text:
    Joseph J. LEPOW et al. v. WALKER LAND COMPANY, INC.
    No. 8769.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 1977.
    Robert T. Wakefield, Newman & Drolla, New Orleans, for garnishee-appellant.

      Michael Osborne, Dufour, Levy, Marx, Lucas & Osborne, New Orleans, for plaintiff-appellees.
    Before SAMUEL, REDMANN and BOU-TALL, JJ.
   REDMANN, Judge.

Plaintiff obtained a judgment against Walker Land Company, Inc. and garnished Colonial Bank. Colonial responded that it held $48.28 in checking account balances and 79 notes payable to Walker but .that it was a privileged creditor as to those items. It first asserted a notarial act of pledge of the 79 notes to secure a $296,000 note from Walker to itself. It further asserted a second pledge, under the terms of other notes from Walker to itself, of the account balances and of the 79 notes (which have a face value greater than $296,000). The trial court upheld the first pledge but rejected Colonial’s claim to preference under its alleged second pledge. Colonial appeals. We affirm.

The question is whether a pledge is created by the other notes’ authorizing Colonial “to appropriate and apply to the payment . hereof . . any and all monies, stocks, bonds or other property of any kind whatsoever, now or hereafter, in the hands of said bank on deposit or otherwise . belonging to any maker . . .”

Those words do not purport to confer a pledge upon the bank. They authorize the bank to take property to pay and thus extinguish the principal obligation or indebtedness, rather than to detain property (especially the corporate checking accounts!) as a security for a principal obligation which continues to exist. “The pledge is a contract by which [a] debtor gives something to his creditor as a security for his debt.” La.C.C. 3133. The debtor cannot compel return of the thing pledged until the principal debt has been paid, C.C. 3164, although the debtor remains the owner of the thing pledged, C.C. 3166. The contract of pledge thus presupposes a principal obligation and is itself an “auxiliary obligation”, C.C. 3136, to which the creditor’s being put in possession of the thing pledged is essential, C.C. 3152. Pledge does confer a privilege and preference, C.C. 3157. The general rule is that this privilege (i.e., priority over third persons) is effective only if (in addition to possession being delivered, C.C. 3152 and 3162) the pledge is in writing “in which shall be stated the amount of the debt intended to be secured thereby, and the species and nature of the thing given in pledge . . ”, C.C. 3158. The pledge of promissory notes, however, requires no writing to affect third persons, and is effective “without further formalities” beyond their delivery to the pledgee, C.C. 3158. Nevertheless, because pledge is a contract, C.C. 3133, the consent of the parties to its terms, C.C. 1779, must be alleged and proven. Colonial did not allege or prove any pledge of the 79 promissory notes by unwritten contract. It relies exclusively on the written provisions of its dealings with Walker.

The 79 notes payable to Walker which Walker delivered in pledge to the bank to secure one specific note for $296,000 were not, in the act of pledge, pledged to secure any other indebtedness. Were there an excess of payments from those 79 notes over the amount due on the secured note, the language of Walker’s other notes would purportedly authorize the bank to “appropriate and apply to the payment” (our emphasis) of Walker’s other notes that surplus. That language does not purport to give a pledge upon those 79 notes (or upon their proceeds after paying the secured notes) to secure Walker’s other notes. Nor does that language purport to authorize the bank to take possession, for security, of the balance in checking accounts (although the bank is authorized to take the balance for payment of the other notes).

We add that the contractual language does not meet the description requirement of C.C. 3158 or show the consent required by' C.C. 1779. The contractual wording “property of any kind whatsoever” is not a description as the law requires of “species and nature” of the thing pledged.

The preference that the law allows to a pledgee defeats ordinary creditors’ rights to the pro rata share of the debtor’s property that C.C. 3183 provides. Laws granting preference must therefore be strictly construed; C.C. 3185. Pledge law only grants preference when both its “essential” requirement of possession, C.C. 3152, and its requirement for effectiveness against third persons, C.C. 3158, have been met.

We conclude that pledge was not intended by the written contracts of the parties; that the law’s requirements for effectiveness of the pledge against third persons have not been met by the written contracts; and that no other contract of the parties purports to grant pledge. Nothing was pledged to the bank to secure the notes other than the $296,000 note. The trial judge correctly rejected the bank’s claim to a second pledge and preference under the language of those unsecured notes.

Affirmed.


source: Caselaw Access Project

author: LEMMON, Judge. SAMUEL, Judge, GULOTTA, Judge,

license: Public Domain

text:
    Dolores Lewis Youngblood, widow of Nelson YOUNGBLOOD v. OIL WELL CHEMICAL COMPANY OF LOUISIANA et al.
    No. 8324.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 1977.
    Rehearing Denied Dec. 13, 1977.

      Edward R. Drury, New Orleans, and Clark A. Richard, Metairie, for plaintiff-ap-pellee.
    Lemle, Kelleher, Kohlmeyer & Matthews, Paul B. Deal, New Orleans, for defendants-appellants.
    John A. Gegenheimer, Gretna, for third-party defendant, Gerald Chase.
    Before SAMUEL, LEMMON, GULOTTA, STOULIG and BEER, JJ.
   LEMMON, Judge.

Plaintiff filed this suit to recover damages for the wrongful death of her daughter, Carol Youngblood, in an accident between two vehicles driven by Ernest Snyder and Gerald Chase. Snyder has appealed from a judgment, rendered after trial on the merits, which found him solely liable. Issues are the negligence of Snyder and Chase, Carol Youngblood’s contributory negligence or assumption of risk, and quantum.

The accident occurred on a clear, dry night on a straight, level highway, which consisted of four lanes divided by a raised median. Chase, with Miss Youngblood as a passenger, had been traveling west and attempted to execute a U-turn through a cut in the median. His engine stalled, and his Mercury Comet stopped with the front half projecting beyond the neutral ground area into the inside lane for eastbound traffic.

When Chase couldn’t get the engine started, he got out of the car, leaving the lights on, and proceeded about 30 feet up the highway with a flashlight to direct traffic until he could get help to start the car or move it off the highway. An eastbound car came along in a minute or two and slowed but went past. Shortly thereafter a westbound motorist saw Chase’s predicament (describing Chase’s vehicle as “crosswise of the highway”) and stopped on the shoulder, leaving his parking lights on. As this motorist walked across the highway to offer assistance, he saw Snyder speed past the point where Chase was waving with the flashlight and into the passenger door of the Chase vehicle where Miss Youngblood was sitting. Chase estimated that about six to ten minutes elapsed between Chase’s engine stalling and the collision.

Miss Youngblood was killed instantly in the collision, and Snyder was severely injured. At trial he could not recall any of the details of the accident, but stated he usually drove about 65 miles per hour in that area, which had a 70-mile limit at the time. The investigating officer found 18 feet of skidmarks prior to impact and damage to the front of Snyder’s car. The officer also noted that there were no street lights in the area, but that there were no obstructions, and that visibility was good.

Snyder’s Negligence

Although the area was dark, the westbound motorist clearly saw Chase’s red and white car from 225 feet away in the illumination supplied by his own headlights and without the benefit of the flashlight signals by Chase, who was on the other side of the stopped car. When Snyder approached shortly thereafter from the other direction, he additionally had Chase’s flashlight and the assisting motorist’s parking lights to alert him of the presence of the hazard on the highway.

From the overall circumstances shown in this record, we conclude that Snyder, if properly attentive, should have seen Chase’s signal and recognized the hazardous situation in time to avoid the collision and that his failure to keep a proper lookout and to see what he should have seen was a legal cause of the accident.

Chase’s Negligence

When his vehicle became disabled, creating a hazardous situation, Chase immediately took reasonable action to warn approaching motorists. He was not successful in warning Snyder only because of Snyder’s substandard conduct. We conclude that Chase’s behavior did not fall below the standard of a reasonable man under the circumstances.

Contributory Negligence and Assumption of Risk

Contributory negligence is conduct which falls below the standard to which one should conform for his own protection, the standard being that of a reasonable man under like circumstances. Smolinski v. Taulli, 276 So.2d 286 (La.1973).

Snyder argues that it was unreasonable for Miss Youngblood to remain at night in a disabled car which projected into a lane of high speed traffic. However, in determining reasonableness of conduct, a court must consider all of the facts and circumstances bearing on that conduct.

In Thibodeaux v. Jack’s Cookie Corp., 169 So.2d 918 (La.App. 3rd Cir. 1964) a passenger was held contributorily negligent when he remained in a stalled car, which was struck from the rear while blocking almost the entire westbound lane of a two-lane highway, for 15 minutes at night while the driver was out of the car. However, the driver was in front of the car, rather than signaling traffic approaching from the rear. Furthermore, the approaching driver, seeing only burning taillights, was in no way warned that the car was stationary until he perceived this upon approaching the car closely.

In the present case all lights were burning on a red and white car that was in an unusual position on the highway; one of the two lanes for eastbound traffic was clear, and the other was only partially blocked; and Chase was in the highway ahead flagging that traffic with a flashlight. For the short period of time until help could be summoned, Miss Youngblood was safe from all but the most reckless and inattentive drivers. Against such drivers she would not necessarily have been safer standing in the dark on the neutral ground or on the shoulder.

While it appears in retrospect that Carol Youngblood would still be alive (although the accident would not have been prevented) if she had removed herself from the car, we cannot say that her decision to remain for the brief period in the warm car on a cold night, with the lights on and with Chase warning oncoming traffic with a flashlight, was so unreasonable or substandard as to constitute contributory negligence barring her mother’s recovery.

Quantum

Carol Youngblood, 18 years old at the time of her death, was the second of seven children and the oldest daughter. Her widowed mother described her as a “big help” at home and a “second mother” to the other children. She contributed her social security benefits to the family and used her summer employment income to buy things for her mother and the children. She was a senior in high school and had planned to attend college.

In Gunter v. Wiley, 325 So.2d 654 (La.App. 3rd Cir. 1975), the court affirmed an award of $40,000.00 to one parent for loss of a teenaged child. In Walker v. St. Paul Ins. Cos., 343 So.2d 251 (La.App. 1st Cir. 1977) the court reduced a jury award to $40,-000.00 for each parent for the loss of a major child who was married and not living with his parents or contributing to their support. We cannot say that the award in this case in that same amount is so excessive as to constitute an abuse of the trial court’s much discretion under C.C. art. 1934(3).

The judgment is affirmed.

AFFIRMED

SAMUEL, J., dissents and assigns reasons.

GULOTTA, J., dissents and assigns reasons.

SAMUEL, Judge,

dissenting.

As I am of the opinion that the decedent herein was contributorily negligent,

I respectfully dissent.

GULOTTA, Judge,

dissenting.

I respectfully dissent.

Although I am in agreement with the majority’s finding of negligence on the part of the defendant driver, Snyder, I am of the opinion that plaintiff’s entitlement to recovery is barred by the contributory negligence of the deceased passenger in the stalled automobile.

The evidence is clear and virtually undisputed that the front half of the stalled automobile protruded into the left (neutral ground) eastbound lane of U.S. Highway 90; that the automobile was perpendicular to the east and westbound 4-lane highway divided by a 3-foot median; that because there were no street lights in the area, the highway was dark; and, that the deceased passenger remained for a period of 6-10 minutes in the front seat of the stalled automobile.

A passenger’s failure to get out of an automobile stalled in such a precarious position on a 70-mile-per-hour speed limit highway is conduct below the standard of a reasonable person and constitutes contributory negligence. See Thibodeaux v. Jack’s Cookie Corporation, 169 So.2d 918 (La.App. 3d Cir. 1964), writ refused, 247 La. 365, 171 So.2d 479 (1965).

      . The investigating officer, who had no independent recollection of the accident, estimated the median width at three feet. However, the numerous photographs of the scene indicate the width was closer to that of one of the lanes of travel. (See particularly D-ll). The record did clearly establish that a normal automobile cannot fit in the neutral ground area, perpendicular to the traffic lanes, without projecting into some lane of traffic.

      . R.S. 32:141A’s restrictions against stopping on the traveled portion of a highway do not apply to the driver of a disabled vehicle. However, R.S. 32:141B requires such a driver to remove the vehicle as soon as possible and to “protect traffic” in the meantime.

      . Since Snyder’s car was only the third on the scene after the breakdown, either the traffic was exceptionally light or the estimate of time was excessive.

      . Indeed, Chase, standing near the neutral ground with a flashlight, had to jump out of Snyder’s path and onto the neutral ground in order to avoid being struck.


author: LEMMON, Judge.

text:
    Edward L. ARDOYNO, Jr., William J. Mora, III and the Law Partnership known as Mora and Ardoyno v. Leonard S. UNGAR, Harris M. Dulitz, Stanley J. Jacobs, Kenneth W. Manuel, and James Robert Kyzar.
    No. 8408.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 1977.
    Rehearing Denied Dec. 13, 1977.
    Writ Refused Jan. 30, 1978.

      George M. Papale, Gretna, for plaintiffs-appellants.
    Wiedemann & Fransen, A. Remy Fran-sen, Jr., New Orleans, for defendants-appel-lees.
    Before LEMMON, GULOTTA and SCHOTT, JJ.
   LEMMON, Judge.

Plaintiffs, a two-man partnership in law practice and the two firm members, sued four attorneys (Leonard Ungar, Harris Du-litz, Stanley Jacobs and Kenneth Manuel) and Robert Kyzar, allegedly an employee of the four attorneys, for damages for defamation, interference with plaintiffs’ business, and interference with a contract between plaintiffs and a particular client. Kyzar answered, but the other four defendants filed exceptions of no cause of action, lack of jurisdiction over the subject matter, improper cumulation of actions and improper joinder of parties. The trial court maintained the exceptions of improper cumulation and improper joinder and overruled the other exceptions. Plaintiffs have appealed.

The petition alleged that on January 7, 1976 Kyzar made certain specified false statements defaming plaintiffs to plaintiffs’ client, Ed Fauver, while in the course and scope of his employment with the other four defendants and with their knowledge and consent; that on January 9,1976 Kyzar and Ungar verbally defamed plaintiffs to Fauver; and that in defaming plaintiffs Ungar acted as a partner of the other three attorneys, with their knowledge, consent and acquiescence and on business recognized and approved by them as partnership business.

Defendant attorneys, citing McGee v. Collins, 156 La. 291, 100 So. 430 (1924), based their exceptions on the general rule that two persons cannot be joined in an action for personal slander by words. Plaintiffs point out, however, that the McGee case is distinguishable because the court in that case specifically noted there were no allegations that the three defendants were connected in a conspiracy.

Slander, being an individual tort, is incapable of joint commission and generally does not give rise to solidary liability. However, a major exception to the general rule is that statements made pursuant to a conspiracy to defame can create solidary liability as to all persons connected in the conspiracy. C.C. art. 2324; 26 A.L.R.2d 1031, § 3 (1952). Another exception to the general rule is that an employer and employee are solidarily liable for a defamatory statement by the employee, within the course and scope of his employment, at least when the defamation was authorized or ratified by the employer. C.C. art. 2320; Wisemore v. First Nat'l. Life Ins. Co., 190 La. 1011, 183 So. 247 (1938).

In the present case the four attorneys were properly joined as defendants on the basis of allegations that they were vicariously liable for the slanderous statements of their employee. Furthermore, the allegation that Ungar’s defamatory statement was made in promoting the firm’s business, with the consent and knowledge of the other partners, if proved, would render the partnership and each partner liable for the tort, and the three other attorneys were properly joined as defendants as to that tort. See C.C.P. art. 647. Finally, the two actions based on the specified incidents were properly cumulat-ed, inasmuch as the allegations of conspiracy established the requisite community of interest between the parties joined. C.C.P. art. 463. Cumulation of the actions and joinder of the parties will facilitate the determination by the trier of fact of the issues of conspiracy, employer-employee relationship, and other such facts bearing on the questions of solidary liability and extent of damages.

Accordingly, the judgment of the trial court is reversed, and it is now ordered that the exceptions of improper cumulation of actions and improper joinder of parties be overruled. The case is remanded for further proceedings.

REVERSED AND RENDERED, REMANDED.

      . One reason for refusing generally to impose solidary liability is that separate utterances (even of the same words) by different persons constitute distinct offenses and can give rise to different damages. See McKnight v. Scott, 130 So.2d 681 (La.App. 1st Cir. 1961).

      . The partnership was not joined as a party, possibly giving rise to problems under C.C.P. art. 737 if the suit is one “on a partnership obligation”. However, the present pleadings allege Kyzar was an employee of the four individuals, and any issue as to whether Kyzar was an employee (and who his employer was) remains to be decided at a trial on the merits.

      . One reason for approving cumulation when a conspiracy is alleged is that the fact of a conspiracy may bear substantially on the issue of damages and may make separate defamatory statements relevant to each other. In the community of interest inquiry involving the issue of damages, the reason for approving cumulation is the converse of the reason for requiring separation when there is no relationship between two separate slanders committed by two separate individuals. See, by analogy, Miller v. Commercial Union Cos., 305 So.2d 560 (La. App. 2nd Cir. 1974).


text:
    CHRYSLER CORPORATION v. F. C. DOYAL, Jr., Administrator of Division of Employment Security of the Department of Labor, State of Louisiana and Virginia C. Ousley.
    No. 8421.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 1977.

      Milling, Benson, Woodward, Hillyer & Pierson, Elizabeth Ridnour Haak, New Orleans, for plaintiff-appellant.
    Marion Weimer, James A. Piper and James A. McGraw, Marion Weimer, Baton Rouge, for defendant-appellant, Department of Employment Security.
    Terrence O’Brien, New Orleans, for defendant-appellee, Virginia C. Ousley.
    Before LEMMON, STOULIG and BEER, JJ.
   LEMMON, Judge.

This litigation involves a claim for unemployment compensation benefits by Mrs. Virginia Ousley. The present appeals by the Administrator of the Division of Employment Security and the employer question a 1976 judgment ordering payment of benefits allegedly due under the 1967 claim.

Mrs. Ousley, after being employed for five years, was terminated in June, 1967. On July 20, 1967 she applied for unemployment compensation benefits, was issued a record book and was instructed to report to the employment office weekly with the book in order to be eligible for benefits.

The employer contested the claim, and on August 16, 1967 Mrs. Ousley was determined to be disqualified for benefits because of misconduct. She appealed this decision on August 25,1967. In the meantime she had reported weekly to the employment office where she had registered for work. She testified she was told on the last occasion that it would be unnecessary to report back until her “appeal was settled”. She therefore discontinued reporting.

In November, 1967 the Appeals Referee reversed the agency determination and ordered the disqualification removed. When Mrs. Ousley was notified, she was told (according to her testimony) that the employer had appealed and that she would have to return any benefits collected if the employer prevailed in the appeal. She decided to wait until the appeal was completed before accepting benefits. After she “checked a couple of times” and was informed that the appeal was still pending she simply waited for notice by mail. She never received any notice or any benefit payments.

In 1975 Mrs. Ousley obtained counsel for the first time. After investigation counsel filed a rule to show cause why benefits should not be paid, and the judgment on the rule is the subject of this appeal. At the trial of the rule Mrs. Ousley testified that she had sought work diligently from the time of her termination in June, 1967 until April, 1969, when she obtained employment with a telephone company. She was still working for that company at the time of the 1976 trial.

In reasons for judgment the trial court noted that its 1973 ruling had found Mrs. Ousley “was due certain funds” and that she should have been notified of the ruling and is now entitled to those benefits. The rule was therefore made absolute.

The 1973 judgment (now definitive) did not hold that Mrs. Ousley was due certain benefits but merely held that she was not disqualified for benefits because of misconduct. The judgment did not purport to rule that she was otherwise eligible for any particular weeks of benefits. Because of the initial disqualification there has never been an administrative or judicial determination of her eligibility during any particular week, and indeed that very question is the crucial issue asserted in the rule now on appeal.

R.S. 23:1600 provides the conditions for eligibility for benefits as follows:

“An unemployed individual shall be eligible to receive benefits with respect to any week only if the administrator finds that:
“(1) He has made a claim for benefits in accordance with the provisions of R.S. 23:1621 and R.S. 23:1622.
“(2) He has registered for work at, and thereafter has continued to report at, an employment office in accordance with such regulations as the administrator may prescribe. The administrator may, by regulation, waive or alter either or both of the requirements of this Section as to such types of cases or situations with respect to which he finds that compliance with such requirements would be oppressive, or would be inconsistent with the purposes of this Chapter, but no such regulation shall conflict with R.S. 23:1591.
“(3) He is able to work, and is available for work.
“(4) He has been unemployed for a waiting period of one week; * * * ”.

Thus, to be eligible for benefits for a particular week a claimant (in addition to meeting the base period requirements) must be unemployed, able to work (meaning not disabled), and available for work. Additionally, he must have made a claim, registered for work and continued to report to an employment office.

In this case the Administrator and the employer principally contend that Mrs. Ous-ley is not eligible (although not disqualified) because she failed, during each week of unemployment, to make a claim and register for work. However, it is not necessary for us to reach the somewhat difficult questions involved in determining whether Mrs. Ousley was ineligible because of that failure under the unusual circumstances of this case. Instead, we base our decision on the conclusion that the evidence does not establish Mrs. Ousley was available for work after August 25, 1967 (which was the last day that she reported and signed for benefits).

In, a suit seeking entitlement to benefits a claimant must establish a prima facie showing that he has met the conditions of eligibility. If he does so, the party attacking the claim then has the burden of proceeding with evidence necessary to overcome the prima facie showing. However, as in every civil case the claimant bears the ultimate burden of proving his claim by a preponderance of the evidence. See, generally, Chapman v. Division of Employment Security, 104 Sa.2d 201 (La.App.2nd Cir. 1958); Green v. Brown, 147 So.2d 406 (La. App.2d Cir. 1962); 19 La.L.Rev. 448, 452 (1959); 24 La.L.Rev. 267 (1964).

In the present case Mrs. Ousley did not establish a prima facie case of eligibility. Not only did she not report to the employment office for the purpose of making a continued claim, but also she did not even contact the office (where she was registered for work) to inquire about job referrals. Furthermore, she presented no evidence that she had registered with other employment agencies, or had answered newspaper advertising, or had placed job applications with specific business and industrial companies. Nor did she state any facts upon which one could reasonably conclude that she showed an active interest and effort to secure employment, independently or under the Division’s supervision. Compare Smith v. Administrator, 95 So.2d 349 (La.App.2d Cir. 1957). Her total evidence as to availability for work (after the five weeks that she reported and signed the book) was the following:

“Q. When were you terminated by Chrysler?
“A. In June, ’67, I don’t remember the exact date.
“Q. Did you start looking for work after that?
“A. Yes, I did.
“Q. Did you look hard?
“A. Yes, I did.”

We hold that this evidence, with no specifics as to time or place, does not support a finding Mrs. Ousley was available for work (after August 25, 1967) during the weeks for which benefits are claimed.

Accordingly, the judgment of the trial court is amended to limit the award of benefits to five weeks at $45.00. As amended, the judgment is affirmed.

AMENDED AND AFFIRMED.

      . When the Referee’s decision was maintained by the Board of Review, the employer applied for judicial review. For some reason no request was made to set the matter for trial until 1973. The trial court affirmed the decision of the Board of Review, and the employer did not seek further review.

      .At the preargument conference in this court the parties stipulated that “(c)laimant was determined to be entitled to benefits equaling $45.00 per week with a maximum of $1,260 in the benefit year beginning July 16, 1967”. However, the stipulation must be read in the context of being an initial determination, and the stipulation only refers to the undisputed amount of the weekly benefits.
      • The question of eligibility for benefits is one which recurs weekly, because a claimant may be eligible for benefits in a specific amount during the benefit year, but may be ineligible for one or more particular weeks because of not being unemployed in the particular week.
      The rule now at issue on appeal recognizes that the question of eligibility is the determinative issue, alleging:
      “V.
      “Virginia C. Ousley further shows that when she originally applied for unemployment benefits on July 16, 1967, a determination was made that her weekly benefit allowance was $45.00.
      “VI.
      “Virginia C. Ousley further shows that despite her diligent efforts to find work she was unemployed until April 2, 1969, or eighty-six weeks from the date of her discharge and that she is therefore entitled to weekly benefits of $45.00 per week for the eighty-six weeks she was unemployed or Three thousand eight hundred seventy and no/100 ($3,870.00) .

      . The remaining conditions deal primarily with the amount of wages earned in the base period.

      . The statutory scheme contemplates an initial claim for benefits (which establishes the benefit year) and registration for work at an employment office, with continued reporting thereafter. Continued claims are made by the periodic reporting, which can be waived by the Administrator by regulation.
      In the present case Mrs. Ousley arguably remained eligible for some reasonable period of time, in spite of failing to report, because (on her testimony accepted by the trial judge) the Administrator informally waived the reporting condition or is estopped from asserting failure to report as a defense after his employee told the claimant she need not report.

      . Thus, if a claimant presents evidence that he has registered for work and thereafter reported as available to work, he will generally be considered as having made a prima facie showing, and it would then be necessary for the attacking party to present evidence, for example, that the claimant failed to pursue job referrals or refused suitable employment without justification.


author: LEMMON, Judge. SCHOTT, Judge,

text:
    Margie Faciane MILLON v. Joseph MILLON.
    No. 8469.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 1977.

      Benjamin F. Hatfield, New Orleans, for plaintiff-appellee.
    James C. Witcher, II, New Orleans, for defendant-appellant.
    Before LEMMON, GULOTTA and SCHOTT, JJ.
   LEMMON, Judge.

In this appeal by Joseph Millón from a judgment granting his wife a divorce under R.S. 9:301 the sole issue is whether the parties reconciled within the contemplation of C.C. art. 154 during the period of separation.

The parties separated in February, 1973, this suit was filed in February, 1975, and trial was held in May, 1976. After the initial separation Mrs. Millón lived in an apartment with her children. She admitted having sexual intercourse with her husband during this period on about six occasions, but asserted she submitted to the 260-pound spouse involuntarily and under force. She denied ever inviting her husband to the apartment or discussing reconciliation with him and declared that he gained entrance into the apartment when the door was unlocked or the children let him in. She had called the police on several occasions.

Mr. Millón, claiming reconciliation “not in words, but in actions” on 10 to 15 occasions, stated “she wouldn’t object too much at certain times” and on the last occasion in August, 1975 “she didn’t put up no kind of resistance, hardly”. He admitted that she never requested intercourse, that he “used force . . . with restraint” testing “to see her resistance”, and that there was never a mutual agreement to reestablish their former relationship. He also admitted that they separated after he struck his wife on several occasions.

The oldest daughter, recounting the August, 1975 incident, testified she heard through the bedroom door her parents arguing and her mother yelling for her father to leave.

The evidence in this case vividly illustrates the error of an absolute rule which would deem one or several isolated acts of sexual intercourse as conclusively establishing reconciliation.

Reconciliation is the voluntary resumption or reestablishment of the relationship which formerly existed between the parties. While sexual intercourse constitutes strong evidence that the relationship has been resumed, proof of one act or of several isolated acts of sexual intercourse is not necessarily conclusive of the issue of reconciliation.

The issue of reconciliation under C.C. art. 154 is an issue of fact to be determined in each particular case by consideration of all the activities of the parties and by all of the circumstances of the case. See Blanchard v. Blanchard, 234 La. 790, 101 So.2d 671 (1958); Garrett v. Garrett, 324 So.2d 494 (La.App. 2nd Cir. 1976). In order to establish a reconciliation which will break the continuity of a period of separation or constitute a condonation or forgiveness of past behavior, the overall circumstances must show a mutual intention by the parties to voluntarily resume their marital relationship.

Intent is determined from the totality of the circumstances in each case. Here, the only evidence that the parties ever intended to resume a marital life together was the admission of isolated acts of intercourse accomplished with some degree of force, after which the parties had no further contact for substantial periods of time. On the other hand, there was considerable circumstantial evidence to support a conclusion that the parties did not intend a reconciliation. The parties did not attempt to reestablish a matrimonial domicile, the husband did not indicate in any other manner that he intended to resume the status of husband, father and head of the household, and the wife did nothing to indicate a change in her status from that of a separated spouse. The trial court found there was no “commencement of any marital relationship, certainly not a meaningful one”, and the record supports this conclusion. Moreover, the record also supports the conclusion that the acts of intercourse occurred under circumstances indicating there was no voluntary or mutual intent to reconcile.

The judgment is affirmed.

AFFIRMED.

SCHOTT, J., concurs and assigns reasons.

SCHOTT, Judge,

concurring.

Because the record supports the trial judge’s conclusion that the acts of intercourse on appellee’s part were not voluntary, I concur in the result of affirming the judgment of the trial court.

      . See 35 A.L.R.2d 707 § 10 (1954); 24 Am. Jur.2d Divorce and Separation § 214 (1966); 27A C.J.S. Divorce § 61 (1959); Clark, Domestic Relations § 12.10 (1968).
      The purpose of the waiting period prescribed by R.S. 9:301 is to afford and encourage the opportunity for reconciliation. If one act of intercourse absolutely constitutes reconciliation, then a spouse with grounds for separation or divorce would be reluctant to respond to attempts at reconciliation for fear of losing accrued grounds. Indeed, such an absolute rule would encourage a spouse to avoid situations conducive to reconciliation discussions because an act of intercourse might occur or be inferred from such behavior.


author: GULOTTA, Judge. REDMANN, Judge,

text:
    CIRCLE FOOD STORE, INC. v. NATIONAL AMERICAN BANK OF NEW ORLEANS.
    No. 8346.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 1977.
    Rehearing Denied Dec. 13, 1977.
    Writ Refused Feb. 10, 1978.

      Thomas L. Giraud, Salvador M. Cusima-no, Charles A. Verderame, New Orleans, for plaintiff-appellee.
    Carl & Rousel, Clifton S. Carl, New Orleans, for defendant-appellant.
    Before REDMANN, GULOTTA and SCHOTT, JJ.
   GULOTTA, Judge.

This suit involves six of eight forged checks drawn on the account of Weidemann and Fransen and cashed by the forger at Circle Food Store. Weidemann’s signature was forged. These checks were drawn on the Lee Circle branch of the National American Bank where Weidemann and Fransen had its account. Circle Food then deposited the checks for collection in the Broad-DeSoto branch of the National American Bank, where Circle Food maintained its account. The checks were not dishonored by the bank on the day (up to midnight) following the date of receipt of the checks by the bank as required by LSA-R.S. 6:67, but were dishonored from 8 to 15 days after receipt.

From a judgment in favor of plaintiff in the total amount of the six forged checks, the defendant bank appeals. Although no reasons were assigned by the trial judge, implicit in his award is a conclusion that LSA-R.S. 6:67 is applicable and, because the bank failed to dishonor the checks timely, in accordance with the statute, the bank cannot dishonor or refuse payment on the forged checks.

It is the bank’s contention that the one-day time period during which the bank is permitted to dishonor the checks is not applicable where separate banks are involved in the transaction. In this connection, the bank relies on LSA-R.S. 6:68(A) which provides, in pertinent part:

§ 68. Time of receiving demand item; credit; branch or office
“A. For the purposes of R.S. 6:67: * * * (3) Each branch or office of a bank shall be deemed a separate bank.”

The bank claims that each branch or office of a bank shall be deemed a separate bank according to LSA-R.S. 6:68; that this transaction involved two separate branches of the National American Bank; and that the one-day dishonor period is not applicable where “separate” banks are involved. Alternatively, defendant contends that by agreement on the reverse side of the signature card, Circle Food agrees that the bank will not be bound by the provisions of LSA-R.S. 6:67. Finally, the bank contends it notified plaintiff of its dishonor of the forged checks within a reasonable time after learning of the forgery.

At the outset, we are not persuaded by the bank’s argument that LSA-R.S. 6:67 has no applicability to the instant case. The senior vice-president of the National American Bank testified that each branch of the bank maintains signature cards on its accounts but also that the main office maintains signature cards for accounts in each branch. The six checks were forwarded by the Broad-DeSoto branch to the main office on the day of receipt. At the main office, the checks were “processed”. “Processed” is defined in the record as “paid”, that is, “the last time that the bank would handle that check insofar as the transaction of taking the money out of one account and putting it in another”. Under these circumstances, transactions such as the instant one where checks are examined for forgery, the main office is used as a central clearing house for all branches. In such instances, we conclude LSA-R.S. 6:68(A)(3), supra, is not applicable. The bank, in this case, is bound by the provisions of LSA-R.S. 6:67.

Defendant, however, relying on sub-paragraph (B) of LSA-R.S. 6:68 which provides:

“B. The effect of R.S. 6:67 and this section may be varied by agreement.”

contends that Circle Food contracted away the effects of LSA-R.S. 6:67. According to defendant, the “agreement” found on the reverse side of plaintiff’s signature card, which provides:

“Checks, drafts and other items drawn on this office of this bank not paid for any reason as of the close of the business day on which they have been deposited may be charged back to the customer; and if drawn on any other office of this bank may be charged back to the customer if not finally paid at such office.”

does away with the requirement that the bank dishonor or refuse payment within the time prescribed by LSA-R.S. 6:67. We reject this contention.

As pointed out by plaintiff, each of the six checks was stamped “processed” (paid) at the main office on the date of its deposit. Furthermore, as hereinabove pointed out, checks from all branches are processed at the main office. Under the circumstances, we interpret the pertinent language in the agreement “ . . . and if drawn on any other office of this bank may be charged back to the customer if not finally paid at such office” to mean that the amount of the check may be charged back to the customer only until such time as the check is processed by the main office (which, in effect, constitutes payment at the other branches). Because the checks were paid when “processed” by the main branch, they were “finally paid” and cannot be charged back to the customer. Under the circumstances, we conclude the agreement is not applicable to the facts of our case.

Having concluded that the time requirement set forth in LSA-R.S. 6:67 is applicable to the facts in our case, we find no necessity to consider the bank’s contention that the checks were dishonored within a reasonable amount of time from receipt and detection of forgery.

Defendant was required to dishonor or refuse payment of the six forged checks before midnight of its next business day after receipt of each check. Having failed to do so, the bank is liable to plaintiff. Accordingly, the judgment is affirmed.

AFFIRMED.

REDMANN, Judge,

concurring.

Under La.R.S. 7:62 (N.I.L. § 62), a bank which pays (or merely accepts) a check drawn upon itself “admits . . . the genuineness of [the drawer’s] signature . The bank cannot recover from a forwarding bank, Security State Bk. & Tr. Co. v. First Nat. Bank, La.App. 2 Cir. 1941, 199 So. 472 (or from any one except for breach of the warranty of N.I.L. § 65(4) or U.C.C. § 3-417(l)(b)).

La.R.S. 6:67, the charge-back provision, provides an exception to the rule of R.S. 7:62. But unless a bank shows that it has charged back an item payable through itself by midnight of the business day following the day on which it gave credit, it may not charge back at all. That each branch of a bank is “deemed a separate bank” for our purposes, R.S. 6:68A(3), at best means that the charge-back period runs from the day after the drawee branch gives credit to the collecting branch.

Defendant has not shown that it charged back within the limited period allowed by R.S. 6:67, and therefore, under R.S. 7:62, it cannot contest the genuineness of the drawer’s signatures on the items in question.

      . LSA-R.S. 6:67, in pertinent part, provides as follows:
      § 67. Collection, payment and dishonor of demand items
      “In any case in which a bank receives, other than for immediate payment over the counter, a demand item payable by, at or through such bank and gives credit therefor before midnight of the day of receipt, the bank may have until midnight of its next business day after receipt within which to honor or refuse payment of such item.
      LSA-R.S. 6:67 and 6:68, infra, though effective at the time the petition was filed, have been repealed by Act 92 of 1974, effective January 1, 1975.


author: GULOTTA, Judge.

text:
    Leroy E. LABALLE, III v. Cheryl Ann Massel, wife of Leroy E. LABALLE, III.
    No. 8425.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 1977.

      Michael D. Cucullu, New Orleans, for plaintiff-appellant.
    Graffagnino, Perez & Roberts, A. Russell Roberts, Metairie, for defendant-appellee.
    Before LEMMON, GULOTTA and SCHOTT, JJ.
   GULOTTA, Judge.

We decline to disturb a $275.00 monthly award for support of two minor children. We find no merit to the husband’s contention that the trial judge erred in allowing testimony of the husband’s second wife’s income while prohibiting the husband from inquiring into the employment history of the divorced wife-mother of the children.

The husband claims the trial judge erred when he failed to order the production of the 1974 and 1975 income tax returns of the divorced wife. According to the husband, the income tax returns would have established the wife’s ability to contribute to the support of the children. Citing LSA-C.C. arts. 227, 230 and 231, the husband points out that the wife as well as the husband has an obligation of the support of their minor children. Also relied on by the husband is the case of Marcus v. Burnett, 282 So.2d 122 (La.1973) and the case of Lebouef v. Lebouef, 325 So.2d 290 (La.App. 4th Cir. 1975) which indicate that the mother’s ability to furnish support must be considered in assessing the father’s obligation to make support payments.

Although it is clear that both parents have the joint responsibility for the support of their minor children and that both the mother’s and the father’s earnings are to be considered as well as the earnings of the respective spouses of both parents (in the event that either is remarried), nevertheless, the court, in making an award for child support, must consider the totality of the circumstances involved. See Marcus v. Burnett, supra.

In October, 1976, at the hearing on the rule, Mrs. Laballe testified that she had been unemployed for the entire year of 1976. Under the circumstances, we cannot say, in view of the wife’s unemployment for a period of approximately 10 months, that the trial judge erred in excluding evidence of her prior earnings.

It is well settled that a child support award is largely a question of fact and the trial judge’s determination of the amount is not to be set aside unless a clear abuse of discretion has been shown. See Nicolle v. Nicolle, 308 So.2d 377 (La.App. 4th Cir. 1975). In the instant case, the husband testified that his gross monthly earnings were $1,300.00 to $1,400.00. His net monthly earnings amounted to $1,025.00. He further stated that his present wife was earning $700.00 per month and that no children were born of this marriage.

Mrs. Laballe submitted a statement of monthly expenses totalling $566.00 in connection with support of the two children. The costs were itemized as follows: food, $200.00; clothes, $100.00; medical and dental expenses, $80.00; school tuition, $26.00; school supplies, etc., $20.00; entertainment, $40.00; and extra expenses, $100.00. Counsel stipulated that her testimony of expenses would correspond to the figures shown on the exhibit. Mrs. Laballe’s sister, with whom the children had lived for approximately 21 months, testified that she had spent approximately $89.00 per month for food, utilities and shelter for each child and that on occasion she had paid other sums for their support. Mrs. Laballe’s mother, with whom the wife and the children are now living, testified that she has lent money to her daughter for the children’s tuition and school uniforms and supplies. The wife is presently unemployed. Though it is true that Mrs. Laballe, in response to defendant’s subpoena duces te-cum, did not produce records or receipts to document the expenses claimed, the trial judge did have the benefit of her testimony and that of the other witnesses regarding the cost of supporting the children. See Shanklin v. Shanklin, 339 So.2d 1262 (La.App. 1st Cir. 1976).

The evidence considered, we cannot say the $275.00 per month award for the support of two minor children, ages 7 and 10, constitutes an abuse of the trial court’s discretion. The judgment is affirmed.

AFFIRMED.

      . The judgment also ordered the father to pay medical and dental bills and to include the children as dependents on his medical insurance policy.

      . LSA-C.C. art. 227 provides as follows:
      Art. 227. Parental support and education of children
      “Art. 227. Fathers and mothers, by the very act of marrying, contract together the obligation of supporting, maintaining, and educating their children.”

      . LSA-C.C. art. 230 provides as follows:
      Art. 230. Scope of alimentary obligation
      “Art. 230. By alimony we understand what is necessary for the nourishment, lodging and support of the person who claims it.
      “It includes the education, when the person to whom the alimony is due, is a minor.”

      .LSA-C.C. art. 231 provides as follows:
      Art. 231. Basis for granting alimony
      “Art. 231. Alimony shall be granted in proportion to the wants of the person requiring it, and the circumstances of those who are to pay it.”


author: GULOTTA, Judge. LEMMON, Judge,

text:
    Carrell KILLEBREW v. ABBOTT LABORATORIES.
    No. 8433.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 1977.
    Dissenting Opinion Nov. 11, 1977.
    Rehearing Denied Dec. 13, 1977.
    Writ Granted Jan. 30, 1978.

      Alvin R. Childress, III, New Orleans, for plaintiff-appellant.
    Hammett, Leake, Hammett, Hulse & Nelson, Robert E. Leake, Jr., New Orleans, for defendant-appellee.
    Before LEMMON, GULOTTA and SCHOTT, JJ.
   GULOTTA, Judge.

In this appeal, plaintiff, a pharmaceutical salesman, contends the trial judge erred in awarding disability payments under the defendant employer’s long term disability plan for a period not to exceed 24 months. According to plaintiff, he is entitled to receive monthly disability benefits until age 65. The plaintiff employee was 45 years of age when discharged. The plan provides that benefits will not be paid for any period of disability in excess of 24 months for that disability where it has been “(b) caused or contributed to by mental illness or functional nervous disorder . . ..” According to the trial judge, “The overwhelming medical evidence compels the conclusion that plaintiff’s disability is due to a functional nervous disorder . . ..”

Plaintiff contends the trial judge erred in interpreting the medical evidence and in erroneously applying the policy provisions limiting payment to 24 months. According to plaintiff, the disability was caused by an “organic disorder of viral encephalitis” which, under the policy, entitles him to monthly benefits until age 65. Pointing out that defendant has only made payments for a period of 4 months despite plaintiff’s written notice and proof of claim and despite the judgment below, plaintiff further argues that he is entitled to penalties and attorney’s fees as provided in LSA-R.S. 22:657. Finally, plaintiff questions the validity of the disability benefit plan which provides for a reduction in disability payments under the plan by the amount received from Social Security.

In 1969, while employed, Carrell Kille-brew contracted viral encephalitis. Thereafter, he worked with difficulty occasioned largely by headaches until he was discharged from employment on February 20, 1973. Plaintiff was a participant, through payroll deductions, in the long term disability plan provided for by defendant. After receipt of benefits amounting to 4-months disability payments and after denial of plaintiff’s claim for monthly benefits to age 65, this suit followed.

It is not disputed that plaintiff contracted encephalitis or that plaintiff suffered disabling headaches after he suffered the illness. Nor is it seriously disputed that plaintiff is disabled. What is disputed is whether or not the disability had been caused or contributed to by mental illness or functional nervous disorder. The evidence supports the trial judge’s conclusion that the disability was due to a functional nervous disorder.

Paul F. Larson, M.D., a neurologist, first examined plaintiff on October 8, 1973. Kil-lebrew complained of headaches and inability to cope with the pressures of his job. While aware that plaintiff had a history of. encephalitis in 1969 and while acknowledging that it is an organic problem, Dr. Larson testified that his examination did not show any neurological deficit but did reveal considerable interpersonality and psychological problems. The doctor defined an organic disorder as an abnormality occurring in the brain structure. A functional disorder was defined as a disorder of the thinking process despite a completely normal brain, without any organic changes. Dr. Larson could find no signs of organic disease affecting plaintiff’s neurological system and, therefore, classified his symptoms as functional nervous disorder. Though he acknowledged the encephalitis may have triggered plaintiff’s emotional problems, the doctor considered plaintiff’s disability in 1973 to be a functional one.

Dr. Grad L. Flick, a psychologist to whom plaintiff was referred for evaluation by Dr. Larson, supervised certain neuropsychological tests which were administered to plaintiff in November, 1973. This evaluation of plaintiff revealed no obvious evidence of any organic brain dysfunction. Dr. Flick testified that the personality pattern emerging from the tests was not typical of that seen in an organic disturbance such as encephalitis, but rather indicated a psychological profile showing vascular instability and a breakdown of psychological stability and reaction to stress. Though the psychologist acknowledged that organic pathology could have played a part in forming plaintiff’s personality, he testified that plaintiff’s problems are presently in a personality area rather than an organic area.

Dr. Thomas Oelsner, an internist who examined plaintiff on January 13, 1976, did not believe plaintiff had any organic brain damage resulting from encephalitis. He was of the opinion that plaintiff’s disorder was emotional in nature with a functional basis. He stated that plaintiff had demonstrated a pattern of stress headaches developing under environmental pressure rather than a pattern of encephalitic headaches which are persistent and constant but gradually declining in intensity over a period of years. The doctor did state, however, that plaintiff’s history indicated that he had the persistent type of postencephalitic headaches for a period of 9 months to a year and a half following contraction of the disease.

Dr. Edward E. Thornhill, an internist and plaintiff’s treating physician, first saw plaintiff in 1969 when he had apparent encephalitis. Dr. Thornhill testified that he did not think plaintiff is suffering in any way from a functional nervous disorder, but rather is suffering from an “organic brain disease”. According to this physician, because of underlying brain damage plaintiff suffered in 1969 from encephalitis, he cannot perform under stress and is unable to control his emotions. The doctor was of the opinion that plaintiff has sufficient brain damage to cause an emotional dysfunction impairing him from tolerating stress in a normal fashion. Although a vascular headache (which plaintiff later developed) is not ordinarily a result of encephalitis, according to the doctor, the emotional turmoil suffered by plaintiff as a result of being unable to work could cause the development of vascular headaches. A report of Dr. Thornhill, dated January 11, 1971, indicates that plaintiff’s headaches took a different course and became more “truly vascular in type”.

Despite Dr. Thornhill’s testimony that plaintiff’s emotional problems and vascular headaches are secondary to brain damage due to the viral encephalitis contracted in 1969, the testimony of the psychologist and other physicians indicates that plaintiff’s problem in 1973 was a functional nervous disorder. This testimony comprises a sufficient factual basis for the trial judge’s conclusion that plaintiff’s disability was “caused or contributed to by mental illness or functional nervous disorder”. Finding no manifest error, we will not set aside the trial judge’s conclusion. Dyson v. Gulf Modular Corporation, 338 So.2d 1385 (La. 1976); Canter v. Koehring Company, 283 So.2d 716 (La.1973).

We find no merit to plaintiff’s contention that the trial judge erred by his failure to “accept” the testimony of the treating physician (Dr. Thornhill) “over any other physician” who saw Killebrew on “one or a few occasions”. While it is true that ordinarily great weight should be placed on the testimony of a treating physician, nevertheless, the trier of fact is not compelled to accept the testimony of that physician over the testimony of other physicians. Resolving conflicting medical opinions lies within the province of the trial judge and will not be disturbed merely based on a conclusion that the trial judge failed to accord greater weight to one expert (albeit a treating physician) than to another expert.

We reject also plaintiff’s argument that he is entitled to recover penalties and attorney’s fees. Plaintiff contends that defendant’s failure to make more than 4-months disability payments despite the trial court’s judgment in his favor entitling him to payment for 24 months subjects defendant to penalties and attorney’s fees as set forth in LSA-R.S. 22:657. As the trial judge stated, plaintiff’s suit is not based on a contract of insurance, but rather on a long term disability benefit plan and trust between an employer and its employee.

The plan upon which plaintiff bases his cause of action became effective on December 1, 1972. Section 2 of the plan provides that the employer is to maintain a trust fund with trustees selected by the company who are to administer the plan. Though it is true that prior to 1972 defendant made available to its employees disability insurance with a commercial insurance company, the existing program is a company plan managed by the company trustees. Defendant is merely providing a fringe benefit to its employees and cannot be considered as a commercial insurance company. The employee’s cause of action is based on his contract with his employer and not on a policy of insurance. The provisions of LSA-R.S. 22:657 apply only to commercial insurers which are subject to regulation by the Commissioner of Insurance. Furthermore, the provisions of LSA-R.S. 22:657 are penal in nature and must be strictly construed. Under the circumstances, we conclude LSA-R.S. 22:657 does not apply to the disability plan in the instant case and plaintiff is not entitled to penalties and attorney’s fees.

Finally, we find no merit to plaintiff’s contention that defendant is not entitled to reduce the disability payments by the amount received from Social Security. The long term disability benefit plan and trust provides that benefits payable “will be reduced by the amount of all other income benefits”. “[0]ther income benefits” include the following: “(a) any periodic cash payments provided on account of the employee’s disability; (i) by the Federal Social Security Act on the employee’s own behalf ..” Plaintiff argues that these provisions should not be given effect because they afford “an unconscionable advantage” to defendant. In support of this argument, plaintiff cites 42 U.S.C.A. § 407, a provision of the Social Security Act prohibiting the transfer or assignment of a person’s right to future Social Security payments. Plaintiff had previously signed an agreement with defendant acknowledging that any payments received under the Social Security Act would offset benefits payable under the long term disability plan.

The cited provision of the Social Security Law is not applicable in the instant case. Plaintiff has not assigned his right to future benefits. The agreement merely states that the employee’s benefits under the disability plan will be reduced by the disability payments received under Social Security. This agreement is neither contra bonos mores nor prohibited by law and, therefore, is binding.

Accordingly, the judgment is affirmed.

AFFIRMED

LEMMON, J., dissents in part and assigns reasons.

LEMMON, Judge,

dissenting in part.

I would impose penalties and attorney’s fees for failure to pay the amount of benefits undoubtedly due under a contract of insurance. Defendant should not be allowed to withhold payment of benefits undoubtedly due because it contracted to pay benefits itself rather than using a commercial insurance company.

The majority holds that (1) the disability benefit plan is not a contract of insurance and (2) defendant is not an insurer subject to R.S. 22:657.

R.S. 22:5 defines insurance as “a contract whereby one undertakes to . pay a specified amount upon determinable contingencies. . . . ”

When the employer and employee entered into the employment contract, disability benefit insurance was provided under a separate contract between a commercial insurance company and (a) the employer as policyholder and (b) the employee as beneficiary. Under the insurance contract the employer and employee agreed to pay a specified premium and the insurer agreed to pay a specified amount upon the happening of a determinable contingency. When the insurance contract was subsequently cancelled, the employer and employee entered into a contract whereby the employee agreed to pay a specified premium and the employer agreed to pay a specified amount upon the happening of a determinable contingency.

I see no reason why this was not a contract of insurance, just as was the earlier contract issued by the commercial insurer for a similar premium to pay similar benefits upon a similar contingency. The fact that the employer was not licensed as an insurance company is not determinative of the issue of whether the employer’s contract was one of insurance.

As to whether the employer was an insurer subject to R.S. 22:657, an insurer is defined by R.S. 22:5 as “every person engaged in the business of making insurance contracts . . . .” There is no requirement that insurance be the person’s principal business.

The state has a legitimate interest in regulating all contracts of insurance in the state, whether or not the making of insurance contracts is the person’s principal business. Perhaps only those persons who are engaged in the business of making insurance contracts as a substantial part of their business should be subject to licensing and commission regulations. However, the performance of all insurance contracts is a legitimate concern of the state, regardless of who makes these contracts.

Other court decisions have considered contracts of insurance between employers and employees. The rule of liberal construction against an insurer has been held to apply to a contract of insurance issued by an employer to an employee. 56 C.J.S. Master & Servant § 169 (1948). And in Succ. of Rockvoan, 141 So.2d 438 (La.App. 4th Cir. 1962), this court, while not expressly holding that a retirement system established by an employer constituted a contract of insurance, was “unable to distinguish the death benefit features of the Retirement System from life insurance” and applied “the law relative to life insurance” in determining the applicability of codal requirements for donations and community property rights.

The public policy underlying R.S. 22:657 is the protection of the beneficiary of an insurance contract from an arbitrary and unreasonable denial by an “insurer” of benefits undoubtedly due. Had the commercial insurer that previously wrote the coverage denied a claim under these circumstances, the penalty would have been imposed. In my opinion the same underlying public policy should require the employer that made this insurance contract to pay timely all claims undoubtedly due or to pay a penalty for failure to do so.

      . A brochure describing the disability plan at defendant corporation indicates that an employee’s contribution amounts to..2 of 1% of his basic earnings. If an employee earns $100.00 per week, according to the brochure, his contribution would amount to $.20 per week.

      . In Mitchell v. Equitable Equipment Company, 330 So.2d 919 (La.1976), cited by plaintiff, the court concluded the medical evidence established that the employee’s disability was caused by an ulcer (which did not pre-exist coverage) and by a pre-existing disease (which did pre-exist coverage). The policy in Mitchell excluded recovery where a disability commencing during the first year of coverage had been caused by a pre-existing disease for which the insured had received treatment or medicine during a three-month period prior to the effective date of the insurance. The claimant in Mitchell had not received treatment during that time period. In that instance, the Supreme .Court concluded the employee’s disability was covered. On the other hand, the disability plan in our case does not contain the limitation clause of the Mitchell policy, but instead provides that benefits will not be paid in excess of 24 months for a disability “caused or contributed to by mental illness or functional nervous disorder”. In our case, the trial judge concluded the medical evidence preponderated that plaintiff’s disability resulted from a functional nervous disorder and not from organic brain disease. The cases are factually dissimilar.

      . See Eaton v. General Accident Group, 292 So.2d 773 (La.App. 4th Cir.1974).

      . As a cash transaction, the employee paid only part of the premium. However, the employee earned the balance of the premium as compensation under the employment contract for services performed and that amount was not a gratuity paid by the employer. See Inland Steel Co. v. NLRB, 170 F.2d 247 (7th Cir. 1948), cert. den. 336 U.S. 960, 69 S.Ct. 887, 93 L.Ed. 1112.

      . “Person” is defined by R.S. 22:5 as:
      “ ‘Person’ means any individual, company, insurer, association, organization, reciprocal or inter-insurance exchange, partnership, business, trust, or corporation.”


text:
    Florence F. McNULTY v. D & G MAINTENANCE CORPORATION.
    No. 8465.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 1977.
    Rehearing Denied Dec. 13, 1977.

      Steven R: Plotkin, Joseph M. Singerman, New Orleans, for plaintiff-appellant.
    Drury, Lozes & Curry, James H. Drury, New Orleans, for defendant-appellant.
    Before LEMMON, GULOTTA and SCHOTT, JJ.
   GULOTTA, Judge.

Plaintiff brings this action for damages sustained when she slipped and fell, in the course of her employment for the City of New Orleans, on a tile floor which had been mopped by defendant maintenance company. The City intervenes seeking reimbursement for workmen’s compensation and medical benefits paid on plaintiff’s behalf.

Following an initial trial of . the matter, the court rendered judgment dismissing plaintiff’s suit for the reason that plaintiff was contributorily negligent in failing to observe a “clean-up” man who was still mopping when the accident occurred. Under the circumstances, the trial judge concluded that plaintiff had failed to see that which she should have seen and had continued to walk without exercising proper caution. Following the granting of a new trial, however, the court rendered judgment in favor of plaintiff and against the maintenance company in the sum of $50,000.00 and rendered further judgment in favor of the City of New Orleans and against plaintiff for all compensation benefits received by her.

In reasons for judgment after hearing evidence on the new trial, the trial judge concluded that the clean-up man employed by defendant had finished mopping the floor with soap prior to the accident and plaintiff could not have seen him mopping; that plaintiff had slipped on the soapy floor; that the clean-up man had been instructed not to use soap; that plaintiff had traversed the floor on prior occasions while the clean-up man was mopping; and that no warning signs or markers had been displayed although the clean-up man had asked for warning signs. Based on these findings, among others, the trial judge concluded plaintiff was not guilty of contributory negligence.

In this appeal, defendant claims the trial judge erred in his factual finding that soap had been used in mopping the floor. Defendant further contends that plaintiff was contributorily negligent in failing to see the clean-up man and in failing to use proper caution when she traversed a wet, slippery floor. Seeking an increase in quantum, plaintiff also has appealed. We affirm.

DEFENDANT’S NEGLIGENCE

The clean-up man testified that at the time of the accident he had finished mopping the floor and was waiting for it to dry. He stated the floor was slippery and he had hesitated to'walk on it himself because of fear he might have fallen. Plaintiff was the first person to walk across the floor after it had been mopped. There were no printed warning signs or markers to indicate to plaintiff or to anyone else that the floor had just been mopped and was slippery. Indeed, the clean-up man testified that he had requested warning signs from his employer in the past but that they had never been furnished to him.

Plaintiff testified that following the accident she had seen a greasy substance on her shoes which looked like soap. Though the clean-up man could not recall if he had used soap in mopping the floor at the time of the accident, he testified that he sometimes mops with water and other times with soap. Plaintiff’s supervisor testified, however, that she had instructed the maintenance man not to use soap. Immediately following the accident, in response to her question, the clean-up man stated (to the supervisor) that he had used soap and had forgotten her previous instructions. Furthermore, a security guard slipped while walking toward plaintiff to assist her following the fall. The evidence considered, we cannot say that the trial judge’s finding of negligence on defendant’s part is erroneous.

CONTRIBUTORY NEGLIGENCE

At the time that the accident occurred, the clean-up man had finished mopping. No warning signs had been posted and plaintiff had traversed the wet floor on prior occasions without incident. A cashier-coworker testified that from where she was standing on the day of the accident, before plaintiff slipped, she could not “see” that the floor was wet and slippery. Under these circumstances, we cannot say plaintiff should have been placed on guard of the slippery condition of the floor. We conclude, as did the trial judge, that plaintiff was not guilty of contributory negligence. See Farris v. Baker, 240 So.2d 410 (La.App. 2d Cir. 1970); Owens v. New Orleans Building Maintenance, Inc., 349 So.2d 494 (La. App. 4th Cir. 1977).

QUANTUM

Plaintiff, who was 62 years old at the time of the accident and who had pre-exist-ing osteoporosis and arthritis, sustained a contusion of the left shoulder and a sprain of the dorsal and lumbar spine. Following the accident, she was confined to the hospital for a two-week period and thereafter was admitted to a physical therapy center for an additional two weeks.

Dr. George Gernon Brown, Jr., an orthopedist and plaintiff’s treating physician, testified that plaintiff has suffered a 30-35% disability of her shoulder and a 15-25% disability of her back, which, taken together, constitute a total permanent body disability of 15%. Though he stated plaintiff has difficulty in standing for prolonged periods of time and, therefore, cannot return to cashier work which she had performed prior to the accident, he felt that she could do clerical work. The doctor estimated that future medical treatment will cost between $200.00-400.00 per year (without consideration of inflation). He acknowledged, however, that plaintiff probably would have encountered some future back problems even if the accident had not occurred. He does not expect any dramatic improvement in plaintiff’s condition which includes a restriction in the range of motion of her shoulder.

Accepting plaintiff’s figures for loss of wages at 15,123.00, plus anticipated future medical expenses in the.sum of $5,880.00 and $83.00 drug expense, we compute plaintiff’s special damage loss at $11,086.00. When this amount ($11,086.00) is deducted from the total $50,000.00 award, we compute an award for pain and suffering and loss of future earnings in the sum of $38,-914.00. This amount must be reduced by the amount ordered reimbursed to the City for all compensation claims paid by it to plaintiff.

Complaining of the inadequacy of the $50,000.00 award, plaintiff interestingly contends that the amount of the award is less than the total amount that she would be entitled to receive under workmen’s compensation. According to plaintiff, she is totally and permanently disabled under the meaning of the workmen's compensation act and, as such, would have been entitled to receive $65.00 per week for 500 weeks, i.e., a total of $32,500.00, and further entitled to receive up to $25,000.00 for all related medical expenses. She argues, therefore, that she would be entitled to receive $57,500.00 under the workmen’s compensation act. Plaintiff then claims that the theory of recovery under workmen’s compensation does not contemplate or include recovery for pain and suffering. When a reasonable amount is included for these damages (pain and suffering), plaintiff argues, a $50,000.00 total award is woefully inadequate. We are not in agreement with this argument.

Compensatory payments provided for under the workmen’s compensation act cannot be equated to damages resulting from a tort. The legislative intent in the workmen’s compensation law, a form of social legislation, differs from the purposes of reimbursement for damages. An award in tort is not suspect merely because it does not exceed appreciably benefits that might be awarded under workmen’s compensation, as plaintiff contends.

In the instant case, we do not consider the evidence so strong as to compel an award in a workmen’s compensation case based on total and permanent disability. Furthermore, the amount of future medical costs is speculative. The validity of plaintiff’s argument, to some extent, presupposes that the entire $25,000.00 in medical expenses will be exhausted. The evidence does not support this assumption. We conclude, therefore, that benefits plaintiff might have received under the workmen’s compensation act cannot be the basis, in the instant case, for a claim that the tort award is inadequate.

The circumstances considered, we cannot say the $50,000.00 award constitutes an abuse of the trial court’s discretion. See Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976); Robinson v. Graves, 343 So.2d 147 (La.1977).

The judgment is affirmed.

AFFIRMED.

      . Though we accept this figure for purposes of argument, it should be reduced by the amount received by plaintiff in compensation payments. The chief of the payroll department of the City testified on September 22, 1975, that plaintiff has received $65.00 per week from October 26, 1974 to August 23, 1975. The petition of intervention of the City alleges $3,315.00 in compensation. Accordingly, we consider $1,808.00, i.e., $5,123.00 minus $3,315.00, to be a more accurate figure for plaintiffs loss of wages.

      . According to plaintiff, based on a 19.6-year anticipated life expectancy at $300.00 per year medical expenses without an inflation factor.

      . The trial judge awarded $50,000.00 as a lump sum without delineating which portions of it were attributable to special damages and which portions were attributable to general damages.

      . A 62-year-old woman with yearly earnings in the sum of $5,232.00. Plaintiff computes loss of future earnings at $26,393.00 based on an employment expectancy of 6.7 years at $5,200.00 per year.

      . If plaintiff’s loss of wages is taken as $1,808.00 (see footnote 1., supra), the award for pain and suffering and loss of future earnings would total $42,229.00.

      . The petition of intervention of the City alleges $2,426.06 in medical expenses and, as pointed out earlier, $3,315.00 in compensation payments.

      . This is not to say that conceivably, in some cases, with supportive proof, this argument might not have merit.


text:
    L. Scott PATTON v. PRECISION MOTORS, INC.
    No. 8471.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 1977.
    Brian L. Williams, Baton Rouge, for plaintiff-appellee.
    Satterlee, Mestayer & Freeman, Henry F. Mestayer, New Orleans, for defendant-appellant.
    Before LEMMON, GULOTTA and SCHOTT, JJ.
   GULOTTA, Judge.

Defendant appeals from a judgment awarding plaintiff costs for repair of an automobile transmission and additional damages for delay, inconvenience, loss of use and mental anguish. We affirm.

On July 11, 1974, plaintiff purchased a used Lotus Europa automobile. Approximately one week thereafter, he took the vehicle to defendant for an 18,000-mile checkup and specified that the starter, suspension, transmission and clutch be inspected. The vehicle remained at Precision until August 8, 1974, the delay occasioned by inability to obtain a replacement flywheel. Between August 8 and August 19, plaintiff noticed a tightening in shifting. On August 19, he heard grinding noises apparently coming from the transmission. Although not a mechanic, plaintiff noticed, upon inspection, that seals from the transmission had been displaced. On September 15, 1974, he towed the vehicle from Baton Rouge to New Orleans and returned it to Precision where it was ascertained that the transmission had been completely ruined. Defendant removed the transmission from the car and plaintiff took it, in a disassembled condition, to Benton, Inc., for repairs. When work on the transmission was completed, Benton returned it to Precision where it was installed in the vehicle. Plaintiff obtained the car from defendant on February 19,1975, but still encountered difficulty in shifting. The automobile was then returned to Benton where, among other things, repairs were made to the “shift linkage”. Thereafter, plaintiff filed suit against Precision for damages resulting from the destruction of the transmission.

According to the mechanics who testified, the problem was caused by the absence of “clips” from the transmission assembly. These locking nuts were either missing or worked themselves free and allowed the transaxle seals to back out, thereby causing damage to the transmission. The trial judge stated, in oral reasons for judgment, that Precision had not performed the 18,-000-mile checkup which, if properly done, would have revealed the absence of the clips or any problem with them. He further stated that in removing the flywheel, it was necessary for Precision to dismantle the transmission and, therefore, the circumstantial evidence indicated that its employees had the “greater possibility” of negligently removing the clips or improperly replacing them in reassembling the transmission after replacement of the flywheel.

On appeal, defendant complains that the trial judge admitted hearsay evidence by permitting the introduction of two repair orders prepared by Benton, Inc. According to defendant, the mechanic from Benton who performed the actual services did not testify and no one from Benton confirmed that the Benton repair orders are receipts for sums paid by plaintiff. Defendant argues further that plaintiff has failed to prove by a preponderance of the evidence— either direct or circumstantial — a causal connection between the transmission damages and any action on the part of Precision. Defendant also complains that even if causation is proved, plaintiff has failed to present evidence justifying the $500.00 general damage award for inconvenience, loss of use, delay and mental anguish. We disagree.

ADMISSIBILITY OF THE DOCUMENTS

We find no merit to defendant’s contention that the two documents prepared by Benton, Inc. are inadmissible.

One of the questioned exhibits is a copy of a Benton, Inc. invoice dated February 6, 1975. The total of the invoice is $1,162.68 and the words “Pd cash” are written across the front of the invoice. Included in the total is a labor charge of $127.50, corresponding to the words “Rebuild 336 — 4 Speed Trans.” Also included is a $979.81 subtotal of parts which are itemized by part numbers and names.

The second questioned exhibit is another Benton, Inc. invoice dated February 20, 1975, also made out to plaintiff for a total of $334.32. The invoice is marked “Paid 3-7-75 Cash” and includes charges for an 18,000-mile inspection and repair of shift linkage. The trial judge allowed recovery for $94.15 from this invoice.

Dale Pinney, formerly employed as a service manager by Benton, Inc., identified the invoices as Benton work orders. Further, he stated the transmission had been brought to him by plaintiff in a disassembled state after it had been removed by Precision. This witness checked the dismantled transmission and ordered the parts itemized on the exhibit. Though he did not do the work himself on plaintiffs car, he did examine the February 6, 1975 invoice and testified that the parts listed therein were those necessary to fix the transmission. Plaintiff testified that the amount of the invoice was paid by him in full, and the document itself is marked paid. Precision acknowledged that it removed the transmission from the car in order that plaintiff might take it to Benton for repairs and that it reinstalled the rebuilt transmission thereafter. Under the circumstances, we find no evidentiary error when the trial judge permitted introduction of the Benton invoices to show repairs made to the transmission.

CAUSATION

Though it is undisputed that the absence of the clips caused the damage to the transmission, no direct evidence exists to show how the clips became missing or disengaged. The cause of their absence can only be determined from circumstantial evidence.

As stated by the Louisiana Supreme Court in Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971):

“ . . . [Pjroof by direct or circumstantial evidence is sufficient to constitute a preponderance, when, taking the evidence as a whole, such proof shows that the fact or causation sought to be proved is more probable than not.”

See A & M Pest Control Service, Inc. v. Fejta Construction Co., Inc., 338 So.2d 946 (La.App. 4th Cir. 1976) and Dussouy v. Fireman’s Fund Insurance Company, 346 So.2d 1122 (La.App. 4th Cir. 1977).

In the instant case, the evidence as a whole shows that Precision’s negligence more probably than not caused the clips to become disengaged. At the time the automobile was first taken to Precision by plaintiff for the 18,000-mile checkup, the clips in the transmission were not missing. The former owner of the vehicle who sold the car to plaintiff on July 11, 1974, testified that the vehicle was in good condition except for a minor problem with the starter and that he had never had difficulty with the transmission. Plaintiff himself testified that prior to taking the car to Precision, it drove well with the exception of problems with the starter and some minor sticking of the shift in third gear.

Though the service manager of defendant testified that no necessity existed to disassemble the transmission in order that work might be performed on the flywheel and through Precision’s mechanic testified that he had not removed the clips in the course of performing work on the vehicle, plaintiff testified that he had seen the disassembled transmission sitting apart from the engine during the course of repairs at Precision. He further stated that upon receiving his car on August 7, 1974, after the initial repairs had been performed, he had observed two “holes” in the transmission where, as he later learned, the clips should have been located. Pinney, the service technician at Benton, Inc., testified that any irregularities concerning the clips should have been observed during the 18,-000-mile inspection which involves a check of tightness of nuts and bolts on the drive shaft and universal joints which are located in close proximity to the clips. Pinney further testified that it is very unlikely that the clips would have vibrated off by themselves. Plaintiff testified that after receiving the vehicle from Precision on August 7, 1974, his problems with the vehicle began. Pinney testified that when the disassembled transmission was brought to him for repairs, the clips were not present.

Defendant, however, points out that the car was driven for approximately 1,800 miles during the period from August 7, 1974, when plaintiff received the car from Precision, until September 15, 1974, when it was towed to New Orleans from Baton Rouge. In view of testimony by the mechanics that a car without clips could not have been driven at highway speeds and that towing the car without clips would have the same effect as driving it in that condition and would cause damage to the transmission, defendant argues that a reasonable possibility exists that plaintiff himself damaged the transmission by towing it. We are not persuaded by this argument.

Pinney testified that a car driven “around town” without clips might be operable for several months though it would not last for “very long” during highway driving. He did not specify, however, what distance in highway driving could be trav-elled without the clips. The fact that the car was driven for 1,800 miles does not compel a conclusion that Precision was not negligent. A reasonable conclusion is plausible, from the facts surrounding this case, that Precision negligently replaced the clips in such a manner that they remained on the vehicle for some time, permitting plaintiff to drive the automobile on the highway before it became inoperable. Furthermore, it is not logical that plaintiff would have towed the vehicle had it not broken down. We also point out that plaintiff could not be expected to know that using a tow bar would damage the transmission in the absence of the clips. Under the circumstances, we conclude, as did the trial judge, that defendant’s negligence is the most plausible explanation for the absence of the clips.

The evidence considered, we cannot say the trial judge erred when he concluded Precision’s negligence caused the transmission damage.

QUANTUM

We reduce the $1,464.33 special damage award by the sum of $94.15. Plaintiff is entitled to total special damages in the amount of $1,370.18, i. e., the sums of $1,162.68 (the cost of labor and parts to rebuild the transmission as represented by the total of the February 6, 1975 invoice of Benton, Inc.), $175.00 (a refund to plaintiff of Precision’s charge to remove the transmission from the car in order that it might be repaired by Benton) and $32.00 (a refund to plaintiff of Precision’s fee for storing the vehicle while the transmission was being repaired). The trial judge erroneously awarded, however, the additional sum of $94.15 for the cost of “transmission parts”. This figure appears on the February 20, 1975 invoice of Benton, Inc., as the total cost of several parts identified by part number only. Plaintiff testified that after the repaired transmission was installed by Precision, he still encountered difficulty with shifting. This invoice indicates that the shift linkage was repaired, that the 18,000-mile inspection was performed and that certain other repairs, presumably unrelated to the transmission, were made. However, neither the parts specifications on the invoice nor testimony in the record indicates that the $94.15 amount is related to any transmission parts or any problem whatsoever with the transmission. Plaintiff failed to carry the burden of showing entitlement to this amount. Accordingly, we reduce the total special damage award by $94.15.

With regard to the $500.00 general damage award for delay, inconvenience, loss of use and mental anguish, plaintiff testified that as a result of the destruction of the transmission, he was unable to drive his car from August 19, 1974 until March 7, 1975, though he was obligated during that time to continue making payments on his car loan. During this period he was required to use alternate means of transportation. We are impressed by plaintiff’s testimony that he suffered inconvenience occasioned by the loss of use of his vehicle. This testimony, together with the fact that plaintiff was required to tow the vehicle himself from Baton Rouge to New Orleans and thereafter to transfer the transmission to Benton, Inc., forms a substantial factual basis for the general damage award.

A plaintiff is entitled to a general damage award for inconvenience and loss of use when the damages to his property result from a defendant’s negligence. In Nolan v. Liuzza, 301 So.2d 892 (La.App. 4th Cir. 1974), an award of $500.00 was made to a car owner for loss of use of his vehicle for approximately six months while tort-caused damages were being repaired. In the instant case, plaintiff’s vehicle was disabled for a similar period of time while the transmission was being overhauled. We do not consider the $500.00 award to be excessive under the circumstances.

Consistent with the above, we reduce the award in favor of plaintiff by the sum of $94.15. Accordingly, the judgment is amended and recast as follows:

IT IS ORDERED that there be judgment herein in favor of the plaintiff, L. Scott Patton, and against the defendant, Precision Motors, Inc., in the amount of One Thousand Three Hundred Seventy and 18/100 ($1,370.18) Dollars in special damages and Five Hundred and No/100 ($500.00) Dollars in general damages, to-talling One Thousand Eight Hundred Seventy and 18/100 ($1,870.18) Dollars, together with interest at the rate of 7% per annum from date of judicial demand until paid and for all costs of these proceedings.

In all other respects, the judgment is affirmed.

AMENDED AND AFFIRMED.

      . Plaintiff testified that he had, during this period, driven the vehicle from New Orleans to Baton Rouge.

      . Although the trial judge included in the $500.00 award damage for “mental anguish”, our court in Carimi v. Saia, 301 So.2d 895 (La.App. 4th Cir. 1974) refused to allow damages for “mental anguish” or “emotional stress” unless accompanied by illness or bodily harm. It appears, however, that the Third Circuit in Jardell v. Sabine Irrigation Company, Inc., 346 So.2d 1365 (La.App. 3d Cir. 1977) would reach a different result and would consider a compensable item of damages for mental anguish in a case such as the instant one. See also Trahan v. Florida Gas Transmission Company, 208 So.2d 550 (La.App. 3d Cir. 1968). Because we have determined that a $500.00 award for inconvenience and loss of use of the automobile is not excessive, any further discussion of “mental anguish” (not accompanied by illness or bodily harm), where property damage results from a tort, is academic.


text:
    Theodore E. SWAN, Sr. v. Eugene FISCHER, Jr., and Dr. James M. Linn, Jr., et al.
    No. 8489.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 1977.

      Michael H. Bagot, John H. Gniady, New Orleans, for plaintiff-appellant.
    John G. Villarrubia, Metairie, for defendant-appellee, Dr. James M. Linn, Jr.
    Before GULOTTA, STOULIG and BEER, JJ.
   GULOTTA, Judge.

Plaintiff appeals from a summary judgment dismissing his defamation suit against Dr. James M. Linn, Jr., one of 37 defendants named in the suit. We affirm.

Plaintiff, an officer in the local branch of a fraternal organization, alleges in his petition that the named defendants were suspended members of the organization who, on February 4, 1976, “through their attorney sent a letter” which defamed plaintiff to the top-ranking national official of the organization. Attached to the letter was a list of individuals, including Linn, on whose behalf the letter had been sent. Plaintiff seeks damages for the injuries to his standing and reputation within both the local and national organization.

In support of his motion for summary judgment, Linn filed into the record the affidavits of himself, George Frosch, Eugene Fischer, Jr. (codefendants who had consulted with the attorney), Carl J. Schu-macher, Jr. (attorney who sent the letter) and Dermot McGlinchey (Schumacher’s law partner).

In his affidavit, Linn averred that prior to February 4, 1976, he had been unaware of the specific content or wording of the letter in question; that he had never been consulted concerning the contents of the letter and had never given implicit or explicit approval in any form to Fischer, Frosch or Schumacher; that he had never engaged the legal services of Schumacher for representation in any matter; and that he had not consented to the attachment of the list containing his name.

Both defendants Frosch and Fischer stated in affidavit that Linn’s name “was inadvertently and in error included” on the list attached to the letter; that Linn had not authorized the writing of the letter or approved the attachment of the list containing his name; that Linn had no knowledge of the writing of the letter; and that to their knowledge Linn was never represented by Schumacher.

The substance of Schumacher’s affidavit was that he had never met with Linn; that he had never entered into any agreement with him for legal services; and that to the best of his knowledge, Linn had no knowledge of the specific contents of the letter written by him. McGlinchey averred that to the best of his knowledge Linn had never personally requested representation by his firm.

In opposition to the motion for summary judgment, plaintiff filed his own countervailing affidavits and that of Schumacher. In the first affidavit filed by plaintiff, he avers that the February 4, 1976 letter by Schumacher stated, “Our office represents Mr. Gene Fischer, George Frosch and thirty-seven other members, a complete list of the names of which is annexed . . . .”; that Linn’s name appeared on the list; and that shortly after the February 4 letter had been prepared, Frosch forwarded a copy of it to Linn with the following statement: “Enclosed is a copy of the letter sent to the Supreme Commander />by our attorney. Since your name is among the 39,1 thought you may want to see it.” Plaintiff further averred that Linn had not, during the period from February 4, 1976 to June 25, 1976, denied to plaintiff the contents of the letter or Schumacher’s authority to represent him and that on June 25, 1976, Schumacher’s firm, as counsel for Linn and the other defendants, filed a motion for an extension of time to file responsive pleadings. In a second affidavit, plaintiff stated that Schu-macher had written the letter of February 4, 1976, as the attorney for and acting on behalf of Linn and the other named defendants and he further stated that prior to February 4, 1976, Schumacher had been advised and believed that he represented all the named defendants and was acting on their behalf in preparing and mailing the letter. Schumacher stated in his affidavit that he mailed the letter on behalf of the named defendants, including Linn, and that at the time of preparing the letter, he had been advised and had understood that he was representing all of the defendants and acting on their behalf.

It is plaintiff’s contention, on appeal, that the pleadings and affidavits disclose genuine issues of material fact and, therefore, the trial judge erred in granting the motion for summary judgment. According to plaintiff, the issues of fact which preclude a summary judgment in the instant ease are 1) whether Linn had consulted with Frosch and Fischer and the other named defendants in promoting action against Swan which ultimately resulted in the sending of the letter; 2) whether Schumacher was advised by persons acting on behalf of Linn that he (Schumacher) was representing Linn in sending the letter; and 3) whether Linn was informed that the letter had been written and thereafter acquiesced in its publication. We disagree.

LSA-C.C.P. art. 966, dealing with summary judgment, provides, in pertinent part:

“ * * * The judgment sought shall be rendered forthwith 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.”

We are mindful that the burden is upon the party moving for a summary judgment to prove the absence of any genuine issue of material fact and that doubtful cases must be resolved in favor of a trial on the merits. When we consider the petition and the affidavits in the instant case, however, we are led to conclude, as did the trial judge, that no genuine issue of material fact exists.

Plaintiff has filed no affidavits countervailing the statements of the defendants Frosch and Fischer regarding the absence of any connection between Linn and the letter prior to February 4, 1976. Plaintiffs affidavit merely states that Linn’s name appeared on the list attached to the letter and that plaintiff believes Linn received a copy of the letter shortly after it was mailed and took no steps to dissociate himself from it. Schumacher’s affidavit filed by plaintiff merely states that the attorney was advised and understood that he was representing all of the individuals named on the list. These affidavits do not countervail those of Frosch and Fischer which state that Linn’s name was placed on the list inadvertently without any authority, either direct or indirect, from Linn. It is undisputed that Schumacher wrote the letter on behalf of the persons whose names were included on the list, but it is also undisputed that Linn’s name was erroneously included on it. Accordingly, it cannot be said that Linn employed Schumacher or authorized the sending of the letter as alleged in plaintiff’s petition. No genuine issue exists as to these material facts. Accordingly, it is appropriate that Linn be summarily dismissed from the suit.

Though plaintiff’s affidavit does raise factual issues with regard to Linn’s receipt of a copy of the allegedly defamatory letter after it was written and his failure to dissociate himself from it, we do not consider these issues to be material to plaintiff’s suit. The petition alleges that “On February 4, 1976, the defendants through their attorney sent a letter” which defamed plaintiff. Only actions prior to or on February 4,1976 are material to this allegation of plaintiffs petition. Whether Linn was informed of the writing of the letter after its mailing and whether he, thereafter, acquiesced in its publication are not material. The petition does not allege that any of the defendants, though ignorant of the mailing of the letter, acquiesced in its publication after learning of it. Linn’s acquiescence, if any, after the publication of the letter, is not contemplated by the petition and, therefore, any issue of fact regarding it is not material to the motion for summary judgment.

Accordingly, for the reasons above, the judgment is affirmed.

AFFIRMED.

      . LSA-C.C.P. art. 966; Andrew Development Corp. v. West Esplanade Corporation, 347 So.2d 210 (La.1977); Morgan v. Matlack, Inc., 342 So.2d 167 (La.1977).