author: EDWARDS, Judge. WATKINS and SHORTESS, JJ.,

text:
    Wanda KAHL, et al. v. Chester C. BAUDOIN, et al.
    No. 82-CA-1001.
    Court of Appeal of Louisiana, First Circuit.
    June 28, 1983.
    Rehearing Denied Sept. 7, 1983.
    Writ Granted Nov. 18,1983.

      Gerald J. Block, Lafayette, for plaintiffs.
    Nicholas F. Larocca, Jr., Lippman, Mahfouz, Martin, Larocca, Stansbury & Antin, Morgan City, for Chester C. Baudoin.
    Henry Salassi, Jr., Frank S. Craig, III, Baton Rouge, for State of Louisiana.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   EDWARDS, Judge.

This is a suit in workmen’s compensation. Plaintiff, individually and as natural tutrix of her two minor children, seeks to obtain death benefits under the Louisiana Workmen’s Compensation Act for the death of her husband, John Kahl, Sr.

Kahl, a former St. Mary Parish deputy sheriff, was fatally shot in the line of duty on June 4, 1980. Plaintiff brought suit against Chester C. Baudoin, Sheriff of St. Mary Parish, for workmen’s compensation benefits. Subsequently, the State of Louisiana was also named as a defendant.

The trial court ruled that Kahl was an employee, not a public official, for workmen’s compensation purposes under R.S. 23:1034, entitling plaintiff to recover death benefits. Furthermore, the court held that the State, not Sheriff Baudoin, was Kahl’s employer and thus liable to plaintiff for the benefits.

On appeal, the State contends that the trial court erred in: (1) finding Kahl a covered employee under R.S. 23:1034; (2) designating the State as the employer of decedent; and (3) overruling its exceptions of prescription and improper venue. Plaintiff, on appeal, seeks penalties and attorney fees under R.S. 22:658 for the alleged arbitrary and capricious refusal of the State and sheriff to pay death benefits.

APPLICABILITY OF WORKMEN’S COMPENSATION TO DEPUTY SHERIFFS

R.S. 23:1034 deals specifically with public employees and sets out those who are to be covered by workmen’s compensation. It provides as follows:

“Public employees; exclusiveness of remedies
“A. The provisions of this Chapter shall apply to every person in the service of the state or a political subdivision thereof, or of any incorporated public board or commission authorized to hold property and to sue and be sued, under any appointment or contract of hire, express or implied, oral or written, except an official of the state or a political subdivision thereof or of any such incorporated public board or commission; and for such employee and employer the payment of compensation according to and under the terms, conditions, and provisions set out in this Chapter shall be exclusive, compulsory, and obligatory; provided that one employed by a contractor who has contracted with the state or other political subdivision, or incorporated public board or commission through its proper representative, shall not be considered an employee of the state, or other political subdivision, or incorporated public board or commission; further, provided that members of the police department, or municipal employees performing police services for any municipality who are not elected officials shall be covered by this Chapter and shall be eligible for compensation; and provided further that criminal deputy sheriffs for the parish of Orleans shall be covered by this Chapter and shall be eligible for compensation as provided herein.
“B. Except as expressly and specifically provided to the contrary in Subsection A hereof, the officials excepted from coverage under the provisions of this Chapter, in Subsection A of this Section, include all public officers as defined by R.S. 42:1. In this regard, sheriffs’ deputies are, under R.S. 42:1, 33:1433 and 33:9001 et seq., appointed public officers and officials of their respective political subdivisions, the parish law enforcement districts.
“C. Notwithstanding the provisions of Subsection A hereof, any political subdivision may, in its own discretion and by using its own funds available for same, provide workmen’s compensation coverage for its officials, in addition to having to provide such coverage for its employees. (Emphasis added.)
Amended by Acts 1977, No. 528, § 1; Acts 1981, Ex.Sess., No. 25, § 1, eff. Nov. 19, 1981.”

Paragraphs (B) and (C) were added by Act 25 of the 1981 Extraordinary Legislative Session. Paragraph (B) clearly designates deputy sheriffs (other than those of Orleans Parish) as public officials who are excluded from workmen’s compensation coverage. Under (C), such deputy sheriffs can be covered under workmen’s compensation if the “political subdivision,” in its discretion, elects to provide coverage from its own funds.

The trial court ruled that paragraphs (B) and (C), passed after decedent’s death, were not retroactive and thus not applicable to the instant facts. We disagree. The title to Act 25 expressly stated that its purpose is “to interpret and clarify by definition the ‘officials’ excepted” from workmen’s compensation coverage. Such laws enacted by the legislature for purpose of interpreting or clarifying previous laws are given retroactive effect. Dripps v. Dripps, 366 So.2d 544 (La.1978). Moreover, the Third Circuit in Brodnax v. Cappel, 425 So.2d 232 (La.App. 3rd Cir.1982), addressed this same issue and held Act 25 retroactive because of the legislature’s clear, expressed intent to clarify and interpret the meaning of “officials.”

We conclude, then, that Act 25 is retroactive and applies to the instant facts. Under its provisions, deputy sheriffs are excluded from workmen’s compensation coverage as public officials. The trial court’s judgment classifying decedent as an employee and the state as employer is reversed and set aside. Plaintiff is not entitled to workmen’s compensation death benefits.

In light of our reversal of the trial court’s judgment, the remaining contentions of the state and plaintiff need not be addressed.

DECREE

Accordingly, for the above-expressed reasons, the judgment of the trial court is reversed and plaintiff’s suit dismissed. Costs of this appeal are to be borne equally by all parties.

REVERSED.

WATKINS and SHORTESS, JJ.,

concurring.

This case presents the latest in a long series of cases and statutory amendments that have arrived at or dictated different results as to whether or not deputy sheriffs were afforded coverage by the Workmen’s Compensation Act.

The applicable provision of the Compensation Act applying to public employees is La.R.S. 23:1034.

Subsections B and C were added to the statute by Act No. 25 of 1981, effective November, 1981.

Under the statute as it stood before the 1981 amendment, it was first held that a deputy sheriff was not ah “employee” of the sheriff, but rather “an official of the state or a political subdivision thereof” and hence not covered by workmen’s compensation. Richardson v. Heyd, In and for the Parish of Orleans, 278 So.2d 167 (La.Apip. 4th Cir.1973); Johnson v. Northern Assurance Co. of America, 193 So.2d 920 (La.App. 3rd Cir.1967); Mitchell v. James, 182 So.2d 144 (La.App. 3rd Cir.1966).

In Foster v. Hampton, 352 So.2d 197 (La. 1977), the Louisiana Supreme Court stated, in dicta, in a tort action, that a deputy sheriff was an employee of the State, and his tortious conduct rendered the State liable under the doctrine of respondeat superi- or. Foster v. Hampton, carried to its logical conclusion, had obvious implications with regard to the affording of workmen’s compensation coverage to sheriffs’ deputies, which this court, in subsequent cases presented to us for review, properly noted.

In Rodrigue v. Breaux, 388 So.2d 60 (La. App. 1st Cir.1980), we held, in a suit brought by a deputy sheriff against a sheriff for workmen’s compensation, that the State of Louisiana was an indispensable party to the proceeding, and remanded the case to permit the plaintiff to amend his petition. In Phillips v. State, Through Dept. of Transp., 400 So.2d 1091 (La.App. 1st Cir.1981), writ denied 401 So.2d 1195 (La.1981), and writ not considered, 403 So.2d 70 (La.1981), we held that the sole remedy of a deputy sheriff who was injured when the motor vehicle in which he was riding struck a pothole, lay under the Workmen’s Compensation Act, not in tort, as the deputy sheriff was an employee of the State for all purposes, not merely tort-re-spondeat superior purposes.

Meanwhile, in an apparent attempt to legislatively overrule Foster v. Hampton, supra, the Louisiana Legislature by Act No. 318 of 1978, amended La.R.S. 33:1433 and added La.R.S. 42:1441, the latter providing that the State was not liable for damages caused by, inter alia, a sheriff or his employees. The 1978 act was held by the Louisiana Supreme Court in Jenkins v. Jefferson Parish Sheriffs Office, 402 So.2d 669 (La.1981) to have the effect of making the sheriff liable in his official capacity for torts of a deputy sheriff. Dicta in the case indicated the State, which was not a party in Jenkins, was no longer liable for the tortious acts of a deputy sheriff.

Here the matter stood until the State Legislature enacted Act No. 25 of 1981, which as we have stated, added Subsections B and C to La.R.S. 23:1034. Subsection B provided that sheriffs’ deputies are appointed public officers and officials of their respective political subdivisions. Subsection C provided that a political subdivision may in its own discretion with its own funds provide workmen’s compensation coverage. The record shows that in the present case no workmen’s compensation coverage was obtained by Sheriff Baudoin or the St. Mary Parish Sheriff’s Office.

Act No. 25 took effect on November 19, 1981. The death of Deputy Kahl occurred on June 4, 1980. Thus, for Act No. 25 to apply to the present case, it must be given retroactive effect. The Third Circuit in circumstances similar to those in the present case accorded Act No. 25 retroactive effect in Brodnax v. Cappel, 425 So.2d 232 (La.App. 3rd Cir.1982). The court noted that the title to Act No. 25 had characterized the Act as interpretive of La.R.S. 23:1034 in its providing that public officials were not covered by workmen’s compensation. In a civilian jurisdiction, interpretive statutes are given retroactive effect. See Gulf Oil Corporation v. State Mineral Board, 317 So.2d 576 (La.1974); Brodnax, supra.

We are compelled to disagree with our brethren of the Third Circuit in their conclusion that Act No. 25 is truly interpretive legislation. As can be gathered from the discussion above, a degree of uncertainty existed as to whether sheriff’s deputies were public officials or employees, or, if they were employees, as to whether the State or the sheriff was their employer. Act No. 25 obviously was enacted with the purpose of putting these questions to rest. Act No. 25 goes against two decisions of this circuit, Rodrigue, supra, and Phillips, supra. It thus changes the law, creating certainty where there was doubt, and establishing a policy contrary to that expressed by one of the five circuits of this State, and the Supreme Court of Louisiana in Foster v. Hampton, supra. Thus, regardless of the manner in which the State Legislature may have characterized Act No. 25, that Act is, as a matter of fact and law, substantive legislation, not interpretive legislation. Substantive legislation may not be applied retroactively, nor may vested rights, such as accrue in an action for personal injury (or workmen’s compensation) be divested by retrospective application of state statutes. La.C.C. art. 8; Johnson v. Fournet, 387 So.2d 1336 (La.App. 1st Cir.1980). Act No. 25 would divest vested rights accruing to Mrs. Kahl which had arisen long before the dates of its enactment and of its taking effect. Thus, it does not apply to the present claim, and Mrs. Kahl would be entitled to death benefits from the State under the workmen’s compensation statute, were it not for the fact that the claim had prescribed.

La.R.S. 23:1209 governs the prescriptive periods for actions for workmen’s compensation,. and reads as follows:

“In case of personal injury (including death resulting therefrom) all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter or unless within one year after the accident proceedings have been begun as provided in Parts III and IY of this Chapter. Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in cases of partial disability this limitation shall not take effect until three years from the time of making the last payment. Also, where the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until the expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.”

The applicable prescriptive period in the present case is one year from the date of death, June 4,1980. The State of Louisiana was named as a party defendant by amended petition filed on October 30, 1981, which the trial court ordered filed, on the face of the same pleading, on November 2, 1981. Thus, plaintiffs’ claim has clearly prescribed. Sheriff Baudoin was not liable in workmen’s compensation at the time of Kahl’s death, as the prior discussion demonstrates. Thus, he was not a debtor in soli-do. As the State of Louisiana was the sole entity responsible for workmen’s compensation in the event of death or injury to a deputy sheriff, it was necessary that it be named a party defendant within the one-year prescriptive period. It was not. Plaintiffs’ claim had therefore clearly prescribed.

We respectfully concur for the reasons given above.

      . In this case, Sheriff Baudoin had no workmen’s compensation insurance on his deputy sheriffs at the time of decedent’s death.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Verlin L. REYNOLDS.
    No. 82-KW-1116.
    Court of Appeal of Louisiana, First Circuit.
    June 28, 1983.
    Concurring Opinion July 12, 1983.
    Rehearing Denied Sept. 7, 1983.

      Ossie B. Brown, Baton Rouge, by Brett L. Grayson, Asst. Dist. Atty., for plaintiff.
    James A. Wood, Baton Rouge, for defendant.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   EDWARDS, Judge.

Defendant, Verlin Reynolds, was charged with negligent injuring under LSA-R.S. 14:39, following his involvement in a traffic accident. After a bench trial, defendant was found guilty as charged. Defendant’s motion for a new trial, which alleged that the verdict was contrary to law and evidence, was denied by the trial court. Defendant was sentenced to serve six months in the parish prison and to pay all costs of the prosecution. The prison portion of the sentence was suspended and defendant was placed on supervised probation for two years with the special conditions that he make restitution for all damages suffered in the incident and that he submit himself for evaluation and treatment at a substance abuse center.

Defendant applied to this court for writs, alleging six assignments of error. A writ of certiorari was issued to review the conviction and sentence. After review of the record, we affirm defendant’s conviction, but vacate his sentence and remand for resentencing.

FACTS

On the night of January 22, 1982, at approximately 10:30 p.m., Reynolds was driving his Ford Bronco west on Old Hammond Highway in East Baton Rouge Parish. Old Hammond Highway is an undivided, two-lane highway. At the intersection of Old Hammond Highway and O’Neal Lane, Reynolds attempted a left-hand turn. Reynolds made his turn directly into the path of an eastbound vehicle driven by Gary Nugent. The right front portion of Reynolds’ truck collided with the left front of Nugent’s automobile. Reynolds’ vehicle was spun counterclockwise and landed in a ditch on the north side of Old Hammond Highway. Nugent’s vehicle continued east approximately 45 feet and landed in a ditch on the south side of Old Hammond Highway. Reynolds, Nugent and the two passengers in Nugent’s automobile were injured.

Louisiana State Police Trooper Larry Carpenter investigated the accident. He observed skid marks in the eastbound lane of Old Hammond Highway which he attributed to the Nugent vehicle. Carpenter also observed dirt and debris at a spot in Nu-gent’s lane which he denoted as the point of collision. When Carpenter spoke with Reynolds at the accident scene, he noticed a smell of alcohol. Following treatment at the hospital, Reynolds accompanied Carpenter to the State Police station to take an intoximeter test. That test, taken approximately four hours after the accident, revealed that defendant had a blood alcohol content of 0.056 percent.

ASSIGNMENTS OF ERROR NOS. 1 AND 3

By these assignments of error, defendant argues that the verdict is contrary to the law and evidence and that the court erred in its interpretation of the evidence.

In State v. Hoffer, 420 So.2d 1090, 1092 (La.1982), the Louisiana Supreme Court set forth the standard of review applicable in this type of situation:

“Our standard of review in cases where a conviction is challenged based on insufficiency of the evidence is mandated by Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). There the United States Supreme Court determined that, to properly balance the roles of the trier of fact and the reviewing court, the relevant question is ‘... whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt .... ’ 443 U.S. at 319, 99 S.Ct. at 2789.” (Footnote omitted.)

Negligent injuring is defined by LSA-R.S. 14:39 as “the inflicting of any injury upon the person of another by criminal negligence.” LSA-R.S. 14:12 defines “criminal negligence” as follows:

“Criminal negligence exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.”

In State v. Jones, 298 So.2d 774, 776 (La. 1974), the Louisiana Supreme Court held:

“Under these standards it is clear that proof of ordinary negligence does not constitute proof of criminal negligence. The State is required to show more than a mere deviation from the standard of ordinary care.”

Nolan Scallan was the only occupant of the Nugent vehicle who could recall the events of the accident. According to Scal-lan, Nugent was proceeding at a lawful rate of speed within his lane of travel at the time of the accident. Scallan testified that he saw Reynolds’ vehicle at a distance and that it gradually began to veer over into Nugent’s lane. He stated that Nugent locked up his brakes and swerved to the right, but was unable to avoid the collision.

Based upon his observations, Trooper Carpenter testified that the point of collision occurred in Nugent’s lane of travel. Trooper Carpenter testified that after the accident, Reynolds smelled of alcohol, but that he was agreeable and coherent. As noted above, the results of the intoximeter test indicated that Reynolds had 0.056 percent alcohol in his blood. Reynolds testified that he was on his way home from work and that he had “two or three” beers before he began driving that night. He remembered giving a left-turn signal in order to turn at O’Neal Lane. The next thing he knew, he woke up in the ditch.' Reynolds did not remember seeing the oncoming Nugent vehicle.

The negligent injuring statute has been interpreted to permit the trier of fact to draw a permissible inference of criminal negligence from a violation of a statute or ordinance if the circumstances of the violation so justified. State v. Lollar, 389 So.2d 1315 (La.1980). In the instant case, it is apparent that defendant violated the law with regard to proper execution of a left-hand turn. Our review of the evidence presented convinces us that any rational trier of fact could have reasonably found that the defendant was guilty of more than a mere deviation from the ordinary standard of care in the operation of his vehicle and that this gross deviation resulted in the serious injuries sustained by the occupants of the Nugent vehicle.

These assignments of error lack merit.

ASSIGNMENT OF ERROR NO. 2

By this assignment of error, defendant argues that the trial court erred in allowing the introduction of evidence relative to defendant’s state of intoxication, specifically the results of the intoximeter test. Defendant contends that the requirements set forth for the introduction of such test results in State v. Gregory, 403 So.2d 1225 (La.1981), were not met.

Defense counsel correctly notes that an objection was made to the admission into evidence of the results of the intoximeter test. What he fails to point out, however, is that defense counsel (Mr. Riley) withdrew this objection in the following exchange:

“MR. RILEY: Your Honor, at this point I am going to object to — uh—the test results — uh—I don’t think they have shown yet that he complied with all the requirements before giving the test— uh — such as time limits for the determination of a valid test.
“MR. DIAL: Your Honor, I am not offering the test at this point to establish a presumption which would be the case if this were a trial for DWI. I am merely trying to establish that the test was given properly. Now, I don’t think asking him all the rules and regulations — uh—like you normally would to establish the presumption. All I want to do is to have the results before the court as other evidence — uh—nothing more.
“THE COURT: Mr. Riley, any further argument?
“MR. RILEY: I have no objection.
“THE COURT: So ordered.
“MR. DIAL: I am going to offer that as State thirteen.”

An objection not contemporaneously raised in the lower court cannot be raised on appeal. State v. Lane, 414 So.2d 1223 (La.1982); State v. Baylis, 388 So.2d 713 (La.1980); LSA-C.Cr.P. 841.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 5

Defendant contends that this case should be dismissed because trial of this matter constituted double jeopardy.

Defendant was originally cited by Trooper Carpenter for improper left turn. Defendant alleges that this charge was dismissed by the District Attorney’s office when defendant appeared in court on the date set for trial and that the current charge was then filed. Defendant relies upon the provisions of LSA-C.Cr.P. art. 576. Although defense counsel refers to “double jeopardy, he actually argues that the State was prohibited from instituting a more serious charge than that which was dismissed.

Initially, we note that the occurrences which defendant alleges are not documented in the record before us. Additionally, defendant has not followed the provisions of LSA-C.Cr.P. art. 593 with regard to the proper method for raising the plea of double jeopardy. However, assuming, arguen-do, that defendant’s claim was properly before this court, it would still be rejected.

LSA-C.Cr.P. 576 is not concerned with double jeopardy. Rather, it is directed toward extending the time limits for filing a new prosecution when an earlier prosecution, based upon the same facts, is dismissed. The offense with which defendant was charged occurred on January 22, 1982. The bill of information which charged the crime of negligent injuring was filed on April 14, 1982, well within the time limitations imposed by LSA-C.Cr.P. art. 572.

LSA-C.Cr.P. art. 592 provides as follows:

“When a defendant pleads not guilty, jeopardy begins when the first witness is sworn at the trial on the merits. When a defendant pleads guilty, jeopardy begins when a valid sentence is imposed.”

Defendant alleges that the first prosecution was dismissed on the day of his first court appearance. Under LSA-C. Cr.P. art. 592, jeopardy begins when the first witness is sworn in at the trial on the merits. The first prosecution never reached that stage and, therefore, no double jeopardy problem ever arose.

This assignment of error is totally devoid of merit.

ASSIGNMENTS OF ERROR NOS. 4 AND 6

By these assignments of error, defendant challenges his sentence and the terms of his probation. He contends that the sentence imposed was excessive and that LSA-C. Cr.P. art. 894, which allows the court to fix terms of probation, is unconstitutionally void and vague. Because of our conclusion that defendant’s sentence must be vacated, the full extent of these assignments of error will not be considered.

The trial court imposed the statutory maximum of six months in jail and sentenced defendant to pay the costs of prosecution. The jail portion of the sentence was suspended and defendant was placed on two years’ supervised probation. Additionally, as conditions of probation, the court ordered “that restitution be made for all the damages which were suffered in this incident,” and that defendant submit to evaluation and treatment at a substance abuse clinic.

LSA-C.Cr.P. art. 894.1 requires the trial judge to articulate the reasons for imposing sentence. • Such reasons are an essential aid to an appellate court when reviewing a sentence for excessiveness and abuse of discretion. State v. Dokes, 398 So.2d 1025 (La.1981); State v. Spencer, 374 So.2d 1195 (La.1979). The trial judge is required to state for the record both the considerations he has taken into account and the factual basis for the imposition of sentence, particularizing the sentence to the offender and the offense. State v. Dokes, supra; State v. Jackson, 360 So.2d 842 (La. 1978). The trial court need not articulate every aggravating and mitigating circumstance. However, the guidelines of LSA-C. Cr.P. art. 894.1 must be adequately considered. State v. Telsee, 404 So.2d 921 (La. 1981); State v. Jacobs, 383 So.2d 342 (La. 1980); State v. Vaughan, 377 So.2d 87 (La. 1979).

In the instant case, the transcript at sentencing reveals that the trial judge did not even attempt minimal compliance with LSA-C.Cr.P. art. 894.1. Not a single factor listed in article 894.1 was mentioned by the trial court, and no factual considerations were mentioned. We therefore conclude that defendant’s sentence should be vacated and the case remanded for resentencing in compliance with article 894.1 of the Code of Criminal Procedure.

DECREE

For the foregoing reasons, defendant’s conviction is affirmed and his sentence is vacated. This case is remanded to the trial court with instructions to comply with the mandates of Louisiana Code of Criminal Procedure article 894.1 before imposing sentence.

WATKINS, J., concurs and assigns reasons.

SHORTESS, J., concurs and will assign reasons.

WATKINS and SHORTESS, JJ.,

concurring.

We trust that this case will not be understood to stand for the proposition that a driver who makes an impermissible left turn resulting in an accident is guilty of criminal negligence if he has had a “few drinks”, and guilty only of ordinary negligence if he has not had any drinks. Each case must be judged on its facts.

      . Defendant contends that the results of the intoximeter test were improperly admitted. However, there is no error in the admission of the test results. See the discussion under assignment of error no. 2.

      . LSA-R.S. 32:122 provides:
      “The driver of a vehicle within an intersection intending to turn to the left shall yield the right of way to all vehicles approaching from the opposite direction which are within the intersection or so close thereto as to constitute an immediate hazard.”

      . LSA-C.Cr.P. art. 576 provides, in pertinent part, as follows:
      “When a criminal prosecution is timely instituted in a court of proper jurisdiction and the prosecution is dismissed by the district attorney with the defendant’s consent, or before the first witness is sworn at the trial on the merits, or the indictment is dismissed by a court for any error, defect, irregularity, or deficiency, a new prosecution for the same offense or for a lesser offense based on the same facts may be instituted within the time established by this Chapter or within six months from the date of dismissal, whichever is longer.”

      . We also note that it has been consistently held that a person may commit distinct crimes simultaneously or in immediate connection or in the same criminal episode and can be indicted, prosecuted and convicted for each offense without violating the principle of double jeopardy. See State v. Nichols, 337 So.2d 1074 (La.1976); State v. Leslie, 167 La. 967, 120 So. 614 (La.1929).

      . Although it is true that the jail portion of defendant’s sentence was suspended, he was given the maximum jail term and placed on supervised probation for the maximum period allowed by LSA-C.Cr.P. art. 894. In the event that his probation is revoked, defendant will have to serve that sentence. Additionally, as a condition of probation, defendant was ordered to make restitution for damages. Although the trial court did not fix a dollar amount for restitution, the presentence report estimates that medical bills for the three occupants of the other vehicle will exceed $30,000.00. Defendant is entitled to have the various components of his sentence reviewed for excessiveness. Reasons for sentencing, in compliance with article 894.1, are essential to that review.

      . On remand, the trial court’s attention is directed to LSA-C.Cr.P. art. 895.1. That article provides that payment of restitution may be made a condition of probation. However, the article specifies that the court may order the payment of “an amount of money.” The article clearly envisions that an actual dollar amount be fixed by the court itself.


author: WATKINS, Judge.

text:
    Bonita O. GUILLORY, et al. v. PETROLEUM HELICOPTERS, INC., et al.
    No. 83 CW 0267.
    Court of Appeal of Louisiana, First Circuit.
    June 28, 1983.
    Rehearing Denied Sept. 7, 1983.
    Writ Denied Nov. 18,1983.

      Anthony C. Dupre, Soileau & Coreil, Ville Platte, for plaintiff.
    Timothy S. O’Neill, Lugenbuhl, Larzelere & Ellerson, New Orleans, for defendant.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   WATKINS, Judge.

We granted writs in this case because we had reservations concerning the validity of an indemnity agreement binding one’s heirs or legatees to hold harmless the defendant in an action for personal injury should an action subsequently be brought for the injured party’s wrongful death.

John A. Guillory entered into the annexed Receipt, Release and Indemnification Agreement (hereinafter called “Indemnity Agreement”) for personal injury resulting from a helicopter accident. Thereafter, following Guillory’s death, Bonita Guillory, his widow, on her own behalf and on behalf of Guillory’s minor son, David James Guillory, and John R. Guillory, Helena Y. Guillory, and Donna A. Guillory, Guillory’s major children, filed an action against Petroleum Helicopters, Inc. (PHI), American Home Assurance Company (American), and John Duso for Guillory’s allegedly wrongful death. Defendants PHI and American reconvened, on the basis of the annexed indemnity agreement, contending that they were entitled to recover from plaintiffs, by virtue of the indemnity agreement, any sums recovered by plaintiffs from them in the principal action. Plaintiffs as defendants in reconvention then moved for summary judgment dismissing the reconven-tional demand. The trial court denied summary judgment, stating in oral Reasons for Judgment that the indemnity agreement was, in its opinion, fully enforceable and further stating that its ruling really had the effect of a summary judgment against the principal plaintiffs.

As we have stated, we have grave doubts that the indemnity agreement may be enforced against the plaintiffs in a wrongful death action. A wrongful death action is a separate cause of action that arises upon one’s death, and the right to bring such action may not be released by the injured party while he is still alive. Johnson v. Sundhery, 150 So. 299 (La.App. 1st Cir.1933). As the action for wrongful death is a separate cause of action, in our opinion there is considerable doubt that an indemnity agreement entered into by an injured party may serve to bind one’s survivors in a wrongful death action for a cause of action that by the nature of things cannot exist at the time the indemnity agreement is entered into.

However, we shall assume that such an indemnity agreement is enforceable for purposes of discussion. Still, the internal evidence contained within the indemnity agreement itself raises many serious questions concerning the mental competency of Guillory to enter into the agreement. These questions are far too substantial to permit the reconventional demand to be decided one way or the other on motion for summary judgment, but should be resolved by trial on the merits. The indemnity agreement states that Guillory suffered brain injury resulting, inter alia, in brain surgery, damage to personality, memory loss, confusion, outbursts of inappropriate anger, and disorientation. Appended to the indemnity agreement is an affidavit of Dr. Jay W. Seastrunk, a psychiatrist of New Orleans stating that Guillory is mentally competent to enter into the indemnity agreement. The presence of this affidavit in the record immediately gives rise to the almost inescapable conclusion that the testimony of Dr. Seastrunk must first be heard before any ruling can be made upon the validity or enforceability of the indemnity agreement. Indeed, because of the further questions concerning Guillory’s mental competency raised internally by the indemnity agreement itself, we feel it is inappropriate to rule upon the enforceability of the indemnity agreement without receiving testimony concerning Guillory’s mental competency at the time he entered into that agreement. This testimony should be taken and all other matters, we feel, should be resolved all at one time by a trial on the merits of both the principal and the recon-ventional demands.

We remand the case for trial on the merits concerning all matters, including the mental competency of Mr. Guillory. We set aside the ruling of the trial court that the indemnity agreement is enforceable, and direct that no decision be made on that matter until trial on the merits is held.

REMANDED FOR TRIAL ON THE MERITS.

APPENDIX

RECEIPT, RELEASE AND INDEMNIFICATION AGREEMENT

WHEREAS, on or about July 15, 1976, John A. Guillory was employed by Continental Oil Company and was en route from Continental Oil Company’s facility at Berwick, Louisiana to a fixed platform, located at Block 198, Ship Shoal Area, in the Gulf of Mexico, offshore of the State of Louisiana, aboard a Bell Model 206B helicopter, bearing Aircraft Registration Number N8176J, piloted by Edwin C. Duso, an employee of Petroleum Helicopters, Inc., and owned and operated by Petroleum Helicopters, Inc.; and,

WHEREAS, the said helicopter crashed on take-off and, as a result of said crash, John A. Guillory claims to have sustained personal injuries, including, but not limited to, injuries to his head, resulting in a fractured skull, injury to his brain, brain damage as a result of bruising and the removal of neurotic brain tissue, deja vu, jamais vu, loss of ability to have sexual relations, brain surgery, craniotomy, cranioplasty, change in personality, severe headaches, memory loss, confusion, disorientation, decreased frustration tolerance, withdrawal from outside social activities, outbursts of anger inappropriate and unrelated to the environmental stimulation, post-traumatic encephalopathy, temporal lobe epilepsy, and various other physical and mental disorders, resulting in total and permanent disability and making John A. Guillory incapable of gainful employment; and,

WHEREAS, as a result of the aforementioned injuries, John A. Guillory was treated by physicians of his own choosing, including: Dr. Jay W. Seastrunk, Dr. Ricardo Leoni, Dr. Lou Anna Fink, Dr. Charles Edward Moan, Dr. Dietrich Blumer, Dr. Earl Hackett, Dr. Irving Fosberg and Dr. Dorsey Dysart, and various practitioners at the Lafayette General Hospital; and,

WHEREAS, as a result of the aforementioned injuries, John A. Guillory has made claim against Petroleum Helicopters, Inc., Edwin C. Duso and their insurer, American Home Assurance Company, liability for which has been specifically denied and, in furtherance of his demand, instituted suit in the United States District Court for the Eastern District of Louisiana in the matter entitled: “John A. Guillory v. Edward C. Duso [sic],” being Civil Action No. 77-1368 on the docket of the said Court, and in the 24th Judicial District Court for the State of Louisiana, Parish of Jefferson, in the matter entitled “John A. Guillory v. Edwin C. Duso, Petroleum Helicopters, Inc., and ABC Insurance Company,” being Proceeding No. 200-987 on the docket of the said Court, seeking damages for his personal injuries as aforementioned, in which proceedings all defendants have filed responsive pleadings denying liability in the premises; and,

WHEREAS, upon trial in the United States District Court for the Eastern District of Louisiana, in Civil Action No. 77-1368, said action was dismissed for lack of jurisdiction, with the dismissal of said action being appealed to the United States Court of Appeal for the Fifth Circuit, said appeal bearing No. 79-3259 on the docket of said Court; and,

WHEREAS, the parties now wish to amicably compromise, settle, and adjust their differences on the basis hereinafter set forth;

NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS:

That for and in consideration of the sum of FIVE HUNDRED NINETY-FIVE THOUSAND AND NO/lOO ($595,000.00) DOLLARS, cash in hand, said sums being paid to John A. Guillory by or for the account of Petroleum Helicopters, Inc., Edwin C. Duso and American Home Assurance Company, receipt of said sums being hereby acknowledged and due acquittance and discharge therefore granted, the undersigned John A. Guillory does hereby release, remise and forever discharge Petroleum Helicopters, Inc., Edwin C. Duso, American Home Assurance Company, their agents, servants, employees, officers, directors, managers, stockholders, insurers, attorneys, assigns, successors, affiliates, subsidiaries and all parties for whom or with whom Petroleum Helicopters, Inc. was working on the aforementioned date, of and from any and all liability, claims, liens, remedies, debts, damages, injuries or causes of action of whatever nature or kind which he now has or which he, his heirs, assigns or legal representatives may hereafter acquire, including, but not limited to, all costs, expenses, past and future loss of earnings, past and future medical expenses, future living expenses, found, pain, suffering and disability arising out of or in any way connected, either directly or indirectly, with the accident and injuries aforementioned, including, without limitation, any rights or claims under L.S. A.-C.C. Article 2315, et seq., the federal statute or law known as the Jones Act (46 U.S.C. § 688, et seq.) or under the Longshoremen’s and Harbor Workers’ Compensation Act (33 U.S.C. § 901, et seq.) or under the general maritime law or for the negligence of Edwin C. Duso or any other employee of Petroleum Helicopters, Inc., or for the negligence of Petroleum Helicopters, Inc., or any other person or entity for whose actions Petroleum Helicopters, Inc. is responsible and, particularly, for any acts of independent negligence on the part of Petroleum Helicopters, Inc. or anyone for whom Petroleum Helicopters, Inc. is responsible, or under any compensation statute, state or federal, or in tort, civil or maritime, or under any contract or policy of insurance, whether at law, in equity or in admiralty, on account of or in any way connected, either directly or indirectly, with the injuries sustained as aforesaid, and whether the same be now known or hereafter discovered.

In further consideration of the aforesaid payments, John A. Guillory does hereby bind and obligate himself, his heirs, administrators and executors to hold harmless, defend and indemnify Petroleum Helicopters, Inc., Edwin C. Duso, American Home Assurance Company, their agents, servants, employees, officers, directors, managers, stockholders, insurers, attorneys, assigns, successors, affiliates, subsidiaries and all parties released hereinabove which or who might now be or hereinafter become liable for claims, suits, or demands arising out of or in any way connected with the injuries he sustained or the conduct of the litigation or the handling of the claims arising therefrom, and to each and all of them to hold them harmless, to defend them and to indemnify them, or any of them, for any loss or damage of any nature whatsoever sustained, or which may be sustained in the future, directly or indirectly, as a result of the injuries heretofore recited and the claims and litigation arising therefrom.

In further consideration of the aforesaid payments, John A. Guillory warrants that he has discussed his physical, medical and mental condition with physicians of his own choosing and, as evidenced by the affidavit of Dr. Jay Seastrunk attached hereto, he is fully aware of his mental, medical and physical condition and of the prognosis for the future. John A. Guillory further warrants that he is fully aware that his condition may grow worse than it is or seems to be, and that future surgery or other treatment may be required; that in executing this Receipt, Release and Indemnification Agreement, he is completely giving up and discharging any and all rights he has against the parties hereinabove set forth, and that he may never again proceed against such parties in the event his condition worsens in the future or that he requires new, or continued, treatment; and that he is desirous of accepting the sum of FIVE HUNDRED NINETY-FIVE THOUSAND AND NO/lOO ($595,000.00) DOLLARS in full settlement and discharge of all his legal rights arising out of or resulting from his injuries as aforesaid, and that he is of the opinion that this settlement is reasonable and proper under the circumstances.

In further consideration of the aforesaid payments, John A. Guillory agrees to and by execution of this Receipt, Release and Indemnification Agreement instructs his attorney, S. Michael Cashio, to dismiss, with prejudice, each party to bear its own respective costs, the matters entitled: “John A. Guillory v. Edward C. Duso [sic],” being No. 79-8259 on the docket of the United States Court of Appeals for the Fifth Circuit, and “John A. Guillory v. Edwin C. Duso, Petroleum Helicopters, Inc., and ABC Insurance Company,” being No. 200-987 on the docket of the 24th Judicial District Court for the State of Louisiana, Parish of Jefferson.

It is expressly understood and agreed that the payments aforementioned are made without any admission of liability on the part of any party, and are made purely by way of compromise and settlement in order to avoid the uncertainties of litigation.

IN WITNESS WHEREOF, this instrument has been executed in multiple originals in the presence of the undersigned witnesses, this 29th day of October, 1979.

CERTIFICATE

We, the undersigned witnesses, do hereby certify that the above and foregoing Receipt, Release and Indemnification Agreement was read by, and explained to, the said John A. Guillory, that it was executed in our presence and that the said claimant, when questioned, acknowledged verbally that he fully understood the contents of the instrument and, further, understood that it was a receipt and release of all his rights, past, present, or future, in connection with the above-described incidents and that he executed the same as his own free act in exchange for FIVE HUNDRED NINETY-FIVE THOUSAND AND NO/lOO ($595,-000.00) DOLLARS.


author: GULOTTA, Judge.

text:
    ELLWEST STEREO THEATRES, INC. v. Antoinette “Nettie” M. DAVILLA. Mrs. Antoinette Ybos DAVILLA v. ELLWEST STEREO THEATRES, INC. GIANI INVESTMENT CO., INC. v. Mrs. Antoinette Ybos DAVILLA.
    Nos. CA-0510—CA-0512.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 8, 1983.
    Rehearing Denied Sept. 22, 1983.

      E. John Litchfield, New Orleans, for defendant-appellant Antoinette “Nettie" M. Davilla.
    C. Ellis Henican, Jr., New Orleans, for plaintiff-appellee Giani Investment Co., Inc.
    Lee J. Klein, Durand, Mich., Ronald J. Rakosky, New Orleans, for plaintiff-appellant Ellwest Stereo Theatres, Inc.
    Before GULOTTA, GARRISON and KLEES, JJ.
   GULOTTA, Judge.

At issue in this case is whether a holder of a “right of first refusal” on lease offers of real property is entitled to possession and to damages for lost profits for deprivation of his right of occupancy. The lessor and the present tenant appeal from an adverse judgment. We affirm.

BACKGROUND

Mrs. Antoinette “Nettie” M. Davilla, owner, leased the ground floor of the premises at 333 Bourbon Street in New Orleans to Ellwest Stereo Theatres, Inc. through May 31, 1980. The upper floors of the building were leased to Lowell F. Jones under a separate written agreement through May 31, 1984. Jones had a “5-day right of first refusal” on any lease offers for the ground floor from any parties whatsoever, including the present tenant (Ell-west) on expiration of its lease.

On May 19, 1980, Davilla’s attorney instructed Ellwest to vacate the ground floor on expiration of its lease. In a May 22, 1980 letter, Davilla’s attorney then informed Jones that Davilla had negotiated a proposed lease of the ground floor to a new tenant, subject to Jones’ right of first refusal. He attached a copy of the proposed lease and asked Jones to advise him within “... five (5) days from the receipt of this letter” whether or not he desired to exercise his “right to execute the proposed lease in lieu of the prospective lessee.”

On receipt of this letter, Jones assigned his “right of first refusal” to a third party, Giani Investment Co., Inc. (Giani). On May 28, 1980, Giani’s attorney wrote to Davilla and her attorney informing them of the assignment and Giani’s exercise of the right of first refusal. He enclosed copies of the act of assignment and the proposed lease signed by Giani.

On May 30,1980, Ellwest sought to enjoin Davilla’s eviction, claiming an oral renewal of its lease. Davilla followed with a suit for eviction and these matters were consolidated. On June 20, 1980, the trial judge issued a preliminary injunction in favor of Ellwest. Based on conflicting testimony, the court concluded there was prima facie evidence of an oral lease sufficient for a preliminary injunction, but left the matter open for further hearing on the permanent injunction. The trial judge was unaware of Giani’s exercise of its right of first refusal, and heard no evidence concerning this aspect of the case.

In the interim, on October 6, 1980, Giani filed suit against Davilla for damages and sought an order to compel her to lease the ground floor to Giani. Davilla third partied Ellwest in this action, and all matters were consolidated.

Before trial, Davilla and Ellwest compromised. Davilla granted a written five year lease of the ground floor to Ellwest from September 1, 1981 until August 31, 1986. Ellwest executed a hold harmless agreement in favor of Davilla, indemnifying her from any liability to Giani in the pending suit.

After trial on June 1, 1982, the court concluded that no oral lease had been con-fected between Davilla and Ellwest before May 31, 1980. The trial court then rendered judgment on June 29,1982 cancelling the written lease of September 1, 1981 between Davilla and Ellwest, and ordering Ellwest to surrender the premises within 60 days. Davilla was ordered to execute a written lease to Giani to commence 30 days after Ellwest’s departure. The trial judge further awarded $25,000 in damages in favor of Giani and against Davilla for loss of profits for a 25 month period from June 1, 1980 until the date of judgment, plus $1,000 per month thereafter “until plaintiff acquires physical possession of the premises.” Judgment was further rendered in favor of Mrs. Davilla and against Ellwest on Davil-la’s third party demand for indemnity.

Appealing, Davilla and Ellwest contend that Giani failed to prove it had timely exercised the right of first refusal upon termination of Ellwest’s tenancy on May 31, 1980. Alternatively, appellants contend that Giani was not entitled to damages while the preliminary injunction against Ellwest’s eviction was pending and that Giani failed to establish damages with reasonable certainty. We disagree.

LIABILITY

We reject the contention that the evidence is insufficient to prove Giani’s proper exercise of right of first refusal.

In written reasons, the trial judge states “on May 28,1980 Jones assigned his lease to Giani and notified Davilla of the assignment”, and further notes that the parties had not disclosed “Giani’s assignment and right of first refusal” at the June 20, 1980 hearing on the preliminary injunction. Furthermore, the judgment orders Giani and Davilla “to execute a written lease, as proposed on May 28,1980 ” [emphasis ours], an obvious reference to the May 28 letter from Giani’s attorney to Davilla’s attorney, whereby Giani exercised its right of first refusal.

The record supports the trial court’s implicit conclusions. Kishore Motwani, vice president of Giani, testified that his company had obtained the right of first refusal from Jones on May 28, 1980, and exercised it on the same day, as evidenced by the letters from Giani’s attorney to Davilla and her attorney. Significantly, these letters, introduced as exhibits, enclosed copies of the act of assignment and Davilla’s proposed lease signed by Giani. The letter to Davilla’s attorney states in pertinent part:

“We submit herewith the lease which you proposed to Mr. Jones with your letter of May 22, 1980, which was received by him on May 27, with the substitution therein of our client’s name [Giani], as lessee, and, all other particulars being the same.... ” [emphasis ours]

Because Davilla’s attorney gave Jones five days from receipt-of his letter of May 22 to exercise the right of first refusal, Giani’s exercise of that right on May 28, one day after Jones’ receipt of the letter,'was timely. Furthermore, appellants offered no evidence to rebut Giani’s prima facie case. Under these circumstances, we cannot say the trial court erred.

QUANTUM

Turning now to appellant’s arguments concerning the damages, we find no error in the trial judge’s award of $1,000 per month to Giani for loss of business profits for deprivation of occupancy after May 31, 1980.

At the outset, we reject appellants’ contention that the trial court’s preliminary injunction of June 20, 1980 precludes an award of damages to Giani. According to appellants, Giani’s damages for lost profits from an inability to operate its business were the result of Davilla’s compliance with a legitímate court order enjoining her from evicting Ellwest.

The pendency of the eviction suit and the trial court’s issuance of the preliminary injunction do not affect Giani’s entitlement to damages. The mere fact that Ellwest remained in the premises until a final judgment of eviction does not mean that the injured third party, Giani, cannot receive damages relating back to the date of the breach, June 1,1980. On that date, Ellwest was obligated to vacate the premises upon expiration of its lease, and Davilla was obligated to honor Giani’s exercise of the right of first refusal. Giani’s damages accrued from the breach of those obligations, despite the pendency of the litigation and the injunction. See Ill. Cent. Gulf R. Co. v. Intern. Harvester, 405 So.2d 545 (La.App. 4th Cir.1981), writ denied 407 So.2d 731 (La.1981).

We likewise find no error in the amount of the award. In written reasons, the trial judge stated that he was “very aware and sensitive” to problems in awarding lost business profits, but that plaintiff’s evidence was “reasonable and non-speculative.” Based on the evidence, the judge concluded that the $1,000.00 per month figure is what Giani would have earned “conservatively ... after deduction of all expenses had it occupied the premises... . ” The record supports his conclusion.

Giani’s vice president, Kishore Motwani, testified that he had intended to operate a retail store on the premises, selling gift items, souvenirs and T-shirts—the same sort of merchandise sold at Giani’s chain of similar shops and those of Motwani’s other company, Motwani America, Inc., in the French Quarter. Motwani predicted that sales at the 333 Bourbon location would have been the same if not better than his other stores because of its proximity to the Royal Sonesta Hotel.

Giani’s expert accountant, James Groetsch, testified at length concerning the amount of damages. To project the loss in profit from deprivation of a retail store at 333 Bourbon, he averaged monthly sales and net profit figures for Giani and Mot-wani’s other Bourbon Street outlets during 1980-1982. The trial court’s award of $1,000.00 per month in lost profits is within the monthly range of the average net profit figures per store furnished by Groetsch, after taking out all operating expenses and bonuses and other compensation to officers.

Although Groetsch did not consider differences in square footage of sale space or competition the other outlets faced, he testified that there was some fair uniformity of sales and not a tremendous amount of variance among the comparables. His figures based on corporate records and tax returns were introduced into evidence. No expert testimony was offered to refute this evidence.

Our courts have held that although awards may not be based on speculation or conjecture, nonetheless, lost profits are recoverable when proven with reasonable certainty. Al Smith’s Plumbing, Etc. v. River Crest, Inc., 365 So.2d 1122 (La.App. 4th Cir.1978); Folds v. Red Arrow Towbar Sales, 378 So.2d 1054 (La.App. 2nd Cir. 1979).

Customary or foreseeable profit may be resorted to as a measure of damage where there is no direct evidence of the exact extent of loss. Al Smith’s Plumbing, Etc. v. River Crest, Inc., supra; Folds v. Red Arrow Towbar Sales, supra. Indeed, in Recherche, Inc. v. Jewelry Jungle, Inc., 377 So.2d 1329 (La.App. 1st Cir.1979), writ denied 379 So.2d 254 (La.1980), calculation of lost profits by plaintiff’s expert using sales figures from plaintiff’s four other stores as samples was described as “a most reasonable method of approximating damages not capable of being exactly calculated.” See also Southern Plastics, Etc. v. Dixie Brew ing Co., 399 So.2d 643 (La.App. 4th Cir. 1981), where the plaintiff’s promotional campaign in a prior year was used as a basis for comparison in calculating loss of profit in an unsuccessful later campaign.

The evidence considered, we cannot say that the trial court’s award of damages at the rate of $1,000.00 per month for loss of occupancy is speculative or unreasonable. The award in our case is consistent with the figures presented by plaintiff’s expert based on comparable sales of the same sort of merchandise at Giani’s other retail outlets on Bourbon Street.

Having so concluded, we affirm the judgment of the trial court.

AFFIRMED.

      . The pertinent clause of the rider-agreement provides as follows:
      8. Lessee is granted a 5-day right of first refusal on any purchase offers for the entire building (333 and 335 Bourbon), received during the primary or renewal terms of this lease. Subject lease to survive, in all its terms and conditions any sale of the property during its primary or renewal terms to a third party. Also, lessee is granted a 5-day right of first refusal on any lease offers for the ground floor only of subject building (333 Bourbon) received from others than the present tenant (theatre) during their existing lease, or any option renewal thereof; and/or from any parties whatsoever, including present tenant (theatre) after expiration of their renewal option.

      . Ellwest and Davilla state in brief that they do not appeal or contend as error the trial court’s finding that no oral lease was entered into between Ellwest and Davilla before May 31, 1980.

      . Giani’s other retail outlets on Bourbon Street are: Temptations at 420 Bourbon, Memories at 422 Bourbon, Image Makers at 504 Bourbon, Tee Shirt Factory at 611 Bourbon, Bayou Country at 611 Bourbon and High Times at 631 Bourbon. Similar stores operated by Motwani America, Inc. include: Linda’s Boutique and Mad Mad World at 231 Bourbon, Souvenir Junction at 504 Bourbon, Blow-up at 515 Bourbon, and Guru and Kamsutra at 611 Bourbon.


author: AUGUSTINE, Judge.

text:
    AMERICAN MACHINERY MOVERS, INC. v. CONTINENTAL CONTAINER SERVICE, INC.
    No. 13344.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 8, 1983.
    Rehearing Denied Sept. 22, 1983.

      Francipane, Regan & St. Peé, Philippi P. St. Peé, Metairie, for plaintiff-appellant.
    G. Edward Merritt, Terriberry, Carroll, Yancey & Farrell, New Orleans, for defendant-appellee.
    Before SCHOTT, AUGUSTINE and LO-BRANO, JJ.
   AUGUSTINE, Judge.

Pursuant to the terms of a written lease, American Machinery Movers, Inc. delivered a diesel forklift to the premises of Continental Container Services, Inc. on June 24, 1981. Although the machine was approximately ten years old, it was apparently in good condition as of the time Continental received it. About one month later, however, the forklift’s engine unexpectedly failed while in use at the lessee’s yard. At that time, Kenneth Hemer, a Continental shop foreman, was operating the machine when the diesel engine suddenly developed a severe “knock.” Fearing that something might be seriously wrong, Hemer immediately turned the motor off and conducted a brief inspection. His first concern was to determine how much oil was in the engine, and upon drawing the dipstick, Hemer observed that there was less than the required minimum. American was notified of the diesel’s failure and dispatched a mechanic, Gerald Thomas, to the Continental yard to determine the cause of the breakdown. On arriving there, Thomas discovered that a piston had penetrated the side of engine block, leaving a rather large hole in the motor. Upon further inspection, Thomas also noted that there was insufficient oil on the dipstick. When he later reported this fact to his superiors, Thomas explained to them that in his opinion, the damage to the engine was caused by operating the diesel without the required amount of oil. Invoking that provision of the lease which obligated Continental to maintain the proper level of oil in the diesel at all times, American made demand upon its lessee for the full cost of repairs ($7,579.47). Continental denied fault in connection with the damage to the forklift, and refused to reimburse American. This suit for damages followed.

American’s claim against Continental is based upon these legal principles:

First, when the lessee receives a leased thing in good order, he must return it in the same state. La.Civil Code Arts. 2719, 2720.

Second, when damage occurs to the leased object while in the possession of the lessee, it is presumed that the damage has resulted from the lessee’s negligence, and it is therefore his burden to exonerate himself from liability by proving his freedom from fault. Perroncel v. Judge Roy Bean’s Saloon, 405 So.2d 626 (La.App. 3rd Cir.1981); Ferguson v. Smill, 183 So. 600 (Ct.App. Orleans 1938). As applied to lease of movables, see Hislop Plumbing Company, Inc. v. Pogue-Atkins, Inc., 283 So.2d 808 (La.App. 2d Cir.1973); Fisher v. Hernandez, 11 Orleans App. 348 (1914). The reason for the presumption is that, having been in possession of the leased object, the lessee is more able than the lessor to explain the cause of damage or loss. Ferguson, supra; Fisher, supra.

Continental sought to defend this action by asserting that the machine failed simply because of its age, and not because it was operated at a low oil level, as plaintiff contends.

The trial judge held for the defendant, finding that “testimony from employees of Continental Container indicated that they periodically checked the oil and water pressure and that it appeared adequate”. Reasons for Judgment, page 3. The trial court also “placed great emphasis on the fact that the forklift itself was already ten years old and had a life expectancy of three to five years.” Reasons for Judgment, page 3. The opinion concluded: “The court did not find that plaintiff’s (sic) proved their case and accordingly ruled for the defendants”. Reasons for Judgment, page 3.

It is evident from the above that the trial court committed legal error in allocating the burden of proof to the plaintiff-lessor rather than to the defendant-lessee. In Ragas v. Argonaut Southwest Ins. Co., 388 So.2d 707, 708 (La.1980), it was held that “... where a finding of fact is interdicted because of some legal error implicit in the fact finding process and where the record is otherwise complete, the appellate court should, if it can, render judgment on the record.” Inasmuch as misallocation of the burden of proof interdicts the fact-finding process, we cannot attribute to the trial court’s ultimate findings the great deference to which they would be ordinarily entitled. Accordingly, our de novo review of the record is in order.

The immediate issue is whether the lessee, Continental, discharged its burden to prove that the damage to the diesel forklift was not caused by its negligence.

As previously stated, Continental defended this action on the ground that the forklift was ten years old and failed simply because of its age. To prove this fact, the defendant offered the testimony of Mr. William Little, Continental’s president, who testified that the average life expectancy of a machine such as American’s is, at most, five years. In support of this testimony, Continental introduced into evidence a letter (received by Little during the ordinary course of business) wherein it was stated that the average work life of American’s diesel is approximately 10,000 hours.

Acknowledging, for present purposes, the truth of Little’s testimony and the accuracy of the aforementioned letter, we do not consider the foregoing evidence to be sufficient to carry the defendant lessee’s burden of proof. First, Mr. Little’s testimony concerning the work-life of a machine such as American’s was based upon the performance of similar forklifts in Continental’s yard, where forklifts are in constant, heavy toil over the course of a forty-hour week. But according to Mr. Dennis Scandurro, American’s vice-president, the forklift in question was never subjected to such a rigorous work schedule. During the first seven years of the diesel’s “life”, it was not rented to anyone, but remained in the service of American Machinery Movers, where it was used primarily to unload other machines at various industrial locations around the city. Scandurro testified that such operations did not ordinarily require the forklift to be in operation for long periods of time, and consequently, the machine had relatively few hours on it as of the time it failed. Scandurro also stated that when American finally began renting the machine, it was generally leased on a “per lift” basis rather than by the month, and for that reason, was used for only a few hours per day. Little’s opinion concerning the average life expectancy of a diesel forklift of the type under consideration therefore provides no reliable yardstick by which to measure the actual condition of American’s machine, which was relatively unabused in comparison with those in Continental’s yard.

Moreover, even assuming that Little’s testimony allows the’ inference that American’s forklift had a life expectancy of only a few more years than those in Continental’s yard, and therefore, that American’s diesel had lived beyond its expected worklife, that fact merely warrants a finding that old age fatigue was among the many possible causes of breakdown. But having undertaken the burden to prove a specific cause of failure, it is not enough for defendant to prove the mere possibility of that cause. His burden, to be discharged, requires proof by a preponderance of the evidence. Such proof has not been given here, for considering that the fact sought to be proved — the cause of a diesel engine’s failure — is a rather technical one, we do not think it should suffice for “proof” to say merely that the machine was ten years old and had a life expectancy of five years. Such evidence, utterly lacking in specificity, completely fails to educate us as to how or why the diesel might have been damaged. Accordingly, we hold that the defendant has failed to dispel the presumption that the damage to American’s forklift was caused by Continental’s negligence.

With respect to the plaintiff’s specific allegation that Continental was negligent in not maintaining a proper level of oil in the diesel, and that this negligence caused the engine to fail, the defendant responds that it had maintained the forklift properly throughout the duration of the lease. The only witness who testified concerning this fact, however, was Kenneth Hemer, Continental’s shop foreman, whose entire testimony on this point was hearsay:

Mr. Hemer:
“I went to each individual driver and • asked him when he checked the oil last.? Mr. St. Pee:
“What did they say?”
Mr. Hemer:
“Mr. Jarreau did not have anything specific on that, and Mr. Mattix said that he hadn’t checked it. Mr. Glenn said that a few days before (the breakdown) Delaney checked it”.

This testimony cannot establish that the forklift was properly maintained, for even if Hemer’s statements are accepted as true, the only person to check the oil within the week prior to the breakdown was Delaney. According to Hemer, that inspection probably took place on a Monday, because “normally, on Mondays, everything is checked”. But Hemer also said that, according to Mr. Glenn, there was an interval of “a few days” between Delaney’s inspection and the July 27 breakdown. However, since July 27, 1981 was a Monday, Delaney could not have inspected the machine on that day. Therefore, if Delaney inspected the machine at all, it was probably on the previous Monday, a full week before the breakdown. Continental’s policy with regard to its own machines, however, required inspection of oil and water levels every two days. But in testimony and in briefs to this Court, Continental admits that this policy was not followed with respect to the leased forklift. We therefore conclude that Hemer’s testimony cannot carry the burden of relieving the defendant of its presumed negligence.

American, on the other hand, has affirmatively established that which it was under no burden to prove: first, that Continental did not maintain the machine with the frequency required by its own policy, and second, that at the time the engine failed, the oil was well below the required level. Finally, American’s mechanic testified that the engine failed because of low oil, and although his testimony concerning the causal link between low oil and the subsequent engine failure was not as thorough as it might have been, his ultimate conclusion was not only reasonable, but also unrefuted.

Accordingly, the judgment of the district court is reversed, and there is judgment herein in favor of American Machinery Movers, Inc. and against Continental Services, Inc. in the full sum of $7,579.47, plus legal interest from judicial demand and all costs.

REVERSED.

      .At trial, there was conflicting testimony concerning the amount of oil showing on the dipstick. Hemer stated (on behalf of Continental) that there was about Vs"; Thomas said there was none at all. There was further conflict as to the distance between the very bottom of the stick and the “minimum level” or “add oil” line. Hemer testified that the distance was ⅛". Thomas stated, however, that the “add oil” line was ⅜" from the bottom. In either case, the oil was beneath the minimum level by at least ⅛" on the dipstick. The “topping off” level was ⅞" from the bottom.

      . This provision of the lease was underscored in the original.

      . Plaintiff sued for $7,959.47 which includes bills of $380 incurred on July 21, 22 and 23 for repairs to the machine for problems unrelated to the breakdown on July 27.

      . Plaintiff did not object to Hemer’s testimony, however, and we therefore apply the traditional rule that such testimony may be given the probative value to which it is found by reason to be entitled. See Pugh, Work of the Appellate Courts, 1975-76 term, Evidence, 37 La.L. Rev. 611 (1877), citing Coleman v. Victor, 326 So.2d 344 (La.1976); and McCormick on Evidence, § 54, 2d Ed., (1972).

      . Inasmuch as Hemer’s information concerning Mr. Delaney’s maintenance of the oil level is second-hand, coming through Mr. Glenn, it is hearsay at best and would be double hearsay in the event that Mr. Glenn did not actually see Delaney check the oil, but merely reported to Hemer what Delaney had said.


author:
AUGUSTINE, Judge.
      LOBRANO, Judge,

text:
    Daryl R. BLACKWELL, Individually and as Natural Tutor of the Estate of His Minor Child, Darren Blackwell and Catherine Blackwell v. Frank S. OSER, M.D.
    No. CA-0486.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 8, 1983.
    Rehearing Denied Sept. 22, 1983.
    Harry T. Widmann, New Orleans, for plaintiffs-appellees.
    Lawrence L. McNamara, Richard B. Ea-son, II, New Orleans, for defendant-appellant.
    Before KLEES, AUGUSTINE and LO-BRANO, JJ.
   AUGUSTINE, Judge.

This case of alleged medical malpractice is before us on exceptions of no cause of action. Plaintiff Daryl R. Blackwell filed this suit for damages in his individual capacity and as the natural tutor of the estate of his minor child Darren Blackwell. Mrs. Catherine W. Blackwell is also joined as plaintiff in her individual capacity. The principal defendants in this action are Frank S. Oser, Jr., M.D. and Southern Baptist Hospital of New Orleans, together with their insurers.

The basis of this suit is the plaintiffs’ allegation that on February 19, 1977, Mrs. Blackwell’s obstetrician, Dr. Oser, negligently delivered the child Darren Blackwell, and that as a direct result of such negligence, Darren was born with serious birth defects consisting of, among other things, permanent brain damage.

The Blackwells seek compensation for the past and future medical expenses incurred as a result of the defendant’s alleged negligence. The plaintiffs also seek damages for their own mental anguish which, they assert, arises from the knowledge that their child will be mentally impaired for life. It is these latter elements of damage to which all defendants took formal exception, their opposition being that except in wrongful death cases, no person can recover damages for his own mental anguish caused by the knowledge of another person’s injury, unless the defendant has breached an independent duty owed directly to the plaintiff. The trial court overruled the exceptions to the mother’s claim, but sustained the excep-tion as to the father.

By this appeal Mr. Blackwell challenges the trial court’s adverse ruling. The defendants also appeal, contending that the lower court erred in recognizing a cause of action for Mrs. Blackwell’s mental anguish. Because we recognize that the weight of our jurisprudence supports the trial court’s decision, we affirm the judgment in all respects.

MR. BLACKWELL’S CAUSE OF ACTION

Since the decision of Black v. Carrollton Railroad Co., 10 La.Ann. 33 (1855), the well established law of this State has refused to allow recovery for mental anguish suffered as the result of injury to another person. See also, Brinkman v. St. Landry Cotton Oil Co.; 118 La. 835,43 So. 458 (La.1907); Kaufman v. Clark, 141 La. 316, 75 So. 65 (La. 1917).

The Black rule has been strictly followed by the cases decided in our lower circuit courts. See Honeycutt v. American General Insurance Co., 126 So.2d 789 (La.App. 1st Cir.1961); Laplace v. Minks, 174 So.2d 895 (La.App. 1st Cir.1965); writs ref. 176 So.2d 452 (La.1965); Duet v. Cheramie, 176 So.2d 667 (La.App. 1st Cir.1965); Dudley v. State Farm Mutual Automobile Ins. Co., 255 So.2d 462 (La.App. 1st Cir.1971); Newman v. City of Baton Rouge, 260 So.2d 52 (La. App. 1st Cir.1972); writs ref. 262 So.2d 43 (La.1972). Parker v. St. Paul Fire and Marine Ins. Co., 335 So.2d 725 (La.1976); Warr v. Kemp, 208 So.2d 570 (La.App. 3rd Cir. 1968); Bertrand v. State Farm Fire and Casualty, Co., 333 So.2d 322 (La.App. 3rd Cir.1976); Womack v. New Orleans Public Service Inc., 5 La.App. 71 (Orl.1926); Covey v. Marquette Casualty Co., 84 So.2d 217 (La.App.Orl.1956); Robertson v. Aetna Casualty and Surety Co., 232 So.2d 829 (La. App. 4th Cir.1970); Brauninger v. Ducote, 381 So.2d 1246 (La.App. 4th Cir.1979).

Louisiana law recognizes only two exceptions to the above principle. The first arises by the express provision of Louisiana’s wrongful death statute, La.Civil Code Art. 2315. The second exception concerns those instances where the claimant’s mental anguish is occasioned by the defendant’s breach of a primary and independent legal or contractual duty which is owed directly to the aggrieved plaintiff.

The latter exception thus imports a per se rule: no actor owes an independent duty to any person to avoid causing the mental anguish which often accompanies knowledge of another person’s injury; if any suit to recover such damages is to be viable at all, it must be as a “parasite” to the breach of some other duty owed directly to the plaintiff. The judicial declaration that no actor owes an independent duty to refrain from harming another’s psyche in the manner here alleged warrants some discussion. It has been noted that “duty” is often the mere shorthand expression of the law’s ultimate decision that some wrongs will enjoy a legal remedy, while others will not, and the difference resides with the court’s weighing the defendant’s act in light of several factors, principally, the foreseeability of harm to the plaintiff; the “ease of association” between the defendant’s conduct and the ensuing harm; the ease of administering the rule of conduct relied upon by the plaintiff to assert the defendant’s liability; the likelihood of deterring future wrongs of a similar nature; the comparison of the parties’ risk-bearing capacities; and the moral blame attached to the defendant by virtue of his injurious conduct. These are said to be the elements of duty. See Green, The Duty Problem in Negligence Gases, 28 Col. L.Rev. 1014, at 1034; 29 CoLL.Rev. 255 (1929); also Prosser, supra, at 327; Crowe, The Anatomy of a Tort, 22 Loy.L.Rev. 903 (1976). The weight to be given to the foregoing factors is thus critical to a court’s decision as to whether one owes a duty to refrain from causing the mental anguish which can result from injury to another person. Weighing these factors, the several reasons advanced in support of the Black rule are these:

In those jurisdictions which limit or altogether prohibit recovery for mental anguish occasioned by another’s injury, the most prevalent concern has long been that defendants — and the courts — will be subject to a flood of spurious and fraudulent claims if such an action were approved. Spade v. Lynn & Boston R.R. Co., 168 Mass. 285, 47 N.E. 88 (Mass.1897); Mitchell v. Rochester Ry., 151 N.Y. 107, 45 N.E. 354 (N.Y.1896); Waube v. Warrington, 216 Wis. 603, 258 N.W. 497 (Wis.1935); Victorian Ry. Comm. v. Coultas, 13 App.Cas. 222 (P.C.1888). It is also said that litigation of this sort presents an insoluble problem of proof, as to which the science of psychiatry is unable to give reliable assistance to determine either the existence of psychic harm or the defendant’s role in causing it, Holland v. St. Paul Mercury Ins. Co., supra; Amaya v. Home Ice, Fuel and Supply Co., 59 Cal.2d 295, 29 CahRptr. 33, 379 P.2d 513 (Cal.1963); Waube, supra, and that in view of these realities, the net balance of justice would be greater if all courts denied damages for injury imputed to psychic injury alone. Smith, Relation of Emotions to Injury and Disease, 30 Va.L.Rev. 193 (1944); Amaya, supra, at 523. Similarly, it is said that mental anguish is not susceptible to . accurate measurement by judge or jury, and therefore cannot serve as the basis of the action.

It is further argued that to admit a cause of action for mental anguish caused by injury to another will necessarily multiply the number of plaintiffs to whom a defendant will be liable, even if plaintiff litigants proceed in good faith. McKey v. Dow Chemical Co., Inc., 295 So.2d 516 (La.App. 1st Cir.1974). The difficulty of limiting a defendant’s liability to these plaintiffs is illustrated by this inquiry:

“what if the third person was the plaintiff’s beloved niece or nephew, grandparent, flaneé or lifelong friend, as dear to the family as her more immediate family?” Amaya, at 524. See also Hyatt v. Adams, 16 Mich. 180 (1867).

Moral factors also influence our courts. As stated in the principal case, Black v. Carrollton Railroad Co., supra, an important reason for denying recovery in cases such as this is that the award of mental anguish damages is essentially “vindictive” or punitive, and implies moral culpability on the part of the defendant. Where such culpability is lacking, however, as where the defendant is simply negligent rather than intentional or grossly negligent in his wrongdoing, justice requires that the defendant be required to pay only actual or compensatory damages to the primary victim. See also Rutherford v. Shreveport & H.R. Co., 41 La.Ann. 793, 6 So. 644 (La.1889).

Yet another reason limiting recovery is found in certain economic considerations, directly traceable to the latter part of the nineteenth century, which continue to inform the judgment of many courts. With the progress of the Industrial Revolution came the awareness that if nascent enterprises were to continue their growth, limitations must be set against the then-prevailing rule that a person acts at his own risk, i.e. will be held accountable for the injurious consequences of his acts without regard to “fault”. See Prosser, Law of Torts, 4th Ed.1971, p. 17. Thus, to reduce industry’s exposure to tort liability, courts began to formulate various doctrines which more narrowly circumscribed a defendant’s duty: contributory negligence, assumption of risk, scope of employment, imputed negligence, etc. See Green, Duties, Risks, Causation Doctrines, 41 Tex.L.Rev. 42 (1962). Louisiana’s rule prohibiting recovery for mental anguish caused by another’s injury was conceived during that era; the language of Black v. Carrollton Railroad Co., supra, is a product of those times, and reflects an awareness that for economic reasons, enterprise liability should extend only so far:

“... we are not disposed to admit the soundness of a doctrine, which would extend vindictive damages to a case like the present. We carefully note the distinction between the immediate sufferer from a railroad accident, and a relative of the sufferer, however near may be that relation. The subject is one of great, and of increasing, importance in our country, where railroad communication is so largely developed. Railroad companies are a species of common carriers, of comparatively recent date; yet their engines have already superseded the more tardy and less powerful vehicles of the past generation, upon all the great thoroughfares of the land. It is therefore of great public concern that the measure and extent of the liabilities of railroad companies should be determined with precision.... More than almost any other kind of corporation, their corporate business subjects them to the risk of accident. It is a duty which such a company owes to the public, to make velocity of locomotion compatible with safety, so far as this can be effected by prudence and skill. It is moreover, an implied condition of their contract with each passenger, that the latter shall not be put in jeopardy of life or limb, by any fault, even the slightest, of the servants of the company. The sentiment of responsibility will be found the greatest safeguard against abuses; but at the same time that we are disposed strictly to enforce that responsibility, we deem it advisable not to extend the right to recover vindictive damages, to others than those who, in their own proper persons, are victims of the misconduct of the servants of a railroad company.” Id. at 38.

In some jurisdictions, such considerations continue to the present. It is still argued that to extend liability in the manner sought by Mr. Blackwell would diminish the incentive to maintain growth in major enterprises, and that the rule proposed by this plaintiff will exact too great a price if such activities are forced into decline because of the costs of insuring them. Moreover, it is said, such an extension of liability will cause an unbearable economic impediment to many every-day activities which are not ordinarily insured. See Amaya, supra, at 525; Waube v. Warrington, 216 Wis. 603, 258 N.W. 497, 501 (Wis.1935). Of greatest concern is that, given our society's extraordinary dependence on the automobile, and the great number of personal injury suits that arise out of automobile accidents, “the liability imposed by such a doctrine would put an unreasonable burden upon users of the highway”. Waube, supra, 258 N.W., at 501, relied upon in Amaya.

Considering these factors as a whole, most jurisdictions limit the classes of plaintiffs who may seek recovery for mental anguish occasioned by another’s peril to those who either suffer physical impact or who are in the “zone of danger” at the time of the third person’s injury. As to those plaintiffs who do not fall within these classes, the law says there is no duty. In Louisiana, as noted below, there are no favored categories other than those previously mentioned, i.e. wrongful death plaintiffs and those who are owed some other independent duty.

Recently, our circuit courts of appeal have begun to question Louisiana’s position with regard to this issue, and it is asked why there should never be, under any circumstances, an independent duty to refrain from injuring a person in the manner under consideration. With regard to Black’s assertion that mental anguish damages are inherently “vindictive” rather than compensatory, it has since been held, contrarily, that:

“In this State, mental anguish is recognized as a distinct element of damages and not merely an incident to be taken into consideration in addition to pecuniary loss. Such damages are considered as actual or compensatory” Jiles v. Venus Community Center Benev. Mut. Aid Ass’n, 191 La. 803, 186 So. 342, 345 (La. 1939). (Emphasis added).

And as the dissent noted in Lanham v. Woodward, Wight & Co., Ltd., 386 So.2d 131 (La.App. 3rd Cir.1980), our Supreme Court later stated that “damages for mental anguish or suffering are actual rather than exemplary or punitary.” McGee v. Yazoo & M.V.R. Co., 206 La. 121, 19 So.2d 21, (La.1944) citing Bourg v. Brownell-Drews Lumber Co., 120 La. 1009, 45 So. 972 (La.1908). (Emphasis added).

Jiles itself concerned the recovery of mental anguish damages by the parents of a young girl, based upon the allegation that defendant’s failure to provide timely medical services to the girl resulted in her suffering and eventual death. The suit was brought in contract, and not as a wrongful death action. The parents sought, "and were granted, recovery for their own mental anguish in having to watch helplessly as their child died waiting for the promised aid. Given Jiles' holding, one of Black's major premises has been refuted.

As to the anticipated flood of fraudulent and spurious claims, such fears are founded upon distrust of the psychic injury itself. But nothing could be more natural or appropriate than a mother and father’s genuine grief in the event of their child’s injury, particularly if it is serious and permanent, as it is here. Moreover, “the possibility that fraudulent assertions may prompt recovery in isolated cases does not justify a wholesale rejection of the entire class of claims in which that potentiality arises”. Dillon v. Legg, 68 Cal.2d 728, 69 CahRptr. 72, 441 P.2d 912, 918 (Cal.1968). To say otherwise is to admit that the impracticality of administering such a rule of law is a legitimate basis for closing the court’s doors to parents whose claims are eminently just. However, given that the Courts of this state allow recovery of mental anguish damages in other contexts, the objection concerning difficulty of proof or fraud cannot be maintained. We therefore concur with the opinion that: “It is far more rational to compensate only the carefully scrutinized valid claims of tort-caused emotional distress than to deny compensation in all cases because some (or even most) claims are not valid. The difficulty of the problem does not warrant the unjustness of the present solution. Indeed, the present solution disregards the very essence of the judicial process”. Brauninger v. Ducote, 381 So.2d 1246, 1249, (La.App. 4th Cir.1979), Lemmon, J., concurring.

Nor are economic arguments against allowing recovery to this plaintiff any longer compelling. Careful, deliberate expansion of responsibility in the field of products liability, for example, has exploded the myth that industry will suffer intolerably with the abandonment of contractual privity. The continuing victory of MacPherson over Winterbottom has proved that the prevailing values which demand accountability for injury do not unduly burden industry with unlimited liability. That there is a burden cannot be denied; but it is finite, and to the extent that it can be borne, our common sense of justice demands that it should be. In Dillon v. Legg, supra, the question presented was whether a parent who witnessed an automobile strike her young daughter should be allowed to recover mental anguish damages, even though the parent herself was outside the “zone of danger”. In allowing recovery, the Court stated that, “In taking another giant step forward, in imposing product liability in tort, we were not halted by the spectre of an inability to pre-judge every future case. The setting of boundaries upon the doctrine makes the problem of fixing lines of limitation here appear, by comparison, almost miniscule”. Id. 441 P.2d at 922. That comparison is even more appropriate here, for unlike Dillon, we are not now concerned with the multitude of automobile accident cases involving mental anguish to parents who were not within the “zone of danger”. We deal with a narrower and more foreseeable class of plaintiffs, i.e. those parents who are aggrieved by their child’s injury at the hands of a negligent physician.

Thus we arrive at the fundamental unsoundness of the doctrine announced in Black: inasmuch as the policy reasons underlying the rule are now highly questionable, at least as to some classes of plaintiffs, such an absolute bar obliterates the importance of “foreseeability of harm”, and thus does violence to our long-held notion of “duty.”

Since the landmark case of Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99 (1928). American law has given assent to the proposition that “The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension”. Id. 162 N.E. at 100. In MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (Ct.App.N.Y. 1916), a case of far wider implications than those raised here, it was said that “If he is negligent, where danger is to be foreseen, a liability will follow” — “and foresight of the consequences involves the creation of a duty.” Id. Ill N.E. at 1053.

These formulations are particularly appropriate to negligence cases in Louisiana, where negligence (or lack of it) is viewed as arising from the relationship between the defendant’s duty and the particular risks encountered by the plaintiff. Palsgraf itself was a duty-risk case: the defendant railroad was exculpated because the risk actually encountered by the plaintiff was not foreseeable, and was therefore outside the scope of the defendant’s duty.

In the instructional case of Hill v. Lundin, 260 La. 542, 256 So.2d 620 (La.1972), as in Palsgraf, the decisive factor in relieving the defendant of liability was the lack of relation between the defendant’s duty and the plaintiff’s risk, that is, the particular harm was not foreseeable to the defendant:

“The risk encountered by the plaintiff which caused her harm was the ladder lying on the ground where it was placed by another, over which she tripped ... The record is devoid of any evidence tending to establish that the defendant could have reasonably anticipated that a third person would move the ladder and put it in the position which created the risk, or that such a 'naked possibility’ was an unreasonable risk of harm”. Id. 256 So.2d at 623.

Considering the foregoing, it would seem that in an instance such as this, the law should recognize a cause of action. In the language of “duty-risk,” the risk of parental anguish in the event of obstetric malpractice is to be reasonably anticipated by the defendant, and therefore, is within the scope of his duty to perform competently.

Finally, we cannot ignore the harsh inequity of a system of law which, on the one hand, allows a person to be compensated for mental anguish occasioned by damage to his property, and yet on the other hand, denies the same recovery to parents who suffer the inestimable grief of knowing that their child will be forever mentally impaired because of medical malpractice. As this court once noted, “... the mother’s grief over the bloodied and tom clothing of her son might be compensable, but her grief over his bloodied and torn leg is not.” Cambrice v. Fern Supply Co., 285 So.2d 863 (La.App. 4th Cir.1973), at 866. See also, Stone, Louisiana Tort Doctrine: Emotional Distress Occasioned by Another’s Peril, 48 Tul.L. Rev. 782 (1974).

Despite all these considerations, however, we are bound by a doctrine that has been followed in countless cases, and although Black’s premises have not been even briefly discussed by our Supreme Court since 1917 (in Kaufman v. Clark, 141 La. 316, 75 So. 65), the persistent denial of writ applications signals that we are to assume the continuing validity of the rule. Brauninger v. Ducote, 381 So.2d 1246 (La.App. 4th Cir. 1981).

Accordingly, the judgment of the trial court sustaining the exception of no cause of action as to Mr. Blackwell’s claim for mental anguish is affirmed.

MRS. BLACKWELL’S CAUSE OF ACTION

Whether Mrs. Blackwell may maintain her action for mental anguish as a result of injury to her child during birth depends upon whether the defendant obstetrician breached an independent duty owed directly to her. Spencer v. Terebelo, 373 So.2d 200 (La.App. 4th Cir.1979); Holland v. St. Paul Mercury Ins. Co., 135 So.2d 145 (La.App. 1st Cir.1961).

The defendants do not deny that Dr. Oser owed a duty to Mrs. Blackwell, his patient. But they assert that in the absence of any allegation of physical harm to her, the duty has not been breached, and therefore, that the plaintiff can have no cause of action for mental anguish.

We hold to the contrary, for unquestionably, the duty owed by an obstetrician toward his patient, a pregnant mother, includes the obligation to avoid treating her in such a manner as to cause injury to the child. For there to be a breach of this duty, it is not necessary that the mother suffer physical injury. It is sufficient that the physician’s negligent treatment of the mother caused injury to the child. These facts have been adequately alleged in Mrs. Blackwell’s petition, and having successfully pleaded Dr. Oser’s breach of an independent duty owed directly to her, there is no impediment to Mrs. Blackwell’s recovery of damages for mental anguish for the injury to her son.

Accordingly, the judgment of the trial court is affirmed and the case is remanded to the trial court for further proceedings consistent with this opinion.

AFFIRMED and REMANDED.

LOBRANO, J., dissents in part.

LOBRANO, Judge,

dissenting in part.

I must disagree with the majority view that Daryl R. Blackwell has no cause of action for his own mental anguish because of his child’s birth defects. Although I understand but do not necessarily agree with the reasoning of Black v. Carrollton Railroad Co., 10 La.Ann. 33 (1855), and its succeeding line of cases, I am of the opinion the instant case is an exception. More specifically, the husband-father’s cause of action is for breach of contract, and therefore falls within the reasoning of Holland v. St. Paul Mercury Insurance Co., 135 So.2d 145 (La.App. 1st Cir.1961).

Daryl Blackwell and his wife contracted with defendant, Dr. Oser, for his professional services in the care and delivery of their child. Certainly the husband-father has as much interest and concern as the mother in a healthy, normal birth of their infant. Together they contract for the professional expertise of a qualified obstetrician. Together they have a right to seek recovery for an alleged breach of that agreement, and certainly our jurisprudence recognizes mental anguish as an element of damages in a breach of contract case. Accordingly, I would reverse that portion of the lower court ruling which denies the husband a cause of action.

      . The only maverick cases are Valence v. Louisiana Power & Light Co., 50 So.2d 847 (La.App. Orl.1951); Jordan v. Fidelity & Cas. Co., 90 So.2d 531 (La.App. 2d Cir.1956); and Champagne v. Hearty, 78 So.2d 453 (La.App.Orl. 1954).

      . Spencer v. Terebelo, 373 So.2d 200 (La.App. 4th Cir.1979).

      . In Holland v. St. Paul Mercury Ins. Co., 135 So.2d 145 (La.App. 1st Cir.1961), the Court allowed the plaintiff parents to recover mental anguish damages arising from injuries to their child, who had swallowed pesticide left on the plaintiffs premises by the defendant exterminator. Although the Court found that the defendant had breached specific duties to the plaintiff, both in contract and in tort, some decisions have expressly limited Holland to actions in contract. See Laplace v. Minks, 174 So.2d 895 (La.App. 1st Cir.1965); Warr v. Kemp, 208 So.2d 570 (La.App. 3rd Cir. 1968); Brauninger v. Ducote, 381 So.2d 1246 (La.App. 4th Cir.1979).

      . The exceptions which apply in many other states so as to allow recovery to a plaintiff if he himself suffered physical impact, or if he was within the “zone of danger” do not apply in Louisiana. In Smith v. Manchester Ins. & Indem. Co., 299 So.2d 517 (La.App. 4th Cir.1974), a young girl and her grandfather were both injured while riding together on a motorcycle. The girl sought recovery for her own mental anguish caused by witnessing her grandfather’s injury. The Court denied recovery, citing Dudley v. State Farm Mutual Automobile Ins. Co., 255 So.2d 462 (La.App. 1st Cir.1971). There, a plaintiff father (arguably within a “zone of danger” created by defendant’s negligence) was denied recovery for his own mental anguish caused by witnessing an automobile strike his son. The Dudley Court cited Black without elaboration, and did not discuss either the father’s proximity to the accident or the “zone of danger” doctrine. In Sabatier v. Travelers Ins. Co., 184 So.2d 594 (La.App. 4th Cir.1966), the plaintiff and her father were in an automobile accident. The daughter’s claim for mental anguish occasioned by injury to her father was rejected because she herself sustained no physical injury. In Warr v. Kemp, 208 So.2d 570 (La.App. 3rd Cir.1968), a plaintiff husband who was with his wife in the family car at the time of the accident sued for mental anguish damages which were alleged to result from his knowledge of her injuries. The Court denied recovery, citing Duet v. Cheramie, 176 So.2d 667 (La.App. 1st Cir.1965). Thus, it is clear that impact alone will not provide the basis of recovery, for mental anguish occasioned by another’s injury, and if Smith, supra, remains viable, neither will actual physical injury.

      . MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (N.Y.1916).

      . Winterbottom v. Wright, 10 M & W 109 (1842).

      . Foreseeability of the risk was also critical to the question of duty in Todd v. Aetna Casualty & Surety Co., 219 So.2d 538 (La.App. 3rd Cir. 1969) wherein a plaintiff widow sought wrongful death recovery. Her husband’s death resulted from a heart attack, allegedly caused by the excitement, mental anguish and physical exertion following his discovery that his automobile had been damaged and knocked into a ditch. The court denied recovery, holding that the defendant’s duty to avoid colliding with parked automobiles did not include protection against the hazard that the owner of the vehicle may be in a house nearby and may become so distressed over the damages to his vehicle that illness or bodily harm may result. Such a consequence being “unforeseeable”, defendant was found not liable, citing Palsgraf. Compare the same circuit’s treatment of duty in Speight v. Southern Farm Bureau Ins. Co., 254 So.2d 485 (La.App. 3rd Cir.1971), where plaintiff homeowner was allowed to recovery mental anguish damages resulting from the defendant’s negligence in driving his truck into the plaintiffs house. Distinguishing Todd, supra, the court said that duty is determined by the foreseeability of consequences, and tempered by judicial policy. Id. at 189. Recovery was granted because the particular risk was foreseeable and therefore within the scope of defendant’s duty.

      . Brown v. Crocker, 139 So.2d 779 (La.App. 2d Cir. 1962); Deblieux v. P.S. & Sons Painting, Inc., 405 So.2d 600 (La.App. 3rd Cir. 1981); Smith v. Town of Logansport, 395 So.2d 888 (La.App. 2d Cir.1981); Speight v. Southern Farm Bureau Ins. Co., 254 So.2d 485 (La.App. 3rd Cir.1971).

      . In Holland v. St. Paul Mercury Insurance Co., supra, the Court cites several quasi or implied contract cases wherein recovery was permitted for mental anguish, humiliation and disappointment.