text:
    THEUS, GRISHAM, DAVIS & LEIGH, Plaintiff-Appellee, v. Lynda Amacker DEDMAN and Lansing Maxwell Dedman, Defendants-Appellants. LAW OFFICES OF WILLIAM R. COENEN, Plaintiff-Appellee, v. Lynda Amacker DEDMAN and Lansing Maxwell Dedman, Defendants-Appellants.
    Nos. 14550, 14551.
    Court of Appeal of Louisiana, Second Circuit.
    June 8, 1981.

      F. Murry Biedenharn, Monroe, for defendant-appellant, Lynda Dedman.
    Marshall Blackwell, Monroe, for defendant-appellant, Lansing Dedman.
    Theus, Grisham, Davis & Leigh by J. Michael Hart, for plaintiff-appellee, Theus, Grisham, Davis & Leigh.
    Law Offices of William R. Coenen by William R. Coenen, Jr., for plaintiff-appel-lee, Law Offices of William R. Coenen.
    Before MARVIN, JASPER E. JONES, and FRED W. JONES, Jr., JJ.
   MARVIN, Judge.

In each of these consolidated cases, a divorced couple appeals a judgment for attorney fees awarded the respective attorneys for representing the defendant ex-wife during the stormy years of the marriage in her cases against the defendant ex-husband. After the husband and wife reconciled for a brief time following the representation sued upon, the husband and wife were divorced in another proceeding and these attorneys brought suit for the balance owed for their representation. With an amendment to one judgment, we affirm both.

The judgments were in favor of attorney Coenen for $517 and in favor of the second firm of attorneys for $2,583. Defendants contend that the judgments are based on inadmissible hearsay evidence and that the expenditures charged to or against the client should have been proved by the best evidence.

Mrs. Dedman first retained attorney Coe-nen in 1978, paying him a $1,000 retainer to offset his $45 per hour charge for his services and expenditures for Mrs. Dedman. With her knowledge, Coenen hired Southern Research Company to investigate her claims that Mr. Dedman was committing adultery. Coenen kept daily records of his time, services, and expenditures and expenses. His charges eventually totaled $2,017 above the retainer.

Early in 1979, Mrs. Dedman discharged Coenen and retained the services of attorney Crawford and the plaintiff law firm in the consolidated suit. She paid this firm a retainer of $5,000 from which it was understood that Coenen was to be paid or partially paid the balance due on his services. Mrs. Dedman also understood that the investigative services of Southern Research Company were to be continued. Crawford also kept daily records of his time, services, expenditures and expenses.

Upon receiving the $5,000 from Mrs. Ded-man, attorney Crawford, on March 1, 1979, wrote this letter of transmittal to attorney Coenen:

“As we discussed earlier this week, you will find enclosed our firm check for $1,500 representing a portion of the fees which Mrs. Dedman owes to you for services rendered in connection with her earlier divorce proceedings.” Emphasis supplied.

On March 12, 1979, attorney Coenen wrote this letter of transmittal to Southern Research Company:

“You will find enclosed a check for $825.00 representing payment for services rendered in this matter on behalf of my client during the period February 1 through February 25, 1979. As I had no participation in the matters related to the prior balance of $643.56, I am not authorized to forward that amount at this time. I am certain, however, that this can be worked out in the near future.” Emphasis supplied.

Each attorney introduced the invoice sent to Mrs. Dedman and daily records of time, services, and expenses expended for her. Additionally, each attorney testified as to his method of keeping such records and as to the accuracy of the records. Defendants’ objection generally was that the invoice and the daily records were hearsay and were not corroborated. Mrs. Dedman contradicted the time records and the attorneys’ testimony but the trial court resolved this and other factual disputes in favor of the plaintiffs and against Mrs. Dedman.

On appeal Mrs. Dedman’s attorneys argue that the record and invoices complained of are hearsay and additionally, that the cancelled checks or receipts for expenses paid by the respective attorneys are the best evidence of payment of such expenditures. At the same time she does not deny, but admits, numerous long distance telephone calls made to her by the attorneys, conferences, depositions, and other matters shown on the daily records, invoices, and testified to by the attorneys.

The best evidence rule was originally recognized to require production of the best evidence on a particular issue and to avoid the possibility of fraud by orally proving the contents of a writing. Louisiana, like other states, has generally limited the applicability of the rule to cases where the content of a written instrument is at issue. The modern best evidence rule requires the production of an original writing where such writing is crucial to a material fact. As defendant’s cited cases show, courts have consistently held that a written document is the best evidence of its content and require that document to be produced under the best evidence rule when the terms or meaning of the document are at issue.

Here, there is no single document which would per se determine the issue of the services rendered and the expenditures made for Mrs. Dedman. This is not an instance where an original writing would definitively resolve the issue of the amount owed each attorney. Unlike the situation of a written contract, plaintiffs may attempt to prove the amount owed by any competent evidence. Defendants did not contend at the trial that cancelled checks or receipts were the documents at issue or that these things were available as the best evidence. Defendants’ objection was “best evidence [and] hearsay”. Even assuming the existence and availability of cancelled checks and receipts as evidence entitled to greater weight in overcoming a denial of expenditures, the existence of cancelled checks and receipts does not make applicable the best evidence rule to exclude other evidence of the making of expenditures.

The other evidence in these cases is the daily record of each attorney, the detailed summary invoice, and the testimony of the attorney, that at certain times “I performed these services, for this period of time, and I made, or caused to be made, these expenditures, for Mrs. Dedman.” Under these circumstances, the best evidence rule or objection does not exclude or make this evidence inadmissible. See 21 Loyola L.R. 450 at p. 456 ff, McCormick on Evidence, chapter 23 at p. 559 et seq. and authorities cited therein.

Defendants’ remaining objection is that such evidence was inadmissible hearsay. In Herlitz Const. Co. v. Clegg Concrete, Inc., 378 So.2d 1002 (La.App. 1st Cir. 1979), the state of the law on the admissibility of business records was summarized:

“The business records exception to the hearsay rule, as all other exceptions, is predicated upon considerations of reliability and necessity. Although the nature and scope of the exception in Louisiana civil cases is suspect in light of Louisiana Civil Code Articles 2248 and 2249, modern Louisiana jurisprudence has greatly restricted the application of these articles. Pritchard v. Wolfe, 230 So.2d 612 (La. App. 3d Cir. 1970).
“The modern jurisprudence is well summarized in 21 La.L.Rev. 449 (1961) which states:
“ ‘Records of industrial and commercial organizations, as well as medical reports and hospital records are admissible as proof of their assertions if: (1) persons concerned with recording the information are unavailable for testimony, or production of such persons would be a needless burden; (2) the first collected record available to or usable by the court is introduced; (3) the records are identified at the trial by one familiar with the bookkeeping procedure; and (4) the evidence seems reliable after considering such factors as (a) contemporaneousness of the entry with the occurrence or fact recorded, (b) first-hand knowledge of the entrant, (c) existence of a business or professional duty to record or report the facts in the regular course of business, (d) completeness and honest appearance of the books, (e) absence of fraud in making the entries or in destroying the supporting memoranda, and (f) perhaps, whether the books belong to a third party.’ ” 378 So.2d at p. 1005.

See also Talley v. Duplantis, 213 So.2d 82 (La.App. 1st Cir. 1968), where the court admitted ledger sheets made from delivery tickets where such records were kept in the ordinary course of business, there was no indication of fraud or ill practice, and the preparer of the documents testified as their accuracy and authenticity.

Records kept by an attorney on a daily basis to aid in the valuation and the accounting of his services to his clients in the ordinary course of the attorney’s business are admissible under the business records exception to the hearsay rule. Each attorney testified that he had kept the daily record and that the daily record accurately reflected the work performed. There are no allegations of fraud or ill practices and each attorney was subject to cross examination. Records of this type, bearing the indi-cia of accuracy and reliability, must be admissible as a practical matter.

The invoice, while cumulative of the daily record in one sense, is also admissible under the business records exception. Crawford testified that the invoice was a summary prepared from the daily time sheets and that they accurately accounted for the work performed. Coenen testified similarly as to his records. Such invoices are regularly prepared in the legal profession for the purpose of billing and informing clients of the efforts and expenditures made on behalf of the client. Summaries of voluminous records are admissible where the preparer is available for cross examination and the original materials are available for examination by the opposing party. See Tomeny, “Best Evidence and Authentication of Documents”, 21 Loyola Law Review 450, 459 (1975) and authorities cited therein. We find no error in the trial court’s determination that defendants owe for the hours billed, the expenditures made, and expenses incurred respectively by Crawford and by Coenen.

The Theus, Grisham, Davis and Leigh invoice is inadmissible hearsay, however, to prove that Mrs. Dedman agreed to attorney Curry’s charges of $75 per hour. Crawford testified that he sat in on the conferences and depositions with Curry which resulted in the five hours being charged to Mrs. Dedman and that Crawford did not also charge for this same five hours. Crawford’s testimony about the number of hours worked by Curry in Crawford’s presence was admissible and corroborated the invoice as to hours worked. Crawford, however, did not testify that Mrs. Dedman agreed to Curry’s $75 per hour charge. Under these circumstances, the judgment will be amended to reduce the amount awarded to the law firm plaintiff from $75 per hour to $50 per hour for the five hours worked by Curry.

At appellants’ cost, judgment in attorney Coenen’s case is affirmed, and as amended from $2,583 to $2,333, the judgment in the consolidated case is affirmed.

      . Coenen’s services began August 14, 1978, and ended November 30, 1978. Typical extracts from his three-page invoice read as follows:
      “11-7-78 Conference with Guerriero, conference with docket clerk re. continuing rule (2), letter to docket clerk, letter to Guerriero, conference with Guerriero .7"
      * * *
      “EXPENSES:
      “8-23-78 Advance to Clerk’s Office $100.00
      Milage (trips to Monroe) 250 miles at 16$ per mile $ 40.00
      Long distance telephone calls
      8-14-78 (2)
      8-17-78
      8-19-78
      8-21-78 (3)
      8-22-78 (8)
      8-23-78 (5)
      8-26-78
      8-29-78 (2)
      8-30-78 (2)
      8-31-78
      9- 5-78
      9-8-78
      9-15-78 (2)
      9-17-78
      9-19-78 (2)
      9-20-78 (4)
      10-12-78 (2)
      10-27-78
      10-30-78
      10-31-78/11-30-78 (5)
      “Total — 46 calls $127.50 $3,017.00

        “8-29-78 Retainer paid $1,000.00
      $2,017.00
      “3-2-79 Paid by check of Theus, Grisham, Davis & Leigh 1500.00
      517.00”
      Crawford’s services began January 30, 1979, and ended June 25, 1979. Typical extracts from Theus, Grisham, Davis & Leigh’s seven-page invoice read as follows:
      “June 15 To conference with Lynda Dedman; lM

      “June 25 To conference with Joe D. Guerriero; l/t

      “1979 EXPENSES
      “February 27 To check to Bill C. Downey, Clerk, for filing fee $50.00
      “May 31 To check to Virginia Durham, court rptr. 139.60”

      . Ward v. State Farm Mutual Automobile Ins. Co., 182 So.2d 130 (La.App. 4th Cir. 1966).

      . Ascension Builders, Inc. v. Jumonville, 262 La. 519, 263 So.2d 875 (La.1972).


source: Caselaw Access Project

author: JASPER E. JONES, Judge. FRED W. JONES, Judge,

license: Public Domain

text:
    William D. TRULUCK, Plaintiff-Appellee, v. Ray Vernon CLARK, et al., Defendants-Appellants. HARTFORD INSURANCE CO., Plaintiff-Appellee, v. GIBSLAND WOOD COMPANY, INC., Dallas Crowley & Insured Lloyds, in Solido, Defendants-Appellants.
    Nos. 14566, 14567.
    Court of Appeal of Louisiana, Second Circuit.
    June 10, 1981.
    Hal R. Henderson, Arcadia, for plaintiff-appellee-Truluck.
    Gordon E. Rountree, Shreveport, for defendants-appellants, Gibsland, Clark, Crowley & Insured Lloyds.

      Cook, Yancey & King by W. Deryl Med-lin, Shreveport, for plaintiff-appellee Hartford Ins. Co.
    Before PRICE, HALL, MARVIN, JASPER E. JONES and FRED W. JONES, JJ.
   JASPER E. JONES, Judge.

The Constitution provides in part that when a judgment of a district court is to be modified or reversed and one judge of the court of appeal dissents, the case “shall be reargued before a panel of at least five judges prior to rendition of judgment.” La. Const. Art. V, § 8(B) (1974).

The original consideration of this appeal by a three-judge panel produced this result and the case was reargued before a five-judge panel.

This appeal involves the consolidated cases of William D. Truluck v. Raymond Vernon Clark and Dallas Crowley, No. 14,-566 and Hartford Insurance Co. v. Gibsland Wood Co., Inc., Dallas Crowley, and Insured Lloyds Insurance Co., No. 14,567. Defendants in # 14,566 appeal a judgment rendered against them for personal injury damages in favor of Truluck. Defendants in # 14,567 appeal a judgment against them for damages to the vehicle which Tru-luck was operating in favor of Hartford Ins. Co., the collision carrier on the vehicle, who had been subrogated to the property damages after having paid the owner of the vehicle for damages to the vehicle.

The accident occurred on Dec. 18, 1978 at about midday. The weather was clear and dry. Defendant, Dallas Crowley, an employee of Raymond V. Clark and Gibsland Wood Co., Inc., was driving a loaded 1965 Ford pulpwood truck in a northerly direction on La. 154, a two-lane black-topped highway in rural Bienville Parish, La., when because of an engine malfunction he stopped the vehicle in the northbound lane of the highway. The truck was stopped on a slight incline in a moderate right curve. The vehicle was entirely in the northbound lane on the paved portion of the road with the left side of it being about two to three feet from the center lane. Crowley did not remove the vehicle to the shoulder of the road because there was only a two to three foot shoulder with a deep ditch adjacent to it. Crowley abandoned the pulpwood truck about 30 to 40 minutes after it stopped, without posting any warning devices, all contrary to the requirements of LSA-R.S. 32:141 and LSA-R.S. 32:368 .

A short time after Crowley abandoned the wood truck, Truluck, age 83, driving a 1972 Chevrolet automobile in a northerly direction on Hwy. 154, approached the location of the stalled truck and while attempting to pass it on the left side in the southbound lane of 154, collided with the left rear wheel of the parked truck, lost control of his car, and came to a stop some 140' north of the truck in a ditch on the east side of the highway.

The trial court found Truluck free of negligence and concluded the accident was caused solely by the negligence of Crowley because he had abandoned the stalled truck without attempting to protect traffic from it as required by LSA-R.S. 32:141, and because of his failure to install any warning devices required by LSA-R.S. 32:368.

Appellants assert numerous detailed assignments of error, but all of them are directly related to and form a part of appellants’ two basic assignments of error, one being that the trial court committed error in finding negligence on the part of Crowley, operator of the truck, and the second being the finding of the trial court that Truluck was free of any negligence which contributed to the accident. Because we find Truluck was guilty of negligence which contributed to the accident which requires reversal of the judgments rendered in each of these consolidated cases, we find it unnecessary to address the issue of the negligence of the driver of the wood truck.

Pictures of the area where the accident happened are contained in the record. There are a series of pictures taken on May 23, 1980 wherein the truck loaded with pulpwood that was involved in the accident was placed in the identical position on the highway where it was when the accident occurred. The location where the truck was placed for the purpose of these pictures was the place it was on the highway at the time of the accident as pointed out by a deputy sheriff of Bienville Parish, who had arrived at the scene of the accident shortly after it occurred.

As Truluck approached the stalled truck, he was coming down a hill, and one of the pictures taken in May, 1980 reflects he should have clearly been able to observe the stalled truck when he reached a distance of 485 ft. from it. This picture shows the foliage from some gum and pine trees, the base of which were 14 ft. east of the blacktop roadway, extended slightly over the edge of the paved portion of the highway, and which would have obstructed Truluck’s view of the right top side of the loaded truck. A picture taken on the same day 416 ft. from the parked loaded truck establishes there is only the slightest portion of the right top rear of the truck obscured from vision by the foliage of the trees. A picture taken 330 ft. south of the parked loaded pulpwood truck reflects the truck is totally visible and that the foliage of the trees located on the east side of the highway does not in any way impair the vision of a northbound motorist approaching from the south. Though these pictures were taken more than two years after the accident occurred, they show essentially the same view of the area where the accident occurred as is reflected in a series of pictures contained in the record which were taken on Feb. 7, 1979, less than 60 days from the time the accident occurred on December 18, 1978, with the single exception that the foliage on the trees that extended slightly over the northbound lane in the February 1979 pictures appears to be less thick and therefore creating less obstruction to the vision of northbound motorists than was the foliage reflected in the May, 1980 pictures. The slight difference in the appearance of the leaves of the trees in the 1979 and the 1980 pictures no doubt can be explained by virtue of the fact that the numerous gum trees appearing among the pine trees had no foliage upon them at the time the photos were taken in Feb. 1979. We observe that there also would have been no foliage on the gum trees when the accident occurred in Dec. 1978.

The Louisiana State Trooper that investigated this accident testified on the day following the accident he checked the vision of a northbound motorist approaching the site of the stalled truck by placing a man at the location where the truck had been, and concluded that northbound motorists should have seen the truck 300 ft. before arriving at it. The trooper’s observation on the day following the accident is consistent with the pictures in the record because it is apparent that an approaching northbound motorist would have been able to observe a large pulpwood truck sooner than he could observe a man standing where the truck had been.

Truluck testified he saw the stalled truck when he was 130 steps (390 ft.) from it, and that at the time he was traveling only 30 mph. He stated he continued to observe the truck from the first time he saw it and he could easily have stopped, but did not do so because he thought the truck to be moving. He stated he was simply creeping along waiting to find a place to pass the moving truck:

“Q. From that time until you realized that the truck was stopped did you look at the truck the whole time, did you keep it in vision in front of you?
A. No, I thought he was moving on. I just creeping along there and trying to find a place I could pass him when I got to him.
Q. Well what I mean is when you were catching up to the truck, Mr. Truluck, when you were catching up to him and getting closer were you still looking at the truck that whole time?
A. I was looking at the truck, yes, sir, that’s right.
Q. You had the truck in full view?
A. That’s right.
Q. And you could see the truck?
A. Uh huh (yes).
Q. But you still didn’t realize it was stopped?
A. I didn’t realize it was stopped. I never seen anything like that before in my life.”

Truluck testified he did not realize the truck was stopped until he was within a few feet of the rear of the stalled truck, at which time he attempted to pass to the left of the truck in the lane of the highway provided for southbound traffic, whereupon his right front tire collided with the left rear wheel of the truck, causing him to lose control of his car and run into the ditch on the east side of the highway north of the truck.

The trial judge in his reasons for judgment made the following statement with regard to Truluck’s testimony:

“Regarding plaintiff’s testimony, this Court was convinced that he could not remember in pertinent detail what happened. He suffered amnesia for some time after the accident. Much of his testimony was obviously un purposefully, incredible; for instance, testimony that he did not realize the truck was immobile until he was only five or ten feet away, when he swerved (leaving no skidmarks, etc.) and almost got by. Had he been going slowly enough to accomplish that feat, he could not have careened another 148 feet following the impact, etc. He was 83 years of age and un purposefully very uncertain mentally. Accordingly, the Court must rely upon physical evidence introduced to reconstruct pertinent plaintiff actions prior to the accident and finds that:
1. Plaintiff was not traveling at an excessive rate of speed;
2. There was no evidence of skid marks or tire marks by the plaintiff’s vehicle prior to the collision;
3. The right front of plaintiff’s vehicle struck the truck’s left rear tire;
4. Plaintiff recognized that defendant’s truck was stalled in his right of way at a distance sufficient to permit maneuvering that almost avoided the peril;
5. After collision, plaintiff’s vehicle careened past the truck in the southbound (oncoming) lane and came to rest in the east ditch, about 148 feet after the collision.”

We agree with the trial court’s evaluation of Truluck’s testimony with regard to his statement that he did not realize the truck was stopped until he was only 5 or 10 feet away from it, at which time he commenced his maneuver to pass the truck to the left. Obviously, this testimony is incorrect because Truluck was bound to have been further south of the truck than 5 to 10 feet when he commenced his maneuver to enter the southbound lane of Hwy. 154, or otherwise he would have collided with more of the rear of the truck than the left rear wheel.

We find Truluck’s testimony to the effect that he observed the stalled truck 130 steps before he reached it and was traveling at 30 mph at this time clear and unambiguous as it is contained in the record. The pictures in the record and the testimony of the trooper clearly support the reasonableness of Truluck’s statement as to the distance he was from the truck when he observed it. His testimony about his speed and his observation of the truck is explained and made unequivocally clear when he states he was only creeping along the highway awaiting an opportunity to pass the truck just before he realized the truck was stopped. To the extent that the quoted paragraph from the reasons of the trial judge is inconsistent with these facts, we find the trial judge’s factual determination in this regard to be clearly wrong.

The trial judge relies heavily in his reasons for judgment upon the decision of Dixie Drive It Yourself Sys. v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962), apparently solely for the purpose of concluding that Crowley’s failure to comply with LSA-R.S. 32:141 and LSA-R.S. 32:368 established negligence on his part which was the sole cause of the accident. We note that in Dixie the supreme court specifically agreed that the driver of the Dixie vehicle, which collided with the stalled truck in the right hand lane of Airline Highway south of Kenner, was guilty of negligence that contributed to the accident because he failed to avoid the accident while driving 45 mph after observing the stalled vehicle on a rainy day a distance of 200 ft. in front of him. The driver of the Dixie vehicle stated he only realized the stalled vehicle with which he collided was stopped when he reached a point 85 ft. from it. The court there stated 137 So.2d at p. 303:

“Nonetheless, the record fully supports the finding of both the district court and the Court of Appeal that the driver of the Dixie truck was negligent in that he ‘ * * * failed to see * * * [the obstructing truck], and failed to realize it was stopped on the highway in time to avoid the collision.’

A motorist on a highway is required to maintain a careful lookout. He is required to see what he should have seen and if he becomes involved in an accident because of his failure to maintain a proper lookout, he is guilty of negligence which contributed to the accident.

In the case of Levy v. Graffagnini, 255 So.2d 422 (La.App. 4th Cir. 1971), the court made the following statement with regard to the law:

“The duty of a motorist to look ahead and observe never ceases and he is held to have seen an object which, by the exercise of ordinary care and prudence, he should have seen in time to avoid a collision with that object; he is under a continuing duty to maintain a proper lookout and always must closely observe preceding traffic.” Id. at 424.

In the case of Boyd v. Damico, 230 So.2d 425 (La.App.3d Cir. 1969), the court stated:

“It is well settled that a motorist has the duty to discover another vehicle in the road ahead of him if such discovery can be made by the exercise of ordinary and reasonable care. The facts of this case fall within that general rule, and we find that Mrs. Tanner should have observed the stopped car and taken appropriate action to avoid the accident.” Id. at 428.

The pictures in the record, the testimony of the state trooper, and the testimony of Truluck, all establish that had Tru-luck been maintaining a proper lookout he could have stopped his vehicle after he saw the stalled truck and avoided the accident. He was under a duty not only to see the truck, but to observe that it was stopped. Truluck’s failure to maintain such a lookout that he could have observed the truck was stopped when there was no obstruction to his vision constitutes negligence which is one of the causes of the accident, and the trial court’s conclusion that he was free of negligence is clearly wrong.

The judgments appealed from are REVERSED, the demands of each of the plaintiffs in these consolidated cases are rejected, and all costs are assessed against the plaintiffs in the respective actions.

FRED W. JONES, Judge,

dissenting.

A more appropriate case than this for application of the duty/risk analysis of Dixie Drive It Yourself would be difficult to envision — as correctly perceived by the trial judge.

Dixie also involved the rear-ending of a disabled truck which blocked its traffic lane on a two-lane highway. No flares or signal flags had been placed as required by statute. Suit for damages was brought by the lessor-owner of the vehicle which struck the stalled truck. As the majority here correctly points out, our Supreme Court agreed with the findings of the lower courts that both the driver of the stalled truck and the driver of the oncoming vehicle were negligent. However, departing in a significant way from prior Louisiana tort jurisprudence, the court rejected the proximate cause approach used by the lower courts, directing its inquiry to whether the risk and harm encountered by the plaintiff fell within the scope of protection of the statute requiring placement of warning devices. Answering in the affirmative, it was noted:

“The objective of the statutory provisions violated in the instant case was to protect against the likelihood that an oncoming motorist, whether cautious, confused or inattentive, would fail to timely perceive the vehicle or that it was stationary and become involved in an accident.” 137 So.2d p. 306.

The court concluded that “to deny recovery because of the plaintiff’s exposure to the risk from which it was the purpose of the law to protect him would nullify the statutory duty and render its protection meaningless.”

Dixie did not deal directly with the extent of a defendant’s duty in the face of plaintiff’s misconduct because of the court’s holding that the conduct of the driver of the following truck was not imputable to the plaintiff-owner. However, in a series of later cases our Supreme Court has recognized the logical extension of the Dixie holding — that if inattentive drivers generally are within the ambit of the duty defendant has breached, there is no reason to exclude inattentive plaintiffs.

Justice Dixon pointed out in his concurring opinion in Pence:

“The duty-breach-of-duty approach adopted by this court and well discussed by the majority opinion negates the need for inquiry into the doctrine of contributory negligence and last clear chance. The proper test is whether the duty imposed on this defendant, whether statutory or non-statutory, is designed to protect this plaintiff in her intoxicated condition from the risk to which she was exposed. This standard includes the protections provided by the above doctrine.”

In the recent case of McCrory v. Rochester, 398 So.2d 1115 (La.1981) the plaintiff driver was confronted by a stationary truck loaded with pipe extending some ten feet back from the end of the truck bed. No red flags had been placed on the end of the pipe. Plaintiff conceded that he had observed the truck but did not realize it was stopped. The Court of Appeal found defendant negligent for stopping his truck without using his emergency flashers, but then barred plaintiff from recovery because of his contributory negligence in failing to reduce his speed when he first saw the truck. Reversing the Court of Appeal, Justice Watson commented:

“As the trial court astutely observed, depth perception is difficult at a distance and that is the purpose behind the statute requiring warning flags on oversized loads. McCrory could have reduced his speed when he saw the truck ahead of him displaying a right turn blinker. However, the average reasonable motorist would assume, absent evidence to the contrary, that the truck was moving slowly. Had the truck been in motion, the accident would not have occurred. McCrory almost avoided the collision as it was. McCrory acted like a reasonable motorist. One is not required to drive in a super-cautious manner.”

In the case at bar the defendant driver of a loaded pulpwood truck was driving north over a winding, hilly road in a rural area of Bienville Parish when his motor stopped. He coasted downhill and had started up a moderate incline when his vehicle came to a halt. After waiting there for some thirty minutes, the driver abandoned the truck in the middle of his traffic lane and went for assistance. No warning devices were placed on the highway as mandated by statute.

Plaintiff Truluck, approaching from the south in the same traffic lane as the abandoned pulpwood truck, came over the hill at a speed of approximately 30 miles per hour. Thinking that the truck in front of him was moving slowly, Truluck continued forward at the same speed, intending to pass the truck at the first opportunity. When he finally realized that the truck was actually stopped in his traffic lane, Truluck swerved his car to the left, nearly missing the obstructing vehicle. However, the right front of the Truluck car struck the left rear wheel of the stalled truck, and then traveled about 148 feet before coming to rest in a ditch on the side of the highway.

Ruling in favor of plaintiffs, the trial judge observed that “had defendant undertaken the most minimal effort to warn oncoming vehicles, the accident would not have happened.”

Utilizing the duty/risk analysis of Dixie, I agree with the trial judge that:

(1) The obstructing driver was negligent in abandoning his loaded pulpwood truck in the middle of his traffic lane without placing flares or other warning devices as required by statute.
(2) This negligence was a cause-in-fact of the accident, since it would not have occurred if the oncoming plaintiff had seen the warning devices.
(3) The duty imposed upon the obstructing driver to post warning devices was designed to protect against the likelihood that an oncoming motorist such as Tru-luck, whether cautious or inattentive, would fail to timely perceive the stationary vehicle.
As pointed out in McCrory, the average reasonable motorist would have assumed that the loaded pulpwood truck was moving slowly. If it had been, the accident would not have happened. As it was, Truluck almost avoided the collision. Furthermore, at this accident site depth perception presented an acute problem.

As Justice Dixon explained in Pence, under the Dixie duty/risk analysis any necessity for discussing the doctrine of contributory negligence is negated. Simply put, plaintiff Truluck’s failure to timely notice that the pulpwood truck was stopped rather than moving slowly should not bar his recovery because the primary purpose of the law requiring placement of warning devices is to protect oncoming motorists who might conduct themselves as did Truluck. This precise point was made in Dixie when that court pointed out that to bar recovery because of the oncoming motorist’s inattentiveness would nullify the statutory duty and render its protection meaningless. The majority in this case, in reversing the trial judge, does exactly this — deprives Truluck of the protection afforded him by the statute requiring placement of warning devices by drivers of obstructing vehicles. For this reason, I respectfully dissent.

      . LSA-R.S. 32:141 — A. Upon any highway outside of a business or residence district, no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main traveled part of the highway when it is practicable to stop, park or so leave such vehicle off such part of said highway, but in every event an unobstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicles shall be available from a distance of two hundred feet in each direction upon such highway.
      B. The provisions of this Section shall not apply to the driver of any vehicle which is disabled while on the main traveled portion of a highway so that it is impossible to avoid stopping and temporarily leaving the vehicle in that position. However, the driver shall remove the vehicle as soon as possible, and until it is removed it is his responsibility to protect traffic.
      C. The driver of any vehicle left parked, attended or unattended, on any highway, between sunset and sunrise, shall display appropriate signal lights thereon, sufficient to warn approaching traffic of its presence.

      . LSA-R.S. 32:368 — A. Whenever any freight carrying vehicle, passenger bus, truck tractor, trailer, semi-trailer, or any motor vehicle pulling a house trailer or other vehicle, is disabled upon the traveled portion of any highway of this state, or the shoulder thereof, at any time when the lighted lamps are required on vehicles, the driver of such vehicle shall display the following warning devices upon the highway during the time the vehicle is so disabled on the highway except as provided in Subsection B of this Section:
      (1) A lighted fuse, a lighted red electric lantern or a portable red emergency reflector shall be immediately placed at the traffic side of the vehicle in the direction of the nearest approaching traffic.
      (2) As soon thereafter as possible, but in any event within the burning period of the fuse (15 minutes), the driver shall place three liquid burning flares (put torches), or three lighted red electric lanterns or three portable red emergency reflectors on the traveled portion of the highway in the following order:
      (a) One, approximately 100 feet from the disabled vehicle in the center of the lane occupied by such vehicle and toward traffic approaching in that lane.
      (b) One, approximately 100 feet in the opposite direction from the disabled vehicle and in the center of the traffic lane occupied by such vehicle.
      (c) One at the traffic side of the disabled vehicle approximately 10 feet rearward or forward thereof in the direction of the nearest approaching traffic.

      D. Whenever any vehicle of a type referred to in this Section is disabled upon the traveled portion of a highway of this state or the shoulder thereof, outside of any municipality, at any time when the display of fuses, flares, red electric lanterns or portable red emergency reflectors is not required, the driver of the vehicle shall display two red flags upon the roadway in the lane of traffic occupied by the disabled vehicle, one at a distance of approximately 100 feet in advance of the vehicle, and one at a distance of approximately 100 feet to the rear of the vehicle.

      . See Pence v. Ketchum, 326 So.2d 831 (La.1976); Baumgartner v. State Farm Mutual Ins. Co., 356 So.2d 400 (La.1978); Boyer v. Johnson, 360 So.2d 1164 (La.1978); Rue v. State Dept. of Highways, 372 So.2d 1197 (La.1979).
      For an excellent discussion of the impact of Dixie upon the development of our tort law, see Johnson, Duty/Risk Analysis, 40 La.L.Rev. 319 (1980).


author: ELLIS, Judge: COLE, Judge,

text:
    Carolyn Simoneaux VICCINELLI, v. Ronald L. CAUSEY.
    No. 14144.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1981.
    Rehearing Denied Aug. 25, 1981.
    Guy A. Módica, Baton Rouge, for plaintiff-appellee Carolyn Simoneaux Viccinelli.
    Michael R. Wheeler, Baton Rouge, for defendant-appellee Lawrence Dale Simo-neaux.
    Ralph M. Kelton, Baton Rouge, for defendant-appellant, Ronald L. Causey.
    Before ELLIS, COLE and WATKINS, JJ.
   ELLIS, Judge:

On November 12, 1969, a judgment of separation was signed between plaintiff Carolyn Gremillion Simoneaux (now Vicci-nelli) and Lawrence Dale Simoneaux, dissolving the community which formerly existed between them. On July 13, 1970, a deficiency judgment was rendered against Mr. Simoneaux and in favor of Commercial Securities Company, Inc., for $2,495.41, plus interest and attorney’s fees.

On January 21, 1971, Mr. and Mrs. Simo-neaux entered into a community property settlement, by virtue of which Mrs. Simo-neaux received the community home, and assumed payment of the first mortgage thereon. Mr. Simoneaux assumed all other community debts.

Throughout the separation and divorce proceedings, Mrs. Simoneaux was represented by Ronald L. Causey. Mr. Causey testified that he was aware of the judgment against Mr. Simoneaux at the time of the settlement, and that he told Mrs. Simo-neaux about it. He did not say that he explained that the recordation of the judgment created a judicial mortgage on her property. Mrs. Simoneaux testified that she did not know about the judgment or its effect, and would not have executed the settlement had she known.

In 1977, Mrs. Simoneaux testified that she learned of the judgment for the first time when she sold her home and was forced to pay $4,452.47 to satisfy it and remove the inscription thereof.

This suit was filed to recover that amount from both Mr. Simoneaux and Mr. Causey. After trial on the merits, judgment was rendered in favor of plaintiff and against Mr. Simoneaux as prayed for, and the suit was dismissed as to Mr. Causey. A new trial was granted and the judgment was amended to render Mr. Causey solidarily liable with Mr. Simoneaux. From that judgment, Mr. Causey has appealed.

In the original petition, it was alleged that Mr. Causey was liable because, as notary on the community settlement, he failed to obtain and attach the mortgage certificate required by Article 3364 of the Civil Code. The trial judge was of the opinion that Article 3364 applied only to sales, mortgages and donations of immova-bles, and not to community property settlements. However, during the trial of the case, it appeared, from testimony admitted without objection, that Mr. Causey acted as attorney for Mrs. Simoneaux throughout the separation and divorce proceedings, and that he was aware that there was a judgment against Mr. Simoneaux which would attach to the property received by Mrs. Simoneaux in the settlement.

After the original judgment was rendered, plaintiff moved to amend the pleadings to conform to the evidence, raised for the first time the question of Mr. Causey’s liability as an attorney, and asked for a new trial. As pointed out above, the new trial was granted, the trial judge having found that the pleadings had been enlarged by the testimony relative to Mr. Causey’s representation of Mrs. Simoneaux, and that the question of his liability as an attorney was before the court. At the hearing on the new trial, the court found that Mr. Causey was liable because he had not exhibited the degree of skill and diligence required of an attorney in his representation of Mrs. Simo-neaux.

In this court, Mr. Causey argues that the court erred in finding that the pleadings had been enlarged and that he did not exercise the skill and diligence required of an attorney.

Defendant Causey contends that the evidence relative to his activities as plaintiff’s attorney was admissible under the allegations of the original petition, and that the pleadings were not enlarged thereby. We cannot agree. The only basis alleged in the original petition for Mr. Causey’s liability was his failure, as a notary public, to attach the certificates required by Article 3364 of the Civil Code. The evidence of his activities as attorney has nothing to do with his ministerial duties as a notary. If objected to, that evidence could have been excluded as irrelevant. Its admission into evidence without objection therefore resulted in an enlargement of the pleadings, and introduced the issue of Mr. Causey’s liability for his activities as an attorney. Article 1154, Code of Civil Procedure; Wexler v. Martin, 367 So.2d 111 (La.App. 4th Cir. 1979).

Mr. Causey further contends that the evidence introduced in the case is not sufficient to render him liable for malpractice. The standard of practice which an attorney must exercise is set forth in Ramp v. St. Paul Fire and Marine Insurance Company, 263 La. 774, 269 So.2d 239 (1972), as follows:

“An attorney is obligated to exercise at least that degree of care, skill, and diligence which is exercised by prudent practicing attorneys in his locality. He is not required to exercise perfect judgment in every instance. However, the attorney’s license to practice and his contract for employment hold out to the client that he possesses certain minimal skills, knowledge, and abilities. The fact that an attorney’s judgment in confecting contracts, handling suits, and doing other business may result in litigation is not, in and of itself a breach of a duty to the client. Risk of future litigation is often a necessary element or result of legal advice and legal representation. The very fact of litigation is a result of the disparity of professional judgment of those in the legal profession. However, lawyers are obligated to scrutinize any contract which they advise their clients to execute, and are required to disclose the full import of the instrument and the possible consequences that may arise upon execution of it.”

In Muse v. St. Paul Fire and Marine Insurance Company, 328 So.2d 698 (La.App. 1st Cir. 1976), this court said:

“In any given instance, the standard of care owed by an attorney to his client may be established by expert testimony or recognized by the trial court, which is familiar with the standards of practice in its locality, without the assistance of expert testimony. Watkins v. Sheppard, La.App., 278 So.2d 890. There may even be instances wherein a practitioner’s conduct is such as to constitute failure to use due care under any reasonable standard, thereby making the use of expert testimony unnecessary to establish a criteria of care. Watkins v. Sheppard, above.”

We are satisfied from the record that Mr. Causey failed to explain to Mrs. Simoneaux either the significance of the judgment against Mr. Simoneaux, or how it would affect the title to the property which she was receiving. We are further satisfied that Mrs. Simoneaux would not have entered into the community settlement had she been aware that the judgment constituted a judicial mortgage on the property which she was to receive.

Even though there is no expert testimony in the record as to the standard of practice in East Baton Rouge Parish, we agree with the trial judge that Mr. Causey’s representation of plaintiff fell below any reasonable standard of care, diligence and skill, and that he is guilty of professional malpractice as defined in the Ramp case, supra.

The judgment appealed from is therefore affirmed, at defendant’s cost.

AFFIRMED.

COLE, Judge,

concurring:

Defendant, Ronald L. Causey, admitted under cross-examination he was aware of the judgment effecting a judicial mortgage against the property being conveyed to his client. His source of knowledge was twofold, discussions with the judgment debtor and the publication of legal news. While he contends he discussed the judgment with his client, who emphatically denied any knowledge of it, Causey noticeably never conveyed to her knowledge elementary to even the most unskilled counsel, i. e., a money judgment creates a judicial mortgage against the judgment debtor’s immovable property. This failure to fulfill his duty and responsibility as an attorney, whether the result of negligence or by design, cost his client $4,452.47 and is the very essence of malpractice. See, Muse v. St. Paul Fire and Marine Insurance Company, 328 So.2d 698 (La.App. 1st Cir. 1976).


author: COLE, Judge.

text:
    BAKER BANK AND TRUST COMPANY v. Robert Lee MATTHEWS, Sr., et al.
    No. 14203.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1981.
    Rehearing Denied Aug. 25, 1981.

      E. Wade Shows, Baton Rouge, for plaintiff-appellant Baker Bank and Trust Co.
    Ford T. Hardy, Jr., New Orleans, for defendants-appellees Robert Lee Matthews, Sr., and Joyce Busby Matthews.
    Before ELLIS, COLE and WATKINS, JJ.
   COLE, Judge.

On August 10, 1976, defendant Robert Lee Matthews executed a collateral chattel mortgage note in the amount of $21,624.12. The note was secured by a collateral chattel mortgage on a 1973 Chrysler Newport automobile. On October 12, 1976, Matthews and his wife, Joyce Busby Matthews, executed a collateral mortgage note in the amount of $25,000. This note was secured by a collateral mortgage on certain real estate, described as Lot A-7-A of the S. E. Robinson Tract. Both notes and their respective mortgages were allegedly pledged to secure a hand note, executed on October 11, 1976, in the amount of $35,804.16. All notes were payable at Baker Bank & Trust Company. The Matthews made only four payments of $426.24 each, totalling $1,704.96. This left a pay-off of $29,192.56 as of April 28, 1978, as figured by Keith Powers, Vice-President of Baker Bank.

On May 1, 1978 Baker Bank filed a petition for executory process and the mortgaged property was seized. The defendants filed an injunction to arrest the seizure and sale, alleging, among other things, the hand note did not state it was secured by the collateral chattel mortgage and note. The parties then entered into a stipulation whereby the plaintiff agreed to convert the executory proceeding into an ordinary proceeding and the defendants agreed to waive all claims for damages resulting from the dissolution of a temporary restraining order.

Meanwhile, defendants, through their attorney, wrote a letter to Baker Bank, stating they were entitled to rescind the loan because the creditor had failed to make the required disclosures involving the security interest. The letter stated that because of this violation the bank was obligated to terminate the security interest created by the transaction. The letter closed, “Tender is hereby offered of reasonable value.”

Defendants then filed an answer to Baker Bank’s petition and a reconventional demand, alleging they had rescinded the consumer credit transaction and Baker Bank had failed to comply with the law by returning any earnest money, downpayment, etc. They further alleged the Baker Bank had failed to take the necessary action to terminate the security interest and therefore the bank should forfeit all principal, interest and charges, and that the Matthews were entitled to penalties, actual damages, attorney’s fees and all reasonable costs.

A trial on the merits was held and judgment was rendered against Baker Bank and in favor of the Matthews on the main demand. On the reconventional demand judgment was rendered in favor of the plaintiffs in reconvention (the Matthews) and against Baker Bank. The trial court recognized the Matthews' right to rescind the loan and to receive any earnest money, down payments and interest payments, all with legal interest from the date of judicial demand. The bank was ordered to cancel the finance charges and the clerk of court was ordered to cancel the notes and mortgages. The bank was granted a set-off in the amount of the proceeds the Matthews actually received. Baker Bank was ordered to pay all costs. Attorney fees were awarded to the Matthews in the amount of $1,000. Baker Bank has appealed.

As a preliminary matter, we note the applicable law in this area is the Consumer Credit Protection Act, 15 U.S.C. § 1601 (1968), et seq., also referred to as the “Truth in Lending” law. The Act requires a creditor to make various disclosures to the consumer and failure to do so results in certain penalties for the creditor. If a consumer proves there has been a failure to disclose any information required to be disclosed under the Act, the consumer is entitled to twice the amount of the finance charge, (but no more than $1,000 and no less than $100) costs and attorney’s fees. 15 U.S.C. § 1640(a) (1968). These damages must be sued for within one year of the date of the violation. 15 U.S.C. § 1640(e) (1968). A more severe remedy is provided by 15 U.S.C. § 1635 (1968). If a consumer proves the creditor failed to make a material disclosure the consumer is entitled to rescind the loan. By invoking this action the consumer is relieved of his obligation to pay any finance or other charges and the security interest given becomes void. The loan is effectively “cancelled” and certain steps are taken by the consumer that could result in the consumer retaining the loan proceeds.

The first issue to be decided is whether the loan was a consumer loan or a commercial loan. (If the loan is a commercial loan the consumer credit law has no application.) The word “consumer” is defined by 15 U.S.C. § 1602(h) (1968) as follows:

“The adjective ‘consumer,’ used with reference to a credit transaction, characterizes the transaction as one in which the party to whom credit is offered or extended is a natural person, and the money, property, or services which are the subject of the transaction are primarily for personal, family, household, or agricultural purposes.” (Emphasis added.)

We find no manifest error in the trial court’s determination that the loan was used primarily for personal reasons. A careful examination of the record shows the loan proceeds were used admittedly for both personal and commercial reasons. The Matthews received $13,000 in proceeds in August of 1976 and there is no question that these funds were used to pay off several personal debts. The Matthews in effect “refinanced” the first loan in October and received a total sum of $24,000 in proceeds. Of this sum $14,870.29 was used to pay off the balance of the first loan and $9,129.71 was deposited to a checking account in the name of Matthew Tool Company. It is apparent the majority of the loan proceeds was used to pay off the first loan, which was clearly for personal use. Even if the remaining funds were used totally for commercial reasons we still conclude the nature of the loan was primarily consumer, therefore the federal consumer protection laws are applicable. The consumer protection laws are to be construed liberally in favor of the consumer. Sellers v. Wollman, 510 F.2d 119 (5th Cir. 1975).

The next issue is whether or not the trial court erred in finding the plaintiff had failed to comply with the federal “Truth in Lending” law. The pertinent statute, 15 U.S.C. § 1639 reads in part as follows:

“.. . (a) Any creditor making a consumer loan . . . shall disclose each of the following items, to the extent applicable:
“(8) A description of any security interest held or to be retained or acquired by the creditor in connection with the extension of credit, and a clear identification of the property to which the security interest relates.”

The Consumer Credit Act is supplemented by the Truth in Lending Regulations promulgated by the Board of Governors of the Federal Reserve System. (12 C.F.R. § 226.1 (1974), et seq.) Section 226.8 deals particularly with the required disclosures. The pertinent language is as follows:

“(a) General Rule. Any creditor when extending credit . . . shall .. . make the disclosures required by this section. . . . At the time disclosures are made, the creditor shall furnish the customer with a duplicate of the instrument or a statement by which the required disclosures are made and on which the creditor is identified. All of the disclosures shall be made together on either
(1)The note or other instrument evidencing the obligation on the same side of the page and above or adjacent to the place for the customer’s signature; or
(2)One side of a separate statement which identifies the transaction.”

Section 226.8(b)(5) specifically requires that any security interest be disclosed and a clear identification of the property be given. An inscription on the $35,804.16 hand note states it is secured by the collateral mortgage and mortgage note on Lot A-7-A of Robinson Tract. No mention is made of the collateral chattel mortgage note or the collateral chattel mortgage. Also offered as exhibits were two disclosure statements, one dated August 10, 1976 and the other dated October 11, 1976. Both statements are marked at the top of the page as being statements for “secured” loan. At the bottom of both statements there is a space provided in which the security is to be described. In both statements this space is left blank.

The evidence supports the trial court’s conclusion that the proper disclosures were not made. Although the real estate mortgage was mentioned on the hand note, there is absolutely no reference to the collateral chattel mortgage note or its chattel security. Therefore, Baker Bank did not comply with the Truth in Lending law which requires disclosure of all security.

Baker Bank argues even if they have failed to make a disclosure, the error was not a material one so as to give the Matthews the right to rescind the loan. Again, we find it necessary to quote the pertinent parts of 15 U.S.C. § 1635.

“(a) ... in the case of any consumer credit transaction in which a security interest, including any such interest arising by operation of law, is or will be retained or acquired in any real property which is used or is expected to be used as the residence of the person to whom credit is extended, the obligor shall have the right to rescind the transaction until midnight of the third business day following the consummation of the transaction or the delivery of the disclosures required under this section and all other material disclosures required under this part, whichever is later, by notifying the creditor ... of his intention to do so.”

The Matthews argue they have the right to rescind because the material disclosures were never made. Counsel for Baker Bank argues this error should be classified as an unintentional violation for which the creditor is exempt under 15 U.S.C. § 1640(c). We agree with the trial court’s rejection of this argument. This defense contemplates clerical errors that arise in spite of a reasonable system for correcting them. McGowan v. King, Inc., 569 F.2d 845 (5th Cir. 1978). Further, the defense is unavailable in the present case because the record shows the creditor did not offer any evidence that a reasonable procedure had been employed to prevent such “clerical” errors. Without this affirmative evidence the defense cannot be invoked. Turner v. Firestone Tire & Rubber Co., 537 F.2d 1296 (5th Cir. 1976).

Baker Bank argues further the failure to disclose the security interest did not constitute failure to disclose a material fact because Mr. Matthews knew the property was being used as security. Although 15 U.S.C. § 1635 required there be a material nondisclosure in order for the debtor to rescind the contract, the statute does not define the word “material.” The meaning of the word material was discussed in Bustamante v. First Federal S. & L. Ass’n, Etc., 619 F.2d 360 (5th Cir. 1980). The Fifth Circuit noted the word has not been defined by statute, regulation, legislative history or jurisprudence. The court stated materiality must be determined in the context of the purpose of the Act. Section 1601 states the purpose of the act is to promote the “informed use of credit” by “assuring a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him.” The court concludes a material disclosure is one that “relates to information that would af-feet the credit shopper’s decision to utilize the credit.” The court cited Smith v. Chapman, 614 F.2d 968 (5th Cir. 1980), for the proposition that it is well settled an objective standard is used in determining violations of the Truth in Lending law. It is not necessary for the plaintiff-consumer to have actually been deceived for there to be a violation. The Bustamante court continued, “We apply, instead, an objective standard to determine the materiality question, based on what a reasonable consumer would find significant in deciding whether to use credit.”

We find there has been adequate disclosure of the security interest in the real estate, because the property was described on the face of the hand note, which is permissible under 12 C.F.R. § 226.8(a)(1) (1974). But there is not one iota of evidence showing the security interest on the automobile was ever disclosed to the Matthews. We must remember the value of a 1973 Chrysler Newport in 1976 was a great deal more than it is today. A reasonable consumer would find it significant that his automobile was being used as security. In Wilson v. Shreveport Loan Corporation, 404 F.Supp. 375 (W.D.La.1975), the U. S. District Court held the failure to disclose the existence of a chattel mortgage was a material nondisclosure so as to invoke the rescission remedy under the Truth in Lending law. It has been held there must be strict compliance with the technical requirements of the Act because only strict compliance will promote the standardization of terms which will permit consumers to readily make meaningful comparisons of available credit alternatives. Smith v. Chapman, supra.

Appellees have filed a supplemental brief in which they contend they are entitled to keep the proceeds of the loan because they made a proper tender of the proceeds to Baker Bank. 15 U.S.C. § 1635(b) (1968) requires the obligor to notify the creditor of his wish to rescind the loan. Upon receipt of the notice the creditor is to return any earnest money, downpayment, or other money given and to cancel any security interests. After the creditor performs these acts the obligor is to tender the property to the creditor, or offer to pay its reasonable value. If the creditor does not take possession of the property within ten days after tender, ownership of the property vests in the obligor without any obligation on his part to pay for it.

We agree with the trial court’s observation that no serious tender was made because under the circumstances, the Matthews were unable to return the funds. Testimony showed the Matthews made the loan in order to consolidate bills, promote the tool and to use for general living expenses. When asked about his ability to repay the loan as of the date of tender, Mr. Matthews responded as follows:

“Q. Did you instruct your attorney to direct a letter to the Baker Bank and Trust Company and offer to them a reasonable value to pay off the loan?
A. Yes, sir.
Q. And you knew that you didn’t have the money to pay off that loan did you Mr. Matthews?
A. That’s correct.
Q. Okay. Well, did you ask your lawyer if — did he ask you before he wrote that letter if you could pay the loan off?
A. We talked about it and he asked me if I could — if I had family or someone that could come up with a sufficient amount of money to satisfy the loan. And I told him that I didn’t know, we could check it out and see.
Q. But you didn’t think so?
A. I told him I didn’t know.”

We find no abuse of discretion by the trial court in its concluding the “tender of loan proceeds” was but an empty offer, due to the Matthews’ financial circumstances at the time. We therefore agree the Matthews are not entitled to keep the loan proceeds.

As regards the award of attorney fees herein, we find the trial court erred. Under 15 U.S.C. § 1640, before attorney fees may be assessed the cause of action must be brought within one year from the date of the violation. That was not done in this instance and, therefore, the claim for attorney fees has prescribed. Anderson v. Lester, 382 So.2d 1019, 1028 (La.App. 3d Cir. 1980).

Accordingly, the judgment of the trial court will be amended and recast in our decree, as follows:

DECREE

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment on the main demand in favor of plaintiff, Baker Bank and Trust Company, and against the defendants, Robert Lee Matthews and Joyce Busby Matthews, for the sum of $24,-000, representing the total sums actually advanced to the defendants, plus legal interest thereon from date of judicial demand, until paid.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment on the reconventional demand in favor of plaintiffs-in-reconvention, Robert Lee Matthews and Joyce Busby Matthews, and against defendant-in-reconvention, Baker Bank and Trust Company, rescinding the loan of October 11,1976, represented by a note in the amount of $35,804.16.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment on the reconventional demand in favor of plaintiffs-in-reconvention, Robert Lee Matthews and Joyce Busby Matthews, and against defendant-in-reconvention, Baker Bank and Trust Company, for the total sums paid by the said Robert Lee Matthews and Joyce Busby Matthews in connection with the aforesaid loan of October 11, 1976, regardless of the purpose or designation of their payments, same to bear legal interest from date of judicial demand, until paid.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the plaintiff and the defendants may, to the extent possible, off-set against each other the respective sums they have been ordered to pay pursuant to the main and reconventional demands herein.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Clerk of Court and Recorder of Mortgages for the Parish of East Baton Rouge, or such other office or agency as may be custodian, cancel the following mortgages and notes:

1. Collateral mortgage executed by Robert Lee Matthews, Sr. and Joyce Busby Matthews, dated October 12, 1976, in the amount of $25,000, affecting Lot A-7-A of the S. E. Robinson Tract, recorded in Mortgage Book _, Folio_
2. Collateral mortgage note executed by Robert Lee Matthews, Sr. and Joyce Busby Matthews, dated October 12, 1976, in the amount of $25,000, secured by the aforesaid collateral mortgage of even date.
3. Collateral chattel mortgage executed by Robert Lee Matthews and/or Joyce Busby Matthews, dated August 10, 1976, in the amount of $21,624.12, affecting one certain 1973 Chrysler Newport automobile.
4. Collateral chattel mortgage note executed by Robert L. Matthews, dated August 10, 1976, in the amount of $21,624.12, secured by the aforesaid collateral chattel mortgage of even date.
5. One certain promissory note (hand note), executed by Robert L. Matthews and Joyce Busby Matthews, dated October 11,1976, in the amount of $35,804.16 payable to the order of Baker Bank and Trust Company, and stated to be secured by a collateral mortgage and mortgage note dated October 12, 1976, in the amount of $35,804.16, affecting Lot A — 7-A of Robinson Tract, East Baton Rouge Parish.

Costs are to be paid one-half by the plaintiff and one-half by the defendants.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

      . Although the record does not specify, it is assumed a hand note was executed.

      . There is no explanation for why the hand note predated the second mortgage note.

      .Baker Bank is now known as First State Bank and Trust Company of East Baton Rouge Parish.

      . Mr. Matthews testified he used part of these funds to promote a tool he had patented and part for his daily living expenses.

      . “A creditor may not be held liable in any action brought under this section for a violation of this subchapter if the creditor shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.”


text:
    Frank LEWIS v. Robert Franklin AULT, et al.
    No. 14212.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1981.
    Rehearing Denied Aug. 25, 1981.

      Denis Paul Juge, New Orleans, for plaintiff-appellee Frank Lewis.
    Dennis R. Whalen, Baton Rouge, for defendant-appellant Robert Franklin Ault.
    Before ELLIS, COLE and WATKINS, JJ.
   COLE, Judge.

This matter is on suspensive appeal from the confirmation of a default judgment taken by plaintiff, Frank Lewis, against defendant, Robert Franklin Ault. The judgment appealed is one making executory a money judgment rendered by the Circuit Court for Hillsborough County, Florida.

On appeal, defendant first argues that the trial court erred in accepting evidence of the Florida judgment against Frank Ault without proof that he is the same person as Robert Franklin Ault, named as defendant herein.

The entire file of the Florida proceeding was introduced into evidence at the confirmation hearing. The record reveals that the Florida suit named one Frank Ault as defendant. The citation was issued to Frank Ault of 13131 Plank Road in Baker, Louisiana. Service was accomplished in person by Deputy H. E. Whitfield. This suit was one on a contract, which was introduced in evidence. This contract was executed by one “R. F. Ault” and bears the initials “R.F.A.” on each page.

The instant suit names Robert Franklin Ault as defendant and alleges that he is the same person as Frank Ault, the judgment debtor in the Florida suit. Personal service of the instant petition was made (again by Deputy Whitfield) on Robert Franklin Ault at Plank Road.

Defendant herein does not deny that he is, in fact, the judgment debtor in the Florida suit. Surely, if such were not the case, defendant would raise that fact. Under the circumstances of this case, we find that the signature “R. F. Ault” on the contract and the fact that service was made in both suits at Plank Road constitutes sufficient, competent evidence that the Florida judgment debtor and the present defendant are the same person.

Moreover, the judgment appealed recites that due proof was produced in support of plaintiff’s demands and that the law and the evidence was in favor of plaintiff. In such instances, there is a presumption in our law that due proof was, in fact, made of the elements of plaintiff’s case. The absence of a transcript of testimony is immaterial.

In Gilman v. Babin, 195 So.2d 737 (La. App. 1st Cir. 1967), writ refused, 250 La. 737, 199 So.2d 179 (1967), the court stated, at page 738:

“The settled jurisprudence of this state is to the effect that where it is expressed in the default judgment that it was confirmed and made final on due proof of the plaintiffs demands, it will be presumed that legal and sufficient evidence was produced before the judge and that the judgment is correct.” [Citations omitted.]

Further, Gilman states, at page 739:

“Where a record on appeal from a default judgment does not contain the transcript of testimony of any witnesses at the hearing on confirmation of default and the record does not contain statement of facts by the Trial Court, the default judgment is presumed to have been based upon sufficient evidence and to be correct and an appellate tribunal has no authority to inquire beyond the Trial Court’s recital that due proof was made.” [Citations omitted.]

In Ascension Builders, Inc. v. Jumonville, 262 La. 519, 263 So.2d 875, 877 (1972), the Supreme Court held:

“There is no requirement that a party confirming a default must have the testimony reduced to writing or that a note be made of the evidence introduced, and when a judgment has been rendered and no note of evidence has been made, it is incumbent upon the party desiring to appeal to secure a narrative in accordance with Articles 2130 and 2131 of the Code of Civil Procedure.”

See, also, Bourgeois v. Daigle, 340 So.2d 1063 (La.App. 1st Cir. 1976); Marie v. Doucette, 328 So.2d 805 (La.App. 1st Cir. 1976); Hutcherson v. Welch, 316 So.2d 144 (La. App. 2d Cir. 1975); Miller v. Miller, 283 So.2d 277 (La.App. 3d Cir. 1973).

Although not officially of record in this matter, plaintiff attaches to his brief a deposition taken by defendant following the default judgment in which counsel for defendant stipulated Dr. Robert Franklin Ault, Robert F. Ault and Frank Ault are one and the same person. Of record is defendant’s motion for suspensive appeal and his appeal bond, the former taken in the name of “Frank F. Ault” and the latter furnished in the name of “Robert Franklin Ault.”

We conclude defendant’s argument relative to his identity is totally without merit, frivolously made, and entails a waste of judicial time.

Defendant secondly contends that the trial court erred in permitting evidence to be taken in support of a defective petition and in failing to dismiss the petition ex proprio motu for that defect. The defect of which defendant complains is plaintiff’s failure to attach a duly authenticated copy of the Florida judgment to his petition, in accordance with Louisiana Code of Civil Procedure Articles 1395 and 2541.

Louisiana Code of Civil Procedure Article 2541, dealing with the execution of foreign judgments, provides that a “duly authenticated copy of the judgment or decree must be annexed to the petition.” The copy of the judgment annexed to the petition herein was a true copy certified by the clerk of the Florida court which rendered it. We find it meets the requirements of authentication set forth in article 1395 of the Code of Civil Procedure. Article 1395 provides that an official record of any state other than Louisiana may be evidenced by a copy attested by the officer having legal custody of the record, or by his deputy, accompanied with a certificate that such officer has the custody. That was done in this instance. There is stamped upon the copy of the Florida decree a certificate of the Clerk of Court of the County of Hillsborough, State of Florida, signed by a deputy clerk of court, to the effect that “the foregoing is a true and correct copy of the document on file in my office.” This certification sufficiently complies with the provisions of article 1395. See, Baldwin v. Baldwin, 337 So.2d 245 (La.App. 3d Cir. 1976).

Article 1395 also provides for certification by persons other than the one having legal custody of the record, such as a judge or a public officer of the district or political subdivision in which the record is kept. Unlike certification by the one having legal custody of the record, this additional method of certification requires authentication by the seal of the court or the seal of the office of the official. Defendant’s reliance upon the language from Article 1395 dealing with this additional method of certification cannot be taken seriously. The article is clear and the case law interpreting it is annotated for immediate disclosure and reference.

In addition to the copy of the Florida judgment annexed to plaintiff’s petition (properly authenticated pursuant to La. Code of Civ.P. art. 1395), there was admitted into evidence a copy of the entire Florida proceedings, including the judgment, authenticated in accordance with 28 U.S.C.A. 1738. This authentication under Acts of Congress satisfied the requirements necessary to afford the judgment full faith and credit in Louisiana and further insured the validity of the copy annexed to the petition. We note the copy of the judgment annexed to the petition need not have been served upon the defendant. La.Code Civ.P. art. 1311. Under these circumstances, even assuming the copy annexed to the petition was not properly authenticated, the purpose of requiring the annexation, i. e., to insure the judgment’s validity, was fulfilled. In no way could the defendant have suffered any prejudice. The Florida judgment described in the petition and the copy annexed thereto did not differ from the judgment offered in evidence and upon which the trial court based its decision.

A careful consideration of defendant’s posture relative to his complaint of a defective petition leads us again to the conclusion that judicial time has been wasted upon a frivolous argument. This argument, along with the one concerning identity of the defendant, was submitted in the brief filed by defendant’s counsel only two judicial days prior to the assigned hearing. This may have precluded plaintiff from moving for damages for frivolous appeal. Code of Civ.P. art 2164. In any event, that issue is not before the Court.

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of appeal are assessed against defendant-appellant.

AFFIRMED.

      . There is authority for the proposition that where the defendant, in an action on a foreign judgment rendered against a person of the same name, denies his identity with the defendant named in the transcript, the burden is upon him to disprove his identity, the naming of the defendant by the record being prima facie sufficient against him. Whiting v. Ivey, 3 La.Ann. 649 (1848).

      . We find it unnecessary to address plaintiffs argument that to attack the authenticity of the annexed judgment, it was incumbent upon defendant to file the dilatory exception prior to answer or judgment by default. Code of Civ.P. arts. 926, 928. Obviously, the issue could have been presented in the trial court by filing the dilatory exception, raising the objection of nonconformity of the petition with the requirement of Article 2541.


author: WATKINS, Judge.

text:
    Florence Morris RANDAZZO v. Matthew RANDAZZO, III.
    No. 14218.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1981.
    Rehearing Denied Aug. 25, 1981.

      Glynn A. Long, Donaldsonville, for plaintiff and appellee.
    Ralph Brewer, Baton Rouge, for defendant and appellant.
    Before ELLIS, COLE and WATKINS, JJ.
   WATKINS, Judge.

This is an appeal taken in a partition proceeding from a judgment homologating a judicially appointed notary’s recommendations concerning the extent of the assets comprising a marital community dissolved by judgment of separation, which was followed by judgment of divorce. Also at issue are the awarding of credits for various items, and the denial of other credits found in the notary’s recommendations as homolo-gated. We affirm.

Mrs. Florence Randazzo sought a partition of community assets in proceedings brought against Matthew J. Randazzo, III, who was at the time her husband but separated from her by judgment of separation from bed and board. The trial court appointed John A. Lieux, a notary public, from Gonzales, to hear testimony and make recommendations as to the composition of the community and credits to be allowed the parties. All witnesses were questioned in open court by counsel for both parties in the presence of the notary and the trial judge, with the exception of one witness, whose testimony was of little direct relevance, who was questioned through deposition. The notary then prepared lengthy recommendations, in which he weighed the credibility of witnesses and indicated the extent of the formerly existing community of acquets and gains and awarded credits. These findings were homologated by the trial judge.

We have thoroughly reviewed the entire record, and find no manifest error in the trial court’s determinations of the composition of the community and in the awarding of credits as reflected by the ho-mologation of the notary’s recommendations. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Dominque, 365 So.2d 1330 (La.1978). Indeed, we are satisfied after thorough review of the record the trial court’s determination was correct. We question the irregularity of the proceedings in the permitting of the notary to hear witnesses, ask questions, and make recommendations. The notary’s functions are expected to be purely ministerial in the effecting of a partition. Jung v. Stewart, 190 La. 91, 181 So. 867 (1938); cf. LSA-C.C.P. art. 4605. However, reversible error cannot be said to have been committed, as all major witnesses were questioned in the presence of the trial judge, in open court, and the trial judge participated in the trial in the performance of his judicial functions by presiding and asking questions of witnesses. The powers conferred upon the notary and executed by him exceeded the ministerial functions allotted the notary by law. The proceedings thus showed a certain laxity that we would prefer were absent, but the error did not affect the result. We, therefore, affirm.

Accordingly, the judgment of the trial court is affirmed, at appellant’s cost.

AFFIRMED.


author: COVINGTON, Judge.

text:
    Robert CLAY v. BITUMINOUS CASUALTY CORPORATION.
    No. 14220.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1981.
    Rehearing Denied Aug. 25, 1981.
    Gordon Hackman, Boutte, for plaintiff and appellant.
    Harold A. Thomas, New Orleans, for defendant and appellee.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   COVINGTON, Judge.

Plaintiff, Robert Clay, filed this civil action seeking workmen’s compensation benefits, together with penalties and attorney’s fees, from his employer’s workmen’s compensation insurer, Bituminous Casualty Corporation. The trial court rendered judgment in favor of defendant, dismissing plaintiff’s claim. From this judgment of dismissal, plaintiff perfected the present appeal. We affirm.

The record discloses that, in February of 1976, plaintiff was employed as a truck driver for Henry Industries of Houma, Louisiana. Pursuant to his duties, plaintiff was sent to Oklahoma to drive a truck loaded with cement to his employer’s place of business in Houma. Another employee of Henry Industries, Clarence Trahan, had also been dispatched to Oklahoma to drive a truckload of cement to Houma.

Plaintiff and Trahan embarked on their journey to Houma on February 7, 1976. They spent the nights of February 7 and February 8 at motels along the way. On February 9, they resumed their trip at approximately 6:30 a. m. About 5:30 or 6:00 p. m. they stopped for dinner at a restaurant in White Castle, Louisiana, where they purchased a six pack of beer. According to their own testimony, they each drank three beers. It was also their testimony that the three beers were the only alcoholic beverages which they drank on that day.

After finishing their dinner, they resumed their journey on Louisiana Highway 1 toward Houma. At this time, plaintiff was driving the lead truck, and Trahan was driving 200 to 300 feet behind plaintiff. They were traveling at about 45 to 50 miles per hour. Plaintiff testified that, at approximately 7:00 p.m., he swerved his truck onto the shoulder of the highway and then immediately tumbled down an embankment.

There is conflicting testimony as to why plaintiff swerved his truck and ultimately rolled down the embankment. He said that he had to swerve in order to avoid a car approaching in his lane of travel from the opposite direction. At trial, plaintiff testified that the car had made contact with his truck; however, on the day of the accident, he had made a statement to the investigating officer, State Trooper Joseph Himel, that the “phantom” car had not hit his truck. Mr. Trahan testified that the oncoming car had forced plaintiff off the road. However, he stated that, thereafter, it was two or three minutes before plaintiff’s truck tumbled down the embankment. In any event, the car, which plaintiff alleges forced him off the road, proceeded on its way and was never identified.

After the accident, plaintiff was brought to Assumption General Hospital. After reaching the hospital, Trooper Himel spoke with plaintiff about the accident; and Himel, with the consent of plaintiff, caused a blood alcohol test to be administered to plaintiff. The resulting analysis indicated that plaintiff had a blood alcohol level of .15.

Dr. Monroe Samuels, an expert in forensic pathology, stated that anyone with a .15 blood alcohol level would be intoxicated. Dr. Samuels testified as follows:

“I can . . ., without qualification, say that this particular individual [a person with .15 blood alcohol level] is an unsafe driver and is grossly impaired insofar as his driving capability is concerned.”

Dr. Samuels further stated:

“I think impairment of visual acuity, reflex time, motor coordination, and all of the other things that go into the rather complex motions, thought processes, and reaction that are involved in driving, at a .15, an individual would have to be considered in the unsafe driving category.”

As a result of the accident, plaintiff suffered an injury to his shoulder. Plaintiff alleges that this injury has rendered him totally and permanently disabled within the meaning of Louisiana’s Workmen’s Compensation Law.

The sole issue posed on appeal is whether the trial court manifestly erred in finding that plaintiff was intoxicated and that his intoxication was the cause of his injuries.

The statutory law relevant to plaintiff’s right to workmen’s compensation benefits is Louisiana Revised Statutes 23:1031 and 23:1081.

La.R.S. 23:1031 provides in pertinent part:

“If an employee not otherwise eliminated from the benefits of this Chapter, receives personal injury by accident arising out of and in the course of his employment, his employer shall pay compensation in the amounts, on the conditions, and to the person or persons hereinafter designated.” (Emphasis added).

La.R.S. 23:1081 provides, in part, that:

“No compensation shall be allowed for an injury caused ... (2) by the injured employee’s intoxication at the time of the injury ....
“In determining whether or not an employer shall be exempt from and relieved of paying compensation because of injury sustained by an employee for the causes and reasons set forth in this Section, the burden of proof shall be upon the employer.”

In the instant case, the trial court made factual findings and determined that the defendant had carried its burden of proving that plaintiff was intoxicated and' that his intoxication was the cause of his injuries. In so finding, the trial court rejected the testimony of plaintiff and Tra-han to the effect that plaintiff was not intoxicated and that he swerved off the road to avoid an oncoming car. Our review of these factual findings are limited to a determination of whether or not the record establishes that the trial court is clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Company, 283 So.2d 716 (La.1973). See also Parker v. Kroger’s, Inc., 394 So.2d 1178 (La. 1981). Moreover, when testimony is in conflict, reasonable evaluations of credibility and reasonable inferences of fact drawn by the trier of facts should not be disturbed on appeal. Martin v. Feiber, 357 So.2d 5 (La. App. 1 Cir. 1977).

Our review of the record convinces us that the trial court was not clearly wrong in finding that plaintiff was intoxicated at the moment his truck swerved off the highway. Plaintiff admitted that he had been drinking. The test administered to plaintiff after the accident showed his blood alcohol level to be .15. Dr. Samuels testified that anyone with this blood alcohol level would be intoxicated and his senses and reflexes would be greatly impaired.

Moreover, we find it clear that the trial court was correct in concluding that plaintiff’s intoxication caused him to swerve off the road. Plaintiff’s testimony at trial conflicted with the statement he had made shortly after the accident. The testimony of the only other eyewitness, Trahan, also conflicted with the testimony of plaintiff in many respects. Dr. Samuels testified categorically that a person with a .15 blood alcohol level would be an unsafe driver. In light of these factors, we certainly see no manifest error in the trial court’s rejection of the testimony of plaintiff and Trahan concerning a third car.

Under the facts and circumstances of the instant case, we find that the trial court was not clearly wrong in determining that defendant met its burden of proving that plaintiff’s intoxication caused the accident. See Arceneaux v. Domingue, supra; Canter v. Koehring Company, supra; Parker v. Kroger’s, Inc., supra. Accordingly, the judgment of the trial court dismissing plaintiff’s action for workmen’s compensation benefits is affirmed. Costs of appeal are to be borne by plaintiff.

AFFIRMED.

      . In Parker v. Kroger’s, Inc., 394 So.2d 1178 (La.1981), n. 3, the Court stated:
      “La.R.S. 32:662 creates a presumption that a person was under the influence of alcoholic beverages if at that time 0.10 percent or more by weight of alcohol was in his blood. Although this presumption is inapplicable in civil actions, it in no way prevents a civil litigant from introducing into evidence a person’s blood alcohol content and testimony of competent expert witnesses to interpret the effects of such a level on a person’s ability to operate a motor vehicle. Champagne v. McDonald, 355 So.2d 1335 (La.App. 3rd Cir. 1978); Brown v. Collins, 223 So.2d 453 (La. App. 3rd Cir. 1969).”


text:
    AGENCY RENT-A-CAR, INC. v. Joel J. HAMM, et al.
    No. 14273.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1981.
    Rehearing Denied Aug. 25, 1981.

      A. D. Barnes, Jr., New Orleans, for plaintiff-appellant Agency Rent-A-Car, Inc.
    Tim A. Tullos, Baton Rouge, for defendant-appellant State Farm Mutual Automobile Ins. Co. and defendant-appellee Joel J. Hamm.
    Harriet R. Campbell Young, New Orleans, for defendant-appellee Jill A. Lazare and Agency Rent-A-Car, Inc.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   COVINGTON, Judge.

This is a devolutive appeal taken by both the plaintiff, Agency Rent-A-Car, Inc. and third party plaintiff, State Farm Automobile Insurance Company, from a judgment dismissing the demands of each.

This case arises from an automobile accident on October 12, 1978, involving vehicles driven by Jill A. Lazare and Joel J. Hamm. The record shows that Lazare was driving a 1977 Dodge automobile owned by Agency Rent-A-Car, Inc., with Agency’s permission and consent and in accordance with the terms of a written rental agreement, containing an indemnity provision, between Lazare and Agency; Hamm was driving a 1969 Mercury automobile which was owned by him and insured by State Farm Mutual Automobile Insurance Company. The accident occurred on Jones Creek Road at George O’Neil [O’Neal] Road in East Baton Rouge Parish, Louisiana. The speed limit on Jones Creek Road at the site of the accident was 40 miles per hour. Jones Creek Road is the favored roadway, with George O’Neil Road (which is controlled by a stop sign) entering from the east in a “T” configuration. Hamm was traveling north on Jones Creek Road, and Lazare was proceeding to enter Jones Creek Road by making a left turn from George O’Neil Road, when the vehicles collided near the center of O’Neil Road where it intersects with Jones Creek Road and the center of the northbound lane on Jones Creek Road (east of the centerline of Jones Creek Road).

The principal demand was filed by Agency against Hamm and State Farm to recover damages of $2,653.17 to its car resulting from the accident, based on the negligence of Hamm. Hamm was never served, nor did State Farm file any pleadings in his behalf, so he is not a party to the suit. State Farm filed an answer, pleading alternatively that Hamm was not negligent, that Lazare was contributorily negligent and that her negligence should be imputed to Agency; and, in a third party demand, that State Farm was entitled to indemnity and/or contribution from Lazare and Agency in the event that State Farm should be found liable in the principal demand. Agency and Lazare answered the third party petition, admitting that the accident occurred but denying any negligence on La-zare’s part and denying State Farm’s right to recover.

The trial court found that Hamm was negligent in driving at an excessive rate of speed and, further, that Lazare did not discharge her duty to ascertain that a left-hand turn could be safely executed before making such a dangerous movement. The court was of the opinion that both drivers were negligent, and therefore recovery on the part of each was barred. Further, the court found that Agency was an indemnitor under a contract of lease with Lazare, and therefore imputed the negligence of Lazare to Agency; and, consequently, denied recovery to Agency. Costs of the proceedings were assessed jointly to Agency and State Farm. As indicated above, both have appealed. We affirm.

The record supports the trial judge’s finding that both motorists were negligent: Hamm, in driving at an excessive speed; Lazare, in not taking proper care in executing a left turn.

In making his finding, the trial judge orally commented:

“One of the laws of the State of Louisiana requires that a person who is about to enter a preferred road from a road which is controlled by a stop sign or other device is obligated to ascertain that the entrance into that preferred road can be made with immunity. It is the opinion of the Court that Ms. Lazare failed to discharge the obligation that she was under as far as the law is concerned to ascertain that a left-hand turn can be made to travel south on Jones Creek Road before making such a turn. The testimony this Court has heard today, it is of the opinion that Joel J. Hamm and his insurer are excluded from recovery in any way because of the excessive speed which the Court is satisfied existed at the time of this accident. According to his own testimony, he was exceeding forty miles an hour which is the posted speed limit on Jones Creek Road. The testimony of Corporal Don May of the Sheriff’s Department indicated that there were some ninety feet of skidmarks laid down by the Hamm automobile prior to the collision. It is therefore the opinion of the Court that both the drivers here, Ms. Jill A. Lazare and Mr. Joel J. Hamm, were both negligent and contributed to this accident precluding recovery on the part of either one.”

LSA-R.S. 32:62A requires that no motorist shall drive on the highways of this State at a speed greater than that which is reasonable and prudent, consistent with the traffic situation, the roadway surface and the weather conditions. In conformity with this statute our courts have consistently adhered to this speed control requirement. Kentzel Truck Lines, Inc. v. State Farm Insurance Co., 342 So.2d 1133 (La.App. 1 Cir. 1977).

In the instant case, the trial court correctly found that Hamm was driving at an excessive rate of speed.

Corporal Donald May of the East Baton Rouge Parish Sheriff’s Department testified that he investigated the accident, that Hamm informed him at the scene of the accident that just prior to the accident he (Hamm) was exceeding the speed limit and had looked to the left to see if some friends were at home. Hamm also told May that, after looking at his friend’s home, he turned his attention back to Jones Creek Road, saw the other car, slammed on his brakes, and slid into the Lazare car. May ascertained that Hamm left approximately 90 feet of skidmarks.

Based on various factors in his investigation, May estimated Hamm was travelling at approximately 55 MPH at the time of the accident. May also estimated that the vehicle driven by Lazare had just entered Jones Creek Road at the time of the accident.

The testimony of Hamm and Lazare was submitted on depositions. Lazare’s testimony corroborates the testimony of Corporal May. She stated that the car was “flying over the incline” and that she “got about three or four feet into the turn” when the accident happened. Hamm admitted that he was exceeding the speed limit, even though he denied that he was travelling 55 MPH.

It is well settled that a left-turn movement is generally characterized as a dangerous maneuver, not to be undertaken until the motorist ascertains that it can be made in safety. LSA-R.S. 32:104. It is incumbent on a motorist (such as Ms. La-zare) attempting such a maneuver not only to signal her intention to do so, but to look for both oncoming and overtaking traffic and ascertain that the turn can be made with reasonable safety. Of course, such a motorist is required not only to look, but to see what she should have seen. Casimere v. Ryder Truck Rental, Inc., 324 So.2d 855 (La.App. 4 Cir. 1975), writ denied, 329 So.2d 453 (La.1976); Hollier v. Gilder, 306 So.2d 475 (La.App. 3 Cir. 1975).

Under this rule, it is clear that Lazare was negligent. In executing the left turn, she failed to observe that Hamm’s vehicle was too close for her to safely execute a left turn. The evidence supports the trial court’s finding that Lazare failed to overcome the evidentiary burden imposed upon a left-turning motorist. Pierre v. Times-Picayune Publishing Company, 363 So.2d 1301 (La.App. 4 Cir. 1978).

In ruling on the question of whether Agency could recover despite the negligence of the driver of its automobile, the trial judge remarked:

“The Court is further of the opinion that Agency-Rent-A-Car, Incorporated is not in a position to recover in spite of the negligence of Jill Lazare inasmuch as they are indemnitors under the contract of lease they had with Ms. Lazare to the extent of fifty thousand dollars. It is therefore the opinion of this Court that there be no recovery on the part of either of the parties, their insurers, or plaintiff Agency Rent-A-Car, Incorporated. . . . ”

The negligence of a bailee can not be imputed to the bailor. Dixie Drive It Yourself System New Orleans Co., Inc. v. American Beverage Company, 242 La. 471, 137 So.2d 298 (1962); Blanchard v. Rodrigue, 340 So.2d 1001 (La.App. 1 Cir. 1976), writ denied, 341 So.2d 1129, 1130 (La.1977); Villarrubia v. Roy, 162 So.2d 86 (La.App. 4 Cir. 1964).

In Dixie Drive the Court said:

“It is well established that the negligence of a bailee cannot be imputed to the bailor. It follows that the defendants are liable if the driver of the obstructing R C Cola truck was negligent and that negligence was a legal cause of the collision. When the actionable negligence of two tort feasors contributes in causing harm to a third party, each of them is responsible for the damage. They are solidarily liable.”

As the Court pointed out in Viliarru-bia, supra, the contributory negligence of the driver of a leased automobile under the exclusive control of the lessee can not be imputed to the lessor to prevent it from recovering damages.

Nevertheless, from the nature of the indemnity agreement, the indemnitor has taken upon itself the responsibility for the negligence of the indemnitee (the bailee here). By assuming this liability, Agency (the indemnitor) is placed in the position of its indemnitee (Lazare) and precluded from recovery of damages in the instant case.

In the absence of manifest error, we will not disturb the trial judge’s finding. There is ample evidence in the record to support the conclusion reached by the trial court.

For the reasons assigned, the judgment appealed is affirmed. The costs of this appeal are assessed equally against both appellants.

AFFIRMED.