author: WARD, Judge. PER CURIAM.

text:
    Rhonda BROOME v. Wendell H. GAUTHIER and State Farm Fire & Casualty Company. Margaret BARBER, Richard T. McGawley, Karen A. Randazzo and L. Robin Capozzi Waddell v. Wendell H. GAUTHIER and State Farm Fire & Casualty Company.
    Nos. CA-0709, CA-0710.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 1983.
    Rehearing Denied Jan. 25, 1984.
    Writ Denied Feb. 16, 1984.

      Gregory P. Di Leo, New Orleans, for plaintiffs-appellees, Margaret Barber, Richard T. McGawley, Karen A. Randazzo and L. Robin Capozzi Waddell.
    Uhalt & Reck, Gothard J. Reck, Hugh C. Uhalt, New Orleans, for plaintiff-appellant, Rhonda Broome.

      Porteous, Hainkel, Johnson & Sarpy, David J. Mitchell, New Orleans, for defendants-appellants, Wendell H. Gauthier and State Farm Fire & Cas. Co.
    Before WARD, GULOTTA and BYRNES, JJ.
   WARD, Judge.

These two consolidated lawsuits arose from a fire that began in rented residential premises in New Orleans at 4219 Canal Street and spread to the building at 4217 Canal Street. Plaintiff, Rhonda Broome, was the tenant of 4219 Canal Street. She filed suit against the owner-lessor, Wendell Gauthier, and his insurer, State Farm Fire and Casualty Company, to recover for property damage, physical injury, and mental suffering. Gauthier also owned the premises at 4217 Canal Street, which were damaged by the fire, and four tenants of that building, Margaret Barber, Karen Randazzo, Richard T. McGawley, and L. Robin Capozzi Waddell, filed suit against Gauthier and State Farm to recover for their property damage and the mental suffering each sustained. In the Broome suit, State Farm reconvened, alleging Broome’s negligence as the cause of the fire and claiming subrogation rights for the amount it paid to Gauthier and its insured for his property losses from the fire.

Counsel for Barber, Randazzo, McGaw-ley, and Waddell moved to consolidate their suit with Broome’s. The motion was granted and the consolidated cases were tried before a jury. At the close of the defendant’s evidence, all plaintiffs moved for a directed verdict. On the issue of liability, the Court granted the Motion of Barber, Randazzo, McGawley, and Waddell, holding Gauthier and State Farm liable for their losses. Broome's motion for a directed verdict was denied. Broome, as a defendant in reconvention, then moved for a directed verdict and this motion was granted because the Trial Judge found that State Farm had not proven that she was negligent. The Judge then explained to the jury that because he had granted a directed verdict for plaintiffs on the issue of liability in the Barber, et al. case, the only matter left for their determination in that case would be the amount of damages. Thereafter, however, counsel for plaintiffs in Barber, et al. discovered an important procedural oversight: neither plaintiffs nor defendants in that case had requested a jury trial. Thus, counsel for Barber, et al. argued that damages should be decided by the Trial Judge. Over the strenuous objection of defendants, the Trial Judge instructed the jury that they were only to consider the case of Broome v. Gauthier and State Farm. He then struck the jury in the Barber, et al. case and decided the issue of quantum.

In Rhonda Broome v. Wendell Gauthier and State Farm, the jury rejected Broome’s claims and she has appealed. In Margaret Barber, et al. v. Wendell Gauthier and State Farm Fire and Casualty Company, Gauthier and State Farm have appealed the Trial Judge’s directed verdict against them.

THE JURY REQUEST

For the purposes of this opinion, we find it best to first consider Gauthier and State Farm’s appeal and their contention that the Trial Judge erred when he struck the jury in Barber, et al. Gauthier and State Farm concede that neither they nor Barber, et al., requested trial by jury. They nonetheless contend that a jury request was implied when counsel filed the motion to consolidate Barber, et al. with Broome v. Gauthier in which a jury had been requested. We, however, do not believe that a motion to consolidate a non-jury case with a jury case is equivalent to a request for a jury trial.

Louisiana Code of Civil Procedure, Article 1732, provides that a request for trial by jury must be made not later than ten days after service of the last pleading directed to an issue triable by a jury. While a request may be included in the body of a petition or answer, see Trichel v. Caire, 395 So.2d 952 (La.App. 2nd Cir.1981) writ denied 300 So.2d 623 (La.1981); Guilbeau v. Mires, 263 So.2d 903, 262 La. 596 (La.1972), no particular format is required for a request, but it must be clearly indicated that a party desires a trial by jury. See Guilbeau v. Mires, supra.

A motion to consolidate does not suffice. Consolidation of actions is a procedural convenience designed to avoid multiplicity of actions. It does not cause a case to lose its status as a procedural entity during the trial. Howard v. Hercules-Gallion Co., 417 So.2d 508 (La.App. 1st Cir.1982). After consolidation each case must be procedurally correct. Rights peculiar to one case do not become applicable to a companion case by the mere fact of con-. solidation. Howard v. Hercules-Gallion Co., supra; Williams v. Scheinuk, 358 So.2d 340 (La.App. 4th Cir.1978); Burke v. State Farm Mutual Insurance Co., 234 So.2d 432 (La.App. 1st Cir.1970). Moreover, a motion to consolidate a non-jury case with a jury case results in a bifurcated trial, one tried by jury and the other by judge. Deville v. Town of Bunkie, 364 So.2d 1378 (La.App. 3rd Cir.1978), writ denied, 366 So.2d 564 (La.1979); Thorton v. Moran, 348 So.2d 79 (La.App. 1st Cir.1977) writ refused 350 So.2d 897, 898, writ denied 350 So.2d 900 (La.1977). In this instance, because there was no request for trial by jury, the Barber, et al. case was in the correct procedural posture to have been tried before the judge in a bifurcated trial.

Defendants also argue that objection to the jury trial was waived when counsel for Barber, et al. proceeded with the trial before the jury. They point out that Code of Procedure Article 964, which provides a procedural vehicle to strike a demand for trial by jury, also limits the time for filing this motion, and, they argue that in all events, the motion must be filed before trial. That Article, however, presupposes a demand has been made for trial by jury. In the Barber, et al. case no such demand was made. A motion to strike was unnecessary because at that time neither plaintiffs nor defendants were entitled to trial by jury. C.C.P. Art. 1732. Any jury verdict would have been of questionable validity. We believe the Trial Judge was correct when he refused to submit the question of damages to the jury.

THE DIRECTED VERDICT

The Trial Judge rendered a directed verdict on the issue of liability in favor of Barber, et al. at a time when he and all parties believed trial by jury was proper. Gauthier and State Farm argue that the Trial Judge erred and they maintain that the evidence will not support a directed verdict because reasonable men and women could disagree.

We have previously determined that the Trial Judge was the proper fact-finder, not the jury. Because of this, we conclude that the standard of review which defendants urge is not appropriate. Although he directed a verdict, the Trial Judge did so after presentation of all the evidence, and his judgment granting a directed verdict is more properly viewed as a judgment on the merits in a non-jury case. Therefore, the appropriate standard of review is not that applied to directed verdicts as urged by defendants, but rather is the standard applied to a finding of fact in a non-jury case: Are those factual findings manifestly erroneous? We believe they are not. For the reasons we will not discuss, we hold the Trial Judge’s finding that Gauthier and State Farm are liable to Barber, et al. is not manifestly erroneous.

LIABILITY IN BARBER, ET AL.

The Trial Judge found that Barber, et al. were entitled to judgment under Louisiana Civil Code Article 2695 which provides:

The lessor guarantees the lessee against all the vices and defects of the thing, which may prevent its being used even in case it should appear he knew nothing of the existence of such vices and defects, at the time the lease was made, and even if they have arisen since, provided they do not arise from the fault of the lessee; and if any loss should result to the lessee from the vices and defects, the lessor shall be bound to indemnify him for the same.

Ordinarily, for a lessee to recover damages from his lessor because of an alleged defect or vice in leased premises, the lessee must meet the burden of proving by a preponderance of the evidence that there was a defect or vice in the premises and that the defect or vice caused the damages or losses. Latham v. Aetna Casualty and Surety Company, 377 So.2d 350 (La.1979). Where a plaintiff can establish that the fire started in property owned by the defendant, but not occupied by the plaintiff, the burden of proof shifts to the owner to exculpate himself. Keller v. Kelley, 378 So.2d 1006 (La.App. 4th Cir.1979) writ denied 380 So.2d 624 (La.1980). The Trial Court found the case of Keller v. Kelley, supra, to be controlling because uncontested evidence established that the fire started in the apartment of Rhonda Broome and not in the building occupied by plaintiffs Barber, et al.

However, we question whether the tenants of 4217 Canal Street may base their action on C.C. Art. 2695. We interpret that Article to provide that the lessor guarantees the lessee against all vices and defects of the thing leased. The defect in this case is alleged to have been in the building leased to Rhonda Broome and not within the building leased to the tenants of 4217 Canal Street. Because the alleged defect is not within the thing leased to the tenants of 4217 Canal Street, their action would seem to be more appropriately based either on Civil Code Article 660 or 2322. Article 660 provides:

“[t]he owner is bound to keep his buildings in repair so that neither their fall nor that of any part of their materials may cause damage to a neighbor or to a passer-by. He is answerable for damages caused by his neglect to do so.”

Civil Code Article 2322 also seems applicable and provides:

“[t]he owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice in its original construction.”

Nevertheless, we find the case of Keller v. Kelley to be controlling because in that case the fire did not begin in the thing leased to the plaintiff, but began in one of several other apartments of which the defendant was the lessor, and the alleged fault of the lessor was based on faulty materials; a vice encompassed within the meaning of Civil Code Articles 660 and 2322.

Additionally, in the instant case, we find the relationship of the parties to be significant. Gauthier was the owner-lessor of the building in which the defect allegedly existed as well as the owner-lessor of the adjacent building at 2317 Canal Street. In Toussant v. Guice, 414 So.2d 850 (La.App. 4th Cir.1982), plaintiffs sued for damages sustained when a fire that began at the defendant’s house spread to the neighboring house owned by the plaintiffs. This Court held that Keller v. Kelley was not applicable because the parties had no other relationship than that of ordinary adjacent landowners. In reference to Keller v. Kelley, this Court stated:

Keller is inapposite to the present case. There, the extraordinary burden of proof was imposed upon the defendant solely by virtue of the contractual relationship between defendant and plaintiff as lessor and lessee. That relationship carries its own special duties and obligations which do not apply to the relationship between ordinary adjacent landowners.

The parties in the instant case are not ordinary adjacent landowners: plaintiffs and the defendant have the contractual relationship of lessee and lessor, which “carries its own special duties and obligations.” Thus, we conclude that Keller v. Kelley is applicable to the instant case.

The Trial Court found that the owner, Gauthier, had not shown by a preponderance of the evidence that the fire was not his fault. We have reviewed that finding to determine if it is manifestly erroneous and conclude that it is not.

The record shows that Gauthier and State Farm offered the testimony of two experts as to the cause of the fire. Mr. George Hero was qualified as an expert in electrical and mechanical engineering and the causation of fires. Mr. Hero candidly admitted that he was unable to discover the cause of the fire, although he was convinced that the fire originated in the living room of 4219 Canal. On cross examination, Mr. Hero stated that his investigation was hampered by the condition of the premises after the fire which could have rendered certain defects undiscovera-ble. Although he disagreed with various theories offered by plaintiffs experts, he did not present evidence of a cause independent of the owners fault. Mere disagreement with plaintiffs theories is not sufficient to exculpate the owner under Keller v. Kelley, supra.

The defense also offered the testimony of Harold Myers, a mechanical engineer who qualified as an expert in the field of origins and causes of fires. Mr. Myers was of the opinion that the fire began in the couch in Broome’s living room. He offered no opinion as to causation, however, and frankly admitted that he did not know what caused the fire. Like the testimony of Hero, much of Myer’s testimony consisted of disagreement with the various theories offered by plaintiffs’ experts. This disagreement is not sufficient to exculpate the owner because the plaintiffs were not required to establish a defect. In Keller v. Kelley, neither party could establish the cause of the fire and judgment was rendered in favor of plaintiffs on the ground that the owner had not exculpated himself. Keller v. Kelley does not require that plaintiff prove a defect, but rather that the defendant prove by a preponderance of the evidence that the fire was not caused by his fault or neglect. Because the defendant’s experts could not establish how the fire started, they could not establish that the cause was unrelated to the fault of the owner. There was much contradictory testimony as to where the fire began, but the weight of the evidence showing that the fire began somewhere other than in the couch, which was owned by Broome, supports the implied finding of the Trial Court that the fire originated in property owned by Gauthier. Thus, we find no manifest error in the holding of the Trial Court that Gauthier and State Farm failed to prove that the fire did not originate in Gauthier’s property or that the fire was not caused by the fault of the owner.

LIABILITY IN BROOME V.

GAUTHIER, ET AL.

Turning now to the first of these consolidated cases, Rhonda Broome v. Wendell Gauthier and State Farm Fire and Casualty Company, the jury returned a verdict in favor of defendants, finding that Broome had not proved the existence of a defect or negligence on the part of Gauthier. Because Broome lived in the apartment where the fire unquestionably began, she could not rely on the rule of Keller v. Kelley, and thus, was required to prove that a vice, defect, or the owner’s negligence caused the loss she incurred. Latham v. Aetna Casualty and Surety Company, supra. On appeal, Broome argues that the verdict in favor of Gauthier and State Farm was clearly contrary to the law and evidence presented at trial. For the following reasons, we affirm the jury verdict in part and reverse it in part.

Broome’s suit was based on strict liability under Civil Code Article 2695, supra, and on negligence under Civil Code Article 2315. Broome argues that the evidence proves that the fire began when gas leaking through a defective heater valve was ignited by the light switch on the wall in the living room. She also sought to prove the existence of statutory violations including improper placement of wall gas heaters, having a window, which was the alternate means of fire escape, bolted or otherwise sealed, and the absence of fire stops in a hollow beam which allegedly created a chimney effect that rapidly advanced the fire’s progress.

To prove there was a defective heater valve and that leaking gas was ignited by an electric light switch, Broome introduced the testimony of Norwin Galiano who was qualified as an expert in fire investigation. He was one of the first firemen to arrive on the scene shortly after the fire began. He concluded that the fire started in the electrical switch, but could not testify that the switch was defective. He noticed nothing unusual about the outside fuse box and admitted that the breakers in the fuse box were not tripped, which indicated to him that there had been no arc or shorting in the writing of the building. Although he noticed charred wood around the gas heater, he did not believe that the fire started there and did not testify that he found evidence of a gas leak.

Broome’s next expert was Joseph Lein-inger, an electrical engineer who specialized in determining the cause and origin of fires. He concluded that the fire began near the gas valve because of the heavy charring of the baseboards around the heater. He agreed with Galiano that a spark from the light switch could have ignited leaking gas which burned back to its source. On cross examination, Leininger stated that he found no evidence of an electrical shortage. He also admitted that he could not determine whether the valve was defective because of its melted condition after the fire, and he testified that no tests could be performed to determine if the valve was leaking at the time of the fire. Although various non-expert witnesses said that they heard an explosion in Broome’s apartment, Leininger found no evidence of an explosion. Mr. Meyers, one of the defendant’s experts, explained that there would have been an explosion if the fire had originated from leaking gas. However, neither he nor Mr. Leininger found evidence of an explosion. He attributed accounts of a loud noise to the normal roar of a fire or perhaps a smoke explosion. Hero, the other expert for the defense, was also of the opinion that there had been no explosion due to leaking gas.

The experts for the defense, Hero and Myers, found no evidence of an electrical shortage. Hero pointed out that the fire was within the room, rather than within the walls around the wiring. Myers was of the opinion that the fire began in the couch, due to the melted condition of the springs and heavy charring pattern above the couch, although he did not offer an opinion as to the probable cause of the fire. He attributed the heavy charring of the baseboards to the new varnish on the floors of the recently renovated apartment. He found no evidence that would indicate a defect in the heater.

We conclude that there was sufficient evidence to support the jury’s apparent rejection of Broome’s theory that the fire began when leaking gas was ignited by the electric light switch. Because of the inconclusive and- conflicting testimony of the experts, we cannot say that Broome proved a vice, defect, or negligence by a preponderance of the evidence regarding the heater or light switch.

We now review Broome’s argument that the evidence proved several statutory violations by Gauthier, which Broome argues, constitute negligence. In R.S. 40:1578.6, the Life Safety Code of the National Fire Protection Association (1976 edition) was adopted as a minimum safety standard. Section 11-6.4.1.1 of the Life Safety Code provides that “[n]o stove or combustion heater shall be so located as to block escape in case of fire arising from malfunctioning of the stove or heater.” Mr. Leininger testified that, should a heater malfunction near the corridor leading from the rear room of Broome’s apartment to the front porch, that corridor would be blocked as an escape route. Standard 11-6.4.1.1 is applicable “in case of fire arising from malfunctioning of the ... heater.” Broome did not prove a malfunction of the heater as a cause of the fire. The evidence only established that the fire began in the rear room. Thus, we find no manifest error in the jury’s determination that a violation of this standard did not contribute to Broome’s losses.

Broome alleges a statutory violation in the absence of fire stops in a hollow beam which allegedly allowed a chimney effect to rapidly advance the fire’s progress. Article 2526 of the Building Code of the City of New Orleans provides that “[f]ire-stopping shall be provided to cut off all concealed draft openings, and form an effective fire barrier between stories and between a top story and the roof space. It shall be used ... in all stud walls and partitions, including furred spaces, so placed that the maximum dimension of any concealed space is not over ten feet.... [and in] shafting which could afford a passage for flames.” Broome’s expert, Gali-ano, testified that the wall light switch was in a hollow beam lacking fire stops and that fire stops could have retarded the fire somewhat. Broome’s other expert, Lein-inger, also thought the regulation to be applicable to the hollow beam. Gauthier and State Farm’s expert, Myers, disagreed. He testified that fire stops were only required every ten feet and that, because the ceiling of Broome’s apartment was not more than ten feet high, stops were not required except between stories or between a top story and the roof space. Myers stated that there were fire stops at the floor and ceiling. The testimony of Myers constitutes a reasonable factual basis for the jury’s verdict in favor of defendant and, considering the conflicting interpretations of the standard which were presented to the jury, we cannot find that the jury’s application or interpretation of the standard is clearly erroneous.

The last defect alleged by Broome pertains to the lack of a second means of escape from her apartment. Section 11-6.-2.1.1 of the Life Safety Code provides that in any dwelling of more than two rooms, every bedroom and living room area shall have at least two means of escape. Section 11-6.2.2.1 requires that the second means shall be a door or stairway or “[a]n outside window openable from the inside without the use of tools_” Uncontradicted evidence shows that the window in Broome’s bedroom was nailed shut. A neighbor who rescued Broome, Julio Barquero, testified that hé and his brother broke three frames of glass in order to get Broome out of the apartment through the window. Broome sustained severe cuts on her right leg, which left scars the Trial Judge described as “quite noticable.”

We are unable to find any eviden-tiary basis for the jury’s rejection of the claim that the window was nailed closed and that it constituted a violation of the Life Safety Code which amounted to a vice, defect, or negligence which contributed to Broome’s damages. Accordingly, we reverse that portion of the jury verdict and hold that Broome is entitled to damages for losses which resulted from the violation of the Code.

QUANTUM IN BROOME

The record contains sufficient evidence to assess the damages attributable to the violation. See C.C.P. Art. 2164; Boyette v. Auger Timber Co., 403 So.2d 800 (La.App. 2nd Cir.1981), writ denied 407 So.2d 731 (La.1981). Medical bills incurred by Broome amounted to three thousand, four hundred and seventy-six dollars. ($3,476.00). She is entitled to an award of special damages in this amount. Broome’s plastic surgeon, Dr. Earl Peacock, testified that she will have a permanent scar on her right leg. As compensation for her disfigurement, pain and suffering, Broome is entitled to an award of general damages in the amount of seven thousand, five hundred and no/100 ($7,500.00) dollars. See Bacile v. Parish of Jefferson, 411 So.2d 1088 (La.App. 4th Cir.1981) writ denied 415 So.2d 950 (La.1982).

QUANTUM IN BARBER, ET AL.

The final issue for our determination is whether the Trial Court abused its discretion in its quantum awards to Barber, McGawley, Randazzo and Waddell. An appellate court may disturb a damage award on appeal only where an abuse of discretion is apparent on the record. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976).

The Trial Judge’s assessment of each plaintiff’s damages is explained in his extensive reasons for judgment:

The petitioners’ testimony regarding their property damages and accompanying mental anguish was totally uncontested and unimpeached. Each of the petitioners offered proof, in the form of detailed property lists, of the items that each lost in the fire. Each petitioner offered two lists, one indicating actual purchase prices of the items at the times and places of the purchases, and the other stating the present replacement costs at the time of trial of those same items. Each petitioner testified as to the accuracy of his list. It is noted that at no time did the defendants challenge the contents of the lists with any rebuttal or impeachment evidence.

All of the lists of petitioners indicated contents of household furniture, personal items and some items of great sentimental value. Each of the four petitioners lost virtually all he or she had to his or her name.

The first petitioner to testify was Robin Capozzi, who stated that she is a student worker, who lost approximately $9,705.30 in property at its replacement cost. The greater part of Ms. Capozzi’s loss consisted of new clothing. However, she also testified as to the loss of an antique French dictionary and her wedding pictures, which were worth more to petitioner than their replacement costs, since they were irreplaceable.

The second petitioner to testify was Mrs. Margaret Barber, the oldest of the four petitioners, a secretary, who lost virtually all she owned in the fire, amounting to approximately $24,420.00 at the replacement cost. Her property included household goods, china, crystal and her largest loss, sterling silverware. The existence of the silver, as well as that of other items, was corroborated by another witness, petitioner Robin Capozzi, who used to help Mrs. Barber polish the silver. Exhibits of remaining china, crystal and silver were offered into evidence, whose costs were supported by testimony and price lists.

The third petitioner to testify was Mr. Richard T. McGawley, a stock boy at a local grocery store. He lost approximately $4,600.00 in property at its replacement cost. Clothes and a new stereo made up the bulk of Mr. McGawley’s property loss. His losses were also corroborated by the other witnesses.

The fourth petitioner to testify was Karen A. Randazzo, a school teacher, who, like the other petitioners, lost all she had in the fire, amounting to $7,995.00 at the replacement cost. Furniture and clothing made up most of her loss. Her losses were also corroborated by other witnesses. Like the other petitioners, Ms. Randazzo lost items which were virtually priceless and of great sentimental value. Through her testimony and corroborative testimony she, like the other petitioners, established her mental damages.

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Depreciation should play no part in petitioners’ award. There is no mechanical rule which can be applied with exactitude in the assessment of property damage. Each case must rest on its own facts and circumstances as supported by proof in the record. Kalmn, Inc. v. [Empiregas] Empiregos Corp., 406 So.2d 276 (La.App.3d Cir.1981). What is more important in the Court’s determination to take the petitioners’ property loss at their replacement costs was that the defendants offered no proof whatsoever as to what reasonable depreciation costs would or should be. Given the circumstances of the evidence as presented, the plaintiffs should be awarded the estimated replacement costs of the lost property.

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This Court, while specifically aware of the weight of jurisprudence denying a petitioner damages for mental anguish due to property loss is of the opinion that the instant case is one deserving more careful analysis than an automatic denial of such damages. This is not a case of mental anguish unsupported by any substantial evidence as was in Perez v. Allstate Insurance Company, 407 So.2d 512 (La.App. 4th Cir.1981). Nor is this case one of normal or minimal worry or inconvenience to the petitioners as a consequence of their property damages as was in Farr v. Johnson, [308 So.2d [884] 804 (La.App. 2d Cir.1975), writ denied, 315 So.2d 143 (La.1975).] Damages for mental anguish are recoverable in tort actions. Gele v. Markey, 387 So.2d 1162, (La.1980). The facts in evidence justify an award for emotional distress and mental anguish suffered by each of the four petitioners by reason of witnessing their belongings burn and subsequently trying to resume a normal life without those belongings. Jackson v. International Paper Company, 163 So.2d 362 (La.App. 3d Cir.1964); Jackson v. United States Fidelity & Guaranty Company, 382 So.2d 223 (La.App. 3d Cir.1980). After scrutinizing carefully the evidence in support of each petitioner’s claim, the Court is of the opinion that mental damages are appropriate in the instant case. Damages for mental suffering are compensable, but due to its nebulous character, the Court must proceed with the utmost caution and scrutinize carefully evidence in support of such a claim. However, the danger of denying recovery to a deserving claimant must be guarded against with equal enthusiasm. Jackson v. United States Fidelity & Guaranty Company, supra. These petitioners are such deserving claimants.

There are three reasons why this Court awards mental damages to these petitioners who suffered only property damages.

First, these petitioners’ properties were damaged by acts giving rise to strict liability. Such a situation makes their award for mental damages allowable. Farr, supra.

Second, these petitioners were all eye witnesses to their losses. All four of them were within feet of the fire, which consumed all they owned. This is also a legal basis for allowing mental anguish for property loss. Farr, supra. See also, [First of Georgia Insurance Company v. Cohen, 398 So.2d 1209 (La.App. 4th Cir.1981).] No expert testimony is needed to corroborate the losses suffered when one witnesses his entire stock in life being swept away forever, while left standing only in his night clothes, helpless against the onslaught of the fire’s rude awakening. Nor is expert testimony needed to corroborate the loss one would necessarily feel in trying to pick up the pieces of a life shattered by losing everything one owned. These losses were far greater than mere inconvenience or normal worry. These four petitioners suffered real psychic trauma as a result of the fire. Each testified about the shock incurred during the fire and the anguish suffered for months afterward.

Third, each petitioner’s loss involved certain irreplaceable items and circumstances which require compensation in addition to the replacement cost of the goods lost. Margaret Barber lost her wedding silver. She also lost the china place servings left to her at her mother’s death. Great sentimental value was involved. Moreover, Mrs. Barber, of advancing middle age, and having a pre-existing nervous condition, corroborated by other testimony, suffered and continues to suffer from the anguish produced by sleepless nights. Mrs. Barber testified that she often had nightmares about the fire. Since such misery is beyond normal worry or inconvenience, Mrs. Barber suffered real psychic trauma. Such a loss is compensable.

, Karen A. Randazzo, in addition to mental losses, previously mentioned, lost three irreplaceable items of great sentimental value. Ms. Randazzo, who lost her mother at a tender age, was left with only three remembrances of her: A wedding picture and two antique lamps. This loss was also corroborated. No expert testimony is needed to further evidence the continuing loss which Ms. Randazzo felt, in that she lost all she had to remind her of her mother. Such misery is beyond normal inconvenience or minimal worry. Ms. Randazzo suffered a real psychic loss. Such a loss is compensable.

Richard T. MeGawley also suffered mental damages due to the fire. Medical records corroborated his testimony that Mr. MeGawley suffered two mental breakdowns in the year preceding the fire. The apartment he lived in was apparently the first place and time he was on his own since those breakdowns. The facts speak for themselves that a setback undoubtedly occurred to Mr. MeGawley because of his loss. This is also compensable.

Robin Capozzi testified as to her condition of shock during and after the fire, further corroborated by other witnesses. She, too, lost irreplaceable items, such as her own wedding pictures. More important, though, was the loss she sustained after the fire. Testimony was clear that Ms. Capozzi was without any family in the city and was working her way through school. Testimony indicated that this total property loss, in her situation, left her with a decreased sense of security, self-esteem, ambition and drive. This too, was corroborated by another witness. Ms. Capozzi testified that she had mid-term exams the day after the fire, which she missed. Ms. Ca-pozzi was required to move two to three times in the next six months because of the fire. She had no furniture nor money to buy furniture. She, therefore, had to resort to the charity of others to help her. For a number of weeks, she testified, she had to sleep on sheets because she had no bed. This hardship entails more than mere inconvenience or normal worry. Therefore, her loss is also compensable.

The testimony was undisputed that these fire victims suffered mental damages which are compensable in the eyes of the law. The scars left by such a fire are just as painful, although invisible, as if caused by the flames themselves.

For the above reasons, the Trial Court made the following awards:

For property damage:
Margaret Barber $24,420.00
Karen Randazzo $ 7,995.00
Richard MeGawley $ 4,600.00
Robin Capozzi $ 9,705.00
For mental damage:
Margaret Barber $ 8,000.00
Karen Randazzo $10,000.00
Richard MeGawley $ 7,000.00
Robin Capozzi $ 7,000.00

In sum, although mental anguish, pain, and suffering caused by loss of property is not usually compensable by an award of damages, damages may be awarded, as in this case, when an owner is present to see and experience the destruction of his property. First of Georgia Insurance Company v. Cohen, 398 So.2d 1209 (La.App. 4th Cir.1981).

We believe this adequately distinguishes those cases which deny compensation for mental anguish, pain and suffering resulting merely from a loss of property. The record clearly supports the Trial Judge’s Reasons for Judgment. We find that the awards do not constitute an abuse of the much discretion of the Trial Judge in assessing damages. Accordingly, the awards are affirmed.

The judgment in favor of the four tenants of 4217 Canal Street is affirmed. The judgment in favor of Gauthier and State Farm in the Broome case is affirmed in part and reversed in part. Rhonda Broome is hereby awarded $10,976.00 in special and general damages.

ON APPLICATION FOR REHEARING

PER CURIAM.

In an application for rehearing, Counsel for Rhonda Broome requests this Court to amend its judgment to provide for legal interest on the amount awarded Miss Broome in that judgment from the date of judicial demand until paid. He also seeks an assessment of court costs.

Although the judgment of this Court is silent regarding legal interest, La. R.S. 13:4203 provides that “[Ljegal interest shall attach from date of judicial demand, on all judgments, sounding in damages, ‘ex delicto’_” Interest attaches automatically until the judgment is paid in actions ex delicto whether prayed for in the petition or mentioned in the judgment. Thus, Miss Broome is entitled to be paid legal interest without a formal amendment of our decree. Steele v. St. Paul Fire & Marine Insurance Co., 371 So.2d 843 (La.App. 3rd Cir.1979). Therefore, the rehearing application filed on behalf of Miss Broome is denied.

Costs of the trial and appellate courts are to be paid by defendants, Gauthier and State Farm Fire and Casualty Company. See La.C.C.P. Arts. 1920, 2164 and Hall v. Mid-American Casualty Co., 413 So.2d 640 (La.App. 1st Cir.1982).

      . In her answer to State Farm’s reconventional demand, Broome had requested a jury trial. At the start of the case, however, Broome indicated that she wished to waive that right. Counsel for Gauthier and State Farm then requested a jury trial and paid the statutory jury fee pursuant to R.S. 13:3105.

      . Although Keller v. Kelley inadvertently cites Article 670, the quoted text of the Article referred to is that of Article 660. See 378 So.2d 1006, at 1008.

      . Broome alleges as error the district court’s failure to instruct the jury that the defendant’s violation of statutory safety standards was negligence per se or at least some evidence of negligence. We need not consider this assignment of error because even if the trial court erred in failing to give special instructions, this court is empowered to decide the case on the record. See Hebert v. Gulf States Utilities, 395 So.2d 832 (La.App. 1st Cir.1981). Broome also complains that the jury interrogatory dealing with defendant's strict liability failed to state all of her claims under C.C. Article 2695. Specifically, she complains of the omission of the word "vice” from the interrogatory which read, ”[W]as there a defect or vice in the property of defendant, Wendell Gauthier, and that said defect caused the damages to plaintiff, Rhonda Broome?" As with the assignment of error regarding improper instruction, we need not address this issue because even if error is found in the interrogatory, the appellate court may review facts in the record and affirm the verdict if it is consistent with the evidence. Andry v. Kinberger, 364 So.2d 613 (La.App. 4th Cir.1978). Plaintiff additionally argues that the jury was prejudiced by the cumulative nature of defendant's expert testimony. Cumulative evidence is that which goes to prove what has already been established by other evidence. Saia Motor Freight Line, Inc. v. Louisiana Public Service Commission, 248 La. 1, 176 So.2d 408 (La.1965). The record reveals that, although the testimony of the defendants second expert, Myers, was repetitive of Hero’s testimony to some extent, only Myers offered the opinion that the fire began in the couch. Thus, the admission of his testimony was within the discretion of the Trial Judge and does not constitute error.


source: Caselaw Access Project

author: LOBRANO, Judge.

license: Public Domain

text:
    Joseph N. LANDRY v. BILL GARRETT CHEVROLET, INC., et al.
    No. 13217.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1983.
    Writ Denied Feb. 10, 1984.
    Reconsideration Denied March 9, 1984.

      Val A. Schaff, III., Schaff & Currier, New Orleans, for appellee/plaintiff.
    Gerald M. Dillon, Dillon & Cambre, New Orleans, for defendant/appellant Bill Garrett Chevrolet, Inc.
    Peter L. Bernard, Jr., Joseph S. Palermo, Jr., Bernard, Cassisa, Babst & Saporito, Metairie, for defendants/appellants General Motors Corp. and Royal Globe Ins. Co.; Otis M. Smith, General Counsel, William J. Kemp, Jr., Nicholas J. Wittner, General Motors Corp., Detroit, Mich., of counsel.
    Before LOBRANO and WARD, JJ., and G. WILLIAM SWIFT, JR., J. Pro Tern.
   ON REMAND FROM THE SUPREME COURT

LOBRANO, Judge.

In our original opinion in this matter we held that a foundation must be laid prior to the introduction of hypnotically induced testimony. We also held that the trial court erred in deleting the word foreseeability from its charge on product’s liability and erred in admitting into evidence certain consumer complaints filed against General Motors concerning power steering problems in other vehicles. Landry v. Bill Garrett Chevrolet, Inc., et al, 430 So.2d 1051 (La.App. 4th Cir.1983). Because we felt that the hypnotism issue posed serious problems of credibility, we remanded the entire matter to the trial court in accord with the pronouncements of Ragas v. Argonaut Southwest Ins. Co., 388 So.2d 707 (La.1980). We did point out, however, in the conclusion of our opinion that “(W)ere we not faced with the issue of the hypnotically induced testimony of plaintiff, perhaps a remand would not be required for the other errors discussed herein.” Landry, id. at 1061.

On application for writs of review by both the plaintiff, Landry, and one defendant, Bill Garrett- Chevrolet, Inc. our Supreme Court held:

“Granted. The ruling of the Court of Appeal concerning the hypnotically-enhanced testimony is reversed, and the case is remanded to the court of appeal to decide on the merits on the record before it.” Citing Gonzales v. Xerox, 320 So.2d 163 (La.1975) Landry v. Bill Garrett Chevrolet, Inc., 434 So.2d 1103, 1105 (La.1983).

In so ruling, we must assume that our Supreme Court is of the opinion that a foundation is not necessary for the introduction of hypnotically induced testimony, and most definitely such testimony is not to be precluded as a matter of law as suggested by Judge Ward in his separate concurring opinion. With this ruling in mind, we now proceed to decide the merits of this appeal.

For the sake of continuity and clarity we shall restate the factual events leading to this action.

Plaintiff, Joseph N. Landry, (Landry), instituted these proceedings against defendants, Bill Garrett Chevrolet, Inc. (B.G.C.) and General Motors Corporation (GM) seeking recovery for personal injuries received in an automobile accident that occurred on July 20, 1976. The claim against B.G.C. is based on negligence, and the claim against GM is based on product’s liability. After a trial by jury, plaintiff was awarded damages in the amount of $1,948,547.00 against both defendants in solido. From this judgment both defendants have perfected this appeal. Plaintiff answered the appeal seeking an increase in the award.

On November 18, 1975, Landry and his wife, purchased a new 1975, Chevrolet Vega “Hatchback” from B.G.C. The automobile was for the principal use of Mrs. Landry, and was operated by the plaintiff on only one or two occasions. On the sixth week following the purchase of the vehicle, Mrs. Landry testified she experienced a problem with the steering of the automobile. She stated that on making a right turn into a driveway, the steering wheel in the automobile turned freely; made complete circles without having engaged the wheels of the automobile. She stopped the vehicle and turned the steering wheel until such time as the wheels did engage and responded to turning direction. She proceeded immediately to B.G.C. and made a complaint about the steering system. She further testified that she experienced the same phenomenon a second time on May 27,1976. At that time, she was turning off Interstate 12 onto the service road connecting with Interstate 10, when somewhere in the middle of the road, she again experienced free wheeling of the Vega automobile. She stopped the vehicle, flagged down a motorist, requested him to contact her daughter and to have her pick her up at B.G.C.’s place of business. She returned to the automobile and turned the steering wheel until such time as she was able to control the direction of the vehicle. She again went directly to B.G.C. by use of the emergency lane of the I — 10 system, and upon arriving at the dealer’s place of business, again, gave a complaint about the steering system.

On July 20, 1976 while driving the Vega for the first or second time, plaintiff sustained severe injuries when the vehicle crashed into the road divider and overturned at a point west of the crest of the I — 10 bridge over the Industrial canal. Plaintiff's version of the facts of the accident as testified by him at trial, are basically as follows: Upon leaving his home in Slidell and arriving at his daughter’s home on Chef Menteur Highway, he experienced no difficulty with the Chevrolet Vega. He then left his daughter’s home sometime after 9:00 A.M. and while proceeding onto Chef Menteur to its access with the 1-10, he experienced no difficulty with the automobile. Upon making a sweeping right-hand turn from Chef Menteur onto the access road of the I — 10 system, he stated he felt some odd sensation with the steering of the Vega. He did not know what had occurred, but at some point when he tried to correct or steer the vehicle to the right, he felt that the steering wheel had locked and that he had no control whatsoever. Mr. Landry continued driving the automobile, struggling with the steering wheel to correct the drift of the car, to keep it in the center lane of traffic, but was unsuccessful. From the time he noticed the locking of the steering wheel until he got beyond the crest of the bridge, the automobile had drifted from the center lane of traffic to the left hand lane of traffic. At some point west of the crest of the bridge, the automobile impacted into the road divider and turned over causing his injuries and a total loss of the automobile itself. This suit followed wherein judgment was rendered against GM and B.G.C., in solido, for $1,948,547.00.

For the following reasons, we reverse that judgment as to the liability of B.G.C., and affirm same as to GM, but with a reduction in the award.

Liability of General Motors

Louisiana law on products liability is best expressed by our Supreme Court in Hunt v. City Stores, Inc., 387 So.2d 585 (La.1980), as follows:

“Thus, under Weber [v. Fidelity and Casualty Ins. Co. of N.Y., 259 La. 599, 250 So.2d 754], the plaintiff in a products liability suit must only prove that the product was defective, i.e. unreasonably dangerous to normal use; that the product was in normal use at the time the injury occurred; that the product’s defect caused his injury, and that the injury might reasonably have been anticipated by the manufacturer.” Id. at 589.

Plaintiff testified that at or prior to going over the bridge above Chef Menteur Highway, his vehicle started edging slowly toward the left, and he was unable to turn it to the right. He described the problem, initially as “some odd sensation with the steering”. Eventually, after entering the interstate, plaintiff realized the sensation was a lock up of the steering and that he had no control whatsoever. The vehicle went from the center lane to the left lane, hit the divider and overturned.

Plaintiff alleges three theories as to the cause of the steering lockup. First, the spacing between the relay rod and the Embraces is such that a foreign object such as wood, rock, or other debris could become lodged thus jamming the steering. Second, there was foreign, metallic particles in the power steering system itself thus causing a lockup of the unit. Third, the adjuster plug was not properly bottomed, thus causing the worm gear to move in and out as it was rotating. This, he alleges caused a mechanical jamming, as opposed to a hydraulic locking. In support of these three theories, plaintiff relies on several experts. After a thorough review of all their testimony, the plaintiff’s case is best summarized by the conclusion of Dr. Brenner, who stated:

“It is an absolute certainty in my mind that there was steering lock up and that it was caused by one of three conditions, one being the steering relay rod problem. Another being the two issues associated with the steering gear. That is an absolute certainty in my mind.”
“I cannot say which scratch, which problem with the adjuster plug, which problem with the steering relay rod caused it, but everything which I have examined is completely consistent, nothing is counter to the conclusion that steering lock up occurred, that one of these factors caused the lock up ...”

Basically, plaintiff’s theory in this case is very similar to that expressed in the Second Circuit case of Hunt v. Ford Motor Co., 341 So.2d 614 (La.App. 2nd Cir.1977). That case involved an alleged steering lock up also, wherein the Court stated:

“It is not necessary for the plaintiff to prove the precise nature of the defect— only that a manufacturing defect existed and that it caused the accident. While there is no expert testimony pinpointing the defect, the defendant’s expert evidence ... does not negate the possibility of a defect which could have caused the steering wheel to hang up or freeze to a degree which could have caused Mrs. Hunt’s car to run off the road while in a passing manuever. The evidence of a manufacturing defect in the steering mechanism which caused the accident is sufficient to support the jury verdict.” Id. at 618.

Plaintiff’s theories were supported by the following testimony.

Dr. Lawrence Daniels, a mechanical engineer, testified that in his opinion “... something could have gotten caught between the relay rod and lower portion of the frame.” This would have made it most difficult to steer. He studied the blueprints of the suspension system on the Vega and concluded that where the relay rod passed between the oil pan and the frame, there was a clearance of about .63 inches. Further there was a distance of ⅞" to 1" between the rod and frame. He further testified that the photographs taken on May 28th and 29th 1980 indicated that at some time the relay rod had hit the oil pan as noted from a visible dent in same. Dr. Daniels’ testimony can best be summarized as follows:

“I’m not an accident reconstructionist. My opinion is simply that this could have occurred by something getting jammed within the steering mechanism.”

He suggested that the manufacturers should have designed a protective device to prevent the possibility of jamming.

Dr. Robert Brenner qualified as an expert in mechanical engineering, traffic engineering and safety engineering. In addition to confirming Dr. Daniels’ theory of the relay rod problem, Dr. Brenner suggested two other possible defects. First, he noted from rust marks located on the adjuster plug that it may not have been properly bottomed. This, he says, prevents the valve body and worm gear from operating as a solid shaft. Instead, the worm gear moves in and out (or back and forth) as it rotates. This can cause a mechanical binding of the gears. Other symptoms, including damage to the ballguides, and markings in the spool valve indicate a mechanical binding. Secondly he testified that the hydraulic pump was defective in that it did not provide positive methods to filter foreign material out of the system. The power steering system on the Vega has a magnet as opposed to a filter. Scratches in the power steering gear confirm contamination in the fluid which in turn gets to highly sensitive areas such as the spool valve and into various inlet parts that produces hydraulic binding.

Dr. E.C. Fitch, a professor at Oklahoma State University, testified that he was familiar with the Saginaw Power Steering system. He was qualified as an expert in the field of hydraulic engineering. He was retained to analyze the fluid recovered from the power steering unit after it was disassembled. His testimony reinforced the theory of contaminants in the hydraulic system. The net effect or result of contaminants in the system is a reduced flow of fluid. He went into much detail about the route of the hydraulic fluid in the steering system, and concluded that the contamination problem could be resolved by the manufacturer with the use of a filter. His conclusion was “... this contamination level that is in there, that there is no question that you could have a lock, contaminant lock in that power steering valve.” Although he admits that the Saginaw system is designed to continue operating if there is loss of hydraulic assist, conversely if there is hydraulic lock up in the steering check valve, it would be impossible to turn the wheel. You would tear the whole wheel up trying to fight this hydraulic pressure against the check valve.

Opposing plaintiff’s theories, GM offered the testimony of Dr. Henry Hicks and Alfred C. Drouillard. Dr. Hicks, who qualified as an expert in mechanical engineering, testified in opposition to the relay rod defect theory. He found no evidence of scratches, gouges or removal of paint which would indicate that something had jammed the relay rod. He discounted Dr. Daniel’s observation of the oil pan dent as not being indicative of the lodging of a rock or debris because the nick was covered with oil deposits. In further support of his conclusion, he drove a large wooden stick into the space between the relay rod and cross members of a similar 1975 Chevrolet Vega. He then drove the vehicle through the accident scene. His conclusion was simple, it was not possible for the accident to have occurred because of something being lodged between the relay rod and Embraces or the oil pan.

Alfred C. Drouillard, Staff Project Engineer for the Saginaw Steering Division of General Motors, was qualified as an expert in the fields of mechanical engineering, automotive engineering, and the design and operation of steering gears and pumps. The thrust of Mr. Drouillard’s testimony is that on May 28th and 29th, 1980 (the same time Dr. Daniel examined the vehicle) he removed the power steering system from the Landry vehicle and installed it in a similar 1975 Vega. He then test drove the vehicle with no problems. The day following the test drive, he disassembled the steering gear and pump, and confirmed that there was nothing wrong. In order to further disprove Dr. Brenner’s theory of particle lock up he placed a hardened set screw through the steering gear housing so that the screw actually contacted the outside diameter of the valve body. He then test drove the vehicle with no difficulty. He also added contaminants such as metal particles and sludge to a facsimile power steering unit and test drove same through the accident scene at 50 miles per hour with no problem. He thereafter drove the same test vehicle with the added contaminants from New Orleans to Saginaw, Michigan and back to New Orleans. During the trip he experienced only two instances where he could feel a “nibbling” effect in the steering system. This he concluded substantiated his opinion that metal particles are ground up within the steering system.

We expressed the view in our original opinion that the trial court’s omission of the word “foreseeability” from its charge on products liability and its admission into evidence of certain reports both were error. We still adhere to that view for the reasons expressed in said opinion. However, we do not deem those errors to be of such a magnitude as to require a total disregard of the jury’s findings so as to decide the issue of GM’s liability as a matter of first impression. See, Gonzales v. Xerox, 320 So.2d 163 (La.1975). Although Gonzales holds that a court of appeal should not remand but decide on the merits when the entire record is before it, the problem of the manifest error rule is not discussed. That rule, which is deeply entrenched in our law, provides that we are not to disturb the lower court’s findings unless “manifestly erroneous”. Canter v. Koehring, 283 So.2d 716 (La.1973). Manifestly erroneous means clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). We are not to substitute our own inferences or evaluation when there is a conflict in the testimony, and our review is not completed by reading so much of the record as to substantiate the verdict. There must be a further determination that the record establishes that the finding is not clearly wrong. Arceneaux, supra 1333.

Applying these principles we conclude that the fact finder, the jury, was not manifestly erroneous in finding that plaintiff did in fact have a steering lock up, and that said lock up was caused by a defective steering system designed and manufactured by GM. Although we may have decided either one or both of these issues differently on first impression, we certainly cannot say that the jury was clearly wrong. The experts on both sides are convincing, although obviously conflicting. The jury chose to believe plaintiff’s version of the accident, and there is substantial evidence to support it. When there is an issue of credibility, we are to give great weight to the fact finder’s conclusion. We therefore affirm as to GM’s liability.

Liability of Bill Garrett Chevrolet, Inc.

The jury found B.G.C. guilty of negligence in failing to discover and/or repair the alleged steering defect in plaintiffs car and that this negligence was a cause in fact of his accident and injuries. As previously noted, the Arceneaux, case, supra, prohibits a reversal of the lower court’s factual determination unless it is clearly wrong. A review of the evidence shows that the jury verdict against B.G.C. was in fact clearly wrong.

Before proceeding with a discussion of the claim against B.G.C. it must be kept in mind that plaintiff’s allegations against this defendant is based on negligence, not products liability. Therein, we feel, is where the jury went astray. Under Hill v. Lundin, 260 La. 542, 256 So.2d 620 (1972) and its progeny, Louisiana employs a “duty risk” analysis in determining whether a particular defendant is guilty of negligence. This duty risk analysis involves a three prong inquiry.

The first threshold is one of causation. Was there any causal relationship between the harm to the plaintiff and the defendant’s alleged negligent conduct? If plaintiff can prove that the action of defendant was a substantial cause in fact of the accident we must then ascertain whether the defendant breached a legal duty imposed to protect against the particular risk involved. Hill supra. In the case at bar plaintiff contends that B.G.C. failed to discover and properly repair the alleged malfunction in the steering mechanism of plaintiff’s car, and that said malfunction was the cause of the action. This court is of the opinion plaintiff failed in his burden to prove these allegations.

Mrs. Landry brought the Vega in question to B.G.C. for repairs on two separate occasions. The first was on January 6, 1976. Although Mrs. Landry testified that she brought the auto in after experiencing a “free wheeling” episode while turning into a parking lot, the B.G.C. repair order lists the complaint as a “squeak in the power steering”.

On this occasion, the unit was repaired by a B.G.C. mechanic Charles McCullough. McCullough did not find any parts in the power steering unit that were broken. Although he found metal shavings on the magnet and on the walls of the pump housing, the magnet was not covered to an extreme. He then took everything out of the power steering pump, washed it, re-assembled it and put clean fluid in it.

On May 27, 1976, Mrs. Landry again brought the car to B.G.C. after another alleged “free wheeling incident”. Again the repair order contrary to Mrs. Landry’s assertions makes no mention of any problem in the actual steering of the car, it merely states “check power steering, making noise”. The repair work done at this time encompassed only a tightening of the air conditioning and power steering belts.

We note at the outset that the actions taken by B.G.C. on both occasions are consistent with complaints of noises and not “free wheeling” as Mrs. Landry claims. In response to a question proposed to McCullough concerning what work was done on the power steering unit his answer was as follows:

“A. The squeak was in the power steering unit and it was low of fluid was the problem with the car, and the reason it was low of fluid because it kept boiling the fluid out and that was when I had to repair it, repair the power steering unit in the car.”

This coupled with plaintiff’s testimony that prior to the accident no problems had been encountered with the car lead us to seriously doubt Mrs. Landry’s claim of “free wheeling”.

Plaintiff does not contend that the actual repairs performed by defendant B.G.C. were done incorrectly. Rather they argue that it was the failure of its mechanic McCullough to comply fully with the provisions of the General Motors shop manual.

That manual provides:
“If when overhauling a power steering gear or pump, broken component or foreign materials are encountered, the remaining components of the entire hydraulic system should be disassembled, inspected thoroughly, cleaned and flushed before servicing is completed.”

B.G.C. argues that under the circumstances it was unnecessary to disassemble the gear and flush out the entire system. Their reasoning is that first, no broken components were found by McCullough, and that secondly, and more over, there were no foreign materials encountered.

Plaintiff contends that metal shavings and dirt constitute foreign particles and thus defendant should have disassembled the remaining components of the entire hydraulic system. Plaintiff’s view is contrary to the opinion offered by all of the experts who testified with regard to this phase of the case. All claim that it is normal to have some particles or contaminants present.

Plaintiffs expert, Robert Brenner opined that the steering gear generates its own debris as a result of metal moving upon metal, causing polishing and metal rubbing off moving parts.

Plaintiff’s witness Professor Fitch, an expert in the field of hydraulics, analyzed the power steering fluid from the Landry vehicle and stated that the level of contamination was less than normal for a car with the same mileage.

Similarly, Karl Dehn, plaintiff’s expert auto mechanic testified that it was normal for small metal particles to be inside the power steering system.

Defendant’s experts were in unanimous agreement that metal particles and dirt in the power steering system do not constitute foreign materials necessitating the overhauling of the entire hydraulic system.

Alfred Druillard testified on the intent and meaning of the General Motors shop manual provision in question.

“Q. What does it mean, what does it mean when it says foreign material?
A. Foreign material?
Q. Yes. What does that mean?
A. Foreign material would be broken parts, little veins, pieces of the cam ring, and so forth; maybe a bit from the bearing.
Q. It could be dirt, also, couldn’t it?
A. I don’t consider dirt to be foreign material. It is indigenous to the system. The system is designed to work with a certain amount of dirt and wear materials in it. We know it is in there; we design it to operate with it in there and do not consider that to be foreign material.
Q. What about metal particles?
A. That is indigenous to the system. We expect to find metal-like particles in the power steering system.”

Thus, the conclusion reached by all of the relevant experts was that metal particles and dirt are indigenous to a power steering system and certainly not foreign particles. Since they were not foreign particles, the defendant’s failure to dismantle the entire hydraulic system as per the General Motors shop manual did not constitute a breach of duty.

Additionally, plaintiff failed to prove that any alleged omission on the part of defendant was the cause of the accident. Under our holding in Federal Insurance Co. v. Cinnater, 305 So.2d 720 (La.App. 4th Cir.1974) in an action by the owner of an automobile against a repairman, the owner is required to prove (1) that the repairman was negligent in making repairs; (2) that causal relationship existed between negligent repair work and subsequent accident; and (3) that the negligence of the repairman was the proximate cause of the accident.

Focusing on the burden of proof required to carry the causation issue, the court states:

“The general rule is that negligence is never presumed, and that the burden of proving negligence by a preponderance of the evidence rests on the party alleging it.” (citations omitted)
“Negligence may be proved by direct or by circumstantial evidence. A plaintiff relying upon circumstantial evidence, however, must exclude with a fair amount of certainty every other reasonable hypothesis but that the damages claimed resulted in the negligence of the defendant.” (citations omitted) Id. at p. 723.

Our exhaustive review of this record leads us to the inescapable conclusion that plaintiff has failed to prove that the actions of B.G.C. in not disassembling and flushing the entire hydraulic system, under the circumstances of this case, constituted negligence. Further, assuming arguendo that B.G.C. is guilty of negligence, plaintiff has still failed to prove that said negligence was a cause in fact of the accident. The burden of proof as to B.G.C. is considerably different from the burden as to GM. We are of the opinion that the jury was in error in finding B.G.C. guilty of negligence. We therefore must reverse the judgment against that defendant.

Quantum

The total jury award was $1,948,547.00. It is broken down as follows:

1) General damages (physical and mental pain suffering and disability) — $500,-000.00;
2) Loss of income, and impairment of earning capacity, past and future, (discounted to present value) — $94,000.00;
3) Medical expenses, past and future (discounted to present value) — $1,354,-547.00.

After careful review of the record we affirm as to the award for general damages and loss of income and earning capacity past and future and to medical expenses. We reverse as to future medical expenses.

I. GENERAL DAMAGES, LOSS OF INCOME AND EARNING CAPACITY, PAST AND FUTURE

Before an appellate court can disturb an award made by a trial court, the record must clearly reveal that the trier of fact abused its discretion in making its award. C.C. Art. 1934(3); Wilson v. Magee, et al, 367 So.2d 314 (La.1979).

There is no question that Landry was severely injured in the accident of July 20, 1976 and that said accident caused his current physical and psychological disabilities.

Two physicians testified on Landry’s behalf namely Dr. Moses Wilcox of the United States Public Service Health Hospital and neurologist, Dr. Leon Weisberg. His primary treating physician, Dr. Morris Kloor, did not testify.

Dr. Wilcox treated Landry during his 34 day hospitalization at the Public Service Health Hospital. He (Landry) had been transferred there from New Orleans Charity Hospital on 8/10/76, several weeks following the accident. Dr. Wilcox testified from both Charity Hospital records and from his own personal observations and treatment. He stated that the records of Charity showed Landry had been placed on a breathing machine and a traecheotomy had been performed. Both procedures were necessitated by the multiple fractures sustained to the left side of his chest and ribs. The records also reflected that he sustained multiple fractures of his left clavicle and multiple skull fractures.

Dr. Wilcox’s testimony was as follows:

Upon admission to the Public Service Health Hospital, Landry was unable to speak and displayed a great deal of confusion. He had no ability to understand what was said and was unable to express himself. He was unable to feed himself and it became necessary to perform a feeding gastrostoma to insert a feeding tube into his stomach. He had no control of his bladder and bowel functions.

During his hospital confinement, plaintiff was treated with antibiotics for pneumonia, valium for sedation, demerol for severe pain and several other medications for constipation and diarrhea.

X-ray evaluations and other laboratory tests revealed plaintiff suffered severe head injuries resulting in a changed mental status. In order to try to improve his mental status, he was given physical and occupational therapy. However, he had to continue to be restrained because he remained confused and agitated and had to be prevented from removing the various tubes that had been inserted in his body.

The occupational and physical therapy helped improve his mental status somewhat to where he could control his bladder and bowels and he could walk to some extent.

Upon discharge, the gastrostoma was removed but the incision was bandaged and left open because it was not certain that plaintiff would be able to continue eating on his own. The traecheotomy was closed up and the voice box was again working. However, plaintiff still could not talk as a normal person. He spoke incoherently and often made statements that were totally unrelated to what was asked. After discharge a cat scan was performed which showed plaintiff had atrophy of the brain. After discharge, Dr. Wilcox never again examined Landry.

Neurologist, Dr. Leon Weisberg, examined plaintiff on one occasion approximately one month before trial. Dr. Weisberg’s testimony was based on the Charity Hospital records and Public Service Hospital records; two neurological evaluations completed by Dr. Richard Strub of the L.S.U. School of Neurology; historical information received from Mrs. Landry and his own examination of plaintiff.

Dr. Weisberg concluded that from a quiet well-behaved man, Mr. Landry had become a violent person displaying behavior characterized by rage attacks, temper tantrums and an inability to control personality and emotions. His own examination revealed severe damage to plaintiff’s higher cognitive brain functions and impairment of his behavior and personality. He found evidence of brain syndrome or dimentia characterized by a significant memory loss for events immediately in the recent past and in the remote past such as remembering the names of objects, where he had recently been, what he had recently been doing, where he was going (in terms of location). He no longer enjoyed the ability to think in abstract terms. As an example, Dr. Weisberg explained that Landry could not remember 3 objects described to him five minutes before. He could not state similarities or differences between objects such as a car and a bicycle, an apple and a pear. Also, there was a marked change in his cognitive functions — the ability to plan events, to handle his finances, to care for himself, to shop for himself, clean house, etc. In other words, plaintiff no longer had the ability to plan the rest of his life.

Dr. Weisberg further testified that during the examination, at inappropriate times and without provocation, Mr. Landry would break out in uncontrolled tears and was unable to explain why he was crying. Dr. Weisberg explained that this was characteristic of patients with severe brain dis-function.

Further examination revealed that plaintiff suffered severe frontal lobe damage caused by the traumatic etiology consistent with the head injuries he received in the accident. Moreover, he suffered damage to the cerebellum which accounts for the difficulty he experiences in walking. This damage causes a widening in the amount of space between plaintiffs feet when standing. This increased distance in turn creates a staggering, unsteady gait which, in the absence of visual cues (such as walking in a dark room) causes Mr. Landry to lose his balance and fall.

Charity Hospital records showed plaintiff sustained multiple skull fractures consisting of fractures of the bone at the base of the skull, bones over the top of the head in the parietal region and in the back of the head in a region called the sagital sinus. In addition to the serious brain damage resulting in the conditions enumerated above, he suffered damage to his left eye and some damage to his right eye with decreased visual acuity to a level of 20/70. In addition, the right pupil and optic nerve were damaged resulting in permanent visual loss. He suffered decreased hearing in his right ear with nerve injury to the right side of his hearing system specifically to the eighth nerve or acoustic nerve. Appel-lee also has been impotent since the accident, a condition which Dr. Weisberg stated caused Mr. Landry a great deal of stress.

When questioned if plaintiff’s problems could have occurred by spontaneous brain deterioration rather than trauma, Dr. Weisberg stated that given the fact that Mr. Landry was neurologically and behaviorally normal with no associated illness prior to the accident, his neurological problems, with reasonable medical certainty, were caused by the injuries received in the accident. Plaintiff has been and continues to be treated with 60 mgs of the powerful tranquilizer, Thorazine, three times per day. He concluded from the injuries described above that Mr. Landry is incapable of performing any kind of coordinated work and should not be left alone as he is a danger to himself and to others because he cannot care for his day to day needs and often experiences uncontrolled episodes of rage and anger towards others. The jury award of $500,000.00 in general damages and $94,000.00 for loss of income and earning capacity, past and future, is not an abuse of discretion, and is therefore affirmed.

II. MEDICAL EXPENSES PAST AND FUTURE

As part of its verdict, the -jury awarded $1,354,547.00 for past and future medical expenses. The record reflects that of this amount plaintiff claimed $11,750.00 as actual medical expenses up to the date of trial. Since neither GM nor B.G.C. have complained as to any discrepancy in this amount, we affirm the award for past medical expenses in the amount of $11,-750.00. The difference of $1,342,797.00 which represents the amount for future medical expenses is unsubstantiated by the record, and as to this amount we reverse.

Neither Dr. Wilcox nor Dr. Weisberg had anything of any substance to say about future medical expenses. Dr. Wilcox testified that a prognosis as to Mr. Landry’s future medical needs could not be determined at the time he was discharged from the Public Service Health Hospital. Dr. Weisberg merely stated that in his opinion plaintiff would continue to deteriorate and may be unable to be cared for by his wife. However, he could give no definite time when this might occur. Neither doctor ever testified that Mr. Landry would require future institutionalization.

The jurisprudence of this state does not allow the jury to speculate as to the possibility of future medical expenses. The law of Louisiana is well settled that the trier of fact may not award any sum for future medical expenses if there has not been positive proof of the need for the expenses. Mere conjecture is insufficient. Wilson v. Magee, 359 So.2d 315 (La.App. 4th Cir.), affirmed in part, amended in part, 367 So.2d 314 (La.1979); Addison v. Traders and General Ins. Co., 212 So.2d 754 (La.App. 3rd Cir.1968); Brooks v. Kirkpatrick, 175 So.2d 342 (La.App. 2d Cir.1965); Johnston v. Peerless Ins., Co., 159 So.2d 415 (La.App. 2nd Cir.1963); Bailey v. National Surety Corp., 149 So.2d 669 (La.App. 1st Cir.), writ denied 244 La. 210, 151 So.2d 689 (1963).

In Poche v. Frazier, 232 So.2d 851 (La.App. 4th Cir.1970) this Court set out the standard of proof for the award of future medical expenses.

“Medical expenses in order to be recoverable must be proved and awards will not be made for future medical expenses which may or may not occur in the absence of medical testimony (emphasis added) that they are indicated ... This Court cannot pull a figure out of the air and award it as damages for future medical expenses the occurrence of which is but a speculative possibility.” Id. at p. 860.

Plaintiff asserts that the jury had a calculated hold on his future medical needs by the testifying witnesses consisting of himself, his wife, daughter and calculations and figures presented by the actuary and the economist. Clearly this is not testimony of future medical needs. Plaintiff contends that Dr. Weisberg’s testimony that he will continue to deteriorate as a rapid rate and should not be left alone is proof of the need for future medical. We disagree. This testimony, although it is a prognosis as to his condition, is not substantial medical proof that future institutionalization will be needed. Dr. Weis-berg had no opinion as to when such care might be needed. Plaintiff’s own actuary and economist, because of the uncertainty that such care might be needed, based their calculations beginning two years from the date of trial and five years from the date of trial. This is consistent with the argument that the necessity of future institutionalization is speculation rather than certainty.

Finally, plaintiff attached to his brief reports from Dr. Kloor, Dr. Weisberg and Keesler Air Force base which state the possibility of future institutionalization. These documents are not in evidence, do not form part of this record, and thus are not considered by this court.

For the foregoing reasons the judgment in favor of Joseph N. Landry and against Bill Garrett Chevrolet, Inc. is hereby reversed. The judgment in favor of Joseph N. Landry and against General Motors Corporation is amended and as amended is affirmed as follows:

General Damages $500,000.00
Loss of Income, and Impairment of earning capacity, past and future 94,000.00
Medical expenses, past and future 11,750.00

All costs of this appeal to be borne by General Motors, Inc.

      . Bill Garrett’s application for writs seeks to have the testimony totally excluded. Those writs were granted with the exact same language as used in the Landry writ. Although one could argue that the granting of those writs meant the Supreme Court intended to exclude the hypnotically induced testimony in toto, we believe they meant for us to consider the testimony as it appears in the record.

      . Judge Ward, in a separate concurring opinion, felt the majority was incorrect on the foreseeability issue.

      . This writer has previously expressed the view that the principles of Gonzales v. Xerox should be reviewed and/or expanded by our Supreme Court for several reasons. If the error committed at the trial level was such as to vacate a jury award, and the Court of Appeal is to decide the case as a matter of first impression on the record before it, what happens to the manifest error rule? The Louisiana Constitution provides that the appellate court’s scope of review extends to law and facts. The word “review" indicates to this writer that there must first be a proper lower court determination of facts before the appellate court considers the issue. Of course, underlying all of these problems is the very important consideration of a litigant’s statutory right to a jury trial.

      . This was noted in our original opinion at p. 1061.