author: EDWARDS, Judge.

text:
    Lawrence J. EARL, Sr. v. Elton CORLEY, d/b/a E & R Auto Repair.
    No. 14877.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.
    Rehearing Denied Aug. 24, 1982.

      Guy Holdridge, Crawford, Goldsmith & Holdridge, Gonzales, for plaintiff & appel-lee.
    Douglas Cyrex, Gonzales, for defendant & appellant.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   EDWARDS, Judge.

Defendant, Elton Corley, d/b/a E & R Auto Repair, appeals a parish court judgment awarding Lawrence J. Earl, Sr., $2,400.00, interest and costs. We affirm.

A review of the record indicates that in October of 1979, Lawrence Earl brought his 1974 Oldsmobile to Elton Corley for certain repairs. A dispute subsequently broke out as to whether the repairs had been made properly. The precise chronology of facts is in dispute but Corley ultimately sold Earl’s car under LSA-R.S. 32:521-522, the Stored Motor Vehicles law.

Earl then brought this action for tortious conversion.

LSA-R.S. 32:521 provides, in pertinent part:

“A. Whenever any motor vehicle of a type subject to registration in this state, has been stored, parked, or left in a garage, or any type of public storage or parking lot, where fees are charged for such storage or parking, .. .. ”

It is clear that Earl did not voluntarily store, park or leave his vehicle in a garage. He merely brought it to Corley for repairs. Regardless of the merits of each party’s contentions, R.S. 32:521 was not a valid means by which Corley might recover disputed sums from Earl.

Privileges are stricti juris and will be strictly construed. Southern Savings Association v. Langford Land Company, 372 So.2d 713 (La.App. 4th Cir. 1979), writ denied 374 So.2d 659 (La.1979). It is, therefore, irrelevant whether Corley might have utilized other, more appropriate, remedies such as LSA-R.S. 9:4501 or LSA-C.C. Art. 3217. He did not and his decision to proceed under inapplicable law resulted in a judgment for the plaintiff on the basis of conversion.

We agree with the trial court’s analysis, find his assessment of damages reasonable and, affixing the trial court’s reasons for judgment as Appendix A, affirm with all costs to be paid by appellant, Elton Corley.

AFFIRMED.

APPENDIX A

“REASONS FOR JUDGMENT

This suit arises by petition filed by the plaintiff, Lawrence J. Earl, Sr., on May 16, 1980, wherein he alleges that defendant, Elton Corley, d/b/a E & R Auto Repair, is indebted unto him in the full and true sum of Four Thousand, Eight Hundred Dollars ($4,800.00), plus attorneys fees and interest. Petitioner alleges that he delivered his 1974 Cutlass automobile to defendant on or about October 30, 1979, for the purpose of having defendant install a new transmission in said vehicle. He alleges that this was not done and, instead, defendant repaired or overhauled the transmission. As a result of this, a dispute arose between the parties and allegedly, despite repeated demands, defendant refused to surrender petitioner’s vehicle and to replace the transmission. As a result of this, plaintiff alleges an illegal and tortious conversion of said vehicle and claims damages under Civil Code Article 2315.

Petitioner further asserts a claim of Three Hundred Dollars ($300.00) for tools and Fifty Dollars ($50.00) for tapes that were lost as a result of this alleged action on the part of defendant. Additionally, plaintiff seeks the sum of Three Thousand Dollars ($3,000.00), as the cost of replacing his vehicle and One Thousand, Four Hundred Fifty Dollars ($1,450.00) for inconvenience, embarrassment and humiliation.

In his answer, defendant generally denies the allegations of plaintiff’s petition and, further, asks that the Department of Public Safety be made defendant in reconvention. The record shows, however, that no service nor citation was ever made upon the Department of Public Safety.

FACTS

Plaintiff was the owner of a 1974 Cutlass automobile, having purchased this car new for Four Thousand, Seven Hundred Dollars ($4,700.00), and in October of 1979, he brought said car to the defendant to have the transmission replaced. Defendant contradicts this and states that plaintiff authorized him to either repair or replace said transmission. A dispute developed between the parties when plaintiff returned for his vehicle and he refused to pay the defendant the full amount of his repairs, since his requested work was not performed. Additionally, attempts were made by plaintiff to obtain his vehicle without success, and later, the defendant sold plaintiff’s automobile under the Louisiana Stored Motor Vehicle Law.

Plaintiff and two of his witnesses, Mr. Hilliard and Mr. James, testified that plaintiff returned to defendant’s shop to obtain his vehicle and to pay the bill, but that the defendant refused to permit plaintiff to obtain his vehicle, and advised plaintiff that the ear was his.

Subsequently, after proceeding under the provisions of R.S. 32:521, et seq., the defendant received from the Motor Vehicle Department a permit to sell and then title the vehicle in his own name. The vehicle was later sold to Mr. Clark Nickens on February 25, 1980, for One Thousand Dollars ($1,000.00).

FINDINGS

In the Court’s view, the central issue involved in this case is whether or not Louisiana’s Stored Motor Vehicle Law applies to the facts of this case and affords to the defendant the remedy which he availed himself of.

In his memorandum, the defendant cites the case of Thompson v. Wormack, 231 So.2d 636, which is a 1970 case from the Third Circuit Court of Appeal, for the proposition that the artisan who has repaired an article may retain the same until his bill is paid and the repairman may proceed to have the thing sold under his privilege where the debt has not been paid. This remedy to the repairman is conferred under Article 3217 of the Civil Code and under Louisiana R.S. 9:4501. The proper remedy or procedure available to defendant would have been to proceed under R.S. 9:4501, et seq., and to have the vehicle sold under the privilege afforded him herein. It is the Court’s opinion that the Louisiana Stored Motor Vehicle Law does not apply to the facts of this case and that the defendant was not authorized to proceed under this legislation. Having failed to do so, the actions of the defendant in this case constitutes an illegal conversion of plaintiff’s property, which subjects him to damages under Article 2315 of the Civil Code.

DAMAGES

Plaintiff testified that he purchased the vehicle new, for Four Thousand, Seven Hundred Dollars ($4,700.00). Mr. Bennett, who qualified as an expert used car appraiser, testified that, in his opinion, the car was valued at Two Thousand, Three Hundred Dollars ($2,300.00) in May of 1979. The date on which plaintiff delivered his vehicle to the defendant was October 30, 1979; therefore, this would involve a depreciation of approximately five or six months since the date of the appraisal. The Court feels that an allowance of Six Hundred Dollars ($600.00) for this depreciation interval is reasonable, leaving a net value of One Thousand, Seven Hundred Dollars ($1)700.00) for this item. The Court feels that a fair value for the various items claimed by the plaintiff is Two Hundred Dollars ($200.00), plus the sum of Five Hundred Dollars ($500.00) for the inconvenience, embarrassment and humiliation of being without a car for approximately four months, and having to depend on friends for transportation. The Court will not allow any claim for attorneys fees, because there has been no showing that attorneys fees are provided for in this instance.

Judgment will be signed accordingly.”


source: Caselaw Access Project

author: SAVOIE, Judge.

license: Public Domain

text:
    TERMINIX PEST CONTROL COMPANY, INC. v. Leonce P. BOUDREAUX d/b/a Lee's Pest Control.
    No. 14894.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.
    Amended on Denial of Rehearing Aug. 24, 1982.
    Vallerie Oxner, Metairie, H. Minor Pipes, Jr., Houma, for plaintiff & appellee.
    Grady C. Weeks, Houma, for defendant & appellant.
    Before ELLIS, PONDER and SAVOIE, JJ.
   SAVOIE, Judge.

In this suit, Terminix Pest Control Company, Inc. appeals the refusal of the trial judge to issue a preliminary injunction against its former employee, Leonce P. Bou-dreaux.

The judgment in this case is dated May 12, 1981, and notice thereof was sent out on May 27, 1981. A motion for appeal was filed on June 26, 1981, but the order was not signed. A second motion was filed and the appeal granted on July 10, 1981.

Ex proprio motu, this court notes that the appeal from a judgment granting or denying a preliminary injunction must be taken within fifteen days of the date of the order or judgment. (Code of Civil Procedure, Article 3612)

Since the present appeal was not taken within the time allotted under Article 3612, the appeal cannot stand and must, therefore, be dismissed.

We have also considered the possibility that all issues may have been effectively disposed of and that no trial on the merits is needed. However, the parties did not stipulate that all issues were to be decided at the preliminary injunction hearing. Without such a stipulation, we cannot allow a trial of a rule for preliminary injunction to replace a trial on the merits even though the merits may have been fairly treated by the trial court.

It is well settled in our jurisprudence that a trial court, in the absence of a stipulation to the contrary, cannot, upon denial of a preliminary injunction, dismiss the suit pri- or to full trial on the merits for a permanent injunction. Southwest Sales and Mfg. Co. v. Delta Exp., Inc., 342 So.2d 281 (La.App. 3rd Cir. 1977), writ refused (La.1977), 345 So.2d 48; Arbour v. Total CATV, Inc., 400 So.2d 1155 (La.App. 1st Cir. 1981).

For the above and foregoing reasons, the appeal is dismissed and the case remanded for further proceeding. Appellant is to pay all costs. Appeal Dismissed and Case Remanded.


author: PONDER, Judge.

text:
    Richard M. MICHALCZYK, et al. v. Robert SPREHE, et al.
    No. 14899.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.
    Rehearing Denied Aug. 24, 1982.
    Alwyn J. Cronvich, Metairie, for plaintiffs, appellants.
    Jack Blossman, Les Ledoux, II, Coving-ton, for defendants, appellees.
    Before ELLIS, PONDER and SAVOIE, JJ.
   PONDER, Judge.

Plaintiffs appealed from the dismissal of their rule to show cause why defendants should not be required to execute a partial release of a collateral mortgage.

The issues are the factual findings of the trial judge and the application of the doctrines of “acquiescence by silence or inaction” and estoppel.

We affirm.

Plaintiffs are the purchasers of a lot and the notary who passed the act of sale. Defendants are Commercial Capital, Inc., First National Bank of Covington, Robert Sprehe, employee of First National Bank and a consultant for Commercial Capital, and Stephen Levee, the owner of the lot. Commercial Capital, Inc. and First National Bank have the same shareholders.

We adopt a portion of the trial judge’s reasons disclosing the events leading up to this suit:

“On December 16, 1980, Mr. Levee called Robert Sprehe to advise him that an attorney would be calling him regarding a sale of parcel 40. Mr. Levee did not advise Mr. Sprehe of any approximate amount that might be available for payment to the bank in exchange for a partial release of parcel 40 from the mortgage. Mr. Sprehe did nothing further in connection with this matter, and the act of sale was closed on December 22, 1980. “On December 22, 1980, Mr. Sprehe was on vacation and out of the area. Mr. Richard Michalczyk was the Notary who closed the act of sale, and at 12:33 p. m. on December 22, 1980, he placed a call to Mrs. Eloise Braddock, the corporate secretary of Commercial Capital, Inc. He advised her that he would get back in touch with her regarding the net proceeds that would be available to pay the bank in exchange for the partial release. She suggested that he talk with F. W. Pearce, and at 1:43 p. m. Mr. Michalczyk spoke with Mr. Pearce by telephone. Mr. Pearce took down the information furnished him by Mr. Michalczyk and gave him the mailing address of Commercial Capital, Inc. It is clear from the testimony that no representative of Commercial Capital, Inc., agreed to accept the net proceeds of the sale in exchange for a release of parcel 40 from the mortgage. “The act of sale was closed at approximately 5:00 p. m. on December 22, 1980, and a check for $25,345.04 was mailed to Commercial Capital, Inc. The check was forwarded to Blossman and Hand, attorneys for Commercial Capital, and the closing Notary was advised by letter of January 8, 1981, that Commercial Capital had not agreed to a partial release amoünt in connection with the Levee mortgage. After negotiations aimed at obtaining the partial release failed, this suit was filed on May 22, 1981.”

Levee had a mortgage for $85,000.00 to Commercial Capital covering the lot in question and another. The $25,345.04 mentioned in the quotation was the net proceeds after payment of costs, judgments and commissions.

The trial judge held that no agreement to accept the net proceeds of the sale in exchange for a partial release had been reached. He also found no act or omission on the part of Commercial Capital, Inc., that would lead Mr. Michalczyk reasonably to believe that such an agreement had been reached.

The plaintiffs’ first two specifications of error relate to the trial court’s failure to find an agreement to accept the net proceeds of the sale in exchange for a partial release.

The testimony of the employees of Commercial Capital, Inc. was that they never agreed to the partial release in their conversations with Mr. Michalczyk. Mr. Levee’s testimony indicated that no agreement on a partial release was reached in his conversation with Mr. Sprehe. In fact, no estimated payoff figure was given by Mr. Levee.

Mr. Michalczyk testified that he spoke with Mr. Sprehe by phone on December 16th and a pay off figure of twenty-five to thirty thousand dollars was discussed. Mr. Sprehe denied that the conversation occurred and the trial court evidently believed his testimony.

The evidence did indicate that Mr. Mi-chalczyk may have assumed that the partial release had already been consented to by Commercial Capital, Inc., when he spoke with Mr. Pearce and Mrs. Braddock. However, they merely intended to gather information from which a later decision could be made. We find no error.

Plaintiff’s argument that the silence and inaction of the defendants resulted in an implied consent is also without merit. La.C.C.Art. 1817. In cases where the law does not expressly create a legal presumption of consent from certain facts, the judge has wide discretion to determine if consent is to be implied from the particular circumstance of the case. La.C.C.Art. 1818; Illinois Central Gulf Railroad Company v. International Harvester Company, 368 So.2d 1009 (La.1979). We find no error.

Plaintiff’s argument of estoppel is also without merit. The plaintiffs have not established sufficient evidence of 1) a representation by action or word, 2) a reliance on the representation that was justifiable, two of the elements of equitable estoppel. See Duthu v. Allements’ Roberson Machine Works, Inc., 393 So.2d 184 (La.App. 1st Cir. 1980). We find no error.

For these reasons, the trial court’s judgment is affirmed and costs are assessed to the plaintiff.

AFFIRMED.

      . La.C.C.Art. 1817:
      “Silence and inaction are also, under some circumstances, the means of showing an assent that creates an obligation; if, after the termination of a lease, the lessee continue in possession, and the lessor be inactive and silent, a complete mutual obligation for continuing the lease, is created by the act of occupancy of the tenant on the one side, and the inaction and silence of the lessor on the other.”

      . La.C.C.Art. 1818:
      “Where the law does not create a legal presumption of consent from certain facts, then, as in the case of other simple presumptions, it must be left to the discretion of the judge, whether assent is to be implied from them or not.”


text:
    Sandra Williams, wife of/and Wyatt WILLIAMS v. WINN DIXIE LOUISIANA, INC. Wyatt Wayne WILLIAMS, et al v. Rosa L. TYLER.
    Nos. 14912, 14913.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.
    Rehearing Denied Aug. 24, 1982.

      Before ELLIS, PONDER and SAVOIE, JJ.
   SAVOIE, Judge.

In this case, Winn-Dixie appeals the apportionment of a damage award entered against it and in favor of Sandra Williams, who was injured when she slipped and fell in one of its stores. We affirm.

Four months after the slip in this store, Mrs. Williams’ automobile was struck from behind by a car driven by Rosa Tyler, and she was again injured. Mrs. Williams filed suits against both defendants, which suits were consolidated for trial. Only Winn-Dixie has appealed the judgment below, and its appeal concedes the proof of both negligence and the quantum of damages suffered by Sandra Williams. Winn-Dixie objects only to the apportionment of damages between itself and Rosa Tyler, the successive tort-feasor. In effect, this appeal challenges the following finding of fact as set forth in the trial court’s “Reasons for Judgment”:

“. . . The court has carefully considered and reconsidered the medical testimony involved in this case, in light of the work habits and life style of the plaintiff Mrs. Williams. Even though the medical testimony indicates that eight patients out of ten with disc injuries respond favorably to conservative treatment, the probabilities are that Mrs. Williams would have followed the same course in the absence of the motor vehicular collision caused by Rosa Tyler. The medical testimony indicates, however, that the Rosa Tyler accident aggravated or exacerbated the disc condition caused as a result of the Winn Dixie slip. In view of this conclusion, it would appear fair and equitable to assess Winn-Dixie with five-sixths of the award, and Rosa Tyler and State Farm (the uninsured motorist’s insurer) with one-sixth of the award.”

The law applicable to this situation is not complicated. Judge Cole has set out the law as it is understood by this court:

“In situations involving multiple accidents, whether preceding or subsequent to the accident at issue, it is well settled that a tortfeasor is liable only for the direct and- proximate results of his wrongful act. Stevens v. Gulf American Fire and Casualty Company, 317 So.2d 199 (La.App. 1st Cir. 1975); Baughman v. Aetna Casualty and Surety Company, 302 So.2d 312 (La.App. 1st Cir. 1974); McGuire v. Oliver, 227 So.2d 149 (La.App. 2nd Cir. 1969).
“In such instances, the tortfeasor is not only liable in damages for the injuries caused by his wrongful act, but also for the aggravation of any pre-existing physical defects or injuries. Baughman v. Aetna Casualty and Surety Company, supra; Williams v. Reinhart, 155 So.2d 51 (La.App. 1st Cir. 1963); Rachal v. Bankers and Shippers Insurance Company, 146 So.2d 426 (La.App. 3rd Cir. 1962).
“The burden of proving the causal connection between the damages claimed and the accident by a reasonable preponderance of the evidence rests upon the plaintiff. Stevens v. Gulf American Fire and Casualty Company, supra.”
Comeaux v. Barksdale, 342 So.2d 1181 (La.App. 1st Cir. 1977), pp. 1182-3.

The problem faced by the district court, therefore, was to fairly apportion the damages on the basis of the medical evidence offered in this case. In this appeal both parties have focused their attention primarily on the testimony of Dr. Donald E. Richardson, because he was the only medical man to have examined the plaintiff both before and after the second accident.

There is an apparent inconsistency in his various statements on this issue and the reasons for these were carefully explored by the parties’ able trial attorneys.

On March 25, 1977, Dr. Richardson wrote a report to Mrs. Williams’ disability insurer in which he stated:

“The ... patient has been under my care since February 8, 1977. The symptoms originally arising out of a fall on October 17, 1976. The patient was gradually recovering from this fall which produced neck and right arm symptoms. She was ready to return to her job assignment when she was involved in an automobile accident in February of ’77, which caused marked exacerbation of her symptoms, which are still present. From a medical point of view, the patient had recovered from the fall of October 17,1976, and was ready to return to the job assignment when she had the second injury involving an automobile accident which produced new cervical disc symptoms that are now in progress and under therapy.”

At trial, Dr. Richardson appeared to retreat from this position. He gave it as his opinion that she suffered ruptured cervical discs in the first accident and that the condition was exacerbated by the second accident. He said that, though a ruptured disc may become “asymptomatic”, it cannot heal. “If you injure a disc, it will stay injured.”

When asked by the attorney to apportion the responsibility for the damage between the two accidents, Dr. Richardson was in obvious and understandable difficulty. He said:

“You know I can’t separate, you know if a person becomes totally asymptomatic, what I have tried to explain before, the patient becomes totally asymptomatic from the cervical disc rupture and they slip down the stairs out there and injure their neck again, the same cervical disc symptoms can come back. It doesn’t mean that it is a new, whole new ball game. It simply means that you have reinjured something that was already wrong with you.”

It was at this point that the court put the crucial question to the doctor:

“Doctor, can you express an opinion based on the information you have obtained and the history as to her lifestyle, her family set up, her work habits, as to what would have been her course in life, but for the second accident?”
Dr. Richardson replied:
“I don’t really know of course, but I suspect that she would have had neck trouble whether she had the second accident or not, but she probably would have gone on the same way with or without the second accident.”
* sfc sH # sf: s(s
“The type of job she had [dental hygienist] is the type that aggravates neck trouble.”
* * * * * *
“Once a disc has been injured, it never heals properly, the cartilege in the disc does not rejuvenate itself and once they have been injured, they tend to progressively degenerate and they will exacerbate and get better.”

Though the doctor said that “90% of the .patients we see with cervical disc problems will significantly improve with time”, nevertheless, it was his opinion, based on his prolonged treatment of this patient and based on his knowledge of her lifestyle, that her condition would have deteriorated in much the same way with or without the second accident.

Defendant, in brief, argues strongly that the trial court has misconstrued Dr. Richardson’s testimony — that he did not mean that his patient would have required the three neck surgeries she underwent whether the auto accident occurred or not, but that he only meant she would have had “flare-ups” from time to time in the future, whenever she was subjected to trauma. We find this argument unpersuasive. Dr. Richardson opined that the cervical discs ultimately removed by surgery, were ruptured in the Winn-Dixie accident and that had Mrs. Williams pursued the same lifestyle thereafter, the discs would have degenerated, requiring their removal.

We are satisfied that the plaintiff has borne her burden of connecting her damages to the particular accidents at issue and that the apportionment finally settled upon by the trial court is reasonably supported by the evidence in the record and lies within the area of discretion afforded to triers of fact by our law. Whatley v. Red Ball Motor Freight, Inc., 351 So.2d 850 (La.App. 2d Cir. 1977); Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976).

For the above and foregoing reasons, the judgment of the trial court is hereby affirmed. Appellant is to pay all costs.

AFFIRMED.


author: WATKINS, Judge.

text:
    Rose Goodie SASSAU v. LOUISIANA WORKOVER SERVICE, INC., et al.
    No. 14918.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.
    Rehearing Denied Aug. 24, 1982.
    Aubrey E. Denton, of Shelton & Legendre, Lafayette, for plaintiff-appellant Rose Goodie Sassau.
    Patrick A. Juneau, Jr., of Voorhies & Labbe, Lafayette, for defendants-appellees La. Workover Service, Inc. and United General Ins. Exchange.

      John A. Bernard and V. Farley Sonnier, Lafayette, for defendants-appellees Sun Oil Co. and Sun Production Co.
    Robert Ryan, New Orleans, for defendant-appellee Cooper Mfg. Corp.
    John L. Lanier, Thibodaux, for defendant-appellant Permian Engineering & Manufacturing Corp. and Liberty Mut. Ins. Co.
    Before COVINGTON, COLE and WATKINS, JJ.
   WATKINS, Judge.

This is an action for workmen’s compensation or alternatively wrongful death brought by Rose Goodie Sassau as survivor arising out of the death of her son, Ricky Paul Sassau. Made defendants were fifteen parties, the only parties pertinent to our discussion being Sun Production Company and Sun Oil Company, which moved for summary judgment on their behalf. Summary judgment was granted, dismissing Sun Production Company and Sun Oil Company as parties defendant. We amend and affirm.

Plaintiff alleges that Sassau was killed while working as a derrick hand in the Chacahoula Field, Lafourche Parish, on May 11, 1978, when the oil drilling rig he was working on fell over. Plaintiff further alleges that the rig was operated for Sun Production and/or Sun Oil. Sassau was alleged to be an employee of Louisiana Workover Service, Inc., a co-defendant.

It appears from an affidavit in support of summary judgment filed by Sun Production and Sun Oil executed by Nelson J. Sapp, District Manager of Sun Oil, that Sun Production was an operating division of Sun Oil, and that Workover was engaged in work on the rig on which Sassau was killed on or about May 11, 1978.

The full affidavit reads as follows:

“BEFORE ME, the undersigned authority, duly commissioned and qualified within and for the State and Parish aforesaid, personally came and appeared Nelson J. Sapp who, being by me first duly sworn deposed and said that:
He is presently employed by Sun Oil Company (Delaware) in the position of District Manager;
In such position, he is familiar with the general business and operations conducted by Sun Oil Company (Delaware) and its several operating divisions, including Sun Production Company, in the State of Louisiana;
The trade, business and occupation in the State of Louisiana of Sun Oil Company (Delaware) and its several operating divisions is the exploration, drilling, production, sale and refining of hydrocarbon minerals, which activities include the working and reworking of oil and gas wells;
From time to time Sun Oil Company (Delaware) finds it necessary or convenient to contract with certain persons, firms or corporations to perform services to assist Sun in its business;
In connection with his position with and on behalf of Sun Oil Company (Delaware), he executed one such contract, entitled ‘Master Well Work Agreement’ and dated December 23, 1975, with Louisiana Workover Service, Inc. (a copy of which contract is attached to this affidavit and is identified as Exhibit ‘A’ by the affi-ant);
He is familiar with work undertaken and in progress by and/or for Sun Oil Company (Delaware) on or about May 11, 1978, in the vicinity of Louisiana Highway 309 on the Tabor Lease No. 1, Cha-choula (sic) Field, Lafourche Parish, Louisiana, and with the fact that Louisiana Workover Service, Inc. was engaged in such work pursuant to its hereinabove described contract with Sun Oil Company (Delaware);
The type of work performed by Louisiana Workover Service, Inc. pursuant to the hereinabove described contract was the same or similar to that normally and ordinarily performed by and for Sun Oil Company (Delaware) and its several operating divisions in the course of its business in the State of Louisiana and elsewhere; and
He makes this affidavit based on his own personal knowledge and information.
/s/ Nelson J. Sapp”

(It will be noted that although a copy of the contract entitled “Master Well Work Agreement” was mentioned as being attached to the Affidavit as Exhibit “A”, the copy of the contract is not in the record before us.)

No counter-affidavits were filed by plaintiff.

Sun Oil and Sun Production contend that Sun Oil and Sun Production were the statutory employers of Sassau under the Workmen’s Compensation Act, and, hence, plaintiff’s exclusive remedy is by workmen’s compensation. See LSA-R.S. 23:1032, 23:1062; Broussard v. Heebe’s Bakery, Inc., 263 La. 561, 268 So.2d 656 (1972).

Plaintiff contends the affidavit in support of summary judgment was not sufficiently explicit. We cannot agree.

The petition alleges that Sassau was a derrick hand employed by Workover when he was killed. Workover contracted with Sun Oil to perform the work on the rig. The work done by Workover was that which was a part of the “trade, business or occupation” which Sun Oil and its operating divisions customarily performed, and which Sun Oil entered into a contract with Work-over to perform. Thus, Sun Oil is the statutory employer of Sassau, and Sassau was its statutory employee. Hence, Sun Oil is liable solely in workmen’s compensation. Sun Production, a mere operating division of Sun Oil, is free from tort liability.

Hence, Sun Oil and Sun Production were properly dismissed in tort. However, as Sun Oil and Sun Production admit, they are principals in workmen’s compensation under LSA-R.S. 23:1062. Hence, they may possibly be held for workmen’s compensation. Plaintiff does not pray for relief solely in tort.

Summary judgment may be granted dismissing a claim in tort, while not dismissing a claim for workmen’s compensation. See Beard v. Assumption Parish Police Jury, La.App. 1st Cir., 413 So.2d 923. Hence, we dismiss plaintiff’s tort claim, while permitting plaintiff to pursue a claim for workmen’s compensation benefits.

The judgment of the trial court is amended in part as above indicated and as thus amended affirmed, all costs to be paid by appellant.

AMENDED AND AFFIRMED.


author: COVINGTON, Judge.

text:
    Daniel G. CHAMPAGNE v. FOREST PRODUCT TRANSPORT, INC., et al.
    No. 14923.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.
    Rehearing Denied Aug. 24, 1982.

      James S. Farmer, Bogalusa, for plaintiff.
    James H. Drury, New Orleans, for defendant.
    Before COVINGTON, COLE and WATKINS, JJ.
   COVINGTON, Judge.

This is a suit for personal injury and property damages arising out of an inter-sectional collision between a Jeep owned and driven by Daniel G. Champagne, plaintiff, and a Mack truck and trailer owned by defendant Forest Products Transport, Inc., operated by its driver, defendant Hardy A. Turnage, and insured by defendant Empire Fire & Marine Insurance Company. The intersection where the collision occurred is the intersection of Louisiana Highways 10 and 21 in the Parish of Washington, which is controlled by traffic signals. Each driver claimed the traffic light was favorable to him as he entered the intersection. After the trial, the district court found that the accident was caused solely by the truck driver “in failing to maintain control of his vehicle as he approached this traffic controlled intersection,” and rendered judgment for the plaintiff.

We disagree. The record does not reveal a reasonable factual basis for the finding of the court below. We find that the trial court committed manifest error therein. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). To arrive at his conclusion, the trial judge had to ignore completely the testimony by deposition of the only disinterested eyewitness to the accident, Blandón Sorrell, a young man who was home on leave from the Marine Corps.

Mr. Sorrell testified that the traffic signal controlling plaintiff’s movement was red when plaintiff entered the intersection. He stated that Mr. Champagne ran the red light. According to the testimony of Gary Hickman, a police officer of the Bogalusa Police Department who investigated the accident, Blandón Sorrell told him that “he (Sorrell) saw the boy (Champagne) was not going to stop for the red light.” Sorrell stated to Officer Hickman that he was unable to get Champagne on the C.B. to warn him to stop after he saw that Champagne was not going to stop.

The applicable statutory law is LSA-R.S. 32:232. Many cases have interpreted the cited statute. In Mooring v. Pomeroy, 175 So.2d 435 (La.App. 2 Cir. 1965), writ denied, 248 La. 117, 176 So.2d 450 (1965), the defendant driver proceeded into the controlled intersection as the signal light changed from green to yellow (caution). The plaintiff entered the intersection as the signal changed from red to green, without waiting to permit the clearance of traffic. The Court found under the circumstances that the plaintiff was guilty of contributory negligence and denied recovery. In Weber v. Phoenix Assurance Company of New York, 273 So.2d 30 (La.1973), the Supreme Court affirmed the appeal court’s reversal of the trial court’s judgment, 256 So.2d 752 (La. App. 1 Cir. 1972), which had been in favor of the plaintiff. The Court of Appeal, First Circuit, denied plaintiff damages arising out of an automobile accident, finding that plaintiff’s contributory negligence was a bar to recovery. In Weber, the plaintiff, going north, observed that the light facing him changed to red as he approached the intersection; yet, he did not stop, but began to make a right turn. The defendant, going west, attempted to pass a stopped vehicle as the light changed from red to green. A collision occurred. The trial court found the defendant solely negligent. The Court of Appeal disagreed, finding that both drivers were negligent. The Court stated: “If either of the drivers in this case had fulfilled the duty placed on him by law, the accident would not have happened.” The Weber case is strikingly similar to the case at bar.

We hold that both drivers violated LSA-R.S. 32:232 in proceeding into this controlled intersection without first determining if it was safe to do so. The plaintiff ran the red light, and was thus negligent. Turnage was equally negligent in entering the intersection, either on amber or red, when he could easily see, or should have seen, that Champagne was not stopping for the red light. We find both drivers at fault in causing this accident. Hence, we hold that Champagne’s contributory negligence bars his right to the recovery of damages. See Close v. Lumbermens Mutual Casualty Company, 207 So.2d 571 (La.App. 3 Cir. 1968).

Accordingly, we reverse the judgment of the trial court, and render judgment in favor of defendants, Forest Products Transport, Inc., Hardy A. Turnage and Empire Fire & Marine Insurance Company, dismissing the suit of plaintiff, Daniel G. Champagne, at his costs.

REVERSED AND RENDERED.

      . LSA-R.S. 32:232 provides, in pertinent part: “Whenever traffic is controlled by traffic-control signals exhibiting different colored lights, or colored lighted arrows, successively one at a time or in combination, only the colors green, red and yellow shall be used, except for special pedestrian signals carrying a word legend, and said lights shall indicate and apply to drivers of vehicles and pedestrians as follows:
      “(1) GREEN indication:
      “(a) Vehicular traffic facing a circular green signal may proceed straight through or turn right or left unless a sign at such place prohibits either such turn. But vehicular traffic, including vehicles turning right or left, shall yield the right-of-way to other vehicles and to pedestrians lawfully within the intersection or an adjacent crosswalk at the time such signal is exhibited.
      “(b) Vehicular traffic facing a green arrow signal, shown alone or in combination with another indication, may cautiously enter the intersection only to make the movement indicated by such arrow, or such other movement as is permitted by other indications shown at the same time. Such vehicular traffic shall yield the right-of-way to pedestrians lawfully within an adjacent crosswalk and to other traffic lawfully using the intersection.
      ***** 4!
      “(2) Steady YELLOW indication:
      “(a) Vehicular traffic facing a steady yellow signal alone is thereby warned that the related green signal is being terminated or that a red signal will be exhibited immediately thereafter and such vehicular traffic shall not enter or be crossing the intersection when the red signal is exhibited.

        ******
      “(3) Steady RED indication:
      “(a) Vehicular traffic facing a steady circular red signal alone shall stop at a clearly marked stop line, or if none, then before entering the crosswalk on the near side of the intersection, or if none, then before entering the intersection, and shall remain standing until an indication to proceed is shown except as provided in Subparagraph (c) of this Paragraph.
      * * * * * *
      “(c) Except when a sign prohibits a turn, vehicular traffic facing any steady red signal may cautiously enter the intersection to turn right, or to turn left from a one-way street into a one-way street, after stopping as required by Subparagraph (a) or Subparagraph (b) [traffic facing an arrow signal] of this Paragraph. Such vehicular traffic shall yield the right-of-way to pedestrians lawfully within an adjacent crosswalk and to other traffic lawfully using the intersection.”


author: LOTTINGER, Judge.

text:
    Geneva BRUMFIELD, Individually and as Administratrix of the Estate of Guy Harry Brumfield, and Martha Lee Wilkerson, Individually and for and on Behalf of Woodrow Taylor, Jr. v. Edward DYSON and Village of Tangipahoa.
    No. 14932.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.
    Rehearing Denied Aug. 24, 1982.

    Robert L. Manard, III, Marc L. Popkin, New Orleans, for plaintiffs-appellants.
    Bruce E. Simpson, Kentwood, for defendants-appellees, Edward Dyson and the Village of Tangipahoa.
    Cassandra A. Simms, Baton Rouge, for State of La.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.

       Shortess, J., dissents and would grant a rehearing.

   LOTTINGER, Judge.

This is an action ex delicto. Geneva Brumfield, individually and as administra-trix of the estate of Guy Harry Brumfield, and Martha Lee Wilkerson, individually and for and on behalf of Woodrow Taylor, Jr., sued Edward Dyson and the Village of Tan-gipahoa, alleging that Dyson, while in the performance of his duties as a municipal police officer for the Village of Tangipahoa, negligently and- carelessly discharged his firearm, injuring Woodrow Taylor, Jr. and fatally wounding Guy Harry Brumfield. Subsequently the State of Louisiana was added as a party defendant.

The State filed the peremptory exception of no cause of action, arguing that as a matter of law, the State is not liable, vicariously or otherwise, for the negligent acts of municipal policemen. This exception was overruled by the trial court. The State applied to this court for alternative writs of certiorari, prohibition, and mandamus from the ruling of the trial court on the exception of no cause of action. This court issued an alternative writ of mandamus, commanding the trial judge to vacate and set aside the judgment overruling the peremptory exception filed by the State and thereupon to render judgment maintaining said exception and dismissing plaintiffs’ demands as to the State. In the alternative, the trial judge and/or the respondents (plaintiffs) were ordered to show cause, by briefs, why the writ of mandamus should not be made peremptory.

Neither the trial judge nor respondents decided to take the alternative. The trial judge complied with the writ and rendered judgment in favor of the State, maintaining the peremptory exception of no cause of action and dismissing the plaintiffs’ demands against the State of Louisiana. The plaintiffs then perfected this appeal from the judgment maintaining the peremptory exception.

ISSUES PRESENTED ON APPEAL

I. Whether the procedural principle known as “the law of the case” forecloses this Court’s consideration of its previous decision as to the State’s liability for the wrongful acts of municipal policemen.

II. Whether a cause of action exists against the State of Louisiana for wrongful acts of municipal policemen.

I

Appellants do not raise the issue, but appellee contends that because of the issuance of an alternative writ of mandamus by this court, ordering the trial court to sustain the peremptory exception, we should apply the “law of the case” principle, and should not reconsider on appeal the issue of whether the state can be liable for the torts of municipal policemen.

The Supreme Court discussed the law of the case principle in Day v. Campbell-Grosjean Roofing and Sheet Metal Corporation, 260 La. 325, 256 So.2d 105 (1971):

“With regard to an appellate court, the ‘law of the ease’ refers to a policy by which the court will not, on a subsequent appeal, reconsider prior rulings in the same case. This policy applies only against those who were parties to the case when the former appellate decision was rendered and who thus had their day in court. Among reasons assigned for application of the policy are: the avoidance of indefinite relitigation of the same issue; the desirability of consistency of the result in the same litigation; and the efficiency, and the essential fairness to both parties, of affording a single opportunity for the argument and decision of the matter at issue.” 256 So.2d 105, 107. (Footnotes omitted.)

It has been said that this doctrine is merely one of practice or court policy, and not of inflexible law, so that appellate courts are not absolutely bound thereby, but may exercise a certain degree of discretion in its application. The doctrine should not be applied where to do so would accomplish an obvious injustice; or where the former appellate decision was clearly, palpably, or manifestly erroneous. See Petition of Sewerage & Water Board of New Orleans, 278 So.2d 81 (La.1973); Wascomb v. American Indemnity Corporation, 383 So.2d 1037 (La.App. 1st Cir. 1980), writ granted 385 So.2d 256 (La.1980).

Most of the cases dealing with the law of the case principle concern reconsideration on a subsequent appeal of a question of law decided on a former appeal. In the instant case, the prior decision of this court was not rendered in a full appeal. Rather, that there is no cause of action against the state for the torts of municipal policemen was implicitly recognized in this court’s issuance of an alternative writ ordering the trial court to maintain the peremptory exception. Therefore, can an issue decided on writs be equated to a former appeal, thus involving the law of the case principle?

In Coney v. Coney, 218 La. 218, 48 So.2d 902 (1950), the Supreme Court in recalling a writ extended the time period within which the relator could perfect an appeal. In seeking a dismissal of the appeal appellee argued that the Supreme Court was without authority to extend the time within which to perfect an appeal. Justice Hamiter as the organ of the court held that the appellee’s argument was inappropriate at that point in time and should have been made earlier. He further held that the earlier decree of the Supreme Court issued in conjunction with the order recalling the writ constituted the law of the case. Although the Coney case is not exactly “on all fours” with the instant case, it does illustrate that the law of the case principle applies to all decisions of an appellate court, not merely those arising from the full appeal process.

We are of the opinion that the law of the case principle is applicable in this case. This court has spoken by the issuance of the alternative writ, albeit only the relator therein presented written argument. There was no impediment existing to prevent respondents from filing a brief in opposition to the writ application or from taking the alternative by filing a brief as to why the writ should not be made peremptory. Thus respondents in the writ and plaintiffs-appellants herein waived their day in court.

Finally, we have examined the merits of the exception of no cause of action and conclude that the previous decision of this court as expressed by the issuance of the writ was not clearly, palpably or manifestly erroneous.

Considering the above, we pretermit any discussion of the second issue.

Therefore, for the above and foregoing reasons, the judgment of the trial court is affirmed at plaintiffs-appellants’ costs.

AFFIRMED.


author: COLE, Judge.

text:
    Larry James PITTMAN v. Wanda Ann Wall PITTMAN.
    No. 14936.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.
    Rehearing Denied Aug. 24, 1982.

      John Seago, Baton Rouge, for plaintiff, appellant.
    Birch McDonough, New Orleans, for defendant, appellee.
    Before COVINGTON, COLE and WATKINS, JJ.
   COLE, Judge.

This case presents a single issue: Whether or not the trial court erred in ordering plaintiff Larry Pittman to pay $280 a week for the support of his three minor children.

Plaintiff and defendant Wanda Pittman were married in 1968 and of this marriage three children were born. The parties were divorced by virtue of a judgment signed June 24, 1981. The judgment ordered Larry Pittman to pay $230 a week for the support of Laura Pittman, age 12, Michelle Pittman, age 10, and Tiffany Pittman, age 8. Mr. Pittman has appealed the judgment arguing the trial court erred in awarding this amount.

We note initially the trial court is granted a great amount of discretion in determining the amount of child support payments due and its determination will not be disturbed absent a showing of abuse. Silas v. Silas, 399 So.2d 779 (La.App. 3d Cir.1981). The amount of the award is to be in proportion to the needs of the child and the circumstances of the parent who is to pay. Silas, supra. The children are to be maintained in the same standard of living as they would enjoy if they were living with their father. Meyers v. Meyers, 344 So.2d 451 (La.App. 2d Cir. 1977). It is impossible to calculate the amount of child support by a mathematical formula. Instead, all of the varying facts and circumstances of each case must be taken into consideration. Fall v. Fontenot, 307 So.2d 779 (La.App. 3d Cir. 1975).

Evidence concerning the financial status of each parent was put forth at trial. As of May 1981, Mr. Pittman was employed as a construction supervisor and had a gross income of $34,824 a year. His monthly net income was $1,709. He itemized his monthly expenses as totaling $1,498. Therefore, he claimed he could afford to pay only $210 a month in child support.

Mrs. Pittman had recently become employed as a manager trainee at a finance company and was earning a gross income of $9,000 a year. She stated her monthly net income was approximately $575. She itemized her monthly expenses to equal $2,469.

We have examined the itemized expense lists submitted by each party. We note Mr. Pittman, who lives in an apartment in Baton Rouge, claimed he spends $450 a month for food for himself while Mrs. Pittman stated she spends $500 monthly for food for herself and three children. Mr. Pittman drives a 1980 Monte Carlo and pays a $209 monthly note while Mrs. Pittman drives a 1977 Chevrolet station wagon and states she has found it necessary to spend approximately $140 monthly to keep it in running condition. Mrs. Pittman itemized her monthly medical and dental expenses as $200, based upon her assertion that one of the children was in need of orthodontic work and she herself required dental work. We note Mrs. Pittman’s net income of $575 is not sufficient to cover even the rent ($375) and the grocery bill ($500). She testified she is getting a special price on the house she currently rents in Slidell but will be required to move shortly because the house is being sold. She stated it would cost approximately $600 a month to rent a similar house in the same neighborhood.

Considering all of the evidence we conclude the trial court did not abuse its discretion in setting the amount of child support at $230 a week. The children are at ages where it is necessary to spend a great deal for clothing (due to their rapid growth), as well as for food, education, medical care and recreation. We note Mr. Pittman’s gross salary is almost four times as much as Mrs. Pittman’s. His earning potential, as a construction supervisor with twelve years experience, is much higher than hers as a beginner manager trainee who has worked only intermittently as a receptionist and as a substitute teacher. She testified she had her real estate license and although she occasionally earned commissions she did not have time to be actively involved in that field. There is no evidence showing she had any substantial or regular income from the real estate business.

We realize both the mother and the father have an obligation to support their children. La. Civil Code art. 227. It appears Mrs. Pittman is offering what meager financial support she can, as well as the invaluable and innumerable services involved in the daily care of the children. Mr. Pittman argues he is only able to pay $210 a month because this is the amount he has left after his monthly expenses. His argument ignores the fact that as a father he has a legal obligation to support his children. This obligation is not dependent upon how much money is “left over” at the end of the month. We observe that Mr. Pittman earns a substantial income and with good financial management he should be able to enjoy a comfortable lifestyle and still fulfill his obligation to support his three minor children.

For these reasons, the judgment of the trial court is affirmed. Appellant is to pay costs.

AFFIRMED.

      . Mrs. Pittman testified she had been told she would receive a raise after working for six months and again after working one year. She did not know how much of an increase the raise would bring.

      . Mrs. Pittman testified she attended Southeastern Louisiana University in secretarial science but did not graduate. She stated her typing skills were very weak but she was currently enrolled in a typing course.

      . She stated she earned approximately $1,000 in commission from a sale of a house in the summer of 1980. At the time of the hearing she had the listing on a house and could earn from $351 to $702 on the sale.

      . Art. 227. “Fathers and mothers, by the very act of marrying, contract together the obligation of supporting, maintaining, and educating their children.”


author: LABORDE, Judge.

text:
    Lawles J. BOURQUE, M.D., Plaintiff-Appellee, v. Ethel Aileen Dubois SCHROEDER, Executrix of the Estate of Pauline Marie Bonnet Dubois, Defendant-Appellant.
    No. 82-16.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1982.
    Rehearing Denied Aug. 30, 1982.

      DeBlieux & Hurder, J. D. DeBlieux, Baton Rouge, for defendant-appellant.
    Andrus & Preis, Edwin G. Preis, Jr., and Susan A. Daigle, Lafayette, for plaintiff-appellee.
    Before CULPEPPER, SWIFT and LA-BORDE, JJ.
   LABORDE, Judge.

Lawles J. Bourque, M.D. (Bourque), ap-pellee, filed suit against the estate of Pauline Marie Bonnet Dubois (Dubois), appellant, seeking to recover monies due for alleged medical treatment and services rendered to Mrs. Dubois during the final ten years of her life. The trial judge granted judgment in favor of Dr. Bourque for $6,200 dollars. Finding that the requirements of LSA-R.S. 13:3721 and 3722 were not satisfied in this case, we reverse and render judgment in favor of appellant dismissing Dr. Bourque’s claim.

Mrs. Dubois died January 18, 1980. Dr. Bourque filed a suit on June 13, 1980, asking for $24,000 for professional treatment rendered Mrs. Dubois for approximately ten years preceeding her death. He also prayed for a $10,000 attorney’s fee for prosecution and collection of this open account claim.

By answer filed on June 23, 1980, the testamentary executrix denied any indebtedness to Dr. Bourque. On April 2, 1981, the executrix filed an exception of prescription on that portion of the alleged claim for services rendered prior to three years before the filing of the suit. The exception was maintained by the trial judge and he limited the claim to three years preceeding June 13, 1980, the date Dr. Bourque filed his petition. Then, on the sole testimony of Dr. Bourque, the trial judge granted judgment in his favor in the amount of $6,200.

On appeal, appellant claims principally that the trial judge erred in holding the requirements of LSA-R.S. 13:3721 and 3722 do not apply to this case.

We agree with appellant’s contention. The statutes do apply. We recently addressed this issue in Savoie v. Estate of Rogers, 394 So.2d 704 (La.App. 3rd Cir. 1981), reversed on other grounds, 410 So.2d 683 (La.1982), wherein we stated:

“The purpose of the deadman’s statute is to protect the assets of a deceased person from stale and unfounded claims that the deceased might have refuted. Landry v. Weber, 345 So.2d 11 (La.1977); Taylor v. Bocock, 276 So.2d 347 (La.App. 2nd Cir. 1973). It attempts to accomplish this purpose in cases where parol evidence is admissible by requiring the testimony of at least one person, who does not share the claimant’s interest in the outcome. Clearly the interests of the plaintiffs in this case are the same. Under the evidence that they presented, their claims are indistinguishable. Thus, neither can supply the kind of objective proof that the statute requires.”

Certainly Dr. Bourque did not supply the kind of objective proof required by the statute. After Dubois’ death he submitted bills in the amounts of $6,000, $7,200 and $24,-000. None of the bills was itemized. At trial the only testimony offered was that of Dr. Bourque. Clearly Dr. Bourque did not satisfy the burden of proof required by the statute; i.e., “at least one credible witness other than the claimant, and other corroborating circumstances.” LSA-R.S. 13:3722.

Dr. Bourque, in brief, recognizes that the proof of his claim is lacking and asks us to remand the case to the district court to hear additional corroborating evidence. At oral argument he claimed that he can produce the testimony of a person who attended Mrs. Dubois during her last illness. However, it is unclear and uncertain as to what proof, if any, can be provided. Dr. Bourque admits in deposition and at trial that he kept no records of any type concerning his treatment of Mrs. Dubois.

While we are mindful of LSA-C.C.P. art. 2164 which permits us wide discretion to remand a case where the record is not sufficient to enable us to pronounce definitely on the case or where the parties have failed to produce available evidence which might be material to a proper decision, we decline the invitation because Dr. Bourque had ample opportunity at trial to produce a credible witness and any evidence necessary to prove his case.

In view of the circumstances, a remand would be a vain and useless action; it would not serve the interest of justice; it would instead serve only to work an injustice upon the testamentary executrix by unnecessarily prolonging the administration of Mrs. Dubois’ succession and by entailing additional needless expenses.

Dr. Bourque was afforded an opportunity at trial to produce any legally admissable evidence in support of his claim. He failed to do so. We are doubtful that he could do so now. A remand would serve no useful purpose.

For these reasons, the judgment of the district court is reversed and it is now ordered, adjudged and decreed that plaintiff’s suit be dismissed at his cost.

REVERSED AND RENDERED.

      . LSA-R.S. 13:3721
      “Parol evidence shall not be received to prove any debt or liability of a deceased person against his succession representative, heirs, or legatees when no suit to enforce it has been brought against the deceased prior to his death, unless within one year of the death of the deceased:
      “(1) A suit to enforce the debt or liability is brought against the succession representative, heirs, or legatees of the deceased;
      “(2) The debt or liability is acknowledged by the succession representative as provided in Article 3242 of the Code of Civil Procedure, or by his placing it on a tableau of distribution, or petitioning for authority to pay it;
      “(3) The claimant has opposed a petition for authority to pay debts, or a tableau of distribution, filed by the succession representative, on the ground that it did not include the debt or liability in question; or
      “(4) The claimant has submitted to the succession representative a formal proof of his claim against the succession, as provided in Article 3245 of the Code of Civil Procedure.
      “The provisions of this section cannot be waived impliedly through the failure of a litigant to object to the admission of evidence which is inadmissible thereunder.”
      LSA-R.S. 13:3722
      “When parol evidence is admissible under the provisions of R.S. 13:3721 the debt or liability of the deceased must be proved by the testimony of at least one creditable witness other than the claimant, and other corroborating circumstances.”


text:
    Ray PITTS and Rena Keown Pitts, Plaintiffs-Appellants, v. Raymond MASON, Defendant-Appellee.
    No. 82-24.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1982.
    Rehearing Denied Aug. 30, 1982.

      Reeves & Owens, Jack F. Owens, Jr., Harrisonburg, for defendant-appellant-ap-pellee.
    Norman Magee, Ferriday, for plaintiffs-appellee-appellants.
    Before CULPEPPER, SWIFT and LA-BORDE, JJ.
   LABORDE, Judge.

Plaintiffs, Ray and Rena Pitts, (Pitts) appeal the amount of a deficiency judgment granted them by the lower court against defendant, Raymond Mason. The crucial issue on appeal is whether the trial court erred by failing to deduct from the bid price at the sheriff’s sale a sum sufficient to pay off a superior mortgage before calculating the deficiency amount owed by Mason. We hold that it did and we reverse and remand.

Ray and Rena Pitts, husband and wife, owned a tract of land in LaSalle Parish. They mortgaged this tract in order to secure an indebtedness to John Hancock Insurance Company in the original amount of $400,000. Thereafter, on January 6, 1979, Pitts sold the tract to Raymond Mason for $660,475.50. As security for the sale, Pitts reserved a vendor’s lien and privilege on the property which was inferior to the John Hancock mortgage. Mason defaulted and Pitts, after obtaining a judgment against Mason, caused the tract to be sold at a sheriff’s sale in order to satisfy this judgment. At the sheriff’s sale, Pitts, the seizing creditors, purchased the tract with their bid of $610,000. Mason filed the present rule to show cause why the judgment against him should not be cancelled as satisfied in full. The lower court, in written reasons, refused to cancel the judgment and instead awarded Ray and Rena Pitts a deficiency judgment totaling $38,573.95. In awarding this deficiency, the lower court refused to subtract the amount of the superior John Hancock mortgage before calculating the amount of the deficiency due. Plaintiffs appealed on this basis.

A deficiency judgment is a judgment in favor of a creditor for the difference between the amount derived from the judicial sale held in order to satisfy the indebtedness. Kolb, Deficiency Judgments in Louisiana (Comment), 49 Tul.L.Rev. 1094 (1975). It is plaintiffs’ contention that the “amount derived from the judicial sale” is the amount after deducting the superior liens on the property. We agree.

Plaintiffs’ right to have the amount of the superior John Hancock mortgage deducted from their bid at the sheriff’s sale is expressly provided for in Book IV of the Louisiana Code of Civil Procedure. Fortier v. Fortier, 200 So.2d 901 (La.App. 4th Cir. 1967), writs ref., 251 La. 59, 202 So.2d 661, gave these provisions practical application as follows:

“In judicial sales in Louisiana the sheriff shall announce that the property is to be sold for cash subject to any mortgage, lien or privilege thereon superior to that of the seizing creditor. C.C.P. 2335. If there is a mortgage, lien or privilege on the property superior to that of the seizing creditor, the purchaser shall pay to the sheriff only that portion of the sale price which exceeds the amount of the superior mortgage, lien or privilege. C.C.P. art. 2374. Said articles accord with articles 679 and 683 of the late Code of Practice. Our law requires that at a judicial sale the purchaser shall bid for the full value of the property with the right to retain in his hands out of said price sufficient money to pay mortgages, liens and privileges superior to that of the seizing creditor. * * * At any rate, . .. it becomes incumbent upon the adjudica-tee to pay up superior mortgages, liens and privileges in order to perfect an unencumbered title to the property.”

In a judicial sale, the property is sold subject to any real charge with which it is burdened, superior to the mortgage of the seizing creditor. LSA-C.C.P. art. 2372. Because John Hancock’s mortgage was superior to plaintiffs’ vendor’s lien, that amount should have been deducted from the bid price prior to calculating the deficiency amount due.

It is of no moment that the superi- or claim had not yet matured on the date of the sheriff’s sale because upon purchasing the property, the purchaser at a sheriff’s sale becomes responsible for any superior claims as they mature. LeDoux v. Morgan, 24 La.Ann. 249 (Orleans App.1872); LSA C.C.P. art. 2378. Thus, upon purchasing the tract, plaintiffs became responsible for the superior John Hancock mortgage. Nor does it alter application of these articles when a seizing creditor is the purchaser at the sheriff’s sale because Code of Civil Procedure Article 2339 expressly provides that a seizing creditor may bid at the sale.

For these reasons, we agree with plaintiffs that prior to calculating the deficiency amount due them, the lower court should have subtracted from their bid the amount of the superior John Hancock mortgage. The record being incomplete in this area, we remand with instructions to the lower court to ascertain the amount of this superi- or mortgage in order that it may be subtracted from the bid price received at the sheriff’s sale. The remaining amount will then be subtracted from the amount of the judgment owed by Mason and a deficiency judgment granted for the difference.

A final issue is whether plaintiffs, as they allege, may deduct from their bid price ad valorem taxes paid by them on the property. A determination of this issue is one which should have been alleged and proved by plaintiffs prior to reaching the judgment that they are now seeking to execute. For this reason, this issue lacks merit.

For the reasons assigned, the judgment appealed is reversed and set aside. This case is remanded to the district court for a determination by the trial judge of the amount of the superior mortgage so that he can subtract it from the bid and then calculate the deficiency judgment in accordance with law and the views expressed herein. Costs of this appeal are taxed against Mason; all other costs are to await further proceedings.

REVERSED AND REMANDED.

      . Mason also appealed, however his appeal was dismissed because he failed to file a brief within 60 days from the date the transcript of appeal was lodged as required by the rules of this court.

      . In their judgment against Mason, Mason was ordered to pay Ray and Rena Pitts $405,262.20 with 9% per annum interest thereon from January 6, 1979, along with attorney’s fees of 25% upon the total amount of principal and interest due plus all costs of the proceedings. Mason was further ordered to pay $34,198.10 with interest thereon at 10% from February 20, 1980, until paid. Mason was allowed a $7,500 credit applied against the interest.


author: GULOTTA, Judge.

text:
    Linda M. DI CARLO v. STATE FARM MUTUAL INSURANCE COMPANY and Arnold Frichter, Individually and as the Administrator of the Estate of his Minor Son, James Frichter.
    No. 13048.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 7, 1982.
    Edwin R. Fleischmann, Jr., Jerald N. An-dry & Gilbert V. Andry, III, New Orleans, for plaintiff-appellant.
    Porteous, Toledano, Hainkel & Johnson, C. Gordon Johnson, Jr., Roma Caramanica, New Orleans, for defendant-appellee.
    Before GULOTTA, GARRISON and BARRY, JJ.
   GULOTTA, Judge.

In this intersectional accident case, the sole issue is whether or not the defendant-driver made a “protected” left turn on a green arrow across the path of plaintiff’s vehicle approaching from the opposite direction. From the dismissal of her suit after trial, plaintiff appeals. We affirm.

The accident occurred at the intersection of La. Hwy. 46 (St. Bernard Highway) and Rowley Blvd. in Arabi, Louisiana.

According to plaintiff’s version, which was corroborated by the testimony of a following motorist, plaintiff was favored with a green light and defendant simply failed to yield the right-of-way. Defendant, on the other hand, testified that he had executed a “protected” left turn from the eastbound “turning lane” of St. Bernard Hwy. while favored with a green arrow, and plaintiff had simply “run” the red light. Defendant’s version was corroborated by the testimony of a bystander who had observed the green arrow while defendant was occupying the turning lane and had noticed cars stopped in the westbound, right-hand lane of St. Bernard.

Appealing, plaintiff contends the trial judge committed manifest error in failing to give greater weight to the testimony of plaintiff’s disinterested witness who was in a better position to observe the traffic light as he drove toward it on the highway than defendant’s bystander who was in a parking lot and had no particular reason to be alert to the light before the accident. Plaintiff also points out that the bystander’s testimony that he had seen defendant’s car stopped in the left-turning lane for two or three minutes contradicted defendant’s testimony that he had proceeded through the left-turning lane without stopping.

This case is one of credibility. Each litigant’s version is supported by an independent witness.

Having reviewed the record, we cannot conclude the trial court’s finding in defendant’s favor was “clearly wrong” or “manifestly erroneous”. See Canter v. Koehring Company, 283 So.2d 716 (La. 1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Although we, as the appellate court, may disagree with the trial court’s conclusions and feel that our own evaluations and inferences are as reasonable, where there is a conflict in testimony, we must give great weight to the factual conclusions of the trial court and cannot disturb its reasonable evaluations and inferences. See Canter v. Koehring, supra; Dyson v. Gulf Modular Corp., 338 So.2d 1385 (La.1976).

Furthermore, although there was an inconsistency between the defendant’s testimony and that of the bystanding witness concerning the length of time defendant was in the left turning lane, it apparently was not of sufficient magnitude in the trial judge’s mind to be fatal to defendant’s version of the accident. We cannot say the inconsistency destroys the credibility of defendant’s evidence. See Gonzalez v. Lockette, 410 So.2d 265 (La.App. 4th Cir. 1982).

Accordingly, we affirm the judgment.

AFFIRMED.


author: GARRISON, Judge.

text:
    Ronald P. ULFERS v. DEPARTMENT OF POLICE.
    No. 13008.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 7, 1982.

      Wayne Douglas Mancuso, New Orleans, for plaintiff-appellant.
    Salvador Anzelmo, City Atty., Charles J. Willoughby, Asst. City Atty., New Orleans, for defendant-appellee.
    Before GULOTTA, GARRISON and BARRY, JJ.
   GARRISON, Judge.

This is an appeal from a determination of the City Civil Service Commission of the City of New Orleans, affirming the dismissal of Ronald Paul Ulfers, Sr. from the New Orleans Police Department. From that determination, which we reverse, Ronald Ul-fers appeals.

The determination of the Commission finds Ulfers in violation of Articles 26, 27 and 52 of the “Rules for the Administration of the Department of Police,” which read as follows:

“ARTICLE 26. PERSONAL CONDUCT
“The conduct of each member of the Department, both on duty and off duty, shall be such that it will not cause adverse public criticism of the Department or any of its members. Further, the proper conduct of each member of the Department shall be governed by what is acceptable to a reasonable and prudent person.
“ARTICLE 27. ADHERENCE TO LAW
“A member shall act in accord with the constitutions, statutes, ordinances, administrative regulations, and the official interpretations thereof, of the United States, the State of Louisiana, and the City of New Orleans, but when in another jurisdiction shall obey applicable law. Ignorance of the law or its interpretations shall not be regarded as valid defense as against the requirements of this Article.
“ARTICLE 52. INSTRUCTIONS FROM AUTHORITATIVE SOURCE “a. A member shall promptly and fully abide by or execute instructions issuing from any authoritative source.
“b. If the instructions are reasonably believed to conflict with these Rules or other instructions, this fact shall respectfully be made known to the issuing authority. If the issuing authority elects to insist upon the execution of the instructions, then only he shall be held responsible should such conflict materialize.”

Ulfers was further charged with violation of Rule IX, Section 1 of the “Rules of the Civil Service Commission of the City of New Orleans”, which reads as follows:

“1.1 When any regular employee in the classified service is unable or unwilling to perform the duties of his position in a satisfactory manner or has committed any act to the prejudice of the service, or has omitted to perform any act that it was his duty to perform, or otherwise has become subject to corrective action, the appointing authority shall take action warranted by the circumstances to maintain the standards of effective service. The action may extend to: (1) removal from the service, (2) retirement, (3) reduction in pay to the next lower rate in the range for the class, (4) demotion to any position of a lower class that the employee is deemed by the appointing authority and the Director to be competent to fill, (5) suspension without pay not exceeding in the aggregate one hundred twenty (120) days in any period of twelve (12) consecutive calendar months, (6) fine, (7) reprimand, or other less drastic measure of discipline which the appointing authority considers proper.”

On October 7, 1979, Kathy Spann Ulfers, the wife of Ronald Ulfers, was murdered as she entered the family home. Homicide detectives Martin Venezia and Sam Gebbia were assigned to the investigation. In conjunction therewith Superintendent Parsons instructed Venezia and Gebbia to include Ulfers as a suspect. For a number of years, Ulfers had been purchasing, restoring and reselling old and wrecked cars. On October 7, when Venezia and Gebbia were investigating the crime scene, they noticed numerous auto parts on the premises. Sometime thereafter, according to the officers, Parsons instructed Gebbia and Venezia to get a warrant for stolen auto parts in order to put “pressure” on Ulfers. As a result, a number of parts were seized.

Ulfers testified that he had purchased the auto parts from a man who approached him at a local service station where Ulfer’s Mercedes was garaged. The station owner, Philip Barber, testified that the man asked him who owned the wrecked Mercedes and whether or not the owner would be interested in selling it. Barber testified that he directed the man to Ulfers but did not participate in the rest of the conversation. Ulfers testified that the man offered to buy the Mercedes and when Ulfers refused, the man then offered to sell Mercedes parts to Ulfers. Arrangements were made to bring the parts to Ulfers’ house.

When the seller arrived, Kenneth Joseph Watson, Ulfers’ gardener, testified that Ul-fers wrote down all the numbers on the auto parts and said that he was going to check the numbers on the police computer to see if they were stolen. Watson testified that he helped Ulfers look for the identification numbers. Ulfers testified that he checked the numbers on the police computer and none appeared stolen, so he returned to his home and purchased the parts. Detective Gebbia testified that after the warrant was served, he checked the numbers on the police computer and the parts were not listed as stolen. The parts were in fact stolen, but did not appear on the computer for some time. The warrant was later quashed as invalid and Ulfers was not convicted on the charge of receiving stolen property. Sometime thereafter, the assailant of Kathy Spann Ulfers was apprehended and confessed to the murder.

Both Homicide Detective Gebbia and Detective Venezia testified that there was no evidence implicating Ulfers in his wife’s murder and that the warrant was a “calculated ploy.”

The issue before us is whether a police officer can be dismissed because he was charged with a crime for the commission of which he was not convicted, where the charge was a “calculated ploy” in order to place pressure on the officer in conjunction with an ongoing investigation unrelated to the charge at issue.

The Department of Police argues that Ulfers should have known that the parts were stolen. We disagree. We find that Ulfers took reasonable precautions and was justified in his reliance on the computer information. We find that Ulfers’ conduct was reasonable and prudent in light of the circumstances and as such cannot be grounds for dismissal under Article 26. Likewise, we find no failure of Ronald Ul-fers to adhere to law under Article 27. In fact, the “official interpretations thereof” have resulted in the lack of a conviction against him and the rise of a presumption of innocence. We fail to see what Article 52 has to do with this case. Ronald Ulfers cooperated with the homicide detectives and has not failed to obey an order from an authoritative source. Lastly, in examining Rule IX, Section 1 of the Rules of the City Civil Service Commission, the only section which we find may have any applicability, is the proviso which states “has committed any act to the prejudice of the service.” We find that Ulfers has not committed any act prejudicing the service. The situation is one created by the Department in furtherance of its own ends and Ulfers has not prejudiced the service by hindering or compromising the Department in the effectiveness of its operations. If anyone has been prejudiced, it is Ronald Ulfers.

We find, as John Dupre, the Assistant Commander of the Internal Affairs Division testified, that the warrant at issue was a “ploy” and that Ronald Ulfers was caught in “the chain of events.”

For the reasons discussed, the determination below is reversed and we render judgment as follows:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of plaintiff Ronald Paul Ulfers and against the Department of the Police of the City of New Orleans, granting to plaintiff reinstatement to his position when he was discharged with full back pay, sick leave and all other emoluments of office as of November 27, 1979, legal interest from the date of suspension until paid and all costs of these proceedings.

REVERSED AND RENDERED.


author: BARRY, Judge.

text:
    Jules THOMAS, Jr. v. George W. LEA and American Fidelity Fire Insurance Co.
    No. 13020.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 7, 1982.

      Richard M. Goldman, New Orleans, for defendants-appellants.
    Anderson Council, Kenner, for plaintiff-appellee.
    Before GULOTTA, GARRISON and BARRY, JJ.
   BARRY, Judge.

This tort suit involves a pedestrian-automobile accident which occurred at the intersection of O’Keefe and Gravier streets in downtown New Orleans. Plaintiff was carrying his grandchild and his wife and child were walking behind when he attempted to cross the street and was struck by defendant’s vehicle. A jury awarded plaintiff $3,000.00 general damages, $4,600.00 lost wages and $110.00 medical expenses. Defendants appeal urging plaintiff was contributorily negligent and failed to meet his burden of proof.

Plaintiff stated he was crossing the street in the walking lane of O’Keefe and defendant’s vehicle was stopped “right at the walking place ... too far in the street”. He said traffic was stopped for a red light and defendant was racing his motor and “took off” against the red light. The bumper struck plaintiff, knocked him to the street, after which the vehicle continued for half a block until the defendant was flagged down by a parking lot attendant. Plaintiff said defendant went back to the scene and explained he thought his car was in neutral when he attempted to race the motor, but the car was in drive. Defendant presented no evidence to contradict plaintiff’s version of the accident.

Defendant argues plaintiff was contributorily negligent by proceeding across the street knowing defendant was racing his motor with the vehicle partially in the crosswalk. We disagree. There is nothing to contradict plaintiff’s statement that defendant crossed against a red light and this negligence was the cause of plaintiff’s injuries. A motorist has a burden to use more than ordinary care to see what is ahead when approaching a pedestrian crosswalk. A pedestrian’s right of way in a crosswalk is provided by statute. See LSA-R.S. 32:212(A). Under this factual situation contributory negligence, even if it existed, (which it doesn’t) cannot bar plaintiff’s recovery. Baumgartner v. State Farm Mutual Automobile Insurance Company, 356 So.2d 400 (La.1978).

Plaintiff was the only witness regarding his injuries and claim for damages. He testified the defendant drove him to Charity Hospital immediately after the accident. His complaints included a severe bruise of the left foot and contusions of the left leg and thigh. Three days later he saw his personal physician who took x-rays, prescribed pain pills and a muscle relaxant, and advised use of heat treatment at home. Three months after the accident his leg was still swollen with pain, he could not drive, and was unable to walk. Plaintiff referred to a medical bill for $110.00 which listed seven office visits over an eight month period.

Regarding lost wages, plaintiff testified he worked for $5.02 per hour at a sugar refinery in Houma and missed approximately 23 weeks of work. He stated the time he missed covered the harvest season when he worked 16 hours a day, 7 days a week, and earned overtime in excess of 40 hours per week. On cross examination he was asked if he had any medical proof of his inability to work and replied he had given a letter to his supervisor but did not retain a copy. Once again defendants assert this testimony without corroborating evidence is insufficient to establish lost wages.

A claim for loss of earnings need not be proven with mathematical certainty, but only by such proof as reasonably establishes the claim. A claimant’s testimony, standing alone, may be sufficient if accepted as truthful. “The standard applied in such cases is the ‘more-probable-than-not’ standard, and even in cases where the proof consists primarily of the claimant’s uncorroborated testimony, this proof is entitled to great weight where the claimant’s testimony is uncontradicted.” Ainsworth v. State Farm Automobile Insurance Company, 399 So.2d 1242 (La.App. 3rd Cir. 1981). at pp. 1244, 1245.

Defendants also argue plaintiff’s petition did not specify or pray for lost wages; however, there was no timely objection to this testimony when it was presented during trial and the pleadings were therefore enlarged. After the jury rendered its verdict, defendant objected to the testimony on lost wages, but the objection was properly overruled as obviously untimely.

During trial defendants objected when plaintiff was asked the amount of his medical bill and objected when the bill was introduced into evidence. Plaintiff used the bill to refresh his memory on dates when he received treatment, but plaintiff’s identification of the bill without further evidence to establish its authenticity was clearly wrong. Therefore, $110.00 awarded for medical expenses was improperly included in the jury award.

Defendants argue plaintiff did not establish his case by a preponderance of evidence and his uncorroborated version of the facts was insufficient. However, since only plaintiff testified without contradiction there is no question he met the preponderance standard if his testimony is creditable. Whether his testimony was sufficient to establish defendant’s negligence and prove damages was a question for the jury’s consideration.

We are satisfied plaintiff proved by a preponderance, though minimally, each necessary element of his case, i.e., fault, causation, and damages. We feel plaintiff proved with sufficiency, taking the evidence as a whole, his injuries and resultant damages were more probable than not and conclude the jury’s verdict was reasonable.

The award of $110.00 for medical expenses is reversed and set aside; the balance of the district court judgment amounting to $7,600.00 is affirmed with defendants to pay all costs of appeal.

REVERSED IN PART; AFFIRMED IN PART.

      . Defendants also complain because the lower court refused to give four requested jury charges, but we find no abuse of discretion.


author: WARD, Judge.

text:
    Juanita T. Odendahl, wife of/and Paul E. ODENDAHL v. Kyle C. WILD, Kyle C. Wild, Jr. and United Services Automobile Association.
    No. 13013.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 7, 1982.

      Stephen B. Murray, Murray, Murray, Ellis, Braden & Landry, New Orleans, for plaintiffs-appellants.
    Timothy G. Schafer, Schafer & Schafer, New Orleans, for defendants-appellees.
    Before BYRNES, WARD and WILLIAMS, JJ.
   WARD, Judge.

This suit arises from an automobile accident that occurred in December 1978, when Kyle C. Wild, Jr., while driving his father’s automobile, struck the automobile driven by Juanita Odendahl. Juanita and Paul Oden-dahl filed suit to recover property damage to the community automobile and medical expenses, and Juanita Odendahl sued to recover damages for her personal injuries. Trial was before a jury, and after hearing the evidence, the jury rendered its verdict in favor of Paul and Juanita Odendahl. In response to special interrogatories, the jury itemized damages and awarded $1,029.00 for damage to the automobile and $900.00 for medical expenses. The jury did not award damages to Mrs. Odendahl for personal injuries or for pain and suffering. After trial Mrs. Odendahl asked the Trial Judge to add damages for her personal injuries to the jury’s award or to order a new jury trial limited to the issue of compensation for those injuries. The Trial Judge denied her request and rendered his judgment, based on the jury verdict, only for the property damages and medical expenses. Although the judgment was against Kyle C. Wild, Jr. and his father, Kyle C. Wild, and his father’s insurer, United Services Automobile Association, they have not appealed, but Mrs. Odendahl has.

The issue in this appeal is whether the Trial Judge erred when he denied her motion for additur or a new trial. Mrs. Oden-dahl argues that since the jury awarded compensation for medical expenses, it should have awarded damages for her personal injuries, pain, and suffering which brought about the medical expenses.

It is error of law to award special damages for medical expenses and nothing for personal injury, pain and suffering. When the trier of fact, either judge or jury, itemizes damages for medical expenses, as in this case, and omits damages for personal injury, pain and suffering, the error of law is apparent. Roy v. Schneider, 367 So.2d 1314 (La.App. 4th Cir. 1979); Robinson v. General Motors Corporation, 328 So.2d 751 (La.App. 4th Cir. 1976). In this case, the jury erred when it did not award damages for personal injury, and the Trial Judge, therefore, erred when he did not grant ad-ditur of damages to the jury award.

Judicial economy requires this court to make an award for those damages. Woods v. Cumis Insurance Society, Inc., 364 So.2d 213 (La.App. 4th Cir. 1978). The scope of appellate court authority is limited, however, and an appellate court may amend a district court judgment by awarding only those damages which would be reasonably within the discretion of the lower court. Reck v. Stevens, 373 So.2d 498 (La.1979).

In considering damages to be awarded, we have reviewed Mrs. Odendahl’s medical history, and a brief description of that history is necessary. Mrs. Odendahl injured her back in an automobile accident that occurred in 1974. Dr. James Williams, an orthopedic surgeon, treated her for those injuries. In 1974, his diagnosis was that Mrs. Odendahl had a pre-existing degenerative spinal bone structure, an osteoarthritic condition, and an acute injury to that area.

In December 1978, immediately after this accident, Mrs. Odendahl experienced pain, stiffness and muscle spasm in her lower back. She went to the emergency room at Mercy Hospital where she was examined, x-rays were taken, and she was given medication. Shortly thereafter she was referred by her treating physician to an orthopedic surgeon, Dr. Chris DiGrado. In April 1980, at the request of defense counsel, Dr. James Williams again examined her in preparation for trial.

During trial Mrs. Odendahl testified and described her injuries and her continuous pain and the changes in her normal activities. Dr. DiGrado testified and described his diagnosis: an acute lumbar sprain superimposed on pre-existing spondylolisthesis, a degenerative arthritic condition, and a disease of the disc between the vertebrae. His opinion was that the present accident had aggravated her pre-existing spondylolis-thesis, and further, that Mrs. Odendahl would continue to have back pain even after the muscle spasms from the sprain resolved. On cross-examination, however, he testified that the continuing back pain could result from the degenerative spondy-lolisthesis and that he could not distinguish which condition would produce her continuing residual back pain.

Dr. Williams testified that when he examined Mrs. Odendahl after the first accident, he diagnosed a degenferative disease in the lumbar spine and an acute sprain from that accident. After treatment Mrs. Oden-dahl had recovered from the acute sprain, but she continued to complain of pain in her back. At that time, his opinion was that she would never been free of pain. When he examined her in April 1980, she complained of intermittent low back pain. There were, however, no signs of acute injury, and his opinion was that her symptoms and complaints were consistent with her chronic back condition and not caused by the accident. He based his opinion on x-rays that showed a degenerative disc disease resulting from the normal progression of her back condition.

Since Mrs. Odendahl has proven personal injury, a lower back sprain that caused pain and suffering for four months, we award $4,000.00 damages for those injuries, which we believe to be the lowest award within the reasonable discretion of the District Court, considering the particular injuries and their effects upon this particular person. Reck v. Stevens, supra.

For these reasons, we amend the Trial Court judgment to include that amount. Otherwise, we affirm and assess cost of both trial and appeal to defendants.

AMENDED AND AFFIRMED.


author: DOUCET, Judge.

text:
    SOUTHWEST LOUISIANA ELECTRIC MEMBERSHIP CORP., Plaintiff-Applicant, v. Durwood R. DUCK, Defendant-Respondent.
    No. 82-273.
    Court of Appeal of Louisiana, Third Circuit.
    July 15, 1982.
    Rehearing Denied Aug. 30, 1982.

      Davidson, Meaux, Sonnier & Roy, James J. Davidson, III, Lafayette, for plaintiff-relator.
    Toxie L. Bush, Abbeville, for defendant-respondent.
    Before GUIDRY, STOKER and DOU-CET, JJ.
   DOUCET, Judge.

The plaintiff-relator, Southwest Louisiana Electric Membership Corporation, seeks supervisory writs from an order of the Fifteenth Judicial District Court, the Honorable John Rixie Mouton presiding, ordering plaintiff-relator to produce a plat indicating the precise location of all structures to be placed on a servitude sought to be expropriated.

The plaintiff-relator in these consolidated cases petitioned the Fifteenth Judicial District Court for a servitude for the transmission of electricity over and across properties belonging to the defendants, including the right to enter upon and erect, construct, extend, maintain, inspect, replace, remove and relocate within said servitude three lines of wood, metal, or other type of structures, with the right to replace one structure with another type at any time with conductors, wires, cross-arms, guy wires, conduits, stubs and the other usual fixtures for transmission of electricity, together with all foundations, anchors and braces to support same, along with all rights of ingress and egress for the full and complete use, occupation and enjoyment of the servitude. Named as defendants were Durwood Duck, Rebecca Ann Duck, Robert Benjamin Duck and Dora Louise Duck Bertrand.

The object of the suits, which have been consolidated, is to obtain from the defendants a servitude for the transmission of electricity in order to connect SLEMCO’s existing transmission line, located 2.4 miles south of Erath, to the Erath Power Center which is located 3 miles west of SLEMCO’s existing transmission line. In making this connection the transmission line will pass through and across the defendant’s property-

Trial of the expropriations were originally fixed for March 29, 1982, but were continued upon a motion by the defendants. Defendants in their motion alleged that the relator had failed to produce for inspection a copy of the plans and specifications for the construction of the electric lines and supporting piers which the plaintiff plans to place upon defendant’s property. The respondent further asserted that the damages to defendants’ properties cannot properly be assessed without knowing the size, location and placement of the supporting piers on the defendants’ respective properties.

Defendant subsequently filed a motion to produce requesting that the relator, SLEM-CO, be ordered to produce the construction plans and specifications relating to the proposed construction across defendants’ property, showing thereon the exact size, type, number, position, placement and other spe- ciñe information pertaining to said construction for inspection and copying by the defendants. SLEMCO objected to defendants’ motion to produce for the following reasons:

a) The location of such structures is not properly at issue in an expropriation proceeding;
b) The drawings and plats which the trial judge has ordered that plaintiff produce do not exist at this time;
c) In an expropriation proceeding it is the location of the route to be expropriated which must be considered by the trial court and not the location of every object to be laid upon that route;
d) It would be unduly burdensome to require an expropriating authority to predetermine the precise location of every object which will be placed upon a servitude route over the lifetime of the servitude, and the plaintiff, Southwest Louisiana Electric Membership Corporation is not required by Louisiana Expropriation Law to make such a determination;
e) The defendant in this matter will be compensated with the market value of the route expropriated regardless of the location of each individual object to be placed upon servitude.

A hearing on the motion to produce was held on April 26, 1982 culminating with the order of which applicant complains which requires plaintiff-relator to furnish mover “plats and drawings within ten (10) days indicating the exact location of any and all structures to be placed on the servitude sought to be expropriated.”

Thereafter, plaintiff sought to invoke this court’s supervisory jurisdiction.

Plaintiff-relator contends that the trial court erred in ordering the production of plats showing the exact location of the structures that the relator plans to construct on the property expropriated.

LSA R.S. 19:2(7) grants the power to expropriate needed property and states in pertinent part the following:

“(7) Any domestic or foreign corporation created for the purpose of generating, transmitting and distributing electricity and steam for power, lighting, heating, or other such uses. The generating plants, buildings, transmission lines, stations, and substations expropriated or for which property was expropriated shall be so located, constructed, operated, and maintained as not to be dangerous to persons or property nor interfere with the use of the wires of other wire using companies or, more than is necessary, with the convenience of the landowners; ...” (Emphasis ours)

The trial court construed the provision above quoted to require that the structures to be constructed within the right of way be located so as not to interfere more than is necessary with the convenience of the landowner. In our opinion, this construction is erroneous. In our view, the statute above quoted insofar as it requires that “. . . transmission lines ... be so located ... as not to . . . interfere . . . more than is necessary, with the convenience of the landowners ... ” has reference to the route to be expropriated rather than to the location of each and every improvement to be placed within the servitude area during the life of the servitude.

It was established at trial of the motion to produce that SLEMCO is not in a position to determine or furnish precise locations of structures to be erected within the servitude area until such time as the right of way or servitude for the entire route has been secured and construction is commenced. The record reflects in this connection that the location of the structures on one landowner’s property will determine the location of the structures on the adjoining landowners’ properties, in that the structures are spaced 600' apart. A party to a law suit may not be ordered to produce evidence which such party does not possess.

In opposition to the writ applied for herein respondent cites Louisiana Power and Light Co. v. Caldwell, 360 So.2d 848 (La. 1978). However our reading of the case reveals the court’s concern to be consideration of the landowner’s convenience in route selection, or location of the right of way, not the location of specific improvements erected thereupon. A contrary rule would require resort to court whenever the slightest repair, removal or relocation of the poles, etc. is necessitated by a change in soil conditions, damage to facilities, technological improvements, or unexpected developments in related expropriation proceedings pertaining to adjacent servitudes. Our research has revealed no case on point requiring the specific disclosures requested.

We conclude that relator is not required to furnish plats and drawings indicating the exact location of structures to be placed within the servitude area. Accordingly, the order of the trial court dated April 29,1982 to such effect is reversed and set aside and the respondent’s motion to produce such plats or drawings is dismissed.

Writ granted and made peremptory:

The order of the trial court ordering plaintiff-relator to produce a plat indicating the location of all structures to be placed upon a servitude to be expropriated is vacated. The case is hereby remanded to the district court for further proceedings according to law.

      . The record reflects that defendants have been furnished with a survey showing the location of the servitude for the transmission line as it traverses their properties; the exact width of the servitude; and, a schematic drawing reflecting the nature, size etc. of the structures to be placed within the servitude area. At oral argument counsel for relator indicated that defendants have been furnished with information as to the distance between structures, i.e., 600', and that not more than one of such structures will be placed within the servitude area as it traverses defendants’ properties.