author: BOLIN, Justice. MARCUS, Justice SUMMERS, Justice SANDERS, Chief Justice. MARCUS, Justice

text:
    Laura L. Dupre CALLAIS et al. v. ALLSTATE INSURANCE CO.
    No. 56120
    Supreme Court of Louisiana.
    Nov. 4, 1975.
    Dissenting Opinion Dec. 17, 1975.
    On Rehearing June 21, 1976.

      Charles E. Leche, Normann & Normann, New Orleans, for plaintiffs-applicants.
    Larry P. Boudreaux, Leslie J. Clement, Jr., Porteous, Toledano, Hainkel & Johnson, Thibodaux, for defendant-respondent.
    Allen R. Fontenot, Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans, for amicus curiae.
    J. W. Jones, Bodenheimer, Jones, Klotz & Simmons, Shreveport, amicus curiae for Allstate Ins. Co.
    Raymond C. Vinet, Sr., amicus curiae for Commissioner of Insurance.
    J. Barnwell Phelps, Esmond Phelps, II, Harry A. Rosenberg, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, amicus curiae for T & P Ry Co. & M P RR Co.
    James J. Davidson, James J. Davidson, III, L. Lane Roy and Richard C. Meaux, Davidson, Meaux, Onebane & Donohoe, Bernard, Torian & Diaz, Lafayette, amicus curiae for S P Transportation Co., and others.
   BOLIN, Justice.

Lloyd J. Guidry and his wife, Carol Ann Guidry, were killed in a one car accident. Mr. and Mrs. Guidry were survived by one child, Roxanne Guidry, born August 11, 1972. The child was not a passenger in the car at the time of the fatal accident. The provisional tutrix instituted suit on behalf of the minor against Allstate Insurance Company, the insurer of the automobile driven by Mr. Guidry, for damages re-suiting from the death of Roxanne’s mother and father. The trial court found the accident was caused solely by the fault of Mr. Guidry. Damages were awarded to the child for the loss of her mother but her demands for the damages for the loss of her father were denied. The provisional tutrix for the minor appealed to the Court of Appeal seeking reversal of that portion of the judgment denying the minor recovery for the negligent death of her father. The Court of Appeal affirmed (308 So.2d 342) and this Court granted writs (310 So.2d 849). We reverse and remand.

Before this Court, it is not disputed the accident and death were caused solely by the fault of Lloyd Guidry. There is also no question of insurance coverage.

The question for decision is whether a child may recover for damages she suffers as a result of the death of a parent when the death was caused solely by the negligence of the deceased parent.

The article in our Civil Code establishing delictual liability is La.C.C. art. 2315. The predecessor of our present article 2315 in the Code of 1825 was article 2294, which reads as follows:

Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.

This provision was taken directly from article 1382 of the Code Napoleon of 1804, and it remains in our Code today, absolutely unaltered, as the first paragraph of article 2315.

Under French law, anyone who was materially affected when the death of a person was the result of someone’s fault, could demand reparation for the damages he suffered because of the death. 2 M. Planiol, Civil Law Treatise, § 868 (La.St. L.Inst. transí. 1959). The theory embodied in art. 1382 of the Code Napoleon, and presumably adopted by our redactors in 1825, is that whenever one person acts wrongfully and thereby injures another, the actor must indemnify the damaged party to the extent of his injury. Thus, this generalized tort action affords recovery for any damages resulting from a death against any person whose negligent act causes the death. King v. Cancienne, 316 So.2d 366 (La.1975); L. Oppenheim, The Survival of Tort Actions and the Action for Wrongful Death-A Survey and a Proposal, 16 Tul.L.R. 386 (1942). It seems that, under this doctrine, absent any procedural bar, a child should be able to recover against his father’s succession for any damages he incurs when his father deprives him of love, affection, support, and the like, by negligently killing himself.

La.C.C. art. 2315 has been amended a number of times and no longer consists entirely of the simple statement of principle discussed above. This Court recently reviewed the history of this article and the reasons for its amendment in King v. Cancienne, supra. We noted there that in 1851, this Court handed down the decision in Hubgh v. New Orleans and Carrollton Railroad Company, 6 La.Ann. 495 (1851), holding that the action of wrongful death was not sanctioned by article 2315. Partially in response to this pronouncement by the Court, the legislature amended article 2315 by Act 223 of 1855, creating the so-called “survived action” allowing certain named survivors of a deceased to sue on his behalf to recover for damages sustained by the deceased on account of the wrongful act of another. Later, by Act 71 of 1884, the legislature specifically reinstated the action by certain survivors for their own damages resulting from another’s death that is wrongfully caused. Since 1884, article 2315 has been amended several times, but the basic structure of the article has remained the same, so that, in whole, it appears in the Code today as follows:

Art. 2315. Liability for acts causing damage; survival of action
Art. 2315. Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.
The right to recover damages to property caused by an offense or quasi offense is a property right which, on the death of the obligee, is inherited by his legal, instituted, or irregular heirs, subject to the community rights of the surviving spouse.
The right to recover all other damages caused by an offense or quasi offense, if the injured person dies, shall survive for a period of one year from the death of the deceased in favor of: (1) the surviving spouse and child or children of the deceased, or either such spouse or such child or children; (2) the surviving father and mother of the deceased, or either of them, if he left no spouse or child surviving; and (3) the surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving. The survivors in whose favor this right of action survives may also recover the damages which they sustained through the wrongful death of the deceased. A right to recover damages under the provisions of this paragraph is a property right which, on the death of the survivor in whose favor the- right of action survived, is inherited by his legal, instituted, or irregular heirs, whether suit has been instituted thereon by the survivor or not.
As used in this article, the words “child”, “brother”, “sister”, “father”, and “mother” include a child, brother, sister, father, and mother, by adoption, respectively.

We have already determined that if the first paragraph of article 2315 controls in the case before us, Mrs. Calíais, as provisional tutrix, could recover from Allstate Insurance Company for the losses suffered by Roxanne Guidry on account of her father’s negligence in killing himself and depriving her of all the things she would have enjoyed had he continued to live. However, we shall assume, without deciding, that the legislature, though responding to an incorrect court decision, has established an exclusive method for asserting-damages for wrongful death in the third paragraph of article 2315. Our task then becomes one of statutory interpretation to determine whether the action asserted here may be brought within the terms of that part of the provision.

Allstate argues that the third paragraph of article 2315 creates two rights of action, but only one cause of action. It bases this conclusion on the following language:

“ * * * The survivors in whose favor this right of action [right to sue for damages suffered by the deceased] survives may also recover the damages which they sustained through the wrongful death of the deceased. * * * ”

Allstate infers from this wording that only when the named survivors are entitled to recover for the injuries suffered by the deceased (i. e. when deceased could have recovered for his own injuries had he lived) may they recover for their own damages as a result of the death of the deceased. In support of this position, it cites the case of Reed v. Warren, 172 La. 1082, 136 So. 59 (1931).

We find no merit in this contention. The language quoted above means no more than that the named survivors upon whom devolve the right to assert deceased’s cause of action for his injuries are also the parties who may sue for their own injuries resulting from the death.

It is clearly erroneous to characterize the “survived action” and the wrongful death action as a single cause of action. A cause of action is variously defined as “concurrence of the facts giving rise to an enforceable claim, * * * facts which give rise to one or more relations of right-duty between two or more persons, * * * ground on which an action may be maintained or sustained, * * Black’s Law Dictionary 279-80 (Rev. 4th ed. 1968). It is true that the same operative facts giving rise to the survivors’ right to recover on behalf of the deceased also entitle them to recover on their own behalf. However, the injury done and the parties damaged are different. Each party injured by the death has a separate cause of action for a different amount, depending upon the particular injury done to him as a result of the death. Likewise, each of these causes of action is entirely separate from the cause of action belonging to the deceased before his death for his own damages, which passes to the survivors by virtue of the operation of article 2315. Thus, we feel that both by statutory interpretation of the two segments of article 2315, paragraph three (which were adopted by the legislature at different times), and by logical analysis, the “survived action” and the wrongful death action are entirely separate and independent of one another.

The Reed case, supra, does include language which seems to support defendant’s analysis of paragraph three of article 2315. However, we feel the Court in Reed intended to hold only that, as a matter of judicial efficiency and convenience to the defendant, all parties entitled to bring the wrongful death action and the “survived action” must join in a single suit and assert all their claims at the same time. See, Theis, Zahn v. International Paper Co.: the Non-Aggregation Rule in Jurisdictional Amount Cases, 35 LLR 88, 105 and fn. 88 (1974).

Moreover, we are convinced that the legislature did not intend that the “survived action” and the wrongful death action should depend upon one another, because such an interpretation of the third paragraph of article 2315 could lead to unjust results. For instance, if a person were injured seriously by the wrongful act of another and, before dying, compromised his own claim against the tortfeasor, it cannot be that his survivors would thereby be barred from asserting their claims for their own injury resulting from the death. This would be the result were we to adopt defendant’s construction of article 2315.

Thus, we hold that when a person has negligently caused his own death, those survivors named in article 2315, paragraph three have a cause of action for the damages they have suffered as a result of his death. Of course, if there were an inter-familial privilege which prevented suit by the survivor, perhaps he would be barred from bringing action. However, it is established that a child may sue the administrator of his parent’s estate. Ruiz v. Clancy, 182 La. 935, 162 So. 734 (1935). Moreover, where, as here, the survivor brings a direct action against the insurer, no procedural bar would apply. Edwards v. Royal Indemnity Co., 182 La. 171, 161 So. 191 (1935); Le Blanc v. New Amsterdam Casualty Co., 202 La. 857, 13 So.2d 245 (1943).

Allstate cites one Louisiana Supreme Court case and several lower court decisions which it maintains are contrary to the result we reach here. Vitale v. Checker Cab Co., Inc., 166 La. 527, 117 So. 579 (1928); Williams v. J. B. Levert Land Company, Inc., 162 So.2d 53 (La.App. 1st Cir. 1964); Foy v. Ed Taussig, Inc., 220 So.2d 229 (La.App. 3rd Cir. 1969); and Crum v. Holloway Gravel Co., Inc., 273 So.2d 566 (La.App. 1st Cir. 1973) hold that recovery by survivors for wrongful death is barred by the decedent’s contributory negligence. While we distinguish these cases from the present one in that each of them involved a death caused, at least in part, by the negligence of a third party, we recognize that their underlying rationale is contrary to our holding here.

The majority opinion in Vitale relies entirely on a theory of imputed contributory negligence, long disavowed by the jurisprudence of this state. It is clear that negligence may not be imputed to one injured by the wrongful act of another in order to bar his recovery, merely because the injury was also partially caused by one for whom the injured person may be vicariously liable. Kientz v. Charles Dennery, Inc., 209 La. 144, 24 So.2d 292 (1945). Moreover, the Vitale majority recognized the incongruity between imputing contributory negligence to a survivor when he seeks to recover for the death of the contributorily negligent party and the failure to impute such negligence when the plaintiff is seeking to recover for his own injuries. The Court merely stated:

We shall not attempt a differentiation of the two lines of jurisprudence, nor venture a suggestion of any cause or reason for the difference.
It suffices to say, for the purposes of the present case, that the doctrine is too well settled to depart therefrom, and there is no greater reason for overruling one line of decisions than the other. 117 So. at 582

We disagree with the very foundation upon which the Vitale case is based. Contributory negligence is a doctrine developed to prevent recovery when the injured party has wrongfully contributed to his own damage. The concept of vicarious liability exists in order to insure that one injured by a party for whom another is responsible will be able to recover against the one in charge of the tortfeasor. To “impute contributory negligence” is to mix two unrelated doctrines into an artificial hybrid which does not further the policies underlying either vicarious liability or contributory negligence.

Apparently recognizing the weakness of the majority’s reasoning in Vitale, Allstate points to the concurring opinion of Chief Justice O’Niell in that case. That opinion says no more than that the wife’s right of action for wrongful death “ * * * ought to depend upon whether the husband would have had a right of action to claim damages for the physical injuries suffered by him if they had not been fatal. * * * ” 117 So. at 583. The only explanation offered in support of this conclusory statement is that the survivor’s right to recover derives from the injury suffered by the deceased. However, Chief Justice O’Niell does not explain why the derivative nature of the cause of action should condition the availability of the survivor’s action for his own injuries upon the deceased’s own blamelessness.

Because we are not faced with a situation in which a third party has partially caused the death of the deceased, and thereby is in effect a joint-tortfeasor with the deceased in injuring the survivor, we need not consider how liability should be apportioned in such a case. However, we overrule the Vitale case insofar as it is in conflict with our reasoning herein.

For the reasons assigned, the judgment of the Court of Appeal is hereby set aside and the case is remanded for proceedings consistent with this decision.

Reversed and remanded.

SUMMERS, J., dissents and assigns reasons.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

I respectfully dissent. I would affirm the judgments of the trial court and the court of appeal, which held that plaintiff was not entitled to recover the damages she sustained owing to her father’s death.

Article 2315 of the Civil Code does not permit the beneficiaries designated therein to recover damages whenever a death occurs, but only when such a death is is caused by the violation of a duty owed to the decedent by another, not one that is caused, in whole or in part, by the decedent’s own intentional or negligent act.

SUMMERS, Justice

(dissenting).

I do not believe that recovery for decedent Lloyd J. Guidry’s death can be allowed to his child Roxanne when he could-not have recovered for his injury had he lived. There simply was no tortious conduct toward him which brought about his death. His death was, therefore, not wrongful as Article 2315 of the Civil Code clearly requires.

The right to recover damages for an offense or quasi offense on the death of the injured party is inherited by his legal, instituted, or irregular heirs. In this case the child inherits the right to recover the damages to which her father was entitled prior to his death. Obviously, he had no right to recover from anyone, for he was the cause of his damage and injury. He could not recover from himself.

What, then, is the cause of action the surviving child can assert. Any right she has must be based upon the wrongful death of her father. For his death to be wrongful the action of someone else is necessary to constitute a delict, a wrong. The wrong must take place between persons juridically strangers to each other. Reserve Insurance Co. v. Fabre, 243 La. 982, 149 So.2d 413 (1963). There must have been a breach of duty to the decedent. No such breach occurred here. Since no delict occurred in this case no cause of action became vested in the surviving child, and a fortiori, no recoverable damage resulted in legal contemplation.

Thus if Guidry injured himself through his own negligence he created no cause of action in his own favor. And since no cause of action was created, none could be inherited, for the survival and wrongful death remedies are not two separate and independent actions. If a cause of action was created at all, only one was created. In this case no cause of action was created, and the fact that the child suffers damage does not in itself change that fact. “The survivors in whose favor this right of action survives may also recover the damages which they sustained through the wrongful death of the deceased.” La.Civ. Code art. 2315. In the absence of such wrongful death no cause of action accrues, and the existence of damages is simply noncompensable.

It is stretching logic and principles of statutory interpretation to say that by reason of his unintentional negligence which brought about his own death he gave his surviving child a cause of action for damages, for she was thereby deprived of his support. What if Guidry had maimed himself in this accident, had survived and was no longer able to support his dependent child? Would she have a cause of action against him for loss of support? Or does the theory of this case apply only when there is an insurance company involved?

And what does this case do to automobile liability insurance coverage? The effect is to convert an automobile liability policy into life insurance, insuring the life of the named insured against his own negligence and damage to himself in addition to insuring against claims of third persons.

The decision disrupts settled concepts of wrongful death suits and brings about profound changes in our law, the ultimate effects of which are neither contemplated nor provided for.

It is not far-fetched to conclude that the majority opinion has reached a result which is unique in the legal systems of the fifty states of the Union. Until now it has been universally recognized that “in the absence of a statute changing the rule, contributory negligence which would have barred an action by decedent will bar an action for his death.” 25A C.J.S. Death § 46 (1966).

The American Law Institute, Restatement of the Law of Torts 2d, Section 494 states: “The plaintiff is barred from recovery for an invasion of his legally protected interest in the health or life of a third person if the negligence of such third person would have barred his own recovery.” If we transpose and paraphrase this principle and apply it to the facts of this case we must say that Roxanne is barred from recovery for an invasion of her legally protected interest in the health or life of her father Lloyd Guidry if the negligence of her father would have barred his own recovery.

I respectfully dissent.

ON REHEARING

SANDERS, Chief Justice.

We granted a rehearing in this case because of convincing allegations that our original decision was erroneous and would produce unfavorable consequences on the law of delictual responsibility in Louisiana. In reconsidering the case, we have been greatly assisted by numerous amicus curiae briefs from all segments of the legal profession.

The facts may be briefly summarized. On the night of December 1, 1972, Lloyd J. Guidry and his wife, Carol Ann Guidry, were killed when their automobile veered off the highway. It is undisputed that the fatal accident was caused solely by the improper driving of Mr. Guidry. Their only child, Roxanne Marie Guidry, was not in the automobile, having been left in the care of her grandmother, Mrs. Laura L. Dupre Calíais. As tutrix, Mrs. Calíais instituted suit on behalf of the minor daughter against Allstate Insurance Company, the father’s automobile liability insurer, to recover damages for the death of both the mother and the father. The trial court awarded damages for the loss of the mother but denied damages for the loss of the father. The tutrix appealed, seeking a reversal of that portion of the judgment denying the minor recovery for the death of her father. The Court of Appeal affirmed. 308 So.2d 342. On application of the tu-trix, we granted certiorari to review the Court of Appeal judgment. 310 So.2d 849.

The question is whether a child may recover for damages sustained as a result of the death of a parent when the death is caused solely by the deceased parent’s lack of care for his own safety. After reconsideration, we think not.

Article 2315 of the Louisiana Civil Code is the foundation of delictual liability in Louisiana. That article provides:

“Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.
“The right to recover damages to property caused by an offense or quasi offense is a property right which, on the death of the obligee, is inherited by his legal, instituted, or irregular heirs, subject to the community rights of the surviving spouse.
“The right to recover all other damages caused by an offense or quasi offense, if the injured person dies, shall survive for a period of one year from the death of the deceased in favor of: (1) the surviving spouse and child or children of the deceased, or either such spouse or such child or children; (2) the surviving father and mother of the deceased, or either of them, if he left no spouse or child surviving; and (3) the surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving. The survivors in whose favor this right of action survives may also recover the damages which they sustained through the wrongful death of the deceased. A right to recover damages under the provisions of this paragraph is a property right which, on the death of the survivor in whose favor the right of action survived, is inherited by his legal, instituted, or irregular heirs, whether suit has been instituted thereon by the survivor or not.” (Italics ours.)

Article 2315 provides for two types of death actions. One type, commonly called a survival action, is for the damages sustained by the victim for which he could have recovered had he lived. The other, commonly called a wrongful death action, is for damages to survivors occasioned by the victim’s death. See King v. Cancienne, La., 316 So.2d 366 (1975); W. Malone and L. Guerry, Studies in Louisiana Torts Law, pp. 610-611 (1970); Oppenheim, The Survival of Tort Actions and the Action for Wrongful Death, 16 Tul.L. Rev. 386, 409 (1942).

The present action is one for wrongful death. The tutrix seeks the damages sustained by the minor daughter on account of her father’s death.

Historically, a civil wrong is an act which causes harm to another. See, Caíala and Weir, Delict and Torts: A Study in Parallel, 37 Tul.L.Rev. 573, 584— 585 (1963). In the context of Article 2315, it is evident that wrongful death is a relational concept. It embraces conduct that causes the death of another. It is bilateral in the sense that two parties are involved: the actor, who causes death, and the victim, whose death gives rise to the cause of action.

Recently, reviewing Article 2315 in King v. Cancienne, supra, this Court stated:

“ . . . The purpose of that provision in France and in Louisiana was to provide an action for personal damage resulting from the death of another through the delictual action of a third party.”

See also Reserve Insurance Company v. Fabre, 243 La. 982, 149 So.2d 413 (1963).

Plaintiff contends in effect, however, that the relational concept is satisfied when the father negligently kills himself, thus causing economic and other damage to his child. Plaintiff points to the broad language of Article 2315. On original hearing, we accepted this argument. We now think we erred.

The essential elements of a cause of action under Article 2315 are fault, causation, and damage. Eschete v. City of New Orleans, 258 La. 133, 245 So.2d 383 (1971). Fault, of course, includes negligence. LSA-C.C. Art. 2316.

Negligence is conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm. It is the breach of a duty, statutory or non-statutory, owed to another to protect that person from the particular harm that ensued. Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972); Prosser, Law of Torts § 36, pp. 192-197 (4th ed. 1971); Malone, Ruminations on Cause-In-Fact, 9 Stanford L.Rev. 60, 73 (1956).

In Hill v. Lundin & Associates, Inc., supra, this Court stated:

“ ‘All rules of conduct, irrespective of whether they are the product of a legislature or are a part of the fabric of the court-made law of negligence, exist for purposes. They are designed to protect some persons under some circumstances against some risks. Seldom does a rule protect every victim against every risk that may befall him, merely because it is shown that the violation of the rule played a part in producing the injury.’ ”

In the present case, the father’s driving which shunted his automobile off the highway was doubtless a violation of the Louisiana Highway Regulatory Act (LSA-R.S. 32:1 et seq.). If, however, a non-statutory duty was violated, a duty analysis is equally appropriate.

The duty to drive one’s automobile with due care is designed to protect other persons and property on or near the highway. See Dixie Drive It Yourself Sys. v. American. Beverage Co., 242 La. 471, 137 So.2d 298 (1962). A driver’s child at home does not fall within the class of persons protected by his duty as an automobile operator. A parent, likewise, has no general duty to protect a child against the risk of the parent’s own death. Hence, as to the daughter, there was no negligence or fault. See Hill v. Lundin & Associates, Inc., supra. Since the death was not wrongful within the meaning of Article 2315, it provides no basis for liability.

The following views expressed by this Court in the landmark case of Moulin v. Monteleone, 165 La. 169, 115 So. 447 (1927), almost a half-century ago, are still applicable today:

“It is argued for the appellant that he has a right of action under the broad statement in article 2315 of the Civil Code that every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it. It is well settled, however, that that broad language, which first appeared as article 16 of title 4, Book 3, of the Act of March 31, 1808, called the ‘Digest of the Civil Laws in Force in the Territory,’ and sometimes called the Civil Code of 1808, was only declaratory of a very general and fundamental principle of justice, and was not intended to give a cause or right of action for every grievance ...”

The decision in Vitale v. Checker Cab Co., Inc., 166 La. 527, 117 So. 579 (1928), relied upon throughout this litigation, is inapposite. That case involved an action by the wife for the wrongful death of her husband. The death was caused by the concurrent negligence of the husband and a third party. The wrongful death action was against the third party.

Thus, we hold that a child may not recover damages for a parent’s death when the death resulted solely from the deceased parent’s lack of care for his own safety.

For the reasons assigned, the judgment of the Court of Appeal is affirmed at plaintiff’s costs.

DIXON, J., dissents.

MARCUS, J., concurs and assigns reasons.

MARCUS, Justice

(concurring).

I agree with the result reached in the majority opinion but concur for reasons assigned in my dissent to the original opinion.

      . In discussing whether plaintiffs in a suit for wrongful death and survival damages may aggregate their claims for federal jurisdictional purposes, which requires something very close to a single cause of action, Professor Theis writes the following: “Their [the survivors] compulsory joinder under state law is a procedural rule which does not affect the nature of the interest asserted by each one. Their rights are ‘common’ only in the sense that each relies on a single incident to recover; ‘undivided’ only in the sense that they must compulsorily join under state procedure”. At footnote 88, it is stated: “ * * * If anything Reed v. Warren seems to say that its rule of compulsory joinder is based, at least in part, on considerations of convenience to the defendant, not the nature of the interest asserted by the plaintiffs * * * ” For a critical analysis of the Reed case, see McMahon, Parties Litigant in Louisiana, 13 Tul.L.K. 385, 407 (1930).


source: Caselaw Access Project

license: Public Domain

text:
    Leon Austin FONTENOT v. Winnie Belle Sibley FONTENOT.
    No. 57772.
    Supreme Court of Louisiana.
    April 13, 1976.
   In re: Leon Austin Fontenot applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 334 So.2d 234.

Writ denied. On the facts found by the court of appeal, there is no error of law in the judgment complained of.


text:
    C. Edward KARST v. Beth CARLSON, Executive Director, Alexandria Housing Authority, et al.
    No. 58286.
    Supreme Court of Louisiana.
    July 8, 1976.
   In re: Joe E. Fryar applying for Writs of Certiorari, Mandamus and Prohibition and/or Review.

Writ Denied. This Court will not interfere with the orderly proceeding in the trial court in the absence of palpable error or irreparable injury. Relator has an adequate remedy by appeal in the event of an adverse judgment.


text:
    C. Edward KARST v. Beth CARLSON, Executive Director, Alexandria Housing Authority and Cora R. Schley, Chairman, Alexandria Housing Authority.
    No. 58293.
    Supreme Court of Louisiana.
    July 8, 1976.
   In re: C. Edward Karst applying for Writs of Certiorari, Mandamus, Prohibition and Review.

Writ Denied. This Court will not interfere with the orderly proceedings in the trial court in the absence of palpable error or irreparable injury. Relator has an adequate remedy by appeal in the event of an adverse judgment.


text:
    Perry M. SEGURA d/b/a Perry Segura and Associates v. LOUISIANA ARCHITECTS SELECTION BOARD et al.
    No. 58301.
    Supreme Court of Louisiana.
    July 13, 1976.
   In re: Perry M. Segura, d/b/a Perry Segura and Associates applying for remedial writs of certiorari, prohibition, mandamus and/or review.

Application denied.

The showing made does not warrant the exercise of this Court’s supervisory jurisdiction.


text:
    STATE of Louisiana v. John B. BARINSON.
    No. 58317.
    Supreme Court of Louisiana.
    July 16, 1976.
   In re: State of Louisiana through District Attorney, Harry F. Connick Applying for Writs of Certiorari, Mandamus and Prohibition and Request for Stay Order.

Writ denied. Stay order vacated. The showing made does not warrant the exercise of this court’s supervisory jurisdiction.


text:
    STATE of Louisiana v. Jessie GREEN.
    No. 58269.
    Supreme Court of Louisiana.
    July 16, 1976.
   In re: Jessie Green applying for Remedial Writ and Stay Order.

Considering the answer of the trial court judge, and the representation that all relief sought by defendant herein has been granted, the motion of the State to remand is granted.


author: STOULIG, Judge.

text:
    Tracy McNEIL v. STATE of Louisiana Through the DEPARTMENT OF PUBLIC SAFETY.
    No. 7547.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1976.
    Theodore W. Nass, Giles J. Duplechin, Gretna, for plaintiff-appellant.
    James C. Dixon, Baton Rouge, for defendant-appellee.
    Before GULOTTA, STOULIG and MORIAL, JJ.
   STOULIG, Judge.

Appellant, Tracy McNeil, has appealed a judgment of the Twenty-Ninth Judicial District Court for the Parish of St. Charles, upholding an administrative decision by the Driver Improvement Division of the Louisiana State Department of Public Safety to revoke his driving privileges for a six-month period for refusing to submit to an intoxication test after he was arrested and charged with driving while intoxicated.

Briefly, the facts are these: At 1:30 a. m., on March 9, 1973, appellant was arrested by a state trooper in St. Charles Parish and charged with speeding and driving while intoxicated. Sheriff’s deputies asked him to submit to the photoelectric intoxi-meter (P.E.I.) test and advised him that his license could be suspended for a six-month period should he refuse. Appellant nonetheless declined.

We reverse solely on the basis of two recent appellate decisions, i. e., State v. Jones and Mullens v. Department of Public Safety, Driv. Lic. D. The import of these cases is that P.E.I. tests administered or tendered prior to December 20, 1975, were invalid because the Health and Human Resources Administration failed to establish standards for the qualifications of personnel administering the test and for conduct of the test itself as required by L. R.S. 32:663. Consequently the test proposed to be given to plaintiff on March 9, 1973 was invalid and his refusal to submit thereto cannot serve as the basis for invoking the statutory penalty of suspension of his driving privileges.

For the reasons assigned, the judgment appealed from is reversed and the Driver Improvement Division of the Louisiana State Department of Public Safety is hereby enjoined from suspending driving privileges of Tracy McNeil.

REVERSED AND RENDERED.

      . 316 So.2d 100 (La.1975).

      . 327 So.2d 492 (La.App. 4th Cir. 1976).


author: MORIAL, Judge.

text:
    Sherman DAVIS and Alvin Johnson v. Charles BOWMAN and Marie Bowman.
    No. 7779.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1976.
    Charles J. Pisano, New Orleans, for plaintiffs-appellants.
    Michael H. Bagot, John H. Gniady, New Orleans, for defendants-appellees.
    Before GULOTTA, STOULIG and MORIAL, JJ.
   ON MOTION TO DISMISS

MORIAL, Judge.

Appellees moved to dismiss this appeal based upon the filing by the appellants of an appeal bond which does not contain the signature or signed affidavit of the personal surety. See LSA-C.C.P. Article 5122.

LSA-C.C.P. Article 5123 establishes the procedure for testing the validity of an appeal bond in the trial court in which the proceeding was brought. See Reid v. Blanke, La.App., 200 So.2d 132 (1967). Further, under LSA-C.C.P. Article 2088(5) the trial court retains jurisdiction to test the invalidity of an appeal bond. The dismissal of an appeal based upon the invalidity of the appeal bond is prohibited unless the party who furnished it is afforded an opportunity to furnish a new or supplemental bond. See LSA-C.C.P. Articles 5124, 5125 and 5126. Furthermore, the record contains an amended and supplemental appeal bond that meets the requirements of LSA-C.C.P. Article 5122.

For the foregoing reasons the motion to dismiss the appeal is denied at movers’ costs.

MOTION DISMISSED.


author: HOOD, Judge.

text:
    ALISON MORTGAGE INVESTMENT TRUST, Plaintiff-Appellee, v. COMMERCIAL LEASING AND FINANCING CO., INC., et al., Defendants-Appellants.
    No. 5537.
    Court of Appeal of Louisiana, Third Circuit.
    July 6, 1976.

      Harold Savoie, Lafayette, for defendants-appellants.
    Martin & Leonard by James R. Leonard, Lafayette, for defendants-appellees.
    Breazeale, Sachse & Wilson by Frank P. Simoneaux, Baton Rouge, for plaintiff-ap-pellee.
    Charles N. Wooten, George J. Champagne, Jr., Lafayette, for exceptors-appel-lees.
    Davidson, Meaux, Onebane & Donohoe by William H. Lambert, Lafayette, for Int-appellee.
    Before HOOD, WATSON and PETERS, J.
   HOOD, Judge.

Plaintiff, Alison Mortgage Investment Trust, instituted this proceeding by execu-tory process seeking to foreclose on a mortgage affecting immovable property in Lafayette Parish. The defendants are Commercial Leasing and Financing Company, Inc., William C. Rozelle and Mar-bane Investments, Inc. In the course of that proceeding, the property was sold by the sheriff of Lafayette Parish, and it was adjudicated to plaintiff Alison.

The day after the foreclosure sale was completed, defendants Commercial and Rozelle filed (1) a third-party action against Carlo P. Listi, Sheriff of Lafayette Parish, seeking to have that sale decreed to be null and void and to recover damages; (2) an “answer and reconventional demand" seeking to recover damages from, plaintiff Alison; and (3) a notice of lis pendens.

Plaintiff Alison filed an exception of vagueness to defendants’ reconventional demand, and it also filed a motion seeking to have the notice of lis pendens cancelled. A hearing was held on the exception and motion, and judgment was rendered by the trial court on January 13, 1976, sustaining the exception of vagueness and allowing defendants (plaintiffs-in-reconvention) a period of time within which to amend their reconventional demand. A separate judgment was rendered by the trial court on January IS, 1976, ordering that the notice of lis pendens be cancelled.

Third-party defendant Listi filed a motion for a summary judgment dismissing the third-party demands of Commercial and Rozelle. A hearing on that motion was held after the above decrees had been signed, and a summary judgment was rendered by the trial court on February 5, 1976, dismissing the third-party demand which had been filed by Commercial and Rozelle.

Defendants Commercial and Rozelle moved for and were granted a devolutive appeal from the judgment rendered on January 13 (sustaining the exception of vagueness) and the judgment rendered on January IS, 1976 (ordering that the notice of lis pendens be cancelled). They also moved for and were granted a separate de-volutive appeal from the judgment rendered on February 5, 1976, dismissing their third-party demand against Sheriff Listi.

The issues presented on these appeals are: (1) Are defendants, Commercial and Rozelle, entitled to maintain an action to annul the sale made under executory process on the grounds alleged here? (2) Is the decree of the trial court sustaining the exception of vagueness to defendants’ re-conventional demand an appealable judgment, and if so, have defendants waived their right to appeal by voluntarily acquiescing in that judgment? And (3), is plaintiff entitled to have the notice of lis pendens filed by defendants cancelled?

On June 29, 1973, defendants Commer-. cial and Rozelle executed a promissory note for $1,918,000.00, made payable on demand to the order of plaintiff Alison. That note is secured by and is paraphed for identification with an act of mortgage executed on that date by Commercial in favor of Alison, affecting property in Lafayette Parish.

On December 4, 1974, plaintiff Alison filed this suit seeking to foreclose by exec-utory process on the above note and mortgage. It alleged that the obligation had been assumed by Marbane, and for that reason it named that corporation as a party defendant. Marbane, however, is not involved in any of the issues which are presented here.

A supplemental petition was filed on December 30, 1974, and on that date an order was issued by the trial court directing the Sheriff of Lafayette Parish to seize and sell the property described in the above mortgage, with appraisement, at public auction. The sheriff issued a notice to the defendants on January 3, 1975, notifying them of the seizure and sale, which sale was scheduled to be held on February 19, 1975, and directing them to appear at his office on February 17 to appoint appraisers to value the property. That notice was served on Commercial and Rozelle on January 8, and on Marbane on January 9, 1975. The sale was advertised properly.

The appraiser appointed by plaintiff valued the property at $1,500,000.00 and the appraiser appointed by defendants valued it at $2,921,000.00. It became apparent that the appraisers could not agree, so the sheriff appointed Sidney P. Flynn as a third appraiser, pursuant to LSA-R.S. 13:4365. Flynn valued the property at $1,913,336.00. All of the appraisers were duly sworn, they reduced their appraisement to writing and signed it, and they delivered it to the sheriff on the date scheduled for the sale. Sheriff Listi informed defendants prior to the sale that the appraisers appointed by the parties could not agree, and that he was appointing Flynn as the third appraiser. The evidence is uncontradicted that defendants concurred in that appointment before the sale was held.

Immediately after the public auction of the property was commenced, Commercial and Rozelle, through their attorneys, presented to the deputy sheriff who was conducting the sale a written “objection” to that sale, demanding that the auction of the property be discontinued. The sheriff advised defendants, in effect, that a court order had been issued directing him to sell the property, and that he would continue with the auction unless defendants obtained an injunction prohibiting him from doing so. The defendants advised the sheriff that they would not seek an injunction, but that instead they would file and rely on the above “objection” which had been presented to the sheriff. The sale was continued, and the property was adjudicated to plaintiff Alison, it being the highest bidder, for the price of $1,300,000.00. The bid submitted by plaintiff was for more than two-thirds the value of the property, as appraised by Flynn.

On February 20, 1975, the day after the sale was completed, Commercial and Rozelle filed a pleading entitled “Supplemental Pleadings — Suit Attacking Sheriff’s Sale,” in which they alleged that the sale was invalid because (1) the appraisement of the property was improper; (2) the public auction of the property was continued after defendants’ objection to the sale was made known to the sheriff; and (3) the advertisement of the property was inadequate. The sole defendant named in that action was Sheriff Listi. Defendants prayed for judgment against him invalidating the sale and condemning him to pay them damages in the sum of $3,500,000.00. We consider that action to be a third-party demand against Sheriff Listi. As a basis for their claim that the appraisement was improper, defendants allege that Flynn “does not qualify to appraise such a hunk of property, and his appraisement should be completely discounted and reduced to naught.”

There is no genuine issue as to any of the above facts.

The principal question presented is whether defendants Commercial and Rozelle are entitled to maintain this action to annul the sale made under executory process on any of the grounds alleged, considering the fact that they did not enjoin that sale and they did not appeal suspensively from the order directing that a writ of seizure and sale be issued.

The general rule is that defenses and procedural objections to a proceeding by executory process may be asserted only (1) through an injunction to arrest the seizure and sale, or (2) by a suspensive appeal from the order directing the issuance of a writ of seizure and sale, or both. See LSA-C.C.P. art. 2642, and Comment (a) under that article.

Our courts, however, have recognized an exception • to the above general rule. The jurisprudence is established to the effect that a mortgagor who has failed to enjoin the sale of property by executory process, or who did not take a suspensive appeal from the order directing the issuance of the writ of seizure and sale, nevertheless may institute and maintain a direct action to annul the sale on certain limited grounds, provided that the property was adjudicated to and remains in the hands of the foreclosing creditor. See Viley v. Wall, 154 La. 221, 97 So. 409 (1923); Doherty v. Randazzo, 128 So.2d 669 (La. App. 4 (Cir. 1961); Tapp v. Guaranty Finance Co., 158 So.2d 228 (La.App. 1 Cir. 1963); Powell v. Carter, 233 So.2d 369 (La.App. 1 Cir. 1970); Jambois O. & M. Machine Shop, Inc. v. Dixie Mill Supply Company, 218 So.2d 672 (La.App. 4 Cir. 1969); League Central Credit Union v. Montgomery, 251 La. 971, 207 So.2d 762 (1968); Ford Motor Credit Company v. Herron, 234 So.2d 517 (La.App. 3 Cir. 1970); Reed v. Meaux, 292 So.2d 557 (La.1973).

Until recently, our jurisprudence was unsettled as to the grounds upon which a debtor who did not enjoin the sale or did not take a suspensive appeal could maintain a direct action to annul the sale made under executory process. In Reed v. Meaux, supra, however, our Supreme Court made it clear that a sale through ex-ecutory process can be attacked by means of a direct action, filed after the sale has been completed, solely on the ground that there were defects in the proceedings which are substantive in character and which strike at the foundation of the exec-utory proceeding. The court held that the authentic evidence required by Article 2635 of the Louisiana Code of Civil Procedure, to support every link in the necessary chain of evidence in an executory proceeding, is the “very foundation” of such a proceeding, and that the mortgage debtor in such a proceeding may maintain an action to annul the sale on the ground that the authentic evidence required by Article 2635 is lacking, even though he has failed to enjoin the sale or to appeal suspensively from the order directing the issuance of the writ of seizure and sale, provided that the property was adjudicated to and remains in the hands of the foreclosing creditor.

The court also indicated in Reed that any alleged defects in the sale, other than a failure to comply with LSA-C.C.P. art. 2635, are “defects of form,” which are not substantive in character, and that such defects cannot serve as grounds for maintaining a direct action to annul the sale. See Reed v. Meaux, supra, and 35 La.L. Rev. 456-460.

In the instant suit Commercial and Rozelle do not allege in their third-party demand against Sheriff Listi a failure to comply with any of the provisions of LSA-C.C.P. art. 2635. They do not allege the lack of authentic evidence as required by that article of the Code of Civil Procedure, and they point out no defects in the sale which are “substantive in character” or which are fundamental to or strike at the foundation of the executory process. The only defects in the sale asserted in their third-party petition are “defects of form,” as that term is used by the Supreme Court in Reed v. Meaux, supra.

The defendants in this foreclosure proceeding did not seek to enjoin the seizure and sale, they did not appeal suspensively from the order which directed the issuance of the writ of seizure and sale, and they have alleged no fraud or conspiracy on the part of plaintiff Alison, Sheriff Listi or anyone else.

We conclude that defendants Commercial and Rozelle are not entitled to maintain a direct action to annul the sale made under executory process on the grounds alleged here. We thus find no error in the judgment of the trial court which dismisses their third-party action against Sheriff Listi.

Having concluded that defendants are not entitled to maintain their third-party action to annul the sale on the grounds alleged, it is unnecessary for us to consider the additional question presented as to whether such an action, even if based on valid grounds, could be maintained solely against the sheriff, without making the foreclosing creditor a party to the suit. It also is unnecessary for us to determine whether the receivable and uncontradicted evidence shows that there has been a defect of any kind, even of form, in the proceedings.

Since we have decided that there is no error in the judgment of the trial court which dismisses the third-party action filed by Commercial and Rozelle, it logically follows that the trial court also did not err in the judgment which it rendered on January 15, 1976, ordering that the notice of lis pendens filed by those defendants (third-party-plaintiffs) be cancelled from the records of Lafayette Parish.

We turn now to the question of whether the trial court erred in its judgment rendered on January 13, 1976, sustaining the exception of vagueness which Alison filed to defendants’ reconventional demand.

The judgment sustaining that exception is neither a final judgment, nor is it an interlocutory judgment which may cause irreparable injury. Defendants thus are not entitled to appeal from that judgment. LSA-C.C.P. art. 2083; LaFleur v. Dupuis, 147 So.2d 724 (La.App. 3 Cir. 1962).

The record also shows that five days after the above judgment was rendered, defendants voluntarily filed an amended answer and reconventional demand in which they particularized the vague allegations contained in their original pleadings, all in compliance with the judgment rendered by the trial court. Defendants thus voluntarily and unconditionally acquiesced in that judgment, and the question of whether the trial court erred in rendering that judgment is now moot.

We have decided that the appeal taken from the judgment rendered by the trial court on January 13, 1976, sustaining the exception of vagueness filed by plaintiff Alison must be dismissed at appellants’ cost.

For the reasons herein set out, we hereby dismiss the appeal taken by defendants (plamtiffs-in-reconvention) from the judgment rendered by the trial court on January 13, 1976, sustaining the exception of vagueness heretofore filed by Alison Mortgage Investment Trust to the reconventional demand filed by said defendants. We hereby affirm (1) the judgment rendered by the trial court on January IS, 1976, ordering the cancellation of the notice of lis pendens from the records of Lafayette Parish, and (2) the summary judgment rendered by the trial court on February 5, 1976, dismissing the third-party action instituted by defendants, Commercial Leasing and Financing Co., Inc., and William C. Rozelle, against Sheriff Carlo P. Listi.

The costs of this appeal are assessed to appellants Commercial Leasing and Financing Co., Inc., and William C. Rozelle.

APPEAL DISMISSED AS TO ONE JUDGMENT; AFFIRMED AS TO REMAINING JUDGMENT.


text:
    Louise B. PERRERE v. BANK OF NEW ORLEANS AND TRUST COMPANY et al.
    No. 7724.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1976.

      Drury, Lozes & Curry, Robert H. Wood, Jr., New Orleans, for appellant.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Donald O. Collins, New Orleans, for appellees.
    Before GULOTTA, STOULIG and MORIAL, JJ.
   STOULIG, Judge.

Plaintiff, Louise B. Perrere, filed suit claiming she was entitled both to damages under C.C. art. 2315 and workmen’s compensation benefits for an injury she incurred on February 23, 1970 when an elevator door suddenly closed and struck her arm as she was leaving her job. Named defendants are her then employer, Bank of New Orleans and Trust Company, and its compensation insurer, Employers Liability Assurance Corporation; and Louisiana Elevator Corporation, which performed exclusive maintenance service on the elevator, and its liability insurer, The Travelers Insurance Company. The compensation insurer intervened in the tort suit seeking reimbursement from the negligence action defendants for the compensation it had paid or might be condemned to pay.

After trial on the merits, judgment was rendered dismissing plaintiff’s tort action and the intervention and awarding plaintiff workmen’s compensation benefits of $28.-40 per week from March 1970 to May 10, 1973 and $822.40 medical payments. Only the defendant employer has appealed.

The questions before us are (1) whether the plaintiff established her claim of disability by a preponderance of the medical evidence; and (2) the extent of liability of Louisiana Elevator Corporation and its liability insurer.

Unquestionably Mrs. Perrere was hit on the right arm by a closing elevator door as she was leaving the Bank of New Orleans after completing her duties as a key punch operator. Admittedly she incurred a bicip-ital tendonitis (inflammation of the upper right arm tendon) as a result of the trauma. At issue is the length of time this condition was disabling. Appellant contends the after effects of the blow subsided within several months of the incident, while plaintiff claimed she still suffered with this disabling condition when this matter was tried some five years after the accident.

The chronology of medical treatment is as follows:

March 16, 1970 — Dr. Pierre Espenan of Houston, Roy and Faust examined plaintiff, recorded a history of this accident, injected the area with a steroid to relieve pain, and began plaintiff on a course of diathermy.
March 25, 1970 — Dr. Richard Faust first saw plaintiff, reviewed history written by his associate Dr. Espenan, testified his findings supported complaints of bicipital tendonitis, prescribed pain medication and injection, and ordered the diathermy continued.
April 6, 1970 — Dr. Faust writes report indicating the condition should subside in several weeks.
April 24, 1970 — Plaintiff appeared at Dr. Faust’s office and claimed she was having too much pain to submit to treatment. At that time she cancelled an appointment for diathermy for April 27, 1970 and never returned. The doctor notes she “deserted” treatment on April 24, 1970. By registered letter, this medical office requested that she come in for further evaluation and she never did respond although a receipt signed by plaintiff indicates she received the letter.
April 28, 1970 — Plaintiff contacted her own physician, Dr. Lloyd LoCascio, a general practitioner, who testified that she developed bicipital tendonitis as a result of the blow by the elevator door which, while improved within the five years he had been seeing her, still left her in a disabled condition. During the course of this treatment, Dr. LoCascio referred plaintiff to Dr. George Batta-lora, an orthopedic specialist, and later to Dr. S. J. LeCoco, also an orthopedic surgeon. (The court was not given the benefit of their evaluation because plaintiff, without explanation, failed to call either as a witness.)
April 11, 1973 — Plaintiff, a full-time employee of Pan American Life Insurance Company for many years, had a serious fall on the job that required extensive hospitalization. In this accident she received a hard blow to the right arm and shoulder. (We note here Mrs. Per-rere was a key punch supervisor and this job did not require her to operate the key punch machine.)

Mrs. Perrere relies solely on the medical testimony of Dr. LoCascio to prove her claim of disability as a result of the elevator incident. His testimony is not impressive. There is no explanation why plaintiff failed to call the specialists to whom Dr. LoCascio referred her for orthopedic evaluation of the specific problem she claims is disabling.

Defendants called Dr. Faust, whose last prognosis was that the plaintiff’s injury would subside without residual disability in the immediate future. Dr. Claude Williams, an orthopedic specialist, examined plaintiff on April 16, 1970, evaluated her injury as minor, recommended she continue treatment with Dr. Faust, and predicted the problem would be completely alleviated in one month.

In weighing the respective medical testimony, the trial judge commented:

“Dr. LoCascio gave the Court the distinct impression of one who was personally opposed to the cross-examining attorney. He took offense at being questioned on cross-examination; he was an argumentative, adamant witness and his general demeanor on cross-examination was one of pertness, pert to the point of being rude and offensive. As regards this plaintiff’s shoulder injury in the elevator-door accident, the court gives far greater weight to the testimony of Dr. Faust and Dr. Williams.”

We conclude the medical evidence does not sustain Mrs. Perrere’s claim of disability beyond May 16, 1970. In referring plaintiff to two orthopedic specialists for treatment, Dr. LoCascio has tacitly acknowledged the need for more specialized evaluation and/or treatment. Plaintiff’s failure to call either as a witness without explaining their absence creates a presumption their testimony would be adverse to her claim. Then if we apply the general rule of evidence that the specialist’s testimony is given more weight than that of the general practitioner because the specialization presupposes he is more knowledgeable in the field, this further weakens plaintiff’s case.

Although the procedural rules of evidence are relaxed in presenting a claim for workmen’s compensation, the plaintiff is still required to establish her case by a preponderance of the evidence. Plaintiff’s case rests on the testimony of Dr. Lo-Cascio whom the trial judge found hostile. Even though the trial judge’s written reasons stated he was more impressed with defendants’ medical witnesses, he resolved the question of disability in plaintiff’s favor. We would affirm this finding if we did not have to consider plaintiff’s unexplained failure to call the orthopedic specialists she consulted. Thus when we weigh this adverse presumption with the testimony as a whole, we conclude plaintiff has failed to prove disability beyond May 16, 1970.

We use this date (May 16, 1970) because one month prior Dr. Williams projected her disability would end in this period of time. Because plaintiff “deserted” Dr. Faust’s treatment on April 24, 1970 and failed to respond to further inquiry from that office, there is no definitive way of pinpointing the date she was no longer disabled from this accident.

Appellant next contends it is entitled to reimbursement from Louisiana Elevator Corporation and its insurer. We dismiss this claim because we conclude there is no showing of negligent maintenance by this defendant. Its records reflect it had no reports of problems with the elevator within three months before or three months after the accident. Routine maintenance required bimonthly inspection. Appellant suggests we apply the rule of res ipsa loquitur to shift the burden of proof to Louisiana Elevator Corporation. This rule is inapplicable because plaintiff did not prove that improper maintenance was the most plausible explanation for the incident to the exclusion of any other probable cause.

For the reasons assigned, the judgment appealed from is amended as it affects the Bank of New Orleans and Trust Company to reduce the award of workmen’s compensation and to decree benefits of $28.40 per week due from the date of the accident through May 16, 1970. The judgment awarding plaintiff $822.40 in medical payments is reversed. The judgment dismissing the petition of intervention is affirmed. Costs of this appeal are to be borne by the Bank of New Orleans and Trust Company.

AMENDED IN PART; REVERSED IN PART; AFFIRMED IN PART.

      . L.R.S. 23:1101.

      . Plaintiff supplemented her income with a part-time job at the Bank of New Orleans as a key punch operator two nights per week.

      . Richard v. Guillot, 271 So.2d 719 (La.App. 1st Cir. 1972).

      . Brown v. Employers Commercial Union Insurance Co., 316 So.2d 194 (La.App. 4th Cir. 1975).

      . Boudreaux v. American Insurance Company, 262 La. 721, 264 So.2d 621 (1972).


author: JONES, Judge.

text:
    Margaret F. WALKER, Plaintiff-Appellant, v. INTERSTATE FIRE & CASUALTY INSURANCE COMPANY et al., Defendants-Appellees.
    No. 12949.
    Court of Appeal of Louisiana, Second Circuit.
    July 7, 1976.
    Kidd, Katz & Strickler, Monroe, by George M. Strickler, Jr., New Orleans, for plainti f f-appellant.
    Cook, Clark, Egan, Yancey & King by Benjamin C. King, Shreveport, for defendants-appellees.
    Before HALL, MARVIN and JONES, JI-
   JONES, Judge.

This is an appeal from a judgment sustaining a peremptory exception of no cause of action to plaintiff’s petition for damages.

Plaintiff alleges that Ernest Jenkins, Jr. was serving a six month sentence in the Bienville Parish jail under the care, custody and control of Arvis E. Whitman, sheriff of that parish. Plaintiff contends that Jenkins had a history of criminal offenses, including escapes from custody and mental instability, and that the sheriff was aware of those facts, as well as the fact that Jenkins was generally expected to be “potentially dangerous.” According to plaintiff’s petition, Jenkins was permitted “to come and go from jail almost totally at will with little or no supervision.”

Plaintiff further alleges the following:

“On or about July 7, 1973, Ernest Jenkins, Jr. left the Bienville Parish jail, stole a 30-30 rifle, went to the house of petitioner which is also located in Bien-ville Parish, and without any provocation whatsoever, shot through the window of petitioner’s house at petitioner, hitting her, severely injuring her, and almost killing her, as she lay in bed asleep.”

Plaintiff contends that the negligence of the sheriff was the legal cause of her injuries.

Defendants Arvis Whitman and Interstate Fire and Casualty Insurance Company, his insurer, filed an exception of no cause of action contending that the injury of which plaintiff complains was too remote to be attributable to the negligence of the defendants.

An exception of no cause of action was filed on behalf of the Bienville Parish Sheriff’s Department asserting that there is no such legal entity and praying for dismissal of that named defendant. That exception was sustained as was the exception of the sheriff and his insurer. With respect to the latter, the lower court stated that “even assuming the negligence of the defendants as alleged by the plaintiff, under the jurisprudence of this state, . . . the peremptory exception of no cause of action should be sustained.”

We find the court erred and reverse the lower court judgment with respect to the sheriff and his insurer and remand the case for further proceedings.

The lower court cited Green v. State, 91 So.2d 153 (La.App. 1st Cir. 1956) involving a suit for damages inflicted by an escapee’s negligent operation of an automobile, as authority for its position. That case is distinguishable from the instant situation as alleged by plaintiff in that the risk encountered by that plaintiff, i. e., injury through negligent operation of a vehicle, was not encompassed within the state’s duty with respect to incarcerated criminals. The court in Green, supra, stated:

“Accepting the pleaded facts concluding State employees to be negligent in the prisoner’s escape, nevertheless in our opinion the District Court correctly held that as a matter of law the negligent acts or omissions permitting such escape were not the direct, efficient, and proximate cause of plaintiffs’ injuries through the prisoner’s subsequent negligent use of an automobile; that the breach of the duty and the duty breached were not sufficiently related to the injuries received as to import liability for damage resulting from the breach. We do not believe that the negligent operation of a car then unavailable, to have been the natural and probable and reasonably foreseeable consequences of the initially negligent acts or omissions of State employees; the theft and negligent use being so remote and separated in time and by intervening circumstances from the initial negligence, which allegedly permitted the prisoner to escape his confinement. See Mire v. East Louisiana Railroad Co., 42 La.Ann. 385, 7 So. 473; Cappel v. Pierson, 15 La.App. 524, 132 So. 391.” Id at p. 155.

The instant case is controlled by Webb v. State, 91 So.2d 156 (La.App. 1st Cir. 1956), decided on the same day as Green, supra. The court affirmed an award for personal injuries sustained by a woman who was shot by an escapee from Angola. The court distinguished Webb, supra, from Green, supra, in the following manner:

“It should be pointed out, perhaps, that the views herein expressed are not inconsistent with those set forth in Green v. State of Louisiana. See La.App., 91 So.2d 156. In the latter case we stated that we did ‘not believe that the negligent operation of a car then unavailable, to have been the natural and probable and reasonable foreseeable consequence of the initially negligent acts or omissions of State employees . . . ’ In the case at bar, on the contrary, we do believe, as did the trial judge, that the inflicting of wounds on others in the course of escape by a convict through the use of a pistol made available by the negligence of State employees to be a most probable and reasonable foreseeable consequence of the original act or acts of negligence.” Id. at p. 163.

This distinction was again recognized in Geiger v. State, Department of Institutions, 242 So.2d 606 (La.App., 1st Cir. 1970), where the court reversed a dismissal on an exception of no cause of action, stating:

“ * * * It can certainly be argued, and plaintiff may be able to establish at a trial on the merits, that it was a foreseeable consequence of the alleged negligence of defendant and its personnel that the escaping inmates would attempt to perpetrate crimes against adjacent, unguarded residents such as plaintiff. Again, it is significant to note that plaintiff has alleged facts supporting such a contention, including the allegation that both of these inmates were the type from whom such activity could reasonably be anticipated . . .
“The case of Green v. State of Louisiana, Through Department of Institutions, cited supra, is distingishable in view of the alleged intervening, independent negligent operation of a motor vehicle which was stolen by the inmate rather than perpetration of an intentional tort against adjacent residents by an escaping prisoner.
“Whether or not the negligence of the State’s prison or institution personnel constitutes a proximate cause of injuries and damages sustained by third persons as a result of actions by the escaping prisoner or inmate depends upon the facts of each particular case. Considering the allegations of plaintiff’s petition and recognizing the doubts should be resolved in favor of a trial on the merits, we cannot say that as a matter of law the negligence with which the State and its personnel are charged could not constitute a proximate cause of plaintiff’s injuries and alleged damages.” Id at 609, 610.

In considering a petition against which an exception of no cause of action has been raised, every reasonable interpretation must be accorded its language in favor of maintaining the sufficiency of the petition and affording the litigant an opportunity to present his evidence. Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La.1975); Eschete v. City of New Orleans, 258 La. 134, 245 So.2d 383 (1971). Pleadings must be reasonably construed so as to afford litigants their day in court, to arrive at the truth and to avoid a miscarriage of justice. Budget Plan of Baton Rouge, Inc. v. Talbert, 276 So.2d 297 (La.1973). The allegations of plaintiff’s petition are sufficiently broad to allow proof of facts imposing liability on defendants for the damage caused by the escapee.

In light of the foregoing applicable principles, we conclude the trial court erred in finding that as a matter of law, plaintiff could not recover under the allegations of her petition.

The judgment of the trial court sustaining the peremptory exception of no cause of action is reversed and the case is remanded for further proceedings consistent herewith.

Reversed and remanded.


author: PRICE, Judge.

text:
    Gary EVANS, Plaintiff-Appellant, v. A. L. “Rabbit” LITTON, Defendant-Appellee.
    No. 12963.
    Court of Appeal of Louisiana, Second Circuit.
    July 7, 1976.
    John M. Robinson, Springhill, for plaintiff-appellant.
    Colvin, Hunter, Brown & Plummer by Robert E. Plummer, Mansfield, for defendant-appellee.
    Before BOLIN, PRICE and MARVIN, JJ.
   PRICE, Judge.

Gary Evans brought this action against A. L. Litton to recover damages for the alleged shooting by Litton of three dogs belonging to plaintiff on September 16, 1975. Defendant, in an answer and reconventional demand, admitted shooting the dogs, but alleged he took this action because he found the dogs in a hog pen belonging to him eating on three Hampshire hogs which the dogs had just killed. Defendant also contends one of the dogs growled and leaped at the fence indicating he would attack him. Defendant asked to be awarded judgment for the value of the hogs and for fifteen chickens alleged to have been killed by the dogs a few days prior to this incident.

After trial of the merits, the district court rejected plaintiff’s demands and awarded defendant judgment on his recon-ventional demand for the sum of $300, the estimated value of the hogs. The remaining demand for the value of the chickens alleged to have been destroyed was rejected.

Plaintiff has appealed from this judgment assigning as error the finding by the trial judge that the dogs were vicious within the purview of LSA-R.S. 3:2773, which had the effect of exonerating defendant from liability in shooting the animals. Appellant also contends the amount awarded for the value of the hogs is excessive.

The pertinent facts giving rise to this controversy are set forth accurately in the trial judge’s reasons for judgment as follows :

The evidence establishes that Mr. Floyd N. “Bud” Evans, Jr., who is the father of Plaintiff, Gary Evans, and Mr. A. L. “Rabbit” Litton live on adjoining farms in the Evelyn Community.
During the period of time here involved the two Great Danes and the Dal-mation, all three of which belonged to Mr. Gary Evans, were staying on the Evans farm. It was stipulated that the dogs were registered animals.
Mr. Litton maintained a hog pen on his farm. It was located on a small parcel of his land that lay between a road and a fence that was built on a property line between the lands of Mr. Litton and Mr. Evans. In other words, the hog pen was only a few feet from Mr. Evans’ farm. In fact, the hog pen was only about 100 yards from Mr. Evans’ dairy barn.
The hog pen was built out of panels of tin and wide planks, which were nailed, lengthwise to posts to form the pen. Entrance to the pen could be made through a gate, which could be fastened. The sides of the pen were about “shoulder” high to the average sized adult, and were of a sufficient height that a passerby would not be able to clearly see into the pen unless he got up close to it. There were three grown Hampshire breed hogs in the pen on September 16, 1975.
On that date, September 16, 1975, Mr. Litton and his employee, Mr. Joseph C. Remedies, were passing in the vicinity of the hog pen, and their attention was drawn to the pen by some activity there. Upon investigating Mr. Litton found Mr. Evans’ three dogs in the pen, two of which were running about, and one, the Dalmation, was eating on one of his hogs. The three hogs were lying on the ground, near death, but “still kicking” when he looked in the pen. Apparently they died shortly thereafter. As Mr. Litton approached the pen one of the dogs growled and lunged against the inside of the pen at him. Mr. Litton had a .38 caliber pistol, and with this pistol he shot and killed the dog that had lunged at him. He then shot and killed the other two dogs. All three of the dogs were in the hog pen when he killed them. Upon examining the hogs Mr. Litton and Mr. Remedies found that they were dead. They were gashed and cut all over, and were quite bloody.
Mr. Litton and Mr. Remedies found that the gate to the hog pen was closed and fastened.

LSA-R.S. 3:2773 in pertinent part reads as follows:

* * * Any citizen or officer may kill any dangerous or vicious dog, and no citizen or officer shall be liable to damages or to prosecution by reason of killing any dangerous or vicious dog.

Whether or not the dogs involved were vicious within the meaning of the foregoing statute is a factual determination to be made by the trial judge on the basis of how a reasonable man would have reacted upon finding the dogs slaughtering the swine. See State of Louisiana, In the Interest of Claude Randolph Ballard, Jr., 301 So.2d 436 (La.App. 2nd Cir. 1974).

The trial judge resolved this issue in favor of defendant for the following reasons :

Mr. Litton found the dogs on his land, in his locked hog pen, at a time when they had obviously just finished killing his three large hogs. One of the dogs growled at Mr. Litton and lunged at him. Since the dogs had undoubtedly jumped into the pen they could jump out. The acts of killing the hogs was vicious, as well as the general mood of the dogs when Mr. Litton and Mr. Remedies appeared on the scene. The growling and jumping of the dog was a hostile act. The evidence establishes that the dogs, which were very large animals, gave every indication of being vicious and dangerous, and Mr. Litton was justified, under the provisions of LSA-R.S. 3:2773, in killing the dogs. * * *

From our study of the record, we find no manifest error in the conclusion reached by the trial judge on this issue.

As the trial court found as a fact the dogs killed the three hogs belonging to Litton, there is no question as to the liability of their owner, Evans, for the damages caused by the dogs. C.C. Article 2321. Holland v. Buckley, 305 So.2d 113 (La.1974).

The evidence is insufficient to sustain the amount awarded by the trial court for the value of the hogs. The court accepted the testimony of Litton that he estimated the weight of the swine to be approximately 200 pounds each. This finding overlooks the testimony of Litton’s employee, Remedies, who picked up and loaded the dead hogs after the incident, that they probably weighed 75 to 100 pounds each. As he physically handled the dead animals, he was in the best position to judge their weight. For this reason, the judgment should be reduced to allow Litton damages for 300 pounds at the accepted price of $.50 per pound or a total of $150.

The judgment appealed from is amended to reduce the sum awarded to the original defendant and plaintiff in reconvention from $300 to $150, and in all other respects the judgment is affirmed. Costs of this appeal are to be divided equally between the parties.


author: GULOTTA, Judge.

text:
    Chalin O. PEREZ v. Mary Ellen Sheehan, wife of Chalin O. PEREZ.
    No. 7689.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1976.
    Rehearing Denied July 29, 1976.

      Provensal & Fitzmaurice, Sidney W. Provensal, Jr., New Orleans, for plaintiff-appellee.
    Tucker, Schonekas & Garrison, Gibson Tucker, Jr., New Orleans, for defendant-appellant.
    Before GULOTTA, STOULIG and MORIAL, JJ.
   GULOTTA, Judge.

The husband was granted a judgment of separation on November 24, 1974, on the ground of the defendant-wife’s abandonment. Thereafter, a judgment of divorce was granted to the husband based on the fact that he and his wife had been living separate and apart for one year, without reconciliation, following the judgment of separation. The wife appeals. We affirm.

Defendant asserts three assignments of error on appeal. The first is that the petition for divorce is a supplemental petition, asserting a cause of action which has become exigible since the date of the filing of the original petition. According to defendant, LSA-C.C.P. art. 1155 required plaintiff, upon motion, reasonable notice and contradictory hearing to obtain a court order permitting the filing of the supplemental petition. Such an order was not obtained in the instant case. Defendant further contends that if the petition for divorce is not a supplemental petition, but a demand for a separate unrelated cause of action, i.e., a divorce, plaintiff is required to file a new suit, bearing a new number and requiring allotment. Defendant contends that in either case, whether the petition for divorce is a supplemental petition, or a new petition asserting a new cause of action, plaintiff utilized improper procedure. According to defendant, plaintiff neither obtained an order permitting the filing of a supplemental petition, nor filed the divorce in a separate proceeding.

Defendant’s second assignment of error is that the trial judge erred in maintaining plaintiff’s exception of no right or cause of action to defendant’s demand that she be permitted to offer evidence in the divorce proceedings on her freedom from fault. Defendant acknowledges that our Louisiana Supreme Court in Fulmer v. Fulmer, 301 So.2d 622 (La. 1974), concluded that a determination of fault in a separation proceeding bars relitigation of the fault issue in a subsequent divorce proceeding when the final divorce is sought on the basis of the parties living separate and apart for one year, without reconciliation, following the judgment of separation. However, it is defendant’s contention that the Constitution of 1974, effective as of December 31, 1974, provides for equal protection and no discrimination based on sex. Defendant claims that on December 31, 1974, LSA-C.C. arts. 39 and 120 assumed a new posture under our law. According to defendant, these articles can serve only as a vehicle for the granting of a separation based on abandonment, but cannot serve as the basis for forfeiture of a spouse’s property rights, i.e., the right to claim alimony.

Defendant’s third specification of error is that the trial judge erred in maintaining the husband’s exception of no cause of action to the wife’s request for an increase in the amount of her monthly allowance from $3,000.00 to $5,000.00, payable from the proceeds of the community and remaining in effect until a full settlement of the community has been made. It is defendant’s contention that in plaintiff’s motion to terminate alimony, filed in the separation proceeding, plaintiff acknowledged that the community has and continues to have considerable income, one half of which belongs to defendant, and that the community income is more than adequate to allow plaintiff to pay to defendant the sum of $3,000.00 per month from defendant’s share of the community income.

PROCEDURE

Defendant’s contention that plaintiff’s petition for divorce was a supplemental petition, requiring plaintiff, upon motion and reasonable notice, to obtain a court order permitting the filing of the divorce petition, is without merit. The petition for divorce is not a supplemental petition which is related to or connected with the original cause of action. The original demand is for a separation based on abandonment. The demand for divorce is a new and separate cause of action.

In Wallace v. Hanover Insurance Company of New York, 164 So.2d 111 (La.App. 1st Cir. 1964), writ refused, 246 La. 598, 165 So.2d 486 (1964), the court concluded that the insurer’s defense of “false swearing”, sought to be raised by a supplemental answer, was improper because it did not relate back to the defense filed in the original answer and was filed without reasonable notice to the opposing party. However, in defining a supplemental pleading, the court stated:

“A supplemental pleading is one which supplements, adds to or continues the original pleadings. * * *
. . the supplemental pleading cannot be used to assert a new cause of action or defense. * * * ”

Applying Wallace, supra, to the facts in the instant case, we conclude that the petition for divorce is not a supplemental petition, and LSA-C.C.P. art. 1155 is not applicable.

It is true that under ordinary circumstances, since the petition for divorce is a new and separate cause of action, plaintiff would be required to file the divorce suit in a separate proceeding, bearing a separate number and requiring allotment. In this connection, plaintiff claims that the Civil District Court for the Parish of Orleans, the 24th Judicial District Court and the 25th Judicial District Court all have adopted court rules permitting the filing of a divorce suit, based on a legal separation, in the same proceeding in which the separation suit was filed. However, the court rules were not placed in evidence in the instant matter, and we are unable to take judicial cognizance of them. Trahan v. Petroleum Casualty Company, 250 La. 949, 200 So.2d 6 (1967).

Nevertheless, as any practicing attorney recognizes, it is customary that a petition for divorce, based upon a judicial separation, be filed in the original proceeding. Though we are unable to take judicial cognizance of the court rules, we can appreciate the logic behind the adoption of such a rule. Understandably, in cases involving marital disputes, it is a far better practice for the judge who heard the separation suit and ancillary matters connected with the separation, i.e., alimony and custody, to also consider the divorce action based upon the judgment of separation. Presumably, that judge is familiar with the matters with which he had been confronted in the separation proceeding.

RELITIGATION OF FAULT

We also find no merit to defendant’s contention that the denial by the trial court of Mrs. Perez’s demand to relitigate the fault issue is violative of the equal protection and sex discrimination provisions of the Louisiana Constitution of 1974. The Louisiana Supreme Court in Fulmer, supra, stated:

“. . . that the judicial determination, in the separation proceeding, of the party at fault in the separation bars re-litigation, in the subsequent divorce proceeding, of the fault which caused the separation, when such need be determined for the purpose of awarding post-divorce alimony under the code article. * * *”

The Fulmer decision applies equally to the husband and to the wife. We conclude that the 1974 Constitution does not affect the result reached in Fulmer, and that Ful-mer is not violative of the provisions of the 1974 Constitution.

Furthermore, even if LSA-C.C. arts. 39 and 120 have new meanings under the 1974 Constitution, as claimed by-defendant, the Constitution, effective December 31, 1974, can have no retroactive effect on a judgment rendered prior to the effective date. Additionally, we point out that no appeal was taken from the judgment of separation, based on abandonment, and the judgment is now final. Defendant, in effect, by this appeal, seeks to set aside the effect of the separation decree from which no^ appeal has been taken.

DEMAND FOR MONTHLY ALLOWANCE INCREASE

Finally, we reject defendant’s contention that the trial judge erred in dismissing, on exceptions, defendant’s request for an increase in the amount of the monthly allowance to be paid to Mrs. Perez from the proceeds of the community. The trial judge properly held that the question of community income was pending in a separate suit for partition of the community assets.

Questions involving the status of the property, i.e., whether separate or community, and the accounting of community income lie within the ambit of the partition proceedings. Logically, if no determination has been made as to which property is separate and which property is community, no determination can be made as to the amount of community income to which each party is entitled. This question is more properly considered in the partition proceedings.

Furthermore, it is true, as contended by defendant, that plaintiff did enter into a joint motion agreeing to pay the wife the sum of $3,000.00 per month, payable from the wife’s share of community income, and stated that the community income was “more than adequate” to allow Perez to pay to his wife the stipulated amount from her share of the community income. However, the joint motion does not state that the wife’s share of the community income is sufficient to allow payment of $5,000.00 per month.

We point out also that the $3,000.00 monthly allowance is not alimony pendente lite. It is, according to the joint motion and order, an advance to Mrs. Perez from her share of the community income. Therefore, although the divorce decree is silent on payment of alimony or payment of the monthly allowance, the obligation for payment continues after divorce. Presumably, the amount of income to be derived by both parties from the community assets will be finally determined in the partition proceedings. Under the circumstances, we conclude the trial judge properly maintained the exception to defendant’s demand for an increase in the monthly allowance in the divorce proceeding.

Accordingly, the judgment is affirmed.

AFFIRMED.

      . LSA-C.C.P. art. 1155 reads as follows:
      Art. 1155. Supplemental pleadings
      “The court, on motion of a party, upon reasonable notice and upon such terms as are just, may permit mover to file a supplemental petition or answer setting forth items of damage, causes of action or defenses which have become exigible since the date of filing the original petition or answer, and which are related to or connected with the causes of action or defenses asserted therein.”

      . The separation decree was granted on November 29, 1974. The petition for divorce was filed on December 1, 1975, and the judgment of divorce was rendered on January 15, 1976.

      . LSA-C.C. art. 39 reads as follows:
      Art. 39. Married women; minors and interdicts
      “Art. 39. A married woman has no other domicile than that of her husband; the domicile of a minor not emancipated is that of his father, mother, or tutor; a person of full age, under interdiction, has his domicile with his curator.”

      .LSA-O.C. art. 120 reads as follows:
      Art. 120. Obligation of living together
      “Art. 120. The wife is bound to live with her husband and to follow him wherever he chooses to reside; the husband is obliged to receive her and to furnish her with whatever is required for the convenience of life, in proportion to his means and condition.”

      . Art. 1, § 3 of the Louisiana Constitution of 1974 provides:
      § 3. Right to Individual Dignity
      ‘.‘Section 3. No person shall be denied the equal protection of the laws. No law shall discriminate against a person because of race or religious ideas, beliefs, or affiliations. No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affiliations. Slavery and involuntary servitude are prohibited, except in the latter case as punishment for crime.”

      . See Welsh v. Welsh, 322 So.2d 352 (La.App.4th Cir. 1975), affirmed, 325 So.2d 604 (La.1976).

      . The judgment of separation was granted on November 29, 1974. See Louisiana Constitution of 1974, Art. 14, § 26.

        .Gouaux v. Gouaux, 211 So.2d 97 (La.App. 1st Cir. 1968) ; LSA-C.C. art. 2406; Butler v. Butter, 228 So.2d 339 (La.App.1st Cir. 1969) ; Fortier v. Fortier, 221 So.2d 653 (La. App.4th Cir. 1969), writ refused, 254 La. 292, 223 So.2d 412 (1969).


author: BERTRAND, Judge.

text:
    Violet Elizabeth CROOKS, Plaintiff-Appellee, v. BELDEN CORPORATION, d/b/a Jena Wire and Cable Company, Defendant-Appellant.
    No. 5538.
    Court of Appeal of Louisiana, Third Circuit.
    July 6, 1976.

      Gaharen, Richey & Wilson, by Joseph Wilson, Jena, for defendant-appellant.
    Long & Peters, by Jimmie C. Peters, Jena, for plaintiff-appellee.
    Before CULPEPPER, GUIDRY and BERTRAND, JJ.
   BERTRAND, Judge.

Violet Elizabeth Crooks brought suit against her former employer, Jena Wire and Cable Company, for workmen’s compensation benefits. Jena appeals from a judgment in favor of Mrs. Crooks awarding her compensation, as well as penalties and attorney’s fees. We affirm that portion of the trial court’s opinion which awarded workmen’s compensation benefits and reverse that portion awarding penalties and attorney’s fees.

Mrs. Crooks alleged that on October 23, 1974, she overlifted materials to be shipped out of the plant and felt a pull in her back. She further alleged that she felt immediate pain, to the extent that she had to sit and rest for about ten (10) minutes. There were no witnesses to the accident. Mrs. Crooks did not advise any co-employee or supervisor of her injury until approximately one (1) week after the accident. In the interim, she had voluntarily terminated her employment with Jena on October 25, 1974, after being denied a chance to bid on a different job opening.

In a telephone conversation on October 30, 1974, Mrs. Crooks reported her injury to Robert Day, the Plant Personnel Supervisor. However, it was only after she had inquired about receiving unemployment compensation and had been told that she was not eligible that Mrs. Crooks mentioned a claim for workmen’s compensation.

After reviewing Mrs. Crooks’ claim, Jena denied her workmen’s compensation benefits.

The district judge found, as a matter of fact, that Mrs. Crooks had sustained a lumbosacral sprain on October 23, 1974, which rendered her disabled within the meaning of the Louisiana Workmen’s Compensation Act. The court awarded her benefits for total and permanent disability.

It is well settled that factual conclusions of the trial court must be given great weight by a reviewing court. Canter v. Koehring, 283 So.2d 716 (La.1973). Roussel v. Colonial Sugars Co., 318 So.2d 37 (La.1975). This is particularly true when they are based on the credibility of witnesses, for such conclusions will not be disturbed absent manifest error. Guilbeau v. Guilbeau, 308 So.2d 435 (La.App. 3d Cir. 1975), writ denied 313 So.2d 239 (La). Therefore, the trial court’s findings must be clearly erroneous before an appellate court may substitute its own findings, Guidry v. State, (Through Department of Hospitals, 317 So.2d 222 (La.App. 3d Cir. 1975), writ refused 320 So.2d 904 (La.).

The jurisprudence is also well settled that a plaintiff in a workmen’s compensation case has the burden of establishing his claim to a legal certainty and by a reasonable preponderance of the evidence. Where the plaintiff’s testimony is clear and convincing, even though it be the sole evidence to prove the occurrence of an accident, the reviewing court may uphold the findings of the trial court if the testimony is plausible and consistent and is otherwise supported by the record. Alfred v. Travelers Insurance Co., 322 So.2d 872 (La.App. 3d Cir. 1975) and the cases therein cited.

Although Mrs. Crooks did not report her accident to a superior or co-worker prior to October 30th, her husband and her sister-in-law testified that on the night of the accident, Mrs. Crooks complained of an injury that had occurred at work that day.

Mrs. Crooks told three of her four treating physicians that the injury to her back was a result of an accident at work. Although most of the medical evidence as to the injury itself was based on subjective testing, there was an objective finding of an involuntary muscle spasm by Dr. Ram-bach, an orthopedic surgeon. Dr. Rambach and Dr. Turnley testified to the effect that Mrs. Crooks’ slow recovery was attributable to a pre-existing degeneration of the lumbosacral joint disc. However, this is of no moment, because a disability is fully compensable when caused by an on the job accident, even though it is caused also by a contributing pre-existing physical condition. Roberson v. Liberty Mutual Insurance Co., 316 So.2d 22 (La.App. 3d Cir. 1975), and the cases therein cited; Walker v. Belden, 331 So.2d 167 (La.App. 3d Cir. 1976).

In view of the above testimony, there is sufficient evidence upon which the trial judge could have based his opinion. For this reason, the trial court’s finding that Mrs. Crooks was disabled as the result of a work related accident is not manifestly erroneous.

Because there was corroborating testimony by Dr. Turnley and Dr. Rambach that Mrs. Crooks was still suffering and would continue to suffer indefinitely from her injury, the trial court’s finding of total and permanent disability is proper.

We think the trial judge erred in awarding penalties and attorney’s fees. LSA-R. S. 23:1201.2 provides in pertinent part:

“A. Any employer whose liability for claims arising under the provisions of this Chapter is not covered by insurance, shall pay the amount of any claim due under the provisions of this Chapter, within sixty days after receipt of written notice. Failure to make such payment within sixty days after receipt of notice, when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the employer to a penalty in addition to the amount of claim due, of 12% of the total amount of such claim, payable to the claimant, together with all reasonable attorney’s fees for the prosecution and collection of such claim. . . . ”

The penalty provided by the statute is very harsh and should not be imposed in doubtful cases. Where there is a bona fide dispute as to the occurrence of the accident or the causal connection between the accident and the disability, an employer’s refusal to pay benefits is in good faith and with just cause. Hall v. Joiner, 324 So.2d 884 (La.App. 3d Cir. 1975); Cagle v. Spade Drilling Company, Inc., 325 So.2d 354 (La.App. 3d Cir. 1975).

In the case at bar, Mrs. Crooks did not make an immediate report of the accident to a co-worker or supervisor. Instead, she waited to report the accident after she had quit her job over an unrelated dispute, and only after she had requested unemployment compensation. The accident itself was unwitnessed. There was no clear evidence to prove the occurrence of an accident other than Mrs. Crooks’ allegations. The surrounding facts and circumstances tended to discredit Mrs. Crooks’ claim, including the fact that Mrs. Crooks related different accounts of her accident to three of her doctors.

It should also be noted that the deposition testimony of Dr. Weiss, an orthopedic surgeon, was to the effect that Mrs. Crooks’ continued back problems were attributable to her hip injury from a car accident in 1962 and were no longer the result of the lifting injury. Additionally, with the exception of one objective finding by Dr. Rambach, all other medical evaluations were the result of subjective findings.

The facts and circumstances surrounding the incident in question indicate that Jena acted in good faith and for just cause in denying plaintiff’s workmen’s compensation claim. Because Jena’s refusal to pay compensation benefits was not arbitrary, capricious, or without probable cause, the trial court’s award of penalties and attorney’s fees was erroneous and is hereby reversed.

For the reasons assigned, the decision of the trial court is amended so as to delete the award for penalties and attorney’s fees. In all other respects, the decision is affirmed.

The costs of this appeal are assessed to defendant-appellant.

AFFIRMED IN PART; REVERSED IN PART.