
    Lonise HEBERT, Plaintiff-Appellee, v. The TOWN OF VILLE PLATTE, Defendant-Appellant.
    No. 7060.
    Court of Appeal of Louisiana, Third Circuit.
    June 29, 1979.
    
      Fruge & Vidrine, Jack C. Fruge, Ville Platte, for defendant-appellant.
    Preston N. Aucoin, Ville Platte, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and STOKER, JJ.
   GUIDRY, Judge.

This is a tort suit brought against the town of Ville Platte for damages sustained by plaintiff when he drove his automobile over a manhole cover in that town and was injured. The manhole cover lifted up as plaintiff’s automobile proceeded across it lodging in the undercarriage of the automobile, which circumstance caused the car to come to a sudden stop throwing plaintiff into the steering wheel. As a result of the impact, plaintiff suffered a fracture of the sternum, cardiac contusion, and other minor injuries. The trial court found that res ipsa loquitur applied to establish a prima facie case of negligence against defendant and that defendant had failed to rebut such prima facie showing. Accordingly, the trial court rendered judgment in favor of plaintiff for the sum of $13,917.82. Defendant has perfected this appeal. Plaintiff has answered the appeal seeking an increase in the award. We affirm.

The undisputed facts giving rise to this suit may be summarized as follows: On February 14, 1978, plaintiff, Lonise Hebert, was driving his 1956 Mercury automobile at a rate of about 15 to 20 miles per hour in an easterly direction on West Pine Street in Ville Platte, Louisiana. Suddenly, and without apparent reason, his vehicle came to a stop, thrusting him into the steering wheel. When plaintiff got out of his car to see what had happened, he saw that one section of a manhole cover located in the street was lifted off the manhole. The section had apparently become lodged in the undercarriage of his car, causing it to stop.

The manhole cover in question consists of two half-inch thick steel metal plates (each 15" wide and 48" long). The plates have re-enforcement rods throughout and fit on angle irons set into concrete. They are flush with the blacktopped surface of the street. Each plate weighs approximately 95 to 100 pounds, and they sit side by side when in their proper positions.

The hole which these plates cover houses two pumps. The record reveals that these pumps are inspected twice daily, once around 7:30 a. m. and once around 3:30 p. m. The accident in question occurred at about 8:30 a. m., or approximately one hour after the morning inspection. Although the manhole cover need not be lifted at each inspection, as the pump readings may be obtained from gauges located approximately 24 feet away from the manhole, part of the inspection process does include looking at the manhole cover to make certain that it is in a secure position. The manhole has been in its present position since approximately 1949.

The trial court, invoking the doctrine of res ipsa loquitur, found that plaintiff established a prima facie case of negligence against defendant which was not rebutted, and consequently found liability on the part of the town of Ville Platte.

In the case of Valentine v. Kaiser Aluminum & Chemical Corp., 205 So.2d 757 (La. App. 1st Cir. 1967), our brethren of the First Circuit discussed the proper application of res ipsa loquitur, stating:

“. . the applicability of this rule of evidence must be determined at the conclusion of the trial of each case wherein its application is urged. If the evidence of the circumstances surrounding the accident is of such a character as to justify a conclusion by reasonable men that, as a whole, the cause of the accident was more likely due to a lack of the exercise of due care or the omission of some duty on the part of the defendant than some other outside agency, and the plaintiff has shown that the agency or instrumentality causing the injury was under the control of defendant, or about which he had a superior knowledge, then the doctrine is applicable and the defendant becomes burdened with the onus of proving his own lack of fault. See generally Lykiardopoulo v. New Orleans & C. R. Light and Power Company, 127 La. 309, 53 So. 575; Larkin v. State Farm Mutual Automobile Ins. Co., 233 La. 544, 97 So.2d 389; Langlinais v. Geophysical Service. Inc., 237 La. 585, 111 So.2d 781; D’Allesandro v. Edsar Murray Supply Company, La.App., 185 So.2d 34; Fruge v. Trahan. La.App., 194 So.2d 478.” at p. 760.

See also, McCann v. Baton Rouge General Hospital, 276 So.2d 259 (La.1973); Boudreaux v. American Insurance Company, 262 La. 721, 264 So.2d 621 (La.1972); King v. King, 253 La. 270, 217 So.2d 395 (La. 1972); King v. King, 253 La. 270, 217 So.2d 395 (La.1968); Malone, Res Ipsa Loquitur and Proof by Inference, 4 La.Law Review 70.

We agree with the trial court that the doctrine of res ipsa loquitur is applicable under the circumstances of the instant case. Further, we determine that the record supports the conclusion that the most plausible explanation for the occurrence of the accident is the lack of due care or the omission of some duty on the part of defendant’s employees who were charged with the duty of inspecting and maintaining the manhole cover properly positioned on its frame. We reach this conclusion for the following reasons.

There is no dispute that plaintiff was in no way contributorily negligent in causing the accident. He was simply driving along at a reasonable rate of speed, when a section of the manhole cover lifted up, caught in the undercarriage of his car and caused it to come to a sudden stop. Unquestionably, such an event should not have happened in normal use of the manhole cover. The only possible explanations for the occurrence of the accident would be that either the two steel plates comprising the cover were not properly positioned on their frame, or the cover or frame itself was defective.

The record completely negates the possibility that the manhole cover or the frame on which it rested was defective. Defendant’s employees testified that they inspected the cover shortly before the accident and found nothing physically wrong with it. The cover was again inspected after the accident, and again found to be nondefec-tive. Such a conclusion is further supported by the fact that the manhole cover and frame had been continuously in use for some thirty years without mishap and that after the accident the same steel plates were replaced over the manhole, apparently without incident since. We further note that this accident is not one which would not have happened in the absence of a defective manhole cover. The record reveals that if the steel plates were not properly sitting in their frame, they could lift up despite the non-defective state of the plates or frame. Cf. Marquez v. City Stores Company et al., 371 So.2d 810 (La.1979). We find no evidence in the record to support a conclusion that the cover or frame was defective. In light of this conclusion, we need not consider the effect of LSA-C.C. Article 2317 as explained in Loescher v. Parr, 324 So.2d 441 (La.1975), or whether if such did apply under the instant facts, plaintiff’s recovery would be barred in light of our holding in Gallien v. Commercial Union Ins. Co., 353 So.2d 1127 (La.App. 3rd Cir. 1977), writ denied 354 So.2d 1379 (La.1978), where we found that the rule of strict liability imposed by Article 2317 as explained in Loescher v. Parr, supra, could not be applied against public bodies or municipalities absent notice and a reasonable opportunity to repair.

Having eliminated a defect in the plates and/or frame as a plausible reason for the occurrence of the accident, we reach the conclusion, as aforestated, that the most plausible explanation for the occurrence of the accident was the negligence of defendant’s employees.

The Superintendent of the sewerage system testified that it was necessary for the two steel plates to be carefully set into position, and that if they were not fitted right next to each other — if even a crack was left between them — they could open. Other testimony found in the record réveals that each section of the manhole cover weighs approximately one hundred pounds, and requires the work of two men with a pick and shovel to be lifted. At the time of the accident, the cover had been in its present position for thirty years, and had never been lifted up. solely by the weight of a passing vehicle. We do not find it reasonable to believe that some individual or instrumentality intervened to move or offset the steel plates, causing them to lift under the weight of plaintiff’s car. See, Pilie v. National Food Stores Inc., 245 La. 276, 158 So.2d 162 (La. 1963); Taylor v. CNA Insurance Group, 300 So.2d 479 (La.1974).

After examining the totality of the circumstances surrounding this accident, we find that the most plausible explanation for the manhole cover, which was under defendant’s care and custody, to lift up and catch on plaintiff’s car, was the negligence of defendant’s employees in failing to make certain that the two steel plates were properly aligned in their frame,

Having found that res ipsa loquitur was properly applicable under the instant facts and established a prima facie case of negligence against defendant, the trial court concluded that defendant failed to meet its burden of proving its own lack of fault. We find that the record amply supports the trial court’s conclusion. The evidence brought forth by defendant’s witnesses merely amounted to a showing of the use of reasonable care in inspecting the manhole cover. Such evidence is not sufficient to overcome the inference raised by the application of the doctrine of res ipsa loqui-tur. Langlinais v. Geophysical Service, Inc., supra; Valentine v. Kaiser Aluminum & Chemical Corp., supra.

We next consider appellee’s request for an increase in the quantum of damages awarded. In its written reasons for judgment, the trial court reviewed the injuries sustained by plaintiff, and the evidence adduced in support of recovery as follows:

"Hr. Ramson K. Vidrine, a physician and surgeon of Ville Platte testified in behalf of the plaintiff. He treated plaintiff for his injuries on the very day of the accident, and had him hospitalized at the Savoy Memorial Hospital where he remained about two weeks undergoing treatment for his injuries. Dr. Vidrine stated that as a result of the accident, plaintiff had suffered a fracture of the sternum, and cardiac contusion, which is a contusion of the heart muscle itself, a medical condition of a very serious nature. This heart trauma was caused by the impact of plaintiffs body being thrown against the steering wheel at the time of the accident. Dr. Vidrine stated that patients who suffer cardiac contusions usually stay in bed for 3 months which indicates to the court the gravity of this condition. He also testified that plaintiff suffered from contusions of the arms and legs, but that these were not very severe.
Dr. Vidrine prescribed a corset which plaintiff still wears about his chest. Plaintiff, according to Dr. Vidrine, suffers or suffered, from many diseases including urethal fistula, phimosis, arterio-sclerotic heart disease, and angina. Dr. Vidrine also testified that the injury was worse as to him than to an ordinary person not suffering from such diseases. When asked if plaintiff was in worse shape now as a result of the injuries received in the accident, Dr. Vidrine answered, ‘of course’.
The plaintiff has endured much pain and suffering since the accident, and will continue to do so, especially when he coughs, or strains. He can no longer repair mowing machines as he used to do prior to the accident.
Without going into greater detail, suffice it to say that after a careful and thorough review of the evidence the Court finds that plaintiff has proven his case by a preponderance of the evidence as required by law, and is entitled to recover the following damages, to-wit:
1. Dr. Ramson K. Vidrine -$ 270.00
2. Savoy Memorial Hospital - 1,647.82
8. For physical pain and suffering- 12,000.00”

It is well settled that before a court of appeal can disturb an award made by a trial court, the record must clearly reveal that the trier of fact abused its much discretion in making its award. Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court. LSA-C.C. Article 1934; Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977); Schexnayder v. Carpenter, 346 So.2d 196 (La.1977).

After reviewing the record we find that the trial court did not abuse its much discretion in setting plaintiff’s award for damages.

For the above and foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are to be paid by appellant.

AFFIRMED.

STOKER, J., concurs and assigns written reasons.

DOMENGEAUX, J., dissents and assigns written reasons.

STOKER, Judge,

concurring.

I am not convinced that res ipsa loquitur applies under the facts of this case. However, I concur in holding that the Town of Ville Platte is liable to plaintiff. It is my opinion that liability should be imposed under LSA-C.C. 2317 as interpreted by Loescher v. Parr, 324 So.2d 441 (La.1975).

Admittedly, no one was able to discover a vice or defect in the manhole cover or manhole system. That is to say, no vice or defect in the specific sense was discovered. However, it is an undeniable fact that, for some unexplained reason, the cover came up and engaged the underneath parts of the plaintiff’s vehicle. Therefore, there was either an undetermined defect or the cover was temporarily askew or not in its proper place. Loescher v. Parr states the following: “This jurisprudence [jurisprudence previously discussed in the opinion] recognizes that the injured person must prove the vice (i. e., unreasonable risk of injury to another) in the person or thing whose act causes the damage, and that the damage resulted from this vice.” Article 2317 itself provides:

Art. 2317. Acts of others and of things in custody

Art. 2317. We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.

As Loescher v. Parr, supra, makes clear, liability results from mere guardianship or custody of the risk-creating thing or person. It stated that the legal fault thus arising is sometimes referred to as strict liability. It is in fact fault without negligence. In discussing other articles of the Louisiana Civil Code in which this principle had already been applied, the author of the opinion set forth the following rationale for application or determination of this type of non-negligent fault:

When harm results from the conduct or defect of a person or thing which creates an unreasonable risk of harm to others, a person legally responsible under these code articles for the supervision, care, or guardianship of the person or thing may be held liable for the damage thus caused, despite the fact that no personal negligent act or inattention on the former’s part is proved. The liability arises from his legal relationship to the person or thing whose conduct or defect creates an unreasonable risk of injuries to others.
The fault of the person thus liable is based upon his failure to prevent the person or thing for whom he is responsible from causing such unreasonable risk of injury to others. Thus, the person to whom society allots the supervision, care, or guardianship (custody) of the risk-creating person or thing bears the loss resulting from creation of the risk, rather than some innocent third person harmed as a consequence of his failure to prevent the risk. His fault rests upon his failure to prevent the risk-creating harm and upon his obligation to guard against the condition or activity (by the person or thing for which he is responsible) which creates the unreasonable risk of harm to others.

In this case the defendant clearly had the “supervision, care, or guardianship” of the “thing” which did the harm. The flying up of the manhole cover subjected the plaintiff to unreasonable risk of injury. Plaintiff was an innocent third person. The defendant cannot show any of the three types of defenses by which legal fault in such situations may be avoided, viz. that the harm was caused by the victim, by the fault of a third person, or by an irresistible force.

If the manhole cover was properly in place, then existence of a vice or defect is apparent in the fact that in traveling over it, the cover would rise up. It evidently has a built-in vice, as yet unexplained, consisting of a propensity to rise up under certain given conditions and circumstances. The only other explanations are that the cover Was not properly placed by defendant’s employees at some time or was tampered with by a third person or persons. In the latter instance the clear import of the language Loescher v. Parr is that defendant bears the burden of proving that the harm was caused by the fault of a third person.

If the above amounts to inferring a vice or defect from the facts, it would appear that support for making such inferences has been indicated by the Louisiana Supreme Court in Marquez v. City Stores Company, et al., 371 So.2d 810 (La.1979), decided May 21, 1979. See Wolverton v. City Stores Company, 363 So.2d 1321 (La.App. 4th Cir. 1978). In the Marquez case a child’s, tennis shoe caught in a descending escalator. The father of the child who was standing on the same step as the child could not explain how the accident occurred. The Court of Appeal found that the store owner could not have anticipated the accident and the plaintiff had failed to prove a defect or vice in the escalator through which the damage occurred. Nevertheless, the Louisiana Supreme Court reversed the Court of Appeal and imposed strict liability under LSA-C.C. 2317 and Loescher v. Parr, supra. In the course of its opinion the Supreme Court stated the following:

The record indicates that the plaintiff and his son were properly using the equipment for the purpose and in the manner intended; there was no finding of contributory negligence. Presumably, several hundred thousand people have used this same escalator since it was installed in 1972 without a foot becoming wedged in the side opening. The fact that this escalator caught this child’s shoe is an unusual occurrence in itself which would not have happened had this escalator not been defective.

For the foregoing reasons it is my view that strict liability under LSA-C.C. art. 2317 should apply in this case. In a sense it might appear that the guardianship which is the foundation for strict liability under LSA-C.C. art. 2317 and control which is the foundation for negligence based on res ipsa loquitur is the same. If they were I should be content to join in the principal opinion in this matter. However, Loescher v. Parr, supra, makes it quite clear that the word “custody” in LSA-C.C. art. 2317 which translates into guardianship is a much broader concept than control in res ipsa loquitur situations. In any event Loescher makes it clear that there is at least a distinction on the question of burden of proof. In relying on res ipsa loquitur the plaintiff bears the burden of proving what once amounted to exclusive control by the defendant although the burden as to the extent of control has been considerably liberalized. On the other hand, although the plaintiff in a res ipsa loquitur case can shift the burden to plaintiff by showing control by defendant, the latter can escape liability by simply showing no negligence on his part. Where the plaintiff relies on strict liability and establishes guardianship and control, it is enough, and the defendant bears the burden of proving victim fault, third party fault or irresistible force as a defense in order to escape liability.

In view of the fact that a manhole and its cover in a public street are under constant public use and contact and not under close control of a municipality, and in view of the rule which holds that res ipsa loquitur must be sparingly applied, I would prefer to place the liability in this ease under strict liability.

I am aware that a decision of this circuit holds that the strict liability standard of LSA-C.C. art. 2317 does not apply to public bodies or municipalities absent notice and a reasonable opportunity to repair. Gallien v. Commercial Union Insurance Company, 353 So.2d 1127 (La.App. 3rd Cir. 1977) writ denied, 354 So.2d 1379 (La.1978) with two justices voting to grant the writ. However, in Durbin v. City of Baton Rouge, 366 So.2d 1020 (La.App. 1st Cir. 1978) our brothers of the First Circuit, noted our decision in Gal-lien but declined to follow it and applied LSA-C.C. art. 2317 to a municipality. In American Road Insurance Co. v. Montgomery, 354 So.2d 656 (La.App. 1st Cir. 1978) the First Circuit held LSA-C.C. art. 2317 applied to the Department of Highways although no liability was found because fault on the part of third person was shown. The Louisiana Supreme Court denied writs. 356 So.2d 430, 434 and 435 (La.1978).

Inasmuch as I am of the view that strict liability under LSA-C.C. art. 2317 does apply to public bodies and municipalities, I find no impediment to applying it in this case!

DOMENGEAUX, Judge,

dissenting.

I respectfully dissent, from the views of my brethren. I would reverse the judgment of the District Court.

The principal opinion reasons that this accident occurred in one of two ways: (1) Either the two steel plates comprising the manhole cover were not positioned properly on their frame, or (2) The cover or frame itself was defective. The opinion then completely rules out (2), the presence of a defect, with which I agree under the facts of this case. This leaves the first proposition as the explanation for the accident. The principal opinion then finds liability on the part of the Town, not on the basis that the manhole cover was not positioned properly, but on the basis that the employees who conducted the inspection breached “some duty” of ascertaining that the manhole covers were not properly positioned. ■

I have difficulty with this approach based upon my appreciation of the facts of this case and my appreciation of the doctrine of res ipsa loquitur.

Res ipsa loquitur was recently discussed in Hancock v. Safeco Insurance Company, 368 So.2d 1162 (La.App. 3rd Cir. 1979), writ denied 369 So.2d 1377 (La.1979), wherein it was stated:

“Res ipsa loquitur is a rule of circumstantial evidence which is applied in eases where the facts are such as to indicate that the negligence of the defendant, rather than some other as-piausible explanation, is the most probable cause of the injury. The principle serves as an aid to the plaintiff because, when properly applied, it gives rise to an inference of negligence which the plaintiff places in the scales along with the other facts of the case in order to prove his position by a preponderance of the evidence. Boudreaux v. American Insurance Company, 262 La. 721, 264 So.2d 621 (1972).
The test of applying res ipsa loquitur is simply: Do the facts of the case indicate that the negligence of the defendant is the most plausible explanation of the accident? Stated differently, the test is: Are the facts of the case such as to suggest an explanation for the accident, other than the negligence of the defendant, which is just as plausible as one explaining the accident in terms of the defendant’s negligence? When it can be shown reasonably that the accident could have occurred as a result of one of two or more causes, the rule cannot be invoked. Taylor v. CNA Insurance Group, 300 So.2d 479 (La.1974); Boudreaux v. American Insurance Company, supra.”

I do not think that the facts of this case indicate that the negligence of the defendant is the most plausible explanation for the accident. In fact, I do not think that there is any indication of negligence' on the defendant’s part whatsoever.

There is no basis from which one can draw the inference that the manhole cover was not properly positioned at the time defendant’s employees inspected it. Without the cover being askew at that time, if in fact, it ever was askew, the defendant’s employees cannot be said to be negligent. Consequently, the reasoning of the principal opinion fails.

Looking to the uncontradicted facts contained in the record, it was clearly established that the Town rarely lifted up this manhole cover. At most, it would be lifted once or twice a year, in order to check out or repair the pumps which were housed in the manhole. It was also established that the manhole cover in question was not removed by Town employees at least for several weeks prior to the accident and that there were no accidents from the time of the last removal, until plaintiff’s passage over it. In fact, there never were any accidents since the time the manhole was installed in 1949.

The pumps housed in the manhole were checked twice daily, once at around 7:30 A.M. and once at around 3:30 P.M.; but, those examinations consisted merely of taking meter readings from gauges located approximately 28 feet away from the manhole cover. The cover was not lifted at these examinations. It merely was looked at in order to make sure that it was still there and still in position.

Both’ of the employees who conducted the inspection on the morning of the accident testified that the manhole cover was in place. There is no evidence showing, or even remotely tending to show, that these employees did not use reasonable care in carrying out their morning inspection.

This, apparently, is where the principal opinion uses res ipsa loquitur, i. e. to advance the proposition that, inasmuch as the employees thought that the manhole cover was in place at the time of the inspection, and, inasmuch as the cover caught onto the undercarriage of plaintiff’s car about an hour after the inspection, the inspection of the employees must have been negligent.

I disagree with this assumption under the evidence in this case. First, because the manhole cover was rarely removed by Town employees, and was not removed by Town employees for at least several weeks prior to the occurrence, it is not at all unlikely that the cover was made to come loose by the actions of some third party, as, for example, vandals or mischief makers, if it ever, in fact, did come loose. After all, this is not a situation involving a patient in an operating room or a fire in the kitchen of a restaurant. As pointed out in the concurring opinion, the cover was accessible at all times to members of the public and in constant public use. Second, because there were no mishaps with this manhole cover up until the time plaintiff’s vehicle passed over it, it seems likely that the time at which the manhole cover became askew by the actions of the third party, if it ever was askew, must have been in close proximity to the time of plaintiff’s passage over it. There is absolutely no basis in the record to tell when the manhole cover might have been made to come loose. In essence, it seems to me that it is just as reasonable, under the evidence presented, to conclude that the accident occurred because some third party made the manhole cover come ajar after the morning inspection, as it is to find that the accident occurred because the purportedly ajar manhole cover was not discovered at the morning inspection. I, therefore, do not feel that the City should be found liable under the very weak factual setting presented by this case.

I also disagree with the views expressed in the concurring opinion that liability should be imposed under La. C.C. art. 2317, as interpreted by the Louisiana Supreme Court in Loescher v. Parr, 324 So.2d 441 (La.1975).

In Gallien v. Commercial Union Insurance Company, 353 So.2d 1127 (La.App. 3rd Cir. 1977), writ denied 354 So.2d 1379 (La. 1978), this Court held that the Loescher rule of C.C. art. 2317 did not apply to public bodies or municipalities. In that case, the doctrine of actual or constructive notice was discussed, and the following language from Garrett v. Sewerage & Water Board of New Orleans, 235 So.2d 164 (La.App. 4th Cir. 1970) was quoted:

“Our long settled jurisprudence is that in order for a public body ... to be held liable for injuries caused by defects or defective conditions the plaintiff has the burden of pleading and proving both of the following: (1) such defects or conditions were patently dangerous or in the nature of a trap; and (2) the corporation had either actual or constructive notice of the same, actual notice being knowledge of the dangerous defects or conditions by a corporate officer or employee having the duty either to keep the property involved in good repair or to report defects and dangerous conditions to the proper authorities, and constructive notice being the fact that the defect or condition had existed for such a period of time it would have been discovered and repaired if the public body had exercised reasonable care.” [Citations omitted]

I feel, as did my brethren in Gallien, that until this well established and well entrenched doctrine is overruled, it is still the law.

For the above reasons, I would reverse the judgment of the trial court and order plaintiff’s suit dismissed at his costs.

I respectfully dissent. 
      
      . Number 63,659 on the docket of the Louisiana Supreme Court.
     
      
      . See Aetna Casualty & Surety Co. v. Rothman, 331 So.2d 81 (La.App. 1st Cir. 1976) and Hancock v. Safeco Insurance Co., 368 So.2d 1162 (La.App. 3rd Cir. 1979), writ denied, 1979, 369 So.2d 1377 (La. 1979). In Sugulas v. St. Paul Ins. Co., 347 So.2d 855 (La.App. 3rd Cir. 1977), in setting forth the elements required for applying res ipsa loquitur this court characterized the control required by stating that the accident must be “caused by an agency or instrumentality within the actual or constructive control of the defendant.” (Emphasis added.) But compare Llewellyn v. Lookout Saddle Co. et al., 315 So.2d 69 (La.App. 2nd Cir. 1975).
     
      
      . Cousins v. Henry, 332 So.2d 506 (La.App. 4th Cir. 1976); Spiers v. Lane, 278 So.2d 549 (La. App. 1st Cir. 1973) and Day v. National U. S. Radiator Corporation, 241 La. 288, 128 So.2d 660 (1961).
     