author: GULOTTA, Judge.

text:
    DIXIE LIFE INSURANCE COMPANY v. PACIFIC MUTUAL LIFE INSURANCE COMPANY and Harold J. Jones.
    No. 12814.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 11, 1982.
    Rehearings Denied July 16, 1982.
    Phelps, Dunbar, Marks, Claverie & Sims, Harry A. Rosenberg, John J. Weiler, New Orleans, for plaintiff-appellee.
    Chaffe, McCall, Phillips, Toler & Sarpy, Harry McCall, Jr., Norris S. L. Williams, New Orleans, for defendant-appellant.
    Before GULOTTA, SCHOTT and GARRISON, JJ.
   GULOTTA, Judge.

Pacific Mutual Life Insurance Company (Pacific) and Harold J. Jones, an insurance agent, appeal from a $278,500.00 jury verdict in favor of Dixie Life Insurance Company (Dixie), for damages resulting from Pacific’s error in calculating the cost of a pension plan purchased by Dixie. We reduce the award to the sum of $99,902.00 against Pacific, and dismiss plaintiff’s suit against Jones.

Dixie had an existing pension plan with the Home Life Insurance Company, but a proposed Pacific plan dated September 28, 1973, which Jones submitted to Dixie, provided greater employee benefits at less employee costs. Coverage by Pacific to Dixie began April 1, 1974.

In August, 1974, Pacific discovered a major error in the proposal whereby Dixie’s annual contribution for the first year had been understated as $8,801.00 instead of $17,603.00, because its “unfunded supplemental liability” under the plan had been misstated as $13,522.00 instead of $132,-874.00. Although Pacific notified the Jones agency in August, 1974 regarding the mistake, it was not until July 31, 1975 that Dixie was made aware of the error.

On October 29, 1975, Winston C. Profio, Pacific’s pension director, outlined in a letter to Charles J. D. Gerrets, III, Dixie’s president, three options available to Dixie to resolve the problem: 1) to provide lower benefits similar to the previous insurer’s plan with employer and employee premiums in an amount approximating those paid to the prior insurer; 2) to terminate the Pacific insurance coverage with a refund to Dixie of accumulated deposits plus accrued interest; or 3) to accept the higher costs for the Pacific coverage. Accepting the third option under protest, Dixie continued the Pacific coverage. This suit followed.

The $278,500.00 award was in conformity with the testimony of Dixie’s actuary, William H. Blount. According to Blount, this amount represents the difference between the accrued and future costs between the Home Life and Pacific Mutual plans.

Defendants argue in this appeal that the trial judge erred in failing to instruct the jury on plaintiff’s duty to mitigate damages. According to defendants, Dixie could have simply amended or terminated the Pacific plan and provided a lower level of benefits instead of maintaining the Pacific plan requiring increased contributions, as Dixie chose to do. In this connection, defendants argue the trial judge should have instructed the jury on the applicable federal pension law, the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S. C.A. Sec. 1001 et seq., which sets forth restrictions on an employer’s right to reduce or terminate employee benefits.

Defendants further contend the award is manifestly erroneous because Dixie failed to show it was prejudiced by defendants’ delay in notifying Dixie of the error. According to defendants, the effect of the jury’s verdict is to give Dixie all of the benefits of the Pacific Mutual plan at the erroneously stated amount of the September 28,1973 proposal when Dixie could have reduced the benefits or terminated the Pacific plan.

Lastly, defendants point out that the verdict was “tainted” because, during deliberations, the jury referred to a chart used by plaintiff’s actuary.

In answer to the appeal, Dixie seeks an increase to the sum of $301,240.00. According to Dixie, because of the pending suspen-sive appeal, a request for permission to reduce benefits or terminate the Pacific plan (under ERISA) could not be submitted to be effective before April 1, 1981. Dixie contends, therefore, that an additional year of accrued costs should be included in the total award.

JURY INSTRUCTIONS

Pacific timely made a blanket objection to the trial judge’s failure to give the requested charges, but did not assign the grounds for these objections. We are cognizant of plaintiff’s argument that defendants have waived their rights to raise an objection in this court concerning the jury instructions by their failure to raise a specific objection in the trial court. However, LSA-C.C.P. Art. 2164 mandates that the appellate court shall render any judgment which is “just, legal and proper upon the record on appeal.” The “Official Revision Comments” to this codal provision state that the purpose of the article “is to give the appellate court complete freedom to do justice on the record irrespective of whether a particular legal point or theory was made, argued, or passed on by the court below.” Reading this article, together with the Louisiana Supreme Court’s judgment in Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975), when the entire record is before the court and the question raised is crucial to the resolution of the litigation, we are compelled to consider the issue of the failure of the trial judge to give requested instructions.

Turning now to the merits of defendants’ contention, we conclude the trial judge erred in failing to instruct the jury concerning the Employee Retirement Income Security Act (ERISA) and its applicability to Dixie’s pension plan.

This federal statute prohibits an employer from unilaterally reducing or terminating “vested” or “non-forfeitable” employee benefits unless the United States Department of Labor gives permission based on a showing of “unreasonable” hardship. See Nachman Corp. vs. Pension Ben. Guaranty Corp., 446 U.S. 359, 100 S.Ct. 1723, 64 L.Ed.2d 354 (1980).

29 U.S.C.A. Sec. 1061(b)(2) [ERISA] provides further that “... in the case of a plan in existence on January 1,1974, the amendment made by this part [of ERISA] shall apply in the case of plan years beginning after December 31, 1975.” Further, the Nachman decision makes it clear that ERI-SA’s provisions concerning termination and amendment only apply to “vested” or “non-forfeitable” employee benefits. It is apparent, therefore that ERISA does not prohibit amendment or termination of plan benefits that are not “vested.”

In our case, Pacific’s plan expressly states that it is effective on April 1,1973 and “... shall be deemed a continuation of the plan of benefits in effect prior to April 1, 1973 [the Home Life Plan] and not a new plan. ... ” The Home Life Plan, implemented by Dixie on April 1, 1971 and amended by the Pacific Plan, provides for a five-year vesting period. According to the plan, an employee whose employment was terminated before five years of coverage under the plan was only entitled to receive his accrued contributions as of termination in one lump sum payment, whereas an employee terminating or retiring after five years coverage under the plan was entitled to retirement benefits payable after age sixty-five in accordance with the plan’s schedule. When we consider the provisions of the plan together with the ERISA statute, we are led to conclude that Dixie had a plan in effect on January 1, 1974, and would have been permitted to reduce benefits if it had acted before April, 1976.

Clearly then, ERISA has applicability in the determination whether Dixie had the right to terminate or reduce employee retirement benefits, and, under the circumstances, we conclude the failure to give the required charges Nos. 1 and 6 constituted prejudicial error resulting in a disproportionate jury award in favor of Dixie. We do not imply the jury erred in awarding Dixie a judgment against Pacific; rather, our finding of error concerns the amount of that award.

It is undisputed that the error in misstating Dixie’s first annual contribution to maintain benefits under the Pacific plan was a unilateral one by Pacific Mutual and not the responsibility of Dixie. Moreover, it does not appear that the error is one of fact concerning the principal cause that would vitiate the contract under LSA-C.C. Arts. 1812,1821,1823 and 1825. Accordingly, it appears there is a valid and binding contract. The more perplexing question, however, is whether Dixie has been damaged by Pacific’s refusal to carry out the contract terms and, if so, to what extent.

DAMAGES

In this respect, Dixie claims that Pacific’s delay in informing Dixie of the error forced plaintiff to maintain the more expensive Pacific plan for its employees. Also, according to Dixie, if it became necessary to reduce the pension benefits, employer-employee relations would be adversely affected.

In support of this claim, Dixie’s president, Charles J. D. Gerrets, III, testified that he had emphasized to Jones that Dixie could afford only “a few dollars a year” to maintain the plan and that if the true annual cost had been presented to him in 1973 he would not have accepted the plan.

According to Gerrets, the alternative of reducing employee benefits was not feasible because it might “wreck” or upset his company by tearing down the good will and security given his employees under the Pacific plan. Gerrets stated that it would have been “peculiar” to increase the morale of his employees and then “tear it down and start all over again”. His testimony was corroborated by that of his father, Charles J. D. Gerrets, Jr., Dixie’s chairman of the board, who was of the opinion that he would have lost many or most of his employees had he reduced benefits to the Home Life level.

The jury had the benefit of the additional testimony of two Dixie employees. Neal C. Bell, a sixty-five-year-old retiree, testified that he and his fellow employees had agreed that they were “much better off” with the Pacific plan after Jones had handed them summaries of benefits under the new plan. He stated that he would not have been able to retire if the benefits had later been reduced to the Home Life formula. C. J. Williams, a sixty-five-year-old sales manager of Dixie, testified that amendment of the Pacific plan back to the Home Life formula would have affected his anticipated retirement and he would have been forced to sue Dixie in order to assure benefits would remain at the Pacific plan level.

The testimony considered, we conclude Pacific’s error caused Dixie to obtain an employee retirement plan requiring additional expenditure that it was neither desirous of nor prepared to incur, and that a reduction of benefits would have, more probably than not, adversely affected employer-employee relations. We conclude Dixie has made a showing of damage.

QUANTUM

Whether the error is viewed as negligence or breach of contract, Dixie bears the burden of proving the extent of damage and can recover only actual, not speculative or conjectural damages. Brown v. Producers’ Oil Co., 134 La. 672, 64 So. 674 (1914); State v. Bell, 153 La. 823, 96 So. 669 (1923). Nevertheless, where there is a right to recovery but an exact estimate of damages cannot be made, the Court has discretion to assess damages based upon all the facts and circumstances of the case. Manuel v. Texas Gas Transmission Corporation, 153 So.2d 157 (La.App. 3rd Cir. 1963).

The jury award, in part, is based on future speculative costs for funding the Pacific plan. The award disregards the continually changing amount of Dixie’s future annual contributions, depending on the number of employees, their ages, their pay and the rate of interest earned by the plan. We conclude, therefore, that the jury’s award was clearly wrong insofar as it awarded damages for the cost of funding future benefits to Dixie employees.

We deem the proper measure of damages to Dixie resulting from Pacific’s error is the cost to fund the increased level of accrued benefits up to April 1, 1976. Dixie was permitted under ERISA until this date to amend the plan, which had been in effect on January 1, 1974. Blount testified that the sum of $99,902.00 represented the value of accrued benefits as of April, 1976, and we conclude that this amount adequately compensates Dixie for the actual damages suffered.

Having so concluded, no necessity exists to consider the arguments concerning the jury’s “tainted” deliberations and plaintiff’s answer to the appeal seeking an increase in the award.

At this juncture, we point out that no showing was made that Jones was an agent for Pacific or that the error was made by him. The evidence clearly establishes that Pacific’s employees in the actuarial department were responsible for this erroneous calculation. Although it is true that Jones learned of the error in September, 1974 and failed to notify Dixie of it until July 31, 1975, there is no showing that this delay, though inexcusable, caused plaintiff any damage. After learning of the error, sufficient time remained for Dixie to amend the plan prior to April 1, 1976. Accordingly, we find no basis for the jury verdict casting Jones in judgment. We therefore reverse and set aside that part of the judgment in favor of Dixie and against Harold Jones.

DECREE

For the foregoing reasons, the judgment in favor of Dixie Life Insurance Company and against Pacific Mutual Life Insurance Company in the amount of $278,500.00 is amended and reduced to the sum of $99,-902.00, with interest from date of judicial demand until paid. Plaintiff’s suit against Harold J. Jones is dismissed with prejudice. Costs to be paid by Pacific Mutual Insurance Company.

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

      . Dixie, an industrial life insurance company primarily writing burial insurance policies, had sixteen or seventeen employees in 1973 and was providing a pension plan to them as a fringe benefit. Dixie had no specialized knowledge about pension plans.

      . Under the Home Life plan, an employee’s monthly retirement benefit was set at $50.00 of the first $500.00 of his average monthly earnings plus 20% of the excess. Under the Pacific plan, the same employee would receive a retirement benefit of $150.00 of the first $650.00 of his .average monthly earnings and 30% of the excess. Thus, an employee with an average monthly income of $1,146.00 who retired at age 66, would receive a monthly benefit of $299.00 under Pacific’s proposal in contrast to $179.00 under the Home Life plan. The monthly cost to this employee under the Pacific plan was only $81.55 in contrast to a monthly cost of $99.46 under the Home Life plan.

      . Under the Pacific plan, the annual contribution by the employees remained at the constant rate of 2% of the employees’ monthly compensation, but Dixie’s annual contribution as employer varied, depending on a number of factors including the number of employees, changes in tneir compensation, the rate of interest earned by the plan assets, etc.
      Dixie was obligated to make contributions in an amount sufficient to fund the employees’ benefits, but this annual contribution was actu-arily determined for each plan year. For the plan year beginning April 1, 1975, Dixie’s recommended contribution to maintain the accrued and future benefits under the plan was $19,701.00; for 1976, it was $26,661.00; for 1977, it was $26,947.00. Dixie’s contributions were tax-deductible.

      .Dixie’s actuary, William H. Blount, testified that if Dixie were to amend the Pacific plan in April, 1980, lowering the benefits to the level of the Home Life policy, $163,947.00 would be required to fund the difference in accrued benefits under the two policies, and an additional $114,557.00 would be needed to fund the difference in future benefits. The jury’s verdict of $278,500.00 approximates the $278,517.00 total by the actuary.

      . LSA-C.C.P. Art. 1793 provides, in pertinent part:

      A party may not assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating specifically the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.” (Emphasis ours.)
      Plaintiffs point out that defendants’ “blanket objection” to the judge’s failure to submit defendants’ special interrogatories did not comply with this procedural article.

       See also Devillier v. City of Opelousas, 247 So.2d 412 (La.App. 3rd Cir. 1971).

      . The pertinent requested jury charges read as follows:
      “DEFENDANT’S REQUESTED JURY CHARGE NO. 1
      Where, as here, no employee benefits were vested prior to 1 April 1976, the ERISA did not prohibit Dixie Life from amending its plan retroactively to reduce employee benefits to a level that could be funded with the contributions set out in the Pacific Mutual proposal to Dixie Life. Nachman Corporation v. Pension Benefit Guaranty Corp., et ai, 446 U.S. 359, 100 S.Ct. 1723, 64 L.Ed.2d 354 CCH Pension Plan Guide, § 22-636 (5-16-80).”
      “DEFENDANT’S REQUESTED JURY CHARGE NO. 6
      You are instructed that the Federal law, the Employee Retirement Income Security Act, provides in Section 1061 as follows:
      ‘In the case of a plan existing on January 1, 1974, this part shall apply in the case of plan years beginning after December 31, 1975.’
      The provisions referred to in Section 1061 are the provisions concerning retroactive amendment of Pension Plans reducing pension benefits to employees.
      If you find that the Dixie Life Pension Plan, as amended, was in existence on 1 January 1974, then you are instructed that you are to apply Section 1061 of ERISA, only to plan years beginning after December 31, 1975. This would include plan years beginning 1 April 1976 and all following years.”

      . However, we reject Dixie’s contention that Pacific’s actions forced Dixie to maintain the more expensive plan. It is sheer speculation that a significant number of employees would have resigned had they been given a full explanation of the nature of Pacific’s error and a showing that Dixie was in no way responsible for the error.

      . During Blount’s testimony the following exchange took place:
      “Q. When you use the term funding, does that mean what it would take to — in today’s present cash to have those benefits for Dixie employees at the time of their retirement?
      A. Yes. This is a — what we call the present value of accrued benefits, which means it is the value which would have to be deposited or contributed today in order to accumulate, by the time each of these employees reaches retirement age, funds sufficient to pay their benefits.
      * * * * * *
      Q. So had Dixie been able to amend the plan April of 1976, that — that figure of $99,-902.00 would be what it would take to fund this benefit?
      A. That’s correct.”


source: Caselaw Access Project

license: Public Domain

text:
    Linda Nevle, Wife of/and Michael A. NEVLE v. NATIONAL PRESTO INDUSTRIES and Aetna Casualty & Surety Company.
    No. 12887.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 11, 1982.
    Rehearing Denied July 16, 1982.

      Davis, Saunders & Miller, Benjamin B. Saunders, Ann E. Tomeny, Metairie, for plaintiff-appellant.
    Beard, Blue, Schmitt, Mathes, Koch & Williams, C. T. Williams, Jr., New Orleans, for defendants-appellees.
    Before GULOTTA, SCHOTT and GARRISON, JJ.
   GULOTTA, Judge.

In this products liability case, the issue is whether plaintiff’s misuse is a bar to her recovery for injuries sustained when the top or lid of a pressure cooker exploded. Plaintiff, appealing from the dismissal of her suit, claims the trial judge erred in concluding that the pressure cooker was not defective, that it was not in “normal use” at the time of the explosion, and that defendant did not have a duty to warn of the danger of risk of injury.

The rule of strict liability for manufacturers in a products liability ease was set forth by the Louisiana Supreme Court in Weber v. Fidelity & Casualty Insurance Co. of N. Y., 259 La. 599, 250 So.2d 754 (1971) and followed and quoted with approval by the Supreme Court in Hunt v. City Stores, Inc., 387 So.2d 585 (La.1980). That rule is as follows:

“A manufacturer of a product which involves a risk of injury to the user is liable to any person, whether the purchaser or a third person, who without fault on his part, sustains an injury caused by a defect in the design, composition, or manufacture of the article, if the injury might reasonably have been anticipated. However, the plaintiff claiming injury has the burden of proving that the product was defective, i.e., unreasonably dangerous to normal use, and that the plaintiff’s injuries were caused by reason of the defect.
******
If the product is proven defective by reason of its hazard to normal use, the plaintiff need not prove any particular negligence by the maker in its manufacture or processing; for the manufacturer is presumed to know of the vices in the things he makes, whether or not he has actual knowledge of them.”

The Hunt court pointed out further that in order to escape liability in these cases one must show that the damage was due to the fault of the victim, fault of a third party, or an act of God.

The question then is whether or not the explosion and resulting injury was caused from a defect in the pressure cooker or was caused from plaintiff’s misuse. After finding no defect in the design or manufacture of the pressure cooker, the lid or the plug, the trial judge concluded the accident resulted from “misuse”.

The trial judge properly concluded that the explosion had resulted from a failure of release of the rubber pressure plug. In connection with his conclusion that the product was not in “normal use” at the time of the explosion, the judge pointed out that the product had been manufactured in 1948 and had been used by plaintiff approximately three times a week for the past twelve years. He found further that plaintiff had never read the instruction booklet, had not checked the vent pipe prior to cooking, and had not used any type of brush to clean the vent. He also noted that plaintiff had been aware that the cooker was not performing normally prior to the accident, and had put the indicator weight in place although the steam was not “coming out as fast as usual”.

The testimony of Linda Nevle generally supports the conclusions reached by the trial judge; however, she did state that she had used the cooker without incident for a period of approximately twelve years. She stated further that the cooker was a gift from her husband’s aunt and that she did not receive a manual or instruction book. Although plaintiff admitted that she had not read the manual for this cooker, she had read the service manual for a similar cooker owned by her.

The difficulty in this case arises in determining how plaintiff misused the cooker. Presto apparently claims that because plaintiff failed to clean the vent steam was restricted from escaping thereby causing a pressure or heat build up in the cooker resulting in hardening of the pressure plug. Presto claims further that plaintiff was aware that steam was not escaping normally through the vent immediately prior to the accident.

Raymond Masopust, the Vice President and General Manager of Presto, manufacturer of the pressure cooker, stated that he had examined the safety plug and had never seen a plug so deteriorated in so short a time. According to Masopust, testing of two cookers and safety plugs similar to plaintiff’s by subjecting them to twenty times more use than plaintiff over a four-month period did not result in loss of pliability. Masopust stated that the tested plugs were “pliable and would still function as designed.” Nevertheless, although Ma-sopust further testified that this particular cooker was manufactured in February, 1948, and that Presto had stopped making plugs like the one on the pot in this accident in 1957, plaintiff stated that the replacement plug used four months prior to the accident came in a package labelled “Presto”. Although Masopust stated that excessive pressure deteriorates the plug and that excessive pressure builds in the cooker when particles of food are left in the vent pipe, noticeably absent from his testimony is the explanation in the instruction manual that the plug would automatically release when the vent pipe becomes clogged.

Defendant’s theory of misuse by plaintiff was negated by the testimony of Lawrence Frances Wilson, a civil engineer who testified that the vent pipe area was not the area that failed to function and cause the pot to explode. According to Wilson, the safety plug was the problem and even if the vent-pipe were “taped shut” the safety plug would “react”. The instructions in defendant’s manual supports Wilson’s observations. The manual states:

“OVER-PRESSURE PLUG — The overpressure plug in the cover of your cooker is an added safety device. This plug will automatically release excess steam in case the vent pipe becomes clogged so that the pressure does not release normally.”

Considering this evidence, we are led to conclude that there exists an insufficiency of evidence to establish that the failure of the release of the over-pressure plug resulted from plaintiff’s misuse. Accordingly, we reverse the judgment of the trial court.

QUANTUM

Plaintiff was temporarily blinded by the explosion and sustained burns on her face, neck and chest. According to her testimony, she was unable to see during her hospitalization and her eyes remained bandaged for approximately three or four months to heal, and she continued to have “blotched scars” on her face and neck. Her eyes were sensitive to sun and light.

According to the stipulated medical reports, plaintiff was seen in the emergency room at Southern Baptist Hospital on May 5, 1976, the day of the accident, and remained hospitalized until May 10, 1976. Plaintiff (thirty years of age at the time of the accident) was seen by Dr. Thomas C. Naugle, Jr. on May 6, 1976 and on six occasions thereafter. According to his stipulated report, Mrs. Nevle sustained “first degree burns of the face and neck with chemical burns of the eye which were quite extensive”. He stated that she responded well to treatment and was asymptomatic on September 7, 1977. He indicated that her prognosis was “quite good”, but that she might have intermittent dryness of the eyes. An October 25, 1977 report from Dr. Naugle added little if anything to his earlier report.

In a September 26, 1977 report, also stipulated, Dr. L. Terrell Tyler stated that he had seen plaintiff in consultation during her hospitalization and again as an outpatient on May 11, 1976. On the second visit, he found that the first degree “flash” burns of the face were clean and healing “nicely”.

Based on the medical and lay testimony, we consider an award for general damages in the amount of $7,000.00 to be proper. In connection with the special damages, medical expenses were stipulated in the sum of $658.35 and repairs to property in the sum of $483.89, for a total of $1,142.24.

DECREE

Consistent with the foregoing, the judgment of the trial court is reversed, rescinded and set aside.

IT IS NOW ORDERED, ADJUDGED AND DECREED that there be judgment in favor of Linda Nevle, wife of Michael A. Nevle and against National Presto Industries, Inc. in the sum of $7,000.00, together with judicial interest from date of demand until paid. It is further ordered, adjudged and decreed that there be judgment in favor of Michael A. Nevle and against National Presto Industries, Inc. in the sum of $1,142.24, together with judicial interest from date of demand until paid. Costs to be paid by National Presto Industries, Inc.

REVERSED AND RENDERED.

      . Defendant also claims that plaintiff violated the instructions by cooking butterbeans without prior soaking thereby causing a pressure buildup. However, this neglect, if it is indeed neglect, was not the cause of the explosion. The cause was the failure of the release of the pressure-plug when the pressure inside the cooker exceeded the normal limits.

      . Defendant complains that plaintiffs failure also was in neglecting to read the manual of instructions accompanying the pressure cooker when purchased. We find no merit to this claim. Nowhere in the instructions do we find the warning that intense heat, abnormal pressure, or a clogged vent would result in crystali-zation or hardening of the over-pressure plug. Accordingly, whether plaintiff read or failed to read the manual was not a cause in fact of this explosion.


text:
    Yusuf Abdul Lumumba MUKHTAR v. ORLEANS PARISH & State of Louisiana.
    No. 12928.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 11, 1982.
    Rehearing Denied July 16, 1982.

      Yusuf Abdul Lumumba Mukhtar, in pro. per.
    Freeman R. Matthews, New Orleans, for Charles C. Foti, Jr.
    Harry H. Howard, Asst. Atty. Gen., New Orleans, for defendant-appellee.
    Before GULOTTA, SCHOTT and GARRISON, JJ.
   GULOTTA, Judge.

Plaintiff’s tort suit, filed in proper person for injuries sustained while incarcerated in the Parish Prison in the City of New Orleans, was dismissed on an exception of prescription. We affirm.

In the petition, filed on October 20, 1980, plaintiff alleges that in April, 1975 at the time of his arrest “he was brutally assaulted by members of the Orleans Parish Police Department”. He alleges further that on or about January 16, 1977, while awaiting trial, he developed physical disability and mental problems resulting from inhuman treatment administered by the parish prison officials. According to the petition, because of inhuman prison conditions and lack of medical treatment his mental and physical problems continued to exist resulting in “severe and disabling injuries to petitioners— mind and body.” It is clear from the petition and other documents in the record that the acts complained of resulting in the alleged injuries occurred in excess of five years and the disability manifested itself in excess of three years prior to the filing of the suit.

Because of our recognition of plaintiff’s disadvantage in making allegations in proper person, we felt a responsibility to search the accompanying documents, exhibits and memoranda in the record to ascertain whether facts may have been asserted in those documents to compel a result that the suit has not prescribed under LSA-C.C. Art. 3536. Our search has been in vain.

In a memorandum which we construe as a supplemental petition, plaintiff alleges that on February 21,1979 he commenced to suffer serious pain in the right foot causing confusion and emotional stress. He alleges further that on February 23, 1979 he suffered physical and mental breakdowns. Reference is made in that document to December 3, 1979 when plaintiff was advised by family and friends to seek private medical care. Plaintiff states that on January 3, 1980, March 10, 1980, and May 6, and May 10,1980 he made visits to private physicians and a hospital clinic and received medication for temporary relief of his foot condition. Also in the record is a copy of plaintiff’s letter of February 15, 1977 to a United States District Court judge in which plaintiff stressed the need for medical and legal assistance. According to his briefs, plaintiff was released from incarceration in the latter part of 1977.

In a per curiam attached to the order granting the devolutive appeal, the trial judge indicated that he was compelled to maintain this plea of prescription, although he had sought to assist plaintiff in the suit. We, like the trial judge, have tried to interpret the petition and accompanying documents in a light most favorable to plaintiff. Nonetheless, we are compelled to affirm the judgment maintaining the plea of prescription. Accordingly, the judgment is affirmed.

AFFIRMED.


author: SCHOTT, Judge. GARRISON, Judge,

text:
    PEARL CORPORATION v. George Albert KNESEL.
    No. 12907.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 11, 1982.
    Rehearing Denied July 16, 1982.
    Henry L. Klein, Klein & Rouse, New Orleans, for plaintiff-appellant.
    Edgar K. Corey, Edward J. Lassus, Jr., Corey, Reed, Bethay & Kogos, New Orleans, for defendant-appellee.
    Before GULOTTA, SCHOTT and GARRISON, JJ.
   SCHOTT, Judge.

This is a suit by the seller, Pearl Corporation, of a house in New Orleans against the purchaser, George Albert Knesel, for dissolution of the sale based on LSA C.C. Art. 2561 because the purchaser did not pay the purchase price. The issue is whether the article applies where the purchase price consisted of a mortgage assumed by the purchaser and the note secured by the assumed mortgage had prescribed before the seller instituted its action to dissolve the sale. The trial court dismissed the seller’s suit and it has appealed.

The property was sold on June 18, 1971, for a price of $35,345.22 consisting of the purchaser’s assumption of a vendor lien and mortgage with a balance of $22,345.22, and a second mortgage with a balance of $13,-000. The sale contained the stipulation: “Purchaser hereby binding and obligating herself [sic] for the full and punctual discharge thereof, and when due, and assuming all liability thereunder.”

The purchaser made the required payments on the vendor’s lien mortgage but never made any payments on the second mortgage. The note secured by this mortgage was dated August 13, 1968, and was payable in full three years thereafter. By the time this suit was filed on January 28, 1980, the second mortgage note had prescribed by virtue of C.C. Art. 3540’s prescription of five years. In this court the seller relies on Mid-State Homes, Inc. v. Davis, 250 So.2d 836 (La.App. 4th Cir. 1971) in which this court held that the right to dissolve a contract of sale for non-payment of all or a part of the contract price is not lost simply as a result of the fact that the obligation to pay the note is extinguished by prescription. The cited case followed Louis Werner Sawmill Co. v. White, 205 La. 242, 17 So.2d 264 (1944). But in that case the Supreme Court held that the failure of the vendee to pay the price is a “dissolving condition,” or a “resolutory condition,” which gives the creditor an absolute right to sue for the dissolution of the sale under C.C. Arts. 2045, 2046, and 2047 even though the note representing the purchase price was prescribed.

However, the posture of the instant case is unlike that of the cited cases. In the cited cases the purchasers were the makers of the note held by their sellers. Since the notes were not paid the price was not paid giving rise to the seller’s cause of action under C.C. Art. 2561. In the instant case, we have the assumption by the purchaser of a note given by the seller to a third party.

In the sale and assumption between these parties the agreed upon price was the assumption by the purchaser of the seller’s liability on the note held by the third party. Once the note prescribed the seller no longer had any liability on the note and the price was paid. This was as certain once the note prescribed as it would have been had the purchaser paid the balance due the third party. Consequently, the seller no longer had any right to bring an action to dissolve the sale for non-payment of the price.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

GARRISON, J., dissents and assigns reasons.

GARRISON, Judge,

dissenting.

I respectfully dissent from the majority opinion.

Pearl Corporation’s posture at the trial below was that it continued to be the true and bona fide holder of the note and evidence was adduced in that regard. In any case, there is too much confusion about the legal and physical status of this to support a decision in favor of defendant.

Knesel testified that he was given the second mortgage note at the act of sale on June 18,1971 by William Bosworth, Jr. He specifically identified the younger Bosworth at trial and stated that he knew the senior Bosworth as well. Bosworth, Jr. testified not only that he did not give the note to Knesel but also that he was not even present at the act of sale.

Knesel testified that he retained continuous possession of the note from 1971 through 1980 when he had the mortgage cancelled in the Orleans Parish Mortgage Office. In contradiction of this, Bosworth, Jr. testified that he had kept the note in a breakfront chest in his livingroom at 7512 Willow Street. Bosworth, Jr. lived in the other half of the double purchased by Kne-sel at the act of sale on June 18, 1971. Bosworth, Jr. further testified that he had used the note as collateral for loans made to him by Jimmy Moran and that the note was returned to him by Moran in 1975.

This testimony was corroborated by the testimony offered in proffer of Augustus Boyd, Jr., who stated that over the Christmas holidays of 1975 he saw the note. This proffer should have been accepted as evidence with regard to Boyd’s viewing of the actual note in Bosworth’s — rather than Knesel’s — possession.

Boyd further testified that he had had occasion to see Knesel in Bosworth’s half of the house when Bosworth was not home. And Knesel testified that he did have a key to Bosworth’s apartment.

The manifest error rule is a strong, even overpowering, presumption in favor of the status quo as defined below. In this particular case, however, I believe that manifest error has occurred and the case should be reversed because of the impeachment of Knesel or, at the very least, remanded in order to further explore the possibilities alluded to above.


author: SCHOTT, Judge.

text:
    STATE ex rel. Mary Dell Tinsley FRANCESKI v. PLAQUEMINES PARISH SCHOOL BOARD.
    No. 13075.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 11, 1982.
    Rehearing Denied July 16, 1982.

      John F. Ward, Jr., Robert L. Hammonds, Baton Rouge, for defendant-appellant.
    Nathan Greenberg, Greenberg & Dallam, Gretna, for plaintiff-appellee.
    Before GULOTTA, SCHOTT and GARRISON, JJ.
   SCHOTT, Judge.

Plaquemines Parish School Board has appealed from a judgment of the district court reversing its action in dismissing Mrs. Mary Dell Tinsley Franceski from her position as supervisor of Special Education following a hearing before the Board pursuant to LSA-R.S. 17:443. In lengthy reasons for judgment the trial court held that the Board improperly overruled Mrs. France-ski’s exception of vagueness with respect to three of sixteen charges the Board brought her; improperly failed to vote on each of the charges at the end of the hearing; and was arbitrary in dismissing Mrs. Franceski by a) failing to comply with the provisions of the Teacher Accountability Statute, R.S. 17:391.1 et seq.; b) failing to recognize the demands placed on the position of supervisor of Special Education as testified by others in like positions; c) offering Mrs. Franceski other responsible positions in the parish while charging her with wilful neglect of her duty and incompetency in her capacity as Supervisor of Special Education; and d) allowing a great period of time between the alleged infractions committed by Mrs. Franceski and the bringing of charges against her. In this court the Board specifies error in all of these rulings as well as in the trial court’s taking additional evidence rather than simply reviewing the record of the proceedings before the Board.

Mrs. Franceski began her teaching career in 1963 and was appointed Supervisor of Special Education in 1975. On May 22, 1980, Superintendant Raymond Shetley attempted to remove her from her position without complying with the provisions of R.S. 17:443 on the theory that the statute did not apply to her position. She obtained an injunction against the Board from removing her on July 2, 1980. The Board did not appeal from that judgment but adopted a resolution on July 9,1980, calling a tenure hearing on July 30 for the purpose of removing Mrs. Franceski based on sixteen charges against her which allegedly demonstrated her incompetency and/or wilful neglect of duty. Several of these charges were somewhat vague and general but Mrs. Franceski specifically challenged only the following three with an exception of vagueness filed with the Board before the hearing commenced. These are as follows:

“5.) Said Supervisor has failed to sign and submit Student referrals to the Competent Authority Team for significant periods of time resulting in a backlog, delay, and confusion in the evaluation process.
6.) Said Supervisor has failed to attend numerous meetings of importance conducted by the Louisiana Department of Education, has arrived late on numerous occasions at such meetings she did attend, and has at times departed such meetings she attended before adjournment.
7.) Said Supervisor did direct teacher aids to administer standardized tests to kindergarten and first grade students instead of such testing being administered by the regular kindergarten and first grade teachers.

After a prolonged hearing the five members of the Board recorded their conclusions by writing the following on separate sheets of paper:

1.) Abstained
2.) Proposal for Dismissal
YES NO ABSTAIN
X
3.) Proposal for Dismissal
YES NO ABSTAIN
X
4.) I vote for dismissal of Mrs. Mary Dell Franceski on the grounds of wilful neglect of duty.
5.) Dismissal
1-2-4-7-8-9-15-16

Thus, one of the five abstained from voting; only one found specifically that she was guilty of wilful neglect of duty; one voted for dismissal listing some of the charges; and two others simply voted to dismiss her. A majority did not vote on the specific charges and a majority did not find her specifically guilty of wilful neglect of duty.

Mrs. Franceski then petitioned for judicial review of the Board’s decision. The trial judge allowed Mrs. Franceski to call the director of Special Education for Jefferson Parish, supervisors of Special Education for St. Tammany and Acadia Parishes, the chief of Special Education for St. Charles Parish and representative of International Management System, Inc. He permitted the Board to call the present director of Special Education for Plaquemines Parish to rebut the evidence introduced by Mrs. Franceski but he refused to permit the School Board to call three members of the Board who participated in the hearing against Mrs. Franceski.

In this court the Board specified the following errors in the decision of the trial court:

SPECIFICATION OF ALLEGED ERRORS RELIED UPON
I.The trial court erred in its conclusion that the action of the School Board in dismissing Mrs. France-ski was null and void and of no force or effect because of the failure of the Board to vote on and record its holding with respect to the specific charges against her of willful neglect and/or incompetency.
II.Plaintiff-appellee waived her right to complain about alleged failure to make itemized findings of fact when she consented to such procedure at the tenure hearing.
III. The trial court erred by allowing the introduction of evidence at the trial which had not been presented to the School Board at the tenure hearing.
IV. The trial court erred by allowing the introduction at trial of evidence which was cumulative to and repetitious of evidence presented to the School Board at the tenure hearing.
V.The trial court erred by refusing to allow the School Board members to testify and clarify the record of the tenure hearing.
VI.The trial court erred when it reversed the decision of the School Board to terminate Mrs. France-ski rather than remanding the case to said School Board for it to make more specific findings of fact.
VII.The trial court erred in its conclusions that defendant-appellant failed to comply with the accountability statute and that such failure made the decision to terminate plaintiff-appellee an arbitrary one.
VIII.The trial court committed error when it concluded that the School Board had erred in rejecting the request by plaintiff-appellee for more detailed information with respect to Charges 5, 6, and 7.

We will first consider the eighth specification and then the others in the order presented.

EXCEPTION OF VAGUENESS WITH RESPECT TO CHARGES 5, 6, and 7

R.S. 17:443 A as presently written provides in part as follows:

“... At least twenty days in advance of the date of the hearing, the superintendent with approval of the school board shall furnish the teacher with a copy of the written charges. Such statement of charges shall include a complete and detailed list of the specific reasons for such charges and shall include but not be limited to the following: date and place of alleged offense or offenses, names of individuals involved in or witnessing such offense or offenses, names of witnesses called or to be called to testify against the teacher at said hearing, and whether or not any such charges previously have been brought against the teacher... . ”

Had this version of the Act been in effect at the time of the tenure hearing under consideration there would be no question but that the Board failed to comply with these specificity requirements. However, at the time of the hearing R.S. 17:443 provided in pertinent part as follows:

“At least fifteen days in advance of the date of the hearing, the school board shall furnish the teacher with a copy of the written charges.. . . ”

The amendment to the Act was a codification of the jurisprudence which had uniformly held that a tenured teacher is entitled to have specific charges brought against her. Lewing v. Desoto Parish School Board, 238 La. 43, 113 So.2d 462 (1959), Johns v. Jefferson Davis Parish School Board, 154 So.2d 581 (La.App. 3rd Cir. 1963), Singleton v. Iberville Parish School Board, 136 So.2d 809 (La.App. 1st Cir. 1962). We thus conclude that the trial court correctly found that Charges 5, 6 and 7 were so vague that Mrs. Franceski could not prepare an adequate defense against these charges and the Board erred in overruling her exception of vagueness with respect to these charges. To whatever extent the Board based its ultimate decision on these charges its decision was unfounded.

THE BOARD’S ACTION AT THE CONCLUSION OF THE HEARING WITH REFERENCE TO THE SIXTEEN CHARGES BROUGHT AGAINST MRS. FRANCESKI

This discussion addresses itself to the first and second specifications of error relied upon by the Board. R.S. 17:443 as written at the time in question provided that a permanent teacher shall not be removed except upon charges of wilful neglect of duty or incompetency and provided that if the teacher “is found guilty by a school board, after due and legal hearing as provided herein, on charges of wilful neglect of duty, or incompetency,” the teacher had the right to appeal to the court for review. As indicated above, Mrs. Franceski was not found guilty of specific charges except by one of the five members of the Board and was not even found guilty of wilful neglect of duty except by one other member. Of those cases which have specifically dealt with this question we do find an analogous situation in Watts v. Winn Parish School Board, 66 So.2d 350 (La.App. 2nd Cir. 1953) in which the Board only said in its concluding resolution that it cannot condone the conduct of the teacher. The court made the following observation:

“. . . it appears that before a school board may either remove a teacher from office or discipline him, he must first be found guilty of one of the three things set forth in the statute. We do not believe that failing to ‘condone’ something a teacher has done is equivalent to finding him guilty. ... ”

Also in Jonns v. Jefferson Davis Parish School Board, supra, the court was critical of generalized findings of guilty which did not correspond with the specific charges of neglect of duty and incompetence upon which the hearing was based. The court remanded the case to the board for a determination as to why the board reached its conclusions of guilty in relation to the specific charges.

In order for Mrs. Franceski to have a meaningful judicial review of her case it is necessary for the court to know of which, if any, among the sixteen charges she was found guilty. She was faced with a wide range of complaints about her performance as an administrator covering a two year period of time and dealing with almost every conceivable aspect of her duties, including her attendance at meetings, making of reports, supervising personnel under her jurisdiction, answering correspondence and telephone calls, dealing with the public, coordinating programs, and many others. It is significant that the one Board member who indicated the charges which apparently led him to vote against Mrs. Franceski picked out only half of the charges. We can only speculate whether the other three Board members agreed with this member on those particular charges or had some other charges in mind which led them to conclude that Mrs. Franceski should be dismissed or was guilty of wilful neglect of duty. Thus, when she came to court for the full review to which she was entitled by the statute she was again faced with this scat-tershot parade of charges without any knowledge as to exactly what the Board had done. We conclude that the Board was obligated to vote on the specific charges and its failure to do so constituted a deprivation of Mrs. Franceski’s rights under the statute.

The Board argues that Mrs. France-ski waived her right to complain about the failure of the Board to make itemized findings because she consented to this procedure at the conclusion of the hearing. The record discloses otherwise. At the conclusion of the hearing the Board chairman discussed his proposal to have Board members simply indicate on the question of dismissal of Mrs. Franceski, YES or NO or ABSTENTION, and that the Board would then indicate whether each member was in favor of a demotion for Mrs. Franceski. In a conference among the chairman and the attorneys for the Board and for Mrs. Franceski the latter was asked to stipulate as to this procedure and he refused to do so on the ground that he felt it was contrary to the law. The chairman then announced that he would follow the simple procedure of having the Board members indicate YES or NO or ABSTENTION with respect to dismissal, and this resulted in the votes which are summarized above. The record does not support the Board’s argument that Mrs. Franceski agreed to this procedure. While there was no specific objection made again after the Board chairman announced the procedure he would follow Mrs. France-ski’s attorney’s previous refusal to stipulate and his stated reason that the procedure was contrary to law was sufficient to make it clear that he was not waiving Mrs. Franceski’s rights under the statute. Thus, we have concluded that specifications I and II have no merit.

THE TRIAL COURT’S CONDUCT OF THE JUDICIAL HEARING WITH RESPECT TO THE INTRODUCTION OF CERTAIN EVIDENCE AND THE EXCLUSION OF OTHER EVIDENCE OFFERED BY THE BOARD

R.S. 17:443 provides that if the permanent teacher is found guilty by the Board “the teacher may, not more than one year from the date of said finding, petition a court of competent jurisdiction for a full hearing to review the action of the School Board ...” In interpreting this statute the Supreme Court in Lewing v. Desoto Parish School Board, supra, held that the full hearing mentioned in the statute is for the benefit of discharged teachers. The court commented:

“If a School Board decides that sufficient evidence was adduced before it to sustain the dismissal of a teacher, she is entitled, if she desires, to a full hearing on the merits in the district court with a presentment of additional evidence in her behalf.”

The court went on to comment that the teacher could content herself with the record as made up at the hearing before the Board and in that case the Board could not produce evidence in the district court. In Lewis v. East Feliciana Parish Sch. Bd., 372 So.2d 649 (La.App. 1st Cir. 1979) the court held that the trial judge need not grant the teacher a trial de novo but he should permit the presentation of additional evidence as long as that evidence was not simply dupli-cative of the testimony which the Board heard. Under the circumstances of this case we do not find that the evidence presented by Mrs. Franceski was simply duplicative of the evidence presented to the Board. The testimony of the various directors or supervisors of Special Education in other parishes was important because of the complex nature of the duties required of such a person. While it is so that Mrs. Franceski presented the testimony of one such person before the Board this witness spoke from the point of view of the supervisor in one parish of the state, but the testimony of such individuals from four other parishes provided the court with a full picture of Mrs. Franceski’s duties which was not adequately covered by the one witness before the Board. Thus, it was not duplica-tive but indeed expansive and most helpful to the district judge in arriving at a just decision. As for the testimony of the head of the management agency this was produced in order to show that Mrs. Franceski’s use of teacher aides to conduct tests was not improper. She had attempted to prove this before the Board by offering a letter from that individual but the Board refused to consider this letter on the grounds of hearsay. The testimony was not in any way duplicative of what the Board considered.

The Board attempted to produce the testimony of three of its members to explain why they voted against Mrs. France-ski and, in effect, to consider the individual charges against Mrs. Franceski which they should have considered at the conclusion of the hearing. The trial judge correctly pointed out that it was unfair to Mrs. Franceski to allow these individuals who are now no longer members of the Board to justify their actions at a point in time long after the time when they were Board members. As far as this court is concerned, Mrs. Franceski was entitled to know those charges of which she was found guilty before she initiated the judicial review of the Board’s action, and their failure to make that determination interfered with her right guaranteed by the statute to have a “full review” of the hearing. The attempt to put this into evidence after the judicial review was already under way could not serve to correct the Board’s deprivation of her rights which had already occurred. Thus, we find no merit to the Board’s third, fourth and fifth specifications of error.

THE TRIAL COURT’S REFUSAL TO REMAND THE CASE TO THE SCHOOL BOARD TO ALLOW IT TO MAKE MORE SPECIFIC FINDINGS OF FACT

The trial court believed that he could not remand the case to the School Board because only one of the members at the tenure hearing was still on the Board. Whether this was the appropriate reason or not we find no circumstances in this case to warrant or justify a remand to the Board. This Board should have been aware of the requirements of R.S. 17:443 based on the prevailing jurisprudence. The statute provided that the court has jurisdiction to affirm or reverse the action of the School Board in the matter, and goes on to say that if the Board is reversed and the teacher reinstated and restored to duty she is entitled to full pay for loss of time or salary sustained as a result of the Board’s action. In this case, the Board embarked upon a long and complicated hearing to prove specific charges against Mrs. Franceski and it was contented at the conclusion of that hearing with the record which had been made. Mrs. Franceski exercised her right to a judicial review to attack that hearing including the action of the Board in failing to vote on these specific charges brought against her.

The Johns case relied upon by the Board is distinguishable. There individual Board members had voted on some charges differing one from the other in result, but the court found that some of the charges were unfounded. In analyzing the Board’s decision to discipline the teacher the court found that it was impossible to determine whether there was sufficient voting power among the Board members with respect to individual charges and to determine whether the Board would have disciplined the teacher with the elimination of certain charges which the Board members found were unproved by the evidence. The court repeatedly used the language that it was remanding under these particular circumstances of the case.

In Immel v. Brown, 143 So.2d 156 (La. App. 3rd Cir. 1962) the court, in an unemployment compensation case, seemed to conclude that a remand was appropriate because the claimant should be given every consideration but that case cannot be extended to mandate liberality in remanding where the Board has failed to comply with the statute and the jurisprudence and seeks to correct by way of remand its own deficiencies in the conduct of the hearing.

Perhaps a remand could be made when a record is so incomplete that a court is unable to review a decision of a Board. To remand this case to the Board for the purpose of making specific findings which would be self-serving for the Board would hardly accomplish justice. This Board is the adversary of Mrs. Franceski. The remand at this point would be disruptive of the proceedings contemplated by the statute and would clearly conflict with the statute’s intention to afford protection to the tenured teacher.

WAS THE BOARD’S DECISION PROPERLY HELD BY THE DISTRICT COURT TO BE ARBITRARY BECAUSE OF ITS FAILURE TO COMPLY WITH THE TEACHER ACCOUNTABILITY STATUTE

The trial judge concluded that the School Board was arbitrary in dismissing Mrs. Franceski for four reasons: First, because the Board failed to comply with R.S. 17:391.1 et seq.; second, because of the testimony of the various supervisors or directors of special education with respect to the nature of the program Mrs. Franceski was called upon to administer; third, he attached significance to the fact that the Board, while branding Mrs. Franceski as guilty of wilful neglect of duty in her position as supervisor of Special Education, nevertheless offered her the position of principal of two Special Education schools in the parish; and fourth, the attached significance to the great lapse of time between the various incidents and the bringing of charges.

With respect to the Teacher Accountability Statute, this was added to the revised statutes by Act 621 of 1977, and became effective on September 9. R.S. 17:391.5 provides that a School Board shall adopt a system of personnel evaluation and assessment before August 15,1978, and that evaluation and assessment of the performance of personnel with permanent status shall be made at least every third year. The statute goes on to provide as follows:

“... In the event an employee is considered not performing his duties in a satisfactory manner then the employing authority shall notify the employee in writing of such termination and describe such non-performance. The employing authority shall thereafter confer with the employee making specific recommendations as to areas of considered unsatisfactory performance of the employee and to assist him to correct such considered deficiencies within a prescribed period of time. Assistance may include but not be limited to in-service training programs or such other appropriate programs.”

It requires that the evaluation be in writing and that the employee has the right to provide a written reaction or response to it which shall become a permanent attachment to the employee’s personnel file.

At the outset we note arguments between the parties in this case as to the applicability of this statute to Mrs. France-ski’s case. The Board contends that the statute was not intended to supersede the Teacher Tenure Act, while Mrs. Franceski contends that she could not have been brought to task in the manner she was without compliance with the statute.

Since the Act took effect in September, 1977, and required evaluation at least every three years, in Mrs. Franceski’s case the Board had until September, 1980, to comply with the statute as far as she was concerned. We are unable to say that the statute applied in this case in view of these time restraints and consequently do not decide the relationship between the accountability statute and the Teacher Tenure law. However, the record is devoid of any showing by the Board that it had done anything to implement this statute as of the time it initiated tenure proceedings against Mrs. Franceski. The inference is clear that the Board disregarded the statute since all of its employees were to be evaluated within a three year period from September, 1977, and yet it appears to have done nothing by May, 1980. Displeasure with Mrs. France-ski began with Mr. Shepley’s taking office as superintendent in May, 1978. It does seem unreasonable for the Board to ignore the provisions of this statute with respect to evaluation. However, we are not convinced that this inapplicable statute as a matter of law could form the basis for the conclusion that the Board was arbitrary in dismissing Mrs. Franceski.

On the other hand the second reason for the trial court’s conclusion is supported by the record, especially considering the procedural deficiencies employed by the Board and already discussed in this opinion. It is clear that the duties of a supervisor of Special Education involved an extraordinary need for detailed paper work in compliance with federal and state laws establishing grant programs. Mrs. Franceski was provided with the assistance of one secretary and a bookkeeper but no professional staff. Her lack of assistance stood in marked contrast with all of the Special Education supervisors from other parishes who testified. In the final analysis, she was criticized for failure to perform duties which could not be adequately performed without her superintendent and the Board providing her with adequate assistance. The charges taken as a whole represent a huge collection of instances where she failed to meet deadlines or to coordinate programs or complete paper work despite the fact that there is no showing that anyone could have performed this work any better. The Board did not have the full benefit of the testimony of the other directors or supervisors of Special Education and perhaps would have reached a different conclusion had they done so. However, the full hearing provisions of the tenure act which authorized the introduction of this additional evidence gave the trial judge an opportunity to evaluate the charges against Mrs. Franceski on a sounder basis. There is no manifest error in the trial court’s conclusion that the Board was arbitrary and unreasonable in dismissing her and he correctly reversed the Board’s decision. Because of our conclusion in this regard it is unnecessary to discuss the court’s conclusion that the Board was arbitrary in the other particulars discussed by the court.

Thus, we have resolved to reverse the decision of the Board to dismiss Mrs. Franceski because, 1) the Board committed reversible error in failing to act upon the specific charges it brought against her, and 2) the Board’s decision was arbitrary because of its failure to consider the testimony available to the court that she did the best she could to handle an unusually complex job without adequate support.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.


text:
    George WELLS, Jr. v. CUMIS INSURANCE SOCIETY, INC. and Ravolga D. Bankston.
    No. 12918.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 11, 1982.
    Rehearing Denied July 16, 1982.

      Kenneth B. Krobert, Torres & Bischof, Chalmette, for plaintiff-appellant.
    David J. Mitchell, Porteous, Toledano, Hainkel & Johnson, New Orleans, for defendants-appellees.
    Before GULOTTA, SCHOTT and GARRISON, JJ.
   SCHOTT, Judge.

Plaintiff has appealed from a dismissal of his suit for damages arising out of an automobile accident which occurred at approximately 7 AM on March 15, 1978, at the intersection of Elysian Fields Avenue and North Robertson Street in New Orleans. The principal issue is whether the trial judge committed manifest error in concluding that plaintiff was contributorily negligent, thereby barring his recovery.

Elysian Fields is a wide divided boulevard consisting of four lanes on each side and an exceptionally wide neutral ground. It runs generally north-south and is favored over North Robertson Street which intersects at an approximate right angle. Prior to the accident, plaintiff was proceeding north on Elysian Fields and defendant was proceeding east on North Rpbertson. She entered the intersection from the neutral ground and ran into the left side of plaintiff’s automobile. The only witnesses testifying as to the facts of the accident were plaintiff, defendant, and the investigating police officer.

According to defendant, she came to a stop in the neutral ground before proceeding across Elysian Fields, looked to her right and saw nothing. She specifically denied seeing the plaintiff’s car at any time before the accident occurred. She stated that she rolled slowly into the intersection and collided with plaintiff in the middle lane of Elysian Fields. But plaintiff testified that he was in the extreme left lane of Elysian Fields prior to the accident, he did not see defendant or her car in the intersection and could not remember anything about the accident.

The investigating officer testified that he arrived on the scene about 20 minutes after the accident occurred. He took a statement from defendant but could not interrogate plaintiff because of his injured condition. He stated that defendant told him she had looked to her right and saw plaintiff’s vehicle “quite a distance away ... and [she] started across the intersection and all of a sudden this ear came speeding up in front of her and they collided.” From the location of the two automobiles and the debris which fell from them he determined that the accident took place in the third lane of traffic away from the neutral ground.

In reasons for judgment, dictated into the record at the conclusion of the trial, the judge rejected the testimony of both parties as “hard to believe.” However, he stated that he was impressed with the testimony of the police officer. He specifically found that the accident happened in the third lane from the neutral ground and that plaintiff was speeding, based on the report taken by the police officer from defendant and from plaintiff’s testimony that he was due at work some distance away from the scene of the accident at the very time the accident happened, along with the records of his employer which showed that he was ultimately dismissed because of excessive tardiness.

Plaintiff argues primarily that the statement taken by the officer from defendant was inadmissible as hearsay. However, the hearsay objection was waived because the statement by the officer was elicited by plaintiff’s counsel, who asked him what defendant had told him as to how the accident occurred. While it is so that the question was asked in order to impeach the prior testimony by plaintiff that she saw nothing prior to the accident, plaintiff could not allow the testimony to be admitted for one purpose and disregarded for other purposes. The trial judge was aware of the contradictory statements by plaintiff, but it was his function to evaluate the reliability of the statement plaintiff made to the police officer shortly after the accident occurred.

In our review of the record we are more impressed with the finding that the accident occurred in the third lane away from the neutral ground and plaintiff’s testimony that he never saw defendant prior to the accident. He had a clear, unobstructed view of this intersection and he should have seen defendant leave the neutral ground and traverse two full lanes of traffic before she struck him in the third lane. His negligence consisted simply in his failing to see what he should have seen. McCain v. State Farm Mutual Automobile Ins. Co., 236 So.2d 922 (La.App. 3rd Cir. 1970).

In the application of the standards of appellate review, explained in Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), we have determined that the record establishes that the trial court’s finding of contributory negligence on plaintiff’s part is not clearly wrong and the judgment appealed from is affirmed.

AFFIRMED.


text:
    Edward A. RODRIGUE, Jr. and Cynthia C. Rodrigue v. Klaus Peter GEBHARDT.
    No. 12896.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 11, 1982.
    Rehearing Denied July 16, 1982.

      Thomas E. Loehn, New Orleans, for plaintiffs-appellees.
    Louis H. Schultz, Clark & Odenwald, Me-tairie, for defendant-appellee.
    Before SCHOTT, AUGUSTINE and LO-BRANO, JJ.
   SCHOTT, Judge.

Plaintiffs Mr. and Mrs. Edward A. Ro-drigue, Jr., brought this suit for liquidated damages and attorney fees based upon an alleged agreement to sell real estate to defendant, Klaus Peter Gebhardt. The trial court found that a contract was perfected and was breached by defendant. From a judgment in favor of plaintiffs, defendant has appealed.

Plaintiffs offered their house for sale. In a written agreement to purchase, defendant offered to pay $100,000 for the house with a deposit consisting of $1,000 in cash and a $9,000 demand note. Plaintiffs rejected this offer and made a counter offer to sell for $105,000 with a deposit consisting of $5,000 in cash and a $5,500 demand note, and with each party to share discount points not to exceed three. This counter offer was to remain open until 12:00 Noon on January 31, 1980. At 1:15 PM on January 31, 1980, Defendant sent the following wire:

“I ACCEPT AGREEMENT TO PURCHASE THE RESIDENCE, 819 VALENCE ST. NEW ORLEANS, FOR $105,000. PURCHASER-SELLER, EACH PAY 1 POINT. DEPOSIT OF $2,000 CASH AND $8,500 DEMAND NOTE. PETER GEBHARDT”

Defendant subsequently refused to tender the deposit, and this suit was filed.

For a contract to be formed, the acceptance must be in all things conformable to the offer. An offer must be accepted as made to constitute a contract. LSA-C.C. Arts. 1798, 1805, 1806. Blythe v. Hall, 169 La. 1120, 126 So. 679 (1930). Here the acceptance differed from the offer in two material respects. First, the “acceptance” provided for a deposit consisting of $2,000 in cash and an $8,500 demand note, while the offer called for a deposit consisting of $5,000 in cash and a $5,500 demand note. Second, the “acceptance” provided for a payment of one point by each party, while the offer called for each party to share points “not to exceed 3.” Since defendant’s “acceptance” did not conform to plaintiffs’ offer no contract was formed. See Morere v. Dixon Real Estate Co., 188 So.2d 623 (La.App. 4th Cir. 1966), a similar case in which this court found that there was no contract where there was a variance between offer and acceptance.

A modification in the acceptance of an offer constitutes a new offer which must be accepted in order to become a binding contract. LSA-C.C. Arts. 1805 and 1806; Tombrello v. Board of Com’rs. of the Caddo Levee Dist., 129 So.2d 595 (La.App. 2nd Cir. 1961). See also Kuhn v. Stan A. Plauche Real Estate Co., 178 So.2d 296 (La.App. 4th Cir. 1965) and Marine Chart. (Gulf) Ltd. v. Boland Mach. & Mfg. Co., 273 So.2d 316 (La.App. 4th Cir. 1973). Defendant’s acceptance was a new offer because it contained a modification of the terms of the offer.

Plaintiffs had to accept defendant’s new offer for a binding contract to exist. The acceptance of an offer to purchase realty must be in writing. There is no evidence of such in the record and no contract was formed.

Accordingly, the judgment appealed from is reversed and set aside, and there is judgment in favor of defendant and against plaintiffs dismissing their suit at their cost.

REVERSED AND RENDERED.


author: BOUTALL, Judge.

text:
    Courtney EGERT & Cheryl Doussat v. COMMERCIAL UNION INSURANCE COMPANY & Casualty Reciprocal Exchange Insurance Company.
    No. 12410.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 11, 1982.
    Rehearing Denied July 16, 1982.
    Robert B. Keaty and Kerry E. Shields of Keaty, Keaty & Garvey, New Orleans, for Courtney Egert and Cheryl Doussat, plaintiffs-appellants.
    W. Paul Andersson, Hammett, Leake & Hammett, New Orleans, for Commercial Union Ins. Co., defendant-appellee.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   BOUTALL, Judge.

The driver and guest passenger of an automobile sue their respective uninsured motorist insurance carriers who respond with exceptions of prescription based on L.S.A.-R.S. 9:5629. The trial court maintained the exception on behalf of Commercial Union Insurance Company, dismissing plaintiffs’ petition, and they have appealed.

On March 28,1977, plaintiff Cheryl Dous-sat was a guest passenger in a vehicle being driven by plaintiff Courtney Egert which was involved in a collision. Suit was filed against the other driver and his insurer and was settled. On April 30, 1980, plaintiffs filed suit against Commercial Union Insurance Company, the uninsured motorist insurance carrier for the vehicle in which they were riding, and against Casualty Reciprocal Exchange Insurance Company, Dous-sat’s carrier. Both defendants filed exceptions of prescription based on L.S.A.-R.S. 9:5629 because plaintiffs’ suit was filed beyond the two year prescriptive period allowed by that section, added by Act. No. 444 of 1977 providing for a two year limitation of action reckoning from the date of the accident. The effective date of that section was set in the statute itself as July 1, 1978.

The sole issue on this appeal is whether or not L.S.A.-R.S. 9:5629 may be retroactively applied under the facts and circumstances of this case so as to bar plaintiffs’ cause of action against Commercial Union Insurance Company, the uninsured motorist carrier. Under the law in existence prior to the enactment of the statute, a ten year prescriptive period was applicable to the filing of such an action. The accident happened on March 28, 1977, and under that principle the suit would be timely filed. If the provisions of L.S.A.-R.S. 9:5629 apply, the last day for filing suit would have been March 27, 1979, and this suit, filed April 30, 1980, is filed too late.

In his reasons for judgment, the trial judge examined the issue very thoroughly and rendered a well-reasoned opinion in which he concluded that the law be retroactively applied and accordingly maintained the exception of prescription, dismissing plaintiffs’ suit against that insurer. Since the rendition of that judgment, the Court of Appeal for the First Circuit handed down its decision in the case of Johnson v. Fournet, 387 So.2d 1336 (La.App. 1st Cir. 1980), in which it was declared that the section could not be retroactively applied to bar an uninsured motorist claim arising out of an accident occurring prior to the effective date of the section. Conversely, our brothers of the Third Circuit handed down the case of Tilley v. Government Employees Insurance Company, 396 So.2d 525 (La.App. 3rd Cir. 1981), holding that Section 5629 could be retroactively applied. Our circuit has agreed with the principles announced in Tilley following it in the case of Reichenphader v. Allstate Insurance Company, 402 So.2d 311 (La.App. 4th Cir. 1981) applying the statute retroactively. Writs were granted by the Supreme Court of Louisiana in that case, but as of this date there has been no final decision handed down.

We follow our decision in Reichenphader and hold that L.S.A.-R.S. 9:5629 should be retroactively applied. Accordingly, we affirm the judgment of the trial court maintaining the exception of prescription on behalf of Commercial Union Insurance Company at appellant’s costs.

AFFIRMED.


text:
    George HUMENIUK v. UNION CARBIDE CORPORATION.
    No. 12445.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 11, 1982.
    Rehearing Denied July 16, 1982.
    Lester J. Waldmann of Tooley & Wald-mann, Gretna, for George Humeniuk, plaintiff-appellant.

      Esmond Phelps, II of Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, for Employers Nat. Ins. Co., intervenor-appel-lant.
    Albert H. Hanemann, Jr., New Orleans, for Union Carbide Corp., defendant-appel-lee.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   BOUTALL, Judge.

George Humeniuk sued Union Carbide Corporation for personal injuries occasioned by the collapse of a wooden chute wall or railing leading to a foot bridge across a canal on Union Carbide's property. Hu-meniuk was a workman employed by H. B. Zachry Company who was the general contractor for the construction of a chemical unit for Union Carbide at its plant. While knocking off from work on June 2,1977, he was injured and now sues Union Carbide in tort. He bases the defendant’s liability upon its negligent activity under Civil Code Article 2315 and on the theory of strict liability under either Civil Code Article 2317 or 2322. The trial judge found that the accident was caused by Humeniuk’s participation in a plan to deliberately knock the railing down, and dismissed his suit. We affirm.

The trial judge gave very detailed findings of fact and we adopt them as our own. We quote:

“The following facts were not seriously disputed: Zachry employees used a designated parking lot on the enclosed Union Carbide plant. Adjacent to the parking lot were four enclosed lanes leading into the Union Carbide plant. Each lane contained two time clocks and the Zachry employees used these lanes and clocks to punch in and punch out for work.
To reach the construction site from the time clocks, Zachry employees crossed a bridge over a canal. This bridge was about 25 to 30 feet long by four feet in width. No safety problem existed when Zachry employees were reporting for work. However, the Zachry employees created dangerous problems at quitting time when there was an unruly mass rush for the bridge and the time clocks. To prevent this rush Zachry had supervisors at the bridge at quitting time, imposed sanctions for running and rushing, and finally constructed a chute at the construction site of the bridge to control entry onto the bridge. This chute was about 20 to 25 feet wide at the entrance, about 25 to 30 feet long and narrowed to the width of the bridge at the steps leading onto the bridge.
According to plaintiff he was in the rush through the chute when the overcrowding caused the walls of the chute to break and he was thrown to the ground and people fell over him and injured his knee.
Specifically this court finds that:
1. Zachry employees, including plaintiff, were unruly and undiciplined and rushed to reach the time clocks resulting in great over-crowding of the chute and the bridge: Hill, Hernandez, Rodrigue, Westbrook, plaintiff.
2. This even though Zachry supervisors attempted to control the entrance into the chute and the bridge and even though sanctions were imposed on employees who rushed or ran and Zachry disciplined many employees for violation of the rules and discharged a number of employees for those reasons: Hill, Hernandez, Ro-drigue Westbrook, plaintiff.
3. It took from 10 to 15 minutes for the employees to cross the bridge: Hill, Rodrigues, Westbrook.
4. Plaintiff was well aware that employees over-crowded the chute and the bridge.
5. More prudent employees waited at the entrance of the chute until the rush had subsided before entering the chute.
This court concludes that:
1. The chute and bridge were not defective nor unsafe. The cause of the accident was the over-crowding of the chute by plaintiff and his fellow employees.
2. It is a universal custom of the chemical industry to enclose chemical plants. People enter onto chemical plants through supervised gates, or, in the case of employees, through supervised clock lanes. It is unheard of, if not physically impossible, to allow free and unrestricted entrance or exit from chemical plants. Free and unrestrained entry or exit from any site frequented by crowds is unheard of: people line up and wait for entry or exit from stadiums, theatres, amusement parks, ticket offices, license bureaus, etc. In this light the recommendations of Scardino are unrealistic: Firstly, the length of time involved in crossing the bridge in an orderly fashion was not excessive. Secondly, under the circumstances the bridge could have been expanded in accord with Scardino’s suggestions and the self-same rush would have occurred.
3. Zachry supervised the egress from the construction site. Zachry imposed rules governing the exit from the site and particularly at the chute. Zachry imposed sanctions on employees violating these rules and discharged employees for this reason. The unruly and undisciplined employees would not abide by the rules: This court believes the testimony of Hill and Rodrigue that the employees resented the chute and on the date of the accident were deliberately and intentionally destroying the chute. This court believes plaintiff was a willing participant in this effort.
4. This court believes that plaintiff willingly violated the rules imposed by Zachry, that plaintiff was well aware of the dangers of over-crowding the chute and the bridge; that plaintiff willingly participated in the mass rush into the chute and was injured through his own negligence.”

The appellate function requires that we should not disturb upon review reasonable evaluations of credibility and reasonable inferences of fact when there is a conflict in the testimony unless there is manifest error, or, put another way, unless it is clearly wrong. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). We do not find that the trial judge was manifestly erroneous or clearly wrong, and we agree with his reasonable findings of fact.

Appellant alternately contends that even though such a decision may dispose of his entitlement to relief under the provisions of C.C. Article 2315, that nevertheless the bridge and the chute leading to it are built upon the property of Union Carbide and accordingly come under the strict liability principles set out in C.C. Articles 2317 and 2322. Appellant refers us to the interpretation of Article 2317 in the recent case of Loescher v. Parr, 324 So.2d 441 (La.1975) and the recent interpretation of Article 2322 in the case of Olsen v. Shell Oil Company, 365 So.2d 1285 (La.1979). He contends that the railing that collapsed and caused his injuries was in the custody of Union Carbide and its contractor, H. B. Zachry and that the property on which the bridge and railing were constructed belonged to Union Carbide.

By reference to the facts enumerated above, it is clearly shown that the bridge was constructed, operated and supervised by Zachry for its employees and that Union Carbide had no control over it. The bridge was placed in that position by Zachry and adapted for use by its employees, and the chute was constructed by Zachry several weeks before the accident in order to help control traffic. The facts do not show application of the principles of C.C. Article 2317. Similarly Article 2322 does not apply because the cause of the damage was not the ruin of the railing caused by neglect to repair it or as a result of a vice in its original construction, but the ruin was caused by the deliberate attempt of Za-chry’s employees to knock it down. This fact clearly distinguishes this case from the case of Olsen v. Shell Oil Company, supra, which involved the explosion of a water heater in a modular living unit owned by an independent contractor and welded onto the oil well platform owned by Shell Oil Company.

For the reasons above assigned, the judgment is affirmed at appellant’s cost.

AFFIRMED.


author: GARRISON, Judge.

text:
    The CECO CORPORATION v. R & M INDUSTRIES, INC., Robert P. Guilbault, and Michael C. Guilbault.
    No. 12133.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 11, 1982.
    Rehearing Denied July 16, 1982.
    John L. Hantel, New Orleans, for plaintiff-appellee.
    Reed & Reed, Bruce G. Reed, New Orleans, for defendants-appellants.
    Before GULOTTA, GARRISON and BARRY, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court granting to plaintiff, the Ceco Corporation, the amount of $4,500.00, plus legal interest from date of judicial demand and costs. From that judgment, which we rescind, set aside and recast, defendants appeal.

On appeal, defendants, Robert and Michael Guilbaut, argue that the trial judge erred in piercing the corporate veil and rendering judgment against them personally instead of against the corporate entity, R & M Industries, Inc. (hereinafter, R & M). We agree.

The $4,500.00 debt arose from the sale on open account of aluminum doors and frames in 1974. Robert Guilbault, the father of Michael Guilbault, owned 60% of R & M and Michael Guilbault owned 40% until his resignation from the corporation in 1975-76. Thereafter, Robert Guilbault operated the corporation and was its sole shareholder until the assets of R & M were transferred to a new corporation, R. P. Gu-ilbault Co., Inc. The new corporation issued checks in payment of the debt to plaintiff. There have been no allegations of fraud or deceit and the trial judge specifically found that no fraud or deceit has occurred. In his reasons for judgment, the trial judge stated:

“.. . the conclusion is inescapable that the defendants operated the business as a ‘father and son’, and not as a separate corporate entity. If the ‘cash flow’ warranted it, the father paid himself a salary out of the business bank account. If not, he waited until the cash flow improved . . . However, the father also considered the possibility that the business might need additional ‘cash’. If he ... determined that new cash was needed, he (the father) merely drew funds out of his personal account and placed said funds in the business account ... he never called a stockholders meeting. No Board of Directors meeting was ever called. No minutes were kept. No corporate authority was granted for his actions. No policy was ever established governing personnel. The corporate entity took no action whatsoever, during its entire existence.”

The factors listed by the trial judge are insufficient to allow the piercing of the corporate veil. Robert Guilbault, as President of the corporation, held certain inherent powers of the office of President. The president of a corporation who decides to forego a salary where drawing a salary might cause financial instability in the corporation is taking the proper action. Likewise, an interest free loan to a corporation is in the corporation’s best interest, is not a perversion of corporate opportunity, and is not grounds for piercing the veil. While an annual shareholders meeting, board meeting and written minutes are required under the Louisiana Business Corporate Act, these factors alone, where there is a sole shareholder, and no fraud or deceit and where the corporation maintained separate checking accounts and separate books and records, are insufficient to allow piercing of the corporate veil to occur.

By issuing payment on its corporate account, R. P. Guilbault Co., Inc. has acknowledged the debt and assumed it in the nature of a stipulation pour autri. Accordingly, we find that this corporation should have been included in the judgment rendered below.

Proper demand was made pursuant to R.S. 9:2781 such that attorney’s fees in the amount of 10%, or $450.00, should have been awarded.'

For the reasons discussed, the judgment of the district court is rescinded, set aside and recast as follows:

IT IS ORDERED, ADJUDGED AND DECREED that there be and hereby is judgment herein in favor of the plaintiffs, The Ceco Corporation, and against the defendants, R & M Industries, Inc. and R. P. Guilbault Co., Inc., jointly, severally, and in solido in the full sum of Four Thousand Five Hundred and No/100 Dollars ($4,500.00), together with legal interest from the date of judicial demand until paid, attorney’s fees in the amount of Four Hundred Fifty and No/100 Dollars ($450.00), and for all costs of these proceedings.

RESCINDED, SET ASIDE AND RECAST.


author: BYRNES, Judge.

text:
    Isaac MINTON, Individually and as Administrator of the Estate of the Minor, Connie Minton v. SAINT BERNARD PARISH SCHOOL BOARD, Louis E. Flair, and the Continental Insurance Company.
    No. 12407.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 11, 1982.
    Rehearing Denied July 16, 1982.

      Walter F. Gemeinhardt, New Orleans, for plaintiff-appellee.
    Lawrence J. Ernst, John J. Cooper, Chris-tovich & Kearney, New Orleans, Charles H. Livaudais, Chalmette, for defendants-appellants.
    Before GULOTTA, BYRNES and WILLIAMS, JJ.
   BYRNES, Judge.

This is an appeal from a decision in which the trial judge rendered judgment in favor of Isaac Minton on behalf of his minor child, Connie Minton, in the amount of $450,000.00 against appellants St. Bernard School Board, Louis Flair and Continental Insurance Company. For the reasons stated below we affirm in part and amend in part the judgment of the trial court.

This action arose out of an accident involving a school bus and a pedestrian whereby young Minton was struck by a St. Bernard school bus driven by Louis Flair. Minton suffered a severe degloving-type injury to the inside of her thigh. She also suffered a fractured wrist and the loss of a front tooth. The two issues on appeal are: (1) Negligence on the part of the bus driver and the school board, and (2) whether the quantum awarded by the trial judge was excessive.

NEGLIGENCE

The school bus was proceeding east on a two lane highway in St. Bernard Parish. The driver testified that he saw two groups of children on the road ahead and he slowed down. At that time he was going between forty and forty-five miles per hour. A child darted across the highway and was followed by another child, Connie Minton. The bus driver upon seeing Minton, swerved the bus into the west bound lane and Minton, apparently panic stricken, reversed her movement and ran back into the path of the vehicle and was struck by the bus’s left front fender. The evidence indicated that had Minton continued her original movement, the accident would not have occurred.

The bus driver testified that he slowed down when he first saw the children and mindful of his passengers’ safety, did not immediately slam on the brakes for fear that the children would hit their faces on the rail above the seats in front of them. If he had applied the brakes the first time he saw the child he would have undoubtedly missed Minton. The school bus driver maintained that a sudden emergency was created whereby he had to make a choice between the safety of his passengers and the safety of the pedestrians. We need not discuss this contention as the record supports the court’s determination that it was the bus driver’s negligence which placed him in the position whereby he had to make the decision whether to brake suddenly to avoid Minton or to try to stop the ■ bus gradually and prevent injury to his passengers.

We are in agreement with the trial court’s finding of negligence as supported by the record, and after a careful review thereof, we find no manifest error was committed by the trial court. Arceneaux v. Dominque, 365 So.2d 1330 (La.1978); Canter v. Koerhing, 283 So.2d 716 (La.1973). We therefore affirm the lower court’s decision as it pertains to the negligence of the bus driver and the St. Bernard School Board.

QUANTUM

The trial judge, in assessing damages, in this court’s opinion clearly abused the great latitude of discretion allowed him. The Supreme Court in Reck v. Stevens, 373 So.2d 498 (La.1979) and Coco v. Winston Industries Inc., 341 So.2d 332 (La.1976) set forth explicit guidelines to be used by appellate courts in determining whether the trial judge abused the great discretion allowed him.

While it is a great temptation for the appellate courts to rely on past damage awards for similar injuries in determining whether the trial judge had erred in his award, we wholly subscribe to the views of the Supreme Court that each injury in and of itself is a unique event and should not be compared with other seemingly similar but in actuality dissimilar injuries in determining the proper quantum to be awarded. We have reviewed the many cases presented us by both sides and their arguments for the amount of quantum to be awarded and we find them totally inappropriate in that the injuries complained of in those past cases are for the most part dissimilar to the injury at hand.

While this court emphatically states that we do in no way minimize the severity of the injury sustained by Connie Minton, we do feel that the trial judge abused his discretion in awarding $450,000.00. Our determination of the range of discretion in which the lower court judgment should fall is based on several things.

The child was in the hospital for approximately one month. Her recovery was, in the view of this court, uneventful when compared with recovery by others for an injury of this type. The child does have a ten by three inch scar on the inside of her thigh. She additionally has some scarring about her knee and the disability remaining is approximately 5 per cent. There is some scarring on her lower abdomen where the skin graft was taken. There is no evidence as to any residual disability stemming from any of the other injuries complained of, i.e., the fractured wrist and the lost tooth. Further, there is nothing in the record to indicate anything other than an uneventful recovery from these injuries. The thrust of plaintiff’s argument is directed towards the leg injury. We, while not dismissing the other injuries of plaintiff, direct our discussion to the leg injury.

Plaintiff, in post trial memorandum, itemizes her damages as follows: $5,889.25 for out of pocket expenses to date, $15,-000.00 to $20,000.00 for future medical expenses which would cover approximately three 10-day hospital sojourns during which additional skin grafts would be made, and $175,000.00 for future disability and past and present pain and suffering. The trial judge awarded $450,000.00.

Although we are not in a position to hear the evidence firsthand, and make a determination on our own as to the exact amount of damages to be awarded based on the evidence, see Reck and Coco, supra, we feel that plaintiff’s post trial memorandum has set forth a fairly accurate indicator of the upper level of the area of discretion below which we will not disturb.

We therefore amend that the lower court’s judgment only in so far as to change the $450,000.00 amount to read $200,000.00. All other aspects of the judgment and the amended judgment are to remain the same. All costs of these proceedings are to be borne by the respective parties.

AMENDED AND AFFIRMED.