author: CARTER, Judge:

text:
    STATE of Louisiana In the Interest of Brian BEMIS.
    No. 84 KJ 1044.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.

      Wiley Dial, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee State of La.
    Joe E. Thompson, Baton Rouge, for defendant-appellant Brian Bemis.
    Before COLE, CARTER, and LANIER, JJ.
   CARTER, Judge:

This Court, ex proprio motu, issued an order to show cause why this appeal should not be dismissed since the judgment is one refusing to modify a juvenile judgment of disposition and as such is not appealable.

A petition was filed charging Brian Eugene Bémis (then 15 years of age) with aggravated burglary, theft of $17.00 cash, and aggravated rape in violation of LSA-R.S. 14:60, 67, and 42, respectively. The juvenile admitted to the aggravated rape offense and the charges on the other two offenses were dismissed without prejudice. Subsequently, the juvenile was adjudicated a delinquent and a judgment of disposition was rendered in October of 1981, ordering that the juvenile be committed to the custody of the Louisiana Department of Corrections until his twenty-first birthday.

In April of 1984, the juvenile filed a petition for modification of judgment of disposition. This request was summarily denied and the juvenile has perfected this appeal to this court for review of the summary denial of his request to modify the judgment of disposition.

Only a judgment of disposition is appeal-able in juvenile cases. LSA-C.J.P. art. 97. What constitutes a judgment of disposition is set forth in LSA-C.J.P. art. 87. The denial of a motion to modify a judgment of disposition is not a judgment of disposition, and this court has no appellate jurisdiction to review it. This appeal must therefore be dismissed. This matter may be considered under our supervisory jurisdiction on a proper application. LSA-Const. Art. V, § 10(A); LSA-C.J.P. art. 105.

APPEAL DISMISSED.


source: Caselaw Access Project

author: EDWARDS, Judge.

license: Public Domain

text:
    Linda Scogin, Wife of/and Robert M. CARBO, Beulah Scogin, Widow of T.L. Bishop and Lillian Pichon, Widow of Robert L. Scogin v. The Honorable Webb HART, Mayor of/and the City of Slidell.
    No. 83-CA-0799.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.
    Writ Denied Jan. 14, 1985.

      Harold M. Wheelahan, III, New Orleans, for plaintiffs, appellants.
    J. Michael Johnson, New Orleans, for defendants, appellees.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   EDWARDS, Judge.

The plaintiffs, Robert Carbo, Linda Sco-gin Carbo, Beulah Scogin Bishop and Lillian Pichón Scogin, brought this action for damages against the City of Slidell and its Mayor, Webb Hart. The plaintiffs later amended their petition to name as additional defendants, Insurance Company of North America and International Surplus Lines Insurance Company. Plaintiffs alleged that they were owners of property located in St. Tammany Parish, immediately adjacent to the corporate limits of Slidell. The damages sought are alleged to have resulted from flooding caused by Slidell in connection with work on a man-made drainage canal known as “W-14.” That canal generally traverses the western edge of plaintiffs’ property on the border of the Slidell corporate limits.

Defendants Slidell and Insurance Company of North America moved for summary judgment based upon a claim that plaintiffs’ action had prescribed. The trial court granted the motion and rendered judgment decreeing that “all allegations of damages beyond June 1,1979, that is two years from the filing date of this lawsuit, are prescribed and are herewith dismissed at plaintiffs’ costs.”

Plaintiffs appeal the judgment of the district court, asserting that the motion for summary judgment was erroneously granted because the court applied the incorrect prescriptive period and because there were disputed issues of material fact.

APPLICABLE PRESCRIPTION

The trial court did not render reasons for judgment. However, in the judgment itself the court indicated its conclusion that LAR.S. 9:5624 was applicable to plaintiffs’ action. That statute provides as follows: “When private property is damaged for public purposes any and all actions for such damages are prescribed by the prescription of two years, which shall begin to run when the damages are sustained.”

Plaintiffs assert that they are the owners of a predial servitude of drain and that their servitude was violated by defendants’ action. They assert that the ten-year prescriptive period of article 753 of the Louisiana Civil Code applies to their action. That article, provides that “[a] predial servitude is extinguished by nonuse for ten years.” The plaintiffs assert that this ten-year prescriptive period applies to their action for damages.

Plaintiffs reliance upon article 753 is misplaced. The ten-year prescriptive period of that article applies to abandonment of a predial servitude for nonuse. It has no application to a claim for damages asserted by a person entitled to the servitude. Plaintiffs’ petition seeks money damage for injuries to property alleged to have been caused by a violation of their servitude. The ten-year prescriptive period of article 753 has no application to such an action and the trial court committed no error in refusing to apply that article.

PROPRIETY OP SUMMARY JUDGMENT

Plaintiffs’ petition was filed on June 3, 1981. The petition as amended sought damages for flooding that allegedly began nearly ten years prior to the filing of the petition. In rendering summary judgment for defendants of Slidell and Insurance Company of North America, the trial court concluded that plaintiffs would be limited to damages incurred within two years of the filing of the petition.

Under Louisiana law, the prescriptive period for torts commences on the day the plaintiff knew or should have known that he has sustained some damage. Thus, prescription begins to run on the date that the damage becomes apparent. Dean v. Hercules, Inc., 328 So.2d 69, 73 (La.1976); See also Henson v. St. Paul Fire and Marine Insurance Company, 363 So.2d 711, 713 (La.1978).

Plaintiffs’ petition and their depositions indicate that the flooding problems complained of were apparent to plaintiffs long before their suit was filed. Plaintiffs’ petition alleges that the City of Slidell undertook work on the canal known as “W-14” approximately ten years prior to filing of the suit. The petition alleged repeated floodings of plaintiffs’ homes and property as a result of that work, and subsequent work, allegedly performed by the City of Slidell. Plaintiffs also alleged that they immediately ' demanded correction of the work performed by the City of Slidell but that no action was taken.

Furthermore, the depositions of Linda and Robert Carbo revealed that the cause of the flooding problem was apparent to the plaintiffs. Linda Carbo’s deposition contains the following testimony:

Q. Did you attribute the flooding back in in 1974 to some problem with the W-14 canal?
A. Yes, it was very simple to see. The W-14 canal, I could stand there and watch it overflow as it rained. It couldn’t carry the water.
Q. That’s when you called the city officials and police jurors?
A. Yes, I did.
Q. You wanted them to remedy the problem at that point; is that correct? A. Yes, I did.

This knowledge of the cause of the flooding was shared by Robert Carbo, as indicated by the following exchange from his deposition:

Q. Do you share your wife's opinion that the cause of the flooding is the W-14 canal not being big enough?
A. Definitely.

Thus, the flooding of plaintiffs’ homes and property and its apparent source, had to have been apparent to plaintiffs at least as early as 1974.

Plaintiffs argued that prescription did not begin to run on their damage claims because they were unable to determine until shortly before the petition was filed whether the City of Slidell or the Parish of St. Tammany had jurisdiction over the W-14 canal. The deposition of Linda Car-bo reveals that plaintiffs made a number of complaints to Slidell and St. Tammany Parish officials after they experienced flooding on their property in 1974. Clearly, plaintiffs had the necessary knowledge at that time to bring a lawsuit for damages against either the City or Parish or both. The fact that plaintiffs did not know to an absolute certainty, indeed may never know, whether either or both units are responsible for flooding from the W-14 canal did not serve to interrupt the running of prescription.

Finally, plaintiffs assert that repeated incidents of flooding of their property served to interrupt the running of prescription on their damage claims. That same contention was rejected in Nuckolls v. Louisiana State Highway Department, 837 So.2d 313 (La.App. 2nd Cir.1976), a decision involving a factual situation similar to the instant case. In that action Nuc-kolls brought suit against an adjacent property owner, the Town of Plain Dealing and the State Highway Department, seeking injunctive relief and damages for flooding of his property. Nuckolls contended that the defendants had altered the natural drain of rainwater, causing overflow on to his property. In 1955, the Highway Department had constructed a culvert to drain a surface water ditch adjacent to Nuckolls’ property. Nuckolls filed suit in 1975, over two years after he had become aware of the flooding problem.

The Highway Department and Town of Plain Dealing filed an exception of prescription based upon the provisions of LAR.S. 9:5624. Nuckolls maintained that prescription had been interrupted by the repeated flooding of his property through the latter part of 1973. The court rejected that argument and sustained the exception of prescription.

The pleadings and depositions in the instant case clearly demonstrate that the flooding experienced by plaintiffs consisted of a number of separate and distinct events. Thus, the running of prescription was not interrupted by the successive flooding. The trial court correctly held, therefore, that all of plaintiffs claims for damages occurring earlier than two years before the filing of plaintiff’s lawsuit had prescribed.

For the foregoing reasons, the judgment of the district court is affirmed at appellants’ costs.

AFFIRMED.

      . This case does not present the usual clash of affidavits present in most summary judgment cases. Defendants submitted no affidavits in support of their motion for summary judgment but relied upon the pleadings and the depositions of the Plaintiffs. Plaintiffs submitted only one affidavit, that of Linda Scogin Carbo and it did not contradict any of the deposition testimony. Although plaintiffs assert in their assignments of error that there were disputed issues of material fact they actually argued that the facts established did not entitle defendants to summary judgment.

      . We note that the Nuckolls court affirmed the dismissal of the plaintiff’s entire action, including his claim for damages sustained within two years of his filing suit, saying that LSA-R.S. 9:5624 "precludes any suit being brought after two years from the first occurrence of any damage after completion of the public works.” 337 So.2d at 315 (emphasis added). But see Young v. International Paper Co., 179 La. 803, 155 So. 231 (1934) (holding that prescription is not suspended by the fact that damage was continuous, but ran on each item from the date it was inflicted).
      In the instant case, defendants have not sought modification of that portion of the district court’s judgment allowing plaintiffs to proceed with their claims for damages that occurred within two years of the filing of their petition. Accordingly, this court has no authority to review that portion of the judgment. LSA-C.C.P. art. 2133.


author: COLE, Judge.

text:
    The SUCCESSION OF Ethel Sanders PAYNE and Willie Payne v. Althea PIGOTT.
    No. 83 CA 1114.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.

      Donald Lee, Bogalusa, for plaintiff.
    Sondra Cheek, Bogalusa, for defendant.
    Before COLE, CARTER and LANIER, Jj.
   COLE, Judge.

The issue presented in this suit for declaratory judgment is whether or not decedent, Willie Payne, made a valid inter vivos donation of certain shares of stock.

Willie Payne was married to Veda Williams and of this union nine children were born. At some point during their marriage (date unknown) the parties became physically separated. In 1966 defendant, Althea Pigott, became acquainted with Mr. Payne and shortly thereafter became, in her own words, “his old lady.” Ms. Pigott testified she and Mr. Payne lived “back and forth to one another’s house” and that she took care of him, his elderly mother and his teenage children. Later, when Mr. Payne became ill, she cared for him until his death on June 10, 1982.

Approximately one year prior to Mr. Payne’s death, he allegedly donated to Ms. Pigott 362 shares of “Entex” (formerly United Gas Co.) stock. Shortly after Mr. Payne died, Obediah Payne, one of his children, and Robert Black, an attorney, filed a petition to be recognized as co-administrators of the estates of Willie Payne, Percy Payne (Willie’s, father who died in 1958) and Ethel Sanders Payne (Willie’s mother who died in 1969). The co-administrators then filed a “Petition for Declaratory Judgment,” asking the court to determine the ownership of “514 shares of stock with Entex, Inc.” The petition alleged Ms. Pi-gott had taken possession of the stock after decedent’s death and that she refused to relinquish it.

A trial was held and judgment rendered in favor of Ms. Pigott, declaring her to be the sole owner of 362 shares of Entex stock. In written reasons for judgment the court stated it found Mr. Payne donated the stock to Ms. Pigott, “... for the services she rendered to him and his family.” The succession representative then filed this suspensive appeal.

The appellants contend the alleged donation was invalid because it was not passed before a notary and two witnesses as required by La.Civ.Code art. 1536 and the majority of the stock certificates were not indorsed as required by La.R.S. 10:8-308 and 8-309. The formalities of Article 1536 are not necessary if shares of stock are validly transferred pursuant to Louisiana stock-transfer legislation. Primeaux v. Libersat, 322 So.2d 147 (La.1975); Smith v. Smith, 311 So.2d 514 (La.App. 3rd Cir.1974), writ denied, 313 So.2d 840 (La.1975); Succession of Hall, 198 So.2d 511 (La.App. 2nd Cir.1967), application denied, 250 La. 974, 200 So.2d 664 (1967). Further, since Louisiana stock-transfer legislation is intended for the protection of third persons dealing with the apparent owner of the stock, a court may look to the intent of the parties to the transfer to see if there was a valid transfer of ownership between them. Succession of Dunham, 408 So.2d 888 (La.1981); Wilson v. H.J. Wilson Co., Inc., 430 So.2d 1227 (La.App. 1st Cir.1983); Pearce v. Rogers, 423 So.2d 83 (La.App. 1st Cir.1982).

Concerning Mr. Payne’s intent when he made the donation, Ms. Pigott stated that approximately one year before his death, she experienced a financial crisis and was in danger of losing her home. She discussed her problems with Mr. Payne and testified he gave her the stock certificates at that time. She elaborated at trial as follows:

“He told me he wanted me to have that stock because I had been so good and so nice to him and that is something he wanted me to have.”

At that time Mr. Payne apparently indorsed three of the certificates (representing a total of 39 shares) and told Ms. Pigott not to “spend them” unless absolutely necessary. She stated he never asked her to return the certificates to him. Although the evidence concerning Mr. Payne’s intent is not extensive, it is uncontradicted and establishes sufficiently he gave Ms. Pigott the stock in appreciation of the services she rendered to him over the years. As always, the trial court is granted a great deal of discretion in reaching factual conclusions. We find no error in the determination that Mr. Payne delivered the stock certificates to Ms. Pigott with a donative intent.

Under the Investment Securities Chapter of the Louisiana Commercial Laws (La.R.S. 10:8-101 et seq.), the word “purchase” includes in its meaning “taking by ... gift” and a “purchaser” is “a person who takes by purchase.” La.R.S. 10:1-201. La.R.S. 10:8-301(1) provides, in pertinent part, as follows:

Upon delivery of a security the purchaser acquires the rights in the security which his transferor had or had actual authority to convey except that a purchaser who has himself been a party to any fraud or illegality affecting the security or who as a prior holder had notice of an adverse claim cannot improve his position by taking from a later bona fide purchaser. (Emphasis added).

Thirty-nine of the 362 shares were properly indorsed over to Ms. Pigott. La.R.S. 10:8-308. La.R.S. 10:8-307 provides as follows:

Where a security in registered form has been delivered to a purchaser without a necessary indorsement he may become a bona fide purchaser only as of the time the indorsement is supplied, but against the transferor the transfer is complete upon delivery and the purchaser has a specifically enforceable right to have any necessary indorsement supplied. (Emphasis added).

Thus, although 323 shares were delivered to Ms. Pigott without indorsement, as against Mr. Payne the donation was complete on delivery and she had a right to require his indorsement.

Appellant contends the donation was invalid under Civ.Code art. 1481, which prohibits donations of immovables, or movables constituting more than one-tenth of the donor’s estate, between those who have lived together in open concubinage. Concerning the services rendered by Ms. Pi-gott, we conclude she acted as a “wife” in caring for Mr. Payne and his family for sixteen years. Ms. Pigott testified she cooked for him, washed clothes, paid the bills and “kept house” in addition to caring for his mother during her illness, and for his teenage children. She was “his common-law wife”, “did everything that a wife would have done for him”, “was his old lady” and (according to Gloria Payne— Payne’s daughter) lived with Mr. Payne “as man and wife”. Ms. Pigott acknowledged in her testimony that the general public had knowledge that she and Mr. Payne were living together. She knew Mr. Payne was married and was not divorced. This relationship was open concubinage. Thomas v. Thomas, 440 So.2d 879 (La.App. 2nd Cir.1983), writ denied, 443 So.2d 597 (La.1983); Cook v. Cook, 436 So.2d 743 (La.App. 3rd Cir.1983).

Ms. Pigott argues that the donation is remunerative (i.e., for services rendered as defined in La.Civ.Code art. 1523), and, pursuant to La.Civ.Code art. 1526, the provisions of Article 1481 are not applicable. Pretermitting the issue of whether Article 1526 excludes Article 1481 from applying to remunerative donations, we find that the donation is gratuitous and not remunerative. In Schwegmann v. Schwegmann, 441 So.2d 316, 324 (La.App. 5th Cir.1983), writ denied, 443 So.2d 1122 (La.1984), the court noted that “where parties to a contract cohabit in a sexual relationship and their agreement to cohabit is part of the basis for the agreement between them, the agreement is unenforceable because it is an unlawful contract for meretricious services.” The court further pointed out that the support and subsistence provided by the paramour in a concubinage relationship is “full remuneration” for the services provided by the concubine. In Sparrow v. Sparrow, 231 La. 966, 93 So.2d 232 (1957), the court observed that where the initial motive and purpose for a paramour and concubine coming together was concubinage, the taint affected the continued relationship. In Guerin v. Bonaventure, 212 So.2d 459 (La.App. 1st Cir.1968), this court held that where the work done by a concubine in establishing and running two businesses was inextricably entwined with the concubinage relationship, she could not claim ownership in the businesses or otherwise recover. In Schwegmann it was held a concubine could not recover in quantum meruit for domestic services performed where those services were inextricably interwoven in the concubinage relationship. In Brown v. Brown, 459 So.2d 560 (La.App. 1st Cir.1984), this court held the services performed by a concubine were not a valid consideration to entitle her to be a co-owner of immovable property even though she was a co-vendee in the act of sale. By analogy from the above cases, we conclude the services performed by a concubine as part of the concubinage relationship cannot serve as a valid consideration to convert a gratuitous donation into a remunerative one. See also La.Civ.Code arts. 11, 12 and 1519. The support and subsistence provided by Mr. Payne were “full remuneration” for the services performed by Ms. Pigott. The donation herein was gratuitous, Article 1526 is not controlling, and Article 1481 requires the donation to be reduced to one-tenth (Vio) of the value of Mr. Payne’s estate.

We take care to point out our ruling herein only adjudicates the validity and extent of the purported donation between the parties thereto, Mr. Payne (represented herein by the succession representatives) and Ms. Pigott. Because there has been no tableau of distribution homologated or judgment of possession rendered which finally determine the nature and value of the stock, the rights of third persons vis-a-vis the donation have not been finally determined. See, for example, La.Civ.Code arts. 2349, 2351 and 2353.

For the foregoing reasons, the judgment of the district court declaring Ms. Pigott to be the owner of the 362 shares of Entex stock is reversed, and this cause is remanded to the district court for further proceedings consistent with the views expressed herein. Appellee is cast for all costs.

REVERSED AND REMANDED.

      . Although the petition questioned the ownership of 514 shares of stock, the judgment dealt only with 362 shares. Testimony at trial indicated the succession had already collected the remaining shares.

      . La.Civ.Code art. 1536 provides as follows:
      An act shall be passed before a notary public and two witnesses of every donation inter vivos of immovable property or incorporeal things, such as rents, credits, rights or actions, under the penalty of nullity.

      .Prior to January 1, 1979, stock transfers in Louisiana were governed by the Louisiana Uniform Stock Transfer Law, La.R.S. 12:601-643. On that date, provisions similar to Article 8 of the Uniform Commercial Code relating to "Investment Securities” became effective and were enacted as La.R.S. 10:8-101, et seq. of the Louisiana Commercial Laws. The title 12 provisions on stock transfers, (except § 601-§ 603) were repealed.

      . La.Civ.Code art. 1481 provides as follows:
      Those who have lived together in open concubinage are respectively incapable of making to each other, whether inter vivos or mortis causa, any donation of immovables; and if they make a donation of movables, it can not exceed one-tenth part of the whole value of their estate.
      Those who afterwards marry are excepted from this rule.


text:
    Ora D. WATSON, et al. v. STATE FARM FIRE AND CASUALTY INSURANCE COMPANY and Earl Creel.
    No. 83-CA-1151.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.

      Ronald J. Brumfield, Franklinton, for plaintiffs.
    Alton B. Lewis, Jr., Hammond, for defendants.
    Before EDWARDS, SHORTESS and SA-VOIE, JJ.
   EDWARDS, Judge.

Ora D. Watson, individually and as tutrix of her minor child, Jo Ann, and her six major children sued Earl Creel and his insurer, State Farm Fire and Casualty Insurance Company, for the wrongful death of her husband, Doyle Watson, killed in a deer hunting accident by Earl’s twelve year old son, Shane. She settled with Farm Bureau Insurance Company, Shane’s mother’s insurer, for 85% of the policy limits in exchange for a restrictive release and eonven-ant not to sue Shane. State Farm declined a similar discounted settlement offer, denying any liability on the part of Shane or his father.

At trial the jury returned a verdict in favor of the defendants, finding that the decedent, Doyle Watson, was 100% at fault in causing the accident. The trial court entered judgment in conformity with the verdict and dismissed the suit. Plaintiffs appeal.

The principal issue is whether the jury was clearly wrong in finding Doyle Watson solely at fault in causing the accident.

Plaintiffs’ main theory at trial was that Shane mistook Watson for a deer because of the color of Watson’s clothing and that he negligently fired his rifle before properly identifying and distinguishing his target, especially at dusk when visibility was poor. In addition to his vicarious liability for the negligence of his son, plaintiffs base Earl Creel’s personal negligence on his failure to train and supervise Shane in the proper and safe use of his weapon, in allowing Shane to hunt alone, unattended and unsupervised, and in allowing him to use a dangerous rifle, with which he had limited experience and which was beyond his capability and maturity to handle safely.

The defendants’ theory was that Shane actually sighted a deer and fired only after he had properly identified his target. They contend that Doyle Watson was solely at fault in causing the accident, first, in walking into Shane’s line of fire, after having positioned Shane there himself and instructed him where to watch for emerging deer, and second, in failing to wear the required “hunter’s orange” vest under LSA-R.S. 56:143 or otherwise make himself more visible to Shane and the other hunters.

According to the record, Willie Creel, his son Earl, Earl’s son Shane, and Earl’s sixteen year old stepson, Tony, arrived at Doyle Watson’s farm about three o’clock in the afternoon on December 29, 1981, to go deer hunting. Willie Creel and Doyle Watson had been friends for a number of years. After a short visit, they all drove out into the field behind Watson’s house to position themselves for the hunt. Each hunter was armed with a shotgun, except for Shane, who was using a Marlin .30-30 rifle, which his father Earl had given him for his twelfth birthday a few weeks before. Each was wearing a vest or a jacket with the required “hunter’s orange” under LSA-R.S. 56:143, except for Watson who was wearing a green and brown camouflaged jacket over a white t-shirt, gray work pants, and a dark baseball cap with a white front.

Tony was positioned in a deer stand about 500 yards into the field along the side of a winding road. Shane was positioned in a deer stand farther down on the edge of some woods, overlooking a large field, which was about 433 feet wide and 950 feet long. The field rolled into a slight knoll in the middle and then sloped gradually down to the edge of some woods on the other side. The grass in the middle of the field stood about two feet high. Because of this grass and the knoll, only the upper half of a man, walking along the edge of the woods on the other side, could be seen from the deer stand.

Mr. Watson showed Shane where to watch for the deer, which usually appeared out of the woods on the other side of the field to eat his turnip greens, and told him if he tired of watching from the deer stand or became cold to climb down and sit behind some hay bales close by. Earl Creel was positioned next, farther down out of sight of Shane. Willie Creel and Doyle Watson positioned themselves last.

According to Earl, when the sun began to set a couple of hours later, he climbed down out of his stand to wait for Willie to pick him up in the truck. At approximately 5:25 p.m., he heard the retort of Shane’s rifle. When Willie picked him up, they drove over to Shane’s stand and saw him standing in the middle of the field looking for something. He told them, as they approached, that he had seen and fired at a deer standing next to a puddle of water. They all began looking around for a deer, but after a few moments, Earl found Watson’s body lying face down in a rutted road which paralleled the woods directly across from Shane’s stand. He had been shot once in the head. Death was apparently instantaneous.

According to Shane, after a couple of hours in the stand, he grew cold and moved over to the hay bales. Scanning with the scope of his rifle, he spotted a deer in the middle of the field. It had a brown body and a white patch on its chest and was moving up and down the field. He watched it for about five minutes: It lowered its head to drink from a puddle of water, and when it raised its head up again, Shane fired.

Captain Jack Underwood, Chief of Detectives of the Washington Parish Sheriff’s Department, arrived around 6:10 p.m. He testified that visibility was still pretty good. It was still “good dusk;” not exactly nightfall yet. The position of the body and the trail of footprints indicated that Watson had been walking along the rutted road at the edge of the woods in the direction of his house, apparently heading for home after the hunt. There were no obstructions across the field except for the roll of the hill itself and the knoll in the middle. The distance between Watson’s body and the hay bales measured 461 feet.

Arceneaux v. Domingue, 365 So.2d 1330 (La.1978) obliges us to accept the findings of the jury, just as we would the findings of a trial judge, when they are based upon a reasonable evaluation of credibility, and prohibits us from reversing those findings, even though we may have made different findings had we tried the case, unless the record as a whole establishes them to be clearly wrong.

In this case, as tragic and as senseless as Mr. Watson’s death was, we cannot say that the jury’s finding is clearly wrong, turning as we think it does on the witnesses’ credibility.

Shane was quite positive in his testimony about actually sighting a deer and firing at it after properly identifying his target:

Q. ... Now, when you were at the stand there, what kind of vision did you have? Would you classify it as good or were there any problems or obstructions to your visibility?
A. Yes, it was good visibility except there was kind of a weed grass about this high all through the field.
# ⅜ >Js sH sjc ⅜
Q. Okay, Shane, now lets go back to, you are saying that you thought you saw something. Okay, now where was it that you thought you saw something at first?
A. ... Where I thought I saw something, I was maybe right about here, and I thought I saw something about there. It was straight in front of me.
Q. What did you think you saw when you first saw it? What occurred to you?
A. To the best of my knowledge, I saw a deer. It was brown up in here around the body area and up in the chest it was white, and that is to the best of my knowledge what I saw.
Q. Now when you first saw what you thought you saw there, was it coming out of the woods or had it already gotten out of the woods?
A. It had already • gotten out of the woods.
Q. Now what did you do when you first saw it and you thought it was a deer at the time, tell us what happened.
A. Well, I sat there and I looked at it through the scope for about five minutes and after that it would move from the right to the left a little bit and would move back to the right.
Q. Um hum.
A. After a while, I just fired at it.
Q. You were convinced at that time that it was a deer then?
A. Yes, sir.
Q. Ok, now why did you look at it that long, Shane, in your own words?
A. I was looking at it to be sure what I was shooting at.
Q. So you had some reservations at first and then you looked at it longer to be sure through the scope?
A. Yes, sir.
Q. I see. And you convinced yourself that it was deer and you went ahead and shot.
A. Yes, sir.
* >S ⅜- ⅜ ⅜ sjc
Q. Is there any doubt in your mind that what you saw was a deer?
A. No, sir.

Accepting this testimony as true, a jury could have reasonably concluded that despite his age Shane exercised reasonable care in identifying the deer before firing and that despite the lateness of the hour it was Watson’s negligence in walking into Shane’s line of fire and in failing to make his presence known or to wear the highly visible hunter’s orange vest that resulted in his accidental shooting death. While it is true that failure to wear the required hunter’s orange vest does not constitute negligence per se so as to bar recovery, Breitkaupt v. Sellers, 390 So.2d 870 (La.1980), a hunter nonetheless has a duty, to himself, to prevent accidental shootings by making his presence known to other hunters, which is usually easily accomplished by wearing highly visible clothing. Indeed, the dark colors of Mr. Watson’s clothing at dusk against the wooded backdrop very nearly made him invisible. Not even the most experienced hunter can be expected to see the invisible.

We therefore affirm the jury’s verdict and the judgment of the court below dismissing plaintiffs’ claims. Accordingly, we need not discuss other issues raised by the parties regarding damages and insurance coverage.

The trial court assessed all costs against the defendants, who have answered the appeal as to that judgment. Although the trial court enjoys great discretion in the assessment of costs, the general rule is that the party cast in judgment should pay all costs of the trial. La.C.C.P. art. 1920 gives the trial court this discretion, but the appellate courts are required to review its ruling under La.C.C.P. art. 2164. Borden, Inc. v. Howard Trucking Co., Inc., 425 So.2d 893 (La.App. 1st Cir.1983), aff'd, 454 So.2d 1081 (La.1984) (on rehearing). We find that since the defendants were found to be without fault, costs should have been assessed to plaintiffs. The judgment of the trial court with respect to costs is reversed. Appellants are taxed for all costs of these proceedings.

AFFIRMED IN PART, REVERSED IN PART.


author: SAVOIE, Judge.

text:
    Dana and Craig FORET v. Dorothy Masek KENNEDY & Milo Kennedy.
    No. 83 CA 1163.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.

      Donna W. Lee, Baton Rouge, for plaintiff-appellant.
    R. Loren Kleinpeter, Baton Rouge, for defendant-appellee.
    Before EDWARDS, SHORTESS and SA-VOIE,. JJ.
   SAVOIE, Judge.

This is a suit in quanti minoris involving the sale of a house. At the conclusion of the trial, the trial court rendered a judgment in favor of plaintiffs, Dana and Craig Foret, against defendant, Dorothy Masek Kennedy, ordering a reduction in the purchase price in the amount of $1850. The plaintiffs have appealed that judgment.

Plaintiffs assign as error the following: (1) the trial court erred in not finding that all the heating and electrical defects in the house would be considered defects under the redhibition law of Louisiana; (2) the trial court, in failing to award attorney’s fees to the prevailing party, did not properly apply Louisiana Civil Code Article 2545; and (3) the trial court erred in failing to reduce the purchase price to an amount equal to the amount of money the appellants spent repairing the heating unit and electrical system in the house.

The facts of the case show that the house in question was built in 1956. The defendant was the first owner of the house. When the house was purchased, it had a central heating unit. The defendant’s husband installed a central air conditioning system sometime between 1967 and 1969. Mr. Kennedy also enclosed a carport at some time subsequent to his wife’s purchase of the house. The plaintiffs, with knowledge of the foregoing facts, purchased the house on July 31, 1981. Approximately one week later, plaintiffs had Glenn Baker’s Heating and Air Conditioning Service perform an inspection of the central heat and air system. This inspection apparently found no irregularities in the system. According to plaintiff’s testimony, they started using the central heating system during the first week of December, 1981. The plaintiffs testified that they experienced problems with the pilot light extinguishing itself, and having to be re-lit. On January 31, 1982, plaintiff Craig Foret testified that he was shocked when he touched a bare wire, while he was in the process of relighting the pilot light.

John D. Andre, an air conditioning and heating serviceman, was then called by the plaintiffs. He testified that he inspected the heating system and recommended that the whole system be completely changed. He stated that he suggested this because, “The heater itself had slight evidence of a heater exchanger leak in it. The plenum, the air return and the transition had not been insulated properly at all and would cause sweating in the box.” Mr. Andre also stated that he changed the heater, the four-ton evaporator coil, the plenum box, the return air, transition, and the new filter and grill. The cost of this work was $2014.00, which was paid by plaintiffs. On re-cross examination, Mr. Andre stated that the hole in the heat exchanger was caused by gradual deterioration or rust or so forth, and that the heater had gotten to the point where it was worn out.

Leonard Spencer was the next witness called by plaintiffs. Mr. Spencer testified that he was not a licensed electrician, but that the plaintiffs had asked him to inspect their electrical system. He stated he had gone into the attic and had come across a number of wires which were openly spliced and going nowhere.

Plaintiffs next called A. Roy Dickerson. Mr. Dickerson stated that he is chief electrical inspector for the East Baton Rouge City-Parish, and that he had been requested to make an inspection of plaintiffs’ house. Mr. Dickerson stated that much of the wiring was not up to current National Electric Code standards. (Emphasis ours).

Homer A. “Tony” Martin then testified for plaintiffs. Mr. Martin is an independent heating, air conditioning, and electrical inspector. He was accepted as an expert in heating and air conditioning, and electrical inspections. Mr. Martin stated that he inspected the house and found several things wrong. In particular, he found that the return air vent was too small for the system, and that the unit was not properly insulated. He also found some opened junction boxes with raw wires protruding. Mr. Martin stated that there was not a non-combustible platform under the heater, and that the controls were on the wrong side of the heater.

Plaintiffs also called Jerry Lovett. Mr. Lovett testified that he is an electrical contractor, and that he rewired the plaintiffs’ house. He was accepted as an expert in the field of electricity installation. He testified the original wiring was not up to the current code specifications and that the cost of rewiring the house to bring it up to those requirements was $1959.00. (Emphasis ours).

ASSIGNMENT OF ERROR NO. 1

In the first specification of error, plaintiffs complain that the trial court erred in not finding that all the heating and electrical defects in the house would be considered defects under the redhibition law of Louisiana. However, plaintiffs do not specify what defects were not considered when the trial judge awarded the reduction in the purchase price of the house. Since the trial judge did reduce the purchase price, we must assume that all defects were considered and, therefore, this assignment lacks merit.

ASSIGNMENT OF ERROR NO. 2

In assignment of error No. 2, plaintiffs allege the trial court was in error in not granting attorney’s fees under C.C. art. 2545. This article states: “The seller, who knows of the vice of the thing he sells and omits to declare it, besides the restitution of price and repayment of the expenses, including reasonable attorney’s fees, is answerable to the buyer in damages.”

In order to show that the defendant had knowledge of the defect in the electrical system, plaintiffs argue that the defendant knew that an electrical switch in the den did not work. In order to show knowledge of defects in the heating system, plaintiffs argue that defendant was aware that her husband had done work on the heating system, and had added insulation in the house. The record reflects that this information was given to plaintiff by defendant prior to the sale of this house.

The trial court found that there was no showing whatsoever that the defendant knew of any undeclared defects. The record supports this conclusion. Therefore, this assignment lacks merit.

ASSIGNMENT OF ERROR NO. 3

In specification of error No. 3, plaintiffs argue that the trial court erred in failing to reduce the purchase price to an amount equal to the amount of money appellants spent repairing the heating unit and electrical system in the house. Plaintiffs argue that they are entitled to a full recovery based on Fraser v. Ameling, 277 So.2d 633 (La.1973), in which the court stated the rule that the measure of recovery in an action in quanti minoris involving a building is the amount necessary to convert the unsound structure into a sound one.

In Dunn v. Pauratore, 387 So.2d 1227 (La.App. 1st Cir.1980), the court stated:

“We are cognizant the purchaser of an older house can expect to replace some of the integrated component parts from time to time and should not expect the same useful life from them as afforded in a new house. However, in our view, the buyer of any house has the right to expect and is entitled to receive functional living conditions at the time of purchase. A heating unit which cannot be operated safely at the time of sale deprives the occupant of an essential element of a home without which the purchase undoubtedly would not have been made. In this instance, we hold the seller warranted only that the heating unit was free from hidden defects on the date of the sale which would prevent its use to safely warm the interior of the house.”
The court further stated:
“The warranty against redhibitory defects in sales of used equipment is not as extensive as in sales of new equipment but it does require the equipment operate reasonably well for a reasonable period of time.”

The evidence in this case shows that the plaintiffs had the heating system inspected by Baker Heating & Air soon after the purchase of the house. According to their testimony, the inspection did not reveal any defects. Plaintiffs’ own witness testified that the hole in the heat exchanger was caused by gradual deterioration or rust. The trial judge stated in his oral reasons for judgment: “But there is no way the court feels that a person should move into a twenty-four year old home, unless there is an express agreement to the contrary, and be awarded a brand new heating, air conditioning, new ducts, new electrical, because to do so, of course, you would say that whenever anyone sells an older home all things have to be new.” We agree with this conclusion.

As to the electrical work, the trial judge found that the evidence did show there were some latent defects in the electrical wiring, as, for example, hot wires that simply terminated in the attic. However, he did not feel as though the defendants should be responsible for the costs of completely rewiring the house, and with this, we also agree.

In a successful action for reduction of the purchase price, the amount to be awarded is the difference, at the time of the sale, between the value of the thing sold in its defective condition and its value as warranted. Lemonier v. Coco, 237 La. 760, 112 So.2d 436 (1959). The trial judge has wide discretion in the setting of damages in an action for quanti minoris. Ver-lander v. Hoffer, 351 So.2d 229 (La.App. 4th Cir.1977). The trial judge in the present case decided that the sum of $1850.00 would suffice for the defects present in the house. The record does not support a finding that this was an abuse of that wide discretion. The judgment of the trial court is affirmed. Appellant is to pay all costs.

AFFIRMED.

      . The house was the separate property of Mrs. Kennedy.


author: JOHN S. COVINGTON, Judge Pro Tern.

text:
    CONCORD ESTATES HOMEOWNERS ASSOCIATION, INC., et al. v. SPECIAL CHILDREN’S FOUNDATION, INC., et al.
    No. 83 CA 1186.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.

      Luke Lavergne, Baton Rouge, for plaintiffs-appellees.
    Walter L. Comeaux, Baton Rouge, for defendants-appellants.
    Before GROVER L. COVINGTON, C.J., and LOTTINGER and JOHN S. COVING-TON , JJ.

       Judge John S. Covington of the 19th Judicial District Court has been duly elected to this court; that term begins on January 1, 1985. In the interim, the Supreme Court has appointed him to this court pro tempore.

   JOHN S. COVINGTON, Judge Pro Tern.

Defendants Special Children’s Foundation, Inc. (SCF) and Special Children’s Village, Inc. (SCV) appeal from a judgment granting a preliminary injunction which prohibits them from continuing to operate a home for six or fewer mentally retarded individuals at a residence in Concord Estates Subdivision, Baton Rouge. Defendants contend that the trial judge erred in holding that they are using the property for commercial purposes, in violation of subdivision restrictions. Also at issue is whether the home is used as a “single-family dwelling” in accordance with subdivision restrictions.

We reverse.

Defendants SCF and SCV are separate, non-profit corporations, united in their guiding purpose, to promote the de-institu-tionalization of retarded individuals. To that end, SCF purchased the subdivision home in question and leased it to SCV for use as a home for a maximum of six retarded individuals, supervised by two live-in staff employees. At the time of trial, only four retarded persons, with staff, resided in the home.

Plaintiffs, Concord Estates Homeowners Association and various individual subdivision homeowners, subsequently filed suit against SCF, SCV and Loyd Rockhold, president of both corporations, seeking to enjoin continued operation of the home. The trial judge granted the preliminary injunction against SCF and SCV, but dismissed Loyd Rockhold from the suit.

The particular building restrictions relied upon by the plaintiffs are as follows:

“1.1 All of the lots contained in this subdivision are hereby designated as residential lots, and no building shall be erected, altered, placed or permitted to remain on any residential lot other than (1) one detached single-family dwelling not to exceed 2½ stories in height and a private garage for not more than four automobiles.

1.2 No lot shall be used for duplex housing or apartment houses or home occupations such as beauty shops, doctor’s offices, dress shops and related activities.

1.3 No school, church, assembly hall or fraternal group home shall be built or permitted on any lot in this subdivision.”

When he issued his ruling, the trial judge explained that he interpreted the designation, in Section 1.1 of the restrictions, of all subdivision lots as residential to constitute a prohibition of all commercial use of subdivision property, and he concluded that SCF and SCV were using the property for commercial purposes in violation of the restrictions.

It is well recognized that restrictions affecting immovable property are to be strictly construed, with any doubt resolved in favor of unencumbered property use. However, when differences arise as to the extent or limitation of restrictions, courts must look to the expressed intention of the party encumbering the property as set forth in the instrument embodying the restrictions, giving due consideration to the entire context of the document. Salerno v. DeLucca, 211 La. 659, 30 So.2d 678 (La.1978).

Defendants contend that the trial judge erred in his interpretation of the restrictions, arguing that they do not expressly prohibit commercial activity, other than those activities specifically listed in section 1.2. Alternatively, defendants contend that the trial judge erred in concluding that their use of the property is commercial, and not residential, in nature.

Plaintiffs argue that the use is commercial, because the operation of the home is a “business enterprise”. They argue that because SCF and SCV receive financial remuneration from the state and federal governments (which covers only part of operation costs), hire employees to live on the premises and supervise the residents, and pay worker’s compensation and social security for these employees, the use of the home is necessarily commercial in nature.

Although the restrictions do not specifically bar commercial activity in general, the designation of all lots as ‘residential’ clearly bars the use of subdivision property for any purpose other than as a residence. It is not necessary that we resort to a dictionary or law book to ascertain the meaning of “residential”. Giving the word its plain and ordinary meaning, we may confidently say that a building used for residential purposes is one in which people reside or dwell, or in which they make their homes, as distinguished from buildings in which people conduct business or commerce.

Plaintiffs produced no evidence that could support a finding that the use of the home in question involved on-the-premises operation, of a commercial or business enterprise, as those terms are commonly understood. That the defendants are partially compensated for their costs of operation and provide paid employees to supervise the residents of the home does not change the character of the actual use of the home from that of a residence or dwelling. Tucker v. Special Children’s Foundation, Inc. and Special Children’s Village, Inc., 449 So.2d 45 (La.App. 1st Cir.1984) writ denied 450 So.2d 959 (1984); see also Knudtson v. Trainor, 216 Neb. 653, 345 N.W.2d 4 (1984); Beres v. Hope Homes, Inc., 6 Ohio App.3d 71, 453 N.E.2d 1119 (1982); Hobby & Son v. Family Homes, 302 N.C. 64, 274 S.E.2d 174 (1981); Linn County v. City of Hiawatha, 311 N.W.2d 95 (Iowa 1981); Costley v. Caromin House, Inc., 313 N.W.2d 21 (Minn.1981); Crowley v. Knapp, 94 Wis.2d 421, 288 N.W.2d 815 (1980); Berger v. State, 71 N.J. 206, 364 A.2d 993 (1976).

Plaintiffs contend that defendants violated the restrictions in that they were not using the residence as a “single-family dwelling”, but as a “fraternal group home”. The restrictions do not themsélves define either term, nor do plaintiffs attempt to explicitly do so. Instead, they argue that the term “single-family” should be understood in its “ordinary” or “traditional” sense, “as commonly understood by all”. Although we would prefer not having to speculate as to plaintiffs’ meaning, we assume they are referring to a nuclear family, related by blood or marriage.

Acts 1982, No. 538 and Acts 1983, No. 659, amended and reenacted what is now our Mental Retardation and Development Disability Law. As amended, LSA-R.S. 28:381(8) provides, in pertinent part: “Community homes that provide for six or fewer mentally retarded individuals, with no more than two live-in staff, shall be considered single-family units having common interests, goals, and problems.”

Plaintiffs argue that the legislative characterization of these group homes as “single-family units” should not be applied in this instance, as the intent of the original drafter of the restrictions must control their interpretation. Alternatively, they argue that the definition was made solely for administrative purposes irrelevant to this context. Finally, assuming that we do apply the statute, plaintiffs argue that: (1) such would constitute an unconstitutional impairment of contracts and (2) the cited Acts are unconstitutional in that they are not confirmed to one object and their titles are not indicative of their multiple purposes.

Defendants contend that the residents of the group home are functionally a single family, despite the fact they are unrelated by blood or marriage. Additionally, they argue that the cited legislation, as a valid exercise of the state’s police power, super-cedes the subdivision restriction.

Assuming arguendo that the group of individuals in question would not otherwise constitute a single family within the context of these restrictions (which the court by no means concedes), LSA-R.S. 28:381(8) is applicable and supercedes the subdivision restrictions, for the reasons fully articulated by this court in Tucker v. Special Children’s Foundation, Inc., supra. The group home was accordingly being used as a “single-family dwelling”, in compliance with subdivision restrictions. Plaintiffs’ arguments of unconstitutionality were not raised in the court below and will not be considered for the first time on appeal. Rule 1-3, Uniform Rules, Courts of Appeal.

For the foregoing reasons, the judgment of the trial court enjoining defendants from operating the community home at 3071 Yorktown Drive, Baton Rouge, Louisiana, is reversed. Plaintiffs are to bear all costs of this appeal.

REVERSED.

      . However, we note that this court in Tucker rejected a similar claim of unconstitutional impairment of contracts respecting this statutory provision.


author: JOHN S. COVINGTON, Judge Pro Tem.

text:
    Dorothy N. HAYES and Judson W. Hayes v. COMMERCIAL UNION ASSURANCE COMPANY, J.E. Fowler Petroleum Products, Inc., and Dudley L. Barron.
    No. 83 CA 1196.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.
    Writ Denied Jan. 25, 1985.

      Phil E. Miley, Baton Rouge, for plaintiff. Paul M. Marks, Jr., Baton Rouge, for defendant.
    Before GROVER L. COVINGTON, C.J., and LOTTINGER and JOHN S. COVING-TON , JJ.

       Judge John S. Covington of the 19th Judicial District Court has been duly elected to this court; that term begins on January 1, 1985. In the interim, the Supreme Court has appointed him to this court pro tempore.

   JOHN S. COVINGTON, Judge Pro Tem.

This is a suit for personal injuries. The trial judge rendered judgment in favor of plaintiffs, awarding Dorothy N. Hayes $20,000.00 for general damages, $6,618.42 to her husband, Judson W. Hayes for special damages, denied recovery for future medical expenses and cast defendants for all court costs. Plaintiffs devolutively appealed, seeking increases in both general and special damages. Defendants answered the appeal seeking decreases of both general and special damages, and an affirmation of the judgment insofar as it did not award future medical expenses.

LIABILITY STIPULATED

Defendants and plaintiffs stipulated to liability and the ceiling of that liability, namely policy limits, but did not stipulate that the accident was the cause of the injuries alleged in the suit or that the vast majority of medical expenses were either for treatment of problems related to the accident or were reasonable.

Sometime before trial date all parties stipulated that they had no objection to the Trial Judge’s reviewing medical depositions, reports, and records prior to the trial.

All medical testimony was by deposition. Other medical evidence consisted of physicians’ reports and bills for services, and Mrs. Hayes’ hospital record of the April 15 to April 19, 1980 confinement. Live testimony was given by Mr. and Mrs. Hayes, their daughter, Mr. Hayes’ aunt, a minister of the church the Hayes attend and a neighbor.

FACTS

Mrs. Hayes’ automobile was struck by a tractor-trailer rig owned by J.E. Fowler Petroleum Products, Inc. (Fowler Petroleum) and driven by Dudley L. Barron (Barron). The automobile was virtually demolished and Mrs. Hayes was trapped in the wreckage for a while.

About one and one fourth hours after the accident Mrs. Hayes arrived at the Emergency Room of Our Lady of the Lake Regional Medical Center (OLOL) by ambulance. She was treated initially by Dr. Morris, an Emergency Room physician, who informed Dr. James Lutschg, Mrs. Hayes’ physician, that she had been involved in an accident. Mrs. Hayes was admitted to OLOL on orders from Dr. Lutschg.

Two days after the accident Dr. Richard Bolton, an orthopedist, examined Mrs. Hayes as requested by Dr. Lutschg. Also, at Dr. Lutschg’s request, Dr. William Dimattia, an ENT specialist, examined Mrs. Hayes to determine whether glass particles remained in her left ear canal.

Between the date of the accident, April 15, 1980, and the trial of this case, on June 29, 1983, Mrs. Hayes was examined, treated, and/or evaluated by several physicians and an “acupuncturist’s assistant”.

Mrs. Hayes was seen by Dr. Lutschg, an internal medicine specialist, only once between April 19 and April 25, 1980. Dr. Dimattia examined her only in the hospital and never at his office. Dr. Flynn evaluated her on August 5, 1980 on a referral from Dr. Jere Melilli. Dr. Synder, a cardiologist, did a cardiac evaluation of Mrs. Hayes on August 17, 1981; he did not see her before or after August 17, on which date she was also examined by unspecified physicians in other departments at Ochsner Clinic.

Dr. Melilli, family medicine practitioner, examined and treated Mrs. Hayes in his office on sixty-two separate visits during the period May 6, 1980 through September 27, 1982, one week before Dr. Melilli’s deposition was taken. Dr. Bolton saw Mrs. Hayes in his office six times between April 25 and August 26, 1980, on June 12, 1981, and on July 12, 1982; on December 13, 1982 his deposition was taken.

“Dr.” Li Chang Wang, licensed as an “acupuncturist’s assistant” in Louisiana, administered acupuncture “treatment” on forty-five visits to his office, between September 15, 1980 and May 5, 1981; his deposition was taken on May 13, 1981.

Before the accident Mrs. Hayes performed many physical tasks around the family home, including all of the yard work, trimming tree limbs, and housekeeping duties of every kind. She was active in church functions, not only attending church services three times a week but also working as a volunteer in the church office. She drove her car everywhere she needed to go before the accident. She has done no yard work, driving, church volunteer work, or heavy housekeeping duties since the accident and she attends church about once a month. Following the accident Mrs. Hayes, who was almost 47 years old on the date of the accident, has experienced severe headaches, muscle spasms, blood pressure elevation, cardiac problems, back pain, and depression. She attributes all of her medical problems to the injuries she sustained in the automobile accident.

ISSUES

The issues are: (1) Did the Trial Judge properly evaluate the medical testimony and give proper weight to the medical opinions of the various physicians? (2) Did the Trial Judge abuse his judicial discretion by awarding either excessive or inadequate general damages? (3) Did the Trial Judge abuse his judicial discretion by awarding either excessive or inadequate medical expenses as special damages? (4) Did the Court give proper weight to the testimony of plaintiffs and their lay witnesses to bolster the medical evidence as to Mrs. Hayes’ disabilities and the reasons for them? (5) Did the Trial Judge err in failing to make an award for future medical expenses? (6) Did plaintiffs’ failure to call as witnesses several physicians who examined Mrs. Hayes before and after the accident sued upon give rise to the inference that their testimony would have been adverse to plaintiffs’ contentions?

EVALUATION OF EXPERT AND LAY TESTIMONY

Plaintiffs assert in their brief that the Trial Judge gave too little- weight to the testimony of Dr. Jere Melilli while defendants’ brief asserts that the Trial Judge based his “high award apparently strictly on the basis of Dr. Melilli’s testimony”. Defendants state in their brief that it was acceptable for the Trial Court to place “some emphasis on the testimony of Dr. Melilli who was stipulated to be an expert in the field of family practice ” but assert that too much weight was given to it “in the face of testimony of multiple orthopedists, neurosurgeons and others” who could not find objective data to support Mrs. Hayes’ complaints. Defendants concede that Dr. Melilli “was apparently the primary treating physician”, state that he “was the only general practitioner to testify in this case”, and rely on the “well settled general rule that the testimony of specialists in an appropriate field of medicine is more persuasive than that of a general practitioner”, citing Allen v. Early Company, 300 So.2d 518, 519 La.App. 2nd Cir.1974), as the basis for their contention that “the expertise and observations” of “multiple orthopedists, neurosurgeons and others” which “overwhelmingly favored the defense” was “generally ignored” by the Trial Judge. (Emphasis supplied).

Defendants’ reliance on Allen v. Early Company, supra, is misplaced; the principle stated therein was quoted out of context, and Allen is factually distinguishable from this case.

Defendant’s brief inconsistently labels Dr. Melilli as “an expert in the field of family practice” and “the only general practitioner to testify”, while conceding that Dr. Melilli “was apparently the primary treating physician”.

“Family practice is a comprehensive specialty ...”

“Residencies in family practice ... [are] three years in duration after graduation from medical school ...”

Intensive structured experience in orthopedics is an integral part of the family practice residency. Directory of Residency Training Programs, Accreditation Council for Graduate Medical Education (AMA, Chicago, 1984), p. 26.

Dr. Jere D. Melilli is listed as a Board certified Family Practice specialist in the 1984 Diplómate Directory of the American Board of Family Practice at page 213. Defendants counsel stipulated at the very beginning of Dr. Melilli’s deposition that “Dr. Melilli is an expert in family practice.” Thereafter plaintiffs’ counsel did not ask the usual questions concerning the medical school he attended and the year he graduated, the number of years in practice, residencies completed, if any, and Board certifications, if any. The stipulation made by defendants’ counsel cures any error, if indeed it was error, by plaintiffs’ counsel’s failure to establish Dr. Melilli as an expert in the field of family practice. Conceding defendants’ argument that “the expertise and observations of the other physicians was generally ignored” by the Trial Judge in finding Mrs. Hayes’ neck and back problems were caused by the accident sued upon, we do not believe the Trial Judge committed error in doing so. Defendants concede that Dr. Melilli was “the primary treating physician”.

Thibodeaux v. Southeastern Fire Insurance Co., 399 So.2d 704, 706 (La.App. 1st Cir.1981), cited by defendants as authority for the proposition that “the weight to be accorded expert testimony is largely dependent upon the expert’s qualifications and the facts upon which his opinion is based ”, is factually inapposite.

This Court, in Johnson v. R.P. Farnsworth and Company, 186 So.2d 405 (La. App. 1st Cir.1966), affirmed the District Court, reasoning as follows:

“It is now settled jurisprudence that in evaluating the testimony of medical experts of equal or nearly equal qualifications, considerable weight and importance must be attached to the relative opportunities for observation of the patient and familiarity with the patient and his history. The testimony of a treating physician who has had the benefit of repeated examinations and sustained observation of a patient under his direct care and treatment is to be accorded greater weight and probative value than that of a physician who has not undertaken to treat the patient but merely to examine him a few times preparatory to giving expert testimony regarding the patient’s condition. (Citations omitted). The testimony of a physician who examines and treats the claimant from the inception of injury is usually entitled to greater weight than the opinion of one who examines the claimant later. (Citations omitted).” 186 So.2d 405, 409. (Emphasis Supplied). Accord: Lockhart v. Pargas, 271 So.2d 664 (La.App. 1st Cir.1972); Jaeckle v. Dresser Industries, Inc., 457 So.2d 646 at 648 (La.1984).

This Court succinctly stated the expert witness rule in Holmes v. Southeastern Fidelity Insurance Co., 422 So.2d 1200 (La.App. 1st Cir.1982), Writ Den. 429 So.2d 133.

“The finder of fact, be it judge or jury, should assess the credibility of witnesses, expert or lay, to determine the most credible and realistic evidence. (Citation omitted) In reaching conclusions, the finder of fact need not accept all of the testimony of any witness as being true or false and may believe and accept a part or parts of a witness’ testimony and refuse to accept any part or parts thereof. (Citations omitted) The opinions of expert witnesses are not binding on the finder of fact and are to be weighed the same as any other evidence. (Citations omitted) The weight to be given expert testimony is dependent upon the professional qualifications and experience of the expert and the facts upon which the opinion is based. (Citations omitted) The fact finder’s evaluation of expert and lay testimony will not be disturbed unless found to be clearly wrong. (Citations omitted)” 422 So.2d 1200, 1203-1204. (Emphasis supplied). ACCORD: Newitt v. Hospital Corporation of Louisiana, 417 So.2d 391, 394 (La. App. 5th Cir.1982); Galloway v. Gaspard, 340 So.2d 579 (La.App. 1st Cir. 1976); Smith v. Andrepont, 378 So.2d 479 (La.App: 1st Cir.1979).

Dr. Bolton, the orthopedist who treated Mrs. Hayes in the hospital, saw her in his office six days after she was discharged; during that visit she complained of low back pain and severe frequent headaches; at the first office visit Dr. Bolton’s impression was that Mrs. Hayes had sustained sprains of the right thumb, neck and back but noted “some improvement in the motion of her neck”. He sent Mrs. Hayes to physical therapy “for-the affected areas”. Mrs. Hayes complained of neck and back pain during the June 12, 1981 and July 12, 1982 visits to Dr. Bolton who noted that she “showed a decreased range of motion in the lumbar spine” on July 12, 1982 and that she “complained of pain on bending and lifting”. After Mrs. Hayes’ August 26, 1980 visit to Dr. Bolton’s office he discontinued follow-up care because “she is still seeing Dr. Melilli weekly”.

Dr. Melilli started Mrs. Hayes on cervical traction at home on May 13, 1980 and physical therapy at the Baton Rouge Physical Therapy Center on June 17, 1980 but on July 17, 1980 his examination revealed “her neck muscles were still tight from the base of her skull down into the upper thoracic spine with some limitation of motion” (emphasis added) so he continued physical therapy and cortisone therapy. Mrs. Hayes complained of pain in the upper back and shoulders from the onset of visits to Dr. Melilli’s office and “then more progressively the lower back began to take on as much significance as the neck and shoulders”.

Twenty-five of the visits to Dr. Melilli were at seven day intervals and twenty-seven were at fourteen day intervals. Mrs. Hayes was given cortisone injections during at least eighteen of the sixty-two visits enumerated in Dr. Melilli’s deposition; she was given Vitamin B-12 injections on numerous visits “to reinforce the nervous system”; and oral medications to combat muscular inflammation and to relax the muscles were prescribed on a continuing basis up to the date of the trial, more than thirty-eight months post-accident.

Dr. Melilli’s conclusions, based on treatment up to September 27, 1982, were that: (1) Mrs. Hayes has a chronic cervical strain; (2) the continued presence of the muscle spasm and tenderness renders her prone to have a herniated nucleus pulposus of the cervical spine, even in the absence of neurological deficits; (3) the post-concussion syndromes had been alleviated, “probably within one month” post-accident; (4) plaintiff has a chronic lumbosacral strain which could explain the history of pain radiating down the leg. Further, Dr. Melilli was of the opinion that plaintiffs cervical strain problem and her back problem reached plateau status about a year and a half before his deposition on' October 5, 1982; only gradual improvement has been noted; the prognosis for her back problems is “guarded”. Dr. Melilli projected, as future medical treatment, “mainly supportive care, occasional physical therapy, occasional use of muscle relaxers, and anti-inflammatory agents” for a period of time “very difficult to say.” Mrs. Hayes was “very cooperative” toward treatments, recovery or wanting to get well, but “she has developed some depression concerning her accident, which, of course, compounds the prognosis and eventual recovery.” For the year preceding October 5, 1982, Mrs. Hayes’ condition was such that she was “probably limited to doing fifty to sixty percent of duties a normal housewife would be expected to do ... without difficulty.” Conditions remained the same through June, 1983. Comparing Mrs. Hayes’ “voluntary guarding” when Drs. Bolton and Melilli attempted range of motion movements during Dr. Bolton’s eight office examinations and Dr. Melilli’s sixty-two office examinations, Dr. Melilli “assess(es) more value to the fact that there was consistently tenderness in the same locations on each visit, virtually the same areas of resistance on each of these visits, which would tend to give some degree of credibility to the injury, in that if the patient was merely malingering it is generally a migratory type of symptoms that are present.” Dr. Melilli based his opinion on “not only subjective complaints, but the consistent limitation of motion and tenderness due to what I felt was apparently legitimate pain.” Dr. Melilli’s deposition, taken as a whole, attributes plaintiff’s back problems to the accident, and her “depression problem” primarily to the accident rather than menopausal overlay.

The District Judge observed that he “was quite impressed with the testimony of all of the witnesses” and found that Mrs. Hayes “did suffer prolonged injuries” causally connected to the accident by Dr. Melil-li’s deposition. The Court found no causal relationship between the automobile accident and a cardiovascular disorder that is hereditary, an enlarged pupil in one eye, and hypertension. Plaintiffs have abandoned those contentions on appeal.

In F & S Offshore, Inc. v. Service Machine & Shipbuilding Corporation, 430 So.2d 1167 (La.App. 1st Cir.1983), as in this case, “the record is made up of testimony taken in court in the presence of the trial judge and depositions of witnesses taken out of his presence. In evaluating the testimony adduced in open court, we must follow the rules enunciated in Canter [v. Koehring Co. (La.1973)] and Arcen-eaux because the trial judge is in a better position to evaluate the credibility of the witnesses (as compared with an appellate court’s access only to a cold record). However, where a trial judge relies on the deposition of a witness, the rules of Canter and Arceneaux do not apply because the trial judge is in no better position to assess credibility than an appellate court. (citations omitted) When evaluating depositions, rather than live testimony, we must determine the sufficiency and preponderance of the evidence, (citation omitted)” 430 So.2d 1167, 1173. ACCORD: Bridgewater v. Crown Zellerbach, 449 So.2d 515, 520 (La.App. 1st Cir.1984); Durbin v. Cockerham, 442 So.2d 634, 636 (La. App. 1st Cir.1983); and Gould v. State, Through Department of Corrections, 435 So.2d 540, 543 (La.App. 1st Cir.1983). (Parentheses and emphasis supplied).

Neither the District Court, as the trier of fact, nor this Court, as reviewer of fact and law, is required “to accept all of the testimony of any witness”; thus, either court “may believe and accept a part or parts of a witness’ testimony and refuse to accept any part or parts thereof” insofar as deposition testimony is concerned. Holmes, supra, p. 1203. The District Court evaluated the live testimony of lay witnesses and the deposition testimony of medical experts. His evaluation of the lay testimony will not be disturbed unless it is found to be clearly wrong. Arceneaux v. Do-mingue, 365 So.2d 1330, 1333 (La.1978). We, like the District Court, have determined that plaintiffs proved the causal relationship between the vehicular collision and the injuries. Plaintiffs disabilities testified to by the physicians has been proven by a preponderance of the evidence.

ADVERSE INFERENCE

Plaintiffs did not call as witnesses Dr. Lutschg, the physician who admitted Mrs. Hayes to the hospital the day of the accident and who had treated her before the accident and one time after she was discharged from the hospital. Defendants argue that plaintiffs’ failure to call Dr. Lutschg and “various treating physicians” gives rise to the presumption that those physicians would have testified adversely to plaintiffs’ cause, citing Vidrine v. Sentry Indemnity Co., 341 So.2d 558 (La.App. 3rd Cir.1976)), Writ Den. 343 So.2d 202.

Vidrine, supra is factually inapposite and of no real value in resolving the adverse presumption issue raised by defendants for the first time in this Court.

In Bagley v. Commercial Union Insurance Company of New York, 216 So.2d 102 (La.App. 1st Cir.1968), this Court was asked to invoke the adverse presumption rule because the physician who admitted the accident victim to the hospital and treated her during a three-day hospitalization was not called to testify. From four days post-accident and for over three months the injured minor was treated by the general practitioner who testified at the trial. In disposing of defendants’ contention “that an unfavorable inference should be drawn from the failure of plaintiffs to call the physician who initially treated her upon admission to a hospital on the night of the accident,” this Court reasoned as follows:

“... In effect our jurisprudence holds that failure to call the examining physician in cases of this nature gives rise to the negative presumption that the testimony of such a witness would be prejudicial to plaintiff’s cause. (Citations omitted) Where, however, the party against whom the inference is sought to be imposed has established his case by a preponderance of other competent testimony, such negative inference is held to have been successfully rebutted. (Citations omitted) In this regard we find that plaintiffs have produced the testimony of Dr. John T. Lewis, General Practitioner, who undertook treatment of plaintiff from March 10, 1966, four days following the accident, until June 16, 1966. Dr. Lewis’ testimony, as will hereinafter appear, fully covers the nature, scope and duration of Miss Bag-ley’s injuries. In view thereof, we unhesitatingly conclude plaintiffs have eliminated any unfavorable inference which might otherwise have resulted herein from failure to adduce the testimony of the medical authority who first treated Miss Bagley." 216 So.2d 102, 107. (Emphasis supplied).

In Liner v. Patrick, 421 So.2d 391 (La. App. 1st Cir.1982) the plaintiff saw three physicians during the five months after the accident but not one was called to testify. The physician who saw her initially five months post-accident testified that he treated plaintiff “for many complaints but primarily for a painful coccyx”. This Court held it was proper to invoke the adverse presumption against plaintiff because “there was no evidence relative to plaintiff’s medical condition for the five-month period immediately after the accident”.

The Fifth Circuit Court of Appeal recently refused to apply the adverse presumption against a plaintiff who had been examined by four psychiatrists but only one psychiatrist testified. Faucheaux v. Hooker Chemical Corp., 440 So.2d 1377, 1382 (La.App. 5th Cir.1983), Writ granted. “In Re Hooker, applying for Certiorari”, 444 So.2d 1251, Writ withdrawn, 459 So.2d 498 (1984). The Court held that the testimony of the psychiatrist and lay witnesses supported plaintiff-appellee’s claim of mental disability. Therefore the adverse presumption was rebutted. In reaching its decision the Court reasoned, in part, that:

“... Under the jurisprudence, it is well established that an adverse presumption arises upon the unexplained failure of a party to call a witness who possesses peculiar and material knowledge essential to that party’s case, when that witness is available to him, but the presumption is rebuttable. (Citations omitted) However, ‘this presumption is not sufficient to outweigh or overcome the positive testimony of medical doctors who did testify inasmuch as a litigant is not required to produce all witnesses who might have some knowledge as to the matter in dispute’. (Citations omitted). The courts have held this to be particularly pertinent where the witness is equally available to the defendant. (Citations omitted).” 440 So.2d 1377, 1382, (Emphasis supplied).

The positive testimony of Dr. Melilli and Dr. Bolton was sufficient to rebut the adverse presumption urged by defendants. The physicians whose testimony defendants argue would have been adverse to plaintiffs’ cause were equally available to defendants. However, defendants’ defense consisted entirely of cross-examination of plaintiffs and their witnesses.

QUANTUM

Both plaintiffs and defendants contend the award of $20,000.00 for pain and suffering was an abuse of judicial discretion and this Court should modify the award.

Neither plaintiffs nor defendants cite any cases in support of their respective positions that the general damages awarded were inadequate or excessive. Defendants argue that “under the circumstances the award was excessive”. Plaintiffs argue the “award of damages was woefully inadequate in comparison to the injuries sustained”.

“Recompense for pain and suffering ‘... cannot be calculated with any mathematical precision’. Boutte v. Hargrove, 290 So.2d 319 at 322 (La.1974).” Walton v. William Wolf Baking Company, Inc., 406 So.2d 168, 175 (La.1981).

In the assessment of general damages “much discretion must be left to the [trial] judge or jury”. Civil Code Article 1934(3). “Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963) is the fountainhead decision of modern jurisprudence interpreting and applying this code provision.” Reck v. Stevens, 373 So.2d 498 (La.1979).

“The primary question before the appellate court ... is whether the judge or the jury in fixing the amount of the award has abused its great discretion vested in them by law ... [Prior decisional awards] relied upon may be similar in that each of them involve a similar injury such as broken arm, the loss of an eye or eyes, or the loss of some member of the body. Thereafter, however, the similarity ceases for each case is different, and the adequacy or inadequacy of the award should be determined by the facts or circumstances peculiar to the case under consideration. The primary purpose of the judge or jury in fixing the award in a personal injury ease is to adequately compensate the injured person for his injury under the facts shown to exist in his case.” Gaspard v. LeMaire, 158 So.2d 149, 158, quoted in Reck v. Stevens, supra at 373 So.2d 499-500.

We have scrutinized the facts and circumstances peculiar to the case under consideration. Our analysis of the record, which includes the depositions and records of physicians and others who treated Mrs. Hayes, fails to “clearly reveal that the trier of fact abused its discretion -in making its award”, a prerequisite for an appellate court to “disturb an award made by a trial court”. Coco v. Winston Industries, Inc., 341 So.2d 332, 335-336 (La.1977). Because we have determined that the record does not “clearly reveal that the trier of fact abused its discretion in making its award” it is not appropriate for this Court to “resort to prior awards” to determine whether we would have made a larger or smaller award had we been the trier of fact. Prior awards, as an aid in determining excessiveness or insufficiency, may be used only if the present award is shown to be greatly disproportionate to the mass of past awards for truly similar injuries. Reck v. Stevens, supra, at 501; Walton v. William Wolf Baking Co., supra.

We find this $20,000.00 general damages award to be neither excessive nor inadequate and it will not be disturbed. Accordingly, plaintiffs’ third assignment of error and defendants first assignment of error are without merit.

FUTURE MEDICAL EXPENSES

Plaintiffs’ assign as error the District Court’s failure to award future medical expenses, citing Naylor v. Louisiana Department of Public Highways, 423 So.2d 674 (La.App. 1st Cir.1982) as authority for their contention that the failure to award future medical expenses constituted an abuse of discretion. In Naylor the District Court awarded future medical expenses, consisting of nursing care and hospitalization, based on testimony of a nurse, a physician, and an economist, all of whom projected the cost of the future care the accident victim would require for the period of his incapacity.

In the present case the only testimony regarding future medical attention is in Dr. Melilli’s deposition which was taken almost eight months before the trial. He projected that Mrs. Hayes would require “mainly supportive care, occasional physical therapy, occasional use of muscle relaxors, and anti-inflammatory agents” for an indeterminate time, such are to consist of the care gi-ven for a year and a half before the deposition was taken. Dr. Melilli’s charges for services to the date of the trial were $2,558.00, physical therapy he ordered cost $319.00, and muscle relaxors and anti-inflammatory drugs to the date of trial cost $514.75. Thus, for the thirty-eight months post-accident care either provided for Mrs. Hayes by Dr. Melilli or ordered by him, the total cost was $3,391.75.

The failure of the District Court to award any damages for future medical expenses is an abuse of discretion. Prevost v. Cowan, 431 So.2d 1063, 1067 (La.App. 1st Cir.1983); Reck v. Stevens, supra. Dr. Melilli was unable to state how long Mrs. Hayes would require future medical services of a “mainly supportive” nature and no testimony regarding their cost was offered at the trial or by deposition. Based on the cost of medical services already provided by Dr. Melilli or ordered by him, we find that the plaintiffs are entitled to special damages of $3,000.00 for future medical expense.

OTHER SPECIAL DAMAGES

Defendants assign as errors the awarding of Dr. Melilli’s entire bill, awarding the bill of the acupuncturist, and “other” non-specified “damages that simply are not related to the accident”. Dr. Melilli treated Mrs. Hayes from May 6, 1980 until June 29, 1983, when the case was tried, for problems attributable to the accident. It was Dr. Melilli who suggested Mrs. Hayes might benefit from acupuncture treatments administered by someone working under Dr. Melilli’s supervision. It is unfortunate that the acupuncture treatments did not produce the benefits Dr. Melilli and Mrs. Hayes hoped they would. Defendants have cited no jurisprudence, and we can find none, which holds that unless a method of treatment ordered by the treating physician produces the desired results the patient cannot recover the cost of those treatments as special damages in a tort action.

Defendants contentions regarding the special damages awarded are without merit.

DECREE

Accordingly, the judgment of the trial court is amended and plaintiffs are awarded $3,000.00 for future medical expenses with legal interest thereon from date of judicial demand until paid. In all other respects the judgment is affirmed. Costs are to be paid by defendants.

AMENDED AND AS AMENDED, AFFIRMED.


author: GROVER L. COVINGTON, Chief Judge. LOTTINGER, J.,

text:
    Harold G. DAVES, et al. v. STATE of Louisiana, Through DIVISION OF ADMINISTRATION, OFFICE OF RISK MANAGEMENT.
    No. CA 83/1198.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.
    Writ Denied Jan. 25, 1985.

      James J. Thornton, Jr., Shreveport, and Gerald Walter, Jr., Baton Rouge, for plaintiffs-appellees Harold G. Daves and Daves Ins. Agency Inc.
    H. Brenner Sadler and F. Rae Swent and Ledoux R. Provosty, Alexandria, for bidder-appellant (not a party to the suit), Alexander & Alexander, Inc.
    Glenn R. Ducote and Charles McCowan, Jr., and Pamela Walker, Baton Rouge, for defendant-appellant State of La., thru Div. of Admin., Office of Risk Management.
    Before GROVER L. COVINGTON, C.J., and LOTTINGER and JOHN S. COVING-TON, JJ.

       Judge John S. Covington of the 19th Judicial District Court has been duly elected to this court; that term begins on January 1, 1985. In the interim, the Supreme Court has appointed him to this court pro tempore.

   GROVER L. COVINGTON, Chief Judge.

This is an appeal by the defendant, State of Louisiana, through Division of Administration, Office of Risk Management, from a judgment of the district court reversing the decision of the Commissioner of the Division of Administration, and rendering judgment in favor of plaintiffs, Harold G. Daves and Daves Insurance Agency, Inc., ordering and decreeing that there was a valid contract entered into between the parties which was for a period of three years commencing August 20, 1982 and ending August 20, 1985; that annual adjustment of premiums at the policy anniversary date was appropriate under the law; and that the contract between the parties could not be cancelled except for legal cause. The judgment further stayed the defendant from any proceedings to cancel the insurance contract between the State of Louisiana and Daves Insurance Agency, Inc. (Travelers Indemnity Company) entered into pursuant to Bid Proposal A-18. The judgment further stayed the defendant from issuing any solicitation for bids from a person, firm or corporation where the purpose of such solicitation is the replacement of all or any part of the insurance coverage described and set forth in Bid Proposal A-18 and the contract which was confected by the acceptance of the bid by the State.

Alexander & Alexander, Inc., although not a party or participant in the proceedings below, has obtained an order of the trial court allowing it to appeal the decision, pursuant to State v. City of Baton Rouge, 345 So.2d 520 (La.App. 1st Cir. 1975), writ denied 346 So.2d 212 (La.1976). Alexander & Alexander, Inc. alleged that it was a taxpayer and an unsuccessful bidder on the public contract forming the subject matter of these proceedings, and that it could have intervened in the trial court.

The issues on this appeal are: (1) Was there a contract between the State and Daves Insurance; and, if so, for what period of time; (2) if there was a multi-year contract between the parties, was it subject to an annual adjustment of premiums at the policy anniversary date; and (3) if there was a contract between the parties, was the State, as the insured, entitled to have the contract modified to include a unilateral cancellation without cause clause upon due notice?

This matter arises out of a contract controversy that developed following the issuance of invitations to bid and the award of contracts by the State of Louisiana in connection with insurance coverage for its fleet of vehicles.

A hearing with respect to the controversy was initiated at the administrative level by the State of Louisiana, Division of Administration, Office of Risk Management.

On April 26, 1983, the hearing officer rendered a decision to the effect that it had been the intention of the State that the insurance policies issued under the invitation for bids contain a “standard” right of cancellation provision and that the insurer provide a satisfactory endorsement with respect to cancellation or the contract should be cancelled' for non-compliance with the bid specifications. As a result of the hearing, notice of cancellation of the contracts was given by the State to the insurer. The administrative decision was allowed to stand by the Commissioner of Administration.

Thereafter, an appeal was taken by Harold G. Daves and Daves Insurance Agency, Inc. to the district court pursuant to the Louisiana Procurement Code, LSA-R.S. 39:1551, et seq.

Following a review of the administrative record, the district judge found that the decision of the hearing officer, which became the decision of the Commissioner of Administration, was “arbitrary, capricious and characterized by an abuse of discretion and clearly an unwarranted exercise of discretion,” and further found that the decision was “manifestly erroneous in view of the reliable, probative and substantial evidence on the whole record.”

The facts giving rise to the controversy between the State and the insurer began in the summer of 1982, when the State, which had insured all of its motor vehicles for liability insurance under “negotiated contracts,” decided that, pursuant to the Procurement Code, it would put such contracts “out for bids.” It then prepared the subject bid proposal, calling for liability insurance on all state vehicles, including the Department of Transportation and Development in one provision and the Department of Public Safety in another.

The bid proposal, consisting of fifty-three pages of detailed specifications and requirements with a two-page addendum, was prepared by the Office of Risk Management and delivered to the Office of State Purchasing, which in turn sent it to prospective bidders and publicly solicited bids thereunder.

On August 2, 1982 bids submitted in response to the State’s invitation to bid were opened. Among the bidders was Daves Insurance Agency, Inc., on behalf of the Travelers Indemnity Company, which submitted a bid covering vehicles used by various Departments and the Department of Transportation and Development (all vehicles except those of the Department of Public Safety).

When the bids were submitted, the Division of Administration then evaluated them and concluded that the bid submitted by Daves Insurance was the lowest responsive bid and it was awarded the contract.

In accordance with the contract, the State paid the first year’s premium and the contract was effective as of August 20, 1982. As stated above, a controversy in connection with the insurance coverage developed. This led to the administrative hearing, the decision of which was appealed to the district court, whose judgment of reversal of the administrative decision is now on appeal before this Court.

I.

On the question of whether there was a contract between the State and the insurer, we hold that there was a contract commencing August 20, 1982 for a term of three years.

When the bids were submitted, the Division of Administration evaluated the various bids and decided that as far as that portion dealing with state-owned motor vehicles, excluding the Department of Public Safety, the bid submitted by Daves Insurance was the lowest responsive bid and the contract was awarded to it. At that moment, a binding contract was .effected between the State and the insurer.

The first page of the bid proposal stated that the contract was to be for a period of three years. The bid by Daves Insurance was for the three year term. The acceptance by the State was for the three year term. Under LSA-R.S. 39:1615, the Division of Administration is permitted to enter into multi-year contracts not to exceed three years. The record does not reflect that at any time during the bidding and acceptance process any party even intimated that the term of the contract was to be anything other than three years. As required by LSA-R.S. 39:1615, the term of the contract was “clearly stated” in the bid proposal as three years. We agree with the trial court’s opinion that “both parties are bound for three years.”

II.

On the question of whether the contract was based on a flat equal or level rate for the three year term or subject to an annual adjustment of premiums at the policy anniversary date, we hold that under the laws of this state automobile liability insurance policies cannot be issued on a level rate for the three-year term, but only on a one-year basis and thereafter to be adjusted. In the instant case, the bid of Daves Insurance for the first year’s premium was about one-third of the amount that the State had paid to another carrier for the previous year’s premium. The bid of Daves Insurance stated that it was subject to annual adjustment of premiums. This bid was evaluated by the Office of the Commissioner of Administration and accepted by the State with the understanding that if there was an experience in the first year that justified the Insurance Rating Commission to adjust the premium, the adjustment in rate would be made. There is no merit in the State’s contention on this point that the contract fixes a level rate for the term of the contract.

III.

We now consider the crucial issue on this appeal, was the State, as the insured, entitled to have the contract modified to include a unilateral cancellation without cause clause upon due notice? The trial judge answered this question in the negative, stating:

[TJhis was a three-year contract and to allow the State to cancel at any time during the three-year period, except for legal cause, would be totally unfair and inequitable. (Emphasis by the trial judge.)

The trial judge then said: “It’s this Court’s opinion that neither one of them has the right to terminate the contract except for legal cause. Otherwise, you’d have no contract.”

The rationale of the trial court’s opinion is stated:

The State could have and if it had wanted should have included in bid proposal A-18 either a reference to a particular standard form of policy and a particular cancellation clause, or it should have had it in its own specific provisions, but it did not. It sought on its own a three-year— imperative three-year contract, did not specify any type of cancellation that would be just a cancellation upon sending of notice, and if this Court were to allow it to do it now, it would be to the severe detriment of the bidder who was awarded the bid and who has been insuring the State vehicles, and who has been paying out on losses, because it could now cancel for no legal grounds whatsoever and not allow that bidder to recover the losses which it contemplated it could recover on a three-year bid, which was the bid submitted and accepted.

Turning now to the argument of Alexander & Alexander, Inc., this appellant argues that the trial court erred in holding that the administrative decision was “arbitrary and capricious” and that the judgment of the trial court exceeded the scope of the matter under review. There is no merit to either contention.

In discussing the opinion of the hearing officer, the trial court remarked:

Besides the entire record and all of the documents, I have also reviewed the opinion of the hearing officer, which is now the opinion that is being appealed, and it is beyond this Court’s comprehension as to how the hearing officer could have reached two or three of the conclusions that she did reach. In paragraph two of that opinion it is stated, “The provisions of bid proposal A-18 further required that a standard policy form be provided, which, of course, includes a standard cancellation provision for both parties, ...” I don’t find that anywhere in the evidence that was presented to the hearing officer nor in any of the documents which were thrown in, in globo, nor in the bid proposal. That same paragraph further states, “As an insurer, Travelers, of course, is in possession of standard forms approved for its use by the state Insurance Department and need look to no other source for these forms.” To this Court, that begs the issue. That then says that proposal A-18 had written in it, with some invisible ink, that every bidder was bidding on the commercial automobile standard form issued by Travelers, and that’s not in the bid proposal. In paragraph three, the hearing officer continues to adopt or enunciate the theory that an essential and absolute right of the State was being taken away from it by an endorsement which sought to deprive the State of any right to cancel whatsoever. That is incorrect; the State had the right and still has the right to cancel this contract for cause, and so does Daves Insurance Agency, but that’s all.
I guess the crowning blow is in paragraph five, where the hearing officer says, “From what I have been able to ascertain, virtually all automobile liability insurance policies issued in the State of Louisiana have the standard right of cancellation, and the State of Louisiana, as a policy holder, should be entitled to no less.” Now, where in the record of that hearing and where in any of the documents introduced at that hearing can anybody find any proof whatsoever that virtually all automobile liability insurance policies issued in the state have the standard right of cancellation is beyond me. I frankly defy anybody to read that record and look at any of the documents and find where that was in evidence before that hearing officer. And therefore, that hearing officer concluded that based on those facts, the Office of Risk Management could have reasonably anticipated that the policy be issued and that the policy contain the standard cancellation provisions which are part of a standard insurance form. The evidence is not there to make that conclusion.

With regard to the contention that the trial court exceeded the scope of. the matter under review, we find that the trial judge had before him the entire record of the administrative procedure. It was necessary for him to consider all aspects of the issues presented to him in order to resolve the controversy between the State and Daves Insurance. In this respect, Travelers Indemnity Company was not an indispensable party to these proceedings. The bid was made by Daves Insurance and that is the bid accepted by the State. The contract was between the State and Daves Insurance. They are the parties bound by the contract. We agree with the trial court’s disposition of this objection.

For the foregoing reasons, the judgment of the trial court is affirmed. The costs of the State are fixed at $893.30.

AFFIRMED.

LOTTINGER, J.,

dissents. I am of the opinion that the trial judge failed to apply the proper standard of review of an administrative decision, i.e., whether the administrative decision was arbitrary and capricious. The majority compounds that error by its affirmance.

      . The State also filed a peremptory exception of non-joinder of indispensable party, a motion to remand, and alternatively, a motion to stay, all of which have been denied by this Court in "Harold G. Daves, et al. v. State of Louisiana, etc.," No. 83-CA-1198 on the docket of this Court in an unpublished opinion, decided December 22, 1983.