author: LOTTINGER, Judge.

text:
    Lisa Larsen PATIN v. INDUSTRIAL ENTERPRISES, INC., Great American Insurance Company and Gulf States Utilities Company.
    No. 15099.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    Writ Denied Dec. 10,1982.

      Arthur Cobb, Baton Rouge, for plaintiff-appellant Lisa Larsen Patín.
    James E. Moore, Baton Rouge, for defendant-appellee Industrial Enterprises, Inc. and Great American Ins. Co.
    William H. Cooper, Baton Rouge, for defendant-appellee William L. Bowman.
    Lynn E. Williams, and Charles M. Raymond, Baton Rouge, for City of Baton Rouge, etc.
    Before LOTTINGER, COLE and CARTER, JJ.
   LOTTINGER, Judge.

This is an action ex delicto for wrongful death. Lisa Larsen Patín, widow of Alcee Joseph Patín, filed the action in connection with the electrocution death of her husband. After a trial on the merits, judgment was rendered in favor of the defendants, and the suit was dismissed. Plaintiff has appealed.

FACTS

The decedent died on May 10, 1978, while in the process of erecting a metal building owned by Industrial Enterprises, Inc. Plaintiff was employed by Cedric A. Vallet d/b/a Vallet Welding Construction Company.

A.J. Patín was killed when a twenty-foot long section of gutter which he was holding came into contact with uninsulated electric lines owned and operated by Gulf States Utilities Company. This accident occurred as the decedent attempted to attach the gutter to the building. In so doing, the decedent stood atop the building at its northwest corner. The roof was not yet in place. Patín reached into the building and lifted the section of gutter alongside him. Then he slid one end of the gutter across his thigh and pushed downward on it to try to swing the other end to a co-worker standing atop the west corner. However, in pushing downward, Patín lost control of the gutter, and the end of the -gutter held by Patín swung upward and contacted the electric wires, electrocuting him instantly. The point of contact of the wire and the gutter was about twelve feet from the corner of the building where decedent Itood.

Plaintiff, Lisa Larsen Patín, sued Industrial Enterprises, Inc., the owner of the building; Great American Insurance Company, Industrial Enterprises’ insurer; and Gulf States Utilities Company, the owner of the electric wires. Made party defendants by way of an amending and supplemental petition were William Bowman, the engineer who drew up the plans for the building, and his insurer; and the City of Baton Rouge and Parish of East Baton Rouge. On motion of plaintiff, Industrial Enterprises and its insurer were dismissed with prejudice and Gulf States Utilities Company was dismissed without prejudice. William Bowman and the City of Baton Rouge and the Parish of East Baton Rouge were the only defendants remaining at the time of trial.

Plaintiff sought to prove that Bowman was negligent in drawing the plans for the building, in that the building was situated immediately adjacent to an electrical servitude, and in failing to provide instructions on how to safely proceed with construction in the area of the uninsulated electric wires. The City-Parish was alleged to have been negligent in having approved Bowman’s plan and in allowing Gulf States to use nine-foot cross arms on its utility poles in an electric servitude only fifteen feet wide. The defendants entered a general denial and pled the affirmative defense of contributory negligence of the decedent.

The trial court rendered judgment in favor of defendants and dismissed the suit. This appeal followed.

SPECIFICATIONS OF ERROR

Plaintiff-appellant, Lisa Larsen Patín, .contends the trial court erred:

1. in finding that no duty of the City-Parish had been breached; and
2. in not recognizing the full scope of the duty owed by an architect or civil engineer in designing a building.

SPECIFICATION OF ERROR NO. 1

The trial court found that it was the duty of the City-Parish (through the Building Official and his staff) to inspect the building plans and ensure that the proposed building did not violate the Baton Rouge Building Code. The lower court concluded that the City-Parish had fulfilled this duty.

However, plaintiff-appellant argues that the duty of the City-Parish is broader and includes a duty to secure the necessary safeguards to ensure safety to the public during construction, citing Section 103.1 of the Building Code and Stewart v. Schmieder, 386 So.2d 1351 (La.1980). Mrs. Patin argues that this duty was breached when the City-Parish failed to alleviate the hazard posed to her husband by the live electric wires which ran in close proximity to the decedent’s work area. She contends that the hazard should have been recognized from an inspection of the building plans or during a later on-site slab inspection by the City-Parish. The plans revealed that the building buttressed a servitude, but the type of servitude was not shown. Mrs. Patin argues that the City-Parish employee who inspected the plans should have inquired or otherwise learned what type of servitude lay immediately adjacent to the building. Once finding that the plans called for a metal building buttressing an electric servitude, the building official should have ordered all precautions necessary to ensure safety during construction, or require the civil engineer to provide the proper instructions, according to plaintiff.

We note initially that the section of the Building Code cited by plaintiff has not been made a part of the record. Plaintiff introduced into evidence a copy of the Building Code which did not contain the cited section (apparently added by a subsequent amendment.) We cannot take judicial cognizance of the Building Code (made a part of the City-Parish ordinances by reference) since same has never been filed with the clerk of this court, see La.R.S. 13:3712(B). Thus, plaintiff cannot rely on the section of the Building Code cited in her brief.

Moreover, while we might agree that under the cited section of the Building Code, the City-Parish has a duty to ensure safety to the public during constructions, we find that the risk of harm encountered by the decedent falls outside the scope of protection afforded by such duty. The duty of the City-Parish is to ensure that the building poses no unreasonable risk of harm during construction. The risks sought to be prevented are those which could result from a defective building, i.e., one which is improperly outfitted or structurally unsound. The City-Parish’s duty does not extend to risks which are outside the building site and have no teleological connexity therewith. Rather, the duty is intended to protect from harms inherent in a flawed or defective building. Such was the situation in Stewart v. Schmeider, supra. Stewart involved claims for injury and wrongful death caused by the collapse of a building under construction. Liability vested with the City-Parish when the architect noted deviations from the plans and reported same to the City-Parish, and the City-Parish relied on the architect’s representations that the deviations and problems had been corrected, rather than sending out an inspector to make sure of the structural soundness of the building.

Insuring public safety during construction is accomplished by examining the plans of the building and by making on-site inspections. In the case sub judice, the plans and specs were properly inspected by the City-Parish prior to construction, and an on-site inspection of the concrete slab was made prior to the commencement of metalwork by Vallet and his men. Thus, we agree with the trial court that the duty owed by the City-Parish to the decedent, i.e., to ensure that the proposed building would not present an unreasonable risk of harm to those constructing it, was fulfilled by the City-Parish.

Because the risk of receiving an electrical shock from wires running outside the site and which did not serve the site falls outside of the scope of protection afforded by the City-Parish’s duty to ensure public safety during constructions, we find that Mrs. Patin’s first specification of error is without merit.

SPECIFICATION OF ERROR NO. 2

Mrs. Patín argues that William Bowman, the civil engineer who drew the plans, was negligent in failing to warn of the close proximity of the electric wires, and in not providing instructions for safe construction near the wires.

The Building Code requires the civil engineer or architect who submits building plans: to certify that the plans and specifications are in conformity with the Building Code, state fire code and state sanitary code; to provide a “stress sheet” showing structural details; and to produce a complete description of the kind and size of the building(s), the character of materials to be used, the ground area tq be covered, and the net cubic contents of the building. It is undisputed that Mr. Bowman’s plans met these requirements.

It is also undisputed that Mr. Bowman received instructions from the building’s owner to locate the rear of the building adjacent to the electric servitude, thus making maximum utilization of the space available on the lot; that Mr. Bowman was not notified when construction started and was therefore unable to make required followup inspections; and that Mr. Bowman was hired only to draw up plans for the building and was not hired to supervise construction, although he was qualified to do so and would have undertaken such supervision for an additional fee, if so requested. Inasmuch as Mr. Bowman was responsible only for plans and not for construction, we find no duty on his part to provide instructions for safe metalworking in the area of the building near the wires.

The record shows conclusively that decedent and his co-workers discussed the proximity of the wires, which they knew were “live.” We therefore pretermit discussion of Mr. Bowman’s alleged duty to warn of the presence of the wires.

Plaintiff-appellant’s assignment of error No. 2 is without merit.

Therefore, for the above and foregoing reasons, judgment of the trial court in favor of defendants William Bowman and the City of Baton Rouge and Parish of East Baton Rouge, is hereby affirmed. All costs are assessed to plaintiff-appellant, Lisa Larsen Patín.

AFFIRMED.

      . The partial section of the Building Code cited by plaintiff in brief reads:

        “Section 103.1. Coordination of Codes. The building official shall have the power to enforce all of the provisions of this title; shall have general supervisory authority over the administration and enforcement of all building codes and ordinances, and shall coordinate the administration and enforcement of all such ordinances. All building permits shall be issued by him, and he shall collect all fees provided herein and transmit same to the director of finance.

        “The building official shall have the power to examine premises for which permits have been issued and make such inspections thereof whenever in his opinion same are necessary to ensure that the construction is not in violation of the building codes.
      “He shall, when requested by proper authority, make investigations in connection with matters referred to in the building code -and written reports on same.
      “He shall have the authority to issue such notices and orders as may be necessary to enforce compliance with the provisions of the building code, to remove illegal or unsafe buildings, to secure the necessary safeguards to ensure safety to the public during constructions....” (emphasis supplied)


source: Caselaw Access Project

author: WATKINS, Judge. SHORTESS, Judge,

license: Public Domain

text:
    Richard E. NELSON v. Barbara Groves NELSON.
    No. 15102.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.

      Leslie D. Ligón, Jr., Clinton, for plaintiff-appellee.
    Thomas K. Kirkpatrick, Baton Rouge, for defendant-appellant.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   WATKINS, Judge.

This is an appeal from a judgment finding Barbara Groves Nelson in contempt of Court for failure to comply with an injunction. Appellant, Barbara Groves Nelson, and appellee, Richard E. Nelson, were divorced on March 30,1981. After the termination of the marriage, Mr. Nelson remained in the family home, while Mrs. Nelson resided elsewhere. Pending a partition of the community, a preliminary injunction was issued restraining and enjoining both parties from disposing of, alienating or removing any and all community property from the present location, and further from threatening or harassing each other. The injunction was issued without evidence other than a stipulation signed by counsel for both parties.

The former husband proceeded by rule to have the former wife held in contempt of court for allegedly removing community property from their former house and also allegedly harassing the former husband. The trial court found Mrs. Nelson in contempt based upon the following stipulation of fact entered into by the respective counsel for Mr. Nelson and Mrs. Nelson:

“... the defendant Barbara Major did enter the community residence on or about July 27, 1981, July 29, 1981, and August 3,1981 and that she did not have a key and broke a bit of glass each time and she did remove certain property. The determination of whether that property is community property or separate property is yet to be decided.”

This stipulation is the only evidence of record upon which the trial court based its findings of contempt.

The trial court sentenced Mrs. Nelson to five days imprisonment in the parish jail. The sentence was suspended upon the condition that Mrs. Nelson pay all costs of Court, make restitution to her former husband for repairs of damage to the residence and account to her former husband for items that she removed from the residence.

In order to uphold the authority of the court, a judge has the power to punish for contempt of court. Article 221 of our Code of Civil Procedure describes contempt as follows:

“A contempt of court is any act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court or respect for its authority.
“Contempts of court are of two kinds, direct and constructive.”

In the present case there was clearly no direct contempt involved. LSA-C.C.P. art. 222. A person may not be adjudged guilty of a contempt of court except for misconduct defined as such expressly by law. LSA-C.C.P. art. 227. Therefore, any contumacious behavior on the part of the defendant must fall within those acts constituting constructive contempt and set forth in LSA-C.C.P. 224. Among the enumerated acts constituting constructive contempt is a “wilful disobedience of any lawful judgment, order, mandate, writ, or process of the court.” LSA-C.C.P. 224(2). This is the applicable statutory provision, and the issue involved is whether or not the plaintiff has proved that the defendant’s conduct constituted a wilful disobedience of the trial court’s order. Failing a finding that the defendant wilfully disobeyed the order, the court is without the power to punish for constructive contempt. Wright v. Department of Highways, 359 So.2d 635 (La.App. 1st Cir.1978); City of Monroe v. Evans, 385 So.2d 912 (La.App. 2d Cir.1980).

Wilful disobedience means an act or a failure to act that is done intentionally, knowingly and purposely, without justifiable excuse. New Orleans F.F. Ass’n. Loc. 632 v. City of New Orleans, 260 So.2d 779 (La.App. 4th Cir.1972). Therefore, to find the defendant guilty of contempt, we must find that she violated the orders of the court intentionally, knowingly and purposely, without justifiable excuse. The plaintiff has alleged two violations of the court’s orders. One, that the defendant removed property from the former marital domicile contrary to the court’s order prohibiting both parties from disposing of, alienating or removing any and all community property from the present location. Two, that the defendant entered the former marital domicile three times by breaking out panes of glass, thus harassing the plaintiff contrary to the court’s order prohibiting both parties from threatening or harassing each other.

The plaintiff is alleging contempt, and, therefore, has the burden of proving it. One who asserts a fact must carry the burden of proof of that fact. Meyer v. State, Dept. of Public Safety Lie. Con., Etc., 312 So.2d 289 (La.1975). Other than the stipulation entered into by counsel for both parties, the plaintiff has presented no evidence of record to support his allegations of contempt on either of the two grounds.

We cannot find the defendant in contempt for violating the order prohibiting the removal of community property from the present location. The plaintiff did not show nor does the joint stipulation state that the property removed was community property. The strongest evidence presented to prove this contention was the statement in the joint stipulation that the classification of the property was yet to be determined. Before we can punish for contempt, there must be proof that the defendant disobeyed the court’s mandate. There is no such proof in this case.

To hold the defendant in contempt for violating the order prohibiting the parties from harassing each other, it must be proven that the defendant did in fact harass the plaintiff, and that she did .so intentionally, knowingly and purposely, without justifiable excuse. Wright v. Department of Highways, supra; City of Monroe v. Evans, supra. The stipulation provides that the defendant entered the former marital domicile on three occasions: July 27, 1981, July 29, 1981, and August 3, 1981. She did not have a key, but gained entrance each time by breaking a pane of glass. These are the only facts upon which the plaintiff relies to show harassment. Certainly this is insufficient evidence of harassment upon which to base a finding of contempt. Perhaps if the defendant entered the home late at night, while the plaintiff was at home, or if other circumstances surrounding the entry indicated some sort of mischievous behavior on the part of the defendant, then a finding of harassment could be sustained. However, the record is void of any evidence other than the aforementioned stipulation. We do not know what time the defendant entered, nor do we know that the plaintiff was even at home. Furthermore, we cannot even tell from the record that there was ever any kind of order or agreement granting the plaintiff the exclusive right to occupy the premises. Therefore, in the absence of any further evidence, we cannot find that the defendant’s entry into the residence on three occasions is sufficient to constitute harassment in violation of the injunction. Nor can we find any intent to harass. Based on the stipulation entered into by counsel for both parties, the only evidence of record, there is nothing to indicate defendant was entering the residence for the purpose of intentionally harassing the plaintiff, or for any other purpose other than to retrieve certain items of property.

Accordingly, on the basis of this record, we find no showing of wilful or contumacious behavior to disobey any lawful judgment, order, mandate, writ or process of the court.

For the above and foregoing reasons, the judgment of the district court is reversed, and judgment is rendered in favor of the defendant, Barbara Groves Nelson, dismissing the rule. The plaintiff is to pay all costs of court.

REVERSED.

SHORTESS, Judge,

concurring.

As aptly stated by Judge Watkins, the record herein contains only a very limited stipulation of facts, which cannot justify a finding of contempt. In no way do I sanction or condone the forcible entry into a community dwelling. However, there is nothing in the record before us to indicate whether the parties had any type of agreement as to the occupancy of the home in question. The paucity of evidence, as to the circumstances surrounding appellant’s entry into the home and the character of the property removed therefrom, supports our reversal of this contempt judgment. No doubt, the trial judge was privy to facts peripheral to the stipulation; however, a reviewing court may only look to the record as lodged in reaching its decision.

Accordingly, I concur.


author: CARTER, Judge:

text:
    Lester F. FREEMIN v. John A. COGLIAITI.
    No. 15103.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    Timothy C. Ellender, Houma, for plaintiff & appellee.
    Gerald A. Bosworth, Houma, for defendant & appellant.

      Before LOTTINGER, COLE and CARTER, JJ.
   CARTER, Judge:

This appeal was fixed on the August 1982 Docket and all attorneys of record were notified. At the time scheduled for argument, the appellant was not present or represented, nor had any brief been filed on behalf of appellant, nor had any motion been filed for continuance.

On authority of Rule VII, Section 5(b), this Court, ex proprio motu, considers this appeal as abandoned; therefore, it is ordered that this appeal be dismissed with prejudice.

APPEAL DISMISSED.


text:
    B. OLINDE & SONS CO., INC. d/b/a Baton Rouge Beer Agency v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION & DEVELOPMENT; Iberville Parish Police Jury; and Tidelands Equipment, Inc.
    No. 15106.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    Writ Denied Dec. 10,1982.

      Joseph B. Olinde, Baton Rouge, for plaintiff-appellant B. Olinde & Sons Co., Inc., D/B/A Baton Rouge Beer Agency.
    Daniel R. Atkinson, Baton Rouge, for defendants and third party plaintiffs-appellants Tidelands Equipment, Inc., and Maryland Cas. Co.
    Paul H. Spaht, Baton Rouge, for defendants and third party defendants-appellees L. H. Bossier, Inc., Alexandria Const. Co. and Reliance Ins. Co.
    Robert J. Jones, James C. Russell, Jr., Baton Rouge, for defendant-appellant and third party plaintiff State of La., through the Dept, of Transp. and Development.
    Before LOTTINGER, COLE and CARTER, JJ.
   LOTTINGER, Judge.

This is an action ex delicto arising from a one-vehicle accident occurring on Louisiana Highway 75 in Iberville Parish. A beer truck owned by plaintiff overturned while traversing a section of the highway being resurfaced and widened. Suit was filed against the State through the Department of Transportation (DOTD), and against various contractors, subcontractors, and their insurers. From judgment in favor of the defendants, dismissing plaintiff’s claim and all third-party claims, plaintiff has appealed.

FACTS

From the briefs and the record, we glean the following:

The accident in question occurred on August 27,1979, at about 1:30 p.m. Plaintiffs employees, John Staid and Elton York, were on their normal delivery route, traveling northward on Highway 75 between Pigeon and Bayou Sorrell in a beer truck owned by plaintiff. The driver, John Staid, encountered an area where the highway was being resurfaced. The highway in the area of the accident had been ripped up and graded, soil cement had been “cut” into it, and oil emulsion had been sprayed, but the final layer of asphalt had not yet been laid. The roadbed and shoulder area were one level plane, with oil emulsion covering the roadbed but overlapping in places onto the side of the road. The weather was overcast, and Staid testified that light mist covered the roadway, a precursor to rain. As the beer truck rounded a small curve, Staid observed another truck approaching in the opposite direction. Staid moved his vehicle to the right to make sure there was room enough to pass. The right wheels of the truck left the hard roadbed and went onto an area which would normally compose the road shoulder. Staid testified that due to the presence of oil emulsion and moisture, the overcast conditions, and the state of resurfacing, he was unable to distinguish where the hard roadbed ended and the shoulder began. When the right wheels of the truck left the roadbed, the shoulder gave way beneath the truck’s weight. A collapse of the shoulder area caused the truck to list toward the right, slide down a short slope, and overturn into the underbrush. The right wheels of the truck were about one foot from the road proper when the shoulder area collapsed.

Staid and York were not seriously injured in the accident but underwent medical treatment. The beer truck, however, was severely damaged, with the cargo area of the truck being totalled. Plaintiff filed suit under theories of negligence and strict liability, asserting the following items of damages: property damage to the truck, wrecker fees, costs incurred in salvaging the ruined truck body, medical bills for Staid and York, lost wages paid directly by plaintiff to York, and damages for beer lost when the truck overturned.

TRIAL COURT

Much testimony at trial dealt with the factual issue of whether the shoulder area was visually distinguishable from the hard roadbed. The trial court found as fact that the roadway and shoulder were distinguishable on close inspection, but that it was doubtful the driver of a vehicle could make the same distinction.

The trial court found that the driver of the beer truck made a manuever to the edge of the road which was not necessary, and that the driver knew the road was under construction. The court found that the contractors had complied with the requirements of the DOTD and the road was properly posted with warning signs. Because the road was under construction, the trial court distinguished Rue v. State Dept, of Highways, 372 So.2d 1197 (La.1979), wherein the Supreme Court held the Department of Highways liable for a deteriorating shoulder even though the driver was found to be contributorily negligent. For these reasons, the trial court found defendants not to be liable, and dismissed plaintiffs suit at its cost.

SPECIFICATIONS OF ERROR

Plaintiff-appellant, B. Olinde & Sons, Inc., d/b/a Baton Rouge Beer Agency, assigns the following specifications of error:

1. The trial court erred in not applying the theory of strict liability.
2. The trial court erred in finding the driver of plaintiffs vehicle guilty of substandard conduct of such nature as to bar plaintiffs recovery.
3. Though the trial court’s determination as to the posting of “soft” or “low” shoulder signs is not clear, the trial court erred if it found that such signs were posted at the time of the accident.
4. The trial court erred in not admitting into evidence hospital bills paid by plaintiff.
5. The trial court erred in not admitting into evidence proof of lost wages paid by plaintiff.

ROAD SURFACING

A review of the processes involved in road resurfacing is in order:

First, the old roadway is ripped up, and the resulting subgrade leveled and compacted. Second, the cement stabilized base is put in place. This second stage is also termed “cutting in the soil cement.” Third, the soil cement or stabilized base is “cured” or “primed.” Curing or priming the soil cement involves spreading a thin layer of oil emulsion over the stabilized base in order to seal it from moisture. Fourth, the asphalt itself is put into place. Finally, the fifth stage is to bring in the shoulder materials and put the shoulder into place. The accident which is the subject to this lawsuit occurred between the third and fourth stage of construction, right after the oil emulsion was spread on the stabilized base, but before the asphalt or shoulder materials were put in place. Thus, what is referred to as a collapsing “shoulder” was not in reality a shoulder, since the new shoulder materials were not yet in place. The roadway was not only being resurfaced but also widened, and speculation at trial was that the existing road shoulder was partially destroyed and was buried under and overlapped by dirt and other materials moved to the road side during grading of the roadbed, prior to the “cutting in” the soil cement. This is what actually collapsed beneath plaintiffs truck when the right wheels left the road.

UNREASONABLE RISK OF HARM

In the case sub judice, plaintiff claims liability both under La.Civ.Code art. 2315 for defendants’ failure to correct a hazardous condition of the road shoulder, and under La.Civ.Code art. 2317, as interpreted in Loescher v. Parr, 324 So.2d 441 (La.1975), for damages caused by a “defective” thing in the custody of the defendants. In Jones v. City of Baton Rouge-Parish of East Baton Rouge, 388 So.2d 737 (La.1980), the Supreme Court delineated the standard for liability under art. 2317 as follows:

“Because the responsibility for preventing the unreasonable risk of injury to others is unconditional, the injured party seeking damages under article 2317 need not prove that any particular act or omission on the part of the defendant caused his injuries. He must only prove that the thing which caused the damage was in the care or custody of the defendant, that the thing had a vice or defect — that is, that it occasioned an unreasonable risk of injury to another — and that his injury was caused by the defect.” 388 So.2d at 739

Recently, in Kent v. Gulf States Utilities Company, 418 So.2d 493, the Louisiana Supreme Court made the following observations on the relationship between negligence and strict liability in Louisiana law:

“In a typical negligence case against the owner of a thing (such as a tree) which is actively involved in the causation of injury, the claimant must prove that something about the thing created an unreasonable risk of injury that resulted in the damage, that the owner knew or should have known of that risk, and that the owner nevertheless failed to render the thing safe or to take adequate steps to prevent the damage caused by the thing. Under traditional negligence concepts, the knowledge (actual or constructive) gives rise to the duty to take reasonable steps to protect against injurious consequences resulting from the risk, and no responsibility is placed on the owner who acted reasonably but nevertheless failed to discover that the thing presented an unreasonable risk of harm.
“In a strict liability case against the same owner, the claimant is relieved only of proving that the owner knew or should have known of the risk involved. The claimant must still prove that under the circumstances the thing presented an unreasonable risk of harm which resulted in the damage (or must prove, as some decisions have characterized this element of proof, that the thing was defective). The resulting liability is strict in the sense that the owner’s duty to protect against injurious consequences resulting from the risk does not depend on actual or constructive knowledge of the risk, the factor which usually gives rise to a duty under negligence concepts. Under strict liability concepts, the mere fact of the owner’s relationship with and responsibility for the damage-causing thing gives rise to an absolute duty to discover the risks presented by the thing in custody. If the owner breaches that absolute duty to discover, he is presumed to have discovered any risks presented by the thing in custody, and the owner accordingly will be held liable for failing to take steps to prevent injury resulting because the thing in his custody presented an unreasonable risk of injury to another.
“Thus, while the basis for determining the existence of the duty (to take reasonable steps to prevent injury as a result of the thing’s presenting an unreasonable risk of harm) is different in. C.C. Art. 2317 strict liability cases and in ordinary negligence cases, the duty which arises is the same. The extent of the duty (and the resulting degree of care necessary to fulfill the duty) depends upon the particular facts and circumstances of each case. “Accordingly, in a strict liability case in which the claimant asserts that the owner’s damage-causing thing presented an unreasonable risk of harm, the standard for determining liability is to presume the owner’s knowledge of the risk presented by the thing under his control and then to determine the reasonableness (according to traditional notions of blameworthiness) of the owner’s conduct, in the light of that presumed knowledge.” (emphasis added by the Supreme Court; footnote omitted)

Thus, under negligence or strict liability analyses plaintiff must prove that the damage-causing thing posed an unreasonable risk of harm. Under either analysis, when determining whether the risk of harm is unreasonable, the court must balance the utility of the thing against the probability of the risk of harm and the magnitude of the harm which may ensue. Hunt v. City Stores, Inc., 387 So.2d 585 (La.1980).

BALANCE

Initially, we note that this court in a recent case, Duffy v. State through Department of Transportation and Development, 415 So.2d 375 (La.App. 1st Cir.1982) refused to hold the state strictly liable for damages caused by a build-up of gravel formed during grading of a gravel road. This court noted that to apply strict liability to hazards temporarily occasioned during road repairs would place the state in a “Catch-22” or “no-win” situation whereby the state would be liable in negligence or strict liability for a failure to properly maintain a roadway, but would be also strictly liable for injuries caused as a result of the attempt to repair. The only way the State could escape liability in such cases would be to completely close highways to traffic during repairs.

Mindful of the rationale of Duffy, we must determine whether the temporary road shoulder constituted an unreasonable risk of harm under all the facts and circumstances of the instant case. For purposes of this inquiry, we shall assume that no signs specifically warning of soft shoulders were in place, as is argued by plaintiff.

Trial testimony revealed that the driver, John Staid, had traversed the highway under construction regularly for a period of several weeks prior to the accident. The highway contained signs alerting the public that the area was under construction. That Staid was extremely familiar with the highway and the progress of construction tended to lessen the probability of an accident such as the one which occurred, inasmuch as a driver who regularly observes a road being resurfaced will become wary of the road shoulder, which usually will be affected concomitantly.

Staid testified that he was unable to distinguish the location of the edge of the road due to overcast conditions and the presence of oil emulsion and moisture. However, testimony of others who observed the highway at a later time revealed that under ordinary road and weather conditions the shoulder was easily distinguishable, a fact which lessened the probability of the accident.

The beer truck involved in the accident was quite large and loaded with cargo, weighing more than 33,000 pounds. Plaintiffs expert drove his smaller passenger vehicle over the shoulder to determine where it became dangerously soft. The smaller vehicle did not cause the temporary shoulder to appreciably break or give way. Although the highway was open to all traffic, the facts indicate that the hazard existed only in relation to very heavy and large vehicles, which we assume is but a percentage of those on the highway. Again, the probability of this type of accident is lessened.

Finally, the record reveals that in the normal process of road resurfacing, permanent shoulder materials are brought in, graded and compacted after the final layer of asphalt is laid. There is no indication in the record that the project was delayed or was not proceeding on schedule. Thus, whatever hazard was present existed presumably for a short time only. This fact distinguishes the instant case from those cited by plaintiff, Edwards v. State Department of Transportation & Development, 403 So.2d 109 (La.App. 3rd Cir.1981), writ den. 407 So.2d 733 (La.1981); and McDaniel v. State, Department of Transportation and Development, 398 So.2d 88 (La.App. 3rd Cir.1981); writs den. 404 So.2d 277 and 279 (La.1981). In Edwards and McDaniel, a large drop-off between new asphalt and the shoulder was allowed to exist for periods of two and four months respectively, due to the lags in the resurfacing process. The existence of the hazards for a period of months increased the probability of an accident; thus, an unreasonable risk of harm was thereby created. However, in the instant case, the process of blading and rolling the roadway was completed August 7, 1979, less than one month before the accident.

Considering the above, we find that the probability of this particular risk of harm was small.

However, the magnitude of the possible harm was undoubtedly high. Neither of the passengers in the beer truck was seriously injured; we attribute this fact to a fortunate turn of events. One involved in this type of accident, caused by a collapsing temporary road shoulder, could easily be seriously injured or killed.

Nonetheless, there was a high utility factor involved in keeping the highway open during repairs. Highway 75 is the only road in this area of Iberville Parish, near the Atchafalaya Basin. All residents of the area depend on the highway to travel to work and between residences. To have closed the highway during repairs would have worked a hardship on a large number of persons.

As was stated in Kent, supra, the fact that a defendant has custody over a harm-producing object relieves a plaintiff suing under La.Civ.Code art. 2317 from proving the defendant’s actual or constructive knowledge of the risk of harm. Such knowledge is imputed to the defendant, and the basis for liability under Art. 2317 (like under a negligence analysis) is the reasonableness of the defendant’s conduct. Because La. Highway 75 was in the custody of the defendants, whether they had actual or constructive knowledge of the risk of a collapsing temporary road shoulder is of no moment.

Our task is, then, to determine whether the defendants’ actions or lack thereof in attempting to prevent the risk of harm were unreasonable under traditional notions of blameworthiness, Kent, supra. We have determined that the probability of this type of accident was low, as enumerated above. Additionally, the highway under repair was the only state highway serving an isolated part of Iberville Parish. Although the probability of the risk may have been lessened even further by attempting to compact the temporary shoulder more or by providing road delineators or more specific warning signs, after having balanced the already low probability factor against the high utility value of Highway 75, we do not find that the defendants’ conduct was unreasonable under the circumstances. The process of resurfacing the highway was reasonably safe despite the occurrence of the unlikely truck accident which did occur. The defendants are therefore absolved of liability.

In light of the above holding, we expressly pretermit discussion of contributory negligence (or “victim fault”) and the eviden-tiary issues presented in plaintiff’s specifications of error numbers four and five.

Therefore, for the above and foregoing reasons, the judgment of the trial court dismissing the main demand and all third-party demands is hereby affirmed. All costs are assessed to plaintiff-appellant.

AFFIRMED.

      . Also made parties defendant were the Iber-ville Parish Police Jury; Tidelands Equipment, Inc., the prime contractor on the reconstruction job; Maryland Casualty Company, Tidelands’ insurer; Alexandria Construction Company, a subcontractor; L.H. Bossier, Inc., a subcontractor; and Reliance Insurance Company, insurer of Alexandria Construction and L.H. Bossier. The State filed a third-party demand against Tidelands. Tidelands and its insurer filed a third-party demand against Alexandria Construction and its insurer. The Iberville Parish Police Jury was granted summary judgment prior to trial on the grounds that it was in no way responsible for Highway 75, a state highway.

      . The State and Tidelands have also appealed to preserve their third-party claims in case of reversal on the main demand.

      . The record indicates both the roadbed and the shoulder area are compacted, but the shoulder area usually receives less attention than does the roadbed during this stage.

      . The fact that Staid had driven the highway regularly during the entire construction period weighs significantly in our determination that the probability of the risk was low. See Duffy v. State Department of Transportation and Development, 415 So.2d 375 (La.App. 1st Cir. 1982).


author: SHORTESS, Judge.

text:
    Manny COURTADE and Malcolm Orillion v. Tommy TUCKER, et al. LOUISIANA FARM BUREAU MUTUAL INSURANCE COMPANY v. Malcolm O. ORILLION.
    Nos. 15108, 15109.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    Writ Denied Dec. 10, 1982.

      Robert J. Vanda worker, Taylor, Porter, Brooks & Phillips, Baton Rouge, for plaintiff-appellant Louisiana Farm Bureau Mut. Ins. Co.
    Joseph B. Dupont, Sr., Dupont, Dupont, & Dupont, Plaquemine, for defendant-appel-lee Malcolm 0. Orillion.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   SHORTESS, Judge.

These consolidated cases arose out of a collision which occurred on April 26, 1978, on Louisiana Highway 77, a two-lane asphalt rural highway in Iberville Parish, Louisiana. At the time in question, Malcolm Orillion was proceeding north on La. 77 in his 1976 Chevrolet truck, with Manny Courtade as a passenger. Frederick Callo-way was operating a 1975 Chevrolet truck owned by Thomas B. Tucker, which had stalled in the northbound lane of La. 77. Orillion’s truck collided with the rear of Tucker’s truck; and now, he and Courtade seek damages for their injuries from Tucker, Calloway, and Southern Farm Bureau Mutual Insurance Company. The Louisiana Farm Bureau Mutual Insurance Company seeks recovery from Orillion for damages to the Tucker vehicle.

The trial court rendered judgment in favor of Orillion, awarding him $6,000.00 in general damages, in addition to special damages, and $2,000.00 in general damages to Courtade in addition to special damages. The trial court dismissed the claim of Louisiana Farm Bureau Mutual Insurance, who has filed this appeal along with Tucker, Calloway and Southern Farm Bureau Casualty Insurance Company (appellants).

Unfortunately, the trial court gave no reasons for judgment, but our examination of the record reveals the following facts: that Frederick J. Calloway was employed by Thomas B. Tucker on the date in question and was returning some saddles to Tucker’s camp in Tucker’s truck, which developed ignition problems; that the truck stalled in the northbound lane of La. 77; that Calloway remained in the truck but could not start it; that the truck’s lights would not work; that it was approximately 7:30 p.m. and very dark; that Calloway had been stalled for about five minutes when Orillion, also headed north on La. 77, appeared; that Tucker’s truck was entirely in the northbound lane, some 300 to 400 yards north of a curve in the highway; that at this point the highway was straight and level and traversed a wooded area; that Orillion was going home for supper; that no other vehicles were traveling in either direction at the time; that Orillion did not see the Tucker truck until he was right on it and never applied his brakes, but did swerve to his left, striking the Tucker truck with the right front of his truck; that both Orillion and Courtade admitted to drinking two beers before the accident; and that both Orillion and Courtade sustained bodily injuries.

Appellants concede the negligence of Tucker and Calloway but argue that the trial court erred in failing to find that Orillion was (1) negligent, and (2) had the last clear chance to avoid the accident.

Appellants argue that Orillion was guilty of negligence because he operated his vehicle at a speed of 50 miles per hour when he could not see objects in the road more than forty feet away.

However, Mabile v. Thibaut Farms, 244 So.2d 66 (La.App. 1st Cir.1971), restated the law from Sanders v. Eilers, 217 So.2d 205 (La.App. 1st Cir.1968):

“The rule is well established that one who operates a motor vehicle on public highways has a never ceasing duty to keep a sharp lookout ahead. A motorist is therefore held to have seen that which in the exercise of ordinary care he should have seen. Rottman v. Beverly, 183 La. 947, 165 So. 153; Jackson v. Cook, 189 La. 860, 181 So. 195. Thus, though as a general rule a motorist may assume that the road ahead is safe for travel, he must when traveling after darkness or in circumstances of limited or impaired visibility observe and so control his vehicle as to avoid discernable objects in his path of travel; that is, in adverse conditions a greater degree of care must be exercised. Watkins v. Strickland Transportation Co. (1956), La.App., 90 So.2d 561, and Hernandez v. State Farm Mutual Automobile Insurance Company (1966), La.App., 192 So.2d 679. This last rule however is subject to the well established exception that a night driver is not charged with the duty of guarding against unusual or unexpected obstructions which he had no reason to anticipate he would encounter on the highway and which under the circumstances are difficult to discover. Gregoire v. Ohio Casualty Ins. Co., La. App., 158 So.2d 379; Gros v. United States Fidelity & Guaranty Co., La.App., 183 So.2d 6570.” 244 So.2d at 69.

Calloway made no attempt to warn oncoming traffic of his unlit, disabled truck and chose to remain inside the truck. It was a very dark night in a wooded area. No evidence established that Orillion failed to keep his vehicle under proper control as he approached the stalled truck. There was no evidence of excessive speed or impaired reaction. Orillion testified that he immediately moved to his left in an attempt to avoid the truck when he saw it, but he was unable to avoid the collision.

Both Orillion and Courtade admitted having two beers prior to the accident. Tucker, a defendant, felt that they showed signs of intoxication, while Alvin Daigle, an independent witness, indicated they did not. The trial judge obviously felt that intoxication was not a factor, and we are not in a position to say he was manifestly in error for so concluding.

The facts do not justify application of the last clear chance doctrine to Orillion. As indicated before, Calloway, on a dark night in a rural, wooded area, permitted his unlit, disabled truck to remain in the middle of the traffic lane and did not attempt to warn oncoming traffic of its presence. By the time Orillion saw the truck, it was too late to avoid the collision which occurred, even though he veered to his left in an attempt to evade it. The evidence obviously indicated to the trier of fact that Orillion did not actually discover, nor was he in a position where he should have discovered, Calloway’s peril in time to avoid the accident with the exercise of reasonable care. Glatt v. Hinton, 205 So.2d 91 (La.App. 4th Cir.1967), writ refused 251 La. 861, 206 So.2d 712 (1968). The trial court was not clearly wrong in its finding.

QUANTUM

Appellants contend that the trial court was in error for awarding Orillion damages for an injury which was unrelated to the accident, and for making excessive awards to Orillion and Courtade.

Our analysis of this record reveals that the trial court (1) made no error in finding that Orillion’s injuries were related to the accident, and (2) did not abuse its discretion in its award of general damages to Orillion and Courtade.

The original treating physician, Dr. James Freeman, testified that Courtade sustained trauma to his' rib cage involving the thin covering and cartilage, which he called perositis. Additionally, he had swelling in the right kneecap. His treatment consisted of a rib belt and medication for pain, including a Cortisone derivitive. Freeman was of the opinion that Courtade could return to his routine work activities on May 17, but that he would have residual pain from the rib injury for some time. We do not feel that the award of $2,000.00 in general damages to Courtade was an abuse of discretion.

X-rays were taken after the accident of Orillion’s skull, left hand, and right knee. The diagnosis was contusion to the hand and knee, and mild concussion. He was hospitalized for three days for observation, but nothing significant developed regarding the concussion. On May 5, his left hand was x-rayed again because of continued swelling and at that time it was immobilized with a cast. The cast was removed on June 7, and Freeman was of the opinion that there may have been a fracture of the nervicular bone. The radiologist disagreed and felt there was no fracture; however, Dr. Freeman treated it as a fracture. Oril-lion continued to have pain after his discharge and sought the services of Dr. Lawrence J. Messina, an orthopedic surgeon, on July 18,1978. Dr. Messina found a deformity at the base of the left index finger at the wrist joint which he diagnosed as a dislocation. Dr. Messina hospitalized Oril-lion on July 24 and performed an open reduction, repaired the dislocation with wires and pins, and immobilized the hand again. On September 5, the pins were removed and by October 10 Orillion had full motion. Dr. Messina was of the opinion that he could return to work with very minimal disability; however, he acknowledged that Orillion might be more susceptible to arthritis.

We feel that Orillion established by a preponderance of the evidence that the problem Dr. Messina treated was causally related to his accident. Appellants offered no evidence to rebut Orillion’s version, which was certainly a reasonable one. The initial x-rays were ambiguous, so the injury was treated as a fracture by Dr. Freeman. The continued complaints were in the very same area of the hand, which caused problems and disabled Orillion. The trial judge was not clearly wrong in finding a causal connection between his continued complaints, which were treated finally and successfully by Dr. Messina, and the accident. Considering the six-month duration of the injury and Orillion’s disability during this period, we do not feel that the trial court abused its great discretion in its award of $6,000.00 in general damages.

For these reasons, the judgment of the trial court is affirmed at appellants’ costs.

AFFIRMED.


author: WATKINS, Judge.

text:
    Pamela Teer DEBETAZ v. Larry Dean DEBETAZ.
    Nos. 15111, 82 CA 0373.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    Donna W. Lee, Baton Rouge, for plaintiff.
    Ron S. Macaluso, Hammond, for defendant.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   WATKINS, Judge.

These are consolidated appeals from successive judgments in the same proceeding ordering the husband, Larry Dean Debetaz, defendant in a prior separation judgment, to pay the wife, Pamela Teer Debetaz, ar-rearages cumulated by non-payment of alimony pendente lite and child support, and also casting the husband in contempt. We affirm the judgments in their monetary adjudications in part, with the modification indicated below, but reverse and set aside the contempt convictions.

By judgment dated February 20, 1981, a separation from bed and board was decreed between Mr. and Mrs. Debetaz, and Mr. Debetaz was ordered to pay $600.00 per month for support of the parties’ minor children and pay $200.00 per month alimony pendente lite.

Pursuant to a rule filed June 19, 1981, and tried on July 30,1981, the trial court in written reasons for judgment dated July 31, 1981, announced it was prepared to reduce child support to $375.00 per month and alimony pendente lite to $125.00 per month beginning August 1,1981, and directed that a judgment was to be prepared by either attorney and submitted within ten (10) days. No such judgment was ever submitted until finally a judgment was signed on December 2, 1981, giving effect to the July 31, 1981, reasons for judgment.

No alimony or child support payments were made by Mr. Debetaz for the months of August, September or October 1981.

Mrs. Debetaz filed a rule for contempt and arrearages on September 25,1981. The paragraph in the petition in rule filed by Mrs. Debetaz that dealt with arrearages was the following:

“The defendant in rule, Larry Dean De-betaz, was ordered by this Court on July 31, 1981 to pay the sum of $500.00 per month as child support and alimony payable on the 1st and 15th days of each month beginning August 1, 1981. Since the rendition of that judgment the defendant has failed and refused to make payments of child support and alimony pendente lite to the plaintiff. He is presently in arrears in the sum of $1,000.00.”

By judgment with reasons dated December 1,1981, the trial court found Mr. Debe-taz in arrears in child support and alimony in the sum of $2,400.00, ordered him to pay $800.00 attorney’s fees, found him in contempt of court and ordered him to pay a fine of $500.00 and to be confined to jail for a period not to exceed six months or until the amount of the judgment was paid.

The judgment with reasons stated that the combined sum of alimony and child support remained at $800.00 per month, as the July 31,1981, reasons for judgment had never been reduced to a formal judgment.

On December 2, 1981, as wfe have indicated, a judgment was signed based on the July 31, 1981 reasons for judgment, reducing combined child support and alimony, beginning December 1981, to $500.00 per month. Mr. Debetaz was also ordered to pay one-half the expenses of the birth of Mr. and Mrs. Debetaz’s child, whose birth was expected shortly, the expenses to be paid within fifteen days of the presentation of a photocopy of expenses to Mr. Debetaz's attorney.

Thereafter, although the wife disputes the full sum, it appears that Mr. Debetaz paid the sum of $2,325.00 in continued alimony and child support for the months of November 1981, December 1981, January 1982, and February 1982, thus paying $25.00 more than was due, the husband being obligated to pay $800.00 a month for November and $500.00 a month for the remaining three months.

On December 22, 1981, the wife filed a separate rule for contempt and arrearages, seeking to have the husband held in contempt for alleged non-payment of November and December alimony and child support, which she alleged had not been paid, for which alleged non-payment she sought to have the husband again held in contempt. Also, she sought medical expenses. The paragraph alleging non-payment is as follows:

“Plaintiff alleges that no payment for November ($800.00) and December ($500.00) nor any payment for medical expenses ($2,085.50) for the children as a result of of (sic) defendant’s failure to provide hospitalization and medical insurance to cover the children and Mrs. Debe-taz, has been made. Defendant is in arrears in the total sum of $3,385.50 and plaintiff in rule asks that he be ordered to pay $3,385.50 and said amount be made executory.”

The trial court in written reasons found that the husband was in arrears, and imputed the payments for November, December and January in the sum of $1,825.00 to the prior arrearage of $2,400.00, stating that under law the payment must be imputed to the earlier obligation. Judgment was signed on March 23, 1982, giving effect to these reasons for judgment. Also, in the March 23, 1982, judgment, Mr. Debetaz was ordered to pay Mrs. Debetaz a sum representing the combined sums of (1) alleged arrearages and (2) the whole of the expenses connected with the birth of the child who had recently been born, the combined total being $4,605.71. Mr. Debetaz was found in contempt and ordered to pay a fine of $150.00 and to be incarcerated for six months, and Mr. Debetaz was ordered to pay additional attorney’s fees of $800.00.

The appellant, Mr. Debetaz, filed an exception of no cause of action on appeal. We find this exception to have been properly filed, but to be devoid of merit.

First, we should note that the initial fine and both jail terms meted out for contempt were clearly excessive. For non-payment of alimony, the maximum term of imprisonment is 30 days and the maximum fine is $250.00. LSA-R.S. 13:4611(A)(4) Rosselli v. Rosselli, 352 So.2d 370 (La.App. 4th Cir.1977).

However, it further appears that the trial court was in error in holding the husband, Mr. Debetaz, in contempt at all. A contempt proceeding is a quasi-criminal proceeding in which the instances of noncompliance with the court’s rulings must be correctly, precisely and explicitly set out, so that, to borrow the language of criminal law, the party cited for contempt may know the nature of the charges against him. Wall v. Wall, 225 So.2d 47 (La.App. 1st Cir.1969). In the present case, it is clear both rules for contempt were defective. The first, which culminated in the December 1, 1981, judgment, alleged that Mr. De-betaz had been ordered to pay $500.00 per month on July 31, 1981, and that he had become $1,000.00 in arrears. This assertion is imprecise as to the dates of non-payment, and, moreover, is founded upon the erroneous premise that the July 31, 1981, reasons for judgment constituted a formal judgment of court. They did not, as the trial court correctly stated in finding Mr. Debe-taz to be in arrears, in judgment with reasons dated December 1, 1981. The judgment with reasons properly based arrearag-es and the contempt judgment upon the $800.00 per month February 1981 judgment because the July 31, 1981 reasons for judgment had never been reduced to judgment and were, thus, without formal effect. The petition in rule was founded upon the $500.00 per month sum, which had never been reduced to judgment. Thus, the petition in rule culminating in the December 1981 judgment was defective as it set forth the wrong amount. Mr. Debetaz was not precisely or correctly informed of the charges against him. He was, therefore, improperly held in contempt based upon an arrearage sum which differed from the sum set forth in the rule for contempt.

The petition in rule culminating in the March 23, 1982 judgment is in error. It recites that Mr. Debetaz has made no payment for November ($800.00) or December ($500.00) nor any payments for medical expenses ($2,085.50) and is thus in contempt. The sum relating to medical expenses was not precisely proven at trial on the rule in our opinion and thus was not a basis for holding Mr. Debetaz in contempt. Mr. De-betaz did make payments for November and December as was proven at trial on the rule (as well as for January and February the evidence reveals), but the trial court imputed the November, December, and January payments to the $2,400.00 prior arrear-age (and found no payment had been made for February, with which holding we do not agree). Thus, the petition in rule was in error in stating no payment was made for November or December, and the contempt holding based upon this erroneous assertion must be reversed and set aside.

Clearly Mr. Debetaz is in arrears in the sum of $2,400.00 (the amount due for August, September and October 1981) plus $2,300.00 (the amount due for November, December 1981 and January and February 1982) less $2,325.00 (the amount paid). We find the evidence preponderates that a February 1982 payment was made, for Mr. De-betaz testified he paid the sum and payment was disputed only in argument of counsel. Whether the November, December, January and February payments are imputed against the sums due for August, September and October or whether the payments are imputed to the then current obligations for November, December, January and February makes no difference; the result is still the same. Mr. Debetaz is in arrears and he owes $2,375.00 in arrearag-es.

Part of the medical expenses of giving birth to Mr. and Mrs. Debetaz’s child, for which expenses the trial court rendered judgment, included an undifferentiated expense for a tubal ligation which surgical operation produces sterility. Clearly the expense of the tubal ligation is not any expense of childbirth. Furthermore, the trial court charged defendant, Mr. Debetaz, with the whole of the expense, when he was liable only for one-half the expenses of childbirth. The sum for the tubal ligation must not be included in the medical expenses attendant to the birth of the child, and the husband must pay only one-half the expenses of birth. The matter will be remanded to the trial court for a determination of the expenses of childbirth and the husband will be liable for one-half that amount.

Attorney’s fees and costs shall be awarded in an action to make past due alimony and child support executory. LSA-R.S. 9:305. Mr. Debetaz challenges the award of $800.00 attorney’s fees made in each of the two judgments appealed from. The trial court no doubt observed counsel for Mr. Debetaz in court and based its award upon the complexity of the matter, the degree of preparation required as well as time spent in court. Such a determination without proof of hours spent in working on the case is customary. Cf. Harris v. Bardwell, 373 So.2d 777 (La.App. 2d Cir.1979). We do not find any abuse of discretion on the part of the trial court in its award of attorney’s fees for the two proceedings.

Accordingly, judgment is rendered setting aside the adjudications of Larry Dean Debetaz to be in contempt of court contained in the judgments dated December 1, 1981, and March 23, 1982, and setting aside the fines and jail sentences imposed under each adjudication.

It is further ordered, adjudged and decreed that Larry Dean Debetaz is in arrears in alimony and child support payments in the sum of $2,375.00 and that judgment for this sum be made executory with legal interest from March 23, 1982.

It is further ordered, adjudged and decreed that Larry Dean Debetaz pay the sum of $800.00 attorney’s fees under the December 1, 1981 judgment, with legal interest from the date thereof, and the additional sum of $800.00 attorney’s fees under the March 23,1982 judgment with legal interest from the date thereof.

It is further ordered, adjudged and decreed that judgment for alimony and child support and medical expenses be reduced from the sum of $4,605.71, awarded under the March 23,1982 judgment, to the sum of $2,375.00 as indicated above with the stipulation that medical expenses of childbirth, without consideration of the expenses of the tubal ligation, shall be proven on remand.

It is further ordered, adjudged and decreed that the matter be remanded for purposes of establishing one-half the medical expenses of giving birth to the child, less the expenses of the tubal ligation.

Costs shall be borne equally by appellant and appellee.

AMENDED IN PART, REVERSED IN PART, AND REMANDED.

      . On the question of imputation of payments, see LSA-C.C. art. 2166; Leach v. Leach, 238 So.2d 26 (La.App. 1st Cir.1970).


author: ELLIS, Judge:

text:
    James Sidney WEBSTER v. Sharon Livingston WEBSTER.
    No. 15114.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    Charles R. Ryan, Houma, for plaintiff and appellee.
    Sharon Livingston Webster, in pro per.
    Before ELLIS, PONDER and SAVOIE, JJ.
   ELLIS, Judge:

This case having been submitted without oral argument, and appellant having neither appeared nor filed her brief, this appeal is hereby dismissed as abandoned, pursuant to Rule 7, Section 5(b) of the Uniform Rules of the Courts of Appeal.

APPEAL DISMISSED.


author: COLE, Judge.

text:
    AMERICAN AGENCY UNDERWRITERS, INC. and Equity American Insurance Management, Inc. v. ROGER WILLIAMS INSURANCE COMPANY and Regal Insurance Company.
    No. 15115.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    Alfred W. Speer, Baton Rouge, for plaintiffs-appellees, American Agency Underwriters, Inc., and Equity American Ins. Management.
    Salvador Anzelmo, and William A. Glen-non, Jr., New Orleans, for defendant-appellant, City of New Orleans.
    Hubert Vondenstein, Gretna, for defendant-appellee, Parish of Jefferson.
    Gibson Tucker, Jr., New Orleans, for defendant-appellee, Regal Ins. Co.
    William H. Cooper, and Conrad S. Adkins, Baton Rouge, for defendant-appellee, J. Al. Amiss, Sheriff.
    John Mamoulides, and Abbott J. Reeves, Asst. Dist. Atty., Gretna, for defendant-appellant, The 24th Dist. Court.
    Norval J. Rhodes, Dist. Atty., Houma, for defendant-appellee, The 32nd Judicial Dist. Court.
    Before LOTTINGER, COLE and CARTER, JJ.
   COLE, Judge.

The issue presented here is whether or not a judgment rendered by one district court need be made executory before there can be garnishment pursuant to that judgment against a garnishee who is domiciled in another judicial district.

On August 25, 1980, the Civil District Court for the Parish of Orleans rendered judgment in a matter entitled American Agency Underwriters, Inc. and Equity American Insurance Management, Inc. versus Roger Williams Insurance Company and Regal Insurance Company, suit number 79-11603. The judgment was in favor of plaintiffs in the amount of $128,891.42 plus $19,333.71 for attorney fees. That judgment was made executory by judgment of the 19th Judicial District Court on November 25,1980, in a suit bearing the same title and numbered 241,836. The court also issued a Writ of Fieri Facias directing the Sheriff of East Baton Rouge Parish to seize defendants’ property.

Pursuant to the judgment of the 19th Judicial District Court, plaintiffs filed a petition for garnishment against the Treasurer of the State of Louisiana, Mrs. Mary Evelyn Parker, alleging she held certain property belonging to the defendants. The Treasurer answered interrogatories stating she held two certificates of deposit, belonging to defendants, totaling $100,000 in value. Thereafter, the district court ordered the Treasurer to turn over the property to the Sheriff of East Baton Rouge Parish. The certificates of deposit were sold to plaintiffs at a sheriff’s sale on October 7, 1981, for the sum of $66,666.68 plus costs and commission. The sheriff required plaintiffs to deposit $12,950 before giving them their bill of sale. This sum was necessary to satisfy twenty seizures made prior to plaintiffs’ seizure of the certificates.

The plaintiffs then filed a “Rule to Determine the Rank of Liens, Mortgages and Privileges.” They argued that of the twenty prior garnishment judgments only four (originating from the 32nd Judicial District) had been made executory in the 19th Judicial District and therefore only those four outranked plaintiffs’ judgment. Named as defendants were the State of Louisiana through John Mamoulides, District Attorney for the 24th Judicial District, and Nor-val J. Rhodes, District Attorney for the 32nd Judicial District. Also named were the City of New Orleans through City Attorney Salvador Anszelmo and the Parish of Jefferson through Parish Attorney Hubert Vondenstein.

The trial court agreed with plaintiffs and rendered judgment recognizing the validity of the seizures by the 32nd Judicial District and by plaintiffs. The court found the attempted seizures by the City of New Orleans, the Parish of Jefferson and the State of Louisiana (24th Judicial District) were invalid because of their failure to comply with the requirements of La.Code Civ.P. art. 2411, et seq. It was ordered the Sheriff of East Baton Rouge Parish turn over funds to the District Attorney of the 32nd Judicial District sufficient to satisfy the four seizures. The Sheriff was further ordered to turn over the remaining funds to the plaintiffs.

From this judgment the City of New Orleans and the State of Louisiana (24th Judicial District) have appealed.

In oral reasons for judgment the trial court noted in order for a judgment creditor to seize the judgment debtor’s property in the hands of a third person, the garnishment must be done in accordance with the pertinent Code of Civil Procedure articles (2411 et seq.). Of special interest is art. 2417 which reads as follows: .

“The procedure in garnishment proceedings under the writ of fieri facias in a court other than that which rendered the judgment shall be the same as if the garnishment were in the court where the judgment was rendered, except:
(1) The judgment must be made execu-tory in the court where the garnishment proceedings are filed, as provided in Article 2782; and
(2) The writ of fieri facias directed to the sheriff, constable, or marshal of the court where the garnishment proceedings are filed may be issued either by the court which rendered the judgment or by the court which made the judgment exec-utory.” (Emphasis added.)

Article 2781 of the Code of Civil Procedure allows judgments of one Louisiana court to be made executory in any other Louisiana court. The comments to this article shed light on the issue at hand.

“(b) Ordinarily the judgment rendered by another Louisiana court will be enforced through the writ of fieri facias authorizing the sheriff where the debtor’s property is located to seize and sell it under this writ to satisfy a judgment. (Citations omitted.) Hence, usually there is no necessity to make the judgment of another Louisiana court executory. There are two instances where it is absolutely necessary to make the judgment of the other court executory: (1) in garnishment proceedings under the writ of fieri facias, where the garnishee is domiciled in another parish, art. 2416 supra....”

The language of art. 2417 and the comment to art. 2781 make it perfectly clear: the judgment must be made executory in the judicial district in which the garnishment is to be effected. This was not done in this instance except for plaintiffs’ judgment and the four judgments originating from the 32nd Judicial District. The trial court correctly .held the others were invalid.

The only argument appellants make in their brief is that since the garnishee failed to object to the sufficiency or lack of citation and service and failed to object to venue, these objections were waived. We fail to see the relevancy of these arguments because the only issue in this case is the necessity of making a judgment executory. Neither venue nor service is an issue in this case.

For the foregoing reasons, the judgment of the trial court is affirmed. Costs in the amount of $223.06 are to be shared equally by the City of New Orleans and the State of Louisiana, through the District Attorney for the 24th Judicial District.

AFFIRMED.

      . The subject of the law suit was certain bail-bond forfeitures in which defendants were sureties.

      . One judgment was rendered by the 24th Judicial District Court, one by the 1st Parish Court of Jefferson and the remainder by the New Orleans Municipal Court. In all judgments the State Treasurer was named as garnishee. All judgments dealt with bail bond forfeitures.

      . Article 2416:
      “The venue of a garnishment proceeding under a writ of fieri facias is the parish where the garnishee may be sued under Article 42 or 77.
      “The venue of a garnishment proceeding under a writ of attachment or sequestration, in an action against a resident of the state, is any parish where the defendant may be sued.”


author: EDWARDS, Judge.

text:
    James A. COOPER v. KEYES OFFSHORE, INC., Midland Insurance Company and William Yager.
    No. 15125.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.

      David W. Robinson, Baton Rouge, for plaintiff-appellee.
    William E. Wright, David B. Lawton, New Orleans, for defendants-appellants.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   EDWARDS, Judge.

Plaintiff, James A. Cooper, brought this action under the Jones Act, 46 U.S.C.A. § 688, and general maritime law for injuries which he sustained while working as a roughneck aboard the Keyes Rig No. 150, a jack-up oil drilling rig located off the shore of Louisiana in the Gulf of Mexico. Named as defendants were Keyes Offshore, Inc., owner of the rig and plaintiffs employer; Midland Insurance Company, Keyes’ liability insurer; and William Yager, employed by Keyes as a tool pusher on the rig.

The district court rendered judgment in favor of plaintiff and against Keyes and Midland in the sum of $183,529.00. Plaintiff’s suit against Yager was dismissed. Keyes and Midland have appealed, challenging the factual findings made by the trial court.

Our review of the record reveals the following facts. Cooper was hired as a roughneck by Keyes in March of 1980. Prior to that time, Cooper had worked as a roughneck for a previous employer for a period of approximately two months. The injuries which plaintiff sustained were the result of two accidents which occurred while he was working for Keyes.

On May 2,1980, Cooper sustained an injury while he was transferring drill pipe from the drill hole to an inclined ramp, located next to what is known as the “V-door.” This pipe was in sections thirty feet long and three and one-half inches in diameter. Plaintiff’s job was to attach a chain connected to an air hoist to the pipe so that it could be lifted from the “mousehole,” a hole located two to three feet from the drill hole. Once the chain was attached, the pipe would be raised by the air hoist operator. Once out of the mousehole, the pipe would swing over toward the ramp located at the V-door. Plaintiff would then push the pipe out so that it was suspended over the ramp and would guide it as the air hoist operator lowered the pipe. On the day of the accident, Cooper had positioned a section of pipe over the ramp and told the air hoist operator to lower it. According to Cooper, the operator lowered the pipe faster than usual. The end of the pipe struck the raised edge of the ramp and bounced to the right, jamming Cooper’s hand against a stanchion located at the edge of the ramp. When the accident occurred, plaintiff jerked his body in such a manner as to cause injury to his neck and shoulder.

The second accident occurred on June 27, 1980, while Cooper was engaged in a procedure known as “pulling slips.” A slip is a metal, wedge-shaped device which is inserted into the drill hole in order to hold the drill pipe in position when adding or removing pipe. The slip consists of three separate sections joined by two hinges so that it may be wrapped around the pipe and wedged into the drill hole. Each section of the slip has a handle on it. The slip being removed at the time of the accident was estimated to weigh from sixty to ninety pounds. As plaintiff and another crew member were removing the slip from the drill hole, plaintiff lost his balance and fell. Plaintiff landed on his back, aggravating the injury sustained in the previous accident.

On appeal, defendants challenged the factual findings made by the trial court. Defendants contend that the court erred in finding that Keyes’ negligence caused either of plaintiff’s accidents. Additionally, defendants maintain that it was error for the trial court to find plaintiff free from comparative negligence in the two accidents.

Since defendants’ appeal is directed toward the factual findings of the trial court, it is appropriate to set forth the standard of review in a case such as this. Appellate review of a case brought under the Jones Act and general maritime law is governed by Rule 52(a) of the Federal Rules of Civil Procedure. Kratzer v. Capital Marine Supply, Inc., 645 F.2d 477 (5th Cir. 1981).

Although Louisiana courts are constitutionally authorized to review both the law and the facts in civil cases, they may not under federal law and jurisprudence disturb the findings of the trial judge on the merits in such cases unless the findings of the trial judge are clearly erroneous. Melancon v. I.M.C. Drilling Mud, 282 So.2d 532 (La.App. 1st Cir.1973); Kratzer v. Capital Marine Supply, Inc., supra. In McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20 (1954), the United States Supreme Court gave the following explanation of the clear error rule:

“A finding is clearly erroneous when ‘although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ ’’ 348 U.S. at 20, 75 S.Ct. at 8.

A district court’s findings regarding negligence are treated as findings of fact reviewable under the “clearly erroneous” standard. Tucker v. Calmar Steamship Corporation, 457 F.2d 440 (4th Cir.1972).

Appellants urge that the clearly erroneous standard has no application in the instant case because the trial judge adopted the findings of fact and conclusions of law submitted by counsel for the plaintiff, except for quantum. Appellants contend that in light of this action by the trial judge this court is entitled to make an independent evaluation of the facts. See, e.g., Miller v. Smith, 391 So.2d 1263 (La.App. 1st Cir.1980), aff’d 402 So.2d 688 (La.1981).

As discussed above, the scope of review in this case is governed by federal law and jurisprudence. A number of cases in which the trial judge adopted findings submitted by prevailing counsel hold that nonetheless these findings are considered the trial judge’s findings and entitled to the weight mandated by the clearly erroneous rule. See Schwerman Trucking Co. v. Gartland Steamship Co., 496 F.2d 466 (7th Cir.1974), and the cases cited therein. In United States v. El Paso Natural Gas Co., 376 U.S. 651, 84 S.Ct. 1044, 12 L.Ed.2d 12 (1964), the United States Supreme Court stated, with regard to such finding:

“Those findings, though not the product of the workings of the district judge’s mind, are formally his; they are not to be rejected out-of-hand, and they will stand if supported by evidence.” 376 U.S. at 656, 84 S.Ct. at 1047.

Thus, since the scope of review in the instant case is the same as that applied in federal appellate courts, it follows that the preparation of proposed findings of fact and conclusions of law by participating counsel, and the adoption thereof by the trial judge, are entirely acceptable.

Having disposed of the procedural issues involved, we now turn our attention to the substantive issues. The Jones Act grants to any seaman a cause of action for personal injury caused by his employer. Plaintiff’s status as a seaman within the meaning of the Jones Act and his employment by Keyes are not in dispute.

Under the Jones Act, an employer’s negligence need not be the sole proximate cause of an injury to result in liability, but may merely be a contributing cause of the accident. Reyes v. Vantage Steamship Co., Inc., 558 F.2d 238 (5th Cir.1977); Spinks v. Chevron Oil Co., 507 F.2d 216 (5th Cir.1975). In Sanford Bros. Boats, Inc. v. Vidrine, 412 F.2d 958 (5th Cir.1969), the court declared:

“The question of proximate cause in an action under the Jones Act turns on whether the actions of the defendant contributed to the injury even in the slightest degree. Proximate cause is not destroyed merely because the plaintiff may also have contributed to his own injury.”

THE FIRST ACCIDENT

This accident occurred when plaintiff’s right hand was caught between the section of pipe he was guiding out over the ramp and a stanchion. Plaintiff testified that when he told the hoist operator to “slack off,” the operator lowered the pipe too fast. The pipe struck the ramp hard and bounced to the right, trapping plaintiff’s hand.

The evidence with regard to the pipe’s capability of moving fast was in conflict. Plaintiff testified that the pipe dropped quite suddenly. He had operated the hoist before and testified that the speed of the hoist could be varied depending upon how the control handle was pressed and that the hoist could be “free-spooled,” that is, the rate of descent controlled solely by use of the brake. Frank Godeaux, a tool pusher employed by Keyes, testified that the hoist had only one speed. Defendant’s occupational safety expert examined the hoist nearly one year after the accident and timed its rate of movement at thirty feet per minute. He testified that the hoist moved at only one speed and could not be free-spooled.

The trial court was presented with conflicting evidence relative to the possibility of the hoist moving at a faster than normal rate. The court accepted plaintiff’s testimony and concluded that the accident was caused by the pipe falling at a rapid rate of speed. We are unable to say that the trial court’s acceptance of plaintiff’s testimony was clearly erroneous.

THE SECOND ACCIDENT

Plaintiff’s second accident occurred when he fell while he and another crewman were “pulling” a slip, that is removing it from the drill hole. Defendants note that plaintiff failed to prove that there was any mud or other substance which caused him to slip. They contend that there was no proof of any negligence on the part of Keyes which caused plaintiff’s fall.

Stanley Day, plaintiff’s witness who was accepted by the court as an expert in the field of occupational safety, testified that the three-piece slip was designed to be handled by three men. According to Day, each man should hold one handle. He testified that it is an awkward procedure for two men to lift the three-piece slip and that the slip is likely to become unbalanced in the process. Additionally, Day testified with regard to a training manual published by the International Association of Drilling Contractors, of which Keyes is a member. A portion of that manual, dealing with the procedure for handling slips when removing pipe from the drill hole, was introduced into evidence. According to the training manual, three men are required to pull slips during such an operation. Furthermore, William Yager, who worked as a tool pusher in plaintiff’s crew, testified that ordinarily three men were assigned to pull slips when pipe is being removed, unless one of the men is not available.

Defendants’ safety expert, A.J. Scardino, testified that the three-handled slips could be handled by two men if each were to place one hand on the third handle. He did not believe that it was awkward or unsafe for two men to handle a slip. Scardino acknowledged that three men are occasionally assigned to pull slips, but maintained that the introduction of the third man is intended to prevent fatigue when frequent slip pulling is required.

Clearly, the trial court was presented with conflicting opinions of the two experts. The court chose to accept the opinion of plaintiff’s expert and concluded that Keyes was negligent in requiring two men to do a job which requires three men. On the evidence contained in the record, we are unable to say that the trial court’s finding was clearly wrong. Insufficient manpower assigned to a task may constitute negligence. Carleno v. Marine Transport Lines, Inc., 209 F.Supp. 859 (E.D.Va.1962).

COMPARATIVE NEGLIGENCE

In a Jones Act action, contributory negligence does not operate as a bar to recovery, but results in a reduction of plaintiff’s award commensurate with his proportion of fault. Tolar v. Kinsman Marine Transit Co., 618 F.2d 1193 (6th Cir.1980); Scott v. Fluor, 501 F.2d 983 (5th Cir.1974). In Spinks v. Chevron Oil Co., supra, a comparison between the duties of the employer and employee in a Jones Act case was made:

“The duty owed by an employer to a seaman is so broad that it encompasses the duty to provide a safe place to work. By comparison, the seaman’s duty to protect himself (the ground for any countervailing legal interest serving to exculpate the employer) is slight. His duty is to do the work assigned, not to find the safest method of work.” 507 F.2d at 223 (citations omitted).

If the first accident occurred in the manner related by plaintiff, which the trial court found that it did, there was no showing of any negligence on plaintiff’s part. Defendants argue that Cooper’s placement of the pipe to the far right of the ramp caused his injury. The record and the trial court findings do not support that assertion. The trial court found that this accident was caused by the failure of the hoist to operate properly or by the hoist operator’s negligence in letting the pipe drop too quickly. In either event, Keyes would be responsible. Plaintiff could not be expected to anticipate that the pipe would drop faster than normal. The position of the pipe had nothing to do with the fact that it dropped too quickly, struck the ramp and bounced over to smash plaintiff’s hand. The entire ramp is designed to accommodate drill pipe. No matter where plaintiff would have located it, the pipe would still have reacted as it did if lowered too rapidly.

Defendants contend that if the pulling of the slips by two persons was awkward, plaintiff could have overcome this by putting his free hand on the third handle. However, as noted in the excerpt from Spinks v. Chevron Oil Co., supra, the seaman’s duty is to do the work assigned, not to find the safest method of work. Furthermore, we note that plaintiff’s expert testified that if the two men used four hands on the three handles, it would increase the awkwardness of the procedure and make it difficult for them to bend their knees, increasing the strain on their backs. Consequently, we are not convinced that the four-handed method of pulling slips would be any less awkward than the two-handed method. Cooper was not at fault in using one hand to lift the slip.

We find no error in the trial court’s finding that plaintiff was free from any fault in the two accidents. The evidence in the record reveals no negligence on the part of Cooper.

DECREE

For the foregoing reasons, the judgment of the district court is affirmed. All costs of these proceedings, both trial and appellate, are to be paid by defendants-appellants.

AFFIRMED.

      .Fed.R.Civ.P. 52(a) provides, in pertinent part, as follows:
      “(a) Effect. In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon, and judgment shall be entered pursuant to Rule 58; and in granting or refusing interlocutory injunctions the court shall similarly set forth the findings of fact and conclusions of law which constitute the grounds of its action. Requests for findings are not necessary for purposes of review. Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.”

      . We note that at the beginning of trial, the presiding judge requested that counsel for each party submit proposed written judgments with facts, law and reasons in lieu of post-trial briefs. Only counsel for plaintiff complied with this request. Counsel for the defendants chose, instead, to submit a post-trial memorandum of law.

      . The Jones Act, 46 U.S.C.A. § 688, provides as follows:
      “Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located.”

      . Appellants maintain that their expert’s opinion is entitled to greater weight because of his superior education and experience. The record does indicate that defendants’ expert has more formal education in the field of occupational safety than does plaintiffs. However, we are unable to say that it was error for the trial court to rely upon the opinion of plaintiff’s expert, based as it was upon his forty years of work experience in the field of industrial and occupational safety and buttressed by the guidelines in the training manual of the International Association of Drilling Contractors.


text:
    Brenda LINER and Wayne Liner v. William PATRICK, et al.
    No. 15126.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    Lynn Lightfoot, Houma, for plaintiffs and appellants.
    William Bonin, New Iberia, for defendant and appellee.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   SHORTESS, Judge.

On May 12, 1976, at approximately 8:00 p.m., Brenda Liner (plaintiff) was a passenger on Wayne Liner’s (her husband) 1976 Harley Davidson motorcycle. They were proceeding in an easterly direction on Tunnel Boulevard near Voisin Street in Houma, Louisiana. Jeffrey Patrick, a minor, was operating a 1967 Chevrolet automobile, proceeding in a northerly direction on Voisin Street. Liner’s motorcycle collided with the left rear of the Patrick vehicle at the intersection of Voisin and Tunnel. The Liners brought suit against William Patrick (Jeffrey’s father), Offshore Painting Contractors, Inc., and Continental Insurance Company (defendants), for damages allegedly sustained as a result of that collision.

After trial, the trial court handed down written reasons for judgment, finding that the sole and proximate cause of the accident was Jeffrey Patrick’s negligence; that plaintiff sustained minor injuries consisting of general bruises and contusions but no permanent injury or disability. Specifically, it said:

“Although plaintiffs alleged more serious injuries and more lasting pain and immobility, plaintiffs failed to carry the burden of proof on these items.”-

The trial court awarded general damages in the sum of $1,500.00 and special medical expenses were found to total $422.79. Since Continental, without admitting liability, had paid $384.75 of the medical expenses, the difference of $38.04 was actually awarded.

The Liners have perfected this appeal solely on the issue of quantum. They articulate the issue presented on appeal to be:

“Whether the Trial Court erred in its finding of fact with relation to the severity of injury, the amount of damages and the amount of medical expenses.”

Defendants answered this appeal, contesting the trial court’s findings as to liability and the representative capacity of William Patrick, Jeffrey’s father. It is unnecessary for us to consider this answer, as the defendants have represented in brief that should we conclude that the trial court’s judgment as to quantum was proper, they would accept it as final and abandon their contest over liability. For reasons hereinafter set forth, we affirm the trial court.

Immediately after the accident, plaintiff was taken to Terrebonne General Hospital. Her testimony regarding her initial treatment was:

“Q What hospital did you go to?
A Terrebonne General.
Q And when did you go there?
A Immediately after the accident.
Q When you got to the hospital what happened?
A I was examined, X-rayed, different tests run on me, cheeking my blood and my urine, different — various tests.
Q Did you see any doctor there?
A Yes
Q What doctor did you see?
A The doctor that was on call at that time. I believe it was a Dr. Ellen-der.
Q Were you given any medication at that time?
A Pain medication.
Q Following the trip to the emergency room did you seek medical treatment?
A Yes. A few days after the accident I couldn’t stand the pain in my head or my hip any longer. So I called Dr. Warren who is my doctor and he wasn’t in. So I saw Dr. Cinnater. And then I returned again to see Dr. Warren the next day and they checked me out. He could see that I had various injuries, but he referred me to Dr. Pete Rhymes, because he could help me further.
Q Do you remember how long after the accident you saw Dr. Warren?
A Within a day or two.
Q You said that he referred you to Dr. Rhymes. Did you then see Dr. Rhymes?
A Yes.
Q When did you first see Dr. Rhymes?
A I really don’t know what day the appointment was, but it was very close to that time because I made it clear to them that I was hurting and I would like to be seen soon.”

Dr. Pete N. Rhyme’s testimony was taken by two depositions and introduced in lieu of his live testimony. He testified that he first saw plaintiff on October 21,1976. Dr. Dorsey Dysart, a neurologist and psychiatrist, saw plaintiff initially on December 14, 1977, and again on January 9, 1978. Dr. Russell C. Grunsten saw plaintiff for evaluation on behalf of defendants on December 12, 1977. Dr. William A. Martin, a neurologist, saw her on two occasions for evaluation on behalf of defendants, on May 16, 1978, and on October 6,1980. Dr. Homer D. Kirgis, a neurosurgeon, saw plaintiff on January 30,1980. The record contains depositions or reports from all these physicians. The in globo offering of medical bills shows nothing significant relative to plaintiff’s treatment for the five-month period after the accident, except the statement of Hou-ma Medical and Surgical Clinic which shows that the Liners were billed for an office visit by plaintiff to Dr. Cinnater on May 15, 1976; an office visit to Dr. Warren on June 29, 1976; and another office visit to Dr. Warren on July 14, 1976. This statement seriously conflicts with plaintiff’s testimony as set forth above, as does the fact that plaintiff’s initial visit with Dr. Rhymes was not until October 21, 1976.

The plaintiff bears the burden of proof and must show by a preponderance of the evidence that each and every element of her case is more probable than not. A reviewing court is under a strict duty to review the record. The entire medical record concerning plaintiff’s condition consists of the evidence as set forth above. That evidence, while somewhat ambiguous, indicated that plaintiff now suffers from cervical and low back problems. Dr. Dysart, after an elec-tromyogram on December 14, 1977, found evidence of cervical and lumbar radiculopa-thy in the C-8 to T-l level and at the L-4 to L-5 and S-l levels. His differential diagnosis was that there was either a crushed nerve or disc injury at the cervical level and that a discogram was warranted. His findings were a year and a half after the accident.

Defendants argue that the adverse presumption rule must be imposed because plaintiff failed to provide a sufficient explanation as to why her treating physicians did not testify. In addition to the physicians previously mentioned, the record also alludes to several others: Drs. Guidry, Matherne, Huncke, Steigler, Comeaux, Simon, and Cenac. Defendants cite Vidrine v. Sentry Indem. Co., 341 So.2d 558 (La.App. 3rd Cir.1976), writ denied, 343 So.2d 202 (La.1977), wherein the court held:

“... when the plaintiff is unable to provide a sufficient explanation as to why a treating physician’s testimony is not introduced, it is presumed that such testimony would be adverse to plaintiff’s cause.”

341 So.2d at 561.

When considering whether to apply the adverse presumption, the trial court must consider all the circumstances and facts of the ease, as the adverse presumption may be overcome by other evidence. See Theriot v. Transit Casualty Company, 265 So.2d 845 (La.App. 3rd Cir.1972), writ denied, 267 So.2d 211 (La.1972), where direct testimony of another physician was sufficient to avoid the adverse presumption for failure to call a physician who had examined a plaintiff before and after an accident. See Harney v. Kountz, 218 So.2d 913 (La.App. 4th Cir.1969), writ refused, 253 La. 1093, 221 So.2d 521 (1969), where the failure of plaintiff to call two examining physicians was held not to give rise to the presumption because their testimony would not have brought to light anything that had not been brought out in other testimony. See Bag-ley v. Commercial Union Ins. Co. of New York, 216 So.2d 102 (La.App. 1st Cir.1968), where it was held that the adverse presumption would not be invoked when plaintiff had established his case by a preponderance of other competent testimony.

There is evidence that plaintiff presently has cervical and low back symptoms. There is no medical evidence to enlighten us as to what transpired during the five-month period from the accident until plaintiff’s initial visit to Dr. Rhymes. He treated her for many complaints, but primarily for a painful coccyx. In response to questioning, he was of the opinion that if trauma caused pain in the coccyx, he would expect the pain to manifest itself within a day or so after the trauma.

Plaintiff’s testimony reveals that she saw at least three physicians during this period, yet none were called to testify. We know that she went to Terrebonne General Hospital immediately after the accident, but its records were not introduced in evidence. LSA-R.S. 13:3714. Under these circumstances, where there was no evidence relative to plaintiff’s medical condition for the five-month period immediately after the accident, it was proper to invoke the adverse presumption against the plaintiff.

The trial court found that plaintiff failed in her burden of proof to establish anything more than temporary bruises and contusions; and it specifically held that nothing of a permanent nature was shown by a preponderance of the evidence. After a careful analysis of the entire record, we find that we are not in a position to say that the trial court was clearly wrong in finding no permanent injury or disability or serious injury with lasting pain and immobility. Its finding that plaintiff suffered minor injuries consisting of general bruises and contusions was not clearly wrong. Its award of $1,500.00 in general damages and $38.04 in special damages was not an abuse of discretion. Its decision is affirmed at appellants’ costs.

AFFIRMED.