author: GULOTTA, Judge.

text:
    Doris BONADONA v. Mary Viola Collins GUCCIONE, Leroy E. Kane and Mary F. Kane, Individually, and Mary Viola Collins Guccione, Leroy E. Kane and Mary F. Kane, d/b/a Deluxe Motel, and the Travelers Insurance Company.
    No. 8681.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1978.
    Rehearing Denied Feb. 14, 1978.
    Writ Granted March 27, 1978.

      J. Terrell Heath, New Orleans, for plaintiff-appellee.
    Grayson H. Brown, New Orleans, for defendant-appellant, Travelers Ins. Co.
    Before GULOTTA, BEER and BOWES, JJ.
   GULOTTA, Judge.

Defendant, Travelers Insurance Company, the liability insurer under an owner’s, landlord’s and tenant’s policy with the named insureds, Mr. and Mrs. Sam Guc-cione, d/b/a Deluxe Motel, appeals from an adverse judgment in favor of plaintiff. The named insureds were absolved from liability.

The facts are that the Gucciones purchased the Deluxe Motel in 1958 and operated it until 1970. In February, 1970, the motel was leased for a period of five years to Leroy and Mary Kane, son-in-law and daughter of the Gucciones. During the time that the Gucciones operated the motel, they owned and cared for a dog. Thereafter, during the tenancy of the Kanes and after the Gucciones no longer lived on the premises, the dog remained at the motel under the care and supervision of the Kanes. During the Kanes’ tenancy, on May 5, 1974, a visitor of one of the motel guests was attacked by the dog and was injured. This suit followed.

The suit was directed originally against the Gucciones individually and d/b/a Deluxe Motel and their insurer, Travelers. A supplemental and amended petition substituted Leroy and Mary Kane, son-in-law and daughter of the Gucciones, individually and d/b/a Deluxe Motel for the Gucciones as parties defendant. Travelers Insurance Company remained a party defendant. In a second supplemental and amended petition, Mrs. Sam (Mary) Guccione was added as a party defendant individually and d/b/a Deluxe Motel. A jury verdict was rendered in favor of plaintiff and against Travelers, and plaintiff’s suit was dismissed against Mrs. Guccione.

In answer to specific interrogatories propounded to it, the jury found that the insurance policy issued by Travelers to the Guc-ciones, d/b/a Deluxe Motel, covered the dog bite injury.

In this appeal, Travelers claims the jury erred in awarding a judgment against it when its named insured, Mrs. Guccione, was absolved from liability. Travelers relies on the following provisions of the policy which read:

“I. Coverage A — Bodily Injury Liability Coverage B — Property Damage Liability
“The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of
Coverage A. bodily injury or
Coverage B. property damage
to which this insurance applies, caused by an occurrence and arising out of the ownership, maintenance or use of the insured premises and all operations necessary or incidental thereto, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient, but the company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of the company’s liability has been exhausted by payment of judgments or settlements.”

The policy provisions clearly state that the insurer’s responsibility is to pay on behalf of the insured those amounts which the insured becomes legally obligated to pay. In the instant case, the jury found no obligation on the part of the named insured, Mrs. Guccione, to pay for the damages resulting from plaintiff’s injury. Although we are not favored with any factual findings regarding the ownership, supervision and care of the dog, by inference, a reasonable conclusion may be drawn that the dog was under the care and supervision of the Kanes and not Mrs. Guccione. We might add that a review of the record clearly supports this factual inference.

Because we are persuaded that the result reached by the jury is based on a conclusion that at the time of the dog bite incident the dog had become the responsibility of the Kanes and not Mrs. Guccione, any award casting Travelers requires a determination that the policy had been reformed to provide coverage to Mr. and Mrs. Kane, d/b/a Deluxe Motel, and not the named insureds, Mr. and Mrs. Guccione.

A party seeking reformation of an insurance policy must show, by a preponderance of the evidence, either mutual mistakes by the contracting parties resulting in an insurance policy which does not express the actual intent of the parties or a mistake on one side and fraud on the other, if fraud is alleged as a basis for reformation. See Adams v. Ross, 300 So.2d 192 (La.App. 1st Cir. 1974) and cases cited therein. Clearly established also is the rule that the burden is on one seeking reformation to prove error, and he must carry this burden by clear and convincing evidence. See Ferguson v. Belcher and Son, 230 La. 422, 88 So.2d 806 (1956); Rougeau v. State Farm Mutual Automobile Insurance Company, 262 So.2d 803 (La.App. 3d Cir. 1972). In the instant case, no fraud is alleged and reformation, if it indeed exists, must be based upon mutual mistake.

Our consideration of the record leads to a conclusion that clear and convincing evidence was not offered to show a reformation of the insurance policy. The only evidence bearing on reformation was the testimony of Mrs. Guccione. While she stated that her son-in-law and daughter had paid the premiums on the insurance during their lease of the premises, she further testified that no discussion had taken place with the agent about changing the names. Though she did testify that she had called her insurance agent and had asked if the premiums were paid on the policy (apparently during the lease with the Kanes), there is no other evidence in the record to indicate that the insurer or its agent knew or should have known or was advised that the Kanes were intended to be the insureds under the policy. Based on this evidence, we cannot conclude that the burden of proof was successfully carried to show reformation.

We are mindful that the conclusion reached by us on reformation results in the reversal of a jury verdict and results in the exoneration of the insurer from liability. We point out, however, in considering the propriety of the jury verdict we are confronted with a sufficiency of evidence question (a legal one) and not a manifest error one. We simply conclude plaintiff failed to carry the burden of showing (by clear and convincing evidence) reformation of the insurance contract.

We distinguish Herbert v. Breaux, 285 So.2d 829 (La.App. 1st Cir. 1973) and Perry v. Law, 334 So.2d 523 (La.App. 1st Cir. 1976), writ denied, 337 So.2d 529 (La.1976), cited by defendant. In these cases, evidence existed in the record to indicate that the insurer’s agent was informed of the other party’s intention that the policy cover someone other than the named insured. As indicated previously, no such evidence exists in our case.

Anderson v. Sciambra, 310 So.2d 128 (La. App. 4th Cir. 1975), writ denied, 313 So.2d 835 (La.1975), also cited by defendant, where the court found reformation, is likewise distinguishable. In Anderson, the owners of a building (on which there was insurance coverage in the owners’ names) donated the property to their daughter. After the donation, the prior owners (the parents) purchased liability insurance, the policy providing coverage to the prior owners, the parents, as named insureds, and not to the new owner, the daughter. In Anderson, we concluded under these circumstances the parents clearly intended to purchase the insurance for the new owner. We indicated that the former owners had clearly purchased the insurance to protect the new owner and the insurer intended to sell insurance to protect against the apartment building owner’s liability. In our case, Mrs. Guccione, as owner, could have been subjected to liability. Such was not the situation in Anderson. Furthermore, as we indicated earlier, there is simply no evidence in our case to indicate that the insurer was notified of the intention of the parties or that it intended to insure the lessees. Under the circumstances, we conclude the jury erred in casting the insurer in judgment.

Accordingly, the judgment of the trial court in favor of plaintiff and against Travelers Insurance Company is reversed and set aside. Judgment is now rendered dismissing plaintiff’s suit against Travelers Insurance Company. Costs to be paid by plaintiff.

REVERSED AND RENDERED.

      . Mr. Sam Guccione died prior to the commencement of this suit. Although the Kanes were served, no answer was filed on their behalf and the trial judge, in his charge to the jury, informed the jurors that plaintiff was entitled to obtain a default judgment against the Kanes. The record, however, does not contain any default judgment against the Kanes.

      . Mrs. Guccione leased the property to the Kanes. In Anderson, the property had been donated by the named insureds to the new owner.


source: Caselaw Access Project

license: Public Domain

text:
    Robin F. GEDDIE v. ST. PAUL FIRE & MARINE INSURANCE COMPANY.
    No. 8706.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1978.
    Rehearing Denied Feb. 14, 1978.
    Writ Refused March 31, 1978.

      Garon, Brener & McNeely, Jacques F. Bezou, New Orleans, for plaintiff-appellee.
    Dodge, Friend, Wilson & Spedale, Gordon F. Wilson, Jr., Denis Paul Juge, New Orleans, for defendant-appellant.
    Before GULOTTA, BEER and BOWES, JJ.
   GULOTTA, Judge.

In this legal malpractice suit, defendant-insurer appeals from a judgment in favor of Robin Geddie for damages arising from his unlawful confinement in the penitentiary under a four-year sentence for a crime which had a maximum penalty of two years. The liability of defendant’s insured, who took no steps to have the sentence reduced, is not at issue. By stipulation, the sole issues before us are the trial judge’s method of calculating the term of excessive incarceration and the quantum of his award. We reduce the award and affirm the judgment as amended.

Geddie began serving a four-year sentence on October 10, 1973, and remained in custody of the Department of Corrections for a period of 19 months until he was paroled from the State Penitentiary at Angola on May 9, 1975. The following chronology is helpful.

October 10,1973 Plaintiff incarcerated and begins serving four-year term at Angola.

December 17,1973 Plaintiff sent to maintenance program at Jackson Barracks.

March 13, 1974 For disciplinary reasons, plaintiff returned to Angola.

June 10,1974 Earliest possible parole date under a two-year sentence.

September 4,1974 Plaintiff sent to Camp Beauregard work release program.

September 10,1974 Two-year sentence parole date plus three months. (Judge uses this date as the beginning of the period of illegal confinement.)

November 12,1974 Good time release date under a two-year sentence.

November 18,1974 Plaintiff returned to Angola from Camp Beauregard for misconduct in connection with work release program.

December 16,1974 Two-year good time release date plus 34 days in lost good time.

February 10,1975 Earliest possible parole date under a four-year sentence. (Geddie was denied parole on this date.)

May 9,1975 Four-year sentence parole date plus three months. (Geddie released at this time.)

In oral reasons, the trial judge concluded that as a result of his defense attorney’s negligence Geddie had been illegally confined for a period of 8 months from September 10, 1974 until May 9, 1975. In calculating this time period, the trial judge concluded that under a two-year sentence, Geddie would, in all probability, have been denied parole at the June 10, 1974 date, but would have been granted it 3 months thereafter on September 10, 1974. The judge reasoned that Geddie had been delayed parole for a period of 3 months under the four-year term due to misconduct on the work release program at Camp Beauregard and that disciplinary problems during his confinement at Jackson Barracks in the early part of his incarceration would have had a similar effect and would have delayed his parole for 3 months under a two-year term. The trial judge, in effect, based an award on illegal confinement from parole date and 3 months (for a two-year sentence) to parole date and 3 months (for a four-year sentence).

According to the trial judge, during the eight-month period of illegal confinement, Geddie was incarcerated for 2 months at Camp Beauregard, a minimum security facility, and for the remaining 6 months at Angola. Damages were awarded in the sum of $7,000.00 per month for each month spent by plaintiff at Angola (where conditions were poor) and $1,500.00 per month for each month spent at Camp Beauregard (where the atmosphere was more bearable).

The thrust of defendant’s appeal is that the trial judge erred in arriving at an eight-month period of illegal confinement based on a comparison of a two-year parole date plus 3 months with a four-year parole date plus 3 months. According to defendant, the illegal confinement should be calculated at a two-month period, based on a comparison of the good time release date under a two-year sentence plus 34 days of lost good time days (December 16, 1974) with the earliest parole date (February 10, 1975). Defendant points out that although plaintiff was paroled on May 9, 1975, 3 months after his earliest four-year parole date, this three-month delay was caused by plaintiff’s own misconduct. It is defendant’s argument that the trial judge’s approach is based on speculation that Geddie, under a two-year sentence, would have been paroled 3 months after his first eligible parole date under that sentence. Defendant argues, instead, that its own approach is based on the certainty of computation for good time release as set forth in LSA-R.S. 15:571.3 and 15:571.4. We find no merit to defendant’s argument in this respect.

We cannot say the method used to determine the time of illegal confinement based on parole dates under the two-year and four-year sentences is unreasonable. Plaintiff was, in fact, paroled 3 months after his first eligible parole date under the four-year sentence. The three-month delay was occasioned by his misconduct in the work release program at Camp Beauregard. Because he was returned to Angola from a work maintenance program at Jackson Barracks for disciplinary reasons during the first few months of his legal confinement, a reasonable conclusion may be reached that plaintiff would have been released 3 months following his first eligible date for parole had he been serving a two-year sentence.

We do find merit, however, to defendant’s argument that the award of $7,000.00 per month for each month served by plaintiff at Angola is excessive. Based on the trial judge’s calculation, plaintiff’s illegal confinement began on September 10, 1974, at which time he was confined at Camp Beauregard, a minimum security facility. The deposition of Fred Villali, supervisor of the work release program at Camp Beauregard, indicates that Geddie’s violation of the conditions of the work release program resulted in his transfer to the Angola Penitentiary. This evidence clearly shows that but for his own misconduct Ged-die could have served the entire duration of his illegal confinement under the less oppressive circumstances of Camp Beauregard. Furthermore, Colonel Franklin Woo-druff, work release officer and maintenance supervisor at Jackson Barracks at the time of Geddie’s confinement, testified that plaintiff could have remained at Jackson Barracks and participated in the maintenance program or work release program there for the duration of his prison sentence. For disciplinary reasons, however, Geddie was returned to Angola on March 13,1974, approximately 3 months after having been transferred to Jackson Barracks on December 17, 1973.

Clearly, the Angola confinement was attributable to plaintiff’s own misconduct and, therefore, any award for each month of illegal confinement should be based on a consideration of plaintiffs incarceration at a minimum security facility such as Camp Beauregard or Jackson Barracks. Otherwise, an award based on confinement at Angola, under the circumstances, for the illegal period would have the illogical result of rewarding plaintiff for his own misbehavior. We conclude, therefore, that the trial judge erroneously awarded the sum of $7,000.00 per month for a six-month period of illegal confinement (while at Angola) in addition to the $1,500.00 per month award while plaintiff was incarcerated under the work release program.

Consistent with the above, we reduce the amount of the award to $1,500.00 per month for each month that plaintiff was illegally incarcerated, based on confinement under the work release program where plaintiff would have remained during his illegal incarceration, but for his own misconduct while confined. Accordingly, the judgment is amended to reduce the award in favor of plaintiff from $45,000.00 to $12,000.00. As amended, the judgment is affirmed.

AMENDED AND AFFIRMED.


text:
    Succession of Waldtraut Hilda Von Den Brincken, wife of William Joseph BENTON.
    No. 8715.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1978.
    Garon, Brener & McNeely, Jackson P. McNeely, Milton E. Brener, New Orleans, for Mrs. Astrid Walsh and Adeline Von Den Brincken, appellants.
    Dudley Yoedicke, in pro per., As Testamentary Designated Attorney and Testamentary Executor for the Succession of Waldtraut Hilda Von Den Brincken, appel-lee.
    Before GULOTTA, BEER and BOWES, JJ.
   GULOTTA, Judge.

In this succession proceeding, we are confronted with two issues: 1) whether an attorney appointed in the decedent’s will both as executor and also as attorney for the estate is entitled to attorney’s fees in addition to an executor’s fee; and 2) whether the value of stock included in the descriptive list of the assets is inflated over the fair market value of the stock as of the date of death of the decedent.

In the annual account and tableau of distribution filed by the testamentary executor, the proposed disbursements included a $15,000.00 attorney’s fee to be paid to the named attorney handling the succession. Included in the tableau is a note which reads as follows: “Executor’s fees estimated at $8,965.19 will be adjusted and provided for in the final account.” The opposition to the account and tableau, filed by decedent’s mother, who is the testamentary usu-fructuary, and decedent’s sister, who is the universal legatee, is directed against the proposed disbursement of the attorney’s fee and the inclusion of an alleged inflated value of stock as part of the listed assets of the gross estate of the decedent.

The trial judge dismissed the opposition, thereby approving the disbursement of the attorney’s fees to the attorney named in the will, and included in his judgment the following:

U * * *
“2. That any question as to a fee for the testamentary executor of this estate is premature and the right is hereby reserved to opponents to reurge any opposition which they may have to an executor’s fee in the final account, or at any other time that a request for an executor’s fee is presented to the court.”

The opponents appeal.

The pertinent provision of the will reads as follows:

“I appoint Dudley Yoedicke as executor of my estate, with full seizin and without bond, and do also appoint him as attorney for my estate.”

In connection with the first contention, that the attorney named in the will who is also handling the succession is not entitled to attorney’s fees in addition to an executor’s fee, the opponents argue there exists no entitlement to attorney’s fees, in this instance, in the absence of an express provision in the will that the attorney be paid both fees. Opponents point out that the will does not contain any provision for the payment of both fees. Reliance for opponents’ position is primarily placed upon a line of cases including Baldwin’s Executor v. Carleton, 15 La. 394 (1840); Succession of Key, 5 La.Ann. 567 (1850); City of New Orleans v. City of Baltimore, 15 La.Ann. 625 (1860); Succession of Sprowl, 21 La. Ann. 544 (1869); Succession of Liles, Sr., 24 La.Ann. 490 (1872); and a dissent in Succession of Houssiere, 247 La. 764, 174 So.2d 521 (1965). According to opponents, this line of cases holds that an executor who is also an attorney will not be allowed to charge for his services as an attorney.

We find no argument with the cited decisions, however, they are not applicable to our case. In the cited cases, unlike the instant case, the attorney was not designated or named in the will. More applicable to our situation is Rivet v. Battistella, 167 La. 766, 120 So. 289 (1929) in which the Supreme Court recognized the validity of the designation of an attorney in a will and the attorney’s entitlement to a fee. See also Succession of Rembert, 199 La. 743, 7 So.2d 40 (1942) and Succession of Falgout, 279 So.2d 679 (La.1973).

In Succession of Michel, 225 So.2d 480 (La.App. 4th Cir. 1969), a case where an attorney was named as coexecutor and coattorney of the estate, we permitted the designated attorney and executor to receive both fees. We recognize that Michel may be factually distinguished in that the court in Michel concluded the testator by the use of “fees” in the plural intended that the named individual would receive both fees and the will in our case does not contain a reference to payment of both fees. Nevertheless, in the instant case, the attorney is named both as executor and attorney for the estate and though the testament does not contain the word “fees” as in Michel, we hold that the designated attorney is entitled to attorney’s fees, although he is named as the executor.

We consider, however, the attorney’s fee in the sum of $15,000.00 in the instant case to be excessive. This fee, together with the anticipated executor’s fee of $8,965.19, which will presumably be charged at a future date, will result in total fees to the named attorney in the amount of $23,965.19. The net estate, exclusive of this combined fee, is $188,382.32. Furthermore, the record indicates that estate tax in the amount of $21,930.65 is owed. Under the circumstances, we conclude the $23,-965.19 figure is excessive when the value of the estate and the duplication of effort of the attorney-executor are considered. As pointed out by the opponents, an individual serving in both capacities as executor and as attorney for the estate in many instances performs both functions at once and is not entitled to collect duplicate fees. Accordingly, we consider $7,500.00 to be a reasonable amount for attorney’s fees in this case.

We reject the opponents’ argument raised in this appeal that the value of the stock included in the descriptive list is inflated. LSA-C.C.P. art. 3137, in pertinent part, provides:

“The descriptive list of succession property authorized by Article 3136 shall be accepted as prima facie proof of all matters shown therein, unless amended or traversed successfully.”

Until such time as the value placed on the property as included in the descriptive list is successfully traversed, the descriptive list is accepted as prima facie proof of its correctness. We find no motion to traverse in the record. Presumably, upon the filing of a contradictory motion in the trial court to traverse the descriptive list, this issue would be resolved at the contradictory hearing below. We do not pass on the evaluation of the stock issue here, because to do so would circumvent the provisions of LSA-C.C.P. art. 3137 and usurp the authority and responsibility of the trial court. This issue was not passed upon in the trial court because no motion to traverse had been filed. The judgment appealed from does not include any order relating to the evaluation of the stock.

Accordingly, the tableau of distribution is amended to the extent of reducing the $15,-000.00 attorney’s fee to the sum of $7,500.00. As amended, the judgment is affirmed.

AMENDED AND AFFIRMED.

      . In the annual account and tableau of distribution, the assets of the gross estate total the sum of $384,342.65. Included in this amount is the value of decedent’s interest in 124,340 shares of stock of Ingram Corporation, totalling the sum of $108,516.17. This evaluation was placed on decedent’s interest in the stock as set forth in the descriptive list filed in the succession.
      In the annual account and tableau, listed as a liability, is the same $108,516.17 figure which appears in the account as a reserve for liability because of the refusal of Ingram Corporation to transfer the stock to decedent’s husband, William J. Benton, who was judicially separated from decedent, and to the estate of the decedent as a result of litigation pending in which the Ingram Corporation has asserted a claim against William J. Benton in the sum of $8,837,371.72.
      The value of the stock as it appears in the descriptive list is in accordance with a purported agreement between the testamentary executor and the Ingram Corporation in which the estate agreed to transfer the 124,340 shares of Ingram stock to the corporation in consideration of the payment to the succession of the sum of $108,516.17. The court granted authority in the succession proceedings to the executor to execute the agreement between Ingram and the estate, which included the stock transfer. Included in the record is a letter from the attorney for the corporation directed to the testamentary executor in which the executor is advised that the purported agreement (transferring the stock to the corporation) could not be consummated until after the conclusion of pending criminal proceedings against the In-grams.

      . LSA-C.C.P. art. 3351 provides that an executor is entitled to compensation at the rate of 2]/2% of the amount of the inventory.


text:
    Dolly Millet Jacob PIKE, et al. v. GODCHAUX-HENDERSON SUGAR COMPANY, INC., et al.
    No. 8918.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1978.
    Rehearing Denied Feb. 14, 1978.
    Daniel E. Becnel, Jr., Reserve, for plaintiffs-appellants.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Claude D. Vasser, Leach, Paysse & Baldwin, William G. Tabb, III, New Orleans, for defendants-appellees.
    Before GULOTTA, STOULIG and DU-PLANTIER, JJ.
   GULOTTA, Judge.

The trial judge maintained a plea of prescription in a workmen’s compensation case. Plaintiffs appeal. We affirm.

Plaintiffs, duly qualified tutors and co-administrators of the estate of minor children, filed suit on January 13, 1977 for workmen’s compensation death benefits allegedly owed to the minors as a result of the children’s father’s death on June 17, 1975. Plaintiffs had been appointed tu-trixes for the minors on December 31, 1975. The suit filed in January, 1977 was met with a plea of prescription which was maintained.

LSA-R.S. 23:1234, relating to applicable prescriptive periods where minors are involved, states:

§ 1234. Minors and mental incompetents; rights and privileges, by whom exercised; prescriptions applicable
“In case an injured employee is mentally incompetent or a minor or, where death results from the injury, in case any dependent as herein defined is mentally incompetent or a minor at the time when any right, privilege or election accrues to him under this Chapter, his duly qualified curator or tutor, as the case may be, may, in his behalf, claim and exercise such right, privilege or election, and no limitation of time, in this Chapter provided for, shall run, so long as such incompetent or minor has no curator or tutor, as the case may be.”

From a reading of this section, it is clear that the one-year prescriptive period for making workmen’s compensation claims, including those for death benefits, as set forth in LSA-R.S. 23:1209, does not commence to run until such time as a tutor has been appointed. See Turner v. Consolidated Underwriters, 248 La. 37, 176 So.2d 420 (1965). Accordingly, a suit for death benefits on behalf of minors in a workmen’s compensation case, filed on January 13, 1977 by tutors who had been duly confirmed on December 31, 1975, has prescribed.

We find no merit to plaintiffs’ contention that the prescription provision should not apply because of an unfortunate set of extenuating circumstances, i. e., that the mother of the minor children resided in the State of Washington, that the tutors were all aged, that one of them is, for all practical purposes, blind and that the tutors were not aware of the existence of the possibility of the minors’ entitlement to death benefits under the workmen’s compensation act. We know of no authority, other than statutory, for interruptions of prescriptive periods. The Legislature has made no provision for the interruption of prescription because of the existence of extenuating circumstances.

Furthermore, on December 26, 1976, judgment was rendered in the trial court in favor of the surviving spouse’s claim for death benefits. At that time,'the tutors could have filed a timely claim, on behalf of the minors, for death benefits, albeit only a few days remained to do so.

Under the circumstances, we are compelled to affirm the judgment of the trial court maintaining the plea of prescription. The judgment is affirmed.

AFFIRMED.

      . The deceased father had been married twice. The children involved in this suit were bom of the first marriage which ended in divorce. In a separate suit, the second wife sought and received death benefits under the workmen’s compensation act.


author: STOULIG, Judge.

text:
    Justina WILLIAMS v. McCRORY’S DEPARTMENT STORE and Rapid American and CNA Insurance Company.
    No. 8568.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1978.
    Rehearing Denied Feb. 14, 1978.
    Writ Refused March 31, 1978.

      Charles J. Pisano, New Orleans, for plaintiff-appellee.
    Robert J. Young, Jr., Joseph R. McMahon, Jr., Edward L. Levert, Jr., Deutsch, Kerrigan & Stiles, Raymon G. Jones, New Orleans, for defendants-appellants.
    Before GULOTTA, STOULIG and DU-PLANTIER, JJ.
   STOULIG, Judge.

This is an appeal from a judgment awarding plaintiff, Justina Williams, $3,150 for. injuries she allegedly incurred on or about July 31, 1974 in McCrory’s Department Store in the City of New Orleans. Plaintiff alleged she was struck from behind and knocked off balance by a store security guard or a fleeing shoplifter he was pursuing. Defendants, McCrory’s Department Store; Rapid American, the store’s management corporation; and CNA Insurance Company, the liability insurer, have appealed, seeking reversal on liability, or alternatively, a reduction in quantum.

Plaintiff testified she was shopping near the wig counter in McCrory’s Department Store when she heard disturbing noises and saw a crowd (which she approximated to be about 50 people) rushing down the aisle toward the street exit. Frightened, she began moving with the crowd and suddenly was struck from behind. After partially falling and regaining her balance, she glanced around and saw the security guard struggling with the shoplifter suspect “an arm’s length” away. She maintains one or the other struck her.

Although Leon DeJean, the security officer, testified he did not bump plaintiff, he conceded it was possible he could have bumped into her but doubted that he did. C. H. Handley, the manager of the store, and Verlie Guidry, a clerk, witnessed the entire incident and stated unequivocally neither the suspect nor the guard came into contact with the plaintiff at any time.

From the standpoint of liability the only serious question suggested by the record is the credibility of the plaintiff, who is either superlitigious or most unfortunate, depending on your point of view. In November 1973 she was in an automobile accident; in April 1974, she was in an automobile accident but was only “slightly shook up”; in July 1974, the McCrory incident occurred; and in November or December 1974, she fell in D. H. Holmes Department Store. Even with this background, the trial judge, who had the opportunity to hear and view the witness, apparently concluded that from plaintiff’s viewpoint, 1974 was not a mint year.

In the opinion of the writer the evidence does not preponderate in favor of the trial court’s conclusion that the plaintiff was struck by either the shoplifter or the security guard. However, the appellate limitation on reversing credibility mandated by the Supreme Court compels us to affirm.

Accepting plaintiff’s version of the story, the security guard was negligent. The store was crowded when a clerk loudly advised DeJean that one of the customers had slipped merchandise into a package. At the same time the guard was alerted, so was the shoplifter, who looked at DeJean and began fleeing toward the exit. DeJean, between 10 and 15 feet away, pursued and caught the suspect.

New Orleans Police Officer Henry Ot-nott, tendered and accepted as an expert in law enforcement and public safety, testified no attempt should be made to apprehend shoplifters if patrons in the store are placed in jeopardy by so doing. In a given situation of being alerted to the presence of a shoplifter in a crowded store, it is not good police practice to pursue the suspect if the shoppers are endangered. This is the un-contradicted opinion of Officer Otnott.

While a store is not the insurer of every patron (Bennett v. Sears, Roebuck & Company, 183 So.2d 757 (La.App. 1st Cir. 1966)), it is liable when an agent takes an unreasonable risk that might cause harm to others. Smolinski v. Taulli, 276 So.2d 286 (La.1973). In this cause the guard deviated from approved police procedure by attempting to apprehend a shoplifter in a situation that could predictably cause injury to a patron.

Obviously the trial court based its conclusion of negligence upon the plaintiff’s version of the incident and because the affirmative defense of contributory negligence was not proved we affirm on liability.

- As to quantum, the medical evidence is to the effect that plaintiff suffered “posterior thoracic and lumbosacral strain” and complaints of the sacroiliac joint and knee, coupled with post traumatic anxiety. Because the medical expert was Dr. Morris Klinger, a general practitioner, we did not assign a great deal of weight to diagnosis of mental disability. Dr. Klinger treated plaintiff from Ahgust 5, 1974 (the accident occurred July 31) through September 23, 1974 and at this time his prognosis was that she would recover completely within four months.

We will not disturb an award of $3,150 because, under the circumstances, the trial judge did not abuse the “much discretion” vested in him by C.C. art 1934(3) in fixing quantum. Fontenot v. Steenocker, 263 So.2d 59 (La.App. 4th Cir. 1972).

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.


text:
    Frances A. PARISH v. BILL WATSON FORD, INC., et al.
    No. 8716.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1978.
    Rehearing Denied Feb. 14, 1978.
    Writ Refused March 31, 1978.

      Louis G. Gruntz, Jr., Jefferson, for plaintiff-appellant.
    Chaffe, McCall, Phillips, Toler & Sarpy, Charles L. Chassaignac, New Orleans, for defendants-appellees.
    Before REDMANN, LEMMON and STOULIG, JJ.
   STOULIG, Judge.

Plaintiff, Frances Parish, successfully sustained her action in redhibition and was awarded a judgment against Bill Watson Ford, Inc., and the Ford Motor Company for the return of the purchase price of an automobile that had a defect in its rear window, subject to a usage credit of 12 cents per mile.

In her petition appellant demanded attorney fees as damages on the basis that the seller knew of the defect but did not seek as damages expenses of preparing for trial that are not ordinarily taxed as costs. The judgment, silent as to attorney fees, was rendered May 18, 1976, and the delays for perfecting a devolutive appeal expired without an appeal being taken therefrom.

Instead of filing an appeal, plaintiff sought attorney fees and the expenses of taking discovery deposition not used at the trial via a rule to tax costs. Both of these demands were rejected in the judgment on the rule and plaintiff perfected this appeal from that judgment. On appeal plaintiff limited her argument to the propriety of the dismissal of the rule to tax costs.

Appellant’s argument that she is entitled to attorney fees and “other expenses” authorized by C.C. art. 2545 from the bad faith vendors is academic. Even though the trial court found as a fact the vendors knew the window had distortions before the sale was made, by failing to timely appeal appellant has lost her right to further pursue these claims for attorney fees and expenses.

Attorney fees and expenses of preparing for trial that are not taxable as costs can only be awarded if there is express statutory authority to do so. Plaintiff’s demand for attorney fees was rejected in the district court; the silence of the judgment on this point is tantamount to rejection. Succession of Foster, 240 La. 269, 122 So.2d 96 (1960); Palama v. Palama, 338 So.2d 776 (La.App. 4th Cir. 1976). Her remedy to question the trial court’s failure to impose attorney fees on a bad faith finding was by appeal and when the time expired for perfecting this appeal, the judgment became final.

As to the claim for discovery depositions that were not introduced or used at the trial, plaintiff never demanded reimbursement in her main demand for nontaxable costs of preparing for trial. Her right to demand these as damages, just as with the attorney fees, is conferred by C.C. art. 2545 and should have been litigated on the merits and not in an ancillary rule to tax costs. Subsequent demand of these costs in a separate proceeding constitutes an improper division of an obligation in violation of C.C.P.'art. 425, and any right to enforce the remaining portion of the obligation has been lost.

Plaintiff therefore may recover on this rule only the costs ordinarily assessed against the unsuccessful litigant and the costs of discovery depositions not used at the trial may not be charged against defendants. R.S. 13:4533; Succession of Franz, 242 La. 875, 139 So.2d 216 (1962).

For the reasons assigned the judgment appealed from is affirmed.

AFFIRMED.

      . “The seller, who knows the vice of the thing he sells and omits to declare it, besides the restitution of price and repayment of the expenses, including reasonable attorneys’ fees, is answerable to the buyer in damages.” C.C. art. 2545.


author: BOUTALL, Judge.

text:
    Alejandro RAMOS, Individually and as Administrator of the Estate of his minor child Regla Mercedes Ramos and Ana Mirtha Ramos, his wife. v. GENTILLY WOODS PHILLIPS 66 SERVICE STATION and Gary Simmond et al.
    No. 8746.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1978.

      Romualdo Gonzalez, Murray, Murray, Ellis & Braden, New Orleans, for Alejandro Ramos, et al., plaintiffs-appellants.
    James B. Irwin, Montgomery, Barnett, Brown & Read, New Orleans, for Gary Simmons and United States Fidelity and Guaranty Co., defendants-appellees, cross-appellants.
    Before BOUTALL, SCHOTT and GAR-SAUD, JJ.
   BOUTALL, Judge.

This is a suit for personal injuries and damages resulting from a backing truck striking the open door of a parked automobile while the passengers were attempting to exit. Judgment was awarded only for the injuries to one passenger, refusing the claims of the driver and another existing passenger, and all plaintiffs have appealed.

Alejandro Ramos was driving the family automobile with his wife and daughter seated on the front seat. Returning to the family home at night he parked the vehicle on his left side of the roadway, facing against traffic, in order to permit his wife and daughter closer entrance to their home, after which he intended to pull into the driveway and park. Mrs. Ramos was seated on the right front seat, and she opened the door to disembark into the street. As she stood there, she noticed the defendant’s truck backing towards her, screamed, pushed her daughter, who had been occupying the middle of the front seat back into the vehicle, and fell on top of her. The backing truck then struck the open door of their car before stopping. All three of the plaintiffs claimed personal injuries as a result of this event, but the trial judge only awarded personal injuries to the minor child and the amount of her medical bill to the father.

The truck driver admits that he was backing down the street, and contends that he first checked to see if the way was clear. He testified that he had noted the parked Ramos car some minutes before but did not notice the passengers therein, nor did he see the door open. He would not have struck the vehicle at all except for the open door.

The negligence of the truck driver is apparent. He had stopped earlier to give assistance to another vehicle with a flat tire on the opposite side of the street. He had parked his truck at an angle blocking a large part of the street, facing in the wrong direction so that his lights could illuminate the rear of the car on whose tire he worked. He testified he checked his rear view mirror on the Ramos side and saw nothing and then began backing, keeping his vision fixed on a parked vehicle on the opposite side, around which he had to maneuver to straighten out in the street. The backing of a motor vehicle is a dangerous maneuver, particularly at night, and it is required that such maneuvers be conducted with great care and attention. Shaw v. Van Dyke, 287 So.2d 808 (La.App. 4th Cir. 1974). As he backed from his illegally parked position, the truck driver should have paid more attention to the entire situation, and not concentrated his attention only on the vehicle parked behind him on his left. Had he paid any attention to the roadway in general, he would have noticed the opened door and the passenger disembarking on that side.

However, we also find negligence on the part of Mr. Ramos and Mrs. Ramos. Mr. Ramos parked his automobile across the street in the rear of the truck facing the opposite direction. He directly violated § 38-220 of the New Orleans Municipal Code subsection (a) requiring that persons should stand or park vehicles heading in the direction of lawful traffic movement This violation by itself is not sufficient to cast him in negligence, but it in turn required his passengers to disembark into the street in violation of § 88-130 of the Municipal Code, requiring that no person shall open the door of a motor vehicle on the side adjacent to moving traffic in such a manner as to obstruct the right of way of any vehicle moving thereon. Mr. Ramos recognized that there was hazard attached to parking in this fashion and requiring his wife and daughter to disembark on the traffic side of the street, nevertheless he did so, not out of any emergency, but simply as a matter of convenience so they would have a shorter distance to walk to their front door, rather than walking from the driveway where he intended to finally park.

Similarly, Mrs. Ramos was negligent in disembarking into the street while the truck was making its backing maneuver. Although there is some confusion in her testimony on this point, the trial judge could readily conclude that she did not first ascertain that she could disembark safely, clear of any traffic on the street. Had she not opened the door into the path of the truck, there would have been no collision. We conclude, as did the trial judge, that Mr. and Mrs. Ramos were both guilty of contributory negligence, and may not recover for their injuries.

A somewhat different problem is presented in respect to their minor daughter, Regia Mercedes Ramos. She had been sitting in the middle of the front seat, and as her mother got out of the car and was standing in the roadway, she began to get out of the vehicle. As she was getting in position to alight, Mrs. Ramos jumped back into the car shoving her backwards and down off the seat, causing injuries to her left ankle, hip and back. We do not find that she was negligent but instead was injured through the joint negligence of the defendant truck driver and her mother and father, Mr. and Mrs. Ramos. She was required to undergo medical treatment and suffered pain in the areas mentioned for several months. The trial judge awarded the sum of $1,800 as general damages for her injury, and we find no manifest error in the exercise of his discretion in fixing that sum.

Having concluded that the trial judge was correct in his determination of negligence and liability, we affirm the award on appellee’s third party demand for contribution. The award for the child’s medical expenses was not at issue on this appeal.

The judgment appealed is affirmed at the cost of appellant.

AFFIRMED.


author: BOUTALL, Judge. GARSAUD, Judge,

text:
    Mildred Hall LOMBARDO v. ARGONAUT INSURANCE CO., Donald Richardson, M.D., Methodist Hospital, et al.
    No. 8415.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1978.
    Rehearing Denied Feb. 14, 1978.
    Writ Refused March 27, 1978.

      Levy & Smith, Lawrence J. Smith, New Orleans, for plaintiff-appellant.
    Lawrence D. Wiedemann, Wiedemann & Fransen, New Orleans, for defendants-ap-pellees.
    Before BOUTALL, SCHOTT and GAR-SAUD, JJ.
   BOUTALL, Judge.

This appeal involves medical malpractice and prescription. The sole issue is, assuming that the defendant physician did not have informed consent or any consent of the plaintiff for the performance of the surgical procedure known as a rhizotomy, what is the applicable prescriptive period to such a cause of action, i. e., one year, or ten years?

The conceded facts are that Mildred Hall Lombardo underwent a laminectomy at Methodist Hospital, performed by Dr. Donald Richardson. While she was still in the hospital several days later, Dr. Richardson performed a rhizotomy upon her without her consent and without any explanation. It is this second surgical procedure in question here. These facts were uncontested for the purposes of. a motion for summary judgment, as well as facts which show that the prescriptive period of one year provided in Louisiana Civil Code Article 3536 against claims for damages resulting from offenses and quasi offenses, has already tolled prior to suit. Similarly, the facts show that 10 years have not yet run. The operation was performed in 1970 and suit was filed in 1974, hence the prescriptive provisions of L.R.S. 9:5628, effective in 1975, do not apply.

We are of the opinion that the applicable prescriptive period is one year under C.C. Article 3536. That Article states: “The following actions are also prescribed by one year: That * * * resulting from offenses or quasi offenses.”

Appellant urges that we should apply the ten year prescriptive period of contracts under C.C. Article 3544, contending that the doctor-patient relationship is a contract for medical care under which the physician contracts to treat his patient in accordance with the standards of care in the community and that the physician’s action in performing an operation on the patient without her consent or without her informed consent, constitutes a breach of contract. Appellant relies upon our holdings in the cases of Brooks v. Robinson, 163 So.2d 186 (La.App. 4th Cir. 1964); Creighton v. Karlin, 225 So.2d 288 (La.App. 4th Cir. 1969); and Barrios v. Sara Mayo Hospital, 264 So.2d 792, (La.App. 4th Cir. 1972). Each of these cases held that under the facts presented therein, there was a breach of contract which prescribed only in ten years.

In turn, appellee contends that an operation without the consent of the patient sounds in tort, and refers us to the eases of Phelps v. Donaldson, 243 La. 1118, 150 So.2d 35 (La.1963) and Steel v. Aetna Life & Casualty Company, 304 So.2d 861 (La.App. 3rd Cir. 1974). Writs refused by the Louisiana Supreme Court, 315 So.2d 144, (1975).

We are, of course, bound to follow the decisions of the Louisiana Supreme Court. Since writ denials do not ordinarily create precedent, we are governed by the rules laid down in Phelps v. Donaldson, supra. That case was brought upon two bases, one for damages arising from tor-tious action, and the other for violation of an alleged contract between doctor and patient wherein specified results were warranted. The court held that the alleged defective work by the doctor was subject to the one year prescription applicable to the tort claims and affirmed the maintenance of an exception of prescription. Oh the alternative contractual demand, it found that on the facts there was no contract made and aéeordingly affirmed the dismissal of that demand. We gather from these holdings that it is incumbent upon the court to inquire into the nature of the facts surrounding the cause of action in order to make a determination whether the proceeding is one in tort or in contract. In this view, we do not share completely the view expressed by the court in Steel, supra, but we must note that the writ denial in that case was “on the facts found, the result is correct.”

In our examination of the facts of this case, we determine that they are unlike the factual situations in the previous cases before this circuit, Brooks, Creighton and Barrios, supra. None of the previous cases were concerned with an operation being performed without the consent of the patient.

The consent of the patient is a prerequisite to a surgical operation, and the surgeon who performs an operation without his patient’s consent, express or implied, is liable in damages. See Goodwin v. Aetna Casualty & Surety Company, 294 So.2d 618 (La.App. 4th Cir. 1974). In the case of Rogers v. Lumberman’s Mutual Casualty Company, 119 So.2d 649 (La.App. 2d Cir. 1960) it was held that the action of a surgeon who performs an operation without the consent of his patient constitutes a trespass against the person in the nature of assault and battery and subjects him to liability for damages. We would adhere to the principles announced in that case, which appear to be consistent with the majority rule of prevailing opinion. There is a marked similarity between the facts in that case and the facts in this case, and we conclude that the cause of action herein sued upon, an operation by a physician lacking the consent of his patient, is based on tort and not a matter of breach of the contractual obligations which may have existed between them.

For these reasons, the judgment of the trial court dismissing plaintiff’s suit on the basis of one year prescription is affirmed.

AFFIRMED.

GARSAUD, Judge,

dissenting.

As the record will reflect,

“[t]he sole issue in this case by stipulation between counsel is assuming that the defendant physician in this case did not have informed consent or any consent of the plaintiff for the performance of the surgical procedure known as a rhizotomy, what is the applicable prescriptive period to such a cause of action, i. e., one year or ten years?”

It is my view that this matter is res nova. No prior medical malpractice case raised the question of prescription where there was a total absence of consent.

Phelps v. Donaldson, 243 La. 1118, 150 So.2d 35 (1963), is at best haltingly analogous and does not support the appellee’s position. Nor do I read Phelps as did the Third Circuit in Steel v. Aetna Casualty Co., 304 So.2d 861 (La.App. 3d Cir. 1974), cert. den. 315 So.2d 144 (1975). With regard to the contract question, Phelps merely con-eluded that the plaintiff was unable to prove her allegation of an agreement between the plaintiff and the physician wherein the latter warranted a specific result or cure. It is impossible for me to elevate that limited holding to the general principle that “a medical malpractice claim cannot be brought under the theory of contract unless the physician warrants or promises a particular result.” Steel, supra, at 864.

The majority properly relied on Rogers v. Lumberman’s Mutual Casualty Co., 119 So.2d 649 (La.App. 2d Cir. 1960), for the proposition that a surgeon who performs an operation without the consent of his patient commits a battery and is liable for damages. The claim in that case, however, was brought within one year, thus the issue of prescription never arose. Nonetheless, the fact that such an operation is a battery does not preclude its also sounding contract. Brooks v. Robinson, 163 So.2d 186 (La.App. 4th Cir. 1964), writs refused 246 La. 583, 165 So.2d 481 (1964).

Stemming from the special relationship between physician and patient is an implied agreement to use the standard of professional skill and care customarily prevailing in the locality. Creighton v. Karlin, 225 So.2d 288 (La.App. 4th Cir. 1969), writs refused 254 La. 842, 227 So.2d 590 (1969). Operating without the consent of a patient, absent an emergency, is an act which clearly falls below any standard of professional skill and care of the medical profession in this community. In this case, then, there was breach of an implied agreement between the plaintiff and her physician. Plaintiffs pleadings allege that breach and were fifed within the applicable ten-year prescriptive period.

The Motion for Summary Judgment should not have been granted. I respectfully dissent.


author: SCHOTT, Judge.

text:
    Roy SHORT v. MOSSY MOTORS, INC.
    No. 8668.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1978.

      Christovich & Kearney, Terry Christovich Gay. and W. K. Christovich, New Orleans, for defendant-appellant.
    Anthony J. Russo, New Orleans, for plaintiff-appellee.
    Before BOUTALL, SCHOTT and GAR-SAUD, JJ.
   SCHOTT, Judge.

Plaintiff brought this suit to recover $1,000 he deposited with defendant on account of an automobile he ordered;- Defendant Reconvened for $510.06 for damages to an automobile it loaned to plaintiff while he was waiting for the automobile he ordered. From a judgment in favor of plaintiff on the main demand, as well as the reconveritional demand, defendant has appealed.

On April 29,1976, plaintiff ordered a new 1976 Oldsmobile automobile with various special accessories for a total price of $5,852.80. In conjunction therewith he made a deposit of $100. The order provided, as one" of the conditions of the agreement, as follows:

“Upon the failure or refusal of the purchaser to complete said purchase for any reason other than cancellation on account of increase in price or because of seller’s inability to sell the security contract as provided in paragraph 7, the cash deposit may be retained as liquidated damages,. . "

According to plaintiff’s testimony, on the date that the car was due to be delivered he went to defendant’s facility at about noon and was advised that they were having some minor problems with the automobile but that it would be ready at 5 o’clock. He gave defendant $700 “more deposit” at that time and returned later with his daughter for the purpose of picking up the automobile. At that time he was advised that the pistons were sticking in the automobile and he was brought to the shop where he found the automobile being worked on. He was advised that it would be ready after the Fourth of July, and defendant loaned him another automobile with the understanding that plaintiff’s daughter would use this loaned automobile until the car plaintiff was purchasing would be ready. At that time he put down an additional $100 with defendant. He was advised by defendant on July 14 that his automobile was ready, but fearing that the automobile was defective he then advised defendant’s representative that he did not want the automobile. At that time he and his daughter returned the loaned automobile which, in the meantime, had been damaged.

Plaintiff’s daughter testified that she had taken the loaned automobile to a shopping center, properly parked it in the lot, went into a store and upon returning found that it had been damaged. Her testimony was corroborated by a friend who had accompanied her to the shopping center.

Defendant does not dispute that when the automobile was ordered only $100 was deposited in accordance with the terms of the contract, but it takes the position that the entire $1,000 was earnest money in accordance with LSA-C.C. Art. 2463, which provides:

“But if the promise to sell has been made with the giving of earnest, each of the contracting parties is at liberty to recede from the promise; to wit: he who has given the earnest, by forfeiting it; and he who has received it, by returning the double.”

Defendant relies on Mexic Bros., Inc. v. Sauviac, 191 So.2d 873 (La.App. 4th Cir. 1966) for the proposition that the $1,000 must be considered earnest money unless the parties agree to the contrary.

In the first place Art. 2463 has nothing to do with the $900 deposited subsequent to the date the automobile was ordered. The promise to sell had already been made by defendant in connection with the deposit of $100. Defendant was under no obligation to pay the additional $900 until the sale was consummated and there is no basis for allowing defendant to retain the $900.

As to the $100, we are not required to decide whether or not this was earnest money because its disposition is governed by the provision of the contract quoted above.

Defendant had the right to retain that $100 regardless of the reason for plaintiff’s cancellation, and by the same token plaintiff had the unqualified right to cancel the contract with the understanding that the $100 would be forfeited as liquidated damages. The purpose of liquidated damages is to relieve the obligee of having to prove actual damages because of the obligor’s breach of the contract. Thus, defendant limited itself to the $100 whether or not plaintiff was justified in cancelling the contract. Therefore, we have concluded that the judgment on the main demand must be reduced to $900.

The loan of the automobile by defendant was pursuant to LSA-C.C. Arts. 2893 et seq. Whether the automobile was loaned only to plaintiff or jointly to plaintiff and his daughter pursuant to Art. 2905 the same legal principles control plaintiff’s liability for the damage to the automobile. Art. 2898 provides that the borrower is bound to keep and preserve in the best possible order the thing lent. The borrower is responsible to the lender for damages done to the thing lent when they were caused by fault or negligence on the part of the borrower but not for damages occurring without his fault. C.C. Art. 2902, New York Fire Insurance Co. v. Kansas Milling Company, 227 La. 976, 81 So.2d 15 (1955); Roy Young, Inc. v. Delcambre, 233 So.2d 612 (La.App. 3rd Cir. 1970), writ refused, 256 La. 358, 236 So.2d 496.

If the thing lent is returned in damaged condition there is a presumption of fault or negligence on the part of the borrower and the burden of proof is upon him to prove that he was without fault for the damage. Roy Young, Inc. v. Delcambre, supra.

According to the testimony of plaintiff’s daughter and her friend the automobile was not damaged because of any fault on her part but rather the fault of some unknown and unidentified driver in the parking lot. Defendant takes the position that this evidence is insufficient as a matter of law and relies principally on Continental Casualty v. Oken, 229 So.2d 393 (La.App. 2nd Cir. 1969).

We have concluded that this is essentially a fact question for the trial court to resolve on the basis of the credibility of the witnesses. While defendant correctly asserts that plaintiff’s daughter’s failure to report the parking lot damage promptly diminishes her credibility we do not attach enough significance to this point to substitute our own judgment for the trial court’s credibility call as to both the girl and her friend. It is significant that defendant in the Oken case lost in the trial court and that judgment was affirmed. Furthermore, the story told by Oken was entirely uncorroborated and quite unbelievable.

Accordingly, the judgment appealed from is amended to the extent that there is judgment in favor of plaintiff on the main demand and against defendant in the amount of $900, and in all other respects the judgment appealed from is affirmed.

AMENDED AND AFFIRMED.


text:
    SEABOARD CORPORATION v. John C. BURDINE.
    No. 8500.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1978.
    Wilson F. Shoughrue, Jr., New Orleans, for plaintiff-appellant.
    Thomas L. Giraud, Salvador M. Cusima-no, Charles A. Verderame, New Orleans, for defendant-appellee.
    Before REDMANN, SCHOTT and GAR-SAUD, JJ.
   SCHOTT, Judge.

Plaintiff alleged that it was the holder in due course of a promissory note executed by defendant on April 3, 1975, in the original sum of $480 on which credits of $140 were due, leaving a balance of $340 plus interest and attorney’s fees.

Defendant denied that plaintiff was a holder in due course and reconvened alleging that he had purchased a lifetime membership in East Side Health Club for which the instrument sued on had been signed. He further alleged that plaintiff was the assignee of the contract between him and the health club and as such had assumed the obligations of the club, and he further alleged that the club went out of business in November, 1975, after he had made seven payments. He prayed for a return of his payments as well as the value of his lifetime membership.

The trial judge awarded to plaintiff a judgment for $340. He also awarded to defendant a judgment for $9,000 on his reconventional demand. From this judgment plaintiff has appealed.

The instrument sued on is entitled “Retail Installment Contract.” The first part of the form contains the name and address of defendant as buyer, the name and address of the health club as seller, and information as to employment, assets and credit record of defendant. It states that the description of the article sold and/or services rendered is “lifetime.” The price is given as $480, all of which was to be financed. Following this section of the form there begins a section entitled “Negotiable Paper.” It then recites:

“FOR VALUE RECEIVED, the undersigned Buyer(s) jointly, severally, and in solido, promise to pay to the order of named Seller the amount shown above as TOTAL OF PAYMENTS in 24 monthly payments of $20.00 final payment to be $_commencing 5-15, 1975 and the same day monthly thereafter until paid in full.”

On the reverse side of the instrument is a standard acceleration clause, provisions for attorney’s fees of 20% or a minimum of $50 in the event of a default, and the following:

“Buyers agree that Seller may at any time sell, transfer or assign this note and contract and that all terms herein set forth for the benefit of the Seller shall inure to the benefit and operate in favor of such successors or assignees. Buyers hereby waive as against such successors and assigns all defenses and all right of recoupment set-off and counterclaim which he has or ever might have against the Seller. If this note and agreement are assigned, all payments shall be made at the office of the assignee.”

At the time this transaction was completed R.S. 9:3533 and 3534 (Act 454 of 1972 subsequently repealed by Act 446 of 1976) were in effect. Pursuant to these statutes, following plaintiff’s purchase of the instrument on May 6, 1975, it was required to send a notice of assignment to defendant in order to qualify as a holder in due course. The notice of assignment must comply with the requirements set forth in § 3534. This includes:

“(3) The notice of assignment or transfer shall state that if written notification of the complaints, claims or defenses is not received by the assignee or transferee within the 30-day period, the assignee or transferee or any subsequent assignee or transferee will have the right to enforce the contract free of any claims or defenses the consumer may have against the extender of credit.” (Emphasis added)

However, the notice given by plaintiff was as follows:

“If written notification of any .complaints, claims or defenses the buyer may have against the seller is not received by the assignee within the 30 day period, the assignee will have the right to enforce the contract free of any claims or defenses the buyer may have against the seller which have arisen before the end of the 30-day period after notice was mailed.” (Emphasis added)

There is a substantial difference between the wording required by the statute and that used by plaintiff. Instead of warning defendant that “any claims or defenses” would be lost, plaintiff’s notice was that only some claims or defenses would be lost, namely, those arising within 30 days after notice. Defendant was not informed by this notice that he would lose all defenses. In fact, he was not notified that he would lose the kind of defense he asserts in this case, namely, that the club closed at a later date.

We have concluded that plaintiff shall not be deemed a holder in due course pursuant to § 3533. As a result, the claim is subject to the defense of failure of consideration available against the health club.

As to the reconventional demand, the award by the trial judge was inconsistent with § 3534(3)(b) which provides as follows:

“To the extent that under this section an assignee or transferee is subject to claims or defenses of the consumer against the extender of credit, the assignee’s or transferee’s liability under this section may not exceed the amount owing to the assignee or transferee at the time the claim or defense is asserted against the assignee or transferee and rights of the consumer under this section can only be asserted as a matter of defense to or set-off against a claim by the assignee or transferee.”

Thus, the judgment on the reconventional demand is reduced to the amount of plaintiff’s claim with the result that plaintiff’s claim is extinguished and its case dismissed.

AMENDED AND AFFIRMED.


author: SCHOTT, Judge. REDMANN and BEER, Judges,

text:
    George LANDRY v. NATIONAL GYPSUM COMPANY and Kemper Insurance Company.
    No. 8862.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1978.
    Rehearing Denied Feb. 14, 1978.
    Writ Refused March 31, 1978.
    Zelden & Zelden, Max Zelden and Michael D. Zelden, for plaintiff-appellee.
    Hammett, Leake, Hammett, Hulse, Nelson, Craig R. Nelson, New Orleans, for defendants-appellants.

      Before REDMANN, GULOTTA, BOU-TALL, SCHOTT and BEER, JJ.
   SCHOTT, Judge.

Plaintiff’s employer and its workman’s compensation insurer have appealed from a judgment awarding him benefits for total and permanent disability because of his contraction of the occupational disease, asbestosis and/or pneumoconiosis pursuant to LSA-R.S. 23:1031.1.

Plaintiff’s job consisted of breaking up blocks of asbestos and feeding it into a grinder. This operation naturally caused asbestos particles to be present in the atmosphere in which plaintiff was working. That this condition was recognized by the employer is best demonstrated by the fact that plaintiff was provided with a mask to use in his work and the company required plaintiff to submit to an annual X-ray examination presumably for the purpose of detecting signs of asbestosis in his lungs.

After working for defendant from 1965 until 1973, plaintiff was advised that the routine X-ray taken on January 17, 1973, showed a “spot” on his lungs and that he should see his personal physician in connection therewith. He consulted Dr. Albert James Bloom in April and was placed in the hospital for tests by Dr. Bloom from April 3 to April 8,1973. When plaintiff was admitted to the hospital on this occasion, Dr. Bloom gave as his clinical findings: Chronic cough, considerable expectoration and the routine X-ray positive for infiltration of the lungs. After this hospitalization, Dr. Bloom diagnosed acute tracheo bronchitis compensated hypertensive cardiovascular disease and myocardial eschemia. He prescribed antibiotics, cough mix, sedation and bed rest.

Beginning in February, 1973, plaintiff had missed five or six weeks of work and apparently returned to work shortly after his discharge from this first hospitalization in April. At this point in time plaintiff had consulted an attorney in order to collect compensation benefits for this six weeks’ period. In the meantime, this previous attorney had referred plaintiff to Dr. Morton Ziskind, an expert in the field of pulmonary disease. Dr. Ziskind examined plaintiff on March 26, 1973, and his report to the previous attorney, dated April 24, contains the following pertinent data: Plaintiff has complained of chronic cough for over one year, he has frequent chest colds, takes cough medicine and has chest soreness associated with coughing. He has no difficulty in walking three blocks. On the basis of his examination of plaintiff, which included X-rays taken on March 20, and pulmonary function studies he diagnosed chronic obstructive pulmonary disease with a mild obstructive disorder, coarse linear infiltrates at the left lung base of unknown etiology and hypertensive cardiovascular disease. The X-ray changes noted did not appear specific for pneumoconiosis. He had arterial hypertension with enlarged heart. His report included the following: “All of these changes [X-ray and pulmonary function] are not specific and could occur with different combinations of chronic obstructive pulmonary disease. The duration of exposure to asbestos, which is seven to eight years, is rarely associated with roent-genographic or physiologic functional evidence of asbestosis. The possibility that early reaction following exposure to the dust has aggravated his cardiac and obstructive pulmonary disease ■ can be considered.”

The routine X-ray taken on January 17, 1973, at the behest of plaintiff’s employer was done locally and forwarded on the company’s instruction to its national physician in Cleveland, Ohio. This physician, Dr. George Wright, had made the following interpretation of the X-ray:

“The right and left costo-phrenic angles are slightly blunted and there are several horizontal linear densities just above the left diaphragm. Films as far back as ’65 show this has been developing gradually and suggests slight thickening of the pleura plus sub-segmental atelectasis on the left.”

When the company received this report from its physician it referred plaintiff to its own local physician, Dr. T. S. Dunn, -Jr. He reported on April 24 that he reviewed the interpretation of Dr. Wright and the report of Dr. Bloom, based on his treatment of the plaintiff at the hospital. In his opinion, Dr. Bloom’s diagnosis of chronic tracheobron-chitis was “certainly a very non-specific one and refers to some chronic irritative or'inflammatory process with no etiology specified.” Dr. Dunn was impressed by the diagnosis of cardiovascular disease and felt that Dr. Bloom did not regard this diagnosis as occupational in nature. Dr. Dunn expressed some dissatisfaction with Dr. Wright’s report to the effect that it was somewhat vague, and he advised the company to ask Dr. Wright directly whether or not the changes he saw in the X-rays were on the basis of an occupational pneumoconi-osis. Dr. Dunn had his own X-ray report taken on April 3 and his radiologist, Dr. Haley, stated that there was no evidence of pleuropulmonary pathology.

It was on the basis of these reports that plaintiff and defendants on November 7, 1973, filed a joint petition for approval of a compromise wherein it was alleged by plaintiff that he had contracted an occupational disease while in the course and scope of defendant’s employment, and defendants alleged that the disease was not contracted, or if it was, that there was no causal connection with his employment and he suffered no permanent injury, reciting that a dispute existed between the parties regarding the claim. They submitted for approval a compromise of $606. The receipt and release given by plaintiff to defendants in connection with this compromise recited that he was releasing defendants from any and all further claims for “disabilities which may exist but which are at this time unknown wholly or in part and which may develop or become known in the future. . "

Plaintiff worked for defendant continuously until March, 1975. In the meantime on February 21,1975, another routine chest X-ray had been taken in New Orleans, and sent to Dr. Wright now in Colorado but. still the national physician for defendant, and he made the following interpretation of the X-ray:

“There is slight thickening of the pleura visible along the lateral chest wall on both sides and the costo-phrenic angles are blunted. Because of the inside ‘haze’ produced by the thickened pleura, the underlying lung cannot be seen clearly. Even so there are small irregular densities contributing to the partially obscured broncho vascular markings, especially at the left base.
“The overall appearance suggests a minimal stage of pneumoconiosis, most likely due to asbestos. It should also be noted that the cardiac silhouette is abnormally broad, indicating cardiac enlargement.”

Dr. Wright’s report indicated to the company that it should consult its physician and follow his advice. On March 24 a company physician advised it that plaintiff should be referred to his private physician for further evaluation. Shortly thereafter, plaintiff returned to Dr. Bloom who hospitalized him for tests on May 6, 1975.

When plaintiff was admitted to the hospital, Dr. Bloom reported that the patient had been fairly well until he developed pain in his chest four months previously. This was accompanied by shortness of breath even without exertion. Dr. Bloom classified him as a “Hypertensive Cardiovascular Disease individual who also has Asbestosis.” Upon being discharged from the hospital on May 12, Dr. Bloom made a final diagnosis of asbestosis along with the cardiovascular disease and angina pectoris.

On June 12, 1975, Dr. Dunn made a report to defendants concerning his examination of plaintiff made on June 11. After noting that plaintiff had arteriosclerosis and hypertension they concluded:

. . There is certainly a reduced pulmonary function and a somewhat abnormal chest X-ray, so I am reluctant on the basis of the findings noted to my non-radiologic eye to make a diagnosis of asbestosis. I would, of course, be delighted to know the interpretation of films taken in our office in 1974 and forward it as well as those obtained this year in New Orleans. It might be well to have all of these films compared by the original consultant selected by National Gypsum who, I am informed, has nationally recognized expertise in the diagnosis of asbestosis. There certainly is a significant past smoking history, but a lung biopsy may be necessary to make a definite diagnosis in this particular case. Certainly his ostoarthritis and cardiovascular problems have become limiting but these are not occupational. I believe all these films will have to be reviewed by an expert in the field who may or may not be able to give a final opinion. In the absence of such, lung biopsy would be necessary to establish an occupational disease.”

This suit was filed by plaintiff on July 2, 1975, and it was met with exceptions of prescription and res judicata based upon the judicial compromise of plaintiff’s claim in November, 1973. The exception was referred to the merits and the trial of the case consisted principally of the testimony of plaintiff, and introduction of depositions of Dr. Bloom, Dr. Ziskind and Dr. Thomas Oelsner along with the various reports which have already been discussed.

Dr. Bloom testified as follows: He had made a diagnosis of pneumoconiosis of the lung due to asbestosis and advised plaintiff to see him monthly for his condition. Plaintiff came fairly regularly in 1973 and he saw plaintiff occasionally in 1974 when he was complaining of colds, arthritis or conditions related to his heart. In 1974 the only specific complaints made by plaintiff referable to his lungs were coughing and chest pain for which he was given antibiotics. Discussing the X-rays taken during plaintiff’s hospitalizations in 1973 and 1975, these showed some improvement in that the individual lymph nodes had calcification in each one, indicating that the body had healed to a reasonable degree. Nevertheless, plaintiff’s condition had to be worse because of continued ingestion of asbestos fibers. The antibiotics had resolved the inflammatory process of the infection in the lung and in the nodes with the result that the condition seemed improved on the X-rays, but the fibers were there permanently. He concluded that plaintiff’s condition was aggravated. He recommended hospitalization and regular treatment for plaintiff but he could not afford this. In his opinion, plaintiff’s asbestosis aggravated his heart condition. He described the symptoms of pneumoconiosis as thickening of the pleura, fibrosis of the lungs and inflammation of the lymph nodes, all of which plaintiff demonstrated, but he said in the final analysis the-diagnosis of asbestosis is clinical in that the diagnostician must know that the patient has been exposed to asbestos before he can diagnose the disease. In his opinion, one does not have to be exposed to asbestos for 20 years in order to become disabled since it depends on the amount of asbestos which gets into the lungs, the individual’s resistance and how he reacts to it. In his opinion, plaintiff was unable to work and his disability was caused by a number of things which individually might disable him but together all contributed, namely, his heart condition, his arteriosclerosis and his asbestosis.

Dr. Ziskind testified concerning the diagnosis of asbestosis at different stages of the disease as follows: In the first place there must be a showing that the patient has been exposed to asbestos. In the early stages of the disease chest X-rays would show extra fine densities in the lungs, usually in the lower portion, and functional tests would show a reduction in the vital capacity of the lungs. In the later stages, pulmonary diffusion capacity would drop and blood studies would show a drop in oxygen retention following exercise. In the more advanced stages, the patient would have rales in the lungs, clubbing of the fingers and shortness of breath. The first signs of the disease would be detected on an X-ray by comparison with films taken over a period of time. Development of the disease to the extent that signs will be visible on X-ray is not likely to occur until the end of the second decade of exposure to asbestos, but this could vary depending on conditions at the plant where the individual worked.

Dr. Ziskind discussed and compared plaintiff’s chest X-rays taken between 1965 and 1975 as follows: The streaks appearing in the films of 1972 and later resulted from technical problems in taking the X-rays. A film taken in October, 1973, showed the enlarged heart, streaks and fine nodules at the base which would be consistent with some disease, such as pneumoconiosis, but the disease would not be disabling on the basis of this appearance. Abnormalities shown on the March, 1973, X-ray taken by him were consistent with inflammatory disease and showed that plaintiff had some previous disease of the lungs with evidence of emphysema. The February, 1975, X-ray did not lead to a diagnosis of asbestos disease of the lungs but there were pleural changes consistent with asbestos related disease. In this respect, Dr. Ziskind took issue directly with Dr. Wright’s report that this February, 1975, X-ray suggested a minimal stage of pneumoconiosis most likely due to asbestos. Dr. Ziskind stated that he could not come to that conclusion because of technical deficiencies in the film and because the film did not show fibrosis on the lungs.

Dr. Ziskind explained that the pleural changes he saw on the X-ray taken by him in 1973 indicated asbestos related disease which was not disabling. Asked about his report to plaintiff’s previous attorney that this X-ray showed “coarse linear infiltrates” on plaintiff’s lungs he admitted that this could have been caused by inhalation of asbestos dust for eight years, but again insisted that this was a short time for such to develop. He also admitted that the reports of the pulmonary function tests, made in February, 1975, when compared with his own tests made 22 months previously, indicated that plaintiff’s vital capacity and lung function had been reduced over this period of time. Asked whether going back to work in an asbestos-dusty environment for the 22 month period had any effect on plaintiff’s lung condition, he said it would have the effect of hastening the aging process of natural deterioration of the body and would be an aggravating factor for any pulmonary disease. But in the final analysis, Dr. Ziskind maintained that plaintiff’s present disability was caused by heart disease.

Defendants had plaintiff examined by Dr. Thomas Oelsner, an internist, in January, 1977, and he concluded that plaintiff had angina pectoris, coronary artery disease and hypertension, which disabled him, but he did not believe that plaintiff’s condition was caused by exposure to asbestos. He admitted that an X-ray of plaintiff showed a pulmonary abnormality consisting of blunting of the left costo-phrenic angle, but he did not think this was disabling. He found plaintiff had rales in his chest, and he admitted that this was an abnormal finding. He said that the symptoms of asbestosis were shortness of breath, chronic cough and pleuritic pain, and while plaintiff had the first two of the symptoms he did not have the type of chest pains which he would classify as pleuritic.

Plaintiff’s testimony was to the effect that he went to the doctor in 1973 because he had been told that the X-ray disclosed a spot on his lungs. Following tests made then he was told to go back to work, and he had no discomfort while working. He performed all of the duties of his employment for 22 months until 1975 when he was getting short winded and could not work more than 10 or 15 minutes at a time without stopping. When the X-rays disclosed in 1975 that he had a spot on his lung and he was again seen by Dr. Bloom he was told thereafter that he could not return to work.

Defendants produced some of the company witnesses who testified that plaintiff was laid off in August, 1975, by National Gypsum, not because of poor health but because of a general reduction in forces.

The issues raised by defendants on this appeal are 1) the exceptions of prescription and res judicata and 2) their defense on the merits to the effect that plaintiff’s disability was not caused by the occupational disease of pneumoconiosis or asbestosis.

On the question of the exception of res judicata, there is no evidence in the record to show that plaintiff was disabled from pneumoconiosis, asbestosis or any other occupational disease in 1973. On the contrary, after being off for the six weeks he returned to his same duties with defendant for 22 months. In Chivoletto v. Johns-Manville Products Corp., 330 So.2d 295 (La.1976), plaintiff filed a suit claiming to be disabled as a result of asbestosis. The trial court had found that plaintiff had asbestosis and reasoned that although he was not disabled he was entitled to an award under the Workmen’s Compensation Act and found that the usefulness of a physical function, namely, his lungs was seriously impaired and made an award under Sec. 1221(4)(p) of the act. Plaintiff took an appeal from this judgment, seeking an award for total and permanent disability, and upon the judgment of the trial court being affirmed applied for writs to the Supreme Court. The Court said the following:

“In view of the findings of the trial judge, which were undoubtedly based to some extent upon the credibility of the witnesses, especially plaintiff’s subjective complaints, and the complete acceptance of those findings by the Court of Appeal, together with our own study of the record, we are unable to conclude that plaintiff is totally and permanently disabled as he contends. However, in view of the progressive nature of asbestosis, plaintiff is reserved the right to file another compensation claim if and when he becomes disabled as a result of the occupational disease he has contracted. LaCoste v. J. Ray McDermott & Co., 250 La. 43, 193 So.2d 779 (1967).”

In the LaCoste case cited by the Court above the plaintiff sought benefits for disability resulting from another occupational disease, silicosis. The defense was that he did not have silicosis, or if he did he was not disabled by the disease. The trial court held it was immaterial whether he had silicosis or not because he was not disabled as á result thereof. After the Court of Appeal reversed, in effect, saying that the contraction of the disease alone entitles the employee to compensation under Sec. 1031.1, the Supreme Court reversed the Court of Appeal and held that disability was an essential element for a recovery along with contraction of the occupational disease. One of the arguments made by plaintiff was that unless he was awarded compensation for permanent disability he might lose his right thereafter to claim compensation when his working ability became impaired as a result of the disease because of the provision of then Paragraph D (now E) of Sec. 1031.1, which provides that unless the employee files a claim within four months of the date of his contraction of the disease, or within four months of the date that the disease first manifested itself, his claim would be barred. The Court held that the manifestation of the disease spoken of in the statute would be equivalent to the plaintiff’s becoming disabled as a result of the disease and the four months would begin to run at that time. The Court then concluded:

“We therefore conclude that plaintiff’s suit should not have been dismissed with prejudice, as the district court decreed, but only as of non-suit, reserving to plaintiff the right to file another compensation claim if and when he became disabled as a result of the occupational disease he has contracted.”

In the instant case, the evidence shows that plaintiff was not disabled although he may have had asbestosis in 1973 when he made a settlement for the six weeks of absence from work. Under the two cases cited it is clear that plaintiff’s right to claim total disability as he did in the instant case was reserved when that settlement was made and his present suit is not barred by the exception of res judicata. Likewise, there is no basis for the exception of prescription.

The other issue raised by defendants is that plaintiff’s disability did not result from asbestosis but resulted from his cardiac condition or his arteriosclerosis. We have reviewed the evidence and testimony at some length, and while there is evidence to support defendants’ position in this respect, all the evidence preponderates in favor of plaintiff’s contention that asbestosis is the cause of his disability. The principal witness relied upon by defendants was Dr. Ziskind who consistently maintained that plaintiff has not contracted asbestosis or pneumoconiosis in the first instance, and if he did the disease was not sufficiently developed to produce plaintiff’s disability. His thinking was dominated by the theory that contraction of asbestosis to the point where it would be disabling would take practically 20 years of exposure to asbestos dust. His refusal to recognize plaintiff’s disability due to asbestosis was predicated on the proposition that he could not have reached that point after only eight years of employment even though he had in 1973 informed plaintiff’s prior counsel that the X-ray taken at that time showed coarse linear infiltrates and despite plaintiff’s continuing to work with asbestos for 22 more months.

In considering whether or not plaintiff had asbestosis considerable weight must be given to the fact that defendant’s national physician, Dr. Wright, thought in 1973 that the X-rays were positive to the extent that plaintiff was advised to see his own physician, and in 1975 he clearly interpreted the film to show pneumoconiosis due to asbestos. This conclusion by defendants’ own physician constitutes somewhat of an admission against their own interest in this respect.

Plaintiff’s principal physician, Dr. Bloom, while not a pulmonary disease expert as was Dr. Ziskind, nevertheless was properly qualified as an expert in the general practice of medicine and he did have knowledge of asbestosis from his own experience in the practice. His testimony was clear and unequivocal that plaintiff had asbestosis and that this was one of the causes of his disability. Plaintiff’s asbestosis cannot be isolated from his cardiac condition because both Dr. Bloom and Dr. Ziskind testified that the asbestosis would be an aggravating factor for the heart condition. But the root cause of his disability is asbestosis with the result that he is entitled to recover workmen’s compensation benefits under Section 1031.1 even though his heart condition and arteriosclerosis contributed to his overall disability.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

REDMANN and BEER, JJ., dissent with written reasons.

REDMANN and BEER, Judges,

dissenting.

The severity of plaintiff’s asbestosis is much less than that of Chivoletto v. Johns-Manville P. Corp., La.App. 4 Cir. 1976, 319 So.2d 492, aff’d La., 330 So.2d 295, which held plaintiff’s disability not permanent and total. We there awarded benefits under R.S. 23:1221(4)(p) for impairment of the physical function of the lungs (a question not reviewed by the Supreme Court). We might here make a similar award.

But we find the medical evidence persuasive to the point of compelling a conclusion that Landry’s inability to return to his former employment is due solely to the combined onslaught of angina pectoris, coronary artery disease, and hypertension. Accordingly, we respectfully dissent.

BEER, Judge, dissenting from the refusal to grant a rehearing.

When Chivoletto v. Johns-Manville Products Corporation was affirmed by us (319 So.2d 492), I concurred, being of the view that Mr. Chivoletto had experienced some— but not a disabling — loss of lung function. The Supreme Court affirmed (330 So.2d 295), indicating, I believe, that a distinction can be recognized between a situation where the physical functions of the lungs have been impaired to some extent but where the disability which prevents a return to full employment results from other causes not covered by the compensation act. In my view, that is exactly what this record indicates. Mr. Landry is not disabled by asbestosis, and there is no basis in this record (in my view) for concluding that asbestosis is “the root cause of his disability.” His disability results from angina pec-toris, coronary artery disease and hypertension which does not result from his employment and, thus, is not covered by the compensation act.

I would grant the rehearing and would, thereafter, vote to make an award similar to that discussed in my concurring opinion in Chivoletto, supra.

      . This attorney is not the same attorney who is now representing plaintiff in these proceedings.