text:
    Doris M. CUSHMAN, et vir., Plaintiff-Appellee, v. FIREMAN'S FUND INSURANCE COMPANY, et al., Defendant-Appellant.
    No. 14549.
    Court of Appeal of Louisiana, Second Circuit.
    June 8, 1981.

      McKeithen & Burns by Don C. Burns, Columbia, for plaintiff-appellee.
    Davenport, Files, Kelly & Marsh by William G. Kelly, Jr., Monroe, for defendant-appellant United Services Auto. Assoc.
    Theus, Grisham, Davis & Leigh by J. Bachman Lee, Monroe, for Fireman’s Fund Ins. Co., McNair and Williams.
    Before MARVIN, JASPER E. JONES and FRED W. JONES, JJ.
   JASPER E. JONES, Judge.

Defendant, United Services Automobile Association, appeals a judgment against it as the underinsured motorist insurer of plaintiffs Doris M. Cushman and Joe Cush-man, for damages sustained by plaintiff due to serious personal injuries suffered by Doris M. Cushman in an automobile-truck collision which occurred on August 12, 1978 in the town of Columbia, Louisiana. The trial court found the accident was caused solely by the negligence of John L. Williams, who was driving a truck owned by D. W. McNair, in the course and scope of his employment for McNair. The truck was insured by Fireman’s Fund Insurance Company which provided Williams and McNair with $100,000 liability coverage for the damages sustained as result of Doris Cush-man’s injuries as the driver of the automobile which collided with the truck. The appellant, as the underinsured motorist carrier on the Cushman vehicle, provided liability coverage for the damages sustained by plaintiffs in the amount of $300,000.

The judgment appealed awarded Doris Cushman general damages for her personal injuries in the amount of $125,000 against the two insurers, Williams, and McNair. The judgment awarded Doris Cushman for loss of income the sum of $100,000 against the two insurers. The judgment awarded to Doris and Joe Cushman the sum of $50,-000 for future services of a house maid; the sum of $10,843 for past medical expenses; the sum of $10,000 for future medical expenses. These awards were against the two insurers. The insurers were cast for all costs including expert witness fees for the doctors who testified for plaintiff. The judgment limited Fireman’s Fund’s liability to $100,000 which was the amount of the coverage. Because Williams and McNair had little means with which to respond in judgment, the appellant was awarded a judgment for only $500 against each of them on its third party demand.

Only U.S.A.A., the underinsured motorist carrier, appealed. Plaintiffs answered the appeal.

Quantum is the only issue on appeal. U.S.A.A. does not assign as error the pain and suffering award in favor of Doris Cush-man in the amount of $125,000.

U.S.A.A. asserts the following errors in the judgment against it: (1) the trial court’s action assessing as cost an expert witness fee in the amount of $150 for Dr. William J. Erwin, a psychiatrist, who did not testify at trial, and whose testimony was not taken by deposition, (2) the award to plaintiffs for past medical services in the amount of $10,-663 which were supplied by the Veterans Administration and subrogated to it by the provisions of 42 U.S.C.A. § 2651, et seq, (3) the award of $10,000 for future medical expenses, (4) the award of $100,000 for loss of income, and (5) the award of $50,000 for future maid service.

EXPERT WITNESS FEE

The four-page detailed medical report of Dr. Erwin containing his psychiatric evaluation of Doris Cushman following his examination of her on September 12, 1979, was placed in evidence by stipulation of the litigants in lieu of his testimony.

Appellant contends that because Dr. Erwin neither testified at trial, nor was his testimony taken by deposition, that the trial court should not have fixed an expert witness fee for Dr. Erwin in the amount of $150 and assessed it as cost.

LSA-R.S. 13:3666 which authorizes the court to fix expert witness fees and assess them as cost was amended by Act No. 618 of the 1980 Legislature to authorize the court to include as cost the reasonable and necessary cost for medical reports. The amendment reads as follows:

“LSA-R.S. 13:3666: ....
(C) In either manner provided in Subsection B, the court shall also determine and tax as costs, to be paid by the party cast in judgment, the reasonable and necessary cost of medical reports and copies of hospital records.”

Considering the specific authority for including the cost of medical reports within the cost assessed against the party cast, and the broad discretion which the trial judge is given in making the determination of the amount of said cost, we find no error in the expert witness award fixed by the court for Dr. Erwin’s report. See Hebert v. Diamond M Co., 385 So.2d 410 (La.App. 1st Cir. 1980), and Williams v. Harvey, 328 So.2d 901 (La. App. 4th Cir. 1976).

AWARD FOR PAST MEDICAL EXPENSES

The trial court award of incurred medical expenses included $10,663 for medical services supplied to Doris Cushman, who was a retired Air Force nurse, by the Veterans Administration. The claim for the value of these services is subrogated by statute to the United States. 42 U.S.C.A. § 2651 provides in pertinent part:

“(a) In any case in which the United States is authorized or required by law to furnish hospital, medical, surgical, or dental care and treatment (including prostheses and medical appliances) to a person who is injured or suffers a disease, after the effective date of this Act, under circumstances creating a tort liability upon some third person (other than or in addition to the United States and except employers of seamen treated under the provisions of section 249 of this title) to pay damages therefor, the United States shall have a right to recover from said third person the reasonable value of the care and treatment so furnished or to be furnished and shall, as to this right be subrogated to any right or claim that the injured or diseased person, his guardian, personal representative, estate, dependents, or survivors has against such third person to the extent of the reasonable value of the care and treatment so furnished or to be furnished. . . . ”

Plaintiffs recognized in their petition that the claim for the V.A.’s supplied medical services was subrogated to the United States in Paragraph XV of their petition wherein they alleged:

“The plaintiff for the sole use and benefit of the United States of America, under the provisions of Title 42, United States Code, Sections 2651-2653, and with the express consent of the United States of America, assert a claim for the reasonable value of said past and future care and treatment.”

Defendants in their answers denied the factual allegations of Paragraph XV of plaintiffs’ petition and plaintiffs offered no evidence at trial to establish they were authorized to assert the claim of the United States of America for the value of the medical services which was supplied Doris Cushman by the Veterans Administration, though exhibits tending to establish the value of these services were placed into evidence by stipulation of the parties.

Plaintiffs here contend that under the provisions of LSA-R.S. 46:12 they were not required to establish the allegations quoted from Paragraph XV of their petition in order to recover the award for the medical services rendered by the V.A. This statute provides:

“Whenever the pleadings filed on behalf of any charity hospital of this state or any veterans administration hospital in the state are accompanied by an affidavit of the director or any officer of the hospital or of the attorney designated to represent the hospital, that the facts as alleged are true to the best of the affiant’s knowledge or belief, all of the facts alleged in the pleadings shall be accepted as prima facie true and as constituting a prima facie case, and the burden of proof to establish anything to the contrary shall rest wholly on the opposing party.”

Plaintiffs’ contention is clearly without merit because the affidavit required by LSA-R.S. 46:12 is not attached to this petition or otherwise contained in the record. The judgment in favor of plaintiffs for medical services rendered by the V.A. must be set aside because plaintiffs here could not recover for value of the services rendered by the V.A. Smith v. Foucha, 172 So.2d 318 (La.App. 4th Cir. 1965); Avery v. Scott, 216 So.2d 111 (La.App.2d Cir. 1968); Maddux v. Cox, 382 F.2d 119 (8th Cir. 1967).

AWARD FOR FUTURE MEDICAL EXPENSE

Included among Doris Cushman’s severe injuries were the following: (1) severe brain concussion, (2) closed head injury with facial fractures, (3) fracture of left hip requiring fixation by use of a metal plate and screws which injury caused the left leg to be shorter than the right, and (4) serious fracture of right wrist requiring open reduction, together with serious soft tissue injuries in the wrist area.

Dr. Kingsley, an orthopedic surgeon who examined plaintiff for appellant, testified with reference to the metal used in the repair of Doris’s hip fracture that:

“. . as the muscles rub over the big heavy plate and screws there’s always some deep-seated aching.”

He stated that plaintiff may need these pieces of metal removed from her hip at a future time because of the pain.

Dr. Rambach, an orthopedic surgeon who testified for plaintiff, stated the metal plate and screws are normally never removed when placed in hip fractures because they are more commonly used in hip fractures of people much older than Doris, who was 56 years old when she had the accident, and had a life expectancy of about 20 years. Dr. Rambach testified that as plaintiff became older the screws holding the plate could become loose, and for this reason the plate and screws would have to be removed. He considered it more probable that this hardware could have to be removed from Doris’s hip at some time in the future because she was not older when the metal had to be placed in her hip.

Dr. Rambaeh also testified plaintiff’s deformed and painful right hand and wrist, which has severe limitation of motion, weakness of grip, and in which arthritis will set up, may require future surgery.

Doris complains that she has poor memory and difficulty in arranging her thoughts and is slow in thinking. She suffers from headaches and dizzy spells. Dr. Rambaeh testified these problems which Doris has are the result of her serious head injuries.

Appellant generally complains of a lack of evidence to support the future medical award, and more particularly complains that it is error to award almost as much for the future medical expense as was awarded for the medical services received up to trial date.

The record does not establish that future orthopedic surgery will be performed on plaintiff’s left hip or right wrist, but the testimony concerning the residual disability and pain contained at these fracture sites is sufficient to establish that it is more probable than not that during the plaintiff’s life expectancy of about 20 years she will have some substantial medical expense related to these injuries and may very well have orthopedic surgery in both areas of residual disability. The residual symptoms that Doris has due to her head injury may also require medical treatment during her future years.

Plaintiffs have a right to recover for the cost of future medical treatments and these damages should not be denied because it is impossible to establish the nature and extent of the treatment that will be required and the exact cost of it.

In Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971), our supreme court recognized a plaintiff’s right to recover medical expenses though the extent and cost of them could not be established with certainty. The court there said:

“In our opinion, this evidence proves that, more probably than not, the plaintiff Jordan will have to be placed in a nursing home from time to time due to his tort-caused mental condition. On the other hand, the evidence does not preponderantly show that this is necessary other than intermittently. Since there is a legal right to recovery, although the damages cannot be exactly calculated, an award of seven thousand five hundred dollars for this loss is appropriate under the circumstances, including the plaintiff’s twelve-year further life expectancy.” Id. at 157.

Appellant contends the award of $10,000 for future medical is excessive for the reason that the amount is not much less than the value of the medical services which Doris had received for treatment of her serious injuries as of trial date. Considering continuous substantial increases in the cost of medical services which has played such a substantial part in our present double-digit inflation, we find no abuse in the trial judge’s much discretion in determining the award for the cost of medical services which plaintiffs will require at some time in the future.

Appellant also argues that because plaintiff received her past medical services from the V.A. that she will also receive her future medical services from the V.A. without being required to pay for them. This argument is totally without merit for the reason that plaintiff may prefer or be required by virtue of her personal circumstance to obtain her future medical services from a source other than the V.A. The appellant as the insurer of the tortfeasor who brought about the need for the medical treatment has no right to dictate the manner in which plaintiff obtains medical treatment which she may require in the future.

Plaintiffs in their answer to this appeal seek an increase in the award for future medical. As we have pointed out, the exact nature of the future medical services that may be required nor has their cost been established, we conclude that the trial court did not abuse its much discretion in fixing the future medical award at $10,000.

WAS THE $50,000 AWARD FOR FUTURE MAID SERVICE SUPPORTED BY THE EVIDENCE?

Appellant contends that the award for future maid service is error because there is no evidence that plaintiff needs a maid, nor that she has one, nor does the evidence support the amount of the award.

Doris testified she is unable to sweep, mop, scrub clean unusually dirty dishes, make up beds, handle hot liquids, or any heavy object with her right hand. She is only able to dust and perform the very -lightest of household chores. The medical evidence supports Doris’s testimony because it establishes that because of the severe bone and soft tissue injuries to her right wrist she has severe limitation of motion in her right wrist and hand, clumsy fingers, weakness of grip, is developing arthritis and has residual pain in the right wrist, along with substantial atrophy of the right forearm.

Joe Cushman testified that because of his wife’s inability to do the heavy housework he employs a maid for three days each week to do this work, for which services he pays her $30 per day, or $90 per week.

Dr. Bettinger, who is the Director of the center of Business and Economic Research at Northeast Louisiana University, and who is an expert in the field of statistics and economics, testified the cost of providing a maid for Doris three days a week for her life expectancy of 21.6 years would be $90,-694. The reasoning of the expert is as follows:

“Okay. Again, using past changes in the minimum wage rate and which will continue into the 1980’s, I’ve used a seven and a half percent increase in the minimum wage rate as I did in the earlier example. Also, a six percent discount rate, and projected it for the rest of her real life, assuming that she would need maid services for that period. That economic loss, just due to the extra cost necessary to maintain those services amounted to $90,694.00.”

We find the award for future maid service is supported by substantial evidence in the record and find no abuse of the trial judge’s much discretion in his determination of the amount of the award.

Plaintiffs in their answer to the appeal seek an increase in the award for future maid service to the amount of $90,694, which the expert testified would be required to maintain those services. The expert’s calculations are necessarily based upon assumptions based upon averages determined from statistics and while the results of his studies may be the most reliable information available as to the cost of Doris’s future maid service need, these conclusions are far from certainties. The conclusions could be erroneous because economic conditions may change or because plaintiff may not live the time estimated by the expert in reaching his conclusion. The plaintiff’s health could substantially improve as some of the physicians who testified considered possible, thereby eliminating Doris’s need for as much maid service as was covered by the expert’s calculations. The trial judge did not abuse his discretion when he set the value of the future maid service at $50,000.

WAS THE $100,000 AWARD FOR LOSS OF INCOME EXCESSIVE?

Appellant contends the loss of income award should be reduced to a maximum of $50,000 because the evidence does not establish that Doris would continue to work until she was 65, and for the further reason that the evidence does not establish she is unable to work as a nurse in a supervisory capacity.

The evidence establishes that Doris, a former Air Force Nurse who had received a medical discharge at the rank of Captain, moved with her husband, Joe, to the small town of Kelly in Caldwell Parish in 1974. Since 1974 Doris had been regularly employed as a nurse in small hospitals and nursing homes in Caldwell, LaSalle, Franklin, Winn, and Richland Parish until May, 1978 when she was required to resign her job as Director of Nursing at Rayville Guest Home to assist her husband who had broken his leg.

The serious residual disability which Doris has in her right wrist which prevents its use for doing household chores, also causes her to be unable to lift patients, handle medicine bottles, use her fingers in the skillful manner required of nurses and write the necessary records nurses are required to maintain. Doris’s testimony and the medical evidence further establishes that she has pain in her left leg and is not able to stand on it for long periods of time which adds to her inability to function as a nurse. Doris testified that she has difficulty functioning mentally:

“I can’t organize my thoughts and it takes me too long to say what I am going to say and then I forget what I started to say.”

The medical evidence establishes that these problems were caused by the serious brain concussion and other head injuries suffered by Doris in the accident.

The last job Doris had before her accident as Director of Nursing at the Rayville Guest House was one that placed upon her full responsibility for the welfare of 93 patients. She was the only Registered Nurse employed at the facility. There is evidence that nursing homes have frequent emergency situations. She would necessarily be required to perform on her feet and with her hands and mind all the duties of an alert R.N. to properly function in this position. Her former employer testified that though Doris possessed outstanding qualifications for the job before her accident, she would not now employ Doris for the position because of her residual disability.

Appellant’s contention that Doris is now able to work as a R.N. is not supported by the evidence, nor is there any real reason to believe she could function as a supervisor of nursing in a large institution in light of her inability to write and to organize her thoughts.

Appellant’s contention that Doris would not have continued to work until age 65 is not supported by any valid inferences from the record which clearly establishes she had been regularly employed for 4 years before the accident, with the exception of the period just before the accident when she was required to stop work to assist her husband who had broken his leg. She testified that except for her injuries she would have returned to work.

While we find the record establishes Doris would have returned to work, we recognize the loss of the ability to work in itself creates a loss compensable in damages, whether or not she ever intended to return to work. Folse v. Fakouri, 371 So.2d 1120 (La.1979). The trial judge did not abuse his much discretion in fixing the loss of income award.

For the reasons assigned we reduce the award for past medical expense by the amount of $10,663 which was the value of the past medical service supplied by the V.A. and recast the 6th paragraph of the judgment to read as follows to reflect this reduction:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of the plaintiffs, Doris M. Cushman and Joe Cush-man, and against the defendants, Fireman’s Fund Insurance Company and United Services Automobile Association, for medical expenses for the full and true sum of One Hundred Eighty and no/100 Dollars ($180.00).

As AMENDED the judgment is AFFIRMED at appellant’s cost.


source: Caselaw Access Project

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

license: Public Domain

text:
    The SEGALL COMPANY, INC., Plaintiff-Appellant, v. W. D. GLASSELL COMPANY, INC., Defendant-Appellant.
    No. 14552.
    Court of Appeal of Louisiana, Second Circuit.
    June 8, 1981.

      Freyer & Fox by Sam A. Freyer, Shreveport, for plaintiff-appellant.
    Whitmeyer & Glassell by Stephen A. Glassell, Shreveport, for defendant-appellant.
    Before PRICE, MARVIN and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

Plaintiff subcontractor sued the general contractor for the balance allegedly due for the installation of a heating and cooling system. Defendant denied any indebtedness and reconvened for the cost of corrective work allegedly necessitated by plaintiff’s faulty design of the heating and cooling system. The trial judge found for plaintiff on its main demand and for defendant on the reconventional demand. Both parties appealed.

The record shows that W. D. Glassell Company, Inc., (“Glassell”) is a general building contractor engaged primarily in the business of designing and constructing pre-engineered metal buildings. In this case Glassell entered into a preliminary agreement with James W. Morton to construct an office building in Shreveport to be occupied by a company of which Morton was the chief executive officer. As was its business practice, Glassell then solicited bids for subcontract work from various subcontractors. Among the latter was The Segal Company, Inc. (“Segal”), which had been in the business of installing heating and cooling systems since 1949.

After Segall presented a competitive bid for the installation of plumbing as well as the heating and cooling system, Glassell directed that it eliminate the plumbing portion of the bid. Glassell furnished Segall with a floor plan of the proposed building, informed it of the tonnage size of the units (one 10 ton and one 4 ton) which Glassell intended to use, and requested that Segall sketch or draw on the plans a design showing proposed duct work and vents for the heating and cooling system. Segall complied with this request. Following further negotiations the parties agreed upon a subcontract price and, in due course, Segall completed the installation of the system as shown on the plans submitted in connection with the negotiated bid.

The personnel of Morton’s company occupied the building in September 1978. Soon thereafter Glassell began receiving persistent complaints that the heating and cooling system was not functioning properly. When Segall demanded the balance due on his contract. Glassell refused payment, explaining that Morton was retaining $7400 on the general contract because of Segall’s defective work.

The parties appeared to reach an impasse after repeated efforts to remedy Morton’s complaints proved futile. Finally, Glassell hired an engineering firm to make an independent evaluation of the heating and cooling system, note defects and make suggestions for corrective work. Dennis Fisher, a mechanical engineer, inspected and tested the system, finding in essence that the proper amount of air was not blowing into each room to keep it comfortably heated in cool weather and cooled in warm weather. The most acute problem was found in the two end offices, one of which was used by Morton and the other by another executive officer. Fisher recommended that two corrective measures be taken and Segall promptly complied. First, a return air grille determined to be undersized was replaced with a larger grille. Second, a belt-driven blower package was installed in the 4 ton unit to increase the air flow from that unit. After these steps were taken and the system was balanced, Fisher found that it was performing satisfactorily in all rooms of the building except the two end offices which had temperature variations of from three to four degrees from the remainder of the building. As Fisher pointed out, a particular complication here in the summer was that these offices had exterior walls which caught the full impact of the morning sun.

Fisher finally concluded that the only way to solve this problem to Morton’s satisfaction was to install a separate unit to heat and cool the two end offices, with placement of the thermostat where it could be controlled by Morton. Pursuant to this recommendation Glassell purchased and had installed a 3 ton unit to service the two end offices and an adjoining computer room, with the thermostat and four outlets placed in Morton’s office, at a cost of $3852 to the general contractor.

At the trial of this matter the judge found that Segall had proven entitlement to the balance due on its contract, but that Glassell was entitled to an offset for amounts expended by it to remedy problems caused by Segall’s defective design of the heating and cooling system.

Since the most substantial issue posed by this appeal involves the merits of Glassell’s reconventional demand, we consider that question first.

La.Civil Code Article 2769, which governs disputes of this nature, provides:

“If an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his non-compliance with his contract.”

As pointed out in Barraque v. Neff, 202 La. 360, 11 So.2d 697 (1942):

“The architect who prepared the plans and specifications of a building, and af-terwards became the contractor and agreed with the owner to put up the building according to plans and specifications, is responsible for any defect or insufficiency in specifications. He cannot escape responsibility for defectiveness of the work by taking the ground that the defect was in the specifications and not in the work. He is responsible for both.”

Addressing the question of the duty owed by architects, the court in Maloney v. Oak Builders, Inc., 224 So.2d 161 (La.App. 4th Cir. 1969) explained:

“Architects and engineers are held liable for damages incurred by the owner by whom they are employed when their plans and specifications are faulty and defective as a result of their neglect to exercise care and skill. However, in the absence of an express contractual provision to the contrary, an architect’s obligation does not imply or guarantee a perfect plan or a satisfactory result, and there is no assurance that miscalculations will not occur. Liability is considered to rest only on unskillfulness or negligence and not upon mere errors of judgment. Moreover, the ordinary care and reasonable skill by virtue of which engineers’ or architects’ preparations of plans and specifications is to be evaluated in determining whether they are guilty of negligence, must be that same care and skill required by others engaged in the same profession in the same locality. . . . ”

The burden of proving that an architect or engineer did not perform his work in accordance with the skill usually exercised by others of his profession in the same general area is upon the party making the charge. Pittman Construction Co. v. City of New Orleans, 178 So.2d 312 (La.App. 4th Cir. 1965).

In this case there is no serious complaint that Segall installed defective materials or that its work was not performed in accordance with the layout as designed. With reference to the complaint that the Segall plans for the system were defective, we note the following colloquy between Se-gall’s counsel and Fisher, the expert upon whom Glassell relied to prove its charge of negligence:

“Q. Now, you saw the duct layout there?
A. Uh-huh. If what you’re saying: Do I find it inadequate, no, I didn’t. I felt like it followed the normal design parameters. I believe I told everybody at the time I thought the duct work and design was within industry standards.
Q. Within industry standards? Did you observe any defect of material—
A. No.
Q. —used out there? Did you observe any factors that would lead you to believe there was faulty workmanship done in the installation of it?
A. No.”

Actually, the real basis of the reconven-tional demand is not that Segall (represented by its president, a mechanical engineer) designed a defective system, but that it should have anticipated the possible necessity for a separate unit to heat and cool the two end offices and should have offered that as an alternative bid for acceptance at the owner’s option.

In resolving this issue we find it significant that Segall was not charged by Glas-sell with the full responsibility of designing a system which would heat and cool the planned structure, including recommending the size units Segall believed would adequately provide the necessary heating and cooling. On the contrary, the subcontractor was instructed to design a system based upon the size and placement of units previously chosen by Glassell. Fisher conceded that this was an important role distinction when he was asked:

“. . . Is, in your opinion, there a difference between the function of a mechanical engineer employed to design a unit for heating and cooling a building and the function of a mechanical engineer employed to submitting a competitive bid for implementing the installation and purchase of units, the size of which and location of which had already been specified; is that the same job, or is that two different jobs?

and answered: “That’s two different jobs.”

At no time did Fisher testify that Segall, by not suggesting or recommending an independent unit in connection with its subcontractor’s bid, failed to exercise the care and skill required of other mechanical engineers in the Shreveport area.

The floor plan of the proposed construction, furnished to Segall by Glassell, did not contain detailed information bearing directly upon the adequacy of the heating and cooling units specified by Glassell—such as roof and wall insulation, size of windows, and whether windows would have draperies. Under these circumstances it would have been unrealistic to expect Segall to recognize the inadequacy of the units Glas-sell, whose president was a civil engineer and experienced general contractor, had decided upon. Consequently, this case is factually distinguishable from Co-operative C. Stor. Bldrs., Inc. v. Arcadia Foods, Inc., 291 So.2d 403 (La.App. 4th Cir. 1974) which held that a contractor was chargeable with knowledge that plans were faulty and under a duty to warn the owner of the defect.

Turning to the practical problems involved in satisfying the occupants of office buildings such as this with reference to heating and cooling, Fisher was asked if it was “possible for a long stretch of offices with varied usages and with changing usages during the course of the day and the weeks, and with varying exposures, to have the identical temperature in every office throughout the day from one thermostat, wherever located?” His answer was: “Impossible.”

Glassell’s president was asked if the first remedial work performed in accordance with Fisher’s recommendations was effective. His answer is enlightening:

“The larger fan kept the back offices rather comfortable, but I think by then what had happened was that the owner would not have been satisfied with anything.” (emphasis added)

As it later developed, Morton was satisfied after installation of the separate unit.

In summary, with reference to the reconventional demand, we find that Glas-sell proved that the heating and cooling system was not performing satisfactorily; that an undersized return air grille had been installed; that the air flow from the four-ton unit was 30 to 40% below what it should have been; and that the entire system needed to be properly balanced. Glas-sell was justified in securing the services of a consulting engineering firm to independently evaluate the system. Therefore, the trial judge correctly assessed Segall with the $386.70 paid by Glassell to that firm for its services.

On the other hand, Glassell did not discharge its burden of proving that purchase and installation of the additional three-ton unit was due to defective plans prepared by Segall. Further, Glassell did not prove that Segall’s failure to offer as an option or to recommend the installation of a separate unit to heat and cool the two executive offices constituted a dereliction of its duty under the circumstances of this case. Consequently, we find that the trial judge erred in assessing Segall with the cost of this unit, the expense of installing the unit and the lost time experienced by Glassell incidental to its efforts to satisfy the building owner in this respect.

On the main demand Glassell contends that Segall presented no evidence to prove that it was owed anything on the subcontract. The record contains testimony by plaintiff’s president reciting the percentage of the original subcontract price which had not been paid. The trial judge apparently accepted this as proof of the balance due and we find no error in this finding.

In its appeal Segall complains that the trial judge failed to make an award for the items listed in the amended and supplemental petition. As Glassell correctly points out, the record indicates that most of those claims involved work performed in connection with maintenance or warranty and are non-reimbursable. However, Glassell concedes that Segall is entitled to recover for the installation of locking covers on thermostats ($83.14) and a service trip ($20.89) on January 3, 1979.

For the reasons set forth, the judgment of the trial court is amended and recast to read as follows:

“IT IS HEREBY ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of plaintiff, The Segall Company, Inc., and against the defendant, W. D. Glassell Company, Inc., for the sum of $4289.10, with legal interest on $3902.40 from date of judicial demand until paid.
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of plaintiff-in-reconvention, W. D. Glassell Company, Inc., and against defendant-in-reconvention, The Segall Company, Inc., for the sum of $386.70.”

All court costs, both in the district court and on appeal, are assessed one-half to Se-gall and one-half to Glassell.

As amended the judgment of the district court is affirmed.


author: MARVIN, Judge.

text:
    Erma J. BOYKIN, Plaintiff-Appellee, v. Howard WASHINGTON, Horn and Ross Plumbing and Royal Globe Insurance Company, Defendants-Appellants.
    No. 14555.
    Court of Appeal of Louisiana, Second Circuit.
    June 8, 1981.
    Lunn, Irion, Switzer, Johnson & Salley by Jack E. Carlisle, Jr., Shreveport, for defendants-appellants.
    M. Carl Rice and Nelson, Hammons & Johnson by John L. Hammons, Shreveport, for plaintiff-appellee.
    Before PRICE, MARVIN, and FRED W. JONES, Jr., JJ.
   MARVIN, Judge.

Defendants appeal a personal injury judgment arising out of a rear end collision at a Shreveport intersection essentially contending that the trial court abused its much discretion in awarding $44,000 for injuries sustained by the plaintiff forward driver in a “. . . very minor vehicular collision where no property damage was sustained and the defendant vehicle was traveling ... 3 ... to 6 miles per hour when the impact occurred.” We affirm.

This court has avoided the precedent of attempting to measure the degree of injury in direct proportion to the force of a collision. Where medical experts and lay witnesses establish that a plaintiff sustained some injuries, the minimal force of the collision causing the injuries is of no material importance. Seegers v. State Farm Mutual Automobile Ins. Co., 188 So.2d 166 (La.App.2d Cir. 1966).

Here the award (rounded) was for $9,000 in medical expenses incurred, $17,570 loss of wages and impairment of earning capacity, and $17,500 general damages.

Plaintiff’s treating orthopedist, Dr. Bick-nell, diagnosed plaintiff’s condition initially as a strain of her lumbar and cervical spine and later as tendinitis. After several months he referred her to a medical doctor practicing as a “pain specialist,” Dr. Osborne, who eventually diagnosed her condition as a “thoracic outlet symdrome.” Dr. Osborne referred plaintiff to a thoracic surgeon, Dr. Bruner, whose pre-operative and post-operative diagnosis confirmed Dr. Osborne’s diagnosis.

The 33-year-old female plaintiff saw Dr. Bicknell a week after the accident occurred on July 18, 1978, and again on 10 occasions over the next 10 months, at which time he referred her to Dr. Osborne. Dr. Osborne hospitalized her on June 3, 1979, and she eventually underwent surgery on June 22 and was discharged on June 28, 1979. Defendants argue that because Dr. Bicknell did not find muscle spasm or loss of strength in the arm and because plaintiff’s tendinitis could have been caused by constant motion of plaintiff using the arm after she returned to work and could have been confused with symptoms of thoracic outlet syndrome, the operation was not necessary, the syndrome, if present at all, was not causally related to the collision, and the trial court was in error in choosing to believe plaintiff’s physicians “. . . who . . . had an interest in getting paid for all their whiplash treatments.” Defendants did not produce opinion evidence contrary to plaintiff’s experts.

The trial court found that plaintiff had no difficulty before the accident, that her loss of wages from the accident to the date of trial was $6,396 and that her impairment of earning capacity thereafter during a two-year rehabilitation program was $11,-199. The award for general damages (pain and suffering) was $17,500.

Defendants likewise contest the necessity of the medical treatment but not the reasonableness of the cost ($9,030) and assert that the award of damages should be reduced to correspond with cases awarding from $750 to $1,000.

Defendants, of course, do not agree with the weight and assessment of the medical and lay testimony made by the trial court. Where an accident victim was in good health before the accident and, after the accident, shows that a disabling injury manifested itself and that there is a reasonable possibility of causal connection between the injury and the accident, it is presumed, subject to rebutting evidence, that the accident caused the disabling injury. See Heath v. Northgate Mall, Inc., 398 So.2d 132 (La.App.3d Cir. 1981). Notwithstanding defendants’ exhaustive argument, there is no evidence rebutting the presumption or showing the trial court was clearly wrong in weighing and assessing the medical and lay testimony.

There is substantial evidence to support these awards and we do not find the trial court has abused its much discretion. For reasons assigned by the trial court and summarized here, at appellants’ cost, judgment is

AFFIRMED.

      . Plaintiff is experienced only for manual labor and does not have a high school education. She earned $2.65 per hour as a laundry worker when the accident occurred. She would have earned at least the minimum wage as it has increased since that time had she been working. She missed three weeks of work following the July 18, 1978, accident. After resuming work and then going into the hospital about June 3, 1979, she has not worked since. Dr. Osborne stated at the trial in late 1980 that she will require two to five years rehabilitative therapy to resume working.
      Dr. Osborne estimated that plaintiff had a 10 percent disability to her body as a whole but stated that she could be retrained for employment that does not require repetitive use of her arm or lifting of heavy objects. See Alexander v. Mid-South Sweeping Service, Inc., 303 So.2d 268 (La.App.2d Cir. 1974).


author: PRICE, Judge.

text:
    Lynell RELIFORD, Plaintiff-Appellant, v. FITZGERALD CONTRACTORS, INC., and The Continental Insurance Companies, Defendants-Appellees.
    No. 14554.
    Court of Appeal of Louisiana, Second Circuit.
    June 8, 1981.
    En Banc. Rehearing Denied July 15, 1981.
    Brown, Williams & Tucker by Jack A. Williams, Shreveport, for plaintiff-appellant.
    Lunn, Irion, Switzer, Johnson & Salley by Frank M. Walker, Jr., Shreveport, for defendants-appellees.
    Before PRICE, MARVIN and FRED W. JONES, Jr., JJ.
   PRICE, Judge.

Plaintiff, Lynell Reliford, appeals a judgment of the district court rejecting his demand for additional workmen’s compensation benefits. Named defendants in this suit are Fitzgerald Contractors, Inc., plaintiff’s employer at the time of the work-accident, and its compensation insurer, The Continental Insurance Companies. The sole issue on appeal is whether the trial court’s conclusion that plaintiff was not disabled after May 6, 1979, is clearly wrong. Our review of the record reveals substantial evidence to support the trial court’s findings and we affirm.

Plaintiff was employed by defendant as a general laborer on September 5, 1978, and at the time of the accident, was driving a stake with a sledge hammer. In an attempt to avoid striking a co-worker who had been holding the stake, plaintiff abruptly diverted his swing and twisted his back. Although plaintiff completed the day, he related to his co-worker the fact that he was experiencing pain in his lower back as a result of the accident. The next morning plaintiff drove to work and reported to Bob Fitzgerald, his supervisor, that he was experiencing a great deal of pain and was going to see a doctor.

On September 6, 1978, plaintiff was initially examined by Dr. James Eddy, a general surgeon, who diagnosed plaintiff’s injury as a low back strain. Despite four additional examinations of plaintiff, the doctor was unable to verify with objective findings plaintiff’s continued complaints of pain.

Dr. Brook Garrett examined plaintiff three times in September and finding no objective signs of injury advised plaintiff to return to work on October 2. On October 5, 1978, plaintiff again complained of pain and Dr. Garrett requested that plaintiff enter the hospital in order that a myelogram could be performed to ascertain any possible injury. Plaintiff entered Schumpert Hospital on October 6, but refused to have the myelogram performed. He was discharged on October 9.

Plaintiff was next examined by Dr. Lewis Jones, an orthopedic surgeon who diagnosed plaintiff’s injury as a myoligamen-tous strain of the lumbar spine. Dr. Jones prescribed anti-inflammatory medication and outpatient physical therapy. After three visits Dr. Jones advised plaintiff to return to work on October 30. Plaintiff did not return to work and returned to Dr. Jones on November 8. Finding no objective signs of injury, Dr. Jones referred plaintiff to Dr. Donald Smith.

Dr. Smith, a neurosurgeon, examined plaintiff on November 15 and November 19 in response to plaintiff’s continued complaints of lower back pain (plaintiff also complained of chest pains on November 19). Dr. Smith found no lumbosacral muscle spasm, malalignment of the spine, or other objective signs of injury. His examination revealed no neurological problems although he was of the opinion plaintiff had sustained a lumbosacral strain. Dr. Smith felt that plaintiff would be able to return to work in one or two months if he continued his physical therapy in the form of prescribed exercises for the lower back.

Dr. Jones again examined plaintiff on November 27, December 12, and December 26, 1978. Although there was some indication of a slight flattening of the lumbar spine on November 27, Dr. Jones found insufficient objective signs of injury to substantiate plaintiff’s continued complaints of pain, and therefore referred plaintiff to Dr. Phillip Osborne.

Dr. Osborne, director of the Shreveport Pain and Rehabilitation Center, hospitalized plaintiff at Doctors Hospital in January 1979 in response to plaintiff’s complaints of chronic low back pain. Dr. Osborne found no physical injury and felt that further medical treatment would be to no avail. Dr. Osborne requested psychiatric consultation for plaintiff from Dr. James Phillips.

Dr. Phillips examined plaintiff at Dr. Osborne’s request while plaintiff was hospitalized at Doctors. Dr. Phillips’ initial consultation with plaintiff was on January 17, 1979. As a result of this examination Dr. Phillips was able to diagnose plaintiff’s complaint as a “psychophysiological muscu-loskeletal disorder of the low back.” This was described by Dr. Phillips as a “condition of physical symptoms based on emotional conflicts and emotional stress.” Dr. Phillips opined that the accident sustained by plaintiff on September 5, 1978, had initiated plaintiff’s back problem which had been perpetuated by emotional stress and anxiety. Plaintiff had related to Dr. Phillips a history of lower back pain occurring in the three previous years. Plaintiff recounted how he had never had this much trouble overcoming the problem. Dr. Phillips’ opinion was that plaintiff had become extremely anxious by January 1979 over his situation and was converting his anxiety into muscle spasm with a continuation of pain. During a month-long hospitalization in Brentwood Psychiatric Hospital, Dr. Phillips instructed plaintiff in the techniques of self-hypnosis and biofeedback to help him control his muscle tension. After a period of outpatient care, plaintiff was given a release by Dr. Phillips to return to work effective April 12, 1979.

Plaintiff did not return to work and on May 30, 1979, was again examined by Dr. Jones. Plaintiff stated to Dr. Jones at that time that his back pain was better but still troublesome. After seeing plaintiff again on May 18, Dr. Jones referred plaintiff back to Dr. Smith.

Dr. Smith’s examination of plaintiff on June 20 again revealed no physical evidence of injury. Plaintiff’s range of motion of the lower back was entirely normal and since eight months had passed since Dr. Smith’s last examination of plaintiff, he concluded that plaintiff was able to resume his normal work activities.

Plaintiff did not return to work and instead returned to Dr. Jones on June 28. Dr. Jones’ examination again revealed no objective findings and plaintiff was given a written release to resume his work activities. Plaintiff returned to Dr. Jones on August 8 complaining of problems with his upper and lower extremities, a drawing sensation in the left side of his face and tongue, and a “swimming” in his head. Dr. Jones felt that plaintiff had psychosomatic problems with possibly a conversion reaction, and therefore referred plaintiff again to Dr. Phillips. Dr. Phillips, feeling he had nothing else to offer plaintiff, refused to see him. Plaintiff returned to Dr. Jones on August 14 stating that in addition to the already mentioned problems, he had been experiencing an earache since injuring his back in September 1978. Dr. Jones advised plaintiff that he had nothing else to offer him and released plaintiff from his care at that time.

Plaintiff received weekly compensation benefits until May 6, 1979. The payments were terminated on the basis of the psychiatrist’s release of plaintiff dated April 11, 1979. In addition to the benefits paid plaintiff, the defendants have paid hospital and medical expenses amounting to $11,656.10.

Plaintiff began work as a delivery truck driver on January 7, 1980, and was still working in this capacity at the time of trial. Plaintiff has received prescriptions for pain medication from the LSU Medical Center and the Shreveport Mental Health Center.

Plaintiff filed this suit April l\l980, and after a trial on the merits, his demands were rejected upon the trial court’s finding that plaintiff was not disabled after May 6, 1979. \

The drawn-out progression of medical examinations with inconclusive physical findings is supportive of a conclusion that plaintiff’s claimed job disability after the termination of benefits is psychological in nature. The existence of such a mental condition must be proven, as any other disabling injury, by a preponderance of the evidence, and it must be shown that the disability was causally connected to the work-accident. The reviewing court must analyze such claimed disabilities with utmost caution in view of the nebulous characteristics of the condition and the possibility of the symptoms being easily feigned; the evidence is to be scrutinized carefully and every precaution taken to guard against unjustified claims. Davenport v. McCullough Services Baroid Division, 388 So.2d 453 (La.App. 2d Cir. 1980); Victoriana v. Orleans Parish School Board, 346 So.2d 271 (La.App. 4th Cir. 1977).

In the instant case, a review of the lengthy medical history of plaintiff since the work-accident shows that the treating orthopedic specialist and neurosurgeon had both determined that plaintiff was capable of resuming his work activities. The psychiatrist in releasing plaintiff by letter dated April 12, 1979, noted that plaintiff had “reached the maximum benefit of the treatment and is considered able to return to work as of April 12, 1979.” Dr. Phillips testified that plaintiff had recovered sufficiently to control any discomfort he might have.

We think the record sufficiently shows that any residual pain plaintiff might have encountered after Dr. Phillips’ release would not be substantial or disabling. Dr. Phillips released plaintiff to resume his previous work activities with full knowledge that this consisted of heavy manual labor. This evidence heavily preponderates against a finding of disability. We additionally note Dr. Phillips’ testimony that any stress-induced pain experienced by plaintiff subsequent to his release would not in his opinion be causally related to the work-accident of September 5, 1978.

Therefore in view of the evidence disclosed by the record and discussed in this opinion, we conclude that the finding of the trial court that plaintiff was not disabled after May 6, 1979, is supported by substantial evidence. Finding no manifest error in the trial court’s factual conclusion, the judgment appealed is affirmed. Costs to be assessed to plaintiff-appellant.


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

text:
    Barbara J. EDWARDS, Plaintiff-Appellant, v. PIGGLY WIGGLY OPERATORS WAREHOUSE, INC., Defendant-Appellant.
    No. 14556.
    Court of Appeal of Louisiana, Second Circuit.
    June 8, 1981.
    En Banc. Rehearing Denied July 15, 1981.
    Rice & McWilliams by M. Carl Rice, Shreveport, for plaintiff-appellant.
    Bodenheimer, Jones, Klotz & Simmons by James P. Bodenheimer, Shreveport, for defendant-appellant.
    Before PRICE, MARVIN and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

Plaintiff filed suit against defendant grocery store owner for injuries allegedly received from a “slip and fall” incident on defendant’s premises. From a judgment in favor of plaintiff, both parties appeal. We affirm.

According to the record, in the late afternoon of April 20, 1979, plaintiff entered defendant’s grocery store located on West 70th Street in Shreveport, at a time when a heavy rain was falling. It had been raining continuously during the day. Plaintiff testified that she walked through one of the front doors and proceeded across a floor mat. As she placed her right foot on the end of the mat, that foot started sliding forward and plaintiff fell to the floor, injuring her right hand and wrist. Plaintiff explained that her foot slid because the mat was wet. She stated that there was a puddle of water surrounding the mat in the area where she fell.

Michael Brown, an employee of defendant at the time of the accident, testified that he saw plaintiff step off the mat, skid forward and fall to the floor. He further stated that when it rained hard, as it was when plaintiff entered the store, water would hit the sidewalk in front of defendant’s store and flow into the front entrance. Although defendant’s employees continually mopped the front entrance area, Brown asserted that this was futile because of the constant flow of water through the front doors of the store.

William Arthur, another of defendant’s employees, also testified that during a hard rain water tended to blow into this store through the front doors. As a result the floor mats, placed just inside the front doors, would get wet and slide around. At times the mats became so saturated with water that they folded over and store employees had to straighten them out.

Defendant established, through the testimony of an employee, DeWayne Autry, and a Burns security officer, Ronald Boult, that the area where plaintiff fell had been mopped only a few minutes before plaintiff entered the store. The customary procedure, as explained by Boult, was for a “sacker” to pick up the wet mats, place them over a rail, mop the floor and then replace the mats on the floor. Autry conceded that at the time of the incident wind was blowing water up on the front doors.

It is axiomatic that a storekeeper owes an affirmative duty to those who use his premises to exercise reasonable care to keep his floors in a safe condition, Kavlich v. Kramer, 315 So.2d 282 (La.1975).

Upon proof that a foreign substance was on the floor at the time plaintiff entered, that plaintiff stepped on this foreign substance, and that it caused her to slip and fall, the burden shifts to defendant store owner to go forward with evidence to exculpate itself from the presumption that it was negligent. Kavlich v. Kramer, supra; Smith v. Winn-Dixie Stores of La., Inc., 389 So.2d 900 (La.App. 4th Cir. 1980).

In this case it was established that a foreign substance (water) was on the floor of defendant’s store when plaintiff entered and it was more probable than not that stepping on a wet area caused her to slip and fall. Consequently, under our jurisprudence the burden shifted to defendant to rebut this presumption of its negligence. We find that it failed to discharge this burden.

Defendant argues that its duty to maintain the store premises in a reasonably safe condition was fulfilled by having its employees regularly mop the front entrance area, and cites in support of its position Lott v. Winn-Dixie La., Inc., 280 So.2d 659 (La.App. 4th Cir. 1973) and Griffin v. Winn-Dixie, Inc., 287 So.2d 651 (La.App. 4th Cir. 1973).

We note that in Lott the court observed:

“There is no showing here that the floor surface was unduly slick or smooth such that any wetness whatever would cause patrons to slip. Upon such a showing even continuous mopping may conceivably be insufficient care. In the absence of such a showing we cannot say reasonable care was not. taken.” (Emphasis added) p. 661

Similarly, it was pointed out in Griffin that:

“In the case at bar the only evidence of water on the floor at the time of the accident was plaintiff’s moist clothing and the assistant store manager’s admission that customers may have tracked in a small amount of rain water in the five minutes since the floor had been mopped.” p. 653

In contrast to those cases, here the foreign substance was not simply moisture tracked in by customers but was an accumulation of water flowing in through the front doors of the store. Employees of defendant stated that this condition obtained whenever it rained hard. As William Arthur testified, during those times “we’d have to get the squeegee on the sidewalk out front and inside the door.” Michael Brown pointed out, however, that this proved ineffective because of the continual flow of water. Under these circumstances, even continuous mopping by defendant’s employees would not have constituted sufficient care on its part for the safety of its customers.

We recognize, of course, that to require a storekeeper to keep a floor completely dry during a rainstorm or to hold him responsible for every slick place due to tracked-in rain water would impose an unreasonable standard of care and would, in effect, make him an insurer of the customer’s safety — which is not required. However, each of these “slip and fall” cases must be examined in the light of its particular circumstances. Where there are unusual accumulations of rain water, as existed here, due care requires that the storekeeper, in addition to mopping, take such affirmative measures as applying antislip compounds, posting warnings and/or installing flooring material designed to provide safe footing under the conditions.

In summary, for the reasons explained, we conclude that defendant failed to rebut the presumption that it was negligent. Furthermore, the record does not show that plaintiff was contributorily negligent. Therefore, the trial judge properly found defendant liable to plaintiff for her injuries.

In her appeal plaintiff argues that the general damage award by the trial judge was inadequate.' We note that the judgment is simply for a lump sum amount of $7,965.71. Since the trial judge did not favor us with written reasons for judgment, nor does the record contain oral reasons, we do not know what portion of this judgment represents an award for general damages as opposed to special damages. In her brief plaintiff asserts that the general damage award was $4,400.

Plaintiff’s primary injury consisted of a fractured right wrist which was repaired in an operation involving open reduction and internal fixation. She wore a cast for about six weeks. The treating physician assigned a 5% disability of the right arm as a result of this injury.

Assuming, as stated by plaintiff in brief, that the general damage award was $4,400, we do not find that this award, under the circumstances, constituted an abuse of discretion on the part of the trial judge.

The judgment of the trial court is affirmed, with costs of appeal to be divided equally.

PRICE, J., dissents and assigns written reasons.

PRICE, Judge,

dissenting.

I must respectfully dissent from the majority opinion in this ease. It is apparent that the majority opinion would concede that defendant would have carried its burden of exculpating itself from the presumption of negligence in this instance by its mopping procedure carried out three or four minutes before plaintiff entered the store except for the finding of the majority that the evidence showed there Was an accumulation of water flowing in through the front doors of the store, and therefore continuous mopping was not sufficient care for the safety of defendants’ customers. The conclusion that “there was an accumulation of water flowing in through the front doors” is not supported by the evidence. The substantial weight of evidence is to the contrary, and this finding is clearly wrong in my opinion.

The majority relies principally on the testimony of a former employee, Michael Brown, a grocery sacker, whose testimony should be given little weight because of probable bias against defendant. The evidence shows that after the incident of plaintiff’s fall, Brown quit his employment with defendant after being questioned about merchandise which was missing from the store. His apparent bias against defendant is displayed in his testimony under cross-examination when questioned as to how plaintiff located him for a witness. His testimony in this regard is as follows:

Q. Was this after you had quit that you saw her at the bus stop?
A. Yes, sir.
Q. And what did you tell her at the bus stop when you saw her?
A. I asked her how her arm was doing; was she better and all that. She asked me where I was working these days. She said her Court fall was coming up soon. I said good. I hope you win.

Although the majority opinion also relied somewhat on the testimony of William Arthur, another employee of defendant’s, the record shows this witness was not at work on the day of the accident and his testimony is of little probative value.

The testimony of the plaintiff, Brown, and Arthur is contrary to that of Ronald Boult, DeWayne Autry, Betty Jean and Glenda Mathis. These persons all were present at the front entrance of the store at the time of the incident and each of these witnesses’ testimony was consistent with the others and was more believable than that of plaintiff or Brown. They saw plaintiff, who did not have an umbrella, hurrying in the store to get out of the rain. They testified plaintiff was wearing wooden clogs on her feet, and as she made a right turn just inside the door entrance, she appeared to trip over her own feet and fall backwards. Each of these witnesses was in the area of the fall immediately after it happened to assist plaintiff and all denied seeing any puddle of water as contended by plaintiff. Their testimony certainly excludes any possibility of there being any unusual accumulation or flow of water through the door as depicted in the majority opinion.

The testimony of Ronald Boult should certainly be given controlling weight in this instance. He was a security guard employed by Burns Security Service on assignment to the defendant’s store on the date in question. He was the person who directed the floor be mopped immediately before plaintiff entered. He was standing by plaintiff and was the one who assisted her to her feet after the fall. He was no longer working for Burns at the time of trial and had no relationship with defendant whatsoever.

The trial court gave no reasons either oral or written in finding for plaintiff. Therefore, this court has no basis on which to assume that the trial court made a factual finding that there was excessive water present or that water was flowing in the doorway as related by the majority.

Some water in the immediate entrance-way to a store could reasonably be expected on a rainy day such as the one in question. Given the undisputed testimony relative to the mopping which immediately preceded plaintiff’s entrance into the store, it is just as likely that the water on the floor had dripped from store patrons entering from the heavy rain. There was no evidence which would indicate that the floor surface was such that it became unusually slippery when damp or wet. A storekeeper is not the insurer of its patrons’ safety and does not guarantee that its floors are in perfect condition. See Smith v. Winn-Dixie, 389 So.2d 900 (La.App. 4th Cir. 1980).

Under the facts presented the defendant has shown it exercised reasonable care in protecting its customers from risk of injury from an accumulation of water under the inclement weather conditions existing.

I respectfully dissent.


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

text:
    James M. THOMPSON and Ruby Nell Davis Thompson, Plaintiffs-Appellants, v. Wilburn R. PARDUE and Sallie Mae Guss Pardue, Defendants-Appellees.
    No. 14557.
    Court of Appeal of Louisiana, Second Circuit.
    June 8, 1981.
    En Banc. Rehearing Denied July 15, 1981.
    Law Offices of Bobby Culpepper by Bobby L. Culpepper, Jonesboro, for plaintiffs-appellants.
    Blackwell, Chambliss, Hobbs & Henry by K. Tod Cagle, West Monroe, for defendants-appellees.
    Before PRICE, MARVIN and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

From an adverse judgment in an action characterized as a “suit for damages for bad faith breach of contract for sale of immovable property,” plaintiffs appeal. We affirm.

The petition filed by plaintiffs contained the following pertinent allegations:

“2.
“That on or about the 27th day of June, 1979, petitioners herein executed a Credit Sale Deed to defendants covering certain property, as is more fully shown by said Credit Sale Deed attached hereto and made a part hereof.
“3.
“That in connection with said Credit Sale Deed, defendants gave a note payable to plaintiffs in the amount of $26,500, which is attached hereto and made a part hereof.
“4.
“That after the above transaction, defendants requested that the property description be revised and that an additional agreement concerning the use of a water well and the use of a thirty foot strip of land be executed.
“5.
“That said agreement was prepared as was another Credit Sale Deed.
“6.
“That petitioners herein, together with the parents of Ruby Nell Davis Thompson, executed said Credit Sale Deed and said agreement, which are attached hereto and made a part hereof.
“7.
“That at that point, defendants refused to execute the agreements and refused to go ahead with the purchase of the property as originally agreed upon.
“8.
“That there was a bad faith breach of contract herein on the part of defendants.
“9.
“That plaintiffs were able to sell the subject property later, but not for the agreed upon consideration of $36,500.00.
“10.
“The property was, in fact, sold for the consideration of $31,000.00 on February 2, 1980, as is more fully shown by a deed attached hereto and made a part hereof.
“11.
“That because of a bad faith breach of contract herein, plaintiffs have sustained the following damages for which they are entitled to recover from defendants, in solido:
Loss on sale price Attorney's fees -- Loss of interest - o o o o o o ooo o o o to to to to CM </></></>
Cost of trips to and from Jonesboro, Louisiana - $ 1,000.00
Long distant telephone calls- $ 100.00
Inconvenience and humiliation - $ 3,000.00
Real Estate Commission— $ 1,860.00"
Articles of the Louisiana Civil Code applicable to the issues raised by this appeal are:
“Art. 2439. The contract of sale is an agreement by which one gives a thing for a price in current money, and the other gives the price in order to have the thing itself.
“Three circumstances concur to the perfection of the contract, to wit: the thing sold, the price and the consent.” “Art. 2456. The sale is considered to be perfect between the parties, and the property is of right acquired to the purchaser with regard to the seller, as soon as there exists an agreement for the object and for the price thereof, although the object has not yet been delivered, nor the price paid.”
“Art. 2479. The law considers the tradition or delivery of immovables, as always accompanying the public act, which transfers the property. Every obstacle which the seller afterwards interposes to prevent the taking of corporal possession by the buyer, is considered as a trespass.”
“Art. 1920. The rule that the obligation to deliver a determinate object is perfect by the mere consent of the parties, and that the obligee is the owner from the time of such contract, is without any exception as respects immovables, not only between the parties, but as to all the world, provided the contract be clothed with the formalities required by law, that it is bona fide, and purports to transfer the ownership of the property.”
“Art. 2266. All sales, contracts and judgments affecting immovable property, which shall not be so recorded, shall be utterly null and void, except between the parties thereto. The recording may be made at any time, but shall only affect third persons from the time of the recording.
“The recording shall have effect from the time when the act is deposited in the proper office, and indorsed by the proper officer.”

According to the allegations of plaintiffs’ petition, the parties to this litigation executed a credit sale of immovable property. Although this instrument was not recorded, under the cited civil code articles the act of sale was completed as between the parties. Thereafter, upon failure of the buyers to perform their obligations the sellers could have sued either to enforce those obligations or to dissolve the sale. Sliman v. McBee, 311 So.2d 248 (La.1975); La.C.C. Arts. 2549(1), 2561.

Of course, if there is an error in the act of sale, in the absence of a mutual agreement to correct the error the injured party may sue to reform the instrument.

There is no authority under our law for a vendor of immovable property, after a completed sale, to transfer the property described in the deed to a third party and then to sue the original vendee for damages.

It is apparent from an examination of the well-pleaded facts contained in plaintiffs’ petition that the law does not afford them any remedy for the particular grievance alleged, i. e., their petition does not state a cause of action. Although defendants did not interpose an exception of no cause of action, that does not preclude us from noticing this defect on our own motion. La.C.C.P. Art. 927. Acting pursuant to that authority, we supply the exception of no cause of action and rule that plaintiffs’ suit should be dismissed on that ground. Since it does not appear that an amended petition would remove this defect, we do not remand to afford an opportunity for plaintiffs to elect this option.

Having disposed of the appeal on this basis, we find it unnecessary to consider whether the trial judge erred in relying upon the questionable rationale of Arceneaux v. Adams, 366 So.2d 1025 (La.App. 1st Cir. 1978) to hold that the parties had orally “canceled” the executed credit deed.

For the reasons stated, we affirm the judgment of the district court dismissing plaintiffs’ suit, at appellants’ cost.

MARVIN, J., concurs and assigns written reasons.

MARVIN,

Judge, concurring.

Under the circumstances found after trial which are supported by substantial evidence, and even though plaintiffs and defendant executed a credit deed and note, there was no sale of the property.

When the deed was executed, it did not convey the thing (either in front feet or in quantity of acreage) which was agreed by both litigants. Defendant did not pay the $10,000 cash portion of the consideration and the deed and note were retained by plaintiffs’ attorney. When the defendant learned that day or the next that plaintiffs could not, and by the deed, did not, convey the front footage and acreage agreed on, he announced that he was not going to pay the cash consideration and “go through” with the sale.

Plaintiffs alleged and showed at the trial that they acquired other property and property rights and had prepared another credit deed for defendant which he refused to sign. In this respect, plaintiffs showed that they made an effort to “cure” the deficiency in the credit deed which was executed and they sued for damages for defendant’s alleged bad faith refusal “to go ahead with the purchase of the property as originally agreed on.”

A Louisiana plaintiff is not restricted in recovery by pleading a theory of the case. Conclusions of law which are alleged are immaterial either to support or to defeat an exception of no cause of action. Facts alone, whether merely alleged as in the case of an exception of no cause of action before trial in the trial court or alleged and then shown at a trial, determine the plaintiff’s cause of action.

Plaintiffs’ factual allegations are broad enough to cover defendant’s refusal to sign the second credit deed, but even, if not, plaintiffs have still stated a cause of action for damages for “refusal to go ahead with the purchase” under the executed credit deed. The trial court found, and I think erroneously, that plaintiffs and defendants orally agreed to cancel the executed deed.

I would hold that plaintiffs stated a cause of action for damages, but did not prove their cause of action at the trial. Defendant refused to pay the $10,000 and refused to allow plaintiffs to attempt to cure the deficiency, because the plaintiffs could not, and did not, deliver to him on the day, or the next day after, the credit deed was executed, what both litigants had agreed on.

Under these factual circumstances defendant’s refusal was not an actionable breach and plaintiffs cannot recover damages from defendant. The trial court’s result is correct but its reason (mutual agreement to cancel the executed credit deed) is wrong. Likewise, I respectfully consider the majority’s result correct, but the reason (plaintiffs have not alleged a cause of action because plaintiffs’ recovery is limited by their alleged conclusions of law) wrong.

I concur in the judgment rejecting plaintiffs’ demands because they have not shown that defendant breached any contract or acted in any way to cause them damage.