text:
    Leola J. MILTON, Plaintiff-Appellee, v. LIBERTY MUTUAL INSURANCE COMPANY et al., Defendants-Appellants.
    No. 5398.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1976.
    Rehearing Denied May 19, 1976.
    Writ Refused July 2, 1976.

      Bolen, Halcomb & Bolton by Roy S. Halcomb, Jr., Alexandria, for defendants-appellants.
    Bernard Kramer, Alexandria, for plaintiff-appellee.
    Before CULPEPPER, DOMENGEAUX and PAVY, JJ.
   DOMENGEAUX, Judge.

This is a workmen’s compensation suit. Plaintiff-appellee, Leola J. Milton, was injured while in the employ of J. C. Penney Company, Inc., and instituted this action against her employer and its insured, Liberty Mutual Insurance Company, to recover benefits under the workmen’s compensation act. The District Judge found that plaintiff was totally and permanently disabled as a result of the work-related accident and rendered judgment in her favor from which the defendants have appealed.

The defendants do not dispute the fact that plaintiff was involved in an employment-related accident and that she is now totally and permanent disabled. The sole issue raised by this appeal is whether plaintiff’s accident is causally related to her disability.

Plaintiff was a 49-year old woman employed by J. C. Penney Company, Inc., as a janitress in Alexandria, Louisiana. On March 12, 1974, while in the process of mopping the floor she slipped and fell, essentially performing a split-type maneuver, striking her left knee on the floor with her right leg extended in front of her. She then fell over on her left side striking her left shoulder on the floor and apparently twisting her right knee in the process. She was taken immediately to the office of Doctor Francis M. Brian, a general practitioner. Doctor Brian examined plaintiff and diagnosed her injuries as a bruised left shoulder and bruised left knee cap. Plaintiff was examined by Doctor Brian weekly for a period of about one month and continued to complain of pain in the left knee and some discomfort in the neck. However, her condition improved, and on April 9, 1974, Doctor Brian informed plaintiff that she could return to work in two weeks. Plaintiff received weekly workmen’s compensation payments from March 12, 1974, until April 23, 1974 (the date on which she returned to work).

Plaintiff returned to her job and worked until the end of July, 1974. On June 27, 1974, plaintiff and her husband were examined by Dr. B. F. Chicóla, a general practitioner, for evidence of the disease of disseminated lupus erythematosis, a fatal ailment with which their daughter was afflicted. Doctor Chicola’s examinations were negative, and plaintiff made no complaints of injury to him at that time. She returned to Doctor Chicóla on July 22, 1974, with complaints of pain and swelling in her right knee. Doctor Chicóla examined plaintiff only once relative to this condition and diagnosed her problem as os-teo-arthritis.

Unable to perform her work duties due to the swelling and pain in her right knee, plaintiff went on paid sick leave from Penney’s at the beginning of August, 1974.

On August 20, 1974, plaintiff was examined by Dr. David Carlton, a general practitioner, concerning the pain and swelling still persistent in her right knee. She gave no history of an injury to the knee to Doctor Carlton, nor had she given one in her prior examination to Doctor Chicóla. Doctor Carlton found tenderness over the right medial collateral ligament in the right knee and diagnosed the condition as a strained or sprained ligament. After a subsequent examination on August 24, 1974, he confirmed that diagnosis. However, upon examining the plaintiff on September 7, 1974, he was informed by her that her right knee had a tendency to lock. This additional symptom caused Doctor Carlton to alter his diagnosis and conclude that plaintiff probably had some foreign body in the joint which caused the locking of the knee.

Doctor Carlton referred plaintiff to Doctor T. E. Banks, an orthopedic surgeon, who first examined her on September 16, 1974. He diagnosed her condition as internal derangement of the right knee with a probable tear of the meniscus. Doctor Banks performed surgery on the plaintiff on September 20, 1974, and found a torn lateral meniscus and post-traumatic synovi-tis, and he surgically remedied both of these conditions. Doctor Banks examined the plaintiff a total of five times following the surgery and was satisfied with the progress of her recovery. On December 30, 1974, he released plaintiff from his care and felt that she was able to return to work at that point.

A mere three weeks thereafter, on January 20, 1975, plaintiff returned to Doctor Banks with further complaints of pain and swelling in her right knee. After a subsequent examination on February 10, 1975, Doctor Banks suggested further surgery to determine the cause of plaintiff’s condition. Surgery was performed on April 2, 1975, and Doctor Banks found that the articular cartilage of the medial femoral condyle was badly worn, and replaced plaintiff’s right knee joint with a prosthesis at that time.

Defendant’s basic contention is that plaintiff’s failure to complain about the torn meniscus of the right knee for a period of approximately four months following her fall precludes any causal connexity between that injury and the accident. We note that the concensus of the medical evidence is to the effect that a torn meniscus is accompanied by a certain degree of pain. Hence we tend to agree with defendant’s argument that if the plaintiff had suffered the torn meniscus in early March she should have experienced enough pain to complain of it or seek medical treatment for it prior to July 22, 1974, especially in light of the fact that she was examined by Doctor Brian no less than five times for her left knee in the month following her fall. We do note, however, that there was considerable testimony from members of plaintiff’s family that her right knee did bother her immediately after the fall, although not to any great degree. However, we are of the opinion that plaintiff’s disability is based upon factors other than and in addition to the torn meniscus, and said disability is not restricted solely to that injury.

When. Doctor Banks performed his initial surgical procedure on plaintiff in September he found “chronic post-traumatic synovitis and a tear of the lateral meniscus”. Synovitis is defined in Stedman’s Medical Dictionary, 2d Lawyers Edition (1966) as: “Inflamation of a synovial membrane, especially that of a joint; ar-thromeningitis; in general, when unqualified, the same as arthritis.”

Doctor Banks testified that:

“There was quite a bit of synovia reaction showing that this disease process had been present for a little while—I mean it wasn’t a real acute thing that happened a few days previously because there had been enough time for the syn-ovium to become rather thickened, and almost suggested a rheumatoid arthritis, but the microscope showed this was not true.”

Thus the condition which disabled plaintiff in August of 1974, was not limited to the torn meniscus, but instead was also contributed to by the post-traumatic syno-vitis. Since synovitis is essentially an arthritic condition, and in this case traumatically induced, it is not unreasonable to conclude that the disease process did not manifest itself immediately after the accident, but instead gradually progressed.

Doctor Banks’ second operation on the plaintiff, more than five months thereafter, revealed a wearing away of the articular cartilage of the medial femoral condyle. As to that condition Doctor Banks testified as following:

“Q. Is that a form of arthritis ?
A. Yes.
Q. Is it a form of traumatic arthritis?
A. Yes, it can be a traumatic arthritis —it can be traumatic in origin, and with this appearing this rapidly it would almost have to be if it was not a rheumatoid arthritis, and we could not prove rheumatoid arthritis on her, so I would have to say it would be more apt to be traumatic than true degenerative osteoarthritis.
Q. Doctor you do feel that the arthritis that necessitated your operating [sic] her knee in both occasions was traumatically induced, don’t you?
A. Well of course I will have to say yes to that pretty well even though she did have some spurs that were osteoarthritic, and she had some slight bow leg deformity, and she’s 49 years of age—the rest of the joint surface was clear and the original findings of a torn lateral cartilage plus the proliferated syn-ovitis that was probably post-traumatic, these findings would have to be due to trauma—the marked progressive degeneration that came on so rapidly over the medial con-dyle of the femur that we found at the second operation would have to be related to trauma because it was just too fast to be osteoarthritic, so I would have to say the changes are most likely primarily post-traumatic.”

When queried about the possibility of an intervening trauma between the two operations Doctor Banks stated:

“A. I really don’t think that further trauma would have caused this marked change in this short period of time—I think the changes were there—underlying changes were there, and as she walked on it after the first operation and gradually put more and more weight, and more and more use of it, then the articular cartilage just started deteriorating and then it really went fast. Like I said I’m at little bit of a loss to pinpoint the stages, because I just don’t think I’ve ever seen the inside of a knee look this bad six months after I have seen the same joint myself—There had to be something going on prior to the first operation that had already laid the seed for this degeneration, and then I think just the passage of time and further weight bearing just caused it to progress rapidly.”

Finally, concerning the determination of the time at which the trauma occurred, the following testimony was elicited from Doctor Banks:

“Q. Could it have happened in early March of the same year ?
A. Yes, six months yes.”

Defendants may argue that plaintiff has failed to show the causal connexity between her accident and the subsequent syn-ovitis and arthritis because of Doctor Banks’ failure to make any absolute statements regarding these matters. However, in the case of Weber v. McLean Trucking Company, Inc., 265 So.2d 628 (La.App.3rd Cir. 1972), we stated:

“A court, in applying medical evidence to facts in a case of this kind, has to apply common sense and everyday experience to correctly resolve a situation. We know medical science knows more about these things than we do, and our experience has been, from hearing testimony of this kind, that when a doctor says ‘possible’ or ‘probable’, he does not mean that it did not happen as contended in the sense that an ordinary layman would understand his words. In giving their testimony, all medical experts try to give guarded testimony, and some courts try to draw a distinction between possibilities and probabilities. To our way of thinking and to the modern trend of the courts in considering these terms, we should look at them in a commonsense way.”

In the case of Chelette v. Travelers Insurance Company, 324 So.2d 915 (La.App. 3rd Cir. 1975), we quoted with approval from Roberson v. Liberty Mutual Insurance Company, 316 So.2d 22 (La.App.3rd Cir. 1975) as follows:

“The disability of a workmen’s compensation claimant ‘is presumed to have resulted from [the] accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, provided that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition.’ ”

While plaintiff’s symptoms did not appear immediately after the accident in this case it is significant to note that her disabilities were caused by synovitis and arthritis, neither of which being of the nature of diseases which manifest themselves immediately after the trauma which induces them. Plaintiff was relatively healthy prior to her fall even though there was some disputed testimony to the effect that she suffered from some slight degree of osteoarthritis in the knees prior to her fall. Because of the nature of her injury and the natural delay in the appearance of her disabling conditions, it is virtually impossible for plaintiff to prove with absolute certaintly the ultimate cause of her disability. Suffice it to say that the trial judge was satisfied that a sufficient causal link existed between plaintiff’s fall and her subsequent disability. After carefully reviewing the facts of this case we are unable to conclude that the District Judge committed manifest error.

For the above and foregoing reasons the judgment of the District Court is affirmed. Costs of this appeal are assessed to defendants-appellants.

AFFIRMED.

      . The Roberson case was reargued before a five judge panel pursuant to an order of the Supreme Court in accordance with Article 5, Section 8(B) of the Constitution of 1974, 320 So.2d 201 (La.1975), and after reargument, the decision was reinstated. 321 So.2d 398 (LaApp. 3rd Cir. 1975).


source: Caselaw Access Project

author: GUIDRY, Judge.

license: Public Domain

text:
    Robert E. MAJORS, Plaintiff-Appellant, v. NATIONAL MAINTENANCE CORPORATION, Defendant-Appellee.
    No. 5393.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1976.
    Rehearing Denied May 19, 1976.
    Writ Refused July 2, 1976.

      William Henry Sanders, Jena, for plaintiff-appellant.
    Seale, Smith & Phelps, by William C. Kaufman, III, Baton Rouge, for defendant-appellee.
    Before HOOD, GUIDRY and PETERS, JJ-
   GUIDRY, Judge.

Plaintiff, Robert E. Majors claims workmen’s compensation benefits for total and permanent disability, attorney’s fees and penalties, as a result of an alleged injury which he sustained while working for National Maintenance Corporation, defendant herein.

After trial on the merits the plaintiff, although found not to be permanently disabled, was awarded judgment in his favor. The trial court condemned the defendant, National Maintenance Corporation, to pay plaintiff Workmen’s Compensation Benefits of $65.00 per week for the period from August 28, 1973 to October 24, 1973, medical expenses in the amount of $196.00 and assessed all costs to the defendant. The plaintiff’s claim for penalties and attorney’s fees was denied. Plaintiff appealed.

On or about August 28, 1973 the plaintiff, a carpenter, while working for the defendant, at the Allied Chemical Plant in Geismar, Louisiana was involved in an accident. The record reflects that the plaintiff, along with some of his co-employees, was handling visqueen (plastic sheets) when the visqueen was suddenly sucked into a large fan located in an adjoining cooling tower. The plaintiff became entangled in the visqueen and as a result of his being so entangled and while freeing himself allegedly sustained injury to his shoulder. The testimony does not clearly set forth whether the plaintiff complained of his shoulder injury at the time of the accident however it is clear that the plaintiff was involved in an accident and did sustain a laceration of his wrist. The plaintiff refused first aid and continued to work through the day. The plaintiff worked for over a week thereafter and was laid off on September 4th due to a reduction in the labor force.

The plaintiff first saw his family physician, Dr. E. C. Merse, on September 11, 1973. Dr. Merse, who saw the plaintiff only on this occasion, testified that Majors had sustained a shoulder sprain. Dr. Merse prescribed muscle relaxants and physiotherapy. Dr. Merse felt that on the occasion of this visit the plaintiff was disabled however, he ventured no opinion as to the length of disability.

Plaintiff next saw Dr. Cayer, an orthopedic surgeon who examined him on October 10, 1973 and described his findings as,

"considerable tenderness over the bicipi-tal groove, and a little tenderness in his acromioclavicular joint ”

Dr. Cayer further testified that he gave the plaintiff a shot of cortisone and mar-cain, and as a result the plaintiff had almost immediate and complete relief. On October 24th the plaintiff returned to Dr. Cayer for a checkup but at this time the plaintiff had no complaints, needed no further injections, and was discharged. The record shows that Majors returned to Dr. Cayer on April 18, 1974 with complaints of pain in the bicipital tendon. He was having no problems with the acromioclavicular joint. Dr. Cayer reinjected his bicipital tendon and again Majors got complete and immediate relief of his symptoms. This injection lasted until Majors final visit to Dr. Cayer on November 4, 1974, some 8 or 9 months before trial on which visit Dr. Cayer again administered an injection of cortisone and marcain. Dr. Cayer stated that these injections in no way prevented the plaintiff from performing his work as a carpenter. The above constituted the entire course of medical treatment for plaintiff’s alleged injury.

After being laid off from National Maintenance on September 4, 1973 the plaintiff did not return to work until December 10, of that year. There is nothing in the record to substantiate that plaintiff was unable to perform his usual work during the period from October 24th to December 10th. On the latter date plaintiff re-entered the labor force as a union carpenter. During the period following December 10, 1973 Majors was on call for union jobs and as a result his employments varied in location and duration. It is clear that his job always included carpentry work and as the evidence indicated, he performed his work with little or no difficulty.

The trial court found that the plaintiff did sustain an injury to his shoulder on August 28, 1973 and that this injury was sustained in the course and scope of his employment with the defendant, National Maintenance Corporation. We are in accord with the trial court’s decision to grant the plaintiff disability benefits as a result of his injury and we agree with the trial judge that plaintiff’s benefits were properly terminated on October 24, 1973, the date of his discharge by Dr. Cayer.

The plaintiff contends that he is entitled to an award for permanent disability, however, as the trial court found there is no evidence in the record to support this claim. The plaintiff first visited Dr. Cay-er, an orthopedic surgeon, on October 10, 1973, at which time his complaints were treated with an injection of cortisone and marcain. He admitted to receiving immediate and complete relief, and that such was the case two weeks later when he was rescheduled by Dr. Cayer for a checkup. The plaintiff was discharged by Dr. Cayer at this time. Thereafter the plaintiff returned to work as a carpenter. Although the plaintiff received reinjection some 6 months later on April 18, 1974 and another almost 7 months later on November 4th, there is no evidence that he was not working during this time, or was unemployed at any other time as a result of his shoulder injury.

We are also in accord with the trial court’s denial of the plaintiff’s claim for penalties and attorney’s fees. Under R.S. 23:1021.2 and 22:658 failure of the employer or his insurer to make workmen compensation payments when such failure is arbitrary and capricious will subject the employer or his insurer to payment of reasonable attorney’s fees and penalties. In the case at bar although plaintiff was not paid any benefits following his lay-off on September 4, 1973 he did not inform his employer that he had sustained accidental injuries during the course of his employment until almost 7 months after the injury occurred, and did so only through the filing of the instant matter. The employer was cognizant of the accident but was never made aware that the plaintiff was disabled as a result thereof. In fact the plaintiff worked for the defendant immediately following the accident, and continued in such employment until he was laid off by reason of a reduction in labor force. We are therefore in agreement with the trial court’s finding that the employer’s failure to pay compensation benefits was not arbitrary or capricious. Meshell v. Sabine Lumber Co. (La.App. 3rd Cir. 1962) 137 So.2d 70.

For the above and foregoing reasons the judgment appealed from is affirmed at appellant’s costs.

AFFIRMED.


author: GUIDRY, Judge. CULPEPPER and PETERS, Judges

text:
    Willard FEE and Donald Fee d/b/a Fee Brothers Logging Contractors, Plaintiffs-Appellees, v. VANCOUVER PLYWOOD CO., INC., Defendant-Appellant.
    No. 5339.
    Court of Appeal of Louisiana, Third Circuit.
    March 30, 1976.
    Rehearing Denied May 19, 1976.
    Writ Refused July 2, 1976.

      Smitherman, Smitherman, Lunn, Hussey & Chastain, by Merritt B. Chastain, Jr., Shreveport, for defendant-appellant.
    John P. Navarre, Oakdale, for plaintiffs-appellees.
    Before HOOD, CULPEPPER, DO-MENGEAUX, GUIDRY and PETERS, JJ.
   GUIDRY, Judge.

This is a suit for damages for breach of a logging contract. Plaintiffs and Defendant entered into a written contract of date January 3, 1973 by which Fee Brothers Logging Contractors (hereafter sometimes referred to as Contractor) agreed to cut and haul timber for Defendant (hereafter sometimes referred to as Vancouver). During the term of the contract, i. e., January 3, 1973 through March 31, 1974, Contractors were to have the exclusive right to cut and haul timber and timber products designated by Vancouver for cutting, the timber tract or tracts covered by the agreement to be identified by Vancouver for Contractors by a separate letter agreement marked Exhibit “A” which was to be attached to the contract. According to the agreement, the parties contemplated that, from time to time, such letter agreement might be amended by a subsequent letter agreement or agreements, which would also be attached to and become part of the initial contract.

On December 5, 1973 the parties executed a letter .of agreement marked Exhibit “A” wherein Vancouver designated a 270 acre tract of land in Grant Parish described as “Sec. 2 T 6 N 2 W, Sec. 35 T 7 N R 2 W, Sec. 34 T 7 N R 2 W” for cutting by Contractor under the terms of the initial agreement. Plaintiffs started logging the tract on December 6th. On December 7th, John Read, Timber Department Manager for Vancouver, terminated the contract with plaintiffs.

There is a conflict in the evidence as to what transpired between the time Exhibit “A” was signed and Contractors work was terminated. The evidence presented by Vancouver reflects that on the morning of December 5th John Read began negotiations with Contractor for the logging of the 270 acre tract. During these negotiations Contractor visited the tract to be logged in company with Talbot Watson, logging supervisor for Vancouver. On this visit to the tract Contractor was specifically advised that Vancouver would block up the tract into smaller areas and would direct the sequence in which these blocks would be cut to the end that one small area would be logged and cleaned up before starting on another. Pursuant to this plan and during this visit Watson advised contractor that the job should be commenced in an area east of a road which cut across the tract. Thereafter, on the same day, Watson and plaintiffs returned to Vancouver’s office and executed Exhibit “A”. At about noon on the 6th of December Watson returned to the 270 acre tract and found plaintiffs cutting timber on the west side of the road in an area where Watson had on the previous day told them that they were not to cut. In addition Watson found that on the east side of the road (where plaintiffs were supposed to be working) there were several lodged trees, many not yet cut, and many logs strewn about on the ground. In short, the area to be initially logged had not been completely cut nor cleaned. Watson told plaintiffs they were working in the wrong area and that they should move back across the road and completely log and clean up the tract first designated before moving to another. Plaintiffs agreed to do so. On Watson’s return to the office he reported what he had found to his superior, John Read. On the following day John Read went to the tract and again found plaintiffs logging in the area west of the road where they had been told not to cut. Read also found that the area east of the road had not been completely logged or cleaned up. Read then tried to tell plaintiffs that they should immediately return to the east side of the road and log the tract pursuant to the instructions given to them by Watson. At that point, plaintiffs became abusive of Read advising that they would do the job in the manner they chose. One of the plaintiffs, Willard Fee, then struck Read whereupon Read terminated the contract and told plaintiffs to get their equipment off of the tract.

Plaintiffs’ version is that nothing was ever said to them concerning how the tract was to be logged. Plaintiffs denied that they were ever told by Talbot Watson that they were cutting the wrong area rather they testified that on Watson’s December 6th visit he told them that they were doing a good job. Concerning Read’s visit on the 7th of December, plaintiffs’ version is that Read arrived at the tract, jumped out of his car and immediately, and without any explanation, told plaintiffs they were fired.

The trial court accepted defendant’s version of the facts but found that plaintiffs’ refusal to log the tract as instructed by Vancouver did not violate any of the provisions of the contract. The trial judge found that the contract contained no explicit provision which would permit Vancouver to subdivide the large tract into smaller tracts and direct the sequence in cutting, and accordingly held that Vancouver was without right to terminate the contract because of plaintiffs unwillingness to abide by Vancouver’s instructions. The trial court rendered judgment in favor of plaintiffs and against defendant in the amount of $25,000.00

Defendant appealed and contends that by virtue of the contract Vancouver had the right to direct the manner in which the tract was to be logged as it sought to do; plaintiffs breached the contract by refusing to abide by its instructions; and, under such circumstances defendant had the right to terminate the contract.

For the reasons hereinafter set forth we determine that the trial judge erred when he concluded that Vancouver had not the right under the contract to direct contractor’s operations as it sought to do. Accordingly, we reverse the judgment of the trial court.

The trial court was clearly correct in accepting defendant’s version of the facts. There is no doubt but that prior to the commencement of logging operations Vancouver, through its employees, subdivided the 270 acre tract into smaller tracts and advised contractor as to the sequence in which these tracts should be cut and that each such tract should be completely logged and cleaned up before moving to another. It is equally clear that Vancouver terminated the contract only after contractor absolutely refused to log the tract pursuant to Vancouver’s directions.

There was clear, uncontradicted testimony at the trial that it is a long standing custom in the sawlog industry for the timber owner to subdivide a timber tract into smaller areas and to direct the logging contractor concerning the sequence in which these areas are to be logged. It is also customary practice in the logging industry that the timber owner supervise the contractor to the end that in cutting the blocked tracts in sequence that each tract will be completely logged and cleaned up before the contractor begins to cut on another tract. Mr. James Henry Smart, an expert in forest management, who was called as a witness by plaintiff, testified at length as to the customs and standards which maintain in the logging industry. He emphasized that the owner of a large timber tract (a tract of 270 acres being considered large) must maintain “control of the job” by designating from time to time the specific areas which can be cut. He stated that under such circumstances a logger who cuts somewhere other than where he has been specifically instructed to cut violates accepted standards prevailing in the logging industry. He also stated that it is a violation of long standing custom for a logger to leave an area and move to another before the first area has been completely logged and cleaned up. There is nothing in the record to contradict the opinion of Mr. Smart in this regard. On the contrary, the parties stipulated that three other forestry experts would testify to the same effect if they were called, i. e., Clyde Knox, an employee of Hunt Lumber Company, Mr. James C. Way, a forester with Powell Lumber Company and Arlie H. Wilkerson, a forester with Boise-Southern Company.

The above being considered, although it may be said that the contract contains no explicit provisions giving to Vancouver the right to subdivide the 270 acre tract into smaller tracts with the corresponding right to direct the sequence and clean up of each subdivided tract, we conclude that Vancouver, as a result of long standing custom in the logging industry, enjoys' such rights as an incident to the contract.

LSA-CC Article 1903 provides as follows:

“The obligation of contracts extends not only to what is expressly stipulated, but also to everything that, by law, equity or custom, is considered as incidental to the particular contract, or necessary to carry it into effect.”

LSA-CC Article 1964 provides as follows :

“Equity, usage and law supply such incidents only as the parties may reasonably be supposed to have been silent upon from a knowledge that they would be supplied from one of these sources.”

LSA-CC Article 1966 provides in pertinent part as follows:

“By the word usage mentioned in the preceding articles, is meant that which is generally practiced in affairs of the same nature with that which forms the subject of the contract.”

It is clear that the parties intended that custom and practice in the logging industry should supply incidents to the contract on which the contract was silent for in paragraph 7 of the contract the parties specifically agreed as follows:

“Contractor shall conduct its logging op-eratings in a workmanlike manner and as a prudent operator so as to avoid and minimize danger to the timber not cut under this contract. Contractor shall perform this contract in a diligent, practical businesslike manner as is customary in sawlog production.” (Emphasis mine)

As previously indicated, although the contract may be said to contain no specific provision or provisions giving to Vancouver the right to direct the logging operation as it sought to do in the instant case, the contract does contain two separate provisions which can reasonably be interpreted as granting such rights. Paragraphs 4 and 7 of the subject agreement provide as follows :

“Contractor agrees to cut, remove, haul and deliver logs or other timber products as designated by Vancouver from time to time. Logs or trees shall be scaled by Doyle Log Rule, or weight converted to log scale in accordance with Doyle Log Rule, as modified by Vancouver and utilized uniformly in the locality. Contractor understands that Vancouver requires a steady flow of timber and timber products in order to operate efficiently and contractor agrees, weather permitting, to deliver to Vancouver at its designated delivery point volumes of logs or timber products prescribed by Vancouver on either daily, weekly or monthly basis. Contractor agrees to deliver the timber cut currently as same is cut so as to prevent deterioration, blue stain or bug damage between the time of cutting and delivery.” (Par. 4)
“Contractor shall conduct its logging operations in a workmanlike manner and as a prudent operator so as to avoid and minimize damage to the timber not cut under this Contract. Contractor shall perform this Contract in a diligent, practical, businesslike manner as is customary in sawlog production.. Contractor shall comply with all applicable rules and regulations of any governmental authority having jurisdiction in the premises. Contractor shall not be responsible for the removal or other disposition of slash, except that Contractor shall leave the property lines, drainage ditches and canals free and clear of debris such as cull logs, tops and jump-butts. Should contractor fail promptly to remove and clear such debris after notice from Vancouver, then Contractor shall be liable for any and all expenses incurred in the removal of such debris.” (Par. 7)

Pursuant to the quoted provisions of paragraph 4 Contractors agreed to cut, remove, haul and deliver logs or other timber products AS DESIGNATED BY VANCOUVER FROM TIME TO TIME. This provision can reasonably be interpreted to mean that Vancouver reserved the right to control cutting on the tract identified in Exhibit “A” by subdividing said tract and directing the sequence of cutting on the subdivided tracts. Likewise, the provisions of paragraph 7 can reasonably be construed to grant this right to Vancouver with the corresponding right to require contractor to completely log and clean up one tract before moving to another, especially since contractor under such provision agrees to perform in a diligent, practical, businesslike and workmanlike manner AS IS CUSTOMARY IN SAW LOG PRODUCTION. •

In this latter connection plaintiff contends that at best such provisions are ambiguous and therefore since Vancouver prepared the subject contract any ambiguous provision must be construed against Vancouver and in a light most favorable to plaintiffs. R.C.C. Articles 1957 and 1958. We recognize that this is one rule of construction. However, in matters of construction the primary objective is to determine the intent of the parties. In the instant case we are dealing with a standard form logging contract wherein, the plaintiff, a logging contractor, was obligated to perform under the contract in a manner “as is customary in sawlog production.” Regardless that the above referenced provisions of the contract may be ambiguous, these provisions are not per se to be construed against Vancouver, but instead the ambiguity, if any, should more properly be resolved from the common intent of the parties and according to the usage of the place where the contract is made. Civil Code Articles 1950 and 1953. It is well settled in our jurisprudence that custom or usage should be taken into consideration in interpreting an ambiguous contract. Terrell v. Alexandria Auto Company, 12 La.App. 625, 125 So. 757; Moore v. Johnston, 8 La.Ann. 488; LSA-CC Arts. 1903, 1964 and 1966.

For the above reasons we hold that by their absolute refusal to log the subject tract in the manner directed by Vancouver plaintiffs violated their obligations under the contract and accordingly defendant had the right to terminate the contract.

Accordingly the judgment of the District Court is reversed and it is now ordered, adjudged and decreed that plaintiffs’ suit be dismissed, all costs on the trial and appellate level to be taxed to plaintiffs.

REVERSED AND RENDERED.

DOMENGEAUX, J., concurs in the decree. The parties intended that customs of the trade prevail as shown in Paragraph 7 of the contract. The custom referred to in the opinion was amply proven.

CULPEPPER and PETERS, JJ., dissent and assign written reasons.

CULPEPPER and PETERS, Judges

(dissenting).

While we do not take issue with the majority’s conclusions of .fact, we cannot agree that the contract between Vancouver and the Fee Brothers gave Vancouver the right to control cutting of the timber tract by subdividing it into smaller areas.

It should be pointed out initially that paragraph 14 of the contract specifically excluded from the agreement anything that was not found in the written contract. Paragraph 14 reads as follows:

14. Entire Contract. This contract, when duly executed by the parties, together with Exhibit “A,” as same may be amended and superceded from time to time, shall constitute the entire agreement between the parties. Any amendment or modification of said contract must be in writing and signed by both parties.

Because of paragraph 14, custom cannot be a part of the agreement between the parties unless it is specifically incorporated by reference in the terms of the written contract. We cannot find any such incorporation.

The only reference to custom is found in one sentence of paragraph 7:

“Contractor shall perform this contract in a diligent, practical, businesslike manner as is customary in sawlog production.”

This provision is ambiguous and should therefore be construed against Vancouver, who drafted the contract. LSA-C.C. 1957. If Vancouver wished to reserve to itself the right to control the sequence of cutting, it could have specifically so provided in the contract. Vancouver failed to do so and should not be allowed to use the oblique wording of paragraph 7 to achieve that result.

Furthermore, even if it were assumed that the contract incorporated by reference the customs of the industry, Vancouver failed to establish at trial that the Fee Brothers had violated the customs of the industry by refusing to allow Vancouver to control the sequence of cutting. The majority relies heavily on the testimony of Mr. James Henry Smart, an expert in forest management. Mr. Smart testified that it was customary in the sawlog industry for a timber owner to subdivide a large timber tract into smaller areas for cutting. However, there was no evidence whatsoever to indicate the substance of the contracts which were customarily entered into between timber owners and logging contractors. It is possible that timber owners customarily reserve by contract the specific right to control the manner in which a contractor cut a large timber tract. If this were the custom, it would certainly have no effect on the Fee Brothers, who entered into a contract which made no mention of any right on the part of Vancouver to control the sequence of cutting. The issue in the present case is whether defendant had the right by contract to control plaintiff’s logging operations. The evidence concerning the custom of the industry had no reference to the contract which had been agreed upon between the Fee Brothers and Vancouver and this evidence is therefore irrelevant. The majority cites Terrell v. Alexandria Auto Co. (2nd Cir., 1930), 12 La.App. 625, 125 So. 757, for the proposition that custom or usage should be considered in interpreting an ambiguous contract. In Terrell, the court addressed itself to this issue by saying:

“In interpreting a contract not specific in its wording, it is necessary to take into consideration the custom of the place and the usual and customary manner of fulfilling like contracts in arriving at what was the reasonable expectation of the parties to the contract at the time it was made.” (125 So. 757 at 759) (Emphasis ours.)

The evidence in the instant case did not show what was the customary manner of fulfilling a “like contract.” Thus, even if it were assumed that the customs of the sawlog industry were a part of the contract, the evidence fails to establish that the Fee Brothers violated those customs.

The only reference to “control” in the contract is found in paragraph 3, the pertinent part of which reads as follows:

“It is understood that contractor is an independent contractor and that Vancouver will exercise no control over any employee of contractor nor over any equipment owned or used by contractor.”

Although the underlying purpose of this clause was apparently to exonerate Vancouver from any liability towards the Fee Brothers or their employees for workmen’s compensation, the means of achieving this purpose was to disavow control over the contractor. While this clause is not addressed to the specific question at issue here, i. e. did Vancouver have the right to control the sequence of cutting, it does have a tendency to negate any control by Vancouver over the Fee Brothers.

The majority also finds that paragraph 4 gives Vancouver the right to verbally designate which sections of the tract were to be cut first. We cannot agree with such a construction. We would find that paragraph 4 is also ambiguous and should be construed against Vancouver. While the interpretation urged by Vancouver may be a reasonable one, it is just as reasonable to construe that paragraph in other ways; for example, it may mean only that defendant has the right to designate the type and quantity of timber products to be cut and hauled by plaintiffs. Paragraph 4 in its entirety is concerned with the quantity of timber products to be cut and delivered by the contractor. There is no indication in paragraph 4 that contractor must obtain those timber products from areas to be i selected by Vancouver.

Viewing this case as a whole, the majority has resorted to custom to add' to this contract a provision which could be very onerous for the logger. If the timber owner has the right to instruct the logger where and when to cut, he could cause the logger’s work to be much more burdensome and expensive. It is difficult to believe that the ordinary logging contractor would agree to an express provision granting such a right to the timber owner, without giving this serious consideration as to how it might affect the logger’s costs. This is not a matter which the logging contractor would take lightly if it were written into an agreement, and it is certainly not a matter which should be impliedly written into the agreement from custom.

For the reasons assigned, we respectfully dissent. We would affirm the judgment of the lower court.


author: HOOD, Judge.

text:
    Pamela Belote GRAY, Individually and on behalf of her minor daughter, Martie Jo Gray, Plaintiff-Appellee, v. W. D. ATKINS, Jr., Defendant-Appellant.
    No. 5333.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1976.
    Rehearing Denied May 19, 1976.
    Writ Refused July 2, 1976.

      Ben E. Atkins, Baton Rouge, for defendant-appellant.
    Domengeaux & Wright, by Bob F. Wright, Lafayette, for plaintiff-appellee.
    Before HOOD, GUIDRY and PETERS, JJ.
   HOOD, Judge.

This suit was instituted by Mrs. Pamela Belote Gray, individually and as natural tutrix of her minor daughter, Martie Jo Gray, to recover funds alleged to have been wrongfully withheld from her by defendant, W. D. Atkins, Jr. The funds which plaintiff seeks to recover were paid to defendant Atkins, as attorney for Mrs. Gray and her daughter, in settlement of the latters’ claim resulting from the death of plaintiff’^ husband, Thomas Edward Gray. Defendant answered denying liability, and he reconvened for damages, alleging as grounds therefor that certain letters written by plaintiff constituted “defamation and malicious persecution” of defendant.

The trial judge rendered judgment in favor of plaintiff, individually, for $60,500.-00, and in favor of plaintiff, on behalf of her minor child, for the additional sum of $15,000.00. Defendant’s reconventional demand was dismissed. Defendant Atkins appealed.

The issues presented are: (1) Are the contracts purportedly entered into between plaintiff and defendant on April 30, 1974, and on February 3, 1975, valid and enforceable? (2) Is defendant entitled to withhold or to recover attorney’s fees, and other amounts claimed, from the funds which were received by him in settlement of plaintiff’s claim, and if so, how much should be allowed for those items ? (3) Is defendant entitled to recover damages under his reconventional demand? (4) Did the trial court err in proceeding to trial in defendant’s absence?

Thomas Edward Gray died on January 24, 1974, as the result of an accident which occurred while he was working on an offshore oil platform. He left as his sole survivors his widow, Mrs. Pamela Belote Gray, plaintiff in the instant suit, and her minor child, Martie Jo Gray.

On February 13, 1974, or about three weeks after the death of Mr. Gray, plaintiff was called on in her home by Elton Joseph Dugas and Linus J. “Mike” Mire, who advised her that she probably had a legal claim resulting from the death of her husband, and an offer was made to investigate the matter for her. Dugas and Mire were private investigators, and Dugas was operating under the trade name of “Dugas Detective Agency.” Mire worked with and was employed by Dugas from time to time. During the course of the above visit, Mrs. Gray signed a document, dated February 13, 1974, which provides:

“I hereby employ Dugas Det. Agency to do a full investigation on the accident that cause the death of my husband Thomas Gray. The accident happened on Jan. 24,1974.
“The fee to be $100.00 per day plus expense.
“I Pam Gray also ask Mr. Dugas to recommend an attorney to represent me and my daughter Martie Jo Gray.”

The above agreement was written in longhand by Dugas, and it was then signed by Mrs. Gray. Dugas and Mire are not attorneys, neither of them ever having been admitted to the practice of law.

Dugas and Mire then left Mrs. Gray’s home, but they returned later that day, February 13, accompanied by Lucius A. Hornsby, Jr., an attorney who was practicing in Lafayette. While they were there a “Contract of Employment” was entered into between Mrs. Gray and Mr. Hornsby, under the terms of which plaintiff engaged Hornsby to represent her in connection with her claim arising out of the death of her husband. That contract was typewritten, it was dated February 13, 1974, and it stipulated that Mrs. Gray was to pay Hornsby a fee of “2/3 of recovery” for the legal services to be performed by him.

About two months later, in April, 1974, Dugas and Mire again called on Mrs. Gray, and informed her that Hornsby was not handling her claim properly. Dugas then recommended that she change attorneys, suggesting that she engage defendant, W. D. Atkins, Jr., a practicing attorney in Lafayette, to handle the case for her. He told plaintiff that Atkins’ fee would be the same as that charged by Hornsby, that is one-third of the amount collected, and that plaintiff would not owe Hornsby anything. Atkins was contacted by telephone, and plaintiff agreed to employ him to represent her in connection with the above claim. Dugas and Mire thereupon presented to Mrs. Gray a printed form, labeled “Attorney Contract of Employment with an Interest,” and plaintiff signed it. There were several blanks in that form, in which there could be inserted the names of the parties, a description of the claim or cause of action, the date of the agreement, and other provisions of the contract. None of the blanks were filled in on the contract when plaintiff signed it. Neither her name nor that of Atkins appeared in the form which she signed, and it did not specify the cause of action which the attorney was supposed to handle for her.

Dugas and Mire left with the form which plaintiff had signed, and some time later, out of Mrs. Gray’s presence the blanks on that form were filled out and Atkins recorded the completed contract in the office of the Clerk of Court for Lafayette Parish on May 10, 1974. The contract, as completed and recorded, was dated April 30, 1974. It provided that plaintiff was the “client” and Atkins was the “attorney,” and that Atkins was to handle Mrs. Gray’s claim arising out of the death of her husband. It stipulated that Atkins was to receive attorney’s fees for services to be performed by him ranging from one-third to one-half of the gross amount collected. There also was added to the contract a special provision, identified as Paragraph 9, which reads as follows:

“This contract is subject to the additional conditions, to wit: ‘attorney’ is hereby authorized to withhold those sums advanced by ‘client’s’ previous attorney, Lucias A. Hornsby, Jr., and those expenses incurred by him, from any settlement or judgment. It is further understood that ‘client’ owes no additional fee to Lucias A. Hornsby, Jr., than that set out above, and is fully released by said Lucias A. Hornsby, Jr., from his previous contract, and said contract is null and void.”

Immediately under Paragraph 9, above quoted, there appear the words “Approved and Agreed Toand that is followed by a signature which purports to be that of Lucius A. Hornsby, Jr.

There was a sharp conflict in the testimony of the witnesses, and particularly in the testimony of the two attorneys involved, relating to the above contract. Atkins testified that Hornsby signed the contract, specifically approving and agreeing to Paragraph 9, in Atkins’ presence and in the presence of Atkins’ secretary who signed as one of the witnesses to that document. Hornsby categorically denies that he signed the agreement. He stated that the signature appearing on that document is a forgery.

Hornsby also testified that Atkins called him some time after Hornsby began to represent plaintiff and advised that Hornsby was no longer Mrs. Gray’s attorney, because she had hired Atkins to handle the case for her. We gather from Hornsby’s testimony that this information came as a surprise to him. According to his testimony, he thereupon told Atkins that he would protect his fees. We. assume that the above conversation took place on or after April 30, 1974, that apparently being the date on which Mrs. Gray first informed Dugas and Mire that she would hire .Atkins to handle the case. The record shows, however, that on March 26, 1974, more than a month before Mrs. Gray supposedly hired Atkins, Hornsby wrote to Atkins advising him that Atkins was to have the Pamela Gray case and that he would owe Hornsby no referral fee. The record also shows that on April 5, 1974, a written agreement was entered into between Atkins and Hornsby relating to eleven cases in which Hornsby theretofore had been serving as attorney for the claimants. Under that agreement Atkins was to “have” seven of those cases, one of which was the “Pamela Gray” case. Hornsby was to retain three cases, and the fee to be collected in the eleventh or remaining case was to be split evenly between the parties. The agreement provided that in the cases being handled by Atkins, including the “Pamela Gray” case, there was to be no “referral fee or any other fees” paid to Hornsby. The testimony thus is conflicting and confusing as to what actually transpired between Hornsby and Atkins relative to this case.

The evidence shows that all of the cases which were divided between Atkins and Hornsby pursuant to the above agreement were cases in which the claimants had employed Dugas originally to investigate their claims and to recommend attorneys to handle the legal work. In each such case Du-gas had recommended, hired or engaged Hornsby initially to handle the case for Dugas’ “client.” In March or early April, 1974, however, Dugas severed his relationship with Hornsby and began working regularly for Atkins. It was after that change was made that Dugas recommended to plaintiff that she remove the case from Hornsby and engage Atkins to handle it for her. It is apparent that after Dugas began working regularly for Atkins he arranged for at least seven of Dugas’ “clients” to discharge Hornsby and to engage Atkins as their attorney to handle their claims. The claim of Mrs. Gray was one of those which was transferred to Atkins. Dugas testified that “they were my clients,” and that “I told Hornsby to turn them loose.”

In May, 1974, Atkins handled the legal proceedings necessary to have plaintiff appointed administratrix of the succession of her deceased husband. In October of that year he instituted suit in behalf of plaintiff and her child against Pennzoil United, Inc., in the United States District Court for the Western District of Louisiana. Two interventions were filed in that suit. One was by the parents of the decedent, Thomas Edward Gray, claiming an interest in the damages which might be awarded resulting from the death of their son. The other intervention was filed by Hornsby, alleging that he is entitled to one-third of any amount collected as attorney’s fees.

On or about February 3, 1975, Mrs. Gray entered into a compromise agreement with Pennzoil, the defendant in the above suit, settling her claim which resulted from the death of her husband. The case thus never came up for trial. Pursuant to that compromise, defendant paid $82,500.00 to plaintiff. Of that sum, $15,000.00 represented the amount due plaintiff’s minor daughter, Martie Jo Gray, and the balance of $67,500.00 represented the amount due plaintiff, individually.

The record shows that on February 3, 1975, plaintiff went to Atkins’ office for the purpose of executing all of the papers needed to effect the settlement of her case. While she was in Atkins’ office on that date the following pleadings and documents were executed:

(1) The pleadings and documents necessary to have plaintiff appointed as Tu-trix of her minor child and to have the settlement approved by the court were executed. Pursuant to those pleadings, Mrs. Gray was appointed as Tutrix for her child, and Dugas was appointed to serve as Un-dertutor for the child.

(2) A “Receipt, Release and Indemnification Agreement” was executed by Mrs. Gray, dated February 3, 1975. By that agreement plaintiff acknowledged receipt of the above amounts, granted a full discharge to all parties of any further claims resulting from her husband’s death, and she agreed to indemnify and hold harmless the parties therein released from any claims arising out of that accident.

(3) A separate document dated February 3, 1975, was executed by Mrs. Gray and by Atkins, providing in substance that Atkins had explained the settlement agreement to Mrs. Gray, and that the latter understood it.

(4) An “Agreement,” dated February 3, 1975, and identified in the record as “Exhibit 29” was signed by Atkins and Mrs. Gray. In that instrument Mrs. Gray purportedly agreed that Atkins “shall retain the entire proceeds of the settlement until such time as all other claims herein are disposed of finally,” that Mrs. Gray will indemnify Atkins for any amounts which he may be required to pay to the interve-nors, that Atkins is “authorized to invest any funds belonging to the said Pamela B. Gray at interest at no less than 8% per an-num at his discretion,” that Atkins agrees to pay to Mrs. Gray “the sum equal to the amount that she was receiving under the Longshoremen and Harbor Worker’s Act,” that Atkins “may advance to her such sums as he deems appropriate under the circumstances,” and that “Pamela B. Gray agrees to hold W. D. Atkins, Jr., harmless for any loss of the principle due her as the result of the decrease in value of the investment if any be made for any reason.” Attached to that agreement is a “Concurrence,” signed by Dugas as Under-tutor for the minor child, in which he concurs in and agrees with the above agreement.

When Mrs. Gray went to Atkins’ office on February 3 to execute the documents needed to complete the settlement, Atkins was not there. Dugas was in the office, however, and he had plaintiff sign all of the above papers. After she signed them, Dugas took the papers next door to have some of them notarized, and then he went with Mrs. Gray to the courthouse to assist her in completing the settlement. Upon their arrival at the courthouse, they met counsel for the defendant, Pennzoil, who advised them that it would be necessary for Atkins to be present also. Dugas thereupon called Atkins by telephone and had him come to the courthouse. After Atkins arrived the settlement was completed and a judgment was obtained dismissing the suit which had been filed in the Federal Court. A draft for $82,500.00, made payable to the order of Mrs. Gray and Atkins, was handed to Atkins at that time.

Mrs. Gray testified that when she went to Atkins’ office to execute the papers necessary to complete the settlement, Dugas had a “whole bunch of papers” for her to sign, and that he did not give her an opportunity to read those papers, stating that they didn’t have time. She called her grandfather who came immediately to the office, but she .said that Dugas took the papers away from her grandfather and would not let him read them. Mrs. Gray did not know that she had signed the document identified as Exhibit 29, in which she purportedly authorized Atkins to retain the proceeds of the settlement until other claims were paid, or in which she agreed to indemnify Atkins for amounts he might be required to pay to intervenors. She stated that she never saw such an agreement until after this suit was filed.

The testimony of Dugas confirms that of Mrs. Gray with reference to the execution of the above agreement. Dugas stated that neither plaintiff nor her grandfather had an opportunity to read any of the papers which Mrs. Gray signed that day, explaining that “it would take a half a day to read all of the papers.” He testified that plaintiff never read the agreement identified as “Exhibit 29,” that “she just kept on signing all the papers that was put in front of her,” that no one told her “what it was all about,” that the agreement identified as Exhibit 29 was “in the papers to be signed,” and that in his opinion, Atkins did not want plaintiff to see that document before she signed it. As already noted, Du-gas also signed that agreement as Under-tutor for plaintiff’s minor child, concurring in that agreement, although he was aware of the fact that plaintiff did not know that she had signed such a document.

We have concluded that Mrs. Gray’s signature on the above agreement, dated February 3, 1975, and identified as Exhibit 29, was fraudulently obtained. The existence and provisions of that agreement were purposely concealed from plaintiff, and she was not aware of the fact that she had signed such a document until several weeks later. She signed it upon the false representation that it was one of the documents required to complete the settlement. We hold that since the signature of Mrs. Gray was obtained by fraud, she did not consent to the agreement and that that agreement thus is null and void. LSA-C.C. art. 1847; Cole v. Lumbermen’s MuUtal Casualty Company, 160 So.2d 785 (La.App. 3 Cir. 1964); Fidelity Credit Company v. Bradford, 177 So.2d 635 (La.App. 3 Cir. 1965).

Immediately after the draft for $82,500.-00 was handed to Atkins, the latter told Mrs. Gray that the check would have to be held for fifteen days before the money could be disbursed. Plaintiff thereupon endorsed the check and allowed Atkins to retain it. The record shows that Atkins also received an additional sum of money as settlement of another claim which plaintiff had resulting from the death of her husband.

Despite repeated demands made by plaintiff, she alleges that she has been paid only the sum of $6,000.00 by defendant.

This suit was instituted on March 5, 1975. Plaintiff demands judgment against defendant for $82,500.00, less the $6,000.00 which she concedes was paid to her, and less any reasonable attorney’s fees to which defendant may be entitled.

Defendant Atkins answered, alleging that he received $89,517.73 in settlement of all of plaintiff’s claims, that he is entitled to retain one-half that amount, or $44,758.-86, as attorney’s fees, and that he is entitled to withhold the additional sum of $24,386.46 as reimbursement for advances made and expenses incurred in connection with this matter, leaving a net balance due plaintiff of $20,373.40. He contends that he is entitled to retain even that net balance due plaintif f until the claim of Horns-by for attorney’s fees is settled. Atkins also contends that he is entitled to recover damages from plaintiff under his recon-ventional demand, and to offset the amount due him as damages from the amount which he may owe Mrs. Gray.

As already noted, the trial judge rendered judgment in favor of plaintiff and against defendant for the aggregate sum of $75,500.00, and he rejected defendant’s re-conventional demands. He did not assign reasons for that judgment.

We have concluded for reasons already assigned that the “Agreement” between plaintiff and Atkins, identified as “Exhibit 29,” dated February 3, 1975, is null and void, because of the lack of consent on the part of Mrs. Gray, her signature to that document having been obtained fraudulently.

Another important question presented is whether the “Attorney Contract of Employment with an Interest,” entered into between Mrs. Gray and Atkins on April 30, 1974, is valid and enforceable. We have concluded that that contract was executed in violation of a prohibitory law, and that it also is void.

LSA-R.S. 37:213 provides in part that:

“No natural person, who has not first been duly and regularly licensed and admitted to practice law by the Supreme Court of this state, no partnership except one formed for the practice of law and composed of such duly licensed natural persons, and no corporation or voluntary association except a professional law corporation organized pursuant to Chapter 11 of Title 12 of the Revised Statutes, shall:
“(1) Practice law;
“(2) Furnish attorneys or counsel or an attorney and counsel to render legal services;
“(4) Render or furnish legal services or advice;
“(5) Assume to be an attorney at law or counselor at law;”

Dugas and Mire advised Mrs. Gray on February 13, 1974, that she had a legal claim arising out of the death of her husband, and that advice was given in the hope that she would employ them to assist her in prosecuting that claim. We think that constituted the furnishing of legal advice. Following that advice, and obviously relying on it, Mrs. Gray signed a document on that date, authorizing Dugas to “do a full investigation on the accident” for a consideration of $100.00 per day plus expenses, and “to recommend an attorney” to represent her and her daughter. We find no legal objection to Dugas’ agreement to investigate the accident for Mrs. Gray, and we make no holding as to the legality of her authorization for Dugas “to recommend an attorney.” In the instant suit, however, the evidence convinces us that the parties intended by that agreement that Dugas was to render legal services, or to furnish an attorney or counsel to render such services, for plaintiff.

On the same day that Dugas first contacted plaintiff, he returned to plaintiff’s home accompanied by the attorney whom he had engaged to handle at least ten other cases. About two months later, Dugas advised plaintiff that the attorney he had “recommended” was not performing his work satisfactorily, and he “recommended” that she discharge that attorney and engage Atkins to handle the case for her. At the time that recommendation was made, Dugas furnished plaintiff with a blank form of contract for her to sign engaging an attorney and the blanks on that contract were filled out later to show that she engaged Atkins to represent her.

Dugas testified that Mrs. Gray, as well as other claimants who had engaged him to investigate their claims, were his “clients.” With reference to the cases which he referred to Atkins, he said “I told Hornsby to turn them loose,” and that he had Atkins “take over the Gray case.”

Dugas worked for Atkins from March, 1974, until some time after Mrs. Gray’s case was settled in April, 1975. During all of that time, he maintained his headquarters in Atkins’ office, he answered the telephone for Atkins and he handled legal matters for at least one client, that being Mrs. Gray. Dugas was authorized to sign checks making withdrawals from Atkins’ checking account in one bank, and Dugas testified that when almost all of the money was gone out of that bank, Atkins “would sign me some blank checks in case I would need something.” He wrote a check on Atkins’ account for $400.00 payable to Mrs. Gray, because she owed “some rent or a doctor bill or something.” Atkins paid Du-gas a salary of $600.00 per week while the latter worked in his office, and Atkins stated that he also paid Dugas other sums “on a case by case basis.”

Dugas testified that he worked in Atkins’ office “because he (Atkins) would not show up,” that he was “running the office” for Atkins, or “some of it anyhow,” and that Atkins asked him to “handle the settlement portion” of Mrs. Gray’s case.

Mrs. Gray testified that after she engaged Atkins to handle her case she “tried a bunch of times” to talk to Atkins at his home and at the office, and that she was unable to contact him, but that she was able to contact Dugas in Atkins’ office. She also testified that when her case was settled she received a call from Dugas to go to Atkins’ office to sign the papers needed to effect the settlement. When she arrived at that office, Atkins was not present, but Dugas was there and he handled the signing of all of the settlement papers, as well as the other documents above described.

Atkins, in a deposition taken before the trial, confirmed the fact that Dugas was employed by him during the above period of time, that he “stays” at Atkins’ office, that he answers the telephone for Atkins “from time to time when the secretary doesn’t show up,” and that he asked Dugas to have the settlement papers signed by plaintiff. He stated that he had Dugas appointed as Under-tutor for Mrs. Gray’s child because “he just happened to be available at the time,” although plaintiff’s grandfather was there. Atkins also testified he paid Dugas $5,230.00 for investigating the Gray case, and he claims that he is entitled to be reimbursed that amount in addition to the attorney’s fee claimed by him. Atkins said he paid that amount to Dugas about August 1, 1975, and that he paid Dugas other fees on other cases, paying him “on a case by case basis.”

Atkins stated in his deposition that he deposited the sum of $20,373.40, that being the amount he admits owing plaintiff, in a safety deposit box in the Rayne Bank & Trust Company, which is in Dugas’ name. He maintains that the money is still in that bank box. . He said he checked with the president of the bank by telephone on the day of the trial and determined that the money was still there.

Dugas categorically denies that any money was deposited in a bank box in his name. He states that he does business with another bank in Rayne, and he has a safety deposit box there, but that he has never held any money for Atkins in that or any other box. He denies that he holds any money for Atkins or for Mrs. Gray. Dugas also indicated that Atkins did not have the money to pay Mrs. Gray, and that he colluded with Hornsby to intervene in the suit in order to give him more time within which to obtain funds to pay his client.

We think Dugas was engaged in the “practice of law,” in violation of the provisions of LSA-R.S. 37:213, on February 13, 1974, when he entered into an agreement with Mrs. Gray to investigate her claim for her, and on April 30, 1974, when Mrs. Gray entered into a contract with Atkins authorizing the latter to represent her in connection with that claim. The evidence also convinces us that Atkins actively assisted and conspired with Dugas in the latter’s illegal practice of law, and that the contract between plaintiff and Atkins, dated April 30, 1974, was entered into pursuant to that illegal relationship.

Articles 11 and 12 of the Louisiana Civil Code provide, in part, that:

“Art. 11. Individuals can not by their conventions, derogate from the force of laws made for the preservation of public order or good morals.
******
“Art. 12. Whatever is done in contravention of a prohibitory law, is void, although the nullity be not formally directed.”

Our law provides that an obligation without a cause, or with a false or unlawful cause, can have no effect. LSA-C.C. art. 1893. The cause is unlawful, when it is forbidden by law, when it is contra bonos mores (contrary to moral conduct) or to public order. LSA-C.C. art. 1895.

The actions of Atkins and Dugas in conspiring to practice law together when Dugas was not legally authorized to do so is contrary to the preservation of public order or good morals, and any contracts entered into by them pursuant to that illegal relationship are illegal and void. The agreement entered into between Mrs. Gray and Atkins on April 30, 1974, therefore, is null and void as being in contravention of a prohibitory law and contra bonos mores.

Since the contracts which plaintiff entered into with Dugas and with Atkins are invalid, we conclude that defendant Atkins is not entitled to recover attorney’s fees for the services which he may have rendered in connection with plaintiff’s claim resulting from the death of her husband. Plaintiff concedes that Atkins has paid her $6,000.00 from the funds which he collected. The trial judge obviously considered that fact, since the amount which he awarded plaintiff is substantially less than the sum which was paid to Atkins in settlement of her claim. Plaintiff has not appealed or answered the appeal, so we do not have to consider the question of whether the award made to her can or should be increased.

We have considered the claims made by Atkins for reimbursement of alleged advances made and expenses incurred by him in connection with plaintiff’s cause of action. The testimony is conflicting as to each of the items claimed, however, and we have concluded, as the trial judge apparently did, that the evidence fails to support defendant’s recon-ventional demand for reimbursement of those alleged advances or expenses.

Defendant also contends in his reconven-tional demand that letters were written by Mrs. Gray containing defamatory materials which have caused him to sustain damages. No such letters were introduced into evidence. Atkins argues, however, that the institution of this suit and the publication of news items about it in local newspapers provoked an investigation by the Ethics Committee of the Louisiana State Bar Au-sociation, and that that has caused him to suffer damages in substantial amounts.

We have concluded that the allegations contained in plaintiff’s petition are correct, and that she is entitled to recover the amount claimed by her. The fact that news items were published, indicating that such a suit has been instituted, does not give defendant a cause of action to recover damages from plaintiff for defamation of character.

Defendant contends, finally, that the trial court erred in refusing to grant defendant’s motion for a continuance, and in ordering the trial to proceed on June 20, 1975, in the absence of defendant.

Initially the case was scheduled for trial on May 13, 1975. Defendant filed a motion for a continuance on May 9, and another such motion was filed on the morning of May 13, 1975. The trial court granted the continuance, and the case was rescheduled to be tried on June 20, 1975. When the case came up for trial on that date, neither Atkins nor his counsel were present. A motion for a continuance was not filed at that time, and the court authorized plaintiff to proceed with the trial in defendant’s absence.

After judgment was rendered, defendant filed a motion for a new trial, alleging as one ground for that relief that he had not had an opportunity to prepare a defense. He alleged that on April 16, 1975, his house was severely damaged by fire, numerous files were damaged and lost in that fire, that no depositions were furnished by the court reporter, that Dugas was attempting to destroy the business, finances and personal reputation of defendant in view of the fact that Atkins “terminated any affiliation with said Dugas” on April 21, 1975, and that defendant lacked secretarial or legal assistance in preparing a defense to this suit.

All of the facts alleged in the motion for a new trial occurred before the case was scheduled for trial originally, and most of those grounds were urged in the motions for continuance which were filed prior to or at the time scheduled for that trial. The trial judge obviously considered all of those circumstances when he granted a continuance on May 13 and refixed the case for trial on June 20, 1975. He also must have considered all of those allegations again when he denied defendant’s motion for a new trial.

We have reviewed the record, and have concluded that the trial court did not abuse its discretion in ordering that the trial proceed on June 20, 1975, despite the fact that neither defendant nor his counsel appeared at that trial. See Gillentine v. McLeod, 70 So.2d 384 (La.App.Orl.1953); Williams v. Fontane, 175 So.2d 686 (La.App. 1 Cir. 1965) ; Stablier v. Partin, 278 So.2d 537 (La.App. 1 Cir. 1973).

For the reasons herein set out, the judgment appealed from is affirmed. The costs of this appeal are assessed to defendant-appellant.

AFFIRMED.


text:
    Gloria WALKER, Plaintiff-Appellant, v. BELDEN CORPORATION, Defendant-Appellant.
    No. 5358.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1976.
    Rehearing Denied May 19, 1976.
    Writ Refused July 1, 1976.

      Edward A. Kaplan, Alexandria, for Wm. Henry Sanders, Jena, for plaintiff-appellant-appellee.
    Gaharan, Richey & Wilson by Joseph Wilson, Jena, for defendant-appellee-appel-lant.
    Before HOOD, GUIDRY and PETERS, JJ-
   HOOD, Judge.

This is a workmen’s compensation suit instituted by Gloria Walker against her former employer, Belden Corporation. The trial judge rendered judgment in favor of plaintiff awarding her compensation benefits of $50.70 per week for sixteen weeks. Both parties have appealed. Plaintiff also answered defendant’s appeal.

The issues presented are whether a work-connected accident resulting in a disabling injury occurred, as contended by plaintiff, whether plaintiff is totally and permanently disabled, and whether the amount of weekly benefits awarded by the trial court should be increased.

Plaintiff contends that she injured her right knee on February 25, 1975, while working as a “miscellaneous finisher” or a “booter” for Belden Corporation, which was doing business in Jena as LaSalle Wire and Cable Company. Her duties as a miscellaneous finisher were to place rubber “boots” or “nipples” on automobile ignition wires. In order to perform that work, it was necessary for her to sit at a table, to place the boot in the proper position over the copper fittings on the wires, and then operate a pneumatic machine by means of a foot pedal which forced the boots onto the ignition fittings.

Mrs. Walker reported for work at about 3:00 P.M. on February 25, 1975, and she testified that shortly thereafter her right knee struck a drawer located under the table causing her to suffer severe pain in her right knee. She stated that she immediately “jumped up and . . . hollered a little bit” and said in a “kinda loud” voice, “Ouch, I hurt my knee,” and that she then hopped several feet over to the place where her fellow employees, Dollie Smith and Addie Lewis, were working and informed them of her injury. She said that she also reported the accident to five other co-employees that afternoon. Despite this alleged injury, plaintiff continued to perform the duties of her employment until she completed her regular shift of work at about 11:00 P.M. that day. She received medical treatment the following day, February 26, and she remained under the treatment of her doctor for a period of two or three months thereafter.

Plaintiff applied for a leave of absence on February 26, 1975, the day after her alleged injury. Her application was granted and she has been on a leave of absence continuously since that time. The leave which was granted to her, effective February, 27, 1975, lists “illness” as the reason for granting it.

Plaintiff had surgery performed on her left leg in 1971, consisting of the stripping of veins in that leg. She stated that since that operation was performed, she has had poor circulation in her left leg and that that leg pains her while she works.

Plaintiff also sustained a prior injury to her right knee in 1972 while working for the same employer at another plant. She received medical treatment for that injury, and that treatment included the performance of surgery on her right knee about . three weeks after the 1972 accident occurred. The surgeon used wire sutures on the tendon of the right knee, and those wire sutures remained in her knee from the time that surgery was performed until they were removed about 16 days after the accident which forms the basis for this suit allegedly occurred. After a short period of recovery following that surgery, plaintiff returned to her employment later in 1972, and she continued to work from that time until February 26, 1975, except for several leaves of absence which she took during that period. She received no workman’s compensation benefits as a result of the 1972 accident, other than a partial payment of the medical expenses which she incurred.

Dr. Sanit Sirikul, a general practitioner, examined plaintiff on February 26, 1975, and he treated her from that time until the latter part of May, 1975. He diagnosed her condition as “trauma of the right knee resulting from previous injury (1971), and aggravated by wire sutures and repeated trauma.” He concluded that her present condition was due partly to “repeated trauma,” because he “got this from her words.” Dr. Sirikul performed a surgical procedure on her right knee on March 13, 1975, consisting of the removal of the above mentioned wire sutures from the tendon in that knee. Plaintiff’s recovery from that surgical procedure was uneventful. Plaintiff nevertheless testified that she continues to suffer pain in her right knee and that she has been totally disabled since that time.

This suit was instituted on April 3, 1975, which was 37 days after the accident allegedly occurred. Plaintiff’s deposition and that of Dr. Sirikul were taken in June, and the case was tried on its merits on July 17, 1975. The significance of these dates is that the facts must have been fresh on the minds of the witnesses, since the suit was filed and tried shortly after the accident occurred.

The trial judge rendered judgment immediately upon the conclusion of the trial. He found that an accident occurred on February 25, as claimed by plaintiff, and he awarded her compensation benefits for the period beginning February 26 and ending on July 14, 1975. As already noted, both parties appealed from that judgment.

The principal issue presented, and we think the determining one, is whether a work-connected accident occurred on February 25, 1975, as claimed by plaintiff, and if so, whether plaintiff sustained a disabling injury as a result of that accident.

We note at the outset that plaintiff has not alleged in any of her pleadings that an accident occurred, on February 25, 1975. She alleged ini her original petition that:

“Plaintiffs then and there sustained an accidental injury in substantially the following manner: As she was booting, her right knee began hurting and swelled up, causing excruciating pain.”

Plaintiff filed a “Pre-trial Information Sheet” on June 10, in which she indicated that on February 6, 1975, she sustained an accidental injury in substantially the following manner: “As she was booting, her right knee began hurting and swelled up, causing excruciating pain.” She also stated in that pleading or document that “Dr. Sanit Sirikul diagnosed her condition as trauma of right knee: resulting from previous injury in 1971, aggravated by wire sutures and repeated trauma.”

On July 3,< 1975, plaintiff filed a supplemental petition, alleging that:

“Plaintif then and there sustained an accidental injury in substantially the following manner: As she was booting, her right knee on numerous occasions struck the booting table and began hurting and swelled up, causing excruciating pain.”

We interpret the above pleadings as alleging that plaintiff’s knee began to swell and to cause her to suffer pain, either without the occurrence of an accident or as the result of numerous accidents or repeated trauma. She testified at the trial, however, that her injury and disability resulted from one accident which occurred on February 25, 1975, when she struck her right knee on a drawer which was under her work table, and that she has been disabled since that time.

Plaintiff’s testimony, as we understand it, is that her right knee struck the drawer under her work table several times as she approached the table to begin work, but that her knee was never injured and it never caused her to suffer pain or to complain about it at any time until February 25, 1975, when her knee struck the drawer harder than it had done so on any prior occasion. In response to the testimony of other witnesses that plaintiff had complained frequently of pain in her right knee, Mrs. Walker stated that her previous complaints were solely of pain in her left leg, due to poor circulation. With reference to those complaints, she said “It wasn’t on the right knee,” it was only “my left leg,” and “that’s all I ever complained about.”

The drawer which she allegedly struck was located under the table top, on the right side of the operator. The testimony of witnesses, and the photographs which are in the record, indicate that the drawer was at least 12 to 16 inches above and to the right of the operator’s right knee, and that it is unlikely that an operator would have struck her knee on that drawer either while approaching the table or while working at it. Plaintiff was somewhat obese, however, and she explained that because of her size her knee would strike the drawer while approaching the table although other employees did not have that difficulty.

Dr. Sirikul stated that when plaintiff first came to him for treatment she was “complaining of the wire sutures in the right knee,” and he understood her to say that she had suffered repeated trauma of her knee over a period of time. According to the doctor’s testimony, plaintiff did not tell him at any time that she struck her knee on February 25, the day immediately prior to her first visit to him. It seems to us that she would have told Dr. Sirikul about such an accident if it had occurred the previous day, and if it had marked the onset of her painful and disabling symptoms.

The hospital records signed by Dr. Siri-kul show that she was admitted to the hospital on March 1, 1975, for the removal of the wire sutures. The hospital report states:

“The patient stated that she had wire sutures in the right knee when she underwent the operation on that extremity about 2 years ago. This was causing her discomfort. A piece of wire was passing through the skin and was removed not too long ago. She was irritated when she was moving that knee. She was then admitted for the removal of the wire sutures.”

We have already noted plaintiff’s testimony to the effect that immediately after she struck her knee on February 25, 1975, she complained in a loud voice and reported the accident to at least seven of her fellow employees who were present. All seven of these fellow employees testified at the trial, six of them having been called by plaintiff. Six of them contradicted plaintiff’s testimony.

Plaintiff stated, for instance, that immediately after she injured her knee she hopped to the tables where two of her co-employees, Dollie Smith and Addie Lewis, were working, and that she told them about her injury and asked them where she could find George Fowler, the plant supervisor. Dollie Smith, a witness for plaintiff, confirms most of plaintiff’s testimony. Addie Lewis, also a witness for plaintiff, testified that Mrs. Walker came to her table and told her she had hurt her knee, that plaintiff was not hopping or limping at that time, and that she worked the rest of the day. She understood that plaintiff was complaining of her old 1972 injury, since plaintiff said that she had sustained her injury from a fall, that surgery had been performed, that “she got some wire in her knee,” and that “her knee continued to give her trouble.” Mrs. Lewis also stated that prior to February 25, 1975, plaintiff complained about her right knee “all the time.” She said “It wasn’t a day that Gloria (plaintiff) came in the plant that she didn’t say something about her leg was bothering her.”

Mrs. Walker testified that after informing Dollie Smith and Addie Lewis of her injury, she then reported it that afternoon to (1) Fred Jordan, manufacturing supervisor for defendant, (2) George Fowler, supervisor of one shift, (3) Terry Copeland, personnel manager, (4) Glenn Poole, plant manager, and (5) Charliea Sandifer, a general worker at the plant. All of those witnesses, except Sandifer, were called by plaintiff.

Jordan, Copeland and Poole testified that plaintiff never reported the accident to them, and that they did not know anything about the alleged accident or injury until this suit was filed. Fowler stated that plaintiff called him over to her table one day and told him that she had hurt her knee, but that she continued to work “the rest of the week.” He thought she was joking, but he nevertheless told her to see a doctor if she was hurt. He said that nothing more was said or done about such a complaint after that time. He also stated that plaintiff complained about her knees almost daily while she worked for defendant.

Plaintiff testified that she told another co-worker, Charliea Sandifer, that she had injured her knee immediately after the alleged accident occurred, that she showed the witness her knee and asked her to find George Fowler, that Mrs. Sandifer commented on the swelling of the knee, urged plaintiff to have it attended to, and then left to look for Fowler. Mrs. Sandifer was the only witness called by defendant. She firmly denied that plaintiff ever mentioned to her that she had struck or hurt her knee. She stated that plaintiff had complained about her knee on prior occasions, and particularly in December, 1974, and in January, 1975, and that plaintiff explained at the times of those complaints that “she had fell at the other plant and had hurt her knee and that it gives her trouble from time to time.”

The plaintiff in a workmen’s compensation suit, as in any other case, must prove his claim by a preponderance of the evidence. Schwab v. Fidelity and Casualty Company of New York, 294 So.2d 888 (La.App. 2 Cir. 1974); Guillory v. New Amsterdam Casualty Company, 244 La. 225, 152 So.2d 1 (1963); Roberts v. M. S. Carroll Co., 68 So.2d 689 (La.App. 2 Cir. 1953); Morrison v. East Baton Rouge Parish School Board, 316 So.2d 856 (La.App. 1 Cir. 1975).

The testimony of the claimant alone may be sufficient to prove the disabling accident, if the claimant’s statements are supported by the surrounding circumstances and there is nothing to discredit his or her testimony as to how the accident occurred. Delafosse v. Industrial Painters, Inc., 199 So.2d 559 (La.App. 3 Cir. 1967); Clement v. Fidelity & Casualty Co. of New York, 220 So.2d 575 (La.App. 3 Cir. 1969) ; Webre v. Service Painting Company of Beaumont, 252 So.2d 675 (La.App. 1 Cir. 1971) ; and Schwab v. Fidelity and Casualty Company of New York, supra.

The findings of fact by the trial court, particularly those involving the credibility of witnesses, are entitled to great weight on appeal, and his conclusions as to the facts will not be disturbed unless found to be clearly erroneous. Breaux v. Kaplan Rice Mill, Inc., 280 So.2d 923 (La.App. 3 Cir. 1973); Matthews v. Milwhite Mud Sales Co., 225 So.2d 391 (La.App. 3 Cir. 1969); Lantier v. Guy Scroggins, Inc., 223 So.2d 252 (La.App. 3 Cir. 1969); Gulf Machine Shop v. Poynter, 192 So.2d 606 (La.App. 3 Cir. 1966); Miers v. Truck Insurance Exchange, 180 So.2d 559 (La.App. 3 Cir. 1965).

We have reviewed the record with these established legal principals in mind, and have concluded that the evidence fails to show that plaintiff sustained a disabling injury as the result of a work-connected accident which occurred in February, 1975.

Plaintiff is the only person who claims to have witnessed the accident which allegedly occurred on February 25, 1975. One other witness, Dollie Smith, confirms her testimony that plaintiff told her that she had injured her knee a moment after the alleged accident occurred, that plaintiff was “cripping” at the time, and that her knee was swollen. We note, however, that Mrs. Smith also had sustained an injury while working for the same defendant, and it is apparent from her testimony that she had some animosity toward defendant, since she refused defendant’s request that she speed up her work and she refused to talk to defendant’s representative about the alleged accident. These circumstances tend to weaken the effect of her testimony.

The six other witnesses who plaintiff says were informed by her that she had hurt her knee contradicted plaintiff’s statements. Their testimony thus tends to discredit plaintiff’s statements as to the occurrence of the alleged accident. The evidence is convincing that plaintiff did not exhibit any signs of having sustained an injury on February 25, 1975, and that she did not inform her co-workers of the fact that she had hurt her knee that day. As already noted, none of her fellow employees saw the alleged accident occur.

Although plaintiff testified that she never complained of her right knee prior to the alleged accident, the evidence shows that she complained frequently of pain in that knee over a period of many months before February 25, 1975, when she allegedly struck it on a part of her work table. The testimony of her treating physician and the hospital records indicate that her complaints and her disability, if any, were attributable to the wire sutures which had remained in her knee since 1972, and not to an accident which occurred in February, 1975.

Plaintiff did not allege in her pleadings or inform her treating physician that she had struck her knee on February 25, 1975, as related by her at the trial. On the contrary, she alleged and informed her doctor that her knee had struck the booting table on numerous occasions and that it began hurting, swelling and paining her on some unspecified date., This indicates that she had been experiencing pain for some time after her 1972 surgery, and that she went to Dr. Sirikul on February 26 to obtain relief from that pain, and not because of any injuries which she suffered the day before she first consulted him.

Our conclusion is that the evidence fails to establish that an accident occurred on February 25, 1975, as claimed by plaintiff. The trial judge thus clearly erred in finding that plaintiff sustained a disabling injury resulting from a work-connected accident on that day, and in holding that plaintiff is entitled to recover workmen’s compensation benefits.

For the reasons assigned, the judgment appealed from is reversed, and judgment is hereby rendered in favor of defendant, Belden Corporation, and against plaintiff, Gloria Walker, rejecting plaintiff’s demands and dismissing the suit at plaintiff’s costs. The costs of this appeal are assessed to plaintiff-appellant.

REVERSED and RENDERED.