text:
    J. W. JONES, Plaintiff-Appellant, v. NATCHITOCHES PARISH POLICE JURY, Defendant-Appellee.
    No. 6955.
    Court of Appeal of Louisiana, Third Circuit.
    May 23, 1979.
    Makar & Whitaker, John B. Whitaker, Natchitoches, for plaintiff-appellant.
    Harrington & Harrington, Eric R. Harrington, Natchitoches, for defendant-appel-lee.
    Before WATSON, STOKER and DOU-CET, JJ.
   STOKER, Judge.

Plaintiff, J. W. Jones, filed this suit for preliminary and permanent injunctions on August 28, 1978, to enjoin the defendant, the Natchitoches Parish Police Jury, from holding a local stock law election in Ward 4 of Natchitoches Parish, State of Louisiana, scheduled for September 16, 1978. The Natchitoches Parish Police Jury had called this election upon the petition of twenty-five (25%) percent of the qualified voters of Ward 4 pursuant to the provisions of LSA-R.S. 3:3001, et seq., establishing the regulation of livestock on public highways within a ward of a parish.

The plaintiff is a resident of Ward 4 of Natchitoches Parish in an area classified as “open range” territory. The election called by the defendant was to determine the future status of all “open range” property located within the ward. The plaintiff contends that LSA-R.S. 3:3001, et seq. is unconstitutional in that it denies plaintiff the equal protection of the law and deprives him of his property (i. e., his “grazing rights”) without affording him due process of the law. Specifically, the appellant asserts that the election procedure set forth in LSA-R.S. 3:3001, et seq. is unconstitutional in its provision for “ward-wide” elections. In this instance, petitioner alleges that such a procedure allows qualified voters of Ward 4 currently residing in “closed range” areas to participate in the election despite the fact that they assert no direct interest in the outcome of the proposed election. Thus, plaintiff contends that his right to vote is effectively “diluted” by the participation of “closed range” voters in the September 16, 1978, election.

In his petition, plaintiff asserts that he “. . . desires and is entitled to a preliminary injunction prohibiting this stock law election . (R. 3) The only relief requested by the petitioner is that the court issue an injunction to prevent the occurrence of the election. After a hearing on September 10, 1978, judgment was rendered denying plaintiff’s application for in-junctive relief. Petitioner now appeals de-volutively from this judgment.

Inasmuch as the election of September 16, 1978, has already been held and the results thereof promulgated, the matter has become moot, and any judgment rendered by this court would have no legal effect whatsoever. Boothe v. Board of Supervisors of Elections, Etc., 341 So.2d 1297 (La.App. 3rd Cir. 1977); Ardoin v. Ardoin, 306 So.2d 476 (La.App. 3rd Cir. 1975); Hines v. Village of Goldonna, 136 So.2d 140 (La.App. 3rd Cir. 1961); Spinato v. Lowe, 239 La. 604, 119 So.2d 480 (1960).

A moot case is one which seeks to obtain a judgment on some matter which, when rendered, cannot, for any reason, have any practical legal effect upon a then existing controversy. State v. White, 358 So.2d 999 (La.App. 3rd Cir. 1978). Courts will not rule on questions of law which have become moot since their decree will serve no useful purpose and can give no practical relief. Bradley & Braud, Inc. v. Canady, 342 So.2d 1184 (La.App. 1st Cir. 1977). This rule applies even in those cases which raise a constitutional question on the merits. See: Horne v. La. State Bd. of Elem. and Sec. Ed., 357 So.2d 1216 (La.App. 1st Cir. 1978), writs den., 359 So.2d 621 (La.1978).

In the instant action, petitioner requests this court to declare LSA-R.S. 3:3001, et seq. unconstitutional. However, the only relief prayed for by the plaintiff is for the court to enjoin the defendant from holding this stock law election. As the election has already been held, this court is without power to grant any useful decree which would afford plaintiff the relief he requested.

Accordingly, plaintiff’s suit is dismissed and all costs of this appeal are assessed against the plaintiff.

APPEAL DISMISSED.

      . This court has recently upheld the validity of the petition for election which initiated this particular election despite certain irregularities found to exist in the voter’s petition. See: Rachal v. Natchitoches Parish Police Jury, 370 So.2d 183 (La.App. 3rd Cir. 1979) and 370 So.2d 185 (La.App. 3rd Cir. 1979).

      . In an “open range” area, there is no stock law or ordinance prohibiting an owner from allowing his animals to roam at large, however, in a “closed range” area, particular types of livestock are prohibited from roaming at large on the public highways. Bryant v. McCann, 297 So.2d 262 (La.App. 3rd Cir. 1974); Fall v. Manual, 228 So.2d 494 (La.App. 3rd Cir. 1969).

      . Apparently by a narrow margin, the voters of Ward 4 of Natchitoches Parish decided to classify all property within the ward as “closed range"


source: Caselaw Access Project

author: DOMENGEAUX, Judge.

license: Public Domain

text:
    Charles Ray ALEXANDER, Sr., et al., Plaintiffs-Appellants, v. TOWN OF JEANERETTE et al., Defendants-Appellees.
    No. 6966.
    Court of Appeal of Louisiana, Third Circuit.
    May 23, 1979.

      Guillory, McGee, Mayeux & Fontenot, Donald L. Mayeux, Eunice, for plaintiffs-appellants.
    Caffery, Duhe, Oubre & Gibbens, Jerry A. Oubre, New Iberia, Allain & Allain, Raymond E. Allain, Jeanerette, for defendants-appellees.
    Before CULPEPPER, DOMENGEAUX and GUIDRY, JJ.
   DOMENGEAUX, Judge.

Plaintiffs-appellants, Charles Ray Alexander, Sr. and Shirley May Rideaux Alexander, instituted this action, in proper person, seeking damages on several ill-defined allegations.

A perusal of the petition seems to indicate that the intended defendants are the Town of Jeanerette, Louisiana, a Police Department, Sgt. Whitney Vernon, and Mrs. Neomie L. Sedgewick.

It seems that a part of their demand seeks damages for their alleged minor child, Roger James Alexander, for injuries which he allegedly sustained in a vehicular collision involving one of the defendants, Mrs. Neomie L. Sedgewick.

In response to the petition, counsel for Mrs. Sedgewick filed dilatory exceptions of vagueness and lack of procedural capacity, and peremptory exceptions of no cause and of no right of action. On October 6, 1978, the trial court sustained these exceptions and granted plaintiffs fifteen days to cure the imperfections in their petition by amendment. The plaintiffs failed to amend as ordered, and on October 30, 1978, their suit as to Mrs. Sedgewick was dismissed with full prejudice. From that judgment plaintiffs have appealed.

The only issues presented for our review are: (1) Whether the exceptions filed on behalf of Mrs. Sedgewick were properly sustained; and (2) If sb, whether it was proper to dismiss the suit with prejudice?

I. CORRECTNESS OF SUSTAINING THE EXCEPTIONS.

The pertinent portions of the petition relating to the exceptions are quoted, verbatim, without corrections, as follows:

“Sgt. Whitney Vernon, fail to give a white driver a ticket on 11 July 1978, 5:28 P. M., However he give Lionel a ticket, and on the 3 August 1978 he also fail to give Mrs. Meomie L. Sedewick a ticket, she is white: attach you will find copy of the accidents reports, and etc.
Wherefore, Plaintiff and Wife Pray:
That the court grant the plaintiff son Roger James Alexander, who is 13 years old the rights for Mrs. Neomie L. Sedge-wick to pay all medical expence of the injury he sustained on the 3 August 1978 at the present and/or his future medical he my suffer from injury of the 3 August 1978.
That the court grant the rights for Roger J. Alexander to receive the sum of One-Millior Five-hundred Thousand dollar and no cents, for his pain and suffering, men-tial anguish, no recreation and/or a well pain plot of conspiracy on him: $1,500,-000.00 from Mrs. N. L. Sedgewich;
That because Sgt. Whitney Vernon, allow the whites to go free after they fail to stop and yield at Doll street, and main street: also fail to yield on the corner of Main and Hubertvlle road cause Roger J. Alexander to suffer from Mrs. Neomie L. Sedgewich car hit him in the air; broken his leg, her car made skidmark of 49' and/or 50'. (That we have a jury trial.)”

It is to be noted that the record does not contain an attached copy of the accident report, as is indicated in the first paragraph cited above.

Appellants’ first contention is that as laymen, not represented by an attorney, they should not be held to the same standards required of a professional in the preparation and prosecution of a petition. Nevertheless, although we may not always hold laymen to the same standards of skill and judgment that is required of an attorney, when a layman chooses to appear in propria persona, he assumes all responsibility for his own inadequacy and lack of knowledge of procedural and substantive law. Connolly v. Connolly, 316 So.2d 167 (La.App. 4th Cir. 1975); Delesdernier v. Thorpe Finance, Inc., 225 So.2d 485 (La. App. 4th Cir. 1969). Furthermore, it is apparent that counsel was available had the Alexanders desired the services of an attorney. In fact, at one time the plaintiffs had employed the services of an attorney, Mr. William H. Lambert, but just prior to the October 6th hearing, he was discharged. (Tr. 33 and 36-37). Accordingly, we find that the plaintiffs, as attorneys pro se, must be held accountable to at least minimal standards for preparing and presenting any suit in our courts of law.

Our Code of Civil Procedure sets forth the basic guidelines and minimal standards required in drafting a legally sufficient petition. Article 891 of that Code requires that all petitions “contain a short, clear and concise statement of the object of the demand and of the material facts upon which the cause of action is based . . The petition submitted by plaintiffs was impermissibly vague concerning the status of the plaintiffs and of the minor son. Moreover, it failed to indicate, with any particularity, the circumstances of the accident, the parties involved, and the basis for placing responsibility upon Mrs. Sedgewick.

From a full reading of the petition, it would appear as though plaintiffs wished to allege that, despite the fact that Mrs. Sed-gewick was not issued a ticket, she actually caused the injuries to Roger Alexander by striking the vehicle in which he was travel-ling after she had negligently run through a yield sign located at the corner of “Main and Hubertville road.” Unfortunately, even though this sequence of events might be surmised from the wording of the petition, the actual allegations made therein do not set forth clearly these and other essential facts.

We feel that it would be impossible for the defendant to answer these confused allegations. Of particular difficulty is the contention that “Mrs. Neomie L. Sedgewich car hit him in the air .” Because these allegations of fact do not meet the minimal standards required by our law to apprise the defendant of the charges made against her, the ruling of the lower court sustaining the dilatory exception of vagueness was correct.

The trial court also sustained the dilatory exception of lack of procedural capacity to sue, and the peremptory exception of no right of action. The exception charging a lack of procedural capacity was properly sustained against Mrs. Alexander because, under La.C.C.P. Article 683, Mr. Alexander, the alleged father of the minor child, is deemed the proper party plaintiff to sue to enforce a right of an unemanci-pated minor. La.C.C.P. Article 683, in pertinent part, reads as follows:

“The father, as administrator of the estate of his minor child, is the proper plaintiff to sue to enforce a right of an unemancipated minor who is the legitimate issue of living parents who are not divorced or judicially separated. The mother, as the administratrix of the estate of her minor child, is the proper plaintiff in such an action, when the father is a mental incompetent or an absentee.”

Additionally, part of the plaintiffs’ damage claim is for medical expenses for the minor. During the existence of a marriage, the husband is the proper party plaintiff to enforce a right of the community; a wife lacks the legal right (no right of action) to seek such recovery. La.C.C.P. Article 686. Accordingly, we find that the exception of no right of action was properly sustained against Mrs. Alexander.

We also think that the exception of lack of procedural capacity on the part of Mr. Alexander was likewise properly sustained because the petition is devoid of minimum allegations showing the capacity of the father in the suit, the marital status of the plaintiffs, and the status and situation of the referred to minor. Higginbotham v. Inland Empire Insurance Company, 88 So.2d 711 (La.App. 1st Cir. 1956).

The remaining exception charging that no cause of action was stated is likewise valid. To state a “cause of action” the plaintiff must allege sufficient grounds for obtaining the remedy sought. Brooks v. Smith, 35 So.2d 613 (La.App. 2nd Cir. 1948). In the present case, plaintiffs’ petition, as noted in our discussion on the exception of vagueness, did not set forth sufficient facts stating a cause of action afforded by our law.

When the grounds for an exception may be removed by an amendment, the judgment sustaining the exception shall grant the plaintiff a time period within which such grounds may be removed. La.C.C.P. Articles 932 and 934. The trial court properly followed this procedure by giving the plaintiffs fifteen days to amend and cure the defective pleading. Their neglect in not doing so was proper grounds for a dismissal. La.C.C.P. Article 933.

We next consider whether this dismissal should have been made with prejudice.

II. DISMISSAL WITH PREJUDICE.

In Prejean v. Ortego, 262 So.2d 402 (La.App. 3rd Cir. 1972), we held that a dismissal granted on an exception of vagueness should be made without prejudice even though the plaintiff in that case failed to comply with the trial court’s order to make any curative amendment within fifteen days. The basis for this decision applies to all dilatory exceptions, including the exception of lack of procedural capacity. Speaking for the court in Washington v. Flenniken Construction Co., 188 So.2d 486 (La.App. 3rd Cir. 1966), Judge Tate stated the following:

“The basis of this dismissal is the power of the court to enforce compliance with a lawful procedural order in connection with a dilatory exception, Bogan v. Byrom, La.App. 3 Cir., 151 So.2d 718, for by definition the dilatory exception ‘merely retards the progress of the action’ and ‘it is not filed in order to defeat the action’, LSA-CCP Art. 923. For this reason, the judgment of dismissal for failure to cure the defect urged by dilatory exception has consistently been without prejudice, with trial court dismissals being so amended when not so providing.” (Citations omitted).

It follows from this reasoning that unless one or both of the peremptory exceptions of no cause or no right of action provide a sufficient basis for sustaining the dismissal with prejudice, we must amend the judgment to provide for a dismissal without prejudice.

Unlike the dilatory exceptions which merely retard the progress of the suit, the purpose of making a peremptory exception is to actually defeat the action itself, not merely to retard its progress. La.C.C.P. Art. 923. In effect, however, the exception of no cause of action was upheld because of the omission of essential factual allegations which plaintiff may plead more sufficiently in the future. We think that a dismissal for the lack of necessary allegations in the petition constitutes a dismissal which amounts to a non-suit and must be rendered without prejudicial effect. Kilchrist v. Cagle Chevrolet, Inc., 262 So.2d 802 (La.App. 3rd Cir. 1972) and Williams v. American Employers’ Insurance Co., 10 So.2d 516 (La. App. 1st Cir. 1942).

We also think that the exception of no right of action should have been dismissed without prejudice. Even though Mrs. Alexander may not be presently authorized to sue on behalf of the marital community, future circumstances might dictate a different conclusion. The judgment of dismissal should not jeopardize her contingent future rights. Additionally, Mr. Alexander should be able to file a new petition which sets forth sufficient facts to indicate his right to sue. Accordingly, the judgment of dismissal should not jeopardize his contingent future rights.

In summary, our conclusion is that the trial court did not err in dismissing the suit against Mrs. Sedgewiek, but such dismissal should have been without prejudice. Consequently, a new action may be brought provided, of course, that there are no prescriptive limitations.

For the above and foregoing reasons, the judgment appealed from is amended to decree that the suit as to Mrs. Sedgewiek is dismissed without prejudice. In all other respects, the judgment is affirmed. The costs of this appeal are assessed one-half to the plaintiffs-appellants and one-half to the defendant-appellee.

AMENDED AND AFFIRMED.

      . The Police Department cited is apparently meant to be the Police Department of the Town of Jeanerette, Louisiana.

      . We note that other parties have filed other exceptions which are not before us at this time,


author: STOKER, Judge.

text:
    Jason ZACHARY, Plaintiff-Appellee, v. BITUMINOUS CASUALTY CORP. et al., Defendants-Appellants.
    No. 6968.
    Court of Appeal of Louisiana, Third Circuit.
    May 23, 1979.

      Lewis & Lewis, John M. Shaw, Opelousas, for defendants-appellants.
    Kramer & Laird, Bernard Kramer, Alexandria, for plaintiff-appellee.
    Before WATSON, STOKER and DOU-CET, JJ.
   STOKER, Judge.

This is a suit to recover workmen’s compensation benefits filed by the plaintiff-employee, Jason Zachary, against his employer, Fred J. Wyble Oil Field Contractor, Inc., and their compensation insurer, Bituminous Casualty Corporation, as the result of an accidental injury incurred while plaintiff was acting within the course and scope of his employment. The central issue presented on appeal is whether the trial court erred in granting plaintiff’s motion to reopen, pursuant to LSA-R.S. 23:1331, and awarding plaintiff continuing disability of $95.00 per week, finding plaintiff totally and permanently disabled.

The plaintiff was injured on August 5, 1977, when he struck his right knee cap against a valve. On August 8, 1977, Mr. Zachary first went to see Dr. Frederick L. Mayer, an orthopaedic surgeon, to receive treatment for the injuries sustained in the accident. Dr. Mayer’s initial diagnosis was that the claimant’s knee had only been bruised, however, the patient subsequently developed an infection which required his hospitalization for nearly twenty days. Since this time, the plaintiff has been unable to return to work. Mr. Zachary has remained under Dr. Mayer’s supervision continuously from August 8, 1977.

Workmen’s compensation benefits were paid by the defendants to the plaintiff from the date of the accident through December 15, 1977, on which date Dr. William L. Meuleman, an orthopaedic surgeon, reported that the plaintiff was capable of returning to work. Subsequently, on February 21,1978, Mr. Zachary brought a suit for workmen’s compensation benefits. At the trial of this action, Dr. Meuleman testified on behalf of the defendants; Dr. Mayer testified that the plaintiff remained disabled, and the deposition of Dr. T. E. Banks, an orthopaedic surgeon who had examined Mr. Zachary, was introduced to further support plaintiff’s claim. On May 16, 1978, the trial court rendered a judgment finding the plaintiff disabled and awarding him disability and reasonable medical expenses through August 25, 1978, granting defendants credit for amounts previously paid.

Mr. Zachary remained under the care of Dr. Mayer, and despite the fact that he received the recommended physical therapy, the claimant did not respond to this treatment, nor did his condition improve. Consequently, plaintiff filed this action to reopen the workmen’s compensation proceedings in accordance with LSA-R.S. 23:1331 on August 7, 1978. Defendants opposed this motion and filed a peremptory exception of res judicata. After testimony was taken on the motion and the exception, the trial court overruled the exception of res judicata, granted plaintiff’s motion to reopen and found Mr. Zachary to be totally and permanently disabled. Defendants now appeal.

Defendants contend that the plaintiff, in order to properly proceed under LSA-R.S. 23:1331, must show some change in his incapacity from the time of the original judgment. Defendants allege that the record fails to produce any evidence that plaintiff’s condition has changed and therefore, the trial court improperly granted the claimant’s motion to reopen.

LSA-R.S. 23:1331 provides:

A judgment of compensation may be modified by subsequent agreement between the parties, with the approval of a judge of the court which rendered the same.
At any time six months after the rendition of a judgment of compensation, a judge of the trial court that rendered the judgment shall review the same upon the application of either party for a modification thereof, on the grounds that the incapacity of the employee has been subsequently diminished or increased, or that the judgment was obtained through error, fraud, or misrepresentation. In such cases the provisions of R.S. 23:1121 through R.S. 23:1124 with reference to medical examinations shall apply. (Emphasis supplied)

The purpose of this statute in providing for the subsequent modification of a judgment of compensation was to allow either the injured employee or the employer to have the compensation adjusted to correspond to any change in the employee’s disability which may have occurred after the award of such a judgment. Jefferson v. Laure N. Truck Line, 181 So. 821 (La.App.Orleans 1938), affirmed 192 La. 29, 187 So. 44 (1939); Evans v. Naihaus, 326 So.2d 601 (La.App. 4th Cir. 1976).

Although the statute provides for modification by either the employee or the employer, in practice this provision has been utilized almost exclusively by the employer to decrease or terminate workmen’s compensation benefits where there was any evidence of a change in the employee’s condition since the time of the original judgment. One of the reasons that LSA-R.S. 23:1331 has proven to be an ineffective remedy for employees is that, until recently, the jurisprudence has restrictively interpreted the application of this provision. Thus, an employee generally had to wait six months from the date of the initial judgment before he could petition the court for a modification and in the event that the previous award had been fixed at a period of less than six months, it was held that the award could not be modified on the grounds of an increase or decrease in a claimant’s incapacity. Therefore, in cases where the employee’s condition worsened, he was often prevented from modifying the prior compensation award to receive an increase in disability payments.

This result was alleviated by the Louisiana Supreme Court in the case of Landreneau v. Liberty Mutual Insurance Co., 309 So.2d 283 (La.1975). In Landreneau the court specifically overruled the prior jurisprudence on this point and held that:

There is nothing in [R.S. 23:1331], itself, . . . which prohibits a re-examination of a compensation judgment simply because it only awards benefits for six months or less after the judgment. The flexibility of the system is greatly restricted by applying the same rules of finality to compensation awards as to other civil judgments. Id. at 285.

Thus, the court decreed that where the compensation judgment awards recovery for a period of less than six months, the claimant may nevertheless petition the court to modify this award if the evidence indicates that his condition has changed from the time of the original judgment. In so ruling the court recognized that the Workmen’s Compensation Act was to be construed liberally and contemplated that a compensation award can be modified by either party due to a change in disability or evidence of error or fraud in the original judgment.

Consequently, in the case currently before the court, merely because the trial judge awarded benefits of less than six months duration, the employee is not precluded from modification of this award. Nor does res judicata apply to the trial court’s ruling and bar plaintiff’s recovery because the Supreme Court in Landreneau specifically authorized such a modification and indicated that res judicata was not a valid defense in this situation. Under the plain wording of the statute, either party may seek relief if a change has occurred and six months have elapsed since the initial judgment.

Admittedly, six months had not yet run from the time of the original award in this case. However, it has been held that the district court has the discretionary power, in exceptional circumstances, to permit the reopening of an award earlier than the six month period. Wade v. Calcasieu Paper Company, 95 So.2d 725 (La.App. 1st Cir. 1957); Fontenot v. Myers, 93 So.2d 245 (La. App. 1st Cir. 1957). Where there is evidence to indicate that an employee’s disability may change prior to the expiration of this period, such has been held to constitute those “exceptional circumstances” which justify an early reopening of the judgment. Wilturner v. Southern Bell Telephone & Tel. Co., 177 So.2d 605 (La.App. 3rd Cir. 1965). In this case at bar, if plaintiff had to wait until six months after the first judgment to reopen the proceedings, he would conceivably run the risk of losing several months of compensation in the process. Therefore, the trial judge clearly had the authority to reopen this ease prior to the expiration of the six month period.

In order to modify the original judgment herein, the employee must establish that his condition has changed or that the initial award was obtained through fraud, error or misrepresentation. Johnson v. Calcasieu Sulphate Paper Co., 142 So. 861 (La. App. 1st Cir. 1932). At the hearing of this matter, the plaintiff testified that his condition had not improved as anticipated despite the fact that he was undergoing continuous treatment for his knee. (Hearing Rec. 5) Mr. Zachary stated that his knee remained swollen and that as a result of this condition, he is unable to return to work as he had hoped. (Hearing Rec. 4) Dr. Mayer testified that the plaintiff had been under constant treatment for his injury but that the therapy had been unsuccessful. (Hearing Rec. 6, 7) According to Dr. Mayer, plaintiff’s condition had remained unchanged and unless an operation was performed, the plaintiff would remain disabled. (Hearing Rec. 7, 9) Dr. Mayer admitted that his previous diagnosis appeared to be in error and that at the time of the first trial, the plaintiff apparently did have a tear in the cartilage of the knee. (Hearing Rec. 10, 11)

In consideration of this evidence, the trial court concluded that the plaintiff’s condition had either changed between the first and second trials so as to increase disability both in its extent and duration, or that the ruling in the first proceeding was based upon erroneous medical conclusions. (Tr. 41) The record in this case amply supports the trial judge’s determination. Although the plaintiff’s physical condition may not have changed between trials, clearly the duration of his disability as originally envisioned by the medical experts and the court below has been altered. According to the previous medical testimony, the plaintiff should have recovered from his injuries by the end of August, 1978. However, the uncontradicted evidence introduced at the second trial indicates no signs of improvement. This increased duration is certainly one type of change in a claimant’s condition addressed by LSA-R.S. 1331, and the trial judge was correct in granting plaintiff’s motion to reopen under this statute and awarding total and permanent disability to Mr. Zachary.

Defendants, however, strenuously urge in this appeal that the literal restrictive wording of LSA-R.S. 23:1331 requires a finding that “the incapacity of the employee has been subsequently diminished or increased.” (Emphasis supplied) The defendants’ brief is largely devoted to showing that at the second hearing held upon a reopening of the ease the evidence showed plaintiff’s condition had not changed in any way. While recognizing that Dr. Mayer testified at the second trial that his diagnosis at the time of the first trial was wrong, defendants insist, nevertheless, that no worsening or increase in disability has been shown. Defendants seriously urge, that conceding that Dr. Mayer’s testimony may represent the facts, all that has been shown is that plaintiff’s condition was the same on the first hearing as at the second hearing except that it is permanent rather than temporary and recovery is not probable. However, defendants contend that this is not an increase in disability; they contend that there was simply an error in diagnosis, and that being the case, the judgment at the first hearing should be res judicata. Thus, defendants contend LSA-R.S. 23:1331 is inapplicable to errors of medical diagnosis or evaluation which result in an incorrect medical prognosis. Defendants argue that because an expert changes his mind, a litigant should not be permitted to reopen a case even though it is a workmen’s compensation case, for the reason that it would never be allowed in any other type of civil case.

Expressions in the Landreneau case and the general tenor of that opinion indicate that we are not required to give the restrictive and narrow construction to the statute for which the defendants contend. Moreover, we find in the statute itself justification for reconsideration of a workmen’s compensation judgment based upon error. The review authorized by LSA-R.S. 23:1331 is stated to be based “on the grounds that incapacity of the employee has been subsequently diminished or increased, or that the judgment was obtained through error, fraud, or misrepresentation.”

In the case before us there was admitted error, certainly honest error, but error nevertheless. We cannot conceive of the statute in question not permitting a reopening of the case to show medical error in the doctor’s initial conclusion that plaintiff’s condition was temporary rather than permanent although the condition may have remained unchanged in severity, quality or nature. Hence, even if we had not found an “increase” in plaintiff’s disability, the case should have been reopened on the basis of this error.

Defendants, in their brief filed before this court, seem to speculate that the plaintiff’s continued disability is due to the occurrence of some other injury which occurred after the first trial. However, absolutely no evidence of such an injury was produced in this case. In the absence of such proof, the presumption is that symptoms of the injury are related to the initial accident. Bertrand v. Coal Operators Casualty Co., 253 La. 1115, 221 So.2d 816 (1968); Williams v. Liberty Mutual Ins. Co., 327 So.2d 462 (La.App. 3rd Cir. 1976).

Plaintiff-appellee has answered the appeal in this case to ask for penalties and attorney’s fees. The answer to the appeal filed by plaintiff-appellee alleges that the trial court erred in failing to make these awards. If the error is directed at the judgment on the original hearing (signed May 23, 1978), we agree with the trial court’s action denying penalties and attorney’s fees. As a matter of fact, plaintiff-appellee’s brief in this appeal admits there was just cause for refusing the award of penalties and attorney’s fees at the first hearing. Assuming, however, that plaintiff-appellee could timely raise the issue as to the first judgment by answer to the appeal from the judgment resulting from the second hearing (signed October 11, 1978), we are of the opinion that the trial court’s denial should be affirmed.

We believe, however, that the alleged error was directed at the second judgment. The thrust of plaintiff-appellee’s brief and oral argument, relying on Doucet v. Mutual of Omaha Insurance Company, 365 So.2d 1161 (La.App. 3rd Cir. 1978), is that defendants-appellants failed to pay compensation beyond August 25, 1978 (the time fixed by the trial court in its first judgment) despite the medical report of Dr. Banks and the testimony of Dr. Mayer given at the second hearing after the case had been reopened.

Plaintiff-appellee filed his motion to reopen on August 7, 1978. Neither the allegations of the motion or the prayer of the motion mentioned a request for penalties and attorney’s fees. Therefore, the question of penalties and attorney’s fees were raised for the first time on appeal through the answer to the appeal. It was not raised in the second hearing before the trial court. In fact, there is no evidence in the record that the defendants-appellants did not pay compensation after August 25, 1978. The second hearing was held on September 8, 1978, without testimony to that effect being adduced. Under the circumstances the issue of penalties and attorney’s fees are not before the court. Interstate Oil Pipe Line Co. v. Guilbeau, 217 La. 160, 46 So.2d 113 (1950); State, ex rel. Village of Scott v. Broussard, 153 So.2d 131 (La.App. 3rd Cir. 1963) and Lee v. Smith, 248 La. 16, 176 So.2d 413 (1965).

For the foregoing reasons, the judgment of the trial court is affirmed and all costs of this appeal are assessed against the defendants-appellants.

AFFIRMED.

      . Williams v. Martin Timber Co., 116 So.2d 323 (La.App. 2nd Cir. 1959); Johnson v. Cajun Enterprises, 293 So.2d 617 (La.App. 3rd Cir. 1974); Juneau v. Tulane Industrial Laundry, 358 So.2d 347 (La.App. 4th Cir. 1978).

      . See: Lacy v. Employers Mutual Liability Ins. Co. of Wisconsin, 233 La. 712, 98 So.2d 162 (1957). In this case, the Louisiana Supreme Court had held that where the duration of the employee’s incapacity had been fixed at a period of less than six months, the award could not be modified. The court held that LSA-R.S. 23:1331 required that a judgment of compensation be extant at the time an application for modification of that award was made. Where a claimant’s disability had already expired as judicially determined, defendant’s obligation under the award had been extinguished and there was nothing left to modify, therefore, R.S. 23:1331 did not apply in these situations.

      . This reference is to the page number assigned by the Court Reporter who transcribed the trial testimony. This and other such references in this opinion are used because in preparation of the record the pages of the transcribed testimony in the record were not given page numbers.

      . Dr. Mayer testified that with surgery total disability would last another four to six months. If the surgery should prove completely successful plaintiff would be assigned a 5% permanent partial residual impairment of the involved extremity.


author: FORET, Judge.

text:
    Rita Baltruks KASPERSKI et al., Plaintiffs-Appellees, v. PATTERSON SERVICES, INC. et al., Defendants-Appellants.
    No. 6971.
    Court of Appeal of Louisiana, Third Circuit.
    May 23, 1979.
    Writ Refused July 2, 1979.

      Allen, Gooch & Bourgeois, Arthur I. Robi-son, Lafayette, for defendants-appellants.
    Robert S. Cooper, Jr., Baton Rouge, Sue Fontenot, Abbeville, for plaintiff-appellee.
    Harmon F. Roy, Lafayette, for third-party, defendant-appellee.
    Before FORET, CUTRER and SWIFT, JJ.
   FORET, Judge.

This is a suit for wrongful death brought by Rita Baltruks Kasperski, the widow of the decedent, Franciszek Kasperski, individually and on behalf of her minor daughter, Elizabeth Kasperski, and by the decedent’s four major children, Robert, Henry, Stanis-laus and Helen Kasperski. The only issue presented on appeal is whether the trial court erred in concluding that the record did not support defendants’ assertion that this accident was caused solely by the fault of a third party and not through any negligence or fault of the defendants.

On the morning of June 7,1977, the decedent was driving a 1974 pickup truck in a westerly direction on Louisiana State Highway* 338 northeast of Abbeville, Louisiana. Proceeding in the opposite direction was a 1975 tractor-trailer rig driven by defendant, Ronald P. Romero, and owned by defendant, Patterson Services, Inc. Located on the bed of the trailer was a large piece of equipment known as a “spacer spool” weighing approximately 10,000 pounds and secured by two chains wrapped over the front and rear of this device. As these two vehicles were passing each other in a curve on the highway, the spool became dislodged from the trailer and struck the Kasperski vehicle, mashing the pickup truck and resulting in the instant death of the decedent.

Plaintiffs thereafter filed this action to recover for the decedent’s wrongful death based upon the negligence of the defendants in loading, binding and securing the spool and under theories of strict liability provided by Louisiana law. Defendants denied any negligence on their part and asserted that the accident was solely the fault of a third party in producing a defective chain and that this defect was in no manner attributable to the defendant.

The trial court concluded that the accident and resulting death occurred because of one of two reasons . . first, defects in the chain, or secondly, an improper binding of the load.” (Tr. 400-01) The court applied LSA-C.C. Art. 2317 to affix strict liability to the defendants for the damage caused by the defective item (the chain) within the custody and control of the defendants. The court found that the defendants failed to sustain their burden of proof to absolve them of liability in this instance. From this judgment, defendants now appeal.

In the leading case of Loescher v. Parr, 324 So.2d 441 (La.1975), Justice Tate, writing for the Louisiana Supreme Court, held that Art. 2317 provides for strict liability resulting from any damage caused by the defect existing in a thing under the custody of any individual. Justice Tate summarized the applicable principles of legal fault as follows:

“When harm results from the conduct or defect of a person or thing which creates an unreasonable risk of harm to others, a person legally responsible under these code articles for the supervision, care, or guardianship of the person or thing may be held liable for the damage thus caused, despite the fact that no personal part is proved. The liability arises from his legal relationship to the person or thing whose conduct or defect creates an unreasonable risk of injuries to others.
“The fault of the person thus liable is based upon his failure to prevent the person or thing for whom he is responsible from causing such unreasonable risk of injury to others. Thus, the person to whom society allots the supervision, care, or guardianship (custody) of the risk-creating person or thing bears the loss resulting from creation of the risk, rather than some innocent third person harmed as a consequence of his failure to prevent the risk. His fault rests upon his failure to prevent the risk-creating harm and upon his obligation to guard against the condition or activity (by the person or thing for which he is responsible) which creates the unreasonable risk of harm to others.” Id. at 446.

The court then specified the requirements for recovery and the defenses available under Article 2317:

“This jurisprudence recognizes that the injured person must prove the vice (i. e., unreasonable risk of injury to another) in the person or thing whose act causes the damage, and that the damage resulted from this vice. Once this is proved, the owner or guardian responsible for the person or thing can escape liability only if he shows the harm was caused by the fault of the victim, by the fault of a third person, or by an irresistible force.'” Id. at 446-447. (Emphasis applied)

Thus, under this decision, delictual responsibility does not necessarily depend upon the commission of negligent acts, but upon fault, and the owner or custodian of an instrumentality which causes unreasonable risk of injury to others is at fault.

As evident from Loescher, the liability afforded by Article 2317 can only be avoided where it is established that the damage was caused by (1) the fault of the victim; (2) the fault of some third person; or (3) some irresistible force. Since the Loescher decision, the most often raised defense to the application of Article 2317 is that the fault of a third party was the cause of the accident. This trend is exemplified by the case of Panek v. Gulf Insurance Co., 341 So.2d 46 (La.App. 3rd Cir. 1976), wherein the court found that the cause of an accident in which a wheel on a truck had become dislodged, thus striking another vehicle, was due to the prior owner’s failure to properly tighten the bolts located on the wheel. Because the damage resulted from the fault of a third person, and not merely a defect in the wheel, the owner of the truck was not liable under Article 2317.

Initially, the jurisprudence held that in order to be relieved of liability under this defense,' the defendant had to prove that the accident was caused solely by the fault of a third person. Tiger Well Service v. Kimball Production Co., 343 So.2d 1153 (La. App. 3rd Cir. 1977). However, the First Circuit has recently relaxed this standard to require that the fault of the third party be merely a substantial factor of the accident, not necessarily the sole cause. American Road Insurance Co. v. Montgomery, 354 So.2d 656 (La.App. 1st Cir. 1977), writ denied, 356 So.2d 430 (La.1978). Proof of less than substantial causation would not invoke the application of this defense.

The defendants in this action seek to exculpate themselves from liability under Article 2317 by alleging that the sole cause of this accident was due to the existence of a defect in the chain encasing the spool and thus the fault of the third person. This defense does not seek to establish the fault of a third party through his actions or failure to act, but rather seeks to impute his fault by the mere existence of a latent defect in the chain.

In order for a latent defect to constitute a valid defense, the proof must be so strong that it excludes any other reasonable hypothesis with reference to the cause of the accident except that it resulted solely from the alleged defect. Sentry Insurance Co. v. Thomas, 360 So.2d 268 (La.App. 4th Cir. 1978). Thus, the defendants must establish by convincing evidence that the accident resulted from the defect itself and not from any activity for which the defendants are responsible. A review of the record in this case indicates that the defendants have failed to meet this burden of proof.

Although the trial court found that a defect in the chain did exist, it was also the court’s opinion that the accident was in part due to the improper binding of the spool on the truck bed. (Tr. 400) Thomas M. Grubbs, qualified as an expert in mechanical engineering, testified that this accident was caused when the rear chain fastening the spool became loose, allowing the load to shift on the truck. (Tr. 501) This - movement produced an overload on the front chain, increasing the stress imposed on the faulty link causing it to give way. (Tr. 503-504) Mr. Grubbs’ testimony indicated that the accident could have easily been prevented by fastening a third chain about the load or by utilizing chocks or sidebars on the truck bed. (Tr. 512)

The driver, Mr. Romero, stated that he had secured the spool after loading. (Tr. 437) Although there were other chains available, Mr. Romero only used two chains to bind the spool on the truck. (Tr. 441, 443) In the rear, the defendant wrapped the chain around the spool twice, however, only one loop bound the front of the spool. (Tr. 442, 443) Mr. Romero offered no explanation as to why the front of the spool was not bound as securely as the rear, other than to note that the front chain was “too short” to be doubled around the load. (Tr. 443) Clearly, had Mr. Romero chosen to take the precaution, a second chain could have been applied to secure the front terminal of the spool. Nevertheless, the defendant proceeded to leave the yard but stated that after a short time on the highway, he stopped to check to see if the chains remained tight. (Tr. 643) Mr. Romero indicated that he knew there was a risk that these chains would become loose and in fact noted that one of the chains on the truck did become loose. (Tr. 635, 643)

This Court concludes that the record amply supports the trial judge’s determination that one cause of this accident was the failure of the defendants to insure that the load on the truck was properly secured. In fact, according to Mr. Grubbs’ testimony, this was the principal cause of the accident because the movement of the spool began when the rear chain became loose. Defendants did not contend that any defect existed in this chain, and therefore, the inference is that the negligence of the defendants in part contributed to the occurrence of this accident.

Not only could the expert witnesses called by both plaintiff and defendants not testify as to the manufacturer of the whole chain, some witnesses stated that there was post-manufacturing fabrication work done on the chain so as to substantially modify its original performance characteristics. Neither was it proved that this chain was manufactured for this particular use (as was the tandem wheel assembly in Panek, supra, or the derrick in Tiger Well Service, supra).

There is sufficient evidence in the record to conclude that the negligence of the defendants in securing the load was at least partly and probably mostly to blame for this accident. While there may have been some defect in the chain, this in itself does not absolve the defendants from liability for their negligent conduct. Anding v. Southwestern Insurance Company, 358 So.2d 690 (La.App. 3 Cir. 1978).

In this Court’s opinion, however, it is not necessary to reach a finding of negligence on behalf of the defendant. The case is exactly that type which affords the application of the principle discussed in Loescher v. Parr, supra. The defendants herein were engaged in the process of transporting an extremely large and heavy piece of machinery. Clearly, they had a responsibility to undertake every precaution to insure that this spool would remain securely fastened to the truck bed during transportation. In securing this spool, they utilized a chain which proved to be defective. The existence of this defect created an unreasonable risk of injury and was partially responsible for the damage which occurred. As the defendants could not show that the fault of a third party in producing the defect was substantially the cause of this accident, the defendants are held to be liable for the damages caused by this defect under Article 2317. This Court can find no manifest error by the trial court in awarding recovery to plaintiffs under this analysis.

For the above and foregoing reasons, the action of the trial court is maintained, and all costs of this appeal are assessed against the defendants-appellees.

AFFIRMED.

      . LSA-C.C. Art. 2317 provides:
      “Art. 2317. We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.”
      Those code articles appearing immediately after Art. 2317 provide for modification of the general rule dealing with minor children, insane persons, acts of servants, damage caused by animals and damage caused by the ruin of buildings. See: LSA-C.C. Arts. 2318-2322.

      . Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). In this case, the Supreme Court denied recovery for damages flowing from an automobile accident under Article 2317, noting that the defendant had established that the cause of the accident was the negligence of a third party driving the vehicle. There was some contention raised as to the possibility that a brake failure was responsible for the accident, however, the court found that this was not established. Justice Dennis, in a concurring opinion, noted that had the injury been caused by some mechanical failure, then Article 2317 would have applied to hold the owner of the vehicle liable even though it was operated by a third person at the time of the accident.
      Other cases which have applied the strict liability afforded by Article 2317 since the Loescher decision include: Woodward v. First of Georgia Ins. Co., 333 So.2d 709 (La.App. 2nd Cir. 1976), writ denied, 338 So.2d 295 (La.1976); Wolverton v. City Stores Co., 363 So.2d 1321 (La.App. 4th Cir. 1978).

      . Loescher v. Parr, supra.

      . In the recent Third Circuit case of Anding v. Southwestern Insurance Co., 358 So.2d 690 (La.App. 3rd Cir. 1978), Judge Watson noted that American Road Insurance Co. had precluded recovery where “any third party fault bars liability.” Id. at 697. The court then expressed a doubt as to the propriety of the First Circuit’s holding; however, these comments were addressed to the question of liability towards a public body under Art. 2317 and not to the issue of proof that the third party fault must have been a substantial cause of the damage to operate as a defense under this article.


author: WATSON, Judge.

text:
    Monroe JONES, Plaintiff-Appellee-Appellant, v. Mayo ARNOLD et al., Defendants-Appellants-Appellees.
    No. 6972.
    Court of Appeal of Louisiana, Third Circuit.
    May 23, 1979.

      Stafford, Trimble, Randow & Smith, Ronald J. Fiorenza, Alexandria, for defendants-appellants-appellees.
    Robert L. Kennedy, Colfax, for plaintiff-appellee-appellant.
    Before WATSON, STOKER and DOU-CET, JJ.
   WATSON, Judge.

This is a suit for workmen’s compensation benefits filed by Monroe Jones against his immediate employer, Mayo Arnold; Verne-co, Inc., for whom Arnold was a subcontractor; and Verneco’s insurer, Mission Insurance Company. The issues on appeal are: (1) total and permanent disability; and (2) penalties and attorney’s fees.

On December 5,1975, plaintiff Jones was working as a woodcutter, when a tree limb fell on his foot and ankle. He was taken to the Rapides Parish General Hospital where Dr. T. E. Banks diagnosed his injury as comminuted, closed fractures of the tibia and fibula bofies of the left leg, just above the ankle. Plaintiff’s leg was put in a long cast until January 2, 1976, when a less restrictive cast was substituted. Following the removal of this cast on April 27, 1976, plaintiff remained under the care and supervision of Dr. Banks until March of 1977.

Defendants paid workmen’s compensation benefits at the rate of $85 per week (the total paid amounting to $5,410, including all medical). Upon receipt of a medical report from Dr. Banks dated March 17,1977, benefits were terminated. Subsequently, plaintiff brought this suit to recover workmen’s compensation benefits for total and permanent disability. The trial court reinstated plaintiff’s workmen’s compensation benefits but did not allow penalties and attorney’s fees. Both plaintiff and defendants have appealed.

TOTAL AND PERMANENT DISABILITY

The testimony indicates that Jones is disabled because of substantial pain. Plaintiff, his wife and brother-in-law all testified that Jones continues to suffer pain from his injury. His leg swells after he has been working. (TR. 52, 67, 68). Although plaintiff has returned to work, he says that he was forced to do so to support his family after termination of benefits. (TR. 31). According to Jones, he can only work a few hours a day because of constant pain in his leg. (TR. 37, 38). Sandifur, his present employer, stated that Jones continually complains of pain while on the job and that he can only work until about 10:00 A.M. before he is unable to continue due to the pain in his leg. (TR. 63, 64). The medical testimony of Dr. Banks supports plaintiff’s position and indicates that Jones will continue to experience work related pain from his injury. In Dr. Banks’ opinion, plaintiff’s condition will not improve further and he will continue to experience pain of the same intensity in the future. (TR. 87, 88, 95, 96).

Even though a workman returns to the same type of employment after incurring an injury because of economic necessity, the worker is totally and permanently disabled, if he can function only with substantial pain. Phillips v. Dresser Engineering Co., 351 So.2d 304 (La.App. 3 Cir. 1977), writ refused, 353 So.2d 1048. Rachal v. Highlands Ins. Co., 355 So.2d 1355 (La. App. 3 Cir. 1978), writ denied, 358 So.2d 645. The evidence here is that plaintiff’s pain restricts full performance of his duties at work.

Defendants contend that plaintiff’s disability does not result from the work-related accident, but rather from a degenerative condition in plaintiff’s knee which predates the occurrence of the accident. Plaintiff did suffer from an arthritic defect in his left knee, but Dr. Banks said that any problem he is currently experiencing with his knee is “tied in” to the accident. (TR. 101).

There is no error in the finding of total and permanent disability.

PENALTIES AND ATTORNEY’S FEES

A more serious question is presented by the penalties issue. Plaintiff contends that the trial court erred in failing to award penalties and attorney’s fees. Defendants contend that, following the receipt of the report by Dr. Banks, they were entitled to discontinue compensation payments. The key paragraph in the report reads as follows:

“I feel this man should be discharged from active medical care, and he was told that I felt that nothing else was necessary to be done. I think that he has approximately an 18 per cent disability in the left lower extremity due to chronic trauma and chronic synovitis in the left ankle. I think that he can work with this disability with some limitation at the present time on squatting and/or climbing. It is entirely possible that within the next 90 to 120 days that this disability will decrease.” (TR. 113).

There is no doubt that when the defendants are informed by a medical report that an injured employee is fully recovered and discharged to return to work, compensation benefits may be discontinued without liability for penalties. However, the language of Dr. Banks indicates a substantial (18%) disability of the left leg and chronic synovitis, which is inflammation of a synovial membrane usually with pain and swelling of the joint (Webster’s Third New International Dictionary, G. & C. Merriam Co., C.1971, p. 2321). Plaintiff was described as being able to return to work, but with a disability and a limitation on squatting or climbing. The doctor’s release can hardly be said to be complete or without limitation.

When the insurer receives an equivocal medical report, such as that by Dr. Banks of March 17, a duty arises to make further investigation to determine whether plaintiff could return to work and could satisfactorily perform his previous duties. Trahan v. Rockwood Insurance Company, 284 So.2d 659 (La.App. 3 Cir. 1973); Burlew v. Houston General Ins. Co., 346 So.2d 1301 (La. App. 3 Cir. 1977).

In the present case, the employer, Mayo Arnold, testified that Jones reported back to work after his discharge and tried to perform his regular duties. Plaintiff was described as being able to work only an hour or two after which he told Arnold that he could not do the work. He did not work thereafter for Arnold. (TR. 60).

Considering the doctor’s report and the subsequent events, the termination of weekly compensation benefits by the insurer was arbitrary, capricious and without probable cause. Therefore, plaintiff is entitled to an award of penalties and attorney’s fees; the failure to make such an award by the trial court was clearly erroneous.

Therefore, the judgment is affirmed insofar as it awards Monroe Jones weekly compensation benefits for total and permanent disability, but it is reversed insofar as it fails to award penalties and attorney’s fees.

An attorney’s fee of $2,500 would be appropriate considering the nature of the case, the skill of counsel, the result achieved and the time apparently involved. This was not a complex case; the witnesses were few; the deposition testimony of only one doctor was required. The attorney’s fee includes both trial and appeal.

It is ordered, adjudged and decreed that there be additional judgment herein in favor of Monroe Jones, plaintiff, and against Mission Insurance Company, defendant, in the amount of twelve (12%) percent of all weekly workmen’s compensation payments due and payable from March 17, 1977, and more than sixty days overdue, and for an attorney’s fee in the amount of $2,500.

Costs of all proceedings, both in he trial court and on appeal, are taxed against the defendants.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.


author: GUIDRY, Judge.

text:
    Lee M. SCARBOROUGH d/b/a Lee M. Scarborough and Company, Plaintiff-Appellant, v. Ronnie NELSON d/b/a Nelson Insurance Agency, Defendant-Appellee.
    No. 6973.
    Court of Appeal of Louisiana, Third Circuit.
    May 23, 1979.

      L. Donald Foreman, Lake Charles, for plaintiff-appellant.
    John P. Navarre, Oakdale, for defendant-appellee. •
    Before CULPEPPER, DOMENGEAUX and GUIDRY, JJ.
   GUIDRY, Judge.

Plaintiff, a licensed surplus line insurance broker, seeks judgment against defendant, a licensed insurance agent, for the premiums paid by plaintiff, on behalf of defendant, for certain policies of surplus line insurance procured and placed pursuant to instructions from defendant. Plaintiff additionally seeks recovery of attorney’s fees pursuant to the provisions of LSA-R.S. 9:2781.

In his petition, which is styled “Petition on Open Account”, plaintiff alleged that in the regular course of his business, he did broker certain insurance on behalf of defendant, and that there remained due to him the sum of $6020.97. Plaintiff also alleged that written demand had been made upon defendant, pursuant to the provisions of LSA-R.S. 9:2781, without avail and that he is thus entitled to reasonable attorney’s fees. In answer to plaintiff’s petition defendant filed a general denial.

At trial plaintiff admitted that, by reason of the cancellation of certain policies for non-payment of premiums, defendant was entitled to certain credits which reduced the amount due plaintiff to the sum of $4834.19. Additionally, on trial of this matter defendant admitted owing plaintiff the sum of $3009.45 which amount was placed in the registry of court and subsequently withdrawn by plaintiff, with the defendant and trial judge’s acquiescence, subject to a reservation by plaintiff of his right to claim attorney’s fees and the difference between the sum of $3009.45 and $4834.19.

Although the record is somewhat sketchy we glean therefrom the following facts. Plaintiff is licensed in the State of Louisiana as a surplus line broker. Defendant is a Louisiana licensed insurance agent. Plaintiff accepted and placed surplus line business for defendant during the period beginning November 1976 and ending February 1977. During the aforesaid period defendant requested and received from plaintiff 10 policies of insurance for his clients, seven of which were written by National Security Fire and Casualty Company; one of which was written by Mid-Continent Underwriters Inc.; and, two of which were written by All Star Insurance Corporation. One of the All Star Insurance Corporation policies was issued to the Allen Parish Police Jury on November 3,1976 and the other was issued to the Oberlin Gas System on December 9,1976. Within forty-five (45) days of the issuance of each of the aforesaid policies plaintiff paid the issuing companies the entire premium due thereunder. As each policy was forwarded to defendant for delivery to his client plaintiff enclosed a statement billing the defendant for the total net premium due. Although defendant was paid the premiums due under all of the aforesaid policies by his clients, he did not prior to trial pay plaintiff any of the premiums due under any of the policies. The amount tendered by defendant to plaintiff at trial, i. e., $3009.45, represents the total sum due plaintiff under all surplus line policies procured for defendant except the two All Star policies. The All Star Insurance Corporation was placed in liquidation on March 1, 1977, and the policies, the premiums for which are in dispute, were cancelled at that time. The named insureds received direct notice of cancellation along with information concerning the procedure to be followed in making a claim against the receiver for the premiums unearned under the cancelled policies. When the All Star policies were cancelled defendant replaced both policies with insurance secured from another company, allowing the Allen Parish Police Jury and the Oberlin Gas System as a credit on the cost thereof the premium unearned under the All Star policies. On May 18, 1977 plaintiff sent a letter by certified mail to defendant, with accompany invoices, requesting payment of a balance of $6021.87. This letter was received by defendant on May 19, 1977.

At trial plaintiff contended that he is entitled to the total net premium due under both All Star policies, irrespective of the later cancellation because of All Star’s insolvency and liquidation, since he paid All Star in full for these policies and defendant was in turn paid in full by his clients. Additionally, plaintiff contended that he is entitled to attorney’s fees under R.S. 9:2781. Defendant contended otherwise. As noted by the trial judge in his written reasons for judgment the instant suit presents two issues: (1) whether defendant is entitled to claim as a credit against the amount owing to plaintiff the premiums unearned under the All Star policies, i. e., the premiums paid for the policy term extending beyond the insolvency and liquidation of that company; and, (2) whether plaintiff is entitled to attorney’s fees under R.S. 9:2781. The trial court decided both issues favorable to defendant and plaintiff has appealed. We will discuss these issues in the order set forth above.

IS DEFENDANT ENTITLED TO CLAIM AS A CREDIT AGAINST THE AMOUNT OWING TO PLAINTIFF THE PREMIUMS UNEARNED UNDER THE ALL STAR POLICIES?

In deciding this issue favorable to defendant the trial court reasoned as follows:

“The problem was caused when All Star Insurance Company was placed into liquidation and the insurance policies of Oberlin Gas System and Allen Parish Police Jury were cancelled. Nelson, as local agent, had to replace the policies with others which he paid and now claims credit. Lee M. Scarborough as general agent for All Star Insurance Company contends that he is owed the entire sum for which he billed Nelson when he placed the risk with All Star Insurance Company. Apparently either Nelson or Scarborough will lose $1,743.74 because it is obvious that neither All Star Insurance Company nor the insured will pay the sum. Under these circumstances, this Court feels that the loss should fall upon Lee M. Scarborough as general agent because he was in a better position to avoid this loss. Inasmuch as he was a general agent and placed risks for other local agents, he was under a duty to place these risks in a safe and financially secure insurance company. The local agent in these circumstances had a right to rely upon the general agent’s judgment and experience. Certainly he was in a better position to avoid this loss than Nelson, the local agent.”

We find this holding of the trial court to be in error.

It appears to be almost universally held that where an insured is the holder of policies on which premiums have been paid for a term extending beyond the insolvency or dissolution of the company, he has a valid claim against the insurance company for the unearned premiums. This claim however is personal to the insured and can be exercised only against the receiver of the insolvent company, the insurance agent procuring the policy and advancing the premium to the company on behalf of the insured, not being responsible to the insured absent some showing of negligence or fraud on his part. The presumption is that the broker did his duty and the insured therefore has the burden of showing that the broker or agent was negligent. 44 C.J.S. Insurance § 129c, page 699 and § 172, pages 861-863. Louisiana adheres to this general rule. In Page v. Marcel, 44 So.2d 363 (La. App. 1st Cir. 1950) plaintiff, a licensed insurance agent, sold and delivered to defendant several insurance policies taken with the Keystone Mutual Casualty Company. As per agreement between plaintiff and defendant, the former paid the full premiums due under said policies, the defendant agreeing to repay the sums advanced on his behalf quarterly. Shortly following issuance of the policies Keystone was dissolved and the policies were cancelled. Plaintiff sued defendant for the sum advanced on his behalf to Keystone and the defendant resisted such demand asserting that he was entitled to claim a credit as against plaintiff for the premiums unearned under the cancelled policies. In affirming a judgment favorable to plaintiff for the amount sued for our brethren of the First Circuit stated as follows:
“Where an insured is the holder of policies on which premiums have been paid for a term extending beyond the insolvency or dissolution of the company, he has a valid claim against the insurance company for the unearned premiums on the pro rata basis, and it is equaliy true that if the premiums were unpaid at the time of insolvency or dissolution of the company, such policyholders are liable to the receiver or liquidator for so much thereof as has been earned, but they are not liable for the unearned residue, that is, premiums for the unexpired term of insurance. 44 C.J.S., Insurance, § 129c, page 699. This is the contention of counsel for defendant and he would be correct if the plaintiff was the insurance company, but in the present case the facts are clear that the plaintiff loaned to or advanced on behalf of the defendant $1442.29 which was paid to Keystone Mutual Casualty Company to cover premiums for one year on the public liability insurance policies belonging to defendant. Under the facts in this case, the defendant alone could claim the unearned premiums from the company and is entitled to same from the company. The Keystone Mutual Casualty Company is liable to the defendant for the unearned premiums, and it is equally true that the plaintiff is not, under the facts or law, responsible for these unearned premiums. Call the obligation sued upon herein a loan, an advance on behalf of the defendant, or a straight out payment of premiums for the defendant by the plaintiff, it still would be a personal account due by the defendant to the plaintiff, and under the facts in this case and the law, the plaintiff is entitled to recover. This case is nothing more nor less than a suit on a personal account for money loaned or, at least, a suit by an insurance agent for premiums advanced or paid on behalf of an insured for which he is entitled under the law to personally sue for and recover, regardless of the insolvency or dissolution of the company or cancellation of the policies. Defendant cannot offset unearned premiums against this debt, neither is the plaintiff given the right under the law nor is any authority shown under the facts in this case for plaintiff to collect the unearned premiums from the insurance company in order to satisfy the defendant’s obligation. The question of the collection and payment of unearned premiums is one strictly between the insured, defendant herein, and the insurer, Keystone Mutual Casualty Company.”

There is no compelling reason why the sound legal principles set forth above should not apply with equal force to the facts presented in the instant case. True, plaintiff and defendant herein are neither the insured nor the insurer, however, the policies of insurance issued by All Star were accepted and placed by plaintiff at the request of defendant with the understanding that plaintiff would advance and pay the premium due All Star on defendant’s behalf. LSA-R.S. 22:1261 specifically authorizes a licensed surplus line broker to accept and place surplus line business for any insurance agent licensed in the State of Louisiana. As in Page, supra, “[c]all the obligation sued upon herein a loan, an advance on behalf of the defendant, or a straight out payment of premiums for the defendant by the plaintiff, it still would be a personal account due by the defendant to the plaintiff, and under the facts in this case and the law, the plaintiff is entitled to recover”. It is true that having been paid by his clients for the premiums due under the All Star policies, defendant undertook to replace this coverage upon dissolution of All Star and allowed his clients credit for the unearned premiums. Although defendant’s efforts in this regard and his allowance of credit to his clients is laudable, this circumstance can have no bearing whatever on the obligation between plaintiff and defendant.

Defendant contended at trial, although not affirmatively pled, that he is entitled to the claimed credit because plaintiff violated his duty as a licensed surplus line broker by placing the risks insured against with All Star, a financially insecure company. The trial court so held, Although plaintiff contends on appeal that such defense must be affirmatively pled and that the trial court erred in considering this issue over timely objection, we need not consider this procedural issue for we find no merit or eviden-tiary basis for this holding.

The law provides that if certain insurance coverages cannot be secured from authorized insurers, such coverages, designated as “surplus lines”, may be secured from unauthorized insurers, subject to a number of conditions imposed by statute. LSA-R.S. 22:1252 et seq. Of course under the general rule plaintiff is presumed to have diligently performed his duty as a surplus line broker and the burden is on defendant to establish otherwise.

The record contains no evidence whatever that plaintiff violated any of the statutory conditions imposed upon licensed surplus line brokers. One of the conditions imposed upon such brokers is that they “shall not knowingly place surplus line insurance with insurers unsound financially”. LSA-R.S. 22:1262. Defendant offered no evidence whatever to establish that plaintiff placed the insurance in question with All Star with knowledge that All Star was unsound financially. Nor did defendant offer any evidence tending to establish that All Star was financially unstable when the insurance was placed with it. Quite to the contrary, the only evidence in the record is to the effect that plaintiff was in constant contact with the Louisiana Insurance Commissioner’s office to confirm the financial stability of the company and its eligibility as a surplus line insurer. To hold as did the trial court is tantamount to holding surplus line brokers strictly liable for losses occasioned upon insolvency of surplus line insurers, a result clearly not intended by the Uniform Unauthorized Insurers Act.

For the above reasons we conclude that plaintiff is entitled to recover from defendant the premiums paid on the latter’s behalf to All Star Insurance Company and that defendant is not entitled to claim as a credit against the sum due the premiums unearned as a result of All Stars’ insolvency. The trial court judgment will be amended accordingly.

IS PLAINTIFF ENTITLED TO ATTORNEY’S FEES UNDER LSA-R.S. 9:2781?

LSA-R.S. 2781 provides in pertinent part as follows:

“When any person fails to pay an open account within thirty days after receipt of written demand therefor correctly setting forth the amount owed and a copy of the invoices in support thereof, that person shall be liable for reasonable attorney fees for the prosecution and collection of such claim when judgment on the claim is rendered in favor of the claimant. . ."

In rejecting plaintiff’s demand for attorney’s fees the trial court stated:

“The second issue is whether or not petitioner is entitled to reasonable attorney fees. In the past, attorney fees were not recoverable on open account. This was changed by the recent amendment of R.S. 9:2781 but this statute must be strictly construed and it states that only after receipt of a written demand correctly setting forth the amount owed and a copy of invoices and support thereof must a person pay attorney fees. The amount claimed in the written demand was $6,021.87, suit was filed for $6,020.97 and now petitioner claims that he is owed $4,834.19 and this is the amount he attempted to prove at the trial. Thus, plaintiff did not send written demand for the correct amount owed and is not entitled to attorney fees. . .

Appellant contends that the trial court erred in his denial of this demand because the amount stated in the demand letter was the same as the total of the attached invoices (except for a 90$ error resulting from addition or typing) and that the amount proven at trial was less because of unearned premiums under the policies subsequently credited to defendant’s account.

We agree with the trial judge’s resolution of this issue. A claimant is entitled to attorney’s fees when he secures a favorable judgment on an open account if he has strictly complied with the provisions of the cited statute. One of the conditions for recovery is a showing that the claimant has made written demand therefor correctly setting forth the amount owed, with invoices attached, to no avail. In the instant case plaintiff, by letter; dated May 18, 1977, demanded of plaintiff the sum of $6021.87. The amount demanded is shown by the record to be clearly incorrect. At trial plaintiff admitted that the amount initially demanded in his letter of May 18, 1977 and in his original petition was excessive by some $1187.68. He argues however, that at the time of demand the amount sought was owed, his ultimate recovery being reduced because of credits to defendant’s account which accrued subsequent to the formal demand by reason of policy cancellations and return of premiums thereunder. We cannot agree that the record sustains plaintiff’s contention that on May 18, 1977 defendant owed the sum demanded and that the credits to which defendant was entitled accrued subsequent thereto. Although the record is sketchy in this respect it appears that at least by April 12, 1977 all of the policies secured for defendant had been cancelled. Although defendant’s account may not have been properly credited with all return premiums as of the date the demand letter was written he was clearly entitled to such credits and the fact remains that the amount demanded was incorrect. Under these circumstances we conclude that plaintiff is not entitled to an award of attorney’s fees under LSA-R.S. 9:2781.

For the above and foregoing reasons the judgment of the trial court is amended so as to increase the award to the plaintiff to the sum of $4834.19, subject to credit for the amount of $3090.45 tendered by defendant and accepted by plaintiff. In all other respects the judgment appealed from is affirmed. Costs of this appeal are to be borne one-half by appellant and one-half by appellee.

AMENDED AND AFFIRMED.


author: CUTRER, Judge.

text:
    Howell D. JONES, Plaintiff-Appellee, v. P. M. DYER, Clerk of Court, Defendant-Appellant.
    No. 6976.
    Court of Appeal of Louisiana, Third Circuit.
    May 23, 1979.

      William E. Skye, Alexandria, for defendant-appellant.
    Provosty, Sadler & deLaunay, by H. Brenner Sadler, Alexandria, for plaintiff-appellee.
    Walter M. Hunter, Jr., Alexandria, for defendant-appellee.
    Before FORET, CUTRER and SWIFT, JJ.
   CUTRER, Judge.

The single issue on appeal is whether a judgment is effective against third parties from the time it is filed with a Deputy Clerk of Court in open court or is it effective against third parties only when it is physically filed within the confines of the Clerk of Court’s office.

The undisputed facts are that plaintiff, Howell D. Jones, was the owner of a Vfe interest in immovable property located in Rapides Parish, Louisiana. One of the co-owners, Dimitri J. Filostrat, sold his Vfc interest to two other co-owners plus three other persons by deed dated September 14, 1977. This deed was filed in the Clerk’s office on the same day and the deed was stamped “Filed and Recorded, P. M. Dyer, Jr., Clerk of Court and Recorder 77 Sep 14 A 11:09.” This was signed by a deputy clerk.

It was stipulated that on the same day, September 14, 1977, a money judgment was rendered and signed in open court. The judgment rendered in favor of Nationwide Financial Corporation and against Dimitri Filostrat, Jr., was then handed to the court’s minute clerk, who stamped and signed same as follows: “Filed in Open Court September 14, 1977, Catherine Sue White Deputy Clerk of Court, Court Reporter”. It was agreed that the minute clerk signed same at approximately 9:55 A.M., which filing was prior to the filing of the deed. According to the custom of the Rapides Parish Clerk of Court, the court’s minute clerk or deputy clerk, at some subsequent time, either the same day or possibly at a subsequent day, would deliver any judgment filed in open court to the office of the Clerk of Court and enter same in a looseleaf notebook known as a “Judgment Book.” Judgments were not stamped by use of the time machine as was done with deeds, mortgages, and other instruments affecting immovables. It is conceded that the judgment in question was not entered in the “Judgment Book” until some time after the filing of the deed at 11:05 A.M.

The plaintiff later requested a mortgage certificate from the Clerk of Court to be issued on the subject property in the name of Dimitri Filostrat or Dimitri J. Filostrat, Jr. (Apparently Filostrat used both names.) The certificate, dated December 16, 1977, listed a judicial mortgage arising from the filing of the judgment in question.

The plaintiff filed suit seeking a writ of mandamus to compel P. M. Dyer, Clerk of Court and Ex-officio Recorder of Conveyances and Mortgages of Rapides Parish, to cancel the inscription of the judgment insofar as it affects the plaintiff’s property described in the deed. Nationwide Finance Corporation was also ordered to show cause why the writ should not issue. From a judgment making the writ peremptory and ordering the Clerk to cancel the judgment insofar as it affects plaintiff’s property, only the Clerk of Court appealed.

The Clerk contends that the money judgment filed in open court with the minute clerk, who is a deputy clerk of court, is effective against third parties at the moment of such filing. The Clerk cites Article 253 of the Code of Civil Procedure and several cases involving the timely filing of (1) reports with insurance companies, Reilly-Benton Co., Inc. v. Liberty Mutual Insurance Company, 278 So.2d 24 (La.1973); (2) nominations for public office with the Secretary of State, Jones v. Martin, 319 So.2d 456 (La.App. 1st Cir. 1975); (3) application for rehearing, McGee v. Southern Farm Bureau Casualty Insurance Co., 125 So.2d 787 (La.App. 3rd Cir. 1960); and (4) suits for the interruption of prescription, Johnston v. Nanney, 244 La. 959, 155 So.2d 196 (La. 1963); Saxon v. Fireman’s Insurance Co. of Newark, N. J., 224 So.2d 560 (La.App. 3rd Cir. 1969); Cupples v. Walden, 124 So.2d 613 (La.App. 3rd Cir. 1960). These authorities are not applicable to the case at hand. Those cases involve the filing of court proceedings and other matters which are unrelated to the filing of conveyances, judgments, mortgages or other documents that may affect the interest of third persons as to title to immovables.

The latest expression of the legislature on the subject matter at hand is found in LSA-R.S. 9:2721, which provides as follows:

“No sale, contract, counter letter, lien, mortgage, judgment, surface lease, oil, gas or mineral lease or other instrument of writing relating to or affecting immovable property shall be binding on or affect third persons or third parties unless and until filed for registry in the office of the parish recorder of the parish where the land or immovable is situated; and neither secret claims or equities, nor other matters outside the public records shall be binding or affect such third parties.” [Emphasis added]

The language of this statute is clear. The judgment in question, in order to affect third persons, must be filed for registry in the office of the parish recorder. The filing of the judgment with the minute clerk in open court is not tantamount to filing the instrument in the office of the parish recorder. The clerk’s duties in the courtroom are within the scope of his authority as clerk of court but not within the scope of his duties as recorder of mortgages and conveyances. The two offices are distinct. LSA-R.S. 44:71 provides:

“The clerks of the several district courts throughout the state, the parish of Orleans excepted, are ex officio parish recorders of conveyances, mortgages and other acts.” See also LSA-Const. Art. 5 § 28.

Until the judgment is actually delivered and filed for registry in the office of the parish recorder (clerk’s office), such judgment cannot be effective against third persons. It is undisputed that the judgment was delivered and filed for registry in the clerk’s office after the filing of the deed in question. Under these circumstances, the trial judge correctly made the writ peremptory ordering the defendant to cancel the judgment insofar as it affected plaintiff’s property.

For these reasons, the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.

      . Louisiana Code of Civil Procedure Article 253 provides:
      “All pleadings or documents to be filed in an action or proceeding instituted or pending in a court, and all exhibits introduced in evidence, shall be delivered to the clerk of the court for such purpose. The clerk shall endorse thereon the fact and date of filing, and shall retain possession thereof for inclusion in the record, or in the files of his office, as required by law.”

      . Further support that filing must be in the office of the recorder is found in the following Civil Code articles:
      Civil Code Article 2254 provides:
      “It shall be the duty of the recorder to indorse on the back of each act deposited with him the time it was received by him, and to record the same without delay in the order in which they were received; and such acts shall have effect against third persons only from the date of their being deposited in the office of the parish recorders." [Emphasis added]
      Civil Code Article 2264 provides:
      “No notarial act concerning immovable property shall have any effect against third persons, until the same shall have been deposited in the office of the parish recorder, or register of conveyances of the parish where such immovable property is situated.” [Emphasis added]
      Civil Code Article 2266 provides:
      “All sales, contracts and judgments affecting immovable property, which shall not be so recorded [as required by Art. 2265], shall be utterly nuil and void, except between the parties thereto. The recording may be made at any time, but shall only affect third persons from the time of the recording.
      “The recording shall have effect from the time when the act is deposited in the proper office, and indorsed by the proper officer.” [Emphasis added]

      . LSA-R.S. 13:910 provides in part as follows:
      “. . The clerk, with the approval of the court, may appoint deputy clerks to perform the duties of minute clerks, and these need not be residents of the parish from which they are appointed. When directed by the court, a minute clerk shall administer the oath required by law of all witnesses and jurors, and shall file all documents and exhibits offered in open court. A minute clerk shall keep and transcribe the minutes of the court when in session, and shall perform such other duties as may be assigned by law, the court, or the clerk with the approval of the court.”


text:
    Bobby BREDA, Plaintiff-Appellee, v. Carson ATTAWAY, Defendant-Appellant.
    No. 6979.
    Court of Appeal of Louisiana, Third Circuit.
    May 23, 1979.

      Alfred B. Shapiro, Alexandria, for defendant-appellant.
    Thomas & Dunahoe, Marcia Thomas Pen-dleton, Natchitoches, for plaintiff-appellee.
    Before CULPEPPER, DOMENGEAUX, and GUIDRY, JJ.
   DOMENGEAUX, Judge.

This is a suit to recover damages for the malicious prosecution of a civil action.

On September 28,1976, defendant herein, Carson Attaway, filed suit in the United States District Court for the Western District of Louisiana, naming as defendants the Sheriff and seven Deputy Sheriffs of Natchitoches Parish, Louisiana. Plaintiff herein, Bobby Breda, was one of the seven named Deputy Sheriffs. The federal suit was filed by the present defendant in order to recover damages for harassment and humiliation, which he alleged were sustained as a result of various acts committed by the named defendants, including assault. According to the federal petition, the incidents allegedly arose out of and during the course of the 1975 election for the Sheriff of Natchitoches Parish.

On August 5, 1977, subsequent to the filing of the federal suit, Bobby Breda was deposed by Attaway and his attorney. At that time, it was determined by them that Breda had no involvement in the above activities, and, consequently, he was dropped as a defendant.

On October 28, 1977, Breda filed this suit against Attaway in the Tenth Judicial District Court, in and for Natchitoches Parish, Louisiana, in order to recover damages for the malicious prosecution of the federal suit against him.

After a trial, judgment for $1,000.00 was entered in favor of plaintiff, Bobby Breda, and against defendant, Carson Attaway, for malicious prosecution. From this judgment, the defendant appeals. Plaintiff neither appeals nor answers the appeal.

In order to recover damages for a malicious prosecution in Louisiana, six elements must be present concurrently. They are:

1. The commencement or continuance of an original criminal or civil judicial proceeding;

2. Its legal causation by the present defendant against the present plaintiff, who was a defendant in the original proceeding;

3. Its bona fide termination in favor of the present plaintiff;

4. The absence of probable cause for such proceeding;

5. The presence of malice therein; and

6. Damage resulting to plaintiff, which conforms to legal standards.

Johnson v. Pearce, 313 So.2d 812 (La.1975); Robinson v. Goudchaux’s, 307 So.2d 287 (La.1975); Culpepper v. Ballard, 344 So.2d 110 (La.App. 2nd Cir. 1977); Fontenot v. West Brothers of Eunice, Inc., 343 So.2d 446 (La.App. 3rd Cir. 1977); Bristow v. Messer, 336 So.2d 44 (La.App. 2nd Cir. 1976).

There is no dispute concerning proof of the first three elements. The major issues raised by the defendant in this Court are whether plaintiff proved the elements of lack of probable cause and of malice. Additionally, defendant argues that the award of $1,000.00 for damages is excessive.

Probable cause to file suit is a question which depends upon the particular facts and circumstances surrounding the commencement of the original legal action. The existence of probable cause does not depend so much upon the objective state of the facts as they actually exist, as it does upon the subjective state of facts as perceived by the person bringing the action. In other words, probable cause deals with the present defendant’s honest belief in making the original charges and allegations against the present plaintiff in the suit for which recovery for malicious prosecution is sought. Jefferson v. S.S. Kresge Company, 344 So.2d 1118 (La.App. 3rd Cir. 1977); Culpepper v. Ballard, supra.

Looking to the record in the instant case, we find that plaintiff did show that there was a lack of probable cause on the part of Attaway when the original federal suit was filed.

Attaway testified at trial that, when he was being harassed by the Sheriff’s deputies, he consulted his attorney. He stated that he supplied some of the names of the offending deputies, including that of Bobby Breda, and that an investigator found out the name of others who were involved in the alleged misconduct. Defendant explained that he named Breda in the suit because he “thought” that he had seen Bre-da in the area of his place of business during night hours when the harassment was occurring. He also stated that a former deputy, Marvin Blake, who had recently been discharged from the Sheriff’s Department, had told him that Breda was involved in the misconduct. However, Att-away indicated on cross-examination that he doubted this report in view of Blake’s recent discharge.

Attaway also stated that he was aware that Breda had been transferred from the night shift to the day shift around the time of the harassment, and, inasmuch as the incidents were occurring at night, he stated that there was “some room for doubt in my mind as to whether Bobby [Breda] really had [a] part in this or not.”

Attaway also admitted that he was a casual acquaintance of Breda and that he knew what Breda looked like. Although he alleged in the federal suit that Breda had been involved in an assault against him, he unequivocally stated on cross-examination that Breda was not involved in any assault.

We feel that the defendant did not have probable cause to file the federal suit against Breda. First, he alleged that Breda had committed an assault against him, when he knew that Breda actually had not been involved in the assault. Second, he candidly admitted that he had doubts as to Breda’s involvement prior to filing the federal action; nevertheless, he decided to file suit first and ascertain later, after the damage had been done, whether Breda was actually involved. Under the facts of this case, we find that the federal suit was filed against Breda without probable cause.

We now move to the second issue, involving the presence of malice. Malice exists where the charges and allegations made in the original suit are known to be false. Malice also can be inferred where there is a lack of probable cause for filing the original suit and this lack of probable cause results from a wanton and reckless disregard of the rights of the party sued, indicative of a lack of that amount of caution and inquiry anyone should employ before suing. Robinson v. Goudchaux’s supra; Culpepper v. Ballard, supra; Fontenot v. West Brothers of Eunice, Inc., supra.

We find that, on the basis of the above facts, there was an absence of caution and inquiry prior to filing the federal suit, such that malice can be inferred. The federal suit was filed even though defendant had doubts as to Breda’s involvement. After a simple deposition was taken, the defendant ascertained that Breda was not actually involved, and, accordingly, Atta-way dismissed him from the suit. It seems obvious that had a reasonable inquiry been made before naming Breda in the federal suit, Breda never would have been a defendant in that litigation. We feel, therefore, that the malice requirement is satisfied.

We are not unmindful that situations may arise where the circumstantial evidence prior to filing suit indicates that a particular party should be a defendant, but where other factors are discovered during the litigation which shows that the party was made a defendant in error. Obviously, such a situation will not give rise automatically to a suit for malicious prosecution. The essential inquiry will turn on the reasonableness of naming the original defendant, in light of the particular facts and circumstances involved.

Defendant attempts to make an argument that the trial judge was in error by not applying the rule of New York Times Company v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), to the instant case, on the basis that Breda, a Deputy Sheriff, was a public official. We reject this argument, however, because this is not a suit to recover damages for defamation. Although the two have some similarity, malicious prosecution and defamation are two separate and distinct offenses, both recognized under Article 2315 of the Civil Code. Lees v. Smith, 363 So.2d 974 (La.App. 3rd Cir. 1978); Carter v. Catfish Cabin, 316 So.2d 517 (La.App. 2nd Cir. 1975). Plaintiff’s petition originally alleged that the federal suit was libelous and slanderous, however, recovery was limited by the trial judge to malicious prosecution, and, as noted previously, plaintiff did not appeal nor answer the appeal in order to urge recovery on a defamation theory. We, therefore, do not think that any issues are presented on appeal with reference to the law of defamation.

Additionally, defendant attempts to absolve himself from liability in the instant case by arguing that Breda was dismissed from the federal proceedings when it was discovered that he actually had no involvement in the alleged misconduct. We do not feel, however, that this argument is valid with reference to absolution from liability. Once the federal suit got underway naming Breda as a defendant, the harm already was committed. It is our opinion that the voluntary dismissal of Breda from the suit speaks more to the extent of damages caused. Obviously, had defendant persisted in his prosecution against Breda after there was no question as to his involvement, he would be subjecting himself to the possibility of increased liability.

Finally, defendant attempts to escape liability on the basis that he acted only on advice of counsel. We do not feel that this defense avails defendant in the instant suit because it does not appear from the testimony of either Attaway or his attorney that such advice was given only after full disclosure to counsel by Attaway of the doubtfulness of Breda’s involvement in the alleged misconduct. Without full disclosure, this defense cannot be successful. Mullen v. Gause, 161 La. 461, 109 So. 31 (1926). See Robinson v. Goudchaux’s, supra.

With reference to damages, defendant argues that the $1,000.00 awarded by the trial judge was excessive. The record shows that Breda was subjected to questioning by some of his friends and others, which resulted in a loss of some of his self-esteem. It also showed that he was embarrassed because of the publicity surrounding the suit, especially in light of the fact that he was in charge of the check and forgery division of the Natchitoches Parish Sheriff’s Department.

Under the circumstances presented, we find that the $1,000.00 awarded by the trial judge is neither excessive nor inadequate.

For the above reasons, the judgment of the District Court is affirmed at defendant-appellant’s costs.

AFFIRMED.