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    John Allen STEPHENS, Plaintiff-Appellee, v. The STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, et al., Defendant-Appellant. MID FLORIDA TRUCKING, INC., Plaintiff-Appellee, v. The STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, et al., Defendant-Appellant. C.H. KNIGHT LIVESTOCK, INC., Plaintiff-Appellee, v. Herman FISHER, d/b/a Mid Florida Trucking Company and the State of Louisiana, Through the Department of Transportation and Development, Defendant-Appellant.
    Nos. 15724-CA to 15726-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 1983.
    Writ Denied Jan. 6, 1984.

      John W. King, Baton Rouge, of counsel, for State of La., defendant-appellant.
    Mayer, Smith & Roberts by George T. Allen, Jr., Shreveport, for Liberty Mut. Ins. Co., intervenor.
    Cummings & Gambel by Gregory F. Gam-bel, New Orleans, for John Allen Stephens, plaintiff-appellee.
    Campbell, Campbell & Johnson by James M. Johnson, Minden, for Mid Florida Trucking, plaintiff-appellee.
    Bolin, Elkins & Pearce by Randy D. El-kins, Minden, for C.H. Knight Livestock, Inc., plaintiff-appellee.
    Before JASPER E. JONES, SEXTON and NORRIS, JJ.
   SEXTON, Judge.

Three plaintiffs brought suit for the losses sustained in a vehicular collision allegedly caused by defendant’s negligence. The trial court granted judgment in favor of all three plaintiffs. The suits of all three plaintiffs were consolidated at trial and on appeal. We affirm.

Primary plaintiff in this cause is John Allen Stephens, aged 26, a former truck driver and currently a resident of Bowling Green, Florida. The other two plaintiffs in this cause are C.H. Knight Livestock, Inc. (hereinafter referred to as Knight Livestock), and Mid Florida Trucking Company (hereinafter referred to as Mid Florida), both of which are Florida corporations. Knight Livestock is a cattle broker, and Mid Florida is a transport company. Defendant is the State of Louisiana, through the Department of Transportation and Development (hereinafter referred to as The Department).

The events which gave rise to the instant appeal transpired on July 11, 1978, at approximately 2:35 p.m. Immediately prior to that time, plaintiff Stephens was driving an 18 wheel tractor-trailer in a westward direction several miles east of Minden, Louisiana on U.S. Interstate 20, a four lane highway. A co-driver, John Carter, was present in the cab with Stephens. Stephens was pulling a 72,000 pounds gross weight, double decked, or double tiered trailer containing 98 head of cattle, which were loaded on both levels. Stephens was at that time in the employ of plaintiff Mid Florida and was driving a rig leased by Mid Florida; the cattle being transported were owned by Knight Livestock.

As Stephens crested a hill approximately 2.2 miles east of Minden, driving westward in the outside (northernmost) lane, he was passed by a car driven by Bernice Stanfield in the inner or passing lane. After passing the rig driven by Stephens, Ms. Stanfield changed lanes, moving back into the outer lane. At this point, both Stephens and Ms. Stanfield were headed in a westward direction in the same lane, with Stephens trailing Ms. Stanfield by an interval of approximately 60 feet.

About 1000 feet later, Ms. Stanfield switched back into the left (passing) lane rather abruptly. As she moved into the left lane, a flagman standing on the highway only a short distance away from Stephens’ oncoming rig flagged Stephens into the left lane. As Stephens’ tractor-trailer veered sharply into the left lane, Ms. Stanfield’s vehicle slowed in front of him, and Ms. Stanfield’s brake lights lit up. Stephens veered his rig sharply to the left in an attempt to avoid a collision with Ms. Stan-field’s vehicle. Stephens’ rig nevertheless collided with the Stanfield vehicle, with the right side of Stephens’ front bumper striking the left side of Ms. Stanfield’s rear bumper. This impact sent the Stanfield vehicle spinning out of control across the right hand lane of traffic, off the right hand shoulder, and into the vegetation along the right side of the roadway.

As a result of his sharp veer to the left and the impact with Ms. Stanfield’s vehicle, Stephens’ rig briefly entered the median or barrow pit separating the westbound and eastbound lanes of traffic. Stephens then steered to the right in an attempt to re-enter the roadway. However, Stephens over-corrected and the tractor-trailer tipped over onto its left side. The tractor-trailer thereafter slid down the roadway in a westerly direction for approximately 250 feet, striking a Department of Transportation and Development dumptruck parked on the right hand shoulder, knocking it some 120 feet along the roadway and ultimately off the right hand shoulder, and into the right-of-way along the north side of the highway. It appears the co-driver, John Carter, was asleep at the time of the accident.

Plaintiff John Stephens suffered a traumatic partial amputation of his left leg in the accident. The condition of his left leg necessitated its surgical removal three inches below the knee that same day in the emergency room of the Minden Medical Center. Plaintiff’s left leg thereafter developed a severe infection. Mr. Stephens remained hospitalized for a month following the accident, and subsequently resided for three months at the home of his mother-in-law, an LPN, who gave him constant medical care during that time period, irrigating, repacking and redressing his wound .twice daily. Because of his physical disability, Mr. Stephens was unable — during the four year lapse between the accident and the conclusion of trial — to remain employed for any appreciable lapse of time. Stephens’ co-driver, John Carter was uninjured.

The tractor-trailer driven by Stephens, and leased by plaintiff Mid Florida, sustained substantial damage. Of the 98 cattle owned by Knight Livestock, 30 were either killed or lost; the remaining 68 cattle were sold shortly thereafter at auction in an attempt at partial loss recoupment. Although her car was damaged in the wreck, Ms. Bernice Stanfield emerged from the collision uninjured, as did three state highway employees present at the time of the wreck. They had scrambled to safety and successfully evaded the tractor-trailer as it slid on its side down the highway.

Plaintiffs John Stephens, Mid Florida, and Knight Livestock all filed suit against the Louisiana Department of Transportation and Development in 1979, alleging that The Department’s negligence had precipitated the accident-related losses of July 11, 1978. An intervention was filed by Liberty Mutual Insurance Company, the workers’ compensation insurer that had paid John Stephens’ medical expenses and disability benefits pursuant to Florida law. The claims of all plaintiffs and intervenor Liberty Mutual against Bernice Stanfield and her insurer were contractually compromised and released; all third party indemnification claims by The Department and other parties against Ms. Stanfield and her insurer were also compromised and released. Ms. Stanfield similarly compromised and dismissed all claims and indemnification demands against all other parties to the litigation, and Bernice Stanfield’s potential liabilities and causes of action were therefore eliminated from the instant litigation.

In a scholarly and well considered opinion filed December 20, 1982, the trial court granted judgment against defendant, The Department, and in favor of plaintiffs John Stephens, Mid Florida and Knight Livestock, and intervenor Liberty Mutual Insurance Company. The court awarded $590,-000 to plaintiff Stephens for pain, disability and loss of earnings, stipulating that $59,-725.94 of this amount should be paid to intervenor Liberty Mutual for the compensation payments previously made by it to Stephens. The court awarded $42,625.46 to plaintiff Mid Florida, the transport company which employed John Stephens at the time of the accident, and owned the tractor-trailer damaged in the wreck. This award represented the damages to Mid Florida’s tractor-trailer, the profit lost on the aborted transit of the 98 cattle, and the loss of a lucrative and on-going business relationship with Knight Livestock which directly resulted from the accident. The trial court awarded plaintiff Knight Livestock $11,-287.98 for the thirty cows that were lost or killed in the accident.

The Department has appealed the judgments granted against it, assigning six errors. The Department contends that the trial court erred in finding that it negligently caused the accident of July 11, 1978, and in finding that plaintiff John Stephens was free of contributory negligence in causing said accident. The Department contends that the trial court erred in accepting state troopers as experts, in refusing to accept State’s witness, Russell Willie, as an expert, and in refusing to grant a new trial. The Department contends, finally, that the trial court erred in refusing to admit into evidence taped telephone conversations between The Department’s trial counsel and plaintiff Herman Fisher, owner of Mid Florida, and taped telephone conversations between said counsel and John Stephens’ co-driver, John Carter. The Department has not challenged on appeal the quantum of the judgments awarded by the trial court in favor of plaintiffs and intervenor. The six assignments of defendant-appellant The Department are singly treated herein.

Assignment I.

The Trial Court Erred in Finding that The Department Negligently Caused the Wreck.

The statutory bases for negligence actions are Civil Code Articles 2315 and 2316. Article 2315 provides that “Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” Article 2316 states that “Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.” The principal juridical element of an action in negligence is a duty, apparent to reason and common sense, to avoid acts and omissions which engender an unreasonable risk of harm to others. In order to prevail in a negligence action, the plaintiff must prove the existence of such a duty, the breach of that duty, and that damages have been caused by its breach. Plaintiff must additionally show that the harm suffered could have been foreseeably associated with the breach of the duty, and that this harm was the type of injury that the duty was designed to prevent. See generally, Callais v. Allstate Insurance Co., 334 So.2d 692 (La.1975); Williams v. Louisiana Machinery Co., Inc., 387 So.2d 8 (La.App. 3d Cir.1980); Williams v. City of Alexandria, 376 So.2d 367 (La.App. 3d Cir.1979); Traders & General Insurance Co. v. Robison, 289 So.2d 178 (La.App. 1st Cir.1973).

The duty of The Department has been more specifically enunciated by statute and case law. LSA-R.S. 48:35 mandates that The Department “shall adopt minimum safety standards with respect to highway design, construction and maintenance.” The law imposes upon The Department the duty of maintaining public roads in a safe condition so as to not expose the public to unreasonable dangers. This general duty includes in its scope the more specific duty of providing proper safeguards or adequate warnings of dangerous conditions on the highway. The Department clearly has a duty to warn motorists of dangers engendered by ongoing road repair. The duty of reasonable care operative under negligence principles requires The Department to erect barriers, signs and markings which are sufficiently effective to warn the public of dangerous road conditions. Warnings should be sufficient to alert the ordinary motorist. The law imposes a high degree of care on governmental agencies charged with the responsibility of maintaining traffic signs, signals and warning devices. See, e.g., Vervik v. State Dept. of Highways, 302 So.2d 895 (La.1974); Brandon v. State, Through Dept. of Highways, 367 So.2d 137 (La.App. 2d Cir.1979), writs refused, 369 So.2d 141 (La.1979); Von Cannon v. State Dept. of Highways, 306 So.2d 437 (La.App. 3d Cir.1975), writs refused, 309 So.2d 681 (La.1975); Hale v. Aetna Casualty & Surety Co., 273 So.2d 860 (La.App. 2d Cir.1973), writs refused, 275 So.2d 867 (La.1973); Petree v. Crowe, 272 So.2d 399 (La.App. 2d Cir.1973), writs refused, 274 So.2d 709 (La.1973); Funderburk v. Temple, 268 So.2d 689 (La.App. 1st Cir.1972), writs refused, 270 So.2d 875 (La.1973); Falgout v. Falgout, 251 So.2d 424 (La.App. 1st Cir.1971); Kilpatrick v. State, 154 So.2d 439 (La.App. 2d Cir.1963).

On the date of the accident, a three man highway maintenance crew employed by The Department was engaged in repairing potholes approximately 2.4 miles east of Minden, as John Stephens approached them from the east. Shortly before the accident, the crew located a large pothole in the right or northernmost of the westbound lanes which required repair; the pothole to be repaired was located in the right hand lane approximately 1500-2000 feet to the west of a crest in the hill over which the highway ran. The State crew parked their dump-truck on the right shoulder directly across from the pothole requiring repair, and disembarked from the vehicle. One of their number was stationed approximately 50 feet behind — or to the east of — the State truck as a flagger, and equipped with a small “paddle” which read “slow” on one side and “stop” on the other. The flagman stood near the center line of the westbound lanes. The other two members of the work crew then proceeded to remove broken pieces of concrete from the pothole and place this concrete debris on the side of the road. The two maintenance men had completed removing the broken concrete from the pothole, and just before the accident had returned to the right shoulder to obtain hot mix from the State truck to place in the pothole.

As these repair attempts proceeded, John Stephens neared the repair site in his tractor-trailer. Ms. Stanfield passed Stephens as he crested the hill and returned to the right lane as they neared the maintenance crew, with Stephens following her in the same lane by approximately 60 feet. Shortly before Ms. Stanfield reached the flagman, he flagged her into the left lane. The flagman then flagged John Stephens into the left lane when Stephens was only about 100 feet away from the flagman, and as the flagman stood only fifty feet away from his fellow workmen and the DOTD truck parked on the right hand shoulder. Stephens was forced to swerve sharply into the left lane to avoid striking the flagman, at which time he collided with the rear of Ms. Stanfield’s vehicle and the previously described sequence of events ensued.

The trial court found, correctly we believe, that The Department’s mode of operations were careless and substandard in several significant respects. The Department violated common sense rules imposed by tort law to avoid acts and omissions which foreseeably engender unreasonable risks of harm; moreover, The Department violated its own regulations promulgated in the “Maintenance Traffic Control Handbook.”

The Department employees’ actions were negligent, in the first instance, insofar as the flagman was stationed a scant 50 feet from the repairmen themselves; such a short interval of warning, given normal highway speeds, provides highway travel-lers with woefully inadequate warning time. The danger of providing such short advance notice that the driver must abruptly change lanes is compounded where, as here, the thoroughfare is heavily travelled and there is thus a substantial likelihood that there will already be traffic in the lane to which the warned driver must transfer. The negligence of The Department flagman in giving John Stephens such short notice of the looming hazard was exacerbated by the apparent fact that the flagman did not wave John Stephens into the left lane until John Stephens was approximately 100-150 feet away. It is further significant that this flagman testified that he was given no safety instructions or training by the State prior to his active duty.

The trial court found it especially significant — and rightly so — that The Department’s employees utilized virtually no traffic devices, signs, warning signals, lights or barriers. The only sign present was a road construction sign located some 400 feet to the east of the accident site; however, this sign did not impose a speed limit, did not signify a lane closure, did not specify the hazard or type of construction present, and was of such a type as is generally followed by more specific directives. It is further significant that the sign had not been placed with respect to the pothole repair, but with respect to an entirely different maintenance project further to the west which, at the time of the accident, had been partially or wholly completed. Thus, although The Department’s repair work on the outer lane of the roadway itself necessitated at least a temporary closure of that lane, The Department did not utilize a single traffic sign, device or warning light to signal the imminent lane closure and the repair work transpiring in the right hand lane.

The trial court found it significant that the conduct of The Department’s employees violated The Department’s own “Maintenance Traffic Control Handbook.” That safety manual specifies that where the closure of the exterior lane of a multi-lane highway is necessary for fewer than 15 minutes, the following measures must be effectuated at an absolute minimum: the work vehicle must be mounted with a flashing light, a warning sign and two flags, moreover, a “special secondary vehicle” must be stationed at least 150 feet behind the work site, and it must also be equipped with a flashing light, warning sign and two flags.

The record is clear that none of these precautionary measures, promulgated by The Department under the authority of LSA-R.S. 32:235, were complied with, and the record further indicates that The Department’s employees were almost completely unconversant with the import of these rules. The violation of these quasi-statutory rules is highly indicative of negligence. See Tolbert v. Ryder, 345 So.2d 548 (La.App. 3d Cir.1977); Taylor v. Texas & New Orleans Railway Co., 22 So.2d 771 (La.App. 1st Cir.1945). Moreover, we concur that The Department was negligent in sending an untrained flagman to control traffic, and vicariously liable for his negligent actions/omissions in standing only 50 feet from the repair site and in not flagging John Stephens into the left lane until virtually the last possible moment. We therefore have little difficulty in ascertaining the crucial causal link between The Department’s substandard conduct and the injuries complained of.

Assignment II.

The Trial Court Erred in Finding that Plaintiff John Stephens was Free of Contributory Negligence and Therefore not Barred from Recovery.

The facts which gave rise to the instant appeal occurred in the pre-compara-tive negligence era, in which contributory negligence barred recovery. Contributory negligence is merely negligence on the part of the plaintiff — substandard conduct on the part of a plaintiff which exposes him to an unreasonable risk of harm, and foresee-ably engenders a substantial likelihood of injury or loss. Contributory negligence is thus conduct on the part of the plaintiff which falls below the standard expected of a reasonable man under like circumstances, to which standard a plaintiff should conform for his own protection. See Dupas v. City of New Orleans, 354 So.2d 1311 (La.1978); Smolinski v. Taulli, 276 So.2d 286 (La.1973); Cambridge Mutual Fire Ins. Co. v. State Farm Fire & Casualty Co., et al., 405 So.2d 587 (La.App. 3d Cir.1981). Having applied this analytic standard to the facts of this case, we conclude that the trial court did not err in finding that plaintiff was not contributorily negligent, and in ruling that the plaintiff was therefore not barred from recovery.

We note in the first instance that plaintiff was driving at a speed of 60-62 miles per hour immediately prior to the accident, and was thus exceeding the legally allowable maximum speed by five to seven miles per hour. However, while plaintiff was thus violating traffic laws, driving seven miles per hour over the speed limit does not constitute negligence or contributory negligence per se. As the courts of this state have made clear, the violation of a safety statute creates a rebuttable presumption of negligence. Tolbert v. Ryder, supra; Cornish v. Ford, Bacon & Davis Construction Corp., 304 So.2d 361 (La.App. 1st Cir.1974), writ refused, 305 So.2d 123 (La.1974). The violation of a safety statute does not in and of itself constitute actionable negligence; it must also be shown that the action which contravenes a statute is unreasonable under the circumstances and causes the harm of which plaintiff complains. In this instance, plaintiff’s violation of the traffic laws does not constitute negligence for the simple reason that this violation of prohibitive law did not cause the accident. As was made clear by the testimony of expert accident reconstruction analyst, Dr. William H. Tonn, Jr., the accident would have occurred even if plaintiff had been driving 55 miles per hour or even 50 miles per hour. This is because The Department’s failure to give adequate advance warning of the lane obstruction and the presence of workmen in the road created an emergency situation in which plaintiff was forced to swerve abruptly and sharply to the left in order to avoid injuring the maintenance men, and plaintiff would have been unable to maintain control of his rig even at a substantially reduced speed. We note moreover that exceeding the speed limit by seven miles per hour on a thoroughfare originally designed to safely accommodate much higher speeds is not conduct which is so inherently dangerous as to constitute negligence per se.

We also note that plaintiff’s failure to substantially reduce his speed when he encountered the road under construction sign some 400 feet to the west of the accident site, where the highway maintenance crew was engaged in road repair, was not so inherently dangerous or risk engendering as to constitute contributory negligence. We conclude, for several reasons, that plaintiff’s failure to substantially reduce his speed when encountering that single traffic sign did not constitute negligence per se. A single under construction sign is hardly an invariably accurate and correct indication that highway obstruction is imminent. As was stated by Judge Hall in Brandon v. State, Through Department of Highways, 367 So.2d 137, 143 (La.App. 2d Cir.1979), writs refused, 369 So.2d 141 (La.1979), “common experience tells us, and expert testimony ... verifies, that warning signs left up over an extended period of time with no evidence of construction activity become ineffective, particularly as to drivers who travel the road regularly even though the drivers have actual knowledge of the hazard.” It is pertinent, in gauging plaintiff’s response to this sign, that such signs are intended to be followed by more specific traffic directives. In this case, such specific traffic directives were conspicuously absent: no signs were placed after the original under construction sign to advise the travelling public as to the nature of any highway hazard; there were no succeeding signs to advise the public as to whether in fact a hazard even existed. The sign in question did not specifically prescribe plaintiff’s conduct, expressly mandate a reduction of speed, signal an imminent lane closure, or apprise plaintiff of the nature of the imminent hazard. Since such signs frequently remain posted after an existing road hazard has ceased, these signs often fail to apprise the travelling public of not only the nature, but also the existence, of imminent dangerous conditions.

The evidence preponderates that the flag-ger did not close the road for an uninterrupted interval of time, and that the workmen were not a continuous presence in that lane. It appears that the flagger only flagged sporadically when the workers were on the roadway itself, and that the workers moved back and forth from the roadway to the shoulder in repairing the pothole. As The Department’s employees testified, they entered the roadway when traffic was light, and departed with the appearance of oncoming traffic. Thus, this sporadic flagging and the periodic and abbreviated appearances of the workers onto the roadway did not afford a continuous warning, but rather an infrequent and erratic presence.

If the flagman had been waving his flag, and had the workmen been present on the road as Stephens approached from afar, Stephens would have received adequate warning to reduce his speed and proceed with caution, and a failure to do so might have constituted contributory negligence. Smolinski v. Taulli, supra. The Department has simply failed to establish that the flagman was flagging or that the workmen were in the roadway for a sufficient period of time prior to Stephens’ approach to allow him to safely change lanes.

Our conclusion as to plaintiff’s freedom from contributory negligence is supported, finally, by the tort doctrine of “sudden emergency.” Plaintiff is not barred from recovery where defendant creates a dangerous situation in which even the actions of a reasonably prudent and wary motorist would be insufficient to avoid collision; plaintiff is not legally answerable for the consequences of reasonable avoidance actions necessitated by defendant’s negligence in creating an unreasonably risky environing circumstance. One who suddenly finds himself in a position of imminent peril, without sufficient time to consider and weigh all circumstances or best means that may be adopted to avoid an impending danger, is not guilty of negligence if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence. Hickman v. Southern Pacific Transport Co., 262 La. 102, 262 So.2d 385 (1972); Dane v. Canal Ins. Co., 240 La. 1038, 126 So.2d 355 (1960); Commercial Standard Ins. Co. v. Johnson, 228 La. 273, 82 So.2d 8 (1955).

Assignments III & IV.

The Trial Court Erred in Accepting as Expert Witnesses State Troopers, and in Refusing to Accept as an Expert The Department’s Witness, Russell Willie.

The Department has not briefed these two assignments of error which this Court may therefore consider abandoned. Rule 2-12.4, Uniform Rules of the Courts of Appeal. However, even aside from this procedural bar, neither of these alleged errors constitutes a basis for reversal. The State troopers, who were called as plaintiff’s witnesses, were allowed to testify as traffic control experts and present an opinion as to the inadequacy of the warning devices used by the highway maintenance men. Assuming arguendo that the trial court erred in permitting the State troopers to render an opinion in this respect, this alleged evidentiary error does not constitute reversible error. The opinion expressed by the State troopers that the warning devices used by The Department were inadequate was cumulative at best, and did not materially affect the outcome of this case. The best evidence of the inadequacy of these warning techniques used was The Department’s own manual; it is clear from this document that The Department patently violated its own regulations. The inadequacy of the warning devices employed by The Department was immediately apparent to common sense, and the opinions of the State troopers in this regard were wholly inessential to this inescapable conclusion.

Moreover, we believe the trial court did not commit reversible error in refusing to accept The Department’s witness, Russell Willie, as an expert in accident reconstruction. Mr. Willie was allowed to testify as to facts learned by him in his accident investigation, but was not allowed to express the opinions and conclusions derived therefrom since he lacked the background in mathematics, physics and engineering necessary to competently formulate such opinions. We conclude that the trial court did not err in refusing to allow Mr. Willie to testify outside the bounds of his expertise.

Assignment V.

The Trial Court Erred in Refusing to Admit the Transcript of Taped Telephone Conversations Between The Department’s Attorney and both Herman Fisher and John Carter.

The Department proffered a transcript of taped telephone conversations between The Department’s attorney and Herman Fisher, owner of Mid Florida, and between The Department’s attorney and John Stephen’s co-driver John Carter. The trial court refused to admit into evidence the transcripts of these taped telephone conversations on the grounds that they constituted hearsay. The conversations occurred during trial, and directly resulted from the persistent attempts of Fisher and Carter to contact The Department’s attorney. Carter and Fisher offered, for respective sums of $100,000 and $50,000, to refute the testimony previously given by them at trial, which testimony tended to establish that John Stephens was an able, competent and prudent driver. Fisher and Carter offered to testify, in return for the above stated sums, that John Stephens was using amphetamines at the time of the accident; that Stephens had been driving erratically prior to the wreck; that Stephens had been driving with one foot on the dashboard at the time of the wreck; that Stephens was at that time in a drowsy state; and that shortly after the accident, Stephens instructed John Carter to remove amphetamines from the crash site.

Hearsay testimony consists of out of court statements which are offered to prove the truth of the matter asserted. Hearsay has been juridically described as evidence, the probative force of which depends upon the competency and éredibility of some person other than the witness, such testimony being inadmissible because of the inherent lack of opportunity to ascertain its veracity by cross-examination. Hearsay is by its very nature second hand information— knowledge of what another said as opposed to direct observation of the events or facts at issue. State In Interest of Clark, 400 So.2d 334 (La.App. 4th Cir.1981); Jones v. Ledet, 383 So.2d 1308 (La.App. 3d Cir.1980); Lambert v. Heirs of Adams, 325 So.2d 331 (La.App.3d Cir.1975), application denied, 329 So.2d 458 (La.1976); Veal v. Hutchinson, 284 So.2d 60 (La.App. 4th Cir.1973), writ denied, 286 So.2d 662 (La.1973).

It is clear that the transcribed telephone conversations are hearsay, constituted, as they are, by out-of-court statements offered to prove the truth of the matter asserted. It is true that there are certain exceptions to the general rule prohibiting the admissibility of hearsay; these exceptions are based on well-defined contextual circumstances which tend to ensure the accuracy, truth and credibility of certain hearsay statements. In these exceptional circumstances, some fact or series of facts supplies the truth-compelling function ordinarily served by oath and cross-examination.

The Department has not articulated any exception to the hearsay rule which would justify the admissibility of the hearsay statements of Messrs. Fisher and Carter. The statements of Fisher and Carter were manifestly motivated by dishonest aims and self interest. Greed dissolved the truth compelling factor present in all situations where hearsay statements are properly admissible under exceptions to the general prohibiting the admissibility of hearsay statements.

In short, the proffered statements were hearsay. Moreover, they were not admissible under any exception to the hearsay rule, since they were made for purposes of illicit gain and the circumstances in which they were made greatly undermined their credibility.

Our determination that the trial court did not err in excluding these statements is supported by the consideration that the State failed to subpoena either Carter or Fisher. The failure of the State to subpoena these witnesses to testify subject to oath constitutes a salient reason for the trial court’s refusal to admit the out-of-court statements of Fisher and Carter which were made without the truth-ensuring safeguards of oath and cross-examination.

For the foregoing reasons, we conclude that the trial court did not err in excluding the proffered telephone conversations between The Department’s attorney and both Fisher and Carter.

Assignment VI.

The Trial Court Erred in Refusing to Grant a New Trial.

The Department moved for a new trial principally on the grounds that plaintiff’s attorneys intimidated one of The Department’s witnesses, the flagman working at the repair site on the date of the wreck, as well as the basis of Assignment No. V. The trial court denied this motion.

A new trial shall be granted if the jury was bribed, the judgment is clearly contrary to the law and evidence, or new evidence has surfaced which could not have been previously discovered with due diligence. LSA-C.C.P. Arts. 1814, 1972. A new trial may be granted on an equitable basis in any case “if there is good ground therefore.” LSA-C.C.P. Art. 1973. It is well established in this state that the trial court’s ruling on a motion for new trial will not be disturbed on review absent a palpable abuse of discretion. Simas v. Hicks, 381 So.2d 949 (La.App. 3d Cir.1980); Shows v. Williamson, 256 So.2d 688 (La.App. 2d Cir.1972), writ denied, 261 La. 231, 259 So.2d 76 (1972).

It is clear in the first instance that the proffered statements discussed in Assignment V do not constitute grounds for a new trial since they do not constitute new evidence which could not have been obtained during trial. In the first instance, statements made in hopes of obtaining a bribe hardly constitute “new evidence.” Moreover, the taped statements of Fisher and Carter were hardly undiscoverable during trial by the exercise of due diligence: these statements were made directly to The Department’s attorney over the telephone during trial and The Department nevertheless did not produce the in-court testimony of these witnesses as part of its case.

The Department now asks this Court to exercise its discretionary authority under the auspices of LSA-C.C.P. Art. 1973 to reverse the trial court’s denial of The Department’s motion for new trial. The Department alleges, as the basis for this motion, that the plaintiff’s attorneys used improper or coercive tactics to affect the testimony of the State’s witness, the flagman.

This Court would not hesitate to exercise its equitable authority if attorneys used improper and coercive tactics on one of the witnesses. However, the record does not indicate that threats or coercive tactics were used by plaintiff’s attorneys on the flagman. The record rather reflects that there may have been an insistent, or tense exchange between these attorneys and the flagman/witness concerning a crucial difference in this witness’ trial testimony and the version of the facts he related to investigating officers shortly after the wreck. Whereas the flagman originally told State troopers he was stationed only about 50 feet from the maintenance men and the pothole they were repairing; he testified at trial that a distance of 100 feet separated him from the worksite.

While it appears from the record there may have been some exasperated interaction between the flagman and the plaintiff’s attorneys, it does not appear that any illegal or improper tactics were used. It appears that any exchange which occurred was of such a type as quite often occurs in emotionally charged trials in which much is -at stake, and we decline to elevate a minor instance of adversarial contentiousness to a level of fraud or extortion. It is crucial that the flagman expressly admitted on the stand that plaintiff’s attorneys had asked him to testify truthfully on the trial.

Moreover, The Department’s allegation that plaintiff’s attorneys coerced the flagman into testifying that he was only 50 feet from the workmen when he flagged John Stephens into the left lane, is repudiated by the fact that the flagman continually insisted at trial that he positioned himself 100 feet from the repair site. Thus, the allegedly improper activities did not alter the flagman’s testimony and could not have possibly changed the outcome of trial. The trial court simply chose to believe the version of the facts that the flagman gave to investigating State troopers shortly after the wreck namely, that he was positioned only 50 feet from the repair site.

We uphold the trial court’s denial of the motion for new trial because The Department has not offered any new evidence not discoverable during trial by the exercise of due diligence, nor has The Department made a sufficient showing that plaintiff’s attorneys employed improper trial tactics.

In summary, we concur in the trial court’s finding that The Department was negligent in causing the accident on Interstate 20 on July 11, 1978; and we further concur in the trial court’s finding that plaintiff John Stephens was free from contributory negligence in causing said vehicular collision. We moreover conclude that the trial court did not commit reversible error in accepting State troopers as expert witnesses, in refusing to accept Mr. Russell Willie as an expert in accident reconstruction, or in refusing to admit the taped hearsay statements of Herman Fisher and John Carter. We further affirm the trial court’s rule in denying the motion for new trial.

For the foregoing reasons, the judgment of the trial court is in all respects affirmed.

AFFIRMED.

      . LSA-R.S. 32:235 provides in pertinent part that:
      “A. The department shall adopt a manual and specifications for a uniform system of traffic control devices consistent with the provisions of this Chapter for use upon highways within this state. Such uniform system shall correlate with and so far as possible conform to the system then current as approved by the United States Department of Transportation, Federal Highway Administration, provided that the department is authorized to deviate from said system and to erect advisory signs only to post advisory weight limits on state bridges where a state bridge is scheduled for replacement or strengthening within three years from the date of approval by the Chief Engineer of the department’s weight rating evaluation of any state bridge.”


source: Caselaw Access Project

author: MARVIN, Judge.

license: Public Domain

text:
    Sarah L. BALL, Plaintiff-Appellant, v. Thomas M. LOCKWOOD, Administrator of the Department of Employment Security, State of Louisiana, and Frymaster Corporation, Defendants-Appellees.
    No. 15734-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 1983.

      Ike F. Hawkins, Jr., Shreveport, for plaintiff-appellant.
    James A. McGraw, Eddie G. Crawford, and Denise A. Nagel, Baton Rouge, for defendants-appellees.
    Before PRICE, MARVIN and JASPER E. JONES, JJ.
   MARVIN, Judge.

Claimant was denied benefits under the Employment Security Law on a finding that her discharge was for misconduct connected with her employment. LRS 23:1601(2). The trial court affirmed some four years later and claimant appeals.

Claimant was discharged November 1, 1978. The Board of Review of the Department of Employment Security affirmed her disqualification on March 30, 1979, and claimant sought judicial review on April 11, 1979. The department did not file the administrative record for review by the district court until April 4, 1983.

The appeals referee specifically found that claimant was discharged when she “continued to refuse” her employer’s request to perform a particular job task “despite several warnings from her supervisors.” Our review is limited to determining whether the findings of fact are supported by sufficient evidence and whether the decision is correct as a matter of law. LRS 23:1634.

The record shows that on October 3,1978, claimant refused to perform a task directed by her foreman, Promes Leftridge, that again on October 31 she refused to perform another task directed by Leftridge. Lef-tridge testified:

“I was aware she had the problem with her back and I also tried to get [her] to go to the doctor for this.... I told her I couldn’t tell ... she couldn’t do a job unless I have a statement from the doctor showing that she couldn’t do this work.
“I did [tell her that she should go see the company doctor]
“She refused.”

Claimant requested that she be allowed to talk to the supervisor, Darryl McAllister. This request was granted and McAllister told claimant that she had the choice of going to the doctor or doing the task assigned her and that if “this [refusal under such circumstances] arises again,” claimant “would be terminated.” On November 1, claimant again refused to perform a particular task that Leftridge directed and asked Leftridge to fire her. Claimant was fired on the recommendation of Leftridge and McAllister.

Claimant admitted refusing to do the work assigned, explaining that she couldn’t do it “without help.” She admitted going to the company doctor on October 19 but contended that Leftridge told her to see “a doctor,” which she couldn’t do because she couldn’t pay her doctor bill. At Leftridge’s request another employee also told claimant that she should go see the doctor. Claimant saw the company doctor on October 19 because of a back injury she sustained in July. When she returned to work on Monday, October 23, she was put back in her “regular job,” a job she had been doing for about two weeks, since mid-October.

Under these circumstances, and viewing the record in the light most favorable toward support of the determination, we must conclude that the findings of the appeals referee are supported by sufficient evidence.

Misconduct must be determined on the facts of the individual ease. Banks v. Administrator of Dept. of Employment, 393 So.2d 696 (La.1981). Misconduct has been defined by the courts to mean “an act of willful or wanton disregard of the employer’s interest ... a disregard of standards of behavior which the employer has the right to expect of an employee ...” Heard v. Doyal, 259 So.2d 412, 414 (La.App.2d Cir.1972). The essential issue is whether claimant had a “reasonable cause” for refusing to do the assigned work. Sampson v. Doyal, 215 So.2d 149 (La.App. 3d Cir.1968). Once the employer established that an employee refused to do work directed by the employer which is within the scope of that employee’s duties, the employee must show that his or her refusal was founded on some reasonable basis to avoid being disqualified for benefits under the law. Sampson, supra. If that refusal is because of a physical ailment, the employer is justified in requesting that the employee obtain a medical opinion to that effect from the company doctor or a doctor of the employee’s choosing. The claimant in such a situation cannot ignore the employer’s request and demand that she be fired. In this respect, the appeals referee was correct, as a matter of law, in concluding that claimant failed to establish that she was, in fact, unable to do the job requested of her and that her discharge was under disqualifying circumstances.

At appellant’s cost, judgment is AFFIRMED.


author: PRICE, Judge.

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    STATE of Louisiana, Respondent, v. Joseph W. CICHIRILLO, Relator.
    No. 15736-KW.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 1983.

      J.P. Mauffray, Jr., Jena, for relator.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Don C. Burns, Dist. Atty., Iley Evans, Asst. Dist. Atty., Columbia, for respondent.
    Before PRICE, HALL and SEXTON, JJ.
   PRICE, Judge.

Defendant, Joseph W. Cichirillo, was granted a writ of review of his conviction and sentence for operating a motor vehicle while under the influence of intoxicating beverages as a second offender in violation of LRS 14:98. He was sentenced to imprisonment without hard labor for three days and ordered to pay a fine of $475.

Defendant has made numerous assignments of error. The first four assignments relate to the use of a prior conviction as a predicate for his present conviction as a second offender. We find merit to assignment 3 and, therefore, set aside defendant’s sentence as a second offender and remand for resentencing as a first offender. Defendant’s remaining assignments 5 through 8 are leveled at the unconstitutionality of the statute under which he was charged and the insufficiency of the evidence for conviction. We find no merit in these assignments for the reasons assigned.

Assignment of Error No. 1

Defendant complains that the minutes of court in his first conviction for DWI should not have been admitted into evidence at the state’s request as a transcript of those proceedings had already been introduced into evidence on his behalf. While defendant is correct that the transcript is the best evidence and there is material contradiction between the minutes and the transcript as to what transpired, this error will not be prejudicial to defendant on this review as the transcript will be controlling where conflict exists with the minutes.

Assignment of Error No. 2

Defendant contends that the state failed to prove he was the identical person named in the prior conviction. Since we are of the view the first conviction cannot be used to enhance the penalty for the conviction under review for other reasons, we find it unnecessary to rule on this assignment.

Assignment of Error No. 3

Defendant contends that the evidence of his prior conviction for this offense is not admissible as there is no showing that he was informed of his right to have counsel appointed to defend him if he is indigent or that he waived this right. The only reference to right to counsel in the colloquy between the court and defendant at the time defendant’s plea was accepted was as follows:

The Court: Do you understand that by pleading guilty you are giving up the right to be represented by an attorney at the trial of this matter?
Answer: “yes sir.”

It should be noted at this point that the transcript of testimony is at variance with the court minutes which do show that defendant was advised more fully of his right to counsel at all stages of the proceedings and his rights if indigent. The minutes are in error in this regard as is shown by the transcript and we find that defendant was not advised of his right to counsel and to have counsel appointed if he was indigent. Nor, do we find any waiver of these rights in the transcript of testimony.

La.C.Cr.P. Art. 514 provides as follows:

The minutes of the court must show either that the defendant was represented by counsel or that he was informed by the court of the defendant’s right to counsel, including the right to court-appointed counsel and that he waived such right.

In State v. Vezina, 391 So.2d 450 (La.1980), the Supreme Court reviewed the law on this issue as follows:

In State ex rel. Bishop v. Blackburn, 384 So.2d 406 (La.1980), this Court was presented with the identical issue as is presented here. Defendant Bishop had been tried and convicted for DWI-3. The conviction was based on a prior DWI guilty plea. The minutes of that guilty plea merely reflected that he “waived the presence of an attorney.” The Court held that since Bishop was unrepresented by counsel and the minutes did not show that he had been informed of his right to court-appointed counsel as required by C.Cr.P. art. 514, the guilty plea could not be used to support the conviction for DWI-3. Justice Marcus, speaking for the majority, stated, “[w]e are unable to say that the waiver was knowingly and intelligently made since the record does not reveal that defendant was informed of his right to court-appointed counsel.”

There is no question in the instant case that the defendant was not properly advised of his right to counsel in accordance with Art. 514 or the ruling in Vezina and that his prior conviction may not be used as evidence to enhance the penalty on his present offense of operating a vehicle while intoxicated.

Assignment of Error No. 4

Defendant also complains that the transcript of evidence of his prior conviction does not show he was clearly informed that by pleading guilty he was waiving his privilege against compulsory self-incrimination and his right to trial, two of the three matters of which a defendant must be informed before a prior guilty plea can be used to enhance a penalty on a subsequent offense. We find it unnecessary to discuss this assignment since we are reversing defendant’s conviction as a second offender for reasons discussed under Assignment No. 3.

Assignments of Error Nos. 5, 6, and 7

These assignments are leveled at the validity of LRS 14:98, the statute proscribing the operation of a motor vehicle while intoxicated. Defendant contends the statute is vague and overbroad and also that it violates the constitution in that it allows members of the executive or judicial branches of government to exercise a legislative function.

There is no merit to these arguments as they have been dispelled by the Supreme Court in the early case of State v. Dudley, 159 La. 872, 106 So. 364 (1925) and the later case of State v. Hightower, 238 La. 876, 116 So.2d 699 (1959).

Assignment of Error No. 8

Defendant contends there was a lack of probable cause for his detention and arrest and he was not advised of his constitutional rights before being given a field sobriety test. Defendant was stopped by the arresting officers who observed his vehicle being driven in an erratic manner. This was sufficient cause for the initial stop and investigatory detention of defendant as a suspected drunken driver.

State v. Badon, 401 So.2d 1178 (La.1981) considered whether Miranda warnings were necessary prior to requiring a defendant to take a field sobriety test. In holding the warning was not required, the court discussed this issue as follows:

In Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966), the Supreme Court held that "... the prosecution may not use statements, whether exculpatory and inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” In Schmerber v. California, 384 U.S. 757, 761, 86 S.Ct. 1826, 1830, 16 L.Ed.2d 908 (1966), decided the same term, the court then emphasized that the Fifth Amendment privilege, and the coextensive Miranda safeguards “protect[] an accused only from being compelled to testify against himself or otherwise provide the state with evidence of a testimonial or communicative nature ...” “The distinction which has emerged ...” the court noted, “is that the privilege is a bar against compelling ‘communication’s’ or ‘testimony’, but that compulsion which makes a suspect or accused the source of ‘real or physical evidence’ does not violate it.” Id., 384 U.S. at 764, 86 S.Ct. at 1832.
Courts that have considered the present question have held uniformly that a field sobriety test does not touch upon an individual’s Fifth Amendment privilege and that no Miranda warnings are therefore required....

Although Art. 1, § 13 of the La. Const. of 1974 was not discussed in Badon we do not believe the result would be different had the state constitutional provision been considered. We find no merit to this assignment of error.

Assignment of Error No. 9

Defendant contends there was insufficient evidence to support the state’s burden of proving that he was intoxicated. There is no merit to this assignment of error. Since we have determined the officer’s testimony describing the results of the field sobriety test were admissible, there is substantial evidence in the record to support a finding of guilt by the court.

Disposition

As noted in our discussion of Assignment of Error No. 3, defendant’s conviction and sentence for operating a motor vehicle while intoxicated, second offense, must be set aside. However “when it is clear from the verdict that the trial judge or jury necessarily found the elements of a lesser and included offense had been proved beyond a reasonable doubt, and the state, constrained by the double jeopardy clause, cannot seek anew a conviction on the greater offense, a remand for a new trial would serve no useful purpose.” State v. Stephenson, 412 So.2d 553. In this case the verdict shows the trial court necessarily found the elements of the lesser and included offense of operating a motor vehicle while intoxicated (first offense) had been proven beyond a reasonable doubt. The facts in the record amply support this finding. Therefore, following Stephenson we find it appropriate to remand for resentencing defendant as a first offender.

Decree

For the reasons assigned it is ordered that defendant’s conviction for operating a motor vehicle while under the influence of intoxicating beverages as a second offender be set aside and the sentence is ordered vacated; the case is remanded to the district court with instructions to enter a judgment of guilty of operating a motor vehicle while intoxicated and to sentence defendant accordingly.

REVERSED and REMANDED.


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    Bertha M. GLADNEY, Individually and as Tutrix of Trellis M. Gladney, Plaintiff-Appellant, v. Jerry C. CUTRER, Jr., et al., Defendants-Appellees.
    No. 15737-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 1983.
    Writ Denied Dec. 16, 1983.
    Leroy H. Scott, Jr., Harold D. Vaught, Shreveport, for plaintiff-appellant.
    Lunn, Irion, Switzer, Johnson & Salley by Julie Mobley Lafargue, Shreveport, for defendants-appellees.
    Before MARVIN, JASPER E. JONES and SEXTON, JJ.
   MARVIN, Judge.

Plaintiff appeals a judgment rejecting her demands in a personal injury action she brought on behalf of her nine-year-old son who drove his bicycle on the highway and into the path of defendant’s automobile on February 25, 1979.

Plaintiff contends the trial judge erred in finding defendant was not negligent and that even if her son was contributorily negligent, the principle of Baumgartner v. State Farm Mut. Auto. Ins. Co., 356 So.2d 400 (La.1978), which benefits pedestrians in crosswalks, should be extended to similarly benefit a child on a bicycle. We affirm.

Viewing the evidence most favorably toward defendant, we find the trial court’s conclusions to be supported by the record and not clearly wrong. Ford Motor Credit Co. v. Diffey, 378 So.2d 1032 (La.App. 2d Cir.1979). Plaintiff’s son was proceeding southerly on the Bellevue-Fillmore highway and was being overtaken by two vehicles, a pickup truck being driven by defendant’s friend, and an automobile about 1½ to 3 car lengths behind the pickup, being driven by defendant. Defendant and his friend, returning from a fishing trip, were communicating by CB radio. When plaintiff’s son noticed the overtaking truck, he moved from the southbound lane, crossing the northbound lane, and onto the shoulder of the northbound lane. Defendant’s friend warned defendant by radio of the presence of the boy on the bicycle just as the truck passed the boy. Almost simultaneously, plaintiff’s son reversed his path, left the shoulder and pedalled across the northbound lane and into the path of defendant’s car. Defendant slowed down from a speed of about 40-45 mph when he was warned about the boy. When he saw the bicycle coming toward him he applied his brakes. His automobile skidded and the right rear side struck the boy and the bicycle near the center of the highway.

The trial court observed, “it is clear that the events occurred very quickly and defendant had little time to do more than apply his brakes ... [he was] faced with a sudden emergency ... [and] his reaction was reasonable.”

A bicycle rider is subject to the same traffic laws as is a driver of a motor vehicle. LRS 32:195. A child of nine or ten years of age, with reasonable intelligence, is capable of negligence and contributory negligence and a motorist is not the insurer of the safety of such a child. Robertson v. Travis, 393 So.2d 304 (La.App. 1st Cir.1980); Guillory v. Fidelity & Casualty Co. of New York, 251 So.2d 199 (La.App. 3d Cir.1971). See also Jones v. Firemen’s Insurance Co. of Newark, N.J., 240 So.2d 780 (La.App. 2d Cir.1970). A motorist may be negligent if he sees a child on a bicycle in a position of peril and has time and distance in which to slow his vehicle or stop it. Kelly v. Messina, 318 So.2d 74 (La.App. 4th Cir.1975). Kelly, however, presented a classical last clear chance or discovered peril ease on the facts unlike the circumstances presented here.

Baumgartner allows recovery by a pedestrian in a crosswalk who is contributorily négligent in proceeding into the path of a driver who saw or should have seen that pedestrian and who had the opportunity to avoid injury to the pedestrian.

“Further, where injury results, the burden should fall on the motorist who, with the exercise of care reasonable under the circumstances, saw or should have seen the impending peril and had, at that moment, the opportunity to avoid it.” 356 So.2d at p. 405.
“If he fails to see a pedestrian in a position of peril when he should have, the motorist is at fault and is responsible. A motorist who could have avoided injury to a pedestrian by the exercise of care which is reasonable under the circumstances is at fault, and is responsible. The motorist cannot escape liability by proving that the pedestrian, admittedly in peril because of his own negligence, could have avoided injury more quickly than the motorist.” 356 So.2d at p: 406.

The Baumgartner principle relieves the pedestrian of his or her contributory negligence where the motorist sees or should have seen the pedestrian. Baumgartner does not apply either to a pedestrian or a bike rider where the motorist is not at fault.

For the detailed and written reasons given by the trial judge, which we have here summarized, the judgment, at appellants’ cost, is AFFIRMED.


author: HALL, Judge.

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    Bennie Mac FARRAR and F. Murray Biedenharn v. Junius R. KELLY, Jr.
    No. 15,748-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 1983.

      Harvey R. Lexing, Monroe, for appellant.
    Farrar, Jefferson & Wooley by Bennie Mac Farrar and F. Murray Biedenharm, pro se, Monroe, for appellees.
    Before PRICE, HALL and SEXTON, JJ.
   HALL, Judge.

This is a suit by attorneys for specific performance of a contingent fee contract with a former client. From the trial court judgment ordering specific performance the defendant has appealed.

On appeal the defendant contends that the contract is unenforceable because it was terminated by the client prior to completion of the services to be rendered by the attorneys and also because the fee is excessive for the services rendered. The defendant also contends that the contract provides only for the payment of 50 percent of monies received by the defendant and not a 50 percent interest in property received by the defendant.

In June or July 1979, the defendant contacted the plaintiff attorneys relative to being recognized as an acknowledged illegitimate child of his father and to recovering his part of his father’s succession. His father’s three legitimate children had previously been sent into possession of the father’s estate, which consisted primarily of a one-half interest in 160 acres of land from which there was apparently oil production.

This contract between the defendant and plaintiffs took place prior to the January 1980 decision by the court of appeal in Succession of Brown, 379 So.2d 1172 (La.App. 2d Cir.1980), which was affirmed by the supreme court in September 1980, 388 So.2d 1151 (La.1980). Defendant was advised that under the law as it existed at that time he had no rights in the succession of his father. However, the plaintiffs were willing to take the case on the assumption that they would be required to overturn the prevailing law and jurisprudence as well as to establish the defendant’s filiation. A contingent fee contract was signed stipulating a contingent fee of 50 percent of all money and property defendant might receive from the succession.

On behalf of the defendant, the plaintiff attorneys filed suit which was answered by an attorney on behalf of the legitimate heirs of the father. Depositions were taken in preparation for trial. After Succession of Brown was decided there were unsuccessful efforts to settle the matter with the legitimate heirs and in November 1980, a half-day trial was held to establish the defendant’s status as an acknowledged illegitimate child of his father and his entitlement to a pro rata share of his father’s estate. At the conclusion of the trial judgment was rendered recognizing the defendant as an heir of his father and sending him into possession of an undivided one-fourth interest in and to his father’s estate. Shortly after the judgment was rendered and before it was signed, a dispute arose as to the fee and the defendant advised plaintiffs that their services as attorneys were terminated. Plaintiffs subsequently had the judgment sending the defendant into possession of his father’s estate signed, and then filed this suit to enforce the contingent fee contract. After trial, judgment was rendered recognizing plaintiffs as owners of an undivided one-half interest in and to all of the property which defendant inherited from his father.

Defendant-appellant argues that since plaintiffs were discharged prior to completion of the services to be rendered under the contingent fee contract, plaintiffs are not entitled to enforce the contingent fee contract and are limited to recovery under quantum meruit. See Brown v. Holland, 392 So.2d 726 (La.App. 3d Cir.1980) and Simon v. Metoyer, 383 So.2d 1321 (La.App. 3d Cir.1980).

A client has the absolute right to discharge his attorney and after being discharged the attorney cannot recover in full measure the contracted-for fee provided in a contingency contract without providing all or substantially all of the legal services contemplated by the contract. Saucier v. Hayes Dairy Products, Inc., 373 So.2d 102 (La.1979). In the instant case the plaintiff attorneys had performed substantially all of the services contemplated by the contract, that is, judicial recognition of the defendant’s status as an heir of his father and rendition of a judgment sending him into possession of his share of his father’s estate. The only thing that remained to be done at the time the attorneys were discharged was to have the formal judgment signed, and this was subsequently accomplished. Having done substantially all of the work contemplated by the contract, plaintiffs are entitled to the full fee provided by the contract.

The defendant contends that the fee is excessive for the services rendered by the plaintiffs, particularly since they were not required to do as much work as originally contemplated because of the Succession of Brown decision.

Contingent fee contracts are authorized by statute, LSA-R.S. 37:218, and by the Louisiana Code of Professional Responsibility, DR5-103(A)(1) and (2) and DR2-106(B)(8). Such contracts have been approved by the courts so long as they do not result in an attorney collecting a clearly excessive fee which has not been earned as defined by the Disciplinary Rules of the Code of Professional Responsibility. Saucier v. Hayes Dairy Products, Inc., supra; DR2-106.

In Garden Hill Land Corp. v. Succession of Cambre, 306 So.2d 718 (La.1975), the supreme court recognized that the following factors were to be considered in determining whether or not a contingent fee contract for 50 percent of a minor’s property involved in a succession and partition proceeding was reasonable: (1) the risk of nonrecovery; (2) the amount of legal work performed; (3) the size of the estate involved in the succession proceeding; and (4) the anticipated delay in receiving the fee. The supreme court remanded that case to the district court for a reconsideration of the reasonableness of the attorney fee contract. After further district court proceedings the case was again appealed and the Fourth Circuit affirmed the trial court’s finding that the contingent fee contract was unreasonable. Garden Hill Land Corp. v. Cambre, 354 So.2d 1064 (La.App. 4th Cir.1978), writ denied 356 So.2d 439 (1978). The facts of the Garden Hill Land Corp. case are readily distinguishable from the instant case. There the client was a minor and the reasonableness of the contract was viewed in light of the strong protection provided to minors. Further, there was little or no risk of nonrecovery and the minor’s estate was sufficient to pay a fee on a noncontingent basis. The attorney was awarded a substantial quantum meruit fee. See also 36 La.L.Rev. 516-519.

Concerning the reasonableness of the contingent fee contract in the instant case, timesheets in the record show that the attorneys worked at least 51 hours on this matter. There is evidence that the plaintiffs advanced costs and expenses of over $300 for which they have not been reimbursed. The value of the interest in the property to be received by the plaintiffs under the contract was not established but there is some indirect evidence in the record indicating that the value may be between $3,600 and $6,000.

At the time the attorneys undertook the case and filed suit the prevailing law and jurisprudence precluded the defendant from inheriting from his father. Recognizing the status of the law but believing that the jurisprudence was moving toward granting inheritance rights to acknowledged illegitimate children, the attorneys undertook the case with the thought of pursuing it through the appellate courts to a favorable decision. Their task was made easier by the Succession of Brown decision but they nevertheless were required to perform substantial services on the defendant’s behalf with a completely successful result. Defendant-was not in a position at the outset to employ attorneys to handle this matter except on a contingent fee basis. The contract was entirely reasonable at the time it was made and the fee stipulated in the contract is not made unreasonable because the attorneys were able to bring the matter to a successful conclusion without the necessity of pursuing the case through the entire judicial process, as is often the case with contingent fee litigation. The 50 percent contingent fee is not excessive, given the adverse status of the law at the time the attorneys undertook the defendant’s case, the substantial risk that there would be no recovery and no fee, and the substantial successful services actually rendered.

Defendant’s last contention is that the contract only obligates defendant to “pay” to plaintiffs money received from his father’s succession and does not contemplate that plaintiffs are to receive an interest in property of the succession. This contention is without merit. The clear import of the contract is that the attorneys are to receive, as a contingent fee, 50 percent of “any and all monies or properties” that the defendant might receive or obtain from his father’s estate as a result of the services of the attorneys.

The judgment of the district court is affirmed at the costs of the defendant-appellant.

Affirmed.


author: SEXTON, Judge.

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    STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Plaintiff-Appellant, v. Lilliann Bouldin MILLS, Milton C. Trichel, Jr. & Pike Hall Trichel, Defendants-Appellees.
    No. 15750-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 1983.
    Harvey Lee Hall, Dept, of Transp. and Development, Baton Rouge, for plaintiff-appellant.
    Neil Martin Trichel, Eileen Trichel Baldwin, Milton C. Trichel, Jr., Shreveport, for defendants-appellees.
    Before MARVIN, JASPER E. JONES and SEXTON, JJ.
   SEXTON, Judge.

Plaintiff in this petitory action appeals the granting of defendant’s motion for summary judgment and the sustaining of defendant’s exception of res judicata by the trial court. The plaintiff is the Louisiana Department of Transportation and Development and the defendants are the children and grandchild of Mrs. Milton C. Trichel, their ancestor in title.

The plaintiff’s focal contention is that it is the owner of and has the right to “regulate, prohibit, and abolish entrances to and exits from private property adjacent to petitioner’s right of way.”

This is the latest litigation in a series between these parties involving certain acreage and access to 1-220 at its intersection with Highway 71. The first litigation, State, Dept. of Highways v. Trichel, 348 So.2d 1260 (La.App. 2d Cir.1977), arose subsequent to the State’s “quick taking” petition (pursuant to LSA-R.S. 48:441, et seq.). The defendants moved to dismiss the expropriation and the trial court denied that motion in its entirety. The defendants appealed and we granted partial relief to these defendants. The State, in expropriating, had contended that it acquired a certain .892 acre tract at the intersection of Highway 71 and 1-220, and also that it expropriated the defendant’s right of access along an adjacent 523.54 foot frontage on Highway 71. This Court specifically held that the State had not followed the appropriate statutory procedure with respect to the 523.54 feet of access and “that in the instant proceeding the State has not acquired the right of access from the 523.54 feet of frontage on Highway # 71 (North Market Street) north of the .892 acre strip.” Trichel, supra, at 1262.

While the appeal in the original litigation was pending, and thus before the opinion was rendered, the State began to fence the 523.54feet. The defendants filed a posses-sory action alleging that State’s fencing was a disturbance. The fencing ceased subsequent to the opinion in the first litigation. The State attempted to amend its pleadings in the expropriation petition to include the expropriation of the right of access to the 523.54feet. The defendants excepted and filed a motion to dismiss. The State later resumed its efforts to fence and a second possessory action was filed. The objection to the amended expropriation action and the two possessory actions were consolidated for trial. The trial court sustained the defendant’s motion to dismiss the amended expropriation petition and rendered judgment for the defendants-landowners (plaintiffs in that action) in the possessory action.

This Court in State, Dept. of Highways v. Trichel, 415 So.2d 222 (La.App. 2d Cir.1982) dealt with the lower court action in dismissing the State’s amended expropriation petition. In this Court, the defendant landowners filed a motion to dismiss. the State’s appeal which was sustained in this opinion. We noted that the property itself had already been expropriated and the highway constructed and opened to the public. This court found that the only possible issue on appeal was the State’s contention that it had already expropriated the right of access on the 523.45 foot tract, and this opinion noted that that issue had already been decided adversely to the State in Trichel, supra, at 348 So.2d.

Then in Mills v. State through Dept. of Highways, 416 So.2d 957 (La.App. 2d Cir.1982), this Court dealt with the two posses-sory actions which the landowners had filed to stop the State’s fencing of the 523.54 foot tract. The landowners contended the fencing was an effort to eliminate or substantially interfere with the landowner’s access. This Court agreed and specifically held in Mills that the action of the State constituted substantial interference with the right of access, which had not been expropriated.

While the State presents several assignments of error in this appeal, the State has actually only one basic contention. This contention is that since the landowners have been found to be in possession by virtue of their having won the two previous possessory actions, the State is concerned that it has lost its right to regulate entrances and exits to State highways as established by LSA-R.S. 48:344.

It is clear that in the previous decisions just discussed, this Court has made two specific holdings which are pertinent to this litigation. One is that in its original quick taking effort, the State did not manage to expropriate the 523.54 foot access of the landowners onto U.S. Highway 71. Secondly, the action of the State in fencing that 523.54feet, together with the expropriation of the .892 acre tract, operated to substantially interfere with the landowners’ right of access, without expropriation thereof. We have said no more.

We have not limited or eliminated the State’s right to regulate and control its right of way in the interest of the traveling public. We have simply said, with respect to the access here involved, that if the State wishes to substantially interfere with that right of access, it must first expropriate that right.

In other words, to the extent that the State has plead that it has the right to “regulate, prohibit, and abolish, entrances and exits” from defendant’s property, this right is specifically granted in R.S. 48:344. But if in exercising this right, the State substantially interferes with a landowners’ access, the State must expropriate that right. Mills, supra; State, ex rel. Gebelin v. Department of Highways, 200 La. 409, 8 So.2d 71 (1942). We specifically held in Mills that the State’s two efforts to fence the 523.54 foot tract did indeed constitute substantial interference.

Said yet another way, if the State’s petition herein is an effort to have judicially recognized its rights as established by LSA-R.S. 48:344, that effort is redundant, unnecessary and superfluous. If the State’s petition is another effort to contend that it owns the 523.54 foot access, that effort must fail. As we have held, the State must expropriate that right and it has not done so.

The judgment of the trial court is affirmed.

AFFIRMED at appellant’s cost.

      . § 344. Entrances and exits adjacent to highways
      “Entrances to and exits from private properties adjacent to the rights of way of state highways may be regulated, prohibited, or abolished in the interest of the safety of the traveling public. The assistant secretary, office of highways, from time to time, shall prepare and promulgate descriptions and illustrations of various types and styles of entrances and exits consistent with this purpose and shall issue permits of necessity and convenience for the installation of entrances and exits in accordance with its promulgated regulations and standards. The department may apply to the courts for such process as may be necessary to make the provisions of this Section effective.”


text:
    Charles H. FULLERTON d/b/a Fire Sprinkler Specialties, Plaintiff-Appellee, v. SCARECROW CLUB, INC. d/b/a The Bleachers, Defendant-Appellant.
    No. 15754-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 1983.

      Charles W. Robinson, Monroe, for defendant-appellant.
    Shotwell, Brown & Sperry by C.A. Martin, III, Monroe, for plaintiff-appellee.
    Before MARVIN, FRED W. JONES, Jr. and SEXTON, JJ.
   SEXTON, Judge.

Plaintiff, a contractor, filed suit against defendant for the amount allegedly due him under a construction contract; he prayed, in the alternative, for a quantum meruit award for work done by him which inured to defendant’s benefit. The trial court granted plaintiff a quantum meruit award under the alternative demand. We reduce the trial court’s award, and, as amended, affirm the trial court’s judgment.

Plaintiff in this cause is Charles H. Fullerton d/b/a Fire Sprinkler Specialties (hereinafter referred to as Fullerton). Mr. Fullerton owns and operates a business in West Monroe, La., which engineers and installs fire extinguisher sprinkler systems in residential and business structures. The defendant is Scarecrow Club, Inc. d/b/a The Bleachers. The defendant is a Louisiana corporation which operates a nightclub in Monroe, popularly referred to as The Bleachers.

Fullerton and the defendant entered into a contract on November 2, 1981, in which Fullerton obligated himself to install an automated sprinkler system in The Bleachers for the sum of $6,716.00. Fullerton thereafter designed the sprinkler system for The Bleachers, and purchased the necessary materials for the installation.

Fullerton began installation on Wednesday, January 20, 1982. On that date, Fullerton and his assistant, Carl Myers, each worked approximately four hours unloading sprinkler system components and materials at The Bleachers. Fullerton and Myers then spent 28 hours apiece the following week in installing the automated sprinkler system in The Bleachers. Fullerton halted work on the installation on Wednesday, January 27, to await the city’s installation of the water tap that was necessary to connect The Bleachers’ sprinkler system with the city’s water supply; Fullerton halted installation at this time because no more work could be done on The Bleachers’ sprinkler system until the city water tap was installed. It was the defendant’s responsibility, under the contract of November 2,1981, to procure and pay for the city’s services in installing the city water tap. The city water tap was installed approximately two weeks after Fullerton’s work stoppage, removing the last technical obstacle to Fullerton’s completion of the job.

By an invoice dated January 21,1982, the day after work began, Fullerton billed the defendant for $5,225. The invoice stated that 100% of the project’s engineering and system fabrication had been completed, 100% of the needed materials purchased, but none of the required installation performed. Fullerton had unloaded the sprinkler system components on the job site at that time, but had scarcely begun installation efforts.

In February of 1982, several weeks after Fullerton had stopped working on the sprinkler installation at The Bleachers, Mr. Fullerton sought out Charles Robinson, president of the defendant, and requested full payment of the invoice for $5,225. However, Mr. Robinson declined to make full payment of the invoice amount since, under his understanding of the contract’s terms of payment, payment was not due until the project was substantially completed. It was Mr. Robinson’s “personal observation that the [installation called for by the] contract had not been completed.”. Robinson instead tendered to Fullerton a payment on behalf of the defendant in the amount of $1,000 for the materials that had been installed prior to Fullerton’s work stoppage on January 27, 1982. Fullerton accepted the check for $1,000. Robinson also offered at that time to place the entire balance of the contract price in an escrow account, and stipulate that the escrow account would be released to Fullerton upon completion of the sprinkler installation. However, Fullerton rejected the offered escrow arrangement.

On May 12, 1982, in a written act of sale, Fullerton sold to the defendant — at a price of $1,504 — all of the materials which had been purchased by Fullerton for The Bleachers project, but which had not been installed by Fullerton in The Bleachers. The defendant subsequently paid Gerald Johns the sum of $3,400 to complete the sprinkler installation at The Bleachers, using the $1,504 worth of materials purchased from Fullerton. Johns testified that the $3,400 total represented approximately $1,000 for material costs, and a $2,400 charge for approximately 77 man hours of labor.

The business dealings of Fullerton and the defendant can be summarized as follows: After the parties agreed by a contract of November 2,. 1981 that Fullerton would install a fire sprinkler system for the price of $6,716, Fullerton began installation on January 20, 1982. On January 21, Fullerton billed the defendant for 77% of the project’s total contract price, even though construction had scarely begun. Fullerton initially discontinued installation a week later on January 27 — with much work left to be done — because the absence of a city water tap precluded further installation. The city water tap was installed on about February 15.

The defendant subsequently refused to pay the January 21 invoice amount of $5,225, and instead paid Fullerton $1,000, construing the contract between the parties to mandate that payment was only due upon 95% completion of installation. Fullerton, in turn, expressly refused to finish installation at The Bleachers until the total invoice amount of $5,225 was paid. Thus, although Fullerton initially discontinued installation because of the absence of a city water tap, Fullerton thereafter refused to finish installation because of the defendant’s failure to pay the billed amount of $5,225. Fullerton ultimately sold to the defendant for $1,504, materials which he purchased for The Bleachers but never installed.

Plaintiff Fullerton filed suit against defendant on December 15,1982. In his main demand, plaintiff prayed that he be awarded the entire amount owed him under the contract of November 2, 1981, less a $2,504 credit for the $1,000 payment and $1,504 materials purchase made by the defendant; the main demand thus prayed for an award of $4,332. In his alternative demand, plaintiff Fullerton sought a quantum meru-it award based on his labor and materials, less a $2,504 credit for the defendant’s payments; the alternative demand thus prayed for $2,457.07.

The trial court granted plaintiff relief on the alternative quantum meruit demand, and thus awarded him the sum of $2,457.07, which sum supposedly reflected the value of Fullerton’s labor and materials less a $2,504 credit for the defendant’s previous payments. Defendant has appealed the trial court’s award of $2,457.07, contending that that award is excessive. Plaintiff Fullerton has answered the appeal, seeking damages and attorney’s fees on the grounds that the defendant perfected a frivolous appeal. However, there is substance to defendant’s appeal, as will hereafter be made clear, and plaintiff-appellee Fullerton’s damage claim for frivolous appeal is therefore dismissed. Thus, the essential issue to be resolved on this appeal is whether the award made by the trial court was excessive.

A contract constitutes the law between, and binding upon, the parties that have entered into it. LSA-C.C. 1945. The pertinent phraseology of the tersely worded contract governing this cause provides as follows:

“We [Fullerton] are pleased to furnish you with our cash price of Six Thousand Seven Hundred Sixteen and no/100 Dollars ($6,716.00) to furnish a wet type light hazard sprinkler system throughout [The Bleachers].
“The installation will be performed in accordance with the rules and regulations of the National Fire Protection Association (NFPA) and subject to the inspection of the Property Insurance Association of Louisiana for fire insurance rate considerations, based on the minimum requirements of NFPA.
“Our terms of payment will be net 10 days of 95% of the price of material delivered and work performed. The final 5% will be invoiced when our work is substantially completed.”

The cause, object and price of the foregoing contract, as well as the parties’ reciprocal obligations, are clear from the contract’s literal terms: Fullerton was obligated to furnish and install a sprinkler system in The Bleachers, and the defendant was obligated to pay Fullerton $6,716 for the materials, labor and installation.

While the cause, object and price of the foregoing contract are clear, the contract’s stipulated terms of payment are unclear and ambiguous. The phrase which engenders uncertainty is the contract’s rather cryptic stipulation that “our terms of payment will be net 10 days of 95% of the price of material delivered and Work performed.”

Was payment intended to be fractional-ized and separated into a materials installment and a labor installment, such that a materials installment would be due upon delivery of 95% of the materials, and a separate labor installment would be due upon completion of 95% of the required labor? Or, did the contract contemplate that a single payment of the entire contract price would be due only upon 95% completion of both materials delivery and installation? Or can it be said that the contract envisioned the payment of 95% of the price of any material delivered or any work performed within ten days of billing thereof?

Iis unnecessary to resolve this ambiguity. Even under the interpretation most favorable to the plaintiff, it is clear that the invoice of January 21, 1982 was substantially in excess of the terms of the . contract.

Under any interpretation plaintiff could only invoice for the materials actually on the site. Fullerton’s testimony was that when he left the job he had $2,000 worth of materials installed. As we have indicated this date was approximately a week after the defendant was billed. Obviously, on the day of billing substantially less than $2,000 was installed. However, for the -purposes of this analysis of the validity of plaintiff’s bill, we will assume that plaintiff had $2,000 worth of materials actually on the site. Since the plaintiff testified that he billed for 100% of materials and since the defendant later paid the plaintiff $1,504 for the materials at plaintiff’s shop, it is apparent that the total material cost was $3,504. Recall that plaintiff testified that the invoice included 100% of “materials, engineering and fabrication” less 5%—making the total cost $5,500. Subtracting the material cost of $3,504, the remaining costs amount to $1,996. Adding the $2,000 worth of materials to this sum equals $3,996; 95% thereof is $3,796.20. Therefore, plaintiff’s invoice of $5,225 was, even under the interpretation of the contract and evidence most favorable to the plaintiff, substantially excessive.

Therefore, the defendant did not breach its contractual obligations by refusing to make full payment of the January 21, 1982 invoice for $5,225.

While the defendant did not breach its contractual obligation, under the construction of that contract that we have adopted, we find that Fullerton did breach his contractual obligation. Simply stated, Fullerton had an obligation to completely install an automated sprinkler system in The Bleachers, and breached this obligation by failing to complete the required install*- Fullerton’s non-performance is not excused by the fact that the defendant withheld payment of an invoice not in accordance with the terms of the contract.

Since plaintiff Fullerton has not performed his contractual obligation, he may not place the defendant in default and obtain contractual damages. LSA-C.C. Arts. 1912, 1913. See also, Bouterie v. Carre, 6 So.2d 218 (Orl.App.1942). Moreover, because the defendant has not breached the contract or indicated an intent to do so, Fullerton may not avail himself of the doctrine of anticipatory breach to seek remedies in contract against the breaching party while withholding his own performance. See Comment, The Doctrine of Anticipatory Breach of Contract, 20 La.L.Rev. 119 (1959). Thus, since Fullerton has breached the contract and the defendant has not, Fullerton may not seek contractual damages, or specific enforcement of the contractual provision obligating the defendant to pay him $6,716.

However, while Fullerton is thus not entitled to an action in contract, he does have an action in quasi-contract under the theory of quantum meruit since his work rebounded to defendant’s benefit. Quantum meruit is a common law doctrine which has been jurisprudentially adopted in this civilian jurisdiction; quantum meruit is most often viewed as a codally unenumerat-ed quasi-contract. Comment, Quantum Meruit in Louisiana, 50 Tul.L.Rev. 631 (1976). The doctrine of quantum meruit provides a civil remedy where equity demands recovery, and neither tort or contract provides a legal basis therefore. Quantum meruit is appropriate where defendant is enriched by plaintiff’s time, talent, labor and materials, or where plaintiff’s efforts inure to defend ant’s benefit, under such circumstances as imply an obligation to pay for the service thus rendered by plaintiff. Alexis v. Pacaccio, 410 So.2d 867 (La.App. 4th Cir.1982); Baron v. Peter, 286 So.2d 480 (La.App. 1st Cir.1973); Bouterie v. Carre, supra; Granger v. Fontenot, 3 So.2d 215 (La.App. 1st Cir.1941).

The statutory basis most often ascribed to quantum meruit recovery are Civil Code Articles 1965, 2292, 2293 and 2294, defining equity and quasi-contracts. Villars v. Edwards, 412 So.2d 122 (La.App. 1st Cir.1982); Skains v. White, 391 So.2d 1327 (La.App. 2d Cir.1980); Broussard, Broussard & Moresi, Ltd. v. State Auto & Casualty Underwriters Co., 287 So.2d 544 (La.App. 3d Cir.1973); O.J. Ward, Inc. v. Winford Co., 254 So.2d 152 (La.App. 2d Cir.1971).

The jurisprudence has adopted several different approaches for determining quantum meruit awards; however, these methods are not mutually exclusive, and their application to the same factual issue often yields closely similar if not identical results. Quantum meruit awards have been determined according to the value of plaintiff’s efforts to the defendant. See, Quantum Meruit in Louisiana, supra, at 647. It has been stated that where a contract price has been agreed upon, quantum meruit recovery has been computed according to the contract price less any amount necessary to complete, finish or perfect the plaintiff’s work. Bouterie, supra. Quantum meruit recovery has also been awarded on the basis of the cost to plaintiff of his labor and material. O.J. Ward, Inc., supra. Quantum meruit has been determined according to an interrelated complex of considerations, including the extent and skill of the work performed; defects and incompleteness therein; the labor and money necessary to complete and perfect plaintiff’s work; and the value and benefit defendant has received from plaintiff’s work. Bouterie, supra. Despite earlier jurisprudence to the contrary, recent decisions have allowed quantum meruit recovery for profit and/or overhead expense attributable to the project. Skains, supra; Villars, supra.

Perhaps the most astute basis for determining quantum meruit awards was articulated in Jones v. City of Lake Charles, 295 So.2d 914, 917 (La.App. 3d Cir.1974), wherein the court acknowledged that there is no mathematical formula for computing quantum meruit awards:

“The general rule is that the plaintiff who establishes his right to be compensated on quantum meruit should recover as much as he reasonably deserves for his services and for the time and labor required for them. There is no specific test which must be applied to determine the reasonable value of such services. It is a matter of equity depending upon the circumstances of each case.”

Guided by this expression of quantum meruit recovery, we determine that plaintiff was entitled to a judgment of $1,700.

It should be noted that Fullerton made the unsubstantiated assertion at trial that he had installed $2,000 worth of materials at The Bleachers. However, this claim was not proven with the requisite degree of evidentiary specificity, since it was constituted by a bare, unsupported assertion. See Cloney v. Travelers Ins. Co., 253 So.2d 83 (La.App. 1st Cir.1971). Moreover, the claim that $2,000 worth of materials was installed by Fullerton contravenes the other evidence adduced, while the notion that only $1,000 worth of materials was installed is entirely consistent with the documentary evidence. Fullerton introduced invoice vouchers which purportedly represented the entire amount of materials purchases made by him for The Bleachers job including both the materials installed by him and materials not installed by him. Invoices show that the total amount of the purchases was approximately $2,500, which should include fabrication costs of the plaintiff. Since $1,500 worth of materials not utilized by Fullerton when he stopped work were purchased by the defendant, this leaves $1,000 worth of materials purchased for the job which were installed. Thus, the defendant’s initial payment of $1,000 and the subsequent purchase of materials not installed by Fullerton entirely compensated Fullerton prior to trial for materials supplied.

Remaining to be considered are the blueprints which Fullerton testified were a $400 cost item to him and the approximately $700 which he testified was his out-of-pocket labor expense at the time he left the job. It thus becomes our task to assess an overhead and profit factor for these items, as well as for the $1,000 worth of materials the evidence indicates was in the project at the time that Fullerton ceased work. We believe it inappropriate to consider a profit and overhead factor for the $1,500 worth of materials and sold directly to defendant subsequent to the termination of work. We will award $600 as profit and overhead, which is approximately 80% of the cost to plaintiff of the $2,100 worth of labor, designs and installed materials. Since plaintiff has been paid for materials, he is thus entitled to judgment for the $700 labor cost, $400 blueprint cost, and $600 profit and overhead, for a total of $1,700. In summary, plaintiff-appellee Fullerton has received $2,504 from the defendant prior to trial which compensates plaintiff .for his material cost. The trial court awarded Fullerton, in addition to this sum, $2,457.07 in quantum meruit. For the reasons aforesaid, we amend that quantum meruit award from $2,457.07 to $1,700.00.

There will therefore be judgment herein rejecting plaintiff-appellee’s demands on the basis of frivolous appeal. The trial court judgment of $2,457.07 in favor of plaintiff and against the defendant is amended to the sum of $1,700.00, and as amended, is affirmed. The costs of this appeal are assessed equally to both parties.

AMENDED AND AFFIRMED.

      . 95% of the $5,550 worth of work plaintiff contended was completed at that point.

      . The $2,504 worth of payments attributed to the defendant were not credited to the original contract price of $6,716, but to a revised contract price of $6,836, which reflected minor additions and modifications to the original contract.

      . Of course, any ambiguity is to be construed against the drafter. LSA-C.C. Art. 1958.

      . We make this assumption for the purpose of this immediate analysis of plaintiffs bill only. As we discuss infra, we believe the evidence shows that the actual price of materials plaintiff had at the site was $1,000.

      . O.J. Ward, Inc. v. Winford Co., 254 So.2d 152 (La.App. 2d Cir.1971).