumptive heir under the provisions of Art. 919.

The general rule is that a question of constitutionality must be raised by affirmative pleadings in the trial court or it will not be considered on appeal. State of La. v. Madere, 352 So.2d 666 (La.1977).

In any event even if Succession of Brown is ultimately affirmed by the Louisiana Supreme Court and Art. 919 is ruled unconstitutional, it should not be given retroactive effect and would not afford plaintiff the relief sought in this proceeding.

By analogy see Kirchberg v. Feenstra, 609 F.2d 727 (5th Cir. 1979) and Lovell v. Lovell, 378 So.2d 418 (La.1979).

For the foregoing reasons we find no error in the judgment sustaining the exceptions of no cause of action and rejecting plaintiff’s demand. The judgment is affirmed at appellant’s costs.

      . The Brown decision held C.C. Art. 919 to be unconstitutional in that it discriminates against acknowledged illegitimates and therefore is contrary to both the United States and Louisiana constitutions. Writs in the Brown decision have been granted by the Louisiana Supreme Court.


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    Mrs. Gladys G. JOHNSON, Plaintiff-Appellee, v. NATIONWIDE LIFE INSURANCE COMPANY, Defendant-Appellant.
    No. 14229.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 1980.

      Davenport, Files, Kelly, Marsh & Graham by William G. Kelly, Jr., Monroe, for defendant-appellant.
    Lancaster, Baxter & Seale by E. H. Lancaster, Jr., Tallulah, for plaintiff-appellee.
    Before PRICE, HALL and JASPER E. JONES, JJ.
   HALL, Judge.

Plaintiff-beneficiary sued defendant-life insurance company to recover $2,500 in benefits due under a certificate of insurance issued by the defendant to plaintiff’s deceased husband pursuant to a group life insurance policy issued by defendant to International Consumer Credit Association. The defendant insurance company denied liability on the basis that coverage had terminated prior to the insured’s death under policy and certificate provisions providing for termination of the insurance in the event of termination of the insured’s membership in the Association.

After trial, the district court held that LSA-R.S. 22:636 required notice of cancellation and since notice of cancellation was not given, the insurance upon which premiums had been paid through the date of the insured’s death, remained in effect. From a judgment for $2,500, plus 6 percent interest under the penalty provisions of LSA-R.S. 22:656, defendant appealed. We affirm.

Defendant specifies that the district court erred (1) in failing to apply Missouri law rather than Louisiana law; and (2) in holding that notice of cancellation was required where the policy specifically provided for termination of coverage upon termination of membership.

The case was tried on a written stipulation of facts together with attached documents.

Decedent, a Louisiana resident who died May 24, 1976, joined the Association in 1959 and regularly paid annual dues of $5 or $6 for each year thereafter through the year ending September 30,1975. Although decedent was sent dues payment notices, there is no record that he paid dues for the membership year beginning October 1,1975. No notice of termination of membership was sent to decedent.

The group policy was issued in 1970 by defendant, an Ohio company, to the Association, a Missouri company. A certificate of insurance was issued by defendant to decedent in 1970 and quarterly insurance premiums were paid by decedent to defendant regularly, including a payment on March 10, 1976 for the quarter ending June 1, 1976. No notice of cancellation or termination of the policy was sent to decedent.

The policy and certificate contained the following provision, which defendant contends caused the coverage to automatically terminate as of March 1, 1976, without notice of cancellation, due to termination of decedent’s membership on September 30, 1975:

“A Certificateholder’s coverage under any benefit provision of the Policy terminates upon occurrence of the first of the following: .
“(4) end of the Quarterly Premium Period next following the Quarterly Premium Period during which the Certificate-holder’s membership or employment by a Member or by the International Consumer Credit Association terminated, unless the Certificateholder has re-established his status as a Member or an Employee, as defined herein, within this time period. The acceptance of a premium or premiums after such termination of insurance shall not make the Company, the International Consumer Credit Association Group Insurance Trust Fund, the Trustees thereof, or the International Consumer Credit Association liable for benefits under this Policy, nor be a waiver of such termination. The limit of liability in the event of such termination of insurance and the failure to re-establish Member or Employee status shall be the refund of any such premiums paid for any such period subsequent to such termination.
“Except as provided above, the continuation of individual insurance coverage under this Policy is dependent upon the Certificateholder’s maintenance of his status as a Member or an Employee, as defined herein. The Certificateholder shall be personally and solely responsible for meeting this condition of insurance under this Policy. For this reason, the Certificateholder is required to give prompt notice to the Trustees of the International Consumer Credit Association Group Insurance Trust Fund, at the address from which quarterly premium notices are mailed, of any termination of his or his employer’s membership in the International Consumer Credit Association and of any change in his employment, both as to the name of the employer and address thereof, and to answer promptly and in writing any and all written inquiries from the Trustees of the International Consumer Credit Association Group Insurance Trust Fund concerning such information.”

Appellant contends this case is governed by Missouri law since the group policy was issued in Missouri. The trial court correctly applied Louisiana law to this case. Although the group policy was issued in Missouri, the certificate of insurance was issued to the Louisiana insured in Louisiana. LSA-R.S. 22:629 provides that no insurance contract delivered or issued for delivery covering subjects located, resident, or to be performed in this state shall contain any condition, stipulation or agreement requiring it to be construed according to the laws of any other state. As between defendant and the decedent, the insurance contract was issued and delivered in Louisiana. Casey v. Prudential Ins. Co. of America, 360 So.2d 1386 (La.App.3d Cir. 1978), squarely held that Louisiana law was applicable to a suit for benefits under a certificate issued to a Louisiana resident under a group life insurance policy issued in Missouri.

Under any choice of law analysis, Louisiana law would be applicable. Louisiana’s interest in protecting Louisiana residents

who have been issued policies by out-of-state companies, and in regulating the relationship between the Louisiana resident and the Ohio company in this case, far outweighs Missouri’s interest in regulating the relationship between the Ohio company and the Louisiana resident.

Even if there were a basis for applying Missouri law, the Missouri law has not been established in this case. Although LSA-C.C.P. Art. 1391 provides that a Louisiana court shall take judicial notice of the law of other states, it is well settled that Louisiana appellate courts are not required to and ordinarily will not take notice of the law of another state in the absence of a showing by the party urging the applicability of such law of what that law is. Here, defendant made no showing of what the Missouri statutory or case law is, other than to cite a 1946 Missouri case dealing with the effect of termination of employment, not membership, under a group life insurance policy. Absent a showing of what the other state’s law is, it will be presumed to be the same as Louisiana. Cambre v. St. Paul Fire and Marine Insurance Co., 331 So.2d 585 (La.App. 1st Cir. 1976), writ refused 334 So.2d 434, 435 (1976); Franks v. Louisiana Health Ser. & Indem., 382 So.2d 1064 (La. App. 2d Cir. 1980). Gathright v. Smith, 368 So.2d 679 (La.1979), declares that a Louisiana appellate court may, on its own initiative, inquire into another state’s law where applicable, but does not hold that the appellate court must do so, and does not overrule or detract from Cambre or Franks.

Appellant contends that under Louisiana law and the express terms of the policy coverage terminated automatically at the end of the quarterly premium period following the quarterly premium period when the insured’s membership was terminated, and notice of cancellation was not required. Decedent died prior to the effective date of LSA-R.S. 22:636.3 which now clearly and specifically requires notice of cancellation of group certificates by reason of termination of employment or membership.

Breland v. All American Assurance Company, 366 So.2d 1051 (La.App. 1st Cir. 1978), which also involved facts arising prior to the effective date of LSA-R.S. 22:636.3, held notice of cancellation was required by LSA-R.S. 22:636 under facts virtually identical to the instant case. The insured’s coverage was conditioned upon membership in the American Motor Club. At the time the insured’s claim arose, her membership was no longer valid because of failure to pay dues. The court held coverage remained in effect because of failure of the insurer to give notice of cancellation as required by LSA-R.S. 22:636.

Appellant argues that LSA-R.S. 22:636 is not applicable because, under subsection E, the statute does not apply where the policy does not contain a provision for cancellation prior to a date to which premiums have been paid, and the policy in this case does not contain such a provision since termination does not occur for nonmembership until after the end of a paid premium period. This argument follows the literal wording of subsection E, but, as noted in Quindlen v. Prudential Insurance Company of America, 342 F.Supp. 9 (W.D.La.1972), such literal interpretation of the exception is “nonsensical.” Such an interpretation would mean that an insurer could cancel a life insurance policy at the end of a premium period without notice of cancellation even though premiums had been paid for that period. This would be entirely inconsistent with the intent and purpose of the notice requirement. This statute, and other provisions of the insurance code, such as LSA-R.S. 22:177 relating to notice of failure to pay premiums, are designed to prevent termination, lapse or cancellation of insurance coverage due to mere inadvertence on the part of the insured and to give an insured the opportunity to retain coverage or obtain other coverage.

Because the defendant failed to give notice of cancellation as required by LSA-R.S. 22:636, the policy remained in effect during the period for which premiums were paid, which included the date of the insured’s death.

We also note that the stipulation and exhibits in this case do not establish with certainty that the insured’s membership in the association terminated on September 30, 1975, at the end of the last year for which there was a record of payment of annual dues by him. He had been a member since 1959. No notice that his membership was terminated was sent to him. The insurer continued to bill him and to accept payment for premiums. The stipulation of facts does not establish that failure to timely pay dues automatically resulted in termination of membership, or the date on which such membership terminated. The record does not contain the charter, by-laws, membership rules, or other regulations of the Association governing membership. It cannot be presumed that a failure of this longstanding member of the Association to timely pay dues resulted in the automatic termination of his membership as of the end of the previous year for which he had paid dues. If the Association continued to carry him on its rolls as a member only until December 1975, and neither the affirmative nor the negative of this is shown, then termination during that month or thereafter would have continued the insurance in effect through May 1976, the month of the insured’s death, under the terms of the policy.

For the reasons assigned, the judgment of the district court is affirmed at appellant’s costs.

Affirmed.


text:
    Dwight M. STUART, Plaintiff-Appellant, v. Edward C. GEREAUX et al., Defendants-Appellees.
    No. 14230.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 1980.
    Bodenheimer, Jones, Klotz & Simmons by G. M. Bodenheimer, Shreveport, for plaintiff-appellant.
    Lunn, Irion, Switzer, Johnson & Salley by Jack E. Carlisle, Jr., Shreveport, for defendants-appellees, Edward C. Gereaux and Colonial Penn Ins. Co.
    Before PRICE, HALL and JASPER E. JONES, JJ.
   HALL, Judge.

Plaintiff, Dwight M. Stuart, seeks an increase in the special and general damages awarded him in a judgment rendered pursuant to a jury verdict. Following a directed verdict as to defendant’s liability, the jury awarded $3,000 in general damages and $1,759.59 in special damages for injuries and property damage received by plaintiff in a relatively minor rear-end automobile accident. We affirm the judgment of the district court.

On October 27, 1977 while waiting at a traffic light plaintiff’s truck was struck from the rear by an automobile. The driver of the automobile testified he was traveling at a low rate of speed, approximately 10 miles per hour, at the time of impact. This testimony is supported by the relatively minor damage done to plaintiff’s truck which was repaired for $243.50. According to plaintiff, the collision caused his head to be thrown sharply forward and then backward hitting the rear of the truck cab. Plaintiff also testified that at the same time his left knee struck something in front of him (presumably the dashboard) causing injuries to his knee.

Following the accident, plaintiff drove to the office of Dr. Burt, an orthopedic surgeon, who diagnosed his injuries as a mild concussion, moderate cervical strain, and a mild knee injury. At this time Dr. Burt advised plaintiff to take off work for several days and prescribed Norgesic, a muscle relaxant and pain killer. No hospitalization was required and plaintiff returned home. Plaintiff continued seeing Dr. Burt until November 16, 1977. During these visits he received physical therapy consisting of heat, massages, and muscle stretching. Dr. Burt found few objective symptoms of injury and the total medical bill for treatment and x-rays from the date of the accident until November 16, 1977 totaled $255.

Plaintiff took sick leave from his position with the Shreveport Police Department for one month, returning to work on November 27, 1977. He was paid his regular salary while he was off work.

In February of 1978, complaining of neck problems, headaches, and that his knee gave way at times, plaintiff consulted Dr. Bick-nell, another orthopedic surgeon, who treated him until October 1978. Dr. Bicknell found plaintiff had a full range of cervical motion, no muscle spasms and no evidence of any neurological deficit in the upper extremities. Most of the tests revealed no abnormality, dislocation nor fractures of the neck. Dr. Bicknell diagnosed plaintiff’s neck injury to be an acute musculoligamen-tous sprain to the cervical area. Plaintiff’s knee was also examined and no instability was found. Dr. Bicknell diagnosed the knee injury as being a chondromalacia of the patella of the left knee. While under Dr. Bicknell’s care plaintiff received various anti-inflammatory medications for his neck and knee and was advised to use moist heat on the affected areas.

Following the April 25, 1978 office visit, Dr. Bicknell instructed plaintiff to report again if he had further problems. Plaintiff did not report back until October 10, 1978, his last visit to Dr. Bicknell, some six months later.

On October 16, 1978, approximately one year after the accident, plaintiff consulted Dr. Faludi, a neurosurgeon. At this time plaintiff complained of pain in the back of the neck, at the base of the skull, and more particularly, pain in the midneck area and of headaches. Dr. Faludi found a moderately severe tenderness in the suboccipital region and also pain and tenderness over the occipital nerve. Dr. Faludi diagnosed plaintiff’s injury as a moderate to severe cervical sprain which affected to some extent the articulations of the cervical spine. He found no muscle spasms and plaintiff’s neck motion was good. Dr. Faludi suggested the use of steam packs, various exercises to loosen the neck, and prescribed medication. He also testified that during the visit of February 26, 1979 he felt plaintiff would be doing quite well in four to six weeks.

Plaintiff was subsequently involved in a second accident for which he was apparently treated by Dr. Faludi in March 1979. There is no evidence of any medical treatment connected with the accident in question after February 1979.

Besides the testimony of the various attending physicians, the jury also heard testimony from plaintiff, his wife, and a number of plaintiff’s friends and co-workers. These witnesses testified that on occasion plaintiff complained of neck pains, and that they had “seen” this pain by observing his facial expressions and restricted movements. Plaintiff’s wife testified he had become nervous, complained of headaches, soreness of the neck, and was occasionally unable to complete the sex act due to neck problems. Plaintiff testified as to his continued pain and discomfort and also introduced a diary he kept since the date of the accident in which he noted his severe pain in detail. In spite of this testimony, the jury obviously gave greater weight to the testimony of these same witnesses that tended to minimize plaintiff’s pain and discomfort. Substantial testimony was given concerning plaintiff’s continued deer and squirrel hunting and fishing trips following the accident.

The only issue to be determined on this appeal is whether the award of the jury was inadequate and amounted to an abuse of the jury’s discretion. The jury awarded $1,759.59 in special damages and $3,000 in general damages.

Plaintiff contends that he sustained special damages totaling $2,417.19, consisting of $243.50 property damage, $858.69 medical expenses, and $1,315 loss of wages. As previously mentioned, plaintiff lost no wages and the jury’s award for special damages exceeded the amount specifically proven.

Plaintiff also contends that in light of today’s standards an award of general damages of $3,000 for an injury of this duration and intensity is inadequate. Plaintiff cites three cases wherein a greater award was given for somewhat similar injuries. Defendant, on the other hand, cites numerous cases involving injuries somewhat similar to those of plaintiff where the awards were less. Under the guidelines of Coco v. Winston Industries, Inc., 341 So.2d 332 (La. 1976); and Reck v. Stevens, 373 So.2d 498 (La.1979), a jury award or an award of a trial court can only be disturbed when the record clearly reveals that the trier of fact abused its discretion in making the award. While we find that the evidence indicates plaintiff may still have had some pain and discomfort more than a year after the accident and the award is on the low side, it is not so low as to constitute an abuse of the great discretion of the trier of fact.

The judgment is affirmed at plaintiff’s costs.

Affirmed.