author: WATKINS, Judge. COVINGTON, Judge. WATKINS, Judge

text:
    Edward R. ROZELL v. LOUISIANA ANIMAL BREEDERS COOPERATIVE, INC., et al.
    No. 14927.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.
    On Rehearing Dec. 16, 1982.
    Writ Granted Feb. 4,1983.
    R. Bruce Macmurdo, Baton Rouge, for plaintiff-appellant Edward R. Rozell.
    Warren L. Mengis, Baton Rouge, for defendant-appellee Louisiana Animal Breeders Co-op.
    James E. Moore, Baton Rouge, for defendant-appellee Atlantic Breeders Co-op.
    Before COVINGTON, COLE and WATKINS, JJ.
   WATKINS, Judge.

Plaintiff, Edward R. Rozell, instituted this strict liability action, seeking damages for personal injuries which he sustained as a result of being attacked by a bull. Named as defendants were the alleged owners of the bull, Louisiana Animal Breeders Cooperative, Inc. (LABC), North Ohio Breeders Cooperative, Inc. (NOBC), and Atlantic Breeders Cooperative (ABC). On plaintiff’s motion, NOBC was dismissed from the case. LABC answered, denying generally the allegations of plaintiff’s petition and further alleging that the bull was in the custody of Louisiana State University (LSU) at the time of the attack.

Subsequently, the remaining defendants, LABC and ABC, filed motions for summary judgment, each alleging that it did not have custody of the bull at the time of the attack and, therefore, that each was entitled to judgment as a matter of law. The trial court rendered judgment on August 21, 1981, granting defendants’ motions and dismissing plaintiff’s suit. Judgment was signed in favor of ABC on the same day as rendition and in favor of LABC on August 24, 1981. Plaintiff was then granted the instant appeal from both judgments on September 3, 1981. We reverse the action of the trial court in dismissing LABC as a party defendant, but affirm the trial court in dismissing ABC as a defendant, with prejudice.

At the time he was injured, plaintiff was employed by LSU at its Dairy Improvement Center. His duties primarily consisted of feeding and otherwise tending to the bulls kept there for breeding purposes. In the course of those duties, plaintiff and other LSU employees would have to enter the facility where the bull was housed in order to open or close the gate which allowed the bull access to a fenced area. Plaintiff stated in his deposition that he was never instructed not to enter the housing facility without the bull being restrained or without the aid of another employee. On the other hand, Dr. Arnold Baham, manager of the LSU Dairy Improvement Center, as well as manager of LABC, testified by deposition that plaintiff was instructed on such procedures.

The Dairy Improvement Center was created by the legislature to provide to the state’s farmers, at minimum cost, a medium for artificial insemination of their cattle. In the performance of this service, the Dairy Improvement Center maintains privately owned bulls on land owned by LSU for purposes of collection, storage, and delivery of semen. Several of the bulls maintained by LSU are owned by breeding cooperatives, among which are LABC and ABC. Although the bulls continue to be privately-owned, they are tended to exclusively by LSU employees while they remain at the Dairy Improvement Center. The particular bull which caused plaintiff’s injuries in the instant case, named Dixie Lee Fashion Designer, was owned two-thirds by ABC and one-third by LABC.

While no employees of LABC or ABC tended to the everyday needs of the bulls, LABC and the Dairy Improvement Center have a somewhat intertwined relationship. As we noted earlier, the manager of LABC and the manager of the Dairy Improvement Center are the same person. Dr. Baham indicated that it was a requirement of his employment with LSU that he also manage LABC. Additionally, Dr. Baham testified that LABC’s main office was maintained in the same place as the Dairy Improvement Center’s office. Dr. Baham did state that LABC had a separate accounting office, but it was also in the same LSU building. Dr. Baham also testified that, while the persons who tend to the bulls were LSU employees, they performed overlapping duties in that they collect semen for LABC.

Two articles of the Civil Code must be considered to determine the nature and extent of liability on the part of the owners or custodians of domesticated animals for injuries or damages inflicted by those animals, LSA-C.C, art. 2317 and 2321:

2317.
“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.”
2321.
“The owner of an animal is answerable for the damage he has caused; but if the animal had been lost, or had strayed more than a day, he may discharge himself from this responsibility, by abandoning him to the person who has sustained the injury; except where the master has turned loose a dangerous or noxious animal, for then he must pay for all the harm done, without being allowed to make the abandonment.”

In the leading case on strict liability for damages inflicted by a domesticated animal, Holland v. Buckley, 305 So.2d 113 (La. 1974), the Louisiana Supreme Court held the owner of a dog liable for a bite inflicted upon plaintiff by the dog, reasoning as follows:

“The issue before us is: When an innocent bystander is bitten by a dog, who shall bear the damages so caused? The bystander passing on the street, who did not provoke the attack? Or the owner of the dog who created the risk by letting the dog go loose?”
(at p. 114)
It further said:
“We hold, therefore, that the correct interpretation of Civil Code Article 2321 is as follows: When a domesticated animal harms another, the master of the animal is presumed to be at fault. The fault so provided is in the nature of strict liability, as an exception to or in addition to any ground of recovery on the basis of negligence, Article 2316. The owner may exculpate himself from such presumed fault only by showing that the harm was caused by the fault of the victim, by the fault of a third person for whom he is not responsible, or by a fortuitous event.
“The underlying reason for the owner’s liability is that, as between him who created the risk of harm and the innocent victim thereby injured, the risk-creator should bear the loss. He maintains the animal for his own use or pleasure.
“Article 2321 places the master of the animal under a legal obligation to keep his animal under such guard that it does no damage to others. A fault in this obligation to control the animal and guard others from harm by it entitles the victim to recover damages thereby sustained.”
(at p. 119)

It will be noted that the Louisiana Supreme Court did not consider the problem that would arise if the owner and the custodian of the animal were different persons, the owner and custodian of the dog that had inflicted the bite in Holland having been the same person.

The question arising when there is a separation between ownership and custody of an animal was first presented in recent years in Fontenot v. Soileau, 336 So.2d 1006 (La.App. 3d Cir.1976). In that ease, a boy employed to exercise race horses was thrown from the horse he was riding when the horse “lugged in”. The Third Circuit held that the animal was not in the custody of the owner, but in fact was under the care, custody and control of the injured party. The Court refused to find strict liability on the part of the horse’s owner.

This Circuit was presented with a similar factual situation in Alfonso v. Market Facilities of Houston, Incorporated, 356 So.2d 86 (La.App. 1st Cir.1978, writ denied 357 So.2d 1169 (La.1978). In that case two women were thrown from two horses which they were riding but which defendant owned when the horses shied upon hearing a clap of thunder. We refused to find strict liability on the part of the horse’s owner, stating as follows:

“From the foregoing, we gather that, in order to hold the owner of an animal strictly liable for damage to another done by the animal, there must be a domestic animal, which is actually or constructively under the control of the owner, or which he has an obligation to restrain, the presence of which causes an unreasonable risk of harm to others and which injures an innocent third party.”
(at p. 89)

This court used identical language in refusing to find strict liability on the part of the owner of a calf in Brooks v. United States Fidelity and Guaranty Company, 358 So.2d 660 (La.App. 1st Cir.1978). In that case the daughter-in-law, of the owner of a calf which the daughter-in-law had been feeding, was nudged on the leg by the calf, which caused her to fall. We held the daughter-in-law in fact had care, custody, and control of the calf, not the owner, and, hence, there could not be recovery under strict liability.

In the present case, it is clear that the bull which attacked plaintiff was not under the care, custody, or control of ABC, which merely owned an undivided two-thirds interest in the bull. On the other hand, because Dr. Baham was both manager of the LSU Dairy Improvement Center and manager of LABC, and received some remuneration from each, and because the lower management of the Dairy Improvement Center and LABC was to a certain extent interlocking, we find that sufficient question of care, custody, and control of the bull on the part of LABC exists to leave open genuine issues of material fact touching upon ultimate liability and to require us to set aside the summary judgment granted in favor of LABC. LSA-C.C.P. art. 966. However, the bull was clearly not under the care, custody or control of ABC. As the owner lacking care, custody or control is not held to strict liability, summary judgment was properly granted in favor of ABC.

The judgment of the trial court in granting summary judgment in favor of ABC is affirmed. The judgment of the trial court granting summary judgment in favor of LABC is reversed, and the case remanded for further proceedings. No costs shall be paid by ABC. Awarding of costs as between plaintiff and LABC shall await final determination of the matter.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

ON REHEARING

COVINGTON, Judge.

We granted this rehearing to reconsider the question of whether our original opinion was correct in reversing the summary judgment in favor of Louisiana Animal Breeders Cooperative, Inc. (LABC). We originally affirmed the summary judgment in favor of Atlantic Breeders Cooperative (ABC) based on our finding that the bull, Dixie Lee Fashion Designer, which attacked plaintiff was not under the care, custody, or control of ABC. We adhere to that conclusion. In our original opinion, we reversed the judgment of the trial court granting summary judgment in favor of LABC, and remanded the case for further proceedings.

On reconsideration, we believe that we erred in concluding that because Dr. Arnold Baham was both an employee of the LSU Dairy Improvement Center and an employee of LABC, with certain interlocking managements of the two entities, there was a sufficient question of care, custody, and control of the bull to leave open genuine issues of material fact touching upon ultimate liability.

We now find that the depositions and affidavits in the record show that there is no genuine issue of material fact. It is clear that the Dairy Improvement Center, not the owners (ABC and LABC) had sole care, custody and control of Dixie Lee Fashion Designer, even including the right to sell the bull without directive from the owners. This bull was placed in the custody of the Dairy Improvement Center and under the supervision of the Center for the purpose of promoting breeding in the State of Louisiana. Neither of the two owners had any supervision, care or control of the bull. The record does not support our earlier finding of interlocking managements of the Dairy Improvement Center and LABC; they are clearly two separate entities. The mere fact that Dr. Baham was manager of LABC and an employee of Louisiana State University in no way refutes the positive statements in the record that LABC exercised no care, custody or control over the bull in question. The eases of Alfonso v. Market Facilities of Houston, Incorporated, 356 So.2d 86 (La.App. 1st Cir.1978), writ denied 357 So.2d 1169 (La.1978), and Brooks v. United States Fidelity and Guaranty Company, 358 So.2d 660 (La.App. 1st Cir.1978), support our conclusion on rehearing that LABC, as an owner who does not have care, custody or control of the animal, is not held to strict liability pursuant to LSA-C.C. arts. 2317, 2321. The summary judgment was properly granted.

Accordingly, we reverse our original opinion as to LABC and affirm the judgment of the district court granting the defendants’ motions for summary judgment at appellant’s costs.

ORIGINAL OPINION REVERSED IN PART; JUDGMENT OF DISTRICT COURT AFFIRMED.

WATKINS, J., dissents and assigns reasons.

WATKINS, Judge

(dissenting).

I dissent, being of the view that the depositions and affidavits before the court on motion for summary judgment clearly establish interlocking management and control on the part of Louisiana Animal Breeders Cooperative, Inc., and Louisiana State University with respect to the bull that attacked plaintiff.

I, therefore, respectfully dissent.


source: Caselaw Access Project

author: GULOTTA, Judge.

license: Public Domain

text:
    Michael A. SEUZENEAU v. BOARD OF TRUSTEES OF the FIREFIGHTERS PENSION AND RELIEF FUND FOR the CITY OF NEW ORLEANS.
    No. 13070.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 30, 1982.
    Rehearing Denied Dec. 21, 1982.
    Herman M. Schroeder, New Orleans, for plaintiff-appellant.
    C. Paul Barker, Barker, Boudreaux, Lamy, Gardner & Foley, New Orleans, for defendant-appellee.
    Before GULOTTA, KLEES and AUGUSTINE, JJ.
   GULOTTA, Judge.

Michael Seuzeneau, a New Orleans firefighter, appeals from the affirmation by the trial court of a denial of his claim for a disability pension under LSA-R.S. 33:2113 by the Board of Trustees of the Firefighters Pension and Relief Fund for the City of New Orleans (the Board).

The twenty-nine-year-old plaintiff initially sustained a job-related back injury in mid-September, 1978, when, according to his testimony, his back “snapped” while he was lifting a stretcher carrying an individual weighing two-hundred-seventy pounds. Plaintiff remained out of work approximately six weeks, but returned to duty after being evaluated and released by Dr. Chris J. DiGrado, an orthopedic surgeon.

In April, 1979, plaintiff reinjured his back when carrying a forty-five pound pump while fighting a grass fire. Treatment by Dr. DiGrado included injection, medication, therapy, and a lumbar corset over a four month period. In an August 8,1979 report, Dr. DiGrado found no objective physical findings and recommended plaintiff return to work on August 18, 1979.

Plaintiff was seen on August 3, 1979 by Dr. George D.B. Berkett, an orthopedic sur- ' geon, who stated in his report that he found no organic basis for Seuzeneau’s complaints.

Because of continued lower back pain, plaintiff saw Dr. Victor P. Chisesi, an orthopedic surgeon on August 15,1979. Dr. Chi-sesi found palpable muscle spasm in the left low back and was of the impression that plaintiff had a “herniated nucleus pulposis at the L4-L5 level in the left side of his low back.” He prescribed medication, bed rest, and heat treatment.

On September 5, 1979, plaintiff was examined by Dr. Robert L. Applebaum, a neurological surgeon, who found no evidence of disease or damage involving the spinal cord and nerve roots and saw no reason, from a neurologic point of view, why plaintiff could not return to his usual and customary occupation. Dr. Applebaum further noted in his report, however, that should plaintiff’s back pain persist, follow-up orthopedic evaluation might be indicated.

Following continued complaints, Dr. Chi-sesi admitted plaintiff to Mercy Hospital on September 10,1979 where he was placed in traction until September 23. A lumbar my-elogram and discogram were considered normal and plaintiff was discharged from the hospital on September 25. Although “at a loss” to explain Seuzeneau’s complaints of low back pain and sciatica, Dr. Chisesi indicated that perhaps plaintiff had “some occult nerve root compression in his low back” and suggested a neurosurgical consultation.

Examination by Dr. David M. Jarrott, a neurosurgeon, on three visits in December 1979 and January, 1980, revealed tenderness at the L-5 spinous process and a “very impressive” straight leg raising test supporting a finding of a ruptured disc. After reviewing a September, 1979 myelogram and discogram, Dr. Jarrott concluded there was an L-5/S-1 disc rupture with impingement of the L-5 nerve and possible irritation of the S-l.

Dr. Jarrott suggested that a partial lami-nectomy and partial foraminotomy might relieve pressure on the nerve and allow plaintiff to increase his activity. In a written report to the fire department on February 9,1980, and at the pension hearing, Dr. Jarrott considered that plaintiff’s prognosis for returning to firefighting “was probably dim”. According to this expert, without the operation plaintiff’s chance of returning to heavy work was “zero”. Even with surgery, Dr. Jarrott felt that plaintiff had less than a fifty percent chance of returning to the heavy labor required of a fireman.

On March 4, 1980, in a letter to Superintendent William McCrossen of the New Orleans Fire Department, Dr. Jack P. Ruli, the department physician, stated that plaintiff “has been disabled with the diagnosis of lumbar disc syndrome” and recommended that he be placed on pension.

The Board referred plaintiff to Dr. Homer D. Kirgis, a neurosurgeon on April 1, 1980. Dr. Kirgis stated in a report that plaintiff presented “a history very consistent with the diagnosis of his having sustained a ruptured lower lumber interverte-bral disc”. In a May 2,1980 response to the Board’s request to be “more specific” concerning the permanency of plaintiff’s disability, Dr. Kirgis stated:

“I am sorry that I cannot be more specific. The history suggest that he has a ruptured lower lumbar disc and it also suggests that he does not tolerate the work required by a fireman. Therefore, apparently he is at present disabled for perfroming the duties of an active firefighter. I cannot state, however, that as more time passes he would not improve and become able to perform such duties.”

On June 23, 1980 plaintiff was terminated from employment with the fire department. The superintendent noted that plaintiff’s physician had advised plaintiff would “no longer be able to perform fire duty”.

At the hearing before the pension board on September 3, 1980, Susan L. Smith, an occupational therapist and vocational evaluator, stated that, based on her examination and evaluation of plaintiff on August 18, 1980; he “is unable to handle more than up to about thirty pounds on an occasional basis”, and could not meet the physical requirements of a firefighter or an auto mechanic. She stated that Seuzeneau could not stoop, handle weights or do prolonged sitting or standing.

Plaintiff testified that he had not done any type of work since April, 1979, and could no longer engage in athletic activities, lawn cutting chores or automotive work. He continues to go shrimping, but relies on friends to do heavy lifting. Seuzeneau stated that he never lifts anything more than 25 pounds. His testimony in this regard was corroborated by that of his wife, father, brother and friends.

Seuzeneau’s testimony concerning his inability to engage in strenuous physical activities was disputed by his neighbor, Daniel Patrick Hunter. Hunter claimed to have seen plaintiff engage in various activities including lifting a 600 pound aluminum boat with the help of friends, nailing fence boards, climbing a ladder while carrying 40-pound bundles of shingles, bending and nailing roof shingles, digging a trench and carrying rigging and ice chests in his shrimping activity. Hunter had volunteered his testimony because he felt that plaintiff was “ripping off the City” by applying for a pension. Photographs taken by Hunter and his wife reportedly show plaintiff engaged in physical activities since the accident.

Hunter’s testimony was disputed by plaintiff and his friends who denied plaintiff had engaged in any heavy work since the accident. It is also clear that Hunter and plaintiff bore resentment toward each other resulting from a boundary dispute and the filing of a successful lawsuit by plaintiff against Hunter.

Although the reports of Doctors DiGrado, Berkett and Applebaum are not supportive of a disability finding, they do not rule out the possibility of further evaluation based on plaintiff’s continued complaints of pain. The evaluations by Drs. Jarrott, Ruli and Kirgis are supportive of a conclusion that plaintiff has suffered a herniated lumbar disc and can no longer work as a fireman. The undisputed testimony of the occupational therapist indicates that plaintiff is unable to handle more than thirty pounds on an occasional basis.

The medical evidence considered, we conclude that the Board manifestly erred in its finding that Seuzeneau was not disabled. We conclude also the trial judge erred in upholding the Board’s determination.

In so holding, we are mindful that it is not the province of this court to substitute its judgment for that of the Board. Nonetheless, where the record clearly supports a conclusion that the Board manifestly erred, it is the duty of this court to set aside the Board’s determination.

Having concluded that Suzeneau is disabled from performing his duties as a firefighter, we are next concerned with the extent of that disability.

LSA-R.S. § 38:2113 provides entitlement to a pension of two-thirds of the claimant’s monthly salary at the date of retirement if the claimant is “physically or mentally disabled or incapacitated from performing his duties as a member of the fire department, or is unable to hold any other meaningful and gainful employment, by reason of service in the fire department....” On the other hand, the claimant is entitled to a monthly pension of one-half his monthly salary at the date of his retirement if he is “totally, permanently, physically or mentally disabled for service in said fire department by reason of service therein, but physically and mentally capable and able to do and perform work of any other reasonable kind or character.... ”

It is clear that plaintiff’s job-related injury incapacitates him from meeting the physical requirements of the job of a firefighter, an automobile mechanic, or other work of a similar character. He is unable to lift more than 30 pounds on an occasional basis and cannot engage in prologed sitting or standing. Dr. Jarrott testified that the purpose of the proposed surgery is to make plaintiff more able to do some kind of light assignment and to make him more comfortable in activities of a limited scope.

Under the circumstances, we conclude the medical evidence suggests a finding that plaintiff is disabled from performing his duties as a fireman or from doing any work of a reasonable character. Thus, he is entitled to a monthly pension at the two-thirds’ rate. We note further, however, that the Board, pursuant to LSA-R.S. 33:2113, may order future periodic examinations to determine if the claimant is qualified for active duty or is capable of performing work “of any other reasonable kind or character.”

Accordingly, the judgment of the trial court is reversed and set aside. Judgment is now rendered finding plaintiff, Michael A. Seuzeneau, disabled within the meaning of LSA-R.S. 33:2113 and entitled to a disability pension payable in monthly installments from the date of his retirement in an amount equal to two-thirds of the monthly compensation allowed him at the date of his dismissal from the fire department, June 23,1980, presumably the “date of his retirement” within the meaning of the statute.

REVERSED AND RENDERED.

      . LSA-R.S. 33:2113 reads, in pertinent part: If any member of the fire department of the city, while in the performance of his duty, becomes and is found upon examination by the department physician to be physically or mentally permanently disabled and incapacitated from performing his duties as a member of the fire department, or is unable to hold any other meaningful and gainful employment, by reason of service in the fire department, the board ... of trustees by majority vote of its members shall determine whether or not the member should be retired for disability.... When the board of trustees determines that the member should be retired for disability incurred in the performance of his duty or service in the fire department, it shall retire the member, place his name on the pension roll, and order the immediate payment in monthly installments to him from the pension and relief fund of a sum equal to two-thirds the monthly compensation allowed him as salary at the date of his retirement, or the amount provided in R.S. 33:2117, whichever is greater, provided the other conditions of R.S. 33:2117 are met. If any member of the fire department while in the active service of said fire department become and be found to be totally, permanently, physically or mentally disabled for service in said fire department by reason of service therein, but physically and mentally capable and able to do and perform work of any other reasonable kind or character and be so found by the said board of trustees, the board shall retire the member, place his name on the pension roll, and order immediate payment in monthly installments to him from the pension and relief fund in a sum equal to one-half the monthly compensation allowed him as salary at the date of his retirement or the amount provided in R.S. 33:2117, whichever is greater, provided the other conditions of R.S. 33:2117 are met.

      . Plaintiff had been employed as an auto mechanic prior to his employment as a firefighter.

      . Because of the unclarity of these photographs, they are of little or no value.

      . LSA-R.S. 49:964(G)(5) & (6) read as follows:
      G. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

        (5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
      (6) Manifestly erroneous in view of the reliable, probative, and substantial evidence on the whole record. In the application of the rule, where the agency has the opportunity to judge of the credibility of witnesses by firsthand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues. Acts. 1966, No. 382, § 14, eff. July 1, 1967

      . Buras v. Board of Trustees of Police Pension, 367 So.2d 849 (La.1979); Delta Bank & Trust Co. v. Lassiter, 383 So.2d 330 (La.1980).

      . LSA-R.S. 33:2113 provides that upon finding a disability the Board “shall retire the member, place his name on the pension roll, and order the immediate payment in monthly installments” of his pension based on “the monthly compensation allowed him as a salary at the date of his retirement....” In our case, the Board, by denying the claim, never “retired” Seuzeneau. Accordingly, we deem the date of plaintiffs dismissal from the fire department to be his “date of retirement” for purposes of his pension under LSA-R.S. 33:2113.


text:
    Constance McDonald Deffes, wife of August DEFFES v. August DEFFES.
    No. 13135.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 30, 1982.
    Rehearings Denied Dec. 21, 1982.
    Paul J. Mirabile, McCann, McCann & Mir-abile, New Orleans, for plaintiff-appellant.
    Turner & Young, a Professional Corp., Emile L. Turner, Jr., New Orleans, for defendant-appellee.
    Before GULOTTA, KLEES and AUGUSTINE, JJ.
   GULOTTA, Judge.

The plaintiff-wife appeals from a judgment, silent as to alimony pendente lite, but awarding her $300.00 per month for the support of her four and seven year old sons. We affirm the denial of alimony, but increase the total child support award to $500.00 per month.

The husband testified that his gross monthly income totals $2,202.00. His net monthly income amounted to $1,702.00. His monthly expenses total $1,280.82. The wife’s gross monthly income amounted to $668.86. Her net income was $554.36 per month, and she estimated her monthly expenses at $1,155.56.

Citing the disparity between her income and that of her husband, the wife claims that, despite her earnings, she is unable to support herself and the children and therefore is entitled to alimony pendente lite. In this respect, she relies on Herrmann v. Herrmann, 400 So.2d 738 (La.App. 4th Cir.1981) where an alimony award of $150.00 per month was increased to $300.00 per month.

The wife’s reliance on the Herrmann decision is misplaced. In Herrmann, supra, unlike our case, no child support was involved but only alimony pendente lite was sought.

The instant case is more closely akin to Mouton v. Mouton, 372 So.2d 771 (La. App. 4th Cir.1979), where, under similar circumstances, we held that a working wife earning $600.00 per month from a fulltime job who claimed monthly expenses in the sum of $1,210.00 was not entitled to alimony pendente lite since her income was sufficient for her support. We further held in Mouton, supra, however that an award of $300.00 per month for the support of two minor children should be increased to an award of $500.00 per month where the husband’s income was sufficiently high enough to sustain the increase.

We conclude, as did the Mouton court, that the $300.00 per month awarded by the trial judge for the support of the two minor children is inadequate and manifestly low, and should be increased to a sum of $500.00 per month. We find no error, however, in that part of the judgment which does not award the wife alimony pendente lite.

Accordingly, the judgment of the trial court is amended to increase the total child support award from the sum of $300.00 per month to the sum of $500.00 per month. The increase is effective from the date the judgment of this court becomes final. See Zimmer v. Lavista, 367 So.2d 1312 (La.App. 4th Cir.1979). That part of the judgment denying the wife alimony pendente lite is affirmed. As amended, the judgment is affirmed.

AMENDED AND AFFIRMED.

      . The husband estimated his gross monthly income from his work as a carpenter baséd on the hourly rate of pay he was receiving at the time of trial. He stated that there are times when he is unemployed because of lay-offs or because of the completion of a job.

      . In Mouton, the husband’s net annual income was in excess of $21,000.00.


author: AUGUSTINE, Judge.

text:
    SUCCESSION OF Regina DUBOS.
    No. 12945.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 30, 1982.
    Rehearing Denied Dec. 21, 1982.
    Marianne N. Koorie, Koorie & Loup, James J. Grevemberg, New Orleans, for defendant-appellee,
    Arnold C. Jacobs, New Orleans, for plaintiff-appellee.

      Before REDMANN, AUGUSTINE and LOBRANO, JJ.
   AUGUSTINE, Judge.

This case is before us to review a single question of fact: whether the trial court committed manifest error in finding that on May 31,1976, Regina Dubos possessed sufficient capacity to perfect her last will and testament.

The testatrix, Regina Dubos, died on March 5,1980 at the age of eighty-nine. A few years earlier, on January 29,1976, Miss Dubos executed a statutory will, thus disposing of her estate which, by that time, had grown to considerable size. Included among the numerous legatees were Mr. and Mrs. Albert J. Turegano, who together received, among other things, five separate immovable properties in the City of New Orleans, three of which were on St. Charles Avenue. The Tureganos also received 1,920 shares of American Smelting and Refining Company stock and 336 shares of Standard Oil of California.

Other dispositions of immovable property were made to Dr. and Mrs. Robert G. Miller, who also received a number of properties on St. Charles Avenue and at other locations in the Carrollton section of the city. The will named Dr. Miller as executor of the decedent’s estate.

Four months after making the first will, Miss Dubos executed a second testament, which purported to revoke the first. Written in long hand by her attorney, the act reads:

Jefferson Parish, LA May 31, 1976
I, Regina Dubos, make this my last will and testament.
I revoke any and all prior wills and powers of attorney.
I name and appoint Felix W. Gaudin and James J. Grevemberg as attorneys to handle the affairs of my estate.
In witness whereof, I have signed this my last will in the presence of the witnesses hereinafter named and undersigned.

(Signed) Regina Dubos

This act was witnessed by Marion W. Arnaud and Mrs. Louise J. Dubos and was notarized by William J. Luscy, 111, Notary Public.

Following Miss Dubos’ death almost four years later, Dr. Miller probated the first will (that of January 1976) and was appointed executor. Regina Dubos’ second testament was probated a week later, on March 27, 1980. That same day, Louis R. Arnaud, the decedent’s closest relative and presumptive heir, filed a petition to nullify the first will. Dr. Miller answered the petition and, in return, attacked the second will, alleging that at the time it was made, Miss Dubos was lacking in testamentary capacity-

After trial on the merits, the trial court rendered a judgment annulling the first will and recognizing the second. Dr. Miller was removed as executor. This appeal followed.

Dr. Miller and other legatees of the first will sought to establish that at the time of the second will, the decedent was lacking in capacity in two respects: first, in that the testatrix was incapable of forming a dona-tive intent, and second, in that Regina Du-bos had lost the ability to read, due to her failing eyesight. The second incapacity, if proved, would render the testament fatally defective for failure to conform with La. R.S. 9:2442, which requires (for the form of will provided by that statute) that the testator be physically able to read, and La.R.S. 9:2443, which provides that where the testator cannot read, the will shall be read aloud by the notary in the presence of the testator and three witnesses.

The plaintiff’s allegations require the application of several principles which guide review by an appellate court. Primarily, we note that testamentary capacity is solely a question of fact to be determined by the trial court. Therefore, we will not disturb the trial court’s findings on that issue in the absence of manifest error. Brown v. Dunbar, 375 So.2d 148 (La.App. 2d Cir.1979), writ den. 377 So.2d 118 (La.1980); Succession of Smith, 261 So.2d 679 (La.App. 2d Cir.1972). Moreover, with regard to that which plaintiff sought to prove at trial, (that is, lack of testamentary capacity), the burden of proof is significant, being the same as that which must be borne by the prosecution in a criminal case: the party attacking the will on the basis of the testator’s incapacity must prove beyond a reasonable doubt that at the time the will was made, the testator did not have sufficient knowledge and understanding of the effect of his action. Succ. of Collins v. Hebert, 377 So.2d 516 (La.App. 3rd Cir.1979), writ ref. 399 So.2d 15 (La.1980), Succ. of Brown, 251 So.2d 465 (La.App. 1st Cir.1971). Stated another way, there exists a very strong presumption (much like the presumption of an accused’s innocence), that the testator possessed the requisite testamentary capacity. Succ. of Zinsel, 360 So.2d 587 (La.App. 4th Cir.1978); Succ. of Arnold, 375 So.2d 157 (La.App. 2d Cir.1979). We note, also, that a testator’s ability to read is considered by our jurisprudence as an element of capacity, and therefore the party alleging the lack of that capacity assumes the same burden as that which attaches to proof of mental incapacity. Succ. of Littleton, 391 So.2d 944 (La.App. 2d Cir.1980); Succ. of Arnold, supra, Succ. of Glynn, 167 So.2d 533 (La.App. 4th Cir.1964).

It is undisputed that throughout most of her life, Regina Dubos had been blessed with good health, a quick intelligence, and perfect eyesight. Shortly after making the will of January 1976, however, Miss Dubos fell and fractured her hip. As is often the case with the elderly — Miss Dubos was eighty-five years of age at that time — she developed pneumonia. She was admitted to East Jefferson Hospital on April 26, 1976, slightly more than a month before the making of the second testament.

The plaintiff, Dr. Miller, sought to prove that from the time of her admission to East Jefferson Hospital until several months afterward, Regina Dubos was so disoriented and confused that she did not possess sufficient mental capacity to make a valid testament. Dr. Miller stated that during his frequent visits to the testatrix at the hospital, he observed that Miss Dubos was seemingly unable to comprehend either who she was or where she was, and was unable to respond appropriately to her new environment. He explained that her condition was the result of hardening of the arteries, which reduced the supply of oxygenated blood to the brain. He noted that throughout her stay at the hospital, the decedent remained near comatose and required extensive medication consisting of intravenous infusion, antibiotics, diuretics and cardiac drugs such as digitalis. Dr. Miller further stated that after Miss Dubos was released from the hospital and admitted to Colonial Oaks Nursing Home on May 19, 1976, although her physical condition seemed to improve, her mental capacity did not. He characterized the decedent’s condition as “cerebral insufficiency,” marked by confusion as to time, place and even her own identity. This incapacity, the doctor said, persisted until September or October of 1976, at which time Miss Dubos began to steadily improve. With regard to Miss Du-bos’ eyesight, the doctor testified that throughout the many years that he had known Miss Dubos (he was her close friend and private physician), she had always been an avid reader, at least until 1974 or 1975, when she developed cataracts. After that time, he said, Miss Dubos could read only with the aid of a magnifying glass. According to Dr. Miller, Miss Dubos’ sight finally deteriorated to the point that while she was in the hospital, and later, in the nursing home, she could not even recognize visitors and friends whom she had known for many years.

The plaintiffs corroborated the testimony of Dr. Miller with that of Mrs. Josie Ture-gano and Robert J. Miller, Jr., both of whom had established a close familial relationship with Miss Dubos. These witnesses confirmed that Regina Dubos was an insatiable reader until late in life, but that by the time she executed the revocatory will, her vision had so deteriorated that she relied upon others to read to her. Robert Miller, Jr. testified, as his father did, that Miss Dubos frequently seemed confused, sometimes speaking of her parents as though they were still alive.

The Director of Social Services at Colonial Oaks, Audrey Yallon, was one of the decedent’s daily visitors. In Miss Vallon’s opinion, Regina Dubos was lacking in “reality orientation”, as she put it — withdrawn, difficult to communicate with and apparently unable to sustain a train of thought in extended conversation. She also noted that, unlike most other convalescents, Miss Dubos failed to form friendly relationships with her or any of the nurses. With regard to the decedent’s vision, the director said that Miss Dubos had confessed her own inability to see, thereafter relying upon Miss Vallon to read the mail to her.

Finally, the plaintiffs presented the medical records of Miss Dubos’ treatment at East Jefferson Hospital. The discharge summary, prepared by Dr. A.M. Scardino, reveals that upon admission, March 26, 1976, Miss Dubos was suffering from pneumonia and arterioscleratic cerebrovascular disease. She was described at that time as confused, lacking in responsiveness and on the verge of coma.

Plaintiffs emphasized Miss Dubos’ lack of comprehension throughout her three-week stay at the hospital and even after discharge to Colonial Oaks. The hospital record fails to support these allegations, however. While there is no doubt that during the first days of her hospitalization, Miss Dubos was confused and disoriented — she was, after all, near coma and under heavy medication — as of the beginning of May, 1976, Miss Dubos began to show definite, steady progress. On almost every occasion thereafter, the nurses’ notes describe her as: “awake — appears to understand when spoken to”; “alert, appears oriented”; “alert and responsive”; “responds coherently”; “answers questions coherently”; “appears alert, cheerful”, and so on.

In light of the hospital record, we shall now briefly review the testimony of several witnesses who testified on behalf of the proponents of the second will. Each of the several witnesses to the last will and testament of Regina Dubos testified that at the time the second will was executed, the testatrix appeared to be of sound mind and to comprehend the significance and effect of her act.

Mrs. Louis Arnaud described Regina Du-bos as having been very cheerful, alert and lucid at the time of the execution of the second will. She recalled that the majority of Miss Dubos’ conversation with her attorney was in French, and that after the will was written by her lawyer, Mr. Felix Gau-din, Miss Dubos read the will herself and signed it in her own hand without assistance.

Mrs. Alice Dubos, a long-time friend of the decedent (related by marriage), contended that while convalescing at the nursing home, although Miss Dubos had occasional lapses of concentration, she normally greeted visitors cheerfully and engaged in conversation. She corroborated Mrs. Ar-naud’s testimony, expressing her certainty that Regina Dubos had read the second will before signing it.

William J. Luscy, Notary Public, testified that Miss Dubos acknowledged and signed the will on both pages. He stated, further, that he perceived no physical or mental incapacities in the testatrix, and that if he had, he would not have notarized the will. Mr. Luscy identified the will, containing his signature and that of Regina Dubos, then directed the court’s attention to her signature, which closely followed the printed line, indicating that her vision was not so impaired as to prevent her from reading the testament.

The proponents of the second will called two other significant witnesses, Helen Brazilian and Thelma Bridges, both of whom had daily contact with Miss Dubos, having been employed as “sitters”. Both of these witnesses testified that Regina Dubos appeared to have the ability to see.

CONCLUSION

We find no manifest error in the trial court’s finding that the plaintiffs had not proved the decedent’s lack of capacity beyond a reasonable doubt. The ultimate factual issue was- resolved by the trial judge’s evaluation of the witnesses’ credibility, and with that resolution we do not argue. We note that, concerning the decedent’s mental capacity, the plaintiff’s case was simply not borne out by the medical record, which upon review, utterly refutes the allegation that Miss Dubos was habitually confused and disoriented. Evidently, the trial court was also impressed, as we are, with the fact that although Dr. Miller strenuously denied Regina Dubos’ ability to comprehend her act of May 31,1976, he was equally certain that her capacity to donate and sell certain valuable properties to him during her later years was not similarly impaired. As to whether Miss Dubos could see well enough to read, we note that the plaintiff’s own witness, Mrs. Turegano, contradicted the doctor and his son when she stated that on every occasion, Regina Dubos recognized her (and other visitors) and greeted her warmly.

We cannot find fault with the trial court in assigning great weight to the testimony of the witnesses of the May 31 testament, for the testatrix’s capacity on that date is, of course, critical. The testimony of the notary, in particular, has always been regarded as carrying special credence in any dispute as to testamentary capacity, and we see no reason to diverge from that path here. See Chandler v. Barrett, 21 L.Ann. 58, 99 Am.Dec. 701 (1869); Succ. of Bey, 46 La.Ann. 787, 15 So. 297 (1894); Succ. of Crouzeilles, 106 La. 442, 31 So. 64 (1901). The unequivocal testimony of each of the witnesses to the testament provided the factual basis for the trial court’s conclusion that the decedent did possess the physical and mental capacity to fully understand the import and effect of her act. Conversely, we note that none of the plaintiff’s witnesses was present at the confection of the second testament, and therefore could refute the evidence of testator’s mental capacity, if at all, only by resort to circumstantial evidence of her condition before and after the making of the second testament. Upon the record as a whole, we agree with the trial court that the plaintiff’s evidence was insufficient to prove beyond a reasonable doubt that Regina Dubos lacked testamentary capacity. Accordingly, we find no manifest error in the proceedings below. The judgment is affirmed.

AFFIRMED.

      . On the next page, the act contained the requisite formal recitations. La.R.S. 9:2442.

      . Dr. Miller is married to the daughter of Mr. and Mrs. Albert Turegano, who lived with the deceased for many years.


text:
    Herman Wilson JONES v. ST. CHARLES STEEL FABRICATORS, INC., and Glazer Steel Corporation.
    No. 12521.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 30, 1982.
    Rehearing Denied Dec. 21, 1982.

      Ernest A. Carrere, Jr., Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for defendants-appellees.
    Dan C. Garner and John G. Munoz, Garner & Munoz, New Orleans, for plaintiff-appellant.
    Before GARRISON, AUGUSTINE and WARD, JJ.
   AUGUSTINE, Judge.

On January 19, 1972, Herman Wilson Jones, a seaman aboard the shrimp trawler F/V LADY OF GOOD VOYAGE, was sitting on the deck of that vessel repairing a fishing net when one of the boat’s steel booms collapsed, falling across Jones’ back and causing severe injury. It is alleged that the vessel was operating under normal conditions and “without any unusual circumstances”.

Following the accident, Jones filed suit in Federal District Court against his employer, Paul V. Menard, who owned and operated the LADY OF GOOD VOYAGE. Jones sought recovery under the Jones Act and under general maritime law.

Paul Menard, in turn, filed a third-party claim for contribution and indemnity against the designer and builder of the vessel, St. Charles Steel Fabricators, Inc., St. Charles Corporation, the firm which had supplied the steel pipe from which the boom was later constructed.

On December 1,1978 after many years of pre-trial maneuvers from all sides, plaintiff and his employer Menard agreed to a settlement of their dispute. This settlement did not govern any of the plaintiff’s claims against any other parties, however, and on March 28,1979 Jones instituted this present action against St. Charles and Glazer in State Court.

The allegations which concern seaman Jones’ cause of action against Glazer, the steel supplier, are these:

IX.
“That the steel pipe used for the construction of the boom which failed and caused the injuries complained of herein, was purchased from GLAZER STEEL CORPORATION.
X.
That the failure of the boom complained of herein was due to a defective condition of the steel pipe provided by GLAZER STEEL CORPORATION and the said GLAZER STEEL CORPORATION should be responsible under its expressed and implied warranties and obligations that the product that was sold was adequate for the use and purpose intended.” These allegations were found by the trial

court to be insufficient to state a cause of action against Glazer. Plaintiff thereafter amended the petition by addition of the following:

XA.
“Plaintiff alleges the following acts of negligence on the part of GLAZER STEEL CORPORATION:
a)Failure to reasonably inspect the product before it was sold;
b) Failure to determine by reasonable inspection obvious defects in the products sold by them;
c) Providing the wrong grade of steel pipe for use intended when it was known to defendant that the pipe would be used for construction of a boom of a vessel;
d) Any and all other acts of negligence which may be shown at the trial of this matter.”

Glazer subsequently filed an exception of no cause of action as to each plaintiff’s allegations, supplementing these exceptions with a motion for summary judgment.

The trial court held in favor of Glazer on the exceptions and on the motion for summary judgment. Plaintiff Jones now seeks reversal of that decision.

As set out above, Jones’ petition seeks recovery under two distinct theories, each of which concerns Glazer’s act of supplying allegedly defective steel pipe to St. Charles, the shipbuilder.

As to the first theory of recovery, Jones alleges that Glazer should be liable to him under the law of products liability, because Glazer supplied an obviously defective steel pipe to St. Charles and the defect ultimately caused his injury. Plaintiff relies upon Peltier v. Seabird Industries, Inc., 243 So.2d 112 (La.App. 3rd Cir.1971) for the proposition that a seller or supplier is duty-bound to refrain from putting into commerce any product which is obviously defective. Peltier held that although a seller is not presumed to know the hidden vices of his product, as is a manufacturer, he is bound to conduct reasonable inspection to discover obvious defects. Any injury directly caused by the seller’s breach of these duties gives rise to delictual liability. We conclude that appellant’s allegation that his injury was caused by an obvious defect in the pipe sold by Glazer adequately states a cause of action under Louisiana law.

Nevertheless, plaintiff cannot prevail in the motion for summary judgment. The depositions submitted by Glazer were sufficient to establish that Mr. Bourgeois conducted an inspection of the steel pipe and found no obvious defects. The counter-affidavit offered by plaintiff Jones altogether failed to address Mr. Bourgeois’ testimony on this point and it appears that the “obvious defect” theory of recovery has been abandoned in favor of the allegations of paragraph X-A(c). In the absence of any response from the plaintiff, we must conclude that there exists no material issue of fact, that is, that the steel was not obviously defective.

As to the plaintiffs claim under the theory of implied warranty, there is no dispute that St. Charles ordered, and Glazer delivered, three pieces of steel described as 120 feet of six-inch schedule forty black pipe. It has been held that “When a seller has delivered to the buyer an article specified in the contract, under a definite description, there is no implied warranty on the seller’s part that the article is fit for the purpose intended, even though he knew of the purpose for which article was bought.” Henderson v. United States Steel and Window Glass Co., 121 So. 576 (La.1929). Emphasis added.

The above rule has been abrogated in those instances where, despite the fact that the sale is by description, the buyer relies upon the seller’s recommendation or selection of the described thing. Davenport Ladder Co. v. Edward Hines Lumber Co., 43 F.2d 63 (8th Cir.1930), and cases collected in 90 A.L.R. 406.

We find no such reliance by St. Charles upon Glazer in this case, however. Noah Bourgeois of St. Charles Steel unequivocally stated in deposition that at no time did Glazer’s representatives recommend which type of steel to use in the manufacture of the shrimp trawler. Since this statement was not contradicted, we must conclude that St. Charles, applying its expertise as a ship builder, made the selection as to which grade of steel should be supplied.

Under the rule of Henderson, supra, we therefore find that Glazer gave no implied warranty to St. Charles or to any third party that the steel which it supplied would be fit for any particular purpose.

Finally, we must reject plaintiff’s contention that this case should fall within the rule of Chappuis v. Sears, Roebuck & Co., 358 So.2d 926 (La.1978): a professional vendor, much like a manufacturer, is presumed to know of latent defects in the products it sells, and will be held strictly liable for the injury such defects cause to purchasers or third persons. Mr. Jones’ petition neither alleges Glazer’s status as a professional vendor nor does it plead facts from which that conclusion might be drawn. Again, on the motion for summary judgment, plaintiff presented no evidence whatsoever as to Glazer’s status as a professional vendor. We therefore hold that Chappuis, supra, cannot govern this case.

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

AFFIRMED.

      . There is no dispute arising from admissible evidence submitted at the motion for summary judgment; and we cannot recognize the affidavit submitted by plaintiff Jones in opposition to Glazer’s motion. That document is the report of Mr. Henry Reinecke, Jr., who concluded that Glazer had furnished “X-52 line pipe”, a higher grade of steel than St. Charles had requested. The report further states that X-52 pipe has the propensity to crack during welding unless special welding rods are used, and that if St. Charles was unaware of the properties of the pipe, they would probably not have used the correct rod.
      Although Mr. Reinecke’s report seems to raise a issue of fact, the affidavit is not the product of Mr. Reinecke’s personal knowledge, but rather the sum of the affiant’s deductions, based upon his reading of reports submitted by other experts. Mr. Reinecke himself did not inspect the steel used to construct the boom.
      Such evidence is clearly inadmissible. LSA-C.C.P. 967 requires that supporting and opposing affidavits shall be made on personal knowledge, and as stated in Hidalgo v. General Fire and Casualty Co., 254 So.2d 493 (La.App. 3rd Cir.1971):
      “In the law of evidence, ‘personal knowledge’ means something which the witness actually saw or heard... The purpose of the requirement of ‘personal knowledge’ in Art. 967 is to limit the affidavits to facts which the affiant saw, heard or perceived with his own senses. The mere opinion of an expert witness, based solely on his special training and experience, is not based on ‘personal knowledge,’ as this is used in Art. 967.”

      . “Schedule 40” pipe has a diameter of six inches and a wall thickness of .280 inches. The term therefore refers only to physical dimensions and does not define a grade or quality of steel.


author: CHEHARDY, Judge.

text:
    Wilda Mollere, wife of/and Alvin MOLLERE, Sr. v. Mike AGUILAR and State Farm Mutual Automobile Insurance Company.
    No. 5-93.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 1982.
    Rehearing Denied Dec. 17, 1982.
    John G. Villarrubia, Metairie, for plaintiffs-appellants.
    Sessions, Fishman, Rosenson, Boisfon-taine & Nathan, Owen A. Neff and Peter S. Title, New Orleans, for Michael Aguilar and State Farm Mut. Auto. Ins. Co., defendants-appellees.
    Before CHEHARDY, BOWES and GRISBAUM, JJ.
   CHEHARDY, Judge.

Plaintiffs, husband and wife, instituted this suit for personal injuries and medical expenses sustained by the wife in an automobile accident on the West Bank Expressway, near its intersection with Farrington Avenue in Marrero, Louisiana. Named defendants were the driver of the other vehicle involved and his automobile liability insurer. Defendants each answered in the form of a general denial and filed reconven-tional demands — the insurer, as subrogee for the sum of $550 property damage paid their insured, and the insured for his $50 deductible. Following trial, judgment was rendered in favor of defendants on the main demand dismissing plaintiffs’ suit, and in favor of defendants in the reconventional demand in the sums of $550 and $50, respectively. Plaintiffs have appealed.

The facts of the accident are in dispute. Plaintiffs’ version is as follows:

On March 12, 1977 at approximately 5:45 a.m., the wife was driving her car on Far-rington Avenue service road, near its intersection with the expressway on her way to an early morning appointment at the beauty parlor. She stopped at the stop sign on the service road and crossed the eastbound lanes of the expressway where she stopped at a yield sign in the neutral ground. She looked to her right toward the Harvey Tunnel and saw the headlights of defendant’s vehicle just emerging from the tunnel two to three blocks away, which gave her plenty of time to make a left turn onto the expressway.

She turned into the left lane closest to the neutral ground on the expressway, shifted into all three gears (the car has manual transmission) and was 200 to 300 feet down the road when her vehicle was struck suddenly and violently from the rear, knocking it into the right hand lane 400 feet from the point of impact. The trunk lid flew up, the vehicle stalled, her stomach hit the steering wheel, her wig flew off and her neck snapped. Both car doors were jammed so she had to crawl out of a window. She testified that at that time she saw defendant back up his car into the intersection (200 to 300 feet), where it remained until the police arrived. She complains of injuries to her head, stomach, neck and abdomen, and emotional illness as a result of the accident.

Defendants’ version of the accident is that their driver was on his way to work, where he had to report at 6:45 a.m. He was travelling westward on the expressway toward the Huey Long Bridge. The weather was drizzling. When he was about three car lengths from the intersection of Far-rington Avenue he saw plaintiff vehicle start to make a left hand turn onto the expressway. He blinked his lights, blew his horn and hit the brakes. He could not turn to the right because another car was travel-ling in that lane, and he could turn left onto the neutral ground only to a limited extent, because he would have hit a power line. The accident occurred two or three feet from the intersection when his vehicle struck plaintiff vehicle in the rear.

There were no other witnesses to the accident, but the investigating police officer observed broken glass and debris at the spot where defendant vehicle was located in the intersection at the time he arrived. He found the debris particularly behind the defendant’s left rear wheel. This evidence supported to his satisfaction that the accident had occurred in the intersection.

Appellants’ numerous assignments of error are basically related to their contention that the trial court erred in failing to find that the proximate cause of the accident was the negligence of defendant driver, that the trial court was influenced by unproved allegations that plaintiff was under the influence of alcohol and/or drugs at the time of the accident and that, alternatively, defendant had the last clear chance to avoid the accident.

It is clear the trial court accepted defendants’ version of the accident according to its reasons for judgment, and it was influenced in this decision by concluding the accident occurred in the intersection because of the location of the debris. The judge was also impressed with testimony that plaintiff appeared to be intoxicated or drugged and was dozing or groggy while in the back seat of the police ear. This conclusion was also based on a medical report from the state hospital in Mandeville in which plaintiff admitted to excessive use of drugs two weeks prior to her admission to that institution on April 1, 1980. According to plaintiff’s statement to Dr. S.A. Holt of that hospital she was experiencing some sort of drug problem at the time of the accident.

Plaintiffs infer that defendant’s driving ability was impaired because he had taken three different drugs shortly before the accident. The medication taken by defendant was necessary because he suffers from high blood pressure. He has taken it daily for several years as prescribed by his doctor, and there is no suggestion of a drug problem, drug abuse, or that these prescription drugs interfered with his ability to drive a car.

The trial court did not address itself to the question of last clear chance. We can find no evidence that it was either pleaded or argued in the trial court. However from its reasons for judgment it is clear that in accepting defendants’ version of the accident last clear chance would be inapplicable.

Our appellate review of facts in civil cases is aptly set forth by our Supreme Court in the case of Canter v. Koehring Company, 283 So.2d 716, 724 (La.1973) (and cases cited therein), wherein it is stated:

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.”

and further clarified by that court in the case of Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1979), wherein they explained the manifest error rule as follows:

“ * * * ‘Manifestly- erroneous,’ in its simplest terms, means ‘clearly wrong.’ We said, then, that the appellate court should not disturb such a finding of fact unless it is clearly wrong. Therefore, the appellate review of facts is not completed by reading so much of the record as will reveal a reasonable factual basis for the finding in the trial court; there must be a further determination that the record establishes that the finding is not clearly wrong (manifestly erroneous).”

Following the guidelines set for us by the Supreme Court in the two landmark cases cited above, we find no manifest error in the finding of facts by the trial court in the instant case.

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

AFFIRMED.


author: KLIEBERT, Judge.

text:
    Kathleen Mathews, Wife of/and James E. MATHEWS v. H.G. DEARIE REAL ESTATE, INC. and R.J. Gaffney.
    No. 5-119.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    Rehearing Denied Dec. 17, 1982.
    Writ Denied Feb. 4,1983.
    David Pick, Greenberg & Dallam, Gretna, for plaintiff-appellant.
    Richard T. Regan, Francipane, Regan & St. Pee, Metairie, for defendants-appellants.
    Before BOUTALL, KLIEBERT and GAUDIN, JJ.
   KLIEBERT, Judge.

This is a suspensive appeal by Kathleen Mathews, wife of/and James Mathews (buyers), plaintiffs, from a judgment dismissing their demand for a rescission of an agreement to purchase real estate and a refund of their deposit. They also appealed the judgment rendered on the reconventional demand of defendants, H.G. Dearie Real Estate, Inc. (real estate agent) and R.J. Gaffney (seller). The latter judgment upheld the agreement sought to be rescinded by the buyers, forfeited the buyers’ deposit and awarded the real estate commission and attorney fees to the agent and attorney for the seller. The issue raised on the appeal is whether the parties were laboring under a mistake of error sufficient to cause a lack of mutual consent and therefore grounds for a rescission of the sale under La. C.C. Article 1821 et seq. The trial judge decided there was no error and we affirm.

On August 7, 1979, buyers and seller entered into an agreement to buy and sell lots 52 through 57 of Square 192, Kenner Project Subdivision, for $43,200.00. At the time of execution the buyers made a deposit of $4,320.00. The sale was to be passed before the buyers’ notary on or before September 20, 1979. However, by mutual agreement, buyers extended the date for the sale to October 19, 1979. When it became apparent the buyers’ notary would not prepare the act of sale, the seller asked his notary to do so. The seller’s notary informed the buyers that he was prepared to pass the sale. On October 17, 1979, the buyers, through their counsel, informed the seller the sale would not be consummated because “a) The zoning of the property is inadequate for the purpose intended, i.e., warehouse; and b) The land is inadequate to support a one story galvanized steel building for use as a warehouse on a slab without 90 to 100 pilings being driven at the premises”.

The agreement to purchase clearly states the property is zoned “C-l” (commercial). Neither party disputes the “C-l” zoning. The buyers, however, contend the real estate agent knew they entered into the agreement to purchase the lots in order to construct a metal building for use as a warehouse. Counsel for the buyers argues that under the zoning ordinance of the City of Kenner, a copy of which was filed in the record, a metal building for use as a warehouse could not be constructed on the lots. Since the prime reason for entering into the contract was to construct a building for use primarily as a warehouse, buyers were laboring under a mistake of fact at the time the agreement to purchase was executed; hence, the contract can be rescinded. Although the legal argument urged by the buyers is a valid one, the facts necessary for its application are not evident here.

The real estate agent and his salesman’s version as to the purpose for which the buyers were acquiring the property is totally different from that of the buyers’. Whereas, the buyers testified the principal contemplated use of the building was warehousing, the real estate agent and his salesman testified the buyers informed them the contemplated use was for office space and sales display with twenty-five percent or less of the building to be utilized for warehousing. Under the permitted uses for C-l classification in the Kenner ordinances, the contemplated use testified to by the buyers, i.e., warehousing, would not be permitted; whereas, under the real estate agent and his salesman’s version of use testified to, the contemplated use, i.e., office space, sales display and not over twenty-five percent warehousing would be permitted. The trial judge accepted the agent’s version and concluded “the contemplated building could have been erected on the lots without any problems”. Additionally, the trial judge concluded the buyers’ failure to go through with the sale was the reason alleged in their petition; that is, once they discovered all the costs involved in erecting the building (including the cost of driving pilings) they decided not to go through with the purchase.

After a careful review of the record, we cannot say the trial judge erred. Pure and simple, the facts necessary to support the buyers’ legal contentions are not in evidence. Accordingly, the judgment of the trial court is affirmed. All costs of the appeal to be borne by buyers.

AFFIRMED.


author: BOWES, Judge.

text:
    JOHN JAY ESTHETIC SALON, INC. v. Frances WOODS and Neubie Culver.
    No. 5-117.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 1982.
    Rehearing Denied Dec. 17, 1982.
    Anthony J. Russo, New Orleans, for plaintiff-appellee.
    Richard J. Boutall, Metairie, for defendants-appellants.
    Before CHEHARDY, BOWES and GRISBAUM, JJ.
   BOWES, Judge.

This case comes before us on appeal from a judgment of the trial court awarding plaintiff John Jay Grassafi damages in the amount of $91,872.00, plus $3,600.00 for training a replacement for defendants. Plaintiff had sued defendants on a contract of employment, alleging failure to comply with non-competitive clauses of the contract by entering into business relationships with one another within a prohibited time period. The matter was tried and appealed to the Fourth Circuit, then the proper forum, as matter number 10433. Liability of defendants was upheld, but the case was remanded for trial as to actual damages. It is from this damage award that defendants appeal, alleging seven issues.

Out of the quagmire which constitutes this case subsequent to remand, we believe we have distilled the relevant points. Initially, a chronology of salient events would be in order:

April 1, 1980 — Plaintiff’s counsel files motion to set for trial.
April 14, 1980 — Notice of trial set for June 26,1980 is served on counsel.
June 13,1980 — Request for subpoena duc-es tecum and Notice of Deposition for plaintiff is filed, and set for June 19, 1980.
June 26,1980 — Trial begins; continued to September 12, 1980, while witness, Rodney LeBlanc, is in the midst of being cross-examined.
September 5, 1980 — Notice of deposition and subpoena duces tecum for witness, Rodney LeBlanc, set for September 9, 1980.
September 5, 1980 — Motion to Dismiss and Contempt of Court for failure to make discovery (reference the deposition of plaintiff on June 19). Motions set for Sept. 12th (morning of trial).
September 12, 1980 — Motion to Continue Trial granted on basis of plaintiff’s failure to complete discovery and location of one of the defendants whose whereabouts were previously unknown. Trial reset for October 3rd.
September 15, 1980 — Stay order signed staying proceedings until compliance of plaintiff with court ordered subpoena (reference the discovery motions). October 3rd set as date to show cause why plaintiff and witness, LeBlanc, should not comply with court orders.
September 22, 1980 — Motion for protective order filed by plaintiff; not signed by the judge.
October 3, 1980 — Minute entry showing trial and rules continued to 10/27/80.
October 27, 1980 — Minute entry — rule continued to November 26th.
November 26,1980 — Application for time to file writs and motion for continuance denied.
November 26,1980 — Trial on merits held, without defendants or their counsel present.

Above is an admittedly skeletal outline of important events, the flesh of which we shall supply below.

Defendant’s counsel made his initial attempts at discovery late in the game, yet before the first trial date. At that time, plaintiff did not object to the subpoena duces tecum served on his client. The deposition was evidently held and the trial began.

The trial was continued in midstream for several reasons, one of which is relevant here: defendants were unable to complete their discovery. On September 12th, the court granted a continuance and, we are told by plaintiff’s brief, gave defendants one week in which to conclude the discovery. The transcript of that morning is not a matter of record on this appeal. Three days later, the court signed a stay order requested by the defendants based on failure of plaintiff, Grissafi, and his accountant, Rodney LeBlanc, to comply with subpoena duces tecum and also on Mr. Le-Blanc’s failure to attend the deposition set. It is noted that Mr. LeBlanc was properly subpoenaed to appear at the deposition. Unfortunately, the procedural articles cited by defendant in his motion for a stay order were obsolete by some four years at that time, having been superseded by amended or new articles.

We feel that the trial court must have believed it had the authority to issue the order under the correct and current articles, notably 1471, and the circumstances of the case. Otherwise, a stay would not have been issued. Plaintiff filed no pleadings objecting to issuance of the order. We hold, therefore, that the stay order was a valid exercise of the court’s discretion to issue such orders as are just and equitable. The regulation of discovery is subject to the broad discretion of the trial court and, absent a clear showing of abuse, its rulings will not be disturbed. Folds v. Red Arrow Towbar, 378 So.2d 1054 (1st Cir.1979). “The court has the power to require that the proceedings shall be conducted with dignity and in an orderly and expeditious manner and to control the proceedings at trial, so that justice is done.” C.C.P. 1631.

It is necessary to consider one further fact. The record is "devoid of a transcript for October 27th, on which date plaintiff argues the trial and rules were continued to November 26th. In the record, we have only the letter from Judge LeBrun to counsel dated October 21, 1980, which states, “Please be advised that on October 27,1980, at 9:00 a.m., I will hear the pending motions only.” (Judge LeBrun’s emphasis), and the minute entry continuing the rules (emphasis supplied) to November 26th. Most importantly, there is the notable absence of any formal or written order rescinding the stay order. The trial judge orally stated on the morning of the 26th he believed the stay order was eliminated (rescinded) “impliedly”, which confirms our understanding that it was never actually rescinded.

We find, therefore, that defense counsel was entitled to rely on the stay order as being viable on November 26th. We find further that the order is still in effect, having never been rescinded, set aside, or amended in any manner. We further find that a written order such as this stay order cannot be “impliedly” rescinded. Hence, the trial court erroneously proceeded with the trial on the merits. Accordingly, we annul the judgment of the trial court and remand this case for action in keeping with this opinion.

For the above reasons, it is unnecessary to address any other issues presented in this appeal.

We recognize the extreme patience of the trial court with counsel for both plaintiff and defendant, his attempts to give justice to both parties, and believe the court felt compelled to proceed. However, we are obliged to rely on the record in this case, which mandates our decision.

ANNULLED AND REMANDED.


author: GRISBAUM, Judge.

text:
    John FILLWOCK v. BROWN AND ROOT, INC., and Highlands Insurance Company.
    No. 5-368.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 1982.
    Rehearing Denied Dec. 17, 1982.
    The Law Offices of Daniel E. Becnel, Jr., Daniel E. Becnel, Jr., Reserve, for plaintiff-appellee.
    Christovich & Kearney, Paul G. Preston, New Orleans, for defendants-appellants.
    Before CHEHARDY, BOWES and GRISBAUM, JJ.
   GRISBAUM, Judge.

In this worker’s compensation suit appellants Brown & Root and Highlands Insurance Company claim the trial court erred in considering the testimony of a psychiatric expert who examined plaintiff, John Fill-wock, for the first time after the primary trial on the matter. Mr. Fillwock was injured in a work-related accident on November 28, 1979 and filed suit in the Twenty-Ninth Judicial District Court for the Parish of St. John the Baptist against his employer Brown & Root, Inc. and its worker’s compensation carrier, Highlands Insurance Co. on October 14, 1980 after Mr. Fillwock’s compensation was curtailed. Although testimony was heard and exhibits were introduced during the trial, the court left the matter open for the taking of depositions of various doctors who had been subpoenaed but who had not appeared at trial.

While working for Brown & Root, John Fillwock was struck in the head, in the area of his occiput, by an angle iron which fell from scaffolding set up inside a water tank he was painting. He received a laceration of the scalp over the parietal area and was bruised over his left shoulder and upper chest. He reported that he was dazed initially but was not struck unconscious. Immediately following the accident he was examined by a local physician who sutured his scalp laceration. The physician released Mr. Fillwock to return to work, but soon after Mr. Fillwock discontinued working due to continuing problems with headaches, tinnitus, and dizziness. Consequently, he saw a neurologist, Dr. Maria Palmer, who found that he had a mild concussion. She performed an electroencephalogram. Because she could not determine whether it was normal, she performed another electroencephalogram three months later which was normal.

Mr. Fillwock was also seen by Dr. Raul Reyes, a general surgeon with specialty training in orthopedics. He completely examined Mr. Fillwock in December 1979 and after x-rays were taken diagnosed Mr. Fill-wock as suffering from post trauma cepha-lagia, a bruise on the left shoulder, a laceration of the scalp, anxiety and tinnitus in the left ear. He advised him to see an ear, nose, and throat specialist for his tinnitus in the left ear and gave him a prescription for various medications for his pain, headaches, sleep, and “anxiety manifestations.”

In January 1980, Dr. Richard Levy a neurosurgeon, examined Mr. Fillwock and thought he had sustained a mild concussion as a result of the accident. He- felt the headaches and dizziness were related to the concussion and as such could be called post concussion symptoms. In April when he again examined Mr. Fillwock, he found that the post concussion symptoms had disappeared. In the meantime, upon request of his employer’s compensation insurer, Mr. Fillwock was examined by an otolaryngologist and a neurologist to substantiate his continued complaints of hearing loss, ringing in the ears, imbalance, and headaches. Because neither of these physicians could find an “objective” basis for his complaints, the compensation insurer stopped compensation payments in June 1980.

Upon recommendation of Dr. Palmer, Mr. Fillwock was seen by Dr. Randolph Harper in July 1980. Dr. Harper performed a number of psychological tests on Mr. Fillwock and in August 1980 diagnosed Mr. Fillwock as suffering from post traumatic neurosis. Subsequently, Mr. Fillwock was examined by Dr. Hall, a psychiatrist and dolorologist at the Mercy Hospital Pain Unit in December 1980. Dr. Hall diagnosed Mr. Fillwock as showing a “moderate reactive depressive neurosis.” In addition, Dr. Palmer, as part of her examination, thought Mr. Fillwock was suffering from post traumatic neurosis. However, after examining Mr. Fillwock in February 1981, Dr. Kenneth Ritter, a psychiatrist who testified for defendants, concluded that he did not have any psychiatric disability beyond problems caused by his desire to be compensated for his injury.

At trial Mr. Fillwock contended that as a result of the mental problems he incurred from his work-related accident, he was totally and permanently disabled. On the other hand, defendants argued that any disability sustained by Mr. Fillwock had disappeared and he was, therefore, not entitled to any additional compensation. The trial court heard testimony for plaintiff from Mr. Fillwock, Dr. Palmer, a neurologist, and Dr. Harper, a psychologist. The court also heard testimony for' defendants from Dr. Ritter, a psychiatrist, as well as Mr. Murphy, a claims adjuster for Highlands Insur-anee Company. An error in the scheduling of the trial which caused problems in the taking of several depositions prompted the trial court to leave the trial open for the taking of depositions of several doctors who had been subpoenaed but who had not appeared at trial. Thus, Dr. C.B. Scrignar, a psychiatrist who was called to testify for plaintiff but who had not reviewed any medical reports nor had he any previous contact with plaintiff, first examined plaintiff for psychiatric disability on March 17, 1981 (six days after the initial hearing) and was subsequently deposed on April 2, 1981. During his deposition, defendants’ counsel objected to his testimony and subsequently filed a motion objecting to its admission into evidence. The court denied defendants’ motion and considered Dr. Scrignar’s testimony. It is this admission into evidence of Dr. Scrignar’s testimony that defendants have based their appeal.

The issues on appeal are as follows:

1) In a worker’s compensation suit in which psychiatric disability is at issue, is it admissible to introduce depositional testimony derived from a psychiatric examination conducted subsequent to the trial on the merits in open court when the case was left open for the taking of depositions?

2) If the testimony is inadmissible, is the admission of such testimony into evidence in this case reversible error?

Responding to the first issue, such a belated psychiatric examination results in unreliable evidence and should have been excluded from evidence in the instant case. In cases where psychiatric disability is claimed, our courts have recognized a need to use utmost caution and extreme care when considering psychiatric evidence. This is due to the nebulous characteristics of the condition and the possibility that symptoms could be feigned. See Thomas v. McInnis Bros. Const., Inc., 401 So.2d 522, 526 (La.App. 2nd Cir.1981); Victoriana v. Orleans Parish Sch. Bd., 346 So.2d 271, 273 (La.App. 4th Cir.1977). The court in Victoriana, 346 So.2d 271, 273 stated:

“... the evidence in these cases should be scrutinized carefully and every precaution taken to guard against unjustified claims.”

In the above-cited cases, the psychiatric evidence was derived from examinations conducted prior to the trial. Where a party seeks to introduce depositional testimony derived from psychiatric examination conducted after other psychiatric testimony was heard the need for caution is even more evident. Plaintiff had the benefit of listening to defendant’s psychiatric expert’s opinion and could have conceivably styled his responses in his later psychiatric examination to contradict the defendant’s psychiatric expert’s diagnosis.

While we find this testimony to be inadmissible, its admittance under the facts of this case is harmless error. Because this court has statutory authority under Louisiana Code of Civil Procedure Article 2164 “to render any judgment which is just, legal, and proper upon the record on appeal,” our review of the record indicates that the trial court’s finding of post traumatic neurosis is correct and that justice has been done. See Naquin v. Maryland Casualty Co., 311 So.2d 48, 52 (La.App. 3rd Cir.1975); Shows v. Williamson, 256 So.2d 688, 692 (La.App. 2nd Cir.1972). Since Mr. Fillwock claims a psychological disability, we have reviewed the testimonies of the various experts with strict scrutiny. See Davenport v. McCullough Services Baroid Division, 388 So.2d 453, 456 (La.App.2d Cir.1980); Knight v. Southeastern Chemical Corp., 344 So.2d 67, 69 (La.App. 4th Cir.1977). Apart from Dr. Scrignar’s examination, Dr. Palmer, a neurologist, Dr. Hall, a psychiatrist, and Dr. Harper, a psychologist, all found Mr. Fillwock suffering from post traumatic neurosis. We find their testimony persuasive, and, therefore, affirm the trial court’s judgment.

AFFIRMED.


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

text:
    Willie Ester EPTING, Plaintiff-Appellant, v. HDO, INC. and Charles W. Greeson & Sons, Inc., Defendants-Appellees.
    No. 15021.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 25, 1982.
    Bruscato, Loomis & Deal by Sam N. Poole, Jr., Monroe, for plaintiff-appellant.
    Hayes, Harkey, Smith & Cascio by Thos. M. Hayes, Jr., Monroe, for defendant-appel-lee, HDO, Inc.
    Voelker, Ragland, Brackin & Crigler (A Professional Law Corporation) by William B. Ragland, Jr., Lake Providence, for defendant-appellee, Charles W. Greeson & Sons, Inc.
    Before MARVIN, FRED W. JONES, Jr., and NORRIS, JJ.
   FRED W. JONES, Jr., Judge.

Plaintiff sued a landowner and its dirt contractor for personal injuries sustained when a motorboat in which plaintiff was riding as a passenger struck a submerged piece of equipment (left by the contractor) in a flooded field (belonging to the landowner) lying adjacent to the Ouachita River in Morehouse Parish.

From a judgment sustaining motions for summary judgment filed by defendants, plaintiff appeals, contending the trial judge erred in holding (1) that since plaintiff was boating and enjoying a recreational diversion on the landowner’s property when injured, defendants enjoyed immunity from liability under La.Revised Statutes 9:2791 and (2) that since plaintiff was a trespasser on the landowner’s property, defendants only owed him the duty of refraining from willfully, intentionally and maliciously inflicting injuries.

Finding that there was no genuine issue as to a material fact (as conceded by plaintiff in brief), and that, for the reasons hereinafter explained, defendants were entitled to judgment as a matter of law, we affirm.

In his petition plaintiff alleged:

“On or about April 22,1980, Willie Ept-ing was a passenger in a boat operated by Huey Rhodes. At the time, Mr. Willie Epting was employed by the U.S. Fish and Wildlife Service, as was Mr. Huey Rhodes. At the time of the accident, Mr. Huey Rhodes and Mr. Willie Epting were in the course and scope of their employment with the U.S. Fish and Wildlife Service. The boat Mr. Epting was a passenger in was an aluminum eighteen foot boat with an outboard Mercury engine. The boat was proceeding along the Oua-chita River in Morehouse Parish on what appeared to be river bed area. Suddenly and without warning, the boat struck an under water structure which had been constructed and put in place by HDO, Inc., and/or was put in place on HDO, Inc. property with its consent. At the time of impact, Mr. Epting was thrown forward in the boat and received severe injuries as hereinafter delineated.”

Both defendants filed motions for summary judgment. At the trial thereof depositions of the following individuals were filed in evidence: the plaintiff, Epting; Rhodes, the boat operator and plaintiff’s fellow employee; Oliver, General Manager of the landowner, HDO, Inc.

According to the aerial photograph of the accident site filed in evidence and explanatory testimony, the following sketch generally depicts the area in question together with relevant landmarks.

Epting testified in his depositions that on April 22, 1980, the day of the accident, he was riding down the Ouachita River in a motorboat operated by his fellow employee, Rhodes. The two were returning to Rhodes’ dwelling from a mission on the river connected with their employment. When they came to a bend in the river (shown in the upper part of the sketch) Rhodes elected to take a shortcut across a submerged field lying to the east of and adjacent to the river. During this excursion away from the river channel, plaintiff was using his employer’s camera to take photographs of interesting scenery. While traversing the flooded field, the boat suddenly struck a submerged metal structure. Plaintiff was thrown violently about in the boat, sustaining the serious injuries for which this suit was instituted.

In his depositions Rhodes stated that he had traveled on the Ouachita River for over 20 years and was very familiar with its channel and characteristics. He knew that the submerged field across which he took the shortcut when plaintiff was injured belonged to HDO, Inc. In this area the river channel was marked by a line of trees. According to Rhodes, this particular field was dry six to eleven months out of each year. Rhodes stated that when the river overflowed onto this field it was a common practice for fishermen and hunters to drive their boats across it.

Rhodes testified that he was returning to the river channel, driving at a speed of 20-25 miles per hour, when the boat struck a metal hoist, the top of which was about two inches under the water.

Rhodes said that he had observed the metal tower (8-10 feet high and 12 feet wide) in the field before the overflow some two or three months prior to the accident, but conceded that he miscalculated its location on the day in question. According to Rhodes, the hoist had been entirely under water for about three or four weeks before the accident.

Oliver explained that HDO, Inc. (owner of thousands of acres of area farmland) had contracted with Charles W. Greeson & Sons, Inc. (“Greeson”) to build up and strengthen its levee depicted on our sketch. Greeson had placed the metal hoist or tower on the field involved in this suit to use in connection with overhauling its equipment.

Oliver stated that heavy winter rains caused a sudden rise in the Ouachita River, forcing Greeson to stop its work on the levee. The contractor was able to get some of its equipment out, but had to leave a couple of dragline buckets and the metal hoist. Oliver admitted that no markers were left on the hoist to warn boaters of its location. He also testified that he had observed individuals boating across his employer’s field when it was covered by overflow water.

As revealed by this summary of the evidence, in ruling on the motions for summary judgment the trial judge was not confronted by any genuine issue as to a material fact. Therefore, the question on appeal is whether, based on these facts, the defendants were entitled to summary judgment as a matter of law.

Liability of Landowner, HDO, Inc.

Plaintiff argues that the landowner owed a duty to boaters traversing its overflowed field to either buoy or otherwise mark the location of the submerged metal hoist. HDO, Inc. denies that, under the facts of this case, any such duty existed.

Our Supreme Court indicated in Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976) that the traditional categories of invitee, licensee and trespasser are of little assistance in determining the liability of a landowner to a party injured on his property. It was suggested that the proper test to be applied in premises liability cases, under La.C.C.Arts. 2315 and 2316, is whether the defendant landowner acted as a reasonable man in view of the probability of injuries to others. It was further noted that the claimant’s status as a trespasser, licensee or invitee might, in light of the facts giving rise to such status, have some bearing on the question of liability, but that status is not determinative. This standard was later applied in Shelton v. Aetna Casualty & Surety Co., 334 So.2d 406 (La.1976).

Turning to the facts of this case and delineating the scope of the landowner’s duty to this plaintiff, we find it significant that: the bank of the river, though overflowed, was clearly marked by a line of trees; the boat operator deliberately left the protected channel of the river to traverse the property of HDO, Inc., without the permission of the landowner; occupants of the boat should have been aware of the danger of hitting submerged objects in a field of this nature; sole purpose for going across the flooded field was to take a shortcut home; the boat operator was proceeding at a relatively fast speed; and the level to which the flood water would rise (the objects it would cover) was unpredictable.

Considering these critical factors, we conclude that HDO, Inc. could not have reasonably been expected to anticipate the occurrence of a boating accident of this nature and the consequent necessity of placing a marker on the hoist to warn these boaters of its presence. Therefore, the trial judge correctly decided that HDO, Inc. was entitled to summary judgment as a matter of law.

Having disposed of the issue of the landowner’s liability on this basis, it is unnecessary for us to consider the applicability of La.R.S. 9:2791.

Liability of the Contractor, Greeson

As to the contractor, again employing the duty/risk analysis, the question is: did the contractor, as owner of the hoist left on the landowner’s property, have a duty to boaters to mark the location of the metal tower?

Also relevant to this “scope of duty” analysis are those factors considered in connection with our delineation of the landowner’s duty to these boaters. Further, there was no evidence that Greeson was aware of the likelihood of boaters traversing this field. There was, in addition, no showing that the contractor should have anticipated the flood waters would rise high enough to entirely submerge the metal hoist.

Consequently, as we ruled with reference to the landowner, Greeson could not have reasonably been expected to anticipate the occurrence of this boating accident and the necessity of marking the location of the hoist to warn these boaters of its presence. The trial judge correctly held that the contractor was entitled to summary judgment as a matter of law.

Again, it is unnecessary for us to consider the effect of La.R.S. 9:2791 upon Greeson’s liability.

Decree

For the reasons set forth above, we affirm the judgment of the district court sustaining the motions for summary judgment, at appellant’s cost.

      . § 2791.
      A. An owner, lessee, or occupant of premises owes no duty of care to keep such premises safe for entry or use by others for hunting, fishing, camping, hiking, sightseeing or boating or to give warning of any hazardous conditions, use of, structure or activities on such premises to persons entering for such purposes. If such an owner, lessee or occupant give permission to another to enter the premises for such recreational purposes he does not thereby extend any assurance that the premises are safe for such purposes or constitute the person to whom permission is granted one to whom a duty of care is owed, or assume responsibility for or incur liability for any injury to persons or property caused by any act of person to whom permission is granted.
      B. This Section does not exclude any liability which would otherwise exist for deliberate and willful or malicious injury to persons or property, nor does it create any liability where such liability does not now exist. Furthermore the provisions of. this Section shall not apply when the premises are used principally for a commercial, recreational enterprise for profit; existing law governing such use is not changed by this Section.
      C. The word “premises” as used in this Section includes lands, roads, waters, water courses, private ways and buildings, structures, machinery or equipment thereon.

      . Plaintiff also contended the trial judge erred in finding that admiralty jurisdiction did not apply, but conceded in his brief that this issue is not before the court on appeal since it was raised only in opposition to Greeson’s exception of prescription, which was not ruled upon by the trial court.

      . La.C.C.P. Art. 966 provides in pertinent part:
      The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed....
      ... The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.