author: WATKINS, Judge.

text:
    Paul C. RAYMOND, III and Shannon Elaine Raymond Through Judith Randolph RAYMOND, Tutrix v. James F. DEATON, and ABC Insurance Company AMERICAN FIRE & INDEMNITY COMPANY v. James F. DEATON, Southeastern Fidelity Insurance Company of Atlanta, Ga., and Sanderson Farms, Inc.
    Nos. 82 CA 0155, 82 CA 0156.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.

      William J. Wegmann, Jr., James H. Dru-ry, New Orleans, for American Fire & In-dem. Co.
    Rodney Cashe, Curtis Baham, Jr., Hammond, for Paul Raymond, III, et al.
    Claude D. Vasser, Metairie, for Sanderson Farms.
    Richard B. Nevils, Baton Rouge, for Southeastern Fidelity Ins. Co. and James F. Deaton.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   WATKINS, Judge.

This suit was instituted by Judith Raymond in her sole capacity as natural tutrix on behalf of her two minor children to recover for the wrongful death of their father, Paul Raymond, Jr., who died from injuries sustained in a collision with a large semi-trailer truck driven by James Deaton. The plaintiff filed suit against James Dea-ton, the truck driver; Southeastern Fidelity Insurance Company, the truck driver’s liability insurance carrier, and American Fire and Indemnity Company, the decedent’s insurance company, under the uninsured and underinsured motorist clause of the decedent’s policy. Deaton was insured by Southeastern to the extent of $100,000.00 and Raymond held insurance from American for underinsured motorist coverage to the extent of $50,000.00.

Consolidated with this case is a suit brought by American Fire and Indemnity Insurance Company as subrogee to the plaintiff’s right against the defendants Southeastern Insurance Company and James Deaton to recover $6,400.00. This amount represents the value of the decedent’s car, paid by American Fire and Indemnity Company to the plaintiff under the insurance policy in effect between American and the decedent. American is in a rather contradictory position because it was in American’s interest to show that Deaton was negligent so that it could recover the sum of $6,400.00 that it had paid to the heirs of Paul Raymond, but on the other hand it was in American’s interest to show that Deaton was not negligent so that American would not be liable under the underinsured motorist clause for an award in excess of $100,000.00. By stipulation the parties agreed that in the event of a judgment in favor of the plaintiffs there should also be judgment in favor of American in the sum of $6,400.00 against the same defendant, in solido.

After trial by jury, a verdict was returned in favor of the plaintiff in her representative capacity for and on behalf of the minor children, awarding general damages to each child in the principal sum of $25,-000.00, and further awarding each child $41,600.00 for loss of support and services flowing from the wrongful death of their father, or a total of $66,600.00 for each child.

In accordance with the verdict of the jury the trial court rendered judgment in favor of the plaintiff and against Deaton and Southeastern in solido in the principal sum of $133,200.00. American was permitted to recover the sum of $6,400.00 from Southeastern and Deaton. Further, American was held liable to the plaintiff in the amount of $33,200.00 under its underin-sured motorists policy. This sum represents the amount of the award in excess of the $100,000.00 limit of the liability insurance policy in effect between Southeastern and Deaton.

Southeastern, American and Deaton appeal the finding of negligence and the failure to find contributory negligence. Southeastern and Deaton also appeal the trial judge’s assessment of jury costs for the whole week of November 9, 1981 through November 14, 1981. They assert that the case did not commence until November 10, 1981, and was recessed the entire day of November 13, 1981. The plaintiff filed a separate appeal alleging that the jury abused its discretion in awarding an amount inadequate to compensate the children for the loss of their father. We amend and affirm.

The accident resulting in the death of Paul Raymond, Jr. and giving rise to this action occurred on February 2, 1980 around 12:00 midnight, when vehicles driven by Paul Raymond and James Deaton collided. Paul Raymond was an employee of the First Guaranty Bank in Hammond, Louisiana. He had two children, a son, Paul Raymond, III, who was bom of his marriage to Judith Raymond, and a daughter of Mrs. Raymond’s previous marriage, Shannon Raymond, whom he had legally adopted. At the time of the accident Paul Raymond and his wife Judith were divorced. Judith Raymond had been awarded permanent custody of the children. On the evening of the accident Paul Raymond had stopped to have drinks and dinner after work. Shortly after 12:00 midnight he left for home driving west on Highway 190. Deaton, a self-employed truck driver, was hauling a load of frozen chickens from Ha-zelhurst, Mississippi to Sanderson Farms in Hammond, Louisiana. Deaton was driving a large semi-trailer truck, commonly referred to as an “18 wheeler”, and had been traveling on Highway 51, as he approached its intersection with Highway 190. As Dea-ton entered the intersection he crossed over the east bound lanes of Highway 190, and stopped to look for oncoming traffic. He then turned left onto Highway 190 and pulled into the inside west bound lane of the highway. Shortly after Mr. Deaton pulled onto the highway the collision occurred, the right rear corner of Deaton’s truck making contact with the left front corner of the Raymond vehicle. Mr. Raymond was taken to Lallie Kemp Charity Hospital, where he died approximately two hours later from injuries sustained in the collision.

The plaintiff alleges the collision occurred in the outside lane when the 18 wheeler truck cut into the path of the Raymond vehicle and collided with the car. The defendants contend that instead Mr. Raymond had been drinking, consequently his driving ability was impaired and he ran into the rear of the 18 wheeler while it was in the inside lane. The defendants assert contributory negligence as a defense.

The jury found that the negligence of the defendant truck driver was the sole cause of the accident.

On appeal the defendants assert first that the jury erred in finding negligence on the part of James Deaton, and second that the jury erred in failing to find contributory negligence on the part of Paul Raymond.

The record indicates that the jury had evidence before it furnishing a reasonable factual basis for its finding of negligence on the part of James Deaton. It is clear from the record that the truck entered the highway, turning left into the inside lane as the decedent was lawfully proceeding in the same direction in the outside lane. Both the officer who investigated the accident and the plaintiff’s expert witness in accident reconstruction testified that the point of impact was several feet into the outside lane. Even the defendant’s own accident reconstruction expert conceded that the point of impact may have been on the center line, between the inside and outside lanes of travel.

The testimony and the record preponderate in favor of the fact that the back of the defendant’s truck was across the centerline and into the outside lane when it hit the Raymond car. Therefore we conclude that the defendant truck driver was changing lanes when he collided with the decedent’s car. This situation is governed by the rule that where a roadway has been divided into two or more traffic lanes:

“A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.” LSA-R.S. 32:79(1)

Under this statute a motorist who attempts to change lanes on a multiple-lane highway must ascertain before turning that the maneuver can be made safely without endangering normal overtaking or oncoming traffic. Jefferson v. Strickland, 242 So.2d 582 (La.App. 1st Cir.1970); Trabeaux v. Sanchez, 279 So.2d 793 (La.App. 4th Cir. 1973).

Before a plaintiff can recover for the defendant’s negligence, the defendant’s act must have been a cause in fact of the harm that occurred; the defendant must have owed a duty to the plaintiff, the duty must have been breached, and the risk and harm encountered by the plaintiff must have fallen within the scope of protection afforded by the duty which was breached. Dixie Drive It Yourself Sys. v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962).

The defendant was under a duty recognized by law requiring him to keep his vehicle within his lane of travel and not to move from that lane until he had first ascertained that such a move could be made with safety. The defendant breached this duty and negligently entered the decedent’s lane of traffic, which negligence was a cause in fact of the accident. Clearly the risk and harm encountered by the plaintiff fall within the scope of protection of the statute. The objective of the statutory provision violated in the case at hand was obviously to protect against the possibility that a motorist travelling on a multi-lane highway would enter the adjacent lane without due regard for vehicles already lawfully travelling in that lane. The law was designed to protect the plaintiff and any member of his class against the kind of accident that occurred in this case. The elements necessary for recovery being present, we find the plaintiff is entitled to an award for the wrongful death of Paul Raymond.

The defendants have cited several cases to support their contention that the operator of a following vehicle must follow at a safe distance, and if a rear-end collision occurs, the driver of the following vehicle is presumed to be prima facie negligent. Although this is a valid principle of law, it is inapplicable to the case at hand. The rule as stated in LSA-R.S. 32:81 was intended to cover the situation where the vehicle has been lawfully proceeding within the same lane as the following vehicle and a rear-end collision occurs as a result of the following motorist’s failure to maintain a safe distance or to keep a proper lookout as required by statute.

The presumption of negligence for following too close is not available to the driver of a vehicle which changes lanes into the path of another vehicle travelling such a short distance behind in the other lane that it is impossible for that vehicle to stop or avoid the collision. Raymond was either parallel with the truck so that the front end of his automobile was even with the rear end of the truck or he was following at such a short distance in the right lane when Deaton commenced driving into that lane that Raymond was unable to avoid the accident. In either case, the fault was Dea-ton’s, not Raymond’s, and the presumption referred to is without application to the facts of the present case.

The defendants also alleged that Mr. Raymond was drinking and that he may have been speeding. Both of these allegations remain unsupported by the evidence. The defendant who relies on contributory negligence as a defense bears the burden of proving negligence of the plaintiff and that such negligence was a contributory cause. Tucker v. Lirette, 400 So.2d 647 (La.1981); McElroy v. Vest, 407 So.2d 25 (La.App. 3d Cir.1981), writ denied 412 So.2d 83 (La.1982). During the course of that evening, the decedent had consumed three drinks, possibly four, along with a full course meal. The defendants have failed to show any causal relationship between the decedent’s consumption of the drinks and the accident. The defendants have failed to introduce any evidence tending to show that Mr. Raymond was intoxicated or even that his driving ability was impaired. Furthermore, we are satisfied that the decedent was not speeding, as the defendants further contended. Based on the testimony of the police officers who investigated the accident and the plaintiff’s expert witness, we are convinced that Mr. Raymond was traveling at an approximate speed of 50 mph in a 55 mph zone.

Thus, a review of the trial record shows the jury did not abuse its discretion in finding the defendant liable, nor in failing to find contributory negligence on the part of the plaintiff’s decedent. Great weight must be given the jury’s resolution of conflicting testimony on an issue of fact, especially where the credibility of witnesses is involved. Aleman v. Lionel F. Favret Co., Inc., 349 So.2d 262 (La.1977); Erdey v. Steib, 392 So.2d 131 (La.App. 1st Cir.1980). Reasonable factual conclusions of the trier of fact should not be disturbed in the absence of manifest error. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

Through the appeal taken on behalf of her minor children, the plaintiff seeks to have the award increased, alleging that the jury abused its discretion in awarding an amount inadequate to compensate the children for the loss of their father.

Awards for damages lie within the “much discretion of the trier of fact and are not to be disturbed on appeal unless there is a manifest abuse of the discretion.” Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976). Twenty-five thousand dollars ($25,000.00) to each of the children for the loss of love and affection of their father is on the low side, but we cannot say that it is so low as to constitute an abuse of discretion.

Looking to awards in similar cases, we find that an award of $40,000.00 to each child for general damages has been upheld as fair. Faulk v. Schlumberger Well Services, 412 So.2d 162 (La.App. 3d Cir.1982).

In LeJeune v. Allstate Ins. Co., 373 So.2d 212 (La.App. 3d Cir.1979), the court awarded $12,500.00 to a nine year old son for the loss of love and affection of his father. On appeal the court found the award to be inadequate and increased the award to $30,-000.00 because of the happy close knit family relationship that existed prior to the father’s death.

In another wrongful death action, an award of $7,500.00 to the decedent’s wife for loss of love and affection was held to be adequate. Davis v. Owen, 368 So.2d 1052 (La.1979).

We recognize the principle that awards in similar cases of this nature do not provide a scale of uniform awards in cases involving comparable injuries. Such awards serve only as aids in determining whether a particular award is so greatly disproportionate to awards for similar injuries that a manifest abuse of discretion is evident. Temple v. Liberty Mutual Insurance Co., 336 So.2d 299 (La.App. 1st Cir.1976), writ refused 339 So.2d 23 (La.1976).

An award of $25,000.00 is not so greatly disproportionate as to other awards for wrongful death that a manifest abuse of discretion is evident. We find that the jury was within the scope of discretion accorded by law and therefore we affirm the amount awarded by the jury.

It is our opinion, however, that the jury did abuse its discretion in awarding equal overall amounts to both of the children for loss of support. The awards should take into consideration that the periods of dependency for each child will vary because of the varying ages. Fault v. Schlumberger, supra. At the time of the death of their father, Paul Raymond III was 6, Shannon Raymond was 8. Paul would have reached the age of majority in approximately 12 years, Shannon in approximately 10 years. These years represent the years of dependency and total 22 years. A fair allocation of $83,200.00 between the children may be made by fixing the awards on a proportional basis of 12/22-10/22. Accordingly, we distribute the awards to the children for loss of support as follows:

Paul Raymond III $45,381.82
Shannon Raymond $37,818.18

Finally, Southeastern has appealed the assessment of jury costs. We find that the trial judge erred in assessing costs for the entire week of November 9, 1981 through November 14, 1981. The case did not commence until November 10, 1981 and was recessed the entire day of November 13, 1981. “The jurors who attend may demand and receive from the parish treasury twelve dollars for each day of attendance in court....” LSA-R.S. 13:3049(B). The jurors were in attendance November 10,11, 12 and 14, 1981. Therefore, the judgment should be amended to reduce the jury costs accordingly.

We note the trial court rendered judgment in favor of the plaintiff and against Deaton and Southeastern, binding Deaton and Southeastern in solido in the principal sum of $133,200.00. The trial court erred in so doing, for the liability insurance policy in effect between Southeastern and Deaton was limited to $100,-000.00 per occurrence. Southeastern can only be held liable to the extent of its liability insurance policy coverage, or $100,-000.00.

For the foregoing reasons it is hereby ordered, adjudged and decreed that the defendant James Deaton is liable to the plaintiff in the amount of $133,200.00. Southeastern is liable in solido with James Dea-ton to the extent of $100,000.00. American is liable to the plaintiff in the amount of $33,200.00. Further, American is allowed to recover $6,400.00 from Southeastern and Deaton.

Defendants are assessed with all costs, as amended.

AMENDED AND AFFIRMED.

      . Sanderson Farms was also made a defendant. The plaintiff alleged that an employer-employee relationship existed between Sanderson Farms and James Deaton, that Deaton was acting within the scope of his employment and therefore Sanderson Farms should be held vicariously liable for the acts of James Deaton. However, no employer-employee relationship could be established between Sanderson Farms and Deaton, and on the plaintiffs motion Sand-erson Farms was dismissed. The dismissal is not an issue in this appeal.


source: Caselaw Access Project

author: COVINGTON, Judge.

license: Public Domain

text:
    STATE of Louisiana v. James Earl SPIKES.
    No. 82 KA 0585.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    William J. Knight, Asst. Dist. Atty., Franklinton, for State.
    Samuel Austin McElroy, Covington, for defendant.
    Before COVINGTON, LEAR and LANIER, JJ.
   COVINGTON, Judge.

Defendant, James Earl Spikes, was charged by indictment with the murder of Lola Ratcliff on February 22,1973, in violation of LSA-R.S. 14:30. He pled not guilty and not guilty by reason of insanity. After a trial without a jury on motion of defendant’s court-appointed counsel, he was convicted of the crime charged and sentenced to life imprisonment at hard labor. Defendant, through the public defender’s office, has appealed this conviction and sentence. We affirm.

The basis upon which defendant seeks reversal is that he did not knowingly and intelligently waive his right to a jury trial, and that the deprivation of this right rendered his conviction and sentence null.

The right to a jury trial may be waived in a non-capital case pursuant to Article 1, § 17 of the 1974 Louisiana Constitution if the waiver is “knowingly and intelligently” made. The record shows that the trial judge made a sufficient effort to ascertain whether Spikes knowingly and intelligently waived a jury trial and that he understood the consequences of such a waiver. The record shows too that Spikes’ appointed-counsel at the accused’s side in open Court, “formally waive[d] his right to a jury, to a trial by jury, and ask[ed] that this matter be tried by the judge alone.” The trial judge then asked: “All right. Is that correct, Mr. Spikes?” To this question Spikes responded, “Yes sir.” The trial then proceeded to conclusion without any objection on the part of defendant.

The record supports the conclusion that the defendant was personally informed by the trial judge of his right to trial by jury before the waiver was accepted. State v. Long, 408 So.2d 1221 (La.1982). Thus, we are of the opinion that defendant made a knowing and intelligent waiver of his right to trial by jury within the principles of State v. Johnson, 389 So.2d 1302 (La.1980).

Accordingly, the conviction and sentence of James Earl Spikes are affirmed.

AFFIRMED.

      . After his arraignment, Spikes was committed to the Forensic Unit of the East Louisiana State Hospital at Jackson, Louisiana, for tests and observation. He remained at the hospital until his return for trial. Dr. Otto Havas, staff psychiatrist at the hospital, certified to the court Spikes’ competency to stand trial “in that he understands the nature and consequences of the charge pending and can assist his attorney in his own defense.” The day before the trial, Spikes was re-examined by Dr. John D. Newman, who had served on the earlier sanity commission which had committed Spikes, and Dr. Newman found Spikes competent to stand trial. Dr. Newman testified that Spikes understood specifically his right to waive trial by jury and the consequences of being tried only by the judge.


author: DOUCET, Judge.

text:
    Albert Kirk ALEXANDER, Plaintiff-Appellant, v. Anita F. LEGER, LeBlanc & Broussard Ford, Inc., and Bellefonte Insurance Company, Defendants-Appellees.
    No. 82-262.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 17, 1982.
    Rehearing Denied Jan. 6, 1983.

      Fruge & DeJean, Jack C. Fruge, Jr., Lafayette, for plaintiff-appellant.
    Voorhies & Labbe, Mark Bienvenu, Lafayette, for defendants-appellees.
    Before DOUCET, LABORDE and YEL-VERTON, JJ.
   DOUCET, Judge.

Plaintiff, Albert Kirk Alexander, filed the instant lawsuit based on an automobile accident which occurred on January 2,1979. At the trial of the case liability was admitted by defendants, Anita Leger and her insurer, and the authenticity of plaintiff’s bills, totalling $7,422.37, representing $6,970.98 medicals and $471.39 property damage, were stipulated to. The parties also stipulated to a letter from the plaintiff’s former employer indicating the wages made at the time of the accident. Thus the only issue to be decided by the District Court was the question of damages. After trial on the merits, the matter was taken under advisement by the trial judge. Subsequently, by Minute Entry dated December 22, 1981 the Trial Court found that the plaintiff had suffered a lumbar strain as a result of the accident and awarded Mr. Alexander the sum of $2,010.39, representing $750.00 in general damages, $789.00 in medical damages, and $471.39 in property damages.

The plaintiff filed a timely application for a New Trial, which was denied by the District Court. Subsequently, the plaintiff perfected a devolutive appeal.

The sole issue presented on appeal is whether the trier of fact abused his discretion in the award of damages unto plaintiff-appellant.

The standard of appellate review in cases such as the present was set forth in Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977) as follows:

“.[B]efore a Court of Appeal can disturb an award made by a trial court that the record must clearly reveal that the trier of fact abused its discretion in making its award. Anderson v. Welding Testing Laboratory, Inc., [304 So.2d 351 (La.1974) ] supra; Bitoun v. Landry, [302 So.2d 278 (La.1974) ] supra; Fox v. State Farm Mutual Automobile Ins. Co., [288 So.2d 42 (La.1973)] supra; Walker v. Champion, [288 So.2d 44 (La.1973) ] supra. Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court. Bitoun v. Landry, supra; Spillers v. Montgomery Ward & Company, Inc., [294 So.2d 803 (La.1974)] supra. It is never appropriate for a Court of Appeal, having found that the trial court has abused its discretion, simply to decide what it considers an appropriate award on the basis of the evidence.”

Although a reviewing court must give great weight to factual conclusions arrived at by the trier of fact and reasonable evaluations of credibility and reasonable inferences of fact, Cadiere v. West Gibson Products Co., 364 So.2d 998, 999 (La.1978) (emphasis ours), we are not required by the aforementioned principle to affirm the trier of fact’s refusal to accept uneontradicted testimony or greatly preponderant objectively-corroborated testimony where the record indicates no sound reason for its rejection and where the factual finding itself has been reached by overlooking applicable legal principles. West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979) and cases cited therein. For reasons to follow we find that the trial court clearly abused its much discretion in making the award herein.

The plaintiff was involved in a rear-end collision on January 2, 1979 with the defendant, Anita F. Leger, on Evangeline Thruway in Lafayette, La. Plaintiff was momentarily rendered unconscious by the collision. Mr. Alexander subsequently experienced neck, back and knee pain. Suit followed and the matter was tried on October 20, 1981.

Liability for this accident was admitted by defendant at the trial of the case. Approximately three days after the accident plaintiff went to see his family physician, Dr. Patrick Sonnier, who is engaged in the general practice of medicine in Lafayette. Dr. Sonnier had seen the plaintiff approximately two years prior when he had done a pre-employment physical for the Borden Company. Dr. Sonnier testified that when the plaintiff came to see him following the January 2, 1979 accident, he complained of low back pain and further informed Dr. Sonnier by way of history of having back trouble off and on over a period of approximately one year prior to his visit. Plaintiff told the physician about the accident, however, he did not provide explicit details. Dr. Sonnier stated that in his examination of 1977 he had obtained x-rays on the plaintiff, which established a spondylolysis L — 4, which put the plaintiff in a Class 4 category, unsuitable for heavy manual labor, which would not permit him to be hired by the Borden Company. The record indicates that spondylolysis, a defect of the bony architecture of the spine wherein fibral cartilage develops instead of true bone, is often asymptomatic and causes no problem. Trauma can aggravate the condition and make it symptomatic. In this regard, the trial judge noted that 10% of the population functioned well with such a cogenital spinal defect. Dr. Sonnier reexamined the plaintiff on one other occasion following the January 2,1979 accident, then referred him to Dr. J. Lee Leonard, an orthopedic surgeon.

Dr. Leonard testified that he first saw the plaintiff on January 15, 1979. The plaintiff had brought with him two sets of x-rays, the first being those taken in 1977 and the second set having been taken on January 5, 1979. Both were essentially the same and revealed the spondylolysis, however the expert testimony indicates that the fact the condition has become symptomatic may not be revealed by x-ray. Dr. Leonard performed a complete examination and testified that although plaintiff was “intact” from a neurological standpoint, he was of the opinion plaintiff might have sustained a contusion to his low back. Plaintiff was reexamined nine days later at which time Dr. Leonard felt the condition was improving and he noted no spasm in his patient’s back. He was asked to return in two weeks. Again examination revealed no nerve root pain although the plaintiff was complaining of leg pain. Dr. Leonard saw the plaintiff again on April 11, 1979, at which time he found no spasm present in his back, but the patient complained of pain with any motion about the lumbar spine. Dr. Leonard concluded after this examination that he was unable to find any firm pathology about this patient and felt he could offer plaintiff no assistance. Accordingly, Mr. Alexander was released from his care.

On May 23,1979 plaintiff visited with Dr. Louis Blanda, a Lafayette orthopedic surgeon, and informed him of his spondylolysis. He further informed Dr. Blanda of his accident but made no mention of back pain preceeding the accident, apparently believing that his prior pain was inconsequential when compared to his present suffering. Conservative treatment was recommended which included a prescribed corset and exercises. Mr. Alexander was seen by the doctor again on June 27, 1979, August 22, 1979, and October 29, 1979. At the last of the aforementioned visits an electromylo-graphic study was recommended which was performed by Dr. Norman Anseman on November 2,1979. The results revealed nerve damage at the L-5 and S-l level on the right side. Plaintiff missed several subsequent appointments apparently due to his, incarceration, addressed more fully hereinafter.

While en route to a scheduled appointment with Dr. Blanda on March 26, 1980, plaintiff was involved in a second automobile accident with a Mr. Mack Crayton.

On April 7, 1980 plaintiff made a fifth visit to his treating physician at which time he related that the second accident had increased his pain but that x-rays taken at the hospital following said accident revealed no accute problems other than the pre-existing spondylolysis. Dr. Blanda felt Mr. Alexander would need a myelogram and probably tomograms of the spondylo. Accordingly, on May 5,1980, Mr. Alexander was admitted to Lafayette General Hospital for diagnostic studies.

The physician and patient reviewed the test results on May 21,1980, and the former recommended a decompression laminectomy and a spinal fusion. Three check-up visits followed.

On December 4,1980, Mr. Alexander was admitted to Lafayette General Hospital for a period of twelve days during which Dr. Blanda performed the laminectomy and pre-operative tomograms were conducted. Following surgery Dr. Blanda noted plaintiff was recovering well from the operation and gave instructions to continue using the brace and remain relatively inactive for a period of about six weeks. Plaintiff was reexamined on February 2, 1981.

When seen on August 5, 1981, plaintiff reported a marked improvement since surgery. Use of the brace was discontinued but Mr. Alexander was advised to restrict himself to light activities.

In testifying about plaintiff’s treatment Dr. Blanda noted that he believed Mr. Alexander’s complaints to be legitimate. He also felt that, due to plaintiff’s condition, he would be prohibited from performing heavy manual labor in the future — the same limitation imposed on plaintiff’s employability by Dr. Sonnier during his pre-employment examination relative to his application with the Borden Company.

With respect to non-medical events of plaintiff occurring during the applicable time periods the record indicates that Mr. Alexander encountered difficulties with the law following his employment discharge occasioned by the accident. It appears that plaintiff was involved in criminal activity on at least two occasions prior to trial. As a result of burglary and theft charges the plaintiff was incarcerated on separate occasions for a period totalling approximately nine months.

As we understand the trial court’s minute entry explaining its judgment, it did not reject the medical testimony of the expert medical witnesses who corroborated plaintiff’s complaints. Rather, the trial court doubted plaintiff’s credibility due to his criminal record, prior back problems and subsequent automobile accident. From the review of facts hereinabove we conclude that the trial judge imposed a greater burden of proof than is required by our jurisprudence.

With regard to plaintiff’s history of back problems, we observe that plaintiff worked at manual labor without serious difficulty or complaint. The injured plaintiff was obviously in the best position to know his suffering and he constantly ascribed the 1979 accident as causing the pain complained of. We see no reason to doubt his credibility particularly in light of the corroborating medical testimony. Although there were differences of medical opinion, with some physicians being unable to find objective data to support plaintiff’s complaints, the evidence preponderates that the accident caused plaintiff’s spondylolysis to become symptomatic. In this respect, it is well established that positive findings of medical experts are to be afforded greater weight than negative findings as to the existence or not of a particular condition. Comeaux v. Cameron Offshore Services, Inc., 420 So.2d 1209, (La.App. 3rd Cir.1982) Docket No. 82-173; Smith v. Highland Ins. Co., 222 So.2d 540 (La.App. 4th Cir.1969). Equally well established is the axiom that aggravation of a pre-existing condition is compensable.

Furthermore, plaintiff’s uncontradicted testimony was to the effect that the subsequent accident played a minor role in his back problems. His testimony was corroborated by Dr. Blanda who stated:

“.... I do not feel that this last automobile accident which occurred on March 26, 1980 is responsible for a great deal of his problems, but that the initial accident in December of 1978 (January 2, 1979 is the correct date) in which he was involved is the culprit for the aggravation of his spondylolysis.”

The difficulty of apportioning causation did not justify the trial judge’s award.

Plaintiff’s criminal record is of doubtful relevance except insofar as it may be relevant to any claim for lost wages. We are cited to no authority which would permit an adverse inference to be drawn, in a civil proceeding, due to plaintiff’s past incarceration, under the circumstances.

Appellant cites the following cases as suggestive of an appropriate award: Verret v. Chotin Transportation Co., Inc., 356 So.2d 1067 (La.App. 3rd Cir.1978); Spain v. Travelers Indemnity Co., 321 So.2d 10 (La.App. 3rd Cir.1975); McDonald v. South Central Bell Telephone Co., 377 So.2d 1044 (La.App. 3rd Cir.1979) and Huval v. Sinitiere, 376 So.2d 548 (La.App. 3rd Cir. 1979). All are inapposite as they involve affirmation of the trial court’s award. As aforementioned, only after finding that the trial court’s award was clearly inadequate may an appellate court raise the award, and then only to the extent of raising it to the lowest point which is reasonably afforded the trial court. Reck v. Stevens, 373 So.2d 498 (La.1979); Coco v. Winston Industries, Inc., supra. Furthermore, no two cases are ever fully alike and whether two cases are so similar as to produce like quantum judgments is hardly discernible by gleaning the facts of the comparable decision from simply a written opinion of an appellate tribunal. Coco v. Winston Industries, Inc., supra. Thus each personal injury must be evaluated according to its own peculiar facts and circumstances. Wilkinson v. Hartford Accident and Indemnity Co., 421 So.2d 440 (La.App. 3rd Cir.1982) Docket No. 8006; Profit v. Linu, 346 So.2d 253 (La.App. 1st Cir.1977).

As aforementioned, the medical expenses and property damage were stipulated to and the evidence preponderates that they were the result of the accident herein.

Appellant further claims a loss of wages. At the time of the accident plaintiff was employed with a monthly guarantee of $950.00 based on a 60-hour work week. Wages at the time of injury are usually suggestive of future earnings. Coco v. Winston Industries, Inc., supra. We find, that in reasonable probability, the lowest sum the plaintiff would have earned but for his injuries is the amount he earned at the time of the accident. As aforementioned, when plaintiff visited Dr. Blanda on August 5, 1981, he reported a marked improvement and discontinued use of the brace and we construe this as the date upon which plaintiff was returned to his pre-acci-dent status of restricted activity. Thus there was a disability period of approximately 31 months. However, the record is inconclusive as to the length of time during which plaintiff was incarcerated. At the very most, plaintiff was incarcerated for periods totalling 12 months. Therefore, in accordance with rules of restrictive amendment of awards, we feel 12 months should be deducted from the 31 months of disability due to plaintiff’s incarceration. Hence, lost wages will be calculated on the basis of 19 months at $950.00 per month.

Finally, under the facts peculiar to this case, we consider an award of general damages in the sum of $15,000.00 to be appropriate.

In conclusion, our review of the record convinces us that the lowest amount which the trial court could have reasonably awarded is $7,422.37 in medical and property damages, $18,050.00 in lost wages, and $15,000.00 in general damages.

For the reasons assigned, the quantum judgment of the district court is hereby set aside, and plaintiff is hereby awarded the sum of FORTY THOUSAND, FOUR HUNDRED SEVENTY-TWO AND 37/100 ($40,472.37) DOLLARS. In all other respects, the judgment of the trial court is affirmed. Defendant to pay all costs.

AMENDED AND AFFIRMED.


text:
    Brandon MASON v. LIBERTY MUTUAL INSURANCE COMPANY, et al.
    No. C-0308.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 17, 1982.
    Writ Denied Jan. 10, 1983.
    Robert Manard, III, New Orleans, Bruce Borrello, Metairie, for relator.
    Lawrence A. Arcell, New Orleans, for respondents.
    Before GULOTTA, AUGUSTINE and BARRY, JJ.
   WRIT OF MANDAMUS

In this writ application, plaintiff-relator complains the trial judge, on a motion for summary judgment, erred in holding plaintiff’s only possible cause of action is in negligence under LSA-C.C. Art. 2315 and not under alternate strict liability theories of LSA-C.C. Arts. 2317 and 2322.

Plaintiff, an employee of a renovation contractor, seeks recovery for personal injuries sustained in a fall while working on a roof of a residence. Plaintiff alleged liability of the owner of the residence based on three theories: 1) negligence of the owner in failing to provide plaintiff with a safe place to work and to warn him of a defect in the house; 2) strict liability under LSA-C.C. Art. 2317 in that the house was in the owner’s care, custody, and control at the time of the accident; and 3) strict liability under LSA-C.C. Art. 2322 in that the accident was caused by the ruin of the building. The owner filed a motion for summary judgment dismissing plaintiff’s suit.

The trial judge denied the motion for summary judgment, but stated in written reasons:

“At the conclusion of brief arguments, the Court requested the submission of ‘Memoranda’, as well as supporting depositions which would jurisprudentially eliminate the applicability of La.R.C.C. Articles 2317 and 2322. The Court being of the opinion that it was never intended that those two (2) articles should destroy the basic protections afforded owners of immovables who seek to maintain their property in a proper state of repair....
This Court agrees that the 'strict liability’ imposed by R.C.C. 2322 is not applicable to the facts of this case. In our view it was never intended that a repairman could recover against an owner if said repairman is attempting to respond to the call to make repairs....
This Court believes that the only cause of action that the plaintiff has is grounded in R.C.C. 2315. If and only if, plaintiff is able to show that the defect was the proximate cause of plaintiff’s injury and that defendant, Sagona [owner], failed to warn plaintiff of the existence of the defect....
This Court is mindful that plaintiff would like to bring his allegations within the ambit of R.C.C. Art. 2322. But the article has no application where an owner is wary of the sturdiness of his property and decides to take steps to repair it. The very reason for plaintiff’s presence was to determine whether the porch was in need of major repairs or demolition

Although the judgment denies defendant’s motion, the written reasons effectively grant a partial summary judgment in defendant’s favor by prohibiting plaintiff from asserting theories of recovery based on strict liability. We conclude the trial judge erred in limiting plaintiff to proceeding only on a negligence theory.

In Olsen v. Shell Oil Co., 365 So.2d 1285 (La.1978), the Supreme Court held that to impose liability under LSA-C.C. Art. 2322 on the owner of a building there must be: 1) a building; 2) the defendant must be the owner; and 3) there must a “ruin” caused by a vice in construction or neglect to repair that occasions the damage sought to be recovered. The Court quoted with approval the following language in Camp v. Church Wardens, 7 La.Ann. 321, 325 (1852), a suit by an injured bricklayer against an owner, concerning the application of the verbatim predecessors of LSA-C.C. Arts. 660 and 2322: “They [the codal provisions] are evidently founded in an enlightened view of public necessity. They protect the neighbor; the passenger in the street; and it would be singular; indeed, if the men at work at the building were excluded from their just and salutary operation.” (Emphasis ours)

More recently, in Fonseca v. Marlin Marine Corp., 410 So.2d 674 (La.1981), the owner of a barn under construction was held liable under LSA-C.C. Art. 2317 to a workman injured in a fall from a scaffold in the owner’s custody. In the original opinion, the Supreme Court also held the owner liable under LSA-C.C. Art. 2322, citing Olsen v. Shell Oil Co., supra. The Court stated: “Article 2322 makes the owner of a building answerable in damages to any person who is injured — while rightfully inside or outside the building — in an accident caused by the owner’s neglect to repair the building or from a vice (defect) in its original construction.”

On rehearing in Fonseca, however, the Court expressed doubt concerning liability under LSA-C.C. Art. 2322 because the “temporary scaffolding” on which plaintiff was injured did not constitute a vice in the original construction but rather was “merely an apparatus used by the contractors in performing that construction, never intended as a permanent part of the building for whose original construction vices the Code holds the owner of the building liable.” We do not interpret the language on rehearing as an expression of the Supreme Court’s intention to insulate an owner of a building from a claim of strict liability under LSA-C.C. Art. 2322 to a repairman who is injured through the owner’s neglect to repair or from a vice in the original construction.

We distinguish Temple v. Gen. Ins. Co. of America, 306 So.2d 915 (La.App. 1st Cir. 1974) and Matthews v. Southern Amusement Company, 199 So.2d 403 (La.App. 3rd Cir.1967), relied on by the trial judge. In Temple, a workman sought damages for injuries sustained when a brick wall under construction collapsed. The Third Circuit held LSA-C.C. Art. 2322 did not apply since the collapsing wall had been newly constructed by the workman and did not fall to “ruin” caused by the owner’s “neglect to repair it” or a “vice” in its original construction. Significantly, in Temple, the trial judge’s written reasons quoted with approval by the appellate court, indicated the trial court would have ruled otherwise “.... if the renovative work had been instigated to correct loss or deterioration unrelated to an outside force and if the damages had been caused by said dilapidation.” Likewise, in Matthews, a wrongful death action for a workman killed by falling materials while demolishing a building, the Third Circuit held LSA-C.C. Art. 2322 did not apply to a building during its demolition. In our case, plaintiff claims injury from “ruin” of a building while working on . a defective roof during renovation. Temple and Matthews are clearly distinguishable.

Stine v. Creel, 417 So.2d 1243 (La.App. 1st Cir.1982), also relied on by the trial judge, is closer to our case, yet also distinguishable. In Stine, a workman suffered injuries when he fell through the roof of a warehouse under repair. The First Circuit held the warehouse owner was not strictly liable under LSA-C.C. Arts. 2322 and 2317 since it was “not the ruin of the roof” that caused the injury but rather “the unsafe manner by which Stine [plaintiff] sought to remove the roof section that caused his fall.” From our reading of the opinion, we conclude that the plaintiff in Stine was not entitled to recovery under strict liability theories because of his own “victim fault.” We do not interpret Stine, an appeal after a trial on the merits, as authority to foreclose an injured workman from asserting theories of recovery against an owner based on LSA-C.C. Articles 2317 and 2322. The repairman’s own “fault” in causing his injuries may be a viable defense to be asserted by the owner, but the plaintiff’s status as a repairman does not prohibit him from advancing strict liability theories at trial.

For the foregoing reasons, we affirm the judgment of the trial court denying defendant-respondent’s motion for summary judgment. That portion of the judgment foreclosing plaintiff-relator from asserting theories of liability based on LSA-C.C. arts. 2317 and 2322, however, is rescinded and set aside. The matter is remanded for further proceedings.

      . LSA-C.C. Art. 2317: Acts of others and of things in custody;
      We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.
      LSA-C.C. Art. 2322: Damage caused by ruin of building:
      The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice in its original construction.


author: REDMANN, Chief Judge.

text:
    Deborah Locascio CABONE, et al. v. MELBA ICE CREAM CO., INC. and Ina Corporation.
    No. 13199.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 29, 1982.
    Dennis P. Couvillion, New Orleans, for plaintiffs-appellants.
    Thomas P. Anzelmo, Sr., McGlinchey, Stafford, Mintz & Cellini, New Orleans, for defendants-appellees.
    Before REDMANN, C.J., and GULOTTA and SCHOTT, JJ.
   REDMANN, Chief Judge.

This appeal and answer question:

1) Adequacy of awards to a husband and wife for damages from release of ammonia (by defendant’s “safety valve”) into their home while the wife and children were present but the husband not; and

2) Recoverability of general damages and psychiatric costs incurred by the husband on learning of the wife’s having been subjected to ammonia.

The wife both was exposed to ammonia and fell downstairs while fleeing. Her treating surgeon diagnosed “acute bronchitis on the basis of inhaling noxious ammonia fumes, acute cervical strain, and acute lumbosacral strain.” An ophthalmologist treated her twice for eye irritation. A psychiatrist diagnosed “anxiety reaction with moderate to severe depression precipitated by the ammonia explosion.” The trial judge awarded her “$6,200 for pain and suffering, mental anguish and psychological damage.”

That award, the wife argues, is “inadequate and fails to award damages for future psychological damage,” and therefore constitutes an abuse of discretion. Our answer is that our function as a reviewing court must concede the inescapable primacy of the trier of fact in factual issues and not substitute our judgment (even if equally reasonable) for his, Canter v. Koehring Co., 283 So.2d 716 (La.1973), and not alter quantum unless we can articulate an abuse of his “much discretion” within C.C. 1934(3), Reck v. Stevens, 373 So.2d 498 (La.1979). We are unable to articulate an abuse of that discretion in this case, notwithstanding that another trier of fact might have awarded a different amount.

In respect to future psychiatric medical expenses not awarded, we note that the psychiatrist was first seen a year and eight months after the incident, and that the psychiatrist’s proposed regimen for the wife was the same and with the same un-specifiable duration (six months to two years) as for the husband. The trial judge was obviously of the view that the need for further psychiatric treatment was not established, presumably because he did not believe the psychiatrist (and not because, if believed, the psychiatrist’s testimony was insufficient: see Jackson v. United States F. & G. Co., 382 So.2d 223 (La.App. 3 Cir.1980)). Disbelief is more probable because of both the amount of the award and its description including merely “mental anguish and psychological damage” rather than “traumatic neurosis” as the wife argues. This, too, is a matter governed by Canter.

The husband, on arriving at his home, “smelled the ammonia and went around asking where my family was at, I asked several people and nobody knew so I saw this one, ... he told me . .. and I went to [a neighbor’s] house and I witnessed my wife foaming from the mouth just as red as can be and gagging.” A year and eight months later he went to a psychiatrist, who diagnosed “anxiety reaction, chronic severe, with moderate depression precipitated by trauma of the ammonia explosion.” (The husband was not present when the safety valve released the ammonia.)

The husband argues that the $1,225 award to him for “mental anguish, fear and fright” was inadequate (and further fails to award future psychiatric treatment), and defendant argues no award should be made to him for general damages nor “for medical expenses which may have been incurred by him” (for his own psychiatric treatment).

Defendant does not point out any part of the $2,484.98 medical award as attributable to the husband. Our review of the record shows that, notwithstanding that he expended $350 or that the trial judge did award general damages to him and thus might be expected to award his medical expenses, the total award for medical expenses does not exceed the expenses for the other family members. We therefore decline to consider the award as including the husband’s personal medical expenses.

We do reverse as unrecoverable the award to the husband of general damages for his suffering etc. on learning of his wife’s (and children’s) injuries. Young v. South Central B. Tel. Co., 412 So.2d 147 (La.App. 4 Cir.1982).

Amended to delete the award of $1,225 to Frank Locascio and otherwise affirmed. Costs of appeal to be divided equally.


author: SCHOTT, Judge.

text:
    STATE of Louisiana v. Everett GRANDERSON.
    No. K 0238.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 29, 1982.

      Harry E. Connick, Dist. Atty., Stephen Laiche, Asst. Dist. Atty., New Orleans, for relator.
    William E. Rittenberg, Atty. at Law, New Orleans, for respondent.
    Before SCHOTT, KLEES and WILLIAMS, JJ.
   SCHOTT, Judge.

We granted certiorari in order to consider the trial court’s grant of defendant’s motion to suppress codeine found in a briefcase in the trunk of defendant’s automobile.

At about 12:10 AM on August 21, 1982, three plainclothes detectives of the New Orleans Police Department were on routine patrol in an unmarked car in what they described as a high crime area. They observed defendant in his parked automobile across the street passing something to two individuals on a motorcycle. Defendant caught sight of the officers and drove away at a high rate of speed, spinning the car’s wheels. The officers stopped defendant for making an improper start and upon reaching the car observed through the open, passenger side, front window four marijuana cigarettes on the front seat. They opened the trunk of the vehicle and found a briefcase which they opened after they took defendant to Central Lockup. The briefcase contained codeine.

In the trial court defendant relied on State v. Bible, 406 So.2d 138 (La.1981) which was decided on remand from the United States Supreme Court pursuant to Robbins v. California, 453 U.S. 420, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981). In Bible the result in defendant’s favor was mandated by Robbins.

However, in United States v. Ross, - U.S. -, 102 S.Ct. 2157, 72 L.Ed.2d 572 Robbins was overruled and the court held:

“If probable cause justifies the search of a lawfully stopped vehicle it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.”

In the instant case defendant’s vehicle was lawfully stopped and the search was justified under the “plain view” doctrine. Undoubtedly the trial court relied on the Robbins and Bible cases now defunct in the light of Ross.

Accordingly, the judgment of the trial court suppressing the codeine as evidence is reversed and the case is remanded to the trial court for further proceedings.

REVERSED AND RENDERED.


text:
    Peter GIACONA and Cheryl L. Morgan v. CONTI COMMODITY SERVICES, INC.
    No. CA-0054.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 1, 1982.
    Writ Denied Jan. 28,1983.

      Richard J. Meunier, Meunier, Martin & Meunier, New Orleans, for plaintiffs-appellants.
    Robert H. Murphy, A.C., Marc G. Shac-hat, Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, for defendant-appellee.
    Before SCHOTT, AUGUSTINE and LO-BRANO, JJ.
   SCHOTT, Judge.

This is a claim for 1) commissions allegedly earned by plaintiffs, Peter Giacona and Cheryl L. Morgan, while employed by defendant, 2) penalties and attorney fees pursuant to LSA-R.S. 23:631 and 632, and 3) the balances on deposit by plaintiffs in savings accounts held by defendant. Defendant responded with a dilatory exception of prematurity pursuant to C.C.P. Art. 926(1) on the ground that plaintiffs had agreed to submit such disputes to arbitration when they accepted employment by defendant. After the trial court overruled the exception, defendant successfully invoked the supervisory jurisdiction of this court. We held that the employment contracts calling for arbitration were enforceable, reversed the trial court and dismissed the suit. Giacona v. Conti Commodity Services, Inc., 409 So.2d 690 (La.App. 4th Cir.1982). However, the Supreme Court, 413 So.2d 487 (La.1982), granted plaintiffs’ application for writ of certiorari and review and made the following disposition of the case:

“February 19, 1982
Writ granted. Judgment of the Court of Appeal is reversed. The Court of Appeal apparently decided this case on the strength of an exhibit to a writ application, an exhibit not made part of the record in the trial court. The case is remanded to the district court for re-trial of the exception of prematurity, with the parties being afforded the opportunity to introduce all relevant evidence.”

The record is unclear as to what the trial on remand consisted of. It contains a request for admissions submitted by defendant to plaintiffs on February 24, 1982, plaintiffs’ answer to the request on March 5 and an affidavit by defendant’s local manager dated May 14. However,' there is no testimony or note of evidence so that the case was apparently submitted simply on the admissions and the affidavit. On May 18 the trial court sustained defendant’s exception and dismissed plaintiffs’ suit from which judgment they have appealed.

In answer to the request for admissions plaintiffs acknowledged the authenticity of their signatures on two documents which purport to be employment contracts between plaintiffs and defendant. The first is a letter to defendant by plaintiff, Giaco-na, dated August 6, 1975, which concludes as follows:

“It is understood that any controversy between us arising out of my employment or the termination of my employment shall be settled by arbitration in accordance with the arbitration procedure prescribed in the rules then obtaining of the Chicago Board of Trade.”

The second document is a letter to defendant by plaintiff, Morgan, dated February 11, 1981, which concludes as follows:

“I agree that any controversy between us arising out of my employment or the termination shall be settled by arbitration in accordance with the arbitration rules of the Chicago Board of Trade then in effect.”

The trial court found that these letters were contracts between the parties to arbitrate the claims and effectively ordered arbitration by dismissing the suit.

In this court plaintiffs contend that the letters do not constitute contracts to arbitrate, the enforcement to arbitrate would violate public policy of workers’ rights, there is no dispute with respect to plaintiffs’ claim for interest on their savings such as to warrant arbitration, and the rights of plaintiffs would be prejudiced if they were forced to arbitrate before the Chicago Board of Trade. Defendant stands pat on the general rules that arbitration is favored and that parties who agree to such are bound to carry out their agreement to arbitrate. We are disposed to decide this case on other grounds.

The letters signed by plaintiffs incorporate by reference the arbitration procedure prescribed by the Chicago Board of Trade. However, neither of the parties saw fit to introduce the rules of this Board. As far as the record is concerned we can only speculate that these rules would permit the Board to hear this dispute. Before their suit is dismissed, plaintiffs are entitled to a judicial determination that the Board will entertain their case and such a determination can only be made upon reference to the rules of the Board.

In their brief to this court plaintiffs included a copy of the Board’s arbitration rules sent to them by defendant on June 14, 1982. Section 610.00 of these rules provides as follows:

“610.00 What Disputes May be Arbitrated — The policy of the Association is to encourage, but not to compel, the arbitration of disputes. Persons (members or non-members) desiring to arbitrate any dispute shall notify the Secretary, who shall thereupon submit to the parties for their signatures, a form of agreement, submitting the dispute to arbitration. The rules in this Chapter 6 shall be an integral part of every arbitration agreement, and the signatures of the parties to such agreement shall be their conclusive consent that these Rules will govern the proceedings. After the parties have signed such agreement, the Secretary shall refer the dispute to the Committee of Arbitration.”

Several problems arise from this section which should be considered by the trial court. The policy of the Board is apparently to entertain only voluntary submission of disputes by both parties. Furthermore, in order for the Board to become involved it must have a notification by plaintiffs as well as defendant that they now desire to arbitrate. Finally, upon receipt of such notice the Board’s Secretary secures the signatures of the parties, i.e., plaintiffs and defendant on a form of an agreement.

Considering these provisions it seems that the letters signed by plaintiffs may not constitute agreements to arbitrate before the Chicago Board of Trade since such agreements can only be confected in accordance with Section 610.00 quoted above. The trial judge should consider the agreements in the light of whether they contain potestative conditions under C.C. Arts. 2024, 2034 and 2035. They may be nothing more than agreements to agree or not on something further, considering the Board’s Section 610.00. The following from Franks v. Louisiana Health Ser. & Indem., 382 So.2d 1064 (La.App. 2nd Cir.1980) seems pertinent:

“The jurisprudence establishes that only those potestative conditions which are dependent solely upon the will, whim, or caprice of the obligor invalidate the contract. See Guice, Professional Billing, and D’Arbonne, supra. If the condition shows on its face that the obligor may or may not fulfill his obligation as per his desire, then the obligation is null. However, if the condition imposes on the obli-gor the duty of making a sincere effort to fulfill the obligation, then the fact that the obligor is in a position to hinder or prevent the execution of the contract does not make the contract null. The cited decision set forth the rule that the obligor has the duty to reasonably perform the condition which is a condition precedent to the obligation.”

(emphasis added).

According to the rules of the Chicago Board of Trade it will entertain a case only if the parties “desiring to arbitrate” notify the Board’s Secretary. It may be that such notification of the Board’s Secretary was a condition in each letter which plaintiffs “may or may not” carry out today when it comes time to commence arbitration. The trial judge should consider these issues in the light of the rules of the Board of Trade.

This case is distinguishable from Wright v. Round the Corner Restaurants of La., Inc., 252 So.2d 341 (La.App. 4th Cir.1971). There the arbitration agreement specifically provided that arbitration would be conducted in Denver, Colorado, and the court concluded that the “fairness” of this arrangement was not in question because the parties were bound by their agreement. In the instant case the letter agreements did not specify that arbitration would take place in Chicago and, standing alone, are somewhat ambiguous on the point. The court may reach a different result from the cited case, especially considering that plaintiff, Morgan, is claiming but $258.13 in unpaid commissions.

We are mindful of the problem that we do not ordinarily consider material outside the record and, yet, we are influenced by the Board of Trade Rules which have come to our attention through plaintiffs’ brief. C.C.P. Art. 2164 provides that our judgment should be “just, legal, and proper.” Considering that the case was previously remanded to the trial court “with the parties being afforded the opportunity to introduce all relevant evidence” and that the rules of procedure of the Chicago Board of Trade are especially relevant to a determination of the rights of the parties, we have concluded that the case should again be remanded to the district court.

We have also considered whether the action we are taking is contrary to the previous decision of this court in this same ease such as to fly in the face of the law of the case doctrine or the policy of this court that one panel does not reverse another panel of the court. This presents no problem because the basis for our present decision is the content of the Board’s arbitration rules which was not available to the previous panel as it was not available to the trial court.

Accordingly, the judgment appealed from is reversed and set aside and the case is remanded to the district court for the purpose of allowing the rules of procedure of the Chicago Board of Trade as to arbitration to be introduced into evidence along with any other relevant evidence the parties may wish to introduce and for the trial court to consider such evidence and decide the case in accordance with the views expressed herein.

REVERSED AND REMANDED.


author: BARRY, Judge.

text:
    SUCCESSION OF Sidney O. TROSCLAIR.
    No. 13182.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 1, 1982.
    Julio Romanach, Jr., Romanach & Lawrence, New Orleans, for petitioner-appellant, Beulah Mae Trosclair Gaither.
    Elmer D. Flanders, Dudley D. Flanders, Flanders & Flanders, New Orleans, for petitioner-appellant Sidney Mae Trosclair Tillman.
    Nils R. Douglas, Douglas, Nabonne & Wilkerson, New Orleans, for appellees.
    Carl J. Selenberg, Metairie, for defendant-appellee Mary McFadden Trosclair.
    Before REDMANN, BARRY and BYRNES, JJ.
   BARRY, Judge.

Two alleged acknowledged illegitimates appeal the dismissal of their petitions seeking recognition of heirship based on Succession of Brown, 388 So.2d 1151 (La.1980), which declared LSA-C.C. Art. 919 unconstitutional.

Decedent, Sidney 0. Trosclair, died intestate on May 27, 1975 and was survived by his spouse in community, one sister, five brothers and children of two pre-deceased brothers. He had been married three times but no children were born during any of the marriages. Mr. Trosclair’s estate consisted primarily of property located at 8333 Pritchard Place in New Orleans. In April, 1976, Sidney Mae Trosclair Tillman, one of the alleged acknowledged illegitimate children, petitioned to be appointed administra-trix of the estate and in March, 1979, she sued to be recognized as an acknowledged child and sole heir of the decedent. This petition was answered in August, 1979 by Beulah Mae Trosclair Gaither, the other alleged acknowledged illegitimate child, who denied Sidney Mae’s right to be recognized as sole heir.

In March, 1981, in conjunction with an agreement to sell the Pritchard Place property, a stipulation was entered between the surviving spouse, the collateral heirs and the two alleged illegitimate children wherein all would receive a certain sum from the proceeds of the proposed sale. According to one of the briefs, the sale fell through due to the buyer’s failure to obtain financing.

In June, 1981, Beulah Mae filed a petition for proof of filiation. The collateral heirs answered with exceptions of no cause or right of action urging Succession of Brown, supra, has prospective application only, citing Succession of Ross, 397 So.2d 830 (La. App. 4th Cir.1981). On July 8,1981, Sidney Mae filed a petition for proof of filiation. The illegitimates’ petitions were consolidated and on September 29, 1981 the Trial Judge dismissed the petitions by holding that Brown applies prospectively to successions where the decedent died after September 3, 1980 when Brown was rendered. Mr. Trosclair died March 27, 1975, therefore, the lower court concluded Brown was inapplicable. The court also held if Brown was declared retroactive on appeal, then there was no compromise agreement which resolved the equities of the parties. The two illegitimates filed this appeal.

The primary issue is whether Succession of Brown, supra, is applicable. Appellants also urge two other grounds: (1) Act 549, § 4 of 1980 provided appellants with legislative authority, independent of Brown, to assert their succession rights, and (2) an agreement was entered between all parties whereby each would receive a certain portion of the proceeds whenever Pritchard Place was sold.

APPLICATION OF SUCCESSION OF BROWN

Brown held that LSA-C.C. Art. 919 denied equal protection to illegitimates in violation of Art. 1, § 3 of the 1974 Louisiana Constitution and the United States Constitution and was the progeny of Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977). Trimble held that an illegitimate who can prove filiation has the same standing as a legitimate heir in state intestate successions.

Appellees argue this Court has determined on three occasions that Brown does not apply retroactively: Succession of Ross, 397 So.2d 830 (La.App. 4th Cir.1981); Succession of Clivens, 406 So.2d 790 (La.App. 4th Cir.1981); and Villanueva v. Schwall, 408 So.2d 1186 (La.App. 4th Cir.1982). However, we note the First Circuit applied Brown retroactively. Succession of Richardson, 392 So.2d 105 (La.App. 1st Cir.1980), writ denied, 396 So.2d 1324 (La.1981).

Appellants maintain the Trial Judge erred in making the date of decedent’s death the determining factor. We agree. This litigation is on-going, no judgment of possession has been rendered, and that distinguishes this ease from those which turn on the effective date of Brown.

This Court’s concern has been the “substantial inequity [that] would result if all prior judgments of possession which relied on the substantive law of LSA-C.C. Art. 919 were declared invalid, and such a holding would engender new litigation in each case where there had been such a justified reliance.” Succession of Ross, supra, at P. 831. (Emphasis added) In this case no property rights have been acquired based on Art. 919, the old rule. There has been no reliance on the prior law, no prior judgments need be overturned, and no injustice or hardship will result. Instead, the equal treatment to illegitimates mandated by Brown will be accomplished. Accordingly, there is no reason to deny appellants the benefit intended by Brown if they can prove their filiation.

AGREEMENT TO SELL

In March, 1981, an offer to purchase the Pritchard Place property for $89,000 was received. All parties entered into an agreement (there are three agreements in the record) whereby each “heir” and the surviving spouse would receive a certain portion of the sale proceeds. The sale fell through. Appellants argue “(i)t was understood by all parties that should the sale fall through, the siblings would get a proportionately higher or lower amount, depending on the amount of the new offer.” The lower court held there was no surviving agreement.

The sell agreements make no reference to a compromise of the parties’ rights beyond the proposed sale. The language does not set forth or imply any intention to make the agreement binding on any future sale. There is no provision in the agreement should the sale fall through. The agreement speaks in terms of “this sale” and sets out specific amounts to be given to the parties. We agree there was no intent to compromise beyond the ill-fated sale.

ACT NO. 549, § 4 of 1980

Finally, appellants assert this legislative act provides an additional basis, independent of Brown, to assert their rights in this succession. Section 4 provides:

Any illegitimate child nineteen years of age or older shall have one year from the effective date of this Act to bring a civil proceeding to establish filiation under the provisions of this Act and if no such proceeding is instituted within such time, the claim of such an illegitimate child shall be forever barred.

Under this circumstance where the succession proceeding is pending, allowing alleged illegitimate children to bring actions to establish filiation will not endanger the soundness of titles or affect third parties. Both of these illegitimate children filed petitions to establish filiation within the prescribed time. An acknowledged illegitimate whose rights have not been litigated can assert those rights against other heirs in an intestate succession. Succession of Clivens, 426 So.2d 585 (La.1982).

Accordingly, the judgment of the district court is reversed and set aside. The exceptions of no right and no cause of action are overruled and this matter is remanded for further proceedings.

REVERSED; REMANDED.

      . LSA-C.C. Art. 919:
      Illegitimate children are called to the inheritance of their father, who has duly acknowledged them, when he has left no descendants nor ascendants, nor collateral relations, nor surviving wife, and to the exclusion only of the State.
      In all other cases, they can only bring an action against their father or his heirs for alimony, the amount of which shall be determined, as is directed in the Title: Of Father and Child

      This article was amended by Act 607 of 1979. No substantive change was made. The word “illegitimate” was substituted for “natural” as the first word and “natural” was eliminated preceding the word “father”.

      . Section 4. Any illegitimate child nineteen years of age or older shall have one year from the effective date of this Act to bring a civil proceeding to establish filiation under the provisions of this Act and if no such proceeding is instituted within such time, the claim of such an illegitimate child shall be forever barred.

      . Succession of Clivens, 426 So.2d 585 (La.1982), reversed this Court and said: “Limiting the retroactive effect of Brown to rights against coheirs in intestate successions would best balance the equities involved.” Rehearing was granted September 3, 1982, but appears restricted to the question of the effective date of Brown.

      . Acknowledged illegitimates’ rights were achieved through the equal protection provisions of our state and federal constitutions. The parity accorded illegitimates is not absolute as yet, since the new-found rights do not apply to testate successions or third parties and could raise further constitutional questions.


author: BYRNES, Judge. REDMANN, Chief Judge,

text:
    Charles LEE v. NEW ORLEANS PUBLIC SERVICE, INC. Elvina S. SCALES, Individually and For on Behalf of her minor son, Rickey SCALES v. Ivesta BOYD and New Orleans Public Service, Inc.
    Nos. 13294, 13295.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 1, 1982.
    Writ Denied Jan. 28, 1983.
    Darleen M. Jacobs, Charles J. Pisano, New Orleans, for plaintiffs-appellees.
    Floyd F. Green, New Orleans, for defendant-appellant.
    Before REDMANN, BARRY and BYRNES, JJ.
   BYRNES, Judge.

This appeal arises from a collision between a New Orleans Public Service Inc. (NOPSI) bus and a following vehicle. The following vehicle, a 1974 Ford van, struck the bus when the bus stopped in the right hand traffic lane to pick up a passenger. Charles Lee, a passenger on the bus, filed suit for personal injuries received as a result of the collision. In another suit, Elvina Scales on her own behalf and for her minor child Rickey sued NOPSI for injuries they, as fare paying passengers, sustained as a result of the collision. Both of these suits were consolidated for trial. An out of court settlement was reached between plaintiffs and the driver of the following vehicle. At trial the judge found that the NOPSI bus driver was negligent in stopping to pick up a passenger at other than a designated bus stop. The judge further found that the bus driver was negligent in stopping her bus in the right hand travel lane of the thoroughfare rather than in the parking lane. The judge in his reasons for judgment concluded that NOPSI and the driver of the following vehicle were negligent and therefore were joint tortfeasors. Judgment was rendered in favor of Charles Lee in the amount of $3,117.00. Judgment was likewise rendered in favor of Mrs. Scales and her minor son in the amount of $2,810.00. These damages were reduced by 50% because of the earlier settlements made by all plaintiffs with the driver of the following vehicle.

Two assignments of error were urged by NOPSI. The first is that the trial judge erred in holding the driver of the bus negligent and the second is that he erred in holding that it was negligence for the bus driver in making a second stop in the travel lane to pick up another passenger.

The record indicates that the street on which the accident took place was a three lane thoroughfare. Two of these lanes were travel lanes and the third lane was a parking lane. The bus was coming to a stop in the right hand travel lane when it was struck by the van. Prior to the accident the bus made a service stop at the intersection of Washington and Fern Streets. The driver of the bus maintains that because of cars parked in the parking lane she could not pull to the curb to pick up passengers. The bus was in the right hand traffic lane and had picked up passengers without difficulty. The bus started to pull off and had gone but a few feet when the bus driver noticed a woman who was attempting to catch the bus. The bus driver brought the bus to a second stop in order to receive this passenger at which time the bus was struck by the following vehicle. Plaintiffs maintain that the bus driver was negligent because she made an unscheduled service stop to pick up this passenger. As the bus started to move, after the first stop, the driver of the following vehicle attempted to pass the bus on the left hand side. While the driver of the van was changing lanes the bus made a second stop to pick up another passenger and it was at this point the van struck the left rear portion of the bus with its right front fender. The driver of the van maintains that he would not have hit the bus had it not made the unscheduled second stop a short distance past the Washington and Fern Street passenger stop.

Although the common carrier is not the insurer of its passengers, any negligence of the common carrier resulting in injuries by fare paying passengers will suffice to impose liability upon the carrier. Galland v. New Orleans Public Service, Inc., 377 So.2d 84 (La.1979), Wise v. Prescott, 244 La. 157,151 So.2d 356 (1963). Applying this law to the facts presented to this court we can come to no other conclusion but that the trial judge was correct in his ruling. The negligence of the NOPSI bus driver was sufficient to violate the high duty of care placed on a common carrier. See Gal-land and Wise, supra. There is no manifest error in the trial judge’s findings of fact and we are mandated by Arceneaux to accept them. Further, we have no quarrel with the trial judge’s application of the applicable law to these facts. For the above reasons, the judgment appealed from is affirmed. All costs of this appeal are to be borne by the appellant.

AFFIRMED.

REDMANN, Chief Judge,

dissenting.

A bus driver does not owe a duty to passengers already aboard (1) to refuse to stop for other, would-be passengers waiting at a bus stop into which the bus cannot fully fit because partially blocked by parked vehicles, so that the bus will protrude into the right-hand lane of a city street if it stops, or (2) not to stop again (in a “slow, normal stop”) a few feet after the first stop, still before the corner of the intersecting street (the police officer testified that his diagram showed the bus front still within the crosswalk), for another would-be passenger running to catch the bus.

The only breach of duty in this case was that of the following driver, who testified that he did not even see the bus stop the first time. There was no breach of duty owed by the bus driver to plaintiffs.

The judgment should be reversed.

      . Arceneaux v. Dominique, 365 So.2d 1330 (La. 1979).


text:
    Hattie BARNES v. HOUSING AUTHORITY OF NEW ORLEANS and St. Paul Fire & Marine Insurance Co.
    No. 13332.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 1, 1982.

      Bruce S. Johnston, Metairie, Louis A. Gerdes, Jr., New Orleans, for defendants-appellants.
    Before REDMANN, BARRY and BYRNES, JJ.
   BYRNES, Judge.

In this appeal, the appellants, St. Paul Fire and Marine Ins. Co., and the Housing Authority of New Orleans (HANO), seek reversal of a judgment awarding appellee, Hattie Barnes, $5,000.00 for personal property destroyed in a fire which occurred on March 3,1980 at her apartment on LeBoeuf St. in New Orleans. We affirm.

The facts of the case are as follows: The building in which the fire occurred is owned by Vales Development Corp. and insured by St. Paul Fire and Marine Ins. Co. Vales leased the building to HANO, who in turn leased apartment A. to Hattie Barnes. On March 4, 1980 a fire, originating in one of the bedrooms in the apartment, destroyed most of appellee’s personal property. She sued HANO, Vales, and St. Paul, alleging that defects in the wiring in the apartment or the negligent maintenance of that wiring caused the fire. Trial was held in June of 1981 and judgment was rendered in favor of Barnes in the amount of $5,000.00 plus interest and court costs.

On appeal, Vales, St. Paul and HANO all assert that the evidence presented at trial was insufficient to show negligence on their part. In this case however, the liability of all parties was based on the defective condition of the apartment and not on the negligence of any of the parties. This was made clear by the trial court in his reasons for judgment. Vales Development was held liable under C.C. 2322, which holds the owner of a building strictly liable for damages caused by either the ruin of the building or the owners neglect to repair it. Neither ignorance of the defect nor its latency is a defense. Moreover, there is no need to show negligence to recover under this article. Olsen v. Shell Oil Co., 365 So.2d 1285 (La.1979); Smith v. Hartford Indemnity Co., 399 So.2d 1193 (La.App. 3rd Cir.1981); Krennerich v. W.C.G. Investment Corp., 278 So.2d 842 (La.App. 3rd Cir.1973). The liability of HANO was based on C.C. 2695 which holds a lessor strictly liable to a lessee for damages caused by a defect in the leased premises. Once again neither ignorance or latency of the defect is a defense and there is no need to show negligence to recover. Article 2695 and 2322 both base liability on status, either as owner or lessor, rather than on personal fault. Thus the alleged failure of appellee to present evidence of negligence by Vales or HANO has no effect on her right to recover damages in this case. Fonseca v. Marlin Marine Corp., 410 So.2d 674 (La.1981) see also Olsen, supra and Smith, supra.

The burden of proof which the plaintiff must meet in an action arising under either Art. 2322 or Art. 2695 is to show by a preponderance of the evidence that a defect in the building caused the injury complained of. In Boudreaux v. American Insurance Co., 264 So.2d 621 (La.1972), the Supreme Court held that evidence whether direct or circumstantial, “need not negate all other possible causes of injury ... It suffices if the circumstantial proof excludes other reasonable hypotheses only with a fair amount of certainty, so that it be more probable than not that the harm was caused by the tortious conduct of the defendant.” See also Latham v. Aetna Casualty & Surety Co., 377 So.2d 350 (La.1979).

In the present case Mrs. Barnes and several members of her family all testified that a ceiling light fixture in the bedroom where the fire originated was hanging by loose wires which sparked and smoked when the light was turned on. There was also testimony that the fixture occasionally sparked even when turned off. This condition had been reported to HANO several weeks prior to the fire but no steps had been taken to correct the problem. Moreover there was testimony that the wall switch in the bedroom sparked on occasion.

The trial court clearly felt that the evidence presented by the appellee was sufficient to establish her right to recover. He made a factual determination that the fire was caused by a defect in the premises. That determination should not be overturned on appeal absent a showing of manifest error. Canter v. Koehring, 283 So.2d 716 (La.1973), Arceneaux v. Dominique, 365 So.2d 1330 (La.1978).

Having reviewed the record in this case we conclude that the trial court was correct in his resolution of the issues before him. While no expert testimony was offered by the appellee, the evidence which she did present was sufficient to establish that it was more probable than not that the wiring in the apartment was the cause of the fire. See Boudreaux, supra. Accordingly the judgment of the trial court is affirmed. All cost of this appeal are to be borne by the appellant.

AFFIRMED.

REDMANN, C.J., dissents.

REDMANN, Chief Judge,

dissenting.

Plaintiff presented no expert evidence as to the cause of the fire. She presented only testimony that the wires to a ceiling light sparked (even when its wall switch was turned off — inherently incredible to one who understands that when a light is switched off no electricity goes to it), and testimony by her daughter that when the room was ablaze she saw the ceiling light fall aflame.

The testimony of the construction superintendent who repaired the house was that the floor was burned and had to be all replaced, and that none of the ceiling joists was even scorched (although it is true that they had been covered with sheet rock). The testimony of the electrician was that there was melted wire 18 inches above floor level, but no melted wire in the ceiling. That evidence is inconsistent with plaintiff’s argument that the fire started in the ceiling because of defective wiring in the ceiling light fixture.

Plaintiff simply did not prove her case. The judgment should be reversed.

      . Those reasons read in pertinent part “the evidence shows that the condition of the premises was defective and that this defective condition had been reported to HANO. The condition was never repaired and this condition was the cause of the fire that destroyed the possessions of Barnes”.


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    INGRAHAM CONCRETE STRUCTURES INC. v. CHAMPION SHIPYARDS INC.
    No. 13288.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 1, 1982.

      John E. Jackson, Jr., New Orleans, for plaintiff-appellant.
    Liskow & Lewis, William W. Pugh, New Orleans, for defendant-appellee.
    Before REDMANN, BARRY and BYRNES, JJ.
   BYRNES, Judge.

This is an appeal from a trial court ruling dismissing appellant’s breach of contract claim against appellee because of an earlier accord and satisfaction. We affirm the trial court’s finding that there was an accord and satisfaction of the debt.

Appellee, Ingraham Concrete Structures, Inc. (Ingraham) contracted with Champion Shipyards Inc. (Champion) to provide services to Champion which included site preparation of a proposed shipyard. The contract was terminated for reasons not relevant to this appeal, and a bill in the amount of $27,104.00 for services rendered was tendered by Ingraham to Champion. Champion protested this bill, maintaining that it was too high and included services not called for by Champion. Ingraham in turn adjusted the bill and resubmitted another one in the amount of $18,215.00. Champion still felt this bill was too high. Champion’s officers asserted that the most they should owe to Ingraham was $7,665.00. A check from Champion in the amount of $9,000.00 was sent to Ingraham’s president, Mr. William A. Ingraham, accompanied by a letter which read as follows:

“Dear Mr. Ingraham:
Enclosed herewith is a check we feel is sufficient to cover anything you may have done on behalf of Champion Shipyards, Inc. as per your invoice # 0117, your job number 34.
Sincerely,
Champion Shipyards Inc.
Floyd J. Naquin, President.”

Invoice No. 0117, referred to in the letter, was the revised invoice sent by Ingraham to Champion in the amount of $18,215.00.

Upon receipt of the letter and check, Mr. Ingraham, by his own admission, immediately had the check certified and placed it in a safety deposit box. A few weeks later, when he needed some money, he endorsed the check “all rights reserved, law suit pending” and proceeded to negotiate it. Champion maintains that Mr. Ingraham’s management of the check constituted a compromise of the disputed bill while Mr. Ingraham argues that he could not have compromised the debt since he in no way assented to such a compromise.

In Eppling v. Jon-T Chemicals, Inc. 363 So.2d 1263 (La.App. 4th Cir.1978) this court held that for a party to avail himself of the defense of accord and satisfaction three elements must be present: (1.) There must be an unliquidated or disputed claim between the creditor and the debtor; (2.) The debtor must have tendered a check for less than the sum claimed by the creditor; (3.) The creditor must accept the tender by negotiating the check. In addition, the creditor must be aware of the debtor’s intent to fully liquidate the debt by tender of the check.

There is no question that a disputed debt existed in this case and that a check was tendered for less than the disputed amount. On the issue of negotiation of the check we note that upon receipt of the check Mr. Ingraham immediately moved to have it certified. Certification of a check is tantamount to acceptance, and discharges the drawer. La.R.S. 10:3-411(1). This unconditional acceptance of the check by certification could not be amended three or four weeks later by use of the restrictive endorsement “all rights reserved, law suit pending”. Moreover, even if he not had the check certified, Ingraham negotiated it by cashing or depositing it in his account before the institution of the suit which forms the basis of this appeal.

The question then becomes whether the check, together with the language in the accompanying letter, was sufficient to place Ingraham on notice that Champion intended the check to be full settlement of the claim and not a partial payment. The only language pertaining to compromise was contained in the letter. There was nothing written on the check. When asked if he had attempted to contact Mr. Naquin, an officer of Champion Shipyards, after he received the letter and check, Mr. Ingraham replied “No, I think everything was pretty self explanatory”.

We feel that the circumstances surrounding the issuance of the check clearly indicate that it was not a partial payment but was the tender of an amount, “... sufficient to cover anything you may have done ... as per your invoice . . . ”. The evidence supports the conclusion reached by the trial judge that Mr. Ingraham’s acceptance of the check was acceptance of a compromise offer by Champion.

Accordingly, we are of the view that the trial court was correct in ruling that the appellant’s acceptance of the tendered check constituted an accord and satisfaction of the debt and therefore affirm the trial court’s dismissal of the plaintiff’s action. All cost of this appeal are assessed to the appellant.

AFFIRMED.

REDMANN, Chief Judge,

concurring.

C.C. 3071 requires an out-of-court compromise to be in writing. The wording of a letter enclosing a check “we feel is sufficient to cover anything you may have done” does not by itself suffice to constitute an offer of compromise, and oral evidence cannot be used to show that it intended and was understood as an offer of compromise. And the wording of a printed check form that provides the check is “in payment of” (not “in full payment of”) the invoices there-inafter specified equally does not by itself suffice as an offer of compromise.

But such a letter and such a check together do suffice, for together they say that the writer deems the enclosed amount all that he owes and that the check is tendered in payment and not merely as a partial payment on account. The addressee who deposits the check under those combined written circumstances has by his written endorsement (deleting its impermissible qualifying statement) accepted in writing the written offer of compromise.

      . Although accord and satisfaction is not a civilian concept, it has been accepted by the courts of Louisiana. See Berger v. Quintero, 170 La. 37, 127 So.2d 356 (La.1930). Charles X. Miller v. Oak Builder Inc., 306 So.2d 449 (La.App. 4th Cir.1975) A.R. Guglielmo v. Web-ber, 315 So.2d 427 (La.App. 1st Cir.1975); Terra Trucks Inc. v. Webber, 346 So.2d 275 (La.App. 4th Cir.1977); Louisiana National Bank of Baton Rouge v. Heindel, 365 So.2d 37 (La.App. 4th Cir.1978).