author: SAMUEL, Judge. LEMMON, Judge

text:
    Charles Darwin SLATER v. Idabelle Cloutman, wife of Charles Darwin SLATER.
    No. 7488.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10, 1976.
    Rehearing Denied March 16, 1976.
    Writ Refused May 4, 1976.

      Edmond H. Fitzmaurice, Jr., New Orleans, for plaintiff-appellee.
    Henry P. Dart, III, New Orleans, for defendant-appellant.
    Before SAMUEL, LEMMON and SCHOTT, JJ.
   SAMUEL, Judge.

On June 19, 1975 plaintiff filed this suit against his wife, for separation from bed and board in the Twenty-fifth Judicial District Court for the Parish of Plaque-mines. On July 30, 1975 he filed a supplemental petition seeking a divorce on the ground of continuous living separate and apart for more than two years. On June 25, 1975 Mrs. Slater filed a separation suit (also later converted into a divorce action) against her husband in the Twenty-fourth Judicial District Court for the Parish of Jefferson. Thereafter, in this suit Mrs. Slater filed exceptions to the jurisdiction and venue of the Twenty-fifth Judicial District Court. She also filed an exception of lis pendens. Mr. Slater then filed a rule for custody of their minor child.

After hearing the exceptions and the rule, judgments were rendered by the Twenty-fifth Judicial District Court overruling the exceptions and awarding custody of the minor child to Mr. Slater. Mrs. Slater appealed from the judgment awarding custody and applied for writs from the judgment overruling the exceptions. Ultimately the writ application was granted. and the matter is now before us on both the appeal and the writs.

In this court, counsel for appellant and relator argues only the questions of venue and custody; he does not contest the judgment as it relates to lis pendens. Thus, the issues presented are: (1) whether Mr. Slater was domiciled in the Parish of Pla-quemines, thus giving the Twenty-fifth Judicial District Court venue in this suit; and (2) if so, whether the trial court erred in awarding the custody of the minor child to the father. Because our conclusion on the first issue is that Mr. Slater was not domiciled in. Plaquemines Parish, so that the Twenty-fifth Judicial District Court for the Parish of Plaquemines was a court of improper venue without authority to hear the matter, we do not consider the second issue.

The basic controlling law is to be found in the following codal articles:

“An action for an annulment of marriage, for a separation from bed and board, or for a divorce shall be brought in a parish where either party is domiciled, or in the parish of the last matrimonial domicile.
The venue provided in this article may not be waived, and a judgment rendered in any of these actions by a court of improper venue is an absolute nullity.” LSA-C.C.P. Art. 3941.
“The domicile of each citizen is in the parish wherein he has his principal establishment.
The principal establishment is that in which he makes his habitual residence; if he resides alternately in several places, and nearly as much in one as in another, <and has not declared his intention in the manner hereafter prescribed, any one of the said places where he resides may be considered as his principal establishment, at the option of the persons whose interests are thereby affected.” LSA-C.C. Art. 38
“A change of domicile from one parish to another is produced by the act of residing in another parish, combined with the intention of making one’s principal establishment there.” LSA-C.C. Art. 41.
“In case this declaration [recorded declaration of intent to change domicile] is not made, the' proof of this intention shall depend upon circumstances.” LSA-C.C. Art. 43.

We summarize Mr. Slater’s testimony relative to domicile in the next four paragraphs.

He is in the offshore marine business and has a number of different residences. At the present time he lives at 3000 St. Charles Avenue, New Orleans, where he has resided since January, 1975. He has a home in Aspen, Colorado, a yacht harbored in New Orleans, and a family home located in Timberlane, which is in Jefferson Parish. He resided continuously in the Timberlane home from 1966 until 1971 or 1972 and from November 22, 1974 to December, 1974 recovering from an appendectomy. During part of 1974, he lived in an apartment in a New Orleans marina, moving from there in December, 1974 or January, 1975 to the St. Charles Avenue apartment.

On December 21, 1974 he vacationed in Aspen with his wife and his children for approximately two weeks returning to New Orleans about January 3, 1975 and going directly to his rented apartment on St. Charles Avenue in New Orleans.

He considers his mother’s home in Belle Chasse in Plaquemines Parish his domicile. He has a separate bedroom in her two-bedroom house and keeps some of his clothes there, although he also has clothes at about fifteen different places all over the world. When asked how often he goes to Belle Chasse, he said there is no get time, it would just depend on his schedule and sometimes it would be more frequently than others. When asked if he had filed a declaration of intent to change his domicile within the last five years, he answered in the negative.

Mr. Slater was born in Plaquemines Parish. He married Mrs. Slater in 1950 and actually resided in Plaquemines Parish for approximately the following eight to ten years. After leaving Plaquemines Parish the couple moved to Orleans Parish and from there to Jefferson Parish. He registered to vote in Plaquemines Parish in 1953 and has never changed his voter registration. His passport issued in 1973 lists his address as Belle Chasse. The motor vehicle registration of his two cars lists his address as Belle Chasse, Louisiana. His boat is registered with the Belle Chasse address. He pays personal property taxes in Plaquemines Parish and has done so over the years. He maintains an occupational license from the Parish of Plaquemines in connection with his business, although his two offices are in New Orleans and Brazil. He has apartments in Holland, Brazil, Pascagoula, Mississippi, a home in Colorado, two suites at the French Quarter Inn, New Orleans, and an apartment on St. Charles Avenue in New Orleans. He also lives on his yacht in various parts of the world. He has never intended to change his permanent fixed address and domicile in Plaquemines Parish nor does he intend to so do when he moves to Bamboo Road, New Orleans, where he has a twenty year lease on a home owned by his son and where he intends to reside with his children when renovations are complete.

On cross examination, plaintiff identified income tax returns for the years 1970 through 1974 made in the names of himself and his wife, which listed his address as Colony Road [Timberlane], Gretna, Louisiana. Mr. Slater stated this resulted from Mrs. Slater’s refusal to sign the form listing their address as Plaquemines Parish, causing them to get into trouble with the Internal Revenue Service.

Mrs. Slater testified: Following their marriage in 1950 they lived with Mr. Slater’s mother in Plaquemines Parish until 1951 and then moved to the Parkchester Apartments in New Orleans where they lived until 1952. They then moved to Port Sulphur in Plaquemines Parish and resided there until 1960, at which time they moved to MacArthur Boulevard in New Orleans. They lived on MacArthur until they built the home in Timberlane in 1967 where they lived until he moved to New Orleans in the French Quarter Inn in 1971. He returned off and on to the Timberlane residence until 1974 when he moved to an apartment on St. Charles Avenue, New Orleans. She voted in Plaquemines Parish because her husband would not let her change her registration for business reaso'ns.

This court states in Charbonnet v. Hayes, La.App., 318 So.2d 917, 919:

“Our courts have frequently interpreted the meaning of the word ‘domicile’. We refer to a number of cases in which the ‘domicile’ or ‘principal establishment’ has been jurisprudentially restated to be ‘the principal- domestic establishment’. This is based upon where a person sleeps, takes his meals, has established his household, and surrounds himself with his family and the comforts of domestic life. In establishing domicile, intent is based on actual state of facts and not what one declares them to be.” [citations omitted],

The record establishes to our satisfaction thaf when the Slaters moved from Port Sulphur to MacArthur Boulevard in New Orleans in 1960, they effectively changed their domicile to Orleans Parish. And when Mr. Slater built his family home in Timberlane in Jefferson Parish, moved there with his family in 1967 and lived there with his family until 1971 or 1974, he effectively changed his domicile to the Parish of Jefferson. The record further establishes that thereafter his domicile was in the City of New Orleans.

The facts that Mr. Slater was and is registered to vote in Plaquemines Parish, his passport, motor vehicle and boat registration list his address as Belle Chasse, he pays personal property taxes in Plaquem-ines Parish, and maintains an occupational license from Plaquemines Parish are not controlling on the question of domicile. They appear to be mainly for business purposes and, insofar as the question of domicile is concerned, are important only as they may relate to an intention to make an actual residence a domicile. Here the record contains no acceptable evidence of any such actual residence by Mr. Slater in his mother’s Plaquemines Parish home. As stated in Charbonnet v. Hayes, intent is based on actual facts and not on what one declares them to be.

For the reasons assigned, the judgment appealed from is reversed, and it is now ordered that there be judgment in favor of the defendant, Idabelle Cloutman, wife of Charles Darwin Slater, and against the plaintiff, Charles Darwin Slater, maintaining defendant’s exception to the venue and dismissing plaintiff’s suit.

Reversed.

LEMMON, J., concurs with written reasons.

LEMMON, Judge

(concurring).

Residence and intention are the two essential factors in the determination of domicile.

I dissented in Charbonnet v. Hayes, supra, an election case, on the basis that there was sufficient evidence of both intention and physical presence to satisfy the domiciliary qualifications for representative office, the purpose of which in my opinion is to insure that the person elected has sufficient contacts with the election district so as to be an effective spokesman for that district as part of our representative form of government.

In this case virtually all of Mr. Slater’s evidence (voter registration, vehicle and boat registration, occupational license and other documents issued in accordance with information supplied by him) relates to his intention to maintain his domicile in Pla-quemines Parish. There was virtually no evidence as to any appreciable physical presence there, not even for business or recreational activities. I therefore concur that the evidence preponderates in favor of the conclusion that Mr. Slater is not domiciled in Plaquemines Parish.

      . No appeal was taken from the judgment overruling the jurisdiction and venue exceptions allegedly because such a judgment has been held to be interlocutory and not ap-pealable. The application for writs on those issues was denied by this court but a subsequent application to the Supreme Court was granted. That court remanded the case to this court so that the venue question could be heard together with the custody matter. See “Charles Darwin Slater v Idabelle Cloutmom, wife of Charles Darwin Slater," No. 57,042 of the docket of the Supreme Court of Louisiana, writs granted November 5, 1975.

      . He had no office in Plaquemines and wasn’t even there during business hours. His yacht, used for business and recreational purposes, was kept in New Orleans when in Louisiana.


source: Caselaw Access Project

author:
BEER, Judge. SCHOTT, Judge
      GULOTTA, Judge

license: Public Domain

text:
    John RICHARDS v. TRAVELERS INSURANCE COMPANY.
    No. 7274.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10, 1976.
    Rehearing Denied March 16, 1976.

      Frank S. Bruno, New Orleans, for plaintiff-appellant.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Donald O. Collins, New Orleans, for defendant-appellee.
    Before GULOTTA, SCHOTT and BEER, JJ.
   BEER, Judge.

Plaintiff-appellant, John Richards (hereafter, Richards) was injured in the course and scope of his employment while working as a laborer for the Parish of Pla-quemines on October 25, 1965. He was removing debris caused by Hurricane Betsy when he experienced pain in his back and as a result was treated intermittently until his discharge as an outpatient from Charity Hospital in January, 1966. The Parish of Plaquemines is insured by The Travelers Insurance Company (hereafter, Travelers).'

Plaintiff filed a workmen’s compensation suit in the Twenty-Fifth Judicial District Court for the Parish of Plaquemines in January of 1967 (just in time to interrupt prescription), but because of various delays his alleged back disability claim was not tried until October, 1970. After all the testimony at the original trial of the case had been taken, including testimony of two doctors taken by deposition after trial, the plaintiff changed his basic contentions with respect to liability from disability resulting from actual injury to disability due to conversion reaction or traumatic neurosis. The trial court, consistent with the spirit of the compensation act, permitted amendment to plaintiff’s original petition in order to give him the opportunity to enlarge his pleadings and go forward with the proof required to support his new contentions. This ultimately resulted in the court’s setting a date for the continuation of the trial and, thereafter, hearing the testimony of Dr. Lindsay Graham, a psychiatrist, on March 29, 1973.

Judgment was rendered in June 1974. Except for certain minor bookkeeping adjustments, the trial court dismissed Richards’ claim for benefits beyond the date of his medical discharge in 1966. He appealed devolutively in July 1974. The trial court granted several extensions for the filing of transcript and the appeal was finally lodged in this court on August 13, 1975.

We affirm.

In Canter v. Koehring Company, 283 So.2d 716 (La.1973) Justice Tate made it clear that:

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.”

In this case, there is such evidence, there is such evaluation of credibility and, accordingly, there is such basis for the trial court’s finding.

Could a different trier of facts have made a different finding? Yes. But this case must, we believe, turn on the credibility findings of this trial judge who, obviously balanced the testimony of the plaintiff and his witnesses against the plaintiff’s long uninterrupted post-accident work record (sometimes totalling 621/2 hours per week) and reached his ultimate conclusion.

Although Dr. Lindsay Graham’s testimony is uncontroverted by the testimony of another psychiatrist, we believe that the trial court, who heard Dr. Graham’s description of his single, forty-five minute examination of plaintiff had the right, and in fact the duty, to disregard it if he felt that it was without merit.

The record indicates the trial judge’s interest in Dr. Graham’s testimony and an obvious effort on the part of the trial judge to carefully probe the basis for that physician’s findings. All factors considered, we are not able to conclude that the trial judge manifestly erred in finally disregarding Dr. Graham’s testimony. Dr. Graham’s testimony regarding his single examination of Richards was not given until eight years after the accident and three years after his examination. Whether this time factor played a part in the trial court’s overall weighing of this evidence is only speculative but requires mention.

Plaintiff denied any previous back injury but the evidence indicated that his testimony to this effect was inaccurate. This obvious inconsistency in plaintiff’s testimony may have been critical in the trial court’s deliberations which lead to the rejection of plaintiff’s demands. Again, we can only speculate.

Essentially uncontroverted in these proceedings is the finding, expressed by Dr. George R. Cary, Jr. that Richards had “No objective evidence of orthopedic injury relating to an accident stated to have occurred on October 12, 1965.”

Dr. Cary found no neurological deficit and concluded that Richards was able to function in his usual work activity at this time and needs no medical treatment for his condition.”

Dr. Jack Wickstrom’s medical findings were essentially the same as those of Dr. Cary but did indicate (though outside his field of expertise) that conversion reaction could be a possible explanation of Richards’ continued complaints. For a reviewing court we note that Dr. Wickstrom did find objective indication of what could be possible nerve involvement (real or resulting from conversion reaction?) because of a pattern of diminished sensation. This examination was conducted almost five years after the alleged accident. We believe that the materiality of Dr. Wick-strom’s testimony was also subject to the manifest error rule noted above.

We determine the issues in this case to be: (1) Was John Richards obliged to work in pain at the manual labor jobs which he has faeld subsequent to his alleged injury? (2) Was the pain sufficiently severe to be disabling within the applicable provisions of the workmen’s compensation act? (3) Was the pain a result of conversion reaction precipitated by the injury of October 25, 1965 ?

The record contains ample support for the trial judge’s factual determination that the first two questions should be answered in the negative. Having reached that conclusion, consideration of the third question is essentially moot. But even if the third question had to be answered by the trial judge, we cannot say that he manifestly erred in choosing to disregard Dr. Graham’s opinion. That opinion was based upon one forty-five minute interview with Richards and necessarily depended upon factual representations made by Richards to Dr. Graham. If the trial judge, in painstakingly considering all of the testimony and related evidence, had come to the conclusion that Richards’ representations were not worthy of belief, then he surely had a right to conclude that Richards’ representations to Dr. Graham were, likewise, so tainted. His testimony could not be “laundered” simply by passing it into Dr. Graham’s ears and out Dr. Graham’s mouth in different words but based on the same representations.

Furthermore, there is sufficient equivocation in the apparent final determinations reached by Dr. Graham to conclude that, even unrefuted, they do not totally support plaintiff’s claimed disability.

This court has repeatedly observed that claims of this type should be scrutinized with great care in order to prevent an injustice from occurring. We believe that such scrutiny was brought to these proceedings by the district judge who heard and saw the witnesses. Available to him were all of the senses that combine to emit the ultimate signal: true or false. As instructed by the Supreme Court, we accord significance to the trial judge’s “feel” or “touch” or, to be basic, “gut reaction.”

It is possible, as previously noted, that the trial judge could be wrong but we see no compelling basis for substituting our judgment for his and, accordingly, affirm.

Affirmed.

SCHOTT, J., concurs.

GULOTTA, J., dissents.

SCHOTT, Judge

(concurring).

Plaintiff seeks benefits under the Workmen’s Compensation Act for total and permanent disability. He claims disability from substantial pain “not physically or organically explained but by a conversion reaction.” He has appealed from a judgment dismissing his claim. Our problem is whether his evidence was of such weight and sufficiency that we, as an appellate court, should reverse the trial court’s evaluation of his evidence.

To be sure, plaintiff’s evidence is substantial and it is persuasive, but it does not compel a reversal on appeal when considered in the light of guidelines furnished to us in Canter v. Koehring Company, 283 So.2d 716 (La.1973) and applied in Wiley v. Travelers Insurance Company, 300 So.2d 555 (La.App. 3rd Cir. 1974), writ refused 303 So.2d 187 (La.1974).

In the Wiley case, as here, plaintiff was appealing from an adverse decision of the trial court, contending that the appellate court should weigh his evidence and decide it differently from a jury. The Court said:

“We do not share counsel’s analysis of our task in reviewing the case on appeal. Ours is not the primary duty of weighing the evidence, judging the credibility of witnesses or evaluating the strength of the various experts’ opinions. On the contrary, these tasks are allotted initially to the triers of fact, here the jury; and the conclusions of the jury as to facts should not be disturbed unless manifestly erroneous. See Hopper v. Wilkinson, 252 So.2d 137 (La.App. 3 Cir. 1971); and Busby v. St. Paul Fire & Marine Insurance Company, 290 So.2d 701 (La. App. 1 Cir. 1974); writ denied, La., 294 So.2d 546. The intermediate appellate court is to examine the record and to review the facts to determine whether there is a reasonable evidentiary basis for the decision by the triers of fact. Dunlap v. Armendariz, 265 So.2d 352 (La.App. 4 Cir. 1972).
“Appellate review had been described recently by the Louisiana Supreme Court in Canter v. Koehring Company, 283 So.2d 716 (La., 1973), as follows:”

Then after quoting the same passage contained in Judge Beer’s opinion, the court concluded:

“Narrowed, therefore, the issue is whether there is a reasonable evidentiary basis for the jury’s holding that Dr. Michel was not guilty of negligence causing plaintiff’s injuries. Stated differently, the issue is whether the jury’s conclusion that the doctor was not negligent was based on reasonable evaluations of credibility and reasonable inferences of fact, free of manifest error.”

Mindful of these principles I have reviewed the evidence and find it to be as follows:

Plaintiff suffered a work connected accident for which he was paid Workmen’s Compensation benefits until November, 1966. His injury was then considered to be a lumbosacral strain. He was last seen for this injury by defendant’s orthopedic surgeon, Dr. George R. Cary, in November, 1966, and was discharged from treatment. He was found to be functioning in a satisfactory fashion, able to engage in his usual work activity at that time and in no need of further medical treatment. For some period of time thereafter plaintiff worked as a school janitor* and between November, 1969, and October, 1970, he worked regularly and for long hours operating a shrimp canning machine at a packing company. The evidence does not indicate that this was heavy manual work like the job he was performing when he was injured in 1965, but he testified that the work caused him pain. On October 12, 1970, two days after he last worked for the packing company, he was examined by Dr. Jack Wickstrom, an orthopedic surgeon.

On the basis of his examination, Wick-strom found no physical or organic explanation for plaintiff’s complaint of pain, but he was convinced that the complaint was truthful and the pain genuine. He believed that plaintiff’s problem was a conversion reaction which caused plaintiff to feel pain as realistically and genuinely as though it were physically or organically oriented. One of the tests which Wick-strom made on plaintiff was a pin prick test which he felt eliminated the possibility of plaintiff’s malingering. He explained that “I ran a pin into him pretty far and he didn’t — that would be my concept of malingering, if he denied having felt the pain — I mean the pin, and where I could see that he had jumped every time I stuck him, then that would be malingering, in my opinion.” Wickstrom went on to say that plaintiff did not feel this pin prick, concluding that “this is as good anesthesia as you can find.” Wickstrom avoided making a definitive diagnosis of conversion reaction since this was outside of his specialty and he recommended that plaintiff be examined by a psychiatrist.

Dr. Lindsey A. Graham, a psychiatrist, interviewed plaintiff on October 28, 1970. He obtained a history from plaintiff and “did a fairly thorough evaluation of his psychological state at that time.” The history furnished by plaintiff included these facts: He had the accident in 1965, injuring his back, since then he had developed an ulcer and he had been medically treated for the back problem. Since the accident he tried to work but the back pain continued to bother him and he could not perform heavy manual labor of the type he did in 1965 when he was injured. From this history Graham concluded that plaintiff felt a pain in his back which prevented him from doing the work he did before his injury. Graham testified:

“Conversion reaction in this case, was pain in the back. Now, it is possible to make this diagnosis even if there is physical injury. I did not know what the actual physical damage was. I couldn’t tell if this was all psychological pain or possibly some physical changes in the muscles or if it was muscle strains. I would have known more about it if I would have had the X-rays and that sort of thing. The psychological system based on my overall evaluation of his past history and his personality make up, suggested very strongly to me, that he was suffering with conversion reaction or psychological pain.”

Graham further said that plaintiff’s pain was real; it accounted for his inability to perform heavy manual labor and it began with the 1965 accident. Asked whether plaintiff’s condition could be treated medically, Graham said:

“A Well, conversion reaction is psy-chiatrically treatable by psychiatric methods. There is possible treatment. Back in 1970, which was when I last saw him, I thought that I should do another evaluation on him to see if therapy would be a benefit and to see if he could talk about some of his fears as well as to see if he needed some more extensive rehabilitation.”

Graham explained that plaintiff’s conversion reaction resulted from his feelings that he wanted to support his family, that manual work was his only ability, and his loss of that ability was a reflection on his masculinity and sexual potentiality. However, on cross examination the following testimony was elicited:

“Q Doctor, you are not telling this Court that because of a diagnosis that you made on this man in forty five minutes, that this meant that this man cannot do any work ?
******
“A I said no. I never said that he couldn’t do any work. I never said anything about that.
“Q You are not here to testify that this man is unable to work because of a conversion reaction that you diagnosed, are you ?
******
“THE WITNESS:
Well, I think you are getting into the area of the amount of disability caused by the symptoms.
“THE COURT:
If he is able' to work, what sort of work can he do ?
“THE WITNESS:
As I said before, this depends on the individual. Some people can go about working with severe pain. Some people can have very minor pain and do nothing. So, the answer to that question is really very difficult. If you are going to ask me if he is able to work with the pain, the answer is yes. What sort of work he is able to do, I don’t know.
CROSS EXAMINATION BY MR. COLLINS: •
“Q You are not here to testify as to the extent of the disability caused by the conversion reaction that you diagnosed.
A I don’t believe so. Now, back in 1970, my thinking in the evaluation was not orientated towards whether he was able to work a lot or a little. I knew what the diagnosis was and I knew that he was having difficulty.”

The .trial judge did not give reasons for judgment. But there are a number of weaknesses in plaintiff’s case which, together or separately, may have influenced him. Before discussing these, however, it is appropriate to consider some of the legal principles involved in a Workmen’s Compensation claim based on conversion reaction or traumatic neurosis. The best sources for our purpose here are two cases in which the plaintiffs lost in the trial courts but prevailed in the Courts of Appeal, which our plaintiff seeks to accomplish. In both cases the Supreme Court refused writs. They are Muse v. Sentry Insurance Company, 269 So.2d 609 (La. App. 3rd Cir. 1972), writ refused 263 La. 981, 270 So.2d 120, and Lanclos v. Homer Knost Construction Company, 258 So.2d 224 (La.App. 4th Cir. 1972), writ refused, 261 La. 467, 469, 259 So.2d 915, 916. The following principles were restated therein with much citation of authority:

Proof of neurosis in such cases must be evaluated by the court with great caution, but an unjust denial of recovery to a deserving plaintiff must also be carefully avoided. Any such claim must be substantiated by competent psychiatric testimony and such testimony given without contradiction may be based on a single psychiatric interview. The testimony of only one psychiatrist is sufficient where supported by corroborating evidence, such as other medical specialists negating the probability of malingering.

In the instant case it is true that defendant produced no psychiatrist so that Graham’s testimony stands uncontradicted, but the following is pertinent from Deboest v. Travelers Insurance Company, 138 So.2d 646 (La.App.1962):

“Nor do we mean to hold that a court must accept as,correct an uncontradicted psychiatric diagnosis, when the court finds as a fact that the claimant’s history upon which it is based is substantially incorrect or when the court specifically evaluates the claimant’s credibility unfavorably in material respects because of proven substantial inaccuracies or inconsistencies in his testimony.”

In the application of these principles I find many legitimate and legally sound reasons why the trial court may have dismissed plaintiff’s case. First of all, the trial judge saw and heard plaintiff on the witness stand. He may have disbelieved that plaintiff had any pain or he may have disbelieved that plaintiff’s pain was substantial or disabling. According to Dr. Graham, his diagnosis was based entirely on the history furnished by plaintiff. If the trial judge thought plaintiff was lying or exaggerating on the witness stand he may have thought plaintiff lied and exaggerated to Dr. Graham. It is true that Dr. Wickstrom corroborated plaintiff’s testimony, especially with respect to the negative pin prick test, but, on the other hand, plaintiff testified without equivocation that he had not injured his back before the 1965 accident — testimony demonstrated by defendant to be false with the production of an entire claim file showing that plaintiff was injured on another job in 1963, filed a Compensation claim for a back injury and made an eventual settlement of the claim.

The trial judge was not merely confronted with a credibility evaluation of plaintiff’s testimony or statements to Dr. Graham that he felt pain but also his testimony and statements concerning the degree of pain and the relationship of that pain in October, 1970, when he was interviewed by Graham, to the accident five years previously. On the latter point, the trial judge may not have believed that plaintiff had suffered this disabling pain described to Dr. Graham throughout the long period of time between the accident and the interview. We know that plaintiff was seen by Dr. Cary in November, 1966, a competent orthopedist, who found nothing wrong with plaintiff. Not until four years and at least two jobs later did plaintiff see Dr. Wick-strom, another competent orthopedist, who then found something wrong with plaintiff. Perhaps the trial judge suspected an intervening trauma. Perhaps he was not persuaded by plaintiff’s testimony and statements to Dr. Graham relative to continuity of pain and, indeed, causation.

Perhaps the testimony of Dr. Graham itself was unconvincing to the trial court. Pretermitting the fact that his diagnosis was based largely on the statements of plaintiff whose credibility may have been rejected by the trial judge, the evidence does not show the degree of pain suffered by plaintiff or any permanency. As seen in the testimony quoted Graham declined to say that plaintiff could not work. Furthermore, Graham would express no opinion on whether or how easily plaintiff could be cured. His testimony in March, 1973, was to the effect that he had seen plaintiff just once in October, 1970, and he would have to “do another evaluation on him to see” what type of treatment might be appropriate. Perhaps the trial judge concluded from this that plaintiff’s pain was not substantial enough to influence him to see Dr. Graham a second time so that the fact of a disabling injury was not sufficiently established.

In effect, Dr. Graham declined to testify as to the extent of plaintiff’s disability. When his testimony is compared to the psychiatrist’s in Muse there is a marked contrast. There the psychiatrist said the plaintiff was disabled, his prognosis for the immediate future was not good, he could not resume his old job or any job and the “Disability could last for an unde-terminal period of time.” Dr. Graham would not get “into the area of the amount of disability” and said that his “thinking in the evaluation was not orientated toward whether he was able to work a lot or a little.” This is the stuff out of which Workmen’s Compensation cases for total and permanent disability are made. Plaintiff’s failure to prove the degree of disability is fatal to his case.

In Landos as in M%ise there was more than a localized pain in the back described by the psychiatrist. There was testimony of fear, stress and anxiety. While Graham’s testimony contained two isolated references to “fear” on plaintiff’s part, the thrust of plaintiff’s case is disability from pain. The law is clear that proof of pain alone is insufficient to establish entitlement for Workmen’s Compensation benefits. There must be proof of substantial pain to support the claim. Falgoust v. Jefferson Parish School Board, 294 So.2d 594 (La. App. 4th Cir. 1974). Dr. Graham did not even attempt to evaluate or rate the degree of plaintiff’s pain.

On the issue of permanency of the injury in Landos the psychiatrist specifically ruled out psychotherapy but suggested treatment by drugs and tranquilizers, and in Muse the psychiatrist flatly stated that the term of plaintiff’s disability was indefinite. Dr. Graham expressed no opinion on the permanency of plaintiff’s injury or the ease with which it might be treated, stating that he would have to see plaintiff again to form an opinion. It is pertinent that the trial was finally concluded in March, 1973, twenty-nine months after Dr. Graham’s interview of plaintiff. No medical testimony» psychiatric or otherwise, supports the claim for disability at that time.

While I concur with Judge Beer’s feeling that plaintiff’s credibility may have been the flaw in plaintiff’s case from the standpoint of the trial judge, I feel that an equally important weakness was the psychiatric testimony, not because the trial judge disregarded Graham’s opinion but because when that opinion is carefully reviewed and taken at face value the elements of proof required of plaintiff were not established.

GULOTTA, Judge

(dissenting).

I respectfully dissent. The uncontro-verted medical testimony is that plaintiff is suffering from a “conversion reaction”. Dr. Jack K. Wickstrom, in his deposition, stated, “I mean the conversion reaction, which is as real to him as if he had an axe in his back.” Dr. Wickstrom’s examination revealed “freedom of organic disease”. Significantly, Dr. Wickstrom further indicated that he did not feel that Richards was a malingerer and related the conversion reaction to the October 25, 1965 incident.

Dr. Raoul Rodriguez corroborated Dr. Wickstrom’s opinion that he did not think plaintiff was a malingerer.

According to Richards, the manual labor jobs attempted by him subsequent to the accident were carried out in pain. Plaintiff indicated that he worked in pain while employed at a packing company, working a canning machine, the operation of which required one to assume a standing position. A co-employee stated that because of Richards’ fear of suffering pain, plaintiff was unable to do any lifting of trash bags in connection with his janitorial duties.

Dr. Lindsey A. Graham, psychiatrist, testified that plaintiff was suffering from a conversion reaction. When asked whether plaintiff’s condition would prevent him from performing heavy manual labor, the doctor testified:

“Q If your findings were correct, would this prevent him from performing heavy, manuel [sic] labor?
A I already answered that.
Q Would you answer it again ?
A If he became very motivated, he could over come the pain, even if he would feel it.
Q He would have to be motivated?
A It would be possible to do this heavy, manuel [sic] work but the fear that something is wrong with his back and getting injured some more and doing some more damage to it, that is why some people aren’t able to do that sort of a thing.
Q And, then, would this make him stop this heavy labor ?
A Of course.
Q Mr. Richards related to you that this pain was severe enough to prevent him from performing heavy, manuel [sic] labor.
A Right.
Q Was that a real complaint, medically?
A In my opinion, yes.
Q Was that as real as if you were an orthopedic surgeon and found him to have a ruptured disc ?
A Yes, in my opinion.”

I am well aware of the established principle that in psychiatric disability cases, the evidence should be scrutinized with extreme care. See Miller v. United States Fidelity and Guaranty Company, 99 So.2d 511 (La.App. 2d Cir. 1957); Cain v. Trav elers Insurance Company, 244 So.2d 619 (La.App. 4th Cir. 1971), writ refused, 258 La. 558, 246 So.2d 862 (1971). However, uncontroverted psychiatric testimony has been held to be sufficient to support a claim based on psychiatric disability. See Lanclos v. Homer Knost Construction Company, 258 So.2d 224 (La.App. 4th Cir. 1972), writs refused, 261 La. 467, 259 So. 2d 915 (1972) and 261 La. 469, 259 So.2d 916 (1972).; Muse v. Sentry Insurance Company, 269 So.2d 609 (La.App. 3d Cir. 1972), writ refused, 263 La. 981, 270 So.2d 120 (1972).

      . The judgment in favor of Richards and against Travelers was in the amount of $145 (covering the difference between the $32.50 per week incorrect computation paid by Travelers for 58 weeks and the $35 correct computation acknowledged by all parties at the trial).


author: STOULIG, Judge.

text:
    Dr. John William DAVIS v. ARGONAUT SOUTHWEST INSURANCE COMPANY et al.
    No. 7261.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10, 1976.
    Rehearing Denied March 16, 1976.
    Pittman & Matheny, Tom H. Matheny and Thomas B. Waterman, Hammond, for plaintiff-appellant.
    Adams & Reese, Henry B. Alsobrook, Jr., New Orleans, for defendants-appellees.
    Before SAMUEL, STOULIG and BOU-TALL, JJ.
   STOULIG, Judge.

Plaintiff, Dr. John William Davis, has appealed a judgment dismissing his claim for damages for the alleged negligence and/or malpractice of two physicians and other personnel of Ochsner Foundation Hospital in unnecessarily and improperly administering an electronystagmograph (hereinafter referred to as an ENG) that resulted in a permanent hearing impairment. The defendants include Dr. Daniel M. Adams; Dr. Thomas P. Gonsoulin; Ochsner Foundation Hospital; Ochsner Clinic; and Argonaut Southwest Insurance Company, liability insurer of the medical institutions.

Appellant contends the evidence preponderates to the effect that the defendant doctors improperly diagnosed his condition and consequently subject him to an unnecessary test (ENG) which was negligently and improperly performed, causing damage to his ear. In the alternative, plaintiff would have us apply the evidentiary rule of res ipsa loquitur and place the burden of proving freedom from fault on the defendants.

After reviewing the record we cannot find any factual basis for applying either theory of law because plaintiff failed to prove he did in fact suffer an impairment of hearing caused by the administering of the ENG.

Undoubtedly plaintiff has a serious ear problem, but it originated long before his treatment at Ochsner. His prior medical history reflects that in 1941 his left eardrum was perforated and in 1943, while in the United States Marine Corps, he was hospitalized for bilateral deafness after having been assigned to a machine gun range. His service record also indicates the clanging of pots while working in the galley bothered him, and radio noises created a sufficient ear problem to cause his withdrawal from radio school.

The record is silent as to specific recurrences of ear problems until September 1969. At that time plaintiff consulted his family physician with complaints of nausea and dizziness; and after two brief hospitalizations in his hometown of Hammond, Louisiana, at the suggestion of his doctor, he entered Ochsner Foundation Hospital for tests on October 9, 1969. After being examined in the ear, nose and throat department by defendant physicians and on their orders, he was given an ENG the following day to establish or negate the cause of the dizziness as labyrinthitis, an inflammation of the passageways and cavities of the inner ear causing an imbalance problem. This test consists of irrigating both ears for 30 seconds with warm water (44 degrees centigrade) and then cold (30 degrees centigrade), the temperature being controlled by a thermostat preset at the factory. The patient’s reactions are recorded through electrodes placed laterally to the eye and to the center of the forehead.

It is plaintiff’s contention the water injected was very hot and the irrigation with almost scalding water caused permanent ear damage. The medical records show no complaint of ear pain following the test until his readmission to Ochsner’s emergency section on October 19 with a condition diagnosed as otitis, or swimmer’s ear. All specialists agreed this was a temporary condition that leaves no residual disability or impairment.

We will not engage in a detailed discussion of the testimony because plaintiff failed to trace his complaint of loss of hearing to the administering of the ENG and in fact did not even establish that he suffered a permanent hearing impairment.

A reading of the record reflects that the plaintiff presented the testimony of two expert general practitioners and defendants tendered the testimony of six experts, including two of the defendants, in the field of otolaryngology.

In substance plaintiff’s expert witnesses —one of whom examined him on September 24, 1969, and the other on May 7, 1970 — found infection in both ears and referred him to Ochsner for treatment. It should be noted one examination predated and the other postdated the ENG. The first practitioner diagnosed plaintiff’s condition as labyrinthitis, the same finding as made by the medical staff at Ochsner. And plaintiff’s second doctor found a dramatic improvement in the condition of plaintiff’s ears within 30 days of his initial examination. Also he was unable to connect or relate plaintiff’s condition with the treatment or the ENG administered at Ochsner.

All of defendant’s experts testified without equivocation that based upon plaintiff’s prior medical history and the Ochs-ner records there was no medical basis to contraindicate the administering of the ENG. Further they stated:

1. That the ENG cannot cause deafness, permanent loss of hearing, or Men-iere’s disease;
2. That the subsequent pathological developments, not available to the examining physicians at Ochsner, indicate that the primary cause of plaintiff’s loss of hearing was Meniere’s disease; and
3. That Meniere’s disease is an inner ear malady that cannot be adversely affected by the infection of the outer or external ear, the basis of plaintiff’s complaint.

It is their unanimous opinion that the diagnosis and treatment afforded the plaintiff did not breach or deviate in any manner from the standard of medical care in the community and that the ENG was properly performed in accordance with those standards.

Plaintiff’s failure to establish a breach of the professional obligation owed obviates a need to consider the issue of negligence and his inability to prove an injury as a result of the test renders academic any discussion of the evidentiary theory of res ipsa loquitur.

For the reasons assigned the judgment appealed from is affirmed. Costs of this appeal are to be borne by appellant.

Affirmed.

      . Dr. Davis has a doctorate in music as distinguished from a medical degree.

      . The uncontradieted testimony of the doctors and the operating technician clearly estab- , lishes that they never change the thermostat and in fact did not know how to do so. The designer of the equipment stated that it was necessary to dismantle part of the machine in order to alter the thermostat.


author: MORIAL, Judge. REDMANN, Judge

text:
    Williet J. FALCON, d/b/a Aqua Best Softner Service v. SOUTH CENTRAL BELL TELEPHONE CO.
    No. 7254.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10, 1976.
    Rehearing Denied March 16, 1976.
    Writ Refused May 11, 1976.
    Favret, Favret & Demarest, Marshall J. Favret, New Orleans, for plaintiff-appel-lee.
    Walker, Waechter, Poitevent, Carrere & Denegre, Thomas M. Nosewicz, Raymond J. Salassi, Jr., New Orleans, for defendant-appellant.
    Before REDMANN, BOUTALL and MORIAL, JJ.
   MORIAL, Judge.

On October 22, 1973 plaintiff, Williet J. Falcon, d/b/a Aqua Best Softner Service, filed suit against defendant, South Central Bell Telephone Co., to recover damages allegedly caused by defendant’s failure to include plaintiff’s listing with directory assistance and in the 1973 “yellow” and “white” pages telephone directories. After taking into consideration the mitigating factor in favor of defendant that plaintiff had changed its trade name in April of 1973, the trial court awarded plaintiff the full sum of $4,050.00 as “provable damages.” Defendant appeals only the amount of the award. Plaintiff answers the appeal praying for an increase in the award. We amend.

The record reveals that plaintiff’s wife contacted representatives of defendant in July of 1972 for the purpose of securing a listing and advertisement in defendant’s forthcoming telephone directories for a new water softener servicing business. When the “white” and “yellow” page directories were published in late November of 1972, plaintiff noted his business listings had been omitted. Plaintiff also noted the absence of a listing with directory assistance for the period July 1972 through December 1972. Defendant acknowledges its error.

Plaintiff contends that as a result of these omissions he suffered a loss of business and his wife was required to expend a great deal of otherwise unnecessary time and effort in contacting customers. Mrs. Falcon estimated the omissions caused her to work a net total of 1,382 extra hours for the period December 1972 through December 1973. Although she was not a salaried employee, she valued her services at $5.00 per hour. She admitted though that she had begun contacting customers before she became aware of defendant’s error. Further testimony established gross income in 1972 of $3,339.00 from plaintiff’s prior business of a similar nature; and gross income from the present business in 1973 of $8,944.00 and from January through October 1974 of $9,236.61. In 1974 Mrs. Falcon estimated that 14 new customers were directly attributed to advertising in the “yellow” pages.

Defendant contends the trial court erred in its award of “provable damages” and asserts that any award for loss of profits based upon the time spent by Mrs. Falcon in contacting customers is wholly speculative. We agree. Our courts have consistently held that in order to recover loss of profits, a plaintiff must prove he has sustained a loss susceptible of proof with reasonable certainty. Scheinuk The Florist, Inc. v. Southern Bell T. & T. Co., 128 So. 2d 683 (La.App. 4 Cir. 1961); Mayeux, Bennett, Hingle Ins. A. v. Southern B. T. & T. Co., 148 So.2d 771 (La.App. 4 Cir. 1963). We believe that under the jurisprudence the evidence presented in the case at bar falls far short of fulfilling this requirement.

Notwithstanding the absence of “provable damages,” plaintiff is entitled to some form of relief. The provisions of LSA-R.C.C. Art. 1934 par. 3 afford recovery when damages cannot be proven with precise mathematical certainty. Scheinuk, supra; Loridans v. Southern Bell Telephone & Telegraph Co., 172 So.2d 323 (La.App. 4 Cir. 1965). This relief is not, as defendant contends, limited to merely nominal damages. Levy v. Southern Bell Telephone & Telegraph Co., 172 So.2d 371 (La.App. 4 Cir. 1965).

In Scheinuk, supra, after dismissing the claim for loss of profits as being too speculative, $1,500.00 was awarded under LSA-R.C.C. Art. 1934, par. 3 for failure to list plaintiff’s name in the “white” pages although its name appeared in the “yellow” pages. In that case, plaintiff was the second largest florist in New Orleans and conducted 95% of its business over the telephone. In Mayeux, supra, an insurance agency which conducted almost all its business over the telephone was awarded $2,500.00 under LSA-R.C.C. Art. 1934, par. 3 for the telephone company’s failure to list its name in both the “yellow” and “white” pages and for interruptions caused by being obliged to answer calls intended for another insurance office.

In the instant case, we recognize that plaintiff was most likely inconvenienced by the omissions of the telephone company. However, due to the fact that this was a new business, we are not convinced that the great portion of energies expended in soliciting customers would not have been expended had there been no failure to list. Accordingly, we believe the sum of $2,000.-00 sufficiently compensates plaintiff for the damage caused by defendant’s negligence.

The judgment of the district court awarding plaintiff the sum of $4,050.00 is hereby reduced to the sum of $2,000.00, with interest from date of judicial demand. Defendant is to pay all costs.

Amended and affirmed.

REDMANN, Judge

(concurring in part):

A business which only grossed $9,237 in ten months with a telephone listing did not suffer a $4,050 loss — or even a $2,000 loss —from lack of a listing for a year during which it grossed $8,944. I would reduce to $500.


author: BEER, Judge.

text:
    Robert T. BAGBY v. Donald A. CLARK.
    No. 7258.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10, 1976.
    Rehearing Denied March 16, 1976.
    Writ Refused April 27, 1976.

       Charles F. Barbera, Metairie, for plaintiff-appellee.
    Thomas S. Loop, Metairie, for defendant-appellant.
    Before GULOTTA, SCHOTT and BEER, JJ.

      . Mr. Luscy was the “Lender’s Notary” who, pursuant to the agreement, was to pass the act of sale.

   BEER, Judge.

Plaintiff-appellee, Robert T. Bagby (hereafter, Bagby) and defendant-appellant, Donald A. Clark (hereafter, Clark) perfected an agreement on August 8, 1973 whereby Bagby agreed to sell Clark four lots in St. Charles Parish for $14,000 on or before September 30, 1973. They used a printed form of agreement apparently prepared for the use of Walker Land Company, Inc. (not in any way involved in this litigation), making various insertions to suit their purposes. The agreement provided that Clark would pay $3,500 in cash, the balance ($10,500) “to be financed by International Land Company for five years at eight percent interest.” Concurrent with the signing of the agreement, Clark executed a note, payable to Bagby on September 30, 1973, in the amount of $3,500. The act of sale was never passed and Bag-by sued Clark on the note. From a judgment in favor of Bagby, Clark appeals.

Clark resists Bagby’s claim on three grounds: (1) there was a failure of consideration for the note; (2) under the terms of the agreement, he had the right to rescind because of technical noncompliance with certain provisions of the agreement dealing with federal regulations; and (3) he was not put in default for noncompliance with the agreement to purchase.

LSA-R.S. 7:24 provides:

“Every negotiable instrument is deemed prima facie to have been issued for a valuable consideration; and every person whose signature appears thereon to have become a party thereto for value.”

By execution of the note Clark reserved the right to purchase the property from Bagby up to the date designated for the act of sale. Bagby was obliged to take the lots out of commerce and deliver title by September 30, 1973. Thus, there was apparent consideration for the note when it was executed. We pretermit discussion as to any subsequent failure of consideration in view of our holding on the issue of putting in default which will be discussed in the following paragraph. 'Likewise preter-mitted is the issue of technical noncompliance with certain provisions of the agreement dealing with federal regulations.

We conclude that the record will not support a finding that Clark was properly put in default with respect to the passage of the act of sale contemplated by the purchase agreement and, accordingly, the parties must be returned to the status which existed prior to the execution of the expired agreement.

The record shows that although the agreement was executed on August 8, 1973 Bagby did not acquire ownership of the lots in question until September 25, 1973. This fact, standing alone, would not be particularly important. Yet, knowing all along that only five days would remain to pass the act of sale after his acquisition of the property, Bagby consistently dealt with Clark on a totally informal basis. Around the middle of September he advised Clark by telephone that he would like to pass the act of sale on September 28. However, Clark, a pilot, later learned that he was to be “on call” to fly for his employer on the dates of September 28 through September 30. No correspondence of any description is even alleged to have passed between the parties or their representatives until October 2, 1973 (after expiration of the agreement) when Bagby left a note addressed to Clark in the employees’ mailbox at Delta Airlines. The note suggested that they try to set up an appointment for the act of sale on October 4, 1973. Nevertheless, up to and including the 30th of September, no written exchange regarding the setting of the act of sale ever took place. Thus, even though there is testimony to indicate that the September 28 date was tentatively agreed upon as the date for the sale as early as the middle of September (even though Bagby had not yet acquired title to the land) that date was unconfirmed by letter and subsequently upset because of Clark’s being on call by Delta Airlines.

On September 27, when Clark found that he was to be on call he telephoned the office of Mr. William J. Luscy, III, Notary Public, and informed Mr. Luscy’s secretary of that fact. No evidence appears in the record to refute his testimony to this effect. Mr. Luscy testified that he had no exchange of correspondence of any nature with Clark prior to the termination of the purchase agreement but that he did speak by telephone to someone who he believed to be Mr. Clark on the morning of September 28 at which time the party on the other end of the line stated that he did not want the property in question and was not coming to the act of sale. However, there is some question as to Clark’s whereabouts on the 28th and much doubt on our part as to the evidentiary value of this testimony.

Indeed, the entire record has the positive effect of underlining the cogent observations of Judge Lemmon in Alley v. New Homes Promotion, Inc., 247 So.2d 218 (La.App. 4th Cir. 1971) writ refused, 258 La. 972, 248 So.2d 832 (1971) when he stated:

“In order to activate the penalty clause in this contract, the seller must make a formal tender of title. In other words, the seller must tender title by formally tendering performance. Without the requirement of a formal tender of title, each party could let the time period expire and each could contend in a swearing contest at trial that he was ready and willing to perform within the contract period. The language of the contract clearly negates a theory of the purchaser automatically being in default by failing to perform. Indeed, implicit in the requirement of tender of title by the seller in order to impose the penalty is failure by the purchaser to take title. The purpose of the tender is to put the purchaser on notice that failure to perform his obligation under the contract will subject him to forfeiture of his deposit.”
(Emphasis ours.)
LSA-C.C. Article 1911 provides:
“The debtor may be put in default in three different ways: by the term [terms] of the contract, by the act of the creditor, or by the operation of law:
“1. By the terms of the contract, when it specially provides that the party, failing to comply, shall be deemed to be in default by the mere act of his failure.
“2. By the act of the party, when at or after the time stipulated for the performance, he demands that it shall be carried into effect, which demand may be made, either by the commencement of a suit, by a demand in writing, by a protest made by a notary public, or by a verbal requisition made in the presence of two witnesses.
“3. By the operation of law. This takes place in cases where the breach of the contract alone is by law declared to be equivalent to a default. The law having declared that the neglect to return a thing loaned for use, at a stipulated time, or the application of it to another use than the one for which it was lent, puts it at the risk of the borrower; this, without any act of the lender, puts the borrower in default, and forms an example of this part of the rule.”

We do not find compliance with the applicable provisions of the Code sufficient to permit recovery by Bagby. See Fortenberry v. Decay, 279 So.2d 725 (La.App. 1st Cir. 1973). Specifically, there was no formal tender of title as provided for in the agreement.

The suit on the note should have been dismissed even though the note itself was complete and regular on its face. The note was, in fact, no more or less than a deposit which, under the circumstances of this case, should have been returned to Clark after September 30, 1975.

Bagby’s brief makes the observation that Clark was “in default under the terms of the written contract,” but this assumption is not supported by the record.

The applicable terms of the agreement are as follows :

“Act of sale, closing costs and prepaid items at expense of purchaser to be passed before Lender’s Notary, on or prior to Sept 30 1973, provided that if bona fide curative work in connection with title is required, the parties herewith agree to and do extend the time for passing of act of sale by thirty days.
“Seller and purchaser shall be bound by all its terms and conditions and purchaser is obligated to deposit with seller’s agent immediately 25% of the purchase price amounting to $3,500.00.
“This deposit is to be non-interest bearing and may be placed in any bank in Metropolitan New Orleans, without responsibility on the part of the agent in case of failure or suspension of such bank.
“The seller shall deliver to purchaser a merchantable title, but subject to all conditions etc. set forth in Seller’s act of purchase and inability to deliver such title within the time stipulated herein shall render this contract null and void, reserving unto purchaser the.right to demand the return of the deposit from the holder thereof.
“In the event the seller fails to comply with this agreement within the time specified, the purchaser shall have the right either to demand the return of his deposit in full plus an equal amount to be paid as penalty by the seller; or the purchaser may demand specific performance, at his option.
“In the event the purchaser fails to comply with this agreement within the time specified, the seller shall have the right to declare the deposit, ipso-facto forfeited, without formality beyond tender of title to purchaser or the seller may demand specific performance.” (Emphasis ours.)

Thus the formality of tender was specifically preserved in the agreement, but, thereafter, ignored by plaintiff-appellee.

For these reasons, the judgment of the Twenty-Fourth Judicial District Court, Parish of Jefferson, must be reversed and there will be judgment herein in favor of Donald A. Clark, defendant-appellant, and against Robert T. Bagby, plaintiff-appellee, dismissing plaintiff-appellee’s suit at his cost.

Reversed and rendered.

      . Not only was there no correspondence (registered mail or otherwise) confirming the date, time and place of the proposed act of sale, there was no written confirmation (witnessed or unwitnessed) of the alleged tender or of the alleged rejection of the tender.

      . This was essentially the same language contained in the agreements in Alley, supra, and Fortenberry, supra.


author: BOUTALL, Judge.

text:
    John TASKER v. RESOLUTE INSURANCE COMPANY et al.
    No. 7056.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 24, 1976.

      George H. Jones, New Orleans, for John Tasker, plaintiff-appellant.
    A. D. Freeman, New Orleans, for Capeo Adjusters, Inc. and Hillary Kline, defendants-appellees.
    Before REDMANN, BOUTALL and MORIAL, JJ.
   BOUTALL, Judge.

This suit arises from a dispute between plaintiff, John Tasker, and defendant, Resolute Insurance Company, as to the payment to be made under a policy of collision insurance covering plaintiff’s automobile. The trial court found the policy to be in effect and granted plaintiff judgment for the total loss of his car, however, it deducted the amount of $141.00 as additional premiums owed by plaintiff. Tasker has appealed this judgment.

Initially, plaintiff sued for the value of his car, the loss of some tools contained in the trunk of his car and damages for wrongful seizure of his car. Defendant answered generally denying plaintiff’s allegations and further asserting that the policy was void because of willful fraud on the part of plaintiff in misrepresenting the risk to be covered by the policy,. and because plaintiff had violated a condition of the policy in not reporting the loss timely. We note at the outset that defendant continues to urge these defenses in brief to this court. These issues are not before us. The trial court found the policy to be in effect and granted recovery under it; from this adverse judgment defendant has neither appealed nor answered plaintiff’s appeal.

The facts show that John Tasker borrowed some money from Sun Finance Company, and gave a mortgage on his automobile as security. As a condition for the loan Sun Finance required that Tasker obtain collision insurance on the car. Tas-ker obtained this insurance through Executive Insurance Agency, Inc. from Resolute ' Insurance Company. The policy was for one year commencing on September 28, 1972. The premium for the policy was $150.00. On March 13, 1973 John Griffen, Tasker’s son, was involved in an accident with the insured automobile. Several days later Tasker notified Sun Finance of the accident and Sun Finance later notified Resolute. An independent claims adjuster, Hillary Kline of Capeo Adjusters, Inc., was sent by Resolute to adjust Tasker’s claim.

After viewing the wrecked automobile and taking into account previous damage, Kline concluded that the automobile was a total loss and appraised the value at $450.-00. From this he deducted the $50.00 deductible as per policy provisions, and agreed with Tasker to a $400.00 settlement. Kline then sent Tasker a Proof of Loss and Direction to Pay statement, a Bill of Sale for the automobile, a Cancellation Request on the policy and a Power of Attorney for the purpose of transferring title to the automobile. Tasker signed all these documents and returned them to Resolute.

Following these transactions Kline had the automobile towed to a salvage yard. Resolute then discovered that John Griffen was a minor and the policy rate was based on no operations by persons subject to a higher rate. It then informed Tasker that it would not pay his claim until he paid an additional premium of $141.00 to cover his minor son. Tasker refused to pay this premium, and Resolute tendered a check of $259.00 for his claim. This figure is the difference between the $400.00 value in the Proof of Loss statement and the additional premium of $141.00. Tasker also refused this tender and brought suit 'for the full value of his car, tools which he alleges were in the trunk of the car when Kline had the car towed away, damages for wrongful taking, and for penalties and attorney’s fees for nonpayment of policy benefits.

The issues before this court are: 1) Is Tasker entitled to the $400.00 valuation of his automobile? 2) Is Resolute entitled to a credit of $141.00 for an additional premium? 3) Is Tasker entitled to damages, penalties and attorney’s fees ?

The trial court found that Tasker was entitled to the $400.00 under the terms of the policy and we agree. The case of McCarter v. National Union Fire Ins. Co. of Pittsburgh, 147 So.2d 104 (La.App. 2nd Cir. 1962) held that an agreement as to the value of the loss sustained by the insured forms an independent contract apart from the policy, but, flowing from it. The Proof of Loss and Direction to Pay statement signed by Tasker and witnessed by Kline evidences such an agreement. There remained nothing further to be agreed upon and only payment of the agreed figure was left to be accomplished.

The trial court found that Resolute was entitled to the extra premiums of $141.00; we cannot agree. The record does not support this figure as the true amount owing. Mr. Marshall Smith of the Executive Insurance Agency, Inc. testified that had John Griffen been named as a driver on the insurance application then the policy price would have been $291.00. This figure is the $150.00 Tasker paid, plus the disputed additional $141.00 premium. This premium would be for the entire expected life of the policy, one year. The policy was cancelled by Tasker effective March 14, 1973 when the policy still had over six months to run. Therefore the $141.00 is unproven for two reasons. First, it appears to be a yearly premium for a minor driver, when in fact the policy was only in effect six months. Secondly, Tasker requested that the unearned premiums on the policy be returned to him. There is no evidence that these monies were returned. Therefore, it appears that Tasker is entitled to a refund on part of his paid premium and Resolute is entitled to only a part of the additional premium.

The policy provides that upon cancellation by the insured a refund of premiums is due in accordance with the short rate table provided in the policy. Tasker’s policy was in force 167 days. Therefore Resolute earned 56% of the $150.00 paid premium, or $84.00, and Tasker was due a refund of his paid premium in the amount of $66.00. On the other hand, Resolute earned in premiums 56% of the additional yearly premium of $141.00 or $78.96.- Offsetting these two figures, Resolute is due $12.96 in earned premiums.

The final issues are loss of tools, damages, penalties and attorney’s fees. First, we do not feel the record supports a recovery for the loss of tools. The trial court found little evidence of this, dismissed that part of plaintiff’s cause and we must agree. Second, the seizure of the automobile was done in accord with the agreement reached between Kline and Tasker. Tas-ker fully expected the automobile to be towed away since he signed a Bill of Sale, transferring the car to Resolute.

Finally, does-the fact that Resolute did not pay the claim within 60 days give rise to penalties and attorney’s fees under LSA R.S. 22:658? This statute does not impose the penalties if the insurer had a bona fide reason for not paying the claim within 60 days. Resolute made a tender of $259.00 within the 60 day period. The remaining $141.00 has never been tendered, however, we feel that the dispute about this amount was not arbitrary, capricious or without cause. Resolute failed to prove by a preponderance of the evidence that it was due the $141.00 extra amount, yet the record does show they were due $12.96. For this reason penalties and attorney’s fees are not proper in this case.

For the foregoing reasons we amend the judgment appealed from to increase John Tasker’s award from $259.00 to $387.04, together with legal interest from date of judicial demand. In all other respects the judgment of the trial court is affirmed. Defendant, Resolute Insurance Company, is to pay all costs.

Amended and affirmed.

      . The copy of the document in evidence contains writing which shows that Resolute deducted $141.00 from the agreed upon $400.00. All parties agreed that Tasker did not sign the document with the deduction on it, but that this was written in later by Resolute.


author: SAMUEL, Judge.

text:
    Henry J. HERMES v. Marzella Verniel Deacon, wife of Henry H. HERMES.
    No. 7212.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 24, 1976.

      Philip R. Riegel, Jr., and Sydney J. Parlongue, New Orleans, for plaintiff-ap-pellee.
    Reed, Reed & D’Antonio, Floyd J. Reed, and Bruce G. Reed, New Orleans, for defendant-appellant.
    Before SAMUEL, STOULIG and BOUTALL, JJ.
   SAMUEL, Judge.

This is an appeal from a judgment denying a claim for alimony. The issue before this court is whether the wife, against whom a judgment of divorce has been rendered on the grounds of adultery, may claim permanent alimony under the provisions of LSA-C.C. Art. 160.

The appeal is a sequel to prior litigation between the same parties. Mr. Hermes sued his wife for a divorce based on alleged acts of adultery which occurred after they had voluntarily separated and while they were living separate and apart. The trial court granted a divorce in favor of the husband which we affirmed on appeal. The Supreme Court granted writs and subsequently affirmed the judgment of this court.

Following the finality of the Supreme Court judgment, the wife filed a rule for permanent alimony. The husband filed an exception of no cause or right of action to the rule. The exception was based on the fact that the divorce on the ground of adultery barred the wife from permanent alimony thereafter. Following a hearing of the rule, the trial court denied the wife’s alimony claim. She has appealed.

The controlling law is Civil Code Article 160, which provides:

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

Appellant contends adultery occurring subsequent to the voluntary separation is not determinative of fault prior to the separation as contemplated by Civil Code Article 160 and therefore she is entitled to the permanent alimony she claims. She relies on the cases of Fulmer v. Fulmer, La., 301 So.2d 622 (S.Ct.), Vinot v. Vinot, 239 La. 587, 119 So.2d 474, Vicknair v. Vicknair, 237 La. 1032, 112 So.2d 702, Felger v. Doty, 217 La. 365, 46 So.2d 300, and Smith v. Smith, La.App., 216 So.2d 391.

We find appellant’s cited cases do not support her contention. With the exception of Smith, those cases are based on the second of the three circumstances set forth in Article 160, a circumstance not present in this case. Smith also is clearly distinguishable. In that case the wife was awarded a divorce based upon the husband's adultery and, relative to her claim for permanent alimony, the case was remanded to the trial court to determine whether or not she was free from fault, a requirement of the first sentence of Article 160.

Civil Code Article 160 is our only law permitting a wife to obtain alimony after divorce. If the divorced wife does not come within the provisions of that article, she cannot obtain alimony. Here the appellant does not come within those provisions. The second and third circumstances set out in the article, which are simply exceptions to the first circumstance, are inapplicable. This is not a divorce obtained by the husband in a court of another state or country, the third circumstance. Nor is this a divorce obtained by the husband on the ground of continuous living separate and apart, or on the ground of no reconciliation following a judgment of separation from bed and board, the second circumstance.

Most important, this is not a divorce obtained by the wife, as required by the first circumstance. To the contrary, it is a divorce obtained by the husband on the ground of adultery in a court of this state. Thus, the wife in the instant case cannot obtain alimony after divorce for two related reasons: (1) she has not obtained the divorce as required by the first circumstance of Article 160; and (2) because her adultery was the ground for, and of course the direct cause, of the divorce, she has been “at fault” contrary to the opening clause of Article 160 which restricts the right to alimony after divorce to a wife who “has not been at fault”. It would be strange indeed if the law rewarded an adulterous wife with the right to obtain permanent alimony.

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

Affirmed.

      . Hermes v. Hermes, La.App., 275 So.2d 416.

      . Hermes v. Hermes, La., 277 So.2d 441.

      . Hermes v. Hermes, La., 287 So.2d 789.

      . Fulmer involved a divorce obtained by the husband on the ground of no reconciliation after a judgment of separation from bed and board, which judgment of separation had been obtained by the wife on the ground of abandonment ; Vinot, Vicknair and Felger involved divorces obtained by the husband on the ground of continuous living separate and apart.

      . See Smith v. Smith, supra, and cases cited therein.


author: MARVIN, Judge.

text:
    L. C. SMITH v. LINCOLN PARISH POLICE JURY et al.
    No. 12838.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 9, 1976.
    Rehearing Denied March 15, 1976.

      Holloway, Baker, Culpepper & Brunson by William H. Baker, Bobby L. Culpep-per, John H. Helm, Jonesboro, for plaintiff-appellant.
    Walker, Holstead & Smith by Hale M. Walker, O. L. Waltman, Jr., Ruston, for defendants-appellees.
    Before PRICE, HALL and MARVIN, JJ-
   MARVIN, Judge.

The lower court rejected plaintiff-appellant’s demands to enjoin the enforcement of and to declare unconstitutional ordinances adopted by the Lincoln Parish Police Jury pursuant to a local option election held in each of the five wards of the parish. We affirm.

Three propositions were presented to the electorate in each ward. Four of the wards voted “no” on all propositions. Prior to the effective date of the ordinance prohibiting the sale of alcoholic beverages containing more than 3.2 percent alcohol by weight in Ward One, which includes the City of Ruston, appellant held retail licenses permitting him to sell such beverages in Ruston.

On April 26, 1974, rehearings were denied in Sissons, the holding of which had the effect of invalidating local option ordinances which were adopted before 1948 either on a parish-wide basis or which prohibited the sale of beverages containing more than one-half percent alcohol.

After Sissons, petitions calling for a local option election were circulated in the five wards of Lincoln Parish. These petitions, each containing the signatures of 25 percent or more of the electorate in the respective ward, were presented to the registrar of voters (R.S. 26:584) on various dates beginning May 30 and ending on June 14, 1974. After proper certification the petitions were presented to the police jury (R.S. 26:585) on July 2, 1974.

On August 13, 1974, the police jury adopted separate ordinances calling the local option election in each ward of the parish on October 8, 1974 (R.S. 26:586). The results in each ward were promulgated (R.S. 26:594), and in the four wards voting “no,” the sale of alcoholic beverages containing more than 3.2 percent alcohol by weight was prohibited by an ordinance enacted on October 22, 1974, for each of the four wards (R.S. 26:595). These ordinances became effective on November 17, 1974. On November 25, 1974, this suit followed.

Appellant contends the 1974 Legislature required four propositions to be placed on the ballot in local option elections (R.S. 26:587) and the subject election and resulting ordinances should be declared ultra vires because only three propositions were on the ballot (R.S. 26:590). The proposition as to beverages containing less than 3.2 percent alcohol by weight was not included on the ballot or in the paperwork procedures leading up to the election. This proposition we refer to as the “3.2 fourth proposition.”

Appellant also contends that Act 41 of 1974 expressly requires that the 3.2 fourth proposition be included on the petition as well as on the ballot by R.S. 26:583, 587. Nomey, cited supra, held unconstitutional several provisions of this act. We are now required to determine the effect of Nomey and the extent that the provisions of the act not declared unconstitutional remain effective after Nomey.

Act 41 attempted to authorize parish-wide local option elections in twelve parishes and to require in those twelve parishes, the 3.2 fourth proposition to be included on the ballot. In the remaining parishes, Act 41 required that only the three propositions appear on the petition and ballot.

Nomey nullified the provisions of Act 41 which were incorporated into the Revised Statutes relating to:

(a) parish-wide elections (R.S. 26:582, 592);
(b) the attempt to revive or preserve the pre-1948 local option elections and ordinances and to legislatively overrule the effect of Sissons (the proviso of R.S. 26:588) and
(c) the requirement that the 3.2 fourth proposition be contained on the petition and the ballot in the twelve parishes. (R.S. 26:583, 587).

Nomey held that the particular provisions of Act 41 which required propositions or procedures for the twelve named parishes as distinguished from all other parishes, were contrary to the constitutional prohibition againist the enactment of “special” laws. See Louisiana Constitution Art. IV, § 4 (1921) and Louisiana Constitution Art. III, § 12 (1974). Nomey, supra, 315 So.2d 713-714. Nomey left in effect the provisions of Act 41 which apply to all parishes of the state and those provisions of Title 26 as they existed prior to Act 41 of 1974 pertaining to the three propositions which are required to be on the petition and the ballot. Nomey expressly stated that those portions of Act 41 which were not special in nature were excluded from the courts’ declaration of unconstitutionality. 315 So.2d 714.

The petitions presented to the jury before the effective date of the 1974 legislation were in accord with R.S. 26:583 (Act 372 of 1948) and were also in accord with Act 41 of 1974, before or after the Nomey decision, because Lincoln Parish was not one of the twelve parishes in which the 3.2 fourth proposition was required to be on the petition. The call of the election by the police jury and the ballot, after the effective date of the 1974 legislation, were also in accord with R.S. 26:587 before or after the Nomey case was decided.

Appellant contends that the Lincoln Parish Police Jury was legally bound to follow Act 41 as writtten because it had not yet been declared unconstitutional in part by Nomey when the jury acted with respect to declaring the propositions and calling of the election. There is authority that acts done and resulting consequences under a law subsequently declared unconstitutional become vested so that the general rule of absolute retroactive invalidity cannot be declared.

“As a general rule, all acts done under an unconstitutional law are void and of no effect. * * * ”
Due to the fact that situations may arise resulting from transactions and acts performed under an unconstitutional statute, whereby the parties involved are placed in positions where it would be most unequitable to follow the general rule that an unconstitutional statute was void ab initio and without any legal effect whatsoever, or where it was impossible for the court to undo what had transpired under an unconstitutional statute and to restore the parties to some reasonable position, the courts have recognized exceptions to the rule as a matter of public policy or necessity in such instances. Flournoy v. First Nat. Bank of Shreveport, 197 La. 1067, 3 So.2d 244, 249 (1941).

The circumstances here do not warrant declaring an exception to the general rule because appellant acquired no vested rights by reason of the passage of Act 41. Appellant asserts no position of reliance on the statute, which by its own terms, albeit unconstitutional, did not include Lincoln Parish as one of the twelve parishes which ostensibly were required to have to 3.2 fourth proposition on the petition and ballot. Appellant’s contention in this respect is unfounded.

We follow the declaration in Nomey and consider only the effect of Act 41 after Nomey and withhold comment on other local option legislation enacted in 1974.

At appellant’s cost, the judgment below is

Affirmed.

      . These three propositions are identical to those authorized by Act 41 of 1974 [now R. S. 26:583 and R.S. 26:587, (1), (3) and (4)] and by Title 26 of the Revised Statutes in effect prior to amendments thereto by the 1974 Legislature. The three propositions concerned the sale of beverages containing alcohol (1) between 3.2 percent by weight and less than six percent by volume, or low alcoholic content; (2) more than six percent by volume — high alcoholic content — for consumption on premises; and (3) more than six percent by volume — also high alcoholic content — by package only and not for consumption on premises.

      . See State v. Sissons, 292 So.2d 523 (La. 1974). After the 1948 legislation, local option elections could not be held on a parish-wide basis and what is sometimes referred to as “3.2 beer” (beverages containing more than one-half percent alcohol by volume, but less than 3.2 percent alcohol by weight) could not be included on local option petitions or ballots. See Act 372 of 1948 as incorporated into Title 26 of 1950 La. Revised Statutes, sections 582, 583, 587 and 588, prior to 1974 legislation. See also Johnson v. Police Jury, 180 So.2d 65 (La.App.2d Cir. 1965).

      . The 1974 Legislature enacted Acts 31, 41, 325 and 648, each of -which concerned local option elections. This legislation became effective July 31, 1974, after the petitions for election in Lincoln Parish were submitted, but before the Police Jury adopted ordinances calling the election in each Ward of the parish. See Tolar v. State, 315 So.2d 22 (La. 1975), Nomey v. State, 315 So.2d 709 (La. 1975), wherein the Supreme Court considered two of the 1974 acts and discussed to some extent the legislative history of local option in Louisiana.

      . Beauregard, Washington, Rapides, Natchi-toches, Red River, Grant, LaSalle, East Carroll, West Carroll, Bienville, Jackson and Winn. Parish-wide elections had been authorized prior to 1948 by Act 15 of 1934.

      . The court said in Nomey:
      We declare proposition 2 [the 3.2 fourth proposition] which appears in Section 583 and Section 587 unconstitutional because of the severability provision contained in Act 41. In order to preserve the severability of the act we must presume that the legislature did not intend for the proposition concerning beverages containing 8.2% alcohol by weight or less to be a proposition for referendum or on the ballot, since Section 581.1 particularly states that only three propositions shall appear on the ballots of those localities which are not specially designated. We are cognizant that in the same legislative session, by Act 648, the legislature makes an attempt to have local option elections on the sale of beverages containing 3.2% alcohol by weight or less in wards and municipalities. That act is not before us and we only construe the act under attack.

        Nomey, at p. 714.
      (Emphasis and material in brackets supplied).


author: STOULIG, Judge. REDMANN, Judge

text:
    Horace P. LEDET, Jr., Individually and for and on behalf of his minor child, Cheryl Ann Ledet v. FIREMEN’S INSURANCE COMPANY OF NEWARK, NEW JERSEY.
    No. 7180.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10, 1976.
    Rehearing Denied March 16, 1976.
    Writ Refused April 30, 1976.
    Lee C. Grevemberg, New Orleans, for plaintiff-appellant.
    Christovich & Kearney, C. Edgar Clou-tier, New Orleans, for defendant-appellee.
    Before REDMANN, STOULIG and BEER, JJ.
   STOULIG, Judge.

This appeal concerns the correctness of a judgment dismissing plaintiff’s personal injury suit for failure to take any step to further its prosecution for five years. C. C.P. art. 561, the law on which the action is grounded, provides:

“An action is abandoned when the parties fail to take any steps in its prosecution or defense in the trial court for a period of five years. This provision shall be operative without formal order, but on ex parte motion of any party or other interested person, the trial court shall enter a formal order or [sic] dismissal as of the date of its abandonment.
“An appeal is abandoned when the parties fail to take any step in its prosecution or disposition for a period of five years; and the appellate court shall dismiss the appeal summarily.”

The pleading chronology is as follows:

Petition for damages (Jury trial requested)
Answer
Motion to fix for trial
August 16, 1966
September 2, 1966
November 26 or 28, 1969
Bond for jury cost filed
Motion to fix for trial
Motion to Dismiss for Lack of Prosecution with Ex Parte Order of Dismissal signed
Rule to Show Cause why Dismissal should not be set aside
November 26, 1969
December 5, 1974
February 6, 1975
March 17, 1975.

There is no dispute that more than five years elapsed between the time the first and second motions to fix for trial were filed and signed (apparently the case was not set because of a clerical error). Therefore, the dismissal was proper. In Semel v. Green, 252 La. 386, 211 So.2d 300, 304 (1968), the Court held:

“ * * * It has long been the established jurisprudence that, whenever a plaintiff allows five years to elapse without having taken any steps in the prosecution of his demand, the suit is considered abandoned and any action thereafter taken by him is inefficacious. See Evans v. Hamner, 209 La. 442, 24 So.2d 814, and the many authorities there cited. That case was decided under the provisions of the second paragraph of Article 3519 of the Civil Code. This Civil Code article was the source of Article 561, CCP, and, as shown by the reporter’s comments, Article 561 was patterned on the jurisprudence then existing, as expounded in Evans v. Hamner, and other cases.”

While failure to prosecute for a period of five years does not create a conclusive presumption.of an intent to abandon, a litigant must show the inaction was caused by circumstances beyond his control. Pounds v. Yancy concluded this meant conditions making it impossible to act, such as mental illness or military service.

Admittedly plaintiff’s counsel, for a reasonable period of time, would have no reason to suspect his signed order placing the case on the proper call docket for fixing and trial had been misfiled; however, we do think his inquiry and attention would have been excited before five years had elapsed.

In our view the failure of the deputy clerk of court to process this signed order is not a circumstance beyond the control of the litigant that would interrupt the tolling of the five-year period for statutory abandonment prescribed in C.C.P. art. 561. In other words, there were available means to the plaintiff whereby he could have, within the five-year period, furthered the prosecution of his claim.

The construction placed on C.C.P. art. 561 affording a litigant the right to show the failure to act was caused by circumstances beyond his control (after the action has statutorily been declared abandoned) represents the current jurisprudential interpretation of this article. In the opinion of the writer it does violence to the explicit wording of the article which defines abandonment of an action and decrees: “This provision shall be operative without formal order * * The abandonment is by the operation of law and there is no basis in the article itself which would admit of a subsequent proceeding to negate this statutory declaration. The five-year period within which the conclusion of the litigation must be advanced is a period of peremption which must be interrupted in order for the action to survive.

For the reasons assigned, the judgment appealed from is affirmed, cost to be borne by appellant.

Affirmed.

REDMANN, Judge

(dissenting).

The five-year period of C.C.P. 561 does not begin to run as long as plaintiff’s failure to prosecute is caused by circumstances beyond his control, Barton v. Burbank, 1916, 138 La. 997, 71 So. 134, 135, “the idea of the statute being merely to hold a plaintiff responsible for delay attributable to his nonaction . . ..” This idea is identified in Melancon v. Continental Cas. Co., La.1975, 307 So.2d 308, 311, as the “well-established rule of prescription [that] prescription does not run against one who is unable to interrupt it . . ..” This rule applies because one who has filed a motion to fix for trial (especially for jury trial, since jury trials are not scheduled as easily as judge trials) is not reasonably'able to take any other record step in prosecuting his case for the few days necessary for the judge to act on that motion. This position is admittedly inconsistent with Loftus v. Grain Dealers Mut. Ins. Co., La.App. 1st Cir. 1967, 195 So.2d 747, writ refused 250 La. 737, 199 So.2d 80, where the trial judge on September 13, 1960 had set the case for trial for December 13, 1960 (between which dates it was, as a practical matter, impossible for plaintiff to take any other step) yet plaintiff’s next action, on December 8, 1967, was held to be too late to avoid dismissal for five years’ inaction. We should hold that the statutory five-year period has not passed because — for at least the first four or six judicial days following the November 26 or 28, 1969 motion to fix for jury trial and until Friday, December 5, 1969 — as a practical matter it was impossible for plaintiff to take any further step. He could not reasonably have acted to “interrupt” prescription during those few judicial days and therefore, by Melancon’s reasoning, the five-year prescription could not have been running against him. Prescription therefore did not accrue prior to December 5, 1974 at which time plaintiff filed another motion to fix.

      . The cashier stamp is dated November 26, but the filing date is stamped November 28. The conflict is not important to the result we reach.

      . The pleading notes February 7, 1975 as the filing date and the order is dated February 6, 1975. Again the discrepancy is not important to the conclusion.

      . Bell v. Staring, 170 So. 502 (La.App. 1st Cir. 1936).

      . 224 So.2d 1 (La.App. 1st Cir. 1969).


text:
    Mrs. Marietta Payne, wife of/and Warren PAYNE v. F. W. WOOLWORTH COMPANY and the Travelers Insurance Co.
    No. 7176.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10, 1976.
    Rehearing Denied March 16, 1976.

      Craig R.- Nelson, of Hammett, Leake, Hammett, ÍHayne & Hulse, New Orleans, for plaintiff-appellant.
    Donald O. Collins, of Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for defendants-appellees.
    Before GULOTTA, BOUTALL and MORIAL, JJ.
   BOUTALL, Judge.

Plaintiff, Mrs. Marietta Payne, sues for damages caused by an injury received in defendant Woolworth’s store. The trial court rendered judgment in favor of defendants and plaintiff has appealed.

The facts show that Mrs. Payne entered Woolworth’s to eat lunch and buy some face powder. The lunch counter and the cosmetic counter are side by side, separated by an aisle. After eating lunch Mrs. Payne purchased the face powder and was leaving the store when she slipped on a jelly-like substance and fell. There is some controversy as to exactly what the substance was. Mrs. Payne did not know what it was but described it as a clear sticky liquid. Mr. Brumley, Woolworth’s associate manager, was close by when the fall occurred and he described the substance as raspberry jelly from the inside of a j elly doughnut.

Mrs. Payne ruptured a spinal disc in the fall and surgery was required to correct the defect. She suffers pain today from this fall and a later one which also required an operation. After the first operation Dr. LoCoco, her physician and surgeon, estimated her permanent disability to be 15%.

Mrs. Payne has proven that there was a foreign substance in the store aisle. This substance caused Mrs. Payne to slip and fall. She did not see the substance and does not know exactly what it was or where it came from.

The recent case of Gonzales v. Winn-Dixie Louisiana, Inc., decided January 19, 1976, La., 326 So.2d 486 has held that when a plaintiff can show facts similar to those shown by Mrs. Payne then the burden of going forward with the evidence shifts to the store to exculpate itself.

“Upon proof of such facts, we recently held in Kavlich v. Kramer, supra, [La., 315 So.2d 282] that the duty of going forward with the evidence to exculpate the store employees from negligence shifts to the store owner. When it appears that a third person dropped the foreign substance, the store owner must establish that periodic inspections made and other protective measures taken were reasonable.”

In the present case the store employees’ negligence is not at issue, since the most plausible explanation for the substance being on the floor was that it was dropped there by a customer attempting to place trash in a nearby trash can. Therefore, the issue becomes the reasonableness of the protective measures utilized by the store.

In Gonzales v. Winn-Dixie Louisiana, Inc., supra, the Supreme Court set out some of the guidelines for judging the reasonableness of a store’s inspection procedures :

“The circumstances that determine the reasonableness of protective measures include the type and volume of merchandise, the type of display, the floor space utilized for customer service, and the volume of business.”

The facts show that Woolworth’s is a high volume, general merchandise store. It contains a large lunch counter (173 stools) and serves lunch to many people every day. Parallel to the “sitdown” lunch counter is a “stand-up” counter and parallel to that is the cosmetic counter. The area where this accident occurred, in the aisle between the cosmetic and stand-up lunch counters, is heavily trafficked by customers since it is close to a main door.

These facts tend to place a heavy burden upon Woolworth’s to show that it took reasonable protective measures commensurate with the circumstances. We find that Woolworth’s has discharged that duty.

The evidence presented by Woolworth’s shows the following: The floors of the entire store are scrubbed and mopped each night. The store opens at 9:30 A.M. and this accident occurred at approximately 1:00 P.M. The entire store is patrolled by two store porters whose job it is to clean the floors. These porters make an entire round of the store once each hour. All store employees are trained by film and instruction in safety procedures. They are told to pick up any foreign substance on the floor or if they are unable to pick it up, they are told to guard the area and summon a porter. Two employees were servicing the cosmetic counter the day of the accident. In the food service area there are two additional porters assigned. While these porters have several duties, one of their prime concerns is the floor in that area. These porters sweep up the floors and clean up debris every half hour. The food service manager, Mr. Hayden, testified that from 10:00 A.M. to 3:00 P. M. he is on duty in the food service area. As manager he walks throughout his area seeing to it that customers are served promptly, answering questions of his employees and inspecting the cleanliness of the area. He stated that he picks up any object that might fall on the floor, such as napkins or utensils. If the object cannot be readily picked up by hand, such as food or beverage, he summons one of his porters and they clean it up. Mr. Hayden testified that he passes along the aisle where the accident occurred on an average of at least once every ten minutes.

These facts evidence reasonable protective measures under the circumstances. The particular spot where Mrs. Payne fell is heavily inspected. The store porter, food area porters and cosmetic counter sales ladies all have responsibility for this spot. Finally, Mr. Hayden patrols the area on a very frequent basis. The evidence shows that these employees were present that day and carrying out their normal duties.

The Gonzales case reiterated the rule that a store owner is not the insurer of its patrons’ safety. We find no evidence of fault on the part of defendants.

For the above reasons we affirm the judgment of the trial court. Appellant is assessed costs.

Affirmed.