author: CARTER, Judge: PONDER, Judge,

text:
    STATE of Louisiana v. Mary DANOS.
    No. 83 KA 0687.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.
    Writ Denied Feb. 27, 1984.
    Stephen E. Caillouet, Asst. Dist. Atty., Thibodaux, for plaintiff, State of La.
    George R. Simno, III, New Orleans, for defendant, Mary Danos.
    Before PONDER, WATKINS and CARTER, JJ.
   CARTER, Judge:

Defendant, Mary Danos, was charged by grand jury indictment with the crime of distributing and dispensing the controlled dangerous substance placidyls (Exthchlor-vynol) as defined in LSA-R.S. 40:961 and LSA-R.S. 40:964, in violation of LSA-R.S. 40:969 of the Louisiana Uniform Controlled Dangerous Substances Law.

Initially, defendant entered a plea of not guilty, but later changed her plea to guilty. She was sentenced to confinement with the Department of Corrections for ten (10) years. The sentence, however, was suspended with the requirement that defendant be placed on active probation for five (5) years, subject to the following special conditions: (1) report to a probation officer within 24 hours; (2) serve two years in the parish jail; (3) receive treatment from the Substance Abuse Clinic; (4) pay a fine of $3,500 and costs, starting one month after she is released from jail in the sum of $100 per month; and, (5) reimburse the parish sheriff’s office for investigation expenses.

Defendant appeals assigning as error the failure of the trial court to adhere to the sentencing guidelines of LSA-C.Cr.P. art. 894.1. Although not assigned as error, defendant argues in brief that the sentence imposed by the trial court is excessive.

Sentencing guidelines of Article 894.1

LSA-C.Cr.P. art. 894.1 sets forth three factors which justify a sentence imposing imprisonment and eleven other factors which indicate when a suspension of sentence or probation is appropriate. The statute provides that the latter, “while not controlling the discretion of the court, shall be accorded weight” by the trial court in imposing sentence. The enactment concludes that the trial court “shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence.” State v. Cox, 369 So.2d 118 (La.1979); State v. Wimberly, 414 So.2d 666 (La.1982). Although the trial court is required by article 894.1 to state those factors he considered in imposing sentence, a sentence imposed without the assignment of reasons will not be automatically set aside on appeal, but will be set aside for resentencing only if the record is inadequate or if the record clearly indicates the sentence is excessive. State v. Wimberly, supra. Therefore, in accordance with our well settled jurisprudence, absolute compliance with LSA-C.Cr.P. art. 894.1 is not essential to the legality of a sentence.

Defendant contends that certain considerations listed in article 894.1, which mitigate against a sentence of imprisonment, exist in her case. Defendant reasons that the trial court should have considered the following relevant facts: (1) the victim of the defendant’s criminal conduct induced and facilitated its commission; (2) the defendant has no history of prior delinquency or criminal activity and has led a law-abiding life for a substantial period of time before the commission of the instant crime; (3) the defendant’s criminal conduct was the result of circumstances unlikely to recur; (4) the character and attitude of the defendant indicate that she is unlikely to commit another crime; (5) the defendant is particularly likely to respond to probationary treatment; and, (6) the imprisonment of the defendant entails excessive hardship to herself and to her husband and daughter.

We attach hereto as Appendix A and B the statements of the trial court at sentencing.

The statements contained in Appendix A and B convince this court that the trial court considered both the aggravating and the mitigating factors of LSA-C.Cr.P. art. 894.1 in imposing sentence.

Excessive Sentence

Article 1, Section 20 of the Louisiana Constitution of 1974 prohibits the imposition by law of excessive punishment. Even though a sentence is within the statutory guidelines, it may violate defendant’s constitutional right against excessive punishment. State v. Sepulvado, 367 So.2d 762 (La.1979).

Defendant contends that the “harshness of a two year jail term for this 27 year old first offender, who is also a wife and mother, is apparent.”

Defendant could have received the maximum penalty of ten (10) years imprisonment at hard labor and a $15,000 fine. The trial court, however, in considering the particular facts of this case and the individual characteristics of this defendant, did not impose a sentence of imprisonment at hard labor. Instead, defendant was placed on active supervised probation subject to various special conditions, including confinement in the parish jail for a period of two years.

From a review of the record, we cannot say that the trial court abused its broad discretion in imposing sentence or that the sentence imposed is excessive.

For the above reasons, we affirm the sentence.

AFFIRMED.

APPENDIX A

STATE OP LOUISIANA ) 17TH JUDICIAL DISTRICT COURT

VERSUS NUMBER 129626 ) PARISH OF LAFOURCHE

MARY DANOS ) STATE OF LOUISIANA

‡**************************************

Transcript of the Sentencing held in the above numbered and entitled matter on the 28th day of March, 1983, at Thibodaux, Louisiana, before Honorable Wollen J. Falgout, the presiding judge.

***************************************

APPEARANCES:

MR. STEPHEN E. CAILLOUET ) Representing the State.

MR. HERBERT O’NIELL ) Representing the Defendant.

MARY DANOS ■ ) The Defendant.

THE COURT:

Mary Danos, step forward please. Mary, I’ve known your daddy since we played marbles in high school together and if somebody would have told me then that one day I would have his daughter before me to sentence on a drug charge I would have told them they were crazy because I knew his family well, I knew his mother and father well and he was always tough, but honest and law abiding. The report that I got, on you is that you had some trouble, you saw Dr. Boul-et with a complaint of pain and he gave you placidyl for your pain, but that when the pain subsided that you continued getting placidyl from Dr. Boulet and you sold the placidyl to some of your friends. You have some good recommendations from some of your family and some of your friends, but from the people who work with narcotics they claim that you bought quite a quantity of drugs from Dr. Boulet who is not worth the salt of this earth and I understand he pled guilty and I hope they put his butt away pretty quick. But he uses people like you to make a living. I searched, searched and searched to justify not putting you in jail, but the law says that we must treat everybody equally and actually you’re charged with one of the most serious crimes in the bunch which is distribution of placidyl. And the penalty for that is also ten years in the Penitentiary and a $15,000.00 fine. I don’t know what we can do as public officials to make you all realize that crime does not pay and as you probably realize I think that you were hooked by a friend or someone you thought was a friend. So that should teach you a lesson that you can’t trust anybody when it comes to money and to drugs. But you’re old and ugly enough to know that it was wrong and I think you admit in your statement that it was wrong and that you’re not going to do it again. Actually I feel more sorry for your child and your mother and father than I do for you and I don’t know your in-law’s that well. But you’ve committed a crime and as Red Foxx would say, “if you commit the crime you’ve got to be man or woman enough to serve the time”. So it’s the sentence of the Court that you suffer imprisonment with the Department of Corrections for a period of ten years. Sentence will be suspended and she’ll be placed on probation, active supervisory probation for a period of five years. Special condition of probation is that you report to the probation officer within twenty-four hours after sentencing, serve two years in the Parish Jail, order the Sheriff to transport you to Substance Abuse Clinic for evaluation and treatment and you’re to pay a fine of $3,500.00 and cost payable in monthly installments of $100.00 starting one month after you are released.

MR. O’NIELL:

Let the record note that we object to the sentence, Your Honor.

CERTIFICATE

STATE OF LOUISIANA PARISH OF LAFOURCHE

I, Renee L. Carriere, Official Court Reporter in and for the 17th Judicial District Court, Louisiana, do hereby certify that the foregoing three (3) pages of typewritten matter constitute a true and accurate transcription of the proceedings taken by me entitled, State of Louisiana Versus Number 129626 Mary Danos, on March 28, 1983.

In Faith Whereof, witness my signature this 9th day of May, 1983.

/&/ Renée L. Carriere OFFICIAL COURT REPORTER

APPENDIX B

State of Louisiana # 129626 vs. Mary Danos

STATE OF LOUISIANA ) 17TH JUDICIAL DISTRICT COURT

VERSUS NUMBER 129630 ) PARISH OF LAFOURCHE

EARL FAYETTE ) STATE OF LOUISIANA

***************************************

Transcript of the Sentencing held in the above numbered and entitled matter on the 28th day of March, 1983, at Thibodaux, Louisiana, before Honorable Wollen J. Falgout, the presiding judge.

***************************************

APPEARANCES:

MR. STEPHEN CAILLOUET ) Representing the State.

MR. LARRY P. BOUDREAUX ) Representing the Defendant.

EARL FAYETTE ) The Defendant.

THE COURT:
Earl Fayette, step forward. Well let me bring all of these up together. Russell Richoux, Mary Danos, Smith Blanchard, Phillip Percle, Tanya Percle, Donnie Da-nos. I looked across the room and I see many people that I know and I’m sure they’re the parents of most of the people who are standing here in front of me. And it’s been my experience since I’m on the bench that on these drugs charges that the people that are really hurt are not the people who deal in drugs, but the people or the parents of the young people who have seen fit to take an easy way out, if you will. I don’t mind saying that my initial reaction to the drug bust and the information that I was able to gather from the investigation reports was to sentence all of you to the Penitentiary because all of you are smart enough to know and have enough education to know that what you did was a violation of State law. And basically the penalty on each of these charges are the same, $15,000.00 fine and ten years in the State Penitentiary. So when you see drugs and you fool with drugs you’re fooling with dynamite. I once made the statement that I would rather see a load of Columbians exit a vessel with machine guns and rifles and so forth and to kill a few people than to outload fifteen or twenty tons of marijuana because if they kill fifteen or twenty people it would be a grave injustice and a grave crime, but they would damage many, many less than what could be done with twenty tons of marijuana or thousands of pills, quaaludes, placidyl and so forth and so on. I really don’t believe that our young people have yet gotten to the grasp of the fact that drugs are killing us. They’re destroying our young people. Each and every case indicated in the reports that it was done as a matter of course. Only one of the defendants tried to hide the fact that he, himself, was selling drugs. He took the confidential informer on a ride to supposedly a friend who had the drug and he wouldn’t sell it in front of the agent and then sold it to the confidential informer and the confidential informer advised the agent that he would sell him the drugs. The sentences will not be uniform because I do not think that the criminal intent was uniform. But all of the sentences will be uniform in that I will give you the maximum Penitentiary sentence and I will suspend the Penitentiary sentence and place you on probation for a long period of time, in effect making you the judge of your destiny. I sincerely believe that all of you if you wish to change your ways of life, can lead a very productive life. I also know that if you do not apply with the conditions of probation that it is useless for you or your parents or your lawyer to come back and talk to me because I will make you serve the Penitentiary sentence. So although I will give you a break today because most of you are first offenders I want you to understand that you will be the judge of your own destiny. Mr. Earl Fayette, would you step up please—
MR. BOUDREAUX:
Your Honor, excuse me for interrupting, but I have a motion on behalf of Mr. Richoux to continue the sentence in this matter. That pursuant to State Versus Bosworth
THE COURT:
Denied.
MR. BOUDREAUX:
I’d like to complete my offer, Your Hon- or. He’s entitled to a copy of the pre-sentence investigation for the purpose of traversing any misinformation.
THE COURT:
Denied as being untimely filed.
BY THE COURT: (DIRECTED TO MR. FAYETTE)
Q. Mr. Fayette, you’re a relatively young man and I don’t know you, but your attitude didn’t change even to the point of when the probation officer interviewed you. Your statement to him was that you didn’t want to make a statement. I also see that on 11/16/81, you were charged with hit and run driving in Houma, Louisiana. Your attitude is not good. The report from the probation officer indicates that you were a known drug dealer in your area and the recommendations were that you be incarcerated. As previously stated you could be incarcerated in the State Penitentiary up to ten years. It would ruin you for life and there’s no doubt in my mind about that. But I want you to realize the seriousness of you selling drugs to our children and if you ever sell drugs to anybody else I want you to know you’re going to serve those ten years. Do you understand that, sir?
A. Yes, sir.
THE COURT:
So it’s the sentence of the Court that he suffer imprisonment with the Department of Corrections for a period of ten years. I will suspend the Penitentiary sentence and place him on probation for a period of five years, active supervisory probation. Special condition of probation is that he reports to the probation officer within twenty-four hours, that he suffer imprisonment in the Parish Jail for a period of two years, that he pay a fine of $3,500.00, upon being released from prison at the rate of $100.00 per month. The first payment will be due one month from the date he is released from jail and monthly thereafter until the fine is paid. That while he is in prison and subsequent to his release, that he be evaluated by Substance Abuse and receive whatever treatment they recommend for him and complete that treatment. And last, but not least, that he reimburse the Sheriffs Office whatever money was expended from buying drugs from him.

CERTIFICATE

STATE OF LOUISIANA PARISH OF LAFOURCHE

I, Renee L. Carriere, Official Court Reporter in and for the 17th Judicial District Court, Louisiana, do hereby certify that the foregoing five (5) pages of typewritten matter constitute a true and accurate transcription of the proceedings taken by me entitled, State of Louisiana Versus Number 129360 Earl Fayette, on the 28th day of March, 1983, at Thibodaux, Louisiana.

In Faith Whereof, witness my signature this 27th day of May, 1983.

/s/ Renée Carriere OFFICIAL COURT REPORTER

PONDER, Judge,

dissenting:

I dissent because I do not believe that the trial judge has followed the guidelines of La.C.Cr.P. 894.1. The record indicates that he assigned the exact same sentence to the defendant, a young mother and first offender, and to a man who had a record of a hit and run, who was stated to be a known dealer in drugs and whose attitude was critized. The possibility of an excessive sentence is raised by the record, but a clear finding is made impossible by the record’s inadequacy. I would remand for sentencing.


source: Caselaw Access Project

author: WILLIAMS, Judge.

license: Public Domain

text:
    Dominic J. CARLONE v. Shirley B. CARLONE.
    No. CA-0761.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 5, 1984.
    Rehearing Denied Feb. 22, 1984.
    Writ Denied April 13, 1984.

      Floyd J. Reed, J.D., Alicia P. Gravolet, New Orleans, for defendant-appelant.
    David E. Hogan, New Orleans, Jessie Guillot, New Orleans, for plaintiff-appellee.
    BARRY, KLEES and WILLIAMS, JJ.
   WILLIAMS, Judge.

This is an appeal from a judgment rendered after a new trial reducing defendant’s alimony from $775.00 per month to $300.00 per month.

Defendant Shirley Carlone and plaintiff Dominic Carlone were divorced in June, 1974, after almost twenty years of marriage. Plaintiff subsequently married his present wife, Faye Carlone. On April 3, 1981, defendant filed rules for plaintiff to be held in contempt of court, to make past due alimony executory, for attorney’s fees and for an increase in alimony. On May 15, 1981, a judgment of separate property was entered into between plaintiff and his present wife. On August 5, 1981, judgment was rendered dismissing defendant’s rules for contempt, arrearages, and attorney’s fees, but increasing her alimony to $775.00 per month. Plaintiff was granted a new trial for the restricted purpose of allowing introduction of his and his present wife’s judgment of separate property and of an accountant’s testimony concerning plaintiff’s income. Judgment on February 24,' 1982, reduced alimony to $300.00 per month. Defendant applied for a new trial, which was granted. On May 10, 1982, plaintiff’s present wife, Faye Carlone, filed a petition for separation from bed and board. On June 30, 1982, the granting of defendant’s application for a new trial was withdrawn. Defendant filed a petition for appeal to this court on July 13, 1983, alleging that the trial court erred: (1) in granting plaintiff’s unverified motion for a new trial; (2) in admitting into evidence at the new trial the separate property judgment and an accountant's testimony; and (3) in reducing alimony from $775.00 alimony per month to $300.00 per month after a new trial.

JURISDICTION

Plaintiff contends that only one new trial is permitted, and that the delay period for appeal, therefore, began on the date of the judgment of the first new trial and had expired before defendant filed her petition for appeal.

Defendant bases her contention on the fact that the statutory provisions for new trial refer to it in the singular and on the lack of provisions for the filing of new trials from judgments granted on new trials. See La.C.C.P. arts. 1971-1979.

Without a more explicit indication of such intent, the statutes use of the wording “a new trial” cannot be read to prohibit more than one new trial. Article 14 of the Louisiana Civil Code states that “[t]he words of a law are generally to be understood in their most usual signification, without attending so much to the niceties of grammar rules as to the general and popular use of the words.” The Civil Code’s definitional statute goes further in stating that “[t]he singular is often employed to designate several persons or things...” La.C.C. art. 3556(2).

In fact, Article 1971 provides that a new trial may be granted to all of the parties, which would suggest that more than one new trial could be granted. In any case, since there is no explicit prohibition of a second new trial and there are no provisions in the law concerning the matter, the decision to grant more than one new trial must rest with the trial court judge. The delay period for taking an appeal does not begin to run until the court’s refusal to grant a timely application, or the date of mailing of notice of the court’s refusal if required, for the second trial just as for the first. La.C.C.P. arts. 2087(2) and (3), and 2123(2) and (3); Jones v. Jones, 393 So.2d 281 (La.App. 1st Cir.1980); Donaldson v. Donaldson, 389 So.2d 1375 (La.App. 3d Cir.) writ den. 394 So.2d 617 (1980).

Defendant’s appeal, filed thirteen days after the judgment denying her new trial, was timely, and this court has jurisdiction.

VERIFICATION OF MOTION FOR NEW TRIAL

Defendant contends that it was error for the trial court to grant the plaintiff’s motion for a new trial because the allegations of fact therein were not verified by affidavit.

Louisiana Code of Civil Procedure Article 1975 provides:

A motion for a new trial shall set forth the grounds upon which it is based. When the motion is based on Article 1972(2) and (3), the allegations of fact therein shall be verified by the affidavit of the applicant.

Article 1972 provides:

A new trial shall be granted, upon contradictory motion of any party, in the following cases:
(1) Where the judgment appears clearly contrary to the law and the evidence;
(2) Where the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during trial; or
(3) In jury cases, as provided in Article • 1814.

Defendant’s argument presumes that the new trial granted plaintiff was based upon Article 1972(2). In addition to the peremptory grounds listed under that article, however, there are discretionary grounds in Article 1973, which provide that “[a] new trial may be granted in any case if there is good ground therefor, except as otherwise provided by law.” Article 1975 does not require an affidavit when a new trial is based upon such discretionary grounds. As plaintiff applied for and was granted his new trial based on these discretionary grounds, defendant’s first argument is without merit.

INTRODUCTION OP ADDITIONAL EVIDENCE AT NEW TRIAL

Defendant contends that it was also error for the trial court to grant the plaintiff’s motion for a new trial because plaintiff sought to introduce in the new trial evidence which was available to him at the original trial but which he failed to offer at that time.

This argument is also based on the erroneous assumption that the new trial was granted based upon Article 1972(2).

To be granted a new trial of right, Article 1972(2) requires the party seeking a new trial to show that he could not have obtained the evidence earlier.

Even if a diligent effort to produce newly discovered evidence is not shown, Article 1973 authorizes the trial judge, within his sound discretion, to grant a motion for new trial if he believes there are good grounds to support it. Wright v. O’Neal, 414 So.2d 880 (La.App. 4th Cir. 1982) reversed on other grounds 427 So.2d 852 (1983).

The trial court rendered the August 5, 1981 judgment increasing alimony based on evidence presented as to the salary and benefits received from the family enterprises employing plaintiff and on the lifestyle plaintiff shared with his present wife. The trial judge determined in his discretion that additional testimony presented by an accountant, and the judgment of separation of property between plaintiff and his present wife, should be considered in fixing plaintiff’s alimony obligation.

Where the motion for a new trial is based upon the discretionary grounds of Article 1973, the appellate courts will not interfere unless there has been a clear abuse of this discretion. Strobel v. Schlegel, 145 So.2d 664 (La.App. 4th Cir.1962); Simas v. Hicks, 381 So.2d 949 (La.App. 3d Cir.1980); State Board of Education v. Anthony, 289 So.2d 279 (La.App. 1st Cir.1973) writ den. 292 So.2d 246 (1974). We cannot conclude that there has been such abuse here. This argument is without merit.

REDUCTION IN ALIMONY

Defendant contends that it was error for the trial court to reduce its original judgment of $775.00 per month permanent alimony to $300.00 per month after the new trial.

Plaintiff’s testimony at the original trial established the following facts. Plaintiff and his brother are the sole shareholders in Accent Jewelry Company. Plaintiff purchased $60,000.00 of stock in Accent Annex, Inc. Plaintiff received many benefits from these two corporations. Accent Jewelry paid plaintiff’s weekly salary and provided him with a 1977 Cadillac, gasoline and maintenance included. Plaintiff’s son used the company’s work van. The company owned 10 season tickets to the New Orleans Saints games. Accent Annex, Inc. paid for plaintiff and his present wife’s recent trip to Hong Kong for nine days. Plaintiff had expense accounts which he used whenever “on business” for either corporation. His expenses were also covered when doing work for the Lions Club. Plaintiff testified that the trip he and his present wife had recently taken to the Virgin Islands had been paid for by friends. He had use of a private pleasure plane, although he insisted that he did not have an interest in it, but had only paid for its repairs. The Metairie home with swimming pool that he and his present wife purchased had cost them $77,500.00 in 1976.

Defendant Shirley Carlone was 55 in 1981. She had a tenth-grade education and had not worked for 25 or 30 years. She was severely limited by a number of health problems and had been told not to work by her doctor. She testified that she owned a 1972 Buick and received only $165.00 a month in addition to alimony.

On April 3, 1981, defendant filed a rule for increase in alimony. In the weeks following, plaintiff made several changes in his financial position. He drew up a contract to separate the community between himself and his present wife. He put their home into her name, testifying that this was because she had put up the $15,000.00 down payment, and he felt the house “really belonged to her.” Plaintiff also suffered a reduction in the wages paid him by Accent Jewelry Co., going from $275.00 to $150.00 a week, and a change in his title from manager to “consultant/advisor." Plaintiff testified that this was not his decision, but the decision of his brother, the only other owner of the corporation. Plaintiffs present wife’s wages were accordingly raised, and she was named manager. Plaintiff testified that this was because he and his brother realized she “was doing all the work” anyway.

Plaintiff alleged that he was in a “tight” financial condition, and $127,000.00 in debt. He testified that he borrowed $100,000.00 from a shareholder in Accent Annex, Inc. He put $60,000.00 of that into the Accent Annex shares which he transferred, without consideration, to his wife, and the other $40,000.00 into Accent Jewelry Co., the corporation he and his brother owned. Plaintiff testified he borrowed $11,000.00 from his present wife’s mother and also put that into Accent Jewelry to help his wife. Another $10,000.00 borrowed from plaintiff’s mother-in-law was given to his son for the down payment on a house.

The trial court judge seemed unconvinced by plaintiff’s claim of having only the $150.00 a week wages paid him by Accent Jewelry to live on:

“Inasfar as his testimony is concerned and how much money he can pay for permanent alimony he doesn’t particularly impress me at all with the fact that he can only pay either $200.00 or something less. I think from reading his statement here and seeing the total amount that he says it costs him to live of $1,538.20 and he only takes home $141.16, I think that he has the ability to pay ... [a] total of $775.00.”

(Transcript at 96, Vol. II).

The original trial was held on August 4, 1981. The new trial was held December 9, 1981. At the new trial on accountant testified for plaintiff. He had examined only the payroll tax returns and payroll check stubs of Accent Jewelry, Inc. over the preceding year. He had never prepared plaintiff’s income tax returns. He testified that the payroll indicated plaintiff had been receiving $150.00 a week since sometime in April. The accountant brought no copies of these records with him to court. When asked if plaintiff received income other than the $150.00, the accountant could only testify, “Not that I know of.”

At the original trial plaintiff had testified to an income from his and his brother’s corporation, Accent Jewelry Co., of $150.00 a week. The court was also aware of the separation of property judgment at the original trial, as it seemed to be the specific foundation for plaintiff’s subsequent transfers to his wife after defendant ruled for an increase in alimony. The trial court discredited plaintiff’s contentions in granting defendant the increase she asked for rather than decreasing the alimony payments as plaintiff had requested.

In order to change the alimony award made in a consent decree, the party seeking the alteration must show a change in circumstances. Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973).

The evidence presented at the new trial contained nothing that the trial court did not consider upon original hearing when it had apparently decided plaintiff was merely painting a contrived scenario of economic hardship. We agree with the original decision of the trial court in its determination that the evidence and testimony presented by plaintiff as to his altered financial status strained credibility. We hold that the evidence presented at the new trial was insufficient to merit a change from the judgment at the original trial. Plaintiff, of course, is free to return to the trial court to file a rule for reduction of alimony whenever he feels circumstances have changed sufficiently to so merit.

For the foregoing reasons, the decision of the trial court reducing alimony to $300.00 per month is reversed and the original judgment granting defendant $775.00 per month is reinstated.

REVERSED.


text:
    G/O ENTERPRISES, INC., Lawrence Carr, and Glenda Petroleum Company v. MID LOUISIANA GAS COMPANY.
    No. CA-0898.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 5, 1984.
    Writ Denied March 9, 1984.
    John M. McCollam, Sheryl L. Hopkins, Gordon, Arata, McCollam & Stuart, New Orleans, La., for plaintiffs-appellants.
    William R. Pitts, Anne E. Tate, Liskow & Lewis, New Orleans, La., for defendant-ap-pellee.
    Before BARRY, CIACCIO and WILLIAMS, JJ.
   WILLIAMS, Judge.

This is a case involving the interpretation of an amendment to a gas purchase contract drawn between plaintiff, G/O Enterprises, Inc., and defendant, Mid Louisiana Gas Company. Plaintiff contended that the amended contract contained an indefinite escalator clause which entitled it to the maximum price for natural gas permitted by the most recently issued Federal Power Commission opinion, and brought a claim for additional amounts due. Defendant contended that the contract adopted the FPC price in effect at the time of the amendment and maintained that price. The trial court held that the language of the contract as amended clearly and unambiguously supported defendant’s interpretation and granted judgment in favor of defendant, dismissing plaintiffs claims for additional sums due. Plaintiff has appealed. We affirm.

The well which is the subject of this gas purchase contract was spudded and completed as an oil well in 1939, and first produced natural gas in 1955. The gas was first sold for resale in February, 1972, pursuant to a temporary contract between the owner, Lynco Petroleum Company, and Mid Louisiana Gas Company. In November, 1972, Lynco sold the well to G/O Enterprises, Inc. and in November, 1973, G/O as seller and operator entered into the present contract with buyer Mid Louisiana. Ernest Eldred of G/O and Vernon Woods of Mid Louisiana drew up the contract.

In December, 1973, Eldred filed a petition with the Federal Power Commission [FPC] for a disclaimer of jurisdiction and for a “small producer” certificate approving the sale. The FPC eventually denied the small producer certification and held that the sale of natural gas under G/O’s and Mid Louisiana’s contract was not a sale in interstate commerce and was not subject to the FPC’s jurisdiction.

In early 1976, the well began overproducing salt water. Vacuum trucks were used to dispose of the excess salt water. Neighbors objected to the noise created by the salt water disposal operations, as the well’s location was adjacent to a housing subdivision. Faced with threatened injunctive action and the prohibitive cost of the vacuum disposal, G/O shut down the well in April, 1976.

On June 3, 1976, Eldred discussed the problem in a telephone call to Woods, informing him that it would cost $20,000.00 to convert an adjacent oil well into a salt water disposal well so that production in the well subject of the G/O-Mid Louisiana contract could resume. On the same day, he wrote Woods a letter proposing two options for justifying the costs of the well conversion:

1. Mid Louisiana could increase the price on the gas to the maximum amount allowable under the FPC for gas produced after 1974 (even though we recognize that the FPC has no jurisdiction over this gas). All of the risks would be on G/O and its partners as to whether the well would pay out.
2. Mid Louisiana could advance the cost of the salt water disposal well with a payback out of the net proceeds (operating costs deducted).

On June 22,1976, Woods wrote to Eldred stating, “[i]n reply to your letter of June 3, 1976, Mid Louisiana is agreeable to increasing the price on the gas. I will draw up an amendment to the contract and forward it to you in the near future.” Woods drafted an amendment to the gas purchase contract and forwarded it to Eldred on June 23, 1976. Whether the parties communicated during the interval between Woods’ receipt of Eldred’s letter of the 3rd and Woods’ letter of the 22nd and the amendment draft following is a matter in dispute between the parties.

The amendment was executed by Eldred without change on July 16, 1976, and returned to Woods, the parties having agreed upon an effective date of July 1,1976. The amendment reads, in pertinent part:

WHEREAS, as an inducement to Seller to complete and place in operation a well for the disposal of the salt water, Buyer has agreed to increase the price payable under said agreement;
NOW, THEREFORE, in consideration of the premises, the parties hereto amend said agreement dated November 28, 1973, as follows:
1. Paragraphs (1) and (2) of Article VIII, “Price,” are deleted in their entirety and the following is substituted in place thereof:
“(1) Buyer agrees to pay Seller for each MCF of gas delivered or for which payment is due hereunder, the maximum just and reasonable rate which the Federal Power Commission, or other governmental agency having jurisdiction over gas sold for resale in interstate commerce, shall permit to be charged by small producers for gas of the same quality and character as that sold hereunder; provided, that such price shall not be higher than the amount per MCF which the Federal Power Commission, or other governmental agency having jurisdiction over Buyer’s rates, shall permit Buyer to include in its costs and charge to its customers as a part of its rates. Any increased price or prices payable hereunder, over and above the initial price provided below, shall be prospective only and effective from and after the date Buyer shall have had the opportunity to make effective an increase in its rates to its customers in order to collect from them such increased price or prices.
“(2) The parties acknowledge that in Opinion No. 742, issued August 8, 1975 in Docket No. R-393, the Federal Power Commission prescribed as the just and reasonable rate applicable to sales by small producers a rate equal to 130% of the Commission-determined base ceiling rate applicable to gas of the quality and character sold, which rate is subject to adjustment for the Btu content of the gas, for tax reimbursement, and for a gathering allowance where applicable. The parties further acknowledge that in Opinion No. 699-H, issued December 4, 1974 in Docket No. R-389-B, the Commission fixed a base ceiling rate applicable to gas not previously sold in interstate commerce prior to January 1, 1973 of 50 cents per MCF at 14.73 psia (51.00 cents per MCF at 15.025 psia), plus severance tax as actually paid, subject to adjustment for Btu content above or below, 1000 Btu’s per cubic foot at 60 F. and 14,73 psia, and an annual escalation beginning January 1, 1975 of 1 cent per MCF at 14.73 psia (1.02 cents per MCF at 15.025 psia). The Commission also authorized an upward adjustment of the price by an allowance for gathering. Accordingly, it is agreed that, for gas delivered on or after the date hereof, the initial price payable hereunder shall be 68.95 cents per MCF at 15.025 psia (130% X 53.04), [... plus tax reimbursement of 7.0 cents per MCF (at 15.025 psia), which amount shall be adjusted for Btu content of the delivered gas, and to which shall be added an allowance for gathering of 0.51 cents per MCF (at 15.025 psia), for a total price, based on the assumed average Btu content of the delivered gas of 998 Btu’s per cubic foot, of 76.31 cents per MCF (at 15.025 psia).] It is further agreed that payment of this price, and of any future charged price, is conditioned upon the further actions of the Federal Power Commission or other agency or reviewing court, both in fixing rates for small producers and in allowing Buyer to pass the price on to its customers; and that, accordingly, the above price will be adjusted to reflect any subsequent changes in either, and that the Seller will refund to Buyer any amounts paid by Buyer which are in excess of the per MCF cost of this gas which Buyer is allowed by the Federal Power Commission (or other agency or court) to pass on to its customers, together with interest from the date of payment by Buyer at an annual rate equal to that which is required by the Federal Power Commission, or other agency having jurisdiction, to pay on refunds to its customers. This refund will be due at the time of issuance of any such decision and may, at the option of Buyer, be recovered from 50 percent of the payments thereafter due for gas sold hereunder.” (disputed portions underlined).

From the time of this amendment forward, Mid Louisiana monthly paid G/O at the rate set by FPC opinion 699-H,- with the escalations provided for in the opinion. Although Eldred continually telephoned Mid Louisiana regarding periodical transfers of a few hundred dollars at a time to be taken from escrow and paid to G/O, G/O did not demand increased payment under the gas purchase contract until May 29, 1979, when John M. MeCollam wrote Woods demanding $392,422.31 as payment past due since the issuance on July 27,1976 of FPC opinion 770 which set forth a higher price for gas than 699-H. On cross-examination, Eldred agreed that despite the fact that G/O was getting 75 cents per MCF and he knew of a regulation requiring Mid Louisiana to pay $1.42 per MCF, he decided not to request the increase from Mid Louisiana before the May 29 letter “because it was probably too big a battle to take them on,” adding that “[i]t would be an economic problem for one thing.” When Mid Louisiana refused to make the increased payments as demanded, G/O brought the present suit.

Mid Louisiana transmits natural gas by interstate pipeline. Thus, although its purchase of gas from G/O constitutes an intrastate transaction, it is regulated by the FPC as a seller of gas in interstate commerce to distributors for resale to the public. At the times pertinent to this proceeding Mid Louisiana was required to obtain a certificate of public convenience and necessity from the Commission before executing a sale. The Commission’s regulations permit Mid Louisiana to pass through to customers only rates it deems prudently incurred.

Opinion 699-H set forth a rate of 50 cents per thousand cubic feet of gas with annual escalations of 1 cent per MCF (and several other adjustments not pertinent here) for sales of natural gas in interstate commerce for resale when “made pursuant to contracts for the sale of natural gas in interstate commerce for gas not previously sold in interstate commerce prior to January 1, 1973....” F.P.C. Op. 699-H, 256a(2)(ii). Because it was agreed that the parties’ transactions were to be considered in interstate commerce for pricing purposes as of July 1, 1976, they fit under this category.

Opinion 742, issued August 28, 1975, permitted a “small producer” to be paid “130 percent of the Commission-determined base ceiling rate applicable to a comparable large producer sale.” The parties agreed that G/O would receive this additional payment.

On July 27, 1976, Opinion 770, then amended by 770-A, was issued, providing that “(1) Sales of natural gas in interstate commerce for resale may be made at a rate of $1.42 per MCF ... provided: (i) The sale is made from a well commenced on or after January 1, 1973, and prior to January 1, 1975.” Op. 256a(l)(i). These máximums were of course only permissive, the verb may being used throughout the text. Opinion 770 as amended by 770-A did not affect rates established in 699-H for “gas not previously sold in interstate commerce prior to January 1, 1973,” and these continued in effect.

The Natural Gas Policy Act of 1978 extended Commission jurisdiction, as of December 1, 1978, to intrastate producer sales, like that between G/O and Mid Louisiana. The Act established a new maximum lawful price which no intrastate contract could exceed, and provided that contractual escalator clauses could have the effect of increasing prices to the latest maximum. This escalation would not be applied in all cases; rather, due respect would be given the parties’ intent to contract prices below the statutory maximum: Section 2701.101(b) provides, “[i]f the price established under a contract for the first sale of natural gas does not exceed the applicable maximum lawful price, then such maximum lawful price does not supersede or nullify the effectiveness of the price established under such contract.”

After passage of the NGPA in December, 1978, Eldred telephoned Woods claiming G/O was entitled to the maximum lawful price set out in the new Act. Woods informed Eldred that Mid Louisiana would continue paying the price it had paid in the past, pointing out that the 699-H rate had been continued in the NGPA and that the Act was not to escalate contracted rates to the NGPA maximum unless specific contractual authority was found to justify the Commission control. Eldred admitted that he did not at that time mention a claim under Opinion 770.

Eldred then made a written demand for the NGPA maximum price, again omitting any mention of the Opinion that had become effective July 27, 1976. In a letter of April 13, 1979, Eldred wrote about the disputed NGPA claim: “I am turning this matter over to our attorney, John McCo-11am, in preparation of filing suit to determine whether you are correct in your interpretation or we are correct in our interpretation.” The letter continued with G/O’s first allusion to a claim under Opinion 770: “It also appears that we have a claim retroactive back to the time which the FPC allowed the biannual price to escalate.” In a letter of May 29, 1979, Mr. McCollam made the first specific demand on Mid Louisiana for the Opinion 770 rate (see supra). Suit was filed September 25, 1979, and on January 18, 1982, the Civil District Court for the Parish of Orleans rendered judgment in favor of defendant. In his Reasons for Judgment, Judge Garvey stated:

“Considering all of the evidence and documents filed, the Court finds that the contract language is clear and unambiguous.
This is a contract entered into between knowledgeable people in the oil and gas field, holding themselves out as specialists.
If the contract words can be interpreted as clear and unambiguous, they should be enforced as such.”

Plaintiff specifies the following errors on appeal: (1) the Court was in error in finding that the language of the Amended Contract was clear and unambiguous and was in accord with defendant’s interpretation of the Amended Contract rather than plaintiff’s; (2) if the express language of the Amended Contract is not in accord with plaintiffs interpretation of it, the language is ambiguous and the Court was in error in not considering parol evidence, which clearly supports plaintiff’s interpretation of the Amended Contract; (3) alternatively, if the express language of the Amended Contract is not in accord with plaintiff's interpretation of it, then the Amended Contract does not express the mutual intent of the parties to the contract and should be reformed to reflect that intent; and (4) the Court was in error in stating in its Reasons for Judgment that both parties to the Amended Contract were specialists and thus equally knowledgeable in the area covered by the Amended Contract.

The motive for the Amended Contract was the raising of a sum of money sufficient to fund a salt water disposal well so that the natural gas well subject of the parties’ contract could resume functioning. The contractual amendment clearly set out this motive, the text beginning, “WHEREAS, as an inducement to Seller to complete and place in operation a well for the disposal of the salt water, Buyer has agreed to increase the price payable under said agreement....” The cost of the salt water disposal well was estimated at $20,000.00. Mid Louisiana, as an interstate seller of gas, was subject to FPC jurisdiction which restricted its freedom to set its gas purchase prices. The agreed-upon increase, therefore, had to be great enough to cover the costs of the disposal well, but small enough so that the FPC would consider the increase prudently incurred and permit Mid Louisiana to pass it through to its customers. In the face of these considerations, the parties decided that Mid Louisiana would facilitate G/O’s building and operating the disposal well by raising the price it paid G/O to the Federal Power Commission’s “maximum just and reasonable rate ... for gas of the same quality and character as that sold hereunder.” The Amendment cited Opinion 699-H and stated, “[ajccordingly, it is agreed that, for gas delivered on or after the date hereof, the initial price payable hereunder shall be 68.-95 cents per MCF ... ”, the 699-H price with the 130% small producer adjustment that the parties adopted. The initial price was to undergo an annual 1 cent escalation as provided for in 699-H. The parties were well aware that their intrastate contract was not subject to FPC price regulatipns, but agreed to adopt the higher FPC price nonetheless in order to effectuate the object of their contract — the financing of a disposal well which would permit production from the natural gas well to resume.

The parties devoted many pages of their briefs to the meaning of the contractual language “maximum just and reasonable rate” and “for gas of the same quality and character as that sold hereunder.”

The “maximum just and reasonable rate” is a term of art for the natural gas price ceiling federally promulgated after proceedings investigating various factors before fixing a rate in the public interest. Plaintiff asserts that it- is entitled to the most current “maximum just and reasonable rate” as set forth in FPC Opinion 770. It asserts that the Opinion 699-H price is set out in the contract as merely the initial price, and has now been replaced by the later Opinion 770 rate. Plaintiff contends that the words “quality” and “character” are synonymous as utilized in the contract, both referring to physical properties identifying the gas. Article X of the parties’ original 1973 contract defined the physical specifications coming under the word “quality.” Plaintiff asserts that the word “character” was included in the amendment’s language to cover physical properties not listed in that provision outlining quality specifications. Thus, plaintiff claims a right to the “maximum just and reasonable rate” set forth in the most recently issued FPC opinion for gas of the same physical characteristics as the gas under contract.

Defendant contends that the word “quality” covers the physical properties of the gas, and that “character” refers to the spud date of the well or the date the gas was introduced into interstate commerce and incorporates the rate applicable to that date. Defendant points out that the only applicable physical property that was not covered under Article X’s quality specifications was delivery pressure, so that under plaintiff’s interpretation the word “character” would serve as no more than the equivalent of “delivery pressure.” It is defendant’s position that equating the word “character” with time elements is the more intelligible resolution, “vintaging” the gas to the date of its fictional introduction into interstate commerce — July 1, 1976, the effective date of the contractual amendment. Thus, the “character” of the gas is the fact of its having come under FPC jurisdiction on July 1, 1976 so that its “maximum just and reasonable rate” was established under the latest Opinion in effect on that date— 699-H. Defendant suggests that it would be absurd to outline Opinion 699-H in such detail in the contractual amendment if it were not the price set for the gas, but rather just a starting rate to be modified by the next opinion issued by the FPC. It should be noted also that the contractual amendment does not state that “the initial price payable hereunder shall be the Opinion 699-H rate,” inferring, as plaintiff contends, that that initial opinion may thereafter be superceded. The amendment outlines Opinion 699-H, stating the price per MCF and elaborating on various price adjustments, including an annual escalation, and then agrees that “the initial price payable hereunder shall be 68.95 cents per MCF ...” The use of the word “initial,” defendant asserts, recognizes the fact that the Opinion does provide for changes in the price paid for gas, escalations which defendant observed in paying plaintiff the 699-H price over the years.

G/O highlighted four cases in support of its argument that the amended contract contains an indefinite escalator clause requiring Mid Louisiana to pay G/O the maximum FPC rate. In all of these cases, the court determined that the maximum price set forth in Opinion 770 was due, rather than one of the lower rates approved in that opinion for earlier-spudded wells.

In Kerr-McGee Corp. v. Northern Utilities, Inc., 673 F.2d 323 (10th Cir.1982), the trial court rendered judgment nullifying contractual language escalating the parties' gas rate to the NGPA ceiling, reasoning that that high rate was unconscionable and against public policy. The Tenth Circuit, reversing and holding the contractual language adopting the maximum FPC rate to be valid, was merely affirming the validity of the NGPA’s pricing system and assuring that the statutory maximum did not vioalte public policy. In the instant case, the validity of relevant statutory máxi-mums has been accepted without question. Rather, the issue is whether the parties intended to contract at a price below that permissible maximum.

In Amoco Production v. Stauffer Chemical, Etc., 612 P.2d 463 (Wyo.1980), the court considered that the policy of a most-favored nations clause mandated the adoption of the highest rate set in Opinion 770. In adopting a most-favored nations clause, the parties in Amoco had indicated their paramount interest in maintaining their gas pricing at a level competitive with the most highly paid of the purchaser’s other customers. The G/O Mid Louisiana contract did not contain such a clause. The paramount consideration of the G/O contract amendment was, as expressed in the preamble, the financing of the salt water disposal well.

Amoco Production Co. v. Kansas Power & Light Co., 505 F.Supp. 628 (D.Kan.1980), and Superior Oil Co. v. Western Slope Gas Co., 604 F.2d 1281 (10th Cir.1979) both concerned most-favored nations clauses, immediately making the argument for maximum pricing stronger than in the case at hand. Further supporting the adoption of the maximum prices was the fact that both purchasers at some point acted contradictorily to an intent not to pay the maximum as it escalated. In Amoco v. Kansas Power & Light, supra, the purchaser filed a rate application with the state commission for authorization to pass on increased costs to be incurred when the higher Opinion 770 price was paid. Only later did it withdraw its application and assert that its price was not subject to any increase. In Superior Oil, supra, the purchaser increased its price with the publication of Opinion 699-H, but refused to increase payments following the issuance of the next Opinion, 770. Unlike these examples, at no time did G/O behave as if Mid Louisiana was compelled to pay the maximum. Mid Louisiana consistently paid the 699-H price with applicable increases, and G/O did not dissent.

Legal agreements have the effect of law upon the parties and courts are bound to give them legal effect according to the true intent of the parties. La.Civ.Code art. 1945; Louisiana Nat’l Leasing Corp. v. A.D.F. Serv., Inc., 377 So.2d 92 (La.1979). Even within the confines of the FPC’s federal pricing regulation, the parties’ freedom to contract has been jealously guarded. The United States Supreme Court explained in U.S. Gas Pipe Line Co. v. Mobile Gas Serv. Corp., 350 U.S. 332, 76 S.Ct. 373, 100 L.Ed. 373 (1956):

In construing the [Natural Gas] Act, we should bear in mind that it evinces no purpose to abrogate private rate contracts as such. To the contrary, by requiring contracts to be filed with the Commission, the Act expressly recognizes that rates to particular customers may be set by individual contracts ... Recognizing the need these circumstances create for individualized arrangements between natural gas companies and distributors, the Natural Gas Act permits the relations between the parties' to be established initially by contract, the protection of the public interest being afforded by supervision of the individual contracts which to that end must be filed with the Commission and made public. [76 S.Ct. at p. 378],
¡⅝ * sfc * * ⅜
Our conclusion that the Natural Gas Act does not empower natural gas companies unilaterally to change their contracts fully promotes the purposes of the Act. By preserving the integrity of contracts, it permits the stability of supply arrangements which all agree is essential to the health of the natural gas industry. [76 S.Ct. at p. 380],

The Natural Gas- Policy Act of 1978, which extended FPC jurisdiction to intrastate producer sales expressed the same respect for the parties’ freedom to contract in Section 2701.101(b) [text supra ].

The intent of the parties becomes indisputable upon reviewing the actions they took while subject to their contract. Mid Louisiana monthly paid the Opinion 699-H price for an extended period of time, during which the FPC issued Opinion 770 introducing a higher maximum just and reasonable rate, with no complaint from G/O. Only after consulting an attorney over the separate issue of potential Natural Gas Policy Act increases did G/O begin to make any claim to the higher rate of Opinion 770, by then nearly three years old. It is difficult to imagine that G/O could have believed itself contractually entitled to the higher rate and yet, despite continued contact with Mid Louisiana over matters involving only a few hundred dollars, could have done absolutely nothing to request the higher FPC rate until, almost three years after the Opinion’s issuance, it made its initial demand for $392,422.31 in payments past due. It is equally difficult to imagine Mid Louisiana, subject to FPC price restraints for resale of purchased gas, negotiating an amendment to permit G/O’s financing of a $20,000.00 disposal well that three years later would cost Mid Louisiana not $20,-000.00, but twenty times that sum — and would continue to rise with each FPC opinion raising the maximum rate for natural gas sales.

The trial court weighed the evidence and evaluated the credibility of the witnesses and concluded that the contract clearly and unambiguously provided that the parties had contracted to adopt the rate of FPC Opinion 699-H and not, as the plaintiff had asserted, the current maximum rate as issued in the most recent FPC Opinion. This factual determination cannot be disturbed absent a showing of manifest error. Canter v. Koehring Co., 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). We find no such showing here. The judge considered all of the evidence and documents filed before holding the contract clear and unambiguous. After considering the same evidence and documents, we find no showing of manifest error, and affirm the trial court judgment.

Plaintiff asserts that the trial court erred in not holding the contract ambiguous in order to consider parol evidence in the form of oral testimony and letters written by the parties to the contract. Plaintiff asserts that the letters of June 3 and June 22, 1976, see supra, constituted an offer and acceptance resulting in a contract adopting the FPC maximum which agreement the contract once drawn up, reflected. Woods’s brief written reply that “Mid Louisiana is agreeable to increasing the price on the gas” is more easily considered a pre-acceptance communication culminating in a draft of an amendment which Mid Louisiana presented as an offer to G/O and which G/O accepted, than as a formal “acceptance” of an “offer” couched in G/O’s outline of “a couple of ways in which we could justify the costs (of the disposal well).” In any case, because the court specifically did consider such evidence in its holding, and we have affirmed that holding, this argument is dismissed.

Since the contract has been held to express the mutual intention of the parties, plaintiffs demand for a reformation of the contract is also dismissed.

As to plaintiff’s fourth claim, the trial judge noted that this was a contract between knowledgeable — he did not say “equally knowledgeable” — people in the oil and gas field. The court noted that they both held themselves out as specialists — it did not say they were specialists. G/O tendered Eldred to the court as an expert and the court qualified him as such — clearly then, the court was not in error in stating that he held himself out as a specialist.

For the foregoing reasons, the trial court judgment is AFFIRMED.

AFFIRMED.


author: GRISBAUM, Judge.

text:
    Elaine Roussel, wife of/and Gaskin James ROUSSEL v. Eartha J. BERRYHILL, et al. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY v. Eartha J. BERRYHILL.
    Nos. 83-CA-533, 83-CA-534.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 10, 1984.
    Rehearing Denied Feb. 17, 1984.
    Writ Denied April 2, 1984.

      Thomas J. Kliebert, Jr. and Michael K. Heltz, Gramercy, for plaintiffs-appellees.
    Bernard, Cassia, Babst & Saporito, Joseph S. Palermo, Jr., Metairie, for defendants-appellees.
    Jesse S. Guillot, New Orleans, for defendant-appellant.
    Before BOUTALL, GRISBAUM and DU-FRESNE, JJ.
   GRISBAUM, Judge.

This consolidated action involves a two-car collision with resulting injuries. Defendant, Eartha Berryhill, while driving along Louisiana Highway 44, crossed the center line of the road and collided with plaintiff’s, Roussel’s, vehicle. Ms. Roussel and her husband, Gaskin James Roussel, filed suit individually and on behalf of their minor children for the injuries sustained. Made defendants are Ms. Berryhill; Dairy-land Insurance Company, insurer of the Berryhill car; the State of Louisiana through the Louisiana Department of Transportation and Development (DOTD); and Southern Farm Bureau Casualty Insurance Company, the Roussel’s motor vehicle insurer. The DOTD answered, denying liability and alleging negligence on the part of Ms. Roussel and Ms. Berryhill. Southern Farm, in a separate lawsuit, filed an action against Ms. Berryhill and Dairyland to recover by way of conventional subrogation monies paid to the Roussels under the terms of the medical payment and uninsured motorist coverage clauses of the Southern Farm insurance policy. This suit was consolidated with the Roussel’s main demand. The trial was held in October and November of 1982.

The trial court awarded damages to Elaine Roussel, Dru Ann Roussel, and Sherie Roussel for personal injuries sustained in the accident. It further awarded medical expenses paid for treatment of injuries of all family members to Gaskin and Elaine Roussel and $1,000,000 to Shaun Roussel, the six-month old son of Mr. and Ms. Roussel, for all injuries, mental, physical, and economic, sustained by him. The trial court found the DOTD failed to properly maintain the highway in a safe condition and also found defendant Eartha Ber-ryhill’s negligent driving to be a concurrent cause of the injuries. The trial court held the DOTD liable for the full amount of damages awarded and Berryhill liable with the DOTD in solido for $10,000 of the damages, the limit of Berryhill’s insurance policy. From this judgment, the DOTD suspensively appeals, alleging it was not negligent in the maintenance of Louisiana Highway 44, and that, even if the highway was poorly maintained, Berryhill’s negligence was the proximate cause of the accident. Further, the DOTD claims damages awarded to Shaun Roussel are excessive. Shaun’s parents, on his behalf, answer the appeal requesting the trial court’s award be increased to $2,000,000. We affirm.

Two issues are presented:

(1) Whether the DOTD is strictly liable under article 2317 of the Louisiana Civil Code for the accident and the resulting injuries to the Roussels, and whether the DOTD was negligent under article 2315 of the Louisiana Civil Code in its failure to maintain the safety of its highway.

(2) Whether the record clearly reveals the trial court abused its discretion in awarding $1,000,000 in damages to Shaun Roussel.

FACTS

On the afternoon of July 24, 1978, Elaine Roussel was driving her truck in a northerly direction along Louisiana Highway 44, and the defendant, Eartha Berryhill, was driving her car in a southerly direction along the highway. As both vehicles were entering what is commonly called the “Wel-ham Curve”, the Berryhill car skidded across the center line of the highway, entered the northbound lane of traffic, and collided with the Roussel vehicle.

As a result of the accident, the occupants of the Roussel truck, Elaine and her children, Dru Ann, Sherie, and Shaun, sustained serious personal injuries. Immediately following the accident, Shaun was rushed to St. James Parish Hospital in Lutcher, Louisiana for emergency treatment. Dr. Carl Poche, a family practitioner, was called to the emergency room. He testified at trial Shaun was crying and screaming which, he said, indicated the child was in pain. Upon examination Dr. Poche discovered a “large mushy probable hematoma of the entire right side of the head.” His interpretation was there were multiple fractures radiating in different directions and a depressed fragment of skull bone in the right temporal and right parietal areas of the skull, which indicated a severe injury to the head. He referred Shaun to Ochsner Foundation Hospital, and upon arrival there, Shaun was examined by Dr. Richard A. Coulon, Jr., a specialist in the field of pediatric neurosurgery. Dr. Coulon’s examination revealed a cephalohe-matoma, a swelling over the right side of the head under the scalp. Dr. Coulon noticed a decreased movement in the upper and lower extremities and a weakness in the left upper extremity consistent with brain damage. He stated at trial Shaun had abnormal eye findings, which were consistent with damage to the right side of the head. X-rays taken of Shaun’s skull showed a quite significant right skull fracture which ran from the front all the way to the back on the left side of the head. According to Dr. Coulon the child developed an epileptic seizure within 24 hours of the examination and was started on the drug, phenobarbital. At one point the doctor was concerned with the possibility of a blood clot in the infant’s head, and he decided to perform exploratory surgery on August 4, 1978 at Ochsner Foundation Hospital at the fracture site to see if part of the brain was working its way through the fractured bone. The surgery revealed the brain was extruding throughout the entire length of the fracture so that the bones were forcefully separated, the covering of the brain torn. It was necessary for Dr. Coulon to remove devitalized tissue from the fracture site. According to Dr. Coul-on’s orders, Shaun is to be kept indefinitely on phenobarbital to prevent subsequent epileptic seizures.

In addressing the initial issue, it is necessary to determine whether article 2317 of the Louisiana Civil Code is applicable. Louisiana jurisprudence permits recovery on the basis of strict liability under article 2317 of the Louisiana Civil Code when (1) the thing which caused the damage was in the care or custody of the defendant, (2) the thing had a vice or defect, that is, some condition which occasioned an unreasonable risk of injury, and (3) the injury was caused by the defect. Jones v. City of Baton Rouge, 388 So.2d 737, 739 (La.1980); Alternan v. State of Louisiana Department of Highways, 416 So.2d 272, 276 (3d Cir.1982); and Everett v. Louisiana Department of Transportation and Development, 424 So.2d 336, 339 (1st Cir.1982).

CUSTODY

The DOTD admits Louisiana Highway 44 is in the care and custody of the State by virtue of L.S.A.-R.S. 48:191.

DEFECT

The plaintiffs introduced several letters and presented testimony to substantiate their allegation that Welham Curve was so hazardous as to warrant state action. On October 3, 1977, Mr. J.C. McGrew, District Engineer of the Louisiana Department of Highways, wrote to Mr. George A. Fischer, Secretary DOTD, stating:

Realignment of Welham Plantation State Route La. 44 has a very severe reverse curve at this location which should be realigned. The Jury and/or Levee Board has removed a portion of the levee embankment to provide better sight distance, but now finding approaching the curve is being hit more often and the accident occurrence has apparently increased. Realignment is severely needed and Mr. W.T. Taylor has since advised me he will have the curve geometry studied for possible realignment. (Emphasis added)

On August 4, 1978, Representative Joseph Accardo, Jr. wrote to St. James Parish Sheriff Gordon Martin stating he had conferred with Mr. W.T. Taylor, Assistant Secretary of DOTD, concerning the dangerous condition of the road at Welham Curve. Further, on August 14, 1978 Mr. Taylor advised Mr. Paul Keller, St. James Parish Policy Jury President, that Welham Curve was being prepared for a redesign “in an effort to reduce the hazards at this curve.” Representative Accardo testified he had personally discussed with Mr. Taylor the hazardous conditions of Welham Curve.

Nathan Ficklin, an accident reconstruction expert, whose testimony was unrebut-ted, stated the road’s substandard adhesive qualities and defective horizontal alignment caused the accident. Ficklin conducted a slope meter test at Welham Curve and concluded it was safe to traverse at 25 miles per hour when the road is dry. No tests were run at Welham Curve when it was wet. Kenneth Mason, a DOTD traffic and planning specialist, also ran a slope meter test at Welham Curve when it was dry, his results concurring with those of Ficklin. Although no tests were conducted at Wel-ham Curve when it was wet, a general consensus existed between these experts that a road’s surface, when wet, will have less adhesive qualities than when dry.

Louisiana State Trooper Victor F. Summers, III, the investigating officer, testified the posted speed limit at Welham Curve, is 45 miles per hour and that there are no warning signs near the curve to warn of the road’s surface being slippery when wet.

Deputy Sheriff John M. Falgoust stated that when the road is wet, cars “lose the curve,” causing them to fishtail and cross over the center of the road. Further, he testified that one cannot even stand in the curve when it is, wet without slipping and falling. In addition, Deputy Sheriff Kenneth M. Oubre testified that whenever it rained, “lots of fishtailing” occurred in the curve resulting in accidents. Oubre, who investigated the accident, along with Deputy Summers, testified he personally experienced slipping and skidding in the Welham Curve and stated he knew of no other curve which is as dangerous. Finally, St. James Parish Chief Deputy Sheriff Steven Reed testified that Welham Curve was “bad” and that far too many accidents occurred there.

The defendant, Berryhill, testified that once in the curve, she saw the oncoming vehicle and started to apply her brakes, trying to avoid colliding with the Roussel vehicle. She testified she was driving a new car and did not experience any vehicular malfunction at the time of the accident.

The trial court stated in its reasons for judgment that the testimony of these witnesses regarding objectively verifiable evidence of the road’s defect was “completely credible.” Based upon the overwhelming and unrebutted testimony presented by the plaintiff, we find, as the trial court did, the road’s substandard adhesive qualities and defective horizontal alignment presented an unreasonable risk of injury.

CAUSE

The defective condition of Louisiana Highway 44 is easily associated with the harm incurred by the plaintiff and is a cause in fact of the harm. The DOTD alleges Berryhill’s negligence is the sole proximate cause of the accident, but this court finds the defective road was a substantial factor in causing the accident, and thus the defective road and Berryhill’s negligence are concurrent causes.

While the DOTD is not a guarantor of the safety of all traveling motorists, courts have consistently found the state owes a duty to keep highways and shoulders reasonably safe for non-negligent motorists. Sinitiere v. Lavergne, 391 So.2d 821, 824-825 (La.1980). The record clearly reveals Elaine Roussel was not negligent. Eartha Berryhill was held negligent by the trial court because, while she was driving below the posted speed limit, she was driving too fast given the weather and road conditions in this particular situation thereby violating Louisiana Revised Statute 32:64 A . Furthermore, it is proven in the record that Berryhill was familiar with Welham Curve, and thus was aware of the need to drive more slowly. Even so, fault on the part of the DOTD was substantial and Berryhill’s negligence was not so significant as to absolve the DOTD from liability. Everett, 424 So.2d 336, 342. The DOTD’s duty to maintain the safety of its highways is imposed to protect against risks such as the one presented by this particular set of facts. The DOTD owed this duty to the plaintiffs, breached it, and is liable to them pursuant to article 2317 of the Louisiana Civil Code.

In addition, in view of the DOTD’s duty to see that highways are reasonably safe for persons exercising ordinary care and reasonable prudence and in view of the evidence that the Department was informed of the danger and had ample opportunity to cure the highway’s defects, there is a prima facie case of negligence under article 2315 of the Louisiana Civil Code against the Department. Everett, 424 So.2d 336, 341.

In addressing the second issue of whether the record clearly reveals the trial court abused its discretion in awarding $1,000,-000 to Shaun Roussel, the record shows, after the required reconstruction skull surgery which was performed by Dr. Coulon in August of 1978, Shaun suffered permanent damage to his brain. He was examined by Dr. Coulon at Ochsner periodically during the several years following the surgery. On October 18, 1978, Dr. Coulon noted the child was beginning to develop symptoms of spasticity and his movements were becoming more rigid. On September 27, 1979, Dr. Coulon further noted Shaun had persistent spastic change on the left side of his body and his Achilles tendon was tight and was causing an abnormal gait. Shaun was beginning to toe walk and throw his hip out, and he had relatively little use of his upper left extremity. He was seen again by Dr. Coulon in January of 1980, at which time the doctor noted there had been absolutely no change in Shaun’s left-sided symptoms. In June of 1980, Dr. Coulon observed that Shaun’s Achilles tendon was still tight, but there was some relaxing in the upper extremity, and the flex posture was loosening. In addition, there was evidence Shaun was experiencing speech delay. Dr. Coulon’s prognosis is as follows:

I think Shaun is going to be a permanent ... is going to have permanent deficit as a result of his injury. And I think the most obvious deficit is the spastic weakness of his left arm and left leg. I think also he has got an excellent chance of being epileptic.

Dr. Coulon testified Shaun would be limited by his lack of coordination and inability to function with the left side of his body. He stated, “(Shaun) is going to have the same limitations most likely that some stroke victims have.”

As for earning capacity, the doctor stated he believed Shaun would not be able to engage in most occupations, especially manual labor occupations. The child, according to Dr. Coulon, will be unable to engage in any activity requiring good legs and reflexes or good coordination in both hands. Dr. Coulon stated Shaun has the capacity in his left arm for gross movement only and is unable, for example, to button a coat or open a safety pin.

Three other witnesses testified with regard to Shaun’s condition. Gail Wiltz, an evaluation coordinator, determined Shaun’s mental age to be 2 years, although he was chronologically 2.8 years old at the time of the evaluation. Wiltz also determined Shaun to have a low intelligence range which is 1 year and 8 months below his chronological age. She stated the child needs a speech program because of his speech impairment which, she added, may be due to anxiety.

Jane Roussel, an employee of the St. John Baptist Parish School System, qualified as an expert registered occupational therapist. She testified she believed Shaun would be capable of performing only sedentary work during his lifetime; due to his perceptual deficits he will be at risk of failing to master reading and writing skills and will be placed in different learning situations than a normal child; and his ability to function in an educational setting will be limited. Roussel based these conclusions upon a finding of perceptual and upper extremity problems.

Plaintiff’s witness, Ronald Schroeder, who qualified as an expert in economics, calculated loss of future wages, and his testimony on this matter was unrefuted. He subtracted the projected minimum wage from the projected average production wage for the 52 years in which Shaun can be expected to be employed. Shaun’s employment years were predicted to begin at 18 years of age, the age at which high school graduates who do not attend college typically begin to work, to the age of 70, the mandatory retirement age. Upon arriving at a figure for lost wages, Schroeder utilized a 5 percent discount rate, as well as an 8 percent and 12 percent discount rate to reach a final amount for loss of earnings. By Schroeder’s calculations, a 5 percent discount rate would yield a loss of future earnings in the amount of $1,801,-682; an 8 percent rate would yield $813,-846; and a 12 percent rate would yield $332,036. Schroeder stated at trial a 5 percent discount rate is “ultra conservative,” and the trial court stated in its reasons for judgment that it accepted 6 percent as the appropriate discount rate.

We find the trial court’s reliance on Schroeder’s calculations for loss of future earnings was not an abuse of discretion. No alternative means for calculating loss of future earnings was presented by the evidence, and the plaintiff’s expert made reasonable calculations despite the complexity of determining the child’s projected wages. Moreover, Louisiana jurisprudence has found the utilization of a 6 percent discount rate to be acceptable. See, Falcon v. Bigelow-Liptack Corp., 356 So.2d 507, 513 (1st Cir.1977).

Prom the medical and supporting expert testimony, this court finds the plaintiff has succeeded in proving (1) he has a physical disability caused by the accident and (2) he will be unable to perform skilled labor due to this disability. Moreover, the evidence presented at trial supports the trial court’s assumption that Shaun will be restricted to a minimum wage job as a result of his injury. The preponderance of the evidence shows Shaun suffers from an academic handicap which may well be attributable to his injury. Thus, Shaun is unable to succeed in college. While, arguably, the plaintiff did not succeed in proving by a preponderance of the evidence that Shaun’s academic disability was caused by the accident, the DOTD must take its victim as it finds him. Perniciaro v. Brinch, 384 So.2d 392 (La.1980).

This court finds the child should not be deprived of an award of lost future earnings, extended over a lifetime, simply because he was unemployed at the time of the injury and cannot prove “actual loss.” Our Louisiana Supreme Court in Folse v. Fakouri, 371 So.2d 1120, 1123 (La.1979) recognized that damages for loss of future earnings or loss of future earning capacity should be based upon the injured person’s ability to earn rather than upon what he actually earned prior to the injury. The Folse court stated damages may be assessed for the deprivation of what the injured plaintiff could have earned despite the fact that he may never have seen fit to take advantage of that capacity. The theory is that the injury done him has deprived him of a capacity he would have been entitled to enjoy even though he never profited from it monetarily. Folse, supra.

There is nothing in the record to enable the reviewing court to determine the exact amount of the $1,000,000 award which covers loss of future earnings at a 6 percent discount rate. The trial judge stated he acceptéd 6 percent as the appropriate discount rate in this case but failed to give the discounted figure, which is impossible to determine based upon what appears in the record. This figure, when subtracted from the $1,000,000 award, leaves the amount awarded for pain and suffering. Consequently, it is difficult for this court to review the award for pain and suffering. Regardless, the trial court’s determination of damages will not be disturbed unless the record clearly reveals an abuse of discretion. Perniciaro v. Brinch, 384 So.2d 392 (La.1980). Since the $1,000,000 awarded is substantial enough to cover an amount of damages for loss of future earnings which is supported by Schroeder’s testimony, along with a reasonable amount for pain and suffering, this court finds there is no abuse of discretion. Schroeder’s testimony supports an award for lost future earnings in an amount ranging from $332,036 to $1,801,682. If, for example, the trial court intended to award Shaun $950,000 lost future earnings, the amount for pain and suffering is then $50,000, and in awarding this amount the trial court would not have abused its wide discretion.

For the reasons assigned, the judgment of the trial court is affirmed. All costs of this appeal are to be assessed against the appellant.

AFFIRMED.

      . LSA-R.S. 32:64 A
      A. No person shall drive a vehicle on the highway within this state at a speed greater than is reasonable and prudent under the conditions and potential hazards then existing, having due regard for the traffic on, and the surface and width of, the highway, and the condition of the weather, and in no event at a speed in excess of the maximum speeds established by this Chapter or regulation of the department made pursuant thereto.


author: GRISBAUM, Judge. BOUTALL, Judge,

text:
    Oscar DAVILA, et al. v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, et al.
    No. 83-CA-280.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 10, 1984.
    Rehearing Denied Feb. 17, 1984.
    Writ Denied April 2, 1984.

      Carlos Zeledon, James Maher III, New Orleans, for plaintiffs-appellees.
    Hubert A. Vondenstein, Steven B. Wit-man, Gretna, for defendant-appellant.
    Before BOUTALL, KLIEBERT, BOWES, GAUDIN and GRISBAUM, JJ.
   GRISBAUM, Judge.

The Parish of Jefferson appeals the judgment in favor of appellees, Oscar and Mercedes Davila, for the wrongful death of their son. Eighteen-year old Napoleon was killed when a train struck the car he was operating. Appellant argues the trial court erred (1) in finding the Parish of Jefferson had actual or constructive notice of the condition of the road which they maintained, (2) in finding a hole in the road was a cause in fact of the accident, and (3) in finding Napoleon Davila free of contributory negligence. Appellees answer asserting the award of $20,000 to each parent should be increased. We affirm.

On August 27, 1978, Napoleon Davila was driving south on South Kenner Road in Jefferson Parish to dispose of family trash at the dump. Napoleon reached a crossing of railroad tracks and drove past the northern gate and over the northern set of tracks owned by the Missouri Pacific Railroad. When Napoleon reached the southern set of tracks, the automobile was struck by a train owned and operated by Southern Pacific Transportation Company. Napoleon Davila was killed as a result of the accident, and his parents, Oscar and Mercedes Davila, instituted this suit against both Southern Pacific and the Parish of Jefferson for damages.

A bifurcated trial was held with the jury deciding issues of negligence relative to defendant, Southern Pacific, and the court deciding issues of negligence relative to defendant, Parish of Jefferson. On the 21st of May 1982, the jury returned a verdict in favor of defendant, Southern Pacific, finding it free of negligence, and on June 15, 1982, the court rendered judgment consistent with that verdict. The trial court rendered judgment on June 30, 1982 in favor of Oscar and Mercedes Davila for $20,000 each and $1663.28 special damages for funeral expenses, cemetery charges, and emergency room fees against defendant, Parish of Jefferson.

In its reasons for judgment, the trial court made the following factual conclusions: Napoleon Davila passed around a lowered guard rail and stopped his car on the railroad track when he saw the approaching train. The engineer of the train reported seeing the automobile roll backwards and forwards prior to the collision. Napoleon Davila’s automobile became trapped in a deep water-filled hole in the road adjacent to the track, that he was unable to extricate himself from it, and that this was the proximate cause of the accident. The trial court further found that the Parish had received notice on prior occasions of the defects in the road and had done nothing to remedy it. Based on these factual conclusions, and an agreement introduced into evidence between Southern Pacific Railroad and the Parish of Jefferson showing the Parish agreed to assume responsibility for maintaining the area of road in which the hole was located, the court found the Parish of Jefferson guilty of negligence.

After a careful review of the record, we accept the findings of the trial court, except the conclusion that Napoleon stopped his car on the track when he saw the approaching train, noting the contradictory evidence on this point. Joseph Hank-ton, Jr., engineer for Southern Pacific, testified at trial he first saw the car going around the northern crossing gate and over the adjacent set of tracks. He then temporarily lost sight of the car and saw it again as he came up on the Southern Pacific tracks, stopped, rolled back about a foot, rolled forward, and then stopped. However, according to the Sheriffs deputy who investigated the accident just subsequent to its occurrence, the engineer reported that when the train rounded the curve he saw the vehicle already across the track. Thus, when the event was fresher in the mind of the engineer, he remembered first seeing the car on the track, not driving toward it. The only other witness to the accident who testified at trial was the brakeman of the train. He testified he first saw the vehicle on the Southern Pacific Railroad track. Thus, it is more likely Napoleon Davila had been on the track prior to the train approaching but was unable to free himself from his predicament in time.

An analysis of this negligence case involves evaluating the relationship between the Parish of Jefferson’s duty and the particular risk involved. The Parish of Jefferson has a duty to maintain a safe roadway traversing the railroad track to prevent the risk of a vehicle becoming trapped on the track. The record is replete with testimony establishing the Parish breached its duty to reasonably maintain the road and the Parish had constructive if not actual notice of the dangerous situation. Ken Rauch, who lived a mile and a half from the crossing for 20 years, stated:

The worst hole coming north to the south was on the right-hand side but that was the worst hole but they had so many trucks passing back and forth that you don’t know where you’re going to have another new hole because the asphalt was so deteriorated when if a big truck comes over and slams on his brakes well he done created another hole. That’s how soft it was back there and bad.

Mr. Gilbert Smith, who lived three blocks from the railroad crossing, substantiated the testimony that the road surface was torn up very badly with holes and high mounds. Mr. Floyd Dyson, who lived one-half mile north of the South Kenner crossing, used the route over the crossing every day to and from work. He stated that for practical purposes, the tracks were impassable for passenger vehicles because of the deplorable condition of the blacktop. Mr. Dyson also testified he complained to the Parish about the roadway conditions. Although we would not say the Parish of Jefferson could have prevented the roadway deterioration, the Parish is required to make reasonable maintenance efforts and reasonable inspections. The Parish of Jefferson, therefore, either knew or should have known of the dangerous condition of the roadway and should have made reasonable inspections and maintenance efforts to remedy the situation or to warn passersby of the dangerous condition. Because of the long duration of time that the condition existed, as established by witnesses at trial, we find the Parish of Jefferson had constructive notice of the defect and failed to remedy it. Swain v. Sewerage and Water Board of New Orleans, 413 So.2d 233 (La.App. 4th Cir.1982); State Farm Mut. Auto. Ins. Co. v. Slaydon, 376 So.2d 97 (La.1979).

Appellant argues on appeal there is no evidence in the record to support a finding that the hole played a causative role in the accident. The plaintiff’s burden in this case is to prove causation by a preponderance of the evidence. This burden may be met either by direct or circumstantial evidence. Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971); Naquin v. Marquette Casualty Company, 244 La. 569, 153 So.2d 395 (1963). Taken as a whole circumstantial evidence must exclude other reasonable hypotheses with a fair amount of certainty. This does not mean, however, that it must negate all other possible causes. DeBat-tista v. Argonaut-Southwest Ins. Co., 403 So.2d 26 (La.1981). Appellants assert there are many other possible causes of the collision. However, the existence of these other possibilities does not negate the circumstantial case proven here that the pothole was the cause of the accident. The existence of one particularly large pothole in “direct proximity to the tracks where the Davila vehicle was spotted is uncontrovert-ed. The observation of the engineer that he saw the car roll forwards and backwards about a foot would support a finding the car was stuck in the pothole and Napoleon was unable to extricate the car from it. The evidence of Napoleon’s plight in the pothole fairly excludes other reasonable hypotheses as one is presumed to act in response to natural instincts of self-preservation and not expose oneself to unnecessary risk of death. Watson v. Illinois Central Gulf Railroad, 355 So.2d 1366 (La.App. 1st Cir.1978).

Appellants strenuously assert appellees should be barred from recovery because of the contributory negligence of Napoleon. They argue that by driving around a lowered crossgate in violation of La.R.S. 32:171 Napoleon Davila was negligent. However, the evidence is overwhelming the crossing gate, at this particular crossing, malfunctioned on a regular basis. John Matran, a paramedic employed by Jefferson Fire Department and Emergency Medical Services, testified at trial he observed two types of malfunctions. At times, he stated, the arms would be down with no train coming and, at other times, he witnessed the arms rapidly going up and down with lights flashing. Mr. Rauch testified he went through the crossing the evening before and the morning of the accident and the gates were malfunctioning at that time. The north gate was going up and down. He stated, “you’d sit there and wait five, ten minutes and then you’d try to sneak around it because it had been operating in this manner for quite a few days.” Mr. Dyson testified about the malfunctions of the crossing arms, having witnessed times when the arms were going up and down, times when the arms were down and no train was passing, and times when the arms were up and the train was passing. He stated the crossing signals malfunctioned two to three times a week and as a motorist he could not rely on them. Mr. Smith saw the signals malfunctioning with lights blinking and the cross arm down yet no train coming. He testified one morning he went through the crossing with gates lowered three times within 15 minutes and saw no train approaching. He also witnessed the arms going up and down rapidly and one knocked off the crossing. Mr. Smith stated, “the only thing that signal means to me is that the lights are not burned out.” When questioned why, he stated, “like I say, they’d be down and the train wouldn’t be coming.” Mrs. Billy Sla-ton, who lived approximately a half-block from the Davilas along South Kenner Road, testified about the malfunctioning signals and stated she did not trust the crossing.

Despite all of the foregoing testimony, appellant relies on the case of Thibodeaux v. Carlock, 392 So.2d 1084, 1086 (La.App. 3d Cir.1980) which states, “The driver of a vehicle cannot be relieved of his duty to stop at a railroad crossing simply because he believes the crossing signals are malfunctioning.” While we would agree one is still under a duty to stop, look, and listen at a railroad crossing when the signals indicate an approaching train, we are also of the opinion that given the history of frequent malfunctions at the crossing, it is not per se negligence to then go around a lowered cross gate if done with great care and attention.

We feel the facts establish that when Napoleon Davila went around the cross gate that either the train had not yet reached the point where it was sounding its whistle or because of the airplane noise and the high vegetation, combined with the curve of the tracks, he was unable to detect its presence. Mr. Rauch stated the airplane noise in the area was very loud and that one could not see a train when it came out of the curve on the Southern Pacific tracks because of vegetation. He stated one’s front tires had to be almost on the tracks before you could see the train coming out of the curve. Mr. Dyson also testified planes were flying overhead every three to four minutes in the summer of 1978 and that the sound drowned out all other sounds. He agreed with Mr. Rauch that one had to be almost to the tracks to look down the track. Mr. Smith agreed one had to be very close to the track to see down the curve and agreed the plane noise in the area was very loud. Mr. Slayton testified he had experienced being unable to hear a train until the last minute as a jet had passed overhead and the jet noise was louder than the train.

Therefore, we find Napoleon Davi-la approached the Southern Pacific Railroad track with reasonable care when his car became lodged in a deep pothole. From the time he could see the train as it rounded the curve, he had approximately only 11 to 20 seconds to extricate his car and/or himself. Appellant would have us rely on the case of Johnson v. Clade, 309 So.2d 794 (La.App. 4th Cir.1975) which stated in a similar situation that a man was contributo-rily negligent in failing to heed the warning whistle of the train and to escape from the car. However, the Johnson case deals with a longshoreman who had been working around the waterfront for many years. The court felt from this man’s experience he should have known it would be prudent to watch for approaching rail traffic in sufficient time to abandon his vehicle. However, in our case, we are dealing with an eighteen-year old high school student who was driving his parents’ car on a family mission to dispose of the family trash. He was described as a polite, quiet child who was at all times obedient. We cannot say that Napoleon Davila was a contributing proximate cause of the ensuing collision. Rather, we are of the opinion that the risk of injury from a motorist’s panicked reaction to the sudden presence of a train bearing down on his vehicle produced by the Parish’s failure to provide a passable surface, is within the scope of protection of the rule of law which requires the Parish to maintain safe roadways.

Appellees assert the trial court awarded insufficient damages in view of the facts of the case and the prevailing jurisprudence. Appellate court review of quantum is guided by two basic principles: (1) To modify the amount of an award for general damages, an appellate court must find that the trial judge or jury abused its much discretion accorded by La.C.C. art. 1934(3); (2) The awards in other cases serve only as an aid in determining whether there has been an abuse of discretion.

The question is not whether a different award might have been more appropriate, but whether the award of the trial court can be reasonably supported by the evidence and justifiable inferences from the evidence before it. That such evidence might also support a greater (or smaller) award will not justify a change in the amount by the appellate court. Bitoun v. Landry, 302 So.2d 278 (La.1974); Coco v. Winston Industries, Inc., 341 So.2d 332, 334 (La.1976).

Although appellees cite cases which awarded a far greater sum than the quantum in the instant case, appellant cites cases which found a $20,000 award to each parent reasonable. Therefore, the present award is not clearly out of line with the existing jurisprudence. After a review of the record, we find the award to be reasonably supported by the evidence and justifiable inferences so as not to be an abuse of the trial court’s much discretion.

For the reasons assigned, we affirm the judgment of the trial court in favor of appellees, Oscar and Mercedes Davila, in the amount of $20,000 each, plus special damages in the amount of $1663.28, together with legal interest from date of judicial demand, plus all costs of the lower court proceedings. Each party is to pay their own costs on appeal.

AFFIRMED.

BOUTALL and GAUDIN, JJ., dissenting.

BOUTALL, Judge,

dissenting.

I agree with the finding of negligence upon the Parish of Jefferson based upon its failure to maintain the roadway properly. There is ample evidence to support the trial judge’s finding that a large pot-hole was in the roadway at this point where vehicles would normally traverse and that the plaintiff’s vehicle got trapped in the pot-hole and he could not extricate himself timely.

However, I dissent because I am convinced that the decedent driver was guilty of contributory negligence and that by his actions, he assumed the risk of being hit by an oncoming train. The trial judge in his Reasons for Judgment did not discuss the question of contributory negligence, but he stated the following: “Evidence adduced at trial indicated that Napoleon Davila passed around a lowered guard rail, and stopped his car on the railroad tracks apparently when he saw the approaching train.”

L.R.S. 32:171 requires a motorist to stop within 50 feet but not less than 15 feet from the nearest rail of a railroad and not to proceed until he can do so safely when a crossing gate is lowered and when clearly visible electrical signal devices give warning of the immediate approach of a railroad train. It logically follows that a motorist perceiving such a situation must conclude that there is more danger present than if the signals are not in operation. When he chooses to ignore the safety barrier and drive upon the track, he must be even more attentive to imminent danger and ascertain that the way is clear. In this case the position of the track upon which the collision was had and the warning gate for vehicles travelling in that direction is apparently 100 feet or so, there being two sets of railroad tracks in this area. The evidence produced by the railroad clearly showed that the train gave whistle, bell and light signals upon its approach. Even presuming for the sake of argument that the driver was aware that on prior occasions the gate may be down with no trains approaching, there was at least 90 feet of safe area'during which the decedent could have observed or heard the approach of the train. Certainly, if the engineer could see him, he could see the train.

There is nothing in the opinion of the trial judge which indicates that he did not give full credibility to the testimony of the engineer. Indeed to the contrary, it appears that he accepted that testimony. Parenthetically, this case was also tried by jury trial simultaneously against the railroad as a defendant. The jury found no negligence on the part of the railroad and presumably also considered the credibility of the engineer to be good.

For these reasons, I would reverse the judgment of the trial court rendering judgment in favor of the Parish of Jefferson dismissing plaintiffs’ suit.

GAUDIN, J., dissents for the reasons assigned by BOUTALL, J., above.

      . § 171. Obedience to signal indicating approach of train
      A. Whenever any person driving a motor vehicle approaches a railroad grade crossing under any of the circumstances stated in this Section, the driver of such vehicle shall stop within fifty feet but not less than fifteen feet from the nearest rail of such railroad, and shall not proceed until he can do so safely. The foregoing requirements shall apply when:
      (1) A clearly visible electric or mechanical signal device gives warning of the immediate approach of a railroad train;
      (2) A crossing gate is lowered or when a human flagman gives or continues to give a signal of the approach or passage of a railroad train;
      (3) A railroad train approaching within approximately nine hundred feet of the highway crossing emits a signal in accordance with R.S. 45:561, and such railroad train, by reason of its speed or nearness to such crossing, is an immediate hazard;
      (4) An approaching railroad train is plainly visible and is in hazardous proximity to such crossing.
      B. No person shall drive any vehicle through, around or under any crossing gate or barrier at a railroad crossing while such gate or barrier is closed or is being opened or closed. Acts 1962, No. 310, § 1.

      . Art. 1934. Measure of damages for breach of contract ...
      3. ...
      In the assessment of damages under this rule, as well as in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury, ...