text:
    STATE of Louisiana v. Billy CARRY.
    No. KA 1990.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Beryl M. McSmith, Asst. Dist. Atty., New Orleans, for the State.
    John M. Lawrence, Orleans Indigent De- • fender Program, New Orleans, for defendant-appellant.
    Before REDMANN, C.J., and GARRISON and KLEES, JJ.
   GARRISON, Judge.

The defendant, Billy Carry, was charged by bill of information with aggravated crime against nature, attempted aggravated rape and aggravated burglary. A twelve member jury found the defendant guilty as charged on all counts. The trial judge sentenced the defendant to fifteen years at hard labor for the aggravated crime against nature conviction, twenty-five years at hard labor for the attempted rape conviction, and twenty-five years at hard labor for the aggravated burglary conviction. Additionally, the sentences imposed for the aggravated crime against nature conviction and for the attempted aggravated rape conviction are to be served without benefit of parole, probation or suspension of sentence. All three sentences are to run concurrently. Defendant appeals.

The facts of this case are as follows: On June 5, 1983 at approximately 1:00 a.m., a young woman awoke in her French Quarter apartment and saw a man standing in her bedroom. She started screaming and ran out of the bedroom and into the- living room. While running from the bedroom, she saw the man go out of the bedroom window and onto the balcony. The woman then started to return to her bedroom to call the police when suddenly the same man jumped on her. They struggled and the man dragged her into the bedroom. He was threatening the woman with a knife at this time. The man then removed his pants and tried unsuccessfully to force the woman to have sexual intercourse with him. He then forced the woman to perform oral sex. After this attack, the woman managed to escape from the bedroom and onto the balcony where she and the man struggled. Her screams attracted the attention of some passers-by as well as the attention of some of her neighbors who had come outside to investigate the disturbance. The man ran back into the woman’s apartment and the woman slid down a pole off the balcony and into the street. She received help from bystanders and neighbors until the police arrived.

The woman gave the police a detailed description of her assailant and told police that the man was probably still in her apartment building. The police searched the building and found a man matching the assailant’s description hiding in a utility closet in a hallway of the apartment building. The victim positively identified this man as her assailant.

A search of the victim’s apartment revealed that her closet had been ransacked and that the contents of her purse had been scattered on the balcony. Police found the knife allegedly used in the attack and a pair of sunglasses allegedly dropped by the assailant. Some items taken from the victim’s apartment were found in the utility closet where the defendant was hiding.

A review of the record for errors patent reveals that the trial judge erred in withdrawing the benefits of parole, probation or suspension of sentence from the defendant’s attempted aggravated rape conviction. According to the case of State v. Green, 391 So.2d 833 (La.1980), the applicable sentencing statute for attempted aggravated rape, La.R.S. 14:27(D)(1) , does not prohibit eligibility for parole, probation or suspension of sentence. The recently amended Code of Criminal Procedure Article 882, effective September 3, 1984, provides that courts of appeal may correct illegal sentences at any time. Therefore, we amend the sentence imposed for the attempted aggravated rape conviction to strike the portion of the sentence which withdraws these benefits.

Defendant alleges six assignments of error. Assignments of Error Two and Five have been specifically abandoned by the defendant as having no merit.

In Assignments of Error One and Four, the defendant alleges that the trial court erred in refusing to order the State to produce statements made by the victim to State witnesses and in permitting the State to elicit hearsay evidence under the “res gestae” exception of “first report of a sexual offense”. In these assignments, the defendant alleges that two witnesses, Officer Ronald Serpas and Mr. Richard Dichar-ry, testified at trial as to statements made to them by the victim shortly after the incident in question. In Assignment of Error One, the defendant argues that the State should have given notice to the defense of its intention to use these statements. The defense made a pre-trial motion in which it asked the court to compel the State to disclose all evidence favorable to the defendant. This motion was made pursuant to the case of Brady v. State of Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), which holds that the Fourteenth Amendment mandates that the prosecution must disclose to the defense evidence favorable to the defendant if such evidence is material to his guilt or punishment. The defendant now contends that the failure of the trial court either to order the production of these statements or to make an in-camera inspection of them impaired his ability to properly assess the strength of the State’s case in preparing a defense.

The general rule is that the prosecution is not required to furnish statements made by State witnesses unless they are exculpatory and material to the defendant’s guilt or punishment. State v. Landry, 381 So.2d 462 (La.1980). The statements in question do not meet these requirements. The victim merely told Mr. Dicharry that she had been attacked and that she thought that her assailant might still be in her apartment building. Officer Serpas testified only that he received a description of the assailant from the victim and that he and other officers discovered a subject matching this description hiding in the apartment building. He also stated that the victim identified this subject as her assailant; however, this was not hearsay and was merely cumulative of the victim’s own testimony.

The defendant contends that because these two witnesses testified as to the identification of the defendant and as to the credibility of the victim, knowledge of these statements prior to trial could have allowed the defense to attempt to impeach or to contradict these witnesses during cross-examination. According to the defendant, the State’s failure to disclose these statements prior to trial prejudiced the defendant’s case.

Even if the defendant’s contentions are true, a conviction will not be reversed unless the omitted evidence creates a reasonable doubt that did not otherwise exist. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342. (1976). When evaluating the testimony of these two witnesses in the context of the entire record, it is clear that the evidence of the defendant’s guilt in this case is overwhelming.

Defendant’s other argument is that pretrial access to these statements would have allowed him to impeach or to contradict these witnesses on the issue of who actually received the first report of the incident from the victim. In Assignment of Error Four, the defendant alleges as error the trial judge’s allowance of two witnesses’ hearsay testimony under the first report of a sexual offense exception. The defendant claims that Officer Serpas was the first person to whom the victim reported the attempted rape and that, therefore, only his testimony should have been admissible under this exception to the hearsay rule. According to the defendant, the testimony of Mr. Dicharry was inadmissible hearsay and its admission constitutes reversible error.

It should first be noted that no hearsay testimony was elicited from Officer Serpas. Furthermore, the defendant construes this exception to the hearsay rule much more narrowly than the Louisiana Supreme Court. In the case of State v. Middlebrook, 409 So.2d 588 (La.1982), three police officers were allowed to relate at trial various statements made to them by a victim of an attempted rape shortly after her attack. The Supreme Court ruled that the testimony of these three officers was admissible because:

“This court has long recognized an exception to the hearsay rule allowing admission of the early complaints of rape victims. At times, the court has characterized these as the ‘first complaints of rape victims’ constituting res gestae exceptions to the hearsay rule. In other cases, the court has referred to such statements simply as ‘early complaints of rape victims’ and ruled that they were admissible as such.” State v. Middlebrook, supra.

Defendant’s contention that testimony under this exception is limited to one witness is insupportable. These two assignments of error are without merit.

In Assignment of Error Three, the defendant contends that the trial court erred in refusing to grant his request for a competency hearing made on the morning of the trial. This request was made because the defendant indicated that he wanted to change attorneys and that he did not understand the proceedings. La.C.Cr.P. 643 states:

“The court shall order a mental examination of the defendant when it has reasonable ground to doubt the defendant’s mental capacity to proceed.”

The defendant offered no evidence to support his request for a competency hearing. A trial judge’s ruling on the request for a competency hearing will not be disturbed on appeal absent a clear showing of an abuse of discretion. State v. Wilkerson, 403 So.2d 652 (La.1981).

Because the defendant claimed that he did not understand the proceedings in which he was involved, the trial judge questioned the defendant at length on this subject. The trial judge concluded that the defendant understood his rights and that his actions indicated only an attempt to circumvent the orderly execution of the proceedings. Because the defendant failed to show any basis for his claim that he was mentally incapable to proceed, the trial judge acted within his discretion in denying defendant’s request for a competency hearing. This assignment of error is without merit.

In his final assignment of error, the defendant argues that the trial court erred in denying defendant’s motion for a new trial. Defendant based his motion for new trial on the grounds that the State presented insufficient evidence to sustain his conviction for aggravated crime against nature and attempted aggravated rape and that the court failed to order a competency hearing for the defendant. As for defendant’s insufficiency of evidence argument, he specifically alleges that the State failed to prove the element of aggravation. According to the defendant, the victim’s uncorroborated version of the attack was the only proof presented by the State that indicated that the knife found in the victim’s apartment was actually used by the defendant to threaten the victim.

Our standard of review is stated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), as follows: Viewing the evidence in the light most'favorable to the prosecution, the appellate court must determine whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. The evidence presented at trial was more than sufficient to justify the guilty verdicts in this case. The fact that only the victim testified as to the use of the knife in this case does not invalidate the jury’s guilty verdicts for aggravated crime against nature and attempted aggravated rape. The weight and credibility of the victim’s version of the attack was clearly a matter within the jury’s discretion. Because the jury chose to believe the victim’s testimony and returned guilty verdicts based on sufficient evidence, the trial judge acted within his discretion in denying the defendant’s motion for new trial.

We affirm the defendant’s convictions. We also affirm the defendant’s sentences for aggravated crime against nature and for aggravated burglary. Defendant’s sentence for attempted aggravated rape is amended to strike the portion which withdraws the defendant’s eligibility for parole, probation or suspension of sentence. The amended sentence for the attempted aggravated rape conviction is now twenty-five years at hard labor.

AMENDED AND AFFIRMED

      . La.R.S. 14:27(D)(1) states:
      "If the offense so attempted is punishable by death or life imprisonment, [one convicted of attempt] shall be imprisoned at hard labor for not more than fifty years.”

      . The court’s denial of a competency hearing has been discussed in Assignment of Error Three.

      . The element of aggravation is defined as follows:
      (1)Where the victim resists the act to the utmost, but whose resistance is overcome by force; or
      (2) Where the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution; or
      (3) Where the victim is prevented from resisting the act because the offender is armed with a dangerous weapon; or
      (4) Where the victim is under the age of twelve years. Lack of knowledge of the victim's age shall not be a defense.


source: Caselaw Access Project

author: GARRISON, Judge.

license: Public Domain

text:
    Samuel WILLIAMS v. The CORTNEY COMPANY, INC., Continental Insurance Company, Joseph A. Torlage, Robert Stewart, and Cumis Insurance Society, Inc.
    No. CA 2001.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 1984.
    C. Gordon Johnson, Jr., Porteous, Haink-el, Johnson & Sarpy, New Orleans, for plaintiff-appellant.
    David M. Packard, Ronzello, Packard, Joyner & Capdeville, Metairie, for defendants-appellees.
    R. Collins Vallee, Metairie, for defendant-appellee and plaintiff in reconvention-appellee, Joseph Torlage.
    Before REDMANN, C.J., and GARRISON and KLEES, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court granted October 7, 1983 and providing as follows:

“Judgment is rendered in favor of Joseph A. Torlage, Jr. and against Samuel Williams and Carolina Casualty Insurance Company, in solido, in the sum of $84,863.00 with interest from judicial demand and the expert fee of Dr. Norris set at $200.00. Judgment is rendered in favor of Samuel Williams and against Joseph A. Torlage, Jr. in the sum of $2600.00, with interest from judicial demand. Out of the award in favor of Joseph Torlage, Jr., $5863.70 is due Charity Hospital as intervenor with interest from the date of Torlage’s reconventional demand. Except for the expert fee, each party is to bear his own costs.

The trial judge additionally provided excellent written reasons for judgment:

“The weight of the evidence establishes that the Williams truck had been parked mostly in the street, obstructing moving lanes of traffic, and without parking lights. Williams was therein negligent.
Since probably his vision was partially blinded by the lights of the approaching Curtis vehicle, I find Torlage guilty of 25% of the total fault in failing to see and avoid the truck.
The Cortney Company was free of negligence.
Torlage’s injury is serious, but most of the residual disability was due to his repeated early weight bearing against medical advice. His general damages will be assessed at $100,000.00 plus loss of income during his recuperation at $3787.00 (V12 X $6500.00), medical expenses totaling $5,863.70 and damage to his vehicle of $3500.00.
Williams’ damages totaled $10,403.58 and he will recover judgment for 25% of this amount.(l)
* * * * * *
(1) Unlike the Uniform Act, Louisiana’s comparative fault enactments are silent on the question of set-off. See 40 La.Law Rev, at 311. I do not believe, however, it was the intent of the Legislature to allow a liability carrier to absorb for its benefit the claim of its assured. The plaintiffs’ claims should not be subject to off-set.”

From that judgment Williams’ insurer, Carolina Casualty Insurance Company, appeals.

On the night of January 4, 1981, Samuel Williams was driving an 18-wheel truck with a trailer. Williams was delivering a load of anchor chain to The Cortney Company at 2619 Tchoupitoulas Street in New Orleans. He was proceeding in an “uptown” or westward direction. The 2600 block of Tchoupitoulas Street is a two-way two-lane road divided only by a stripe.

Upon arriving at his destination, Mr. Williams parked the truck such that the right cab tires were on the curbing, but close to two-thirds of the vehicle remained in the roadway, blocking the street. Most of the testimony indicates that the vehicle lights were off.

Joseph A. Torlage was also driving in an “uptown” or westward direction on Tchoupitoulas Street. Meanwhile Robert and Julia Curtis were driving in a “downtown” or eastward direction on this two-lane street. Joseph Torlage was somewhat blinded by the headlights of the oncoming Curtis vehicle. He testified that he “looked up” and saw the 18 wheeler approximately five feet in front of him and blocking the roadway. He attempted to swerve around the protruding back of the truck, striking the left rear portion of the truck, and spun 180 degrees in a clockwise direction. His vehicle was stopped by a collision with the Curtis vehicle.

On appeal Carolina seeks to have the judgment reversed or the damages declared excessive on the grounds that the accident was due solely to the negligence of Torlage.

In Car & General Insurance Corporation v. Cheshire, 159 F.2d 985 (5th Cir., 1947), the U.S. Fifth Circuit Court stated:

“The physical facts, when carefully considered in the light of the record evidence, unerringly point to the negligence of the appellant’s assured as the proximate cause of the accident. When the truck broke down in the hands of a wholly inexperienced driver, he was unable to back it to a place of safety, but left it resting on the highway with the tractor lights burning and the unlighted trailer blocking the other lane of the highway. The tractor being on its proper side of the road with its lights shining deceived approaching drivers who did not, and could not, observe the unlighted trailer until they were almost upon it. Leaving this large and deceptive obstruction on the highway without flares as required by law was, to say the least, the grossest kind of negligence and a violation of the highway laws of Louisiana. Act 286 of 1938, Sec. 3, Rule 15; Act 164 of 1936 as amended by Act 215 of 1942; Coffey v. Lalanne, La.App., 20 So.2d 614, 617. Appellant may not escape liability for its negligence by relying upon the general rule that drivers of automobiles must keep their vehicles under such control as to be able to bring them to a complete stop ‘within the distance in which headlights project.’ Goodwin v. Theriot, La. App., 165 So. 342, 344 [1936]; Harper v. Holmes, La.App. 189 So. 463 [1939]. The Louisiana courts have made it clear that the general rules regarding a driver’s duty to be able to stop within the distance of his lights and his obligation to reduce speed and stop if ‘blinded by lights of another car or by dust, smoke, etc.,’ are not hard and fast rules which will operate to defeat recovery in every case in which a motorist collides with a stationary object in the highway. In Louisiana motorists have the ‘right to presume and act upon presumption that the way is safe for ordinary travel, even at night. ’ This is particularly true where a deceptive obstruction has been negligently placed in his way. Kirk v. United Gas Public Service Co., 185 La. 580, 170 So. 1 [1936]; Jacobs v. Jacobs, 141 La. 272, 74 So. 992, L.R.A.1917F, 253 [1917]. Cf. Culpepper v. Leonard Truck Lines, 208 La. 1084, 24 So.2d 148, 149(6), 151 [1945]. In each case the particular facts and circumstances must be considered and, ‘in the final analysis, the facts of each case will determine the question of negligence.’ Herring v. Holicer Gas Co., La.App., 22 So.2d 868, 871 [1945]; Woodley & Collins v. Schusters’ Wholesale Produce Co., 170 La. 527, 128 So. 469 [1930].” (At 987-988) (emphasis added).

The trier of fact apparently concluded that Mr. Williams was primarily negligent in creating this “trap”. Barlow Brown, Vice-President of Cortney Company testified that there was adequate space in which Williams could have parked such that the truck would have been entirely out of the street. Additionally,' Mr. Williams could have had the lights on his vehicle turned on and used flares or street reflectors to provide a warning to motorists. The trier of fact was justified in his finding that Mr. Williams was primarily negligent. The trial judge further assessed 25% negligence against Mr. Torlage.

In Triangle Trucking Co. v. Alexander, 451 So.2d 638, 642 (App.3rd, 1984), the Third Circuit stated as follows:

“The competing and compounding acts of negligence of the parties resulted in the accident. Justice and equity mandate that fault cannot be placed upon any single party in this instance, since all were negligent to some varying degree. This case can best be resolved, as did the trial court, by the apportionment of fault to the parties pursuant to LSA-C.C. art. 2323.
In Sampy v. Roy Young, Inc., 425 So.2d 284 (3rd Cir.1982), this court pretermitted the question of whether the assessment of percentages of fault is a legal or factual matter. We now hold that a trier’s findings, as to percentages of fault under LSA-C.C. art. 2323, is factual, just as findings of contributory negligence under the old law were factual. Varnado v. Continental Insurance Company, 446 So.2d 1343 (1st Cir.1983); Johnson, Comparative • Negligence and the Duty/Risk Analysis, 40 La.L.Rev. 319 (1980).”

We find no manifest error in either the findings of negligence or the assessment of percentages of fault on the part of the trier of fact. Canter v. Koehring Co., 283 So.2d 716 (La., 1973) and Arceneaux v. Domingue, 365 So.2d 1330 (La., 1978).

Turning to the second issue raised, appellant argues that the $100,000.00 awarded as general damages is excessive. Appellant argues “... The case has a value for general damages in the range of $50,000 total”, but cites no caselaw supporting that figure. (Appellant’s Brief at 14).

Mr. Torlage suffered an open reduction of a fracture to the femoral head at the hip joint socket. Mr. Torlage underwent surgery during which two metal screws were inserted. He was hospitalized for seven weeks and underwent traction after the surgery. Although the surgical procedure was successful, while hospitalized, the surgical site became infected and he underwent a second operative procedure. Mr. Torlage was discharged on February 18th on crutches and with some open drainage of the surgical site.

Despite repeated medical advice to the contrary, Mr. Torlage walked with weight bearing upon the injured hip. Dr. Norris testified that premature weight-bearing upon a hip predisposed to collapse and deformity will result in a greater degree of deformity when it occurs. (Tr. p. 209, 213). Mr. Torlage’s femoral head did eventually collapse and is presently deformed. He also suffers from arthritis of the hip, but there is no testimony indicating if the arthritic changes were precipitated or aggravated by the premature weight-bearing.

The trial judge took Mr. Torlage’s premature weight-bearing into account when he made the general damage award, stating “Torlage’s injury is serious, but most of the residual disability was due to his repeated early weight bearing against medical advice. His general damages will be assessed at $100,000.00 ...” (Reasons for Judgment, above).

In Herndon v. Neal, 424 So.2d 1180 (App.1st, 1982) the First Circuit increased a $45,000.00 award to $100,000.00 for a ten year old girl who had an open reduction of the hip fracture treated by surgical implant of metal pins. Her period of hospitalization was three weeks shorter than Mr. Tor-lage and she also underwent a second operative procedure for removal of the pins.

In Pawlak v. Brown, 430 So.2d 1346 (App.3rd, 1983) the Third Circuit upheld an award of $200,000.00 in general damages. Plaintiff suffered a fractured left hip and underwent open reduction surgery. Like Mr. Torlage, plaintiff suffered a sclerotic condition of the bone.

The trial judge could have and apparently did consider awarding a greater amount. It is further apparent that the $100,000.00 awarded is a reduction of that greater amount based on Mr. Torlage’s “repeated early weight bearing.” An appellate court may not substitute its own opinion for that of the trial judge, but is limited to the question of whether a clear abuse of discretion has occurred. No clear abuse of discretion in the amount awarded has occurred.

For the reasons discussed, the judgment of the district court is affirmed.

AFFIRMED.

      . We agree with the trial judge's assessment of legislative intent relative to set-offs in this particular instance.
      "... There are several types of situations calling for different results. For example: If both parties are able to pay from their own assets, set-off is appropriate. If both parties have full insurance coverage, set-off would confer its benefit on the insurance carriers rather than the parties and this seems inappropriate. If one party can pay and the other cannot, set-off protects the first party. If one party has insurance and the other has not and cannot pay, neither set-off nor the lack of set-off fully takes care of the problem." 40 La.L.R. 311.


author: KLEES, Judge.

text:
    Beverly Vicknair Wife of/and Floyd VICKNAIR v. HIBERNIA BUILDING CORPORATION and United States Fidelity and Guaranty Company.
    No. CA-1473.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 1984.
    Writ Granted Dec. 20, 1984.

      Frank J. D’Amico, Vincent J. Glorioso, Jr., Glorioso, Welcker & Zaunbrecher, New Orleans, for plaintiffs-appellees (Beverly Vicknair Wife of/and Floyd Vicknair).
    Franklin D. Beahm, Robert D. Ford, Hammett, Leake & Hammett, New Orleans, for defendants-appellants (Hibernia Building Corporation and United States Fidelity and Guaranty Company).
    Before GARRISON, KLEES and WARD, JJ.
   KLEES, Judge.

In this case, defendant Broadmoor Corporation appeals an award made by the district court to plaintiffs Floyd and Beverly Vicknair and their son Eric for injuries suffered by Beverly and the then unborn Eric on November 3, 1976, when Beverly, then eight months pregnant, was forced to descend twenty-one flights of stairs in response to a false fire alarm. The threshold issue on appeal is defendant’s exception of prescription, which was filed for the first time in this court. For the reasons stated below, we remand this case to the district court for trial of the prescription issue. FACTS

On November 3, 1976, in the early afternoon, a fire alarm sounded in the Hibernia Bank Building and an announcement came over the public address system instructing all occupants of the building to exit using the stairs, rather than the elevators. Beverly Vicknair, who was employed on the nineteenth floor of the building, was forced to descend twenty-one flights of stairs (nineteen floors plus two mezzanine levels). The fire alarm was allegedly set off when employees of Broadmoor Corporation, an independent contractor engaged in doing renovation work in the building, negligently cut an apparently unmarked fire alarm wire.

Later that afternoon after returning to work, Beverly Vicknair, who was then about eight months pregnant with her first child, noticed that she had begun spotting some blood. The spotting continued into the next day, then ceased. Six days after the incident, on November 9, 1976, Mrs. Vicknair went into premature labor and gave birth to her son, Eric, who was not due until late December. At birth, Eric weighed four pounds, four ounces, was cyanotic and required resuscitation. He was ultimately diagnosed as suffering from Hyaline Membrane Disease, a respiratory disorder caused by immaturity of the lungs which is common in premature infants. One hour after his birth, Eric was transferred from Lakeside Hospital to the Neonatal Intensive Care Unit at Ochsner Hospital, where he remained for three days. He was then sent back to Lakeside Hospital for about three weeks before he was released to go home. Throughout his childhood, Eric has contracted an unusually high number of respiratory illnesses, including asthma and allergic airway disease. According to his pediatrician, this abnormally high instance of respiratory disease is related to Eric’s premature birth.

Plaintiffs filed suit on October 25, 1977 against the owner of the building, Hibernia Building Corporation, and its insurer. On October 10, 1978, Hibernia filed a third party complaint against Broadmoor Corporation, alleging that Broadmoor was responsible for setting off the false fire alarm and therefore owed Hibernia full indemnity should Hibernia be cast in judgment. On January 31, 1979, plaintiffs filed an amended petition adding Broadmoor as a defendant.

The case was tried in the Orleans Parish Civil District Court in November of 1982. On the second day of trial, Broadmoor and Hibernia entered into an agreement, which was recited on the record, whereby Broadmoor agreed to fully indemnify and hold harmless Hibernia from any judgment that might be rendered against Hibernia in favor of the plaintiffs. Broadmoor further agreed to assume Hibernia’s defense. The trial judge explained this agreement to the jury at length, emphasizing that Hibernia had not settled with the plaintiffs and that the plaintiffs had not received any money from Hibernia.

At the conclusion of the trial, the jury found, as per its answers to interrogatories, that Hibernia was not guilty of any negligence that was a proximate cause of plaintiffs’ injuries, but that Broadmoor was guilty of such negligence. In addition, the jury awarded the following damages: $5,980.00 to Floyd Vicknair for medical expenses incurred by his wife and son; $5,000.00 to Beverly Vicknair for her physical and mental pain and suffering; and $50,000.00 to Floyd Vicknair as administrator of his minor son for the past, present and future pain and suffering of Eric. Accordingly, judgment was entered in favor of the plaintiffs and against Broadmoor in the aforementioned amounts, and Hibernia was dismissed from the suit.

Broadmoor has appealed and the plaintiffs have filed an answer to the appeal. The plaintiffs have not, however, separately appealed the portion of the judgment dismissing Hibernia from the suit. Hibernia has neither appealed nor intervened on appeal.

With its appeal, Broadmoor has filed an exception of prescription, which it urges for the first time in this court, as is permissible under Louisiana Code of Civil Procedure article 2163. The basis for this exception is that because the jury found Hibernia free of negligence, Hibernia cannot be a joint tortfeasor with Broadmoor, and therefore the filing of suit against Hibernia did not interrupt prescription as to Broadm-oor. Broadmoor further argues that since the plaintiffs did not file suit against it until more than two years after the fire alarm incident, the case had prescribed before suit was filed. Before we can consider the merits of this ease, we must deal with the prescription issue.

PRESCRIPTION

According to Louisiana Civil Code article 2097, a suit brought against one debtor in solido interrupts prescription as to all. Because joint tortfeasors are soli-dary debtors, the filing of suit against one party who is a joint tortfeasor will interrupt prescription as to all other joint tort-feasors. In this case, the plaintiffs sued Hibernia within the one year prescription period, but did not sue Broadmoor until more than two years later. Therefore, on the face of the record, Broadmoor’s exception of prescription should be sustained if this court finds that Hibernia was not a joint tortfeasor with Broadmoor.

A proper consideration of this question would require two separate inquiries: first, a review of the record in this case to determine whether the jury’s verdict absolving Hibernia of negligence was manifestly erroneous; and secondly, an examination of the relevant law to determine whether, under the facts of this case, Hibernia would be considered a joint tort-feasor under some theory other than negligence. However, in making either of these inquiries, we confront a basic problem: Hibernia is not a party to this appeal. We believe it would be improper for this court to consider or decide upon the liability of a party which is not before us on appeal.

Although the plaintiffs have not appealed the judgment in favor of Hibernia, they have, in their answer to Broadmoor’s appeal, complained of the judgment in favor of Hibernia and prayed that this court hold Hibernia to be a joint tortfeasor with Broadmoor. The plaintiffs contend that this answer is sufficient to raise all issues relating to the viability of the judgment against Broadmoor, including whether Hibernia is a joint tortfeasor. They further contend that this court can determine the “status”, as opposed to the liability, of a non-party to the appeal. We disagree with the plaintiffs’ argument. Code of Civil Procedure Article 2133 provides that “[t]he answer filed by the appellee shall be equivalent to an appeal on his part from any portion of the judgment rendered against him in favor of the appellant and of which he complains in his answer.” According to this article and the jurisprudence interpreting it, in multiple-party cases an answer serves to appeal only those portions of the judgment in favor of the appellant; the plaintiff cannot, by means of his answer, refute any portion of the judgment rendered in favor of a non-appealing defendant. Shelton v. Aetna Casualty & Surety Co., 334 So.2d 406, 411 (La.1976); American Ins. Co. v. Holland, 401 So.2d 421, 422 (La.App. 1st Cir.1981); Boxill v. Metrailer, 358 So.2d 986, 987 (La.App. 1st Cir.1978); Smith v. Girley, 242 So.2d 32, 36 (La.App. 1st Cir.1970); Barrios v. Noto, 215 So.2d 676, 684 (La.App. 4th Cir.1968).

In American Ins. Co. v. Holland, supra, the Court of Appeal held that it was without jurisdiction over a particular defendant where a co-defendant had appealed and the plaintiff had answered the appeal with respect to both defendants, but had failed to appeal separately the judgment in favor of the non-party defendant. The instant situation is synonymous with Holland. Under the circumstances, we do not believe that this court has jurisdiction to review the jury’s decision with regard to Hibernia. Plaintiffs argument that we would merely be deciding the “status” of Hibernia, as opposed to its liability, is unpersuasive. If this court were to find that Hibernia was a joint tortfeasor with Broadmoor (on which question we express no opinion), we would be assigning liability to a party which holds a definitive judgment finding it not liable. We could not so affect Hibernia’s rights without it being a party to this appeal. Regardless of the eventual outcome of our decision on the joint-tortfeasor issue, the fact that we would not be free to decide the question in this manner merely underscores our belief that we do not have jurisdiction over Hibernia. In this respect, the indemnity agreement between Broadmoor and Hibernia is 'irrelevant, as such an agreement cannot alter the jurisdiction of this court.

Under the circumstances, the only equitable course of action is to remand this case to the lower court for trial of the prescription issue. A court of appeal is empowered to render any judgment that it feels is just, legal and equitable. LSA-C.C.P. art. 2164. Furthermore, the Code of Civil Procedure provides that when an exception of prescription is pleaded for the first time in the appellate court, the plaintiff may demand that the case be remanded to the trial court for trial of the exception. Id. art. 2163. Although the plaintiffs here have not so demanded, we think remand is proper in this case.

In A Second Mortgage Co. of Baton Rouge, Inc. v. Gatlin, 233 So.2d 583 (La.App. 1st Cir.1970), Judge Blanche, speaking for the court, remanded a case dealing with a promissory note wherein the defendant had pled prescription in the appellate court for the first time, even though prescription was established on the face of the record and even though plaintiff had not requested a remand. Stressing that LSA-C.C.P. art. 2164 has long been interpreted as empowering appellate courts to remand whenever the interests of justice so dictate, the court concluded:

We feel that under the circumstances plaintiff should be given an opportunity to show that the prescription appearing on the face of the record before us did not accrue or was interrupted in a manner provided by law, and we will therefore remand this case to the trial court for a trial of this exception, even though plaintiff made no such request for remand.

Id. at 586.

The Gatlin decision illustrates a further reason, besides the absence of Hibernia from the appeal, for remanding this case. Although it appears from the face of the record that prescription would be established if we were to decide that Hibernia was not a joint tortfeasor, the parties did not have an opportunity at the trial to present factual evidence on either the issue of prescription or the joint-tortfeasor issue. As to prescription, the plaintiffs should be given a chance to show, if they are able, that prescription was interrupted in some legal manner. With regard to the joint-tortfeasor issue, the jury considered Hibernia’s liability under the theory of negligence only; the parties had no opportunity to present evidence relating to Hibernia’s potential liability under other possible theories, such as vicarious liability, that might make Hibernia and Broadmoor joint tort-feasors. For these reasons, the prescription issue requires a trial on the merits.

In conclusion, this case must be remanded not only to remedy the problem created by Hibernia not being before this court, but also to allow the plaintiffs to introduce any evidence they might have to refute the plea of prescription. Accordingly, the judgment of the trial court is reversed and this matter is remanded to the trial court for proceedings consistent with this opinion. Costs to await the final disposition of this Court.

REVERSED AND REMANDED.


author: KLEES, Judge. REDMANN, Chief Judge,

text:
    FIRST HOMESTEAD FEDERAL SAVINGS v. Kenneth L. DENT and Cassandra Wilson Dent.
    No. CA-1644.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 1984.

      Linda J. Cucullu, Newman, Drolla, Mathis, Brady & Wakefield, New Orleans, for plaintiff-appellee (First Homestead Federal Savings and Loan Association).
    Kenneth Dent, in pro. per.
    Cassandra Dent, in pro. per.
    Before REDMANN, C.J., and KLEES and CIACCIO, JJ.
   KLEES, Judge.

FACTS

This is a suit on a promissory note acquired by plaintiff-appellant First Homestead Savings and Loan (First Homestead) from a company known as Electronic Security Services, Inc. (ESS). The note had been executed by defendants-appellees, Kenneth L. Dent and Cassandra Dent, in consideration for a home security system that had been installed in their home by ESS. The note was subsequently transferred by ESS to First Homestead.

After defendants became delinquent in their monthly payments, First Homestead sued the appellee’s for the balance still owing on the purchase of the security system. The appellees have asserted as a defense, that the system was defective.

Appellant moved for summary judgment On the basis that the defense raised by defendants had prescribed, this motion was denied by the trial judge. At trial on the merits, the trial court again overruled an exception of prescription to the defense of redhibition, and after hearing all the evidence ruled in favor of defendants dismissing the lawsuit.

In its specifications of error to this court, appellant contends that the trial court erred in denying summary judgment and/or denying the exception urged at trial, based upon their allegation that the defenses raised by appellees had prescribed.

The note sued upon contained the following notice:

Notice: Any holder of this consumer credit contract is subject to all claims and defenses which the debtor could assert against the seller of goods or services obtained pursuant hereto or with the proceeds hereof. Recovery hereunder by the debtor shall not exceed amounts paid by the debtor hereunder.

Because of this language in the note appel-lees were entitled to raise against the holder of the note whatever defenses could have been raised against the seller, including a claim of redhibitory defects. Under La.C.C.P. art. 424, however, in connection with the enforcement of a negotiable instrument “the defense of redhibition may not be used if it has otherwise prescribed.” GMAC v. Johnson, 426 So.2d 691 (La.App. 1st Cir.1983), writ denied 433 So.2d 151 (La.1983).

The burden of proving that a claim has prescribed rests on the party alleging prescription. The evidence presented in this matter was not sufficient to permit a determination of whether a claim in redhibition had prescribed. More particularly, the testimony of defendants (that First Homestead instructed them to write a letter concerning their difficulties, which they did and were waiting for a response) is believed, without further evidence we cannot determine when the prescriptive period would have begun to run. Thus considering the pleadings and the facts elicited at trial we cannot say that the trial court erred in denying summary judgment or in overruling the exception of prescription.

Appellants further urge that the evidence adduced at trial was insufficient to support a judgment in favor of appellees.

It is well settled that the burden of proof rests upon the buyer resisting payment on the grounds of a redhibitory vice to establish the existence of such defects prior to the sale, and that such a vice will have rendered the merchandise useless or so inconvenient and imperfect that it must be supposed that he would not have purchased the goods had he known of its vices. Charter Company, Inc. v. Mercante, 186 So.2d 430 (1st Cir.1966); Hanna Investments Inc. v. Stovall, 171 So.2d 678 (La.App. 2nd Cir.1965); Gabriel v. Jeansonne, 162 So.2d 798 (La.App. 4th Cir. 1964); Chaignaud v. Baden, 81 So.2d 76 (La.App. 2nd Cir.1955). The buyer may prove the existence of a redhibitory defect before the sale either by direct or by circumstantial evidence which gives rise to the reasonable inference that the defect existed at the time of the sale. Cox v. Lanier Business Products, Inc., 423 So.2d 690 (La.App. 1st Cir.1982), writ denied 429 So.2d 129.

The standard to determine the sufficiency of the evidence is “when taking the evidence as a whole, such proof shows that the fact or causation sought to be proved is more probable than not.” Jordan v. Travelers Ins. Co., 257 La. 995, 245 So.2d 151 (La.1971); Cutrer v. Kentwood Motors, Inc., 351 So.2d 817 (La.App. 1st Cir.1977).

At trial, Mr. Dent testified that the security system had never worked properly, and that he called to report the malfunction. The security system people went to appellee’s house to make the necessary repairs, but afterwards the system was still not in proper working order. Appellee testified that he called again to report that the system wasn’t working, but he did not hear from the appellant until they called him about delinquent payments. At that time he orally notified them that the system was not functioning. They responded by suggesting that he write a letter explaining the same, which appellee’s wife did. He was, however, unable to produce a copy of the letter.

Mrs. Cassandra Dent corroborated her husband’s testimony about the phone call from appellant and the letter, which she handwrote and mailed to First Homestead telling them that the alarm system didn’t work, and further requesting that they come remove it. On cross-examination, Cassandra Dent testified that the letter was mailed a couple of months after the system was installed.

William Lattitear, an ESS employee, testified that their records indicated no dissatisfaction with the system. However, in further response to direct examination he revealed that a service representative was sent to appellees’ home subsequent to the initial installation on July 28, 1981, to “install a tape and test it.”

On cross-examination Mr. Lattitear admitted that he did not personally install the system, and that his information was based upon company records.

The appellant presented no other witnesses to rebut appellees’ allegations that the system was not in proper working order.

To prevail in an action for redhibition, as mentioned earlier, a buyer must establish that the thing sold is absolutely useless for its intended purpose or that it is so inconvenient to use that it must be supposed that a buyer would not have made the purchase had he known of the defects.

Further, the buyer must show that the defects existed at the time of purchase, but were neither known nor apparent to him and, that the seller could not or would not correct the defects when given an opportunity to do so. The trial judge chose to believe appellees’ testimony that they had made good faith attempts to have the system repaired.

The testimony is uncontroverted that the alarm system was in need of repair and was, in fact, repaired shortly after its purchase by the representatives of the company. The nature and extent of the defect is obscure from the evidence, but a witness for the plaintiff-appellant testified that the company records show that they had to send a repairman out to the house to inspect and repair a portion of the system, namely the “tape”.

Unfortunately, this line of questioning was abandoned and no further specifics about the redhibitory defect were brought out.

Appellant denies any further correspondence between the parties. Appellees deny that the system was satisfactorily repaired, and testified that oral and written notice was made to appellant within the next three months. Appellant denies receipt of any notice, and the matter remained dormant for nearly two years.

In Clinkscales v. Superior Pontiac GMC, Inc., 365 So.2d 895 (La.App. 4th Cir. 1978), our court agreed that it is our settled law that a plaintiff need not introduce expert testimony to prove the underlying cause of an alleged misfunction but need only prove the defect or malfunction existed at the time of the sale. Moreno's Inc. v. Lake Charles Catholic High Schools, Inc., 315 So.2d 660 (La.1975); Crawford v. Abbott Automobile Company, 101 So. 871 (La.1924). Also in Mattes v. Heintz, 69 So.2d 924 (Court of Appeal of La., Orleans, 1954), this court said at 927:

“... The language of LSA-C.C. art. 2530 does not mean that the buyer must prove by eyewitness the existence of the vice before the sale, or that such a vice was known to exist. The court may take into consideration such surrounding circumstances as may appear and deduce therefrom the fact of the existence of the vice prior to the sale.”

The facts as presented in this record are completely devoid of any evidence of a redhibitory vice, save the testimony of defendants-appellees, who stated that the system “didn’t work”. The evidence shows that they made one complaint to ESS after the installation of the system. ESS promptly responded to this complaint. Defendants-appellees further testified that they called in again but no one responded to this call. No more complaints were made until First Homestead called several months later to inquire why no payments were being made on the note. We are of the opinion that the defendants-appellees failed to establish by a clear preponderance of the evidence that the failure was because of redhibitory vices and the trial court was clearly wrong in its conclusions that plaintiff had not overcome its burden of proof.

Accordingly, the judgment dismissing plaintiffs lawsuit at its costs is hereby reversed and vacated and there will be judgment against Kenneth L. Dent and Cassandra Dent in solido, and in favor of First Homestead Federal Savings and Loan Association in the full sum of One Thousand Five Hundred Seventy Two and 25/100 ($1,572.25) dollars, together with interest at the rate of 16.5% per annum from April 21, 1983 to May 5, 1985 and thereafter at the rate of 8% per annum until paid with 25% attorney’s fees and all costs of these proceedings.

REVERSED AND RENDERED.

REDMANN, C.J., dissents.

REDMANN, Chief Judge,

dissenting.

La.C.C.P. 424 is not applicable. This note is not a “negotiable instrument” because it recites that “any holder ... is subject to all claims and defenses which the debtor could assert against the seller .... ” This instrument therefore does not “contain an unconditional promise or order to pay ...,” La.R.S. 10:3-104(l)(b). See § 3-105(2)(a) and its U.C.C. Comment 8.

The purchaser’s testimony that the thing bought never functioned suffices (as against the manufacturer-vendor, charged with knowledge of the defect) to establish redhibition, La.C.C. 2545, notwithstanding absence of expert evidence to establish the precise nature of the defect, Prince v. Paretti Pontiac Co., Inc., 281 So.2d 112 (La.1973).

The trial court’s judgment should be affirmed.

      . This dissent pretermits discussion of the argument that (1) the title to Act 710 of 1976, amending C.C.P. 424, obliged by the title-body clause of La. Const, art. 3 § 15(A) to be "indicative of its object,” relates only to "a prescribed obligation” and (2) redhibition is not an obligation and therefore Act 710’s provision regarding red-hibition is unconstitutional because violative of art. 3 § 15(A).


text:
    Delmas H. BOSARGE, Jr. v. NEW ORLEANS STREET DEPARTMENT.
    No. CA-1806.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 1984.
    George R. Simno, III, Gertler & Gertler, New Orleans, for plaintiff-appellee (Delmas H. Bosarge, Jr.).
    Salvador Anzelmo, City Atty., Douglas P. Wilson, Chief Deputy City Atty., Bernette J. Johnson, Deputy City Atty., New Orleans, for defendant-appellant (Department of Streets, City of New Orleans).
    Before REDMANN, C.J., and KLEES and WILLIAMS, JJ.
   KLEES, Judge.

The Department of Streets appeals the decision of the Civil Service Commission reinstating Delmas H. Bosarge, Jr. to his position of Traffic Engineer II in the Department with back pay subject to a suspension of 120 days. Bosarge appeals that part of the decision of the Commission to suspend him for 120 days for misuse of a city vehicle and o£her minor violations. We affirm the decision of the Civil Service Commission.

FACTS

Delmas H. Bosarge, Jr. was employed by the Department of Streets, City of New Orleans, as a Traffic Engineer II. On December 15, 1982, he was dismissed from the Department for violation of departmental policies involving the use of a city vehicle and other minor infractions between May, 1982 and December, 1982.

In addition to being a Traffic Engineer II for the Department of Streets, City of New Orleans, Bosarge was a co-owner with his wife, of a corporation that operated a school in Jefferson Parish named “Academy de Chateau”. In response to an anonymous letter stating that Bosarge was misusing the city vehicle, Agent Robert Mehrt-ens of the Office of Municipal Investigations (O.M.I.) conducted an investigation into the allegations contained in the letter. Agent Mehrtens drove to the Academy de Chateau, which was named in the letter, on May 11, 1982, and observed the city vehicle parked at the school. On that day, Bo-sarge was observed by Agent Mehrtens driving two children from the school to their home in the Lakeview area of New Orleans in the city vehicle.

In December, 1982, Agent Mehrtens observed the vehicle parked at the school on three separate occasions. He reported these observations to Joseph Womble, Ray Kaufman and Harold Gorman, Bosarge’s superiors, on December 15, 1982. At that time, he requested an interview with Bo-sarge. During the course of the interview, Bosarge’s superiors met and composed a letter of termination. Bosarge was given the letter of termination.

There can be no question that conduct which impairs the orderly operation of a public service in which an employee is engaged can be grounds for disciplinary action, such as dismissal. Sanders v. Department of Health and Human Resources, 394 So.2d 629 (La.App. 1st Cir. 1980), writ denied 399 So.2d 602 (La.1981). Dent v. Department of Corrections, 413 So.2d 920 (La.App. 1st Cir.1982).

While “sufficient cause” is the key for disciplinary action, the jurisprudence indicates that the conduct of employees of a department is a crucial factor in maintaining an office that can properly serve the public. Leggett v. Northwestern State College, 242 La. 927, 140 So.2d 5 (La.1962); Dent v. Department of Corrections, supra. For this reason, a supervisor is given much latitude in exercising control of the employees over whom he has jurisdiction. Sanders v. Department of Health and Human Resources, supra.

The Court in Branighan v. Department of Police, 362 So.2d 1221,1223 (La.App. 4th Cir.1978), said:

“The superintendent of police is charged with the operation of his department, and the Civil Service Commission is not his supervisor. The superintendent is the one who must run his department and exercise discretion in relation to disciplining his officers, and the Commission is not charged with exercising that discretion.”

Nonetheless, Branighan, supra, also held that:

“... [t]he Civil Service Commission’s authority ‘to hear and decide’ disciplinary cases, Const, art. 10 § 12, includes authority to modify (reduce) as well as to reverse or affirm a penalty.”

The scope of appellate review in these matters was established in Canter v. Koehring Co., 283 So.2d 716 (La.1973) and elaborated on in Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978):

“... appellate review of facts is not completed by reading so much of the record as will reveal a reasonable factual basis for the finding in the trial court; there must be further determination that the record established that the finding is not clearly wrong (manifestly erroneous).”

Although this is the general rule of appellate review regarding rulings of the Civil Service Commission, in Merchant v. Department of Finance, 391 So.2d 587 (La.App. 4th Cir.1980), the court held that the usual guidelines for appellate review, i.e., the manifest error rule, are not applicable where the evidence was taken before a hearing examiner and the record thus compiled was filed with the Commission without comment or recommendation. The court explained its reasoning as follows:

“The great weight accorded conclusions and determinations made by the trier of fact under Canter and Arceneaux is based on the advantage derived from personal observation of the witnesses, their demeanor on the stand, and the manner in which they responded to examination. Here, the Commission enjoyed no such advantage. Under these circumstances the standard of review by an appellate court is not unlike that of judicial review in other administrative matters, that is, whether the conclusion reached by the Commission is arbitrary or capricious or manifestly wrong.”

The holding in Merchant was followed in McGee v. Sewerage and Water Board of New Orleans, 396 So.2d 430 (La.App. 4th Cir.1981). In both cases the court made an independent review of the record to determine whether the conclusion reached by the Commission was arbitrary or capricious or manifestly wrong. The procedure followed in Merchant and McGee was also used in the instant case, thus the standard pronounced in those cases should apply.

Our review of the Civil Service Commission’s hearing revealed the following facts: O.M.I. Agent Robert Mehrtens, as the Appointing Authority’s first witness, testified that pursuant to an anonymous letter complaining that Bosarge was using a city vehicle for other than City business, he conducted an investigation on May 11, 1982, by driving out to the Academy de Chateau. He observed a city vehicle parked in front of the school. Then he saw a man and two children get into the car which he followed to the children’s home in Lakeview. Photographs were taken at the time and he subsequently identified Bo-sarge as the' driver and the children as William and Robert Long.

Since other pressing business prevented further surveillance, the investigation was delayed until December, 1982, when Agent Mehrtens conducted three separate surveil-lances wherein he observed the car at the school. On two of the three occasions, he saw Bosarge drive to a nearby K-Mart and return to the school where he did some menial chores, i.e., picking up litter and getting the mail. On December 15, 1982, Agent Mehrtens reported his suspicions to Joseph Womble, Ray Kaufman and Harold Gorman of the Department of Streets. Bo-sarge was called into Kaufman’s Office and told that Agent Mehrtens wanted to interview him.

Bosarge went to Agent Mehrtens’ office and pursuant to La.R.S. 33:2426, was interviewed from 11:10 a.m. to 12:24 p.m. concerning his activities. After the interview, Agent Mehrtens left the office and returned about ten minutes later with a sealed envelope which he handed to Bo-sarge. Bosarge read the letter and told Agent Mehrtens he had been terminated from his position with the Department of Streets.

In connection with the investigation, Agent Mehrtens interviewed the parents of the two children. William Long testified before the hearing examiner that Agent Mehrtens interviewed him in July or August, 1982, although Agent Mehrtens testified it was in December. He testified that the children were brought home in the afternoon by Bosarge in the city vehicle since he was home to greet the children every day. Occasionally, another man would bring the children home. He said he paid fifty dollars a month for morning and afternoon transportation. Although the only proof of payment were two checks with notations on them for registration and tuition for the children. There were several inconsistencies between testimony before the commission and the statement given by Long to Agent Mehrtens.

Joseph Womble, City Traffic Engineer for the Department of Streets, testified that he was present at the meeting on December 15, 1982, when Agent Mehrtens advised him of the allegations. He said that when Bosarge came into the meeting he was told of the allegations and that Bosarge said nothing. Womble stated that Agent Mehrtens told him what was said in the interview with Bosarge and, as a result of what was said, it was decided to terminate Bosarge. He admitted that at the meeting between Kaufman, Gorman and himself, no other disciplinary actions were discussed but he later changed his testimony by saying suspension for activities was discussed in detail for an hour or two. He said he did not review the statement given by Bosarge to Agent Mehrtens. Womble testified that he reviewed Bosarge’s twelve year record with the city and interviewed fellow workers while Bosarge was interviewed by Mehrtens and before the letter to terminate was written.

At the request of Harold Gorman, Director of Department of Streets, Womble testified that he had conversations with Bosarge’s previous supervisor concerning Bosarge’s activities in November, 1982. He claimed that the previous supervisor said there was a problem with the hours Bosarge kept and that he suspected Bo-sarge was involved with the school, but could never prove it. He felt that because of the severity and flagrance of the violation and its apparent long standing nature, there were grounds for termination.

At the meeting on December 15, 1982, Harold Gorman ruled out suspension because of the severity of the offense and the long standing behavior of Bosarge. He relied on what was told to him by Womble. He personally did not make an investigation nor did he speak to Bosarge before or after the interview and subsequent termination.

Delmas H. Bosarge, Jr. testified that he had worked for the City for twelve years and had use of a city vehicle for six years. He believed the only restriction on the use of the car was that it was not to be taken to and from home since he lived outside of Orleans Parish. On occasion, he would take the car to the school where he ate lunch and one time he transported children (in the city vehicle) from the school in Me-tairie.

Bosarge testified he was a diabetic and, because of the difficulty in finding food for his special diet, his wife fixed lunch for him at the school. Usually, he would take the city vehicle to his Aunt’s house in Lake-view where he would switch to his personal car for the drive to the school. Then he would return to Lakeview, switch cars, and go back to City Hall. However, on a few occasions, he would not switch cars.

He stated that he would on occasion take the Long children home and if no one was home he would go switch cars to save time. Then when someone was home he would go back to the house and leave the children. Steve Watsky, a teacher at the school, testified that he regularly brought the children home on his way to his house. The children walked in an open door and he rarely saw anyone greet them.

As a part of his job, Bosarge would have occasion to take the car across parish lines during business hours. Bosarge believed that since he was paid on a professional level it was not necessary for him to take his lunch at a specific time everyday or that he had to work strictly between the normal hours of 8:30 and 4:30. As long as he did his job, the variances in his hours did not matter. Additionally, in the twelve years with the city he had not ever been disciplined for any of his actions.

On December 15, 1982, Ray Kaufman called him to his office, informed him that Agent Mehrtens wanted to interview him, and told him to turn in the keys to the car since he would not use it that day. One-half hour later, he reported to the O.M.I. Office, where, before the interview, he requested legal assistance which he was told was unnecessary. Agent Mehrtens showed him a piece of paper that said, in essence, if he didn’t speak during the interview, he would lose his job and not be able to work for City or State Government for ten years. Bosarge then submitted to the interview. He testified Agent Mehrtens left the office for five to ten minutes and returned with the letter of termination. At no time was Bosarge given a chance to talk with either Gorman, Kaufman or Womble.

While this Court agrees that Delmas H. Bosarge, Jr. certainly has some culpability for his actions, we conclude as did the Commission that the record does not support termination from City employment. Reinstatement to his former position with back pay subject to a suspension of one hundred twenty days was deemed reasonable by the Commission. We can not find that this was clearly wrong.

Accordingly, the ruling appealed from is hereby Affirmed. All costs to be borne by Appellant.

AFFIRMED.

REDMANN, C.J., dissents.

REDMANN, Chief Judge,

dissenting.

A New Orleans classified civil service employee, paid for seven hours of work daily during a specified eight-hour period, by spending, probably almost every day, two or three hours of those eight hours at (and in driving the city automobile assigned to him over 10 miles to and 10 miles back from) the private school in Kenner that he and his wife own, gives the city legal “cause,” La. Const, art. 10 § 8(A), to fire him.

I.

The civil service commission would be wrong, as a matter of law, if its decision in this case were that that systematic, deliberate, double theft of hundreds of dollars of car use and thousands of dollars of time (at $14.71 per hour salary plus fringe benefits) is not sufficient cause for firing a city employee.

The commission’s opinion does not concede those facts, however, on which the appointing authority fired Bosarge. The commission, on its reading of a typewritten record of a hearing examiner’s hearing, disbelieves all the evidence that the appointing authority relied on — disbelieves the city investigator, disbelieves the apparently disinterested father of two students at the school, and believes instead the city employee’s nonsensical, self-serving and uncorroborated tale of being diabetic and of therefore having a medical necessity to drive to Kenner to get lunch (from the K-Mart?)!

This writer must say, while noting his respect for the commission and its members, that the commission in this case overreaches its constitutional authority as protector of city employees against discipline without “cause,” and instead supplants the appointing authority — the department head who must run the department — by merely substituting its credibility evaluations for the reasonable ones of the appointing authority, supported by the commission’s own hearing examiner’s record. If one accept those reasonable and record-supported credibility evaluations by the appointing authority, one cannot conclude that the appointing authority did not have cause to fire Bosarge.

II.

“To the victor belong the spoils” was the former political principle of public employment. Employees hired by the previous political administration, whether competent and industrious or not, were fired by the political victors. Incompetent or slothful persons could be hired and promoted at the dictate of the political victors. Public employees could be obliged to pay “deducts” from their salaries to politicians’ coffers, and to work in their political campaigns. Those who did not, or who for any other reason or no reason did not please the political bosses, could be demoted or fired without recourse.

That spoils system was years ago replaced by the civil service system, now embodied in La. Const, art. 10. The civil service system intends to protect public employees and the public at large against those and similar evils. It provides “appointments and promotions ... only after certification ... under a general system based upon merit, efficiency, fitness, and length of service ...,” art. 10 § 7. It prevents political activity, forced or voluntary, § 9. It disallows disciplinary action against a classified employee “except for cause expressed in writing,” allows appeal to the commission with the burden of proof upon the appointing authority, § 8(A), and allows further review “on any question of law or fact” by the court of appeal, § 12.

The commission’s constitutional role of guardian against political or other disciplinary action “except for cause,” § 8(A), entitles it to deference from the courts in its determination of both whether the established facts constitute legal cause and whether the discipline is commensurate with that cause. Walters v. Dept. of Police of N.O., 454 So.2d 106 (La.1984). More to our point, the commission’s role obliges it to make underlying factual findings in respect to whether cause exists, and therefore also entitles the commission’s factual findings to deference from the courts, which “should not reverse or modify such a finding unless it is clearly wrong or manifestly erroneous.” Id. at 114.

Yet the appointing authority — the department head — also has a role that obliges him or her to make factual findings. The appointing authority necessarily has the duty to administer his or her governmental unit, to discipline or fire employees who do not do their work or who otherwise impair the efficiency of the public service — who no longer have the “merit, efficiency, [and] fitness,” art. 10 § 7, that justified their employment in the first place. If he or she is to perform that duty, the appointing authority cannot escape making factual findings, including some based on credibility evaluations. When the appointing authority does make factual findings, are his or her reasonable factual findings, if supported by the commission’s hearing examiner’s record, entitled to some deference from the commission (in the absence of record circumstances showing that the appointing authority was wrong)?

This writer would conclude that, although the courts may not reverse the civil service commission’s factual findings unless clearly wrong, the commission equally may not reverse the appointing authority’s factual findings unless probably wrong on the basis of the record before the commission. The commission exceeds its authority and oversteps its constitutional role if it merely substitutes its reasonable factual inferences for the appointing authority’s reasonable factual inferences (when the latter are supported by and not probably wrong on the basis of the commission’s hearing examiner’s record). That is, with all due respect, all that the commission did in this case.

III.

The commission’s decision should therefore be reversed. Bosarge does have some pay coming to him, however. The matter should be remanded to the commission to fix the amount the city should pay Bosarge for the hours worked December 15, 1982 before he was fired, and for the 129 days of payable leave accrued, less some reasonable calculation of the time he was paid for but did not work — say an hour and a half a school day at least from the beginning of the 1981 school year, if not for the entire time he owned the Kenner school — and any leave attributable to that unworked time, and less a reasonable mileage charge for, say, 20 miles a day during that same period.

      . Office of Municipal Investigations investigator Robert Mehrtens testified that, prompted by an anonymous letter whose self-accrediting detail reminds one of that in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), he conducted surveillance on three occasions at the Kenner school.
      The first time, May 11, 1982, the city’s Che-vette was already at the school when Mehrtens arrived at 1:25 p.m. At 2:50 p.m., Bosarge emerged from the school with two young children and drove them in the Chevette back to New Orleans.
      The second time (Mehrtens having meanwhile been too busy with other investigations to pursue this one), December 3, Bosarge arrived at 1:30 p.m., shortly left to go to a nearby K-Mart store, where he got “two styrofoam food cartons,” and then returned with the food cartons to the school. At 2:43 p.m. he exited the school to return in the Chevette to city hall in New Orleans.
      The third time, December 6, Mehrtens arrived at the school at 12:25 p.m. The Chevette was already there. At 1:15 p.m. Bosarge went to K-Mart, got two styrofoam food cartons, and at 1:35 returned to the school. At 2:46 p.m. Bo-sarge left the school and in the Chevette returned to city hall.
      (On a fourth occasion, on December 13, at 2:35 p.m., when just passing by the school, Mehrtens again saw the city’s white Chevette assigned to Bosarge parked there.)

      . William Long III, the father of the two children whom Bosarge had brought from the school in Kenner to their home in New Orleans in May, 1982, testified: "Q. How were they transported to and from school? A. During the year of ’81, ’82 ... in the afternoon they were dropped off by Mr. Bosarge_ Most of the time it was a small white Chevette ... it had a city sticker on the side of the automobile. Q. Did it say City of New Orleans? A. Yes, it did. It was red, white and blue with the fleur de lis.” "Mr. Bosarge brought [the children] home at the time you’re talking about every day, with the exception of maybe one or two days.” "He used the city vehicle with the exception of a very few times he was in another automobile.” Long paid the school (owned by Bosarge and his wife) $50 a month for transportation. (The Long children did not attend the Kenner school in 1982-1983.)


text:
    Janice F. JACKSON v. EVANS COOPERAGE COMPANY.
    No. CA-1856.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 1984.

      Orlando G. Bendana, Wayne H. Carlton, Jr., New Orleans, for plaintiff-appellee (Janice F. Jackson).
    Delbert G. Talley, John B. Donnes, III, Gretna, for defendant-appellant (Evans Cooperage Co.).
    Before REDMANN, C.J., and KLEES and GARRISON, JJ.
   KLEES, Judge.

Evans Cooperage Company appeals from a judgment awarding $8,000.00 in general damages to Janice Jackson for injuries she sustained while working on their premises. The issue presented is whether or not the trial court abused its discretion in awarding that particular amount of general damages to the plaintiff. Finding no abuse of discretion we affirm the award.

Janice Jackson, Appellee, was, and still is, a feed grain inspector for the Louisiana Department of Agriculture. She was injured on August 6, 1981, when a drum of grain, which had been misplaced on the weighing scale by a fork-lift operator employed by Evans Cooperage Company, fell from the scale. Jackson backed up on the weighing platform to avoid the drum and fell six to seven feet striking the ground. She then rolled under the platform to avoid the falling drum. After the danger past, several employees of Appellant aided Ap-pellee in getting up from the ground.

Jackson experienced pain in the right side of her neck, right arm, shoulder, leg and lower back. She was taken to Logan & Nelson Surgical Clinic for treatment immediately after the fall. She was treated there several times but was discharged by the doctors as fit for work on or about September 23, 1981.

Still complaining of pain, Jackson was examined by Dr. Stuart Phillips on October 13, 1981. Although no objective findings were found to substantiate her claims of pain, Dr. Phillips requested than an electro-myelogram (EMG) be performed to determine if Jackson had sustained nerve damage in the fall. She submitted to this test and on December 1, 1981, Dr. Phillips told her that the test was negative for nerve damage. Jackson, however, complained that she was still experiencing pain. The pain consisted of soreness, aching and stiffness. Dr. Phillips prescribed medication for her pain and requested that she increase her activity.

Jackson testified that due to financial reasons she returned to work fulltime without her doctor’s approval. She informed Dr. Phillips of this on December 1, 1981. He testified that he understood her plight but that she was only to perform light work.

Jackson further testified that she needed help to perform her household chores. She could only do things such as light dusting and washing dishes. Her mother and neighbor would come and help her with the heavy cleaning.

Dr. Phillips diagnosed the injury as a moderate cervical column strain. He testified that Jackson had no spasms, tenderness or other symptoms of pain in the area she claimed was injured. He relied only on the fact that she told him she was in pain. Following the visit on December 1, 1981, Dr. Phillips advised Appellee to increase her activities. She was discharged by him on July 15, 1982 when she was no longer complaining of pain.

The Trial Court awarded Appellee $8,000.00 in general damages and $1,089.50 in medical expenses subject to a credit of $709.50 which had previously been paid. Did the Trial Court abuse its discretion in awarding that amount of general damages?

Louisiana Civil Code Article 1934(3) allows the trial court to award damages for offenses, quasi-offenses and contracts. Under this rule, the amount of damages assessed by the judge or jury should not be disturbed unless the reviewing court’s examination of the facts reveals a clear abuse of the discretion vested in the trial court. Lomenick v. Schoeffler, 250 La. 959, 200 So.2d 127, 132 (La.1967).

The record must then clearly reveal that the trier of fact abused its much discretion in making its award. Only after making that determination can this Court, as the reviewing court, disturb the award and then only to the extent of lowering it or raising it to the highest or lowest point which is reasonably within the discretion afforded this Court. It is never appropriate simply to decide what this Court considers an appropriate award on the basis of the evidence. Coco v. Winston Industries, 341 So.2d 332 (La.1976).

Expanding the principles in Coco, supra, before the trial court award may be questioned as inadequate or excessive, this Court must look first, not to prior awards, but to the individual circumstances peculiar to this case and this individual. The prior awards may serve as an aid in the determination of the sufficiency of the award only where the present award is shown to be greatly disproportionate to the mass of past awards for truly similar injuries. After an articulated analysis of the facts discloses an abuse of discretion, the award may on review by this Court, for articulated reason, be considered either excessive or insufficient. Reck v. Stevens, 373 So.2d 498 (La.1979).

The trier of fact had the opportunity to view Jackson and to listen to her story. It was he who determined that, based upon the facts as presented to him, the award of $8,000.00 in general damages was sufficient to fully compensate this plaintiff for her injuries.

Jackson experienced a traumatic fall while in the course and scope of her employment. It took nearly a year to recover from her injuries. She returned to work for financial reasons before she was completely healed. She continued to use her injured muscles both at home and at work although she was experiencing pain. Every visit to the doctor she complained of pain. The Trial Court took all this into consideration when it determined the amount of its award. This amount is not so great as to be an abuse of discretion of the trial court. We will not, then, disturb its award.

For the foregoing reasons, the judgment of the Trial Court is AFFIRMED. Costs of this appeal to be paid by Appellant.

AFFIRMED.


text:
    Samuel A. BAVIDO v. Carolyn WEIXEL.
    No. CA-1965.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 1984.

      Anthony J. Glorioso, New Orleans, for plaintiff-appellant Samuel A. Bavido.
    E. Wayne Walker, Gretna, for defendant-appellee Carolyn Weixel.
    Before REDMANN, C.J., and KLEES and GARRISON, JJ.
   KLEES, Judge.

In this case, the plaintiff, Samuel Bavido, appeals from a judgment of the district court declaring a written agreement between him and the defendant, his ex-wife, to be null and void. The handwritten document, entitled “Property Agreement,” purports to transfer the equity in what was once the Bavido family home from both parties as co-owners to Mr. Bavido as sole owner. Mr. Bavido brought a declaratory judgment action in the Orleans Parish Civil District Court seeking to have the agreement declared valid, and Ms. Weixel reconvened, demanding that the agreement be declared null and void. The trial court found the agreement to be without any effect, and we agree.

The parties to this action were divorced on December 4, 1978. The purported property agreement bears the signatures of both parties and is dated December 7, 1978, three days subsequent to the divorce. The document also bears the signatures of a notary public and two witnesses. Mr. Bavi-do claims that the agreement is an authentic act, the validity of which cannot be challenged by means of parol evidence. La.Civ.Code arts. 2234, 2236; American Creosote Co. v. Springer, 257 La. 116, 241 So.2d 510, 513 (1970).

At the trial, Mr. Bavido and Ms. Weixel were the only two witnesses to testify. Mr. Bavido stated that he himself wrote the agreement, and that he and the defendant both signed it after their divorce, as a part of the property settlement between them. In contrast, Ms. Weixel testified that the agreement was signed by them while they were still married, about one or two months prior to their divorce. She further testified that they did not sign in the presence of a notary or witnesses. Neither the Notary or the two witnesses were called to testify at trial. According to Ms. Weixel, her husband told her that she could not move into the new house they had built unless she signed the agreement, and she signed because she did not want to disappoint her children, who were living with her in an apartment at the time and were looking forward to moving into the house.

The trial court obviously believed Ms. Weixel’s testimony to be more credible than that of her former husband, and found, in its Reasons for Judgment, that the agreement was executed while the parties were still married. We cannot disturb this factual finding in the absence of manifest error, which is not present here. Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973). Under the law in effect at the time this agreement was signed, a husband and wife lacked the capacity to contract with each other. Louisiana Civil Code art. 1790 (1870). Act No. 627 of the 1978 legislative session, which deleted interspousal incapacity, did not become effective until September 7, 1979, almost a year after the parties entered into their so-called property agreement. Therefore, the agreement is null and void because at the time it was made, the parties were married and it was illegal for them to contract with each other. Under this analysis, whether or not the agreement is in authentic form is irrelevant. Nevertheless, we disagree with plaintiffs assertion that parol evidence is inadmissible to vary the terms of this agreement, as parol testimony is always admissible where fraud has been alleged, as here. American Cresote, supra, 241 So.2d at 513.

Therefore, for the reasons stated above, we affirm the judgment of the district court declaring this agreement null and void. All costs are to be borne by appellant.

AFFIRMED.


text:
    Rosella VEAL v. CHURCH’S CHICKEN OF NEW ORLEANS and Firemen’s Fund Insurance Companies.
    No. CA-2003.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 1984.

      Robert T. Hughes, New Orleans, for plaintiff-appellant (Rosella Veal).
    Marshall G. Weaver, Donovan & Lawler, Metairie, for defendants-appellees (Church’s Chicken of New Orleans and Fireman’s Fund Insurance Companies).
    Before REDMANN, C.J., and KLEES and GARRISON, JJ.
   KLEES, Judge.

This is an appeal by Rosella Veal, Plaintiff-Appellant, from a judgment in favor of Church’s Chicken of New Orleans and Fireman’s Fund Insurance Companies, Defendants-Appellees, dismissing Veal’s petition for workmen’s compensation benefits as a result of an accident in which she sustained personal injuries while employed by Church’s Chicken.

ISSUES:

The issues to be decided on appeal are 1) Did the trial court err in dismissing plaintiff’s suit? and 2) Did the plaintiff prove by a preponderance of the evidence that she is entitled to workmen’s compensation benefits as a result of the accident? The answer to both of these questions is no. FACTS:

On April 25, 1981, Rosella Veal was employed as a Cashier at Church’s Fried Chicken. Around 7:00 p.m. on that date, she was closing up her register when her supervisor, “Melvina”, told her to help stock up for the next shift. She put on a rubber glove and went to the refrigerator to get some frozen corn and french fries. When she touched the refrigerator, she was electrically shocked and the shock caused her to fall to the ground. Clifford Stewart, an employee who was mopping the floor at the time, picked Veal up and put her in a chair. Melvina was informed of the accident by Stewart. Melvina asked Appellant if she was hurt or injured. Appellant at first said no, however, later she called her fiance, Linus Tate, and told him to come pick her up and take her to the hospital because her back hurt.

At Touro Infirmary, Appellant was examined by Dr. George Linder. Although Appellant was complaining of pain in her back, he found no bruising, no tenderness, and her neurological examination and straight leg raising test were normal. She was given some medication and told to see Dr. Espenan the next morning.

The Court of Appeals has full and complete jurisdiction to review facts in a civil proceeding. L.S.A. — Const. Art. 5 § 10(B). Appellate review of facts is not completed by reading so much of the record as will reveal a reasonable factual basis for a finding in a trial court. There must be further determination that the record establishes that the finding is not clearly wrong or manifestly erroneous. Arceneaux v. Dominque, 365 So.2d 1330 (La.1978).

The trier of fact is the best able to judge the credibility of the witnesses who testified at the trial. The Appellant and her fiance were the only live witnesses at the trial. All of the testimony of the doctors was by deposition. The trier of fact found that Appellant was not injured in such a way as to award workmen’s compensation for the extended period of time that she claimed she was injured. The Appellant testified that she did receive benefits from the time of the accident until the time she was seen by Dr. Llewellyn even though she was not sure of exactly when the benefits were terminated. No other testimony was offered concerning the payment or nonpayment of benefits. The trier of fact found that Appellant was not entitled to any more benefits and we agree. When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review this Court should not disturb this factual finding in the absence of manifest error. Canter v. Koehring Co., 283 So.2d 716 (La.1973); Arceneaux v. Dominque, supra. We find on a review of the record, there was a reasonable factual basis for the Trial Court’s finding and that there was no manifest error committed by the trier of fact.

Additionally, a comparison of each of the doctor’s findings confirms that there is some contradiction as to what injuries, if any, Appellant still is suffering from as a result of the accident. However, there is no contradiction that the Appellant suffered a muscle ligament strain on April 25, 1981. When testimony is in conflict, reasonable evaluations of credibility and reasonable inferences of fact drawn by the trier of fact should not be disturbed on appeal. Clay v. Bituminous Casualty Corp., 401 So.2d 1257 (La.App. 1st Cir. 1981). The trier of fact heard the testimony at the trial and evaluated the testimony in reaching his conclusion. He believed that the testimony of Doctor Espenan who treated appellant from April 26, 1981 through July 10, 1981 and Dr. Nutik who treated appellant from June 4, 1981 through January 8, 1982 who both concluded that appellant could return to work, was more credible than that of the Appellant and Dr. Llewellyn, who testified that appellant showed lumbar stenosis at L4-L5 and a possible disc injury at L5-S1. We will not disturb his conclusion.

After a review of the record and applying the principles stated, we find that there was no manifest error committed by the Trial Court in dismissing Plaintiff-Appellant’s suit Accordingly for the foregoing reasons, the judgment of the trial court is hereby Affirmed.

AFFIRMED.


author: CIACCIO, Judge.

text:
    Shirley Weber, wife of/and William WEBER, individually and on Behalf of their minor daughter, Gaynell Weber v. CHARITY HOSPITAL OF LOUISIANA AT NEW ORLEANS and Interstate Blood Bank of Louisiana, Inc.
    No. CA 1853.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 1984.
    Writ Granted Jan. 14, 1985.

      Orlando G. Bendana, Wayne H. Carlton, Jr., New Orleans, for appellant.
    John C. Combe, Jr., Jones, Walker, Wae-chter, Poitevent, Carrere & Denegre, New Orleans, for appellee-interstate Blood Bank of Louisiana, Inc.
    J. Thomas Nelson, New Orleans, for ap-pellee-Charity Hospital of Louisiana at New Orleans.
    Mark C. Landry of Newman, Drolla, Mathis, Brady & Wakefield, New Orleans, for appellee/defendant-in-rule — Thomas D. McCaffery, Jr., M.D.
    Before CIACCIO, LOBRANO and ARMSTRONG, JJ.
   CIACCIO, Judge.

Plaintiffs appeal from a judgment dismissing their suit against Charity Hospital and Interstate Blood Bank, Inc. Plaintiffs had sued to recover for damages suffered by Gaynell Weber when she contracted hepatitis after receiving blood transfusions. The trial court reasoned that defendants should be dismissed because plaintiffs had previously released other solidary obligors' and had not specifically reserved their rights against defendants. We affirm.

Gaynell Weber, the guest passenger in a car driven by her mother, Shirley Weber, was injured when her car collided with a car driven by Jimmie Smith. In a suit separate from this one under consideration, Gaynell, through her tutor, sued Jimmie Smith and sued the insurance company of her host driver in liability and for uninsured motorist coverage. Gaynell settled her claims against her host driver’s insurance company and executed a release. She specifically reserved all rights against Jimmie Smith and his insurance company.

While undergoing treatment at Charity for the injuries received in the automobile accident, Gaynell received blood transfusions. Shortly after her discharge from Charity, Gaynell showed signs of having contracted hepatitis. Her condition was diagnosed as type non-A non-B hepatitis.

Plaintiffs’ petition in this case alleges that Charity and Interstate Blood Bank, Inc. are liable for Gaynell having contracted hepatitis.

After a trial on the merits the trial judge found that the evidence established that Shirley Weber, Gaynell’s host driver, negligently caused the collision responsible for Gaynell’s initial injuries. We have reviewed the entire record and we cannot say that this factual finding by the trial court is clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Accordingly, the remainder of our discussion will be premised upon the fact that Shirley Weber is the original tortfeasor because she negligently caused the accident.

When there are more than one obligor or obligee, the obligation may be either several or joint or in solido. La.C.C. Art. 2077. An obligation is solidary among debtors when they are obliged to the same thing, so that each may be compelled for the whole, and when payment by one exonerates the other toward the creditor. La.C.C. Art. 2091. The remission or conventional discharge in favor of one of the codebtors in solido, discharges all the others, unless the creditor has expressly reserved his rights against the latter. La.C.C. Art. 2203.

The original tort-feasor is responsible for the injuries of the injured person following the tort even though such injuries are aggravated by negligent or unskillful treatment. Such aggravation is regarded as a part of the immediate and direct damages naturally flowing from the original tort, rather than as resulting from an intervening cause. Erdey v. American Honda Co., Inc., 415 So.2d 449 (La.App. 1st Cir.1982); Berger v. Fireman’s Fund Insurance Company, 305 So.2d 724 (La.App. 4th Cir.1974); Hillebrandt v. Holsum Bakeries, Inc., 267 So.2d 608 (La.App. 4th Cir.1972); Hudgens v. Mayeaux, 143 So.2d 606 (La.App. 3d Cir.1962). Shirley Weber and her insurer were responsible for the injuries Gaynell originally sustained as a result of the collision, as well as for any aggravation of those injuries which may have occurred during treatment. If there were any liability on the part of defendants for aggravation of Gaynell’s injuries during treatment, that liability would be in solido with Shirley Weber and her insurer. Erdey v. American Honda Co., Inc., supra; Berger v. Fireman’s Fund Insurance Company, supra.

It is the coextensiveness of 'the obligations for the same debt, and not the source of liability, that determines the solidarity of the obligation. Once the extent of each debtor’s liability has been determined, there is an in solido obligation as to their common liability to the injured party. While one item of damages may be recoverable against one debtor and not the other, the parties are liable in solido as to every item for which plaintiff can compel payment from either. Narcise v. Illinois Central Gulf Railroad Co., 427 So.2d 1192 (La.1983).

The release in favor of Shirley Weber’s insurer did not expressly reserve any rights against these defendants. Because any liability on the part of these defendants for the aggravation of the original injuries would be in solido with the party released, the release operates as a discharge in favor of these defendants. La. C.C. Art. 2203, Corona v. State Farm Insurance Company, 444 So.2d 763 (La.App. 4th Cir.1984); Berger v. Fireman’s Fund Insurance Company, supra.

Accordingly, the judgment of the district court is affirmed.

Plaintiffs have also appealed from a judgment of the district court which does not involve the merits of this case. Thomas D. McCaffery, Jr., M.D., testified at trial as an expert. After trial Dr. McCaffery sent plaintiffs’ attorney a bill for services rendered. Plaintiffs’ attorney disputed his obligation to pay the bill and filed a “Motion to Set Expert Fees If Any Are Due to Dr. Thomas D. McCaffery, Jr.”. Dr. McCaffery filed an “Exception of Improper Use of Summary Proceedings” wherein he prayed that the rule be dismissed.

The district court maintained the exception and dismissed the motion. Plaintiffs have appealed the judgment. Dr. McCaf-fery has answered the appeal and has asked for damages for frivolous appeal and attorney fees.

Dr. McCaffery maintains that he is owed a fee based upon a contractual arrangement with plaintiffs’ attorney. Plaintiffs’ attorney argues that no fee is owed because the doctor’s testimony was not helpful to plaintiffs, and that the doctor was a fact witness, qualified as an expert only after being declared a hostile witness.

While not improper to ask the trial court to set expert fees as an element of costs to be paid by the party cast, a rule to tax costs is not the proper vehicle to determine the obligations due under a contract. An agreement entered into by a party as to the fee which an expert is to receive, or the statement of the expert as to his charges, or even the actual payment of such a fee to the expert, are not binding on the court and are not criteria to be used by the court in fixing the expert fees to be assessed as costs in the suit. La.C.C.P. Art. 1920; La. R.S. 13:3666; Wetzka v. Big Three Industries, Inc., 409 So.2d 393 (La.App. 4th Cir.1982); State Department of Highways v. Gordy, 322 So.2d 418 (La.App. 3d Cir.1975). Any fees taxed as costs would not finally determine the contractual issues. Whether a contract exists and whether any obligation remains due under the contract should be decided in an ordinary proceeding between the parties alleged to have contracted.

Plaintiffs’ “Motion to Set Expert Fees...” manifests an intent to resolve the dispute concerning Dr. McCaffery’s charges by way of a summary rule to tax costs. This was improper. The trial judge correctly maintained the doctor’s exception and dismissed the motion.

By answer to the appeal Dr. McCaffery has requested attorney fees and damages for frivolous appeal. This court is allowed to award damages for frivolous appeal. La.C.C.P. Art. 2164. Appeals are favored, however, and damages for frivolous appeal are not granted unless they are clearly due, e.g., when there are no serious legal questions, when it is manifest the appeal was taken solely for the purposes of delay, when it is evident that appellant’s counsel is not serious in advocating the view of law which he presents. Young v. Schwegmann Giant Supermarkets, Inc., 430 So.2d 251 (La.App. 4th Cir.1983).

In the instant case it is not obvious, nor has Dr. McCaffery demonstrated to our satisfaction that this appeal is frivolous. Although appellant’s arguments are without merit, damages are not warranted in this case.

For the foregoing reasons, the judgment of the district court is affirmed.

AFFIRMED.