author: BEER, Judge. SCHOTT, Judge,

text:
    Sheryl CHEATHAM, wife of Charles Cheatham, Individually and on behalf of her minor son, Charles Cheatham, Jr. v. CITY OF NEW ORLEANS et al.
    No. 9249.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 19, 1979.
    Rehearing Denied March 14, 1979.

      Wayne G. Cresap, New Orleans, for Daniel J. DeNoux and Stephen Reboul.
    Barbara Treuting Casteix, Donald A. Hoffman, Thomas P. Anzelmo, Sr., New Orleans, for City of New Orleans.
    Cotton, Jones & Dennis, David J. Dennis, Ernest L. Jones and Luke J. Fontana, New Orleans, for plaintiffs-appellees.
    Before REDMANN, LEMMON, SCHOTT, BEER and GARSAUD, JJ.
   BEER, Judge.

This is a wrongful death action by the widow and child of Charles Cheatham. The case against defendants, Daniel J. DeNoux and Stephen Reboul, was tried by jury and resulted in a verdict in favor of plaintiff in her individual capacity in the amount of $529,000 and in her capacity as administra-trix of the estate of her minor son in the amount of $125,000. Simultaneous with the jury trial, the case against the City of New Orleans (hereafter, “City”) was tried by the district judge, who cast the City in judgment for the same amounts.

Other defendants were originally sued but, thereafter, as a result of various motions and exceptions, dismissed. The City, DeNoux and Reboul are the only appellants.

About midnight, April 11, 1975, DeNoux and Reboul, both patrolmen on the New Orleans Police Force, but clearly off-duty and in their civilian clothes, were, with their friend Richard Schilling, out for dinner in the French Quarter. As they walked along Bourbon Street near Toulouse, they were approached by a young shoe-shine boy, who, with some persistence, tried to persuade them to have their shoes shined. The evidence indicates that the boy, miffed because of their indifference, directed various obscenities toward them, and they became irritated. According to plaintiff’s witnesses, Reboul began to manhandle the boy, who, at the trial, testified that Cheatham then came upon the scene and intervened in his behalf. The boy testified that one of the defendants asked Cheatham if he wanted to fight about it and, immediately thereafter, struck the first blow. While he and Cheatham were fighting, the other defendant drew a gun and fired at Cheatham. He testified that Cheatham never had a gun of any other weapon and that defendants never identified themselves as police officers.

A cab driver, Joseph Baker, called by plaintiff, testified that he saw the men manhandling the boy and stated that when he came up to the group to investigate he was told to stay out of it. He says that Cheatham came up at about the same time and was also told to stay out. However, Cheatham told them he was going to make the matter his business. An argument ensued. Then, according to Baker, the following took place: One of the defendants was holding a drink and asked someone to hold it for him, whereupon he struck Cheatham. This witness did not see anyone pull a gun but, as he went to get the keys from his cab parked across the street, he heard a shot. After hearing the shot, he saw Reboul holding up his badge and gun and heard him telling the onlookers to stand back. This, according to all the witnesses called in behalf of plaintiff, was the very first instance of either of the defendants identifying themselves in any way as police.

Witnesses Douglas Gaspard and Alfred Smith essentially confirm the testimony regarding the altercation and the lack of self-identification on the part of Reboul and DeNoux until after Cheatham was shot by Reboul.

DeNoux and Reboul gave this account of the incident: After they warned the shoeshine boy to be on his way and stop annoying them, Cheatham came forward and began to abuse them verbally in an obscene way. They contend that they, thereupon, identified themselves as police but that Cheatham continued to abuse them. They threatened to arrest Cheatham and it appeared that he was going to relent but, instead, struck Reboul in the face and a fight ensued with the two of them scuffling on the ground. During the scuffle, Cheat-ham came up with the gun which Reboul was carrying in his waistband and pointed it at DeNoux, who was a few feet away from them, whereupon DeNoux drew his gun and shot Cheatham.

Defendants sought to corroborate their version of the episode by the introduction of statements from two witnesses obtained by police homicide investigators following the shooting. However, one of these witnesses was found dead soon after the shooting, and the other took the stand and repudiated the statement that he had made to the investigator. Both of these witnesses had long criminal records, which included convictions for felonies.

Ballistics tests established that it was De-Noux’s pistol which fired the bullet which unobjected-to hearsay shows was taken from Cheatham’s body.

The factual issue which the jury was obliged to resolve from the conflicting testimony of these witnesses is clear: Was the shooting justified? The jury, apparently unwilling to accept the testimony of Re-boul, DeNoux and Schilling on this critical issue, accepted the testimony of the witnesses called in behalf of the plaintiff.

There is evidence to support this basic credibility determination by the jury. The preponderance of the evidence — including DeNoux’s admission against interest— supports the conclusion that it was DeNoux who fatally wounded Cheatham. Does this conclusion, coupled with the jury’s obvious determination (which we believe to be correct) that the shooting was unjustified, necessarily liable Reboul? We turn to a consideration of that issue:

LSA-C.C. art. 2324 provides:
“He who causes another person to do an unlawful act, or assists or encourages in the commission of it, is answerable, in solido, with that person, for the damage caused by such act.”

As we see it, the ultimate resolution of this issue turns on the question of foreseeability. As noted in Laird v. Travelers Insurance Company, 263 La. 199, 267 So.2d 714 (1972), every act leading up to an event which is the subject matter of litigation cannot be said to be a cause-in-faet. However, when such antecedent act supports a conclusion that, more probably than not, it was a necessary ingredient of the ultimate event, it then constitutes a cause-in-fact. We believe that the fatal wounding of Cheatham by DeNoux falls outside of that degree of reasonable foreseeability ascribable to Reboul as he scuffled with Cheatham. The record gives no support to a conclusion that Reboul could have reasonably foreseen that his scuffling with Cheat-ham would lead — momentarily—to De-Noux’s bizarre act of fatally shooting an unarmed man.

Though Reboul’s scuffle with Cheatham certainly created a situation where some injury could result, it is, we believe, unreasonable to foresee, from Reboul’s standpoint, death by shooting — at the hands of another. We conclude that the jury, though within its province in its basic determination of liability, erred in casting Re-boul.

Finally, insofar as basic issues of liability are concerned, we conclude that the record supports the jury’s conclusion that Cheatham was not contributorily negligent insofar as that contention has to do with his fatal wounding at the hands of DeNoux even though such conclusion might not be the same had we been dealing only with injuries resulting from the scuffle with Re-boul.

In her individual capacity, plaintiff was awarded the following:

For the pain and suffering of her deceased husband prior to his death $ 50,000
For loss of past earnings and for loss of future earnings of her deceased husband 279,000
For her mental pain and suffering and for her loss of love and affection both past and future 200,000
$529,000.

As administratrix of her minor son, she was awarded $125,000 “for the loss of love and affection of his deceased father and for any future pain and suffering.”

An appellate court may not disturb an award unless there has been an abuse of discretion by the trier of fact. Smith v. Government Emp. Ins. Co., 358 So.2d 1289 (La.1978). We have concluded in this case that there was an abuse of discretion in the award of $50,000 for decedent’s pain and suffering occurring prior to his death. Plaintiff had the burden of proof and failed to prove that Cheatham was conscious for any time following his being shot. When he was taken to Charity Hospital by the police emergency unit, he was unconscious. He died at Charity Hospital shortly thereafter. No witness, medical or lay, was produced to testify that he was conscious at any point after he was shot.

The award of $279,000 for past earnings and loss of future earnings was based on testimony that past loss of wages amounted to $19,400 for the period from death until the trial, and future loss of wages was $260,000 based upon a 33-year work life expectancy, discounted at 5%, considering such factors as inflation and the future raises in salary and deducting what Cheat-ham himself would consume had he lived. The principal objection by defendants is to the economist’s underlying assumption that the decedent was earning $800 per month at the time of his death. No income tax or employment records were produced, but plaintiff called the local manager of Pitney-Bowes by whom Cheatham had been employed at the time of his death and he stated that someone in Cheatham’s job slot would have been earning $800 per month plus commissions. This evidence was corroborated by plaintiff’s own testimony that her husband was making about $900 a month at the time of his death.

In our view, the principal defect in this $279,000 award is the unsoundness as a matter of law of awarding a decedent’s lost wages. A decedent’s widow and child are not entitled to recover his wages—especially not his before-tax wages—because they never got his wages while he was alive and consequently they have not lost those wages by reason of his death. All that they have lost is the support—if any—that he would have given them out of those earnings and that is the most that they could be entitled to recover. Most important, it is their burden to show that the decedent was supporting them and we find no evidence in the record that he was doing so, other than the fact that decedent had a two-year-old child, which implies that the wife probably stayed home to care for the child and thus did not herself earn an income. (The child is not entitled to his hope of inheritance, Eichorn v. New Orleans & C. R. L. & P. Co., 1905, 114 La. 712, 38 So. 526.) It is thus error to begin with before-tax earnings, and that error is compounded by deducting only 30% (or 26%) on the theory that, statistically, a husband with no children (or with one) devotes 70% (or 74%) of his before-tax earnings to wife (or wife and child) support and to savings (including the savings aspect of home mortgage payments, without any showing whether this decedent was buying a home). The economist did not even discuss whether the amount of the husband’s earnings made a difference—$9,600 as here or $96,000—or whether the wife’s working would be a factor.

The $279,000 award is further defective in that it presumes a three percent increase yearly for promotions and merit pay increases, in addition to increases to keep apace with inflation. There is no evidence to support such a continually recurrent increase. (We recognize also the inconsistency present in holding, first, that a salary-related loss in the future will be twice the number of dollars it is today, because the then dollar will be worth half of today’s dollar, but, second, the judgment obliges the defendant to pay for those 50-cent dollars in today’s 100-cent dollars. Nevertheless, for smaller awards that would not support investment counsel, an unsophisticated plaintiff often has no real investment choice, but must use government-insured accounts in banks or building and loan associations, in which the number of dollars does not increase with inflation. Thus it is not wholly insupportable in smaller awards to increase the award’s number of today’s dollars because tomorrow’s will be worth less.)

We conclude that, despite the lack of direct evidence of loss of support, the record can reasonably justify an award to the widow in the amount of $120,000 (representing an average of about 35% of the husband’s expected earnings until trial and 33 years thereafter, increased by 3% annually for inflation and discounted at 5% to present value), and an award for the child of $35,000 (representing an average of about 25% of the father’s expected earnings during 16 years to the child’s majority (see Eichorn, supra) similarly adjusted for inflation and present value).

We turn to the question of whether or not the awards of $200,000 for plaintiff’s loss of love and affection and $125,000 for her child’s loss of love and affection were within the jury’s discretion.

We have reviewed several recent cases involving awards for loss of love and affection. These cases also provide an insight into the factors which courts should consider in arriving at such awards.

In Ayala v. Bailey Electric Company, Inc., 318 So.2d 645 (La.App. 4th Cir. 1975), we affirmed an award to the 54-year old decedent’s widow for loss of love, companionship and affection in the amount of $25,-000, and to decedent’s son who was a college student at the time of his death in the amount of $12,500, noting that the couple had enjoyed a close relationship during their 24 years of marriage and that the father and son had been close.

In Cacibauda v. Gaiennie, 305 So.2d 572 (La.App. 4th Cir. 1974), we affirmed an award of $95,000 to the widow for loss of love and affection, pointing out that the couple were married 27 years at the time of the accident and together with the four children had formed a close knit family group. At the time of his death, decedent was 53 years old and his wife 42, and there was evidence that the widow changed from a congenial active woman to one whose nervous condition caused her to withdraw from many former activities. We likewise affirmed an award of $29,000 to a 15-year-old child and $15,000 for each of the three children over 21.

In Smith v. Manchester Insurance & Indemnity Company, 299 So.2d 517 (La.App. 4th Cir. 1974), we affirmed an award to the widow of $50,000 in circumstances where the couple had been married for 36 years and were close and devoted to each other. At the time of his death, decedent was 57 years of age.

In Aymond v. State Department of Highways, 333 So.2d 380 (La.App. 3rd Cir. 1976), the court affirmed an award of $60,000 to the widow of the 66-year-old decedent under circumstances where the couple had been married for only four years at the time of the accident, but the evidence showed that the couple were devoted to one another and had a happy marriage.

The Cheathams were married on November 13, 1971. At the time of his death, Cheatham was 27 and his wife 22. Their child was born on February 25, 1973. Mrs. Cheatham knew that her husband was going to night school, but she did not know what he was studying. Cheatham was out alone in the French Quarter after midnight when he was killed. His wife testified that “that particular night I really didn’t want to go . . . but he went anyway. . . ” The conclusion is inescapable that the relationship between the Cheathams was not shown to be as close as those in the high-award cases cited.

We feel compelled to conclude that the jury abused its discretion in making excessive awards for love and affection, and, accordingly, reduce them to $50,000 for Mrs. Cheatham’s loss and $25,000 for the child’s loss, these amounts being the upper limits of the jury’s discretion in the matter.

We now turn to a consideration of the liability of the City of New Orleans.

Immediately after the jury verdict was returned, the trial judge made the following comments:

“. . The Court has to decide the case against the City of New Orleans. The Court is of the opinion that the police officers were acting in their duty as police officers during the time and in the scope of their employment as officers and the Court hereby also awards a verdict in behalf of the Plaintiffs against the City of New Orleans. The Court is of the opinion that it has no other choice to do this since they were acting in the course and scope of their employment and the Court certainly feels it would not be fair to leave them in the cold so to speak. That to hold them accountable for this amount of money that the jury has assessed would certainly not be in the best interest of justice and the Court is of the opinion that enough evidence has been put into the record that they were acting in their scope of employment as agents of the City. And the Court is of the opinion it has no choice but to grant the award also on behalf of the widow and minor child against the City of New Orleans.” (Emphasis ours.)

Thus, the trial court found “liability on the part of the city simply because the court certainly feels it would not be fair to leave them (DeNoux and Reboul) out in the cold so to speak . . . and we are unable to accept the trial court’s observation that “It would be anomalous to find the City not negligent. . . . ”

We are of the view that the facts of this case are similar to those discussed in Gautreau v. Davis, et al., 350 So.2d 268 (La.App. 4th Cir. 1977). Here, as in Gautreau, there is a vast difference between the support that exists in the record for the ultimate determination which forms the basis of finding liability on the part of DeNoux and that which can properly form any basis for liability on the part of the City of New Orleans. In Gautreau, we observed that:

“In order for an employer to be held vicariously liable, the employee whose act has caused damage must be reasonably within the course and scope of his employment. Thus, a tortious assault is chargeable against the employer only when the action which forms the basis of the claim is reasonably incidental to the performance of employment duties or in furtherance of the employer’s business and not motivated by hatred or a desire to inflict punishment due to personal antagonisms. See LeBrane v. Lewis, 292 So.2d 216 (La.1974); Strawder v. Harrall, 251 So.2d 514 (La.App. 1st Cir., 1971).”

Likewise, this record does not support a finding of liability on the part of the City on any valid grounds.

The altercation with Cheatham that resulted in his death neither began nor persisted in the course of any action in behalf of the City of New Orleans. The manhandling of the shoe-shine boy and the ensuing argument with Cheatham which led to the heated verbal exchange which quickly led to the physical contact which resulted in Cheatham being shot cannot liable the City simply because DeNoux (or Reboul) is an employee of that entity. Nor can liability come about simply because of a recognized practice of permitting or even requiring off-duty policemen to be armed.

The rapid deterioration between the parties to this tragedy was as momentary as it was momentous, and there was no point in the almost lightning-like series of events which culminated in DeNoux’s pistol shot where the City became, in any way, a stakeholder.

Police authority (and, thus, City responsibility) is not susceptible to retroactive designation and the situation here existent was never productive of the application of the doctrine of respondeat superior.

DeNoux and Reboul (accompanied by their friend, Schilling) did not commence the evening as agents or employees of the City in any liability-generating manner, nor did they — up to and including the moment that Cheatham was shot — change that status. They were, in every sense of the word, off-duty. As they proceeded along their way, situations could have come into existence or been discovered by them which might, quite properly, have provoked a change in their status. Had they, in such a situation, sought to keep the peace, the City would ordinarily be obliged to respond for their negligent acts, but, when their own independent actions not only provoke a disturbance but cause it to be concluded in the disastrous manner of this case, the City’s status quo cannot be gainsaid by such after-the-fact exercises as displaying a police identification card and “taking charge” at the scene. Were this to be the case, the City would become, essentially, the guarantor of all of the actions of all of its police officer employees at all times, for, then, any act, however bizarre, could be a basis for City liability by the expedient of subsequent identification as action within the course and scope of City employment. Thus, departmental regulations which encourage off-duty personnel to carry their credentials and their weapon cannot, standing alone, change off-duty status when, as noted in Normand v. City of New Orleans (No. 8410 on our docket, decided September 26, 1978, rehearing denied November 20, 1978), La.App., 363 So.2d 1220, the servant “engages in a frolic which is in no manner related to service of the master.” As further noted in that opinion, “The ultimate determination depends upon the particular facts and circumstances of each individual case.”

Accordingly, we hold that the trial court was manifestly in error in concluding that DeNoux (and Reboul) was acting in the course and scope of his employment.

The judgment of the Civil District Court for the Parish of Orleans is amended as follows: ■

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of Sheryl Cheatham, widow of Charles Cheatham, individually, and against Daniel DeNoux in the full sum of $170,000, together with legal interest thereon from the date of judicial demand until paid, and for all costs.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of Sheryl Cheatham, widow of Charles Cheatham, on behalf of her minor son, Charles Cheatham, Jr. and against Daniel De-Noux in the full sum of $55,000, together with legal interest thereon from the date of judicial demand until paid, and for all costs.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the claim of Sheryl Cheatham, widow of Charles Cheatham, individually and in behalf of the minor, Charles Cheatham, Jr., against Stephen Reboul and the City of New Orleans is dismissed, at plaintiff’s cost.

REVERSED IN PART, AMENDED IN PART AND RENDERED.

SCHOTT, J., dissented in part and filed opinion and was of the opinion rehearing should be granted.

SCHOTT, Judge,

dissenting in part:

I respectfully dissent from that portion of the majority opinion which reverses the judgment against the city and Stephen Re-boul.

My colleagues quote the observations of the trial judge at the end of the trial but they fail to consider the following comments he made in denying defendants’ motion for a new trial:

“The Court feels that there is enough testimony in the record that when the shoeshine boy started to aggravate the two police officers, which he was doing, had they flashed their badge to the young black shoeshine boy and told him, ‘we are police officers. Quit harassing us.’ If that were so Cheatham wouldn’t be dead. But all the back and forth stuff with the kid and back and forth led to this, led to that, led to Cheatham butting in so to speak and the Court feels that it would be contrary to what it had heard to grant a new trial.”

This reasoning is supported by the record. As off-duty policemen defendants were authorized to apprehend wrongdoers and preserve the peace of the community. They had the duty as policemen to prevent civil commotion and disorder. Furthermore, they were required by police regulations to carry their weapons.

Their dereliction under the circumstances consisted of an omission, i. e., a failure to assert and identify themselves as police officers before events deteriorated to the point where Cheatham and Reboul were fighting. My colleagues have directed their attention to the commission of the shooting itself in assessing the city’s vicarious liability, but in my view the city is liable because its employees failed to act reasonably and prudently under circumstances where that failure foreseeably could and in fact did precipitate Cheatham’s death.

In failing to act as reasonably prudent police officers defendants were negligent in the performance of their official duty and their negligence was properly imputed to their employer, the city. Jones v. City of Lake Charles, 295 So.2d 914 (La.App. 3rd Cir. 1974), Bourque v. Lohr, 248 So.2d 901 (La.App. 3rd Cir. 1971).

Because of my approach to liability I have no difficulty concluding that both De-Noux and Reboul were liable to plaintiff. They jointly owed the duty to act as reasonably prudent police officers under the circumstances, they jointly failed to discharge that duty and their failure created the risk of and ultimately caused the shooting.

      . The jury’s award of $50,000 for conscious pain and suffering, with no evidence whatsoever to support such a finding, is, itself, indicative of the desire of this jury to punish the culpable party rather than to compensate the victim’s heirs for losses proved in the record.


source: Caselaw Access Project

author: FORET, Judge.

license: Public Domain

text:
    William C. HOLLIS, Plaintiff-Appellant, v. TRAVELERS INSURANCE COMPANY, Defendant-Appellee.
    No. 6688.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1978.
    Broussard & Bolton, Frank R. Bolton, Jr., Alexandria, for plaintiff-appellant.
    Gold, Little, Simon, Weems & Bruser, Edward E. Rundell, Alexandria, for defendant-appellee.
    Before WATSON, GUIDRY and FORET, JJ.
   FORET, Judge.

The sole issue presented on this appeal is whether William Hollis is partially disabled within the meaning of LSA — R.S. 23:1221(3) as amended by Act 583 of 1975.

On December 29, 1976, plaintiff was injured while working within the course and scope of his employment with Pensacola Construction Company. Travelers Insurance Company, the workmen’s compensation insurer of Pensacola Construction Company, paid plaintiff compensation benefits in the amount of $95.00 per week from December 29, 1976, through February 19, 1977. It was further stipulated that Travelers paid plaintiff’s medical and surgical expenses resulting from his injury in the amount of $1,840.25. As a result of the accident on December 29, plaintiff suffered an injury to his abdomen and his knees. Plaintiff’s treating physician, Dr. E. R. Vil-lemez, released plaintiff to return to his former occupation as a dragline operator on February 19, 1977. Plaintiff remained employed by Pensacola Construction Company until the first part of June, 1977, when he returned to his home in Pine Bluff, Arkansas. Since his return to Pine Bluff, plaintiff has been steadily employed as a carpenter at a wage of $6.00 per hour. Plaintiff earned a wage of $6.30 per hour while working as a dragline operator and frequently earned time and a half overtime at his former occupation.

Plaintiff testified that he voluntarily terminated his employment with the Pensacola Construction Company because he felt that he could not continue to work without experiencing pain in his right knee and without exposing his fellow employees to danger should his leg fail him during the operation of his machine. Plaintiff’s wife, Dorothy Jean Hollis, corroborated plaintiff’s complaints of pain in his right knee as well as his reasons for leaving his job with Pensacola Construction Company.

Plaintiff contends that he told a supervisor on the job that he was experiencing trouble with his right knee and foot. This supervisor died prior to the trial. Joe Za-gar, a fellow employee of plaintiff’s at Pensacola Construction Company, testified that plaintiff never complained of pain in his right knee after the accident. Mr. Zagar, as well as Weldon Silvey, the office manager of Pensacola Construction Company, testified that plaintiff terminated his employment with Pensacola for personal reasons.

Dr. Villemez, the treating physician, was not called upon to testify at the trial. Dr. John P. Weiss, an orthopedic surgeon, examined plaintiff on January 31, 1978. Based upon plaintiff’s history and his subjective complaints, Dr. Weiss opined that plaintiff’s disability of the knee was about 10%. A report from Dr. Frank Reed indicates that plaintiff has no more than a 5% permanent partial disability to the knee joint. Both doctors indicate that plaintiff’s condition was more in the nature of discomfort than disability.

LSA-R.S. 23:1221(3), as amended by Act 583 of 1975, defines partial disability as disability to perform the duties in which the worker was customarily engaged when injured, or duties of the same or similar character for which the worker was fitted by education, training, and experience. This definition substantially encompasses the jurisprudential definition of permanent total disability prior to 1975. See: Ashworth v. Elton Pickering, Inc., 361 So.2d 940 (La.App. 3 Cir. 1978) and Rachal v. Highlands Insurance Company, 355 So.2d 1355 (La.App. 3 Cir. 1978). Recent jurisprudence has held that when an employee can only work in substantial pain or at substantial risk to his health, he is entitled to either total disability compensation (Phillips v. Dresser Engineering Company, 351 So.2d 304 (La.App. 3 Cir. 1977) and Rachal, supra) or partial disability compensation (LeBlanc v. Commercial Union Assurance Company, 349 So.2d 1283 (La.App. 1 Cir. 1977)). However, it is well settled that a claimant who alleges disability because of inability to perform his usual and regular duties without substantial or appreciable pain must establish the existence of that condition to a reasonable certainty and by a fair preponderance of testimony. Breaux v. Kaplan Rice Mill, Inc., 280 So.2d 923 (La.App. 3 Cir. 1973); Gros v. Employers Insurance of Wausau, 338 So.2d 986 (La.App. 4 Cir. 1976); Rachal v. Fireman’s Fund Insurance Co., 360 So.2d 656 (La.App. 3 Cir. 1978); Ennis v. Plant Service Construction Company, 316 So.2d 168 (La.App. 4 Cir. 1975), and Clevinger v. Continental Insurance Companies, 211 So.2d 718 (La.App. 2 Cir. 1968). A claimant will not be held to be disabled solely because he suffers some residual pain and discomfort when he attempts to work following a work-related accident. The residual pain or discomfort in such a circumstance will be considered disabling only if it is substantial or appreciable pain. Breaux v. Kaplan Rice Mill, Inc., supra.

The trial judge found that plaintiff had failed to prove his disability to perform his former occupation. Such a factual determination by the trial judge when based upon his evaluation of credibility cannot be disturbed on appeal absent manifest error. Canter v. Koehring Co., 283 So.2d 716 (La.1973). The standard of review enunciated in Canter has been consistently applied by this Court to workmen’s compensation suits. Butts v. Insurance Company of North America, 352 So.2d 745 (La.App. 3 Cir. 1977); Dowden v. Liberty Mutual Insurance Company, 346 So.2d 1311 (La.App, 3 Cir. 1977), and Broussard v. Acadia Industries, Inc., 339 So.2d 48 (La.App. 3 Cir. 1976).

Our review of the record indicates that there was a reasonable factual basis from which the trial judge could infer that plaintiff was not disabled from performing his former occupation.

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

AFFIRMED.


author: JONES, Judge.

text:
    RIVERLAND OIL MILL, INC., Plaintiff-Appellee, v. UNDERWRITERS FOR LLOYD’S, NEW YORK, Defendant-Appellant.
    No. 13767.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1979.
    En Banc. Rehearing Denied Feb. 28, 1979.
    Writs Refused April 23, 1979.

      Brown, Wicker & Lee, Monroe, for defendant-appellant.
    Thompson, Sparks, Cudd & Dean, Monroe, Wallace & Southerland, Benton, for plaintiff-appellee.
    Before HALL, MARVIN and JONES, JJ.
   JONES, Judge.

Appellants, Leighton H. Stevens, Wayne D. Moore, John N. Gilbert, Jr., H. Fletcher Eggert, Jr., L. Palmer Brown, III, Serena Merck, Joseph C. Cornwall, Stevens Peale, Hugh C. O’Rourke and Miles W. Rehor, underwriters for Lloyd’s of New York and Lloyd’s, New York, hereinafter referred to as defendant, fire insurer of plaintiff, Riv-erland Oil Mill, Inc., a cottonseed oil mill, appeal a judgment against it for damages caused by fire to 7,352 tons of cottonseed. The plaintiff answers the appeal seeking penalties and attorney’s fees based upon defendant’s arbitrary and capricious failure to pay an amount it admittedly owed. We award penalties and attorney’s fees, and as amended, affirm the judgment.

On August 15, 1975, a fire occurred in Seed House No. 4 of plaintiff’s cottonseed oil mill located in Bossier City. The plaintiff contends there were 7,352 tons of seed in Seed House No. 4 at the time of the fire. Defendant contends there were 6,020 tons of seed in the seed house at the time of the fire. The fire commenced at approximately 7:00 P.M. and burned for three hours and for several hours thereafter continued to smoulder. Several units of the Bossier City Fire Department were called to the fire, and many gallons of water were poured upon the seed. One unit of the fire department remained at the site of the fire until 10:00 A.M. the following day. Defendant’s policy provided full coverage on the loss conditioned upon the insured having made accurate reports of its inventory each month to defendant. Premiums were based upon the inventory reported. The inventory of a cottonseed oil mill consists of the cottonseed and the products produced from it. The products produced from the seed are oil, meal, hulls, linters and motes.

The inventory of cottonseed in an oil mill is determined by deducting the tons of seed crushed by the presses from the tons of cottonseed received by the mill. The standard practice in the industry for determining the number of tons crushed by the mill is to divide the number of pounds of cottonseed oil produced (this is determined by measuring the gallons of oil produced and multiplying it by the known weight per gallon) by the oil factor of the cottonseed being crushed. The oil factor is the number of pounds of oil contained in a ton of seed and is determined by a chemical analysis of the seed.

In July, 1975, Tom Poulos, secretary-treasurer of plaintiff, in a routine trip to plaintiff’s mill, reviewed its production records and observed that it had been reducing its inventory based upon too low an oil factor (testified by him at 250 pounds per ton). A 300 pound oil factor is the rule of thumb in the industry. Mr. Poulos, upon making this observation, concluded there were substantially more cottonseed in the inventory of the plaintiff than the books reflected. To understand Mr. Poulos’ observation, one must recognize that by using an oil factor of 250 pounds per ton, a larger number of tons would be attributed to manufacturing the daily production of oil than in fact had been used if the oil factor was substantially above 250 pounds per ton. Mr. Poulos realized that because plaintiff’s inventory had been relieved (deducted from), based upon a low oil factor, that substantially more tons were removed from the inventory than had in fact been used in the production of the oil. For this reason there was substantially more seed located at the plant than reflected by the books. This meant there were more products available to be produced at Riverland from the existing inventory than reflected by the books of the company. Mr. Poulos, for this reason, advised Mr. Taylor, plaintiff’s general manager, to take the necessary steps to figure out the correct amount of products available for sale. Mr. Taylor had an oil analysis run on the seed then being crushed and found they had an oil factor of 295 pounds. Mr. Taylor, on or about August 13, 1975, advised Mr. Richard Campbell, who was serving as office manager during the vacation of Mr. Posey, plaintiff’s regular office manager, to adjust the cottonseed inventory based upon an oil factor of 295 pounds. Mr. Campbell determined from the books of the plaintiff the number of pounds of oil produced from May 1, 1975 (this being the commencement of plaintiff’s fiscal year) until August 4, 1975. He divided the total number of pounds of oil produced by the oil factor of 295 pounds and determined the amount of tons which the inventory should have been reduced. He further determined that the inventory had actually been reduced by 1,332 tons in excess of this amount. On the morning of August 15, 1975, to correctly reflect the existing cottonseed inventory, Mr. Campbell added to the inventory reflected by the books, 1,332 tons, resulting in the inventory then showing the amount of 7,888 tons of cottonseed.

Following this adjustment of inventory on the morning of August 15, 1975, that evening at 7:00 P.M. a fire occurred in Seed House No. 4. All of plaintiff’s seed were stored in Seed House No. 1 and No. 4. At the time of the fire, there were 457 tons of seed in Seed House No. 1 and 79 tons of seed had been removed from storage and was directly involved in the production process. There were, at the time of the fire, located in Seed House No. 4 as shown on the books of the plaintiff as adjusted that day, 7,352 tons of cottonseed.

Plaintiff made its fire loss claim based upon the inventory as adjusted by the addition of 1,332 tons. Defendant contended the inventory adjustment was unwarranted and the correct amount of plaintiff’s inventory was the amount reflected by the books prior to the adjustment, and in this dispute with regard to the correctness of the inventory is found the basis of this litigation.

The plaintiff, in compliance with reporting requirements of its insurance policy, reported the number of tons of cottonseed as shown on its books on July 31, 1975, which was before the 1,332 ton adjustment, and for that reason, the report reflected approximately 1,300 tons of seed less than plaintiff now contends actually existed in the inventory on July 31. Under these circumstances, the following co-insurance provision of the policy would be applicable to the plaintiff’s fire loss in the event plaintiff prevails in its contention that the 1,332 ton adjustment to its inventory was properly made:

“F. FULL REPORTING: The liability of the Company shall not exceed that proportion of loss (meaning the loss, as provided in the Excess Clause above, at the location involved), which the last reported value filed prior to the loss, less the amount of any specific insurance reported, at the location where the loss occurs, bears to the total actual cash value, less the amount of specific insurance, if any, at that location on the date for which the report was made.”

The defendant, while denying the correctness of plaintiff’s adjustment, contends that in the event it is held to have been correctly made, that based upon the co-insurance provision the plaintiff is only entitled to 81% of its loss. Defendant further contends the 81% should be based upon the gross loss, this being the value of the total number of tons involved in the fire before any deduction therefrom is taken for the salvage value of damaged seed. The plaintiff contends the correct co-insurance percentage is 89% and it is to be calculated upon plaintiff’s net loss, this being determined by deducting from the gross value of the seed involved in the fire the salvage receipts from the damaged seed which were utilized after the fire.

The trial judge concluded the plaintiff’s inventory adjustment was proper and that there were 7,352 tons of seed in Seed House No. 4 at the time of the fire. The trial judge further concluded that the plaintiff’s method of applying the co-insurance factor was correct.

Defendant assigns as error these trial court determinations and further complains of the trial court’s allowance of $18,524 conversion costs on damaged seed as a recoverable expense.

In November, 1975, defendant prepared a Proof of Loss and submitted it to plaintiff for approval. It was based upon an inventory of approximately 1,000 tons less than plaintiff contends was in Seed House No. 4 at the time of the fire. The Proof of Loss recognized that defendant owed plaintiff $917,031.00, less $250,000.00 which defendant advanced plaintiff immediately following the fire, or in other words, recognized a liability of defendant to plaintiff of $657,-031.00. The plaintiff refused to sign the Proof of Loss because it did not cover his contended loss and filed suit. The defendant failed to pay the amount shown on Proof of Loss submitted and plaintiff contends defendant’s failure to pay this amount is arbitrary and capricious and results in it being liable for penalties and attorney’s fees.

The trial court rejected plaintiff’s claim for penalties and attorney’s fees, giving as reason therefor “in view of the unusual inventory adjustments occurring on the day of the fire and the inconclusiveness of plaintiff’s total loss until the whole matter was liquidated, the Court is of the opinion that the plaintiff is not entitled to attorney’s fees and statutory penalties.” Plaintiff assigns as error the trial court’s rejection of its claim for attorney’s fees and penalties.

The issues presented are (1) plaintiff’s inventory at the time of the fire (2) conversion cost award of $18,524 (3) calculation of the co-insurance factor and (4) penalties and attorney’s fees.

INVENTORY AT THE TIME OF THE FIRE

The proper method to efficiently determine the number of tons of cottonseed being utilized in the daily production of cottonseed oil is by the use of an oil factor determined by chemical analysis. During the production year of 1975, Mr. Posey, plaintiff’s office manager, determined the number of tons of cottonseed being used in the daily production process by calculating the number of hours that plaintiffs four cottonseed oil presses operated, which information he obtained from the oil mill’s daily superintendent’s reports. Mr. Posey made the determination of the number of tons of cottonseed consumed in the daily production based upon available information of the number of tons of cottonseed the presses were capable of utilizing. The oil factor was apparently determined and placed in the records based upon the number of pounds of oil produced, divided by the number of tons of seed utilized, computed upon press operations. The reduction in the inventory based upon the press tonnage calculation caused a misstatement in the inventory. There were more tons of cottonseed in plaintiff’s warehouse than were reflected on its books.

Plaintiff offered the testimony of a well-qualified oil mill expert of long experience who analyzed plaintiff’s production records for 1975, as well as the three prior years. This expert testified that by using oil factors reflected upon the chemical analyses that were in the records of the company, that he concluded the inventory had been excessively reduced by 1,332 tons during the period between May 1 and August 15, 1975. His testimony reflects that excessive reduction commenced in May, 1975 and that by July 11, 1975, the inventory had been excessively reduced by 1,269 tons. His calculations indicate that plaintiff’s correct inventory as of August 15, 1975 was 7,888 tons. The trial judge was impressed by this witness and stated “the testimony of the expert witness, William T. Campbell, is important. He made a complete review of the plaintiff’s operation and determined that the adjustment to the inventory was proper, despite painstaking cross-examination, he remained steadfast in his conclusion.” The trial judge was even more impressed, as we are, by the evidence adduced at trial as to the seed destroyed in the fire, salvaged following the fire, and left on the ground as unrecoverable, which substantiated the plaintiff’s contention as to the cottonseed tonnage existing in Seed House No. 4 at the time of the fire.

Witnesses testified that from 200 to 856 tons of cottonseed were actually destroyed by fire. The seed that remained were saturated with water and in order to salvage as many of them as possible, they were removed from the seed house and some of them were stored on surrounding land, others were carried to storage sites in Natchi-toches, New Roads and Opelousas, and others were carried to the dump. A salvage specialist was employed to handle most of these operations. It was stipulated that the salvage operator hauled 4,738 tons of seed from the plaintiff’s premises. 3,600 tons of these seed were crushed at a Natchitoches oil mill. In connection with the removal of these large volumes of seed from the seed house to the storage area and into the vehicles used to haul them to other locations, there were large numbers of seed placed on the ground that were not recoverable in the salvage process. The seed that remained on plaintiff’s premises that were recoverable were crushed by it. Plaintiff produced 1,829 tons of products from the damaged seed that were not removed by the salvage operator from the premises. This was established by the testimony of Mr. Posey, plaintiff’s office manager.

The seed which were crushed by the Natchitoches mill contained approximately 200 pounds per ton weight manufacturing loss and they were as good or better than the salvaged seed crushed by plaintiff. Under these circumstances, in order for plaintiff to produce from the salvaged seed products weighing a total of 1,829 tons, it actually crushed seed weighing in excess of 2,029 tons. Adding the 2,029 tons crushed to the 4,738 tons hauled off, plaintiff has accounted for 6,767 tons of seed that were initially located in Seed House No. 4, leaving 585 tons of its adjusted inventory unaccounted for.

We are unimpressed by defendant’s contention that the testimony of Mr. Posey as to the after fire production is unbelievable because of his conflicting testimony as to his method of reducing the inventory. While Mr. Posey did indicate that he reduced the inventory by the use of an oil factor and later explained that this reduction was based upon press production, this conflict of testimony does not establish that Mr. Posey misrepresented the facts concerning the actual tons of products produced by plaintiff’s mill from the damaged seed. We note that defendant’s adjuster, while attempting to deny the number of tons of products produced from these damaged seed by plaintiff’s mill, willingly accepted the value of these products as in excess of $240,000 for the purpose of deducting salvage value from plaintiff’s total loss.

The defendant’s contention that the oil factor reflected on laboratory analysis found in plaintiff’s records has the effect of disproving the tonnage of products produced after the fire is without merit for the reason that evidence established that oil factor determinations on damaged seed are unreliable. We further observe it was not established that the laboratory analyses were actually made on the seed which were used by the plaintiff in producing the 1,829 tons of products.

Plaintiff’s expert, Coleman, expressed the opinion based upon his past experience of burning cottonseed hulls that 570 tons of cottonseed would have burned in the three hour fire. Plaintiff offered the testimony of another expert who performed cottonseed burning tests under controlled conditions. He testified the three hour fire would have consumed between 428 and 856 tons of seed. Plaintiff’s expert, Coleman, expressed the opinion that 270 tons of unrecoverable cottonseed were left on the ground in the storage area and on the runways used for the front-end loaders and tractor-trailer trucks. This opinion was based upon information supplied to him on the area of ground where the cottonseeds were placed, the approximate depth of the seed left on the ground not recoverable because they had been pressed into the soil by the wheels of vehicles used in the salvage operation. The trial court concluded that the testimony of these experts as to the cottonseed burned and left on the ground, taking into consideration with the seed hauled off by the salvage operator and the seed crushed by plaintiff, established that plaintiff had at least 7,352 tons of seed in Seed House No. 4 at the time of the fire. We find there is ample evidence in the record to support the trial judge’s finding as to the volume of cottonseed involved in the fire and it shall not be disturbed. Canter v. Koehring, 283 So.2d 716 (La.1973); Aleman v. Lionel Favret Company, 349 So.2d 262 (La.1977).

CONVERSION COST

The defendant asserts on appeal the trial court erred in awarding plaintiff $18,-524 extra conversion cost as an expense which related to plaintiff’s conversion of over 2,000 tons of damaged cottonseed into 1,829 tons of products valued at $240,666.38. Defendant does not contend that extra conversion costs required to convert damaged seed into saleable products is not an item of expense properly considered in determining the loss covered by the policy. The defendant argues there is no evidence in the record to support the trial judge’s determination that additional conversion costs were in fact incurred. We find the trial judge’s award for extra conversion costs is supported by the testimony of Mr. Posey, plaintiff’s office manager, establishing that the plaintiff incurred additional conversion costs in connection with processing of the damaged seed. The conversion costs determination is also supported by documents in the records wherein defendant’s adjuster recognizes the additional conversion cost in the amount of the award.

CO-INSURANCE

The insurance policy required plaintiff to report its correct inventory to the insurer on July 31, 1975. Plaintiff failed to do this and for that reason it was not entitled to the full amount of its loss. The insurance policy contains the following provision which has the effect of reducing the percentage of plaintiff’s claim under circumstances wherein it failed to report the full inventory to the insurer, to-wit:

“The liability * * * shall not exceed that proportion of the loss * * * which the last reported value filed prior to the loss * * * bears to the total actual cash value * * * on the date for which the report was made.”

The fraction for which this policy provision provides is stated as follows:

On July 31,1975-Last
reported value of stock prior to loss _$1,261,854.00
Total actual cash value = 89,054% of stock on date of last
report _= 1,416,947.01

The parties agree as to the value of the stock reported (the numerator) and there is a dispute as to the value of the stock actually on hand on reporting day (the denominator). The trial court found this value to be $1,416,947.01. This value includes the value of products on hand other than cottonseed. There is no dispute as to the value of the products on hand other than cottonseed. This determination was based upon the testimony of plaintiff’s expert, Coleman, that 7,286 tons of seed were contained in plaintiff’s inventory on report day. The Court accepted plaintiff’s evaluation of $25 per ton for 457 tons of bad seed contained in the inventory which was not involved in the fire, as this was the price plaintiff received for it when it was sold in August, 1975. Since the clause in the policy provided for the actual value of the inventory on reporting date, this determination as to the value of the tonnage of bad seed is as contemplated by the policy. The value per ton of the seed, other than the bad seed, is accepted by plaintiff and defendant as $168.23 per ton. We conclude the factual determination of the trial judge as to the value of the inventory on report day is supported by the record and that the co-insurance factor was properly determined to be 89.054%.

Defendant contends the loss to which the co-insurance percentage is to be applied is the total value of the cottonseed involved in the fire. The plaintiff contends the loss to which the percentage is to be applied is the total value of the seed involved in the fire less the salvage proceeds obtained from the disposition of the damaged seed. The authorities cited by defendant do not discuss this issue, and therefore, do not support the defendant’s contentions. The trial court accepted the plaintiff’s contention and applied the co-insurance percentage to the net loss. This method of performing the calculation was approved in the decision of Rolane Sportswear, Inc. v. United States Fidelity & Guaranty Company, 407 F.2d 1091 (6th Cir. 1969). Defendant’s claim manager testified that this was the correct method of applying the co-insurance clause.

We agree that the co-insurance percentage should be applied to the net loss. Otherwise, plaintiff would be penalized for failure to report on the value of the salvage which the issuer is not required to pay.

Plaintiff’s loss is to be determined by multiplying the total number of tons of cottonseed involved in the fire (7,352 tons) by the stipulated value of each ton ($173.34), less the salvage receipts times the co-insurance percentage, plus expenses incurred by plaintiff in connection with the salvage operation. Plaintiff’s fire loss and credit applicable to it can be calculated as follows:

Tons of seed involved in fire-7,352
Stipulated value of each X $173.34 ton of seed
TOTAL VALUE OF SEED INVOLVED IN FIRE _$1,274,395.68
Less Salvage Recovery:
Received from salvage operator Reynolds_$163,544.25
Received from products produced by plaintiff from fire damaged seed_$240.666.38
TOTAL SALVAGE RECOVERY __ 404,210.63
$ 870,185.05
Percentage of the loss to which plaintiff is entitled under penalty provision of the insurance policy wherein ^ it is penalized for failure to report full inventory__89.054%
$ 774,934.59
Plaintiff’s salvage expenses:
Freight on Meal_$ 747.00
Salvage expenses incurred by plaintiff_ 6,331.00
Extra conversion costs expended by plaintiff in connection with damaged seed_ 18.524.00
TOTAL _+ 25,602.00
$ 800,536.59
(we add back the salvage received from Reynolds in order that the payment may be hereafter shown as a deduction)_ 163,544.25
964,080.84
PAYMENTS RECEIVED PROM DEFENDANT:
September, 1975 _$250,000.00
January, 1976 (received from salvage operator Reynolds) _ 163,544.25
January, 1976 _ 16,959.00
October, 1976 _ 332,587.00
May 3,1977 _ 11,435.75
Sept. 8,1977 -.__ 33.698.00
TOTAL_ 808.224.00
TOTAL amount to which plaintiff was entitled and for which trial court rendered judgment_$ 155,856.84

PENALTIES AND ATTORNEY’S FEES

Plaintiff contends defendant has been arbitrary and capricious in failing to pay the undisputed portion of its fire loss and for that reason is liable to it for 12% penalties and reasonable attorney’s fees under the provisions of LSA-R.S. 22:658.

Defendant argues it never received a satisfactory proof of loss from plaintiff and this is an essential condition precedent to the application of the penalty statute.

Defendant further contends that because of the inventory adjustment that was made on the date of the fire, that it was not arbitrary and capricious for failing to make payment under the policy in any manner other than it did.

The fire was promptly reported to defendant and its adjuster arrived at plaintiff’s oil mill and commenced his investigation within two or three days after the fire. Plaintiff made available to defendant’s adjuster all of its books and records, and cooperated with him in making arrangements to salvage the damaged cottonseed. The adjuster acknowledged he had received full cooperation from the plaintiff.

On November 24, 1975, defendant’s adjuster wrote plaintiff a letter and enclosed with it an exhibit showing his calculation of plaintiff’s loss and enclosed a prepared Proof of Loss to be executed by plaintiff. The Proof of Loss reflected plaintiff’s claim to be $917,031.00. The loss calculation was based upon 6,369 tons of seed being involved in the fire which was approximately 1,000 tons less than the amount of seed which plaintiff contends was involved in the fire. The Proof of Loss took credit for the $250,000.00 which defendant had earlier advanced to the plaintiff and was, therefore, prepared reflecting a final claim of $667,-031.00. The exhibit and letter of transmittal provided that all salvage would accrue to the insurer. Defendant’s adjuster admitted in his deposition that he had authority from defendant’s claim manager to prepare the proof and was advised that payment would be made upon the execution of the Proof of Loss by plaintiff. The plaintiff refused to execute the Proof of Loss because it failed to include all of the cottonseed that it contended was involved in the fire.

The Proofs of Loss required by LSA-R.S. 22:658 are not required to be in any particular form and may even be verbal. The purpose of the requirement of the Proof of Loss is to advise the insurer of the facts of the claim. In the case of Gatte v. Coal Operators Casualty Co., 225 So.2d 256 (La.App. 3rd Cir. 1969), reversed on other grounds, 256 La. 325, 236 So.2d 285 (1970), the court stated with regard to penalties and attorney’s fees:

“One who claims penalties and attorney’s fees under LSA — R.S. 22:658 has the burden of proving submission to the defendant of ‘satisfactory proofs of loss’ as a necessary predicate to a showing that the defendant was arbitrary, capricious or without probable cause in failing to pay benefits. Steadman v. Pearl Assurance Company, supra [242 La. 84, 134 So.2d 884]; Moore v. St. Paul Fire & Marine Insurance Company, La.App., 193 So.2d 882 (3rd Cir. 1967); Soulier v. Raymond, La.App., 177 So.2d 651 (4th Cir. 1965); Wilkins v. Allstate Insurance Company, La.App., 173 So.2d 199 (1st Cir. 1965); Sbisa v. American Equitable Assurance Company, 202 La. 196, 11 So.2d 527, 145 A.L.R. 332 (1942); Daigle v. Great American Indemnity Company, 70 So.2d 697 (1st Cir. 1954). However, it is not necessary that the proof of loss be in writing, or in any other formal style, so long as the defendant has actual knowledge of the facts, Moore v. St. Paul Fire & Marine Insurance Company, supra, and cases cited therein.” p. 258.

In the case of Paul v. National American Insurance Co., 361 So.2d 1281 (La.App. 1st Cir. 1978), the court stated:

“Notwithstanding the rule of strict construction applicable in cases of this nature, our jurisprudence establishes that the pertinent statute does not require written proof of loss, or any other formal style of proof; it is required only that the insurer have actual knowledge of the facts. Artigue v. Louisiana Farm Bureau Mutual Insurance Company, 339 So.2d 880 (La.App. 3rd Cir. 1976); Wilkins v. Allstate Insurance Company, 173 So.2d 199 (La.App. 1st Cir. 1965). In this case, appellant was fully apprised of the claim through Pittman’s personal investigation of the premises and the list of contents furnished by Insured. Pittman’s testimony establishes conclusively that the delay in payment was not due to any fault of Insured.” p. 1284.

The information available to defendant’s adjuster and incorporated by him in the exhibit attached to the Proof of Loss prepared by him satisfied the LSA — R.S. 22:658 requirement of proof of loss. The defendant having recognized plaintiff’s claim to the extent set forth in the Proof of Loss was required by LSA-R.S. 22:658 to pay the amount therein set forth within 60 days.

In Sensat v. State Farm Fire & Casualty Co., 176 So.2d 804 (La.App. 3rd Cir. 1965), the plaintiff’s home was severely damaged by fire. At the time of the loss, the property was insured by a policy issued by the defendant with limits of $35,000. The adjuster for the defendant insurance company obtained an appraisal of the damage in the amount of $25,225.31 and offered to settle with plaintiff on that basis. However, the plaintiff contended the house was a total loss and that he was entitled to the limits of the policy. The defendant did not pay the amount of its estimate. The court held the defendant was liable for penalties and attorney’s fees and made the following statement with respect to the defendant’s action:

“We are unable to find that the defendant-insurer was anything less than arbitrary and capricious in failing to pay or tender payment of the amount of $25,-225.13 after having fully investigated the loss. The defendant did not at that time dispute that this amount was due, but conditioned an offer of payment of this amount on plaintiff’s accepting it in full settlement of the claim. This offer to settle the claim was in no manner a tender of payment as contemplated by R.S. 22:658, for a tender of payment must be absolute and unconditional. Frugé v. Hub City Iron Works, Inc., La.App. 3rd Cir., 131 So.2d 593.” p. 807.

The court stated “under these circumstances, where an insurer fails to tender or pay within the statutory period that part of its liability for which without dispute it is liable, thus causing an insured to retain an attorney to collect this undisputed portion of the liability as well as that portion as to which there may be a bona fide dispute, the penalty statute requires the insurer to be subjected ‘to a penalty, in addition to the amount of the loss, of 12% damages on the total amount of the loss * * * together with all reasonable attorney’s fees for the prosecution and collection of such loss.’ ”

In Benoit v. American Mutual Insurance Co. of Boston, 236 So.2d 674 (La.App. 3rd Cir. 1970), plaintiff sustained a fire loss damaging his home and the contents. There was initially a strong suspicion of arson. He instituted suit against the insurer for the amount of his loss, together with penalties and attorney’s fees. Defendant obtained an estimate of the damage to the structure in the sum of approximately $20,-287.61 but never paid this amount even after the suspicion of arson proved unfounded. The defendant was fully aware because of its previous estimate that the damage to the house was at least $20,-287.61, “yet the defendant did not tender payment for the loss of the structure until October 1, 1969” (the fire occurred on January 14, 1969). The Court made this comment concerning the defendant’s estimate of the loss sustained by plaintiff:

“Since the defendant had made its own estimate of the damage to the structure, it should at least have tendered $20,-287.61, the amount of the estimate, to the plaintiff within 60 days of June 26, 1969. After that date there was no excuse for the defendant’s failure to do so, for it had learned conclusively on that date that the defense of arson was no longer available. Its failure to do so before October 1,1969, was arbitrary and capricious, and penalties and attorney fees must be assessed as to the amount due for the loss of the structure.” p. 677.

In the case of Dumond v. Mobile Insurance Co., 309 So.2d 776 (La.App. 3rd Cir. 1975), plaintiff’s mobile home was a total loss as result of wind damage. He filed suit for the total loss plus penalties and attorney’s fees. The trial court held that the mobile home was a total loss and awarded plaintiff the face amount of the policy of $8,000 together with penalties and attorney’s fees, and its decision was affirmed on appeal with the court making the following statement with regard to penalties and attorney’s fees:

“The final specification of error by the defendant is that the trial judge erred in awarding penalties and attorney’s fees when there was no evidence to support the conclusion that the defendant had acted arbitrarily and unreasonably. We find, to the contrary, that there was in fact sufficient evidence that the defendants had acted arbitrarily and capriciously in denying payment of the insurance claim to plaintiff. The defendant obtained bids from Mr. McConley in the amount of $4,500.00 and from Mr. St. Julian in the amount of $1,632.96, and sent to the plaintiff a proof of loss form from the insurance company based upon the figure of $1,382.96 as a complete and final settlement for his loss. This figure was based on the bid received from Mr. St. Julian in the amount of $1,632.96, less the $250.00 deductible provided for in the insurance policy. This proof of loss form was never executed by the plaintiff as he informed the insurer that this amount was not acceptable and he desired payment for the total loss of his mobile home. The record indicates that the defendant never tendered to the plaintiff a draft or check for the amount of its own estimate of the damage to the structure.” p. 778.

See also Cox v. Southwestern Electric Power Co., 348 So.2d 1252 (La.App. 2d Cir. 1977).

The only payments that plaintiff received on its fire loss within the months of December, 1975 and January, 1976, following its receipt of defendant’s letter of November 24 containing the Proof of Loss were:

$ 16,959.00 - Received by plaintiff from defendant in January, 1976
$163,544.25 - Received from salvage operator Reynolds in January, 1976
$240,666.38 - Received and retained from products it produced from salvaged seed
$421,169.63-TOTAL

The Proof of Loss prepared by defendant contemplated that it was to receive the salvage, and therefore, salvage funds received by plaintiff within 60 days could be attributed to payment of the admitted loss:

Claim admitted-$667,031.00
Funds received _$421,169.63
Unpaid within 60 days
of proof of loss _$245,861.37

The defendant made no further payment to the plaintiff on its fire loss until October 1976 when it deposited $332,587.00 in the registry of the Court.

The defendant’s failure to pay what it admittedly owed until almost a year after its preparation of the Proof of Loss constitutes an arbitrary and capricious failure to pay within the contemplation of LSA-R.S. 22:658.

The defendant, through its salvage operator Reynolds, removed 4,738 known tons of cottonseed of a known value of $173.34 per ton from plaintiff’s oil mill shortly after the fire. Defendant was advised of the volume of seed removed by Reynolds and of its value by a report from its adjuster dated September 30, 1975. This knowledge of the defendant can be construed to constitute Proof of Loss. Gatte v. Coal Operators Casualty Co., supra; Paul v. National American Insurance Company, supra. The defendant’s claim manager testified that defendant had full control over the cottonseed hauled off by the salvage operator engaged by it. He testified the defendant was under no obligation to pay any portion of the fire loss until the entire loss, including the portion in dispute, could be determined. The position of defendant’s New York claims manager, with regard to payment of the undisputed portion of the claim, is contrary to the Louisiana jurisprudence. The value of these seeds was $821,-284.92 and the only payment made that could have been attributable to them before October, 1976 was the $250,000 advance in September, 1975 and the $163,544.25 payment by salvage operator Reynolds in January, 1976, thereby leaving $407,740.67. This sum was due and unpaid from January, 1976 until October, 1976, when the $332,587 was deposited in the registry of the Court and this deposit did not fully liquidate the value of the damaged seed removed from plaintiff’s premises shortly after the fire. While the defendant had every right to withhold payment on the disputed cottonseed, its failure to pay for almost one-half of the value of the seed removed by it for more than one year further establishes that the defendant was arbitrary and capricious in its failure to pay within the contemplation of the statute.

On the plaintiff’s total loss of $964,080.84 (the value of total seed involved in fire loss less value of salvage produced by plaintiff) defendant paid $430,503.25 by February 1, 1976 and no penalties are due on the amount so paid. We assess the defendant with 12% on the sum of $533,577.59 which was not paid before February 1, 1976, the amount of the penalties assessed being $64,-029.31. The plaintiff is also entitled to attorney’s fees. There is evidence that the plaintiff had paid their attorneys in legal fees and expenses $16,748.81 in connection with this litigation as of trial date. We have determined that $17,500 is a reasonable sum to compensate plaintiff’s attorneys for services rendered by them in this complex litigation, the trial of which lasted seven days.

The plaintiff asserts that it is entitled to legal interest on the sum of $11,-435.75 deposited in the registry of the Court on May 3, 1977 and to legal interest on the sum of $33,698 deposited in the registry of the Court on September 8, 1977 from the date of judicial demand until the date of the deposits. The trial court’s judgment of May 1, 1978 gives the defendant credit on plaintiff’s award for the $11,435.75 and in this respect the judgment reads as follows:

“That there be judgment herein in favor of the plaintiff * * * in the full sum of $200,990.59 plus legal interest as provided by law, less the $11,435.75 deposited in the registry of the Court by defendant.”

We construe the language of this judgment to provide for legal interest upon the $11,-435.75 credit and it needs no clarification. The judgment of the trial court of May 1, 1978 was amended by judgment rendered on a Motion For a New Trial on July 27, 1978 to provide credit for defendant’s deposit of $33,698. This amendment reads as follows:

“IT IS ALSO ORDERED, ADJUDGED AND DECREED that the Motion For a New Trial filed by the defendants herein be granted and that accordingly defendants be given a credit of $33,698 against the principal amount of the judgment and that this sum currently on deposit in the registry of the Court be and it is;: hereby ordered paid to Riverland Oil Mill, Inc.”

The language of this paragraph of the amending judgment providing for this credit has the effect of deducting the credit from the principal amount of $200,990.59 before the legal interest commenced to apply to the principal amount of the judgment, and for that reason, we find the plaintiff’s assignment of error to the effect that it is being denied legal interest on this sum from date of judicial demand to date of deposit is correct.

In order to correct this error, we add an additional paragraph to the judgment of July 27, 1978 as follows to-wit:

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the Motion for a New Trial filed by the plaintiff be granted and that there be judgment herein in favor of the plaintiff, Riverland Oil Mill, Inc., and against the defendants, LEIGHTON H. STEVENS; WAYNE D. MOORE; JOHN N. GILBERT, JR.; H. FLETCHER EGGERT, JR.; L. PALMER BROWN, III; SERENA MERCK; JOSEPH C. CORNWALL; STEVENS PEALE; HUGH C. O’ROURKE; MILES R. REHOR; UNDERWRITERS FOR LLOYD’S OF NEW YORK AND LLOYD’S, NEW YORK in solido, for legal interest on the sum of $33,698 deposited by the defendants in the registry of the Court from the date of judicial demand until the date of the deposit in Court.

We add the following paragraph to the judgment of May 1, 1978 for the purpose of including our award of penalties and attorney’s fees within the judgment:

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the Motion for a New Trial filed by the plaintiff be granted and that there be judgment herein in favor of the plaintiff, Riverland Oil Mill, Inc., and against the defendants, LEIGHTON H. STEVENS; WAYNE D. MOORE; JOHN N. GILBERT, JR.; H. FLETCHER EGGERT, JR.; L. PALMER BROWN, III; SERENA MERCK; JOSEPH C. CORNWALL; STEVENS PEALE; HUGH C. O’ROURKE; MILES R. REHOR; UNDERWRITERS FOR LLOYD’S OF NEW YORK AMD LLOYD’S, NEW YORK in solido in the full sum of SIXTY-FOUR THOUSAND, TWENTY-NINE AND 31/100 ($64,-029.31) DOLLARS for penalties and in the full sum of SEVENTEEN THOUSAND FIVE HUNDRED AND NO/100 ($17,500.00) DOLLARS for attorney’s fees.

For reasons assigned, the judgment as AMENDED is AFFIRMED at appellant’s cost.

      . LSA-R.S. 22:658: “All insurers issuing any type of contract other than those specified in R.S. 22:656 and 22:657 shall pay the amount of any claim due any insured * * * within 60 days after receipt of satisfactory proofs of loss from the insured, employee or any party in interest. Failure to make such payment within 60 days after receipt of such proofs and demand therefor, when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of 12% damages on the total amount of the loss, payable to the insured * * * together with all reasonable attorney’s fees for the prosecution and collection of such loss, or in the event a partial payment or tender has been made, 12% of the difference between the amount paid or tendered and the amount found to be due and all reasonable attorney’s fees for the prosecution and collection of such amount * * *


author: DOMENGEAUX, Judge.

text:
    AMERICAN SECURITY BANK OF VILLE PLATTE, Plaintiff-Appellee, v. Bobby DEVILLE, Defendant-Appellant.
    No. 6838.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 1979.

      Roger M. Evans, New Orleans, for defendant-appellant.
    Jules R. Ashlock, J. Wendel Fusilier, Ville Platte, for plaintiff-appellee.
    Before DOMENGEAUX, FORET and STOKER, JJ.
   DOMENGEAUX, Judge.

This case was consolidated for trial and appeal with Numbers 6839, 6840, and 6841, on the docket of this Court. The issue is the same in these four cases and will be discussed herein, although separate opinions in each case are being rendered on this day.

These suits arise out of the attempts of plaintiff, American Security Bank of Ville Platte, Louisiana, to enforce four chattel mortgages on the farm equipment of defendant, Bobby Deville, via executory process.

The facts relevant to these appeals may be stated as follows:

Defendant executed various promissory notes made payable to the order of Pitre Ford Tractor or Pitre Ford Tractor Company, which were secured by and paraphed for identification with various chattel mortgages on defendant’s farm equipment. All of the chattel mortgages were on a standard form, containing a confession of judgment clause, as well as all other items necessary to the use of executory process. The promissory notes were endorsed in blank by purported representatives of Pitre Ford and negotiated by Pitre Ford to plaintiff, American Security Bank. Apparently, defendant failed to make his payments under the notes.

American Security Bank sought to enforce the chattel mortgages via executory process and filed verified petitions alleging that defendant was delinquent in his payments on the notes. The bank submitted the appropriate authentic evidence of the mortgage instruments and the paraphed mortgage notes with its petitions. However, authentic evidence of the endorsements in blank of the notes by Pitre Ford was not submitted.

The following table references the docket numbers of the cases in this Court with the endorsements by Pitre Ford on the corresponding promissory notes, and the chattels affected by the mortgages.

In each one of the suits, defendant sought injunctive relief to arrest the seizure and sale of his property. Temporary restraining orders were issued initially by the District Judge. However, after a hearing, the temporary restraining orders were dissolved, and the injunctions sought by defendant in the various suits were denied. Defendant appeals suspensively from these judgments.

Defendant contends that the lack of authentic evidence of the endorsements in blank by Pitre Ford is fatal to the use of executory process.

Plaintiff, on the other hand, contends that it is not necessary to have authentic evidence of the endorsement in blank on the notes inasmuch as such endorsements converted the order instruments into bearer instruments under the commercial laws of this state (La.R.S. 7:34 and La.R.S. 10:3-204(2)), and authentic evidence of the transfer of a bearer note is not necessary to enable the holder to foreclose by executory process.

We think that authentic evidence of the endorsement of a note payable to order is critical to the use of executory process.

Executory process is a harsh remedy, and it can be used only in those situations specifically provided for by law. The party seeking to avail himself of the procedure must comply strictly with the letter of the law governing it. May Company, Inc. v. Heirs of Sumage, 347 So.2d 916 (La.App. 3rd Cir. 1977); First National Bank of Lafayette v. Gaddis, 250 So.2d 504 (La.App. 3rd Cir. 1971).

At the corpus of executory process is the requirement of authentic evidence to support every link in the necessary chain of evidence. Louisiana Code of Civil Procedure Article 2635; Id. Comment (b). This authentic evidence is necessary for the protection of the debtor because of the accelerated nature of the proceedings. American Bank and Trust Company in Monroe v. Carson Homes, Inc., 316 So.2d 732 (La.1975).

The precise issue presented here was discussed almost a hundred years a go in the case of Miller, Lyon & Company v. Cappel, 36 La.Ann. 264 (1884), which has been continually cited in Louisiana for the proposition that, if any of the required authentic evidence is found to be lacking, executory process is unavailable to the creditor. The facts of that case, however, are rarely mentioned. Actually, the factual setting of Cappel is virtually indistinguishable from the present case. The defendants in that case issued a mortgage note for $4,000.00 payable to the order of A. A. Mouton. The note was endorsed in blank and ultimately negotiated to plaintiffs, who sought to use executory process for its collection. The court stated:

“There is authentic evidence of the execution of the note and of the mortgage, but none to show the transfer of the note and of its accessory, the mortgage. .
To justify the order of seizure and sale every muniment of title, and every link of evidence must be in the authentic form. In such a proceeding the judge can entertain no matter in pais.
Our Code defines the requisites of an authentic act (C.C. 2234) and offers a complete refutation to the argument of plaintiffs’ learned counsel, who confound in their brief, authentic evidence of an endorser’s signature, with proof of the genuineness of the signature.
The question to be met is not whether the signature in the blank endorsement is that of A. A. Mouton, but whether the judge was furnished with authentic evidence of that fact.”

36 La.Ann. at p. 264.

The Court concluded that authentic evidence of the endorsement was required in order for the creditor to proceed by execu-tory process. A much later case, Brock v. Messina, 200 So. 511 (La.App. 1st Cir. 1941) also stands as authority for this proposition.

We feel that the requirement of authentic evidence of the endorsement in blank of a note payable to order was continued by Louisiana Code of Civil Procedure Article 2635, especially part (3), which provides:

“The plaintiff shall submit with his petition the authentic evidence necessary to prove his right to use executory process to enforce the mortgage or privilege. These exhibits shall include authentic evidence of:
(1) The note, bond, or other instrument evidencing the obligation secured by the mortgage or privilege;
(2) The authentic act of mortgage or privilege importing a confession of judgment; and
(3) Any judgment, judicial letters, order of court, or authentic act necessary to complete the proof of plaintiff’s right to use executory process.
This requirement of authentic evidence is relaxed only in those cases, and to the extent, provided by law.”

We also note that the comments following La.C.C.P. Article 2635(3) support this conclusion. Comment (d) states, in part:

“Another situation where additional evidence in authentic form is needed to prove the plaintiff’s right to bring the executory proceeding is where the mortgage note is made payable to a named mortgagee, who subsequently transfers the note to a third person, who in turn institutes the executory proceeding to enforce the mortgage. In such a case, the transfer and endorsement of the mortgage note to the plaintiff must be evidenced by an authentic act, and a certified copy annexed to the petition. Miller, Lyon & Co. v. Cappel, 36 La.Ann. 264 (1884).”

Plaintiff’s argument that the endorsement in blank by Pitre Ford Tractor converted the order instrument into a bearer instrument, and that authentic evidence of the transfer of a bearer note is not necessary to enable the holder thereof to foreclose by executory process, fails to recognize the distinction between a note which begins as bearer paper and one which begins as order paper, but is subsequently converted to bearer paper by endorsement in blank. The note which is originally bearer paper needs no endorsement for its negotiation and, therefore, there need be no authentic evidence of its endorsement. However, the one which begins as order paper needs an endorsement for negotiation. Without endorsement, the holder has no right to enforce the notes at all because it is not the named payee. Since the bank in the instant case acquired its right to sue on the note by virtue of Pitre Ford Tractor’s endorsement and negotiation, we feel that there must be authentic evidence of the endorsement if executory proceedings are going to be utilized. The trial judge was in error by failing to issue the injunctions.

We thus hold that, in order to use execu-tory process on a note which is made payable to the order of a specific named payee, authentic evidence of the endorsement of the named payee is necessary.

In an abundance of caution, we emphasize that the issue of whether the plaintiff bank has the right to collect upon these notes and to enforce its rights under the chattel mortgages in ordinary proceedings is not presented here. We simply hold that the bank in the instant case cannot avail itself of executory proceedings without authentic evidence of the endorsements which give it its rights to enforce the notes.

For the above reasons, the judgment of the District Court is reversed. It is hereby Ordered that judgment be entered herein in favor of defendant, Bobby Deville, and against plaintiff, American Security Bank of Ville Platte, and the Sheriff of Evangeline Parish, permanently enjoining them from proceeding with executory process in this matter. All costs are assessed against plaintiff, American Security Bank of Ville Platte.

REVERSED AND RENDERED.

      . The obvious exception to this rule, of course, is where the note is made payable to the order of the mortgagor, is endorsed in blank by him, and the mortgage instrument so states. First National Bank of Lafayette v. Gaddis, supra; Miller, Lyon & Co. v. Cappel, supra; La.C.C.P. Art. 2635, comment (d).


text:
    AMERICAN SECURITY BANK OF VILLE PLATTE, Plaintiff-Appellee, v. Bobby DEVILLE, Defendant-Appellant.
    No. 6839.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 1979.
    Roger M. Evans, New Orleans, for defendant-appellant.
    Jules R. Ashlock, J. Wendel Fusilier, Ville Platte, for plaintiff-appellee.
    Before DOMENGEAUX, FORET and STOKER, JJ.
   DOMENGEAUX, Judge.

This is a companion case to the matter entitled “American Security Bank of Ville Platte v. Bobby Deville,” No. 6838 on the docket of this Court, 368 So.2d 167.

For the reasons assigned therein, the judgment of the District Court is reversed. It is hereby Ordered that judgment be entered herein in favor of defendant, Bobby Deville, and against the plaintiff, American Security Bank of Ville Platte, and the Sheriff of Evangeline Parish, permanently enjoining them from proceeding with executo-ry process in this matter. All costs are assessed against plaintiff, American Security Bank of Ville Platte.

REVERSED AND RENDERED.


text:
    AMERICAN SECURITY BANK OF VILLE PLATTE, Plaintiff-Appellee, v. Bobby DEVILLE, Defendant-Appellant.
    No. 6840.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 1979.
    Roger M. Evans, New Orleans, for defendant-appellant.
    . Jules R. Ashlock, J. Wendel Fusilier, Ville Platte, for plaintiff-appellee.
    Before DOMENGEAUX, FORET and STOKER, JJ.
   DOMENGEAUX, Judge.

This is a companion case to the matter entitled “American Security Bank of Ville Platte v. Bobby Deville,” No. 6838 on the docket of this Court, 368 So.2d 167.

For the reasons assigned therein, the judgment of the District Court is reversed. It is hereby Ordered that judgment be entered herein in favor of defendant, Bobby Deville, and against the plaintiff, American Security Bank of Ville Platte, and the Sheriff of Evangeline Parish, permanently enjoining them from proceeding with executo-ry process in this matter. All costs are assessed against plaintiff, American Security Bank of Ville Platte.

REVERSED AND RENDERED.


text:
    AMERICAN SECURITY BANK OF VILLE PLATTE, Plaintiff-Appellee, v. Bobby DEVILLE, Defendant-Appellant.
    No. 6841.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 1979.
    Roger M. Evans, New Orleans, for defendant-appellant.
    Jules R. Ashlock, J. Wendel Fusilier, Ville Platte, for plaintiff-appellee.
    Before DOMENGEAUX, FORET and STOKER, JJ.
   DOMENGEAUX, Judge.

This is a companion case to the matter entitled “American Security Bank of Ville Platte v. Bobby Deville,” No. 6838 on the docket of this Court, 368 So.2d 167.

For the reasons assigned therein, the judgment of the District Court is reversed. It is hereby Ordered that judgment be entered herein in favor of defendant, Bobby Deville, and against the plaintiff, American Security Bank of Ville Platte, and the Sheriff of Evangeline Parish, permanently enjoining them from proceeding with executo-ry process in this matter. All costs are assessed against plaintiff, American Security Bank of Ville Platte.

REVERSED AND RENDERED.


author: LEMMON, Judge.

text:
    Pamela Ann Stoll FAVALORA v. Joseph Thomas FAVALORA.
    No. 9840.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 6, 1979.
    Rehearing Denied March 14, 1979.
    Edward S. Bopp, Ronald A. Welcker, Arabi, and Frank D’Amico, New Orleans, for plaintiff-appellant.
    Tillery & Potts, Ewell C. Potts, Jr., Arabi, for defendant-appellee.
    Before SAMUEL, LEMMON and SCHOTT, JJ.
   LEMMON, Judge.

Mrs. John Favalora has appealed from a judgment condemning her husband to pay her $20.00 per week in alimony pendente lite and $50.00 per week for support of their two-year old son. The principal issue on appeal is the adequacy of the alimony award judged against the standards of C.C. art. 148.

Mr. Favalora, who had been working for 13 years as a butcher in a grocery store owned by his father, testified he had earned gross wages of $220.00 per week for the last three years, that he had also received a $1,000.00 Christmas bonus each year, and that he had earned an additional $50.00 per week working in his father’s oyster business six to eight months each year. Thus, he has admitted his gross monthly earnings average almost $1,200.00.

Between the December, 1976 separation and the June, 1978 trial of the rule Mr. Favalora contributed $50.00 per week toward the support of his child, but paid nothing whatsoever toward his obligation to support his wife. At time of trial Mrs. Favalora was earning a net salary of $420.00 per month as a cashier for a finance company.

The trial court found as a fact that “Mr. Favalora earns income at this time in excess of $1,092.00 a month” and fixed alimony at $20.00 per week, in addition to setting the child support obligation at the rate he had been paying for 19 months.

Mrs. Favalora first contends that the record establishes her husband’s earnings far exceed $1,092.00 per month. She argues that his statement of earnings is suspect, since he admitted all of the earnings are paid in cash, he is current in payment of his debts, he bought furniture for $4,300.00 after their separation, and he bought a 1978 Cadillac Coupe de Ville for $14,300.00 (on monthly installments of $346.00) one month before trial. Also she points out that he stated in his application for financing in connection with the automobile purchase (repudiated by him in his testimony) that his monthly income was $4,000.00 and that he was part owner of the food store.

The trial court’s finding of monthly income, although mathematically incorrect and amounting to less than Mr. Favalo-ra’s admitted earnings, must be viewed as accepting the fact that Mr. Favalora’s only income was that admitted in his testimony. Such a finding was properly the function of the trial court and is entitled to great weight. Moreover, Mrs. Favalora did not suggest anywhere in her testimony that her husband earned more than $1,200.00 per month during the two years that they lived together. Accordingly, we accept that Mr. Favalora had an average monthly gross income of $1,200.00.

Mrs. Favalora next contends that the alimony award was an abuse of discretion in view of her needs and her husband’s means. She emphasizes the fact that while living together she and her husband owned a $50,-000.00 home (which was sold after the separation and the small equity divided), had a housekeeper that they paid $15.00 per day, and went on a vacation each of their two years of marriage. By comparison she now lives with her mother, sharing a bedroom with her two children (one from this marriage) and living in the den.

C.C. art. 148 contemplates that the “sum for her support, proportioned to her needs and the means of her husband” shall be a sum sufficient to maintain the wife in a style comparable to that which she enjoyed prior to the separation, as limited by the husband’s resources. In the present case the evidence clearly establishes that the wife is not living in a style remotely comparable to that which she enjoyed prior to the separation, and the determinative issue in reviewing the alimony award is whether the meagerness of the sum awarded is justified in view of the husband’s “means”.

Even when Mr. Favalora’s income is accepted as $1,200.00 per month, the alimony awarded his wife is only 7% of that amount. Moreover, in the determination of Mr. Fa-valora’s means or resources the fact that he enjoyed free lodging (in an apartment complex owned by his father) and free meals (in his mother’s home) should be considered as part of his total financial picture, at least to the extent of recognition that no expenditures from his earnings are required for these items. Finally, when it is considered that his overall resources are sufficient to permit him to pay $346.00 each month in car notes on a luxury automobile and remain current in his monthly obligations, the sum of $86.67 per month for support of his wife (or the total amount of $303.00 per month for support of his wife and child) can hardly be justified.

An award of alimony in the sum of $75.00 per week is clearly justified by the evidence, in addition to the $50.00 per week in child support (which is substantially uncontested on appeal).

Accordingly, the judgment of the trial court is amended to increase the award of alimony pendente lite to $75.00 per week. In all other respects the judgment is affirmed.

AMENDED AND AFFIRMED.

      . The calculation of gross annual income according to this testimony is:
      $11,440.00 ($220.00 X 52 weeks)
      1,000.00 bonus
      1,700.00 ($50.00 X 34 weeks)
      $14,140.00 (or $1,178.00 per month)

      . The trial court’s finding of monthly income was probably based on a mathematically incorrect calculation. Mr. Favalora mistakenly stated he reported gross income on his 1977 income tax return in the amount of $14,307.29 (the attached W-2 forms show that about $2,600.00 of this amount was his wife’s earnings with the U.S. Department of Agriculture), and one-twelfth of this amount is $1,192.00.
      The sum of $1,092.00 was also considerably below the earnings admitted in testimony.


author: GARRISON, Judge.

text:
    STATE of Louisiana in the Interest of Cheri POCHE, minor child of Carolyn Earlene Maggio, Mother v. David POCHE.
    No. 9845.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 6, 1979.
    Rehearing Denied March 14, 1979.
    Writ Refused May 4, 1979.
    Bettyanne L. Bussoff, New Orleans, for plaintiff-appellee.
    Tonry, Mumphrey, D’Antonio & McDou-gall, Chalmette, Guy J. D’Antonio for defendant-appellant.
    Before GULOTTA, BOUTALL and GARRISON, JJ.
   GARRISON, Judge.

This case is brought by the State of Louisiana to prove paternity and to provide support for the minor child of Cheri Poche.

Carolyn Maggio, the child’s mother, was married to Paul V. Deslatte on January 12, 1969. During the marriage the mother allegedly had sexual relations with appellant David Poche. Paul V. Deslatte obtained a divorce on November 21, 1972 on the grounds of living separately and apart for two years. Fifty-six days later Cherie Poche was born. The husband did not take any action to disavow paternity.

The trial judge found in favor of the State of Louisiana, holding that Poche was the child’s biological father. Accordingly, it condemned him to pay monthly maintenance and support in its behalf. We affirm.

Although there is no jurisprudence directly on point with the facts presented here, there is a developing trend which appears to solve the problem.

The question of legitimacy or illegitimacy is not a concrete one. In Succession of Mitchell, 323 So.2d 451 (La.1975), the court held that children born of an adulterous union while the mother’s husband was an absentee were subsequently legitimated by the marriage of the mother and biological father. The court reasoned that if the mother were married to someone else at the time of the conception the child is “technically as well as actually illegitimate issue of the first marriage . . . .” Thus in the Mitchell case, the children were presumptively legitimate, yet “technically” and “actually” illegitimate and finally legitimated.

The “legitimate” or “illegitimate” status of the child is not necessarily the central issue involved. Even if the child is the “legitimate” child of the mother’s husband, it still may be entitled to support from her biological father. This was well settled in Warren v. Richard, 296 So.2d 813 (La.1974). There a child born during the existence of a marriage — and therefore legitimate — was allowed to recover for the wrongful death of her biological father.

There the court allowed proof that the child was not that of the mother’s husband. This consisted of the mother’s testimony and the birth certificate. (In the instant case the proof is much stronger inasmuch as David Poche filed a malpractice case naming Cheri as his daughter; he acknowledged her in deposition and interrogatories; he attended her baptism; he made child support payments and he paid her medical bills and hospital expenses).

The court in Warren v. Richard, supra, relied on several U. S. Supreme Court holdings. Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968), allowed the recovery by illegitimate children for the wrongful death of the parents. The Court substituted a biological classification for the legal classification of status. Again in Glona v. American Guarantee & Liability Insurance Co., 391 U.S. 73, 88 S.Ct. 1515, 20 L.Ed.2d 441 (1968) the Court emphasized the biological rather than the legal relationships. See also Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972); and Gomez v. Perez, 409 U.S. 535 at 538, 93 S.Ct. 872 at 875, 35 L.Ed.2d 56 at 60 (1973) which stated, “A State may not invidiously discriminate against illegitimate children by denying them substantial benefits accorded [to] children generally.”

It was in reliance upon these U. S. Supreme Court decisions that the Louisiana Supreme Court determined in Warren v. Richard, supra, that it was not necessary to determine to which class of illegitimate fili-ation the child belonged. It sufficed to simply determine that the child was in fact the biological child of the alleged father. The fact that the law considered the child to be the legitimate child of another will not alter the result and “cannot deprive her of a right which illegitimate children generally may have . . . ” Warren v. Richard, supra, at 817.

In Louisiana one of the rights of an illegitimate clearly is a claim for support. La.C.C. art. 240.

For the foregoing reasons the judgment appealed from is affirmed.

AFFIRMED.

      . “Analogously, due to overlapping presumptions of legitimacy, a child may be presumed to be the child of two fathers, Civil Code Articles 184-192, 960, and inherit from both if not disavowed timely by either. Brouillette, Presumption of Legitimacy, 13 La.L.Rev. 587, 595-596 (1953). Likewise, an adoptive child may inherit from both his natural and his adoptive father. Article 214. Similarly, a man may simultaneously have the legal relationship of ‘husband’ to two women, a legal wife and a putative wife, with the children of both considered his legitimate issue. Succession of Chavis, 211 La. 313, 29 So.2d 860 (1947); see also Cortes v. Fleming, 307 So.2d 611 (La.1974).” Succession of Mitchell, 323 So.2d 451 at 457, n. 6 (La.1975).

      . This view has been re-emphasised in Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977).

      . “As we understand the rationale of the decisions of the United States Supreme Court, it is the biological relationship and dependency which is determinative of the child’s rights in these cases, and not the classification into which the child is placed by the statutory law of the State.
      “The argument is made that this result will accord more rights to this child than are ordinarily accorded the legitimate child — that she will be able to recover for the death of her biological father as well as for the death of Albert Gray, because the law deems her his legitimate offspring. However, this concept is not unique to our law. It is specifically provided that the adopted child, upon his adoption, is not divested of his right to inherit from his blood parents while at the same time he inherits from the adoptive parent. La. Civil Code art. 214.
      “We are not unmindful of the problems a logical extension of these holdings may create, such as a child in these circumstances recovering from both fathers for support and maintenance, or, conversely, requiring the child to support both fathers in a proper case. . La. Civil Code arts. 227, 229. But we are influenced in this decision by the constitutional principles announced by the United States Supreme Court to which we must adhere.” 296 So.2d at 817.