author: LOBRANO, Judge.

text:
    AMOCO PRODUCTION COMPANY v. COLUMBIA GAS TRANSMISSION CORPORATION. Appeal by TRENDWOOD FOUNDATION, INC., et al.
    No. CA-1759.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1984.
    Writs Denied Nov. 9, 1984.

      Gene W. Lafitte, George J. Domas, Appeal Counsel, Deborah Bahn Price, Joe B. Norman, Liskow & Lewis, New Orleans, Lawrence P. Simon, Jr., Liskow & Lewis, Lafayette, for Amoco Production Co.; Robert H. Frick, Chicago, Ill., Robert C. Smith, Frederick T. Kolb, Jackson M. Cooley, New Orleans, of counsel.
    Frederick W. Ellis, A Law Corporation, New Roads and W.T. Tete, Mars, Medo & Tete, New Orleans, for Trendwood Foundation, Inc.
    Frank J. Peragine, Thomas R. Blum, James A. Burton, Thomas J. Fischer, Simon, Peragine, Smith & Redfearn, New Orleans and Giles D.H. Snyder, F. Samuel Byrer, Charleston, W.Va., for Columbia Gas Transmission Corp.
    Before GULOTTA, LOBRANO and ARMSTRONG, JJ.
   LOBRANO, Judge.

This matter arises out of a dismissal by the trial court on an exception of no right of action of a petition for intervention. From said dismissal intervenors have perfected this devolutive appeal. Several issues have been raised for our determination. They can be summarized as follows:

1) Was the trial court in error in dismissing appellant’s intervention?
2) Did the trial court err in limiting certain discovery sought by intervenors?
3) Does this court have jurisdiction to hear this appeal?

STATEMENT OF FACTS

Amoco Production Company (Amoco) brought this action seeking declaratory relief against Columbia Gas Transmission Corporation (Columbia) concerning the performance of two natural gas contracts. The contracts at issue cover gas produced offshore (the Vermillion Contract) and gas produced inshore from the Morganza, Schwab and Ravenswood Areas of Pointe Coupee Parish (the Morganza Contract). Specifically, Amoco seeks a judgment declaring that the contracts are valid and enforceable, that Columbia’s contractual obligations are neither excused nor suspended by force majeure or for any other reason, and that Columbia is without right to unilaterally amend or modify the contracts. Amoco additionally seeks an order requiring Columbia to specifically perform its contractual obligations, including the obligation to take and pay for the quantities of gas specified in the minimum take requirements of the contracts, the obligation to make the required payments under the take-or-pay provisions of the contracts, and the obligation to pay for gas taken in accordance with the pricing provisions of the contracts.

Before Columbia answered the suit, a Petition of Intervention was filed on behalf of the Trendwood Foundation, Inc., Silver Mount Corporation, the Trust for John Forest, Ray John Forrest, and Beverly Rachel Janice Forrest (the Trendwood Interve-nors). In their original Petition for Intervention, the Trendwood Intervenors allege that they are lessors and/or royalty owners under certain mineral leases with Amoco which cover gas produced and sold to Columbia pursuant to the Morganza Contract. They assert that these mineral leases entitle them to an accounting for and payment of a portion of any monetary or non-monetary benefit derived by Amoco under the Morganza Contract, by settlement or otherwise, as either additional royalty or damages.

Thereafter, Amoco filed exceptions of no right of action and vagueness. Trendwood then filed an amended and second amended petition of intervention wherein they allege, in addition to the facts of their first petition, that they are third party beneficiaries of the Morganza Contract and further that Amoco and Columbia engaged in “unfair methods of competition and unfair or deceptive acts or practices in the conduct of trade or commerce.” Both Amoco and Columbia continued to urge the exceptions of no right of action, and also asserted that the amending petitions failed to state a justiciable case or controversy sufficient to allow intervention.

Prior to a hearing on the exception Trendwood sought various discovery motions including production of the Morganza contract. In response thereto, and at the urging of Amoco and Columbia, the trial court issued a protective order with respect to the document request. In addition certain depositions of Amoco executives scheduled by Trendwood were continued indefinitely by the trial court.

THE INTERVENTION ISSUE

We feel the issue of whether Trendwood has a right to intervene in these proceedings is the major issue in this case, and therefore will discuss same initially. In doing so we deem it important to emphasize that this matter is before us on the procedural issue of “no right of action” and therefore we will refrain from commenting on the merits of the intervenors’ various claims.

The peremptory exception of “... no right of action, or no interest in the plaintiff to institute suit” raises the question of whether the plaintiff has a legal interest in the subject matter of the litigation, assuming that a valid cause of action is pleaded by the petition. LeSage v. Union Producing Co., 249 La. 42, 184 So.2d 727. It is designed to question the right or interest of a plaintiff to institute litigation, and the introduction of evidence in support thereof is permissible. La. C. C.P. Art. 931; HMC Management Corporation v. New Orleans Basketball Club, 375 So.2d 700 (La.App. 4th Cir.1979). In cases of intervention, however, these principles must be read in conjunction with the statutory provisions which permit a party to intervene.

Louisiana Code of Civil Procedure Article 1091 provides:

“A third person having an interest therein may intervene in a pending action to enforce a right related to or connected with the object of the pending action against one or more of the parties thereto by:
(1) Joining with plaintiff in demanding the same or similar relief against the defendant;
(2) Uniting with defendant in resisting the plaintiffs demand; or
(3) Opposing both plaintiff and defendant.”

Prior to the adoption of the above article, Article 389 of the Code of Practice of 1870 defined intervention as “a demand by which a third person requires to be permitted to.become a party in a suit between other persons; by joining the plaintiff in claiming the same thing, or something connected with it, or by uniting with the defendant in resisting the claims of the plaintiff, or where his interest requires it, by opposing both.” Article 390 of the Code of Practice stated further: “In order to be entitled to intervene, it is enough to have an interest in the success of either of the parties to the suit, or an interest opposed to both.”

The official revision comments to Article 1091 makes two observations concerning the prior law of intervention. First the terminology in the prior law was general and indefinite, and second, the term “interest” as used in the Code of Practice goes beyond “the real and actual interest” required under Article 15 to enable a party to institute an action. The redacters then compare Article 1091 with the Italian Civil Code, and interject the idea that a workable formula for intervention should be, “a third person having a justiciable right related to or connected with the object of the principal suit may enforce that right through intervention.” See, Comments to La.C. C.P. Article 1091. Therein lies the heart of the dispute between the parties to this litigation. The redacters’ interjection of the term “justiciable right” without defining same is the source of argument on both sides. Does the term “justiciable right” mean any interest, whether indirect, conditional, large or small, or does it have a more restrictive meaning so as to require the same interest as is necessary to enable a party to institute an action on his own? Furthermore, what connexity is required between that “justiciable right” and the facts, circumstances and objects of the main demand?

The issue before this Court in Gallin v. Travelers Insurance Company, 323 So.2d 908 (La.App. 4th Cir.1975) was whether La.C.C.P. Article 1091 would be given a broad or restrictive interpretation. After noting that the strict interpretation in a prior case was severely criticized by the Third Circuit in Bellow v. New York Fire and Marine Underwriters, 215 So.2d 350 (La.App. 3rd Cir.1968), and further noting the change in Article 1091 from the former Code of Practice Articles, we held that the broader interpretation was correct. Our brothers of the Third Circuit in the Bellow case supra, provided the following insight as to interpreting Article 1091:

“In our view, LSA-C.C.P. Article 1091 has broadened and thus increased the usefulness of the remedy of intervention. No longer is it essential that the interve-nor have such a direct interest in the pending action that he will obtain immediate gain or suffer immediate loss. Now it is sufficient that he have a justiciable right 'related to or connected with the object of the pending action against one or more of the parties thereto.’ To enforce this right he may proceed in one of the three ways listed in the code article.” Bellow v. New York Fire & Marine Underwriters, Inc., supra at 353.

We are satisfied that the broad interpretation of Article 1091 as set out in Gallin, and Bellow, supra is correct. See, Washington v. Goldate, 411 So.2d 1224 (La.App. 4th Cir.1982). However, we are somewhat disturbed by the use of the term “justiciable right” in those cases since neither gives a clear definition of same. In the more recent case of Banks v. Rattler, 426 So.2d 362 (La.App. 2nd Cir.1983) our brethren of the Second Circuit in setting forth the intervention requirements, summarized as follows:

“Thus, an intervenor must have a justiciable right related to or connected with the object of the pending action against one or more of the parties.” Id. at 365.

In seeking to enforce a community property right for damages to the family car, the Court held that the husband has a justicia-ble right on behalf of the community and therefore could intervene.

It is apparent that the phrase “justiciable right” had its start with the redacters’ comments, and has been consistently referred to as a vital requirement for intervention. Black’s Law dictionary defines justiciable as “proper to be examined in courts of justice” and justiciable controversy as “a controversy in which a claim of right is asserted against one who has an interest in contesting it.”

We are of the opinion that a “jus-ticiable right” as used in interpreting Article 1091 means the right of a party to seek redress or a remedy against either plaintiff or defendant in the original action or both, and where those parties have a real interest in opposing it. If that right does exist, then, in order to intervene it must be so related or connected to the facts or object of the principal action that a judgment on the principal action will have a direct impact on the intervenor’s rights. This con-nexity requirement is essential.

Applying these guidelines to the facts of the instant case we are of the opinion that the trial court was incorrect in maintaining the exception of no right of action. The causes of action stated and the remedies sought by Trendwood can be summarized as follows:

1) Participation in the “take or pay” provisions of the Morganza Contract.
2) Seeking enforcement of the contract by Amoco to Trendwood’s advantage. That is requiring Columbia to purchase as much gas as required by the contract.
3) Seeking redress or damages for alleged unfair practices by Amoco and Columbia.

As noted earlier, we do not comment on the merits of these various assertions, nor do we comment on the merits of Trendwood’s argument that they are third party beneficiaries of the Morganza Contract. These are questions to be decided at the trial on the merits. However, we are of the opinion that Trendwood has satisfied the Codal requirements for intervention. The existence of a separate remedy is not a bar to the intervention as Amoco argues. City of Natchitoches v. State of Louisiana, 221 So.2d 534 (La.App. 3rd Cir.1969). Furthermore, simply because there may be a valid defense on the merits does not warrant the dismissal of an intervention on an exception of no right of action. See, Bielkiewicz v. Rudisill, 201 So.2d 136 (La.App. 3rd Cir.1967). We are convinced that the outcome of the litigation between Amoco and Columbia will have a direct impact on Trendwood’s rights under their leases with Amoco. The most obvious impact will be their royalty rights. Certainly they have sufficient justiciable interests related to the enforcement of the gas contract to allow intervention.

DISCOVERY ISSUES

The trial court granted Amoco’s request for a protective order with respect to the Morganza Contract. The court found that the requested documents fall within the purview of Article 1426(7) of the Code of Civil Procedure. In addition the Court continued indefinitely certain depositions scheduled by Trendwood.

The discovery issues raised by Trendwood are not the proper subject of an appeal as we find no showing of irreparable injury. La.C.C.P. Article 2083. Furthermore, we adhere to the well established principle that the regulation of discovery is subject to the broad discretion of the trial court.

JURISDICTION ISSUE

Amoco raises the issue that a Court ■ of Appeal does not obtain jurisdiction to review a trial court decision until an order of appeal is granted. We do not dispute that principle, however the record discloses that an order for a devolutive appeal was granted on October 28, 1983. We therefore find no merit to this argument.

Accordingly we overrule the judgment maintaining the exception of no right of action, and remand this matter to the district court for further proceedings consistent with this opinion.

All costs of this appeal are to be paid by Amoco and Columbia.

REVERSED AND REMANDED.

      . See Resor v. Mouton, 200 So.2d 308 (La.App. 4th Cir.1967).

      . We avoid falling into the legal snare espoused by Justice Holmes who stated "A right without a remedy is like a ghost that stalks the law.”

      . Trendwood alleges that Amoco may have settled the Vermillion Contract to the detriment of the Morganza Contract to their detriment.


source: Caselaw Access Project

license: Public Domain

text:
    Hudson D. POLK v. LIBERTY MUTUAL INSURANCE COMPANY and Dickey Foods, Inc.
    No. CA-2059.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1984.

      Charles F. Gay, Jr., Adams & Reese, New Orleans, for appellants.
    William M. Detweiler, New Orleans, for appellee.
    Before GULOTTA, LOBRANO and ARMSTRONG, JJ.
   LOBRANO, Judge.

This appeal arises out of a workman’s compensation suit filed by Hudson D. Polk, appellee, against Dickey Foods, Inc. and its insurer, Liberty Mutual, appellants. There are two issues raised for this Court’s review. First, appellants contend that Polk failed to prove a causal relationship between his May 5, 1977 accident and his resulting disability, and second, that the action has prescribed because appellee failed to institute proceedings within one year from the date of the last compensation payment.

On May 5, 1977, while working as a fork lift operator for Dickey Foods, Inc., appel-lee sustained an injury to his lower back when he slipped on a greasy substance while trying to pick up a palate board. Initially, he was referred to the company physicians Drs. Houston, Roy and Faust who treated him for approximately nine (9) weeks for lumbar strain. He was then discharged to return to work. Appellee attempted work but had difficulties because of back pain. His testimony reflects that he worked for short periods of time during the next year, and had to refrain from any heavy work because of pain.

In May and October of 1978 appellee saw the same group of doctors complaining of pain in his left shoulder. The notes of Dr. Faust indicate there was “[N]o known injury at the time.” Appellee saw Dr. Claude Williams first on August 17, 1977 wherein his opinion was that Polk sustained a contusion or lumbar strain. X-rays taken at the time revealed a slight sprain problem with the L-5 and S-l disc space.

On July 5, 1979 appellee again visited Dr. Williams with continued pain in the lumbar area. According to Dr. Williams the complaints were basically the same as those made in August of 1977. Additional X-rays taken at that time revealed the same problem at the L-5 and S-l disc space. Appel-lee was admitted to Southern Baptist Hospital where a myelogram was performed, the results of which indicated surgery was necessary. Surgery was subsequently performed and on December 10, 1979 Dr. Williams gave appellee a 15% disability of the whole body.

The trial court awarded appellee compensation at the rate of 66⅜% of his wages for a period of 450 weeks, all in accordance with R.S. 23:1221(3). In his reasons for judgment, the trial judge stated “... the Court finds the injury by the plaintiff re-suited from the incident of May 5, 1977_” We agree.

Appellants argue that Polk failed to prove causation by a preponderance of the evidence. We disagree. In. the recent case of Robertson v. Scanio Produce, 449 So.2d 459 (La.1984), our Supreme Court, in addressing the issue of causation, stated:

“The causal relationship between a work accident and an employee’s disability may be inferred when there is proof of an accident and .an ensuing disability without an intervening cause. In evaluating the evidence, the trier of fact should accept as true, the uncontradicted testimony of a witness, even though the witness is a party, at least in the absence of circumstances in the record furnishing a sound reason for its rejection.” Id. at 460.

It is clear to this court that appellee has carried the burden required of him by the Robertson case, supra. Appellant has failed to prove any interveening accident or cause. At best, there is mere speculation as to whether the July 1979 visit to Dr. Williams was precipitated by another “accident”, or was merely a continuation of the pain resulting from the May 1977 occurrence. We accept the trial judge’s findings in this regard.

PRESCRIPTION

La.R.S. 23:1209 provides in part:
“In case of personal injury including death resulting therefrom, all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed with the office as provided in this Chapter. Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in case of benefits payable pursuant to R.S. 23:1221(3), this limitation shall not take effect until three years from the time of making the last payment of benefits pursuant to R.S. 23:1221(1), (2), (3), or (4)....”

It is clear that in the instant case appellee filed suit, and recovered under the provision of R.S. 23:1221(3). Therefore, the three years and not the one year prescriptive period is applicable.

Accordingly the judgment of the lower court is affirmed. Appellants to pay all costs.

AFFIRMED.

      . See Martin v. Zachry, 424 So.2d 1002 (La. 1982); West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979).


text:
    STATE of Louisiana v. Atropin SIMMONS.
    No. KA-1827.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Susan Scott Hunt, Asst. Dist. Atty., New Orleans, for appellee.
    Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for appellant.
    Before GULOTTA, LOBRANO and ARMSTRONG, JJ.
   LOBRANO, Judge.

Defendant, Atropin Simmons, was charged by bill of information with crime against nature, a violation of La.R.S. 14:89. He was arraigned on July 7, 1983 and entered a plea of not guilty. Defendant requested a jury trial. On November 15, 1983, a six person jury found the defendant guilty as charged.

On November 23, 1983, defendant was sentenced as a multiple offender under La. R.S. 15:529.1 to four years in the custody of the Louisiana Department of Corrections with credit for time served.

Defendant briefed no specific assignments of error. Assignments of error neither briefed nor argued are deemed waived on appeal. State v. Kenner, 384 So.2d 413 (La.1980). Defendant requests this court to review the record for errors patent as required by La.C.Cr.P. Art. 920(2). The Supreme Court holding in State v. Raymo, 419 So.2d 858 (La.1982), also requires review of a record for “sufficiency of evidence” under Jackson v. Virginia, 443 U.S. 307, 309, 99 S.Ct. 2781, 2783, 61 L.Ed.2d 560 (1979), and State v. Edwards, 400 So.2d 1370 (La.1981), regardless of whether counsel has moved for a directed verdict or a new trial or filed a formal assignment of error. Accordingly, this record has been so reviewed.

The bill of information was in proper form and signed by the district attorney. The trial court acted appropriately in that the defendant was present and represented by counsel at his arraignment, jury selection, trial and sentencing. The composition of the jury was proper as required by La.C. Cr.P. Art. 782 as well as the vote to convict. The verdict was responsive to the charge. The sentence was legal and all appropriate delays were accorded the defendant in accordance with statutory parameters. As to the “Sufficiency of the evidence”, the following facts and testimony were adduced at trial:

Vice Squad Officer, John C. Auster, testified that on June 1, 1983, he was driving in a lake-bound direction on Barracks Street in New Orleans at approximately 1:00 a.m. When he stopped at Dauphine Street, the defendant waved him to pull over. The defendant then walked up to the driver’s side of the car, leaned in the window and using street terms asked the officer if he was looking for sexual services. The officer responded that he was liberal minded but a little nervous. Defendant suggested that the officer drive around the block to decide and if they could reach a price they could do business. Officer Aus-ter drove around the block and returned to the corner. Defendant got in the car and they started a conversation. After making small talk, the defendant stated that his price would be fifteen dollars to either have anal intercourse with the officer or to allow the officer to perform fellatio. Auster agreed to the price and allegedly began to drive to a hotel. Instead, he drove to where his fellow vice squad officers were waiting with a tape recorder on which they had monitored and taped the entire conversation. Defendant was then arrested. The tape was admitted into evidence.

During his trial, defendant took the stand and testified that he was entrapped by Auster. He claimed he was “lured” over to the car and offered a ride. However, on cross examination he admitted he was never touched by Auster, got into the car of his own free will, and was first to mention sex and establish a price.

After a careful review of the record we find there are no errors patent. All the evidence presented at trial established that the defendant voluntarily solicited unnatural carnal copulation for compensation. Reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the essential elements of crime against nature were proved beyond a reasonable doubt. Jackson v. Virginia, supra; State v. Fuller, 414 So.2d 306 (La.1982). Defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . La.R.S. 14:89
      "A. Crime against nature is:
      (1) ...
      (2) The solicitation by a human being of another with the intent to engage in any unnatural carnal copulation for compensation.”


author: WARD, Judge.

text:
    In re Donald KAUFMAN.
    No. CA-1773.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1984.
    Lawrence Kullman, Sidney Bach, New Orleans, for plaintiff-appellant.
    Lawrence J. Duplass, New Orleans, for defendant-appellee.
    Before GARRISON, WARD, and L. JULIAN SAMUEL, J. Pro Tern.
   WARD, Judge.

Donald Kaufman compromised his workers’ compensation claim with Aetna Casualty & Surety Insurance Company in a court-approved settlement on September 15, 1980. In April of 1982, Kaufman filed a petition to annul the judgment approving the compromise agreement. The Trial Court refused to set aside the compromise and Kaufman appeals, contending that Aet-na induced settlement of his claim through misrepresentation. We agree and reverse the judgment.

Donald Kaufman was a truck driver who delivered drugs to hospitals and drugstores for I.L. Lyons Company, Ltd. Kaufman claims he strained his back on June 22, 1979, while lifting the tail gate of his truck. Kaufman reported the incident to his supervisor, who took him to Dr. Ralph J. McDonough at the Carondelet Clinic. Dr. McDonough determined that Kaufman had strained his lower back, treated him, and referred him to several other physicians chosen by Aetna, the workers’ compensation insurer of Lyons. Aetna paid Kaufman weekly compensation benefits from June to November of 1979. After the payments ended, Kaufman contacted Pearl Atwood, an adjuster for Aetna who had initially handled Kaufman’s claim. Atwood told Kaufman that his benefits had been terminated because Dr. McDonough had informed Aetna that his condition was due to high blood pressure rather than a work-related injury.

Kaufman then returned to work, but within a week, re-injured his back while unloading a truck. Lyons sent Kaufman back to Dr. McDonough and compensation benefits were reinstated from the date of the injury, December 8, 1979.

In September of 1980, a representative of Aetna, Percy Williams, called Kaufman and asked him to come to his office. There, Williams informed Kaufman that Aetna was terminating his benefits. Williams claimed to have a complete file of Kaufman’s medical reports, all of which indicated Kaufman’s injury was not work-related. After going over these reports with Kaufman, Williams made an offer of $2,000 to settle the claim. Relying upon the medical reports and the conversation with Williams, Kaufman decided to settle. He called Williams a few days later and accepted the $2,000 offer. On September 15, 1980, the Court appointed an attorney to represent Kaufman at the compromise settlement. The attorney reviewed the record and recommended that the Judge approve the settlement, and the settlement was executed on the same day.

Kaufman had no further thoughts about the settlement until over a year later when he applied for Social Security benefits after undergoing back surgery. At the Social Security hearing, Kaufman was given a file of his medical records to review. In the file, he discovered reports of a lumbar mye-logram dated August 31, 1979 and an epidural venogram dated September 9, 1979, both from Touro Infirmary’s radiology department. As a matter of fact, Aetna’s adjusters had not seen the results of either the myelogram or the venogram. Consequently, these reports were not attached to the workers’ compensation compromise settlement, nor had they been revealed to or discussed with Kaufman or his attorney at the time of the settlement. Both the mye-logram and venogram indicated possible disc problems, conflicting with the medical reports which Kaufman had seen. Kaufman claims that he would not have settled for $2,000 had he known of these two reports and that Aetna’s representatives misrepresented the facts of his case which induced him to settle his claim. We agree.

Kaufman relies on La.R.S. 23:1273(B) and McCastle v. Architectural Stone Co., 4 So.2d 120 (La.App.1st Cir.1941) as authority for setting aside the compromise agreement. La.R.S. 23:1273(B) provides that a court-approved compromise settlement “shall not thereafter be set aside by the court except for fraud or misrepresentation made or induced by the employer or his insurer.”

In McCastle, the First Circuit Court of Appeal set aside a workers’ compensation settlement due to misrepresentations of fact made to the claimant even though no willful fraud or ill practice was proven. The Court reasoned:

As a general rule, a compromise settlement cannot be set aside for an error of law alone, yet if the error was caused by what was said or done by the other party under such circumstances as to lead the person in error to rely on such act or statement, there is such a mistake as will justify setting aside the agreement. If an ignorant laborer is not fully advised as to his legal rights and relies on the employer, its attorney or physician, for information affecting his claim for compensation, and by reason of such reliance settles his claim for an insignificant amount because of mistake or error as to his rights, such a settlement is vulnerable to attack by the employee ... where the employee is not represented by separate counsel and all the proceedings are carried on by the attorney for the employer or its insurance carrier, the settlement will be carefully scrutinized to ascertain if the employee was laboring under any mistake of facts or error as to his legal rights arising from a failure to disclose to him all the facts in possession of the employer or its agent, or any representations, whether purposely or innocently made, which might have misled him into accepting an amount much less than he would have been willing to accept had a full disclosure been made to him. 4 So.2d at 123.

Although the McCastle facts are somewhat different from those here, the principles of law, which were adopted by this Court in Carlton v. Great American Insurance Co., 273 So.2d 655, 660 (La.App. 4th Cir.1972), are the same and apply in Kaufman’s case.

The record shows that Kaufman was not represented by an attorney during the compromise negotiations. In fact, he did not meet his court-appointed attorney until the day the settlement agreement was approved. The record shows that Kaufman and his appointed attorney discussed the settlement for about fifteen minutes before it was signed. The attorney testified he had no independent recollection of the case, but, had he known of the two medical reports later discovered by Kaufman, his advice to Kaufman would have been different.

Additionally, both Aetna adjusters who handled Kaufman’s claim, Pearl Atwood and Percy Williams, denied knowledge of the reports, but testified that, had they been in the file, they would have been considered along with the other reports and might have affected Aetna’s offer to Kaufman. At the very least, Williams testified that, had he seen the reports, he would have asked another doctor to evaluate Kaufman’s condition. Atwood testified that Aetna had destroyed Mr. Kaufman’s file; thus, it is impossible to determine if Aetna had actual knowledge or even possessed the reports.

However, we believe actual knowledge or possession of the reports are of little consequence in this case. Since Kaufman was not represented by counsel and all examining physicians were chosen by Aetna, we believe Aetna should be charged with knowledge of whatever information its doctors possessed, including the reports of the lumbar myelogram and the epidural veno-gram.

In his reasons for judgment, the Trial Judge stated that the myelogram and the venogram were both ambivalent and without clinical correlation. We need not decide the evidentiary weight of these medical reports, for that is not the issue. What we do decide is that there was an inadvertent misrepresentation of material fact by the employer’s insurer and La.R.S. 23:1273(B) entitles Donald Kaufman to have his compromise set aside.

Hence, we order that the settlement agreement entered into between Donald Kaufman and Aetna Casualty & Surety Insurance Company on September 15,1980, be set aside and this case remanded to allow Donald Kaufman to petition the Trial Court for workers’ compensation benefits. Aetna Casualty & Surety Insurance Company is to pay all costs of trial and this appeal.

Reversed and remanded.


author: ARMSTRONG, Judge.

text:
    Robert J. FRANCIS v. GERVAIS F. FAVROT CO., INC. and United States Fidelity & Guaranty Company.
    No. CA-2013.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1984.
    Writ Denied Nov. 9, 1984.
    John R. Wellman, New Orleans, for plaintiff-appellant.
    Sessions, Fishman, Rosenson, Boisfon-taine & Nathan, Shirley A. Nassif, Kathryn J. Lichtenberg, New Orleans, for defendants-appellees.
    Before GULOTTA, LOBRANO and ARMSTRONG, JJ.
   ARMSTRONG, Judge.

Plaintiff, Robert Francis, appeals from the dismissal of his suit for workers’ compensation. That suit was filed following an accident during the normal course and scope of his employment by the defendant, Gervais F. Favrot Co., Inc. We affirm.

On November 18, 1982 while working as a carpenter for the defendant, Mr. Francis hit himself on the right wrist area with a mallet (“the accident”). He immediately experienced severe pain in his right wrist. Mr. Francis reported the injury to his foreman who referred him to Dr. Richard Faust for treatment. On examination Dr. Faust observed a small superficial abrasion one inch above the snuffbox of the wrist. Mr. Francis complained of pain in the area of the abrasion and Dr. Faust noted that there was tenderness in the area of the snuffbox. Dr. Faust took x-rays of Mr. Francis’ injury. Those x-rays revealed a closed fracture of the waist of the scaphoid (navicular) bone of the right wrist with a hiatus of two millimeters. After viewing those x-rays, Dr. Faust formed the opinion that Mr. Francis’ fracture was not fresh, but was between one and six months old. Dr. Faust placed Mr. Francis’ right wrist arm in a short cast with a thumb gauntlet.

Subsequently Dr. Faust referred Mr. Francis to Dr. George Cary, an expert in orthopaedic surgery, who, without removing Mr. Francis’ cast, examined him on November 20, 1982. After reviewing the x-rays and history provided by Dr. Faust, Dr. Cary determined that the fracture was over five to six months old.

On December 12, 1982 Mr. Francis was examined by Dr. Kenneth Adatto, also an expert in orthopedic surgery, who had previously treated Mr. Francis for complications resulting from a stingray bite. After reviewing the x-rays taken by Dr. Faust, Dr. Adatto also reached the conclusion that Mr. Francis had sustained the fracture pri- or to the accident. Dr. Adatto continued to treat Mr. Francis, and removed his cast on December 27, 1982. When Mr. Francis failed to respond to conservative treatment, Dr. Adatto recommended bone graft surgery which was performed in March of 1983.

In addition, on March 9,1983 Mr. Francis was examined by Dr. Kenneth Saer. After reviewing the x-ray and history taken by Dr. Faust, Dr. Saer reached the conclusion that Mr. Francis’ fracture was approximately six months old at the time of the accident.

On January 4, 1983, Mr. Francis filed a petition for workers’ compensation, and on September 9, 1983 a trial was held on that matter. At trial Mr. Francis testified that he continued to experience pain in his right wrist and consequently was unable to work as a carpenter and had not been employed in any capacity since the accident. Mr. Francis’ wife, Janice Francis, also testified that her husband had not experienced any pain in his right wrist before the accident. In addition, Mr. Francis’ co-worker, Robert Brown, Jr., testified that up to approximately six weeks prior to the accident (when Mr. Brown terminated his employment with the defendant) Mr. Francis never complained of pain in his right wrist.

Dr. Adatto also testified on behalf of Mr. Francis. In Dr. Adatto’s opinion Mr. Francis’ fracture was asymptomatic prior to the accident, and the blow to his wrist caused it to become symptomatic. In addition, Dr. Adatto testified that Mr. Francis was responding to treatment, although the fracture had not healed as of the date of trial. Dr. Adatto also testified that under any circumstances Mr. Francis would continue to have problems with his wrist and would have limited motion of the wrist.

In contrast, Dr. Faust testified that, in his opinion, the accident was not the cause of Mr. Francis disability. Dr. Faust’s opinion was based on the following facts: that Mr. Francis did not hit himself directly over the snuffbox of the wrist; and that Mr. Francis, in his history, indicated that he had fallen on his hand the previous month while hunting, and, the previous week, in an elevator at work. However, Mr. Francis denied telling Dr. Faust that he had fallen on his hand while hunting and did not recall having done so. He did, however, recall falling in the elevator at work, but had not reported that incident because he had experienced no pain or discomfort.

Dr. George Cary testified that he had examined Mr. Francis’ wrist while it was enclosed in a cast and that in his opinion, based on the x-ray and history obtained from Dr. Faust, Mr. Francis’ injury had not been aggravated by the November 18, 1982 accident. . Dr. Cary also stated that it is possible that a navicular fracture would not have given Mr. Francis any trouble whatsoever prior to the accident.

Dr. Kenneth Saer testified that, in his opinion, it is unlikely that the accident would have caused any permanent aggravation of Mr. Francis’ fracture. Dr. Saer did believe, however, that “a direct blow to the area of a fracture or to a joint, it may make that joint painful for a time.” He also stated that a fracture of the navicular would have permanently disabled Mr. Francis to some extent.

In its reasons for judgment, the trial court stated that “the Court is of the opinion that the plaintiff has not proved his Workmens Compensation case by a preponderance of the evidence. The weight of the medical testimony and the evidence is in favor of the defendant’s doctor diagnosis and version of the claimant’s injury of November 18, 1982. The plaintiff has failed to prove an aggravation of a pre-existing injury and is not entitled to recover ... The employer relied on medical reports, and, as such, the employer cannot be considered arbitrary and capricious, rendering it liable for attorney fees and penalties for the non-payment of Workmens Compensation.”

On appeal, Mr. Francis claims that the trial court erred in finding that he failed to prove his case by a preponderance of the evidence and in not awarding him penalties and attorney's fees.

The primary issue for our consideration is whether the plaintiff proved that he was indeed entitled to workers’ compensation. The requirements for a successful claim under the workers’ compensation law are, “personal injury which is the result of an accident, which accident in turn arises out of and in the course of employment. The Louisiana compensation act does not require that the employment cause the disability. The chain of causation required by the statutory scheme as adopted by the Legislature in R.S. 23:1031 is that the employment causes the accident, the accident causes injury, and the injury causes disability.” Guillory v. United States Fidelity & Guaranty Insurance Company, 420 So.2d 119 at 122 (La.1982).

There is no dispute in the case at bar that the accident did occur and that it arose in the course and scope of Mr. Francis’ employment nor do the defendants refute Mr. Francis’ claim that subsequent to the accident he experienced pain. The defendants do dispute whether the accident actually caused Mr. Francis’ preexisting asymptomatic fracture to become symptomatic.

It is well established that “[wjhere there is proof of an accident and of the following disability without any intervening cause it is presumed that the accident caused the disability. It is not necessary to determine the exact cause of the disability.” Guillory v. United States Fidelity and Guaranty Insurance Company, supra at 123. Since Mr. Francis proved that there was an accident and a following disability without an intervening cause, we have reached the conclusion that Mr. Francis is entitled to the presumption that the accident caused the disability. That presumption shifts the burden to the defendant to produce evidence sufficient to rebut it. Martin v. Rollins Services, Inc., 424 So.2d 429 (La.App. 4th Cir.1982).

The defendant contends that it rebutted the presumption through the testimony of Drs. Faust, Saer and Cary. We agree. Both Drs. Saer and Cary concurred with Dr. Faust’s opinion that Mr. Francis’ disability was not caused by the accident. Those doctors thought that because the blow was one inch above the location of the fracture it was unlikely that it could have caused Mr. Francis’ disability. That testimony was sufficient to rebut the presumption that the accident caused the disability.

Once the defendants rebutted that presumption, the trial court was entitled to weigh the evidence as though no presumption existed. McCormick, Law of Evidence, § 345 (2d ed. 1972). After weighing the evidence and evaluating the credibility of the witnesses the trial court determined that the evidence and testimony presented by the defendants was more convincing, and concluded that the plaintiff’s disability was not caused by the accident. It is well settled that “reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.” Canter v. Koehring Company, 283 So.2d 716 at 724 (La.1973).

However, Mr. Francis maintains that the trial court erred in according greater weight to the opinions of Drs. Faust, Saer and Cary then it did to that of his treating physician, Dr. Adatto. It is true that, “[w]hen the opinion of medical experts differ, great weight is usually given to the opinion of the treating physician.” Martin v. Rollins Services, Inc., 424 So.2d 429 at 432 (La.App. 4th Cir.1982). “However, like all rules of law, the aforesaid rule is not inflexible but subject to exception.” Comeaux v. Cameron Offshore Services, Inc., 420 So.2d 1209 at 1213 (La.App. 3rd Cir.1982). Although Dr. Adatto was the treating physician, Dr. Faust saw Mr. Francis immediately after the accident and before the cast was placed on his arm. Under these circumstances we do not think that the trial court erred in giving more weight to the opinions of Drs. Faust, Saer and Cary.

For the foregoing reasons the judgment of the trial court is affirmed.

AFFIRMED.


author: L. JULIAN SAMUEL, Judge Pro Tem.

text:
    Shirley Mae SHERMAN, As Natural Tutrix for and on Behalf of the minor children Derrick James MAGEE and Kieta McGee v. B & G CRANE SERVICE and its Workmen’s Compensation Insurer Liberty Mutual Insurance Company.
    No. CA-2155.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1984.

      Irwin R. Sanders, Metairie, for plaintiff-appellant.
    Borrello & Huber, Keristine H. White, Metairie, for defendants-appellees.
    Before GARRISON and WARD, JJ., SAMUEL, J. Pro Tem.
   L. JULIAN SAMUEL, Judge Pro Tem.

Plaintiff, on behalf of her two minor children, appeals the granting of a summary judgment in favor of the two defendants, the deceased worker’s employer and its workmen’s compensation insurer, dismissing plaintiff’s suit at her cost.

These are the undisputed facts: The children’s father, James A. Magee, was injured on March 29, 1979, while in the course and scope of his employment with defendant B. & G. Crane Service. There is no dispute that on November 15, 1982, Mr. Magee died, not from a work related injury but from a gun shot wound he sustained while visiting relatives in Tylertown, Mississippi. After Magee’s death, plaintiff filed suit on behalf of Magee’s children for compensation benefits allegedly owed to the decedent. The trial judge granted defendants’ motion for summary judgment.

Plaintiff admits no recovery is due under LSA-R.S. 23:1231, which provides death benefits to certain dependants for death resulting from a work-related injury. Instead, she contends decedent’s heirs are entitled to the lump sum settlement that Mr. Magee was negotiating (pursuant to LSA-R.S. 23:1271) prior to his death, but which was unconsummated at the time of his death. She argues the deceased worker “had a property right in and to a settlement of his claim for injuries, and that this right is heritable under the law of Louisiana, and that his heirs, his two minor sons, should be allowed to enforce this claim, this property right”.

Plaintiff also contends that should this court apply LSA-23:1231 (Death Benefits) to this case then the statute is contrary to the Fourteenth Amendment of the United States Constitution in that it denies the heirs the equal protection of the law and deprives them of a property right without due process. Apparently, this second contention regarding the constitutionality of 12:1231 was and is made because defendants’ argument in the trial court on their motion for summary judgment was based not only on the inapplicability of 23:1231, but also on the expiration of the two year period for “injury causing death within two years after the accident” provision of the statute. As we find 23:1231 inapplicapable, we do not consider this constitutional contention.

Under the Louisiana Workman’s Compensation Act, benefits are due to a disabled worker during “the period of such disability”. LSA-R.S. 23:1221(1), (2), (3). Under these provisions the employer’s obligation is to pay benefits on a weekly basis. During the employee’s life, these benefits are personal to him as the disabled worker. He alone has the right to enforce the employer’s obligation to pay. When the worker dies, the employer’s obligation to pay the weekly benefits ceases because benefits are due only during the period of the disability. The employee’s right to enforce the obligation is heritable but only to the extent of any accrued pre-death benefits. Guillot v. Weaver Brothers & Thompson Lumber Co. 31 So.2d 278 (La.App.2d Cir.1947); Chapman v. Home Indemnity Co. 442 So.2d 1388 (La.App.3d Cir.1983) writ denied 445 So.2d 437 (1984).

[u]nder the Compensation Statute, ... LSA-R.S. 23:1021 et seq., there are contemplated two entirely separate and distinct categories of claimants — one category includes only the injured employee who, as the result of the accidental injury, may be either permanently or temporarily disabled, and the other includes those dependents such as the widow, the children, etc., who are entitled to compensation only if the employee dies as a result of the accidental injury. The two different claims cannot exist at the same time. So long as the employee lives, he is entitled to make claim and no one else has any claim. At his death the claim of his dependents them [sic] comes into ex-istance. Since the rights of the employee terminated at his death, it necessarily follows that the compensation to which he might have been entitled is limited to the period during which he lived, and no one, as his heir or as his legal representative, can step into his shoes and make claim for the weekly compensation payments which had not at that time accrued. This is necessarily so, otherwise the employer or his insurer might be answerable to the personal representative of the deceased for such weekly payments as had not accrued and also to the dependent who, as the result of the death of the employee, may make claim as a dependent.

Warning v. Royal Indemnity Co., 75 So.2d 242, 245-246 (La.App.Orl.1954).

At death, if caused by the work-related injury, a cause of action for death benefits arises in favor of certain named dependents. LSA-R.S. 23:1231. Until the death of the worker, no cause of action exists in favor of those beneficiaries. If the death is unrelated to the work injury, the dependents have no recourse against the decedent’s employer under the Worker’s Compensation Act.

Thus, the compensation accrued up . to the time of death is heritable and should be treated as a debt due to the estate, i.e., the claim is to be exercised by the succession representative for the benefit of the heirs. Turner v. Southern Wheel and Rim Service, Inc., 332 So.2d 770 (La.1976). The affidavit accompanying the motion for summary judgment states that James Ma-gee was paid compensation benefits at the rate of $141.00 per week from March 30, 1979 (the day after the injury) through December 16, 1982 with medicals of $25,-021.10. In her deposition, plaintiff verified that compensation benefits in the amount of $141.00 per week were sent to James Magee beyond the death date. No accrued pre-death benefits are due and therefore, the heirs have no claim for such benefits.

In addition, since James Magee did not die of the work related injury, no cause of action in favor of his dependents arose under LSA-R.S. 23:1231.

As for the heirs’ right to Magee’s unconsummated settlement, this issue was decided in Trahan v. Liberty Mutual Ins. Co., 188 So.2d 435 (La.App.3d Cir.1966). In Trahan, prior to the claimant’s death, the insurer had agreed with the worker to compromise the worker’s compensation claim for $5500 plus medical expenses. The draft for the medical expenses was made out to an incorrect payee. Liberty Mutual’s counsel held the $5500 draft to await the return of the corrected medical draft. Before the corrected check was returned, the claimant died of a heart attack unrelated to the work injury. His widow sued to recover the amount of the agreed settlement. The court held:

It is well-settled that the obligation to pay workmen’s compensation benefits to a disabled employee ceases upon his death from causes unrelated to his work injury. Warning v. Royal Indemnity Co., La.App.Orl., 75 So.2d 242; Guillot v. Weaver Brothers & Thompson Lbr. Co., La.App. 2 Cir., 31 So.2d 278, and cases therein cited. Likewise, the agreement to compromise for $5500 did not vest any right in the claimant or his heirs to recover this sum, for an agreement between an employer and his disabled employee to compromise or make a lump-sum payment of a workmen’s compensation claim is unenforceable unless the agreement is approved by the court as required by statute. LSA-R.S. 23:1272-1274; Fluitt v. New Orleans, T. & M. Ry. Co., 187 La. 87, 174 So. 163; Watkins v. May Brothers, Inc., La.App. 3 Cir., 147 So.2d 763; Wascom v. Miller, La.App. 1 Cir., 101 So.2d 744. Id. at 436.

The court further found there was no actionable negligence on the part of the insurer for failure to finalize the settlement negotiations more promptly and concluded the trial court correctly dismissed the survivor’s suit to recover the proceeds of the unconsummated settlement.

Plaintiff’s position in the case sub judice is not as strong as the plaintiff’s in Tra-han. Here, no prior agreement was reached between Magee and the insurer. Pre-death benefits were current and the inchoate settlement represented future (post-death) benefits. The employee’s claim to disability benefits ended with his death. The heirs’ only possible claims were to accrued pre-death payments, which were paid in full, or death benefits under 23:1231, which was inapplicable because the work injury did not result in the death.

As there is no genuine issue of material fact summary judgment was properly granted. LSA-C.C.P.art. 966.

Appellees have asked for damages for frivolous appeal, arguing the lawsuit was filed and the appeal taken without foundation in Louisiana law.

LSA-C.C.P.art. 2164 provides:
“The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. The Court may award damages for frivolous appeal, and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable.”

The provisions of this article are penal in nature and must be strictly construed. Appeals are favored and no penalties will be awarded unless clearly due. Before damages for a frivolous appeal lie, it must be manifest that the appeal was taken solely for delay or that appealing counsel does not sincerely believe in the view of law he advocates. Although appellant’s position lacks serious merit, it is our opinion it is not frivolous. Brasseaux v. Reaux, 394 So.2d 688 (La.App.3d Cir.1981); Redding v. Cade, 158 So.2d 880 (La.App.3d Cir.1963) writ denied 245 La. 811, 813, 161 So.2d 281 (1964). We therefore deny the request for damages for frivolous appeal.

For the foregoing reasons, the judgment appealed from is affirmed and plaintiff is assessed all costs in both courts. The request for damages for frivolous appeal is denied.

AFFIRMED; REQUEST FOR FRIVOLOUS APPEAL DAMAGES DENIED

      . We note, that the scheme under the Compensation Act is consistant with and similar to that provided in LSA-CC. art. 2315, regarding the survival of a tort claim after the death of the victim. Art. 2315 contains two separate provisions: the first concerns the "survival” action which allows certain survivors to sue for the damages suffered by the claimant prior to his death. The second, the "wrongful death”, action is to compensate designated dependents for the loss they have personally suffered because of the death. The former, the victim’s cause of action, does not abate at death but survives him in favor of the beneficiaries. This is unrelated to the latter dependent’s own cause of action which does not arise until the wrongful death.
      If the death is unrelated to the tort, i.e. not "wrongful”, no separate cause of action arises in the beneficiaries. Thus, it is possible to have a "survival” action without a "wrongful death” action. Louisiana Civil Law Treatise, W. Malone and H. Johnson, III, Workers Compensation Law and Practice, 2d Edition (1980), Vol 14 § 301; Johnson, Death on the Calíais Coach: The Mystery of Louisiana Survival and Wrongful Death Actions, 37 La.L.Rev. 1 (1976).

      . The maximum amount recoverable for injuries sustained in the year preceding September 1, 1979.


text:
    Sharon CRIER v. Thomas S. WHITECLOUD, III, M.D. and Children’s Hospital.
    No. CA-1792.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1984.
    Writ Granted Nov. 16, 1984.

      Stewart E. Niles, Jr., and Vivian L. Madison, Jones, Walker, Waechter, Poitevent, Carrere, & Denegre, New Orleans, for defendant-appellee.
    Joseph W. Thomas, and Ammon L. Miller, Jr., New Orleans, for plaintiff-appellant.
    Before GARRISON and WARD, JJ., and SAMUEL, J. Pro Tem.
   L. JULIAN SAMUEL, Judge Pro Tem.

Plaintiff, Sharon Crier, appeals the granting of defendant’s peremptory exception of prescription in this medical malpractice suit. We affirm the judgment of the trial court.

On March 23, 1983, Sharon Crier filed this medical malpractice action against Dr. Thomas S. Whitecloud, III, and Children’s Hospital. Plaintiff alleges that in 1978, Dr. Whitecloud, with the assistance of employees of Children’s Hospital, surgically implanted a Harrington Rod in plaintiff’s back in an attempt to correct her scoliosis. On March 24, 1982, plaintiff began experiencing severe back pain. She was admitted to Children’s Hospital. X-rays taken at the hospital revealed that the Harrington Rod had broken. Plaintiff alleges negligence on the part of both defendants in implanting a defective Harrington Rod in her back, and/or in improperly implanting the Harrington Rod in her back.

Defendant Whitecloud filed a peremptory exception prescription based on La.R.S. 9:5628. After a hearing on the matter, the trial judge sustained the exception and dismissed plaintiff’s suit as to Dr. Whitecloud. Plaintiff appeals.

The sole issue on appeal is the constitutionality of La.R.S. 9:5628. That statute provides:

A. No action for damages for injury or death against any physician, chiropractor, dentist, or hospital duly licensed under the laws of this state, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission or neglect or within one year from the date of discovery of the alleged act, omission or neglect; provided, however, that even as to claims filed within one year from the date of such discovery, in all events such claims must be filed at the latest within a period of three years from the date of the alleged act, omission or neglect.
B. The provisions of this section shall apply to all persons whether or not infirm or under disability of any kind and including minors and interdicts, (emphasis supplied)

Plaintiff did not discover the alleged malpractice until March 24, 1982, more than three years from the date of the surgery in 1978. Therefore, La.R.S. 9:5628 precludes plaintiff from bringing an action for damages. On appeal, plaintiff argues that La. R.S. 9:5628 violates the due process, equal protection and open access to courts clauses of the Louisiana Constitution, La. Const. Art. I sections 2, 3 and 22 (1974), because it prescribes her claim for damages before she has an opportunity to file suit, i.e. before her discovery of the alleged facts.

Although the constitutionality of La.R.S. 9:5628 appears to be a question of first instance in this court, the same issue has been raised and resolved by our brethren in the First Circuit. In Valentine v. Thomas, 433 So.2d 289 (La.App. 1st Cir.1983), writ denied 440 So.2d 728 (La.1983), the plaintiff (a medical malpractice claimant) suffered an acromioclavicular separation which was surgically repaired by the defendant on November 25, 1977. On January 4, 1978, the defendant removed two portions of wire used in the operation from plaintiffs shoulder. On March 9, 1981, the plaintiff discovered that the defendant had failed to remove all portions of the wire from his shoulder. This discovery did not occur until after the three year limitation imposed in La.R.S. 9:5628 had expired and therefore the plaintiff was precluded from filing suit for damages. The plaintiff argued that La.R.S. 9:5628 was unconstitutional in that it violates Article I sections 2, 3, and 22 of the Louisiana Constitution because it does not afford a reasonable opportunity to assert a claim. In the instant case, plaintiff makes the same argument regarding the same constitutional provisions. In a well-reasoned opinion, the Valentine court upheld the statute against the constitutional attack.

In addressing the plaintiffs Equal Protection argument, the First Circuit noted the constitutional test of equal protection: if a law or statute violates a fundamental interest or is based upon a trait which renders a classification suspect, there must be a compelling governmental interest to justify the difference in treatment by law. If no fundamental right or suspect classification is involved, the test becomes whether the discriminatory law is supported by a rational basis reasonably related to the governmental interest sought to be advanced. Valentine v. Thomas, supra at 292.

The First Circuit concluded, and we agree, that La.R.S. 9:5628 does not affect a fundamental right or create a suspect classification. The right to recover the full extent of damages one is owed from a tortfeasor is not a fundamental right. Bazley v. Tortorich, 397 So.2d 475 (La.1981). Therefore, the proper test to be applied in this instance is whether the discriminatory treatment accorded medical malpractice victims by La.R.S. 9:5628 is supported by a rational basis reasonably related to the governmental interest sought to be advanced.

The Valentine court described the legislative objective behind La.R.S. 9:5628 as follows:

This statute is one of several passed in response to sharp increases in medical malpractice insurance rates and the resulting threat of reduced health care to the patient and of greatly increased medical costs to the public. Limitation's on the time within which an injured patient may bring a malpractice action will serve to restrict the number of suits brought. The interest sought to be advanced is the alleviation of the insurance crisis by reducing medical malpractice claims, thereby reducing medical malpractice insurance rates, resulting in health care being more accessible to patients at reasonable costs.
Valentine v. Thomas, supra at 292.

We find the classification in La.R.S. 9:5628 to be rationally related to the governmental objective sought to be advanced: the reduction of the cost of health care to the public.

Moreover, we recognize that it is peculiarly within the realm of the legislature to establish time periods affecting the imposition of liability for past acts. Burmaster v. Gravity Drainage District No. 2,366 So.2d 1381 (La.1978). In the case of Ancor v. Belden Concrete Products Inc., 256 So.2d 122 (La.1971), the Louisiana Supreme Court upheld the constitutionality of the two-year prescriptive period for a claim for worker’s compensation benefits under La.R.S. 23:1209. In Ancor, the plaintiff did not discover his injury until after the two year peremptory period had expired. The Court held that the failure of La.R.S. 23:1209 to afford recovery for all losses recoverable in tort did not impair its validity-

Accordingly, we concur with the First Circuit in concluding that La.R.S. 9:5628 does not violate the Equal Protection Clause of the Louisiana Constitution.

In addressing plaintiffs due process argument, we turn again to the Valentine ease for reference. In Valentine, the court noted that a statute violates due process when it bears no real or substantial relationship to an appropriate governmental objective. The test of substantive due process is whether the statute is reasonable in relation to the goal to be attained and is adopted in the interest of the community as a whole. Valentine v. Thomas, supra at 293; Everett v. Goldman, 359 So.2d 1256 (La.1978).

As stated above, the legislative objective behind the passage of La.R.S. 9:5628 is the alleviation of the insurance crisis by reducing the number of malpractice claims which in turn results in reduced insurance rates and ultimately provides health care at reduced cost to the public.

We find this to be a legitimate goal for a state lawmaking body. As was pointed out in Valentine, La.R.S. 9:5628 bears a real and substantial relationship to the public welfare because it seeks to promote increased health care for Louisiana citizens at reasonable rates.

We recognize also that as the events which give rise to legal liability recede into the past, memories fade, documents become misplaced, and witnesses become more difficult to locate. In short, the availability of evidence diminishes as the passage of time increases. A time limit on liability must be established at some point. We agree with the First Circuit in holding that the three year limitation in La.R.S. 9:5628 is a reasonable length of time for acts of malpractice to be discovered and suits instituted.

Accordingly, we hold that La.R.S. 9:5628 does not offend the Due Process clause of the Louisiana Constitution.

Plaintiffs final argument is that La.R.S. 9:5628 deprives him of the constitutional guarantee of access to the courts. We note at the outset that the guarantee of access to the courts is in reality a guarantee of due process. Thus, when a claimant asserts a right not subject to special constitutional protection, access to the courts may be restricted if there is a rational basis for the restriction. Everett v. Goldman, supra, Valentine v. Thomas, supra.

We have previously held that the right urged by plaintiff is not a fundamental right. We have also held that there is a rational basis for La.R.S. 9:5628. Therefore, we find that the statute does not unconstitutionally deprive plaintiff of access to the courts.

Under familiar principles of constitutional law, the validity of a statute is presumed. The burden is upon the assailant to clearly demonstrate its unconstitutionality. Any doubt must be resolved in favor of constitutionality. Ancor v. Belden Concrete Products, Inc., supra, and cases cited therein.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED

      . La. Const. Art. I section 2 provides as follows: No person shall be deprived of life, liberty, or property, except by due process of law.
      La. Const. Art. I section 3 provides as follows: No person shall be denied the equal protection of the laws. No law shall discriminate against a person because of race or religious ideas, beliefs, or affiliations. No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affiliations. Slavery and involuntary servitude are prohibited except in the latter case as punishment for crime. La. Const. Art I section 22 provides as follows: All courts shall be open, and every person shall have an adequate remedy by due process of law and justice administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights.

      . Fundamental rights include such rights as free speech, voting, interstate travel and other fundamental liberties. Suspect classifications are those involving unalterable traits such as race, alienage and religion. Everett v. Goldman, 359 So.2d 1256 (La.1978).

      . In fact, plaintiff has had access to the trial court and is now here on appeal.


author: L. JULIAN SAMUEL, Judge Pro Tern.

text:
    STATE of Louisiana v. Lorenzo ARRINGTON.
    No. KA-1871.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1984.

      Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Joanne C. Marier, Asst. Dist. Atty., New Orleans, for plaintiff-ap-pellee.
    Before GARRISON and WARD, JJ., and L. JULIAN SAMUEL, J. Pro Tern.
   L. JULIAN SAMUEL, Judge Pro Tern.

Defendant was convicted of manslaughter by a jury on May 18, 1983. On June 3, 1983, pursuant to LSA-R.S. 15:529.1 (The Habitual Offender Law), the State filed a multiple bill accusing defendant of having been previously convicted of two felonies under the laws of this state. Both prior felony convictions were based upon pleas of guilty entered on February 7, 1980. After a hearing on the multiple bill, the trial judge found defendant guilty as charged. Arrington waived all delays and was sentenced to serve thirty-five years at hard labor. He specifically waived his right to appeal the manslaughter conviction but moved to appeal his adjudication as a multiple offender. He requests a review of the record for errors patent.

Defendant argues that the colloquy introduced by the state from the prior guilty plea shows there was no mention in the discussion between the judge and defendant of defendant’s privilege against self-incrimination.

The colloquy which occurs when the court canvasses the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequences is a part of the plea of the accused. It is in the nature of a pleading or proceeding, rather than testimony or evidence. Therefore, a review of it for error on appeal constitutes a mere inspection of the pleadings and proceedings without inspection of the evidence.

State v. Godejohn, 425 So.2d 750, 751 (La.1983)

For a constitutionally valid guilty plea, the accused must expressly and knowingly waive his right to trial by jury, his right to confront his accusers and his privilege against compulsory self-incrimination. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971).

Where the guilty plea was entered after December 8, 1971 (the date of the finality of State ex rel. Jackson v. Henderson) and is being used to enhance punishment in a subsequent proceeding,

“... the state must, if objection is made to its voluntariness or to its being a knowing plea (due, e.g., to the absence of waiver of the Boykin rights), affirmatively show through (only) a contemporaneously recorded transcript that the plea was voluntary and made with an awareness of its consequences. State v. Lewis, 367 So.2d 1155 (La.1979); State ex rel. LeBlanc v. Henderson, 261 La. 315, 259 So.2d 557 (1972); State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971).” State v. Bolton, 379 So.2d 722, 723 (La.1979)
“While it is preferable for the trial judge to conduct a colloquy with the defendant to ascertain the validity of the plea, such a colloquy may not be indispensable, as long as the record contains some other affirmative showing to support the plea.” State v. Halsell, 403 So.2d 688 (La.1981)

At the habitual offender hearing, the state introduced into evidence a copy of the arrest register, indicating an arrest on December 26, 1979. On the rear of the arrest register was a set of prints taken at the time of the arrest. In addition, the state filed a copy of the bill of information, the minute entry dated February 7, 1980 (the date of the guilty pleas), the “Waiver of Constitutional Rights — Plea of Guilty” form and the transcript of the Plea of Guilty colloquy. Defense counsel timely objected to the documents as a basis for a multiple bill.

The transcript of the colloquy reads as follows (emphasis ours):

MR. McCURDY (DEFENSE ATTORNEY): Your honor, the defendant wishes to enter a plea of guilty to both counts of the Bill of Information, R.S. 14:95 and 40:969. I have advised the defendant of his Constitutional rights and he has executed a plea of guilty form, which I am satisfied that he understands.
(Defendant is fingerprinted by Deputy) THE COURT: Raise your right hand. Do you swear that you have been advised of your Constitutional rights, that you have the right to a six-member jury trial and if convicted a right to appeal and that by entering a plea of guilty to two counts of the Bill of Information, Carrying a concealed weapon and Possession of Talwin, you are waiving your right to trial by a six-member jury and the right of appeal, this is what you wish to do?
DEFENDANT: Yes.
THE COURT: You are stating under oath you are pleading guilty in this case because you are guilty of these two crimes?
DEFENDANT: Yes.
THE COURT: I have here a plea of guilty form and waiver of Constitutional rights and ask you whether Mr. McCur-dy has explained this form to you? DEFENDANT: Yes.
THE COURT: Are there any questions about it?
DEFENDANT: No.
THE COURT: Has anybody forced you or threatened you in any way to get you to sign this form or plead guilty in this case?
DEFENDANT: No.
THE COURT: The Court orders the form into the record bearing the signature of the defendant, the attorney of record, my signature and today’s date, February 7, 1980.
Let the record reflect that the Court in reviewing the case finds a factual basis for the acceptance of the pleas of guilty. By pleading guilty you are waiving your right to a six-member jury, calling witnesses in your behalf and cross-examining witnesses against you? Do you understand that?
DEFENDANT: Yes.
THE COURT: The crimes you have just pled guilty to are felonies and if you are ever convicted of a felony in future it may be used to charge you as a Multiple offender. Do you understand that? DEFENDANT: Yes.

In the plea of guilty form defendant admitted his guilt, acknowledged the potential sentences, indicated he understood and waived his rights to trial, to confront his accusers, and his privilege against self-incrimination. Regarding the waiver of this last right, the form provides:

I understand that by pleading guilty that I am waiving my rights to confront and cross-examine the witnesses who accuse me of the crime charged, to compulsory process of the court to require witnesses to appear and testify for me, the privilege against self-incrimination or having to take the stand myself and testify, and to have preliminary pleadings filed and heard on my behalf.
I further understand that I am waiving my privilege against self-incrimination and by pleading guilty I am in fact incriminating myself.

The form also contains a statement to the effect that the plea was uncoerced. It was initialed by defendant nine times next to the recitations and signed at the bottom by defendant twice, by his counsel, and by the trial judge.

In State v. Halsell, supra, the colloquy was deficient in that it did not inform defendant that he waived his privilege against self-incrimination. However, also in the record was a written form containing a waiver of rights, in which the attorney attested that defendant was informed of the specific rights he was waiving by pleading guilty. Relying on this attestation by the defense attorney, the Court held the state had affirmatively shown that defendant had knowingly and voluntarily waived his rights.

In State v. Tucker, 405 So.2d 506 (La.1981), there was no colloquy in the record. The waiver form was “well executed” in that it was detailed, initialed by defendant seven times and signed at the bottom by defendant, defense counsel and the trial judge. The Court considered this waiver form and the minute entry concerning the abbreviated colloquy to be a sufficient affirmative showing that defendant had knowingly and intelligently waived his rights. See also State v. Dunn, 390 So.2d 525 (La.1980).

Here, in the colloquy, the defense attorney stated he had advised defendant of his rights and was satisfied that defendant understood the guilty plea form. In addition, the defendant responded in the affirmative when asked by the trial judge whether the form had been explained to him by his counsel. The colloquy itself was deficient in only one respect: it failed to mention the privilege against self-incrimination. The guilty plea form, which was extremely detailed, adequately advised defendant of the privilege against self-incrimination, was initialed line by line by defendant and was signed by defendant twice and by the trial judge and the defense attorney. In our view, these facts constitute a sufficient affirmative showing in the record that the defendant knowingly, intelligently and voluntarily waived his constitutional privilege against self-incrimination. Therefore, the predicate pleas were valid and could be used as a basis for the multiple offender charge.

We have also reviewed the record for sufficiency of evidence as required by State v. Raymo, 419 So.2d 858 (La.1982). The guilty pleas were constitutionally valid. At the habitual offender hearing, Officer Leland Comeaux, expert in the field of fingerprint identification, testified that the fingerprints on the reverse side of the arrest register of the predicate offense were identical to the prints that he had taken of the defendant that morning. This second set of prints was also admitted into evidence.

Viewed in the light most favorable to the prosecution, the evidence was sufficient for a rational trier of fact to conclude that the Lorenzo Arrington, convicted of manslaughter, was one and the same as the Lorenzo Arrington who had previously pled guilty to the two felonies on February 7, 1980.

Accordingly, the conviction and sentence are affirmed.

AFFIRMED.

      . R.S. 15:529.1 provides in part:
      A. Any person who, after being convicted within this state of a felony, or who, after having been convicted under the laws of any other state or of the United States, or any foreign government or country of a crime which, if committed in this state would be a felony, thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows:
      (1) If the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-third the longest term and not more than twice the longest term prescribed for a first conviction;

      . LSA-R.S. 14:95 (3rd offense), relative to illegal carrying of a weapon and LSA-R.S. 40:969, relative to possession of pentazocine (Talwin).

      . Although the form itself does not waive trial by jury, this is adequately covered in the colloquy-

      . Regarding the minute entry, the Tucker Court stated: "The minutes of the guilty plea indicate that the trial judge ‘questioned the accused under oath regarding his plea of guilty' ”.

      . Defendant has not addressed the sufficiency of the guilty plea form in this regard. We note the waiver form does not include specific language that defendant was waiving his right to remain silent at trial as discussed in State v. Martin, 382 So.2d 933 (La.1980). The form, however, states defendant waived "the privilege against self-incrimination or having to take the stand myself and testify." We believe this adequately conveyed to the defendant his right to stand trial without being forced to testify against himself.


text:
    Malcolm A. NORTHERN v. DEPARTMENT OF STREETS OF the CITY OF NEW ORLEANS and The City of New Orleans.
    No. CA-1772.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1984.
    Writ Denied Nov. 16, 1984.

      Salvador Anzelmo, City Atty., Harold D. Marchand, Asst. City Atty., New Orleans, for defendants-appellees.
    Olden C. Toups, Jr., New Orleans, for plaintiff-appellant.
    Before GARRISON, and WARD, JJ., and L. JULIAN SAMUEL, J. Pro Tern.
   L. JULIAN SAMUEL, Judge Pro Tem.

Plaintiff filed this suit against the Department of Streets of the City of New Orleans and the City itself seeking damages for injuries sustained by him on February 6, 1977, when the motorcycle he was driving struck a pothole in the 8800 block of Curran Blvd. in the City of New Orleans. Defendants answered, denying liability and alleging that plaintiffs contributory negligence and/or his assumption of the risk barred recovery.

After a judge trial, judgment was rendered in defendant’s favor dismissing the plaintiffs suit at his costs. Plaintiff has appealed arguing that the trial judge erred in the following respects:

1. applying contributory negligence in a strict liability case;
2. considering inadmissible hearsay for its substantive value;
3. allowing the city to impeach its own witness without a declaration of hostility or surprise;
4. favoring the testimony of defendant’s expert over plaintiff’s; and
5. finding Northern was operating his motorcycle in excess of 40 m.p.h.

A municipality is responsible for injuries caused by defective street conditions posing an “unreasonable” risk of harm. LSA-CC art. 2317, Jones v. City of Baton Rouge, 388 So.2d 737 (La.1980). For plaintiff to recover on a “strict liability” theory he must prove:

... that the thing which caused the damage was in the care or custody of the defendant, that the thing had a vice or defect — that is, that it occasioned an unreasonable risk of injury to another — and that his injury was caused by the defect. Jones, supra at 739

Loescher v. Parr, 324 So.2d 441 (La.1975) held the defenses to strict liability are victim fault, third party fault and an irresistible force, and it is also accepted that assumption of the risk is a defense. Formerly, our courts repeatedly held that contributory negligence was not. Langlois v. Allied Chemical Corp. Inc., 258 La. 1067, 249 So.2d 133 (1971). Recently, however, following the reasoning of our Supreme Court in Dorry v. La Fleur, 399 So.2d 559 (La.1981), numerous eases have equated “victim fault” in a strict liability case with contributory negligence. See Buchanan v. Tangipahoa Parish Police Jury, 426 So.2d 720 (La.App. 1st. Cir.1983); Carpenter v. State Farm Fire and Casualty Co., 411 So.2d 1206 (La.App. 4th Cir.) writ denied 415 So.2d 951 (La.1982).

Those courts reasoned that the policy considerations which traditionally require imposition of strict liability are not present in every case arising under the code articles on which this theory of recovery is based (LSA-C.C. art. 2317, 2318, 2320, 2321 and 2322) and that whether contributory negligence should be allowed as a defense to strict liability should be decided on a case-by-ease basis.

Here the defendants’ conduct does not involve ultrahazardous activity, abnormally dangerous activity, a commercial enterprise for profit to defendant, or a manufacturer’s liability for a defective product. Since the traditional policy considerations are lacking, our disposition of this case should involve the question of plaintiff’s contributory negligence. Therefore, in accordance with our decision in Carpenter, supra, we hold that whether the City is ultimately liable in damages for injuries caused by defective street conditions posing an unreasonable risk of harm requires consideration of the injured party’s contributory negligence.

In the case at bar the trial judge gave the following concise reasons for judgment:

The investigating officer paced off the distance from the holes to the bike at 125 feet. He found shattered head light glass 10 to 12 feet from the holes. Assuming the glass indicated the point where the bike fell, the bike would have skidded 113-115 feet. Though Mr. Manuel testified the bike skidded 10 to 15 yards, and pointed out in Court a skid distance which measured 44 feet, the day before trial he pointed out to Mr. Schubert at the scene, a distance which Mr. Schubert measured to be 118 feet. This out of court statement was admissible to “discredit” his in-court estimates. I conclude Officer Luther’s testimony is correct. Given a skid distance of 113 feet, Mr. Schubert’s experiment suggested a speed in excess of 40 mph. Mr. O’Quinn’s duplication of the accident did not contradict this conclusion and in fact lent support to it. I conclude that plaintiff’s excessive speed was a cause of the accident and bars his recovery.

Appellant complains the conclusion that plaintiff was speeding was based on the testimony of eyewitness Herbert Manuel which, he contends, was tainted in two respects.

First, he argues the out of court statements were hearsay, offered and admitted for the truth of the matters stated therein. This argument has no merit. The trial judge made it clear in his reasons that the sole purpose for admitting the out of court “statements” (i.e. Manuel’s pointing out the day before trial to Officer Schubert of the locations of the pothole, where the cycle began its skid and where it finally came to rest) was to discredit Manuel’s in court testimony that the bike had skidded only 44 feet.

Mr. Northern also maintains the City should not have been allowed to impeach Mr. Manuel, its own witness, without a declaration of hostility pursuant by analogy to the rules of criminal procedure. LSA-R.S:15:487. Even if the trial judge erred in admitting the “statement” without the proper foundation it was harmless error. The trial judge simply chose to believe the testimony of the investigating police officer, Daniel Luther. Officer Luther was on the scene shortly after the accident. At the trial he testified from the police report and stated he paced off the distance from the pothole to where the cycle lay. He approximated this to be 125 feet. He also said there was broken glass 10 to 12 feet from the pothole. The accident occurred February 6, 1977 and the trial March 14, 1983, more than six years later. The trial judge apparently concluded that the on-the-site estimate of the police officer was more reliable than Mr. Manuel’s 6-year recollection of the skid distance. In matters of credibility the trial judge is given great discretion and there is nothing in the record to suggest that the trial judge abused this discretion in finding that Officer Luther’s estimate was the more accurate.

Mr. Northern also argues it was error for the trial judge to favor the testimony of the City’s expert, Officer Schubert, over that of plaintiff’s expert, Mr. O'Quinn. He states their conclusions were radically different and not supportive of each other. He also maintains O’Quinn’s duplication of the accident was more reliable than Schubert’s experiment. We disagree.

Mr. O’Quinn and his associate performed three tests using the same bike Northern was operating at the time of the accident. The tests were run on a concrete surface. Curran Blvd., where the accident occurred, was an asphalt and gravel mix. In each of Mr. O’Quinn’s tests, the operator of the bike would get the speed up to 25 mph, the speed Northern testified he was traveling, and the driver would jump off.. The distance the bike continued before it came to rest was then measured. In the first test, the cycle was simply forced on its side at 25 mph. From this point the bike skidded 80 feet. In the second test, at 25 mph the handlebars were crossed up and the bike released. The cycle righted itself, eventually fell over and stopped 250 feet from the point of release. The third time the handlebars were crossed up again. The bike went 168 feet, part of which was slide and approximately 100 feet was unstable roll.

Mr. Schubert, on the other hand, did not attempt to duplicate the accident. Instead, by dragging a similar bike over the actual street where the accident occurred (Curran Blvd.) he used a dynanometer to calculate the “coefficient of friction”. This number he described as “the amount of energy displaced when something is sliding across another surface.” Applying this figure to a formula he determined that if the bike had skidded 118 feet it was traveling 44 mph when it started to skid, exclusive of any roll.

The trial judge concluded the testimony of the two experts was not contradictory and said at the trial:

aside from the obvious variable on the coefficients of friction of the road surfaces, is there a great discrepancy between his experiment at twenty-five miles an hour producing eighty feet of slide with the back out conclusion that 118 feet of skid produces forty-four miles per hour?
I see no great discrepancy between the conclusion of the two experts. The problem we’ve got is how reliable are the assumptions. That’s what the case is all about, as they all are.

The trial judge apparently determined these two estimates were the most reliable since they represented a similar experiment and reflected the speed of the bike when it began to skid. He did not, as plaintiff suggests, give greater weight to one expert over the other. He simply applied the results of these two experiments to the facts as he found them. We find no error in this respect.

Finally, Northern argues the trial judge erred in concluding Northern was operating his motorcycle in excess of 40 mph. After hearing all the evidence, the judge concluded the testimony of the investigating officer was correct. Officer Luther paced off the distance from the potholes to where the bike came to rest and estimated the distance to be 125 feet. He also stated there was broken glass 10 to 12 feet from the holes. Assuming the glass represented the spot where the bike began to roll, which is supported by Mr. Manuel’s in-court testimony on this point, the trial judge deduced that the bike skidded 113 to 115 feet. Applying the testimony of the two experts to this factual finding, the judge apparently reasoned if a speed of 25 mph produced an 80 foot skid and a speed of 44 mph a 118 foot skid, then it was logical to conclude that a speed of 40 mph produced a skid of 113 to 115 feet.

This case involved factual and credibility determinations by the trial judge. The conclusions are supported by the record and an appellate court will not disturb these findings unless they are clearly wrong. Canter v. Koehring Co., 283 So.2d 716 (La.1973).

We not only cannot say the trial judge concluded erroneously that plaintiff’s excessive speed was a cause in fact of the accident and bars his recovery, we agree with that conclusion.

The testimony in the record was without contradiction that the particular block of Curran Blvd. was full of potholes. Even Mr. Northern’s testimony was to the effect that he drove through smaller holes before hitting the larger ones. The weather was clear and dry and there was nothing to obstruct plaintiffs view of the street. Because of the street condition, it should have been apparent to plaintiff that traveling at anything other than a slow and careful speed was highly dangerous on a motorcycle. We find, as did the trial judge, that the speed of the motorcycle was a cause-in-fact of the accident.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

      . The accident occurred prior to August 1, 1980, the effective date of the amendment to LSA-C.C. art 2323, allowing comparative negligence in computation of damages.