author: SAMUEL, Judge. GULOTTA, Judge PER CURIAM. GULOTTA, Judge

text:
    Paul M. WARD v. Shirley Ann WARD.
    No. 7317.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 18, 1976.
    Rehearing Denied June 9, 1976.
    Writ Granted July 2, 1976.
    Dan C. Garner & Associates, R. Lee McDaniel, New Orleans, for plaintiff-appellant.

      Philip R. Riegel, Jr. and Sydney J. Par-longue, New Orleans, for defendant-appel-lee.
    Before SAMUEL, REDMANN, LEM-MON, GULOTTA, STOULIG, BOU-TALL, SCHOTT, MORIAL and BEER, JJ-
   SAMUEL, Judge.

In this matter a judgment of separation from bed and board was obtained by the defendant wife as plaintiff in reconvention on the ground of cruel treatment. By consent of both parties, pending the suit for separation the wife had been given custody of the minor child of the marriage, $200 per month alimony, and $400 per month for child support. The separation judgment contained identical provisions as to custody, alimony and child support.

. Subsequently, the wife obtained a divorce on the ground there had been no reconciliation between the parties for more than one year following the signing of the judgment of separation. The divorce judgment also provided alimony a'nd child support in accordance with a new agreement between the litigants. It awarded $375 per month alimony and a like amount for child support, beginning August 1, 1973 and continuing for the following eighteen months only, after which time the alimony and child support “shall be discontinued in accordance with the agreement between the parties herein.”

When the eighteen month period had passed, Mr. Ward, filed a rule to show cause why the amount of alimony which he had been condemned to pay should not be reduced. The rule was dismissed by the trial court on a finding there was nothing to reduce since the judgment’s condemnation to pay alimony and child support had expired. Then, on April 30, 1975, Mrs. Ward filed a rule for alimony and child support, alleging she was in necessitous circumstances. After trial of the rule, child support was awarded in the sum of $200 per month and alimony in the sum of $400 per month. Mr. Ward has appealed.

In this court appellant does not contest the child support award. He does contest the award of alimony. He contends: (1) the agreement entered into by the parties for alimony is valid and, as a result thereof, the appellee is not entitled to alimony; alternatively, even if the agreement is found to be invalid, (2) the trial court erred in concluding the appellee was entitled to alimony ; and, in the further alternative, (3) the alimony award is excessive. Our conclusion on the second contention renders a consideration of the third unnecessary.

Relative to appellant’s first contention, on July 30, 1973 the parties entered into an amicable agreement which was reduced to writing in the form of a notarized affidavit by the wife, who was a qualified school teacher. Her affidavit states she agrees to accept increased monthly alimony of $375 and monthly child support of $375 for eighteen months so that she could attend graduate school and obtain her Ph.D., thus increasing her earning capacity. She acknowledged that, absent the agreement, she would not be entitled to the $750 monthly alimony and child support. In return for this overall increase for the eighteen month period, she waived all of her rights to future alimony and child support. At the trial of the divorce action on July 30, 1973 the parties agreed to make these new awards, and the eighteen month limitation, a part of the divorce judgment. That judgment was signed the following day, July 31, 1973.

We hold the agreement is a nullity and can be given no effect. At the time it was entered into the parties were-husband and wife. With certain exceptions contained in Civil Code Article 2446, contracts between husband and wife are forbidden by Civil Code Article 1790 and alimony is not one of the exceptions to that law. As stated in Sonnikson v. Whipple, 283 So.2d 504, 505:

“Under Article 1790 of the Louisiana Civil Code, a husband and wife are incapable of contracting with one another except in certain expressly permitted matters. The exceptions are found in Civil Code Article 2446. In Russo v. Russo, 205 La. 852, 18 So.2d 318 (1944), it was held that the exceptions found in Civil Code Article 2446 do not include an authorization for the settlement of alimony rights.
The particular contract at issue herein was made a part of the pleadings. It is an agreement for alimony and child support, and so does not fall within the exception to the general rule of incapacity. Therefore, assuming the allegations of the plaintiff’s petition to be true, no action would lie on the contract as it was a nullity when entered into.”

We do agree with appellant’s second contention, that on the facts of this case the appellee is not entitled to alimony for herself. The record reveals that at the time of trial of the rule (June 6, 1975) she 'had no income because she was still attending college for the purpose of obtaining her Ph.D., which she apparently had been doing since at least 1973. She has had thirteen and one-half years experience as a school teacher and last worked in 1971 for the public schools of Orleans Parish at an annual salary of $10,400. She had worked as a teacher in that school system for the four previous years. She has a B.A. degree, a Master of Education degree and a counselor’s certificate from Southern Methodist University, and a B.A. degree from Austin College. She also took graduate work in San Diego, California. She is working on her Ph.D. at North Texas College.

Thus, insofar as is shown by the record now before us, other than the fact that she attends college full time there is no reason why the appellee should not be able to work as a school teacher, employment for which she is fully qualified and employment sufficiently remunerative for her support. The question thus presented is whether she has “sufficient means for her support” as those words are used in Civil Code Article 160, i.e., whether her former husband can be required to pay alimony because she unreasonably refuses to work and support herself. Our consideration of this question makes necessary an examination and comparison of Civil Code Articles 148 and 160. The former is our only civil law providing for alimony pendente lite, and the latter is our only law providing for alimony after divorce.

Civil Code Article 148 reads:

“If the wife has not a sufficient income for her maintenance pending the suit for separation from bed and board or for divorce, the judge shall allow her, whether she appears as plaintiff or defendant, a sum for her support, proportioned to her needs and to the means of her husband.” LSA-C.C. Art. 148. (emphasis ours).

Civil Code Article 160 reads:

“When the wife has not been at fault, and she has not sufficient means for her support, the court may allow her, out of the property and earnings of the husband, alimony which shall not exceed one-third of his income when:
1. The wife obtains a divorce;
2. The husband obtains a divorce on the ground that he and his wife have been living separate and apart, or on the ground that there has been no reconciliation between the spouses after a judgment of separation from bed and board, for a specified period of time; or
3. The husband obtained a valid divorce from his wife in a court of another state or country which had no jurisdiction over her person.
This alimony shall be revoked if it becomes unnecessary, and terminates if the wife remarries.” LSA-C.C. Art. 160. (emphasis ours).

Our jurisprudence is replete with decisions concerned with the differences between the two articles. Generally, alimony pendente lite is a judicial enforcement of the husband’s obligation under Civil Code Article 120 to support the wife during the existence of the marriage, an existence which does not terminate until the marriage is dissolved either by death or divorce. If the husband’s “means” are sufficient therefor, such alimony is ordered in an amount sufficient to maintain the wife in a style comparable to that which she enjoyed prior to the separation; even though she is capable of earning an income and has done so in the past, the wife, nontheless, is entitled to alimony pendente lite and she is not required to obtain employment to support herself; but if she chooses to earn her own living, or a part thereof, she is denied alimony to the extent of her earnings. Of particular interest here is the fact that the husband cannot escape liability for alimony pendente lite by refusing to work. We note that in Bowsky v. Silverman, 184 La. 977, 168 So. 121, a case involving alimony pendente lite, the court said:

“Nothing is said in this article [Civil Code Art. 148] about the income or earnings of the husband. While the separation or divorce proceedings are pending, the Code says that the husband must pay for the support of his wife out of his ‘means.’ The word ‘means’ as used in this article refers to the husband’s resources and not necessarily to his income. His ‘means’ may consist either of property of a physical character, frequently referred to as assets, or it may consist of income from such property or income from labor or services performed. The word ‘means? as used in this article of the Code, signifies any resources from which the wants of life may be supplied.” (Emphasis ours).

In some respects alimony after divorce is quite different from alimony pen-dente lite. Our long established jurisprudence is that alimony under Civil Code Article 160 is in the nature of a pension or a gratuity, obtainable by the former wife only when she has not been at fault and when she has not sufficient means for her support. Such alimony after divorce is not awarded in an amount sufficient to support the former wife in the manner in which she is accustomed to live; it is awarded in an amount sufficient to provide for her maintenance, which includes food, clothing, shelter and other basic necessities; and she has the burden of establishing her necessitous circumstances.

As we have pointed out, our only law providing for civil alimony is contained in Civil Code Articles 148 and 160. Thus, every judicial civil alimony determination and action must be made with due regard to those articles and must come within their wording and intent. This requirement is applicable to our established jurisprudence that the husband cannot escape liability for alimony pendente lite by refusing to. work, a conclusion which must find support in Article 148.

Where is such support to be found in Article 148? We find only one source, the word “means” which only appears in the last portion of the article, “proportioned to her needs and to the means of her husband.” (emphasis ours). If the ability to work and earn an income is not included in the “means” of the husband, such ability to work could not be considered in the alimony determination and the husband could not be required to obtain employment.

In pertinent part Article 160 provides: “When the wife has not been at fault and she has not sufficient means for her support, . . . ” (emphasis ours). Thus, the same word, “means”, is used in the same manner in both articles, the only difference being that in Article 148 the reference is to the husband’s “means”, while in Article 160 the reference is to the wife’s “means”. We note that the word we are discussing appears in the same context in Article 148 prior to its 1928 amendment and in the corresponding Articles 146 and 12 of the Civil Codes of 1825 and 1808, and in Article 160 as amended in 1916, 1928, 1934 and 1964; the Civil Codes of 1825 and 1808 contained no corresponding article to Article 160 of the Revised Civil Code of 1870.

We know of' no valid reason why the word should receive one interpretation in one of the articles and another interpretation in the other article. If the word as used in Article 148 includes the ability to work and earn an income, and we are satisfied our jurisprudence is to that effect, it should received the same interpretation in Article 160. Accordingly, we hold that as contained in Article 160 the word “means” includes the divorced wife’s capability of working and supporting herself. Each case, of course, must be decided on its own facts.

As the record in the instant case does not reveal that work is in fact available to Mrs. Ward, and as the burden is upon her to show such unavailability, apparently a burden of which she could have been unaware at the time of the trial of her rule, we remand to give her the opportunity of carrying that burden.

For the reasons assigned, the judgment appealed from is affirmed insofar as the same applies to child support and annulled and set aside insofar as it applies to alimony for Mrs. Ward. The matter is remanded to the trial court for the purpose of giving Mrs. Ward an opportunity to show, if she can, that work is unavailable to her. All costs in both courts are to be paid by the appellant, Mr. Ward.

AFFIRMED IN PART; ANNULLED AND SET ASIDE IN PART; AND REMANDED.

GULOTTA, Judge

(concurring).

I concur with the conclusion that the wife’s capability to earn income (depending on the circumstances in each case) should be considered in determining whether the wife has “sufficient means for her support’’ under LSA-C.C. art. 160. Limited to the facts in the instant case, I concur in the result.

ON APPLICATION FOR REHEARING

PER CURIAM.

Our opinion m this matter may give the impression that the only consideration involved in answering the question of whether or not the divorced wife must support herself when she is capable of doing so is the availability of work. .The impression may result from the fact that, as shown by the record, this did appear to be the only consideration in the instant case and our opinion was written accordingly. However, it was not our intention to thus limit the considerations.

There may be many valid and compelling reasons why a divorced wife could not accept available work she is capable of performing. As one obvious example, she may not be able to do so if she is required to stay at home to care for the small children of the marriage. Each case, as we have said, must be decided on its own facts.

Accordingly, our original decree is now amended and recast so as to read as follows :

“For the reasons assigned, the judgment appealed from is affirmed insofar as it applies to child support and annulled and set aside insofar as it applies to alimony for Mrs. Ward. The matter is remanded to the trial court for the purpose of giving Mrs. Ward an opportunity to show, if she can, either that work is unavailable to her or that, if available, there is a compelling reason which prevents her from accepting the employment.”

As we adhere to our original opinion, the application for rehearing is refused.

REHEARING REFUSED.

GULOTTA, J., concurs.

GULOTTA, Judge

(concurring).

I concur.

      .“A contract of sale, between husband and wife, can take place only in the three following cases:
      1. When one of the spouses makes a transfer of property to the other, who is judicially separated from him or her, in payment of his or her rights.
      2. When the transfer made by the husband to his wife, even though not separated, has a legitimate cause, as the replacing of her dotal or other effects alienated.
      3. When the wife makes a transfer of property to her husband, in payment of a sum promised to him as a dowry.
      Savings, in these three eases, to the heirs of the contracting parties, their rights, if there exist any indirect advantage.” LSA-C.C. Art. 2446.

      . “Besides the general incapacity which persons of certain descriptions are under, there are others applicable only to certain contracts, either in relation, to the parties, such as a husband and wife, tutor and ward, whose contracts with each other are forbidden; . . . ” LSA-C.C. Art. 1790.

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

      . Murphy v. Murphy, 229 La. 849, 87 So.2d 4; Eals v. Swam, 221 La. 329, 69 So.2d 409; Chauvin v. Chauvin, La.App., 282 So.2d 869.

      . Bilello v. Bilello, 240 La. 158, 121 So.2d 728; Hillard v. Hillard, 225 La. 507, 73 So.2d 442; Bloodworth v. Bloodworth, La.App., 306 So.2d 812; Dunn v. Dunn, La.App., 303 So.2d 580; Street v. Street, La.App., 205 So.2d 839; Small v. Small, La.App., 173 So.2d 854.

      . Zaccaria v. Beoubay, 213 La. 782, 35 So.2d 659; Rakosky v. Rakosky, La.App., 275 So.2d 421; Viser v. Viser, La.App., 179 So.2d 673.

      . Frederic v. Frederic, La., 302 So.2d 903; Bernhardt v. Bernhardt, La., 283 So.2d 226; Hays v. Hays, 240 La. 708, 124 So.2d 917; Brown v. Harris, 225 La. 320, 72 So.2d 746; Sarpy v. Sarpy, La.App., 323 So.2d 851; Hughes v. Hughes, La.App., 303 So.2d 766; Chandler v. Chandler, La.App., 297 So.2d 257; Latour v. Guilbean, La.App., 256 So.2d 731; Powell v. Mattyle, La.App., 231 So.2d 460.

      . Vicknair v. Vicknair, 237 La. 1032, 112 So.2d 702; Stabler v. Stabler, 226 La. 70, 75 So.2d 12; McAfee n. McAfee, 249 So.2d 348; Doughty v. Doughty, La.App., 244 So.2d 86.

      . See “History and Text of Former Codes” under LSA-C.C. Arts. 148 and 160.


source: Caselaw Access Project

author: REDMANN, Judge.

license: Public Domain

text:
    Clifford F. FAVROT, Jr. v. Katherine Boulet BARNES.
    No. 7313.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 18, 1976.
    Writ Granted July 2, 1976.

      Maurice R. Franks, New Orleans, for plaintiff-appellant.
    D. Douglas Howard, Jr., Rudman & Howard, New Orleans, for defendant-appellant.
    Before REDMANN, BOUTALL and SCHOTT, JJ.
   REDMANN, Judge.

An ex-husband appeals from an alimony-award as unwarranted and, alternatively, excessive. Because this court en banc has today decided that an ex-wife must show circumstances which make her unable to support herself by working before she can obtain post-divorce alimony, Ward v. Ward, La.App.1976, 332 So.2d 868, we remand to allow the parties to present evidence on this point.

Entitlement

This prospective husband and wife, in middle age, had each been married before. They executed a pre-marital agreement stipulating separateness of property. We first reject the husband’s argument that the agreement’s waiver by each of every “claim to the property” of the other in case of divorce or death is a waiver of alimony. If public policy were to allow such a waiver, this agreement does not constitute one. Alimony to a divorced wife is not a “claim to the property” of the husband; it is a claim against the husband, limited by his “income”, C.C. 160.

The spouses had other pre-marital discussions in which, at the husband’s instance, they agreed to limit sexual intercourse to about once a week. The husband asserts, as divorce-causing fault, that the wife did not keep this agreement but sought coitus thrice daily. The wife testifies she kept their agreement despite her frustration at not being “permitted” at other times even to touch her husband.

We reject the view that a premarital understanding can repeal or amend the nature of marital obligations as declared by C.C. 119: “The husband and wife owe to each other mutually, fidelity, support and assistance.” Marriage obliges the spouses to fulfill “the reasonable and normal sex desires of each other.” Mudd v. Mudd, 1944, 206 La. 1055, 20 So.2d 311. It is this abiding sexual relationship which characterizes a contract as marriage, Phillpott v. Phillpott, La.App.1973, 285 So.2d 570, writ refused La.App., 288 So.2d 643, rather than, e. g., domestic employer-employee, or landlord-tenant. Persons may indeed agree to live in the same building in some relationship other than marriage. But that is not what our litigants did. They married.

The law does not authorize contractual modification of the “conjugal association” except “[i]n relation to property,” C.C. 2325. C.C. 2327 prohibits alteration of marriage like that agreed to here which the wife allegedly breached: “Neither can husband and wife derogate by their matrimonial agreement from the rights resulting from the power of the husband over the person of his wife . . . .” Nor — because the rights over the person are largely mutual, C.C. 119 and La.Const, art. 1 § 3 — can their matrimonial agreement derogate from the power of the wife over the person of her husband.

The fault here alleged by the husband is not, in law, any fault.

The husband also finds fault in the wife’s not having sufficiently disciplined her daughter' by a previous marriage. There appears to have been a personality conflict between husband and daughter, which resulted in the wife’s awesome decision to send her teen-age daughter out of her home to placate the husband. The daughter was away from home for almost all of the last year and a half of the marriage. The wife’s behavior regarding her daughter was far from fault towards the husband.

We find no fault which would defeat the ex-wife’s entitlement to alimony.

The husband further argues that the wife, who taught school before the marriage, is able to support herself and therefore is not entitled to alimony. To the extent that an ex-wife’s earnings are “sufficient means for her support”, C.C. 160, the husband cannot be required to provide alimony. Therefore an ex-wife’s quitting or refusing reasonable employment cannot oblige the ex-husband to provide her with the maintenance money that quit or refused employment would provide. Despite pre-Ward cases’ having ignored the question, the ex-wife’s burden of proving lack of means includes, at least since Louisiana’s 1974 Constitution, proving circumstances that prevent her from supporting herself by working. Louisiana law does not allow an ex-husband to escape an alimony obligation by refusing to work; Zaccaria v. Beoubay, 1948, 213 La. 782, 35 So.2d 659; Viser v. Viser, La.App.1965, 179 So.2d 673; Rakosky v. Rakosky, La.App.1973, 275 So.2d 421. Constitutional principles of justice administered without partiality, La.Const. art. 1 § 22, and against unreasonable discrimination because of sex, art. 1 § 3, oblige us to rule that an ex-wife cannot create an alimony obligation by unjustifiably refusing to work.

This new interpretation of C.C. 160, however, was not known to this ex-wife at time of trial. To reject her claim for lack of proof on this point would be unfair — just as it would be unfair to the ex-husband to hold that the wife’s passing references to unavailability of a teaching post and to an arthritis condition sufficed to prove both that the wife cannot find work as a teacher and that she physically cannot do other work. We are opposed to either affirming or reversing the grant of alimony under the circumstances, in view of the rule that a change in circumstances must ordinarily be shown in order to change an alimony fixing, Bernhardt v. Bernhardt, La.1973, 283 So.2d 226. Under C.C.P. 2164’s authority for any judgment that is just and proper on the record, we elect to remand so that the parties may introduce evidence on the wife’s ability to support herself.

Amount

Because we set aside and remand we cannot rule on the correctness of the amount fixed. We do note, however, that the husband’s argument that the alimony obligation is only for food, clothing and shelter is rejected by Bernhardt, supra.

Other

The husband sought by rule to compel the wife to sign joint income tax returns for 1972 through 1974. The rule was dismissed July 2, 1975, long after this April 4 appeal from another judgment. This is not a case of a delayed signing of an announced judgment, as in Richards v. Gettys, La.App.1976, 329 So.2d 475. This appeal was not taken from any ruling on the signing of the returns.

Set aside and remanded.


author: JONES, Judge.

text:
    David KELLY, Plaintiff-Appellant, v. MURCO DRILLING CORP. et al., Defendants-Appellees.
    No. 12899.
    Court of Appeal of Louisiana, Second Circuit.
    May 24, 1976.

      Bruscato & Loomis by Percy A. Ford, Jr., Monroe, for plaintiff-appellant, David Kelly.
    Hayes, Harkey, Smith & Cascio by David E. Verlander, III, Monroe, for Murco Drilling Corp. and Ins. Co. of North America, defendants-appellees.
    Before BOLIN, HALL and JONES, JJ.
   JONES, Judge.

This is an action for total and permanent disability benefits under the Workmen’s Compensation Act. Also sought are penalties and attorneys’ fees based upon defendants’ alleged arbitrary and capricious refusal to pay compensation.

The trial court found that plaintiff proved an accidental injury on the job, and also proved disability, but denied plaintiff’s claim for the reason that he failed to prove the accident caused his disability. We approve the trial court’s finding of the accident and disability, but disagree with the trial court’s conclusion that plaintiff failed to prove his disability was caused by the injury. We find that plaintiff proved his disability was causally related to his injury, and therefore, reverse the lower court and grant judgment for plaintiff.

Plaintiff claims that in the course and scope of his employment as a manual laborer working on his employer’s drilling rig as a tong man, he sustained an injury to his back which caused him to be thereafter permanently disabled.

The plaintiff explained that his duties required him to handle the tongs which were used to secure the drilling pipe for the purpose of tightening and loosening it as the pipe went in and out of the hole. The tongs were attached to the derrick by a cable. Plaintiff’s accident occurred on February 6, 1975 after he had put the tongs on a joint of drilling pipe as it was going into the hole. Plaintiff was bending over and putting pressure against the tongs to hold them in place. As plaintiff was in this position the driller tightened up the joint of pipe using a winch on the floor of the rig, and as this occurred, the cable attached to the tongs on one end and the derrick on the other suddenly .became taut. As the slack was suddenly pulled from the cable, which was to the rear of plaintiff as he was bending over holding the tongs in place, it slapped or struck plaintiff across the low back. One of plaintiffs co-workers, John C. Ramsey, testified he observed the cable slap plaintiff’s back at about the belt line. The co-worker indicated plaintiff made no immediate complaint of pain, and while he observed the incident, he attached no significance thereto. The coworker testified that in the past he had the same experience with the tong cable striking him across the back, but it created only a stinging or burning sensation similar to what one would feel when being struck across the back by an open hand or a rope.

While plaintiff testified he advised his co-workers of the incident, and told them his back hurt because of this incident on the date of the accident, all of the coworkers denied this conversation took place.

There is evidence that on Sunday night, February 9, three days after the accident, plaintiff called his foreman, R. L. Brant-ley, and told him he was sick in bed with the flu and intended to remain at home the following week. This conversation was admitted by Brantley. Plaintiff testified he also told Brantley that he was having soreness in his back at the time of this conversation; however, Brantley denied this. Plaintiff testified later in the week his back pain became more severe and on Sunday night, February 16, he called Mr. Brantley, told him he had hurt his back and needed to go to a doctor, and Mr. Brantley referred him to Dr. Carlton Kemp. Mr. Brantley admits the totality of this conversation, and prepared and filed an accident report based thereon.

On February 17, 1975 plaintiff went to Dr. Kemp with a complaint of back pain and gave a history of sustaining an accident to his back in an oil field accident on February 6, 1975. Upon examination, Dr. Kemp found plaintiff had a severe contusion of the low back at the right lumbar area with marked muscle spasm. Dr. Kemp prescribed muscle relaxants, pain relievers and heat, advised plaintiff to limit his activities and report back one week later.

Dr. Kemp testified as to the results of his examination as follows:

A. I found him to have a very severe contusion of the low back especially in the right lumbar area, with marked muscle spasm, tenderness, etc. He was given muscle relaxant and a pain reliever, advised to limit his activities, use heat and return to the office in one (1) week.
Q. Now how could such a contusion take place, or someone incur this particular type of injury?
A. From a severe blow, or a fall, or any traumatic type of experience.

It is extremely important to recognize that plaintiff had been at home in bed with the flu for the week intervening between his accident and the examination by Dr. Kemp. There is therefore not the slightest reason to believe there was any likelihood of plaintiff sustaining some new injury during that period of time which could have brought about muscle spasm found in his back by Dr. Kemp.

Dr. Kemp saw plaintiff again on February 25, at which time plaintiff felt good and wanted to return to work. Dr. Kemp released him to do so.

A careful reading of Dr. Kemp’s testimony concerning this visit reveals a possibility that he performed no examination on plaintiff at the time of this visit, but merely released him, based on plaintiff’s representation that he felt good and wanted to go back to work:

Q. The last time that you saw Mr. Kelly, what was your prognosis for him at that point ?
A. Excellent, the patient stated he had no problems whatsoever and he had a full range of motion, and wished to be released, and of course, I did release him. (Emp. added)

Plaintiff attempted to return to work but was advised by his employer that he had been replaced.

On March 3, approximately a week after he had last seen Dr. Kemp, plaintiff still had back discomfort and attempted to locate Dr. Kemp for additional treatment and when he was unable to do so, he went to Dr. Kemp’s former partner, Dr. George Wright.

Dr. Wright’s testimony reflects at the time of his examination plaintiff complained of back pain and gave a history of injury to his back on February 6 when struck across the back with a cable when the slack was pulled out. Dr. Wright’s examination revealed plaintiff had discomfort in the back upon manipulation, with some soreness upon palpation. He diagnosed plaintiff’s injury as musculo-ligamentous strain. Dr. Wright’s examination one month post-accident, revealed subjective findings compatible with disability. These findings are substantiated by Dr. Kemp’s objective findings of muscle spasm on February 17,1975.

Dr. Wright continued the medication previously prescribed by Dr. Kemp. Plaintiff was next examined by Dr. Wright on May 15, 1975, at which time the doctor found muscle tightness in plaintiff’s back, and he next saw plaintiff on June 6 when he found some splinting of back muscles and back discomfort upon manipulation. At this point Dr. Wright observed it had been four months since plaintiff’s injury without his condition seeming to improve, and he made an appointment for the plaintiff to be examined on July 17, 1975 by Dr. Roy Ledbetter, Jr., an orthopedic surgeon in Monroe. The evidence reveals Dr. Wright prescribed, ultrasonic treatments for plaintiff, and that he received these in Dr. Wright’s office on the following dates: June 6, 16; July 10, 19, 28; August 22, 29, and September 18.

Dr. Ledbetter’s testimony reflects he saw plaintiff on July 17, 1975 and was advised by plaintiff that he injured his back on a drilling rig when he was struck across his back by a cable on February 6, 1975, and that he had continuously had pain in his low back following this injury. Dr. Led-better performed a routine orthopedic examination of plaintiff’s back which was negative with the following 2 exceptions: (1) Dr. Ledbetter found some tenderness at the lumbosacral joint about at the belt line level in the mid-line of the back, extending towards the right buttock; (2) upon performing the pelvic rocking test, that is, acute flexion of the knees and hips upon the trunk with the back placed in a rocking position, this produced some lum-bosacral discomfort.

Dr. Ledbetter’s diagnosis following examination was that plaintiff sustained a contusion as a result of the blow to the back which was resolving satisfactorily. The doctor at this time expressed the opinion that plaintiff would become asymptomatic in an additional six weeks, and that during this interval he could perform his normal activities with the exception of heavy-type activities.

Following Dr. Ledbetter’s examination of July 17, plaintiff was re-examined on August 29, 1975 by Dr. George Wright who at the time of this examination found plaintiff complaining of numbness in the right leg and also found an equivocal straight leg raising test. Based upon these findings, he re-scheduled plaintiff for another examination by Dr. Ledbetter on September 18, 1975. On this date Dr. Led-better’s examination evidenced an equivocal positive sciatic stretch test and diminished knee-jerk test. Dr. Ledbetter felt plaintiff’s condition might have been worse at the time of the second examination than the first, and therefore ordered a myleo-gram performed on plaintiff which was carried out in the St. Francis Hospital October 7, 1975. This test was essentially normal but did indicate an equivocal finding of disc pathology at the L-4-5 disc space. This was reported by the radiologist who performed the myleogram and his opinion was corroborated by Dr. Ledbet-ter’s review of the films.

Dr. Ledbetter then re-examined plaintiff on October 16 and continued to find a diminished knee-jerk and equivocal sciatic stretch test. Following this examination Dr. Ledbetter continued to feel that the proper diagnosis of plaintiffs injury was that of a lumbar strain. He recognized, however, that the equivocally positive physical tests (sciatic stretch test and knee-jerk test) and the equivocally positive my-leogram made him feel there was a possibility of nerve root irritation which is often indicative of disc pathology. He felt plaintiff’s disability would resolve without surgery but recommended he remain under his observation and off from work, and limit his motion and activities. He declined to express an opinion as to duration of disability or percentage of permanent disability at that time. He considered there would be some period of time which would necessarily have to elapse before plaintiff would be able to return to work.

The trial court in disallowing compensation, relied on the Louisiana Supreme Court decision of Prim v. City of Shreveport, 297 So.2d 421 (La.1974). The facts in Prim were to the effect that plaintiff, who was employed by the city as a laborer, sustained a minor injury to his left leg when he slipped on a rock. He administered first aid to his leg and continued to work. Two weeks following this injury plaintiff’s leg became painful (it was disputed as to. whether this occurred when he was on the job) and he was carried to a physician who diagnosed plaintiff’s condition as a stroke which created paralysis in his left leg and drawing of his mouth on the left, which stroke was caused by abnormally high blood pressure. On trial of the case the sole medical witness testified that the injuries to plaintiff’s left leg 2 weeks prior to the stroke could not have passed a blood clot into the brain. He attributed the stroke to hypertension. The court found there was no causal relation between the minor leg injury and the stroke, and found the evidence otherwise insufficient to show that the stroke was work-commenced.

It was conceded that Prim was totally and permanently disabled as a result of the stroke, but there was no evidence he had any disability following the leg injury and no evidence that the injury to the leg caused the stroke. The Supreme Court, in approving the decision of the trial court denying recovery, which had been affirmed by the Second Circuit Court of Appeal, held that compensation claimants have the burden of proof to establish that there is a causal relationship between the disability and the employment accident, and that Prim failed to meet this burden of proof. We quote from that decision on this point:

Although procedural rules are construed liberally in favor of workmen’s compensation claimants, the burden of proof, by a preponderance of the evidence, is not relaxed. Thus, the testimony as a whole must show that more probably than not an employment accident occurred and that it had a causal relation to the disability. If the testimony leaves the probabilities equally balanced, the plaintiff has failed to carry the burden of persuasion. Likewise, the plaintiff’s case must fail if the evidence shows only a possibility of a causative accident or leaves it to speculation or conjecture. Id. p. 422.

The trial court cited the above quoted language from Prim in its reasons for judgment wherein the trial court found that plaintiff established there was an accident but held he did not sustain the burden of proving it caused his disability.

We find the Prim case inapplicable to the instant case for the reason that plaintiff Kelly established disability flowing from his back injury of February 6, 1975. At the time of Dr. Kemp’s examination, approximately 10 days post-accident, the physician found muscle spasm in the back and gave a diagnosis of severe contusion of the low back and stated it could have been caused by any type of traumatic experience as a blow across the back by a cable. Dr. Kemp further recommended limitation of activity to plaintiff at the time of the examination. There was never any proof in Prim of disability flowing from the leg injury. Rather, the court found the leg injury had nothing to do with the disability which followed the occurrence of the stroke.

Plaintiff Kelly was seen by three physicians, had an extensive series of examinations and treatments from February 17, 1975 until the date of trial when he was still under the observation and treatment of Dr. Roy Ledbetter. He complained to each of his physicians of back pain, gave each a history of being injured when he was struck across the back with a cable.

An analysis of the record reflects the following chronological medical events which occurred to plaintiff in connection with the treatment to his back injury of February 6, 1975:

Initial exam by Dr. Kemp Feb. 17, 1975
Second exam by Dr. Kemp Feb. 25
First exam by Dr. Wright, who was seen because of the unavailability of Dr. Kemp) March 3
Second exam by Dr. Wright May 15
Third exam by Dr. Wright June 6
Ultrasonic treatments by Dr. Wright's office June 6, 16; July 10, July 19, 28; Aug. 22; and September 18
Initial exam by Dr. Ledbetter July 17
Fourth exam by Dr. Wright Aug. 29
Second exam by Dr. Ledbetter Sept. 18
Admission to hospital Oct. 6
Myieogram test Oct. 7
Dismissal from hospital Oct. 8
Exam by Dr. Ledbetter Oct. 16

There is no evidence in the record which would in the slightest indicate plaintiff could not have sustained as a result of his accident, when struck across the low back with a cable, the injury diagnosed by Dr. Kemp as a severe contusion of the low back; an injury diagnosed by Dr. Wright as a musculo-ligamentous strain, or an injury diagnosed by Dr. Ledbetter as a contusion as the result of a blow to the back which was resolving satisfactorily, based on his examination of July 17, 1975, or his primary diagnosis following his 3 examinations and the myieogram of lumbar strain. In fact the entire tenor of medical evidence is that the diagnosis of the various physicians set forth was based on a back injury caused as a result of a cable striking j>laintifffs back. Dr. Kemp said any type of traumatic experience could have caused the severe contusion of the low back he found.

Dr. Ledbetter was given the cable across the back description for the accident at the time of his first examination. After his first examination he gave his diagnosis of a contusion as a result of this blow to the back as described in the history given him by plaintiff, and felt that he had probably sustained a contusion which was resolving satisfactorily:

* * * he had sustained a contusion as a result of this blow to the back, as he described * * * by history, and I felt that he had probably sustained a contusion, and that this was resolving satisfactorily.

Dr. Wright was given the cable across the back description at the time of his initial examination and expressed the opinion : He incurred a contusion.

With regard to the issue of whether the disability was caused by the accident, there is in the record extensive testimony from Dr. Ledbetter to the effect that it was extremely unlikely that the direct blow described by plaintiff from a cable across his back could have caused a protruded disc. However, Dr. Ledbetter acknowledged there was a remote possibility that a comparatively insignificant traumatic event could cause injury which would cause a disc to commence degenerating and several months after there would be evidence of nerve root irritation. It must be remembered that Dr. Ledbetter did not believe plaintiff sustained a disc injury but rather believed that his disability flowed from a musculo-ligamentous strain and at no point expressed the opinion that the direct lick could not have caused this type injury, but rather expressed an opinion that plaintiff sustained a contusion based upon the history given to him by plaintiff.

The facts in Johnson v. Travelers Insurance Company, 284 So.2d 888 (La.1973) indicates that plaintiff therein had a history of medical findings bearing substantial similarity to those of Kelly’s. Plaintiff Johnson sustained his injury on July 16, 1970 and was examined on that date, found to have a mild pain to touch in the sacroiliac area, and his condition was diagnosed as a sacroiliac sprain. One week after plaintiff’s back injury his physician found no limitation of motion and expressed the opinion that the plaintiff would recover with no residual disability. The plaintiff was examined by another physician on August 13, and August 20, 1970, who diagnosed his condition as lumbosacral strain and permitted him to return to light work, and this physician on October 24, 1970 said he was able to resume full work. On September 4, 1970 plaintiff was examined by an orthopedic physician who diagnosed his injury as strain and contusion of the lower back, hypertrophic arthritic changes of the lumbar spine and degenerative disc disease of the lumbosacral area and was found to be disabled. This same physician re-examined plaintiff on September 11 and found range of motions complete with no muscle spasm, and again re-examined him on September 18, 1970 and released him to resume work. Finally in October, upon reexamination, this physician found plaintiff disabled, and in November upon re-examination of plaintiff, he advised him to resume work. In December this same orthopedist found plaintiff disabled.

The defendant argued that because of some intervening work activity that plaintiff had engaged in subsequent to his initial accident that he failed to prove that the final determination of disability was causally related to the July 16 accident, and further argued that the plaintiff’s disability was due to his arthritic condition which was in no way work-related. The Supreme Court, while recognizing the general rule that a plaintiff must establish the causal relationship between the accident and his disability by a preponderance of evidence, held that the Johnson case fell within an exception to that rule, which was set forth in the opinion as follows :

In Bertrand v. Coal Operators Casualty Co., 253 La. 1115, 221 So.2d 816 (1969), we stated:
“In a case such as the present one, where there is proof of an accident and of a following disability without any intervening cause, it is presumed that the accident caused the disability.” Id. p. 891.

The court recognized that the plaintiff Johnson had established an on-the-job accident on July 16, 1970, ensuing disability with no intervening cause and therefore held his subsequent disability flowed from his proven on-the-job injury.

We hold that plaintiff Kelly in the instant case has established an accidental injury to his back by being struck across it with a cable causing injuries to the muscles of his back creating disability that has continued from its inception to the trial date and thereafter for an uncertain period of time.

The evidence strongly reflects that a disc injury would have been unlikely to have resulted from the accident described and proven by plaintiff. There was no intervening cause between plaintiff’s accident and his disability. In the event that plaintiff’s disability is the result of disc pathology, then the presumption relied upon in the Johnson case would be applicable to establish that plaintiff’s disability resulted from his accident.

We do not feel that defendants were arbitrary and capricious in their refusal to pay plaintiff benefits to which he is entitled under the Louisiana Workmen’s Compensation Law because of the serious factual questions involved in the validity of his claim, and for these reasons plaintiff’s demand for attorneys’ fees and penalties are rejected.

For the reasons assigned, the judgment of the district court is reversed, and there is judgment herein in favor of plaintiff, David Kelly, against Murco Drilling Corporation and Insurance Company of North America, in solido, for workmen’s compensation at the rate of $65 per week commencing February 6, 1975 for a period not exceeding 500 weeks with legal interest on each installment from date due until paid, and for the further sum of $525.44 as medical expenses, plus legal interest thereon from date of judicial demand until paid, and for all costs of this suit.

Judgment reversed and rendered.


text:
    William D. NICHOLS, Administrator, Plaintiff-Appellant, v. LIFE INSURANCE COMPANY OF LOUISIANA et al., Defendants-Appellees.
    No. 12900.
    Court of Appeal of Louisiana, Second Circuit.
    May 24, 1976.
    Sonny N. Stephens, Winnsboro, for appellant.
    Nelson & Achee, Ltd., by Dale G. Cox, Shreveport, Pipes & Pipes, by William F. Pipes, Jr., Monroe, for appellees.
    Before BOLIN, HALL and JONES, JJ.
   JONES, Judge.

The Administrator of the succession of Oscar Nichols sued to recover the amount of life insurance policies in force at the time of Nichols’ death. The insurance companies defended on the basis of policy clauses relieving them of liability when death results from suicide within one year after the date of the policies. After a trial on the merits, the trial court held that defendants proved that decedent committed suicide and rejected plaintiff’s demands. Plaintiff appealed.

MOTION TO DISMISS APPEAL

Defendants-appellees filed motions to dismiss plaintiff’s appeal for failing to comply with increased appeal bond requirements imposed by the trial court. A chronology of events leading to the filing of the motion to dismiss follows:

December 11, 1975. Judgment rendered, read and signed in open court. . Counsel for plaintiff moved for orders of devolu-tive appeal which were granted, returnable on or before February 9, 1976. Bond fixed at $2,000.
January 23, 1976. On motion of attorney for plaintiff, the bond heretofore fixed in this case reduced by the court to $500. $500 cash bond posted with the Clerk of Court.
January 30, 1976. Transcript lodged in the Court of Appeal.
March 5, 1976. Rule filed by Ford Life Insurance Company in district court to increase the appeal bond to the sum of $1,000, alleging the reduction to $500 was done without notice to defendant and that the $500 bond is insufficient to cover costs. Rule issued to plaintiff to show cause why the bond should not be increased to the sum of $1,000.
March 15, 1976. Rule to show cause heard and judgment rendered increasing the devolutive appeal bond to the sum of $2,000.
March 18, 1976. Judgment on the rule read, signed and filed in open court.
March 29, 1976. Motion to dismiss appeal filed on behalf of Ford Life Insurance Company. March 31, 1976. Motion to dismiss filed on behalf of Life Insurance Company of Louisiana.
April 8, 1976, Supplemental transcript showing the proceedings on the rule to increase bond filed in the Court of Appeal under certificate of the Clerk of Court dated March 29, 1976. The supplemental transcript does not show the filing of any additional bond.

The principal question before the court is whether or not the district court lost its jurisdiction in this matter once the appeal was perfected to this court and the record lodged in this court. If the lower court did not have jurisdiction, it could not revise the bond for the devolutive appeal from $500 to $2,000.

Article 2088 of the Code of Civil Procedure provides in pertinent part as follows :

The jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested, and that of the appellate court attaches, on the timely filing of the appeal bond, or if no bond is required, on the granting of the order of appeal. Thereafter, the trial court has no jurisdiction over these matters except to:
* * * * * *
(5) Test the solvency of the surety on the appeal bond as of the date of its filing or subsequently, consider objections to the form, substance, and sufficiency of the appeal bond, and permit the curing thereof, as provided in Articles 5123, 5124, and 5126. .

Article 2124 of the Code of Civil Procedure provides that the security to he furnished for a devolutive appeal shall he fixed by the trial court at an amount sufficient to secure the payment of costs. Pursuant to Article 5123 of the Code of Civil Procedure, defendants ruled plaintiff into court to show cause why the $500 bond should not be decreed insufficient to support the devolutive appeal. After a hearing on the rule, the trial court increased the bond to $2,000.

Article 5124 of the Code of Civil Procedure provides:

Within four days, exclusive of legal holidays, of the rendition of judgment holding the original bond insufficient or invalid, or at any time if no rule to test the original bond has been filed, the party furnishing it may correct any defects therein by furnishing a new or supplemental bond, with either the same surety if solvent, or a new or additional surety . . .

Since the original appeal bond in the instant case was held to be insufficient, plaintiff then had four days to cure this defect.

The trial court action in decreeing the bond insufficient was within its power and jurisdiction under Article 2088. Appellant had sufficient time and notice to cure the defects in the original appeal bond. He failed to do so. Since the insufficient and defective bond was not cured by the furnishing of a new or supplemental bond, the appeal of plaintiff must be dismissed. Bouillion v. Bank of Commerce and Trust Company, 181 So.2d 322 (La.App.3d Cir. 1965). See also Bertrand v. Home Indemnity Company, 202 So.2d 670 (La.App. 3d Cir. 1967); Meyers, Whitty & Hodge, Inc. v. Popich Marine Construction, Inc., 143 So.2d 739 (La.App., 4th Cir. 1962).

The devolutive appeal of William D. Nichols, Administrator, is hereby dismissed, set aside and dissolved.

Motion to dismiss appeal granted.

      . We assume, without deciding, that the ex parte reduction of the bond from $2,000 to $600 by the trial judge on motion of plaintiff was not in violation of LSA-C.C.P. art. 963.


author: BOLIN, Judge.

text:
    W. C. BAUMANN, Plaintiff-Appellant, v. Herman FIELDS, d/b/a Herman Fields Pump & Supply Company et al., Defendants-Appellees.
    No. 12927.
    Court of Appeal of Louisiana, Second Circuit.
    May 24, 1976.
    Whitmeyer & Rubenstein by Alex Rub-enstein, Shreveport, for plaintiff-appellant.

      Cook, Clark, Egan, Yancey & King by Edwin L. Blewer, Jr., Shuey, Smith & Carlton by John M. Shuey,. Shreveport, for defendants-appellees.
    Before BOLIN, HALL and MARVIN, JJ-
   BOLIN, Judge.

W. C. Baumann, judgment debtor, sued to annul the judicial sale of his property under a writ of fieri facias. Made defendants were the seizing creditor, Herman Fields, the succession of his deceased wife, Sheriff James M. Goslin, and James M. Greene, Chief Civil Deputy Sheriff. Defendants filed exceptions of no right and no cause of action and also moved for a summary judgment. The trial court sustained the exceptions and granted the summary judgment. Baumann appeals and we affirm the summary judgment.

The principal issue on appeal is whether certain alleged irregularities in the appointment of appraisers for the property present a genuine issue of material fact which would preclude summary judgment.

By original and supplemental petitions, plaintiff alleged the sale should be annulled for the following reasons:

6.
That plaintiff, Herman Fields d/b/a Herman Fields Pump and Supply Co. in said cause appointed John M. Shuey as its appraiser who, according to the appraisal sheet filed in said suit appraised said property at $5,300.00.
7.
That W. C. Baumann, defendant in said suit appraised the property in said suit at a value of $12,000.00.
8.
That based upon information and belief, plaintiff alleges that the Sheriff of Cad-do Parish failed to appoint a third appraiser for the above described property in the above described sale pursuant to R.S. 13:4365, having previously improperly appointed C. W. Brumley as either appraiser for the Sheriff or for defendant.
9.
That said property was sold for two-thirds (%) of the appraisal of plaintiff.
10.
That said appraisal and sale price did not reflect the true value of the leases, oil, and land sold.

Defendants filed exceptions of no right and no cause of action but prior to the disposition of these exceptions they filed a motion for a summary judgment. Attached to the motion for summary judgment were copies of the appraisal sheet and a document showing the total sale price and disposition of the funds. Also attached to the motion were depositions of James H. Greene, civil deputy sheriff, and appraisers C. W. Brumley and John M. Shuey.

Plaintiff’s attorney filed a response to the motion for summary judgment wherein it is stated among other things:

In short, the ultimate question to be decided by this Court is whether or not the proper procedures were adhered to in the sale of plaintiff’s property. Plaintiff contends these procedures were not followed nor were the plaintiff in the original action and the third “appraiser” proper values. Of key importance is the question of when plaintiff actually appraised the property with defendants contending plaintiff’s appraisal was not in time, as is the question of just what role Mr. Brumley played.

Attached to the response was an affidavit of plaintiff wherein he stated:

That he is the plaintiff in the above and foregoing proceeding, that he signed the appraisal sheet after Mr. Brumley had been appointed to appraise the property; that Mr. Brumley was not appointed to appraise the property because of a dispute in appraisal values; that he timely signed said appraisal in the presence of Jim Greene and one other witness; and that at the sale of said property Jim Greene refused to accept petitioner’s bid of $5,000.00.

Based upon the pleadings and documents heretofore outlined, the case was submitted for disposition on the motion for summary judgment.

The motion for summary judgment shall be rendered “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law”. Louisiana Code of Civil Procedure Article 966.

In his reasons for judgment the trial judge correctly set forth the facts relevant to the motion for summary judgment:

“The facts from the records, affidavit and depositions are that although the proper notices were given by the Sheriff to the parties to appoint appraisers, the plaintiff herein indicated to the Chief •Civil Deputy that he would not appraise the property. The Chief Civil Deputy was therefore faced with the problem that either the debtor would not appoint an appraiser, in which case he would be required to appoint an appraiser for him, or that the debtor would make an appraisal at the last moment varying from the appraisal made by the appraiser for the seizing creditor. The Chief Civil Deputy therefore appointed C. W. Brum-ley, who from the record was an experienced oil man, and he appraised the property. His appraisal and that of the appraiser for the seizing creditor were the same. Less than twenty-four hours before the sale, the plaintiff did come in and insisted on his right of appraisal. [Baumann contends he timely demanded his right to appraise the property]. He was granted that right, his appraisal being for Twelve Thousand Dollars ($12,000.00) as opposed to the Five Thousand Three Hundred Dollars ($5,300.00) which had been placed on it by the appraiser for the seizing creditor and the appraiser appointed by the Sheriff.
“The Chief Civil Deputy used as his basis for the sale the appraisal made by the appraiser appointed by him and the property was sold for two-thirds (2/3) of that value.
“While the appraisal sheet of the Chief Civil Deputy Sheriff shows that both the appraiser for the seizing creditor and the appraiser appointed by the Sheriff were sworn on the same date, neither has any independent recollection of the exact date on which they made their respective appraisals, and the Chief Civil Deputy has testified that it is possible that they appeared on different dates and that the date recited in the appraisal sheet may have been simply the date on which the first appeared.”

Property sold at a judicial sale under a writ of fieri facias must be appraised according to law prior to the sale. La.C.C.P. Article 2332. An official revision comment under Article 2332 states that procedures for the appointment of appraisers are set forth in the Revised Statutes. Pertinent to this case are the following sections of Title 13 of Louisiana Revised Statutes:

§ 4363.
A. Not less than three days, exclusive of holidays, before the sale of seized property, the sheriff shall serve a written notice on the debtor and on the seizing creditor, in the manner provided for the service of a citation, directing each to name an appraiser to value the property and to notify the sheriff of his appointment prior to the time stated in the notice, which shall be at least twenty-four hours prior to the time of the sale.
B. If there are two or more debtors or seizing creditors and these parties cannot agree as to which should act as or appoint an appraiser, and in any case where an appraisal is required prior to the judicial sale and which is not otherwise provided for in this Section, on the ex parte application of the sheriff or of any interested party, the court shall designate the party to act as or appoint the appraiser, and the notice required by Sub-section A of this Section shall be served on the party so designated.
§ 4364.
If a party neglects to appoint an appraiser or to notify the sheriff within the time designated, the sheriff shall appoint an appraiser for him.
§ 4365.
The appraisers shall' take an oath to make a true and just appraisement of the property.
If the appraisers cannot agree, the sheriff shall appoint a third appraiser, who shall also be sworn, and whose' decision shall be final.
The property seized must be appraised with such minuteness that it can be sold together or separately.
The appraisers shall reduce their ap-praisement to writing, sign it, and deliver it to the sheriff.

The thrust of plaintiff’s argument is that the “third appraiser” referred to in Section 4365, supra, shall be appointed only if the two other appraisers disagree. Plaintiff contends since the “third appraiser” was appointed prior to any disagreement between the parties, his appointment and therefore his appraisal were invalid. Ap-pellees on the other hand contend that since plaintiff’s and defendants’ appraisers did ultimately disagree, it was necessary for the sheriff to appoint the third appraiser and the fact that he was appointed prior to any disagreement between the parties should not invalidate his appraisal. We agree with appellees’ contentions and with the finding of the lower court “that there were no invalidities or irregularities in the sale . . . which would cause it to be null.”

During oral argument before this court counsel for appellant contended the sale should be set aside because of the statement in plaintiff’s affidavit attached to the motion for summary judgment “that at the sale of said property Jim Greene refused to accept petitioner’s bid of $5,000.” By reference to plaintiff’s pleadings, which are set forth supra, it is clear plaintiff did not allege, either directly or indirectly, that the sale should be annulled because of the failure of the deputy sheriff to accept petitioner’s bid of $5,000. Since this fact is not relevant to any of the issues framed by the pleadings, we hold it is not a material fact which would preclude summary judgment under Code of Civil Procedure Article 966.

Appellant also contends the appraisal did not accurately reflect the valuation of the property. In support of this argument he refers to Article 10 of his petition quoted supra. We find no merit in this argument. We know of no law which requires that property be sold for its true value. Plaintiff did not attack the qualifications of the appraisers nor allege any fraud in their appraisal of the property. The record is un-contradicted that Brumley and Shuey were expert appraisers.

We find the motion for summary judgment was properly sustained. Having reached this conclusion we find it unnecessary to pass upon the correctness of that portion of the judgment sustaining the exceptions of no right and no cause of action.

For the foregoing reasons the ruling of the lower court maintaining defendants’ motion for summary judgment and dismissing plaintiff’s demands is affirmed at appellant’s cost.


author: PRICE, Judge.

text:
    TOWN SOUTH ESTATES HOMES ASSOCIATION, INC., Plaintiff-Appellee, v. Gordon Rayford WALKER, Jr., Defendant-Appellant.
    No. 12903.
    Court of Appeal of Louisiana, Second Circuit.
    May 24, 1976.
    Hal V. Lyons, Shreveport, for defendant-appellant.
    Peters, Ward & Miller by Hugh T. Ward, Shreveport, for plaintiff-appellee.
    Before BOLIN, PRICE and MARVIN, JJ-
   PRICE, Judge.

Town South Estates Homes Association, Inc. brought this suit against Gordon Ray-ford Walker, Jr., for his failure to pay an annual assessment of $45.00 as required by the protective covenants affecting the subdivision in which defendant had recently purchased a residence. From a judgment in favor of plaintiff for $45.00 plus 7% interest from February 1, 1974, and $250.00 in attorney fees plus costs, defendant has taken this appeal.

The case was tried on a joint stipulation of fact. There is no dispute that there are covenants recorded in the conveyance records of Caddo Parish which provide that the purchaser of a lot in the Town South Estates Second Filing automatically becomes a member of the Town South Estates Homes Association, Inc., a corporation formed to provide maintenance, preservation, and architectural control of the residential lots and common area in the related subdivision. The covenant provides each member shall be subject to an annual assessment and that this assessment, together with interest, costs, and reasonable attorney fees is the personal obligation of the property owner upon the due date of the assessment.

Defendant purchased Lot 86 of the subdivision by deed filed on May 9, 1973, and refused to pay the assessment due January 1, 1974, which is the subject of this action.

The sole reason advanced by defendant in the district court and on this appeal why he is not liable for the assessment is that the instrument which creates the obligation is not recorded in the mortgage records of Caddo Parish and thus is not binding on third party purchasers relying on the public records. Defendant cites Blevins v. Manufacturers Record Publishing Company, 235 La. 708, 105 So.2d 392 (1958), and Pittsburg Plate Glass Company v. Woodcock, 150 So.2d 660 (La.App. 3rd Cir. 1963) in support of his argument.

These cases merely acknowledge the public records doctrine established by the case of McDuffie v. Walker, 125 La. 152, 51 So. 100 (1909), and have no factual analogy to the instant matter.

In this particular action only a personal judgment is sought against defendant under the provisions of the restrictive covenants. No lien or privilege against the immovable property purchased by him is sought. Under these circumstances, the recordation in the conveyance records only is sufficient to satisfy the requirement of notice to third parties as set forth in LSA-R.S. 9:2721.

In accord with the foregoing, we affirm the judgment appealed at appellant’s costs.


text:
    James Mitchell HALEY, Curator of Interdict, Arthur Mitchell Haley, and Sam L. Taylor, Administrator of the Succession of Mrs. Omer D. Haley, Plaintiffs-Appellees, v. J. C. CHRISTY, Sr., and Maude Taylor Christy, Defendants-Appellants.
    No. 12925.
    Court of Appeal of Louisiana, Second Circuit.
    May 24, 1976.
    Crawford A. Rose, Jr., Rayville, for defendants-appellants.
    Jesse S. Heard, Jr., Monroe, for plaintiffs-appellees.
    Before BOLIN, HALL and MARVIN, JJ-
   BOLIN, Judge.

This case having been called for argument in the manner and at - the time prescribed in the Uniform Rules of the Courts of Appeal, Rule V, Section 4, and the appellant having neither appeared nor filed a brief prior to the time the case was called for argument, the appeal is considered abandoned and is dismissed at appellants’ cost. Louisiana Code of Civil Procedure, Article 2162 and Uniform Rules, Courts of Appeal, Rule VII, Section 5(b).


author: HALL, Judge.

text:
    James Thomas HARRISON, Plaintiff-Appellee, v. S. T. McKOIN, Jr., Defendant-Appellant.
    No. 12924.
    Court of Appeal of Louisiana, Second Circuit.
    May 24, 1976.

      Kidd, Katz & Strickler, by Paul Henry Kidd, Monroe, for defendant-appellant.
    Wright & Joyce, by Patrick H. Wright, Jr., Monroe, for plaintiff-appellee.
    Before BOLIN, HALL and MARVIN, JJ.
   HALL, Judge.

Plaintiff, James Thomas Harrison, sued defendant, S. T. McKoin, Jr., for $5,766.88 due plaintiff for his harvesting 144,172 pounds of defendant’s peanuts pursuant to an oral contract. Defendant filed an exception of no cause of action which was overruled and then answered admitting the contract, but alleging plaintiff harvested only a part of the peanuts pursuant to the contract and left a part of his peanuts lying on the ground partially harvested. Defendant contended these peanuts were destroyed as a result of plaintiff’s failure to complete harvesting defendant’s field, causing defendant to .suffer a monetary loss in excess of plaintiff’s demand. Defendant demanded a trial by jury. A special verdict was returned in which the jury answered written questions submitted by the court. The verdict was in plaintiff’s favor awarding him $5,766.88 as prayed for and rejecting defendant’s claim for a set-off. Judgment was signed pursuant to the jury verdict and after denial of defendant’s motion for a new trial, defendant appealed.

On appeal, defendant urges the trial court’s judgment is incorrect for two reasons. First, defendant contends that he and his brother farmed as a partnership and plaintiff’s contract was entered into with the partnership rather than with him individually. Therefore, defendant argues, it was improper to have allowed plaintiff to sue defendant on a partnership debt without joining the partnership, citing LSA-C.C.P. Art. 737. Secondly, defendant contends the trial court’s judgment incorrectly failed to recognize his right to a set-off for the amount of loss he suffered as a result of plaintiff’s leaving a part of his peanuts on the ground.

Plaintiff alleged and testified he contracted with defendant to harvest peanuts from defendant’s land in Morehouse Parish at $.04 per pound. Defendant, making- no mention of a partnership, admitted in both his answer and a joint pretrial statement that he had so contracted with plaintiff. On trial of the case, evidence as to the existence of a partnership was objected to by plaintiff. Defendant’s counsel expressly stated in dialogue with the court that defendant was not seeking to evade liability on the partnership issue and stipulated that if plaintiff was entitled to win the lawsuit, judgment should be rendered against defendant. Defendant is bound by his judicial admission that he contracted with plaintiff and by his counsel’s stipulation and cannot now be heard to say the contract was with a partnership and not with him individually.

Plaintiff harvested, that is he dug, thrashed, and transported to an elevator, 144,172 pounds of defendant’s peanuts. These peanuts were harvested from 50 acres of defendant’s 73 acre field. Of the other 23 acres, about three were not suitable to be harvested. The peanuts growing on approximately 20 acres were dug, but not thrashed and delivered, and were left lying on the ground. Defendant’s contention is that' these 20 acres would have yielded about the same amount per acre as the acres harvested and plaintiff’s failure to harvest has cost him the value of 20 acres of peanuts which he contends is $8,262.40.

The evidence discloses that peanuts cannot be thrashed and combined while wet. During the harvesting season of 1974, there was an unusual amount of rainfall, as shown by the testimony and weather bureau records. The evidence is convincing that the peanuts which were dug but left on the ground and eventually eaten by blackbirds, could not be harvested because of wet weather. The jury’s verdict shows they believed plaintiff’s evidence that these 20 acres were not harvested because of bad weather and not because of neglect or fault on plaintiff’s part. The jury, therefore, rejected defendant’s demand for a set-off. The preponderance of the evidence clearly supports this determination.

The jury found defendant owed plaintiff $5,766.88 for 144,172 pounds of peanuts harvested at a contract price of $.04 per pound and that plaintiff did not breach his contract with defendant so as to give rise to a cause of action entitling defendant to a set-off. We agree, as the evidence strongly supports the correctness of this finding.

For the foregoing reasons, the judgment of the district court is affirmed at appellant’s costs.

Affirmed.


author: MARVIN, Judge.

text:
    Erma HENDRICKS, Plaintiff-Appellee, v. HORSELESS CARRIAGE, INC., et al., Defendants-Appellants.
    No. 12921.
    Court of Appeal of Louisiana, Second Circuit.
    May 24, 1976.

      Jerry A. Kirby, Monroe, for defendants-appellants.
    Bruscato & Loomis by Percy A. Ford, Jr., Monroe, for plaintiff-appellee.
    Before BOLIN, HALL and MARVIN, JJ.
   MARVIN, Judge.

Defendant used car dealer appeals from a judgment in a redhibitory action rescinding the sale of a used car and ordering return of the purchase price to plaintiff.

Defendant does not seriously contest the existence of latent redhibitory vices (defective brakes and transmission) but contends the purchaser expressly waived the warranty implied by law when she wrote on the bill of sale.

“I buy this car with no warranty
Mrs. Erma Hendricks”

The used car here was nine years old. It sold for $750. The defects in the braking system appeared some two weeks after the sale. We affirm the trial court.

The dealer further emphasizes that the transaction was consummated beneath a sign which was imprinted in eight inch letters:

“ALL CARS SOLD AS IS! [sic]
PLEASE TEST BEFORE BUYING”

The trial court resolved in the purchaser’s favor factual conflicts as to what was said regarding the writing of the waiver and the purchaser’s reading and understanding the sign. The lower court noted that the purchaser — a 39-year-old woman of 11 years schooling who was buying her first car — was not equal in experience to the dealer in used cars for many years.

La.'C.C. Art. 2476 imposes on the seller a warranty against hidden defects of the thing sold or its redhibitory vices. Art. 2520 states that the redhibitory vice is a vice or defect in the thing sold which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the purchaser would not have bought the thing had he known of the vice. In Richardson v. French, 253 So.2d 602 (La.App. 2d Cir. 1971) we noted that the seller warrants the thing sold is fit for the purpose intended and that this warranty could be expressly waived. See La.C.C. Arts. 2474, 2503 and cases cited in Richardson,

Our holding there has been strengthened by more recent decisions of our highest court. From these decisions and from Anderson v. Bohn Ford, 291 So.2d 786 (La.App. 4th Cir. 1974), writ denied 294 So.2d 829 (La.1974), it is established that three elements must exist béfo're a waiver is held to be effective:

(1) The waiver must be written in clear and unambiguous terms;

(2) The waiver must be contained- in the sale and chattel mortgage document; and

(3) The waiver must either be brought to the attention of the buyer or explained to him.

Here, the contended waiver was contained in the sales and chattel mortgage instrument and it was brought to the attention of the purchaser, for it was she who wrote the terms thereon. The contended waiver here does not meet the clear and unambiguous test, however, and must be held ineffective.

Terms such as “no warranties of any kind or character” and “sold as is” have been repeatedly held not to have satisfied the requirement that the terms of the waiver shall be clear and unambiguous with respect to the waiver of the warranty of fitness. See in addition to the cases cited, Dunlap v. Chrysler Motors, 299 So.2d 495 (La.App. 4th Cir. 1974); Lee v. Blanchard, 264 So.2d 364 (La.App. 1st Cir. 1972); McLain v. Cuccia, 259 So.2d 337 (La.App. 4th Cir. 1972); Juneau v. Bob McKinnon Chevrolet, 260 So.2d 919 (La.App. 4th Cir. 1972); and Stumpf v. Metairie Motor Sales, 212 So.2d 705 (La.App. 4th Cir. 1968).

As in Richardson, supra, this plaintiff purchased the used automobile to get to and from her work. There we recognized that it would be impossible to establish an exact standard or description of the warranty applicable to the sale of used cars of varying ages and conditions. This impossibility also exists with respect to supplying legally sacramental language necessary to expressly waive the warranty of fitness because the intended use of any used automobile varies with the individual purchaser. Whether the warranty of fitness for a particular use or uses is waived by a purchaser is always a question of fact to be determined under the guidelines set forth herein. Each case must depend upon its own circumstances.

At appellant’s cost, the judgment below is .

AFFIRMED.

      . Hob’s Refrigeration v. Poche, 304 So.2d 326 (La.1974); Rey v. Cuccia, 298 So.2d 840 (La.1974); Prince v. Paretti Pontiac, 281 So.2d 112 (La.1973); Media Prod. v. Mercedes-Benz of North Amer., 262 La. 80, 262 So.2d 377 (1972).


text:
    John P. CULVERHOUSE, Plaintiff-Appellant, v. The TRAVELERS INSURANCE CO. et al., Defendants-Appellees.
    No. 12920.
    Court of Appeal of Louisiana, Second Circuit.
    May 24, 1976.

      Drew, White, Drew & Drew by Robert C. White, Minden, for plaintiff-appellant.
    Blanchard, Walker, O’Quin & Roberts by W. Michael Adams, Shreveport, for defendants-appellees.
    Before BOLIN, HALL and MARVIN, JJ.
   MARVIN, Judge.

Plaintiff-employee appeals from a judgment rejecting his demands in a workmen’s compensation suit. We affirm.

The question presented is whether plaintiff met the burden of proving an accidental injury during the course and scope of his employment and causal connection between the alleged accident and the ruptured intervertebral disc resulting in the disability. This is essentially a question of fact. See Crump v. Goodyear Tire & Rubber Co., 325 So.2d 373 (La.App. 2d Cir. 1976).

Plaintiff contends the accident occurred on January 31, 1974, when he strained himself while lifting and carrying a metal cylinder of about 65 pounds for some distance to be altered by machine. Plaintiff saw his private doctor on the day following the alleged accident. This doctor had earlier hospitalized and had been treating plaintiff for a back strain or sprain which occurred when plaintiff was on a fishing trip a few weeks before January 31, 1974. Plaintiff did not relate to his private doctor the alleged lifting incident of January 31.

On the same date that plaintiff saw his private physician (Friday, February 1, or possibly Monday, February 4, 1974), plaintiff saw the company doctor at the place of employment. This doctor referred plaintiff to a Shreveport orthopedist, who saw plaintiff on February 5, 1974. Plaintiff told neither doctor about any on-the-job accident or incident, but related his injury to his fishing trip of several weeks before, while off the job. Both doctors questioned plaintiff extensively to obtain his medical history regarding back trouble.

A laminectomy and discectomy was performed on plaintiff by the orthopedist on February 26, 1974. While plaintiff was still under the care of the orthopedist, his employment with his employer was terminated on March 6, 1974, because of a general layoff. On April 15, 1974, plaintiff returned to the orthopedist and told him that he had experienced several injuries while at work which “might have contributed” to his back condition (to use the orthopedist’s words). The orthopedist had plaintiff dictate to a secretary the work related history plaintiff desired to have entered on his medical records. Suit was filed on July 11, 1974.

On October 14, 1974, plaintiff was seen by a specialist for electromyographic studies. The specialist testified that he took a careful history from plaintiff and plaintiff denied any back trouble or treatment prior to the alleged incident of January 31, and made no mention to the specialist of an injury which occurred on a fishing trip.

At the trial on December 3, 1974, plaintiff’s superior testified that plaintiff told him in January 1974 that plaintiff had hurt his back. On May 31, 1974, plaintiff’s superior had given a statement that he could not remember plaintiff making any such statement to him in January 1974. Neither plaintiff nor his superior formally reported any accident or injury to plaintiff as they were required to do by company rule. Plaintiff admitted he was aware of the rule and that he purposely did not make the required report because he wanted to “protect” the safety record of himself and the company.

The lower court thought it significant that plaintiff did not call as a witness his private doctor who hospitalized him for back trouble following the fishing trip incident before January 31, and who allegedly saw plaintiff on February 1, after the alleged incident while on the job. We agree. See Marion v. New Orleans Public Service, Inc., 306 So.2d 758 (La.App. 4th Cir. 1975).

The lower court noted the “conflicting evidence” and concluded that plaintiff failed in his burden of proof. We find no manifest error in the lower court’s findings or conclusions.

At appellant’s cost, the judgment below is

AFFIRMED.


text:
    Joy Faye Wheeler ROBERTSON, Plaintiff-Appellee, v. Dennis Gene ROBERTSON, Defendant-Appellant.
    No. 12916.
    Court of Appeal of Louisiana, Second Circuit.
    May 24, 1976.
    Love, Rigby, Dehan & Love by Samuel P. Love, Jr., Shreveport, for defendant-appellant.
    Naff, Kennedy, Goodman, Stephens, Donovan & Parnell by Robert J. Donovan, Jr., Shreveport, for plaintiff-appellee.
    Before PRICE, MARVIN and JONES, JJ.
   PRICE, Judge.

Dennis Gene Robertson has appealed from the judgment awarding his wife a separation from bed and board on the grounds of abandonment as provided by Louisiana Civil Code Article 143. Defendant’s demands in reconvention for a separation in his favor were rejected by the trial court.

In initiating this action, Mrs. Robertson alleges she moved from the matrimonial domicile on May 20, 1975, in compliance with repeated suggestions of her husband that she leave, and that her request to return and reconcile after several weeks was rejected by defendant.

Although there were no written reasons given by the trial judge for his decision, we must assume he found the refusal by defendant to allow his wife to return to the domicile a “constructive” abandonment of the wife which entitled her to relief under Article 143.

On this appeal, the thrust of defendant’s argument is that the evidence shows plaintiff’s sole motive for requesting she be allowed to return to the domicile was for economic reasons and not to establish a “reconciliation” in the true meaning of this term. Defendant contends that under these circumstances and in view of the decision of this court in Woodard v. Woodard, 229 So.2d 167 (La.App. 2nd Cir. 1969), plaintiff is not entitled to a separation on grounds of abandonment.

We do not find our views in Woodard to be applicable to the instant case. In Woodard, we held that a self-serving statement at time of trial by the abandoning husband that he would come back to the domicile if the wife would let him was not sufficient evidence of intent to return where no overt efforts were made by him prior to trial indicating a desire to reconcile.

The record shows in this case the wife left after considerable friction had developed in the marital relationship with defendant and that he encouraged and assisted her to leave and get a separate apartment. He endorsed a note for her to procure the funds to accomplish the move. He also changed the locks on the apartment doors on the succeeding day where plaintiff could not return if she desired without his permission.

Plaintiff testified she moved from the domicile to find employment to support herself after repeated implications by defendant that he no longer desired to live with her. After several weeks she found her health would not permit her to work and asked defendant to allow her to return to the domicile. Defendant denied plaintiff’s request to return, but admits that had she done so, he would have refused to allow her to return.

We do not find it appropriate to examine the motive behind plaintiff’s offer to return to the matrimonial domicile. The crucial factor is her bona fide attempt to return and live with defendant which was refused by him. See Boudreaux v. Tanner, 295 So.2d 511 (La.App. 1st Cir. 1974); Schoen v. Schoen, 259 So.2d 626 (La.App. 4th Cir. 1972).

From our review of the evidence, we find defendant had constructively abandoned plaintiff and therefore there is no error shown on the part of the trial court in awarding her a separation from bed and board.

The judgment appealed is affirmed at appellant’s costs.


text:
    Jeane LAUVE, Plaintiff-Appellant, v. EMPLOYERS’ COMMERCIAL UNION INSURANCE CO. et al., Defendants-Appellants.
    No. 12915.
    Court of Appeal of Louisiana, Second Circuit.
    May 24, 1976.

      Lunn, Irion, Switzer, Johnson & Salley by James B. Gardner, Shreveport, for Employers’ Insurance Co. and others.
    Morelock, Egan & Cook by Reuben W. Egan, Shreveport, for Charles Barr.
    Mecom, Scott & Woods, by B. J. Woods, Shreveport, for Jeane Lauve.
    Before PRICE, MARVIN and JONES, JI-
   JONES, Judge.

Jeane Lauve sued Employers’ Commercial Union Insurance Company (hereafter Employers), Mary Fielder doing business as PBS Graphic Arts (hereafter PBS) and Charles Barr for injuries sustained in a fall on the steps of a building occupied by PBS and owned by Barr. Employers’ and PBS answered, pleading contributory negligence and assumption of the risk, and filed a third party claim against Barr, alleging a vice or- defect in the building for which he was responsible. Barr answered, pleading plaintiff’s contributory negligence and assumption of the risk, and filed a third party claim against Employers’ and PBS, alleging its negligence as the cause of the accident.

Judgment was rendered in favor of defendants and against plaintiff. All third party demands were rejected. Plaintiff appeals the judgment in favor of Employers’. Employers’ and Barr appealed the judgments on the third party demands to protect their rights against each other in the event of reversal on the principal demand. We affirm the judgment of the lower court.

On October 3, 1972, plaintiff went to the building occupied by PBS to pick up some printed matter prepared for her advertising agency by PBS. She entered the business by the main entrance. While in the building, she picked up a package of printed material to take to her car. As a shortcut to her vehicle, she passed through a storage area to the rear exit of the building. She was accompanied by the husband of the owner of PBS, who was carrying the package for her.

The rear door of the building opens onto a small platform approximately four feet square and about four feet from the ground. There are six steps down to ground level. At some point between the door and first step the plaintiff slipped and “bumped” down the steps, feet first, to the ground. She injured her back in the fall.

Mrs. Lauve contends that PBS was negligent in allowing debris to collect in the storage area. She alleges that as she passed through the storage area, a piece of plastic of some kind caught on her shoe and caused her to slip when she stepped through the door onto the concrete platform outside the rear exit. She also alleged in the alternative that the platform and steps were defective and that was the cause of her fall.

The trial court concluded that Mrs. Lauve failed to prove that she slipped on the plastic or other debris. In his written reasons for judgment, the trial judge pointed out inconsistencies in plaintiff’s testimony at trial and her testimony by deposition taken before trial and introduced into evidence. At trial, Mrs. Lauve vaguely recollected a small plastic strip caught on her shoe which caused her to slip. In her pre-trial deposition, when asked if she had found anything after the fall on which she might have slipped, she frankly replied that she had not looked for anything. Other witnesses who had been present on the day of the accident, and who testified at trial, stated they found no plastic or other debris on plaintiff’s shoe or on the ground after she fell, or in the area of the doorway where plaintiff testified her fall commenced. There was absolutely no evidence that the platform or the steps were defective in any way.

Plaintiff, relying on Kavlich v. Kramer, 315 So.2d 282 (La.1975), contends that the burden shifts to the defendants to exculpate themselves in cases of this type. However, both Kavlich, supra, and Gonzales v. Winn-Dixie Louisiana, Inc., 326 So.2d 486 (La.1976) are distinguishable from the instant case. In those cases, the plaintiffs did prove that there was foreign substances on the floors of the defendants’ stores and that their falls were caused by those substances. Mrs. Lauve has failed to prove that her fall was caused by a foreign substance on the floor of the PBS storage room.

Having concluded that the trial court was correct in its rejection of plaintiff’s demands, we, of course, conclude that his rejection of the third party demands was likewise proper.

For the foregoing reasons the judgment of the trial court is affirmed at appellant Jeane Lauve’s cost.

Affirmed.