author: LOTTINGER, Judge.

text:
    Eldridge Mack WILLIAMS v. CINCLARE CENTRAL FACTORY and Liberty Mutual Insurance Company.
    No. 13962.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.
    Rehearing Denied March 16, 1981.
    Writ Refused May 1, 1981.

      Otha Curtis Nelson, Sr., Simmons, Nelson & Dunn, Baton Rouge, of counsel for plaintiff-appellant.
    Stephen W. Glusman, Glusman, Moore & Wilkinson, Baton Rouge, of counsel for defendants-appellees.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This is a workmen’s compensation suit. The issue is whether the plaintiff has substantial pain sufficient to classify him as totally and permanently disabled.

Plaintiff was injured on March 14, 1979. The medical testimony is in conflict. A number of medical doctors expressed opinions that the plaintiff could resume work, whereas a chiropractic doctor claimed that as of January, 1980, plaintiff was only 90 per cent well. A copy of the trial judge’s excellent written reasons for judgment discussing in detail the testimony of the various doctors is attached as Appendix A.

Plaintiff was paid workmen’s compensation benefits from the date of the accident through August 26, 1979. He returned to work on August 27 and continued working until October 2, 1979. On October 2nd he complained of severe back pain and has not worked since. The trial court declared plaintiff partially disabled from October 2 through October 18, 1979 and awarded benefits accordingly.

In appealing plaintiff contends the trial judge erred (1) in only finding the appellant partially disabled from October 2, 1979 through October 18, 1979; (2) in agreeing with the deposition testimony of Dr. John R. Clifford that Dr. Thomas Plantz’s deposition testimony was almost ludicrous; (3) in failing to award appellant attorney’s fees and medical expenses for services rendered by Dr. Thomas Plantz from November 16, 1979 to June 26,1980; and (4) in not granting appellant a new trial or allowing him to take the testimony of Dr. Thomas Plantz by way of proffer for appellate purposes.

ERROR NO. 1

The trial judge found that there was “very serious doubt that there may be a possibility the plaintiff suffered some pain from October 7, 1979 to October 18, 1979; therefore, the court will give the benefit of any serious doubt and hold that plaintiff was partially disabled from October 2, 1979 through October 18, 1979.”

In Lanieux v. Iberville Services, Inc. and United States Fidelity and Guaranty Company, 391 So.2d 1282 (La.App. 1st Cir. 1980) this court held:

“Whether the pain suffered by a workmen’s compensation claimant is substantial enough to be disabling is a question of fact to be decided by the trial judge. The decision depends upon an evaluation of the plaintiff’s credibility and upon the preponderance of medical and lay testimony. Findings of the trial judge on factual issues in a workmen’s compensation case are entitled to great weight and are not to be disturbed except on a showing of manifest error. Newell v. United States Fidelity & Guaranty Company, 368 So.2d 1158 (La.App. 3rd Cir. 1979) and cases cited therein; Guidry v. Ford, Bacon & Davis Construction Corp., 376 So.2d 352 (La.App. 3rd Cir. 1979); Farrar v. Guy Atkinson Company, 325 So.2d 893 (La.App. 2nd Cir. 1976).”

After a thorough review of the record, we find the trial judge to be neither clearly wrong nor manifestly erroneous.

ERROR NO. 2

In arguing this assignment of error, appellant discusses more the sufficiency of pain necessary to declare an employee disabled than the fact that the trial judge in essence completely disbelieved the deposition of Dr. Plantz. Appellant’s argument for this assignment of error is in essence the same as his argument for Error No. 1. It is the duty and responsibility of the trial judge to weigh the credibility of witnesses, and it is obvious that the trial judge simply did not believe the testimony of Dr. Plantz. We find no manifest error on the part of the trial judge and dismiss this assignment of error.

ERROR NO. 3

Since the trial judge correctly concluded that the plaintiff-appellant was only partially disabled to October 18, 1979, the trial judge was also correct in refusing to award medical expenses for services rendered by Dr. Plantz from November 16, 1979, to June 26, 1980.

Because of his findings on the merits, the trial judge was also correct in not finding appellees to be arbitrary and capricious so as to render them liable for penalties and attorney’s fees.

ERROR NO. 4

Appellant seems to rest this assignment of error on the contention that his counsel did not learn until after trial about Dr. Plantz’ treatment of appellant, and thus it was impossible for the doctor to be called as a witness. We note, however, that the trial judge makes reference to a deposition of Dr. Plantz, and obviously appellant’s attorney knew that this particular doctor was treating his client. Any evidence that Dr. Plantz could give was discoverable prior to trial, and thus no peremptory grounds exist for the granting of a new trial. La.C.C.P. art. 1972. In the absence of a peremptory ground for a new trial, the granting of a new trial is discretionary with the trial judge. La.C.C.P. art. 1973. There was no abuse of discretion in this regard.

Additionally appellant argues that he was denied constitutional equal protection because the trial judge refused to allow the transcribing of testimony in support of a new trial. We find no denial of any constitutionally granted right.

Therefore, for the above and foregoing reasons, the judgment of the trial court is affirmed at plaintiff-appellant’s cost.

AFFIRMED.

APPENDIX A

REASONS FOR JUDGMENT

Plaintiff, Eldridge Mack Williams, was injured while employed by Cinclare Central Factory on March 14,1979. Dr. Guy Otwell found that he had a sacrolumbar strain and sent him to Dr. Richard Bolton, orthopedic surgeon, on April 17, 1979 who by written report of April 24, 1979, concluded he thought the patient had an acute lumbo-sacral strain from which he will gradually respond. He saw no evidence from x-rays and examination of residual lumbar disc or nerve root compression.

Dr. Charles Greeson, radiologist, on March 29, 1979 also reported, “The vertebral bodies and interspaces are preserved. The pedicles appear to be intact. No fracture, subluxation or bone destruction is identified. The sacroiliac joints are normal in appearance. Normal study.”

Dr. John Robert Clifford, an experienced neurosurgeon, who treated Mr. Williams from June 6, 1979 for what he termed a mechanical type back pain, hospitalized him for a period of eight days where he was placed in traction and given physical therapy. On August the 2nd, Dr. Clifford found him capable of returning to work.

On October 12, 1979, Dr. Thomas B. Flynn, another neurosurgeon, found Mr. Williams was capable of resuming employment.

Again, on October 18, Dr. Clifford found plaintiff essentially normal and capable of working. In an examination on March 14, 1980, Dr. Clifford found his back examination was entirely normal and he had no organic basis for any of his complaints and he felt he was capable of employment with no restrictions and he attached no disability to his findings and felt he should be encouraged to return to his former occupation as soon as possible.

Dr. John Fraser, an experienced orthopedic surgeon, took x-rays and examined Mr. Williams November 21, 1979 and concluded that plaintiff should be able to return to any type of work because the clinical findings were normal. He could find no abnormalities.

Dr. Richard Moon of Plaquemine also treated the plaintiff and based his conclusions on that of Dr. John Fraser.

A psychiatric evaluation by Dr. L. Wade, psychiatrist, on February 21, 1980 showed Mr. Williams to be alert and well oriented in all spheres and his intelligence was estimated as average. The psychiatrist was of the impression that Mr. Williams was malingering and clearly was not psychotic.

Dr. Thomas Charles Plantz, a chiropractor, who first treated the plaintiff on November 16, 1979 and through the months of November and December of 1979 and January of 1980 claimed that he was ninety percent well at the end of said treatment.

Dr. Clifford, by his deposition, stated that the findings and testimony of the chiropractor was almost ludicrous. Although the organ of the Court has great respect for chiropractic and has been treated many times by chiropractors, definitely agrees with the above opinion by Dr. Clifford.

Mr. Williams was paid workmen’s compensation from the date of the accident through August 26,1979 and he reported to work on August 27, 1979 and worked until October the 2nd, 1979. On October 2nd he complained of severe back pain and was taken home from work and he hasn’t worked since that date. Though all of his doctors found him capable of returning to work except Dr. Plantz, all as heretofore discussed, none of the doctors other than Dr. Plantz found any causes or reasons for the subjective complaints of pain by the plaintiff on and after August the 2nd. Furthermore, the Court questions the medical and surgical expertise, knowledge and credibility of Dr. Plantz because of his deposition of record in these proceedings.

Jennings v. Haliburton [Halliburton] Co., 346 So.2d 268, 270, 271 [La.App. 4th Cir. 1977] provides:

“... It is the duty of the trial judge to evaluate the testimony of all the witnesses, both lay and medical. After making such an evaluation, he may accept or reject the opinion expressed by any medical expert, depending on how impressed he is with the qualifications, credibility, and testimony of that expert. In short, the trial judge is obliged to evaluate testimony of a medical witness according to the same rules applicable to other witnesses.” P-270.
“The trial judge rendered extensive reasons for judgment, the nexus of which is that he simply did not believe the plaintiff’s testimony or believe that the plaintiff was disabled after March 1, 1974.” P-271. Also see Canter v. Koehring Co., (SCT), 283 So.2d 716, 724 IV [La.1973].

Though there is very serious doubt there may be a possibility the plaintiff suffered some pain from October 7, 1979 to October 18,1979; therefore, the Court will give the benefit of any serious doubt and hold that plaintiff was partially disabled from October 2, 1979 through October 18, 1979. Because of this he is entitled to recover sixty-six and two thirds percent of the difference between the wages the employee was earning at the time of the injury and any lesser wages which the injured employee actually earned. R.S. 23:1221. If he earned no wages during this period judgment will be rendered for sixty-six and two thirds percent of the wages he was earning at the time of the injury plus legal interest from date of judicial demand until paid and all costs of Court.

Where there is a bona fide dispute between the medical authorities as to whether the plaintiff was disabled the employer has probable cause to refuse to pay workmen’s compensation benefits and is not liable for penalties or attorney’s fees as the refusal to pay was not arbitrary and capricious. Swa-ney v. Marquette Gas Co., 139 So.2d 74 [La.App. 4th Cir. 1962]; Sykes v. Stout Drilling Co., 124 So.2d 200, 205 [La.App. 2nd Cir. I960]; Cole v. Sears Roebuck and Co., 337 So.2d [900] 902 [La.App. 3rd Cir. 1976]. Therefore, the claim for penalties and attorney’s fees will be dismissed.

Plaintiff was employed at $3.75 per hour when injured and also from August 27,1979 to October 2, 1979; therefore, he has no claim for the latter period even though there may be a possibility of proving partial disability under R.S. 23:1221 as heretofore discussed.

“We interpret the definition of partial disability to mean that if an injured employee is unable to perform his usual customary occupation but can engage in some other gainful employment for which he is fitted by education, training and experience he is only partially disabled.” Kilbourne v. Armstrong, 351 So.2d 378, 381 [802, 805] [La.App. 1st Cir. 1977].

In Conlay v. Houston General Insurance Co., 370 So.2d 196, 200 [La.App. 3rd Cir. 1979] the Court held:

“.. . If plaintiff will experience substantial pain in all types of employment, he should be considered totally disabled; if, however, he can work in some position without experiencing substantial pain, he is only partially disabled.”
“... The trial court’s favored position in seeing and hearing live witnesses is especially important when the factual determination involves a concept as subjective as pain. Colorful inflections and subtle nuances given to spoken and physical expressions describing the degree of pain simply do not come out in the black and white transcriptions of testimony contained in the appellate record.”

Certainly plaintiff failed to prove any substantial pain whatsoever for this period.

Plaintiff has the burden of proving his case beyond mere speculation and by a preponderance of the evidence both as to disability and proof of accident. White v. Freeport Chemical, 317 [319] So.2d 563 [La. App. 4th Cir. 1975]. Mr. Williams has definitely failed to prove any disability whatsoever subsequent to October 18, 1979.

The Court understands that all doctor bills with the possible exception of Dr. Plantz have been paid in full. Dr. Plantz first saw Mr. Williams November 16, 1979 after the other doctors had found plaintiff fully capable of returning to normal duties with no substantial pain whatsoever resulting from injuries received while employed by defendant.

The Court agrees with their conclusions and is of the definite opinion the services of Dr. Plantz were not proven necessary, nor were his services of benefit to plaintiff for any injury received while he was employed by the defendant. Therefore, the Court concludes any claim for payment of Dr. Plantz’ services will be dismissed. Butts v. Insurance Company of North America, 352 So.2d 745 [La.App. 3rd Cir. 1977]; Demp-ster v. Gutter Hebert Company, Inc., 350 So.2d 929 [La.App. 4th Cir. 1977]; Guillory v. Liberty Mutual Insurance Company, 223 So.2d 413 [La.App. 3rd Cir. 1969].

Furthermore, a close examination of the record discloses no proven medical expenses of Dr. Plantz in the record so no award can be rendered. Weigel v. New Orleans Board of Trade, 222 So.2d 592, 594 [La.App. 4th Cir. 1969] and Green v. Heard Motor Company, 71 So.2d 849, 852 [La.1954]. Judgment will be rendered in the sum of $75.00 for each doctor for his deposition.

Port Allen, Louisiana this 2nd day of May, 1980.

(s) David P. Kimball

DANIEL P. KIMBALL, JUDGE, DIVISION “A”


source: Caselaw Access Project

author: CULPEPPER, Judge.

license: Public Domain

text:
    Kenneth Dale RAINS, Plaintiff and Appellee, v. DIAMOND M. COMPANY et al., Defendants and Appellants.
    No. 8014.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1981.
    Rehearing Denied March 23, 1981.
    Writ Refused May 1, 1981.

      Davis & Simmons, Kenneth N. Simmons, Many, for plaintiff-appellee-appellant.
    Raggio, Cappel, Chozen & Berniard, Richard A. Chozen, Lake Charles, for defendant-appellee.
    Allen, Gooch & Bourgeois, Arthur I. Robi-son, Lafayette, for defendant-appellant-ap-pellee.
    Before CULPEPPER, GUIDRY and CUTRER, JJ.
   CULPEPPER, Judge.

Kenneth Dale Rains brings this action under the Jones Act, 46 U.S.C.A. Sec. 688 and General Maritime Law against Diamond M Company, his employer, for injuries sustained while working as a roustabout on a semi-submersible drilling rig located off the shore of Louisiana in the Gulf of Mexico. Joined as parties defendant are Marathon Oil Company, the company for whom the drilling operations were being performed, B. J. Hughes, Inc., furnisher of certain equipment on the rig, and Bobby Painter and Ricky Greer, two Diamond M employees.

The claim against defendant Ricky Greer was dismissed on a motion for directed verdict after presentation of plaintiff’s case. After trial, the jury returned a verdict in favor of plaintiff and against the defendants, Diamond M, Marathon, and Bobby Painter for the sum of $350,000. Negligence was apportioned 80% to Diamond M, 15% to Marathon and 5% to Bobby Painter. The jury rejected plaintiff’s claim against Hughes. Diamond M, Marathon and Bobby Painter appealed. Plaintiff answered the appeal, seeking an increase in the award from $350,000 to $950,000, and judgment against B. J. Hughes, Inc. as well.

There are several issues: (1) Was the evidence sufficient to prove negligence on the part of Bobby Painter, foreman for Diamond M? (2) Can Bobby Painter, plaintiff’s co-employee, be liable under the Jones Act? (3) Is Marathon liable, either under the Jones Act or General Maritime Law? (4) Is B. J. Hughes, Inc. liable? (5) Was plaintiff contributorily negligent? (6) Was the damage award excessive? (7) Were excessive costs taxed against defendants? (8) Were excessive expert witnesses’ fees assessed against defendants? (9) Did the trial court err in refusing to allow evidence of false answers by jurors on voir dire at the motion for a new trial and also in refusing to grant a new trial?

GENERAL FACTS

The Diamond M rig, known as the “Century”, was located approximately 130 miles off the coast of Louisiana in the Gulf. Pursuant to an offshore drilling contract entered into with Marathon, Diamond M furnished the drilling vessel, equipment and necessary personnel for drilling operations. The contract further provided that Diamond M had the authority to control and direct the details of the work. However, Marathon had personnel on board the Century during the drilling.

Plaintiff, 22 years of age, had been employed by Diamond M for approximately eight months. On the date of the accident, he was a member of a crew on the Century engaged in placing a casing hanger into an opening in the drill floor deck, known as a rat hole. The casing hanger, a hollow tube-like structure approximately six feet long and 13 inches in diameter, and weighing several hundred pounds, was hooked to a crane cable by the crew. The cable was run through the center of the casing hanger and attached to the end with a hook. Bobby Painter, operator of the crane located about 70 feet from the rat hole, lifted the casing hanger and moved it toward the hole. Plaintiff and other members of the crew directed Painter by hand signals and guided the casing hanger into the rat hole as it was being lowered by Painter. A problem developed when the casing hanger would not completely lower into position due to an obstruction in the hole. Painter raised the hanger a few inches and let it drop several times by its own weight. When this failed, the crew directed Painter to raise the casing hanger out of the rat hole. As the hanger was almost completely out of the hole, the hook somehow came loose from the bottom of the casing hanger. The casing hanger fell upon plaintiff, causing him severe injuries.

NEGLIGENCE OF BOBBY PAINTER AND DIAMOND M

We recognize at the outset our limited role in reviewing the sufficiency of the evidence. Although this court is constitutionally authorized to review both the law and the facts in civil cases, under Federal Law and jurisprudence, which we must follow in cases applying Federal statutes, the jury’s finding of fact cannot be disturbed by an appellate court unless there is no reasonable evidentiary basis for the jury’s conclusions. Trahan v. Gulf Crews, Inc., 260 La. 29, 255 So.2d 63 (1971) and cases cited therein.

The Jones Act grants to any seaman a cause of action for personal injury caused by negligence of his employer. 46 USCA, Sec. 688. Plaintiff’s status as a seaman within the meaning of the Jones Act is not disputed. Also, there is no dispute that plaintiff was employed by Diamond M at the time of the accident.

As plaintiff’s Jones Act employer, Diamond M was under a duty to provide plaintiff with a reasonably safe place to work. Spinks v. Chevron Oil Company, 507 F.2d 216 (5th Cir. 1975). This broad duty is such that if plaintiff can show his injuries were the result of even the slightest negligence of his employer, liability follows. Davis v. Hill Engineering, Inc., 549 F.2d 314 (5th Cir. 1977).

Defendants argue plaintiff has failed to prove his injuries were caused by the negligence of any party. They offer no explanation for the cause of the accident. Defendants point to evidence that the procedure followed in installing the casing hanger had been used several times in the past by this same crew without mishap. Essentially, defendants argue it was an unavoidable accident, and that no one was negligent.

In its brief, Diamond M emphasizes the lack of evidence to pinpoint the exact cause of the hook becoming disengaged from the bottom of the casing hanger. Bobby Painter and the members of the crew who were at the rat hole testified that as Painter raised the casing hanger to a position where its bottom was about flush with the top of the rat hole, the hanger fell and struck plaintiff. Plaintiff testified he was told after the accident by Bobby Painter that the hook on the end of the cable struck the top of the rat hole and “sprung out”. However, in previous deposition testimony, plaintiff stated he was told the hook bent. Under cross-examination at trial, plaintiff admitted he had no personal knowledge as to why the casing hanger fell. Arnold Ma-cAlexander, a member of the crew, testified that when the bottom of the casing hanger came flush with the top of the rat hole the hook sprang loose somehow. In his accident report, Bobby Painter stated that “the hook simply hung on the edge” of the rat hole and came off. But, during trial, Painter admitted this was speculation on his part.

Under the Jones Act, a jury verdict may be sustained when there is evidence from which a jury might reasonably infer negligence. Sanford Bros. Boats, Inc. v. Vidrine, 412 F.2d 958 (5th Cir. 1969). In the present case, there is evidence from which the jury could have reasonably inferred negligence by Painter, the foreman for Diamond M. In the first place, there is evidence that the procedure being used was not reasonably safe. James B. Bison, an expert drilling consultant, testified he was thoroughly familiar with the assembly of casing hangers and had frequently supervised their installation, but that he had never seen nor used the procedure employed at the time of the accident. He suggested two safer methods. One was to attach a handling tool to the top of the hanger and tie the cable to the handling tool. The other method was also a procedure for attaching the cable to the top of the hanger. Bison prepared a diagram of these procedures, which was filed in evidence and observed by the jury. From Bison’s testimony, the jury could have reasonably inferred the procedure being used by Diamond M was unsafe, that it was not customarily used in the industry, and that there were other safer procedures which Painter could and should have used.

Moreover, the evidence shows that Painter was in charge of the roustabout crew, that he had instructed the crew to use this procedure, and that they had used it several times before. If the procedure was unsafe, as Bison testified, then Painter was negligent in instructing the crew to use it.

Furthermore, the jury could have inferred that Painter was negligent in not taking sufficient precautions to see that the casing hanger would go down into the rat hole. Painter testified he did not measure the casing hanger and did not know that this rat hole had a false bottom which prevented the casing hanger from going all the way down.

We conclude there is sufficient evidence from which the jury could have inferred negligence by Painter, which negligence is of course imputed to his employer, Diamond M.

PAINTER’S LIABILITY

The jury found Painter was 5% negligent. This negligence is imputed to his employer, Diamond M, under the doctrine of respondeat superior. However, the jury’s verdict is in error insofar as it holds Painter personally liable. Under the Jones Act, an employee-employer relationship is essential to recovery. Spinks v. Chevron, supra. Thus, Painter, as a co-employee of plaintiff, could not be liable under the Jones Act. There is no contention that Painter is liable under General Maritime Law. Accordingly, the claim against Painter must be dismissed.

MARATHON’S LIABILITY

The question becomes more complex with respect to the liability of Marathon Oil Company. The negligence of Marathon was assessed by the jury at 15%. To prevail against this defendant under the Jones Act, plaintiff must prove Marathon was also his employer. While we recognize the possibility for a seaman to have more than one Jones Act employer, Spinks v. Chevron, supra, the evidence does not support such a finding in the present case.

This particular situation most frequently arises in the borrowed servant context. In order for plaintiff to be considered as an employee of Marathon, it would be necessary to show that Marathon exercised some form of control over plaintiff’s activities. See Ruiz v. Shell OH Company, 413 F.2d 310 (5th Cir. 1969). According to the testimony of several witnesses, Marathon had one or two employees on the Century on the day plaintiff was injured. Under the drilling contract, Marathon furnished equipment and personnel for certain services to be performed. However, we find no evidence of control or right to control by Marathon or its personnel of the job being performed by plaintiff at the time of the accident. To the contrary, all of the evidence shows that Diamond M was solely in control of this aspect of the job. We conclude there was no reasonable evidentiary basis on which the jury could have found that Marathon was plaintiff’s Jones Act employer. Thus, there can be no liability by Marathon under the Jones Act.

Nor do we find that Marathon could be liable under General Maritime Law. From his pleadings and brief on appeal, it is clear that plaintiff is relying solely on Jones Act negligence as the theoretical basis for his cause of action. Plaintiff does not contend that Marathon was either the owner or the operator of the vessel.

LIABILITY OF HUGHES

As we interpret the facts, the Diamond M crew was installing the casing hanger so that a piece of B. J. Hughes’ equipment could be attached to the top portion of the casing hanger, known as a Veteo head. It is undisputed that an employee of B. J. Hughes, Billy Griffin, was present while the Diamond M crew was installing the casing hanger. One crew member, Jerry Durr, testified that Griffin was supervising the operation. Other members of the crew testified that Griffin was not in charge but was merely lending a hand so that he could attach his tool after the casing hanger was in place. As with the case of Marathon, the requisite degree of control necessary for plaintiff to be considered a borrowed servant of the defendant, B. J. Hughes, is simply lacking. We find no error in the jury’s finding on .this issue.

PLAINTIFF’S CONTRIBUTORY NEGLIGENCE

The defendants alternatively contend that plaintiff’s right to recover damages for his injuries should be reduced due to his own negligence. They argue that plaintiff, as a lead worker, failed to insure that the casing hanger was properly attached to the cable, and that he was negligent in deciding to remove the casing hanger when it would not position properly. This argument is without merit. Plaintiff was performing his duty in the manner in which he had been instructed by Painter. Furthermore, even assuming plaintiff made the decision himself to raise the casing hanger, he could not have foreseen that the hook would spring loose. We find no error in the jury’s conclusion that plaintiff was not contributorily negligent.

SUMMARY OF LIABILITY

Since Diamond M is the only Jones Act employer, since neither Marathon nor Hughes is liable under the Jones Act or under General Maritime Law, and since the plaintiff is not contributorily negligent, Diamond M is solely liable for all of plaintiff’s damages.

EXCESSIVENESS OF THE JURY AWARD

Immediately following plaintiff’s accident, he was flown by helicopter to Morgan City. He had severe internal bleeding, causing him to go into shock. His spleen was surgically removed and his liver repaired. Plaintiff also sustained nine broken ribs, a punctured lung, and fractures of two lumbar vertebrae, the transverse processes of L3 and L4. Several days after the initial surgery, Dr. Askew performed an emergency operation to remove blood from the chest cavity. Plaintiff remained hospitalized for 19 days.

After returning home to recuperate, plaintiff began experiencing chest pains and nausea and was vomiting blood. He was admitted to the Schumpert Medical Center at Shreveport, where surgery was performed to remove his gallbladder, which had become infected. The hospital stay this time was 17 days. After he was released, he continued having gastric problems and was readmitted to the hospital. Diagnosis revealed that plaintiff had a severe bleeding ulcer, for which treatment followed. He was finally released from Schumpert six days later.

Dr. William Wilder, a specialist in gas-troenterology, testified that plaintiff’s gallbladder problems were the result of the injury to the liver. He was also of the opinion that plaintiff’s ulcer was due to the culmination of stress from his previous injuries and surgery.

Following his recuperation, plaintiff sought employment as a welder’s helper but soon began experiencing back pains. Dr. Zum Brunnen, an orthopedic surgeon, examined plaintiff for his back complaints. X-rays revealed the fractures of the two transverse processes. Dr. Brunnen testified that the bone fractures would never reconnect but would immobilize to a degree with scar tissue. Dr. Brunnen predicted that plaintiff would have a permanent problem with his back and would be unable to work as a roustabout or engage in any other occupation involving heavy manual labor. He did testify that plaintiff should be able to lead a normal life in terms of recreation and could do some moderate work.

Dr. Daniel Kingsley, also an orthopedist, gave plaintiff a more favorable prognosis. According to Dr. Kingsley, plaintiff would be able to return to his former job as a roustabout after undergoing certain physical rehabilitation therapy to loosen up the stiffness in his back.

Dr. Randolph Rice, an economist, offered testimony concerning lost wages. Using an income growth factor of 81/2%, which included inflation, Dr. Rice estimated plaintiff’s future wages, based on a 38.4 years work-life expectancy, to be $649,824. Subtracting projected future earnings at the minimum wage level, which plaintiff would probably earn in his disabled condition, Dr. Rice determined that the total future loss of wages would be $387,966.

Defendant contends it was error to include inflation as a factor in determining future wage loss. The rule in the Fifth Circuit, established in Johnson v. Penrod Drilling Company, 510 F.2d 234 (5th Cir. 1975), was that inflation and cost of living increases should not be used to determine future pecuniary losses due to the speculative nature of these factors. Recently, however, in Norfolk & W. Ry. Company v. Leipelt, 444 U.S. 490, 100 S.Ct. 755, 62 L.Ed.2d 689 (1980), these very factors were approved by the Supreme Court in the determination of future wage losses. This recent ruling of the Supreme Court is controlling.

Jury awards under Maritime Law and the Jones Act “must stand unless the appellate courts find there is no law and no evidence to sustain them, rendering them, as some courts have put it, so excessive as to be obviously punitive, motivated by prejudice, passion, partiality or corruption.” Trahan v. Gulf Crews, Inc., supra (255 So.2d at 70). In the present case, the total award fixed by the jury, including general damages for pain and suffering, was less than the projected loss of future earnings calculated by Dr. Rice. The jury apparently was not entirely convinced either by the testimony of Dr. Brunnen or Dr. Kingsley concerning plaintiff’s prospect of future employment. We have no doubt that plaintiff sustained grievous injuries as a result of the accident and underwent a lengthy and painful recuperation. In view of the conflicting medical testimony as to plaintiff’s prognosis and residual disability, however, we hesitate either to increase or decrease the awards by the jury. Under the law and evidence presented, we cannot say that the award was so low as to shock the conscience or so excessive as to be punitive.

The district court awarded plaintiff pre-judgment interest from the date of judicial demand. Appellants contend that interest should run only from date of judgment. We agree. Several federal decisions have denied pre-judgment interest in Jones Act claims brought on the law side. Barrios v. Louisiana Construction Material Company, 465 F.2d 1157 (5th Cir. 1972), Sanders Bros. Boats, Inc. v. Vidrine, supra. This court has also specifically ruled on this point. See Morris v. Trans-World Drilling Company, 365 So.2d 46 (La.App.1978). Accordingly, the trial judge was in error in including pre-judgment interest. Whether pre-judgment interest is allowed under General Maritime Law is not before us.

EXCESSIVENESS OF COSTS

Defendants-appellants contend the following items assessed against them as costs of court are either excessive or should not have been allowed:

“a. 1/15/80 Susan „ Flanary — Ct.Rep. (Pd. by &S) $ 249.50
b. 2/5/80 M & S Ct.Rep.Service (Pd. by D S) 21.70
c. 2/5/80 Womack Ct.Rep. (Pd. by D & S) 187.43
d. 3/24/80 Susan Flanary (Pd. by D & S) 249.50
e. 3/31/80 Dr. Fred L. Price (Pd. by D & S) 1,027.76
f. 3/31/80 Internal Med. Asso. (Dr. Langford & Wilder) (Pd. by D & S) 1,000.00
g. 4/1/80 Harrahan Rep. Service 358.11
h. 4/1/80 Jack L. Grindle 500.00
i. 4/1/80 W. M. Wilder 1,500.00
j. 4/1/80 Fred L. Price 1,527.76
k. 4/1/80 J. Randolph Rice (Pd. by D & S) 780.00
l. 4/1/80 James Bison 375.00”

The above list of costs to which appellants object is taken from the statement of costs totaling $12,769 mailed by the clerk of the district court to counsel for Diamond M on April 2, 1980, which was the same date that the judgment appealed was rendered and signed by the district judge. The clerk of court’s statement for costs is not part of the record before us. Counsel for Diamond M has attached a copy of the statement to his brief filed in this Court. On the statement, the notation “Paid by D & S”, apparently means that this item was paid by Davis and Simmons, attorneys for the plaintiff.

Appellants raise several serious questions concerning the above listed items to which they object. For instance, they state in their brief that the January 15,1980 charge by Susan Flanary in the sum of $249.50 and the March 24, 1980 charge by Susan Fla-nary for $249.50 are double charges for discovery depositions by five witnesses, and that only one of these depositions was introduced in evidence. Appellants point to the statute, LSA-R.S. 13:4533, and to jurisprudence, Parish v. Bill Watson Ford, Inc., 354 So.2d 727 (La.App. 4th Cir. 1978), that the costs of discovery depositions not used at trial may not be charged against the party cast.

Also, appellants raise a serious question as to the March 31, 1980, payments by plaintiff’s attorneys to Dr. Fred L. Price in the sum of $1,027 and to Internal Medical Association (Drs. Langford & Wilder) in the sum of $1,000. In their brief, appellants state this case was initially fixed for trial on February 6, 1980 but was continued and refixed for trial on March 24,1980, and that these two items represent the charges of Dr. Price and of Dr. Wilder respectively for time which they say they set aside on their calendars for the trial on February 6. Appellants say there was no trial on February 6, 1980, and they cite jurisprudence for the rule that no expert witness fee for a court appearance can be assessed as costs where no appearance by the expert at a trial took place. See Gaspard v. Aetna Insurance Company, 390 So.2d 243 (La.App. 3rd Cir. 1980) and State, Department of Highways v. Salemi, 193 So.2d 252 (La.1967).

Appellants also contend that some of the expert medical witness fees fixed by the trial judge in his judgment are grossly excessive, as for instance the April 1,1980 fee of Dr. Wilder in the sum of $1,500 and the April 1, 1980 fee of Dr. Price in the sum of $1,527. These two physicians are orthopedic surgeons who traveled from Shreveport to Many on the date of trial, but the record shows the trial was interrupted and they were permitted to testify when they arrived, and that their testimony required little or no preparation. These fees may indeed be excessive under LSA-R.S. 13:3666 which provides the criteria for fixing the amount of expert witness fees is “the value of time employed and the degree of learning or skill required.”

In the present case we do not have sufficient evidence in the record before us to determine the issues raised by appellants as to the costs to which they object. We faced a similar situation in State, Department of Highways v. Moresi, 189 So.2d 292 (La.App. 3rd Cir. 1966), where we held:

“[9] Often, for convenience and to avoid unnecessary repetition in court appearances, the amount and reasonableness of the expert’s fee is determined by their testimony at the time they testify on the merits. However, as provided by LSA-C. C.P. Art. 1920, costs “may be taxed by a rule to show cause” incidental and subsequent to the original proceedings. See Succession of Franz, 242 La. 875, 139 So.2d 216 and (related case) 236 La. 781, 109 So.2d 92; also, Foster v. Stewart, La.App. 1 Cir., 161 So.2d 334. In fact, in the jurisprudence prior to the enactment of the 1960 Code of Civil Procedure, there are expressions that in ordinary civil suits expert fees and other costs should be fixed by the subsequent rule to show cause rather than by the judgment on the merits. Daly v. Abramson, La.App. 2 Cir., 117 So.2d 772, 781 (syllabus 11); Randazzo v. Lucas, La.App.Orl., 106 So.2d 490, 496-97 (syllabus 11).
[10] Under all the circumstances, we think the interests of fairness will be served in the respect of court costs incurred by the landowner if we set aside the fixing of the expert fees by the trial court, in contemplation that same will be fixed by a rule to show cause if not agreed upon by the parties.”

In the present case also we think the interest of fairness will be best served if we set aside the fixing of the expert witness fees by the trial court and reserve to the defendant-appellant cast the right to file a rule to fix both the expert witness fees and all other costs to which the defendant cast objects and upon which the parties are unable to agree.

MOTION FOR A NEW TRIAL

Defendants, Diamond M, Marathon and Painter, filed a motion for a new trial, alleging that certain jury misconduct prevented these defendants from obtaining a fair and impartial trial. The complaint made by counsel for appellants is that based on an affidavit made by one of the jurors subsequent to the trial, counsel for these defendants became aware that two weeks before the trial one of plaintiff’s counsel had passed a mortgage and sale for the foreman of the jury. Defendants’ counsel also was informed that another juror was personally acquainted with plaintiff, while a third juror was related by marriage to one of plaintiff’s counsel. Although pertinent questions were directed to each prospective juror, none of these essential facts were elicited on the voir dire examinations.

At the hearing for a new trial, defendants’ counsel attempted to examine these jurors as to these matters. Relying on a recent Fourth Circuit decision, George v. Koehler, (La.App. 4th Cir. 1980), the trial judge refused to allow any testimony by these jurors.

In George v. Koehler, supra, the appellants contended that two of the jurors concealed on voir dire examination certain facts that would have led to possible challenges for cause and peremptory challenges. Although the nature of the information withheld by these jurors was not mentioned, the court found that the jurors did not clearly understand the extent of information to be given in response to the attorney’s questions. Referring to Article 775 of the Code of Criminal Procedure, which states that a mistrial may be ordered when false statements of a juror on the voir dire prevent a fair trial, the court concluded no injustice or prejudice resulted from the information withheld.

We are aware of the general rule which prohibits the admissibility of affidavits or other testimony of jurors to impeach their own verdict. Lachney v. Jones, 373 So.2d 595 (La.App. 3rd Cir. 1979), Washington v. Lake City Beverage, Inc., 352 So.2d 717 (La.App. 3rd Cir. 1977), Blan-dino v. Brown Erection Company, Inc., 341 So.2d 577 (La.App. 2d Cir. 1977). We agree with defendants that a distinction exists between impeaching the jury verdict and attempting to ascertain whether the jurors responded truthfully on voir dire. In this regard, we feel the trial judge should have admitted the testimony which may have indicated incomplete responses on voir dire. However, as in the George v. Koehler decision, we cannot say the information withheld necessarily precluded defendants from obtaining a fair and impartial trial. Our review of the record as a whole, including the voir dire examination, convinces us that the jurors based their verdict solely on the evidence presented rather than on extrinsic matters.

DECREE

For the reasons assigned, the judgment appealed is reversed in part, amended in part and affirmed in part as follows:

That portion of the judgment which finds Marathon Oil Company and Bobby Painter liable to the plaintiff is reversed and set aside, and it is now decreed that all of plaintiff’s demands against Marathon Oil Company and Bobby Painter be dismissed.

That portion of the judgment which apportions to Diamond M Company 80% of the negligence, to Marathon Oil Company 15% of the negligence and to Bobby Painter 5% of the negligence is reversed and set aside, and it is now ordered, adjudged and decreed that the defendant, Diamond M Company, is solely responsible for all damages suffered by the plaintiff.

That portion of the judgment which awards plaintiff legal interest on the sum of $350,000 from date of judicial demand until paid is reversed and set aside, and it is now decreed that legal interest on the sum of $350,000 be paid from the date of the judgment appealed herein until paid.

That portion of the judgment which fixes the fees of expert witnesses is reversed, and there is reserved to the defendant, Diamond M Company, the right to file within 30 days after this judgment becomes final a rule to show cause why the fees fixed by the district judge should not be reduced or disallowed, and in the absence of such a rule being filed by Diamond M within said 30-day period, the expert witness fees fixed by the trial judge are affirmed.

That portion of the judgment which assesses all costs against Diamond M Company, Marathon Oil Company and Bobby Painter in proportion to their negligence, is reversed and set aside, and it is now decreed that all costs in the trial court be assessed against the defendant, Diamond M Company, reserving however to Diamond M Company the right to file within 30 days after this judgment becomes final a rule to show cause why any of the costs assessed should not be changed or disallowed, but in the absence of Diamond M filing such a rule within said 30-day period, the costs assessed are affirmed.

Otherwise than as herein reversed or amended, the judgment appealed is affirmed. All costs of this appeal are assessed against Diamond M Company.

REVERSED IN PART, AMENDED IN PART AND AFFIRMED IN PART.


author: BOUTALL, Judge.

text:
    Evelyn SAUNDERS, Divorced Wife of Kenneth Lee Martin v. Anthony LOMONACO, Sr., et als.
    No. 11318.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 5, 1981.
    Rehearing Denied April 20, 1981.
    Gordon K. Konrad, Ferdinand M. Lob, Metairie, for plaintiff-appellee and defendant in reconvention.

      James O. Manning, Metairie, Lazard Levy, Marrero, Robert N. Clarke, Westwe-go, for defendants-appellants and plaintiffs in reconvention.
    Before BOUTALL, SCHOTT and SAR-TAIN, JJ.
   BOUTALL, Judge.

Evelyn Saunders, divorced wife of Kenneth Lee Martin, alleging that she is the owner of five lots of ground, brought suit against a number of individuals and corporations alleged to be predecessors in title, seeking a judgment reforming the description of those lots of ground and a judgment recognizing her as the true and lawful owner of the property and cancelling certain inscriptions of assumption of indebtedness. The trial court rendered judgment in her favor. This appeal was taken by some of the defendants, the heirs of Josephine and Anthony Lomonaco, Sr.

The main portion of the case is not reformation but the petitory action. The basic issues in this appeal are who bears the burden of proof and the sufficiency of proof presented. The issues are complicated by the apparent unavailability of proof, either through the death of a number of the persons involved or the unavailability of others who may possess some knowledge, but could not be presented for testimony. There is also the correlation between the plaintiff’s burden of proof in a petitory action and the defendants’ burden under allegations of fraud and simulation. In our resolution of these issues, we are aided by the fact that the appellants are not claimants under a diverse line of title, but they are the heirs and succession representatives of a predecessor in title to plaintiff. Thus, if the facts are that the Lomonacos have divested themselves of title to another of plaintiff’s predecessors, then plaintiff must prevail. If on the other hand, such divestiture is not proven, then the Lomonacos should prevail. See for example Aaron v. Pitts, 186 La. 116, 171 So. 713 (La.1936).

The documentary evidence in brief shows the following chain of title. Anthony Lo-monaco, Sr. owned a tract of ground which he developed into residential lots, a portion of that development being known as Lomo-naco Addition Subdivision, wherein these lots were located, Lots 1,2, 3, 4 and 5, Block # 6. Anthony Lomonaco, Sr. and his wife Josephine, transferred on March 4,1968 the property to Dino Development Corporation, which in turn transferred the property back to the Lomonacos on August 8, 1968. The Lomonacos subsequently on August 12,1968 transferred the property to Time Building Mortgage Company, Inc. with the assumption of two indebtednesses as consideration, and it is the validity of this act which is at the heart of this appeal. Time Building Mortgage Company, Inc. finally sold the property to plaintiff on July 30, 1974 for a consideration of $50,000 cash.

We set out that in brief, but the actual chain of title is much more complicated. The chain of title from the Lomonacos’ divestiture forward reeks of forgery, fictitious witnesses and parties to acts of sale and acts of correction, as well as forged notarial acts of incorporation. To show the chronological history of this property we relate the following in accordance with the evidence presented.

March 4, 1968 Sale by Anthony Lomo-naco, Sr. to Dino Development, Corporation by purported notarial act before Donald Ruiz, whose signature is a forgery.
March 4, 1968 Sale by Anthony Lomo-naco, Sr. and Josephine Tramonte to Dino Development Corporation by notarial act before Donald Ruiz, whose signature was forged.
June 7, 1968 Act of Mortgage of Dino Development Corporation in amount of $40,000 by act before Donald Ruiz, Notary Public. .
August 8, 1968 Sale by Dino Development Corporation to Anthony Lomona-co, Sr. by notarial act before Donald Ruiz.
August 12,1968 Act of sale and assumption from Anthony and Josephine Lo-monaco, Sr. to Time Building Mortgage Company, Inc. by notarial act before Donald Ruiz, whose name was forged. No one appears for Time Building Mortgage Company, Inc.
October 21, 1968 Sale by Dino Development Corporation to Time Building Mortgage Company, Inc. by act before Donald Ruiz, notary public, whose signature was forged.
November 4,1968 Articles of Incorporation of Time Building Mortgage Corporation by notarial act before Frank C. O’Halloran, notary public, who repudiates his signature as a forgery.
June 10, 1969 Sale by Anthony and Josephine Lomonaco, Sr. to London Dock Evergreen Corporation by act before Donald Ruiz, whose signature is a forgery. Evergreen Corporation is a nonexistent corporation and no one appears for it in the act.
August 14, 1969 Act of Correction by Anthony Lomonaco, Sr. and Dino Development Corporation by act before Donald Ruiz, whose signature is a forgery. One witness is ficticious and the signature of the other is a forgery.
August 14, 1969 Act of Correction by Dino Development Corporation and Anthony Lomonaco, Sr., et als. by act before Donald Ruiz whose signature is a forgery. One witness is ficticious and the signature of the other is a forgery.
August 14, 1969 Act of Correction of Anthony Lomonaco, Sr. to Sunrise Heights Housing Corporation by act before Donald Ruiz, whose signature is a forgery. Sunrise Heights is a nonexistent corporation and the witness Anne Carraway is a fictitious person.
August 14, 1969 Act of Correction by Dino Development Corporation to Time Building Mortgage Company, Inc. by act before Donald Ruiz whose signature is a forgery.
August 26, 1969 Act of sale by Time Building Mortgage Company, Inc. to Sunrise Heights Housing Corporation by act before Donald Ruiz, whose signature appears to be genuine but Sunrise Heights Housing Corporation is a non-existing Corporation.
May 31,1974 Act of sale by Time Building Mortgage Company, Inc. to Evelyn Saunders Martin by act before John C. Grout for $50,000 cash for the five lots in question, John C. Grout, notary public repudiating his signature and the original documents having been torn out of the records of the clerk of court in Jefferson Parish.
May 31,1974 Act of sale by Time Building Mortgage Company, Inc., to Evelyn Saunders Martin of six lots in Block 7 for $50,000 cash, before John C. Grout, Notary Public who repudiates his signature, and the original documents having been removed from the office of the Clerk of Court of Jefferson Parish.
July 30, 1974 Sale by London Dock Evergreen Corporation to Evelyn Saunders Martin by act before Louis E. Pou-ratore, Notary Public for six additional lots in block 7 for $15,000 cash. London Dock Evergreen Corporation being a non-existent corporation.
July 31,1974 Act of sale by Time Building Mortgage Company, Inc., to Evelyn Saunders Martin by act before Louis E. Pouratore of the five lots subject to this appeal for $50,000 cash.

We feel it necessary to recite the above because both Anthony Lomonaco, Sr., and his wife Josephine are deceased, and because Donald Ruiz, the notary public involved in most of the acts, is also deceased. Involved in nearly all of these transactions in one manner or another were Mona Thomas, also known as Mona Ruiz, wife of Donald Ruiz, and Maureen Prince, both of whom were legal secretaries to Donald Ruiz; Evelyn Saunders Martin was also a secretary to Donald Ruiz at one time and was well acquainted with Maureen Prince who, from the evidence presented seems to be most involved in the production of these later forged notarial acts and fictitious entities. She was also acquainted with Mona Thomas Ruiz, who appears to be most involved in the earlier forged documents, etc.. At the same time we point out that there is no direct evidence which links Evelyn Saunders Martin with the responsibility for any of the forgeries, etc. We do note that she is unable to produce any evidence of having paid the stated considerations other than her bare statement that she kept some $50,-000 in cash hidden in a box in her home, despite the fact that she had never made a Federal Income Tax Return for the years 1972 through 1976.

With the above facts before us, we consider the burden of proof imposed upon the petitioner in a petitory action to prove title. Code of Civil Procedure Article 3653 provides as follows:

Art. 3653. Same; proof of title
“To obtain a judgment recognizing his ownership of the immovable property or real right, the plaintiff in a petitory action shall:
“(1) Make out his title thereto, if the court finds that the defendant is in possession thereof; or
“(2) Prove a better title thereto than the defendant, if the court finds that the latter is not in possession thereof.”

In the present case, the defendants are not in possession of the property, and plaintiff’s burden is to prove a better title than the defendant-appellant. As we have noted above, this resolves itself into a question of whether plaintiff has borne the burden of proving that defendant has divested himself of title. If he has, then plaintiff’s title, although voidable as to others, is better than the complete lack of title occasioned by appellants’ divestiture of title. We find that plaintiff has not borne that burden of proof.

Civil Code Article 2440 provides that all sales of immovable property shall be made by authentic act or under private signature. The authentic act, defined in Civil Code Article 2234, is full proof of the agreement contained in it, Civil Code Article 2236, but it has been proven that the act of sale and assumption by which the Lomo-nacos are alleged to have disposed of their property was not authentic, that the signature of the notary was a forgery. This being the case, the act may still have effect as a private writing, Civil Code 2235, but of course it is no longer full proof of the agreement. As we have mentioned, there is a total lack of proof from either party as to the true facts of that document, except that it is stipulated that the signatures of the Lomonacos are genuine. Mere confession that the signatures are genuine does not prove that there was a valid agreement between the parties. The consideration for the sale is the assumption of the indebtedness in the amount of $55,000, and despite the fact that the document recites that Time Building Mortgage Company, Inc. is “here present accepting and purchasing for its successors and assigns, acknowledging due delivery and possession thereof,” that corporation does not appear as a signatory to the act of sale, this despite the fact that attached to the act is what purports to be a resolution of the corporation directing one Andrew Mourginnis to execute the document. Noteworthy is the fact the secretary of that corporation certifying to the minutes is Maureen Prince, who appears in nearly every one of the questioned documents above enumerated. Absent the forged signature of the notary, we then have one party saying that it sells the property, but we have no purchaser who signs making itself responsible for the payment of the purchase price, i. e. the assumption of the indebtedness.

The indebtedness assumed was of two separate debts. One was the assumption of the balance of a collateral mortgage dated June 7, 1968 in the sum of $40,000 executed by Dino Development Corporation. As to that indebtedness the act strangely enough, after providing for the assumption of that balance, contains an acknowledgment that a similar $40,000 mortgage note dated March 4, 1968, based on a notarial act of that same date, has been paid and cancelled. The signatures of the notary, both in the March 4 act and the act of cancellation, are forgeries, as are at least one of the witnesses. An examination of the note shows only a paraph identifying it with the collateral mortgage of June 7, 1968. It does not contain a paraph or any other identification with August 12, 1968 act of sale and assumption.

The second indebtedness was of a $15,000 promissory note executed by Anthony Lo-monaco, Jr. and co-signed by Anthony Lo-monaco, Sr. in favor of the First National Bank of Jefferson Parish, Gretna, Louisiana, dated November 23, 1966. The evidence shows no such note to ever have been in existence or such indebtedness to the First National Bank. For proof of that consideration, the plaintiff has offered a photostatic copy of a note, the original of which is claimed to have been lost, but which does not conform to the description. Instead, that note is a bearer note and does not have on it a paraph of identification with the assumption by the notary public. The inscription of the assumption of this $15,000 note has never been cancelled and indeed in this appeal plaintiff is asking for the cancellation. There being nothing in the way of evidence being introduced to show identification with the assumption, and a failure to fit the description, we cannot order such a cancellation on the basis of this note.

We thus conclude that the evidence does not show consideration to have passed for the act of sale to be effective. It does not show that Time Building Mortgage Company, Inc. had assumed the indebtedness nor ratified the act by paying off the indebtedness. We find it revealing that at the purported time of the act of sale and assumption, August 12, 1968, Time Building was purported to have been created by notarial act before F. C. O’Halloran, Jr. dated August 1, 1968. Mr. O’Halloran appeared and testified that he knew nothing of the passage of such act of incorporation, and disavowed it as a forgery. Strangely enough, the act of sale supposed to have passed on August 12th contained the notation in its body that the articles of incorporation had been recorded in Charter Book 284 with the Secretary of State, when the forged articles had not been filed with the Secretary of State until November 4, 1968. Indeed the record discloses very little about this corporation, although it was named defendant herein. Yet, it is this corporation through Maureen Prince as Secretary, certifying to a resolution of the Board of Directors naming Maureen Prince as Secretary to be the person empowered to sell the lots to Evelyn Saunders Martin.

When we consider the totality of the evidence presented in this case, the flagrant forgeries and use of fictitious names, the relationship of the three Ruiz secretaries, including plaintiff, to them and when we consider the forgery in the act of divestiture of the Lomonacos, as well as the discrepancies in many aspects of the document, especially those concerning the consideration, together with the failure of Time Building Mortgage Company to appear and accept the terms of the purported agreement, indeed a failure to show it existed except for these questioned acts, we can only conclude that plaintiff has failed to show that the Lomonacos did in fact divest themselves of title to the property. Indeed the evidence to us preponderates that fraud was perpetrated in that instance, just as it was in the number of instances that followed it. Accordingly, we reverse the judgment of the trial court and dismiss plaintiff’s suit at her costs.

Also at issue on this appeal is a reconven-tional demand brought by the Lomonaco defendants seeking to be declared the owners of the property, and seeking damages against plaintiff. The trial judge had dismissed the reconventional demand at the beginning of trial on the merits, based upon a prior judgment of dismissal following an exception of vagueness.

In her original petition, plaintiff named as defendants Anthony Lomonaco, Sr. and several of his children. At that time Josephine Lomonaco had already died. During the course of these proceedings, Anthony Lomonaco, Sr. died. The named defendants had filed an answer and reconventional demand seeking both title and damages of the plaintiff. To this, plaintiff filed an exception of vagueness asserting that the fraud alleged had not been spelled out with specificity. After trial of that exception, the trial judge maintained the exception of vagueness and granted to plaintiffs in re-convention 15 days “to file their amending petition in default of which the reconven-tional demand shall be dismissed with prejudice.” From this judgment of November 8, 1977, the attorney for reconvenors requested an additional delay of 15 days be granted, because he no longer represented all of the defendants. However, no amendment was filed until February 16, 1978, at which time Joseph P. Lomonaco, Nicole J. Lomonaco, Frances Lomonaco Lafont and Vito Lomonaco filed an amended answer with a supplemental reconventional demand for nullity of simulated sale and damages filed by Joseph P. Lomonaco as testamentary executor of the Succession of Josephine Tramonte, wife of/ and Anthony Lomona-co, Sr. The judge signed an order permitting this filing on February 16, 1978.

At the beginning of trial on the merits, counsel for plaintiff called to the attention of the trial judge pro tern, who was substituting for the original judge, that there was a judgment of dismissal of the reconven-tional demand and apparently filed a document entitled Exception of Res Judicata. This document is not filed in the record and we have no idea what it is, but apparently it caused considerable concern amongst the parties and the trial judge as to the status of the reconventional demand. The trial judge apparently considered that the prior judgment was effective automatically and that the named Lomonaco defendants had lost their right to a reconventional demand. Apparently, however, the succession representative of the decedents Anthony and Josephine Lomonaco was permitted to proceed with their supplemental reconventional demand. However, under the present status of the record before us, we cannot be sure that the case proceeded under this procedural posture, as there is nothing in the record to indicate conduct of the trial along that line.

We note that the judgment of dismissal with prejudice was not in accordance with Code of Civil Procedure Article 933 and the jurisprudence interpreting the effect of that article. It appears from the record that none of the Lomonaco defendants named in the petition have amended the reconventional demand except Anthony Lo-monaco, Sr. through his succession representative. By stipulation of the parties, it was agreed that the succession representative would be substituted for Anthony Lo-monaco, Sr., and that the petition would be amended to join-the Succession of Josephine Tramonte Lomonaco as a defendant. Under this posture it appears that the Succession of Anthony Lomonaco, Sr. was then ruled precluded from proceeding with the reconventional demand because of the res judicata exception and that the exception did not apply to the Succession of Josephine. Yet, as we have stated, the record does not seem to consider a reconventional demand from that point forward. Instead, there is some indication that perhaps the parties would try those issues in a separate law suit filed by the Lomonacos, which although offered in evidence is not amongst the exhibits furnished us.

In any event, the judgment on the dilatory exception of vagueness was incorrect in dismissing the reconventional demand with prejudice. Our jurisprudence has uniformly held that such a dismissal should be without prejudice. See Martin v. Garon, 172 So.2d 751 (La.App. 4th Cir. 1965); Jenkins v. Hartford Accident & Indemnity Company, Inc., 356 So.2d 490 (La. App. 1st Cir. 1977); Prejean v. Ortego, 262 So.2d 402 (La.App. 3rd Cir. 1972). Further, the trial judge was incorrect in considering that the judgment automatically dismissed the reconventional demand by the simple lapse of time to amend. C.C.P. Article 933 indicates, and the jurisprudence holds, that some further action must be taken to effect the dismissal. Either the judge may himself dismiss, or the opposing party may move the judge to dismiss for noncompliance before the dismissal becomes effective. We note that the judge who rendered the order permitted amendment by authorizing filing of the supplemental answer and re-conventional demand, although it was filed after the delays had expired. Thus the trial judge should not have dismissed against those who filed the amended pleading. However, an attempt was made to restore some order into this rather confusing array of parties defendant by a stipulation between the parties. As far as we are able to discern from this record, it now appears that the succession representative of the Succession of Josephine Tramonte Lomona-co and Anthony Lomonaco, Sr. is the remaining plaintiff in reconvention.

In view of the erroneous rulings of the trial court in connection with the dismissal of the reconventional demand, and in view of the confused state of the record as to who in fact are the plaintiffs in recon-vention and whether the reconventional demand was actually tried, we conclude that in the best interest of justice, this matter should be remanded to the trial court in order to afford those defendants who were dismissed with prejudice an opportunity to join the reconventional demand within a reasonable time. We do this simply because their demand should have been dismissed without prejudice. We do not pass upon the issue as to whether they are proper parties, etc., that not being before us. After due proceedings had, the trial court is instructed to hold an evidentiary hearing on the reconventional demand and make a determination thereon in due course.

For the reasons above assigned, the judgment of the trial court in favor of plaintiff is reversed, and there is now judgment in favor of defendants, dismissing plaintiffs suit. The dismissal of the reconventional demand is annulled and set aside, and the matter is remanded to the trial court for further proceedings in accordance with this opinion.

REVERSED IN PART, SET ASIDE AND REMANDED IN PART.

      . There are some depositions in the record which relate to the activities of the corporation and the assumption but these are not in evidence and we do not consider them.


author: MARVIN, Judge.

text:
    Circe ANDERSON et vir, Plaintiffs-Appellants, v. SAFECO INSURANCE COMPANY et al., Defendants-Appellees.
    No. 14434.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 16, 1981.
    En Banc. Rehearing Denied March 27,1981.

      James L. Fortson, Jr., Shreveport, for plaintiffs-appellants.
    Cook, Yancey, King & Galloway by Sidney E. Cook, Shreveport, for defendants-ap-pellees.
    Before HALL, MARVIN and JASPER E. JONES, JJ.
   MARVIN, Judge.

In this appeal of a judgment after a jury verdict, the plaintiffs Anderson, husband and wife, seek to increase a $4,000 award for personal injury damages. We find the jury abused its much discretion, amend to increase the award, and affirm as amended.

This action arose out of an incident in which Mrs. Anderson’s hand was run over by the automobile of the defendant. When the incident occurred, Mr. Anderson had been contesting with his former wife the custody of their two children, ages 8 and 5. The former Mrs. Anderson flew from Hawaii to Shreveport where the defendant, Helen Hughey, chauffered her, eventually to plaintiffs’ apartment. There the former Mrs. Anderson, outside the presence of plaintiff Mrs. Anderson, led the children from the apartment to defendant’s parked automobile. Before defendant could drive away, plaintiff Mrs. Anderson learned what had occurred, hastened to the parked car, and struggled with the former Mrs. Anderson to remove the children from the car. During the struggle plaintiff Mrs. Anderson was battered by the women and the door of the car and thrown to the ground. Her house robe became entangled with the door, she was dragged a short distance, and her hand was run over by the car. This suit followed against defendant and her liability insurer. The former Mrs. Anderson later regained legal custody of the children in another action and returned with them to Hawaii.

Mrs. Anderson sued for her personal injuries. Mr. Anderson sued for medical and related expenses and for' Mrs. Anderson’s lost wages during the time she was disabled from working. Defendants pleaded Mrs. Anderson’s contributory negligence and her assumption of "the risk of injury. Defendants stipulated that plaintiffs had incurred medical expenses totaling $1,325.85. Plaintiffs also proved that Mrs. Anderson was disabled from working as a practical nurse for more than 60 days and lost at least $2,400 in wages. These special damages total $3,725.85. The jury’s verdict was a general verdict “... for the plaintiffs in the amount of $4,000 ...”

Defendants did not appeal or answer plaintiffs’ appeal and the only issue here is quantum. CC Art. 1934(3); Reck v. Stevens, 373 So.2d 498 (La.1979); Coco v. Winston Industries, Inc., 341 So.2d 332 (La. 1976). *

Mrs. Anderson testified that she opened the car door and was attempting to remove the children when the women in the car started beating on her, that the former Mrs. Anderson told defendant, “.... let’s get out of here”, that the car began backing up while she was half in and half out of the car, that she was battered by the car door when the car moved backward and then forward, “... I was . .. half falling, skidding, and bumping around until ... [my robe] came off of me ... The car ran over my [whole] hand and pulled a hand full of my hair out as well as throwing gravel and dirt into my face and eyes.” Mrs. Anderson was then about three months pregnant. Because of her concern about her unborn child, she immediately went to her obstetrician, Dr. Smith, who attempted to calm her and who directed her to a hospital emergency room to see an orthopedist, Dr. Gleason, because of her crushed hand.

Dr. Smith testified that he saw Mrs. Anderson in his office following the parking lot incident, that her hand was obviously fractured, that she had multiple abrasions on her body, legs, and on her other arm, that she was in “severe pain .... very disturbed ... worried about her pregnancy ... the possibility of an abortion ... in a great deal of anxiety [even»after being hospitalized]”. Dr. Smith also stated that he later limited to Tylenol and aspirin, the drugs that were given to Mrs. Anderson to relieve her pain because of her pregnancy and that she “... was having more pain [than a nonpregnant patient would have had].” Mrs. Anderson expressed concern for the welfare of her unborn child to Dr. Smith until the time it delivered as a healthy child. Dr. . Smith agreed that Mrs. Anderson’s “... anxiety continued throughout the term of her pregnancy.”

Dr. Gleason described the injuries “.. . exquisite swelling and tenderness .. . crushed fracture of the multangular (carpal) bone of the wrist, ... dislocation of the index metacarpal ... [surgically] reduced by [inserting] a pin [and] K-wire ...” He testified that she was hospitalized three days, that “... she had a somewhat painful ... post-operative course” and that the pin in her wrist caused her pain. She was in a cast for 10 weeks. She later developed arthritis in the hand. Dr. Gleason said the hand “... was crushed so severely that we could not restore the [wrist] joint to a normal function,” and noted Mrs. Anderson’s “... predisposition to pain and arthritis.” He estimated her permanent disability of the hand at llh percent and “possibly” at I2V2 percent if the “carpal tunnel syndrome” she had developed was related to the incident. This relationship was only “possible”, according to Dr. Gleason, and not “certain”.

At the trial on May 5, 1980, Mrs. Anderson testified that she suffered pain, weakness, and stiffness before and after her cast was removed, that her hand has progressively swollen and that she was not able to resume working without limitation until January following the August 1977 incident. She said her ability to button her daughter’s clothes, open jars, twist ice trays, hold and grip things has progressively gotten “worse and worse”. Her wrist and hand are still painful three years following the incident. Dr. Gleason stated that future surgery may be required to attempt to correct arthritic changes in the injured hand.

Under these circumstances we do not hesitate to find the $4,000 verdict inadequate and a clear abuse of the much discretion afforded the trier of fact. CC 1934(3). Reck v. Stevens, supr.a. We proceed then, as directed by Coco v. Winston Industries, Inc., supra, to raise the award to the lowest point which we find, upon analysis of awards in other cases, to be reasonably within the range of discretion, and we make an award to each plaintiff and recast the judgment. CCP 2164.

This record does not show Mrs. Anderson’s exact age, but does show that she had two children, ages 15 and 18 years, when this case was tried in 1980.

We consider the severity and effect of this injury upon Mrs. Anderson in the light of her particular circumstances. Pregnant women who were not shown to have suffered permanent physical injury have received awards ranging from $500 to $1,500 for their temporary anxiety for their unborn children.

Other persons have received awards ranging from $3,000 to $7,500 for permanent hand injuries requiring surgical intervention. While these cases are analogous in a •limited way, they do not present plaintiffs in the identical circumstances of Mrs. Anderson. We also consider past awards in the light of Coco, supra, and we raise the judgment to Mrs. Anderson to $7,000, the amount we find to be the lowest point within the jury’s discretion.

Mr. Anderson should recover for the community estate, the minimum amount of $669.50 medical, $656.35 hospitalization, and $2,400 for Mrs. Anderson’s loss of wages, a total of $3,725.85 of the $12,600 amount he sued for.

Accordingly, the judgment is amended and will be recast as follows:

IT IS ORDERED that there be judgment against defendants, Helen Hughey and Sa-feco Insurance Company, in solido, with legal interest from the date of judicial demand,

(A) In favor of plaintiff, Mrs. Circe Anderson, for $7,000; and

(B) In favor of plaintiff, Paul M. Anderson, for the community estate existing between him and his wife, for the following sums:

Expenses incurred $1,325.85
Loss of Mrs. Anderson’s wages $2.400.00
Total $3,725.85

IT IS FURTHER ORDERED that defendants pay all costs, here and below, including the respective fees of the expert medical witnesses, as the same may be stipulated by the litigants or fixed by the lower court after hearing.

As thus amended, judgment is

AFFIRMED.

      . The written jury charges refers to plaintiff in the singular. The written verdict uses the plural but does not attempt to apportion the award between the two plaintiffs. We are not favored with either the statements and arguments of counsel to the jury or a transcription of what was read or said by the judge to the jury. It would serve no purpose to speculate why and how this result was reached.

      . Jolivette v. Safeco Ins. Co., 379 So.2d 1213 (La.App. 3d Cir. 1980); plaintiff was only a few weeks pregnant and suffered headaches and backaches after the accident. Her abortion six weeks later was unrelated to the accident. Award: $1,250 for mental anguish and concern for the unborn child.

        Buckelew v. Plunkett, 242 So.2d 372 (La.App. 2d Cir. 1970): four-months pregnant plaintiff who delivered child one month later that did not survive, a fact which doctor said was unrelated to accident; she suffered no physical injury. Award: $500 for mental anguish.

        Wheeler v. Simonton, 215 So.2d 359 (La.App. 2d Cir. 1968): plaintiff was 8V2 months pregnant, suffered superficial contusions and bruises to her head and abdominal wall. Her child was bom normal four weeks later. Award: $1,000 for pain, suffering and mental anguish. Bee v. Liberty Mutual Insurance Company, 165 So.2d 73 (La.App. 4th Cir. 1964): seven months pregnant plaintiff of unstated age with some bruising of abdominal region, delivered normal child some seven weeks later, however, during intervening period she was constantly perturbed over the possibility of injury to the expected child. Award: $1,500.

        Nomey v. Great American Indemnity Company, 121 So.2d 763 (La.App. 2d Cir. 1960): plaintiff was more than eight months pregnant and suffered a few bruises and a damaged tooth; child was bom eight days after the accident. Award: $1,000 for mental pain, suffering and anxiety.

      . Moss v. Travelers Indem. Co., 351 So.2d 290 (La.App. 3d Cir. 1977): man unemployed at the time of car accident but who had a job at the time of trial was awarded $4,000 in general damages for a laceration over his left eye, lacerations and abrasions on his ring and middle fingers, a cut on the little finger of his right hand, and contusions to the chest. He had a 15% permanent disability of the right hand. Hospitalization and surgery were required. Distefano v. Lumbermen's Mut. Cas. Co., 340 So.2d 1110 (La.App. 3d Cir. 1976): general damage award of $3,000 to a deckhand on a boat (who fell down a stairway) for a 5% overall impairment of his right hand. Plaintiff had sustained a fracture of the base of the fourth metacarpal of the right hand and a dislocation of the fifth carpal metacarpal joint of the right hand. Hospitalization and a surgical procedure similar to the instant case were required.

        Sanders v. English, 325 So.2d 692 (La.App. 1st Cir. 1976): nine-year-old child injured in a car-pedestrian accident was awarded $7,500 for pain and suffering. This girl suffered a compound fracture of the left fifth metacarpal, a fracture of the right radius, and hemarthrosis of the right knee. The doctors foresaw only a temporary disability.

        Aucoin v. Fidelity General Insurance Company, 219 So.2d 532 (La.App. 3d Cir. 1969): a motorcycle policeman with a comminuted fracture of the radius of the left wrist and dislocation of the ulna, was hospitalized for three days in addition to undergoing surgery, and was awarded $3,750. He had a 10% permanent disability of the wrist.
      Two cases cited by plaintiff are inapplicable as a guide for the instant case:

        Danos v. Foret, 354 So.2d 667 (La.App. 1st Cir. 1977): plaintiffs abdomen and left hand were injured when a freon cylinder exploded. Plaintiff sustained a 50% permanent partial disability to his thumb which converts to a 25% impairment of the entire hand. This injury required extensive surgery and skin grafting. He was awarded $33,000 in damages. Obviously this injury was far more severe than Mrs. Anderson’s.

        Biackshere v. Kemper Insurance Co., 352 So.2d 275 (La.App. 2d Cir. 1977): plaintiff was injured when a valve stem blew out on an oxygen cylinder. His hand injury was severe, painful, and disabling. His treatment extended over many months and included two operations. He was totally and permanently disabled. He was awarded $14,800 for pain, suffering, and disability.


author: REDMANN, Judge.

text:
    Autry BORNE et al. v. MIKE PERSIA CHEVROLET COMPANY, INC. et al.
    No. 11683.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 19, 1981.
    Rehearing Denied April 20, 1981.

      Christopher M. Smith, Slidell, for plaintiffs.
    Bernard, Cassisa, Babst & Saporito, Walter M. Babst, Metairie, for General Motors Corp.
    Sessions, Fishman, Rosenson, Boisfon-taine & Nathan, Harvey L. Strayhan, New Orleans, for Mike Persia Chevrolet Co., Inc.
    Before REDMANN and SCHOTT, JJ., and EDWIN R. HUGHES, J. Pro Tern.
   REDMANN, Judge.

General Motors Corporation appeals from a judgment on jury verdict (1) against it and its dealer in solido awarding $200 as a reduction in the price of a defective automobile it manufactured (with judgment over for its dealer against itself) and (2) against it alone for $1,500 attorney fees. Plaintiff purchaser answers the appeal, asking increase in quantum and additional attorney fees for the appeal. We affirm.

The principal issues raised by the manufacturer are whether La.C.C. 2545’s provision for attorney fees against a “seller, who knows the vice of the thing he sells and omits to declare it” authorizes fees against a manufacturer charged by law with knowledge and, if so, whether the provision as applied to a manufacturer affords due process and equal protection of law. Included in these arguments by the manufacturer is the complaint that the $1,500 award is excessive. Another issue is procedural: may a dismissed co-plaintiff appeal against a defendant by answer to that defendant’s appeal from an award in favor of another co-plaintiff?

The manufacturer does not make an issue of whether the defect was proven to exist, nor of the quantum of reduction ordered, nor of its dealer’s judgment over against itself.

Facts

The record supports a conclusion that the pulley on the automobile’s power steering pump was visibly out of plane with the pulley on the front of the crankshaft by about as a consequence of which the belt between those two pulleys entered at a slight angle. The belt would jump off the pulley at times leaving the car without power steering and therefore hard to steer. Plaintiff purchaser took the car to defendant dealer and explained the trouble on at least two occasions, but the defect was not remedied. Plaintiff purchaser testified that he personally replaced many belts that the car had lost or destroyed.

Proper alignment of the pulleys can be accomplished by adjusting the power steering pump’s mounting or by relocating the pump’s pulley on its shaft at a cost of no more than $50.

The defect remained uncorrected and finally occasioned an accident. The purchaser’s daughter-in-law and son were rounding a highway curve when the belt broke, the son lost control, and the car left the road, damaging its left rear fender and allegedly the daughter-in-law and son. The purchaser, his daughter-in-law and son thereafter filed this suit.

Effect of Answer to Appeal

The answer to the appeal, mentioned at the outset, also urged the dismissed personal injury claims of the daughter-in-law and son. (The jury verdict found that they had assumed the risk.) We con-elude that their claims are not brought before us by the answer to General Motors’s appeal because they are not appellees. It is only an “appellee,” C.C.P. 2133, who can appeal against an appellant by answer to that appellant’s appeal. Webster’s New International Dictionary (2d éd.) defines ap-pellee as “one against whom an appeal is taken,” and Black’s Law Dictionary (rev. 4th ed.) defines appellee as “The party in a cause against whom an appeal is taken; that is, the party who has an interest adverse to setting aside or reversing the judgment.”

As to the losing co-plaintiffs, the daughter-in-law and son, General Motors could not take an appeal, and the success of any appeal by General Motors could not affect them. This case is thus unlike Monk v. Veillon, La.App. 3 Cir. 1975, 309 So.2d 377, in which the plaintiff’s appeal from a judgment giving him damages against two defendants, but dismissing two others, could have sought increased damages from the two defendants cast notwithstanding plaintiff’s attempt to “limit” his appeal so as to affect only the two defendants dismissed.

Quantum of Price Reduction

Complaining of the award of $200 as a reduction in the price of the car, plaintiff argues that the jury’s answers to interrogatories show an intent to award him $1,000. We disagree. The only anomaly was the interrogatory how much “plaintiff’s award [should be] reduced” because of his use of the car. That question, which the jury answered, was not phrased, as would have been preferable, to the effect that if the jury found that the sale should be avoided and the price returned to the purchaser, whether and by how much the use of the car should offset the return of the price. But the jury’s answer shows only that, had it held the sale avoidable, it would have awarded plaintiff a net of $1,200 ($6,000 price — $4,800 for use), and plaintiff would have had to return to defendants the car, which was then only 32 months old. The jury thus cannot have intended to award $1,000 to plaintiff and let him keep the car because that would require a belief that the 32-month-old car was worth only $200.

Because repair of the defect would cost only a few dollars and the lost belts cost but a few dollars each, the jury’s award of $200 was not inadequate.

Applicability of C.C. 2545

Defendant manufacturer understates the law in conceding that, in view of Media Pro. Consult., Inc. v. Mercedes-Benz of N.A., Inc., 1972, 262 La. 80, 262 So.2d 377, “it is not at all certain that this [intermediate appellate] Court has the authority to seriously entertain this particular issue” of whether a manufacturer is governed by La.C.C. 2545. The manufacturer suggests that its attack on the constitutionality of the interpretation of that law by Media authorizes us to reject that interpretation in favor of one that would avert the constitutional questions. We do not have that authority, although we do have not merely the authority, but the obligation, U.S.Const. Art. 6, to invalidate state law that denies due process or equal protection.

We add that the manufacturer’s position that it is not a seller ignores that it does indeed sell its automobiles to its dealers and in a true sense, through its national advertising campaigns and the good repute it has, it sells to the public, though through its dealers. It is no detraction from the good name of Mike Persia Chevrolet Company to say that it is rather the Chevrolet than the Persia that attracts customers and sells them automobiles. And, though the manufacturer argues it did not conceal the defect, it did “omit to declare it.”

We summarize the statutory and jurisprudential rules. C.C. 2545 makes the “seller, who knows the vice of the thing he sells and omits to declare it” liable for the buyer’s reasonable attorney fees “besides the restitution of price,” thus expressly governing a redhibition or avoidance of the sale. C.C. 2544, however, subjects an action for a reduction in price “to the same rules and to the same limitations as the redhibito-ry action.” Thus plaintiff’s obtaining only a reduction in price does not defeat his claim for his reasonable attorney’s fees for his alternative action to reduce the price. Finally, notwithstanding that the heading of the Civil Code paragraph containing art. 2545 is “Of the Vices ... which the Seller has Concealed from the Buyer” (emphasis added), Media ruled that the manufacturer is charged with knowledge of the defect and is therefore liable to the purchaser for the knowing seller’s liability under C.C. 2545. (We deem that ruling unaffected by La. Acts 1974 No. 673 § 1, amending C.C. 2531 to give the “seller” a remedy against the “manufacturer.”) Here, we add, the character of the defect suggests not merely actual knowledge, but actual fault on the part of the manufacturer’s employee(s) who improperly installed the pump or the pulley and the belt.

C.C. 2545 applies.

Constitutionality of C.C. 2545

The manufacturer’s due process and equal protection arguments proceed from the premise that it is unjustifiable, either in an absolute sense, and therefore a deprivation of due process, or at least in a relative sense in a legal system that as a rule does not similarly treat other losing litigants, and therefore a denial of equal protection, to oblige a manufacturer to pay consumers’ attorney fees reasonably expended to obtain relief from the purchase of the manufacturer’s defective product.

A. Due Process

The manufacturer theorizes the imposition of attorney fees is absolutely unjustifiable because it irrationally penalizes a manufacturer for not performing an impossibility: for not disclosing a defect the manufacturer did not in fact know and therefore could not disclose.

We repeat that the defect here was in fact not a hidden defect as to this manufacturer (like one created by the manufacturer of some component) but an evident one. This manufacturer’s own employee created it and ought not to be heard to say that he or she did not see what was in plain sight. Thus this manufacturer, as to this defect, has no standing to raise the issue of the constitutionality of applying the statute to a manufacturer all of whose direct employees are in fact ignorant of the defect— ignorant, for example, because the defect exists hidden within some component manufactured by another. Thus the only imputation of knowledge in this case is that of employee to inanimate corporate employer, an imputation that has inescapably existed from time immemorial.

The statute, in any case, is not penal in its operation or intent. It simply assigns the cost of contract litigation over actual defects in products to the enterprise that, by placing into commerce a defective product and failing to provide effectively for its repair or replacement, has generated the litigation. The buyer’s reasonable attorney fees are nothing more than an element of the buyer’s damage from the defective product — an element that is as a practical matter avoidable by the manufacturer through an effective system for repair or replacement. The basic rule in Louisiana is not that attorney fees are not an element of damage, but only that they are ordinarily not recoverable, C.C. 3198.

B. Equal Protection

Nor is this manufacturer denied equal protection of the law by the law’s imposing attorney fees upon a manufacturer that knows its product’s defect (as a knowing seller) in a redhibition or reduction action, while not imposing attorney fees upon other losing litigants in other kinds of actions, and especially while not imposing attorney fees upon purchasers in unsuccessful redhibition or reduction actions.

Federal equal protection requirements are met if the “statutory classification bears some rational relationship to a legitimate state purpose,” Weber v. Aetna Cas. & S. Co., 1972, 406 U.S. 164, 172, 92 S.Ct. 1400, 1405, 31 L.Ed.2d 768, and the state’s interest need be “compelling” only when suspect classifications such as race, McLaughlin v. Florida, 1964, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222, and alienage, Nyquist v. Mauclet, 1977, 432 U.S. 1, 97 S.Ct. 2120, 53 L.Ed.2d 63, demand strict rather than the ordinary deferential scrutiny. The Louisiana equal protection requirement is similar to the deferential scrutiny of Weber; Succession of Robins, La. 1977, 349 So.2d 276.

Before Louisiana had statehood, it had a strong policy of demanding that things sold not have hidden and undisclosed defects, and of protecting purchasers against buying things that did; Digest [Code] of 1808, p. 356, arts. 65 and 70. The purchaser was entitled always to a reduction in price, and often to avoid the sale, in cases of the defect’s making the use of the thing so inconvenient that it “must be supposed,” C.C. 2520, that the purchaser would not have purchased had the defect been known. There was perhaps no equal in the entire United States of the broad scope of the Louisiana Code’s protection of consumers against hidden defects in things purchased.

The theoretical protection, however, is at best incomplete when sellers do not comply with those ancient laws but instead afford neither repair nor replacement of the defective thing, and the consumer cannot afford the cost of obtaining his legal right. If the defective thing is of relatively small value, or if the thing is costly, but the defect could result only in a small reduction in price (as in the present case), it is not economical for the purchaser to pay a lawyer to bring a redhibition or reduction action. Winning a defective product case is of no value to the consumer beyond the one claim, but may be of value to the manufacturer (or dealer or other professional seller) for many other similar cases. This basis alone might justify awarding the winning consumer fees while denying them to the winning manufacturer. But the radical fairness of imposing upon the knowing seller (including the manufacturer) a successful purchaser’s redhibition or reduction attorney fees is that that class exhausts the causers of the litigation and that imposing its cost upon them makes reality out of the theoretical protection of the purchaser that Louisiana has sought by law throughout its history.

No similar factual characteristic exists in other losing litigants. The classification of knowing sellers, including manufacturers, apart from other losing litigants therefore has a rational relationship to the legitimate legislative goal.

Quantum of Attorney Fees

We preliminarily reject the manufacturer’s argument that it should pay no fees because the plaintiffs’ settlement demands were exorbitant, the lowest pre-trial offer being $4,750. First, this argument aims at the wrong offer: if the manufacturer had offered over $200 it would have an attractive argument, similar to that which defeats liability for court costs, in that the final award would show that the litigation was not its fault but that of an unreasonably demanding purchaser. Second, even an immediate $200 offer in response to a lawyer’s first demand letter would not reduce fees to zero but only to the reasonable amount that far earned. The time for a manufacturer to keep consumers’ attorney fees at zero is when the consumer first returns to complain to the dealer because once the consumer must go to a lawyer some reasonable fee is earned.

The manufacturer cites Guillory v. Pitre Ford Co., La.App. 3 Cir. 1977, 345 So.2d 1274, while conceding its uniqueness, for its refusal to award attorney fees against a manufacturer against whom a price reduction was ordered. Guillory did recite as the law the manufacturer’s presumed knowledge of the defects and consequent liability for damages and attorney fees. But Guillo-ry took the view that an automobile’s inadequate weld was not a defect until the weld broke and therefore the manufacturer “had no knowledge of the defect at the time of the sale and is not liable for damages or attorney’s fees.” 345 So.2d at 1276. Whether or not that reasoning has any merit, it does not apply here, where the defect existed at all times in its final state.

On the simple question of quantum we note that the interrogatory to the jury was “What reasonable attorney fees should be awarded for the Autry Borne claim?” That question indicates not only that the daughter-in-law’s and son’s claims should not be considered, but also fairly implies that it is only for work on the successful claim of the purchaser (and not his unsuccessful claim for complete avoidance of the sale) that reasonable fees should be fixed.

We would ordinarily grant an added fee on appeal but we conclude that $1,500 adequately pays counsel for both the trial and the appeal insofar as they related to the claim for reduction in price, in respect to which alone the purchaser was successful.

Affirmed.