text:
    Paul C. RICHARD, Plaintiff-Appellant, v. Emery SONNIER et al., Defendants-Appellees.
    No. 6654.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1978.

      Domengeaux & Wright by Bennett Boyd Anderson, Jr., Lafayette, for plaintiff-appellant.
    Cooper & Sonnier by Paul J. Hebert, Abbeville, for defendants-appellees.
    Before WATSON, GUIDRY and FORET, JJ.
   WATSON, Judge.

The dispositive issue presented by this appeal is whether there was manifest error in the trial court’s conclusion that plaintiff’s accident was caused by his own negligence. Plaintiff, Paul C. Richard, has appealed from a trial court judgment dismissing his suit.

Richard, president of Venetian Manufacturing & Sales Corporation, was employed by defendant, Emery Sonnier, president of E. Sonnier 66 Oils, Inc., to install an awning on his business establishment in Abbeville, the Handy Mart. Richard and his brother, an employee of Venetian Manufacturing, arrived at the Handy Mart store at 8:30 A.M. on February 5, 1975. In order to brace the awning, plaintiff entered the attic of the Handy Mart. The store had a suspended ceiling over approximately three quarters of the building and a solid ceiling over the remaining fourth. The awning was installed over that portion of the building which coincided roughly with the solid ceiling. The north end of the awning extended to the place where the solid area terminated and the suspended ceiling began. After installing three braces in the solid area of the attic, Richard attempted to install a fourth brace over the line of demarcation between the solid and suspended ceilings. During this effort Richard fell through the suspended ceiling and injured himself. The accident occurred around 2:30 P.M., after he had been working at the Handy Mart for five to six hours.

Richard had been provided a flashlight by Romain Boudreaux, the store manager, to facilitate his movements in the attic area, which had poor illumination where the fall occurred. Boudreaux testified that he described the suspended ceiling to Richard, and warned him to be careful in that area. Richard testified to the contrary: that Bou-dreaux informed him the attic was solid where he would be working. Boudreaux and Glen Toups, also a Handy Mart employee, testified that Richard had been inside the store on at least one prior occasion when he could have observed the suspended ceiling. Richard and his brother denied ever having been inside the store and stated that Richard entered the premises from a side entrance where he could not see the suspended ceiling. Richard is totally blind in the left eye; although this fact was never disclosed to defendants or their employees.

In order to ascertain whether the landowner breached a legal duty imposed to protect against a particular risk involved:

“. . . the following inquiries must be made: (1) What, if any, duty was owed by the landowner to the plaintiff? (2) Was there a breach of this duty? (3) Was the risk and harm caused, within the scope of protection afforded by the duty breached?” Shelton v. Aetna Casualty & Surety Company, 334 So.2d 406 at 410 (La., 1976).

The common law classifications of invitee-licensee-trespasser are of little help; the proper test to be applied in determining a landowner’s liability under Civil Code Articles 2315 and 2316 is:

. . . whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others, and, although the plaintiff’s status as trespasser, licensee, or invitee may in light of the facts giving rise to such status have some bearing on the question of liability, the status-is not determinative.’ ” Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 at 371 (La., 1976).

We agree with the trial court that, under the facts presented here, defendant owed Richard a duty to discover any unreasonably dangerous condition on the premises and either correct it or warn of its existence. Shelton v. Aetna Casualty & Surety Company, supra. The duty of a landowner is not to insure against the possibility of an accident of his premises but to act reasonably in view of the probability of injury to others. Thus, the landowner is not liable for injury resulting from a condition which should have been observed by an individual with the exercise of reasonable care or which was as obvious to a visitor, as to the landowner. The trial court concluded that the landowner’s duty was not breached by defendants here.

Considering plaintiff’s 25 year experience in installing awnings; his familiarity with attics and suspended ceilings, which are easily observable; his presence inside the Handy Mart several times on the day of the accident; his entrance to the attic on four separate occasions prior to the accident, and Boudreaux’s warning and description of the attic area accompanied with the flashlight, we agree that the suspended ceiling area should have been observed and avoided by Richard.

There is no manifest error in the trial court’s conclusion that plaintiff’s own negligence caused his fall. This finding is reasonably supported by the evidence in the record.

For the foregoing reasons, the judgment appealed from is affirmed. All costs are assessed to plaintiff-appellant.

AFFIRMED.

      . The trial judge also visited and inspected the accident site.


source: Caselaw Access Project

author: DOMENGEAUX, Judge. CULPEPPER, Judge,

license: Public Domain

text:
    J. D. SUIRE et al., Plaintiffs-Appellees, v. Lovelace PRIMEAUX, Defendant-Appellant.
    No. 6660.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1978.
    Writ Refused Dec. 1, 1978.

      Darrell D. Desormeaux, Lafayette, for defendant-appellant.
    Irby Hebert, Jr., Abbeville, for plaintiffs-appellees.
    Before CULPEPPER, DOMENGEAUX and CUTRER, JJ.
   DOMENGEAUX, Judge.

Plaintiffs-appellees, heirs of Eugene Suire and Alzire Landry, instituted this pos-sessory action against defendant-appellant, Lovelace Primeaux, and sought an injunction preventing his disturbance of their peaceable possession of a 21.281 acre tract on or at Grosse Isle in Vermilion Parish, Louisiana.

Defendant answered the petition and, by way of reconventional demand, asserted ownership of a tract of land measuring one arpent wide and six arpents long (hereinafter referred to as the six arpent tract), which is located within the boundaries of the 21.281 acre tract of which plaintiffs claim possession.

By asserting ownership of the six arpent tract, defendant converted this suit into a petitory action. La.C.C.P. Art. 3657.

Defendants in reconvention, the Suire heirs, filed a peremptory exception of thirty years acquisitive prescription. Trial of this exception resulted in its being sustained by the trial judge, and Lovelace Primeaux’s reconventional demand was ordered dismissed.

Defendant-plaintiff in reconvention, Lovelace Primeaux, has perfected this devol-utive appeal from said judgment.

MOTION TO DISMISS

Appellees have filed a motion in this Court to dismiss appellant’s appeal. The motion is opposed. The judgment sustaining the plaintiffs’ (defendants in reconvention) exception of thirty years prescription, which dismissed the original defendant’s petitory action, was signed on November 23, 1977. The Clerk of the trial court mailed notice of the signing of the judgment to counsel of record for each party on the same day. On January 24, 1978, the defendant, Lovelace Primeaux, moved for and obtained a devolutive appeal, and the bond therefor was set at the sum of $1,500.00.

In support of their argument favoring dismissal, the appellees’ objections are, first, that the appeal bond was not filed; and second, that costs have been untimely paid.

Since no security is required for a devolutive appeal (La.C.C.P. Art. 2124), the appellees’ first objection is without merit. As to the second objection, the proper forum to determine whether or not costs have been timely advanced is the trial court (La. C.C.P. Art. 2126).

For these reasons, appellees’ Motion to Dismiss is denied.

MERITS OF THE APPEAL

Appellant suggests numerous specifications of error, which, in condensed form, have to do with the trial judge’s conclusions on credibility of witnesses, the disproportionate amount of witnesses who testified by way of deposition and the weight to be attached to that testimony, the impropriety of dismissing his petitory action reconven-tional demand by virtue of sustaining the exception of thirty years prescription, the sufficiency of the evidence to prove thirty years acquisitive prescription, and the allowance of tacking by appellees.

In response, we note at the outset that the procedure of asserting thirty years acquisitive prescription by way of an exception has been authorized and approved by the Louisiana Supreme Court. Montgomery v. Breaux, 297 So.2d 185 (La.1974). The effect of sustaining the peremptory exception is to dismiss plaintiff in reconvention’s petitory action and does not determine ownership of the subject property. La.C.C.P. Art. 934; Montgomery v. Breaux, supra.

We also note that, although the majority of the witnesses testified by way of deposition, the findings of fact of the trial judge are nevertheless entitled to great weight. Gradney v. Vancouver Plywood Company, Inc., 299 So.2d 347 (La.1974).

We have reviewed and considered the circumstances under which many witnesses testified by way of depositions, and readily conclude that, under the circumstances, the trial judge did not err in ordering said depositions.

The only substantial issue which we deem appropriate for more in depth discussion is whether the Suires, defendants in reconvention, have proven all of the elements necessary to prevail in its peremptory exception of thirty years acquisitive prescription, which included the use of tacking.

LSA-C.C. art. 3499 provides:

“The ownership of immovables is prescribed for by thirty years without any need of title or possession in good faith.”

LSA-C.C. art. 3500 provides:

“The possession on which this prescription is founded must be continuous and uninterrupted during all the time; it must be public and unequivocal, and under the title of owner.”

LSA-C.C. art. 3501 provides:

“The possession necessary for this species of prescription, when it has commenced by the corporal possession of the thing, may, if it has not been interrupted, be preserved by external and public signs, announcing the possessor’s intention to preserve the possession of the thing, as the keeping up of roads and levees, the payment of taxes, and other similar acts.”

The type of corporeal possession required to support a plea of thirty year acquisitive prescription is determined in each case by the use to which the land is destined by nature. Succession of Kemp v. Robertson, 316 So.2d 919 (La.App. 1st Cir. 1975). One who does not have apparent title will ordinarily be considered as possessing only that part of the property over which he exercises actual, adverse, corporeal possession by enclosures, and his claim will not extend beyond those enclosures. His possession under those circumstances must be evidenced by an enclosure of some type to definitely fix its limits, or it must be evidenced by some external and public sign sufficient to give notice to the public of the character and extent of the possession. Johnson v. La Bokay Corporation, 326 So.2d 589 (La.App. 3rd Cir. 1976) and cases cited therein. The privilege of tacking on to one’s possession that of a predecessor in title is applicable to pleas of thirty years acquisitive prescription when there is privity of contract between the possessor and his vendor or predecessor. “Privity” in such instances denotes merely a succession of relationship to the same thing whether created by an act or by the operation of law. Bunn v. A. J. Hodges Industries, Inc., 279 So.2d 268 (La.App. 2nd Cir. 1973) and cases cited therein.

Applying the principles enunciated above to the facts of the instant suit, we agree with the trial judge that defendants in reconvention have proven all of the necessary elements of thirty years acquisitive prescription. The preponderance of the evidence indicates that the 21.281 acre tract, known as the Suire estate, has been continually possessed by the Suire descendants or their assigns for a period of approximately fifty years prior to the disturbance by Lovelace Primeaux. Since 1922, the property has been bounded by drainage canals on the north and east and barbed wire fences on the west and south. These fences were maintained over the years by the Suires and their neighbors. On the other hand, the six arpent tract of land, allegedly purchased by defendant in 1947, contained no visible boundaries until defendant’s partial construction of a fence on the southern border of the six arpent tract in 1975. Since 1922, members of the Suire family either resided on the Suire estate or authorized hunting or grazing of cattle on the property. The evidence also indicates that members of the Suire family have grown crops on the land from time to time over the years. In sum, our review of the record indicates that the trial judge’s findings of fact are supported by the evidence.

For the foregoing reasons, the judgment appealed, which sustained plaintiffs-defendants in reconvention’s peremptory exception of thirty years acquisitive prescription and which dismissed defendant-plaintiff in re-convention’s petitory action, is affirmed.

Our affirmation applies only to Pri-meaux’s reconventional demand, and, therefore, the Suires’ principal demand involving the possessory action is still pending. See La.C.C.P. Art. 1038, Meaux v. Hoffpauir, 219 So.2d 551 (La.App. 3rd Cir. 1969), writ refused May 5, 1969.

All costs are assessed to appellant, Lovelace Primeaux.

AFFIRMED.

CULPEPPER, J., concurs and assigns reasons.

CULPEPPER, Judge,

concurring.

I recognize that in Montgomery v. Breaux, 297 So.2d 185 (La.1974) our Supreme Court held that in a petitory action the defendant may file a peremptory exception of the acquisitive prescription of thirty years. The purpose of this concurring opinion is to respectfully suggest that the Court reconsider its holding.

Although I was not a member of the panel which decided this case in the Court of Appeal, I agree with its decision, 285 So.2d 253 (3rd Cir. 1973). In the list of peremptory exceptions under LSA-C.C.P. Article 927, the legislature intended “prescription” to mean only liberative prescription and not acquisitive prescription. As Professor Yiannopolous states in his discussion of Montgomery v. Breaux, 35 La.L. Rev. 278, a paradox is created where there is a successful plea of acquisitive prescription as a peremptory exception in a petitory action. Although the exceptor proves he is the owner, he cannot be recognized as owner in the judgment sustaining the exception. If he wishes to be declared the owner, he must bring another action for declaratory judgment. He cannot file a petitory action, because he is in possession. As Professor Yiannopolous suggests, the preferable procedure is for the defendant in the petitory (or possessory) action to file a re-conventional demand asserting his ownership by the acquisitive prescription of thirty years. On the trial of such a reconventional demand, the successful plaintiff in recon-vention could be declared owner and the litigation would be ended.

I am forced to disagree with the suggestion by Professor Yiannopolous that the Supreme Court’s broad interpretation of Article 927, so as to allow the pleading of the peremptory exception of acquisitive prescription, tends to speed up proceedings. On the contrary, it is my view that it tends to cause confusion and to lengthen proceedings, as it did in Montgomery v. Breaux and in the present case.

      . In the early stages of this controversy at the hearing for preliminary injunction, the parties stipulated that both plaintiffs and defendant be enjoined, during the pendency of the proceedings, from building new or destroying all fences, cutting down or destroying trees or other foliage, or discharging firearms on the property described in plaintiffs’ original posses-sory action petition.


author: WATSON, Judge.

text:
    Nina Mae BROWN v. STATE FARM FIRE & CASUALTY COMPANY et al.
    No. 6668.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1978.

      Carey D. Bearden, Lafayette, for plaintiff-appellant.
    Camp, Carmouche, Palmer, Carwile, Barsh & Hunter by James E. Williams, Stockwell, Sievert, Viccellio, Clements & Shaddock by Fred H. Sievert, Jr., Lake Charles, for defendants-appellees.
    Before WATSON, GUIDRY and FORET, JJ.
   WATSON, Judge.

The substantial issue presented in this appeal is whether plaintiff, Nina Mae Brown, had an insurable interest in certain property, which was destroyed by fire after she lost it at a sheriff’s sale.

When she defaulted in her mortgage payments, Ms. Brown’s property was seized and sold on September 19, 1973, to United Companies Mortgage and Investment of Lake Charles, Inc., the second mortgagee. On October 23,1973, the residence on the property was destroyed by fire. Ms. Brown instituted this suit against defendant, State Farm Fire & Casualty Company, seeking recovery of the proceeds of an insurance policy covering the property. United intervened, asking for the proceeds by virtue of their mortgage and/or the interest acquired at the sheriff’s sale.

A motion for summary judgment by United was sustained by the trial court, which recognized United’s acquisition of all right, title and interest of Ms. Brown to the proceeds of the policy issued by State Farm. A motion for summary judgment by State Farm was denied.

A peremptory exception of no right and/or no cause of action filed by State Farm was sustained and plaintiff’s suit dismissed.

Plaintiff has appealed from both judgments.

LSA-R.S. 22:614 provides:

“A. No contract of insurance on property or of any interest therein or arising therefrom shall be enforceable except for the benefit of persons having an insurable interest in the things insured.
“B. ‘Insurable interest’ as used in this Section means any lawful and substantial economic interest in the safety or preservation of the subject of the insurance free from loss, destruction or pecuniary damage.”

An insurable interest must exist not only at the time the policy was written but also at the time of the loss. Union Cent. Life Ins. Co. v. Harp, 203 La. 806, 14 So.2d 643 (1943).

Plaintiff lost ownership of the insured property when it was sold at sheriff’s sale to United. As a result of the adjudication, United acquired all rights and claims of the judgment debtor, plaintiff Brown, as completely as if she had sold the property directly. LSA-C.C.P. art. 2371. Since plaintiff did not have a “substantial economic interest” in the real property at the time of the loss, she has no remaining interest in the proceeds of the policy issued by State Farm. Allen v. Houston Fire & Casualty Insurance Co., 243 So.2d 905 (La.App. 3 Cir. 1971), cited in appellant’s brief, involved a situation where the loss occurred after seizure but before the foreclosure sale while the loss here occurred subsequent to the sale.

The trial court was correct in granting United’s motion for summary judgment and dismissing plaintiff’s suit against State Farm on what can be described as “No right of action, or no interest in the plaintiff to institute the suit.” LSA-C.C.P. art. 927(5).

For the reasons assigned, the judgment is affirmed at appellant’s cost.

AFFIRMED.

      . Ms. Brown’s claims for fire damage to her personal property and loss of income were compromised and dismissed.


text:
    Wesley J. HEBERT, Plaintiff and Appellee, v. LOFFLAND BROTHERS and Travelers Insurance Company, Defendants and Appellants.
    No. 6680.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1978.
    Caffery, Duhe & Davis, Jerry A. Oubre, New Iberia, for defendants and appellants.
    Landry, Watkins, Cousin & Bonin, Jacob D. Landry, New Iberia, for plaintiff and appellee.
    Before CULPEPPER, DOMENGEAUX, and CUTRER, JJ.
   DOMENGEAUX, Judge.

This is a workmen’s compensation case in which the trial judge awarded plaintiff benefits for total and permanent disability, plus penalties and attorney’s fees. Defendants are Loffland Brothers, the employer, and Travelers Insurance Company, the insurer. They appeal only that portion of the judgment which awards penalties and attorney’s fees.

The issues are:

(1) Whether plaintiff is entitled to statutory penalties and attorney’s fees because of failure to reinstate benefits (La.R.S. 22:658); and

(2) If so, was the award of attorney’s fees in the amount of $2,500.00 excessive?

Plaintiff worked as a derrick man on an oil rig. He sustained extensive injuries on January 9, 1974, when he fell some fifteen or twenty feet. These injuries included trauma to the head, which induced unconsciousness, a broken arm, several broken ribs, a fractured scapula, lacerations to the head and arm, and back injuries. All of plaintiff’s injuries, except those to the back, ultimately healed. Consequently, the issues involving penalties and attorney’s fees revolve around the back injury.

Plaintiff was seen and treated medically from the time of the accident. He returned to work with his employer as a floorhand (roughneck) on July 2, 1974. Although the jobs of derrick man and floorhand are different, both require strenuous activity. At the time of his return to work, his maximum compensation benefits were terminated by Travelers.

After working a few months as a floor-hand, plaintiff complained of persistent pain in his back, and, in November 1974, when an opening came up on another rig, plaintiff was assigned the job of a motorman. This is a lighter type work than that which he had been performing.

On May 13, 1975, the rig on which plaintiff was employed was stacked, and plaintiff lost his job. About two weeks subsequent to the layoff, plaintiff was offered a job as a floorhand by his employer, but he refused, stating that he was unable to do this type of work because of pain in his back. Plaintiff instituted this suit on March 15, 1976, and, based on subsequent medical developments, which will be discussed hereinafter, defendant, Travelers, reinstated compensation on July 1, 1976, and paid all arrearages.

Plaintiff was treated by Dr. Ethel Smith from the time of the accident until July 2, 1974, when she certified plaintiff as being able to return to his regular duties. He was seen by Dr. Fred C. Webre, an orthopedic surgeon, on April 24,1974, primarily for difficulties in the right knee, and the doctor reported generally that there was no particular problem with the knee and that there was no reason to believe that plaintiff would have any type of impairment in that connection. Doctor Webre saw plaintiff again on September 30, 1974, and reported that the lower back showed a transverse of the L-2 vertebrae on the right, which was apparently split in an old injury. The doctor was unsure as to whether this was caused by the injury of January 9, 1974. He did think, however, that plaintiff should continue to work as he had been doing. Doctor Webre saw plaintiff again on November 14, 1974, and plaintiff complained that, although he was continuing his work, he was doing so with difficulty and pain. Doctor Webre thought that the lower back was clear, but recognized that plaintiff appeared to have legitimate difficulties. The doctor also thought that, inasmuch as plaintiff was continuing to work, he should begin wearing a back brace in order to alleviate difficulties experienced on the job. Plaintiff returned to Doctor Webre on December 16, 1974. This was after plaintiff had changed his job to that of motorman and during the time in which plaintiff was wearing the recommended back brace. At that time Doctor Webre suggested that plaintiff continue his employment and try to wean out of the back brace in time. The doctor indicated that there were no specific findings upon which a diagnosis of disc herniation could be made.

On March 17, 1975, a myelogram was performed on plaintiff by Doctor Brendon Miles, a radiologist, at the request of Doctor Webre. This resulted in negative findings. On April 17, 1975, Doctor Webre reported that plaintiff had returned to work after the myelography and thought that there was no need for further orthopedic treatment.

Plaintiff was examined by Dr. Stuart Phillips, an orthopedic surgeon, on June 11, 1975. On July 3, 1975, plaintiff’s attorney mailed to defendant Travelers a copy of Doctor Phillips’ report, which indicated that plaintiff was unable to return to his prior occupations of either derrickman or motorman and which estimated plaintiff’s disability at ten percent. On August 13, 1975, plaintiff’s attorney received a letter from defendant Travelers requesting an examination of plaintiff by Dr. H. R. Soboloff, a third orthopedic surgeon. On August 26, 1975, plaintiff’s attorney refused an examination by Doctor Soboloff, but suggested a re-examination by Doctor Webre. On September 22,1975, the appointment for re-examination by Doctor Webre was not kept by plaintiff on advice of his counsel. On November 18,1975, plaintiff’s attorney furnished a report by Dr. Richard W. LeBlanc, a fourth orthopedic surgeon, which indicated that plaintiff was unable to participate in heavy manual labor.

As indicated above, plaintiff instituted this suit on March 15, 1976. On May 6, 1976, Doctor Webre re-examined plaintiff pursuant to a Court Order. This report, which was received by Travelers’ adjuster in the middle of May, 1976, showed that plaintiff had a disc injury. Doctor Webre, from his examination of plaintiff, and a review of the x-rays and a discogram which had been performed by Doctor LeBlanc, concluded that plaintiff had an abnormality at the lumbo-sacral disc space, and therefore recommended that the lumbo-sacral disc space should be explored and evacuated. Shortly after this report, as previously mentioned, Travelers paid all past due benefits and continued to pay maximum benefits thereafter.

When a workmen’s compensation insurer fails to make payments within sixty days after receipt of proof of loss and such failure is found to be arbitrary, capricious, or without probable cause, the insurer is subject to a penalty, in addition to the amount of the loss, of twelve percent damages on the total amount of the loss, together with all reasonable attorney’s fees for the prosecution and collection of such loss. La.R.S. 22:658. Thus, the substantial issue presented on this appeal is whether Travelers’ failure to resume compensation benefits prior to July 1,1976, was arbitrary, capricious, or without probable cause.

Appellants place reliance on Doctor Webre’s report of April, 1975, which indicated that plaintiff was able to work, and the fact that plaintiff failed to keep his appointment for re-examination with Doctor Webre on September 22, 1975. It is now settled that an employer may not terminate the payment of compensation benefits to a disabled employee solely because the employee fails to report for a medical examination arranged by the employer. Green v. Liberty Mutual Insurance Company, 184 So.2d 801 (La.App. 3rd Cir. 1966), and Richardson v. Weitz Company, 202 So.2d 361 (La.App. 1st Cir. 1967).

Generally, the termination of compensation benefits by an insurer, based on competent medical reports or evidence, is not arbitrary, capricious, or without probable cause within the meaning of the compensation statute. However, the existence of conflicting medical reports may not, under all circumstances, justify the nonpayment of benefits, either by discontinuance or failure to reinstate. For example, our Supreme Court in the case of Walker v. Gaines P. Wilson & Son, Inc., 340 So.2d 985 (La.1976), stated:

“[I]f subsequent to an initial optimistic report, an insurer receives medical information indisputably showing disability at a subsequent date, the insurer may not blindly rely upon the early report and solely on its basis avoid penalties for arbitrary non-payment of compensation benefits indisputably due a disabled workman.” [Citations omitted]

The evidence shows that following plaintiff’s refusal to report for re-examination by Doctor Webre, Travelers made no further requests or demands and made no further investigation of the claim until after suit was filed in March of 1976. It is undisputed that in November of 1975, Travelers had in its possession two reports of competent physicians indicating that plaintiff was disabled. The only contrary information which Travelers had at that time was the report of Doctor Webre of April, 1975, some seven months old, which indicated that plaintiff could work. The defendants knew that plaintiff had been wearing a brace for the last six months in which he worked. They should have known that even Doctor Webre must have been concerned about plaintiff’s physical condition, inasmuch as he had ordered the myelogram performed on plaintiff in March, 1975. Appellants’ reliance on Doctor Webre’s report of April, 1975, is unwarranted under the circumstances present in this suit. Of significance in this overall picture is the fact that Doctor Webre, as early as November 14, 1974, recognized that plaintiff appeared to have legitimate back difficulties and recommended that he wear a back support at a time when he was performing the less strenuous work of a motorman. The defendant Travelers should have conducted further medical investigations of plaintiff’s condition, particularly after receiving a second report by a qualified orthopedic surgeon showing disability. Only the filing of suit in March of 1976, caused Travelers to take the necessary action in bringing a rule before the District Court to require plaintiff to be re-examined by Doctor Webre.

We feel that the rationale in Walker, supra, applies here, and we consequently conclude that attorney’s fees were properly awarded by the District Judge.

Concerning the issue of the exces-siveness of attorney’s fees, it is well settled that the amount awarded therefor is left largely to the discretion of the trial court. Artigue v. Louisiana Farm Bureau Mutual Insurance Company, 339 So.2d 880 (La.App. 3rd Cir. 1976). We note that the trial judge properly took into consideration the degree of skill and amount of work involved; the number of court appearances; the number of depositions taken; the amount of office work; and the length of time spent in court. Our review of the record indicates that the amount awarded by the trial court as attorney’s fees was not unreasonable.

For the reasons assigned, the judgment appealed from is affirmed. The costs of this appeal are assessed to appellants.

AFFIRMED.

CULPEPPER, J., dissents and assigns written reasons.

CULPEPPER, Judge,

dissenting.

It is my view that both the trial judge and the majority in this Court have erred as a matter of law in applying to the present case the jurisprudential rule that an employer who is paying workmen’s compensation benefits may not terminate those payments on the grounds that the employee refuses to submit to an extrajudicial medical examination. The present case does not involve an employer terminating benefits. This case involves an employer’s refusal to resume payments. I think this is an important distinction, as will be more fully explained hereinafter.

Although I agree generally with the statement of fact in the majority opinion, I would like to emphasize certain additional facts. In July of 1974, Dr. Ethel Smith, who was the original treating physician, discharged plaintiff with a report that he was able to return to work as a roughneck, the same work which he was performing at the time of the accident. At this time, plaintiff actually did return to work as a roughneck.

After he returned to work, plaintiff complained of pain in his back, so Dr. Smith referred him to Dr. Webre, an orthopedic surgeon. Dr. Webre saw plaintiff several times but never could find any objective symptoms to support plaintiff’s subjective complaints. Dr. Webre even ordered a my-elogram, which was performed on March 17, 1975 and was negative. So, on April 17, 1975, Dr. Webre issued a report to the defendants stating:

“This patient is seen April 17, 1975. He is working and apparently doing well. His neurological examination of the lower extremities is again within normal limits. I would see nothing here for which further orthopedic treatment would be indicated.”

On May 13, 1975, the rig on which plaintiff was employed was stacked, and Hebert lost his job. Prior to this time, he had worked steadily since July 2, 1974. About two weeks subsequent to the lay-off, Hebert was offered a job as a floor hand by Loffland, but he refused.

Shortly thereafter, the plaintiff, at the instigation of his attorney, was examined only one time by Dr. Stuart Phillips, an orthopedic surgeon in New Orleans. On July 3, 1975, plaintiff’s attorney mailed to Travelers a copy of Dr. Phillips’ report, which indicated that the plaintiff was unable to return to his prior occupation.

About two weeks after receipt of Dr. Phillips’ report, Travelers requested an examination of the plaintiff by Dr. H. R. Soboloff, a third orthopedic surgeon. The plaintiff’s attorney replied on August 26, 1975 that Hebert would not submit to such an examination, but he would agree to another examination by Dr. Webre. Accordingly, Travelers notified the plaintiff an appointment with Dr. Webre had been made for him on September 22, 1975. The plaintiff did not keep this appointment.

On November 18, 1975, plaintiff furnished Travelers with a second report by yet another orthopedic surgeon, Dr. Richard W. LeBlanc. Dr. LeBlanc found the plaintiff ten per cent disabled because of back difficulties.

Plaintiff filed this suit on March 15,1976. After again requesting that plaintiff be examined by Dr. Webre, and plaintiff again refusing, Travelers obtained a court order forcing the plaintiff to submit to an examination by Dr. Webre, the original orthopedic surgeon. On this examination on May 6, 1976, Dr. Webre found the plaintiff disabled by back injuries. On about July 1, 1976, Travelers reinstated compensation payments, paid back benefits from May 13, 1976 to the present, and paid for all the medical expenses.

LSA-R.S. 22:657 provides that an insurer shall pay all claims within sixty days of “satisfactory proof of loss”, or it shall be liable for penalties of twelve per cent of the loss and reasonable attorney’s fees, if the failure to pay the claim is deemed to be arbitrary, capricious, or without reasonable cause.

The jurisprudence is clear that the termination of compensation benefits by an insurer based on competent medical reports or evidence is not arbitrary, capricious or unreasonable within the meaning of the statute. The penalty provision is stricti jur-is and should only be imposed in those instances in which the facts negate probable cause for nonpayment. Crawford v. Al Smith P&H Service, Inc., 352 So.2d 669 (La.1977). In the present case, it is clear the insurer cannot be held for attorney’s fees or penalties for the termination of compensation benefits on July 2, 1974, because it based this decision on the plaintiff’s return to work and the medical reports of two doctors which stated that Hebert was able to return to his prior occupation.

Whether the insurer’s failure to resume compensation payments was arbitrary or capricious is a separate issue. The majority relies on the following quote from Walker v. Gaines P. Wilson & Son, Inc., 340 So.2d 985 (La.1976):

“ . . .if subsequent to an initial optimistic report, an insurer receives medical information indisputably showing disability at a subsequent date, the insurer may not blindly rely upon the early report and solely on its basis avoid penalties for arbitrary non-payment of compensation benefits indisputably due a disabled workman.” (Emphasis supplied)

The facts of Walker are distinguished from the instant case in two respects. First, in Walker, when the plaintiff was discharged and returned to work, the physician specifically stated the patient suffered a five to ten per cent disability and that he could not perform the more strenuous aspects of his prior occupation. In the present case, both Drs. Smith and Webre discharged Hebert without equivocation. Secondly, in Walker, the court specifically points to the insurer’s failure to obtain additional medical evidence, the insurer’s failure to contact the first doctor, and the short length of time between the accident and the termination of payments. In the instant case, Travelers attempted to arrange two separate medical examinations. When faced with the contradicting medical reports, and the fact that plaintiff had actually performed strenuous labor for approximately ten months after his return to work, the insurer made a good faith attempt to resolve the differences. Travelers did not rely “blindly” or “solely” on the previous medical reports, and therefore did not act unreasonably, arbitrarily or capriciously.

The cases cited by the Supreme Court in Walker are also distinguished from the facts of the present case. In Seal v. Lionel F. Favret Company, 238 La. 60, 113 So.2d 468, as in Walker, the first medical report indicated that the plaintiff might well have future trouble with his back and that the return to work was only a trial. In Stockstill v. Bituminous Casualty Corporation, 144 So.2d 918 (La.App. 4th Cir. 1962), the second medical report showing disability was made by the same doctor who had initially examined the plaintiff and upon whose original finding of no disability the insurer was relying in refusing compensation.

Plaintiff-appellee contends the insurer had no right to refuse the resumption of compensation payments based upon the plaintiff’s refusal to submit to the arranged medical examinations. He contends it was the duty of the defendant-insurer to obtain a court order for the medical examination. LSA-R.S. 23:1124 states that an employee’s right to compensation is suspended when he refuses to submit to a medical examination arranged by the employer. The circuit courts, including this one, have consistently read this statute in conjunction with LSA-R.S. 23:1123, and have held that before compensation benefits can be terminated, based on an employee’s failure to submit to a medical examination, there must be a court determination as to the reasonableness of that examination. Green v. Liberty Mutual Insurance Company, 184 So.2d 801 (La.App. 3rd Cir. 1966); and Richardson v. Weitz Company, 202 So.2d 361 (La.App. 1st Cir. 1967). The trial judge based his decision largely on these cases.

The issue in the instant case, however, deals not with the termination of benefits, but with the insurer’s failure to resume the payment of benefits. When an insurer terminates compensation payments, the burden of proof that such action was warranted lies on him. However, when a claimant asks that compensation payments be initiated or resumed, he must furnish the insurer or employer with satisfactory proof of his loss. LSA-R.S. 22:658. In the instant case, the insurer’s refusal to resume compensation benefits was not based on the plaintiff’s refusal to submit to a medical examination. Instead, the refusal to resume compensation payments was based on the insurer’s inability to resolve the conflict between the individual reports furnished by Drs. Smith and Webre and those furnished by Drs. Phillips and LeBlanc. Faced with conflicting medical evidence and the plaintiff’s refusal to meet his burden of proof, the insurer had probable cause to refuse the resumption of benefits.

For the reasons assigned, I respectfully dissent.


author: FORET, Judge. CULPEPPER, Judge,

text:
    John Henry LEES, Plaintiff-Appellant, v. Donald C. SMITH, Defendant-Appellee.
    No. 6590.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 16, 1978.

      Gravel, Roy & Burnes, T. Gerald Henderson, Alexandria, Thomas G. Wilson, Colfax, for plaintiff-appellant.
    Bolen, Halcomb & Erwin, Roy S. Hal-comb, Jr., Alexandria, R. L. Davis, Jr., Monroe, for defendant-appellee.
    Before CULPEPPER, DOMENGEAUX, WATSON, FORET and CUTRER, JJ.
   FORET, Judge.

This case involves an action for damages for an alleged false accusation of criminal conduct, abuse of process, and malicious prosecution. The suit was instituted on December 3,1976, by John Henry Lees against Donald C. Smith.

On December 30, 1976, defendant Smith filed a third party demand against Commercial Union Insurance Company, who issued his homeowners insurance policy, alleging that the policy covered such “occurrences” and that the insurer had denied coverage and refused to afford Smith a defense against Lees.

Smith also instituted a malicious prosecution and/or defamation action against Lees by way of reconventional demand.

The principal demand was settled the morning of the trial when Commercial Union and Lees agreed to a compromise. The issues in the suit, however, were left open for adjudication, subject to the agreement that if it were decided in favor of Lees, the amount of damages would be that stipulated by Commercial Union and Lees.

The trial court rendered judgment in favor of Smith and against Lees for $3,250.00 which included punitive damages and attorneys fees. The third party demand against Commercial Union was dismissed by the trial court in its judgment of December 23, 1977.

Lees perfected this suspensive appeal from the above judgment, and Smith answered Lees’ appeal seeking an increase in damages. Smith also perfected a devolu-tive appeal from the dismissal of his third party demand against Commercial Union.

The issues presented on this appeal are:

(1) Did the trial court err in finding that Smith had proven all the elements of malicious prosecution;
(2) Did the trial court err in failing to find Lees’ judicial allegations were protected by qualified privilege;
(3) Did the trial court err in awarding punitive damages and attorney’s fees;
(4) Did the trial court err in failing to find that Lees’ petition and other statements had defamed Smith;
(5) Should the damages and attorney’s fees awarded by the trial court be increased;
(6) Did the trial court err in dismissing a third party demand by Smith against Commercial Union Insurance Company.

FACTS

Lees and Smith are neighbors in a rural section of LaSalle Parish, which is “open range” for free-roaming cattle.

This controversy began on October 12, 1975, when Lees penned up a “stray” cow which had been grazing in his pasture with his cattle. Smith later proved the cow belonged to him.

Lees was unsuccessful in his attempt to determine the owner by having the Livestock Brand Commission check the number on the brucellosis test tag, which is referred-to as a “bangs tag”. Subsequently, on November 27, 1975, Lees placed a classified advertisement in the Jena Times which read:

“Notice: Taken up at my place. One head of cattle. Owner may have same by completely identifying animal, pay cost of feed and advertisement.
Phone 992-2807.
Henry Lees.”

Smith saw the advertisement and drove past Lees’ pasture where he saw an animal he believed to be his.

Lees and Smith had apparently had prior disagreements, and Smith, therefore, made no attempt to contact Lees on his own. Rather, he sought and received the aid of the LaSalle Parish Sheriff’s Office. A deputy sheriff escorted Smith to Lees’ home to inspect the cow. The deputy approached Lees, but was told he could view the cow only if he had a search warrant.

On November 28, 1975, a second deputy approached Lees and was also told that he must obtain a search warrant. The deputy then went to Smith’s house where Lees shortly appeared and told the deputy that he could check the bangs tag number on the cow. This was done but it failed to match the numbers Smith said belonged to him.

Smith subsequently visited the district attorney on December 3, 1975. The cow was released on December 4, 1975. Smith gave a written statement to the district attorney on December 6, 1975. On or about December 16, 1975, Smith retrieved the cow.

The district attorney presented the matter to the grand jury which returned an indictment for criminal mischief against Lees on or about February 9, 1976. Lees and Smith both testified before the grand jury. Lees was tried and acquitted of the charge. Lees, in proper person, instituted his suit against Smith for malicious prosecution on December 3,1976. Smith answered, and, by way of reconventional demand, brought suit against Lees on December 20, 1976; his third party demand against Commercial Union was filed on January 3,1977.

As noted above, Lees’ suit was compromised and did not come to trial; it is not before us on appeal.

Plaintiff-in-reconvention (Smith) urges defamation and malicious prosecution, as well as conversion on the part of Lees. Careful examination shows that the first two claims are actually two distinct offenses, both jurisprudentially recognized in Louisiana under Article 2315 of the Civil Code. Defamation (in the common law, libel and slander) is perhaps best described by Prosser as “an invasion of the interest in reputation and good name”. Handbook of the Law of Torts, Section 111, at 737 (4th Ed., 1971). The essential elements in Louisiana for a successful action in defamation are: (1) defamatory words, (2) communication to persons other than the one alleging the action, (3) falsity, (4) malice, actual or implied, (5) resulting injury. Madison v. Bolton, 234 La. 997, 102 So.2d 433 (1958); Rougeau v. Firestone Tire & Rubber Co., 274 So.2d 454 (La.App. 3 Cir. 1973); Sas Jaworsky v. Padfield, 211 So.2d 122 (La. App. 3 Cir. 1968); Carter v. Catfish Cabin, 316 So.2d 517 (La.App. 2 Cir. 1975).

This differs from malicious prosecution which, in a civil case, is the malicious commencement or continuance of a suit, without probable cause, for purposes of harassment. The Louisiana Supreme Court has defined malicious prosecution as being composed of six necessary elements:

“An action for maliciously putting the law in motion lies in all cases where there is a concurrence of the following elements:
(1) The commencement or continuance of an original criminal or civil judicial proceeding.
(2) Its legal causation by the present defendant in the original proceeding.
(3) Its bona fide termination in favor of ' the present plaintiff.
(4) The absence of probable cause for such proceeding.
(5) The presence of malice therein.
(6) Damage conforming to legal standards resulting to plaintiff . . ”
Eusant v. Unity Industrial Life Insurance and Sick Benefit Association of New Orleans, Inc., 195 La. 347, 196 So. 554 (1940); Robinson v. Goudchaux’s, 307 So.2d 287 (La. 1975); Johnson v. Pearce, 313 So.2d 812 (La. 1975).

The trial court held that Smith had fulfilled the requirement of proving the elements necessary for a successful suit in malicious prosecution. This Court disagrees and reverses.

While the trial court correctly cites the six necessary elements for such a suit apparently quoting from the Louisiana Supreme Court’s listing in Eusant, supra, we believe that as regards item 3 of the above list, the trial court erred in allowing Lees’ settlement with Smith’s insurer to be a “bona fide termination in favor of the present plaintiff”.

Actions of this kind are disfavored, and a clear case must be established. Johnson v. Pearce, supra; Sandoz v. Veazie, 106 La. 202, 30 So. 767 (1901).

As shown above in the recitation of the facts, Smith’s insurance company, Commercial Union, settled with Lees on the morning of the trial; however, the record shows that Lees’ suit was not dismissed until January 12,1978. It is noted also that Smith’s action for malicious prosecution was brought by way of answer and recon-ventional demand to Lees’ initial suit. Although not objected to either at trial or upon appeal, malicious prosecution suits are not allowed to be brought by way of reeon-ventional demand. Obviously, when such a suit is brought by way of reconventional demand, requirement number 3, termination of the original suit, has not been met at the time of demand. The policy behind this requirement is apparent: a party bringing a suit should not be made to defend his right to bring such until it is fully determined at trial that the original action was erroneously brought. The possible “chilling effect” on a citizen’s constitutional right to seek redress in the courts is an important consideration. Spencer v. Burglass, 337 So.2d 596 (La.App. 4 Cir. 1976). After such judgment, the original party defendant may then bring an action for malicious prosecution when he then must prove all elements of his suit.

Nor is this Court able to find that Lees acted without probable cause in his initial civil suit against Smith (requirement number 4). Due to the somewhat extraordinary attention this one cow was given by all parties to this action culminating in Mr. Lees’ arrest, apparently on information supplied by the plaintiff-in-reconvention (Smith), Mr. Lees had sufficient cause to believe the truthfulness of his allegations against Smith.

“Probable cause does not depend merely upon the actual state of facts, but upon the defendant’s honest belief of the facts in making the charge against the plaintiff.” Carter v. Catfish Cabin, supra. See also Jefferson v. S. S. Kresge Co., 344 So.2d 1118 (La.App. 3 Cir. 1977) and Sandoz v. Veazie, supra.

It is specifically noted that actions for malicious prosecution have never been favored in this State and “in order to sustain them a clear case must be established, when the forms of justice have been perverted to the gratification of private malice and the wilful oppression of the innocent”. Eusant, supra, 196 So. at page 556.

Plaintiff-in-reconvention, Smith, also alleged defamation on the part of the original plaintiff, Lees, both by way of Lees’ petition and by various other communications by him. While the trial court did not rule on this allegation, Smith re-urges it upon appeal. This Court, after careful examination of the entire record, does not find defendant-in-reconvention to have defamed plaintiff-in-reeonvention.

Like an action for malicious prosecution, an action in defamation based on the original plaintiff’s petition cannot be brought until final termination of the first suit. The appellate courts of this State have been almost unanimous in so holding. W. B. Thompson & Co. v. Gosserand, 128 La. 1029, 55 So. 663 (1911); Udell, Inc. v. Ascot Oils, Inc., 177 So.2d 178 (La.App. 2 Cir. 1965); Calvert v. Simon, 311 So.2d 13 (La.App. 2 Cir. 1975); Succ. of Cutrer v. Curtis, 341 So.2d 1209 (La.App. 1 Cir. 1976), writ refused 1977; Marionneaux v. King, 331 So.2d 180 (La.App. 1 Cir. 1976).

While it is true in Louisiana that statements made by participants in litigation are not absolutely privileged, as in most other jurisdictions, they are entitled to a qualified privilege “subject to the requirement that statements made by them in judicial proceeding must be material and must be made without malice and with probable cause”. Viera v. Kwik Home Services, Inc., 266 So.2d 732 (La.App. 4 Cir. 1972); Foster v. McClain, 251 So.2d 179 (La.App. 3 Cir. 1971), writ refused, 1971; Waldo v. Morrison, 220 La. 1006, 58 So.2d 210 (1952). We hold that the alleged defamatory statements made by Lees in his petition and at the trial are covered by this privilege. The Court does not find, from the record, any other proof of non-privileged remarks made by Mr. Lees.

Plaintiff-in-reconvention has urged, and the trial court has given him, punitive damages for malicious prosecution. In finding that plaintiff-in-reconvention has failed to prove either malicious prosecution or defamation, we pretermit the issue of whether punitive damages are applicable to a malicious prosecution action.

THIRD PARTY DEMAND

The trial court denied appellee’s third party demand against Commercial Union and dismissed the demand. It held that the insurer owed no duty to defend Smith because the appellant’s petition failed to allege “bodily injury” or “property damage” as those terms are used in the policy, and that the facts brought out at trial likewise failed to support a conclusion that Lees suffered bodily injury or property damage. Furthermore, the trial court held that exclusion D, the standard business pursuit exclusion, applied to the instant case.

Generally, the insurer’s obligation to defend suits against its insured is broader than its liability for damage claims. An insurer’s duty to defend suits brought against its insured is determined by the allegations of the plaintiff’s petition, with the insurer being obligated to provide a defense unless the petition unambiguously excludes coverage. American Home Assurance Company v. Czarniecki, 255 La. 251, 230 So.2d 253 (1969); Ada Resources Inc., et al. v. Don Chamblin & Assoc., Inc., et al., 361 So.2d 1339 (La.App. 3 Cir. 1978).

The appellant alleged that as a result of Smith’s actions, he was subjected to “humiliation” and he suffered “extreme and keen mental anguish and pain” causing him damage in the amount of $15,000.

Our brethren on the Fourth Circuit Court of Appeal dealt with the same issue which faces us, in the case of Levy v. Duclaux, 324 So.2d 1 (La.App. 4 Cir. 1975). The allegations of the plaintiff’s petition in Levy as to the facts forming the basis for the plaintiff’s claim and the plaintiff’s alleged injury or damage are similar to the allegations contained in the appellant's petition in the instant case. Furthermore, the policy involved in Levy defines occurrence and bodily injury in the same language as that used in the policy in question. There is, however, a slight difference in the petitions which would allow one to distinguish the Levy case. In Levy, the plaintiff’s petition included an allegation that the “plaintiff was forcibly and violently seized, assaulted and laid hold of by an employee of the defendant”. Therefore, the plaintiff’s petition in Levy did include an element of bodily contact whereas the petition in the instant case does not.

The Court, in Levy, held that although the petitioner’s itemization of damages failed to clearly include an allegation of bodily injury, the insurer has the obligation to furnish a defense unless the petition unambiguously excludes coverage, and that when all of the allegations are taken together, the only conclusion could be that the petition may be ambiguous, but that it did not unambiguously exclude coverage. The Court therefore held that the insurer was liable to the defendant for their costs of defending the suit.

The insurer, Employers Commercial Union Insurance Company, applied for writs to the Louisiana Supreme Court. The application for writs was denied, (Levy v. Duclaux, 328 So.2d 888 (La. 1976)), although three justices of the Court were of the opinion that the writs should be granted.

We are of the opinion that the definition of bodily injury and property damage in the insurance policy in the instant case fails to unambiguously exclude coverage under the plaintiff’s petition.

The pertinent provisions of the policy state:

“This company agrees to pay on behalf of the insured all sums to which the insured shall become legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies caused by an occurrence.”
“Bodily injury” means bodily injury, sickness or disease, including care, loss of services and death resulting therefrom.
“Occurrence” means an accident including injurious exposure to conditions, which results, during the policy term, in bodily injury or property damage.”

Even if the policy language was considered unambiguous, a person’s reputation is his property, perhaps the most valuable thing he possesses. Snowden v. Pearl River Broadcasting Corp., 251 So.2d 405 (La.App. 1 Cir. 1971), writ refused; Kennedy v. Item Co., 213 La. 347, 34 So.2d 886 (1948); Simpson v. Robinson, 104 La. 180, 28 So. 908 (1900); Joiner v. Weeks (La.App. 3 Cir. 1978—Docket No. 6396).

Therefore, we next consider whether an exclusion in the policy would negate the insurer’s duty to defend. At trial, Commercial Union argued that the injuries suffered by the plaintiff were “intended from the standpoint of the insured” and were therefore excluded from coverage. We find this contention to be without merit. The allegations of the appellant’s petition are broad enough to include recovery based upon negligent, as well as intentional, actions of the appellee.

The trial court also found that the injuries suffered by the appellant as alleged in his petition arose out of a business pursuit of the appellee. It held that even if the assertions of the petition did invoke the personal injury and property damage coverages, this exclusion would justify the insurer’s refusal to admit coverage and defend Smith. We think the trial court erred in applying this exclusion inasmuch as Commercial Union never asserted it as a defense to coverage or its duty to defend. Also, Lees makes no mention in his petition that the injuries he suffered arose out of a business pursuit of Smith.

Accordingly, we hold that Commercial Union was obligated under its contract of insurance to furnish Smith with a defense against the suit instituted by Lees. Commercial Union, therefore, is liable to Smith for the cost of defending this law suit. These costs, at the time of trial, amounted to $2,826.71. We think an additional $500 for cost of litigation incurred in perfecting this appeal is reasonable. This brings the total cost of litigation incurred by Smith to $3,326.71. We therefore hold that the ap-pellee Smith is entitled to judgment against Commercial Union in that amount, together with legal interest thereon from the date of judicial demand until paid, plus other costs of these proceedings, less $40.00 which represents the filing fee for the reconventional demand.

Accordingly, we reverse the judgment of the trial court both as to the reconventional demand by Smith against Lees and as to the third party demand by Smith against Commercial Union and render judgment thereon.

It is ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of Donald C. Smith and against Commercial Union Insurance Company in the sum of $3,326.71, plus legal interest thereon from date of judicial demand.

Costs of this appeal are assessed against Donald C. Smith and Commercial Union, equally.

REVERSED AND RENDERED.

DOMENGEAUX, J., concurs.

CULPEPPER, J., dissents in part and will assign written reasons.

CULPEPPER, Judge,

dissenting in part.

I respectfully dissent from that portion of the majority opinion which reverses the trial judge as to the third party demand by Smith against Commercial Union Insurance Company. It is my view that the third party demand should be rejected.

As stated in the majority opinion, Commercial Union’s policy with Smith covered all sums for which Smith “shall become legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies caused by an occurrence.” In the present case, Smith is being sued for damages for defamation. There is no bodily injury involved in a defamation. As to property damage, a suit for damages for defamation does not involve any injury to property. I cannot accept the argument that a man’s reputation is his “property” within the meaning and intent of the policy.

The majority appears to rely principally on the case of Levy v. Duclaux, 324 So.2d 1 (La.App. 4th Cir. 1975). As I read the Levy case, it supports the view that in the absence of any physical injury, there is no coverage and no duty to defend. The court in Levy emphasized that the plaintiff’s petition in that case alleged a use of physical force during the unlawful arrest in question. I think the Levy case implies that if there had been no use of physical force alleged, there would have been no coverage and no duty to defend. It is also persuasive to me that three justices of our Supreme Court voted to grant writs in the Levy case, 328 So.2d 888 (La. 1976).

For the reasons assigned, I respectfully dissent in part.


text:
    Rayford CURTIS v. STATE of Mississippi.
    No. 50922.
    Supreme Court of Mississippi.
    Oct. 18, 1978.
    Paul D. Snow, III, Jackson, for appellant.
    A. F. Summer, Atty. Gen., by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and WALKER and BROOM, JJ.
    PATTERSON, C. J., SMITH, P. J., and LEE, BOWLING and COFER, JJ., concur.
    SUGG, J., took no part.
   Appeal from Circuit Court, Hinds County; Russel D. Moore, Judge.

AFFIRMED.


text:
    David L. GILLESPIE v. R. D. (Bobby) LADNER, Superintendent of Board of Education of Harrison County, et al.
    No. 50703.
    Supreme Court of Mississippi.
    Oct. 18, 1978.
    O’Barr, Hurlbert & O’Barr, Walter M. O’Barr, Biloxi, for appellant.
    J. Boyce Holleman, Gaston H. Hewes, Jr., Ben F. Galloway, Gulfport, for appellees.
    Before SMITH, P. J., and LEE and COF-ER, JJ.
    PATTERSON, C. J., ROBERTSON, P. J., and WALKER, BROOM and BOWLING, JJ., concur.
    SUGG, J., took no part.
   Appeal from Chancery Court, Harrison County; William G. Hewes, Chancellor.

AFFIRMED.


text:
    Willie EPPS, Jr. v. Sarah F. HATTAWAY and Preston Hattaway.
    No. 50695.
    Supreme Court of Mississippi.
    Oct. 18, 1978.
    Megehee, Brown & Williams, John M. Kinard, Pascagoula, for appellant.
    Levi, Denham & Russell, Dempsey M. Levi, Ocean Springs, for appellees.
    Before SMITH, P. J., and LEE and COF-ER, JJ.
   Appeal from Circuit Court, Jackson County; Darwin M. Maples, Judge.

Affirmed.


text:
    Telitha Kay Smith WARDLOW v. Douglas SMITH.
    No. 50757.
    Supreme Court of Mississippi.
    Oct. 25, 1978.
    Fielding L. Wright, Jr., James H. Heidelberg, Pascagoula, for appellant.
    Roland C. Lewis, Jackson, for appellee.
    Before SMITH, P. J., LEE and COFER, JJ., and JAMES E. BOST, Commissioner.
   Appeal from Chancery Court, Rankin County; Billy G. Bridges, Chancellor.

AFFIRMED.


text:
    In the Interest of Larry SIMMONS and James Timothy Wilder.
    No. 50729.
    Supreme Court of Mississippi.
    Nov. 8, 1978.
    Horan & Horan, Ben F. Horan, Water Valley, Robert L. Williams, Southaven, for appellants.
    A. F. Summer, Atty. Gen., by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and SUGG and BOWLING, JJ.
    COFER, J., took no part.
   Appeal from Youth Court, Yalobusha County; Kermit R. Cofer, Chancellor.

AFFIRMED.


author: WRIGHT, Presiding Judge.

text:
    Robert H. HEATH v. Currie L. COOPER, Sr.
    Civ. 1472.
    Court of Civil Appeals of Alabama.
    Nov. 1, 1978.
    Aubrey 0. Lammons, Huntsville, for appellant.
    Paul L. Millirons, Huntsville, for appellee.
   WRIGHT, Presiding Judge.

This is an action for breach of a written contract. The trial court sitting without jury found in favor of plaintiff Cooper and awarded damages in the amount of $2,622. Defendant Heath appeals.

On February 12, 1976, the parties each owned equal interests in two businesses. They each owned a twenty-two and one-half percent interest in the corporation Budget Rent-A-Car of Huntsville, Inc. Each also owned five percent interest in Holiday Office Center, Ltd., a limited partnership located in Huntsville. They were the only general partners in Holiday Office Center, Ltd., and managed the affairs of the business. Heath was in fact the active managing partner.

After having discussed a trade of interests for several months, the parties executed a contract drawn by the attorney for Heath. That contract provided for an exchange between them of their respective interests in the companies. Heath agreed to receive Cooper’s interest in Holiday Office Center, Ltd., and Cooper agreed to receive Heath’s stock in Budget Rent-A-Car, Inc. Heath also agreed to assume a $12,000 note owed by Cooper to a bank. The contract was declared to be retroactively effective to December 31,1975. The part of the contract alleged to have been breached by defendant is sub-paragraph two of paragraph number “5”. Paragraph “5” is as follows:

“5. Final Dividend Disbursement: It is understood and agreed that the accounting firm of Borland and Borland shall prepare a balance sheet and profit and loss statement as of December 31, 1975 for Budget Rent-A-Car of - Huntsville, Inc. Profits, for the year 1975, shall be distributed to the parties hereto in accordance with the capital stock owned by each party hereto as of December 31, 1975, the report of said accounts and as directed by the Board of Directors of Budget Rent-A-Car of Huntsville, Inc.
“It is further understood that the accounting firm of Dudley, Hopton-Jones, Sims and Freeman shall prepare a balance sheet and profit and loss statement as of December 31, 1975 for Holiday Office Center, Ltd. Profits, for the year 1975, shall be distributed to the parties hereto in accordance with the units of ownership owned by each party hereto as of December 31, 1975, the report of said accounts and the allocation of profits customarily followed by said partnership.
“Heath shall not be entitled to any profits earned by Budget Rent-A-Car of Huntsville, Inc. from and after January 1, 1976. Cooper shall not be entitled to any profits earned by Holiday Office Center, Ltd. from and after January 1,1976.”

The evidence discloses without conflict that the balance sheet and profit and loss statement for each business was prepared as required by the paragraph “5.” It is without dispute that the statement for Rent — A-Car showed a profit on the interest of Heath for the year 1975 of $5,123.23. Cooper sent Heath a check for the corporation in that amount. Heath accepted it, cashed it and paid income tax on it.

The evidence further shows that the profit and loss statement was prepared for Holiday Office Center, Ltd. as required by the contract. It showed a profit on the five percent interest of Cooper for 1975 in the amount of $2,622. An income tax schedule prepared for the partnership showed that amount as taxable income of Cooper. However, none of the profits of the partnership were distributed, but were shown to have been used to pay for capital improvements on partnership property. Each partner’s capital account was credited with his share of the profits. As Cooper’s interest had been conveyed to Heath, Heath’s capital account was credited with the profit earned by both his own and Cooper’s interest in 1975.

The trial court rendered judgment in favor of Cooper and against Heath.

The only issue we can discern presented by argument of Heath is that the court found as fact that the debt claimed by Cooper was owed by the partnership but that the court erroneously entered judgment against Heath individually.

We are unable from the record to find a valid basis for this issue. We conclude that Heath assumes matters not decided by the court. He relies on a colloquy which is stated by the judge to be his reflections of the matters raised by briefs of counsel and the evidence in the case. The judgment rendered is against Heath individually, not against the partnership. It cannot be collected from the partnership. The partnership has never been a party. In his “reflection” the judge finds that the contract is not ambiguous and states, inter alia:

“As I read the contract . . . and its pertinent parts it involves an exchange of two business assets by two individuals. Mr. Heath was to give up his interest in the car company and Mr. Cooper was to give up his interest in the office center. The provisions in paragraph number 5 . very clearly dealt with not consideration for those exchanges at all but with final disbursement of profits from those businesses so that whatever the person had as of December 31st he retained. The language of paragraph two of that paragraph is clear, that there will be an accounting, that a profit and loss statement will be rendered and profits for the year will be distributed.” (R. 75).

The court then uttered the statement on which Mr. Heath now relies as error for reversal. That statement is:

“The difference in the two companies that were exchanged is that one was a corporation and the other was a limited partnership. The defendant, Mr. Heath, is the sole remaining general partner after the departure of the plaintiff in this case and the partner is liable for the obligation of the partnership solely and therefore whether it is the partnership or him individually he is liable for the profits to the plaintiff and I adjudge those to be in the amount of $2,622 for which judgment will render in this case.” (R. 76). [Emphasis ours.]

It is from this statement that Heath concludes that the court determined the partnership liable for the payment to Cooper. We reach no such conclusion. The judge had already said the contract was between individuals and was a mere exchange of interests as they existed as of December 31, 1975. We construe therefore the last statement to merely mean that the partnership was solely controlled by Heath after February 1976 and that he was in position to disburse the profits shown by the profit and loss statement to be due Cooper as agreed upon in the contract. Such profits were a part of the interest of Cooper in the partnership as of December 31, 1975. If Heath did not choose to pay the profits from partnership assets, he would still be individually responsible for that amount. We consider the trial court to be correct in its statement, and find no basis for the conclusion that it determined the debt due plaintiff to be that of the partnership.

Heath states in brief that he agrees with all findings of fact of the trial court except the finding that Holiday Office Center, Ltd. should have distributed profits to Cooper. We have shown that the trial court made no such finding of fact. Heath throughout his brief persists in the contention that the judgment below was based upon a determination that the debt sued for was owed by the partnership and not by him individually but since he was the sole general partner he must pay. This contention is not supported by the record.

An appeal must be founded upon erroneous and prejudicial rulings of the trial court appearing in the record. J. H. Morris, Inc. v. Indian Hills, Inc., 282 Ala. 443, 212 So.2d 831 (1968), 4A C.J.S. Appeal and Error § 1154. Appellant presents issues on this appeal which are not supported by the record. There having been no error shown by the appeal, we affirm the judgment of the trial court.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: HOLMES, Judge.

text:
    Joan WHITE, surviving widow of Erskine L. White, etc., v. Bobby J. HENSHAW, Individually, Bobby J. Henshaw, d/b/a G & H Trucking Company, et als.
    Civ. 1481.
    Court of Civil Appeals of Alabama.
    Nov. 1, 1978.

      Ralph W. Hornsby and C. Lynwood Smith, Jr., Huntsville, for appellant.
    Michael R. Lipscomb and Randi B. Rich, Henderson, Tenn., for appellees.
   HOLMES, Judge.

This is a workmen’s compensation case.

The Circuit Court of Madison County denied workmen’s compensation benefits to the plaintiff. This denial was based on the court’s finding of no employer-employee relationship between the plaintiff’s decedent and defendant at the time of the accident resulting in decedent’s death. The plaintiff appeals and we affirm.

At the outset, we note that in a workmen’s compensation case, this court looks at the record only to determine if the trial court’s finding of fact is supported by any legal evidence and if the law has been properly applied to the facts. See Newman Bros., Inc. v. McDowell, Ala.Civ.App., 354 So.2d 1138 (1977), cert. denied, Ala., 354 So.2d 1142 (1978); Craig v. Decatur Petroleum Haulers, Inc., Ala.Civ.App., 340 So.2d 1127 (1976), cert. denied, Ala., 340 So.2d 1130 (1977).

With the above in mind, a review of the record reveals the following pertinent Tacts:

Defendant owned and operated a cotton-hauling brokerage firm in Huntsville. Defendant’s business involved the transportation of ginned cotton from storage warehouses to textile mills.

Defendant owned two trucks which were operated by two men known as “employee drivers.” Defendant paid all expenses connected with the operation of his two vehicles including maintenance, fuel, and liability insurance. Employee drivers were paid a base rate salary on Friday of each week regardless of whether there was anything to haul. This was in addition to 25% of any hauls which they may have made. When hauling cotton, employee drivers were supposed to call defendant upon arrival at their point of destination to check for further instructions. Employee drivers were required to return to Huntsville immediately after a delivery, unless there was another load to pick up. Lastly, defendant made payroll deductions from the pay checks of employee drivers.

The decedent owned his own truck which he used in hauling cotton and was known as an “owner driver.” There were approximately fifteen other “owner drivers” who hauled cotton for the defendant.

The decedent, besides owning his own truck, paid all his expenses including maintenance, fuel, liability insurance, and any additional help used by him in hauling. Decedent was paid on the basis of the loads of cotton he delivered and such compensation was paid at irregular intervals. If no loads were hauled, decedent would not get paid, unlike “employee drivers.” Compensation for the hauls was paid by the person who had requested them directly to defendant. Defendant then deducted 10% as his “brokerage fee” and paid 90% of the gross to the decedent. No tax deductions were taken from this payment.

Furthermore, decedent was not under a duty to contact defendant after a delivery was completed, but usually did so as to secure a “return haul.” Decedent also secured return hauls from others on occasion, even during the cotton-hauling season.

The record further indicates decedent was under an obligation to maintain harmonious relationships with the cotton ware-houser and its employees when the cotton was loaded on his truck and also with the mill and its employees in the unloading of the cotton. Decedent was also under a duty to protect the cotton from the elements and have it secured on his vehicle. When defendant gave decedent a load to haul, decedent was instructed where to pick up the cotton and what mill to deliver it to. Decedent chose whatever route he wished to proceed by.

Decedent had his own name, address, and telephone number displayed on his vehicle. He filed income tax returns as a sole proprietor, depreciating his equipment and taking business deductions.

On August 7, 1975, while delivering a load of cotton pursuant to this arrangement with defendant, decedent was involved in an accident in North Carolina, which injured decedent. He subsequently died of such injuries. Decedent’s wife, plaintiff in this instance, then filed suit in the circuit court seeking benefits under the Workmen’s Compensation Act.

As noted above, the trial court found no employer-employee relationship between decedent and defendant and therefore denied benefits under the act. Plaintiff appeals that finding and contends such an employer-employee relationship did in fact exist.

As the supreme court stated in Weeks v. C. L. Dickert Lumber Co., 270 Ala. 713, 714, 121 So.2d 894, 895 (1960):

“This court is committed to the proposition that it is the reserved right of control rather than its actual exercise that furnishes the true test of whether the relationship between the parties is that of an independent contractor or of employer and employee — master and servant. . .
“For one to be an employee, the other party must retain the right to direct the manner in which the business shall be done, as well as the result to be accomplished or, in other words, not only what shall be done, but how it shall be done.
. ” [Citations omitted.]

In determining whether an employer-employee relationship or that of an independent contractor exists, there are no hard and fast rules which can be used. Each case must depend on its own facts. Ordinarily, no one feature of the relation is determinative, but all must be considered together. See Hudson v. DuraWear Corp., Ala.Civ.App., 344 So.2d 182 (1977); Birmingham Post Co. v. Sturgeon, 227 Ala. 162, 149 So. 74 (1933).

The principal factors showing right to control are (1) direct evidence of right or exercise of control, (2) method of payment, (3) furnishing of equipment, and (4) the right to fire. See IB A. Larson, The Law of Workmen’s Compensation § 44.00 (1978). As noted above, if the right of control of details goes no further than is necessary to ensure a satisfactory end result, it does not establish employment. See Weeks v. Dickert Lumber Co., supra.

The record reveals that there was sufficient evidence to support a finding of no employer-employee relationship. Defendant’s control over decedent extended only to ensure a satisfactory end result and did not dictate the details of decedent’s work. The mere fact that defendant instructed decedent to keep harmonious relations with cotton suppliers and millers does not establish such control as to be deemed employment. The same holds true as concerns decedent covering and uncovering his loads in that these measures were aimed at ensuring a satisfactory end result.

The record further reveals that decedent was paid only when he had made a haul. “Employee drivers” were paid regardless of whether they had made any hauls. Decedent also received 90% of the gross for each haul while employee drivers received only 25%.

As noted above, decedent owned his own truck, whereas defendant furnished trucks for employee drivers to haul cotton. This factor also points to the absence of an employer-employee relationship as does the method of payment.

The record supports a finding that defendant did not have the right to fire decedent. Defendant could refuse to give decedent loads to haul which differs from the alleged right to fire. The right to refuse loads worked both ways in that decedent could refuse to take loads the same as defendant could refuse to give loads. This is consistent with the manner of obtaining loads in that decedent would have to call in or come by defendant’s business each morning in order to be assigned a load. Further, even if decedent hauled a load for defendant, he could arrange his own return load if he desired.

Viewing the above factors, in conjunction with the “any evidence” rule as stated in Newman Bros., Inc., supra, we cannot say the trial court erred in finding the absence of an employer-employee relationship so as to entitle plaintiff to workmen’s compensation benefits.

Plaintiff, through able counsel in a well written and enlightening brief, urges this court to adopt the “relative nature of the work” test to determine the existence of an employer-employee relationship. See 1B A. Larson, The Law of Workmen’s Compensation § 43.50, et seq. Specifically, plaintiff contends the functions performed by the employer and employee are to be examined and analyzed in relation to one another. After doing so, if it is found that the work being done is an integral part of the regular business of the employer, and the worker does not furnish an independent business service, then the “modern tendency is to find employment.”

As seen from the above, there is evidence to support the conclusion that the decedent was furnishing an independent business service.

To summarize, the evidence supports the finding by the trial court that the relationship between defendant and decedent was that of independent contractor and not that of employer-employee. By virtue of this, the court properly denied plaintiff workmen’s compensation benefits.

This case is due to be affirmed.

AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., concur.