text:
    Stephen G. MARTIN v. GULF SOUTH BEVERAGES, INC., Canada Dry Mid South, Inc., Lastarmco, Inc., Aluminum Company of America, Inc., a/k/a Alcoa, and Zapata, Inc.
    No. 84 CA 27.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 29, 1984.

      Christopher T. Grace, Jr., P.C., New Orleans, for plaintiff-appellee.
    Joseph R. Ward, Jr., Ward & Clesi, New Orleans, for defendants-appellants.
    Charles A. Boggs, Thomas W. Lewis, Boggs, Loehn & Rodrigue, New Orleans, for defendant-appellee.
    Before KLIEBERT, BOWES and GAU-DIN, JJ.
   KLIEBERT, Judge.

Plaintiff, Stephen G. Martin, suffered an injury when the sealing cap on a bottle of Canada Dry Club Soda “popped off” and hit him in the left eye. He brought a products liability suit based on strict liability and negligence against the defendant, Lastarmco, Inc., as the alleged manufacturer of the Canada Dry Club Soda, and against Aluminum Company of America (Alcoa), as the alleged manufacturer of the machine which placed the cap on the bottle of soda. A third party claim was also brought by Lastarmco, Inc. against Alcoa. The third party claim was grounded in the alleged defect of the machine used by Las-tarmco in putting the cap on the bottle.

Prior to trial, plaintiff and Lastarmco, Inc. stipulated “that the bottle cap in question was defective, which resulted in the injury to the plaintiff, Stephen Martin, and accordingly, Lastarmco and its insurer, Commercial Insurance Company, was liable to plaintiff for all damages recoverable in the proceeding .... ” On the second day of trial, on a motion for a directed verdict, the trial judge dismissed plaintiff’s claim against Alcoa. Thereafter, the jury trial continued solely on the issue of the quantum due for plaintiff’s injuries and the liability of Alcoa under the third party claim made by Lastarmco. The jury brought in a verdict against Lastarmco for $300,000.00 and denied Lastarmco’s third party claim against Alcoa.

This suspensive appeal was brought by Lastarmco, Inc. who makes the following assignments of error:

“(I) The jury committed manifest error in failing to find liability against Alcoa.
(II) The jury committed manifest error in awarding general damages to plaintiff in the amount of $300,-000.00.
(Ill) The trial court erred in allowing plaintiff’s counsel to request an award for loss of future wages during closing argument in spite of the lack of evidence concerning any such loss.”

Neither the plaintiff nor Alcoa appealed nor did they answer the appeal by Lastarm-co. For the reasons hereafter stated, we affirm.

QUANTUM

At the time of the injury, on July 1,1981, the plaintiff was 24 years of age. He was cleaning a vacant apartment as part of his routine duties when he discovered an unused bottle of Canada Dry Soda Water in a closet. He placed the Canada Dry bottle, along with other empty bottles, on the counter top. While he was placing the Canada Dry bottle on the counter, the aluminum cap exploded, striking plaintiff in the left eye. The cap remained stuck in the plaintiff’s eye and did not fall out until he started running to the bathroom to see what damage was done to the eye.

The eye was bleeding profusely when he was taken to the East Jefferson Hospital by a co-worker. After a week of treatment, pressure continued to increase in the eye, so Dr. Sanford Pailet decided to relieve the pressure and bleeding through surgery. On this occasion, plaintiff remained in the hospital one week.

Plaintiff testified to extensive pain and difficulty with his vision following the initial surgery. He had difficulty at work because he couldn’t work on anything small. After returning to work he missed some work because he was feeling bad. His employer paid him while he was off work.

From his initial examination in the emergency room at East Jefferson, Dr. Pailet, an expert in the field of opthalmology and opthalmologic surgery, diagnosed plaintiff’s eye injury as “a lid laceration, corneal abrasion and traumatic hyphemia [blood inside the eye]_” He expressed the opinion that continued hyphemia raised the continuing possibility of (a) glaucoma, (b) cataracts, and (c) a retinal detachment occurring. By means of an ultrasound test, Dr. Pailet excluded the existence of a retinal detachment but testified there existed a strong possibility of reincurring glaucoma and cataracts as well as the possibility of a detached retina occurring in the future. He last saw the plaintiff in November 1981 at which time plaintiffs vision in the left eye was corrected to 20/40. This was slightly better than one-half the 20/20 vision he had in the eye prior to the surgery.

After several months of treatment by Dr. Pailet, Mr. Martin was examined by Dr. William Perez, also an expert in the field of opthalmology. At the time, plaintiff was complaining of trouble seeing double, pain in the eye and headaches. He was particularly bothered by glare and dust. Dr. Perez testified that during his initial examination in December of 1981 he found the left eye was red, tender and painful. The pupil in the eye was square rather than round and “stuck” to the lens of the eye. Plaintiff had 20/20 vision in his right eye and 20/100 vision in his injured left eye. He also found symptoms of cataract and glaucoma in the left eye. Dr. Perez testified that on a June 1, 1982 visit Mr. Martin’s vision in his left eye was 20/80, his cataract remained and it was evident he would eventually be required to surgically remove the cataract.

In January 1983, Dr. Perez discovered that Martin’s cataract had “kicked up”. His vision was reduced to 20/200 in his left eye and his eye pressure was 30, when 12-20 was considered normal, which indicated he had glaucoma. In March 1983 surgery was performed on the eye. Dr. Perez testified that surgery on an eye which has suffered a compression injury was difficult and because of the necessity of cutting pupil muscles, plaintiff’s vision would never be restored to its pre-injury level.

After the surgery Mr. Martin was fitted with a contact lens in an attempt to improve his vision. The eye achieved 20/30 vision with the lens, however, Mr. Martin complained of severe discomfort in using the lens. Dr. Perez attributed this to the fact the standard shaped contact lens would not contour to Mr. Martin’s now surgically deformed eye. In Dr. Perez’s opinion, plaintiff had “a sick eye”. He testified that plaintiff, on each visit, complained of headaches, irritation and burning of the left eye. Sheetrock dust and paint fumes would, in Dr. Perez’s opinion, irritate the eye. He attributed the headaches to glare and double vision which put a strain on the eyes.

On direct examination, Dr. Perez expressed the view that the glaucoma would get harder and harder to control as plaintiff grew older. That, in the doctor’s opinion, meant more pain, headaches, more treatment, more eyedrops and possibly more surgery with the ever existing possibility of the problems encountered with a detached retina.

Dr. Perez believed the plaintiff would have trouble driving cars and reading for extensive periods (over one hour) because of the irregular pupil, the irritation in the eye due to glare, plaintiff having difficulty in judging distances, and the slippage of contact lens, an absolute necessity to correct the vision in the left eye to 20/30. In his opinion, the plaintiff could anticipate a lifetime of doctor visits at about three month intervals providing there were no special complaints.

On direct examination, the doctor also expressed the opinion it was “going to be very, very hard to find a lens that would sit comfortably on [plaintiff’s] eye.” because when you remove a cataract, as was done to plaintiff, the contact lens can correct for distances only or nearness only, you cannot have both corrections in the same contact lens. On cross-examination, however, he agreed that under the present state of the art, where hard contact lenses are uncomfortable, an extended wear base (soft lens) can be put in the eye and a hard contact lens on top of it. This, however, would not cure the anticipated difficulties due to the inability to have a contact lens which effected a correction for far and near. Apparently, however, regular glasses could be used to maintain the 20/30 vision.

. The plaintiff returned to work approximately two and one-half months after the accident. However Mr. Martin’s co-workers and supervisor testified as to Mr. Martin’s inability to perform up to his pre-inju-ry level. His co-worker, Russell Stans-bury, testified that he was assigned as Mr. Martin’s “helper” because of his poor vision. Mr. Martin’s supervisor testified that he could no longer perform some of the routine detail work required by his position; i.e., float sheetrock, drive a car.

Plaintiff testified that after the cataract was surgically removed in March 1983 his vision got worse. He had trouble performing his work because he had difficulty with depth perception and as a result had trouble climbing ladders, walking on a roof, nailing nails, working with electricity, changing key tumblers in a lock, or working on anything small. Further, he expressed periodic eye strain and headaches, particularly when he attempted to read or work with anything small requiring a concentrated vision, or around dust or fumes.

At the trial, the parties stipulated plaintiff had incurred medical expenses of $9,045.25. At the time of the injury, plaintiff earned $6.50 per hour plus $50.00 per week for “on call” time and a $50.00 per month car allowance. When the second surgery was performed, plaintiff was earning $7.50 per hour plus $11.00 per hour for overtime, with an average of eight hours overtime per week, and $50.00 per month car allowance. Dr. Wolfson, an expert economist, computed his lost wages at $4,526.00 based on an absence from work during the period July 1, 1981 thru September 3, 1981 and between March 23, 1983 and April 24,1983. Mrs. Manual, the plaintiff’s supervisor, computed the lost wages at $4,890.00.

Notwithstanding the trial judge’s rejection of counsel for plaintiff’s effort to prove loss of future wages through the testimony of an economist, the trial judge, over defendant’s objection, permitted plaintiff’s counsel to argue to the jury for loss of wages. Defendant now argues the jury was thus misled into making an overly speculative award for future loss of earnings. This argument is without merit. In his charges, the trial judge told the jury “the only evidence you can consider during the course of this trial is what you hear from the witness stand under oath.” Defendant’s counsel pointed out in his oral argument that plaintiff was working and earning more at the time of trial than prior to the injury. In accordance with the interrogatories it was asked to answer, the jury set an “in globo” award. We nor anyone else knows with certainty whether the jury included or excluded an award for future loss of earnings in reaching its conclusion as to the total award. It would be pure speculation for us to conclude it did and based on that speculation conclude the jury erred.

The defendant also argues that considering the entire medical condition of the plaintiff and the excellent result obtained by his physicians, the award to the plaintiff of $300,000.00 was excessive. In support of his contention, he points out that the highest award by a Louisiana court for the total loss of an eye was the $150,000.00, awarded in Outlaw v. Bituminous Insurance Company, 357 So.2d 1350 (4th Cir.1978), to a nine year old child. He suggests that the award of $240,000.00 for the loss of an eye made to a seaman who had special damages of $35,000.00 and loss of future earnings of $155,000.00 in the case Allen v. Sea Coast Products, Inc., 623 F.2d 355 is an approximate guide for this case.

Civil Code Article 1934(3) provides that in the assessment of general damages “much discretion must be left to the [trial] judge or jury”. From this, the State Supreme Court has established two standards in the appellate review of lower court awards: (1) To modify the amount of the award an appellate court must find that the trial judge or jury abused the much discretion accorded by the codal provisions in making the award, and (2) The award in other cases serve only as an aid in determining whether there has been an abuse of the discretion. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977); Reck v. Stevens, 373 So.2d 498 (La.1979).

We agree the award is generous and higher than has been previously approved by Louisiana appellate .courts for the loss of an eye. Nevertheless, we cannot say the jury has abused its much discretion in fixing the award. The plaintiff is an aggressive, hardworking, young man. The medical evidence shows he has been disabled by the injury more than he would have been by the complete loss of the eye. He has a lifetime of pain and suffering ahead of him which will require continued and repeated medical attention. Because of the partial loss, he will repeatedly sustain eye irritations from glare, dust or fumes and is an excellent candidate for future bouts of glaucoma and a possible detached retina. This, coupled with the need for artificial correction of the vision in the left eye hampers his ability to perform some types of work (sheetrock finishing, painting) which he was trained to perform and to operate machinery. Additionally, the medical evidence preponderates to the effect medical science will not be able to maintain the corrected 20/30 vision he had obtained with hard contact lens at the time of trial. In our view, the plaintiffs disability here is more akin to that normally attributed to the loss of a leg rather than the loss of an eye. In the case of a leg, mobility can be restored by an artificial limb, but the use of the artificial limb will cause pain and suffering. Accordingly, we will not disturb the jury’s award.

LIABILITY OF ALCOA

The liability of Lastarmco, as the bottler of the total product, a bottle of soda water, was admitted in the trial court. The only liability which was at issue in the trial court and here is that of Alcoa, the manufacturer of the bottling machine used by Lastarmco in producing the bottle of soda water.

Lastarmco’s third party claim against Alcoa is grounded in the contention the bottling machine manufactured by Alcoa was defective in that it randomly misapplied the sealing cap and that Alcoa was aware of the defect. In support of their position, Lastarmco introduced at trial: (1) Evidence indicating the headset of the machine contained numerous design defects, (2) Evidence indicating Alcoa’s own employees recognized problems with the machine’s ability to produce safe closures and (3) The report of an independent laboratory identifying design defects in the machine. In defense, Alcoa maintains that the machine was not inherently defective and that the defective closure was the result of Last-marco’s improper adjustment of the machine and its failure to follow recommended quality control.

As part of their bottling operations, Las-tarmco used an Alcoa Model 212 capping machine. Essentially, the machine takes blank aluminum caps and by the spinning of a “headset”, under pressure, around the neck of the grooved bottle, forms the aluminum to the contour of the grooved bottleneck. Due to this shaping process the blank aluminum cap becomes threaded to the bottle forming a closure.. In order to form a reliable closure for use with carbonated beverages it is necessary that the threads created by the machine conform the aluminum cap to the full width and depth of the grooves on the bottle. The machine had adjustments by which the pressure applied during the spinning process could be increased or decreased. Excessive pressure would cause the machine to cut the aluminum. Insufficient pressure would cause insufficient depth to the grooves.

Lastarmco contends the design defects in Alcoa’s Model 212 machine caused random failures in bottle closures and points to the following in support of its contention. The internal documents of Alcoa show that in its initial test Alcoa found the machine was producing 80% to 90% shallow threads. Further, an independent testing laboratory was contacted to examine the machine after Alcoa’s personnel held mini-conferences concerning field complaints of the machine’s failure. According to the report of the independent laboratory, Battelle, the machine had two design defects: (1) friction build up and (2) spring movement within the headset. These were the same defects found by Lastarmco's expert, Dr. Meddy Sabbaghian.

In response, Alcoa contends the machine produced adequate closures when the machine was adjusted to apply the recommended pressure during the capping operation; hence, any defect in the cap was a result of poor maintenance and quality control on the part of Lastarmco. Alcoa recommended the pressure exerted on the caps during the spinning process be between 38-40 pounds. Further, it recommended eight bottles be tested every two hours to assure the machine was producing adequate closure and thread depths.

The record reveals that while Lastarm-co’s employees were aware of the recommended pressure of 38-40 pounds, the person in charge of maintaining the machine, Mr. Lang, testified that he set the pressure at only 35 pounds. Further, he did not inspect the machine regularly, but rather, relied on Mr. Baudoin, in quality control, to point out a problem.

Likewise, the record shows there was miseommunication concerning the testing of the closure which resulted in inadequate testing. Alcoa had recommended testing every two hours in its instruction booklet; however, on the basis of information supplied by Canada Dry employees, at the time of the manufacture of the particular cap involved here, the test was being performed only twice a day.

Lastarmco argues the inadequate testing was immaterial because the expert testimony shows that due to design defects the machine randomly misapplied caps; hence, no testing method short of visual inspection of every bottle would be effective. Consequently, Lastarmco argues Alcoa be held strictly liable for its defective machine.

The jury answered the interrogatories propounded to it as follows:

1. Was defendant, Lastarmco, at fault in this case?
YES / NO _
2. Was such fault a proximate cause of the damages?
YES / NO _
3. Was defendant, Alcoa, at fault in this ease?
YES_ NO ✓
4. Was such fault a proximate cause of the damages?
YES_ NO ✓
5. If your answers to questions 1, 2, 3, and 4 are yes, state in percentages how much Lastarmco and how much Alcoa were at fault:
Lastarmco’s fault 100 %
Alcoa’s fault %

Thus, the jury made the factual determination the cause of the defective cap which injured plaintiff was Lastarmco’s failure to properly adjust the pressure on the machine rather than a defect in the Alcoa Model 212 machine. Although there is conflicting evidence on the issue, there is ample evidence in the record to support the jury’s conclusion the defect was due to Lastarmco’s failure to properly adjust the machine to the pressure recommended by Alcoa rather than a defect in the machine which caused a random defective cap.

The seminal decision for all Louisiana jurisprudence dealing with the question of appellate review of a trial court’s factual determination is Canter v. Koehring, 283 So.2d 716 (La.1973). Under the standard of review, established in Canter, supra and its progeny, we should not merely substitute our conclusion for that of the jury. Rather, we must first determine if the jury was manifestly wrong in reaching its conclusion. After hearing the evidence the jury obviously concluded Lastarmco’s actions were the proximate cause of plaintiff’s injury. While there is evidence indicating Alcoa’s machine did at times randomly misapply a cap, the jury concluded the defect hr the particular cap which struck plaintiff in the eye was a result of Lastarmco’s failure to maintain the recommended quality control and to adjust the machine to the pressure recommended by Alcoa. Since the record contains ample evidence to support this conclusion, we cannot say it is manifestly erroneous.

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

AFFIRMED.

      . Commercial Insurance Company, the insurer of Lastarmco, entered the litigation and answered on behalf of its insured. Other corporations were originally made defendants and subsequently dismissed by consent of all parties.

      . Dr. Pailet’s decision to operate was supported by Dr. Ellis who had been called in by plaintiff’s parents for a second opinion.


source: Caselaw Access Project

author: WATKINS, Judge. SHORTESS, Judge,

license: Public Domain

text:
    Melvin ROBINSON v. STATE of Louisiana Through DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT. John Dale WATKINS v. PATTERSON TRUCK LINE, INC., Melvin Robinson, National Union Fire Insurance Company, Department of Transportation and Development of the State of Louisiana and the State of Louisiana. Terri Rene CHAMBERS, Individually, and as Natural Tutrix of her minor child, Andy Lee Chambers v. PATTERSON TRUCK LINE, INC., Melvin Robinson, and State of Louisiana, Department of Transportation and Development, Secretary of Transportation and Development.
    Nos. 82 CA 0971-82 CA 0973.
    Court of Appeal of Louisiana, First Circuit.
    July 2, 1984.
    Writ Denied Oct. 12, 1984.

      Steve LeMoine and Clyde A. Ramirez, New Orleans, for plaintiff and appellant— Melvin Robinson.
    Philip Henderson, Houma, for plaintiff and appellant — John Watkins.
    Charles Steib, St. Louis, Mo., Thomas A. Rayer, New Orleans, for plaintiff and appellant — Terri Chambers.
    Gerald Dillon, New Orleans, for defendant and appellant — Louisiana Paving Co.
    Grady Weeks, Houma, for defendant and appellee — State of La., Dept, of Transp. & Development.
    Huntington B. Downer, Houma, for defendant and appellee — Patterson Truckline.
    Before EDWARDS, COLE, WATKINS, SHORTESS and ALFORD, JJ.
   WATKINS, Judge.

These cases, consolidated for trial, arose out of a head-on collision which occurred on January 14, 1980 on U.S. Highway 90 in Terrebonne Parish between Morgan City and Houma. The collision took place between two pickup trucks, one owned by Patterson Truck Line, Inc. (Patterson) and driven by Melvin Robinson, and the other driven by John Dale Watkins and owned by Randel Chambers who was a passenger. Chambers was killed by the collision, and Robinson and Watkins suffered extensive injuries.

Robinson filed suit against the State of Louisiana through the Department of Transportation and Development (DOTD). On January 14, 1981, Robinson amended his petition to add as a party defendant Louisiana Paving Company, Inc. (Louisiana Paving), the contractor of DOTD who was performing construction and repair work under contract on the roadway.

In his original petition, Watkins named as defendants Robinson, Patterson, National Union Fire Insurance Company, (National Union) Patterson’s liability insurer, and the DOTD. Jessie E. LeBlanc and Gordon S. LeBlanc, d/b/a LeBlanc Brothers and Company, and Louisiana Paving were added as parties defendant by amended petition on August 28, 1980.

On January 13, 1981, Terri Chambers, widow of the decedent, Randel Chambers, filed suit on her own behalf and on behalf of her minor son against Patterson, Robinson, and the DOTD. Chambers amended her petition to add Louisiana Paving as a defendant on March 17, 1981, more than one year after the accident and death of her husband.

The DOTD filed third party demands against Patterson, Louisiana Paving, Robinson and Watkins.

Louisiana Paving filed third party demands against Patterson and National Union.

At the conclusion of plaintiffs' case, the trial court issued a directed verdict which dismissed all claims against Patterson and National Union. After trial on the merits, the trial court dismissed the plaintiffs’ claims against all of the defendants except Louisiana Paving and rendered judgment in favor of each plaintiff against Louisiana Paving in the amounts of $85,000 to Melvin Robinson, $192,905.75 to Terri Chambers, $100,000 to Terri Chambers on behalf of her minor child Andy Lee Chambers, and $175,000 to John Watkins, together with legal interest and costs. The claims asserted in the third party demands were dismissed.

Louisiana Paving has appealed the trial court’s decision. Robinson has appealed the dismissal of his claims against the DOTD. Watkins has appealed the dismissal of his claims against the DOTD, Robinson, Patterson and National Union. Louisiana Paving has also filed on appeal an exception of prescription against the claims asserted by Terri Chambers. None of the appellants question the correctness of the quantum of the trial court’s awards.

On January 14, 1980, Robinson, who was in the process of buying a house trailer, received a telephone call at his office in Morgan City from a trailer salesman in Houma, who informed him that he (Robinson) had a deadline of 5:00 p.m. that day to come up with some additional money for the down payment on the house trailer. Robinson was employed by Patterson and had regular access to company vehicles. He took a Patterson pickup truck and drove from the Patterson office in Morgan City to Alto Trailer Sales on U.S. Highway 90 in Houma. He made the down payment on the trailer and was returning to work, traveling in a westerly direction on Highway 90 between Houma and Morgan City when the accident occurred. After negotiating a curve in the road, Robinson allowed the right wheels of his pickup truck to drop off the highway and onto the shoulder. When Robinson attempted to get back onto the highway, his right wheels came into contact with a two and one-half inch drop-off between the highway surface and the shoulder. He lost control of the vehicle and collided with the pickup truck occupied by John Watkins and Randel Chambers which was proceeding in the directionally opposite lane of travel.

The segment of Highway 90 on which Robinson ran onto the shoulder, lost control, and had the collision was under a contract for its widening, entered into by Louisiana Paving and the DOTD. The contract provided for asphaltic concrete base widening and overlay and related work on a segment of the highway about 10 miles in length. At the time of the accident the work to be performed under the contract was substantially under way. Asphalt patching and repair work on the existing concrete roadway had been done in many non-contiguous areas along the 10 mile segment, including an area within 500 feet of the accident site. Within seventy-five feet of the site of the accident a large tree had been removed from within the road right-of-way.

LIABILITY OF DOTD

A duty founded in statute and recognized by the jurisprudence exists on the part of the DOTD to maintain the public highways in a condition that is reasonably safe for persons exercising ordinary care and reasonable prudence. This duty to maintain extends to the shoulders of the highway as well. LSA-R.S. 48:1(11), (21), 48:21; Watson v. Morrison, 340 So.2d 588 (La.App. 1st Cir.1976), writs denied, 341 So.2d 1134 (La.1977); 342 So.2d 218 (La.1977); Rue v. State Department of Highways, 372 So.2d 1197 (La.1979); Payne v. Louisiana Dept. of Transp., Etc., 424 So.2d 324 (La.App. 1st Cir.1982); Palermo v. Allstate Insurance Company, 415 So.2d 437 (La.App. 1st Cir.1982). The scope of the duty imposed on the DOTD encompasses the particular risk which gave rise to the plaintiffs’ injuries in this case. In LeBlanc v. State, 419 So.2d 853, 854 (La.1982), the Louisiana Supreme Court stated:

“The Department’s duty to maintain highway shoulders is imposed to protect a motorist from the risk of injury produced by a combination of the motorist’s inadvertent encounter with an unexpected, sharp dropoff from the roadway and her consequent instinctive oversteering of her vehicle.”

In the present case Robinson had emerged from a curve on Highway 90 when the right wheels of his vehicle unintentionally deviated from the roadway onto the shoulder. When he subsequently attempted to return his right wheels to the road surface, he met with a sharp drop-off of two and one-half inches which threw his truck out of control and caused it to cross the highway and to veer into the vehicle occupied by Watkins and Chambers, which was traveling at about 45 mph in the opposite direction. Since the record establishes that a two and one-half inch drop-off is hazardous to motorists, plaintiffs are clearly within the ambit of the DOTD’s duty to maintain the roadways.

Liability based on negligence is imposed when the DOTD is actually or constructively aware of a hazardous condition and fails to take corrective action within a reasonable time. Sinitiere v. Lav-ergne, 391 So.2d 821 (La.1980). The record establishes that a two and one-half inch drop-off existed between the road surface and the shoulder. Mr. Herberto Rivera, Resident Construction Engineer for the DOTD, testified that inspectors from the DOTD were on the job site to inspect the progress of the work every day that the contractor was performing construction operations. As a result we are compelled to find the DOTD knew, or at least should have known of the hazardous condition of the highway and its shoulders through observation of the area that was under contract, and yet it took no action to correct the condition or have the condition corrected.

The DOTD contends that its duty to maintain the highway in a safe condition was shifted from the DOTD to Louisiana Paving by virtue of the construction contract wherein Louisiana Paving agreed to perform maintenance of the roadway and to post warning signs during the course of the construction. Although the trial court found that the duty to maintain the highway was shifted to Louisiana Paving, we know of no authority which would allow the DOTD to contract away to a private concern a responsibility as fundamental and as critical as its duty to maintain the public roads and highways in a reasonably safe condition.

It is clear from the contract between the parties that Louisiana Paving did undertake the obligation of maintenance during the course of construction. Section 105.15 of the contract provides for “Maintenance During Construction”, obliging the contractor to maintain the work during the course of construction until the project is accepted. But it is apparent that the DOTD did not understand Section 105.15 to absolve it of its overriding duty to the public because Section 105.16 of the contract sets forth procedures to be followed in the event the contractor fails to maintain the roadway. By virtue of this latter provision the DOTD retained the right under the provisions of the contract to maintain the highway, and clearly recognized its obligation to the public to maintain the highway and its shoulders in satisfactory condition for travel during the course of construction.

The maintenance of our highways in a reasonably safe condition is paramount to the safety of the public. As a matter of public policy it is vital that there be an accountable entity to whom the public can look for adequate maintenance of the roadways as well as for redress in the event that a defective condition in the highway precipitates injury. This duty to maintain the public roads and highways has been statutorily imposed on the DOTD. LSA-R.S. 48:21.

In Robertson v. Handy, 354 So.2d 626 (La.App. 1st Cir.1977), writ denied, 356 So.2d 434 (La.1978), where a maintenance contract existed between the DOTD and the City of Bogalusa, the DOTD was not allowed to shift liability to the municipality for a dangerous condition which the DOTD knowingly allowed to exist. In Robertson, we held that although the DOTD was authorized by statute to contract with a municipality to perform maintenance on State highways within the corporate limits, the statutes authorizing such contracts do not relieve the DOTD of its fundamental responsibility that the maintenance work be properly performed. It necessarily follows that if the DOTD cannot escape its responsibility by contracting with a municipality, another governmental body whose primary concern is the safety and well being of its citizens, then the DOTD surely cannot be so relieved by contract with a private concern. See also Ishee v. State, Through Dept. of Transp., 413 So.2d 1362 (La.App. 1st Cir.1982).

We, therefore, find that the DOTD was negligent in knowingly allowing a condition to exist which was hazardous to the reasonably prudent motorist, and that the construction contract between Louisiana Paving and the DOTD cannot absolve the DOTD of its duty to the public to correct hazardous conditions or cause them to be corrected by the contractor.

Since we have found the DOTD to be negligent we need not discuss its liability to plaintiffs under the doctrine of strict liability, LSA-C.C. art. 2317, at any length. The defective thing (the highway and its shoulder) was in the custody of the DOTD and was the cause of plaintiffs’ damages. Whether the basis of the liability be negligence or strict liability, the underlying reason for imposing the liability stems from traditional notions of blameworthiness or fault. See Kent v. Gulf States Utilities Company, 418 So.2d 493 (La.1982).

LIABILITY OF LOUISIANA PAVING COMPANY, INC.

The record supports the district court’s findings of negligence on the part of Louisiana Paving. Louisiana Paving had been performing patching work within 500 feet of the scene of the accident, had removed a large tree within 75 feet of the accident site, was aware of the condition of the roadway and was under a duty to repair the condition. Furthermore, Louisiana Paving had placed posts designed to hold “low shoulder” signs the entire length of the project but nevertheless had failed to place the signs upon the posts, in violation of its contractual duty to sign the project area.

The evidence supports the finding of the trial court that the traffic passing through the construction area had to travel on shoulders for at least several hundred feet around certain repair sites. Some of these vehicles traveling on the shoulder were very heavy trucks, including trucks involved in the construction project. The daily work record shows that during the week preceding the accident Louisiana Paving had been performing patching work in the proximity of the area, during which times it was the contractor’s practice to reroute vehicles onto the shoulder. If the activities of Louisiana Paving were not the sole cause of the hazardous condition, its general practice of rerouting traffic onto the shoulders may have exacerbated the hazard posed by the preexisting drop-off between the road and the shoulder.

Certainly failure of Louisiana Paving to post “low shoulder” signs and its failure to correct the low shoulder (which the erecting of the posts to hold the signs demonstrated Louisiana Paving knew to have existed) combined to contribute to the accident. Likewise, the DOTD should have known of the hazardous condition; yet it took no action.

Louisiana Paving cites Brummerloh v. Firemen’s Ins. Co. of Newark, 377 So.2d 1301 (La.App. 3d Cir.1979), and Davis v. T.L. James and Company, 154 So.2d 640 (La.App. 1st Cir.1963), in support of its contention that it had no obligation under its contract to maintain the highway or shoulder at the site of the accident. In Davis the court found that no work had been performed by the contractor in the vicinity of the accident site, and in Brummerloh the contractor had not yet even moved construction equipment on the job. In the present case Louisiana Paving had performed patching and other work over most of the area under contract and in the vicinity of the site of the accident. In our view these cases are clearly distinguishable and are not controlling.

We, therefore, hold Louisiana Paving sol-idarily liable with the DOTD for the damage occasioned by its negligence.

Prescription

Louisiana Paving has raised on appeal an exception of prescription against the claim made by Terri Chambers. Her original petition, filed within the one year prescriptive period, named as defendants Patterson, Robinson and the DOTD. Mrs. Chambers did not name Louisiana Paving as a defendant in the original petition, but amended her petition to include it for the first time on March 17, 1981, more than one year after the accident and death of her husband.

The filing of suit by a plaintiff against the original defendant will interrupt the one year prescriptive period of LSA-C.C. art. 3536 as to those defendants later joined and alleged to be solidarily liable. Fontenot v. O’Brien, 361 So.2d 298 (La.App. 1st Cir.1978).

We recognize that the timely filing of a suit against a defendant not liable to the plaintiff on a tort claim would not interrupt prescription against other defendants sued after the prescriptive period had elapsed since the defendant first sued would not be a solidary debtor with the other defendants. Gibson v. Exxon Corp., 360 So.2d 230 (La.App. 1st Cir.1978), writ denied, 362 So.2d 575 (La.1978).

However, in the present case the DOTD is solidarily liable with Louisiana Paving for the tort for which recovery is sought. Thus, a suit filed timely against either of these solidary obligors interrupted prescription as to both of them. LSA-C.C. art. 2097; Pearson v. Hartford Accident & Indemnity Company, 281 So.2d 724 (La. 1973).

Louisiana Paving was aware of the claims against it before the prescriptive period elapsed, since the plaintiffs Robinson and Watkins had timely filed against Louisiana Paving claims which arose from the same acts of negligence alleged later by Chambers. The DOTD also brought Louisiana Paving in by third party demand. Louisiana Paving had notice within the prescriptive period provided by the Civil Code that it would be required to defend claims arising out of its negligent conduct at the work site. Furthermore, the issues raised by Chambers bear a close connexity to the issues of the other consolidated cases, since the injuries all arose out of the same set of facts. The interruption of prescription here would not result in any of the usual prejudices or hardships which the concept of prescription operates to prevent.

We therefore overrule the exception of prescription raised on appeal by Louisiana Paving.

Contributory Negligence

Louisiana Paving has appealed the award to Robinson on the grounds that Robinson was contributorily negligent and therefore not entitled to recover for his injuries.

In the recent case of LeBlanc v. State, supra, the Supreme Court held the following:

“One purpose of a highway shoulder is to provide a margin of error for the safety of motorists. A highway without a shoulder or one which never permits safe deviation from the main traffic lanes would be intolerably unsafe .... [I]t does not protect a motorist against a shoulder defect or obstruction of which he has knowledge and a reasonable opportunity to avoid. But in the absence of such knowledge and opportunity, the motorist is entitled to assume that a highway shoulder is maintained in a reasonably safe condition and that his inadvertent deviation onto it will not lead to disastrous consequences.” 419 So.2d 854, 856

The record supports the trial court’s finding that Robinson was not negligent. Robinson was traveling on a narrow road (18 feet wide), and the right wheels of his vehicle went onto the shoulder as he was coming out of a curve. Robinson’s testimony establishes that he had no prior knowledge of the hazardous condition of the roadway. A bayou ran parallel to and a relatively close distance to the right edge of the road. There was also a very large tree nearby on the right side of the road. The shoulder sloped toward the bayou. The record establishes that Robinson was faced with a well-founded fear that he might lose control of the vehicle and swerve into the bayou or the tree. Further the testimony of the expert on accident reconstruction supports a conclusion that Robinson was traveling within the speed limit.

The issue of Patterson’s vicarious liability for the negligence of its employee Robinson is moot as we find no negligence on the part of the plaintiff Robinson.

Indemnity

The DOTD contends that it is entitled to indemnity from Louisiana Paving for any damages which it is obligated to pay the plaintiffs. The work being performed by Louisiana Paving was being done under a contract accepted under bid for State Project No. 5-04-19, Houma-Gibson Highway (West Section). Page 3 of the Notice to Contractors offering the project for bid states that the 1977 Edition of the Louisiana Standard Specifications for Roads and Bridges, together with additional special provisions not here relevant, shall become a part of the contract. Section 107.16 of the Louisiana Standard Specifications for Roads and Bridges sets forth the indemnity provisions governing highway contract work, and reads as follows:

“107.16 RESPONSIBILITY FOR DAMAGE CLAIMS. The contractor shall indemnify the Department, its officers and employees from all suits, actions or claims of any character brought because of any injuries or damage received or sustained by any person or property on account of the operations of the said contractor; or on account of or in consequence of any neglect in safeguarding the work; or through use of unacceptable materials in constructing the work; or because of any negligent act, omission or misconduct of said contractor; or because of any claims or amounts recovered from any infringements of patent, trademark or copyright; or from any claims for amount arising or recovered under the Workmen’s Compensation Act or any other law, ordinance, order or decree; and so much of the money due the said contractor under and by virtue of his contract as may be considered necessary by the Department for such purpose, may be retained for the use of the State; or, in case no money is due, his surety may be held until such suit or suits, action or actions, claim or claims for injuries or damages as aforesaid have been settled and suitable evidence to that effect furnished to the Department; except that money due the contractor will not be withheld when the contractor produces satisfactory evidence that he is adequately protected by public liability and property damage insurance, including railroad protective liability insurance in accordance with Subsection 107.08.

Contracts legally entered into have the effect of law as between the parties LSA-C.C. art. 1901. While we recognize that generally indemnity provisions are to be strictly construed, we also must recognize that the effect to be given to the provision of the contract under consideration depends upon the intention of the parties, the foremost requirement in the interpretation and construction of a contract. LSA-C.C. art. 1945. See Green v. Taca International Airlines, 304 So.2d 357 (La.1974), Breaux v. Rimmer & Garrett, Inc., 320 So.2d 214 (La.App. 3d Cir.1975).

Considering our finding that the DOTD is liable to plaintiffs (solidarily with Louisiana Paving) based on its negligence (C.C. art. 2315) as well as strict liability (C.C. art. 2317), it could be argued that the DOTD is not entitled to indemnity because the contract does not provide for indemnity from one’s own negligence. A contract of indemnity will not be construed to indemnify the indemnitee against losses to him through his own negligent acts, when such intention is not expressed in unequivocal terms. This rule is equally applicable whether the damages are caused by the sole negligence of indemnitee or the concurrent negligence of the indemnitee and indemnitor. Green v. Taca International Airlines, supra.

In legal indemnity as opposed to contractual indemnity under the Civil Code, the general rule is that as between the debtors in solido each is liable for his proportionate share of the debt. LSA-C.C. art. 2103. There is an exception, however, to this rule with respect to debtors in solido for a tortious offense, that is, when one is solely at fault and the other liable merely vicariously. See LSA-C.C. art. 2106; D ’Albora v. Tulane University, 274 So.2d 825 (La.App. 4th Cir.1973), writs denied 278 So.2d 504, 505 (La.1973). Indemnity in the absence of contract exists, stated another way, when one party is truly at fault and the other co-debtor is liable merely theoretically. Truxillo v. Gentilly Medical Building, Inc., 225 So.2d 488 (La.App. 4th Cir.1969); Leaber v. Jolley Elevator Corp., 354 So.2d 746 (La.App. 4th Cir.1978), writs refused 356 So.2d 1004, 1010 (La.1978).

In the present case the right to indemnity arises out of contract. Louisiana Paving (indemnitor) was obligated to the DOTD (indemnitee) under the contract to properly maintain and sign the construction site. As between them, Louisiana. Paving had a duty to the DOTD (as well as to plaintiffs) to keep the highway shoulders in a safe condition. Since the DOTD had contracted with Louisiana Paving for this work, it had no duty to Louisiana Paving to perform the work itself (although the DOTD had a non-delegable duty to plaintiffs as we have discussed above). If Louisiana Paving had properly performed the work, as it was contractually obliged to do, no damages would have resulted. We thus find that Louisiana Paving was primarily responsible for the unsafe condition which gave rise to the accident, and the DOTD only secondarily. It would be unreasonable to conclude that the parties to this contract did not intend the indemnity provision set forth above to cover the situation herein presented where the DOTD is liable for damages primarily because its contractor failed to perform the work it was hired to do. Given the contract before the court and the nature of the facts herein presented, it is clear that under the broad terms of the contract it was intended by the parties that in a situation in which the prime negligence was that of the contractor, indemnity would be owing from the contractor (Louisiana Paving) to the DOTD, although the DOTD was to some lesser degree at fault because this State as soverign was under a duty to the public to maintain the highways. We therefore hold that the indemnity provisions set forth in paragraph 107.16 of the contract are applicable, requiring Louisiana Paving to indemnify the DOTD for its damages and costs.

DECREE

The judgment of the trial court in favor of the State of Louisiana, Department of Transportation and Development, and against Melvin Robinson, John Dale Watkins and Terri Rene Chambers, individually and on behalf of her minor child, Andy Lee Chambers, dismissing plaintiffs’ demands with prejudice at their cost, is reversed and judgment is rendered as follows:

Judgment is rendered in favor of Melvin Robinson and against the State of Louisiana, Department of Transportation and Development, and against Louisiana Paving Company, Inc., in solido, in the full sum of Eighty-Five Thousand and No/100 ($85,-000) Dollars.

Judgment is rendered in favor of Terri Rene Chambers, individually, and against Louisiana Paving Company, Inc., in the full sum of One Hundred Ninety-Two Thousand Nine Hundred Five and 75/100 ($192,-905.75) Dollars.

Judgment is rendered in favor of Terri Rene Chambers, on behalf of her minor child, Andy Lee Chambers, and against Louisiana Paving Company, Inc., in the full sum of One Hundred Thousand and No/100 ($100,000) Dollars.

Judgment is rendered in favor of John Dale Watkins and against the State of Louisiana, Department of Transportation and Development, and against Louisiana Paving Company, Inc., in solido, in the full sum of One Hundred Seventy-Five Thousand ($175,000) Dollars.

Judgment is rendered in favor of the State of Louisiana, Department of Transportation and Development, and against Louisiana Paving Company, Inc., indemnifying the State for all damages and costs sustained as a result of the claims asserted by plaintiffs herein.

The judgment of the trial court in taxing the fees of the expert witnesses as costs is affirmed.

In all other respects, the judgment of the trial court is affirmed.

All costs, both in the trial court and on appeal, shall be borne in solido by the State of Louisiana, Department of Transportation and Development, and Louisiana Paving Company, Inc.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

SHORTESS, J., concurs with reasons.

COLE and EDWARDS, JJ., concurs for the reasons assigned by SHORTESS, J.

SHORTESS, Judge,

concurring.

I agree with the result but do not agree that DOTD was guilty of any La.C.C. art. 2315 fault in this case. Its fault, if any, comes from La.C.C. art. 2317 because as custodian of U.S. Highway 90 it had a fundamental duty to properly maintain the highway. Robertson v. Handy, 354 So.2d 626 (La.App. 1st Cir.1977), writ denied, 356 So.2d 434 (1978). A passive breach of that duty inured to the benefit of the plaintiffs in this case.

Louisiana Paving was guilty of article 2315 fault which was the primary cause of the accident in my opinion. However, DOTD’s breach of its article 2317 duty and Louisiana Paving’s breach of its article 2315 duty combined to produce, in solido, responsibility for plaintiffs’ damages.

DOTD’s third party demand against Louisiana Paving is good because it was guilty of no negligence. Louisiana Paving contracted to indemnify DOTD for any loss it sustained because of Louisiana Paving’s negligence. DOTD is entitled to recover the full extent of its loss, including costs and attorney fees.

I respectfully concur.

      . The LeBlanc Brothers were dismissed by summary judgment, which dismissal is not an issue on appeal.

      . See astute analysis of Judge Redmann in Truxillo v. Gentilly Medical Building, Inc., 225 So.2d 488 (La.App. 4th Cir.1969).

      .We note that the judgment of the trial court is silent as to Watkins’ claim against the DOTD. However, silence on the part of the trial court with respect to a party’s demands is deemed a rejection of all demands not considered. Sound Doctor Recording Studio, Inc. v. Conn, 391 So.2d 520 (La.App. 3d Cir.1980). We therefore consider the trial court's failure to mention Watkins’ claim against the DOTD in the judgment as a rejection of the demand.

      .Terri Rene Chambers neither appealed nor answered the appeal with regard to the dismissal of the claim against the State of Louisiana, Department of Transportation and Development. Hence, judgment cannot be rendered by us in favor of Mrs. Chambers and against the DOTD, since we cannot grant relief beyond that granted by the trial court. Pasqua v. Lafourche Parish School Board, 408 So.2d 438 (La.App. 1st Cir.1981).

      .See footnote 4.


author: REDMANN, Chief Judge. WARD, Judge,

text:
    James V. DRUM v. UNITED STATES FIDELITY & GUARANTY CO. et al.
    No. CA 1563.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 3, 1984.
    Donald M. Pierce, Gertler & Gertler, New Orleans, for plaintiff.
    Wood Brown III, Montgomery, Barnett, Brown & Read, New Orleans, for defendants.
    Before REDMANN, C.J., and GARRISON, BARRY, CIACCIO and WARD, JJ.
   REDMANN, Chief Judge.

A pedestrian appeals from a judgment which, on the basis of his comparative negligence, La.C.C. 2323, awarded him only 50% of his damages from being run over by a truck. Holding comparative negligence inapplicable because contributory negligence is ordinarily inapplicable to any truck-pedestrian accident, we amend the judgment to award plaintiff 100% of his damages.

The essential facts are that plaintiff, a stranger to defendant and its warehouse, walked into defendant’s warehouse to look for someone. Plaintiff walked from outside into an “aisle,” an area kept free of stored goods for the purpose of storing defendant’s trucks there overnight. While plaintiff was walking further into the interior of the warehouse, defendant’s trucks began to back into the warehouse, into that aisle, and the first truck backed over plaintiff.

The jury’s conclusion that plaintiff was 50% at fault is irrelevant. In a basic case like ours, of a pedestrian versus a driven motor vehicle, the pedestrian's fault is” not contributory negligence; Baumgartner v. State Farm Mut. A. Ins. Co., 356 So.2d 400 (La.1978). Because comparative negligence applies only “[wjhen contributory negligence is applicable,” C.C. 2323 (as amended, Acts 1979 No. 431), comparative negligence does not apply in a Baumgartner-like case; Bays v. Lee, 432 So.2d 941 (La.App. 4 Cir.1983).

Defendant argues that Meaux v. Alexander, 405 So.2d 680 (La.App. 4 Cir.1981), writ denied 410 So.2d 764, holds Baumgartner inapplicable on private property (and in that respect is “facially inconsistent” with Oliver v. Capitano, 405 So.2d 1102 (La.App. 4 Cir.1981), writ denied). We do not so read Meaux (nor, presumably, did its author, who was on the Oliver court). Meaux was not a mere inattentive pedestrian but one of several employees engaged in freeing, with a sling attached to a crane, a tractor-trailer that had become “hung up” (on a bridge crossing Peters Road — whether private property the opinion does not make clear). Meaux and others crawled underneath the tractor to unhook the sling and the tractor moved, rolling over him. Meaux “placed himself in a position of danger, without speaking to the operator of the truck or of the crane ... [c]rawling beneath a tractor-trailer, with its motor running, ... shackled to a crane with its motor running_” 405 So.2d at 683. (Question, was the truck “operator” guilty of negligence?) In that context, Meaux reasons that Baumgartner “does not apply to each and every case involving some type of motor vehicle.” Id. at 683.

But our case is not factually similar to Meaux. It is more like Oliver v. Capitano, in which a temporarily deranged person, kneeling in a private vacant lot, was backed over by a truck whose driver (like ours) may well not have expected to find anyone in his path. See also Larson v. Huskey, 440 So.2d 769 (La.App. 4 Cir.1983), appl. for reh. dism. on joint motion.

Defendant also cites obiter dicta from the plurality opinion in Jenkins v. St. Paul Fire & M. Ins. Co., 422 So.2d 1109 (La.1982), arguing that the advent of comparative negligence removed the need for Baumgartner -like escapes from the harsh, all-or-nothing bar of contributory negligence. That is not a disrespectable argument, as the dissent in Bays well shows. We nevertheless prefer to follow Bays.

Because we increase plaintiff’s award to 100% of his damages, we need not consider whether a workers’ compensation payer can recoup 100% of benefits paid out of an employee’s judgment limited to only 50% of his damages because of his comparative negligence. But see Fontenot v. Hanover Ins. Co., 385 So.2d 238, 240 (La.1980): “It does not appear that the legislature intended for the employer to be reimbursed from the employee’s award for items which the employee has not recovered from the third person.”

The judgment is amended in the principal of its award on the main demand to $353,-000 and otherwise affirmed.

CIACCIO, J., dissents.

WARD, J., dissents with opinion.

WARD, Judge,

dissenting.

I dissent. I am of the opinion Baumgart-ner was legislatively repealed when comparative negligence became law. I adhere to my previous dissent in Bays v. Lee, 432 So.2d 941 (La.App. 4th Cir.1983).


author: REDMANN, Chief Judge.

text:
    A.P. MARULLO et al. v. Vito ZUPPARDO et al.
    No. C 2339.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 3, 1984.
    Writ Denied Oct. 26, 1984.

      Curtis R. Boisfontaine, Michael R. All-weiss, Sessions, Fishman, Rosenson, Bois-fontaine & Nathan, New Orleans, for rela-tors.
    Robert H. Belknap, New Orleans, for respondents.
    Before REDMANN, C.J., and BARRY and CIACCIO, JJ.
   REDMANN, Chief Judge.

We granted certiorari to review the overruling of exceptions to jurisdiction by Har-rah’s (a Nevada hotel corporation) and two of its Nevada employees, Ahern and Morgan. We now affirm as to Harrah’s and reverse as to Ahern and Morgan.

Plaintiffs were solicited in Louisiana by Louisiana resident Zuppardo, a “junket representative” of Harrah’s “sister [Nevada] corporation” Harrah’s Club, to go on a gambling junket to Harrah’s, with free room at Harrah’s and free transportation from New Orleans to Nevada in Harrah’s private airplane. Plaintiffs allege that the Louisiana junket representative told them that problems relative to an existing $12,-000 debt of plaintiffs to Club were over, and plaintiffs therefore accepted the invitation to Harrah’s and transportation by Har-rah’s and on arrival placed their cash in a safety box in Harrah’s; that Harrah’s (and its employee Ahern) then refused them access to their cash unless they gave $2,000 of it to “defendants” plus a $10,000 “marker.” (Morgan’s connection with plaintiffs claim is not alleged.)

Nowhere in petition or affidavits submitted on the hearing of the exception are Harrah’s individual Nevada employees Ahern and Morgan alleged to have any connection with Louisiana (or any executive responsibility for the alleged design to deceive plaintiffs in Louisiana into going to Harrah’s). No basis is shown upon which they could be subject to Louisiana’s jurisdiction.

The position of Harrah’s itself is not as clear. Harrah’s argues that it is doubly isolated from the Louisiana junket representative’s action, in that first the junket representative is an “independent contractor” for Harrah’s Club, and second Har-rah’s Club is a separate corporation from Harrah’s.

The “independent contractor” defense cannot save from either liability or jurisdiction one who arranges to have an “independent contractor” damage another, or to entice him or her to another location where one intends to do the real damage oneself. One cannot hire an assassin and escape liability' with an independent contractor defense. One cannot employ an independent contractor to do piledriving that one knows will damage a neighbor’s building and escape liability on such a defense; D’Albora v. Tulane University, 274 So.2d 825 (La.App. 4 Cir.1973), writ refused 278 So.2d 504 and 505. To suggest that a Nevada corporate entity that solicits Louisiana residents in Louisiana to accept free hotel rooms in Nevada and free transportation to Nevada, in order to induce them to go to Nevada to gamble, is not transacting business or otherwise acting in Louisiana because it solicits through an “independent contractor” is to ignore reality. La.R.S. 13:3201 does not ignore reality. It asserts jurisdiction to decide claims arising out of nonresidents’ acting “directly or by an agent” in specified ways. The only question is whether indeed the nonresident has acted in one of those specified ways; that the nonresident did so through an “independent contractor” does not defeat jurisdiction if otherwise asserted by the statute; see Boykin v. Lindenkranar, 252 So.2d 467 (La.App. 4 Cir.1971), writ refused 260 La. 15, 254 So.2d 618.

Nor, for similar reasons, would jurisdiction in Louisiana be defeated because of corporate separateness in a joint venture between two corporations — especially two ostensibly one, as may be a hotel and the gambling club inside the hotel — to solicit Louisiana residents in Louisiana with the alleged intent previously described.

We conclude that, by having the business solicitor that Club maintains in Louisiana invite plaintiffs to go in Harrah’s plane to Harrah’s in Nevada with the alleged representation that pre-existing debt problems were “over” (impliedly representing in Louisiana that their stay in Nevada would be free of incident related to the pre-existing debt), while allegedly planning a “self-help lien” for that debt on cash plaintiffs might be expected to bring and place in Harrah’s safety box, Harrah’s either transacted business or committed a quasi offense through an act in Louisiana within R.S. 13:3201 (a) or (c). We also conclude that plaintiff's claim would arise out of that alleged transaction of business or that tort in Louisiana.

The broad purpose of Louisiana R.S. 13:3201 is to assert constitutionally permissible jurisdiction. Our ultimate conclusion is that its subds. (a) and (c) are broad enough to overcome the exception to the jurisdiction as to Harrah’s under the circumstances alleged in the petition and affidavits.

Affirmed as to Harrah’s; reversed as to Ahern and Morgan.

      . "A court may exercise personal jurisdiction over a nonresident who acts directly or by an agent, as to a cause of action arising from the nonresident’s
      "(a) transacting any business in this state; [or]
      "(c) causing injury or damage by an offense or quasi offense committed through an act or omission in this state”.


author: GULOTTA, Judge.

text:
    PICO CREDIT CORP. OF WESTBANK, INC. v. Calvin JENKINS and Carla Jenkins.
    No. CA-1531.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 3, 1984.
    Irl R. Silverstein, Gretna, for appellant. Calvin Jenkins, in pro. per.
    Carla Jenkins, in pro. per.
    Before GULOTTA, SCHOTT and WILLIAMS, JJ.
   GULOTTA, Judge.

Pico Credit Corporation of Westbank, Inc. appeals from the dismissal without prejudice of its suit via ordinaria to enforce a chattel mortgage executed by defendants Calvin and Carla Jenkins. We reverse and remand.

The petition alleges that the note and mortgage, dated May 4, 1982 for $2,537.52, provided for monthly installments in the sum of $211.46, and that, despite demand, defendants have failed to pay the installment due August 15, 1982, leaving a balance in the sum of $2,100.05. Defendants’ answer was a general denial.

Appealing, plaintiff contends the trial judge erred when he permitted testimony of defendant’s disavowal of his signature because defendant had not pleaded disavowal as an affirmative defense. We agree.

Paul Juarez, the credit and branch manager of Pico Credit, testified that in May, 1982, a $2,537.50 loan was made in the name of Calvin and Carla Jenkins, and was signed by a Calvin Jenkins with an address of 65 Imperial Street and a current address of 1919 N. Johnson listed on the Credit Bureau computer printout.

Defendant’s wife, Carla Jenkins, testified that neither she nor her husband were aware of the loan, that they did not own any of the property (described in the phone call from Pico) and that they did not live at 65 Imperial Drive.

Calvin Jenkins testified he was first aware of the promissory note and chattel mortgage when his wife asked him about it after Pico had called her. When Calvin Jenkins testified he had not signed the promissory note, plaintiffs counsel objected on the grounds that defendant had not specifically pleaded disavowal of signature. The trial judge noted the objection and reserved his ruling.

When a defense witness, Cy Courtney, an expert in document examination, began to testify about his opinion of the authenticity of the signature, plaintiff objected a second time. The trial judge again reserved his ruling on the objection.

The Code and jurisprudence are clear that disavowal of a signature is an affirmative defense that must be specially pleaded. LSA.C.C. Art. 2244 and LSA. C.C.P. Art. 1005; Olympic Homes, Inc. v. Ory, 207 So.2d 258 (La.App. 1st Cir.1968), writ refused 209 So.2d 41 (La.1968); Selber Bros., Inc. v. Bryant, 406 So.2d 251 (La.App. 3rd Cir.1981); Colonial Bank v. Peters, 353 So.2d 400 (La.App. 4th Cir.1977); Mirandona Bros. v. Danos, 56 So.2d 159 (La.App. Orl.1952). Because defendant failed to plead in his answer disavowal of his signature and only pled a general denial, the trial judge was compelled to sustain a timely objection to the introduction of evidence regarding the disavowal, arid to allow defendant an opportunity to amend, with leave for plaintiff to obtain a continuance (if it so desired) to prepare a defense to the disavowal claim. His failure to do so constitutes reversible error.

Having so concluded, we reverse and set aside the judgment dismissing plaintiff’s suit. The matter is remanded to the trial court to allow defendant to amend his answer and to reset the matter for a new trial.

REVERSED AND REMANDED.

      . In addition to naming Calvin Jenkins as a defendant, the petition named his wife Carla as an indispensable party liable jointly and in soli-do. The court dismissed Carla Jenkins because no evidence was produced that she had signed any of the documents.


text:
    Vero B. PUCCIO v. Mark S. FINCH, et al. Gordon A. SAUSSY v. Mark S. FINCH, et al.
    Nos. CA-1685, CA-1686.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 3, 1984.
    Writ Denied Oct. 26, 1984.

      Roy A. Raspanti, George J. Dowd, New Orleans, for Elevating Boats, Inc., appellee.
    Jacques F. Bezou, New Orleans, for Vero B. Puccio, appellant.
    Stewart E. Niles, Jr., Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for Gordon A. Saussy, appellant.
    Before GULOTTA, SCHOTT and WILLIAMS, JJ.
   GULOTTA, Judge.

In these consolidated cases arising out of a vehicular accident, plaintiffs appeal the dismissal, by summary judgment, of their claims against the defendant driver’s employer. In answer to the appeal, the employer seeks damages for frivolous appeal. We affirm.

Although the trial judge assigned no written reasons, implicit in his summary judgment is a conclusion that the defendant driver was not acting within the course and scope of his employment at time of the accident, and, therefore, that his employer cannot be held liable under the doctrine of respondeat superior.

The undisputed facts, obtained from deposition, are as follows: Plaintiffs, Vero B. Puccio and Gordan A. Saussy, were injured at approximately 7:30 a.m. on Sunday, October 12, 1980, when a pickup truck driven by defendant, Mark S. Finch, rear-ended Puccio’s van, boat and trailer on Hwy. 23 in Plaquemines Parish.

At the time of the accident, Finch was employed by Elevating Boats, Inc. as a lift-boat captain on a vessel docked in Venice, Louisiana. He was paid for work hours between 6 a.m. and 6 p.m. Finch was on call for a 24 hour period and, according to company policy, was to remain on the boat, except for emergencies or, on occasion, to eat.

On the day before the accident, Finch notified his employer that his vessel needed a starter. Shortly past midnight on the morning of the accident, however, although food was available on the vessel, Finch and a crew member, in violation of their employer’s rules, left the vessel and drove 20 miles in Finch’s truck to a lounge where they drank beer, and thereafter engaged in general “goofing around” on a levee in Buras for several hours. At approximately 6:30 a.m., they drove to a convenience store. They then left the store to drive back to their vessel, and the accident occurred about 15 minutes later.

Appealing, plaintiffs contend the trial judge erred in granting summary judgment in favor of the defendant employer because there is a “permissible inference” from the facts that Finch was acting in the course and scope of his employment and was in the “service of the ship” at the time of the accident. According to plaintiffs, several circumstances — Finch’s status as captain, his leaving the disabled vessel at dockside after notifying a dispatcher (not the employer’s dispatcher), his purchase of food at a convenience store, his attempt to return to the vessel, and the occurrence of the accident during normal working hours when he was compensated — give rise to a number of inferences and credibility issues that should be weighed in a jury trial. We disagree.

It is clear that the circumstances leading up to the accident are not in dispute. The legal conclusion determined by those facts, i.e. whether or not Finch was acting in the course and scope of his employment at the time of the accident, is therefore ripe for summary judgment as a matter of law.

An employer is not liable for the acts or omissions of his employee under the doctrine of respondeat superior unless the tort was committed in the course and scope of the employment. LSA-C.C. Art. 2320; Lebrane v. Lewis, 292 So.2d 216 (La.1974); Weysham v. New Orleans Public Service, Inc., 385 So.2d 19 (La.App. 4th Cir.1980). Resolution of this issue depends on the facts and circumstances of each case, and includes whether the employee’s conduct is closely related in time, place and causation to his employment. Daniels v. Conn, 382 So.2d 945 (La.1980); Schaeffer v. Duvall, 421 So.2d 262 (La.App. 4th Cir.1982). An employee’s violation of his employer’s expressed directions or rules is not necessarily conclusive. Normand, v. City of New Orleans, 363 So.2d 1220 (La.App. 4th Cir. 1978), writ denied 366 So.2d 573 (La.1979); Cain v. Doe, 378 So.2d 549 (La.App. 4th Cir.1979). Nonetheless, vicarious liability will not be imposed when the conduct occurs after the employee has long “abandoned or completed the employment and engages in a folly which is in no manner related to the service of the master.” Normand v. City of New Orleans, supra; Schaeffer v. Duvall, supra.

Applying these legal principles to the facts in our case, we find no error in the trial judge’s dismissal of the defendant employer.

Although the “time” of the accident was during Finch’s normal working hours, the collision occurred at a “place” and as the result of a “causation” unrelated to his employment duties. As captain of his employer’s vessel, Finch had a duty to remain on the boat and not to go ashore except for emergencies or food. In violation of his employer’s rules, however, Finch and his crew member went ashore on what might be called a purely personal “frolic” that was unrelated to their employment.

Although plaintiffs argue that Finch was acting in the service of the ship by attempting to return to the vessel at the time of the accident, that fact alone does not make the accident fall within the course and scope of his employment. Notwithstanding Finch’s attempt to return to the vessel, his action in going ashore to the lounge and “goofing off” for several hours on the levee several miles from the vessel “was such a significant and unpredictable deviation and departure from his employment duties and was so unrelated to the service of the employer as to remove the conduct from the scope of his employment.” Normand v. City of New Orleans, supra.

Had the accident occurred while Finch was driving away from the ship to the lounge or to the levee, there would be no question that the incident was unrelated in place or causation to the employment. The mere fact that the collision occurred during the return trip to the vessel does not alter the general character of Finch’s deviation from his employment duties. Under these circumstances, as a matter of law, the employer cannot be held liable for the acts of the employee. Accordingly, we find no error in the trial court’s summary judgment dismissal of plaintiffs’ claims against the defendant employer.

We further reject the employer’s claim for damages for frivolous appeal. Although we affirm the trial court’s judgment and find no merit to plaintiffs’ arguments on appeal, plaintiffs have raised arguable issues, and we cannot say they have taken the appeal without a serious belief in the merits of their contentions. We do not conclude the appeal is frivolous. LSA-C. C.P. Art. 2164; Parker v. Interstate Life & Accident Insurance Co., 248 La. 449, 179 So.2d 634 (1965); Neustadter v. Bridges, 406 So.2d 738 (La.App. 4th Cir.1981).

Accordingly, the judgment is affirmed.

AFFIRMED.


text:
    William S. DAVIS and Henry Johnson v. William N. ECKERT, Buck Kriehs Co., Inc. and the City of New Orleans.
    No. CA-1728.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 3, 1984.

      Gregory M. Porobil, New Orleans, Bailey & Leininger, Leon A. Aucoin, Jon D. Picou, Janice B. Unland, Metairie, for appellees.
    Salvador Anzelmo, City Atty., Douglas P. Wilson, Chief Deputy City Atty., Michael J. Laughlin, Asst. City Atty., New Orleans, for appellant.
    Before GULOTTA, SCHOTT and WILLIAMS, JJ.
   GULOTTA, Judge.

In these consolidated suits arising out of an intersectional accident, the City of New Orleans appeals from a judgment holding it strictly liable under LSA-C.C. Art. 2317 for a malfunctioning traffic signal at the accident scene. We reverse.

The collision occurred on February 20, 1982, at the intersection of Jackson Avenue and Annunciation Street in New Orleans. William Eckert was driving on Jackson Avenue toward the River, while William Davis, a cab driver, was traveling westbound (uptown)- on Annunciation Street and approaching the intersection from Eckert’s left. After crossing the median separating opposing lanes of Jackson Avenue, Davis’ cab struck the left side of the Eckert vehicle near the rear door.

The intersection was controlled by traffic signal lights, including an “overhead” light suspended above the streets, and other lights on “pedestal bases”- or posts in the Jackson Avenue median and the street corners. Although the pedestal lights were working properly, the overhead signal had been “twisted” out of proper alignment so as to appear green to riverbound traffic on Jackson Avenue and also (at the same time) to westbound Annunciation Street traffic.

Davis and the cab owner, Henry Johnson, filed suit against the City, Eckert, and Eckert’s employer Buck Kreihs Co., Inc. Eckert and his employer reconvened, and filed third party demands against the City for indemnity or contribution, as well as for their damages. The City denied the claims of both drivers, and third parties Eckert and his employer. In a separate suit, Florence Cressy, owner of a parked car damaged in the collision, likewise sought recovery. Cressy’s suit was later consolidated with the other action.

After a trial on the merits, the trial judge concluded "... that the sole proximate cause of the accident was the twisted traffic signal which caused both drivers ... to be faced with a green traffic signal and both concluding that they were acting prudently by entering the intersection almost simultaneously.” The trial judge further found that neither driver had been “con-tributorily negligent” or “guilty of victim fault”. Citing LSA-C.C. Art. 2317, the court concluded that the traffic signal was defective, and that the City was solely liable.

Appealing, the City contends the twisted traffic signal is not a “vice or defect in the thing” within the meaning of LSA-C.C. Art. 2317. Alternatively, the City argues that both drivers were negligent and guilty of fault which caused the collision, thereby exonerating the. City from liability either in negligence or under LSA-C.C. Art. 2317.

Although we reject the City’s argument that the twisted light was not a “defect” within the meaning of LSA-C.C. Art. 2317, we find merit to its contention that both drivers’ concurrent negligence, not the malfunctioning light, was the sole cause of the collision.

The testimony of Anthony Raines, a traffic engineer for the Department of Streets and Engineering, and Michael Fretwell, a traffic signal technician, established that the post or pedestal traffic signals at the intersection were functioning properly but that the overhead signal was in a turned position so as to give a “dual indication”. Because of this malfunction, a motorist traveling riverbound on Jackson would be confronted with conflicting signals (i.e. the overhead signal showing green, and the pedestal lights showing red), whereas a westbound motorist on Annunciation approaching from that riverbound driver’s left would see green lights.

Consistent with this testimony, Davis testified that five minutes before the collision he had driven his cab riverbound on Jackson Avenue and had observed that the lights were malfunctioning at the intersection. According to Davis, as he approached Annunciation on Jackson Avenue, he was confronted with a green overhead light and two red pedestal lights. Accordingly, he came to a stop and looked around carefully for approaching vehicles before turning left onto Annunciation. After dropping off a fare paying passenger two blocks away, Davis then proceeded back toward the intersection on Annunciation where he saw green lights in his favor. He testified, however, that he “wasn’t thinking at the time” and “forgot” about the malfunctioning overhead light. Without looking to see if traffic was approaching from either direction on Jackson or taking additional precaution, Davis proceeded into the intersection.

This evidence considered, we conclude the trial court erred in failing to find Davis at fault. Davis was aware of the malfunctioning traffic signal, having observed it only minutes earlier. This notice of the signal malfunction placed upon him an obligation to exercise a higher degree of care as he again entered the intersection, albeit from a different approach. Davis’ prior knowledge of the malfunctioning deprives him of reliance on the ordinary presumption afforded a driver favored with a green light, who can safely assume that intersecting traffic will yield. See Bourgeois v. State Through Department of Highways, 255 So.2d 861 (La.App. 4th Cir.1971). By his own testimony, Davis “wasn’t thinking” and “forgot” about the malfunctioning light he had observed only five minutes earlier. It is also significant that he had driven only two blocks from the intersection to drop off his fare paying passenger before returning to the same intersection. This victim fault precludes recovery against the City based on C.C.P. 2317 strict liability.

In the same way that Davis is precluded from recovering against the City, Eckert’s negligence in proceeding through the intersection without exercising a greater degree of care when confronted with conflicting traffic signals is a bar to recovery against the City. Eckert testified that he had only observed the green overhead light but had not remembered noticing red pedestal lights at the intersection. The testimony of the Department of Streets personnel and Davis establishes, however, that even though the overhead light may have appeared green, the post lights were showing red to Eckert. Indeed, five minutes previously, Davis had observed the conflicting signals and had stopped upon approaching the intersection in the same path as Eckert. Under these circumstances, we conclude Eckert was negligent in failing to maintain a proper lookout and to see that which he should have seen.

Because the evidence clearly establishes the equal, total and concurrent negligence of both drivers, no liability attaches to the City, either in strict liability or negligence. A municipality is not liable for a malfunctioning traffic signal where the harm was caused by the fault of the victim or a third person. Jones v. City of Baton Rouge, Etc., 388 So.2d 737 (La.1980); American Road Ins. Co. v. Montgomery, 354 So.2d 656 (La.App. 1st Cir.1977), writ denied 356 So.2d 430, 434, 435 (La.1978); Norris v. City of New Orleans, 433 So.2d 392 (La.App. 4th Cir.1983).

Applying Louisiana’s comparative negligence law to this accident, we apportion the fault of the drivers as follows: 50% to Eckert and 50% to Davis. Reducing each driver’s general damages in proportion to the percentage of negligence attributable to him, we conclude that each is entitled to recover 50% of his damages from the other. LSA-C.C. Art. 2323; Sampy v. Roy Young, Inc., 425 So.2d 284 (La.App. 3rd Cir.1982); Varnado v. Continental Ins. Co., 446 So.2d 1343 (La.App. 1st Cir.1984).

Although Eckert’s negligence is imputable to his employer, Buck Kriehs Co., Inc., there is no basis for holding Henry Johnson (owner of the vehicle driven by Davis) vicariously liable for Davis’ negligence. The evidence simply establishes that Johnson leased the vehicle to Davis; and, absent a showing that Johnson exercised any control over Davis or had any privity of contact with him beyond the lease arrangement, Davis’ negligence is not imputable to Johnson as owner-lessor. Vicknair v. Olin, 371 So.2d 360 (La.App. 4th Cir.1979); Turner v. Ewing, 220 So.2d 518 (La.App. 4th Cir.1969), affirmed 255 La. 659, 232 So.2d 468 (1970). Johnson is therefore entitled to recover $541.00, the full amount, of the stipulated damages to his vehicle, from Eckert and his employer, Buck Kriehs Co., Inc.

Accordingly, for the foregoing reasons, the judgment of the trial court is reversed and set aside. Judgment is now rendered as follows:

IT IS ORDERED, ADJUDGED AND DECREED that there is judgment in favor of WILLIAM S. DAVIS and against WILLIAM N. ECKERT AND BUCK KRIEHS COMPANY, INC. jointly and in solido, in the full sum of Three Thousand Seven Hundred Eighty-Six and 50/100 ($3,786.50) Dollars, together with legal interest from the date of judicial demand until paid;

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there is judgment in favor of WILLIAM N. EC-KERT and BUCK KRIEHS COMPANY, INC., plain tiffs-in-recónvention, and against WILLIAM S. DAVIS, in the full sum of Three Thousand Twenty-Eight and 77/100 ($3,028.77) Dollars, together with legal interest from the date of judicial demand until paid;

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there is judgment in favor of plaintiff HENRY JOHNSON and against WILLIAM N. EC-KERT and BUCK KRIEHS COMPANY, INC., in the full sum of Five Hundred Forty-One and 00/100 ($541.00) Dollars, together with legal interest from the date of judicial demand until paid and for all costs.

REVERSED AND SET ASIDE; RENDERED.

      . Damages were stipulated in the following amounts: Davis ($7,573.00); Eckert and Buck Kriehs Co., Inc. ($6,057.53).

      . Johnson asserted no claim against Davis and therefore cannot recover from him. Johnson is entitled to full recovery of his stipulated damages from the solidary obligors Eckert and Buck Kreihs, Co., Inc. See LSA-C.C. Art. 2324.


text:
    STATE of Louisiana v. Hector MARTZ.
    No. KA-0425.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 3, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Beryl M. MeSmith, Asst. Dist. Atty., New Orleans, for appellee.
    Frank Larre, Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for appellant.
    Before GULOTTA, SCHOTT and WILLIAMS, JJ.
   GULOTTA, Judge.

In this appeal, we are confronted with whether the trial judge imposed an excessive five year sentence for distribution of marijuana. In an earlier review of the sentence in this case we held the trial judge failed to accord proper weight to the guidelines set forth in LSA-C.Cr.P. Art. 894.1, State v. Martz, 436 So.2d 712 (La.App. 4th Cir.1983). We affirmed the conviction but set aside the sentence and remanded for compliance with the statute.

Hector Martz was charged with one count of unlawful distribution of marijuana, and with two counts of attempt to commit first degree murder of an undercover police officer arising out of an altercation and fight between the two arresting officers and Martz at the time of the arrest.

In oral reasons the trial judge stated in his original sentence:

“This Court takes an extremely serious view of drug violations, particularly those involving distribution. Because of this attitude, the Court’s tendency is toward the imposition of substantial terms of imprisonment in such cases. The Court is nevertheless under mandate to follow the Code of Criminal Procedure Article 894.1 when imposing sentence. In the case at bar, after reference to such guidelines, the Court finds the defendant has no history of prior delinquency or criminal activity and has apparently led a law abiding life for a substantial period of time before the commission of the instant crime. The Court also finds that due to his rural background and inexperience in the metropolitan areas, as evidenced by the pre-sen-tence report, the defendant, apparently, did not contemplate that his conduct would cause or threaten serious harm. On the other hand the Court feels that in the view of the extreme seriousness of trafficking of drugs in any form, a lesser sentence than that which is about to be imposed would deprecate the seriousness of the defendant’s crime. The Court further feels that the defendant is in need of some correctional treatment which would be better provided by institutional commitment.”

On remand, and after another resentenc-ing hearing, the trial judge in our case again sentenced defendant to the five year sentence originally imposed. The judge in his oral reasons at the second sentencing hearing stated:

“The Court reiterates and amplifies the comments made on the date of the original pronouncement as follows:
This defendant has no consistent record of employment or gainful occupation and was apparently supporting himself by selling drugs in the French Quarter.... At the time of his arrest he was in possession of two match boxes of marijuana and 16 hand-rolled, marijuana cigarettes. Upon learning that the person he had solicited to buy the drugs was a police officer, the defendant reacted violently and attacked the officer and his companion and made a serious offense to shoot him with his own gun.
These facts, coupled with the very serious nature of traffic in narcotic drugs per se, convinced this court that a lesser sentence will deprecate the extreme seriousness of the defendant’s crime. Further, based on the circumstances of defendant’s environment, lack of employment status, his violent reaction to arrest, his patently fabricated account of the circumstances at his trial, and his apparently callus disregard for the law, this Court feels that the defendant was and is in need of correctional treatment in a custodial environment. With due respect for the opinion of the Court of Appeal, this Court does not feel that the sentence originally imposed is excessive under the circumstances.... ”

This present appeal is from the re-imposition of the sentence. The defendant assigns as error the imposition of an excessive sentence.

Article 1, Section 20 of the Louisiana Constitution prohibits the imposition of excessive punishment. A punishment is unconstitutionally excessive if it: 1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless -and needless imposition of pain and suffering; or 2) is grossly out of proportion to the severity of the crime. State v. Telsee, 425 So.2d 1251 (La.1983). In Telsee, where defendant’s sentence for forcible rape was held to be excessive after the facts of defendant’s crime and his makeup as a person were compared with other offenders and their crimes, the Louisiana Supreme Court amended and reduced the sentence after examining several factors to determine whether the sentence by its “excessive length or severity is greatly dispropor-tioned to the underlying offense”. In any review for an abuse of the trial court’s discretion, courts look to the nature of the offense, the offender, the statute guidelines and a comparison of sentences imposed for similar crimes. See State v. Telsee, supra and State v. Finley, 432 So.2d 243 (La.1983).

In State v. Gist, 369 So.2d 1339 (La.1979), two consecutive five and ten year sentences for distribution of marijuana by a twenty-two year old first offender who sold two “lids” to undercover agents in sales six days apart for twenty dollars were vacated and remanded after the Court found the trial judge failed to properly comply with the sentencing guidelines of La.C.Cr.P. Art. 894.1. The Supreme Court concluded that less severe sentences might have been imposed.

In State v. Touchet, 372 So.2d 1184 (La.1979), a four year sentence imposed on a 19 year old steadily employed first offender for distribution of marijuana at a profit of $1.00 was vacated after the trial judge was found not to have adequately followed the sentencing guidelines.

In State v. Fergus, 418 So.2d 594 (La. 1982), U.S. cert denied 459 U.S. 1106, 103 S.Ct. 730, 74 L.Ed.2d 954 (1983), the five year sentences and fines of $2,500.00 plus costs, of two defendants who pleaded guilty to attempted distribution of marijuana and had agreed upon two sales of fifty pounds of marijuana each were affirmed where the trial court adequately followed the sentencing guidelines and one defendant was a third felony offender with expertise in narcotics traffic and the other defendant was also involved in arranging the shipment of one hundred pounds of marijuana.

In State v. Roubique, 421 So.2d 859 (La.1982), the Supreme Court affirmed the imposition of a 5 year suspended sentence (of which one year was to be served in prison) and a $5,000.00 fine where defendant pleaded guilty of possession of marijuana with the intent to distribute and production after more than forty-seven pounds of marijuana, five marijuana plants and $8,580.00 cash were found in defendant’s trailer.

In State v. Bing, 410 So.2d 227 (La.1982), a four year sentence plus a $3,000.00 fine for possession of twenty-eight pounds of marijuana with intent to distribute by a forty year old defendant with no prior criminal convictions was held to be excessive, vacated and remanded for resentencing.

In State v. Ruiz, 437 So.2d 330 (La.App. 2nd Cir.1983), stay order denied 438 So.2d 567 (La.1983), sentences of two and one-half years and one and one-half years on two different defendants for possession of marijuana with intent to distribute were affirmed and were not considered “grossly out of proportion”, where the sentences constituted “a measurable contribution to the goals of deterrence and retribution” and compared “favorably to others having a similar factual basis” after a bag of marijuana was found on one defendant and $2,500.00 cash was found on the other defendant, and a bag containing less than nine pounds of marijuana was found in the van which was driven by one defendant and in which the other was a passenger.

In State v. Trahan, 425 So.2d 1222 (La.1983), four and seven year sentence imposed on two different defendants for possession of marijuana with intent to distribute were found not to be excessive when one defendant, steadily employed with no prior criminal activity, admitted to use of marijuana over an extended period and the other defendant was on probation from a suspended sentence for prior distribution of marijuana.

In the earlier appeal in this case, we noted that:

“Twenty-five year old Martz had no history of prior delinquency or criminal activity. The judge noted that due to Martz’ rural background and inexperience, the defendant apparently had not contemplated that his conduct would cause or threaten serious harm. He had a record of gainful employment and had led an abiding life for a substantial time before committing the instant offense of distributing ‘two match boxes’ of marijuana to undercover narcotics officers. Considering these factors, we find no factual basis for the trial judge’s conclusions that a lesser sentence than that imposed ‘would deprecate the seriousness of the defendant’s crime’ and that the defendant ‘is in need of some correctional treatment which would be better provided by institutional commitment.’ ”

We point out that at the time of his arrest Martz had a history of continuous employment for three years as a cook on ships. Additionally, we find no support in the record that defendant had previously sold drugs.

Our assessment of defendant’s sentence in light of the previously considered factors of his age, the absence of a prior criminal record, his employment record and rural background; the amount of marijuana involved and a comparison of sentences in other cases leads us to conclude that the imposition of a five year sentence at hard labor in this case is greatly disproportionate to the offense and constitutes excessive punishment prohibited by Article 1, Section 20 of the 1974 Louisiana Constitution.

Accordingly, the sentencing imposed by the trial court is amended by reducing the term of the sentence to two years at hard labor with credit for time served.

SENTENCE AMENDED AND AS AMENDED, AFFIRMED.

      . After acquitting defendant of the two charges of attempt to commit first degree murder, the jury found the defendant "guilty as charged” for distribution of “a controlled dangerous substance, to-wit marijuana”. Defendant was sentenced to five years at hard labor with credit for time served, and was further assessed a $500.00 fine plus $74.00 in court costs.

      . Defendant was charged with and found guilty of possession of two matchboxes of marijuana and 16 hand rolled cigarettes.

      . In State v. Telsee, supra, the Supreme Court chose to decide the issue of excessive punishment and amended the sentence because the record was "ripe” for review and because it was "in the best interest of justice, the parties and the judicial system that this prolonged sentence proceeding be concluded.” The court recognized that further remand would entail "a pointless waste of judicial and legal resources”.