author: COVINGTON, Judge.

text:
    Howard Leo SIBLEY, Jr. et al. v. Randy MENARD et al.
    No. 13808.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.
    Writ Denied May 1,1981.

      William J. Staser, Baton Rouge and Haydn S. Berey, Livingston, for plaintiff.
    Gerald L. Walter, Jr., Baton Rouge, for Southwestern Ins.
    John Bivins, Lafayette, for appellants.
    James B. Doyle, Baton Rouge, for Lafayette Concrete.
    John W. King and Wm. T. Doran, Baton Rouge, for Dept, of Transp. and Development.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   COVINGTON, Judge.

Plaintiffs-appellees, Howard Leo Sibley, Jr., Ronald Edward Sibley, Helen M. Sibley, individually and as Natural Tutrix of the minor children, Brenda Sibley, Linda Sibley, Charles Sibley and Stephenie Sibley, filed suit against Randy L. Menard, the operator of a 1976 Ford tractor, Will’s Trucking, Inc., Menard’s employer, and its insurer, Southwestern Insurance Company, for damages resulting from the death of their father and husband, Howard Leo Sibley, Sr., allegedly caused by the negligent operation of the truck by Randy Menard. Subsequently, the original defendants filed a third party demand against the State of Louisiana, through the Department of Transportation and Development, alleging solidary liability, asking for contribution in the event the original defendants were liable to the original plaintiffs, based on the Department’s alleged failure to maintain the highway in a safe condition, particularly in allowing the roadway to be substantially elevated above the level of the shoulder. Thereafter, the original plaintiffs amended their petition to name the State, through the Department, as a party defendant, alleging the failure to properly maintain the highway, or warn of the dangerous condition of the highway. The Department answered and also named the original defendants as third party defendants as to the Department.

After trial on the matter, judgment was rendered in favor of the widow, individually, and as natural tutrix of her minor children, in the amount of $586,048.83, representing $100,000 to her for loss of love and affection, $50,000 for each minor for loss of love and affection, $4,277.83 for funeral expenses, and $277,511 for loss of support to the widow and children allocated as follows: Helen Sibley, 58%; Howard Leo Sibley, Jr., 0%; Ronald Edward Sibley, 3%; Brenda Lee Sibley, 5%; Linda Elizabeth Sibley, 8%; Charles Ray Sibley, 10%; and Stephenie Joan Sibley, 16%. The judgment further awarded Howard Leo Sibley, Jr., the sum of $25,000 and Ronald Edward the sum of $50,000 for loss of love and affection. Also, the widow was awarded, in both capacities, $3,000 as attorney’s fees and $1,260 as 12% penalty against Southwestern Insurance Company. In addition, certain expert witness fees were taxed as costs. The judgment provided that the liability of the defendants, Randy L. Menard, Will’s Trucking Company, Inc. and the State was solidary. It further provided judgment against Southwestern Insurance Company in the amount of its policy limits as liability insurer of Menard and also against Southwestern as the uninsured motorist carrier of Howard L. Sibley in the amount of $200,-000. All of the defendants cast in judgment then appealed.

Subsequent to the judgment and pending appeal, Southwestern settled with the plaintiffs and dismissed its appeal. The settlement provided that the insurer pay to the plaintiffs the sum of $100,000, plus interest, and subrogated the insurer to the sum of $75,000 against the other defendants. The plaintiffs reserved their rights against said other defendants.

The accident occurred on November 1, 1976, between an empty gravel truck operated by Randy L. Menard and a loaded gravel truck operated by Howard Leo Sib-ley, Sr. on Louisiana Highway 16 in the Parish of Livingston. Immediately prior to the accident, the Sibley truck was proceeding in a southerly direction on Highway 16, a bituminous-surfaced two-lane roadway, away from the gravel pit, while the Menard truck was traveling in a northerly direction on the same highway, headed toward the gravel pit. As Menard entered the curve where the accident occurred, his vehicle went out of control; and as he attempted to regain control, his truck swerved across the centerline into Sibley’s lane of traffic and struck the Sibley vehicle with such impact as to cause Sibley’s death.

In the trial, the judge found that Menard was negligent in the operation of his vehicle in operating his truck at an excessive rate of speed and failing to maintain control of the same. From the testimony of Randy L. Menard, the driver, and David Dumesnil, his passenger, the trial judge found that Menard “was traveling at a rate of speed which prevented the safe negotiation of the curve in question” and his negligent operation was “a cause in fact of the accident sued on herein.” We agree.

The law is clear regarding the responsibility of a motorist under circumstances similar to the instant case. LSA-R.S. 32:64A requires that a motorist not drive at a speed faster than that which is reasonable and prudent, consistent with the width and surface of the roadway and other conditions, such as the weather. Kentzel Truck Lines, Inc. v. State Farm Insurance Co., 342 So.2d 1133 (La.App. 1 Cir. 1977); Mack v. Employers Commercial Union Insurance Company of America, 269 So.2d 470 (La.App. 1 Cir. 1972).

From Randy Menard’s own testimony, we learn that he was nervous due to the narrowness of the roadway, the curving of the roadway, and the other sand and gravel trucks which he was constantly meeting. His brother’s warnings of the dangerousness of Highway 16, and his operating a truck on this perilous roadway against the express admonitions of his brother, did not add to his sense of well being. Menard was obviously an inexperienced truck driver; he had actually driven an 18-wheeler only a few times; he had gone to no school for this type of training; he had received only casual instructions in driving large trucks from his brother and another truck driver; he did not have a chauffeur’s license, and this was the first time he had driven this particular truck.

All of the credible evidence points toward the fact that Menard tried to negotiate this dangerous curve at a rate of speed in excess of 35 M.P.H., which was faster than a reasonable speed at which the curve could be negotiated. Trooper Robert Createur, who investigated the accident, was of the opinion that Menard left the roadway at a “high rate of speed.” There can be no question that Randy L. Menard was negligent in the operation of his vehicle. Will’s Trucking, Inc., as his employer, is thus liable.

On appeal, Menard relies upon Rue v. State, Department of Highways, 372 So.2d 1197 (La.1979). Rue involved a one-car collision. The motorist inadvertently slipped off the roadway onto a dangerously rutted shoulder, which caused the driver to lose control of the car. The question for the State Supreme Court was whether the motorist’s “substandard” conduct in leaving the paved surface of the highway barred recovery of the plaintiff’s damages. The Court held that it did not. The Rue Court did not go so far as to suggest that the Department’s negligence in maintaining its highways absolves a negligent motorist of “fault” toward an innocent third party. Rue merely cleanses the hands of the motorist whose conduct is below standard, in his relationship with the State, through its Department of Transportation and Development (Highways), so that he may recover for damages due to the fault of the State; it does not provide such a motorist with a shield against the claims of an innocent victim.

The primary contention of the Department is that the plaintiffs failed to prove negligence on its part. The Department’s position is that the plaintiffs failed to prove that there existed any condition of the roadway at the time of the accident which was patently or obviously dangerous to a reasonably careful and ordinarily prudent driver; and also, that if such an unsafe condition actually existed, the plaintiffs failed to prove that the Department had either actual or constructive knowledge thereof.

In the recent case of Brown v. Louisiana Department of Highways, 373 So.2d 605, 606 (La.App. 3 Cir. 1979), writ denied, 376 So.2d 1269 (La.1979), the Court set forth the responsibilities of the Department in the following language:

“The legal responsibility of the Department as to highway accidents was generally stated by this court in LaBorde v. Louisiana Department of Highways, 300 So.2d 579 (La.App. 3 Cir. 1974), writ denied, 303 So.2d 182 (La.1974) as follows: “ 'The Department of Highways is not responsible for every accident which occurs on state highways. It is not a guarantor of the safety of travelers thereon, or an insurer against all injury or damage which may result from defects in the highways. The duty of the Department of Highways is only to see that state highways are reasonably safe for persons exercising ordinary care and reasonable prudence. The department is liable for damages only when it is shown (1) that the hazardous condition complained of was patently or obviously dangerous to a reasonably careful and ordinarily prudent driver, and (2) that the department had notice, either actual or constructive, of the existence of the defect and failed within a reasonable time to correct it.’ “Also see U.S.F. & G. Co. v. State, Dept. of Highways, 339 So.2d 780 (La.1976) and Guin v. State Through Dept. of Highways, 360 So.2d 1185 (La.App. 3 Cir. 1978).
“Included within the Department’s duties is the maintenance of the shoulders of the highway in a reasonably safe condition. Rue v. State, Department of Highways, 372 So.2d 1197 (La.1979).”

With respect to the negligence of the Department, the Court below found that:

“[T]he shoulder was not adequately maintained, and the roadway was less than the recommended width at the time of the accident. The roadway, as originally constructed some years ago apparently met applicable standards at that time. However, maintenance and repair of the shoulder combined with the narrow width or (sic) the road is a proximate cause of this accident. The knowledge of the Department that the roadway did not meet current standards imposed upon it a duty to treat the shoulders in a manner so as to minimize the effect of the narrowness of the road. This was particularly true since the Department had actual knowledge of the types of vehicles, gravel trucks, which frequently used the road. Therefore, the width of the road combined with the low quality of maintenance constitutes negligence on the Department.”

There was substantial testimony as to whether a dangerous condition did exist at the site of the accident and whether the Department had actual or constructive notice of such a defect.

Duaine T. Evans, a consulting traffic engineer who was recognized by the trial judge as an expert in traffic control and traffic engineering, testified that the elevation difference between the roadway and the shoulder in this case constituted a hazardous condition which tended to cause a motorist to lose control of his vehicle when a wheel ran onto the shoulder. He also indicated that the warning sign was placed too close to the curve and designated a speed at which it was actually unsafe to negotiate the curve. The expert also noted the narrowness of the roadway, ten feet width for each of the two lanes, and the extreme narrowness and rutted condition of the shoulder. In his testimony he expressed the following opinion:

Q. And would you describe the conditions of that shoulder, with regard to the bituminous mixture?
A. Well, the bituminous mixture has been placed in a depressed area or a worn out area, adjacent to the roadway itself. It has numerous holes and obvious low spots in it, to the actual surface of that bituminous area, and it’s bumpy. The patching is bumpy. It’s below the surface of the roadway.
Q. Could you determine how far below the edge of the roadway that’s located?
A. I would say two to four inches lower than the roadway.
Q. Now, Mr. Evans, in connection with your work as a traffic engineer, could you describe what the effects of driving in a northerly direction at the — well, let’s put it this way, driving in a northerly direction at somewhere in the neighborhood of the speed recommended by the Department of Transportation as per their sign on the curve showing thirty-five miles per hour?
A. Well, traveling north on this roadway approaching this curve the driver is warned of the curve later than he should be because the curve is placed closer to the curve than it should — the sign is placed closer to the curve than it should be. The advisory speed of thirty-five, in my opinion, based on my studies, is five miles per hour higher than it should be, si (sic) if a driver were to approach this curve he would — when he saw the thirty-five, he would tend to slow up, however, his reduction in speed would be later than it should be, so he would not necessarily reach the thirty-five, or reduce to thirty-five as soon as he should. He would be going a little faster than he should be through the curve, even if he managed to get down to thirty-five he would be going a little faster than he should be. He would have a tendency, because of the nature of the curve itself, it’s a left hand curve northbound, he would have a tendency for his right wheels to get off the edge of the pavement, or to get over to the edge and maybe off, depending upon the size of his vehicle. A vehicle such as involved in this accident used up most of the lane of travel in its normal usage so he didn’t have a lot of space to play with, and his wheels would tend to get off sooner than an automobile would. In attempting to negotiate the curve, the normal reaction to getting two wheels off the edge of the pavement, the normal reaction is to steer back onto the roadway. And in order to recover your vehicle back onto the roadway you have to actually oversteer. In so doing, there is that possibility that you will overs-teer too much and because of the condition and the elevation of the shoulder this was a good possibility, because you have to oversteer to overcome that drop-off. And in oversteering there’s a possibility you will get into the wrong lane of traffic.
Q. As I appreciate it the momentum of the vehicle would be towards the outside of the curve in this particular instance?
A. That’s correct. At that speed the momentum would force the vehicle toward the outside of the curve off onto the edge of the shoulder — off onto the shoulder, that is, off the edge of the pavement onto the shoulder.”

M. K. Johnston, a district maintenance engineer for the Department, conceded that this curve did not meet Department standards: the shoulder was very narrow, “not but about maybe eighteen inches, two foot shoulder at the widest points.” With the narrowness of the roadway, the abrupt drop-off and the rutted condition of the shoulder, he considered it to be a dangerous situation. Trooper Robert Createur observed the rut in the shoulder and estimated it to be “some three to four inches in depth.” Charles Cantu and Ben Fugler, both of whom lived in the vicinity of the accident, testified to the sharp drop-off. The drop-off from pavement to shoulder was so abrupt that Fugler was not able to get his sports car in and out of his driveway without the underside dragging. The numerous photographs taken at the scene of the accident vividly portray the patently dangerous condition of the roadway and shoulder, particularly the drop-off. Cantu testified to some five or six vehicular accidents in this particular area prior to the one in question, most of which ended up in his front yard.

We next consider whether the Department had actual or constructive notice of such condition. The road was heavily traveled, particularly by sand and gravel trucks. At this curve the wheels of these and other trucks were continually dropping off the pavement, keeping the shoulder in a bumpy, rutted condition. The state trooper commented upon the bad condition of the roadways and shoulders in this area. The Department employees testified that they were aware of the elevation of the roadway over the shoulder, causing abrupt drop-offs. There had been little or no maintenance in this area since the overlay in 1974. Cantu has reported some of the accidents to the police and has complained of the condition of the roadway to parish officials. Fugler testified that he had specifically complained of the roadway conditions to Romie A. McMorris, the Department’s maintenance superintendent who was in charge of maintaining this particular roadway. The trial court found:

“Suffice to say that in this Court’s opinion, based upon this entire testimony and especially the testimony of the two disinterested witnesses, that the Department had more than notice of the defects, it had specific knowledge and was negligent in failing to take any steps to protect the public.”

The evidence reveals that the dangerous condition of this particular curve, with the inadequate and hazardous shoulder, was actually known to the Department. Many vehicular accidents had occurred at this location over a long period of time and local residents had complained to the Department about the hazardous condition. See Gayle v. Department of Highways, 205 So.2d 775 (La.App. 1 Cir. 1967), writ refused, 251 La. 932, 207 So.2d 538 (1968).

This summary of evidence clearly reflects that the dangerous condition, a hazardous drop-off from the pavement to the shoulder, rutted and bumpy shoulder and improper warning sign designating this sharp curve, existed at the time of the accident in question, which condition was obviously dangerous to a person exercising ordinary care and reasonable prudence. The record also shows that although the Department had prior knowledge that the dangerous condition existed for a long period of time before the accident, it failed to remedy the defect and took no steps to install proper warning devices. Thus, the record supports the trial court’s holding that the Department was negligent in allowing such an unsafe condition to exist and that the dangerous condition was a proximate cause of the accident.

Considering the evidence discussed above, the trial judge concluded that the negligence of Randy L. Menard in the operation of his gravel truck and the negligence of the State of Louisiana, Department of Transportation and Development, concurred in causing the accident which resulted in Mr. Sibley’s death. We agree. Brown v. Louisiana Department of Highways, supra; Robertson v. Handy, 354 So.2d 626 (La.App. 1 Cir. 1977), writ denied, 356 So.2d 434 (La.1978).

The department’s next contention on appeal is that the trial court erred in excluding the testimony of an expert witness who was not listed in the pretrial order.

Article 1551 of the Code of Civil Procedure states as follows:

“In any civil action in a district court the court may in its discretion direct the attorneys for the parties to appear before it for a conference to consider:
(1) The simplification of the issues;
(2) The necessity or desirability of amendments to the pleadings;
(3) What material facts and issues exist without substantial controversy, and what material facts and issues are actually and in good faith controverted;
(4) The possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof;
(5) The limitation of the number of expert witnesses; or
(6) Such other matters as may aid in the disposition of the action.
“The court shall render an order which recites the action taken at the conference, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matters considered, and which limits the issues for trial to those not disposed of by admissions or agreements of counsel. Such order controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice.”

The trial court had issued a pretrial order in this case, narrowing the issues and listing the witnesses. That order controls the subsequent course of action unless modified at the trial to prevent manifest injustice. The judge refused to modify his order to permit the expert witness to testify. Much discretion is left to the trial judge in this matter. As was stated in Brown v. Hawkins, 244 So.2d 896, 899 (La. App. 1 Cir. 1971), writ refused, 258 La. 572, 247 So.2d 393 (1971):

“ * * * An orderly disposition of each case and of the entire docket and the avoidance of surprise are inherent in the theory of pre-trial procedure and are sufficient reasons for allowing the trial judge to require adherence to the pre-trial order in the conduct of an action.”

See Avondale Shipyards, Inc. v. Larose Shipyard, Inc., 289 So.2d 192 (La.App. 1 Cir. 1973).

The record shows that a list of witnesses were submitted to the trial court at the pretrial conference and that the Department did not specifically list this particular expert on their list of witnesses, or list any expert as a witness. At the April pretrial conference, trial was set for two days early in the month of October. It was begun on October 8, and continued through October 9, 1979, at which time the plaintiffs rested their case. Between the April and October dates the Department made no attempt to add to or change the list of witnesses, or modify the order in any way. Due to the court’s schedule, at the close of plaintiffs’ case it was necessary to recess the matter until October 24, 1979. During the 15 day recess, the Department filed no motion or letter in the record indicating that the expert would be called, and no attempt was made to amend the pretrial order, despite the fact that the Department had contacted the expert on October 10, 1979, the day after the plaintiffs had closed their case. The expert was called by the Department as its last witness. The trial judge sustained the objection to his testimony, remarking:

“The Court feels that it would be a miscarriage of justice and a breach of discretion to permit this witness to testify when the other parties to this litigation had no knowledge of his pending testimony and thus, would be deprived of adequate cross-examination. The plaintiff specifically would be deprived of the opportunity of rebuttal evidence with other experts, specifically their own expert of Mr. Evans, who has been discharged and is not even present to hear the testimony of the Department of Transportation and Development.”

Since the parties had limited the issues and the witnesses with the pretrial conference and the pretrial order, and the order was not subsequently modified despite ample opportunity for the parties to seek modification thereof, the trial judge did not abuse his discretion in excluding the testimony of this “eleventh-hour expert.”

The appellants next complain of the alleged excessiveness of the award to the plaintiffs, specifically complaining of the way in which one item of damages, loss of support, was figured.

In the assessment of quantum of damages, much discretion is left to the trier of fact. Such award may be disturbed on appeal only if the record clearly reveals an abuse of this much discretion. Reck v. Stevens, 373 So.2d 498 (La.1979); Coco v. Winston Industries, Inc., 341 So.2d 332 (La. 1976). We do not find any abuse of discretion in the amounts awarded to the wife and children of Howard Leo Sibley, Sr.

In the case of Blanchard v. Rodrique, 340 So.2d 1001, 1005 (La.App. 1 Cir. 1976), writs denied, 341 So.2d 1129, 1130 (La.1977), this Court said:

“The settled jurisprudence of this state is that damages for loss of support are speculative in nature and cannot be calculated with mathematical certainty. The most a Court can do in such cases is to exercise sound judicial discretion and award an amount which, considering all of the circumstances, seems just to both parties and is not unduly oppressive to either. Viator v. Gilbert, 253 La. 81, 216 So.2d 821 (1968); McFarland v. Illinois Central Railroad Company, 241 La. 15, 127 So.2d 183 (1961).
“Factors which should be weighed in determining the amount due for loss of support include the decedent’s present earnings, his age and life expectancy, his work life expectancy, the possibility of a decrease or increase in his earnings, the decedent’s job security, the nature of decedent’s work, his health, his relationship with his family, his personal expenses and his past work record. Other factors are the surviving spouse’s age and health, the minor children’s age, and the effects of inflation and the need to discount future earnings to a present day amount. In short, all factors relevant to a determination of the amount of the loss of support due to the premature demise of the decedent should be considered.”

The record in this case, when considered in light of the trial judge’s award for loss of support and his explained reasons therefor, clearly shows that he considered those relevant factors, as set out in the Blanchard case, necessary to determine the amount of loss of support. He fixed that sum at $277,-511.00, allocated as follows: Mrs. Sibley, 58%; Howard L. Sibley, Jr., 0%; Ronald E. Sibley, 3%; Brenda Lee Sibley, 5%; Linda E. Sibley, 8%; Charles R. Sibley, 10%; and Stephenie J. Sibley, 16%.

The record shows that the trial judge considered the testimony of Dr. George Randolph Rice, a professor of economics at L.S.U., in arriving at the amount to be awarded for this element of damages.

It is, of course, elementary that expert economic testimony is only a guide to courts in fixing awards for loss of support. It is also basic that trial judges have a wide range of discretion in fixing damages and that their awards should not be disturbed on appeal in the absence of abuse of their much discretion. Reck v. Stevens, supra.

Considering the foregoing, we find that, whatever approach was used in fixing the award for loss of support of which appellants complain, or whatever deductions the trial judge considered should not be made from the mathematically imprecise figure fairly reached by him, the award finally arrived at under the circumstances of this case is within the bounds of the discretion accorded the trial judge. Barr v. State, Through Louisiana Department of Highways, 355 So.2d 52 (La.App. 2 Cir. 1978), writs denied, 355 So.2d 1324 (La.1978); Aymond v. State, Department of Highways, 333 So.2d 383 (La.App. 3 Cir. 1976), writ denied, 337 So.2d 875 (La.1976).

The Department also contends that the award against it should be reduced inasmuch as plaintiffs’ compromise with the co-defendant, Southwestern Insurance Company, deprived the Department of its right to contribution from the co-defendant.

When a plaintiff releases one of two joint tortfeasors, the unreleased joint tortfeasor is effectively deprived of the right of contribution. Recognizing this, the Court in Harvey v. Travelers Insurance Company, 163 So.2d 916 (La.App. 3 Cir. 1964), decreed that the plaintiff in such a situation is only entitled to recover one-half of his damages from the unreleased tortfeasor. See also Austin v. Otis Elevator Company, 336 So.2d 914 (La.App. 4 Cir. 1976); Cunningham v. Hardware Mutual Casualty Company, 228 So.2d 700 (La.App. 1 Cir. 1969).

For the reasons assigned, the judgment appealed is amended to reduce each award by one-half.

As thus amended, and in all other respects, the judgment is affirmed; costs of this appeal in the amount of $3,259.37 is to be paid by the defendant-appellant, State.

AMENDED AND AFFIRMED.

      . Other parties were joined as defendants in the original or supplemental pleadings but are no longer in the case.

      . Also see Sinitiere v. Lavergne, consolidated with Lavergne v. State of Louisiana, Through the Department of Transportation and Development, 391 So.2d 821 (La.1980), decided by our Supreme Court on November 10, 1980.


source: Caselaw Access Project

author: COVINGTON, Judge. COVINGTON, Judge.

license: Public Domain

text:
    CHALMETTE GENERAL HOSPITAL, INC. v. William A. CHERRY et al.
    No. 13824.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.
    On Rehearing March 16, 1981.
    Writ Denied May 1, 1981.
    Jonathan C. Harris, Baton Rouge, for plaintiff-appellant Chalmette General Hospital, Inc.
    Steven R. Giglio, Baton Rouge, for defendants-appellees William A. Cherry and Dept, of Health & Human Resources.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   COVINGTON, Judge.

Chalmette General Hospital, Inc., plaintiff, has appealed the judgment of the District Court in favor of the defendants, William A. Cherry and The Department of Health and Human Resources, which maintained their preemptory exceptions of res judicata, estoppel by judgment and no right of action. 'The judgment also assessed the plaintiff with Cherry’s attorney’s fees in the amount of $500, and ordered the plaintiff to post a cost bond. Defendants answered the appeal, seeking an increase in the attorney’s fees.

The plaintiff brought this action seeking an alternative writ of mandamus ordering William A. Cherry, Secretary of the Department of Health and Human Resources, to hold a hearing on a certificate of need issued to the St. Bernard General Hospital, Inc., a competitor hospital. The plaintiff’s action was met by peremptory exceptions, including that of res judicata. The record shows that the parties to the instant suit were parties in a prior action in which the plaintiff sought, by way of reconvention, mandamus and injunctive relief, entitled “St. Bernard General Hospital, Inc. versus Chalmette General Hospital, Inc., et al.”, No. 213,991 on the docket of the Nineteenth Judicial District Court, Parish of East Baton Rouge, Louisiana, before the Honorable Lewis S. Doherty, III, Judge. The Department was specifically named as a party defendant in Chalmette’s reconventional demand. The same factual claims and same issues were raised in both actions. In the first action, Judge Doherty ruled:

“The Court has found no statute or Louisiana case, and none has been cited to it, in which a business competitor was held to have a right of action to mandamus or enjoin a state agency relative to a certificate of need issued to another entity.”

In view of this ruling by Judge Doherty, the trial court in the instant action said:

“The Court is of the opinion that the defendant has correctly stated that the action herein has already been judicially decided in Judge Doherty’s case.”

We agree.

Matters actually litigated and finally adjudged are presumed to be correct; they ought not be contradicted in subsequent lawsuits. It is evident from the judgment in the first action that the matter in the instant action has already been adjudged because the three identities, i. e., identity of parties, identity of cause and identity of the thing demanded, are present. When these three identities are present, Article 2286 of the Civil Code controls. See Dixon, Booksh & Zimmering, Res Judicata in Louisiana Since Hope v. Madison, 51 Tul.L.Rev. 611 (1977).

A case in point is Bowers v. Jones-Journet, 316 So.2d 18 (La.App. 4 Cir. 1975). The holding in Bowers v. Jones-Journet was predicated upon the essential elements of res judicata as stated in LSA-C.C. art. 2286. In Bowers, the Court upheld res judicata finding that “both judgments were obtained on the basis of the same suit between the same parties, the identical unamended pleadings, without any additional action in the suit between judgments, and upon the same evidence.” That would be the effect of this second action by Chalmette Hospital against the Department and its Secretary. By styling this action “Petition for Mandamus or, Alternatively, Judicial Review”, instead of calling it a suit for injunctive relief and mandamus, does not alter the fact that the three identities are present. Where the issue has already been judicially determined, a party can not be permitted to manipulate court proceedings to his own convenience in order to foist two separate trials of identical issues upon the courts.

A comparison of suit number 213,991 in Judge Doherty’s court with suit number 230,977 in Judge Alford’s court reveals positively that the criteria of res judicata have been met.

In view of our sustaining the exception of res judicata, it is not necessary that we consider the other peremptory exceptions ruled upon by the court below. The plaintiff’s action is dismissed.

We next consider the appellees’ request for an increase in attorney’s fees. In answering this appeal, defendants request an increase in those fees to $1,000.00 as compensation for the effort in prosecuting this appeal. Such an increase in attorney’s fees for services rendered on appeal is usually awarded when the party appealing obtains no relief on appeal and the other party requests it in accordance with proper appellate procedure. The basis for the award is that the litigant who was successful at the trial level has had to incur additional expenses, which would not otherwise be necessary, in order to protect his rights. See Mid-State Homes, Inc. v. Lertrge (Lartigue), 367 So.2d 1230 (La.App. 3 Cir. 1979); Horn v. Vancouver Plywood Company, 322 So.2d 816 (La.App. 3 Cir. 1975).

Therefore, we increase the attorney’s fees from $500.00 to $1,000.00 and amend the judgment in this respect. As amended, the judgment is affirmed at appellant’s cost.

AMENDED AND AFFIRMED.

ON REHEARING.

COVINGTON, Judge.

In our original decision, we affirmed the trial court’s judgment sustaining the defendants’ exception of res judicata and amended the judgment so as to increase the attorney’s fees awarded from $500.00 to $1,000.00. We now conclude that we were in error in sustaining the exception of res judicata and in awarding attorney’s fees.

The plaintiff, Chalmette General Hospital, Inc., brought this action seeking an alternative writ of mandamus ordering William A. Cherry, Secretary of the Department of Health and Human Resources, and his successors in office “file, process and entertain the petition of Chalmette General Hospital, Inc., for declaratory relief tendered to the Department of Health and Human Resources through the Honorable William A. Cherry on October 31,1979, and otherwise promptly proceed to hear and dispose of said petition according to the Administrative Procedures Act contained at La.R.S. 49:962 and 951 et seq.,” or show cause to the contrary; and, alternatively, for judicial review.

The Department and Secretary Cherry filed answer in the nature of a general denial, and also pleaded estoppel by judgment and denied the applicability of La.R.S. 49:962. The defendants also filed a peremptory exception on the following grounds: res judicata, failure to join an indispensable party, and no cause or right of action.

As previously mentioned, the trial court maintained the defendants’ exception of res judicata, estoppel by judgment and no right of action.

A plea of res judicata will lie only when there has been a final judgment indicative of the intention of the Court which rendered the judgment to dispose of the same issue which is before the Court which considers the plea of res judicata. Wiewiarawska v. State, Administrator for the Division of Employment Security, 186 So.2d 680 (La.App. 4 Cir. 1966), writ refused, 249 La. 705, 190 So.2d 230 (1966). In the suit before Judge Doherty no final judgment was signed. Neither the judgment of non-suit nor the written reasons constitute a final judgment. See Fisher v. Rollins, 231 La. 252, 91 So.2d 28 (1956); Bordelon v. Dauzat, 389 So.2d 820 (La.App. 3 Cir. 1980). Hence, we now find that the trial judge erred in finding that the action herein had “already been judicially decided in Judge Doherty’s case,” since there was no final judgment in that ease. LSA-C.C.P. art. 1673. The plea of res judicata is overruled.

In addition to the foregoing exceptions, the defendant filed an exception of failure to join an indispensable party. Code of Civil Procedure Article 641 defines indispensable party and provides that no adjudication of an action can be made unless all indispensable parties are joined therein. This action questioning the validity of the certificate of need granted to St. Bernard would so directly affect the rights of St. Bernard and St. Bernard’s interests in the subject matter of this action are so interrelated that St. Bernard is an indispensable party. St. Bernard must be joined for a full and proper adjudication of this matter. Saucier v. Hayes Dairy Products, Inc., 373 So.2d 102 (La.1979); Dambre v. Fair, 376 So.2d 626 (La.App. 4 Cir. 1979). We remand these proceedings to the trial court to require St. Bernard General Hospital, Inc. be joined as an indispensable party.

In view of our remand, we pretermit consideration of the action of the trial court relative to the other exceptions.

For the reasons assigned, our original decision is recalled and set aside. The judgment of the trial court is now reversed and the case is remanded for further proceedings consistent with this opinion.

Costs and determination of attorney’s fees, if any, shall await final disposition of the suit.

REVERSED AND REMANDED.


author: WATKINS, Judge.

text:
    Tom COLLINS v. The PARISH OF EAST BATON ROUGE et al.
    No. 13350.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 5, 1981.
    J. Arthur Smith, III, Baton Rouge, for plaintiff-appellee Tom Collins.
    Joseph F. Keogh, Parish Atty., Charles M. Raymond, Asst. Parish Atty., Warren D. Ponder, Baton Rouge, for defendants-appellants Parish of East Baton Rouge, et al.
    Before EDWARDS, LEAR and WATKINS, JJ.
   WATKINS, Judge.

This is an action for damages for personal injury to plaintiff, Tom Collins, brought against the Parish of East Baton Rouge, the City of Baton Rouge, and the State of Louisiana through the Department of Transportation and Development. The trial court first gave oral reasons for judgment at the conclusion of the trial dismissing plaintiff’s suit. Before written judgment was signed, the trial court upon reconsideration decided the case in plaintiff’s favor, awarding plaintiff $2,181.40, and assigning written reasons for judgment. Only the Parish of East Baton Rouge was cast in judgment, and the Parish has appealed. We affirm.

The injury sued upon resulted when plaintiff Collins’ pickup truck fell into a cave-in of the roadway approximately three feet in diameter on a street maintained by the Parish of East Baton Rouge. Plaintiff sustained injuries to his shoulder and wrist.

On December 31, 1977, Tom Collins, with two passengers, Isaac Thomas and Betty Williams, was proceeding westerly on Oriole Street in Scotlandville in the pickup truck, preparing to turn onto Southern Avenue. As they were approaching the area of the turn, suddenly and without warning the street caved in, the cave-in causing the front of the truck to fall into the hole to a depth sufficient to render the truck immobile. The door on the passenger side was flung open, causing Betty Williams to fall to the ground. Although the present suit does not involve injury to Betty Williams, the facts that the door was flung open and she was thrown to the ground indicate the force in the descent and the obvious depth of the cave-in.

A sewer line ran beneath Oriole Street at a depth of approximately eighteen feet. Also under the street was a storm drain. Larry C. White, an employee of the sheriff’s office, who was on uniform patrol when the accident occurred, testified that the same street had caved in before, on how many occasions he was uncertain but at least once, and that barriers and lanterns had been put up to divert traffic from the hole on those earlier occasions. The earlier cave-ins had been in the same area, within three of four feet of the cave-in that resulted in the accident. Clearly, therefore, there was notice to the Parish of the propensity of the area in question to cave in, and the Parish was negligent in failing to keep the barriers and lanterns in place or in taking satisfactory protective measures of a more permanent nature. The Parish was clearly negligent in reopening the street without taking whatever steps were necessary to prevent the occurrence of another cave-in. As the Parish was negligent, and as the accident would not have occurred but for the negligence of the Parish, the Parish is clearly liable in damages under LSA-C.C. art. 2315.

Liability on the part of the Parish exists for the further reason that the street was in the custody of the Parish, and that the accident resulted from a vice or defect of that street. See LSA-C.C art. 2317, Loescher v. Parr, 324 So.2d 441 (La.1976). The doctrine of Loescher, which holds the custodian of an immovable liable in damages for injury caused by its vice or defect, even in the absence of proof of negligence, subject to certain defenses not here pertinent, was applied to public bodies in the recent decision of the state’s Supreme Court in Jones v. City of Baton Rouge, 388 So.2d 737 (La.1980). As liability without negligence exists on the part of public bodies without proof of negligence, with regard to injuries caused by immovables within their custody, subject to those defenses alluded to above not here pertinent, and as Oriole Street was in the Parish’s custody, the Parish would be liable without proof of negligence.

However, here, as we have seen, negligence has been proved.

Damages were awarded for medical expenses, weakness of the wrist, and pain in the area of the wrist, shoulder and elbow. We have reviewed the record carefully and do not find that the trial court’s determination of quantum of damages constituted an abuse of that court’s discretion.

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

AFFIRMED.

LEAR, J., dissents and assigns reasons given in Stablier v. City of Baton Rouge, La.App., 393 So.2d 148.


author: LOTTINGER, Judge. PONDER, Judge,

text:
    Lawsom GAYLE v. COMMERCIAL UNION ASSURANCE COMPANY.
    No. 13852.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1981.
    Writ Denied June 5, 1981.
    Patrick W. Pendley, Plaquemine, for plaintiff-appellant Lawson Gayle.
    John Engelsman, Baker, for defendant-appellee James Cox.
    Before LOTTINGER, EDWARDS, PONDER, LEAR and WATKINS, JJ.
   LOTTINGER, Judge.

This concursus proceeding presents an issue which has not been addressed in Louisiana jurisprudence: If fire destroys a building which is leased by a lessee with an option to purchase and if the option to purchase is not exercised before the fire, who, between the lessor and lessee, is entitled to the fire insurance proceeds?

James P. Cox and L. J. Harding leased a certain tract of land with a building thereon from Lawson Gayle on June 8, 1976. The “Act of Lease and Agreement to Purchase” contained a provision giving the lessees an option to purchase the property for $40,000.00 at any time during the existence of the lease in consideration of the payment of $1,000.00 within six months after the lease term began. The agreement further provided that the lessee “shall keep up the existing fire insurance policy on the leases [sic] premises.”

Another clause in the agreement provided:

“In case said premises, or any hallway and/or staircase and/or any other means of ingress or egress to and from said premises shall be destroyed or damaged by fire or other unavoidable casualties, so that the said premises shall be unfit or unavailable for the said use by the lessee, then and in any such case, the rent here-inabove reserved, or a just proportionate part thereof, according to the nature and extent of the damage to said premises, shall cease until the said premises shall have been put by the lessor in proper condition for said use, and upon the lessor’s failure to do so within ninety (90) days, the lessee may at his option treat this lease as terminated, and may there upon vacate said premises at once and without notice.”

Cox took out a $12,000.00 fire insurance policy on the premises as required under the lease, naming Gayle as the loss payee under the policy. Cox and Harding also paid the $1,000.00 which gave them the option to purchase the property during the term of the lease. (Harding is not a party to this concursus and makes no claim to the insurance proceeds.) On May 6, 1978, fire destroyed a building on the premises. On July 19, 1978, Cox notified Gayle that he was exercising the option to purchase the property. However, because of a previous disagreement between the parties, Gayle responded to Cox’s exercise of the option by asking for twice the amount of the $40,-000.00 agreed upon in the lease-purchase agreement. Gayle also stated that he wanted the proceeds from the fire insurance policy. Cox sent a second notice of intent to execute the option on March 5, 1979, and Gayle finally accepted. Cox paid $20,000.00 for his half of the property and Harding paid $20,000.00 for his half.

Cox testified that the day after the fire, Gayle promised to rebuild the building as much as the $12,000.00 insurance proceeds would allow. Cox admitted that he was aware of the lease provision allowing him to vacate the premises in the event the building was destroyed and not repaired, but testified that he could not leave the premises because of the nature of his business, which was the storage of junk cars and repair of some others.

Gayle testified that he did not remember discussing anything about the fire and the use of the insurance proceeds to rebuild the building.

Gayle’s claim to the proceeds is based on his ownership of the building at the time of the fire and his designation as the loss payee on the policy insuring the building. Cox, on the other hand, contends that as the named insured under the policy and as present owner of the property with the damaged building he is entitled to the proceeds. Allowing Gayle to collect the insurance money would be tantamount to allowing Gayle to collect twice for the property, Cox alleges.

The trial court rendered judgment in favor of Cox, allowing him to collect the full amount of the insurance proceeds. “From a practical standpoint, Cox had no choice but to remain as lessee after the fire and purchase the property. Furthermore, when Cox purchased the property he paid the full amount that had been stipulated at the beginning of the lease agreement with no allowance for the damage done to the building. Gayle has lost nothing because he was compensated for the loss when he received full value for the property and the subsequent sale,” the trial judge stated. Gayle was not entitled to the insurance proceeds as a result of being the loss payee under the policy because the purpose of the loss payable clause “is to protect property rights on one who is not the named insured, usually a mortgagee with a security interest,” according to the trial court’s written reasons. The trial court analogized this case to the case of Bankston v. Commercial Credit Corp., 86 So.2d 245 (La.App. 1st Cir. 1956). The court in Bankston held that a mortgagee of an automobile who was also the loss payee under the automobile insurance policy could not collect the insurance proceeds on the damaged vehicle after receiving the full amount of the debt at a sheriff’s sale. The trial judge in the case at bar found that Gayle’s interest was similar to the interest of the mortgagee-loss payee in Bank-ston and found that, “Gayle’s interest has been satisfied. His loss was compensated by full payment in the sale to Cox.”

As mentioned at the outset of this opinion the issue presented in this case is apparently res nova. We have been unable to find a Louisiana case addressing this question and the parties have cited none to us. The issue, however, has been addressed in a number of other jurisdictions. The great weight of authority in the other jurisdictions is that when an option is not exercised until after the premises are damaged, the insurance proceeds belong to the lessor. Edwards v. West, 38 L.T.R. (n.s.) 481, 7 Ch.D. 858 (1878); Gilbert & Ives v. Port, 28 Ohio St. 276 (1876); Strong v. Moore, 105 Or. 12, 207 P. 179 (1922); Caldwell v. Frazier, 65 Kan. 24, 68 P. 1076 (1902); Trumbull v. Bombard, 171 App.Div. 700, 157 N.Y.S. 794 (1916); Gamble v. Garlock, 116 Minn. 59, 133 N.W. 175 (1911). The underlying reasoning of these cases is that a person who has only an option to purchase property but who has not exercised the option has no interest in the property, or in the insurance which insures the property absent a specific clause in an agreement between the parties.

Cases which have allowed the lessee to collect the insurance proceeds have found that the lessee implicitly exercised the option to purchase prior to the damage, Dolan v. Spencer, 92 Colo. 389, 21 P.2d 411 (1933); or that the nature of the contract between the parties required that the lessee who had not exercised the option nonetheless get the proceeds of the insurance policy, Williams v. Lilley, 67 Conn. 50, 34 A. 765 (1895); or that the parties had agreed that the insurance money was to be applied to reinstate the premises, Reynard v. Arnold, 10 L.Rep.Ch. 386 (1875); or that when the rent being paid by the lessee was being applied towards the purchase price and the rent paid had almost equalled the entire purchase price, the lessee was entitled to the insurance proceeds regardless of whether he had exercised the option prior to the fire damage, Nelson Properties, Inc. v. Denham, 123 Fla. 382, 167 So. 35 (1936).

The Iowa Supreme Court has used the theory of unjust enrichment to allow the person holding the unexercised option to collect the insurance proceeds when he exercises the option after damage is done. Gard v. Razanskas, 248 Iowa 1333, 85 N.W.2d 612 (1957).

In the ease at bar the relationship between the parties was that of lessor/lessee at the time the fire occurred. The contract of lease clearly provided that in the event the lessor failed to repair the premises within a certain time the lessee had the •option to terminate the lease and to vacate the premises without notice. Gayle was the owner/lessor at the time the damage occurred. If Cox had not exercised his option to purchase, there would be no question that Gayle would be entitled to the insurance proceeds since he suffered the loss as owner of the building. We do not see how the result can be different because Cox chose to exercise his option after the fire.

We certainly see how some equities fall on Cox’s side of the case. He is now owner of a piece of property for which he paid $20,000.00 but which is probably worth about $12,000.00 less than that amount. Cox, however, was under no obligation to exercise the option to purchase. His remedy under the agreement was to vacate the premises. While this may have been particularly difficult to do in light of the nature of Cox’s junk car business, it was nonetheless the remedy agreed upon by the parties in an arms-length transaction to which Cox consented. Our result might be different had Cox exercised the option prior to the fire, but this question is not before us.

We hold, therefore, that a party who exercises an option to purchase after the premises have been damaged by a cause resulting from the fault of neither of the parties is not entitled to the insurance proceeds absent a specific agreement to the contrary.

Therefore, for the above and foregoing reasons, the decision of the trial court is reversed, and the insurance proceeds are awarded to Lawson Gayle. The appellee, James P. Cox, is to pay all costs in the trial court as well as in this court.

REVERSED AND RENDERED.

PONDER, J., dissents and assigns reasons.

LEAR, J., dissents and joins in reasons by PONDER, J.

PONDER, Judge,

dissenting.

I dissent.

Everyone agrees that there is no Louisiana jurisprudence controlling in this case. I therefore feel free to follow jurisprudence from other states, minority view though it may be, that avoids the extremely inequitable result following the majority opinion, which allows the plaintiff to realize a total of $32,000.00 for property on which he agreed to take $20,000.00. Appellee has to pay $20,000.00 for property minus a building insured for $12,000.00 on a policy obtained and paid for by appellee with the appellee as named insured and with appellant named as mortgagee. Even conceding that Gayle was the title owner of the property at the time of the fire and that theoretically at least appellee could elect not to exercise the option, nevertheless I believe that all parties knew that appellee would exercise the option because of improvements made by appellee and his partner and because appellant had placed a large number of wrecked automobiles on the property.

Because of the special circumstances of the case, I dissent from an extraordinarily inequitable result.

      . This proceeding commenced as a suit to recover insurance proceeds. The insurance corn-pany answered the petition and converted the suit into a concursus proceeding.


author: EDWARDS, Judge.

text:
    Patsy PAYNE v. Thomas M. LOCKWOOD, Administrator of Office of Employment Security and the Parish of East Baton Rouge, Recreation and Park Commission.
    No. 14056.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1981.
    Writ Denied June 5,1981.
    Kenneth R. Williams, Baker, for plaintiff-appellant Patsy Payne.
    Willie D. Maynor, Baton Rouge, for defendant-appellee Thomas M. Lockwood, Administrator of Office of Employment Sec.
    Leu Anne Lester Greco, Baton Rouge, for defendant-appellee Parish of East Baton Rouge, Recreation and Park Commission.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

Patsy Payne appeals a trial court judgment upholding a decision of the Board of Review of the Office of Employment Security denying her unemployment compensation benefits on the ground that she was terminated from her job for misconduct.

Appellant’s numerous specifications of error may be consolidated into two: 1) that since the Board of Review was not the trier of fact at plaintiff’s original hearing and did not see the witnesses or hear the testimony, the district court placed undue weight on the Board of Review’s findings, and 2) that the evidence adduced at the original hearing does not support the Board of Review’s findings of fact.

Clearly, under LSA-R.S. 23:163o, the Board of Review had the authority to review the record and arrive at a decision on its own.

In reviewing the facts of this case, we are limited by LSA-R.S. 23:1634 to a determination of whether the findings of fact are supported by sufficient evidence and free of fraud.

A careful review of the record discloses that substantial evidence, though not un-controverted, supports the Board’s findings of fact. Witnesses testified that Patsy Payne had, without permission and on more than one occasion, left her job for long periods of time and that she was at least partially at fault in a physical altercation with a fellow employee. We find that the Board of Review’s conclusions were based upon sufficient facts to be conclusive as a matter of law.

For the foregoing reasons, the trial court judgment is affirmed. No costs are to be assessed. LSA-R.S. 23:1548, 1692.

AFFIRMED.

      . R.S. 23:1630 provides:
      “The board of review may on its own motion, within fifteen days after the date of notification or of mailing of a decision of an appeal tribunal, initiate a review of such decision or allow an appeal to be filed by any party entitled to notice of such decision. An appeal filed by any such party shall be allowed as of right if such decision was not unanimous, or, if the determination was not affirmed by the appeal tribunal. Upon review on its own motion or upon appeal, the board of review may, on the basis of the evidence previously submitted in such case, or upon the basis of such additional evidence as it may direct be taken, affirm, modify or reverse the ñndings and conclusions of the appeal tribunal. The board of review may remove to . itself or transfer to another appeal tribunal the proceedings on any claims pending before an appeal tribunal. Any proceedings so removed to the board of review prior to the completion of a fair hearing shall be heard by the board of review in accordance with the requirements of this Subsection with respect to proceedings before an appeal tribunal. The board of review shall make a determination and notify all parties of its decision, including its findings and conclusions in support thereof, within sixty days from the date an appeal is received or initiated by the board. Should the board of review, within sixty days from the date an appeal is received or initiated, direct that additional evidence be taken, the board of review shall make a determination and notify all parties of its decision, including its findings and conclusions in support thereof, within sixty days from the date it receives the additional evidence: Such decision shall be final unless within fifteen days after the mailing of notice thereof to the party’s last known address, or in the absence of such mailing, within fifteen days after the delivery of such notice, a proceeding for judicial review is initiated pursuant to R.S. 23:1634. Provided, that upon denial by the board of review of an application for appeal from the decision of an appeal tribunal, the decision of the appeal tribunal shall be deemed to be a decision of the board of review within the meaning of this Section for purposes of judicial review and shall be subject to judicial review within the time and in the manner provided for with respect to decision of the board of review, except that the time for initiating such review shall run from the date of notice of the order of the board of review denying the application for appeal.” (emphasis supplied)


author: STOKER, Judge.

text:
    Robert M. BREITHAUPT, Jr., Plaintiff-Appellant, v. HOUSTON GENERAL INSURANCE COMPANY, Defendant-Appellee.
    No. 7215.
    Court of Appeal of Louisiana, Third Circuit.
    March 12, 1981.

      William Henry Sanders, and Norris Dale Jackson, Jena, for plaintiff-appellant.
    Martzell & Montero, Wilson M. Montero, Jr., New Orleans, Gist, Methvin, Hughes & Munsterman, H. B. Gist, Jr., Alexandria, Gold, Little, Simon, Weems & Bruser, Charles S. Weems, III and Herbert Mang, Jr., Alexandria, for defendant-appellee.

      Before DOMENGEAUX, STOKER and DOUCET, JJ.
   STOKER, Judge.

This appeal presents the question of the appropriateness of granting a motion for a directed verdict in a jury trial.

Plaintiff Robert M. Breithaupt, Jr., alleges he was shot in his upper thigh while deer hunting and thereby sustained personal injuries. The petition in this suit alleges that Robert “Luke” Sellers did the shooting. In this particular suit the defendant is Houston General Insurance Company (Houston General). Plaintiff alleges that Sellers was acting in the course and scope of his employment with Golden Age Nursing Home at the time of the shooting. Houston General was the liability insurer of Golden Age Nursing Home (Golden Age). Separate suits were filed against Sellers and Golden Age. The cases were tried in a consolidated trial.

At the conclusion of the plaintiff’s case in chief the trial court granted a directed verdict against the plaintiff in favor of Houston General Insurance Company. Plaintiff appeals from this ruling.

The suit against Sellers was previously before this court on a similar issue, that is, whether the trial court erred in granting a directed verdict in favor of Sellers. In the appeal in the Sellers’ case, we affirmed the trial court’s judgment granting Sellers a directed verdict. 380 So.2d 1257 (La.App.). The Louisiana Supreme Court reversed and remanded the case to the trial court for a new trial. Breithaupt v. Sellers, 390 So.2d 870 (La.1980). The present appeal in the case against Houston General Insurance Company has never been acted upon, and the issues in that appeal we now decide.

The essence of the claim of plaintiff against Houston General Insurance Company is that Sellers, not only negligently shot plaintiff, but that Sellers was in the course and scope of his employment with Golden Age Nursing Home at the time of the alleged shooting. Under the circumstances plaintiff urges that Golden Age is liable to him under the principle of respondeat superior. As the liability insurer of Golden Age, Houston General would be liable to the plaintiff if (1) Sellers is found liable and (2) if Sellers is found to have been acting within the course and scope of his employment at the time of the negligent shooting.

Inasmuch as the Louisiana Supreme Court has decided that the case against Sellers must be remanded for a new trial, there is only one basis on which the directed verdict granted in favor of Houston General Insurance Company may now be found valid. That basis would be a finding that even if it is found that Sellers did shoot Breithaupt and was liable in damages to him, Sellers was not in fact acting in the course and scope of his employment at the time of the alleged tort.

The standard of proof by which a trial judge must decide whether or not to grant a motion for a directed verdict has been judicially formulated because the legislature did not provide a standard. Breithaupt v. Sellers, supra. Stated briefly, the judicially formulated standard is: Viewing all the evidence in a light most favorable to the plaintiff, could reasonable persons arrive at a contrary verdict, that is, could they reach a verdict other than one in favor of the defendant. In order to apply that standard our first step is to determine from the transcript of the record of the consolidated trial what were the facts on the point at issue viewed in a light most favorable to the plaintiff.

Before determining the facts most favorable to plaintiff-appellant it is necessary to understand plaintiff-appellant’s asserted basis for liability of Golden Age, the insured of Houston General. To begin with plaintiff set forth the asserted basis at some length in a supplemental and amending petition filed December 5, 1978, which we include as Appendix I. In essence the claim of plaintiff is that Sellers was performing duties in furtherance of the nursing home’s business by entertaining one Nere Ourso at a deer hunt when he allegedly shot plaintiff. More specifically plaintiff speculated, and sought to have the jury speculate, that Sellers sought through deer hunting with Ourso to persuadé Ourso’s wife to return to the nursing home as an employee where she had formerly been employed.

PROCEDURAL CONSIDERATIONS

Before proceeding to the merits of this case certain procedural matters must be addressed. Although the briefs and oral argument of counsel have not pinpointed the precise issues of a procedural nature before us in this appeal, we think we perceive the general nature of those issues. To approach them it is necessary that we first burden this opinion with a rather extensive chronicle of certain procedural events. We will begin at the point where plaintiff-appellant concluded his case in chief in the trial before the jury.

At the conclusion of plaintiff’s case on March 23, 1979, the trial court granted a motion for a directed verdict in favor of Robert “Luke” Sellers. The trial court was of the opinion that a motion for directed verdict on behalf of Houston General was therefore moot and did not then rule on Houston General’s motion. The jury was discharged at this point. On March 26, 1979, the trial court granted Houston General’s motion and the following minute entry was entered in the trial court’s records:

“After reviewing testimony on the issue of scope of employment, the motion for directed verdict made by counsel for Houston General Insurance Company was granted.”

The trial court signed a consolidated judgment on April 4, 1979, which dismissed both Sellers and Houston General. This judgment recited that the judgment had been rendered in open court on March 23, 1977. This judgment was presented to the trial judge by counsel for plaintiff-appellant. Tr. 253, Vol. I, Record # 7215.

On the same day, April 4, 1979, plaintiff-appellant obtained an order of appeal. Tr. 255, Vol. I, Record # 7215. A new order of appeal was obtained on May 21, 1979, to correct clerical errors in the April 4, 1979, order of appeal. Tr. 256, Vol. I, Record # 7215.

On May 3, 1979, a second consolidated judgment was signed (apparently at the instance of Houston General) which is couched in the same language as that of the judgment of April 4, 1979, except that it refers to Houston General only. Tr. 254, Vol. I, # 7215. It grants (as did the April 4,1979, judgment) the motion for a directed verdict filed by Houston General and dismisses plaintiff-appellant’s demands against Houston General. In its brief Houston General explains that neither it nor its counsel was ever served with a copy of the judgment of April 4, 1979; for that reason the judgment of May 3, 1979, was prepared and submitted by Houston General.

On May 8, 1979, plaintiff-appellant filed an application for new trial as to the judgment signed on May 3, 1979, “limited to only the question of lack of jurisdiction”. No action was taken on this application for a new trial at that time. Tr. 252, Vol. I, Record # 7215.

The appeal in this case was lodged in this court on May 25, 1979.

Subsequently, Houston General noted that its judgment of May 3, 1979, (which tracked the language of the judgment of April 4, 1979,) was in error in reciting that the judgment in its favor was rendered on March 23, 1979. It was rendered on March 26, 1979. To correct this clerical error Houston General presented a motion and order to the trial court on November 26, 1979, seeking an amendment of the judgment of May 3, 1979. A consolidated judgment reflecting the requested amendment was signed by the trial judge on November 30,1979. Tr. 2 and 4, Supplemental Record Volume in appeal # 7215.

On November 30, 1979, Houston General requested a fixing of a hearing on plaintiff-appellant’s application for new trial and notice was given on December 5, 1979, of a hearing to be held on December 21, 1979. A minute entry for December 21, 1979, shows that the motion for new trial was denied on December 21,1979, on the authority of Cowen v. Cowen, 375 So.2d 118 (La. App. 3rd Cir. 1979).

On December 18, 1979, plaintiff-appellant appealed in both suits (our numbers 7214 and 7215) from the judgment “rendered” on March 26, 1979, and “signed” on November 30, 1979. The appeal was granted December 18, 1979. On December 21, 1979, plaintiff-appellant filed another appeal in both cases, the latter appeal being from the judgment signed on May 3, 1979.

We are at some loss to determine precisely what significance this procedural history plays in this appeal. In plaintiff-appellant’s motion for new trial filed May 8, 1979, he alleges that the trial court lacked jurisdiction to sign the judgment of May 3,1979, to correct the error as to the date of rendition. In the appeals taken December 18 and 21, 1979, plaintiff-appellant alleges that the correction of the clerical error obtained by Houston General was unauthorized by LSA-C.C.P. art. 1951 because it resulted in a change in substance.

We conclude that the procedural tangle reviewed above presents no problems and the appeal with reference to Houston General is properly before us. If plaintiff-appellant’s application for a new trial (filed May 8,1979) is viewed as being in substance a true application for new trial, it would raise questions as to timeliness of filing and of waiver through the appeals of December 18 and 21. Since the hearing on the application for new trial was set for December 21, 1979, the granting of the appeal on that date brings into question the authority of the court to hear the application for new trial. The trial court in its minute entry denying the motion for new trial cited Cowen v. Cowen, supra. That case held that an appeal by a party who has filed an application for a new trial waives any right the party may have to a new trial in the trial court and the appeal divests the court of jurisdiction. It should be borne in mind that plaintiff-appellant originally appealed on April 4, 1979. It should also be noted that the appeals of December 18 and 21, 1979, were restricted to the validity of the amendment of the judgment of May 3, 1979.

While we have some doubt that the pleading filed on May 8, 1979, actually was a motion for a new trial, clearly its function was to challenge the jurisdiction of the trial court to amend the judgment of May 3, 1979. Courts may and should treat pleadings as what they are rather than what counsel label them. Broday v. Broday, 360 So.2d 645 (La.App. 3rd Cir. 1978); Cvitanovich v. Sorli, 347 So.2d 1204 (La.App. 1st Cir. 1977); Davis v. Southern Farm Bureau Casualty Ins. Co., 324 So.2d 468 (La.App. 3rd Cir. 1975) and Moore v. Shell Oil Company, 228 So.2d 205 (La.App. 3rd Cir. 1969), writ refused, 230 So.2d 587, 255 La. 278 (1970). The application for new trial filed May 8, 1979, reads as follows:

“APPLICATION FOR NEW TRIAL
“NOW INTO COURT THROUGH UNDERSIGNED COUNSEL comes Robert Milton Breithaupt, Jr. and with respect represents that:
1.
“Petitioner is entitled to and desirous of a Contradictory Hearing in this matter limited only to the Judgment signed in Jena, Louisiana on the 3rd day of May, 1979.
2.
“Petitioner respectively shows that this Court was without Jurisdiction to sign a Judgment in this matter as Jurisdiction of the trial court ended when the matter was appealed.
“WHEREFORE ROBERT MILTON BREITHAUPT, JR. PRAYS that a Hearing be had on this matter limited to only the question of lack of Jurisdiction and rehearing only as to the signing of the May 3, 1979 Judgment.”

Regardless- of how this pleading is classified, we think that plaintiff-appellant waived his rights to have the matter determined in the trial court. Apparently plaintiff-appellant never sought to have the motion set for a hearing. The hearing was set at the request of appellee Houston General. Tr. 6, Supplemental Record Volume in appeal # 7215. It was fixed by the court for hearing on December 21, 1979. When plaintiff-appellant filed his appeals on December 18 and 21, 1979, he manifested his desire that the question raised in the motion for new trial not be passed on by the trial court. Under the circumstances, no matter how the motion is classified from a procedural standpoint, we think the principle of Cowen v. Cowen, supra, applies and a waiver took place. If the trial court lacked authority to rule on the matter when it denied the new trial on December 21, 1979, it does not affect the result. It is our ruling that the rights of plaintiff-appellant to have the motion heard and ruled upon were waived or abandoned.

If we correctly understand plaintiff-appellant’s approach, he preferred to raise the matter of the trial court’s authority to amend on appeal rather than in the trial court. In pertinent part plaintiff-appellant alleged in the consolidated appeal filed on December 18, 1979, as follows:

“CONSOLIDATED CASES
“PETITION FOR APPEAL
“The petition of Robert Milton Breit-haupt, Jr., plaintiff in the above entitled and numbered cause respectively represents:
1.
“Petitioner desires to appeal devolu-tively from the final judgment rendered in the above cause on the 26th day of March 1979 and signed in Jena, Louisiana on the 30th day of November, 1979.
2.
“Petitioner shows that Article 1951 of the Louisiana Code of Civil Procedure provides for the amendment of a judgment by the trial court to alter the phraseology of the judgment, but not the substance; or to correct errors of calculation.
3.
“The defendant, Houston General Insurance Company, by motion filed in the record of this proceeding attempts to change the substance of the judgment rendered herein on March 23, 1979; and said judgment was signed on April 4, 1979; and is now scheduled for oral argument on January 9, 1980 under docket # 7214 and 7215, Court of Appeal, 3rd Circuit, State of Louisiana.”

The appeal filed on December 21, 1979, raises the same issue in abbreviated form.

In Goodwin v. Gulledge, 391 So.2d 883 (La.App. 3rd Cir. 1981) we recently considered the authority of a trial court to amend a final judgment at any time to correct typographical errors. A given case is to be tested under LSA-C.C.P. art. 1951. In Goodwin v. Gulledge, supra, we found that correcting the docket number erroneously set forth in the original judgment was not a matter of substantive change. Here the judgment as to Houston General was rendered on March 26, 1979, and not March 23, 1979. We deem the trial court to have had authority to amend the judgment in question to reflect the true date and that it did not change the substance of the judgment.

With respect to any argument that the trial court did not have jurisdiction to amend the judgment in question because plaintiff-appellant had already appealed on April 4, 1979, the answer is that the trial court retains jurisdiction to make such corrections. In Tangi Ready Mix Concrete v. Edwards, 356 So.2d 526 (La.App. 1st Cir. 1977) the Court of Appeal for the First Circuit stated:

“The jurisdiction of the Trial Court over a case on appeal is not divested for the purpose of correcting any misstatement, irregularity, informality, or omissions of the trial record. LSA-C.C.P. art 2088. This limited retention of jurisdiction by the Trial Court, however, does not affect the jurisdiction acquired by the appellate court by the perfecting of an appeal. As to this particular retention of jurisdiction by the Trial Court, it is concurrent with the appellate court. LSA-C.C.P. art. 2132.”

Other intriguing questions suggest themselves. For example the judgment of May 3,1979, is the same as the judgment signed on April 4, 1979, insofar as it affects Houston General. Both contained the error reciting that the judgment in favor of Houston General was rendered on March 23, 1979, rather than March 26, 1979. We do not consider the effect of a judgment reading substantially the same as a judgment which has already been signed. But see Cowen v. Cowen, supra. While the May 3, judgment was corrected on November 30, 1979, the judgment of April 4, 1979, was never corrected. Despite the procedural morass which exists we think that in the interest of justice and judicial economy we should consider that the appeal in this case is properly before us and that we should and have addressed all substantial procedural issues. Under the circumstances we proceed to a consideration of the merits of this appeal.

MERITS OF THE MOTION FOR DIRECTED VERDICT

On the merits of this case we must determine, by viewing all the evidence in a light most favorable to plaintiff, whether reasonable persons acting as a jury could reach a verdict contrary to defendant-appellee, Houston General Insurance Company.

Viewed in the light most favorable to plaintiff-appellant, Robert M. Breithaupt, Jr. (Breithaupt) we find the facts to be as follows:

Plaintiff called Nere Ourso as a witness but directed questions to him solely concerning the facts of the hunt and events which occurred after he heard the shot which evidently wounded plaintiff Breit-haupt. No questions were asked concerning social relations between Ourso and Sellers or whether either was entertaining the other. Tr. 360-366 on redirect Tr. 374-377, 379-386. (All references to transcript pages and quotations which appear hereafter are contained in the record of transcript in our number 7214, Breithaupt v. Sellers.) In response to a question asked by Sellers’ counsel which was not related to the re-spondeat superior issue, Ourso stated that he had hunted with Sellers previously. Tr. 371. In summary no one asked Nere Ourso any questions bearing on the question involved in this appeal.

Mr. Aaron Joubert testified for plaintiff on the respondeat superior issue. He once owned and operated Golden Age Nursing Home, but had been unconnected with the nursing home for four years. He testified that as administrator he hired and fired employees, had to be on the job a minimum of twenty hours per week, was in charge of public relations, and supervised the nursing staff. Houston General objected on the ground of relevancy when Mr. Joubert was asked to state some of the things he did as administrator of the nursing home regarding public relations. The objection was sustained.

Plaintiff-appellant called Mr. Walter C. Fowler, one of the partners of Golden Age, and asked him if he heard Mr. Joubert’s testimony and if he agreed that the duties of the nursing home administrator listed by Mr. Joubert were substantially correct. Mr. Fowler agreed that they were. That was the only question Mr. Fowler was asked other than qualification and foundation questions.

On cross examination Robert “Luke” Sellers stated that as administrator of Golden Age he saw to the overall operation of the nursing home including hiring of the employees. In that capacity he did public relations work for the nursing home. He was on a salary and was on call at all hours of the day. He would use his personal vehicle if occasion called for it, but he was furnished a company car for company business. On a very limited basis he might occasionally use the company car for personal business, such as attending Kiwanis Club meetings. Largely it was up to Sellers to use his own judgment as to when to use the company car and when not to.

Sellers further testified that he had authority to hire the nursing staff, including the head nursing staff. The wife of Nere Ourso was a former employee of Golden Age. She was a good nurse, and in response to a question Sellers agreed that she would be “a potential employee”. Tr. 326. With reference to the deer hunt in question Mr. Ourso asked Sellers to go on the hunt. Tr. 326.

On direct examination, Tr. 340-341, Sellers testified he went on the deer hunt for his personal pleasure and recreation. Mr. Ourso called him and related that a Mr. Grayson proposed a hunt and Ourso suggested that he join him. Mr. Ourso was not working at the nursing home and was not doing any business with the nursing home. He had never done any business with the nursing home.

Sellers’ testimony concerning Mr. Ourso’s wife is recorded on pages 341 and 342 of the transcript:

Q Was his wife working there at that time?
A No, sir.
Q Why had she left?
A Dr. Sirikul had offered her more money, a job that didn’t pertain to as many hours that Mrs. Ourso had put in.
Q Were you trying to get her to come back to work?
A No, sir. She wouldn’t have come back anyway. She was making more money for Dr. Sirikul than she was at the nursing home.
Q What was the purpose of this hunting trip?
A It was just that Mr. Grayson had called Nere or they had talked and said that they knew that maybe we could kill a deer in that area, and Nere said why don’t we go out there and see if we can kill something.
Q Had you hunted with him before?
A Yes, sir.
Q Was the trip purely for your personal pleasure and recreation?
A It was.
MR. GIST: That’s all.
RECROSS EXAMINATION
BY MR. SANDERS:
Q When Mrs. Nere Ourso left, she left in good standing with the nursing home, did she not?
A She did.
Q And, I believe, there would be good tactics to have satisfied employees at the nursing home, wouldn’t it?
A That is true.
Q And at some places money is not the only criteria for people working. Have you had that experience? Or, is money the sole criteria?
A In this case, it was the money.
Q In this case it was the money. Is this always the case?
A No, sir. She worked less hours for more money.”

Counsel for plaintiff-appellant called James Hodge and attempted to qualify him as an expert witness. Tr. 456.

Mr. Hodge had done oil field work and was self-employed at the time he testified. He operated Poole’s Service and Salvage which was engaged in recycling automobile salvage. His business was located across the street from Golden Age Nursing Home and he had been in the home frequently. Houston General early made objection to the relevancy and materiality of Mr. Hodge’s testimony on the ground that he was not qualified to give any testimony concerning Golden Age or Sellers from personal knowledge.

It developed that plaintiff-appellant wished to elicit from Mr. Hodge, as an “expert”, his opinion as to “the different forms of entertainment that’s available to residents of LaSalle Parish.” Tr. 459 Upon objection considerable discussion took place concerning the relevance and materiality of such information. The court admonished counsel to proceed but to “move to the point in the case.” Counsel then asked the question:

“Q Mr. Hodge, please state to the Jury the areas of LaSalle Parish for business people to take their friends, business employees, and customers?” Tr. 460

Immediate objection to the question was lodged on the ground that the question, while relevant to what Golden Age might do in general, it was certainly not relevant to what Mr. Sellers was doing on the.day and on the occasion of the shooting. After some argument and discussion counsel for plaintiff-appellant agreed to rephrase his question and asked:

“Q Do you have an opinion as to whether or not people that are in business take their employees on hunting trips?” Tr. 462

Upon further objection which was sustained by the trial court, counsel for plaintiff-appellant asked that the jury be excluded from the courtroom. Out of the presence of the jury counsel made an offer of proof of the testimony of Mr. Hodge. The trial court never accepted Mr. Hodge as an expert in the field in which he was offered and continued to admonish counsel that Mr. Hodge must confine any testimony he gave to specific knowledge of matters pertaining to Golden Age and Mr. Sellers’ relationship to it. Houston General continued to maintain that the questions were inadmissible because they did not relate to what motivation Mr. Sellers had in engaging in the particular deer hunt in question. Ultimately the trial court sustained all objections to Mr. Hodge’s testimony. Prior to such ruling and before the witness could be instructed Hodge responded to the following question.

“Q All right sir. Do you have an opinion as to whether or not business people do indeed take their employees to such places that are available here in LaSalle Parish particularly do they take them hunting. Deer hunting you mentioned.
A Well, I do. And, on numerous occasions I’ve met other people while hunting.” Tr. 465

The questioning of Mr. Hodge and his testimony made it clear that he had no knowledge of policies governing the operation of Golden Age, and no attempt was even made to have him testify concerning any motivation or intentions relative to Mr. Sellers participating in the deer hunt with Nere Ourso. The sole purpose of his testimony was to establish that business establishments in LaSalle used deer hunting in LaSalle Parish as a means of good public relations. Considered in the light most favorable to plaintiff-appellant (and irrespective of whether Mr. Hodge is an expert in such matters) we can accept the testimony which Mr. Hodge gave over objection that business people in LaSalle Parish do use deer hunting for the business purposes mentioned. We note however that such a fact, which might well be assumed, goes no further than to establish general business practices in LaSalle Parish. None of Mr. Hodge’s testimony related such practices to Golden Age. Mr. Hodge did not testify that Mr. Sellers was deer hunting for any reason that would promote Golden Age’s business interests.

After plaintiff finished his case in chief the defendants moved for directed verdicts in their favor. Houston General based its motion on the ground that plaintiff had adduced no evidence to prove that Mr. Sellers, either at the time he went on the deer hunt or at the time of the shooting, was pursuing any purpose of or on behalf of Golden Age. Tr. 731-732. Argument on Houston General’s motion was extensive and is recorded at transcript pages 732 through 753. We will selectively quote at some length from the argument of counsel and responses of the trial court because the selective quotations aptly set forth what plaintiff-appellant relies upon to prove his case against Houston General, that is, to prove Sellers acted in the course and scope of his employment with Golden Age by participating in the deer hunt. The pertinent argument commencing on transcript page 733 is as follows:

“MR. SANDERS: .. . and it develops, that indeed, in this particular case, that Mrs. Nere Ourso, was a former employee, and an excellent employee, and, I think that the jury can — has now, a question of fact, as to whether or not Mr. Sellers, at that time was, uh, acting in the interest of good will in the interest of seeking better help for the nursing home. And, particularly, uh, Mrs. Ourso, as a type employee that he would be searching for, being that she was a good employee. A jury has heard this testimony, uh, they can now make a decision, the decision being, did they believe Mr. Sellers’ testimony when he was so testifying, did they believe Mr. Fowler . . .
“THE COURT: All right, all right. Now, that’s part of it. If they choose not to believe Mr. Sellers, where is there testimony to the effect this was a business venture, rather than a personal mission? I think that is what Mr. Gist is ...
“MR. SANDERS: ... the chance is
“THE COURT: ... raising by this, he’s suggesting that there is no evidence, to the effect that it was anything other than a personal mission.
“MR. SANDERS: If they believe— to — if the jury, believes, that Mr. Sellers, did not, or, did the shooting, if they believe that he did the shooting, if they believe he did the shooting, then at that point, they don’t believe Mr. Sellers. At that point, you have, you still have a question then, was Mr. Sellers engaged in developing good will, and public relations. If the jury doesn’t believe he was, if they don’t [believe] Mr. Sellers when he says that he did not do the shooting, they have the right to believe that Mr. Sellers was also lying in some of his other testimony. And, if he — if they believe that, then they must believe Mr. Fowler, Mr. Jou-bert, to say that this is a duty of the nursing home administrator, and if they do that, there is a question for them to decide whether or not he was in the course and scope of his employment.
“THE COURT: Well, on this issue, if you disregard everything, that Mr. Sellers said, I’m still raising a question, where do you get the evidentiary support for the proposition that it was [not] a personal mission. As I understand the testimony, and I’d have to look back over a transcript, I suppose, uh, I’m not sure whether this came out from Mr. Sellers or Mr. Ourso, to the effect that Sellers was in his own vehicle, and that the idea for the hunt originated with Ourso or at least Ourso called Sellers and said, let’s go hunting. And the two of them went out there, in other words, the invitation came from Ourso, not from Sellers. You could just cut all of Sellers’ testimony out of the record, and I think you would still come back to the situation, or, I’m looking, seeing if you can recall any specific testimony, that said that in the operation of this nursing home by Mr. Fowler and his partners, that they expected Mr. Sellers to do this particular type of entertainment. Or, that they paid for it, or sponsored it, or someway, uh, had him do it. Or, that he did it.
“MR. SANDERS: They give him the authority and the discretion, whether to do this type of entertainments. They provided him a vehicle . ..
“THE COURT: Even if he had that authority, it’s still necessary to prove that that’s what he did.
“MR. SANDERS: He used his personal vehicle, interchangeably, with the company vehicle. He used his personal vehicle interchangeable on many occasions. Had he been in the company vehicle, it may have looked a little bit better, but, the fact still remains, it’s the same situation. He had the power and authority to . . .
[Commencing at transcript page 749]
“THE COURT: They have the right to disbelieve somebody, and if they do, they just disregard it. They don’t jump to the opposite conclusion. They don’t have the right to do that. If they come to another conclusion, it’s got to be supported by evidence.
“MR. SANDERS: They have the right to consider the entirety of the testimony, and believe part, and disbelieve part. They have that right.
“THE COURT: Well, even picking whatever you want to pick in the form of questions and answers, I don’t see anything where you have a witness that said, this was a business purpose trip.
“MR. SANDERS: If the jury, should disbelieve Mr. Sellers when he says, I was on a personal mission, then the rest of the testimony is the duties of Mr. Sellers. One of which, is public relations and also hiring and firing employees. The jury at that time, has the right to decide on what mission was he on. The Court can submit these questions to the jury by written interrogatories.
******
[Commencing at page 750]
“THE COURT: The jury can reach any conclusion that’s supported by evidence, they’re not allowed to speculate, or, just jump to ...
“MR. SANDERS: Could I have the Court’s ruling. The Court . . .
“THE COURT: . . . you know I think Mr. Sellers is [sic] probably said more on the topic of what the duties — what were his duties, than anybody else.
“MR. SANDERS: That’s right.
“THE COURT: And, whether you accept his testimony, on that point, or, reject it, well, particularly if you reject it, you don’t have any information about what were the policies of the nursing home.
“MR. SANDERS: The jury, Your Hon- or, has the right to accept part and reject part. Now, if it’s this crucial it can be placed on a witness interrogatory to the jury, as to what part they reject. But, I think the jury has the right to make a determination to accept part and reject part of the entirety of Mr. Sellers testimony.
******
[Commencing at transcript page 753]
“MR. SANDERS: If you strike only the question on — that Mr. Sellers . . . went hunting, as a personal mission, if the jury disbelieved that, they still have the right to decide what he was doing out there and based on the rest of his testimony, that being was he entertaining employees, was he doing public relations, or what was he—was he on a personal mission. They still have the right to make the decision. Once they reach that point, they still have the right to make that decision.
“THE COURT: All right. Any further arguments?
MR. GIST: No, Your Honor.”

CONCLUSION

We conclude that the trial court properly granted the motion for directed verdict in favor of Houston Generál Insurance Company. We need not further burden this opinion with a detailed recapitulation of the evidence. It is manifest that no jury issue was ever made on the question of whether Robert “Luke” Sellers was acting in the course and scope of his employment with Golden Age when, and if, he fired the shot which wounded plaintiff-appellant.

All plaintiff-appellant has done is to speculate through pleadings, arguments and questions of a general nature. It is clear that plaintiff-appellant contends that the jury should be allowed to speculate. Faced with the absence of specific evidence of any kind counsel suggests a specious and casuistic argument. The argument is that if the jury should conclude that Sellers did shoot Breithaupt, it must necessarily conclude that Sellers testified falsely when he denied doing the shooting. Then appellant argues that having determined that Sellers testified falsely about a material fact he would testify falsely about all other material facts. Hence, appellant argues that inasmuch as Sellers denied he was on a business mission for Golden Age, the jury could conclude this was false testimony and thus make the positive conclusion that he was within the course and scope of his employment. We agree with the trial court that to allow the question to go to the jury on this basis would be misapplication of evi-dentiary rules. As a predicate to allowing the jury to consider Sellers’ credibility on the question at issue, the record should first contain some positive evidence that Sellers was within the course and scope of his employment. There is no such evidence.

Plaintiff-appellant here seeks to use the rule of falsus in uno, falsus in omnibus as a rule of proof. We regard that rule as relating to judging credibility only. Allowing its use as a rule of positive proof would be contrary to logic in our opinion.

For the foregoing reasons we affirm the judgment of the trial court insofar as it granted the motion for a directed verdict in favor of Houston General Insurance against plaintiff-appellant, Robert M. Breithaupt, Jr. All costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED.

APPENDIX I

NO. 15.423

ROBERT MILTON BREITHAUPT, JR. VERSUS

HOUSTON GENERAL INSURANCE COMPANY

FILED: Dec. 5,1978

28th JUDICIAL DISTRICT COURT PARISH OF LASALLE

STATE OF LOUISIANA

CLERK: /s/ NellA.Ganey

FIRST SUPPLEMENTAL AND AMENDING PETITION

NOW INTO COURT THROUGH UNDERSIGNED COUNSEL comes Robert Breithaupt and with respect represents that answers have not been filed by Houston General Insurance Company and plaintiff is entitled to and desirous of supplementing his original petition by adding the following paragraphs to wit:

9.

Petitioner shows that Robert B. Sellers was in the course and scope of his employment at the Golden Age Nursing Home for the following reasons:

a. While employed at the Nursing Home the defendant, on or about November 30, 1977 arranged a hunting outing with a member of the general public and particularly one who is identified as Nere Ourso.

b. Robert B. Sellers arranged a hunting outing with a member of the general public for the benefit of the Nursing Home.

c. Nere Ourso, his ascendants, descendants, and collateral relations, as well as fellow employees, friends, and acquaintances are candidates, potential employees, employees, and future employees, and clients of the Golden Age Nursing Home.

d. Robert B. Sellers was solely in charge of public relations with potential clients, employees, business friends, and the general public of the area in which the Nursing Home provides services, and on the date of the accident Robert B. Sellers was in the furtherance of those relationships.

e. Deer hunting is a very popular sport in LaSalle Parish and is a sport that is normally conducted during daylight hours and it naturely follows that deer hunting is conducted during regular work hours and was conducted during the working hours of Robert B. Sellers.

f. It was good public relations for the administrator to hold himself out as one who could and did participate in all facets of the community life including recreation available to residents of the Nursing Home and future residents of the Nursing Home.

g. By participating in hunting events Robert B. Sellers was able to communicate with residents of the Nursing Home and swap hunting stories with the residents for the direct benefit and morale of the Nursing Home.

h. Robert B. Sellers was on a twenty four hour work basis, furnished a company car, a company expense account, reported his activities to no one, was not required to punch a time clock, had sole discretion of how to occupy his working time, and how his working time was consumed, and it was in the furtherance of his regular and routine working schedule that he engaged in the sporting event leading to the injury of plaintiff.

i. Robert B. Sellers was in charge of employee relations at the Golden Age Nursing Home and was in charge of recruiting and maintaining staff at the Nursing Home and Mrs. Nere Ourso was a potential employee or a former employee or a present employee of the Nursing Home, and it was just good business for the Nursing Home for Mr. Sellers to entertain the husband of a former employee, potential employee, or present employee of the Nursing Home.

j. Recreation during the working hours by Robert B. Sellers whether it be a game of ping pong with one of the residents, a game of checkers with one of the residents, a hunting outing with one of the residents or one of the future residents or an employee is good business practice of the Golden Age Nursing Home with the exception, of course, the incident involved in this law suit.

WHEREFORE PETITIONER PRAYS for Judgment as originally alleged.

      . The present suit, number 7215 on our docket and number 15,423 on the trial court docket, originally named as defendants Houston General Insurance Company and Robert “Luke” Sellers. Through a supplemental and amending petition at transcript page 11 plaintiff joined Golden Age Nursing Home, a partnership, and various natural persons allegedly having some connection with the nursing home. In another suit, number 7214 on our docket and number 15,055 on the trial court docket, plaintiff sued Sellers alone. The minute entries in the transcripts indicate that there was also a suit captioned “Robert Milton Breithaupt, Jr. v. Golden Age Nursing Home” which was numbered 15,-422. In our record of 7214 at transcript page 36 there is a motion and order filed by plaintiff’s attorney signed by the trial judge on December 8, 1978, in which the plaintiffs dismissed without prejudice the Golden Age Nursing Home and the various individuals connected with the home. The motion and order bears the captions and docket numbers of all the cases mentioned above. The separate suits against Sellers and Houston General Insurance Company went to trial in a consolidated jury trial on March 19, 1979. The consolidation of the cases for trial by jury is reflected in a minute entry for December 27, 1978.

      . This court adopted this standard in Campbell v. Mouton, 373 So.2d 237 (La.App. 3rd Cir. 1979). We applied this standard in our consideration of the appeal in Breithaupt v. Seilers, 380 So.2d 1257 (La.App. 3rd Cir. 1980). Although reaching different conclusions from ours, the Louisiana Supreme Court tested the granting of the motion for directed verdict by the same standard. See page 872 of the Supreme Court opinion in 390 So.2d 870.

      . Counsel’s belief concerning Mr. Hodge’s expertise may be gleaned from the following:
      “MR. SANDERS: I would like to tender Mr. Hodges at this time as an expert in the field of business that has knowledge of the activities of people in the, that own businesses, and operates business and what they do in the course and scope of their business.” Tr. 467

      “THE COURT: ... well, the question is do you believe you can develop material that is relevant to this case?
      “MR. SANDERS: I think that Mr. Hodge can become an expert. He can express an opinion of what people who hold and operate businesses do, generally and he can state whether or not hunting is consistent with one of those things.”

      . Houston General also contended that assuming it was proved that Sellers did the shooting, the act of shooting itself would not be within the course and scope of employment. We do not find it necessary to address this issue.