author: JASPER E. JONES, Judge.

text:
    Dorothy WARD, et al., Appellees v. LA. & ARK. RAILWAY CO., et al., Appellants.
    No. 16238-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 30, 1984.

      Wilkinson & Carmody by Arthur R. Car-mody, Jr., Shreveport, for appellants, The Kansas City Southern Ry. Co., Louisiana & Arkansas Ry. Co., Jack R. Smith and O.L. Matlock.
    Malcolm Wallace, in pro. per.
    James R. Dawson, James W. Graves, and William T. Allison, Shreveport, for appel-lees, Dorothy Ward, Gordon C. Ward and Sandra L. Ward.
    Before MARVIN, JASPER E. JONES and NORRIS, JJ.
   JASPER E. JONES, Judge.

The Kansas City Southern Railway Company, it’s wholly owned subsidiary Louisiana & Arkansas Railway Company, Jack R. Smith and O.L. Matlock, defendants, appeal a judgment against them for damages as a result of personal injuries sustained by Sandra L. Ward in an automobile-train collision. We affirm.

The judgment awarded Dorothy and Gordon C. Ward, who are the parents of Sandra, the sum of $27,109.68 for medical expenses incurred in the treatment of Sandra’s injuries from the date of the accident until Sandra’s eighteenth birthday. The judgment awarded Sandra $522,776.00 included future medical expenses, loss of earning capacity, and general damages.

The train involved in the accident was owned and operated by L & A Railway Company. Defendant, Jack R. Smith, was the train’s engineer and defendant O.L. Matlock was the train’s conductor.

FACTS

The accident occurred at a railroad crossing on Shed Road in Bossier City at approximately 9:00 p.m. on the night of February 16, 1981. It was a cold clear evening. Sandra was riding in the front passenger seat of a Chevrolet Vega driven southerly by 15 year old Kelly Wallace. Kelly was an unlicensed driver. Her older sister Tracy, a licensed driver, was riding in the back seat of the car. The car’s windows were rolled up and the radio and heater were on.

Kelly neither saw nor heard the approaching eastbound freight train as she approached the crossing. She was traveling 25-30 miles per hour and did not slow down before entering the crossing. Before the Vega cleared the tracks, it was struck by the train which was traveling at 30 miles per hour. The Vega came to rest 32 feet from the point of impact.

The train was on a regularly scheduled run from Shreveport to Minden. Smith and Matlock were both in the lead engine unit of the 3 engine 40 car train. Matlock first noticed the Vega when both it and the train were approximately a quarter of a mile from the crossing. Smith noticed the Vega when it and the train were approximately 100-150 yards from the crossing. Both men testified the Vega appeared to be going a reasonable rate of speed and there was no indication it would not stop for the crossing. Matlock was the first to notice the Vega was not going to stop. He made this determination about 50-100 feet from the crossing. He yelled to Smith and Smith threw the train into emergency stop immediately before the collision. The train stopped 640 feet from the point of impact.

This crossing is within the city limits of Bossier City and has been since the general area surrounding it was annexed by the city in 1973. The city did not formally notify the railroad the area was annexed. There were no city limit markers along the tracks.

The crossing was marked by two Louisiana Highway Department railroad crossing signs placed along Shed Road on both sides of the crossing. The only other warning devices in the area were the standard “crossbuck” railroad signs immediately adjacent to and on both sides of the crossing. There were no flashing lights or movable barriers.

At the time of the accident the Bossier City Code contained a train speed limit ordinance. At the Shed Road crossing which had no flashing lights, bells or movable barriers, the speed limit for trains is 5 miles per hour unless there is a flagman or watchman at the crossing. If there is a flagman or watchman or the crossing is marked by lights, bells or movable barriers, the speed limit is 15 miles per hour. There was no railroad flagman at the Shed Road crossing on the night of the accident. Therefore, the train’s speed limit was 5 m.p.h. There was a further train speed limitation contained in the railroad company’s special instructions to its employees included in the railroad timetable which established a maximum speed of 10 miles per hour on trains operating within the Bossier City limits.

The plaintiffs contend the train’s crew was not sounding its whistle prior to arriving at the crossing. Kelly Wallace and the drivers of two other vehicles in the immediate vicinity at the time of the accident testified they heard no whistle. Smith and Matlock testified the whistle was being prudently blown. Two employees of a nearby business corroborated their story. The trial court found that the whistle was being blown. This finding is supported by substantial evidence and is correct.

Plaintiff also contends that vegetation along the track in the area of the crossing obscured Kelly’s view of the track. There was substantial evidence to the contrary and the trial judge held the view of the crossing was not obstructed. We conclude this factual determination was not clearly wrong.

Liability was imposed upon the railroad and its employees for the train’s violation of the speed limits contained.in the Bossier City ordinance and the railroad’s special instructions.

The appellants assign as error:

(1) the trial judge’s finding that the train’s speed of 30 m.p.h. was negligence which was the proximate cause of the accident; and
(2) the trial judge’s determination that the 10 m.p.h. railroad Bossier City speed limitation and the 5 m.p.h. City Ordinance speed limitation was applicable to Shed Road when the railroad was never formally advised that the Shed Road crossing was in the city limits and these speed limitations had never been enforced.

LIABILITY

The duty/risk analysis as contained in Dixie Drive It Yourself Sys. v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962); Laird v. Travelers Insurance Company, 263 La. 199, 267 So.2d 714 (1972); and LeBlanc v. State, 419 So.2d 853 (La.1982), is applicable for the purpose of determining the appellant’s liability to the plaintiffs as a result of their violation of the Bossier City speed ordinance and the railroad’s own speed limitation contained in its special instructions. The appellants’ duty is defined by the ordinance and the special instructions. The breach of that duty, however, does not equal liability unless: (1) the risk encountered by Sandra (she would be injured in a railroad crossing accident while riding as a guest passenger in a motor vehicle) is meant to be protected against by the duty; and (2) the breach of the duty was a cause in fact of the accident.

Appellants argue: (1) there was no duty for trains to be operated within the speed limits contained in the ordinance and special instructions; (2) the risk Sandra encountered was not covered by the duty, if there was one; and (3) the operation of the train in excess of the 5 and 10 m.p.h. speed limits was not the legal cause of the accident.

DUTY-RISK

The ordinance and the special instructions impose the duty upon the train crew to operate the train at a speed not in excess of the speed limits there provided.

Although not always discussed in the terms of duty-risk, the jurisprudence recognizes that the risk of being injured as an occupant of a motor vehicle involved in a railroad crossing accident is a risk that the duty to comply with train speed regulations was intended to protect against. See Martin v. Yazoo & M.R. Co., 181 So. 571 (La. App. 2d Cir.1938); Levy v. New Orleans & Northeastern R. Co., 20 So.2d 559 (La.App. Orleans 1945); Jenkins v. St. Paul Fire & Marine Ins. Co., 393 So.2d 851 (La.App. 2d Cir.1981); Fisher v. Walters, 428 So.2d 431 (La.1983); Ketcher v. Illinois Central Gulf R. Co., 440 So.2d 805 (La.App. 1st Cir. 1983).

Appellants contend they had no duty under the ordinance or their special speed instructions because they were unaware the Shed Road crossing was in the Bossier City limits as the city never notified the railroad the area containing the Shed Road crossing had been annexed. The trial court correctly rejected this argument on the grounds the railroad had actual knowledge the crossing was in the city limits. Approximately one year before the accident the railroad contacted the city and requested it to close off traffic on Shed Road in the area near the crossing to facilitate railroad crossing repairs. If the railroad had not known the crossing was in the city it would have contacted the state or parish to secure the rerouting of traffic to permit crossing repairs. There would have been no reason to contact the city.

Appellants argue the railroad’s action in contacting the city on this occasion was legally insufficient to impute it with actual knowledge. We disagree. The railroad had knowledge that the city had to be contacted in order to have traffic routed around the crossing. This establishes the railroad knew the crossing was in the city and the railroad’s argument to the contrary has no merit.

Appellants next contend the ordinance was inapplicable, and imposed no duty, because it was enacted over 40 years ago, has never been enforced, and imposes an unreasonable speed limit on trains operating at or near the Shed Road crossing.

The record does not establish when the speed ordinance was initially passed but the copy of the speed limit provision contained in the record reflects that it was incorporated in the Bossier City Code of 1964. The special instructions contained in the record where the railroad imposed upon its trains in Bossier City a speed limit of 10 m.p.h. also contains no indication as to when it was first adopted. The railroad timetable contained in the record which includes this speed limitation specifically provides that it is effective “12:01 a.m. Saturday Jan. 1, 1977.” From this information it is established that the speed limitations for Bossier City have been considered and approved less than twenty years before the accident which is the subject of this litigation. The conductor, who shares responsibility for the speed of the train with the engineer, testified that in practice the train was operated in Bossier City at a speed of between 4 and 8 miles per hour as an added safety measure. This evidence establishes the speed limitations were not unreasonable since the train’s crew, who has the final responsibility for the safe operation of the train, operated the train at all times in the area they believed to be included in the Bossier City limits, below the 10 m.p.h. speed regulation and at times below the 5 m.p.h. limitation.

In support of their argument that a 5 m.p.h. speed limit is unreasonable in the area, appellants contend the crossing is in a semi-rural area on the outskirts of Bossier City. The record does not support this contention. This particular area, both in and outside the city limits, is undergoing rapid development and expansion. Because of this a large number of vehicles pass the crossing each day. A 24 hour traffic count taken shortly after the accident counted approximately 2700 vehicles. With this volume of traffic at the crossing the 5 m.p.h. speed limit is not unreasonable. See Broussard v. Louisiana Western R. Co., 140 La. 517, 73 So. 606 (1916).

The appellants rely upon the case of McCray v. Illinois Central Railway Company, 244 So.2d 877 (La.App. 1st Cir.1971). The court there refused to accord any weight to a train speed ordinance adopted in 1909 in determining whether a railroad should be found negligent for its train’s violation of the ordinance. Instead, the court charged the plaintiff with the burden of proving that the train’s speed was unreasonable under the circumstances. We conclude the court erred in this approach and should have here applied the duty/risk analysis required by Dixie Drive It Yourself Sys. v. American Beverage Co., supra.

We decline to follow the rationale of the McCray case. The train crew did not consider these speed regulations unreasonable in the area which they believed to be included in the Bossier City limits and had been substantially complying with them. The speed limit ordinance is a safety measure designed to protect the general public. Sandra was in the class of persons the ordinance was designed to protect and is not required to prove the speed limit contained in the ordinance was not unreasonable.

The fact the appellants have violated the ordinance and their own speed limitation at the Shed Road crossing since the crossing was placed in the city limits in 1973, does not detract from their duty owed the public at this Bossier City railroad crossing.

We find the appellants had a duty to comply with the speed limit ordinance. That duty was breached by the train’s traveling 30 m.p.h. in a 5 m.p.h. zone.

We turn to the question of whether there was a duty for appellants to comply with the 10 m.p.h. speed limit contained in the railroad’s special instructions. It has been held to be negligence for trains to violate company rules adopted in the interest of safety. Levy v. New Orleans & Northeastern R. Co., supra; Perkins v. Texas and New Orleans Railroad Company, 243 La. 829, 147 So.2d 646 (1962). See also Broussard v. Louisiana Western R. Co., supra; Fisher v. Walters, supra. We conclude the speed limit set by the special instructions is a safety measure. Therefore, there was a duty for the train to be operated at or below that speed limit. This duty was also breached.

Appellants contend that even if there was a duty, they cannot be held liable for the breach of that duty since the risk that Sandra would be injured was not included within the duty to operate within the speed limits contained in the ordinance and special instructions. They argue both measures are intended to control blocking of city roads by trains at railroad crossings and it would be sheer speculation and conjecture to find them to be safety measures. This contention is contrary to railroad crew testimony that it was a safety measure and is contrary to cases which we have earlier cited which hold speed regulations are designed to protect the public at railroad crossings.

The wording of the ordinance belies appellants’ argument. It sets a speed limit of 5 m.p.h. at crossings where certain safety precautions have not been taken. At crossings where the precautions have been taken the speed limit is increased to 15 m.p.h. We further note that the Bossier City Code contains a separate and distinct blocking ordinance.

We find that the ordinance and the special instructions are both safety measures designed to protect the general public from being injured by trains. The city and the railroad’s executives would not pass measures imposing slow speed limits upon trains if their sole concern was to keep trains from blocking streets too long. The slower a train travels, the longer it takes to clear a crossing.

We have concluded the appellants breached a duty which protects the risk of Sandra’s injury. There remains for our determination the issue of causation.

CAUSATION

Legal cause under a duty/risk analysis is defined as cause-in-fact. The breach of a duty is a cause-in-fact of an accident if it is a substantial factor in bringing the accident about. In other words, it is an act or failure to act without which the accident would not have occurred. Dixie Drive It Yourself Sys. v. American Beverage Co., supra; Laird v. Travelers Insurance Company, supra; LeBlanc v. State, supra.

Appellants contend that the train’s speed in excess of the speed limits set by the ordinance and special instructions was not a cause-in-fact of the accident because: (1) the negligence of Kelly Wallace was the sole cause of the accident; and (2) there was evidence in the record showing that at the time the train crew became aware the Vega was not going to stop for the crossing, they could not have stopped the train in time to avoid the accident even if its speed was only 5 m.p.h.

Kelly Wallace was negligent in the operation of her car. She breached her duty to see what she should have seen and hear what she should have heard. She should have been aware of the train and stopped at the crossing until it was safe to cross the track. Her negligence was a substantial factor in causing the accident. However, the fact that her conduct was a legal cause of the accident does not relieve appellants from liability if the train’s speed was also a substantial factor in causing the accident. In Dixie Drive It Yourself Sys. v. American Beverage Co., supra, at p. 302, the court recognized there could be more than one legal cause of an accident.

The fact the train could not have stopped in time to avoid the accident even if it were complying with the speed regulations does not preclude a determination that the excessive speed of the train was a cause in fact of the accident. This court has previously pointed out that the causal connection between the excessive speed of a train and an accident is not that the train, if operated at the required slower speed, could have been stopped in time to avoid an accident. The causal connection is that the motorist would have had more time to hear and observe the train and stop his vehicle in time to avoid a railroad crossing accident. Jenkins v. St. Paul Fire & Marine Ins. Co., 393 So.2d 851, 856 (La.App. 2d Cir.1981) (aff. on writs 422 So.2d 1109). See also Broussard v. Louisiana Western R. Co., supra.

At the time of the accident the train was traveling at 6 times the legal speed limit and 3 times the railroad’s self-imposed speed restriction. The liability imposing causal link is not that the Vega would have cleared the crossing before the train arrived if it had been obeying either speed limit. It is that the train would have been in Kelly Wallace’s field of vision for a substantially longer period of time before she reached the crossing. She would have had more time to see and hear the train and to react to its presence, thereby avoiding the accident.

There is also evidence in the record to the effect that because of lights at an industrial complex located in the southwest quadrant of the intersection, a motorist traveling in the same direction as the Vega would have difficulty seeing the lights of a train approaching the crossing at night. Dr. Thomas Moss, an expert in the field of physics, testified the industrial complex lights tend to obscure trains’ headlights. In his opinion, because of the configuration of the factory’s lights, the headlights on an approaching train never emerge from the background. His testimony is corroborated by that of Gerald Adams and Dr. John Miciotto. Adams crossed the crossing in a pickup shortly before the Vega. He did not see the train’s headlights until he was on top of the tracks and they were shining in his right window. At that time the train was only 30-40 yards from the crossing. Dr. Miciotto was driving a car approximately 80-85 yards behind the Vega. He did not see the train’s headlights and only saw the train itself immediately before the collision. In light of the evidence that a train’s headlights were difficult to see at the crossing, the length of time a driver has in which to observe the train is especially significant on the issue of causation.

Appellants point out a number of cases where the violation of the legal speed limit was not found to be a eause-in-faet of an accident. Fontenot v. Lucas, 228 So.2d 211 (La.App. 3d Cir.1969) (30-35 in a 25 zone); McDaniel v. Welsh, 234 So.2d 833 (La.App. 1st Cir.1970) (speed slightly in excess of limit); Cross v. Delaney, 281 So.2d 168 (La.App. 4th Cir.1973) (25 in a 20 zone); Bland v. Interstate Fire and Casualty Co., 311 So.2d 480 (La.App. 4th Cir.1975) (65 in a 55 zone); Bennett v. US. Fid. & Guar. Co., 373 So.2d 1362 (La.App. 1st Cir.1979) (59 in a 45 zone).

The instant case is distinguishable from the cited cases on two grounds. The excessive speed involved in all of those cases did not approach six (or even three) times the legal limit and in these cases there were no facts established that would support a finding of a casual connection between speed and the accident.

The following quote from Broussard v. Louisiana Western R. Co., supra at 606-607 (although it was written long before the advent of duty/risk) supports a finding of causation in the instant case:

... we find that the speed of the train was excessive, and of itself constitutes negligence which renders the defendant company liable.
The evidence shows a speed of at least 30 miles an hour ... and the evidence shows that this crossing, although at the boundary line of the corporate limits which the train was entering, and although the closely built-up part of the city does not reach quite that far, is as much used as any other crossing in this city of 6,000 inhabitants.
The city ordinance regulating the speed of trains located the speed limit several streets further inside of the city, and it is argued that this practically amounted to a permission to the railroad to run at ordinary speed at this crossing; but the rules of the defendant company provided that within the limits of Crowley the speed should not exceed six miles an hour; and prudence would dictate that a crossing so near the built-up part of a city as to be used as any other crossing in the city should be approached at a less rate than thirty miles an hour.
The automobile was going in the same direction as the train, and along a road which for some distance before reaching the crossing paralleled the railroad, about 75 feet away from it on the fireman’s side of the train. The fireman saw the automobile, and if, when he first saw it, and, indeed, for some time after-wards, he had suspected that it would attempt to cross ahead of the train, he could have stopped in time; but, when he did realize that it was going to cross, it was too late. Defendant contends that it would equally have been too late even if the speed had been the 15 miles fixed in the ordinance, and that therefore the proximate, or, in other words, the sole legal, cause of the accident was the act of the automobile in coming upon the track; and for showing that the accident would equally have been unavoidable if the speed of the train had been less, defendant adduces computations of seconds and number of feet. But that argument takes into consideration only what was possible to be done by the fireman and engineer; it loses sight of what was possible to be done by the occupants of the automobile (emphasis supplied) ... The slower either the train or the car had been going, the greater would have been the margin of safety.

The speed of the train was a cause in fact of the accident. The trial court’s determination of liability was correct.

QUANTUM

Included in the $522,776.00 award to Sandra was $400,000.00 for general damages and $116,776.00 for loss of future wages and $6,000.00 for future medical expenses. Appellants contend that the general damages award was excessive. They argue the awards for lost wages and future medical expense should be totally disallowed as these awards are speculative and not supported by the evidence.

GENERAL DAMAGES

The trier of fact has much discretion in fixing the amount of general damages. LSA-C.C. 1934(3); Gaspard v. Le-Maire, 245 La. 239, 158 So.2d 149 (1963); Reck v. Stevens, 373 So.2d 498 (La.1979). That award cannot be disturbed on appeal unless the record clearly reveals the trier of fact abused its discretion in making the award. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976); Reck v. Stevens, supra.

In support of their argument that the $400,000.00 awarded is excessive, appellants cite three cases where the plaintiffs were awarded lower sums for what appellants claim were similar injuries. As was stated in Coco v. Winston Industries and Reck v. Stevens, supra, no two cases are ever exactly the same and the initial determination of abuse of discretion must be made from the individual facts and circumstances of each particular case. Prior awards are of little value in making this determination. It is only after this determination is made that the consideration of prior awards is proper for determining what would be an appropriate award. With these principles in mind, we address the facts and circumstances of this case.

Sandra was a 16 year old junior in high school when the accident occurred. Prior to her injury she was a very active young lady. She participated in sports such as basketball, softball and gymnastics. She belonged to various school clubs. She was a member of the band and flag line. She was outgoing, cheerful, and made friends easily. She was well thought of by her friends and teachers. She made respectable grades in high school without putting forth much effort and planned to attend college after completion of high school. Her teachers and counselors considered her to be good college material.

In the accident Sandra sustained multiple lacerations and abrasions; however, the most serious injuries Sandra suffered in the accident were a closed head injury and a compression fracture of her spine at the L-2 level. She was in the hospital for over 6 weeks. During this time she was in a coma for between 2 and 3 weeks and she underwent an operation on her back.

Because of her head injury Sandra was unable to speak when she first began coming out of the coma. She regained this ability gradually. By the time of trial, in April, 1983, she had not fully recovered the ability to speak properly. She still slurred her words and stuttered from time to time. The head injury included a brain injury which caused a decrease in her higher mental capacity.

Sandra finished her junior year in high school under the direction of a homebound teacher. During the time she worked with this teacher, she experienced unusual difficulties with her school work as a result of her head injury. She was unable to concentrate and her ability to remember was limited. She had to repeatedly go over her lessons in order to pass her tests and her mother did 90-95% of her school work. The next fall Sandra returned to school for her senior year. She experienced the same difficulties she had when working with the homebound teacher. Although she finished the year with approximately the same grades she made before the accident, she had to work much harder for them. At the beginning of her senior year Sandra enrolled in a cooperative education program in which the students attend school half a day and work for half a day. While in the program she was fired from three jobs because she was unable to retain the necessary information to do the required work. She was subsequently dropped from the program.

During her senior year Sandra took a. series of tests which revealed she was no longer able to do college level work. Because of the test results and the difficulty she was having with her high school work, she decided not to attend college and entered business school instead. When she first entered business school she enrolled in a medical secretary course. She discontinued this course because she was unable to remember the information necessary to pass. She is now taking a general secretary course. Although she does fairly well in subjects which are a repeat of what she learned in high school, she has difficulty with new subjects, such as word processing and accounting.

Because of Sandra’s head injury she has undergone personality changes. Where she was once outgoing and made friends easily, she is now introverted and irritable. She has also become insecure and doubts her abilities.

Sandra underwent two operations on her back. In the first, which was performed during the time she was in the hospital following the accident, a piece of bone was removed from her hip and grafted to her spine. Two metal plates were inserted around her spine to hold the graft in place and to support her back. When she first awoke from the coma she was unable to walk and had to relearn this skill. She was required to wear a back brace every time she got out of bed for six months. When she first got out of the hospital she required the services of a physical therapist. These services were performed in her home. At first the therapist came every day but later his visits tapered off to 2 or 3 times per week. The second operation took place in April, 1982. In that operation, the plates were removed from around her spinal column. Sandra described this operation as the most painful experience she ever had.

Sandra has continued to experience problems with her back. She is severely restricted in her physical activities and often experiences a great deal of pain. Her doctors estimate that she will continue to experience chronic back pain for the remainder of her life and will always need to take pain medication. The outward manifestations of the injury are that she walks with a limp and has a noticeable malformation in the curvature of the spine. Both conditions are permanent. The medical testimony estimates that she has a 30-35% permanent disability in her back and another 10-15% permanent disability in her legs as a result of the back injury. She has a 40% disability as related to the body as a whole. Conservative estimates are that the disability rating to her body as a whole will increase another 10-20% as she gets older.

In support of their argument that the general damages award was too high, appellants point out that Sandra is enrolled in modeling school and is engaged to be married. Appellants also argue that to all outward appearances Sandra does not show any residual effects of the accident. In light of the above discussion of the extent of Sandra’s injuries and the resulting permanent disability caused by those injuries, appellants’ argument warrants no consideration.

We find no clear abuse of discretion in the trial court’s general damage award.

LOSS OF FUTURE WAGES

In his reasons for judgment the trial judge specifies that the damages awarded Sandra are based on the extent of her injuries and the diminished capacity resulting therefrom. The figure of $116,776.00 for loss of future wages is based upon the testimony of Dr. Melvin Harju who qualified as an expert economist at trial. Dr. Harju testified to the mean earnings which a female of Sandra’s age could expect to earn over her lifetime given the relevent social data. According to his calculations, if Sandra had gone to college as she intended before the accident and obtained a degree, the present value of her lifetime earnings would have been the sum of $587,-052.00. As a high school graduate the present value of her lifetime earnings would be the sum of $470,276.00. The trial judge awarded the difference between these two figures.

We note that Dr. Harju’s figures are at the low end of the earnings scale. They are based on 1977 data. There has been a significant improvement in women’s working patterns and earnings since the data was compiled.

Appellants argue that the entire award on this item of damages should be disallowed since it is based on mere speculation. They point out that at the time of the accident Sandra was in high school and had not entered the work force, and she did not in fact go to college.

As is the case with general damages the trial judge has much discretion in fixing an award for loss of future wages. Hill v. Sills, 404 So.2d 1323 (La. App. 2d Cir.1981); Green v. Farmers Ins. Co., 412 So.2d 1136 (La.App. 2d Cir.1982). The award for loss of future wages does not require an actual loss of earnings, it may be based on loss of earning capacity which is a person’s ability to make money. These damages may be awarded even if the injured party has never taken advantage of that capacity. Folse v. Fakouri, 371 So.2d 1120 (La.1979); Hill v. Sills, supra; Green v. Farmers Ins. Co., supra. Furthermore, loss of future wages cannot be calculated with absolute certainty, damages for this loss are somewhat speculative in nature. Hill v. Sills, supra; Green v. Farmers Ins. Co., supra.

Sandra suffered a significant loss of mental and physical capacity. The trial judge correctly concluded that she had a resulting substantial loss of earning capacity. While there is no way to know if Sandra would have carried out her plans to attend college and obtain a degree, she lost the opportunity to undertake the college work because of her brain injury. We find no abuse of discretion in basing the award on the difference between what she could expect to make with a degree and without one.

There is substantial evidence in the record to support the future medical expense award and we find no abuse of discretion by the trial judge in making this award.

The judgment is AFFIRMED at appellants’ cost.

      . Malcolm Wallace, father of Kelly Wallace, was cast in judgment in solido with the appellants but he did not appeal.

      . Sec. 24-1. Speed at crossings.
      (a) It shall be unlawful for any person to drive or move, or cause to be driven or moved, any railway locomotive, engine or train into or across any paved street or highway within the city at a speed exceeding five (5) miles per hour, except that where a standard system of signal lights or bells, visible or audible at a distance of three hundred (300) feet in either direction shall be installed and maintained by the railroad company at the intersection of said railroad with any such street or highway, or where such railroad company shall maintain a watchman or flagman, or install and maintain movable barriers at such intersection, any such railroad locomotive, engine or train may be driven or moved across any such street or highway intersection at a speed not to exceed fifteen (15) miles per hour while crossing said intersection.

      .Section 24-3 of the Bossier City Train Ordinance requires trains to stop at all crossings that do not contain one of the warning devices described in Sec. 24-1. At such crossings the trains is to be preceded by a flagman or switch-man. In his reasons for judgment the trial judge did not base liability in part on the train’s violation of Ordinance No. 24-3 requiring trains to stop and dispatch a flagman at crossings such as the one in question. Because of our finding that liability was correctly imposed for the violation of the speed limit ordinance on which the trial judge relied, we do not address plaintiff's contention that appellants were also liable because of their violation of Sec. 24-3.

      . The state conducted the count at the city’s request.

      . Sec. 24-2. Blocking crossings.
      (a) It shall be unlawful for any locomotive engine, switch engine or train to block any hard surfaced or paved street or any highway within the city for a period of longer than five (5) consecutive minutes either by a physical obstruction of the way or by operating the locomotive engine, switch engine or train in such a manner as to activate automatic traffic control devices which unnecessarily impede the flow of traffic.

      . Appellants cite Sutton v. Langley, 330 So.2d 321 (La.App. 2d Cir.1976) ($41,100.00 award affirmed); Hebert v. Missouri Pacific Railroad Company, 366 So.2d 608 (La.App. 3d Cir.1978) ($250,000.00 award affirmed); Martinez v. U.S. Fidelity and Guar. Co., 423 So.2d 1088 (La. 1982) ($147,000.00 award affirmed).

      . Sandra testified she was going to modeling school in order to learn to walk where her limp would be less noticeable.


source: Caselaw Access Project

author: CHEHARDY, Judge.

license: Public Domain

text:
    Sally Sheets GACHEZ v. Robert J. GACHEZ.
    No. 83-CA-782.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 14, 1984.
    Writ Denied Sept. 14, 1984.

      Hall, Lentini, Mouledoux & Wimberly, Stephen T. Wimberly, Metairie, for plaintiff-appellee.
    Occhipinti & Mura, William E. Mura, Jr., Gerardo D. Abascal, New Orleans, for defendant-appellant.
    Before CHEHARDY, BOWES and GRIS-BAUM, JJ.
   CHEHARDY, Judge.

We are concerned here with a partition of community property.

Pertinent chronology is as follows:

Sally Sheets and Robert Gachez were married on October 12, 1975. One child, Aaron Scott Gachez, was born on September 3,1978. On July 15,1981, Mrs. Gachez filed a petition for divorce alleging the parties had been living separate and apart without reconciliation since July 5, 1980. Judgment was rendered by default in favor of plaintiff on August 5, 1981, and custody of the minor was awarded to the husband, as prayed. On June 16, 1982, a consent judgment was rendered ordering Mrs. Ga-chez to pay child support in the sum of $135 per month, and on November 12,1982, plaintiff, now Mrs. Robert Milam, filed this petition for partition.

Following trial, judgment was rendered awarding the former wife $8,560.27 as her share of the community and awarding defendant $4,528.27 as his share, along with the possession, use and enjoyment of the community 1979 Oldsmobile. The judgment also provided that the parties were to share any interest accumulated from the sale of the family residence on deposit in a local bank.

Defendant has appealed.

Prior to judgment, to assist the court in effecting the partition, the parties entered into the following stipulations:

"1) Proceeds from the sale of the family home, $13,088.54, are on deposit in Hibernia National Bank, Savings Account No. 84-2-01572.
“2) Sally Sheets Milam received an inheritance from her father, of which the sum of $9,100.00 was used in the purchase of the community home on January 4, 1980.
“3) Two automobiles were purchased during the marriage, namely a 1979 Oldsmobile, currently in the possession of Robert Gachez, and a 1973 Volkswagen, which was sold after the parties physically separated, for the sum of $900.00. The said Robert Gachez retained the proceeds from the sale of the said Volkswagen. Regarding the 1979 Oldsmobile, Sally Milam retained and used the said vehicle for a period of twelve (12) months, between the date of the physical separation and the date of divorce, and during that time, paid notes in the amount of $195.00 per month. After that time, the car was returned to Robert Gachez, who has made the payments since that time. As of January 6, 1983, the car’s net value was $2,132.00.
“4) Robert Gachez did pay the mortgage payments due on the family home, in the amount of $500.00 per month, from the date of physical separation until the house was sold on June 10, 1982.
“5) Sally Milam withdrew the sum of $800.00 from the family savings account with Pelican Homestead after physical separation.
“6) Robert Gachez paid outstanding balances on two family credit accounts, namely J.C. Penney and Master Charge, said accounts totaling $900.00, after physical separation but before legal separation.
“7) The cost of supporting, maintaining and educating the child of the marriage was $270.00 per month from the date of physical separation until June 16, 1982, at which time a judgment ordering Sally Milam to pay the sum of $135.00 per month child support was rendered.
“8) During the period of time between physical separation on July 5, 1980, and the date of judgment of divorce, August 5, 1981, Sally Milam’s income was $700.00 per month, and Robert Gachez’s income was $1,200.00 per month.”

From its reasons for judgment it is clear the trial court arrived at its award in the following manner:

The community assets, as stipulated by counsel, consists of the proceeds due the parties from the sale of the community home in the sum of $13,088.54 (plus interest), a 1979 Oldsmobile, valued at $2,132.00, proceeds of $900.00 retained by the husband from the sale of a 1973 Volkswagen, and $800.00 of community funds withdrawn by the wife from Pelican Homestead.

The net value of the community assets amounts to $16,920.54.

In determining the amounts it was stipulated the wife used $9,100.00 of her separate property to help purchase the family residence. Relying on LSA-C.C. art. 2367, the court allowed the wife one-half of that amount, or $4,550.00, as reimbursement from the community.

The court awarded the husband $2,750.00 under the authority of LSA-C.C. art. 2365, representing one-half of the 11 mortgage payments of $500.00 per month which he made on the family residence after July 15, 1981 (the date of the filing of the petition for divorce) until the date the house was sold on June 10, 1982.

In determining the distribution of the remainder of the community assets valued at $9,620.54 ($16,920.54 less $4,550.00 to the wife and $2,750.00 to the husband), the court, pursuant to LSA-R.S. 9:2801, awarded one-half, or $4,810.27, to each spouse subject to the following:

a. Since the wife had previously withdrawn $800.00 from the Pelican Homestead account, that amount was deducted from her share, leaving a net award of $4,010.27, and
b. Since the husband had been awarded the 1979 Oldsmobile valued at $2,132.00 and previously retained possession of the proceeds of $900.00 from the sale of the Volkswagen, his net award amounts to $1,778.27.

In summary Sally Gachez was awarded $8,560.27 (reimbursement of $4,550.00 plus $4,010.27) and Robert Gachez was awarded $4,528.27 (reimbursement of $2,750.00 plus $1,778.27).

In this court appellant contends the trial court erred in: (1) failing to find the parties had voluntarily or nonjudicially partitioned the community at the time of the physical separation; (2) in not fully reimbursing defendant for all mortgage payments made by him after the termination of the community; (3) in not awarding him full reimbursement for all funds expended for the support of the minor in the absence of a prior judgment of child support; (4) in failing to reimburse defendant for community funds used by plaintiff to satisfy her separate obligations; and (5) in not recognizing the parties as co-owners of the Oldsmobile at the termination of the community until the time of trial.

In support of his first contention that when the parties physically separated (July 5,1980) they amicably settled the community, he indicates his wife retained the family Oldsmobile and made the monthly payments thereon and withdrew $800.00 from the family savings account. She opened a separate checking account, paid some of the community bills and separately retained her own wages.

At the same time appellant retained and sold the family Volkswagen for $900.00, which he retained. He opened a separate checking account and retained his own earnings. Out of these earnings he paid some of the outstanding balances on the family’s credit card accounts, made the payments on the home mortgage, and he alone paid for the support and maintenance of the minor child.

The wife made no claim for the family furnishings other than requesting the washer and dryer, a claim which she has apparently abandoned, hence the husband claims they apparently distributed the household furnishings and effects.

Appellant contends that although no values were assigned to the properties retained it is apparent the parties were attempting to accomplish a voluntary partition of the community.

He also indicates the parties attempted to partition their future incomes, which they could not do, and cites this as strong evidence of their interest to partition the entire community. This, he asserts, should not nullify or affect other items which the parties could properly partition.

The husband did not testify and his claims are made by way of his brief.

The only evidence in the record is the stipulations of the parties, quoted in exten-so above and the testimony of the former wife. She testified that at no time did the parties enter into an agreement concerning a partition either in whole or in part, they merely agreed to the use of certain items pending dissolution of the community and settlement of the same.

We note that on June 10, 1982 when the home was sold, the parties were unable to agree on a nonjudicial partition, and therefore the funds were placed on deposit in a bank pending judicial partition.

On July 4, 1980, the date the parties physically separated, LSA-C.C. art. 2336 provided as follows:

“Each spouse owns a present undivided one-half interest in the community property. Nevertheless, neither the community nor things of the community may be judicially partitioned prior to the termination of the regime.”

This article was amended by the legislature by Act 921, Sec. 1, 1981, effective September 11, 1981, which added the following paragraph:

“During the existence of the community property regime, the spouses may, without court approval, voluntarily partition the community property in whole or in part. In such a case, the things that each spouse acquires are separate property. The partition is effective toward third persons when filed for registry in the manner provided by Article 2332.”

Prior to the effective date of this act there was no provision in our law for a voluntary partition of community property before the termination of the community. Therefore on the date the parties physically separated there was no provision in law for a voluntary partition. We note also that the amendment in 1981 became effective after the community had ended by the petition for divorce.

Our jurisprudence has consistently interpreted LSA-C.C. art. 8 regarding retrospective application of law to mean that substantive laws, as opposed to procedural laws, should be applied retroactively only if the language used by the legislature shows such clear intent. Green v. Liberty Mut. Ins. Co., 352 So.2d 366 (La.App. 4th Cir. 1977).

Even if the parties would have been entitled to partition the property at that time, no evidence was presented during the trial to indicate they intended to do so. The wife specifically denied it, and the husband failed to testify.

Relative to appellant’s second contention, it is his position that the lower court erred in not recognizing the parties as co-owners of the family home subsequent to the termination of the community and as such entitled to full reimbursement for all mortgage payments made by him after the termination of the community.

The trial court awarded plaintiff $2,750.00, or one-half of the amount sought of $5,500.00, the total for 11 monthly payments of $500.00 each made after the dissolution of the community on July 15, 1981 until July 10, 1982, the date the house was sold.

We are cited to the cases of Lentz v. Lentz, 411 So.2d 59 (La.App. 4th Cir.1981); Kennedy v. Kennedy, 391 So.2d 1193 (La. App. 4th Cir.1980); and Butler v. Butler, 228 So.2d 339 (La.App. 1st Cir.1969), in support of his position that he is entitled to full reimbursement.

The trial court award was based upon the provisions of LSA-C.C. art. 2365, which provides:

“If separate property of a spouse has been used to satisfy a community obligation, the spouse, upon termination of the community property regime, is entitled to reimbursement for one-half of the amount or value that the property had at the time it was used.
“Reimbursement may only be made to the extent of community assets, unless the community obligation was incurred for the ordinary and customary expenses of the marriage, or for the support, maintenance, and education of children of either spouse in keeping with the economic condition of the community. In the last case, the spouse is entitled to reimbursement from the other spouse even if there are no community assets.”

The facts operative in the cases cited by appellant for the proposition that he is entitled to full reimbursement for all mortgage payments made after the dissolution of the community arose prior to the enactment of C.C. art. 2365 and codification of the law relating to one-half reimbursement.

We note here that the wife used $9,100.00 of her separate (inheritance) funds to purchase the family residence and she was reimbursed for one-half of that amount under the authority of LSA-C.C. art. 2367.

Both articles provide for reimbursement in the amount of one-half of the amount of the separate property expended, regardless of whether the amount is expended for payment of a community obligation or for the benefit of the community property.

The trial judge applied both of these articles strictly and ordered reimbursement for Mrs. Milam in the sum of $4,550.00 (one-half of her $9,100.00 inheritance expended for the house), and reimbursement for Mr. Gachez in the sum .of $2,750.00 (representing one-half of the mortgage payments of $5,500.00 made by him). We are of the opinion that his judgment was proper under the cited articles. •

Appellant cites as error the trial court’s failure to reimburse him in full for the stipulated $270.00 per month which he paid for the support of his minor son from the date of the parties’ physical separation, July 5, 1980, until June 16, 1982, the date of the consent judgment.

It is his position that the support, maintenance, and education of the child is a mutual obligation imposed on both parents and has a legal independent basis without the necessity of a court order. He equates this situation with payment of the mortgage notes which required no judgment before reimbursement.

The courts have held that mutual obligation of support of children imposed by law on both parents must be determined by the needs of the children and the circumstances of those who are obligated to pay. Marcus v. Burnett, 282 So.2d 122 (La.1973); Graval v. Graval, 355 So.2d 1057 (La.App. 4th Cir.1978).

If Mr. Gachez was dissatisfied with the arrangement of paying in full for the support of his son, he was entitled to seek a judicial determination at any time.

We know of no ease, and have been cited to none, which would permit recovery for child support prior to a judicial determination thereof, either by consent or a full hearing thereon, and we find no error in the trial court’s refusal to make such a retroactive award here.

Appellant’s fourth assignment of error concerns the claim of the husband that the wife used community property (her salary of $700.00 per month) to satisfy her separate obligation (rent for her apartment). He asks for reimbursement of one-half of her salary for one year, claiming that income earned prior to the termination of the community is community property and should properly be considered in determining the net value of the community.

The evidence is clear that the wife’s income was spent for a community obligation, namely, her own support. By the same token the husband’s income was spent for community obligations—his own support, the child’s support and preservation of the community by payment of the mortgage notes.

Appellant claims the wife did not use all of her funds for community purposes because she rented an apartment and returned no money to her husband, paid no house notes, nor did she contribute to the support of the child.

Our courts have always recognized that both spouses have to incur expenses to live and that the respective incomes are usually offset by corresponding expenses. There being no evidence that Mrs. Milam disposed of her small income by fraud, it was properly excluded from consideration by the trial court.

Appellant’s final contention is that the court erred in failing to reimburse him for all of the car notes paid by him from the termination of the community until the time of trial, a period of 17 months. He equates the payments for the car note with payments of the home mortgage note.

The trial court failed to recognize appellant’s claim for reimbursement on the car note. It apparently concluded the exclusive use and enjoyment of the vehicle by plaintiff offset the amount paid.

Although our jurisprudence has consistently held that rent or credit is not owed when one spouse occupies the family home while making mortgage payments, the situation at hand involving moveable property is distinguishable.

Automobiles tend to depreciate in value over a period of time and the use of the vehicle is directly related to its depreciation.

Equity would dictate that appellant should not have the full use, benefit and enjoyment of the moveable at the expense of the wife, who by the same token enjoyed the use of the vehicle and paid the notes the previous year, prior to returning the automobile to him.

In reviewing the entire judgment, after determining the net value of the community based upon stipulations of counsel, the court ordered reimbursement of $4,550.00 to the wife and granted $2,750.00 to the husband. The remainder was divided and awarded to each spouse subject to credits for items already in their respective possession. We find no error in the said allocation and distribution.

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

AFFIRMED.

      . In its reasons it is incorrectly indicated the award was based upon one-half of the payments from filing for divorce (July 15, 1981) until the date of the divorce (August 5, 1981), which of course would not amount to 11 payments. We conclude the 11 payments referred to were made after July 15, 1981 until the house was sold in 1982.


author: BOWES, Judge.

text:
    Thomas T. MIGUEZ, Sr., Administrator of the Estate of His Minor Child, Dudley Miguez v. URBAN DEVELOPMENTS, INC., Sea & Sar’s et al.
    No. 83-CA-755.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 14, 1984.
    Writ Denied June 25, 1984.

      S. Michael Cashio, Kenner, for plaintiff/appellant.
    Carl L. Aspelund, Michael E. Wanek, Christina P. Fay, Hulse, Nelson & Wanek, New Orleans, Kevin L. Cole, Hailey, McNamara, Hall, Larmann & Papale, Metairie, for defendants/appellees.
    Before CHEHARDY, BOWES and DU-FRESNE, JJ.
   BOWES, Judge.

Plaintiff appeals from a directed verdict by the trial judge, granted in favor of the defendants at the close of the plaintiff’s case. This was a civil jury case. Mi-guez avers that the trial judge granted the motion based on an erroneous interpretation of “duty-risk” and the law of strict liability under Civil Code Articles 2317 and 2322.

The basis of the lawsuit was an injury sustained by Dudley Miguez, the then 12 year old son of Mr. and Mrs. Thomas Mi-guez. Dudley and another adolescent boy, Michael Pettit, also about twelve, became engaged in fisticuffs at the shopping center of defendant, Urban Development, in the Chateau Village Shopping Mall. The fight began when Michael accused Dudley of appropriating his quarter at a video game arcade, located in the mall. Michael then threatened to “beat up” Dudley, and the boys began to push one another around. As the fracas intensified, one of the gathering mob of other boys urged the antagonists outside. The fight was then removed to the mall walkway out-of-doors, and in front of the gift shop of defendant Sea & Sar’s (a tenant of Urban and an occupant of Chateau Village). The brawl then began in earnest. The boys took off their shoes and began to throw punches. After several minutes (testimony of various witnesses estimated the match lasted from between 5 and 25 minutes), the affray abruptly ended when Michael threw Dudley through a display window of Sea & Sar, shattering the glass. Dudley’s most serious injury, to his foot, was sustained as he tried to extricate himself from the bed of broken glass.

The suit for damages was filed against the defendants alleging the following bases for liability: Failure of defendants, Urban and Sea & Sar’s, to employ properly trained and sufficiently staffed security guards in the area; failure of defendants, Urban and Sea & Sar’s, to have installed required safety glass in the outside window of Sea & Sar’s; the negligence of defendant, Michael Pettit, in forcing or pushing Dudley Miguez through the plate glass window, and failure of Sea & Sar’s and Urban to warn Dudley Miguez of the presence of dangerous glass in an area bearing a large amount of pedestrian traffic.

Plaintiffs settled with the Pettit family prior to trial. At the trial on the merits, plaintiffs presented witnesses as to the facts of the fight itself, medical evidence, and also evidence concerning glass installations in commercial buildings.

When the plaintiffs concluded presentation of his evidence, defense counsel for all defendants moved for a directed verdict in their favor, averring in pertinent part that plaintiff did not prove that the glass window in question was defective (that it was never established whether the glass was or was not “safety plate”); that it was never established whether or not a security guard was on duty at the time of the accident and whether or not such a guard would be clothed with the duties and responsibilities to stop the actions in question; that the “accident” was the fault of a third party, thereby relieving defendants of strict liability; that no negligence was established (on the part of the lessee); and that there was no proof that the alleged absence of safety glass was a proximate cause of the accident, and/or whether the window presented an unreasonable risk of harm.

The trial judge granted the directed verdict, stating that to hold any of the remaining defendants liable under the circumstances of this case would be to extend the duty-risk analysis too far. The astute trial judge correctly observed “this case was caused because two young men decided to have a fight. That was the legal cause of the accident.” Both theories of negligence and strict liability were addressed and dismissed by the trial court.

It is now established in our jurisprudence that victim fault and third party fault are defenses to strict liability. See our opinion in Ruffo v. Schwegmann Bros. Giant Supermarkets, Inc. 424 So.2d 470 (La.App. 5th Cir.1982), and the authorities cited therein.

Two twelve year old boys, of normal intelligence (there was no allegation or proof - otherwise), who willingly engage in a fist fight of some duration, are held to the knowledge that injury will result. The infliction of injury by one to the other party is, indeed, their intention. While the testimony strongly suggested that Michael started the fight, there is every indication that Dudley participated wholeheartedly. The two boys took off their shoes and squared-off. Dudley testified that he took off his thongs because, in the fight, he would have tripped on them; he elected to fight, he said, to avoid being “picked on” by Michael in the future. As the fight continued, Dudley became aware of the window in back of him, as the brawl brought the two closer to the defendant’s store. He knew if he hit the window that he would be cut. Yet the battle waged on.

While this court is not prepared to pass on the adolescent wisdom of their actions, we must find that the willful participation by both parties, resulting in Dudley’s unfortunate accident, constitutes both victim fault and third party fault sufficient to absolve the defendants from strict liability under Civil Code Articles 2322 and 2317.

The trial judge properly found that the legal cause or cause in fact of the injury to the plaintiff was a result of the fight in which he willingly participated.

In determining cause-in-fact, it must be decided whether the acts complained of were a substantial factor without which the accident would not have occurred. Head v. St. Paul Fire and Marine Ins. Co., 408 So.2d 1174 (La.App. 3rd Cir.1982). The trial court’s finding was obviously correct, and the only duty breached was the mutual obligation of Michael and Dudley to refrain from deliberately injuring one another.

Applying the facts and law to the present case, the trial judge properly granted the directed verdict in favor of defendants, Urban Developments and Sea & Sar’s. When facts and inferences are so overwhelmingly in favor of the moving party that the court believes that reasonable men could not arrive at a contrary verdict, the litigation may be properly concluded by a directed verdict. Oppenheim v. Murray Henderson Undertaking, 414 So.2d 868 (La.App. 4th Cir.1982). Quoting Campbell v. Mouton, 373 So.2d 237 (La.App. 3rd Cir.1979), the‘Fourth Circuit went on to say:

The court, in Campbell, further states that the standard of proof is to be based on the Federal standard and cites the language in Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir.1969) in enunciating the state standard to be used:
“On motion for directed verdict and for judgment notwithstanding the verdict that Court should consider all of the evidence — not just that evidence which supports the non-mover’s case — but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions (sic) is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury.”

Plaintiff did not prove that statutory requirements mandating the installation of safety glass in certain areas of buildings was violated because it was never established what type of glass was installed in the display window at the time of the accident. Thus it cannot be concluded that the building was defectively constructed, designed, or improperly repaired, and liability under Article 2322 is inapplicable. Fonseca v. Marlin Marine Corp., 410 So.2d 674 (La.1981). Plaintiff’s failure to prove the glass defective also precludes recovery from the lessee under Article 2317, as well as under any theory that defendants were negligent in failing to warn plaintiff about the window.

We find plaintiff’s claim that defendants were negligent for failing to supply security guards to be without merit. Owners of businesses who permit the public to enter their establishments do have a duty to exercise reasonable care to protect those who enter. This duty extends to keeping the premises safe from unreasonable risks of harm or warning persons of known dangers. Rodriguez v. New Orleans Public Service, Inc., 400 So.2d 884 (La.1981). Only when the owner or management of a business has knowledge, or can be imputed to have knowledge, of a third person’s intended criminal conduct which is about to occur and which is within the power of the owner or management to protect against, does a duty of care toward a patron arise. Davenport v. Nixon, 434 So.2d 1203 (La.App. 1st Cir.1983). The landowner or occupier of land does not insure against the possibility of an accident on the premises, but must act as a reasonable man in view of the probability of injury to others. Barcia v. Estate of Keil, 413 So.2d 241 (La. 4th Cir.1982).

There was no evidence that the property in question was dangerous to the customers, who patronized the businesses in the regular and usual manner for shopping purposes. The two boys in this case certainly were not engaged in the regular course of the businesses conducted in the mall. It would indeed extend the duty-risk analysis of our law too far to require a normally safe place of business to employ security guards to protect against the possibility of two of its patrons coming to blows with one another. There was no evidence that the owner or lessee knew that the fight was in progress until Dudley crashed through the window. Therefore, the presence or absence of security personnel on the premises at the time of the incident is not an indicia of negligence.

Finally, it is noted that various third party demands were filed which are moot in light of this decision. We remand the case to the district court, however, for the purpose of trying the reconventional demand of Sea & Sar’s Chateau of Cards and Gifts against defendants, Francis Schindler and Michael Pettit, for property damage to its display window.

For the foregoing reasons, we find that the learned trial judge was eminently correct in dismissing the principal case, and that portion of the judgment is affirmed. In fact, given the convincing evidence and clear-cut jurisprudence, we find this appeal bordering on being frivolous.

The case is remanded to consider the reconventional demand of Sea & Sar’s Chateau of Cards and Gifts. Each party is taxed with his own costs of this appeal.

AFFIRMED IN PART AND REMANDED.


author: DUFRESNE, Judge.

text:
    STATE of Louisiana v. Lena M. ALLEN.
    No. 83-KA-746.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 14, 1984.

      Martha E. Sassone, Indigent Defender Board, Gretna, for defendant-appellant.
    William C. Credo, III, Asst. Dist. Atty., Gretna, for plaintiff-appellee.
    Before CHEHARDY, BOWES and DU-FRESNE, JJ.
   DUFRESNE, Judge.

The defendant, Lena M. Allen, withdrew a plea of not guilty and entered a plea of guilty to a violation of R.S. 14:67 (Theft of $390.00). After completion of a presen-tence investigation, she was sentenced to two years at hard labor at St. Gabriel with credit for time served.

From this conviction and sentence the defendant appeals and has filed two assignments of error.

1. The trial court committed reversible error in a plea of guilty when such plea was not freely and voluntarily made.
2. The trial court committed reversible error in sentencing the defendant on June 28, 1983, which sentence is excessive.

The above assignments were not briefed and are considered abandoned. See State v. Becnel 441 So.2d 339 (La.App. 5th Cir.1983) and State v. Dirden 430 So.2d 798 (La.App. 5th Cir.1983).

In the defendant’s brief, discussion was presented that the trial judge did not comply with the sentencing guidelines under La.C.Cr.P., Art. 894.1, but did not once mention that the sentence was excessive.

The above noted assignment of error was not filed with the trial court to be included in the record. In State v. Sonnier, 441 So.2d 359 (La.App. 5th Cir.1983) this writer held that issues not submitted by formal assignment of error are not properly before the court for review unless they fall within the realm of error patent. We noted that except for cases in which the death penalty has been imposed, excessiveness of sentence is not error patent. It may therefore only be considered on appeal where presented by formal assignment of error in compliance with La.C.Cr.P., Art. 920(1) and 844. Although the failure to comply with the dictates of Article 894.1 may result in an excessive sentence, these two facets of the sentencing procedure are not necessarily tied together.

The consequences of failure to comply with the dictates of Article 894.1 are discussed in State v. Wimberly, 414 So.2d 666, 672 (La.1982). The court noted that:

We have not as of yet acted under our supervisory, administrative or rule making powers to require that sentencing judges state basic facts and reasons in every case. In those cases in which we have vacated the sentence and remanded the case for resentencing in full, recorded compliance with Article 894.1, our action was not prompted simply by the sentencing Judge’s failure to give his reasons for the penalty imposed. Rather, it was because, based on the inadequate record presented to us, there appeared to be a substantial possibility that the defendant’s complaints of an excessive sentence had merit. In each case, pursuant to our duty to uphold the constitution, which expressly prohibits the imposition by law of excessive punishment, we vacated the sentence and remanded the case for resentencing on an adequate record, including strict compliance with Article 894.1.
Our decision in such a case represents a finding of a substantial possibility that the sentence is excessive and not a final judgment that it is invalid.

Therefore, the failure to comply with the article does not automatically result in the finding of an excessive sentence. See State v. Smith, 430 So.2d 31 (La.1983); State v. Lanclos, 419 So.2d 475 (La.1982); State v. McElveen, 439 So.2d 601 (La.App. 1st Cir.1983); and State v. Vallare, 430 So.2d 1336 (La.App. 3rd Cir.1983).

The purpose of the article is twofold; first, to guide and assist the trial court in the exercise of its broad discretion regarding the imposition of a fair and proper sentence in a particular case, State v. Murdock, 416 So.2d 103 (La.1982) and State v. Douglas, 389 So.2d 1263 (La.1980); and second, to afford the reviewing court some insight into the trial court’s reasoning process, so that the propriety of the sentence can be better evaluated, State v. Robicheaux, 412 So.2d 1313 (La.1982) and State v. Price, 403 So.2d 660 (La.1981).

In State v. Landos, supra at pp. 477-78, the court held that “although Article 894.1 provides useful guidelines for the determination of the nature and length of a sentence, compliance with its provisions is not an end in itself, [citation omitted]” This matter was addressed in State v. Barge, 444 So.2d 735 (La.App. 5th Cir.1984). The defendant there did not contend that her thirty day sentence was excessive, but rather, that the trial court did not follow the guidelines of Article 894.1. Judge Gaudin noted that:

One of the prime purposes of Art. 894.1 is for appellate courts to know the judge’s reasoning so that the propriety of the sentence can be evaluated. However, unless it is argued that the sentence was excessive, it matters little, for appellate purposes, whether the trial judge fully articulated the listed aggravating and mitigating circumstances.

In summary, the recent jurisprudence suggests that Article 894.1 is a guideline to be used in sentencing a defendant and as an expression for the record to assist the reviewing court in its determination of the appropriateness of the sentence to the offense and offender. In short, it is a means, not an end. The allegation here that the trial court failed to comply with the guidelines of the article was not properly submitted for appellate review in the assignments of error. Conversely, the allegation of excessiveness of sentence was not argued in brief.

Notwithstanding the above deficiency, a review of the defendant’s sentence of two years as excessive will be discussed.

R.S. 14:67 stated in pertinent part that “[w]hen the misappropriation or taking amounts to a value of one hundred dollars or more, but less than a value of five hundred dollars, the offender shall be imprisoned, with or without hard labor, for not more than two years, or may be fined not more than two thousand dollars, or both.” The defendant Allen was sentenced to a term of two years at hard labor.

Article 1, Section 20 of the Louisiana Constitution states in pertinent part that “[n]o law shall subject any person ... to cruel, excessive or unusual punishment. ...” As a general rule a sentence is excessive if it is grossly out of proportion to the severity of the crime or it is nothing more than the purposeless and needless imposition of pain and suffering. See State v. Ratcliff, 416 So.2d 528 (La.1982); State v. Howard, 414 So.2d 1210 (La.1982); State v. Smith, 407 So.2d 652 (La.1981); and State v. Guiden, 399 So.2d 194 (La. 1981). Even though the sentence falls within statutory limits, it may be excessive. State v. Sepulvado, 359 So.2d 137 appeal after remand 367 So.2d 762 (La.1979).

La.C.Cr.P., Art. 894.1 sets forth the guidelines to be taken into consideration by a sentencing court so that the penalty is particularized to both the circumstances of the crime and the defendant’s background.

Here the trial court stated for the record that:

“The court had considered that presen-tence investigation as well as the guidelines in Article 894.1 of the Code of Criminal Procedure. Ma’am, you’ve been arrested eleven times as an adult, arrest for theft and shoplifting charges. Probation and parole records, you’ve been placed on active probation over and over again, suspended sentence, suspended conditions of probation. Eventually, secured another arrest and conviction while on probation. Ultimately, terminated unsatisfactorily at a Rule to Show Cause why her probation should not be revoked held on February 12th, 1981.
Ms. Allen, I'm not a psychiatrist. I’m not a social worker, so I don’t know all the ins and outs of why you do these things.”

The defendant then offered in mitigation that she is addicted to drugs and because of her criminal record had a difficult time securing employment. She also explained that she had attempted to get into the Half Way House, but to no avail. The defendant stated that she hoped to be admitted for rehabilitation.

The court continued:

“Well, you’re going to have an opportunity to do that if you behave yourself, you’ll be out fairly quick. It’s just that, you know, so far along the line your career has to stop and I think we’re going to put you on hold a while and I am not trying to fuss at you, I feel sorry for you, you know. They even tried to contact you, you were probably at home, they know you were behind the screen door. Nobody would say you were home and so forth and so on and these people were trying to help you.”

The report of the pre-sentence investigation reveals that the defendant has been arrested eleven times as a major with nine of the arrests being for theft and shoplifting. On two previous occasions, she was placed on probation but due to subsequent arrests and failure to comply with the special conditions, she was ultimately terminated and her probation revoked. Repeated attempts by the probation office to contact the defendant were unsuccessful.

The defendant’s attitude towards the court proceedings is reflected in her failure to appear as scheduled for trial on September 13, 1982, and again for sentencing on January 13, 1983. On both occasions, attachments were issued. Either she had a phobia about the number thirteen or she took a very nonchalant approach to her participation in the criminal justice system.

Although the trial court did not verbally apply each factor of Article 894.1 to the defendant, the facts, such as they are, and the defendant’s personal dossier clearly support the trial court’s sentencing choice of the maximum sentence. The trial court noted the single factor presented in mitigation, however, the inability to rehabilitate appears to be symptomatic rather than extraordinary in nature. The defendant has failed to establish a substantial possibility that her sentence was excessive.

State v. Murdock, 416 So.2d 103 (La. 1982) noted that the function of the reviewing court is not merely to substitute its judgment for that of the trial court, but rather, to determine if the lower court abused its broad sentencing discretion.

Our review of the record strongly convinces us that the defendant’s sentence was not excessive. Her propensity to commit thefts and shoplifting likewise, convinces us that the defendant is in need of the correctional treatment as prescribed by the trial judge.

For the reasons assigned, the defendant’s conviction and sentence are affirmed.

AFFIRMED.


text:
    Reginald PELT v. GUARDSMARK, INC., et al.
    No. 83-CA-844.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 14, 1984.

      Gregory D. Frost, Lee, Greenfield & Frost, Baton Rouge, for plaintiff-appellant.
    Stephen R. Wilson, Keogh, Cox & Wilson, Ltd., Baton Rouge, Wayne J. Fontana, McGlinchey, Stafford, Mintz, Cellini & Lang, New Orleans, for defendant-appellee.
    Before CHEHARDY, BOWES and DU-FRESNE, JJ.
   DUFRESNE, Judge.

This appeal comes before us from a judgment of the district court on a consolidated action in tort and workmen’s compensation. The plaintiff, Reginald Pelt, filed a petition for damages against Alice Davis and her employer, Guardsmark, Inc. and a suit for workmen’s compensation benefits against his employer, Pullman-Kellogg Corporation. The district court, after a trial on the merits, rendered judgment in favor of defendants, and against the plaintiff based on the plea of prescription. The plaintiff has perfected this appeal and assigned the following specifications of error.

That the trial court erred in finding that plaintiff’s claims in tort and workman’s compensation had prescribed, for the following reasons:

1. The trial court erroneously required plaintiff to show, by a preponderance of the evidence, that his claim had not prescribed.
2. The trial court was manifestly wrong in finding that plaintiffs claim had prescribed, in that it ignored all of the objective evidence on point, and chose to rely on the statements of defendants’ employees.
3. The trial court erred in not finding that the St. Charles Parish Clerk of Court had possession of the petition on February 4, 1981, and, therefore, that this suit was filed timely.
4. The trial court failed to recognize that plaintiffs workmen’s compensation claim had not prescribed under the “development of the injury” rule.

On appeal, we shall segregate and resolve the two causes of action: (1) tort, and (2) workmen’s compensation.

(1) Tort Action

This case has its genesis sometime in early February, 1980. The plaintiff, Reginald Pelt, was employed by Pullman-Kellogg Corporation as a pipefitter at the Shell Refinery in Norco, Louisiana. The plaintiff arrived at the plant and reported for duty at approximately 6:20 A.M. Shortly thereafter, he began walking into the plant. At the same time, defendant, Alice Davis, who was on duty at the plant and working under the employ of the defendant, Guards-mark, Inc., was seated in her van facing away from the plaintiff. After completing the conversation she was having with a fellow employee outside of the van, she proceeded to make a U-turn in order to head towards the gate through which the plaintiff had just entered. At about the time she completed the U-turn, her vehicle struck the plaintiff.

At trial, Mrs. Davis admitted that she was in a hurry, had been talking to her passengers, and did not see the plaintiff until her vehicle struck him.

At the time of the accident, plaintiff was not aware that he had been injured. In fact, he repeatedly told Mrs. Davis that he was unhurt. However, some two to three days following the accident, he began to experience headaches and cervical pain. He reported to the Pullman-Kellogg first aid station, complaining of those symptoms. Thereafter, on February 26, 1980, he first went to see Dr. John Fraiche, and began a series of visits and treatments which lasted over nine months.

Plaintiff worked a full day on the date of the accident and on the following day. From that time on, plaintiff had increasing difficulty with his neck and with headaches, but continued to work for Pullman-Kellogg Corporation until April 10, 1980. At that time, he began to work at BASF Wyandotte, both because he thought that the work would be easier (i.e., less aggravating to his condition) and because it was closer to his home in Baton Rouge. Prior to his leaving Pullman-Kellogg, he had missed some 97 hours of work as a result of his injuries.

The plaintiff worked for BASF Wyan-dotte until May 29, 1980, at which time he was laid off due to his inability to do certain job related activities. In the six to seven weeks at that employment, he had missed some 65 hours as a result of his injuries.

In the next three months, plaintiff was seen not only by Dr. Fraiche, but also by Dr. John Clifford and Dr. John Faser. His condition improved somewhat and, on October 6, 1980, he returned to work.

On February 5, 1981, suit was filed herein against Alice Davis, Pullman-Kellogg Corporation, and Guardsmark, Inc. In his petition, the plaintiff alleged that the accident occurred on February 11, 1980. The defendants responded to plaintiff’s suit with exceptions of prescription, contending that the accident actually happened on February 4, 1980. On July 1, 1981, a hearing was held on those exceptions, but the matter was held open for the taking of the deposition of defendant, Mrs. Davis. On September 10, 1981, the trial court rendered judgment denying the exceptions of prescription as to both the tort and workman’s compensation suit.

On June 28, 1983, trial on the merits was had herein. Following that trial, on September 12, 1983, the trial court rendered judgment, dismissing plaintiffs claims, both in tort and in workman’s compensation. On September 29, 1983, a motion for a new trial was denied and on November 7, 1983, the trial court granted the instant appeal.

The trial judge, in his reasons for judgment stated the following:

“This court stated its position clearly— That it was necessary that plaintiff prove his case by a preponderance of the evidence on the trial on the merits. This he has failed to do.
I find that the burden of proof as explained by this court was not met by plaintiff relative to any tort and/or workmen’s compensation claim. All of the facts point out that prescription has run on the claim, which is to be filed within one (1) year.”

We agree with the trial court with respect to the issue of prescription regarding the tort suit against Alice Davis and Guardsmark, Inc. The record reveals that the alleged cause of action occurred more than one year prior to the commencement of this action. After carefully reviewing evidence in the record, there is sufficient legal certainty to logically conclude that the cause of action in tort arose at least several days before the disputed 11th of February, 1980. In fact, the overwhelming evidence points toward the date of February 4, 1980.

Examination of the record in the instant matter reveals that the only evidence that the accident occurred on February 11,1980, (rather than February 4, 1980) is the testimony of plaintiff himself, either coming directly from plaintiff, or appearing in documents which he himself prepared or gave information for preparing. Plaintiff argues that of the seven people to testify on the issue of prescription, that John Fraiche, was the only “truly impartial person” to testify. The deposition of Dr. John Fraiche appears twice in the record. A simple review of this deposition reveals the obvious fact which almost begs the question. The only information which Dr. Fraiche had about the date of the accident is that which was told to him by the plaintiff, making any testimony by Dr. Fraiche a simple repetition of what he had been told at some point in time by the plaintiff himself.

The only evidence that the accident in question occurred on the 11th rather than the 4th of February is the testimony of the plaintiff. We must consider the evidence to the contrary. Mr. John Copeland testified that the accident occurred on February 4th, on a Monday morning in 1980. He later admitted that he had no independent recollection that it was exactly on the 4th but that it was on the Monday following the first weekend in February. He also confirmed that he was in the van along with a Mr. Kars, a Mr. Bass and the driver, Ms. Alice Davis. Mr. Donald Kars testified that the accident definitely happened “the first weekend in February”. The uniform testimony of Messrs. Copeland and Kars and Ms. Davis was that Mr. John Bass was also in the van on the date of the accident. Mary Jane Falcon, a secretary with Guardsmark, whose job involved keeping payroll and time records for Guardsmark employees, testified that Mr. John Bass was getting off of work at 5:30 a.m. on the 4th of February (as was Mr. Copeland and Mr. Kars). The records further reveal that Mr. Bass did not get off or arrive at work early in the morning on the 11th of February one week later, but in fact he did not start to work until 6:00 p.m. in the evening of February 11th. The testimony of Ms. Alice Davis further confirmed that this particular combination of individuals, Mr. Copeland, Mr. Bass and Mr. Kars, never again after February 4, 1980, rode in her van together.

As pointed out by the trial judge in his opinion: “All of the facts point out that prescription has run on the claim ...” or obviously the trial judge was not impressed with the testimony of the plaintiff on the issue of the date of the accident. The overwhelming evidence points to an occurrence date of February 4, 1980. The trial judge felt that all facts pointed to this date.

The standard of review by this court of such a finding is that the appellate court should not disturb the finding of the trial court unless it is clearly wrong. This court should determine whether the district court judgment is clearly wrong considering all the evidence, Canter v. Koehring Company, 283 So.2d 716 (La.1973) and it’s progeny.

Furthermore, where there exists a conflict in testimony, reasonable evaluations of credibility and reasonable inferences of fact made by the trial judge who had an opportunity to hear and see the witnesses testify, should not be disturbed upon appeal in absence of manifest error, Arceneaux v. Domingue, 365 So.2d 1330 (La. 1978).

Plaintiff has further urged that the prescription argument of the defendant has no merit since the St. Charles Parish Clerk of Court had possession of his petition on February 4, 1981, and that his suit was filed timely. We must agree with the trial judge’s conclusion that this argument is totally without merit. The record reveals that the petition was filed with the Clerk of Court’s office on February 5,1981. Article 253 of the La.Code of Civil Procedure requires that “all pleadings or documents to be filed in an action or proceeding instituted or pending in a court, and all exhibits introduced in evidence, shall be delivered to the Clerk of the Court for such purpose.” Actual delivery must be made to the Clerk of Court and no provision is made for deposit with the U.S. Post Office. Plaintiff further argues that the Clerk of Court acted improperly, since he picks up his mail only once a day, around 8:30 in the morning. The plaintiff has not produced any positive evidence that his petition arrived at the Post Office on February 4, 1981.

The plaintiff or anyone who has pleadings or documents to file with the Clerk of Court has a responsibility to deliver said files to the Clerk’s office. It is not the obligation of the Clerk of Court to seek out and file documents. As announced in Squatrito v. Barnett, 338 So.2d 975 (La. App. 4th Cir.1976) at 977:

“A party obliged to file a pleading within a time limitation must insure actual delivery, since it is the time when the Clerk receives actual delivery which determines whether that pleading has been timely filed.” (Emphasis ours)

After reviewing the totality of the evidence, we find no error in the trial court’s conclusion and judgment. The evidence is sufficient to clearly support the finding that the plaintiff’s tort suit is prescribed. The accident happened on February 4, 1980, and this lawsuit was filed on February 5, 1981, which is one day late.

(2) Workmen’s Compensation

Addressing the issue of prescription in a workmen’s compensation LSA-R.S. 23:1209 is germane. This statute reads as follows:

“In case of personal injury including death resulting therefrom, all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident 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 cases 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). Also, when the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident” (Emphasis ours)

Utilizing the “Development of the Injury” Rule, the plaintiffs suit for workmen’s compensation is timely, consequently we reverse the trial court on this issue.

In Faucheux v. Hooker Chemical Corporation, 440 So.2d 1377, (La.App. 5th Cir. 1983) this court recently faced a situation which was conceptually similar to the one at issue herein. That is, in Faucheux, the plaintiff was injured on June 29, 1979. As a result of his injury, he missed some seven days of work, then returned but was given no duty. Some two weeks later, he returned to his previous job. Thereafter, he realized that he had developed an emotional problem as a result of the injury, and discontinued working on July 31, 1979. On September 15, 1979, his employment was formally terminated. Suit was filed on August 22, 1980. In addressing the issue of prescription, Judge Currault noted as follows at page 1379:

“More than one year had elapsed between the accident and the date the suit was filed; however, since the injury herein did not develop immediately, the issue must be resolved under the ‘development of the injury’ rule.
In determining the date that the injury develops, the Louisiana Supreme Court stated in Wallace v. Remington Rand, Inc. [229 La. 651,] 86 So.2d 522, 526 (1956): ‘Development as applied to a compensation injury, signifies something more than occurrence and pain. It connotes the time when disability to perform work becomes manifest either to the injured employee or his employer.’ ... In Bolden v. Georgia Casualty and Surety Company, 363 So.2d 419 (La.1978), the Louisiana Supreme Court further discussed the holding in Wallace as follows: ‘In context, this statement in Wallace was primarily applicable to the case of the retained employee, who continues to work with symptoms which might have been held to be disabling (if litigated) but which did not become manifestly disabling to the employee until he was forced to quit his work. We held that disability did not become manifest or “develop” until that date, because to select an earlier date “would be dealing in conjecture”, 86 So.2d 525.
‘In subsequent jurisprudence applying Wallace, the intermediate courts, in overruling pleas of prescription, held that the injury or disability did not “develop” until the employee actually becomes unable to perform his former duties. This test is appropriate when, under the facts, the issue is whether the injured employee who returns to work is disabled at some conjectural time before the day when he actually is unable to continue at work due to his disability.’
Thus, when the employee returns to work, but is forced to terminate his employment because of the injury, prescription begins to run from that date.” 440 So.2d, at 1379 through 1380 (citations omitted)

In the present case, the accident took place on February 4, 1980, but the plaintiff was not seriously affected and did not seek first aid for two or three days. He continued to work for Pullman-Kellogg Corporation until April 1980, and a subsequent employer until May 29, 1980.

This suit was filed on February 5, 1981, which is only one year and one day from the date of the accident. The record reveals that the plaintiff did not even complain of his injury for two or three days. By application of R.S. 23:1209 and the development of injury rule as contained in Faucheux v. Hooker Chemical Corporation, supra and the cases cited therein the plaintiff’s workmen’s compensation claim had not prescribed when suit was filed on February 5, 1981.

Having concluded that the. plaintiff’s claim is not prescribed, we must now review the record to determine whether he is entitled to workman’s compensation benefits. Mr. Pelt was involved in an accident on the premises of his employer and was in the course and scope of his employment at the time. Plaintiff is entitled to benefits for the period February 4, 1980, through July 30, 1980. During the period from February 4, 1980, to May 29, 1980, the plaintiff continued to work, but was partially disabled and as a result of this disability is entitled to recover the sum of $1,252.55, as per the formula contained in R.S. 23:1221(3). From May 29, 1980, through July 30, 1980, (9 weeks) when he was instructed by Dr. John Fraiche not to work at all, he would be entitled to the maximum allowable benefits for temporary total disability of $163.00 per week or $1,467.00. Since Dr. Fraiche advised the plaintiff that he could return to work as July 30, 1980, his benefits would cease as of this time.

Further, plaintiff is entitled to recover medical expenses incurred herein as a result of his injury totalling $1,122.44.

Judgment is hereby rendered in favor of plaintiff and against defendant, Pullman-Kellogg Corporation to provide workmen’s compensation benefits to be paid for partial disability under R.S. 23:1221(3) from February 4, 1980, to May 29, 1980, for a total of $1,252.55, and for temporary total disability benefits from May 29, 1980, to July 30, 1980, for a total of $1,467.00, and medical costs and expenses of $1,122.44, together with legal interest from the date the above amounts were due until paid. Penalties and attorney’s fees are denied. Costs of this appeal are to be paid by defendant, Pullman-Kellogg Corporation.

Accordingly, the judgment of the trial court dismissing the plaintiff’s tort action is affirmed. The judgment of the trial court dismissing the plaintiff’s workman’s compensation suit is reversed and judgment is rendered in favor of plaintiff, and against Pullman-Kellogg Corporation for workmen’s compensation benefits.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.