author: BERTRAND, Judge.

text:
    Rodney JUNEAU et al., Plaintiffs-Appellants, v. INTERSTATE BLOOD BANK, INC. OF LOUISIANA, et al., Defendants-Appellees.
    No. 5440.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1976.
    Rehearing Denied June 30, 1976.
    Writ Refused Sept. 29, 1976.

      Gravel, Roy & Burnes, by Gary Boland, Alexandria, for plaintiffs-appellants.
    Provosty & Sadler, by Ledoux R. Pro-vosty, Jr., Alexandria, Gist, Methvin & Trimble, by H. B. Gist, Jr., Alexandria, for defendants-appellees.
    Before DOMENGEAUX, GUIDRY and BERTRAND, JJ.
   BERTRAND, Judge.

Mr. and Mrs. Rodney L. Juneau filed this action for damages against Interstate Blood Bank, Inc. of Louisiana, Interstate Blood Bank, Inc. of Tennessee, Sisters of Charity of Incarnate Word of the Diocese of Galveston, Inc. and their insurer, Argonaut Insurance Company. Plaintiffs contend that Mrs. Rodney L. Juneau contracted serum hepatitis as a result of having received two (2) pints of blood while a patient at St. Francis Cabrini Hospital in Alexandria, Louisiana. The trial judge dismissed plaintiffs’ suit and they have perfected this appeal.

We affirm.

The trial judge in a comprehensive and well reasoned opinion disposed of all the issues presented in this case. We adopt his opinion as our own:

“The facts are generally undisputed.

Mrs. Juneau was admitted to St. Frances Cabrini Hospital by Dr. Gordon Bowers on September 28, 1971 for the purpose of undergoing a hysterectomy. Dr. Bowers ordered, and the patient was administered, one pint of whole blood the night prior to and one pint of whole blood the morning of surgery. The blood that was administered to Mrs. Juneau was supplied to the defendant hospital by Interstate Blood Bank, Inc. of Louisiana, a subsidiary of Interstate Blood Bank, Inc. of Tennessee. The operation was successful. On October 4, 1971, after an uneventful recovery, Mrs. Juneau was discharged. Around Thanksgiving of 1971, Mrs. Juneau began experiencing pains in her joints, nausea, and extreme tiredness. In December of 1971, Mrs. Juneau visited Dr. John Lemoine of Bunkie complaining of poor health. Dr. Lemoine diagnosed Mrs. Juneau’s ailments as serum hepatitis and treated her until she recovered. This suit for general and special damages followed.

Defendants present the initial argument that plaintiffs have failed to prove that Mrs. Juneau contracted hepatitis from the blood supplied and administered by defendants. From the testimony of Mr. and Mrs. Juneau and the expert medical testimony, this Court is of the opinion that it is more probable than not that the plaintiff did indeed incur her illness as a result of the blood transfusions in question. Able counsel for plaintiffs has asserted several theories upon which recovery should be granted. Recovery is denied but each argument merits treatment. Although this is a suit which lends itself to resolution based upon public policy considerations, adequate foundations and legal theories and precedents exist for its disposition.

I. NEGLIGENCE

Although plaintiffs did not strenuously argue negligence, this issue was in fact set out in the petition and should be dealt with. Plaintiffs have not demonstrated any actionable breach of duty on the part of any of the defendants. The supplying blood bank screened donors and tested blood in accordance with the latest accepted guidelines in effect at that time. The hospital followed the normal accepted procedures in administering the blood. This Court is of the opinion that none of the defendants were negligent in their actions.

II. WARRANTY

Plaintiffs contend that they may recover under a warranty theory due to the unconsitutionality of Article 1764 B of the Louisiana Civil Code. That article, as amended in 1968, specifically excludes all implied warranties in the sale of blood, and plaintiffs so concede.

The constitutionality of Article 1764 B was presented to the Fifth Circuit Court of Appeal in Heirs of Fruge v. Blood Services, et al, 506 F.2d 841 (5th Cir. 1975). Although not binding as law upon this court, the Court’s reasoning in Fruge, supra, is correct and dispositive of this issue.

The plaintiff in Fruge, supra, contended, as do the plaintiffs at bar, that the legislature may not, acting consistently with limitations imposed by the State Constitution, eliminate causes of action already provided by the positive law of the Civil Code for the benefit of a specific individual or organization. That Court said:

'For over 50 years, the Louisiana courts have recognized the validity of legislative regulation of causes of action, including replacement and even extinction, that one person may have against another for personal injuries.’

The Court further held:

'. . .as long as a privilege or immunity “operates equally and fairly to those who engage in like transactions” and “affects alike all persons pursuing the same business under the same conditions,” the Louisiana Constitution is satisfied.’

The Fifth Circuit found, and this Court holds, that:

‘Because the article applies with such generality to all those who provide the vital medical service of supplying blood and blood components — such as blood banks, hospitals, and the like — it easily satisfies the well-established tests of constitutionality as a valid exercise of legislative authority.’ 506 F.2d 841, 848, 849 (5th Cir. 1975).

If legislatures are to be allowed to single out groups and activities for regulation, based on sound societal needs, the legislative activity in this field is steeped in constitutionality. The need for blood and its components is essential in today’s medical science. The need for protection of these supplies is dictated by these societal needs. The legislature, in acting to meet these needs, was fulfilling its duties to the people of this state.

Plaintiffs further contend that their access to the courts is eliminated. Article 1764 B of the Louisiana Civil Code does not totally immunize suppliers of blood from liability. Where the suppliers have been negligent in failing to meet the standard of care imposed by their duty owed to blood recipients, recovery will be allowed. This case does not fall within the ambits of that rule, for no negligence has been demonstrated.

Over 40 state legislatures have seen fit to afford similar protection by statutes such as Article 1764 B of the Louisiana Civil Code. The statutes, to date, have withstood constitutional attacks, cf. McDaniel v. Baptist Memorial Hospital, 469 F.2d 230, 235 (6th Cir. 1972).

Finding Article 1764 B to be within permissible constitutional bounds, no claims to recovery based on implied warranty exists. That article specifically and emphatically precludes the existence of implied warranties on the sale of blood.

III. VIOLATION OF LOUISIANA’S PURE FOOD AND DRUG LAW

Plaintiffs contend that the defendants violated Louisiana’s Pure Food and Drug Law by placing an adulterated drug on the market.

Blood is not, in the opinion of this court, a ‘drug’ within the intendment of the act. Although Louisiana R.S. 40:602 defines a drug as including all substances intended for use in the diagnosis, treatment and prevention of diseases, this court holds that the legislature had conventional drugs and potents in mind. Human blood is a tissue, and to hold that it is a drug within the contemplation of the statute would open the door to contentions that kidneys or eyes or even the heart are also drugs. Like blood, these items are organs or tissues of the body and they too are prescribed at various times during medical treatment yet are not drugs. This being the case, blood, which is of the same nature, is likewise not a drug.

Even if the transfused blood were classified as a drug, it cannot be considered adulterated. The act defines adulterated drug as one ‘which consists in whole or in part of any filthy, putrid or decomposed substances.’ The blood given to Mrs. Juneau contained the hepatitis virus. A virus is not ‘filthy’ or ‘putrid’ as those words are generally defined. Again, referring to, but not relying on, a case in the Federal Courts, it is noted that other courts have reached the same result. In Merck & Co. v. Kidd, 242 F.2d 592 (6th Cir. 1957) the Court in dealing with the identical contention likewise found the virus not to be a ‘filthy substance’. The Louisiana Legislature had totally different considerations in mind when it enacted Louisiana R.S. 40:602, et seq. The act has reference to impurities which were introduced to the drug during processing or handling and not to vital agents.

If this Court were to hold that blood is a drug and that the hepatitis virus in the blood rendered it adulterated, the plaintiffs must still fail. To be violative of the act in question, it must be shown that the defendants did not take the necessary steps to render the blood free of any defects or contaminations. In the case at bar, the evidence satisfies this Court that the defendants followed the accepted detection guidelines in effect at that time. Despite their efforts the virus went undetected.

IV. STRICT LIABILITY

The plaintiffs presented a formidable argument for recovery based upon the strict liability theory set forth by the Louisiana Supreme Court in Weber v. Fidelity & Casualty Company, 259 La. 599, 250 So.2d 754 (1971). This argument is rejected.

The Weber case, supra, held that a manufacturer of a defective product is liable when it is shown that the defects rendered the product unreasonably dangerous to normal use. No negligence is required.

The first problem encountered in applying the Weber decision is where the blood is a product. The legislature, in Louisiana Civil Code Article 1764 B, states that the furnishing of blood is to be considered as a service and not a product. This, plaintiffs counter with the proposition that blood is a service only for the purposes of warranty. It seems doubtful that the legislature, in attempting to establish a broad protection for blood suppliers, would have so restricted the definition. Circumvention of this public policy would be instantaneous. The legislature intended for the furnishing of blood to be considered a service for all purposes.

Plaintiffs’ argument also falls of its own weight in another way. Plaintiffs, as stated above, contend that blood is a service only for purposes of warranty, and yet plaintiffs, state that Weber, supra, ‘incorporates the warranty notion of strict liability.’ If that decision does indeed incorporate warranty notions, it must incorporate the notion that blood is a service and not a product. Warranty, according to the plaintiffs, is the only place that that principle is applicable.

Even if this Court'were to consider blood as a product, the blood was not unreasonably hazardous to normal use under the Weber criteria.

The question must become what is ‘unreasonably dangerous’. Plaintiffs seemingly contend that the blood was obviously unreasonably dangerous because Mrs. Juneau became ill. This can not be the test. Reasonableness must be determined in light of the need for blood transfusions compared to the likelihood of contracting hepatitis from the transfusions. Blood is vital in surgical procedures. Patients would often die without it. Although it is true that the possibility of contracting hepatitis does exist in any transfusion, the great need for these transfusions vastly outweighs the possible risks. Added to this consideration is the fact that the latest of techniques are applied to minimize the risk. With this balancing process in mind, this Court holds that blood, after being screened and tested in accordance with the accepted guidelines, cannot and should not be considered to be unreasonably dangerous to normal use. Courts in other jurisdictions have also faced these same arguments and have reached the same conclusions, cf. Hines v. St. Joseph’s Hospital, 86 N.M. 763, 527 P.2d 1075 (1974); Balkowitsch v. Minneapolis War Memorial Blood Bank, 270 Minn. 151, 132 N.W.2d 805 (1965); Shepard v. Alexian Brothers Hospital, Inc., 33 Cal.App.3d 606, 109 Cal.Rptr. 132 (1973).

V. MISCELLANEOUS

Plaintiffs also contend that St. Frances Cabrini Hospital is not covered by Article 1764 B’s protective cloak. That article refers to a ‘blood bank or reservoir of such other tissue or organs.’ As previously stated, this Court holds that the legislature sought to afford protection to all those engaged in the vital task of furnishing blood. If the legislature would have allowed hospitals to remain open to liability, its policy of insuring the adequate supplying of blood would be a dismal failure. Although blood banks would be protected, the libility visited upon administering hospitals would soon force those institutions out of this vital field of service. This Court also holds that ‘reservoir’ includes hospitals and extends to them the protection afforded by Louisiana Civil Code Article 1764 B.”

For the above and foregoing reasons, the judgment of the trial court is affirmed at the cost of plaintiffs-appellants, Mr. and Mrs. Rodney L. Juneau.

AFFIRMED.


source: Caselaw Access Project

author: MILLER, Judge.

license: Public Domain

text:
    Isaac Foreman HAWKINS et al., Plaintiffs-Appellants, v. Johnny BURLEIGH, Defendant-Appellee.
    No. 5445.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1976.
    Rehearing Denied June 30, 1976.
    Writ Refused Sept. 29, 1976.
    Tate & Tate by Donald J. Tate, Mamou, for plaintiffs-appellants.
    John Saunders, Mamou, for defendant-appellee.
    Before HOOD, MILLER and PAVY, JJ.
   MILLER, Judge.

Plaintiffs Isaac Foreman Hawkins, et al, the record owners, appeal the dismissal of their petitory action. The trial court held defendant Johnny Burleigh established thirty years adverse possession. We reverse.

This litigation commenced in February 1970 as a possessory action brought by Burleigh. During the course of the litigation, issues have been presented to four different trial judges. Burleigh’s discovery deposition was taken in March 1970 and contained admissions inconsistent with his claim of 30 years adverse possession. The attorney representing Burleigh when the possessory action was filed made no further appearance, so far as the record indicates.

The 1975 recognition of Burleigh’s title based on thirty years possession was based primarily on a prior holding by another judge which was in turn based on evidence taken by depositions in August 1970. The deciding judge’s only reference to these depositions by Burleigh’s three disinterested witnesses appears in the trial judge’s written reasons, which appear at Tr. 9 of the record in the petitory action, as distinguished from the record in the posses-sory action. The trial judge explained that since Burleigh’s possession had been recognized by another trial judge, he “feels this to be the case also, and [holds] that the Burleighs [note the plural reference to Burleigh’s father’s prior possession] have been in continuous possession of the property from the turn of the century until the present.”

The only issue presented in the possesso-ry action filed in February 1970 concerned defendant Johnny Burleigh’s possession for the year preceding the insitution of suit. LSA-C.C.P. art. 3658(2). In the possesso-ry action, Burleigh established that he fenced the property and drilled a waterwell on it in 1967 or 1968. About the same time he placed several cows on the tract and maintained exclusive possession from that date. The holding by another judge that Burleigh established possession from 1967 was eminently correct, but this decision was not concerned with Burleigh’s prior possession.

We reverse the trial court’s holding that Burleigh carried the burden to establish he commenced continuous adverse possession from the 1932 date of his father’s death.

The Hawkins established record title. They continuously paid taxes on the disputed tract and granted mineral leases on the tract from time to time. The Bur-leighs never paid taxes or granted leases.

Burleigh’s father, E. L. Burleigh, was disabled as a child. He was brought to Hawkins’ ancestor in title, Dr. J. E. Hawkins, who cared for him and raised him. Dr. J. E. provided E. L. with a small house near his own home. When E. L. reached a marriagable age in about 1896, Dr. J. E. moved the small house to the disputed 18 acre tract. Tr. 54. E. L. was disabled and could not perform manual work, but he “worked” (Tr. 45) for Dr. J. E., or acted as a “straw-boss”, “supervisor” (Tr. 69), “kind of like a little slave” (Tr. 128), for Dr. J. E. The doctor had over twenty-five families farming his properties and E. L. looked after the doctor’s interest as to whatever needed attention.

Although Burleigh’s witnesses knew his father, E. L., and Dr. J. E., they did not know anything about the doctor’s financial arrangements with E. L. They never heard the doctor say anything about the 18 acre tract belonging to E. L. They did hear E. L. say the doctor had given the property to him. These witnesses testified the 18 acre tract had always been grazed because it was not fit for farming. They testified that E. L. was unable to fence and maintain the property, but E. L.’s illegitimate son Johnny Burleigh (the defendant) did this work.

Burleigh testified that while his father lived on the place, Burleigh farmed watermelons, tomatoes, and peanuts. All witnesses agreed that one of E. L.’s prime occupations was making whiskey. Tr. 32, 47, 69, 151. When E. L. died in 1932, Bur-leigh took over the still on the 18 acre tract and when he got caught he operated stills on other properties. Tr. 151.

Burleigh’s father had legitimate children who inherited E. L.’s property, but they never claimed the eighteen acre tract.

Johnny Burleigh’s testimony was characterized by its contradictions. At one time he testified his father died in 1936 and Burleigh left the home place in the late 30ies. But Burleigh was more convincing when he indicated his father died in 1932 and he left the home place in 1934. Bur-leigh testified at the June 1971 trial of an exception (Tr. 160 of the possessory action), that he “didn’t do anything” to the property from 1932 until he had a water-well drilled in about 1967. When asked why he didn’t do anything at all on the land until 1967, he replied: — “I figured I could do anything I wanted with it, it was mine, I just didn’t go to . . .” Tr. 161.

Burleigh was born in 1912 and lived on the disputed tract until 1934. After his father died, Burleigh made whiskey and did construction work. When his work on the Chicot school was completed in 1934, Bur-leigh moved with the contractor to do construction work in other parts of Louisi-sana. He returned to Chicot in 1946 when he and his wife built a home on his wife’s 40 acre tract located some four miles from the disputed tract.

Although Burleigh testified he thought he owned the property all this time, his first attempt at adverse possession occurred in 1967 or 1968 when he fenced the property and had a waterwell drilled on it. He placed cattle on the property and claimed the disputed tract for his own. In 1969 or 1970, the Hawkins ordered him off the property and this litigation commenced.

The testimony of Burleigh and his independent witnesses established there were vestiges of E. L.’s fence around the property from 1932 until Burleigh fenced the tract in 1967 or 1968. This fencing inured to the benefit of Burleigh’s father E. L. and to his legitimate descendants who have not claimed the property. Although Bur-leigh indicated he repaired the fences from time to time after 1932 and before 1968, the disinterested witnesses were adamant that the 18 acre tract was open range. As one of Burleigh’s witnesses testified on direct examinationas of the 1940ies “. there ain’t no fence from here to Oakdale, it’s all opened back there.” Tr. 62 of the possessory action. When the fence was down, it was open range and everyone’s cows grazed the area. Tr. 59. Another witness testified that when Burleigh left in 1934 “he left the same fence that was there when the old man was there.” When Burleigh left, the tract “all went down to nothing.” Tr. 35. The majority of the fence fell down and the posts rotted. Tr. 36. The tract was open range and the witnesses’ cattle grazed the tract. Tr. 36, 37. The entire area was public. Tr. 39, 59, 61.

Another of Burleigh’s witnesses, Mr. H. E. Lewis, admitted he never saw Johnny Burleigh from the time he left in 1934 until the late 1960ies. Tr. 89.

Typical of Burleigh’s disinterest in the property after he left in 1934 is his total unconcern when the eight or nine room house located on the disputed tract burned to the ground a few months after he left. Burleigh testified: — “I never did check about anything after the house had burned, it never did cross my mind.” Tr. 124, 125 of the possessory action.

Until the petitory action was tried in 1975, the testimony was uniform that the only adverse possession exercised by Bur-leigh from 1934 until 1946 was that he “passed by” the property from time to time. Tr. 164 of the petitory action. The entirety of Burleigh’s brief testimony at the 1975 trial was his explanation that “passed by” meant he walked over the place and checked the fences, patched the fences, and would pick crabapples on the place to make jelly. That is the only live testimony Burleigh presented to the trial judge at the 1975 trial, and even this is contradicted by his prior deposition, his testimony at a prior hearing, and the depositions of his three independent witnesses which he offered in evidence.

In summary, Burleigh admits he was unconcerned when the house burned a few months after he moved away. From 1934 to 1967 he did nothing more than walk across the property and pick crabapples which in no way suggested he was maintaining adverse possession. Burleigh’s strongest claim lies in the civil possession allegedly maintained through vestiges of fences. He is not an heir to his father’s property and did not acquire the property by conveyance or donation. He is not entitled to “tack” or benefit directly from the possession of his father. Burleigh cannot benefit indirectly by ascribing to himself possession based on “works”, fences, erected during his father’s occupancy. For Burleigh to maintain his possession through works not his own, he must establish his right to them. And this he failed to do.

Burleigh is therefore not entitled to assert possession in himself through the remains of his father’s fences. There was no possession attributable to Burleigh from 1934 until 1967. His uninterrupted adverse possession commenced in that year and is far less than the thirty years required to acquire ownership by prescription.

The trial judge improperly concluded that another trial judge held Burleigh proved continuous adverse possession from the 1932 date of his father’s death. Bur-leigh failed to prove he established adverse possession prior to 1967.

Since the Hawkins established record title, the burden shifted to Burleigh to prove his thirty years adverse possession. Tinney v. Lauve, 280 So.2d 588, 590 (La.App. 4 Cir. 1973). Burleigh did not meet the requirements of LSA-C.C. art. 3500, for he did not occupy the land for the thirty year period unequivocally as owner, or in an exclusionary manner.

The trial court judgment is reversed and set aside. Plaintiffs’ record title to the disputed tract is recognized. Costs of court at trial and on appeal are taxed to defendant Johnny Burleigh.

REVERSED and RENDERED.


author: DOMENGEAUX, Judge. GUIDRY, Judge

text:
    Fannie MANUEL, Plaintiff and Appellee, v. COMMUNITY COFFEE COMPANY, INC., Defendant and Appellant.
    No. 5431.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1976.
    Rehearing Denied June 30, 1976.

      Camp, Carmouche, Palmer, Carwile & Barsh by J. L. Cox, Jr., Lake Charles, for defendant and appellant.
    David L. Levingston, Levingston, Ezell & Liles, Lake Charles, for plaintiff and appel-lee.
    Before DOMENGEAUX, WATSON, and GUIDRY, JJ.
   DOMENGEAUX, Judge.

Plaintiff-appellee, Fannie Manuel, brought this action against Community Coffee Company, Inc., defendant-appellant, her former employer, to recover benefits for total and permanent disability under the Workmen’s Compensation Act. Defendant-appellant raised the plea of prescription which was referred to the merits and subsequently overruled. The trial judge found the plaintiff-appellee to be totally and permanently disabled as a result of a work-related accident while in the defendant-appellant’s employ and awarded her commensurate benefits under the act. From this judgment the defendant-appellant has appealed.

We affirm.

Defendant-appellant bases its appeal upon two contentions:

1. The accident which plaintiff contends was disabling occurred more than one year prior to the filing of this action, and her prosecution of said claim is barred by the prescriptive period set forth in LSA R.S. 23:1209; and alternatively:
2. Plaintiff is not totally and permanently disabled.

Plaintiff alleges that on August 7, 1973, while in the employ of the defendant, functioning as a saleslady, she fell on the concrete floor in the storeroom and that a number of boxes fell upon her, injuring her right leg.

She filed this suit on August 6, 1974. Defendant contends that the accident occurred more than one year prior to the filing of the suit.

Gerald Smith, defendant’s branch manager, testified that he felt the accident must have occurred between May 1 and July 31st of 1973 because he recalled that the plaintiff met him at the back door of the business establishment as he was returning from a route and told him of her fall. Mr. Smith testified that all of his salemen took their vacations between May 1st and July 31st and that he substituted for them while they were away. Thus he concluded that the accident must have occurred some time before August 1st, since after that time all of his salesmen would have been back on the job. We note, however, that Mr. Smith testified that he is out of the office most of the time promoting sales of his company’s product. Therefore it is highly possible that he was merely returning from one of his daily outings and became confused as to the exact date upon which plaintiff informed him of her accident.

Mr. Danny Moore, defendant’s bookkeeper, testified that he was under the impression that plaintiff’s accident occurred shortly after Mr. Smith returned from his first week of vacation which ended July 19th, 1973. However, under cross-examination he admitted that he might possibly be confused and that the accident could have occurred after Mr. Smith returned from his second week of vacation which ended August 6, 1973.

Mrs. Soyna Devall stated that she saw plaintiff on the night of August 7, 1973, and that Mrs. Manuel complained of injuries to her leg which she had received in a fall that day at work.

Finally we have the testimony of Doctor Harry S. Snatic, plaintiff’s family physician, and his nurse, Rose Marie Quilty. Mrs. Quilty testified that plaintiff went to Doctor Snatic’s office on August 8, 1973, and stated that she had injured herself in a fall at work on the previous day. Doctor Snatic testified that he was under the impression, during the exam of August 8, 1973, that the plaintiff’s injuries had occurred on the previous day.

The plaintiff contends that at the time of the examination on August 8, 1973, by Doctor Snatic, there was no reason for her to falsify the date of her accident. At that time she was not contemplating a lawsuit and of course the problem of prescription had not entered into the picture. We find this appeal to logic and common sense ultimately persuasive, and after a careful study of the record we find a reasonable basis in the evidence to support the trial judge’s finding that the accident occurred on August 7, 1973, and not prior thereto.

On August 8, 1973, the day after the accident, plaintiff was examined by Doctor Snatic, a general practitioner, who had treated her for some twenty-seven or twenty-eight years prior thereto. At the time of that examination plaintiff complained of pain in both legs, the left hip, right arm, and further indicated pain behind the right knee where she stated that a falling box had struck her. Doctor Snatic prescribed medication and instructed plaintiff to refrain from working until her condition improved. Plaintiff returned to her job at Community Coffee Company, Inc. that day, and worked for approximately two months, after which time she terminated her relationship with her employer due to her inability to remain standing most of the day, which her job necessitated.

Plaintiff did not seek further employment, and on August 29, 1974, again sought medical assistance from Doctor Snatic. The physician found swelling in both of plaintiff’s legs, especially the right one. In the interim since his first examination of August 8, 1973, he had seen plaintiff a number of times in the hospital while she was visiting her injured son and noted that she was having difficulty with her legs, particularly the right extremity.

After the August 29, 1974 examination Doctor Snatic was of the opinion that plaintiff suffered from a disorder in the deep veins of her right leg which he felt was traumatically induced. When asked about the possibility of a causal link between plaintiff’s described accident and her subsequent venous disorder the doctor testified as follows:

“Q. Just one more question. Dr. Snatic, although it may be possible for deep vein obstruction to develop without trauma, given the fact of trauma, and given Mrs. Manuel’s prior history, would you conclude that in this case trauma caused her problems, deep vein
A. Yes, I would say so.”

Defense counsel unsuccessfully attempted to minimize the above testimony as follows:

“Q. That’s somewhat speculative though, is it not, doctor?
A. No, not since she had never had any problems prior to this accident. That’s the only reason I say that. Had she had problems with her leg prior to that, well, this could have come along as a course of a previous existing condition that she had that got progressively worse; but there’s no history as far back as I’ve treated her, and you’re free to look at her chart from the beginning' of the time that I treated her, that she has never had a problem with her legs.”

Doctor Snatic referred plaintiff to Doctor John W. DiGiglia, a vascular surgeon, who examined her on September 24, 1974. Plaintiff’s chief complaint at that time was swelling in the right leg which she claimed was caused by a work-related accident. After examination Doctor DiGiglia concluded that plaintiff had no arterial or venous disease.

On December 13, 1974, plaintif was examined by another vascular surgeon, Dr. L. K. Moss. She told him that she had sustained an injury on August 7, 1973. Doctor Moss found no evidence of any injury and his exam was essentially negative. After a subsequent examination on April 9, 1975, Doctor Moss found some varicose veins behind plaintiff’s right knee and concluded that there was a possibility of injury to the deep veins in that area. Doctor Moss testified that the symptoms of a deep venous disorder could be diminished if a patient remained off his feet for several days prior to the examination. There is evidence that the plaintiff was bedridden for a period of four to five days prior to Doctor Moss’s initial examination, and thus said physician was of the opinion that the venous disorder could have existed at the time of his first examination.

¡When questioned as to the extent of plaintiff’s disability the following testimony was elicited from Doctor Moss:

“Q. Would you say that the condition which you found, this varicose vein condition, was disabling to Mrs. Manuel, which would prevent her from working?
A. Well, I would say at this particular time when I saw her, on the 9th of April, about a month ago, I think it was bothering her enough at that time to demand some getting off her feet and elevating them, and probably would keep her from a job, whatever it might be, for a few days, yes.”

The above testimony relative to the extent of plaintiff’s disability must be read in light of the fact that her job required constant standing and that she was never in a position to take a few days off in order to rest and elevate her feet.

In finding the plaintiff to be totally and permanently disabled the trial judge made the following statement:

“Considering all of the medical testimony, the Court concludes that the scales tip in Mrs. Manuel’s favor, however slight, but the Court does find that they tip in her favor, and the Court is going to find that she is totally and permanently disabled from doing the type of employment that she was doing at the time of this accident.”

While we find the evidence of plaintiff’s total and permanent disability less than overwhelming, we cannot say that the trial judge committed manifest error in finding that Mrs. Manuel sustained her burden of proof relative to this issue.

Defendant contends that plaintiff’s disabling injury could not have been caused by the blow from a single falling box. However, plaintiff testified that a number of boxes fell on her leg and that she also fell onto several boxes which were already on the floor. In addition, Doctor Snatic was of the opinion that a severe blow was not necessary to cause a deep venous disorder. He stated that the injury could have been caused by the stretching action of the fall itself which may have injured the lining of the vein, causing the formation of a blood clot.

Plaintiff had worked for a number of years in the defendant’s employ and received very high marks as an employee. There is no evidence that she had any difficulty with either of her legs prior to her accident, a fact substantiated by her family physician, Doctor Snatic. Clearly, the plaintiff encountered great difficulty in prolonged standing after her accident. She was able to continue her work for a period of only about two months after the fall. See the recent case of Williams v. Liberty Mutual Insurance Company, 327 So.2d 462 (La.App.3rd Cir.1976) and numerous cases cited therein, in which we stated:

“The causal relation between the defendant’s disability and his work related accident may be inferred whenever there is proof of an accident and an ensuing disability without the showing of an intervening cause.”

Since plaintiff was relatively healthy for a long period prior to her accident and became disabled shortly thereafter, we find that she has adequately shown a causal connection between her accident and ensuing disability.

Defendant has filed, with this court, a motion to remand the case for the taking of additional testimony. The witness in question is one Joyce Ledoux, who the defendant states would testify in its favor.

The record reveals that this case was initially set for trial on April 24, 1975. At that time Mrs. Ledoux was subpoenaed by the plaintiff. The trial was refixed for May 7, 1975, at which time neither party subpoenaed the witness.

We find, under the recited circumstances, that defendant knew or should have known that Mrs. Ledoux was a potential witness and had sufficient time to discover her alleged testimony prior to the trial on the merits. .We therefore deny defendant’s motion to remand.

For the above and foregoing reasons the judgment of the district court is affirmed in all respects. Costs of this appeal are assessed against the defendant-appellant.

AFFIRMED.

GUIDRY, J., dissents and assigns reasons.

GUIDRY, Judge

(dissenting).

I can agree with my learned brethren of the majority that plaintiff’s cause of action had not prescribed at the time suit was filed. I can hesitatingly agree that the trial court had a reasonable basis on which to found the conclusion that as a result of the accident plaintiff sustained injury to the deep vein area of her right leg. However, I cannot agree with my esteemed brethren in their finding that plaintiff’s injury was of such a character as to render her totally and permanently disabled to perform work of the same or similar character as that being performed at the time of her injury.

I have searched the record and find no medical evidence whatever which would support a finding of total and permanent disability. None of the medical experts testified that plaintiff’s disability was total or permanent. At most these experts testified that swelling of the legs was not uncommon in persons Mrs. Manuel’s age who worked on their feet the better part of the day. These experts testified that this problem could be alleviated by wearing support hose and the taking of a 30 minute break periodically to rest and elevate the extremities. On this issue Dr. Moss stated as follows concerning plaintiff’s disability following his second examination on April 9, 1975:

“Q. Would you say that the condition which you found this varicose vein condition, was disabling to Mrs. Manuel, which would prevent her from working?
A. Well, I would say at this particular time when I saw her, on the 9th of April, about a month ago, I think it was bothering her enough at that time to demand some getting off her feet and elevating them, and probably would keep her from a job, whatever it might be, for a few days, yes.” (emphasis mine)

It is true that plaintiff and her lay witnesses testified that she suffered from her legs intermittently, however, I do not consider this a sufficient basis on which to award total and permanent disability, especially where there is no medical evidence in support thereof and the record shows that plaintiff continued to work following her alleged injury. In connection with the latter the record reflects that plaintiff worked for 3 months following her injury. She was discharged for reasons unconnected with her alleged injury and thereafter received unemployment compensation for 6 months, having certified to her willingness and ability to work during such period. Plaintiff has never again attempted to work.

The jurisprudence has clearly defined the term “permanent and total” disability, as occurring when one cannot return to his or her former duties without experiencing substantial pain. An injured claimant must work in more than “discomfort” and “slight pain” to be considered totally and permanently disabled. Rutherford v. Dixie Concrete, Inc., 222 So.2d 508 (La.App. 4th Cir., 1969); Arthur v. D. B. McConnell, 286 So.2d 499 (La.App. 2nd Cir., 1973); Morris v. Argonaut Insurance Co., 261 So.2d 344 (La.App. 1st Cir., 1972).

The jurisprudence is clear that in a workmen’s compensation suit, as in any other civil action, plaintiff bears the burden of proof and must establish his claim by a preponderance of the evidence to a legal certainty; mere speculation, conjecture, possibility, and even unsupported probability are insufficient to support a judgment. Sensley v. Aetna Casualty & Surety Company, 269 So.2d 473 (La.App. 1st Cir., 1972); Dodd v. Liberty Mutual Insurance Company, 269 So.2d 304 (La.App. 3rd Cir., 1972), writs refused, La., 271 So.2d 261; Bailey v. St. Paul Fire & Marine Insurance Company, 268 So.2d 697 (La.App. 1st Cir., 1972), writs refused, La., 270 So.2d 873; Danos v. Great Acceptance Corporation, 261 So.2d 339 (La.App. 1st Cir., 1972).

I believe that plaintiff failed to prove by a preponderance of the evidence that she was disabled as a result of her injury on August 7, 1973, and would reverse the trial court judgment.

For the foregoing reasons I respectfully dissent.


author: PENROSE C. ST. AMANT, Judge Pro Tem.

text:
    Mrs. Barbara Lemoine Jemison, wife of/and James E. JEMISON, Jr. v. Donald J. KENNELLY et al.
    No. 7364.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 18, 1976.
    Rehearing Denied June 30, 1976.
    Writ Refused Oct. 1, 1976.

      Lambert J. Hassinger, New Orleans, for Mrs. Barbara Lemoine Jemison, wife of/and James E. Jemison, Jr., plaintiffs-ap-pellees.
    Monte J. Ducote, New Orleans, for Seale H. Vincent and General Accident, Fire and Life Assurance Corp. Ltd., defendants-appellants.
    Before GULOTTA and SCHOTT, JJ., and ST. AMANT, J. Pro Tern.
   PENROSE C. ST. AMANT, Judge Pro Tem.

Defendants appeal a judgment of the trial court awarding plaintiff $42,500.00 in general damages for injuries sustained in an automobile accident. We affirm.

In this court defendants do not contest the issue of liability nor the award of $1,592.73 in special damages. The sole question on appeal is whether the trial court abused its discretion in the award for general damages.

The plaintiff, Mrs. Barbara Jemison, was a guest passenger in a Volkswagon automobile that was struck broadside by a pickup truck. At the time of the accident she was 23 years of age and five months pregnant with her first child. As a result of the impact Mrs. Jemison was rendered unconscious and was transported by ambulance to the East Jefferson Hospital where she was subsequently confined for treatment for a period of eighteen days.

Mrs. Jemison suffered multiple injuries in the accident, including a fracture of the pelvis, a fracture of the superior pelvic ra-mus, a cerebral concussion, and multiple lacerations, contusions and abrasions of the face and body, some of which have resulted in permanent scars. Mrs. Jemison was placed in traction some sixteen out of the eighteen days that she was hospitalized.

Following her discharge from the hospital the plaintiff was compelled to use a walker and crutches for approximately two months. At the time of the trial more than one year later she testified that she still has occasional severe headaches and that her hand hurts “unmercifully”. In addition, although her child was born without apparent defect, she testified that prior to delivery she suffered worry and anxiety about the possible effects of the accident on her unborn child, and that even following birth she continued to worry about the long-range effect that the x-rays to which she was subjected while hospitalized might have on the health of her child.

The trial court described Mrs. Jemison as having a scar approximately one inch long above the eyebrows, a three-quarter to one inch scar on her right cheek, a two and one-half inch scar on her upper right arm, and various other small scars on her arm and fingers. In written reasons for judgment the trial court assigned specific values to each scar as well as to various other items of injury and damage amounting to twelve in number totalling the $42,500.00 for which judgment was rendered.

Defendants attack many of these individual items as being duplications and/or excessive. We find it unnecessary to review in detail each item discussed by the trial court in its reasons for judgment. In the recent case of Glazer v. Louisiana Trailer Sales, Inc., 313 So.2d 266 (La.App. 4th Cir. 1975), this court applied the principles set forth in Bitoun v. Landry, 302 So.2d 278 (La.1974), as follows:

“. . . The question is not whether a different award might have been more appropriate, but whether the award of the trial court can be reasonably supported by the evidence and justifiable inferences from the evidence before it. That such evidence might also support a greater (or smaller) award will not justify changing the amount by the appellate court. Only when the trial court abuses its broad discretion should the award be adjusted, either up or down.”

In Glazer this court affirmed an award of $37,000.00 for injuries to a young woman 26 years of age who suffered a fracture of the right arm with permanent scarring and various contusions and abrasions which required hospitalization for some ten days and orthopedic care for some three months but with no residual permanent disability. The injuries and the award here are at least generally comparable.

While the award here appears generous to us and perhaps to represent the upper limit for such injuries we cannot say in view of Glazer and Bitoun, supra, that the trial court abused its broad discretion in awarding $42,500.00 in general damages for the injuries summarized above.

For the foregoing reasons the judgment of the trial court is affirmed at appellants’ cost.

AFFIRMED.


author: BEER, Judge.

text:
    Matthew GUSTAIN v. AETNA CASUALTY AND SURETY COMPANY.
    No. 7388.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 18, 1976.
    Rehearing Denied June 30, 1976.
    Writ Refused Oct. 1, 1976.
    Frank S. Bruno, New Orleans, for plaintiff-appellant.
    Lemle, Kelleher, Kohlmeyer, Matthews & Schumacher, Allen R. Fontenot, New Orleans, for defendant-appellee.
    Before SAMUEL, BOUTALL and BEER.
   BEER, Judge.

This is executive officer liability litigation. Judgment was rendered dismissing plaintiff’s suit against Aetna Casualty and Surety Co. (the only defendant), and he appeals. The trial court’s written reasons for judgment are quoted in full as follows:

“It is the opinion of the Court that the negligence of the Plaintiff, Matthew Gustain, was the sole cause of his accident.”

A summary of the evidence is offered in light of the Supreme Court’s manifest error mandate set forth in Canter v. Koehring, 283 So.2d 716 (La., 1973).

Plaintiff-appellant, Matthew Gustain, worked for Aetna’s insured, Celotex Corporation, at its plant in Donaldsonville, Louisiana, as a brakeman. The plant’s principal endeavor was the baling and storage of bagasse, the by-product of an adjacent sugar mill. The baled bagasse was loaded on flatbed railroad cars pulled by a small locomotive to a storage field via tracks that encircled the baling station and the storage area.

After the flatbed cars had been loaded with baled bagasse, Gustain had the job of connecting or coupling these loaded cars to the locomotive. Then, as the train left the baling station, he boarded the last flatcar, after adjusting the track switches which regulated the'train’s return trip. His job further required him to disconnect the loaded flatcars from the locomotive when the train reached the storage area and, thereafter, he was obliged to connect or couple (to the front of the locomotive) the unloaded cars (remaining from an earlier trip) which the small locomotive then pushed to the baling station for reloading. The coupling and uncoupling of the flatcars was accomplished by removal or insertion of a metal pin, as the situation required. How Gustain was instructed to accomplish these tasks is in conflict.

Gustain was hired on October 26, 1970, and received on-the-job training from the operator of the train, Martin Dickerson, at the direction of Dickerson’s supervisor, G. P. LeBlanc. Gustain testified that Le-Blanc briefly discussed the operation of the switches and the balance of his instructions were received from Dickerson, who, according to Gustain, proposed several options for performing the coupling and uncoupling operations.

Gustain contends that he was advised by Dickerson that the best method for doing the required work obliged Gustain to jump from a moving flatcar near a lighted spot on a road adjacent to the track that was referred to as the “wide area.” After doing the necessary uncoupling, he was to catch up with the then slowly moving locomotive and board it by first grabbing onto a handrail on its side. Standing on a step adjacent to the cab, he would reach into the cab for the pins utilized in coupling the flatcars that were to be returned to the plant. According to Gustain, he was obliged to uncouple the loaded flatcars and, thereafter, connect the empties to be returned for loading with the train never coming to a full and complete stop.

On the night of December 7, 1970, Gus-tain attempted to climb aboard the moving locomotive, slipped, and, as a direct result, sustained serious injuries to his left foot, resulting in loss of his toes. He testified that the ground was wet and the tracks covered by damp bagasse and other refuse.

Gustain’s testimony regarding the instructions he received for carrying out his job requirements are in serious conflict with that of LeBlanc and Dickerson.

LeBlanc contends that he gave Gustain a general run-down as to his duties and then turned him over to Dickerson for further particular instructions after first clearly warning him not to jump to or from the moving train.

Dickerson testified that he issued instructions to Gustain consistent with the directions received from LeBlanc. He testified that he never instructed Gustain to jump off or on the moving train, nor did he have knowledge of his alleged jumping off or on the train prior to the night of the accident. He indicated that the jumping procedure alleged to have been part of his instructions to Gustain was not, in fact, ever proposed or suggested by him and was not a safe procedure due, among other considerations, to the location of a ditch adjacent to the tracks.

He did not observe Gustain jump from the train prior to or on the night of the accident. Contrary to Gustain’s testimony, he observed that there was no rain that night and testified that the ground was not damp.

Both LeBlanc and Dickerson testified that the train comes to a full stop in the . field and both insist, contrary to Gustain’s contention, that forward movement ceases before the brakeman is obliged to commence his coupling or uncoupling exercise.

LeBlanc testified that he told Gustain that he was to stay on the train until it reached a full stop. He issued these instructions to Gustain in the presence of Dickerson at the time Gustain was hired.

Dickerson testified that he instructed Gustain to do the job as he, himself, did when he was a brakeman. After boarding the train, Gustain was instructed to remain on the last car until the train stopped at the unloading point. Dickerson is certain that he never instructed Gustain to jump off or on the moving train.

LeBlanc inspected the field operations on a daily basis and never observed a brakeman jumping from the train until it reached its usual stopping point in the storage field. He further observed that the tracks are cleaned during each shift and are not encumbered with bagasse or its residue.

Two other witnesses, Ray Blouin and Clifton Joseph, Sr., offered little additional information. Blouin’s work at the plant was not related to the train operation. Joseph added nothing to the description of operations in the field. He did, however, testify that on the night of the accident, he had, earlier, cleaned the tracks in the area where the accident took place and, like Dickerson, contradicted Gustain’s observation that the area was wet and relatively encumbered with bagasse refuse.

Only Ulysse Daigle’s testimony seems to corroborate, to some extent, Gustain’s assertion that the brakeman is required to jump off and on the moving train. Daigle was a brakeman on a different shift and testified that he had observed the train continue to move during the coupling and uncoupling procedure although he did not state that he had been instructed to do his work while the train was moving.

Although the testimony of LeBlanc and Dickerson contradicted Gustain’s contention as to how he was instructed to perform his duties, the trial court did not comment directly on this conflict in the evidence. Nevertheless, the court concluded that Gustain’s injury resulted solely from his own negligence which, to us, signals a finding that Gustain did not follow the instructions issued by LeBlanc and Dickerson.

Able counsel for appellant observes in his extensive brief that “The question here is one of creditability of the witnesses,” and further avers, in brief, that “the (trial) judge reached (his) conclusion through a gross misinterperatation (sic) of the facts.”

We agree that any finding of negligence on the part of Gustain or attributable (directly or by imputation) to Aetna’s insureds rests upon credibility determinations made by the trier of the facts. However, we do not find support in the record for any contention that the trial court manifestly erred in its credibility determinations or its factual findings or that it “misinterpreted” the facts found. There is ample evidence to sustain the credibility determination which was obviously made by the trial court, as well as the court’s interpretation of those findings in framing its judgment. Accordingly, it becomes unnecessary and would serve no useful purpose to consider the remaining issues that would otherwise have to be dealt with.

This was a most unfortunate accident resulting in serious and permanent injuries to a young man only just starting out in life. We are much in sympathy with him and very hopeful that the eventual results of his extensive medical treatment will be excellent.

The judgment of the Civil District Court for the Parish of Orleans is affirmed. Each party is to bear its own costs of this appeal.

AFFIRMED.


author: LEMMON, Judge.

text:
    In the Matter of ADOPTION OF Jason Edward McARTHUR.
    No. 7500.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 11, 1976.
    Rehearing Denied June 30, 1976.
    Writ Refused Oct. 1, 1976.
    Beryl E. Wolfson, New Orleans, for Sebastian J. Paterniti, plaintiff-appellee.
    Derbes & Derbes (James G. Derbes), New Orleans, for William Douglas Mc-Arthur, respondent-appellant.

      Before SAMUEL, LEMMON and STOULIG, JJ.
   LEMMON, Judge.

This is a proceeding for the adoption of Jason McArthur filed pursuant to R.S. 9:422.1 by the child’s stepfather, Sebastian Paterniti. Jason’s legal father, William McArthur, has appealed from a judgment granting the adoption.

McArthur and his former wife (now Mrs. Paterniti) were divorced in New York in October, 1973 by a judgment which ordered McArthur to pay monthly support for Jason in the amount of $133.-00. Jason’s mother married Paterniti on May 4, 1974 in New York, and Paterniti moved the family to New Orleans two or three months later in connection with new employment.

McArthur had provided support as ordered until his former wife remarried. His last support payment was by check dated May 13, 1974.

On May S, 1975 Paterniti filed this suit. Just prior to trial in July, 1975, McArthur attempted to bring the support payments current by submitting a $1,500.00 check, which Mrs. Paterniti refused. The trial court granted the adoption after trial on the merits.

McArthur first contends that the mother had actively concealed her whereabouts after moving to Louisiana. At trial, however, McArthur admitted he learned the Paternitis’ Louisiana address in September, 1974, but complained principally that his former wife should have affirmatively disclosed this information. He also complained that the mother had unreasonably refused a scheduled visitation in April, 1974 and stated that when the child was removed from New York, he felt his visitation rights had been violated. He then cut off support in order to “bring things to a head” and accumulated the money in a bank account in his own name.

In enacting R.S. 9:422.1, the legislature defined conduct which would constitute a failure of the parent to fulfill his responsibility of supporting his child, whereby the parent would forfeit his parental rights. In re Ackenhausen, 244 La. 730, 154 So.2d 380 (1963). The statute dispenses with consent when the parent refuses or fails to comply with the support order without justification.

In the present case McArthur was not justified in withholding support because of visitation problems or of disputes with the mother. When such problems occurred, McArthur should have used orderly judicial proceedings to enforce or protect his rights. His resort to economic coercion was an unjustified refusal to fulfill his parental duties and responsibilities. See also In re Lafitte, 247 La. 856, 174 So.2d 804 (1965).

McArthur next contends, relying on rules of strict construction, that he did not in fact fail to support the child for one year, inasmuch as the suit was filed nine days short of one year from his last payment.

In In re Ackenhausen, supra, the court held that one payment of $50.00 during the year by a parent ordered to pay $120.00 per month was for all practical purposes a cessation of support from the viewpoint of the child. The court observed that allowing a parent to prevent adoption by making token payments of nominal sums, in virtually complete disregard of the obligation to provide support and maintenance, would render the statute meaningless and ineffective.

The statute dispenses with consent because of unjustified conduct in refusing or failing to fulfill parental responsibility of support. The period of one year is specified as the length of time over which that conduct should be weighed and measured. The period was never intended as the length of time which must elapse, without any support payment whatsoever, before the statute becomes operative.

In the present case McArthur’s conduct over the period of one year prior to filing suit cannot be considered as reasonable or adequate discharge of his parental obligation of support. And since this failure was without justification, we conclude the statute operated to render McArthur’s consent to the adoption unnecessary.

Finally, McArthur contends that even if his consent was dispensed with, the trial court has discretion as to whether to grant the adoption. In this respect he argues that it was not shown he was unfit or that a continued relationship with him would be detrimental to the child.

We agree that the trial judge need not allow adoption, even in cases based on R.S. 9:422.1, if it is not in the best interest of the child. However, this trial judge apparently concluded that this adoption was in the child’s best interest, and the record reveals no abuse of discretion.

The judgment is affirmed.

AFFIRMED.

      . We thus find it unnecessary to consider Paterniti’s arguments that the May 13 payment was due May 1 or that one year without payments did elapse shortly after suit was filed, as shown by evidence introduced without objection.


author: HALL, Judge.

text:
    Raymond Duane BOSWELL, Plaintiff-Appellee, v. JEFF CANTRELL HOMES, INC., et al., Defendants-Appellants.
    No. 12896.
    Court of Appeal of Louisiana, Second Circuit.
    May 24, 1976.

      Maynard E. Cush, Shreveport, for defendants-appellants, Jeff Cantrell Homes, Inc. and Geoffrey Dale Cantrell.
    Eatman & Hunter, by Robert E. Eat-man, Shreveport, for plaintiff-appellee.
    Before BOLIN, HALL and JONES, JJ.
   HALL, Judge.

After his motion for a new trial was overruled as untimely, defendant, Geoffrey Dale Cantrell, devolutively appealed from a judgment rendered against him and Jeff Cantrell Homes, Inc., in the amount of $8,816.16 in favor of plaintiff, Raymond Duane Boswell. Appellant’s sole specification of error is that the district court erred in holding the motion for new trial was not timely filed. Plaintiff-appellee has moved to dismiss the appeal as also being untimely.

Thus, the issues presented by this appeal concern the timeliness of defendant’s motion for new trial and of his appeal. The basic question to be answered is whether the delay for applying for a new trial, and consequently the delay for taking an appeal, commenced to run because of the action of plaintiff in causing defendant to be examined as a judgment debtor and in seizing defendant’s property by garnishment under a writ of fieri facias, even though the required notice of judgment was never mailed to defendant by the clerk of court in accordance with the provisions of LSA-C.C.P. Art. 1913. We answer the question in the negative, holding that defendant’s motion for new trial and his appeal were timely filed.

Plaintiff originally sued Jeff Cantrell Homes, Inc. and Geoffrey Dale Cantrell, president and principal shareholder of the defendant corporation, seeking damages arising out of defendants’ alleged breach of contract for the construction and sale of a home to plaintiff. Through counsel, Cantrell filed an exception of no cause of action praying that the suit be dismissed against him individually. Through the same counsel, Jeff Cantrell Homes, Inc. answered the petition denying liability and filed a reconventional demand for damages against plaintiff. Plaintiff filed a supplemental and amending petition alleging additional facts related to his claim against Cantrell individually. Cantrell, through counsel, filed an answer to the supplemental and amending petition on November 15, 1973. On the same date the attorneys representing both defendants filed a motion to withdraw setting forth that they were no longer counsel for defendants and desired to withdraw from the cause. An order was signed by the court permitting counsel to withdraw. The motion and order contained instructions that the defendant be served at El Conquistador Apartments in Shreveport. The record does not reflect that either defendant was given notice of the motion to withdraw.

Notice that the case was set for trial on January 15, 1974 was mailed to defendant, Cantrell, at the El Conquistador address but was returned marked “addressee unknown.”

Trial was held on January IS, 1974, with defendants neither present nor represented. The case was taken under advisement by the court and judgment was rendered on January 30, 1974 in favor of plaintiff as prayed for. Judgment was signed and filed on February 6, 1974.

The record does not reflect that notice of judgment was ever mailed to either defendant, although LSA-C.C.P. Art. 1913 requires notice of judgment to be mailed by the clerk of court to the defendant where a case has been taken under advisement.

On October 31, 1975, a motion for new trial was filed by Geoffrey Dale Cantrell based on grounds which can be summarized as follows:

(1) The judgment was contrary to the law and evidence;
(2) Defendant had no knowledge concerning the trial date;
(3) Defendant had no notice of the withdrawal of his counsel and defendant never lived at the address shown on the motion to withdraw;
(4) Defendant filed a petition in voluntary bankruptcy in February, 1974;
(5) Defendant’s failure to be present for the trial and present defenses was not due to lack of diligence but was due to his belief he was represented by counsel;
(6) Defendant’s first knowledge that a judgment was rendered against him was when he was summoned to appear before the Nineteenth Judicial District Court for East Baton Rouge Parish to appear and be examined as a judgment debtor and when his bank account in Baton Rouge was seized;
(7) Defendant never received any notice of judgment; and
(8) Defendant has valid defenses against the claims of the plaintiff.

Plaintiff filed an opposition to the motion for new trial to which were attached documents showing that in June, 1975, plaintiff filed in the Nineteenth Judicial District Court for the Parish of East Baton Rouge a petition to have the judgment declared executory and to examine defendant as a judgment debtor, and defendant was so examined. The documents attached to the motion also show that a writ of fieri facias was issued and defendant’s bank account was seized by garnishment.

Defendant’s motion for new trial and plaintiff’s opposition thereto were heard by the court on the question of the timeliness of the motion only. The opposition to the motion for a new trial was sustained and the motion for a new trial was dismissed and overruled as not being filed within the delay allowed by law. Defendant appealed.

Defendant-appellant contends the trial court erred in overruling his motion for a new trial as untimely. Appellant bases his argument on LSA-C.C.P. Art. 1913 and Art. 1974. Article 1913 requires notice of judgment to be mailed to parties unrepresented by counsel when a case is taken under advisement. Article 1974 provides that the delay for applying for a new trial commences to run on the day after the clerk has mailed or the sheriff has served notice of judgment, when notice of judgment is required by Article 1913. Notice of judgment was never mailed or served in this case. The delay for applying for a new trial never commenced to run and his motion for new trial was timely filed.

Plaintiff-appellee contends the trial court correctly held the defendant’s motion for a new trial was untimely filed. The main thrust of appellee’s argument is that the notice of examination as a judgment debt- or served on defendant by the sheriff in East Baton Rouge Parish was effective as a notice of judgment and the delays for applying for a new trial began to run at the time defendant was served with that notice, some five months before he filed his motion for a new trial. Alternatively, appellee argues that defendant has waived notice of judgment or is estopped from complaining of lack of notice of judgment by his failure to apply for a new trial or to take any other steps in opposition to the judgment for a period of several months after gaining actual knowledge that the judgment was rendered. Appellee further argues in support of his motion to dismiss appeal that under LSA-C.C.P. Art. 2087 the delay for taking a devolutive appeal commenced to run upon the expiration of the delay for applying for a new trial since no application for a new trial was filed timely and that more than ninety days has expired since the expiration of the delay for applying for a new trial.

Since the required notice of judgment was never mailed by the clerk of court to the unrepresented defendant, the delay for applying for a new trial never commenced to run and defendant’s motion for a new trial was timely filed, unless the notice to appear for examination as a judgment debtor served on the defendant by the sheriff in East Baton Rouge Parish constitutes compliance with the notice of judgment requirements of LSA-C.C.P. Art. 1913.

Notice of judgment is required by Article 1913 only in a limited number of cases, where it is likely the party against whom the judgment is rendered will not otherwise have prompt, actual knowledge of the signing of a judgment and the date thereof. The requirements of notice in this limited number of situations are couched in mandatory terms — “notice . . . shall he mailed“ and “[t]he clerk shall file a certificate . . .” The purpose of the Article is to provide a specific judicial procedure for affording a party official notice of judgment and to provide an official record of such notice. Where mailing of notice is required, the delay for applying for a new trial, the delay for appealing, and the time when a judgment becomes executory are all keyed in to the date of mailing the notice. For the protection of the rights of all the parties to- a lawsuit, it is important that notice of the commencement of the delays be given and that there be a judicial record of such notice, fixing the date of commencement of the delays with certainty.

Actual knowledge dehors the specified judicial process by a party entitled to notice of judgment that a judgment has been signed does not cause the delays to commence to run.

Article 1913 requires the notice to be mailed by the clerk of court of the parish where the case was tried. While the form of the notice is not specified, and while actual receipt of notice of judgment from the clerk by a method other than mailing (such as personal delivery) may be sufficient, it is clear that the notice must emanate from the clerk of court of the parish where the case was tried and that the notice must be of the signing of the judgment.

In the instant case, service by the sheriff in East Baton Rouge Parish of a summons to be examined as a judgment debtor in a proceeding in the district court of that parish did not constitute compliance or even substantial compliance with Article 1913. While such proceedings necessarily imported some actual knowledge to the defendant that a judgment had been rendered against him, the proceedings did not constitute the specific required judicial notice of judgment required by Article 1913. It was not a direct notice of the signing of judgment and was not done for the purpose of notifying the defendant of signing of judgment. It was not mailed to the defendant. It did not emanate from the clerk of court of the parish in which the case was tried.

At the time the examination of judgment debtor proceeding and the seizure were carried on in East Baton Rouge Parish, the delays for applying for a new trial and for taking a suspensive appeal had not run. These steps in execution of the judgment were premature since judgments are not subject to execution until the suspensive appeal delay has elapsed. LSA-C.C.P. Art. 2252. Premature steps in execution of the judgment by the plaintiff should not be held to affect and limit the defendant’s rights to apply for a new trial or to appeal.

No Louisiana cases have dealt with the specific issue presented in this case. Generally, however, the cases dealing with related issues support, in principle, defendant’s position that the judgment debtor proceeding did not serve as notice of judgment and cause the delays for applying for a new trial and for appealing to commence.

Moses v. American Security Bank of Ville Platte, 222 So.2d 899 (La.App.3d Cir. 1969) was a suit to dissolve and recover damages for a wrongful seizure under fieri facias. A required notice of judgment was not given prior to seizure of defendant’s property by the judgment creditor, who contended the notice of seizure was sufficient to amount to a notice of judgment. The court held that although no sacramental form is specified for Article 1913's written notice of judgment, the notice of seizure under Article 2293 “performs a different and a subsequent function.” The court held “[t]he contention that a notice of ‘seizure’ can simultaneously be considered a notice of ‘judgment’ is unsupported by any authority.”

In Hampson v. Hampson, 271 So.2d 898 (La.App. 2d Cir. 1972) this court held that even though defendant had actual knowledge of the judgment (he testified he knew of the judgment and thought he had seen a copy of it), a motion for new trial filed twenty-three months after judgment was timely where the required notice of judgment was never served. The court held:

“In the instant case, the defendant took no action which could be construed as a waiver of service of the notice of judgment. No authority is cited in support of plaintiff’s contention that actual knowledge of rendition of the judgment is equivalent to service of notice or amounts to a waiver of service of notice. The mere passage of a substantial amount of time after rendition of the judgment does not constitute a waiver or bar the defendant from applying for a new trial where the delay never commenced to run.”

In Wood v. Beard, 268 So.2d 152 (La.App. 3d Cir. 1972), notice of judgment was mailed to the unrepresented party’s former attorney who had previously formally withdrawn as counsel. That attorney later delivered the notice to the party’s new attorney, who had enrolled as counsel after signing of the judgment. The court held that these circumstances were not sufficient to meet the requirements of Article 1913, and the delays for applying for a new trial and for taking an appeal did not begin to run. The court considered the fact that new counsel for the party received actual notice of the judgment and held:

“We do not feel that the actual receipt of such a notice had the effect of causing the delays provided in LSA-C.C.P. arts. 3942 and 3943 to begin to run on the date of that actual receipt. We have pointed out that Article 1913 requires that notice of the signing of the judgment ‘shall be mailed’ to the party not represented by counsel. The law does not authorize the substitution of an extra judicial notice for that of mailing, and we hold that the delivery of the notice by Spiller to Falkenheiner on June 1, 1972, was not sufficient to begin the running of the delay allowed for applying for a new trial. Viator v. Grain Dealers Mutual Insurance Company, 178 So.2d 378 (La.App. 3 Cir. 1965); J. I. Case Company v. Aplin, 236 So.2d 645 (La.App. 3 Cir. 1970); Weisgerber v. Weisgerber, 225 So.2d 92 (La.App. 1 Cir. 1969).”

Our holding is that the notice to appear for examination as a judgment debtor and the seizure of defendant’s property through proceedings in the Nineteenth Judicial District Court for East Baton Rouge Parish did not constitute the notice of judgment required to be mailed to the unrepresented defendant by the clerk of court of the First Judicial District Court for Caddo Parish, the court where the case was tried. No notice of judgment having been given, the delays for applying for a new trial and for taking an appeal never commenced to run. Defendant did not waive notice of judgment and is not es-topped by the passage of time from applying for a new trial or taking an appeal. His motion for a new trial is timely, as is his appeal.

The trial court did not consider the merits or substance of the motion for new trial. Serious grounds for a new trial are alleged in the motion and supporting affidavit. The motion should be tried and considered on its merits in the district court.

The appeal in this case is from the final judgment against defendant. The appeal brings before this court for review the final judgment and all interlocutory judgments rendered in the course of the proceedings. Bielkiewicz v. Insurance Company of North America, 201 So.2d 130 (La.App. 3d Cir. 1967). Although the entire record is before this court and the correctness of the final judgment could be considered, appellant’s prayer for relief is that the interlocutory judgment overruling his motion for new trial be reversed and

the case be remanded for consideration of the motion on its merits. Such relief is appropriate under the circumstances.

For the reasons assigned, appellee’s motion to dismiss appeal is overruled. The judgment of the district court overruling appellant’s motion for new trial as untimely is reversed and set aside. The case is remanded to the First Judicial District Court for trial and consideration of appellant’s motion for new trial on its merits and for such further proceedings as may be appropriate and consistent with the opinion of this court.

Reversed and remanded.

      . LSA-C.C.P. Art. 1913
      Notice of the signing of a default judgment against a defendant on whom citation was not served personally, and who filed no exceptions or answer, shall be served on the defendant by the sheriff, by either personal or domiciliary service.
      Except as otherwise provided by Article 3307, when a case has been taken under advisement by the court notice of the signing of a final judgment therein shall be mailed by the clerk of court of the parish where the case was tried to the counsel of record for each party, and to each party not represented by counsel.
      If, at the conclusion of a trial a case is not taken under advisement but the court does not sign a judgment at the time, a party may make a request of record for notice of the date when the judgment was signed; and when such a request is made, the clerk shall mail such notice to the party requesting it or to his counsel of record.

        The clerk shall file a certificate in the record showing the date on which, and the counsel and parties to whom, notice of the signing of the judgment was mailed.
      Except as otherwise provided in the first three paragraphs of this article, notice of the signing of a final judgment is not required.

      . LSA-C.C.P. Art. 1974
      The delay for applying for a new trial shall be seven days, exclusive of legal holidays. Except as otherwise provided in the second paragraph hereof, this delay commences to run on the day after the judgment was signed.
      When notice of the judgment is required under Article 1913, the delay for applying for a new trial commences to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment as required by Article 1913.

      . LSA-C.C.P. Art. 2087
      Except as otherwise provided in this article or by other law, an appeal which does not suspend the effect or the execution of an ap-pealable order or judgment may be taken, and the security therefor furnished, within ninety days of:
      (1) The expiration of the delay for applying for a new trial, as provided by Article 1974, if no application has been filed timely;
      (2) The court’s refusal to grant a timely application for a new trial, if the applicant is not entitled to notice of such refusal under Article 1914; or
      (3) The date of the mailing of notice of the court’s refusal to grant a timely application for a new trial, if the applicant is entitled to such notice under Article 1914.
      When a devolutive appeal has been taken timely, an appellee who seeks to have the judgment appealed from modified, revised, or reversed as to any other appellee, may take a devolutive appeal therefrom, and furnish the security therefor, within the delays allowed in the first paragraph of this article, or within ten days of the granting of the first devolutive appeal in the case, whichever is later.


author: BERTRAND, Judge. GUIDRY, Judge

text:
    Beatrice Griffin AYMOND et al., Plaintiffs-Appellees, v. STATE of Louisiana, Through DEPARTMENT OF HIGHWAYS, Defendant-Appellant.
    No. 5354.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1976.
    Rehearing Denied June 30, 1976.
    Writ Refused Sept. 29, 1976.

      Philip K. Jones, Norman L. Sisson, Robert J. Jones, Johnie E. Branch, Jr., William J. Doran, Jr. by William J. Doran, Jr., Baton Rouge, for defendant-appellant.
    Gist, Methvin and Trimble, by H. B. Gist, Jr., Mansour & Davis by Alfred A. Man-sour, Alexandria, for plaintiffs-appellees.
    Before DOMENGEAUX, GUIDRY and BERTRAND, JJ.
   BERTRAND, Judge.

This is a companion suit to the case of Helen Marie Reed Aymond, et al. versus State of Louisiana through the Department of Highways, No. 5453 of the docket of this court, which we have decided this date. La.App., 333 So.2d 383. See that case for a discussion of the facts and our holding as to liability.

The remaining issues pertinent only to this case are:

1. The effect of the general release granted by Mrs. Beatrice Griffin Aymond to Gerald Aymond’s insurer.

2. The right of the stepchildren of Everett Aymond to recover for the wrongful death of their stepfather.

3. Quantum.

THE RELEASE GRANTED BY MRS. BEATRICE G. AYMOND

Sometime following the accident of December 29, 1973, plaintiff obtained a $75,000.00 settlement with Gerald Ay-mond’s insurer and pursuant to the settlement agreement executed a general release form provided by the insurance company. Defendant contends that this unrestricted release served to release the Department from any liability to plaintiff. The Department suggests that the document in question served to release it from liability because of the wording in the contract releasing Central Louisiana Electric Company, CNA Insurance Company and “all other persons, firms and corporations who might be liable. . . .” There is no merit to the contention of the Department. The Department of Highways was not a party to the release, paid no consideration for it, and cannot claim any advantage from it. LSA-C.C. Articles 1780, 3071 and 3073. The Department’s alternative plea that it was discharged from liability upon the execution of this release by Mrs. Ay-mond under the provisions of LSA-C.C. Article 2203 is equally without merit in view of this court’s determination that Gerald Aymond was not guilty of any negligence which caused or contributed to the fatal accident.

THE RIGHT OF THE STEPCHILDREN OF EVERETT AYMOND TO RECOVER FOR HIS WRONGFUL DEATH

Plaintiff seeks to recover damages on behalf of her two minor children, who were the stepchildren of the deceased, Everett Aymond. Counsel for plaintiff points out that the stepchildren of Everett E. Ay-mond, namely Wallace and Martha Debo, were treated with the same love and affection that they would have received had he been their biological father. He maintained, supported, advised and loved both as though they were his own. We entertain no doubt as to these facts, however, our law, i. e., LSA-C.C. Article 2315 extends the right to damages in case of wrongful death only to biological or adopted children. If damage recovery in such cases is to be extended in favor of stepchildren, it is a matter for the legislature and not the courts. We will affirm the trial court judgment which denies any recovery to Wallace and Martha Debo for the death of Everett Aymond.

QUANTUM

Everett Aymond was 66 years old at the time of his death. Although he was in the autumn of his life, the evidence reflects that he was physically and mentally healthy. Plaintiff and the deceased were married in the year 1969. The record clearly shows that Mr. and Mrs. Aymond were very devoted to one another and that theirs was a most happy marriage. There is no question of the deep loss felt by Mrs. Aymond upon the death of her husband.

With regard to the economic loss sustained by Mrs. Aymond as a result of the death of her husband, the record establishes that Mr. Aymond was a licensed master plumber and, although he had slowed down somewhat, he earned $14,000.00 and $16,000.00 respectively in the two years next preceding his death. On this issue the record contains the testimony of Dr. Herbert Hamilton, Ph.D., an expert actuary. Dr. Hamilton computed the economic loss suffered by Mrs. Beatrice Ay-mond and reached the conclusion by application of various mathematical formulae that Mrs. Aymond suffered a loss of $82,916.00. There is nothing in the record to contradict the conclusions advanced by Dr. Hamilton.

On the basis of the evidence, as briefly summarized, the trial court made the following awards to plaintiff:

(a) $60,000.00 for the loss of love, affection, mental pain and suffering.
(b) $25,000.00 for loss of support.

We have considered the quantum of these awards in light of the settled principals applicable to the appellate review of damages, as expounded upon in the companion case of Helen Marie Reed Aymond, et al. versus State of Louisiana through the Department of Highways, supra, and find same to be neither excessive nor inadequate.

In addition to the above the trial court awarded Mrs. Beatrice Aymond $7,500.00 for conscious pain and suffering of Everett Aymond prior to his death and the sum of $1,999.20 for funeral expenses. There is no dispute as to the award for funeral expenses, however, defendant does seriously question the correctness and/or quantum of the award for conscious pain and suffering of the decedent prior to death. For the reasons set forth in the companion matter we determine the award to be proper.

Accordingly, for the reasons assigned, the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.

GUIDRY, J., concurs in part and dissents in part and assigns reasons.

GUIDRY, Judge

(concurring in part and dissenting in part).

This is a companion suit to the case of Helen Marie Reed Aymond, et al. versus State of Louisiana, through the Department of Highways, #5453 of the docket of this court, which we have decided this date, La.App., 333 So.2d 383.

I concur in all findings of the majority in this case with one exception, i. e., the affirmation of the trial court award of $7500.00 to plaintiff for the suffering endured by plaintiff’s decedent prior to his death. In my opinion, this latter award is excessive and constitutes a manifest abuse of discretion because there is no evidence whatever of conscious pre-death suffering and such award is greatly disproportionate with awards made in similar cases, i. e., Hall v. State, through the Department of Highways, 213 So.2d 169 (La.App. 3rd Cir., 1968) and LeBlanc v. Estate of Blanchard, 266 So.2d 918 (La.App. 4th Cir. 1972). I would reduce the amount awarded to the sum of $2500.00.

For the foregoing reasons I respectfully dissent from the action of the majority in affirming the quantum of the award made by the trial court for conscious pre-death suffering of plaintiff’s decedent.