author: HOOD, Judge.

text:
    WM. T. BURTON INDUSTRIES, INC., Plaintiff-Appellant, v. Jeff McDONALD, Defendant-Appellee.
    No. 5804.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 1977.
    Rehearing Denied June 24, 1977.

      Camp, Carmouche, Palmer, Carwile & Barsh by Karl E. Boellert, Lake Charles, for plaintiff-appellant.
    Roy B. Tuck, Jr., Leesville, for defendant-appellee.
    Before HOOD, CULPEPPER and DO-MENGEAUX, JJ.
   HOOD, Judge.

This is a petitory action instituted by Wm. T. Burton Industries, Inc., against Jeff McDonald. Plaintiff seeks a judgment decreeing it to be the owner of a 120-acre tract of land in Vernon Parish. Defendant answered alleging that he has acquired ownership of a part of the above tract by acquisitive prescription of 30 years, and he reconvened for judgment recognizing him as owner of the land he has possessed. Judgment was rendered by the trial court in favor of defendant, rejecting plaintiff’s demands and recognizing McDonald as owner of the property claimed by him. Plaintiff appealed.

The substantial issue presented is whether defendant’s possession of the disputed tract began or has continued in his own name or under the title of owner, or whether his possession has been precarious, and thus whether the evidence supports his claim of ownership by acquisitive prescription of 30 years.

Burton Industries is the record owner of a tract of land comprising about 120 acres, located in the west part of Section 13, Township 1 North, Range 5 West, in Vernon Parish. It instituted this suit on June 11, 1975, alleging that defendant claims ownership of that tract and has refused to surrender possession of it to plaintiff.

Defendant McDonald filed an answer and a reconventional demand, alleging that for more than thirty years he has been in continuous and uninterrupted possession of a part of the above 120-acre tract, and that he has acquired ownership of the property in his possession by the acquisitive prescription of thirty years. The property claimed by defendant comprises a total of 40.27 acres, and is described in the judgment appealed from as consisting of two separate but contiguous tracts of land. Tract No. 1,' claimed by defendant, comprises 39.55 acres and is located in Section 13, entirely within the 120 acres claimed by Burton. Tract No. 2 contains .72 acre, and is located in Section 14, adjacent to Tract No. 1. McDonald seeks to be recognized as the owner of Tracts 1 and 2. He does not claim to be the owner of any other part of the 120-acre tract described in plaintiffs original petition. In this suit, therefore, we are concerned only with the ownership of those two parcels of land. Both of those tracts are specifically described in the judgment which was rendered by the trial court.

Plaintiff, Burton Industries, has record title to the land which comprises Tract No. 1 and Tract No. 2. McDonald has no written or recorded title to either of those tracts of land. Both tracts were originally owned by the late William T. Burton, but they were conveyed to Burton Industries by act of sale dated May 2, 1955.

Defendant’s father cultivated parts of the disputed property from 1922 until 1935, and defendant himself began to cultivate both of those tracts in 1936. His father owned some land in Section 14, immediately west of and adjacent to Tract No. 1 and Tract No. 2. McDonald moved on a part of his father’s property in 1937, and he has resided at that location, near the two disputed tracts of land, continuously since that time. Defendant testified that in 1941 his father conveyed to him the 40-acre tract of land on which he has made his home since 1937.

Defendant built fences around the perimeter of the two disputed tracts of land in 1938. Those fences joined some other fences on adjacent lands to the west, and since that time those fences have formed a complete enclosure around Tracts 1 and 2 and some of the property then owned by defendant’s father in Section 14. After the above fences were constructed in 1938, McDonald began using all of the land in the enclosure, including both of the disputed tracts, for pasturing cattle as well as for farming. Shortly thereafter, he cleared some of the wooded land in the enclosure and began using more of it for farming cotton, corn, soybeans and peanuts. He has raised crops and cattle on the disputed tracts regularly since 1936. He constructed a pond on Tract No. 1 in 1943, and since that time he has used that pond for watering his cattle. He sold timber off Tract No. 1 in 1943, and he has sold pulpwood off that tract on three other occasions. McDonald has never been disturbed in his use or possession of these two tracts of land. No one else has possessed or attempted to possess them, and defendant has been regarded by residents of that area as being the owner of all property in the above enclosure.

We find that defendant has been in continuous and uninterrupted possession of the disputed tracts, under the title of owner, for more than 30 years, as provided in LSA-C.C. art. 3500.

Plaintiff concedes that the two tracts of land which are the subject of this suit have been enclosed by a fence since 1937, and that McDonald has cultivated and possessed those two tracts continuously for more than 30 years. It contends, however, that defendant’s possession nevertheless was not sufficient to support a plea of thirty years acquisitive prescription, because “McDonald’s possession was at the sufferance and with the permission of Burton and at best precarious,” and that defendant failed to exhibit the requisite “hostile acts” sufficient to apprise Burton of his intent to possess the property as owner.

The evidence shows that McDonald was employed by Burton to work as a “timber cruiser” from October, 1954, until March, 1967. His duties, as such, were to oversee the properties owned by Burton Industries in that area, to prevent unauthorized cutting of timber from those lands, and to obtain leases from trespassers who were fencing in Burton property, in order that they would not acquire ownership of the fenced-in tracts by prescription.

To aid defendant in performing his duties, Burton furnished him with maps purporting to show the lands owned by plaintiff. McDonald testified, however, that the maps were “real old” that “you couldn’t tell too much about them,” that the maps did not show that Burton owned the tract of land identified as Tract No. 1, and that defendant did not know that Burton Industries had record title to either of the disputed tracts of land. The maps were not introduced in evidence. The evidence convinces us that McDonald did not know that plaintiff had record title to the property he possessed.

Plaintiff contends that McDonald was the “agent” of Burton during the period of his employment, and that a fiduciary relationship existed between the parties. It argues that during that period of about 12 to 13 years defendant was a “precarious possessor,” since he was plaintiff’s agent, and that he could not acquire real property from his principal by thirty years adverse possession. To support that argument plaintiff relies on LSA-C.C. arts. 3490, 3510 and 3556(25); Cortinas v. Peters, 224 La. 9, 68 So.2d 739 (1953); Succession of Kemp v. Robertson, 316 So.2d 919 (La.App. 1 Cir. 1975); Matthews v. Carter, 138 So.2d 205 (La.App. 2 Cir. 1962); Neel v. Hibard, 30 La.Ann. 808 (Orl.1878).

The cited authorities established that a person who possesses real property with the consent or in the name of the true owner, or who possesses it through the indulgence and with the permission of the record owner, cannot acquire that property by thirty years adverse possession. Those authorities are not applicable here, however, because we have decided that defendant’s possession was not with the consent or permission or through the indulgence of plaintiff.

Plaintiff argues, however, that defendant’s possession of Tract No. 1 and Tract No. 2 was not “hostile” to the true owner, and that the evidence fails to show that his possession was with the intent to possess as owner.

The Vice-President of plaintiff company testified that it was “general office knowledge,” that McDonald was possessing the land in dispute here “with Mr. Burton’s permission,” and that Mr. Burton, the President of Burton Industries, had given that same information to the witness. He conceded, however, that the property was never leased or rented to defendant, that no written permission was ever given authorizing defendant to possess the property, that the witness never heard anyone give defendant verbal permission to do so, and that defendant never asked anyone for permission to use the land.

The land man for Burton Industries testified that he talked to McDonald some time after 1967 about the property which the latter had enclosed and was using, but that he did not ask defendant if he was claiming the property as owner and that defendant did not voluntarily make a statement to that effect.

The evidence shows that defendant posted the property in the above enclosure, including the two tracts in dispute here, and that he used all of that property openly and as owner.

The law is settled that in order for a possessor to successfully claim the ownership of immovable property under a plea of thirty years acquisitive prescription, he must establish not only that there has been corporeal possession of the property for the required period of time, but also that there was a positive intent to possess the property as owner during that time. The intent to possess as owner may be inferred from the surrounding facts and circumstances. Ordinarily, however, the intent to possess as owner should not be inferred unless the actions of the possessor, or the surrounding facts and circumstances, are sufficient to reasonably apprise the public, and the record owner of the property, of the fact that the possessor intended to possess as owner. The burden of proof to establish the facts essential to support a plea of thirty years acquisitive prescription rests on the party who pleads it. Humble v. Dewey, 215 So.2d 378 (La.App. 3 Cir. 1968), and cases cited therein.

In the instant suit the trial judge concluded that defendant had maintained possession of the two tracts of land in dispute here, as owner, for more than thirty years, and that he acquired ownership of that property by acquisitive prescription of thirty years. He thus rendered judgment decreeing defendant to be the owner of the subject property.

The evidence convinces us, as it did the trial judge, that McDonald maintained continuous and uninterrupted possession of Tract No. 1 and Tract No. 2 for more than thirty years, and that his possession was public and unequivocal and under the title of owner, all as provided in LSA-C.C. art. 3500. We find, that the possession maintained by defendant during that period was open and “hostile” to the record owner, and that it was sufficient to reasonably apprise plaintiff, or anyone else, of the fact that he intended to possess the property as owner. Our conclusion is that defendant has satisfied the burden of proof which rested on him, and that there is no error in the judgment rendered by the trial court.

For the reasons herein assigned, the judgment appealed from is affirmed. The costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED.


source: Caselaw Access Project

author: HEARD, Judge.

license: Public Domain

text:
    Bobbie Gene DUNN, Plaintiff-Appellant, v. GLEN D. LOWE CO. et al., Defendants-Appellees.
    No. 5846.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 1977.
    Rehearing Denied June 24, 1977.
    Cameron C. Minard, Columbia, for plaintiff-appellant.
    Walter M. Hunter, Jr., Alexandria, for defendants-appellees.
    Before HOOD, FORET and HEARD, JJ.
   HEARD, Judge.

Plaintiff, Bobbie Dunn, appeals from a judgment denying workmen’s compensation benefits for a back injury sustained in an unwitnessed accident from which he is totally and permanently disabled.

This is an action for workmen’s compensation benefits brought by plaintiff who claims he injured his back in an unwit-nessed accident and is totally and permanently disabled. Since the date of the alleged accident, August 30, 1972, the plaintiff has undergone back surgery and there is no question but that he is presently disabled. He receives Social Security Benefits for the disabled along with Veterans Administration Benefits, and defendant did not argue the point at trial or in brief. The medical depositions offered in evidence were taken before his surgery and it appears the operation removed all doubt about the presence of a ruptured disc. The primary issue before the Court has narrowed to a question of whether or not plaintiff suffered a compensable accident in the defendant’s employ on August 30, 1972.

It should be noted that this case was tried twice. A second trial was made necessary because the electronic recording equipment used at the original trial failed and a transcript of the proceedings could not be obtained.

Plaintiff contends emphatically he was injured picking up angle iron pieces for a co-employee worker on a particular job site called the KBB Lease on the 30th of August of 1972. He testified he hurt himself lifting a piece of angle iron during the afternoon and could not work throughout the remainder of the day. He said his back bothered him overnight and when he returned to work the next day, he concluded he could not perform the tasks required of him as a roustabout. He then notified his employer, Shelby Lowe, of his inability to continue his activity and Mr. Lowe had plaintiff driven home by another employee, Mr. Allbritton. Later that day plaintiff went to a physician who advised him to admit himself to the hospital which he did on the following day, September 1st. Clearly, plaintiff supported his memory of when things occurred by reference to when he first saw Dr. Winters and when he entered the hospital.

Plaintiff testified at length. As would be expected in a case tried so long after the fact, plaintiff’s memory in some aspects of the matter appears to be vague. In his recitation of what happened, he did go into considerable detail. At one point he indicated that two welders were working nearby whom he identified as Fife and Adkins. A third welder, Whitehead, was working close to plaintiff. Plaintiff indicated he was picking up angle iron and carrying it to the place where Whitehead would work on the metal. In effect, his testimony is that he and Whitehead were working as a team at the moment. He said he experienced a sharp pain picking up one particular piece of iron. Apparently everybody on the job site was busy and it was noisy. Dunn indicated he did not think any of the others saw him hurt himself or saw him drop the piece of iron when he experienced the sharp painful sensation in his back. He testified that immediately after this occurred he went up to Whitehead and told him that he was injured and stopped working. He said he just sat around for an hour or an hour and a half or two hours until the work day ended and everybody went home. At various points in his testimony he indicated that the following named persons were present on the lease and working in the vicinity of his injury on August 30th.

M. W. Fife A. D. Adkins

Leroy Coates E. L. Allbritton

Paul Newsome Jack Womack

Randy Lowe Mr. Whitehead

Plaintiff was quite positive in his testimony that E. L. Allbritton was the employee assigned to carry him home on August 31st and that he informed Shelby Lowe on the morning of August 31st that he had been hurt. He says he worked on the KBB Lease all day on August 30th and at one point in his testimony, he said he didn’t work for a Mr. McBroom until after the accident and after returning to work with the defendant employer after he got out of the hospital. He worked for the defendant employer from some time in late September until the following April. His employment relationship with defendant then ended after a fight between plaintiff and one of employer’s bookkeepers.

Plaintiffs wife was his second witness and testified that he did not have any back disability prior to August 30, 1972 when he came home and complained that he was hurt. She recalls that he went to the doctor the next day after initially going to work and then being carried home by Mr. Allbritton and went into the hospital one day later. She testified that thereafter he worked consistently in pain and with difficulty and couldn’t go back to heavy work.

The next witness called by plaintiff was E. L. “Bugs” Allbritton. He recalls being the co-employee who drove plaintiff home from work at the suggestion of Mr. Lowe. Mr. Allbritton did not witness the accident himself and could only vouch for the fact that plaintiff asserted on August 31st that he had injured himself the day before. This witness was not certain that plaintiff claimed to him he was injured on August 30th but thought that he had. His recollection was that the injury occurred on the KBB Lease and that he drove him home from that lease. He acknowledged he had given an earlier statement in which he said plaintiff had injured himself picking up pipe. At trial he stated pipe and angle iron were both present on the job and he did not know which was involved when the plaintiff was injured. He was of the belief Leroy Coates was working in the crew with plaintiff when he was injured. He testified that Lowe had instructed him to drive plaintiff home or to the doctor, depending on what plaintiff wanted.

Plaintiff’s next witness was Mr. Paul Newsome. On direct examination New-some recalled plaintiff got hurt on KBB Lease and he told him he hurt himself at that time. Based on his recollection of records that he discarded after the first trial, he testified they both worked on the KBB Lease on August 30th and that the plaintiff went to the hospital very shortly thereafter. He was carried home by Mr. “Bugs” All-britton. On cross examination, Newsome admitted signing prior inconsistent statements introduced in evidence as Exhibits D-6 and D-7. In D-6 Newsome stated he did not know of any injury to Mr. Dunn during the time that they worked together. In D-7 Newsome stated that Dunn hurt himself on August 17th and last worked in a crew with Newsome on August 22nd.

The next witness called by plaintiff was Leroy Coates. The net effect of testimony from Mr. Coates was that he saw plaintiff in the hospital in September 1972 which is not a disputed point. He testified he heard that plaintiff was claiming he hurt himself on the job- with Lowe but he doesn’t know any of the details about it and was not a witness to it. He acknowledged that he went to work for a different employer around that time and said he wouldn’t dispute the contention if Lowe’s record reflected that he last worked for them on the 25th of August.

The first defense witness was L. C. McBroom who worked for defendant and knew the plaintiff. He turned in the time report on plaintiff’s work for August 30th. He testified his crew on that date consisted of himself, Randy Lowe and the plaintiff and the three of them worked on rigs designated as C-8 and M-18, neither of which was in close proximity to the KBB Lease. He testified they did not work on the KBB Lease at all on the 30th of August. He said on another occasion he, Dunn and Lowe went to the KBB site to replace a clutch and stayed there only a short time because they did not have the proper replacement part. Later they went back and replaced the worn out equipment but this didn’t take long. He said that on the occasion they were on the KBB site they did not do any work with angle iron. He said that he had no knowledge of any accident on the 30th and the plaintiff neither reported an injury during that day nor appeared to be injured on that date. Rather, he testified the plaintiff worked the full day without apparent incident or impairment. He further stated that after plaintiff got out of the hospital, he went back to his regular duties, most of which involved heavy lifting, without any complaints about his back. He said that after plaintiff quit all together, plaintiff told him that he had hurt his back on the job in Lowe’s employ.

The second defense witness was Randy Lowe who testified after refreshing his memory by looking at the company time record card that he worked with the plaintiff on August 30, 1972, and that they worked on rigs designated by the company as C-8 and M-18. He said Mr. McBroom was a pusher or foreman on that date. He recalled that he had also worked on the KBB Lease but not on the 30th of August. He says he went on the KBB site only one time when the plaintiff was present and that was when a clutch was repaired. He denied plaintiff was injured on the 30th or told him he hurt himself during that day. He said the first he heard of the plaintiff being injured came on an occasion when he was at a cafe in Tullos and plaintiff was no longer working for Lowe. He acknowledged his recollection of dates was dependent on time records.

The third and final defense witness was Shelby Lowe. He was superintending operations for his father’s business during all times pertinent to this suit. He testified he did not recall being notified plaintiff was injured on August 30th. He did not recall telling Allbritton to take plaintiff home on the 31st and said he didn’t know anything about an incident of the 30th until long after that date. He said the plaintiff worked for the defendant employer fairly steadily prior to August 30th. He said his wife received a phone call in which it was said that plaintiff was in the hospital but he said he was not told it was a work related injury and didn’t inquire about it. He testified that Mr. Dennison was the company bookkeeper in addition to other duties. He said that Dennison was not a very good bookkeeper and that Dennison did not record the dates on employees’ time records. These were filled out by the pushers themselves.

Dennison did fill out the employer’s accident reports to the insurance company. Two such reports were introduced in evidence. These are some discrepancies between the two documents. One is handwritten and one is typed. One bears the date of January 3, 1973. Both state that Newsome was Dunn’s foreman, that the accident occurred on one of two dates in September on the Urania-M Lease while Dunn was picking up pipe trying to load it onto a truck. Lowe didn’t know where the information on those two reports might have come from or who secured the information reflected on those reports but he said that it was Dennison’s responsibility to get the information. Lowe signed them both.

Mr. Lowe further testified plaintiff worked after he was released from the hospital until approximately April in 1973. He said he didn’t witness any accident such as the one described by the plaintiff and for the most part he was relying heavily on work time records for information concerning when plaintiff worked and where he worked. Mr. Lowe said he generally had 30 or 40 men working for him. He states unequivocably that Coates terminated his employment on August 25th.

The trial court held that plaintiff had' failed to establish that his accident had occurred while he was working for defendant, and therefore found that defendant was not liable. From this judgment, plaintiff appealed.

Plaintiff contends that he was injured in the course and scope of his employment, and that he produced sufficient evidence to prove this contention.

In a workmen’s compensation case, plaintiff has the burden of proof and to recover must establish by a preponderance of the evidence that his disability resulted from an accident sustained in the course of his employment. Although he does not have to prove causal connection between disability and employment to an absolute certainty, he is required to establish this to the extent of a reasonable probability. Teekell v. Campbell Construction Company, 160 So.2d 447 (La.App. 2 Cir. 1964); Johnson v. Cajun Enterprises, 293 So.2d 617 (La.App. 3 Cir. 1974).

Plaintiff also contends that he is entitled to the maximum benefits under the workmen’s compensation law of five hundred (500) weeks at forty nine and no/100 ($49.00) dollars per week, which was the prevailing compensation rate at the time of his injury, less a credit of one and four sevenths weeks, which he has been paid, plus his medical expenses.

In workmen’s compensation cases, as in other civil suits, the plaintiff bears the burden of proof and must establish his claim by a preponderance of the evidence. Prim v. City of Shreveport, 297 So.2d 421 (La.1974); Johnson v. Cajun Enterprises, supra. Proof by a preponderance of the evidence requires only that the evidence as a whole shows that the fact sought to be proved is more probable than not. Prim v. City of Shreveport, supra. Bryant v. Slidell Memorial Hospital, 243 So.2d 285 (La.App. 1 Cir. 1970). The testimony of an employee alone is sufficient to establish that an accident occurred, provided that his testimony is supported by the surrounding facts, and circumstances and if there is nothing to discredit his account of the accident. Walker v. Belden Corporation, 331 So.2d 167 (La.App. 3 Cir. 1976). However, should the evidence leave the probabilities equally balanced, there is failure of the proof required by the plaintiff. White v. Freeport Chemical Company, 319 So.2d 563 (La.App. 4 Cir. 1975).

The trial court, in the present case, based its decision on two grounds: (1) that evidence presented was equally balanced on both sides, and that the rule of White v. Freeport Chemical Co., supra, was controlling; and (2) that plaintiff had failed to call as a witness one Whitehead, the welder whom plaintiff claims was working on the day the accident occurred. The trial court applied the general rule that the failure of a party to call an available witness, who possesses knowledge concerning facts essential to a party’s cause, raises the presumption that the testimony of the witness who was not called would be detrimental.

Taking these reasons in reverse order, it has been held that when witnesses are as available to the .defendants as they were to the plaintiff, and if the defense as to proof of occurrence of the accident is serious and has merit, then the defense has a duty to call these prospective witnesses. George v. United Fruit Company, 131 So.2d 360 (La.App. 4 Cir. 1961). Therefore, no presumption used by the trial court could have been applied just as easily against the defendants in this case.

As to the balance of the evidence, the defendants’ witnesses rely heavily on time sheets to refresh their memory of the happenings of August 30, 1972. Yet testimony was given to the fact that a crew might work several jobs in one day, yet credit the time to only one job. Therefore, it is possible, since so much time was passed, that the witnesses for defendant were mistaken. We believe that the testimony as a whole, plus the fact that so much time has passed, necessitates a finding for plaintiff.

Plaintiff has medical bills amounting to $1,705.14. He is also entitled to compensation of $49.00 per week for a maximum of 500 weeks, minus a credit of $77.00 for one and four sevenths week compensation paid.

For the foregoing reasons the judgment of the trial court is reversed and set aside, and it is ordered that there be judgment in favor of the plaintiff, Bobbie Gene Dunn and against the defendants, Glen D. Lowe Company and Rockwood Insurance Company in solido for workman’s compensation for a period not to exceed 500 weeks at $49.00 per week from August 30, 1972, together with legal interest on each installment from its due date until paid, less a credit of $77.00 compensation paid.

It is further ordered that there be judgment in favor of plaintiff, Bobbie Gene Dunn, and against defendants Glen D. Lowe Company and Rockwood Insurance Company in the sum of $1,705.14 as medical expenses, with legal interest from judicial demand until paid. All costs of this appeal are assessed to defendants.

REVERSED AND RENDERED.


author: WATSON, Judge. CULPEPPER, Judge,

text:
    Dejean BROUSSARD, Plaintiff-Appellee, v. Robert L. WATERBURY, Defendant-Appellant.
    No. 5848.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 1977.
    Rehearing Denied June 24, 1977.
    Henican, James & Cleveland by Carl W. Cleveland, New Orleans, for defendant-appellant.
    Olivier & Brinkhaus by John L. Olivier, Sunset, for plaintiff-appellee.
    Before CULPEPPER, WATSON and STOKER, JJ.
   WATSON, Judge.

This is a suit for damages to real property. Plaintiff, Dejean Broussard, alleged that defendant, Robert Waterbury, operated two oil wells on plaintiff’s farm, and failed to restore the surface when he ceased operations. The trial court awarded damages of $9,000 for defendant’s failure to restore the surface of the property to a reasonable state when the wells stopped producing oil. Defendant appealed. Plaintiff answered the appeal, seeking an increase in damages and an increase in the amount of expert witness fees.

The substantial issues are:

(1) Did defendant have a duty to restore the surface of the Broussard property?
(2) If he did, is the award adequate for its restoration? and
(3) Did the trial court err in fixing expert witness fees?

The basic facts are undisputed. Plaintiff Broussard is the owner of about 21 acres of land upon which he grazes cattle. Some time in the early 1960s, two producing oil wells were drilled on this property. The wells were not drilled or initially operated by defendant.

Waterbury became operator of the two wells on the Broussard property about 1970. They ceased to produce oil in 1973. Waterbury then abandoned them, leaving Brous-sard’s property in the same condition it was in when he took over operations. Four large slush pits were left open and certain production equipment was left on the property.

Waterbury testified that the slush pits had been dug by previous operators. He denied Broussard’s allegations of negligence and insisted operations were conducted in a prudent manner. Broussard testified that Waterbury operated the wells in a satisfactory manner, according to what plaintiff Broussard expected of an oil and gas operator.

On September 10, 1973, Broussard filed this suit for damages resulting from Waterbury’s failure to restore the surface. Broussard alleged three acres of his land were rendered useless for agricultural purposes by the presence of salt water, oil, open pits and abandoned equipment. Plaintiff originally prayed for $6,000 in damages but amended his petition to increase the claim to $19,500, on the ground that the highest and best use of the property was for suburban homesites, not pasture.

In the summer of 1975, prior to trial, Waterbury hired a contractor who filled in the open pits and knocked down the “spoil banks” or levees with a bulldozer in an attempt to level the property around the wellsites. Testimony and invoices show Waterbury spent about $3,000 in his efforts to level the property and seed it with grass. Pictures taken before and after these restoration attempts show the property was improved but not totally restored.

In his written reasons for judgment, the trial judge gave this evaluation of the subject property:

“The restoration procedures failed to restore the land to substantially the same condition as it was prior to the explorations; pits which covered approximately three acres were not properly drained and fill placed thereon has failed to restore surface solidity. Instead, these areas remain boggy. The whole area, which consists of approximately five acres, was abandoned with oil deposits left on the land; the top soil was covered with subsoil; the property left uneven; and saline spots were left throughout the area. Soil samples taken indicate a high salt level and high specific gravity of the soil.
“(2) Testimony elicited on behalf of the plaintiff of Mr. Edmond Dupre, Jr., consulting engineer, was to the effect that costs would amount to approximately $12,000.00 to restore the area in substantially the same condition as it was prior to the mineral operations. As of the date of trial, the property was largely marsh-like and desert-like in appearance, as more fully appears by photographs of the subject property made part of the record. Clearly, no agricultural or other use 'can be made of this property in its present condition.” (TR. 95-96)

Appraisers testified that the highest and best use of the property was for homesites. According to their estimates, the total value of the 21-acre tract, if it were in perfect condition, would be $39,495. They estimated this value was reduced by $14,500 as a result of oil production operations.

To fix Waterbury’s duty in restoration of the surface it is necessary to determine the legal relationship between the parties. There is no written lease, but Waterbury operated the wells as a mineral lessee with plaintiff as the lessor, according to the allegations of his answer and reconventional demand. Also, Waterbury asked Broussard in the course of examination at trial : “And the only time after that first lease was when you leased your property to me?” Broussard answered: “Yes, after the well was produced the only lease I ever got was from Mr. Robert Waterbury [the defendant]”. There is no evidence of the terms of the lease.

However, Waterbury occupied the status of mineral lessee. His obligation was thus to:

“ . . . maintain and restore the premises in the condition he found them subject to his rightful use, and where he has damaged the land it is his duty to appropriately remedy the condition brought on by his use of the lease.” Smith v. Schuster, 66 So.2d 430 at 431-432 (La.App. 2 Cir. 1953)

We are aware of a contrary view expressed in Rohner v. Austral Oil Exploration Company, Inc., 104 So.2d 253 (La.App. 1 Cir. 1958).

The comment to Article 122 of the Louisiana Mineral Code suggests that the obligation to restore the surface is based on Civil Code articles 2719 and 2720 and we agree. The obligation under both articles is to return the thing leased in the “same state” as received. The comment further suggests that the jurisprudence cited has applied a standard of reasonableness to the restoration, and again we agree.

In the present case, Waterbury had an obligation to reasonably restore the land to the same state as before the drilling and production. The trial court held that he had failed to do so and found that an award of $9,000 was appropriate. On the basis of the expert testimony, the amount awarded plus the $3,000 already expended by defendant on the property constitute a reasonable amount for restoration. The amount of the award in this case should be reviewed on the basis of the trial court’s much discretion allowed by LSA-C.C. art. 1934.

Plaintiff contends by answer to the appeal that the award should be increased and that the expert witness fees are inadequate. We find no merit in these contentions. There is no error.

For the reasons assigned, the judgment of the trial court is affirmed. Appellant is to pay all costs.

AFFIRMED.

CULPEPPER, J., dissents and will assign written reasons.

CULPEPPER, Judge,

dissenting.

My principal reason for dissenting is that the plaintiff landowner did not prove any lease or other contract under which Waterbury is obligated to restore the surface of the land to the condition which it was in before the first of these two wells was drilled in the early 1960s. Actually, plaintiff’s petition is drawn as á suit in tort. It alleges damages to the surface of plaintiff’s property caused by defendant’s “negligence” in leaving open pits and the residue of salt water and oil spillage when defendant abandoned the wells in 1973. However, it is clear that defendant Waterbury is not liable in tort, since he admittedly operated these two wells under a lease from the landowner.

Defendant testified he operated the wells as the designated operator under a mineral lease. He filed in evidence as Exhibit D-8 a copy of a lease from Dejean Broussard to W. W. Lomerson and C. R. Craig, dated October 5,1970, it being defendant’s uncon-tradicted contention that this is the lease under which he operated the well. The only provision in this lease as to surface damage is that the lessee is responsible “for all damages to timber and growing crops”, of which there was none.

The defendant Waterbury’s testimony is also uncontradicted that all of the pits were dug and the salt water and oil spilled on this property by previous operators of the wells. Actually, as stated in the majority opinion, the plaintiff Broussard himself admitted that he had no objection to the manner in which Mr. Waterbury operated the wells after 1970.

Since Waterbury is not liable in tort, and the only evidence as to defendant’s liability under the terms of any lease is the lease dated October 4, 1970, which defendant himself introduced into evidence, it is my view that the defendant Waterbury is liable only to reasonably restore the surface of the land to the condition which it was in at the time of the 1970 lease. He has more than performed this duty. After this suit was filed, Waterbury spent over $3,000 leveling the pits, hauling in some top soil to cover the salt water and oil spillage and planting rye grass.

In my view, the majority has held the defendant Waterbury liable for damages that were caused by previous operators under previous leases. I cannot agree that Waterbury is liable for all of the damages to the surface, just because he happened to be the last person to operate the wells before they went dry.

For the reasons assigned, I respectfully dissent.

      . Waterbury, an accountant and oil operator, represented himself at the trial of the case.

      . LSA-R.S. 31:122

      . LSA-C.C. arts. 2719-2720


author: CULPEPPER, Judge.

text:
    SUCCESSION of Calis MATTE.
    No. 5853.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 1977.
    Rehearing Denied June 24, 1977.

      Privat & Regan by Kenneth 0. Privat, Crowley, for plaintiff-appellant.
    Guillory, McGee & Mayeux by Robert K. Guillory, Eunice, for defendant-appellee.
    Before CULPEPPER, WATSON and STOKER, JJ.
   CULPEPPER, Judge.

The present case, Succession of Calis Matte, is a companion case to the Succession of Zoe Thibodeaux Matte. The two cases were consolidated for trial and appeal. A separate decision is being rendered by us this date in Succession of Matte, 346 So.2d 1351.

The appellant, Mildred Marie Matte Arsement (Mildred), alleges she is the legitimate daughter of Calis Matte and is, therefore, entitled to a forced portion of his estate and a portion of the estate of his mother, Zoe T. Matte. In the alternative, Mildred alleges she is either the legitimated or acknowledged child of Calis Matte. Opposing Mildred in her claims are the brothers of Calis Matte, Orest and Leonce Matte. The trial court rendered judgment rejecting all of Mildred’s demands on the grounds that she is neither the legitimate, legitimated nor acknowledged daughter of Calis Matte. Mildred appealed.

The substantial issues are: (1) Is Mildred presumed to be the legitimate child of Calis Matte? (2) Is Mildred the legitimated child of Calis Matte? (3) Is Mildred the acknowledged child of Calis Matte?

THE GENERAL FACTS

Calis Matte died intestate on March 3, 1962 survived by his mother, Zoe Thibo-deaux Matte, and by his two brothers, Orest and Leonce. A judgment of possession rendered on March 12, 1962 recognized Calis Matte’s mother, Zoe Thibodeaux Matte, and his two brothers as his sole heirs.

Zoe Thibodeaux Matte, Calis Matte’s mother, died on October 9, 1975. Mrs. Matte bequeathed all of her property to her two surviving sons, Orest and Leonce. A judgment of possession rendered on October 23,1975 recognized Orest and Leonce as the heirs of Mrs. Zoe T. Matte and sent them into possession of her estate, which consists principally of about 45 acres of land valued at less than $15,000.

It was not until after the death of Zoe T. Matte that Mildred filed the present suits claiming portions of the estates of Calis Matte and Zoe T. Matte on the grounds that she is the legitimate daughter of Calis Matte.

The essential facts of Mildred’s birth and upbringing are undisputed. The record shows that Mildred was born on October 26, 1935. Mildred’s mother, Eula Bellard, was unmarried when Mildred was born. Eleven months after Mildred was born, her mother began living with a man named Angelle. From the time of her birth and through her years in school, Mildred was known to everyone as “Mildred Angelle”. Mildred’s younger brother also had the surname, “An-gelle”. There is no birth certificate for Mildred in the record.

After living with Angelle for an indeterminate time, Eula Bellard married Alus Lavergne in 1940. In 1949, while still legally married to Alus Lavergne, Eula Bellard and Mildred began living with Calis Matte in his house. Eula lived with Calis Matte from 1949 until his death in 1962. Mildred lived with her mother and Calis' Matte until she was married in 1953. Prior to her marriage in May of 1953, appellant continued to use the name “Mildred Angelle”.

Mildred admitted in testimony at trial that her parents were never married, nor to her knowledge did they consider themselves to be married. The record shows that Eula Bellard and Calis Matte simply lived in open concubinage and did not give the impression of being man and wife.

In a deposition introduced into evidence at trial, Mildred was asked if her name had ever been changed from Angelle to Matte. She replied: “Just for my marriage license. From then on I used Matte.” Mildred testified that her mother did not tell her Calis was her father until she applied for her marriage license in 1953. Eula Bellard, Mildred’s mother, did not testify at trial.

Mildred testified that she had a warm and friendly relationship with Calis Matte. She considered him to be her father after her mother told her he was. She testified that Calis Matte told various people in the rural area where they lived that Mildred was his daughter. One witness, a store keeper, testified that Calis Matte called Mildred his daughter in the store. Another witness, who was only 12 years old when Mildred was born in 1935, testified that she remembered Calis visiting Mildred the day after her birth and calling her his daughter. Mildred further testified that Calis considered her children to be his grandchildren. Local newspaper announcements of the births of Mildred’s children identified Calis Matte as Mildred’s father. Mildred admitted, however, that she could never remember Calis saying anything in the presence of his own family to the effect that she was his daughter. This fact is significant because the other members of Calis Matte’s family lived in very close proximity to him on the same tract of land where his house was situated during the time Mildred and her mother lived.with Calis Matte.

Mildred introduced into evidence two documents in an effort to prove she was the legitimate, legitimated or acknowledged daughter of Calis Matte. The first is a photo copy (not an original), of a “Certificate of Baptism” purportedly issued by the St. Francis Regis Church or Arnaudville, Louisiana. This certificate, introduced into evidence without objection at trial, states: “That Mildred Marie Matte, child of Galixte Matt and Eula Bellard, born in Arnaudville, Louisiana on the 26th day of October, 1935 was baptized on the 30th day of November, 1935.” The document is signed by the church pastor and is dated May 3,1953, one day before Mildred applied for her marriage license. Apparently, Mildred applied for the Certificate of Baptism in order to prove she was old enough to get married, since she did not have a birth certificate.

The second document Mildred introduced is an application for a marriage license. This document is dated May 4, 1953. It identifies Calis Matte as Mildred’s father. Calis Matte signed the application in the capacity of a witness. ' There is nothing in the application to indicate an intent on the part of Calis Matte to legitimate his daughter. To the contrary, the record indicates that Calis. Matte probably signed the marriage license application in an effort to expedite Mildred’s marriage.

Finally, Mildred introduced hospital bills sent to Calis Matte bearing this notation: “For wife, Eula.” As we noted earlier, however, Mildred admitted her alleged parents were never married.

Calis Matte did not adopt Mildred nor did he leave a will naming her as a beneficiary.

PRESUMPTION OF LEGITIMACY

Mildred argues the trial court erred in not giving her the benefit of a presumption of legitimacy. Specifically, Mildred argues the collateral heirs of Calis Matte have the burden of proving she is not the legitimate daughter of Calis Matte. We do not agree.

The presumption of legitimacy is one of the strongest presumptions in our law. However, a mere reading of LSA-C.C. Articles 184-192, which provide the rules for determining who are legitimate children, shows that a prerequisite of the presumption of legitimacy is evidence of a marriage between the child’s parents or evidence of facts giving rise to a presumption of marriage. In Succession of Jacobsen, 182 La. 151, 161 So. 185 (1935) Justice Fournet stated:

“There is nothing in the record to show that the father of decedent and his mother ever lived together as man and wife or even held themselves out as husband and wife. In the absence of such evidence, there cannot be a presumption of a marriage which is necessary to raise the presumption of the legitimacy of the decedent.’' (Emphasis added)

Admittedly, in Succession of Jacobsen it was not the child who asserted his legitimacy. The reasoning of the Jacobsen case, however, is applicable to all cases involving the presumption of legitimacy.

In Boykin v. Jenkins, 174 La. 335,140 So. 495, 497 (1932), the Supreme Court further explained that evidence of marriage or evidence of acts giving rise to a presumption of marriage is necessary to raise the presumption of legitimacy. The court held:

“But proof of the celebration of a marriage between parents is not indispensable to the children’s rights to inherit from them, for such proof cannot always be made. In the 'absence of such proof, however, they must show that they were born of parents who were so living together and so conducting themselves toward each other in society, holding themselves out as man and wife, as to raise the presumption that they were married. When the facts shown are such as to raise the presumption of marriage, the further presumption that the children are legitimate necessarily follows.” 140 So. at 497.

Perhaps the most liberal application of the presumption of legitimacy is found in the case of In Re Gray's Succession, 201 La. 121, 9 So.2d 481 (1942). Even in that case, however, the court grounded application of the presumption of legitimacy on facts giving rise to a presumption of marriage. Nothing in Gray’s Succession, conflicts with the above quoted rules from Succession of Jacobsen, and Boykin v. Jenkins.

Mildred relies heavily on the majority opinion in Succession of Fuselier, 325 So.2d 296 (La.App. 3rd Cir. 1976) as authority for her assertion that the trial court erred in not applying the presumption of legitimacy. Fuselier is readily distinguishable from the case now before us. In Fuselier, the child introduced evidence of a putative marriage between her father and her mother. The majority relied on this evidence as showing that there was either a marriage or a presumption of a marriage. In the present case, appellant admits her alleged parents were never married, and that they did not even begin living together until she was a teenager. Therefore, our holding in Fuselier is inapplicable to the present case.

We realize the strong presumption of legitimacy is grounded on basic moral principles and designed to protect the right of legitimate children to inherit from their parents. Nevertheless, the law is clear that the presumption does not arise until the alleged legitimate child has proved a marriage, either legal or putative, or has proved facts creating a presumption of marriage. In cases such as the present one, where there is no evidence of a marriage and no evidence even showing a presumption of marriage of the parents of the child, the child is not entitled to the presumption of legitimacy.

LEGITIMATION

Next, we address the issue of whether Calis Matte “legitimated” Mildred under the terms of LSA-C.C. Articles 198-201, which compose the section of the Civil Code entitled “Of Legitimation”.

Mildred does not argue she was legitimated by subsequent marriage of her parents. LSA-C.C. Articles 198-199. She argues, however, she was legitimated by virtue of the certificate of baptism naming Calis Matte as her father and by Calis Matte signing her marriage license application as a witness.

The applicable provision of the Civil Code is Article 200. It provides in pertinent part: “A natural father or mother shall have the power to legitimate his or her natural children by an act passed before a notary and two witnesses, declaring that it is the intention of the parent making the declaration to legitimate such child or children.” Neither the certificate of baptism nor the marriage license application evidence the requisite intent to legitimate Mildred. Furthermore, neither document is in the form prescribed for acts of legitimation.

ACKNOWLEDGMENT

Having concluded Mildred is not the legitimate or legitimated daughter of Calis Matte, we next address her contention that she is the acknowledged daughter of Calis Matte.

Under the terms of Article 919 of our Civil Code, the duly acknowledged natural children of their natural father are called to his succession only to the exclusion of the state. Thus, even if Mildred were the acknowledged illegitimate daughter of Calis Matte, his collateral relations, Orest and Leonce Matte, would inherit the estate to the exclusion of Mildred. Mildred’s purpose, however, in arguing she is the acknowledged illegitimate daughter of Calis Matte is to establish the requisite standing for a constitutional attack on Articles 918 and 919 of the Civil Code on the grounds that the two articles work an unconstitutional discrimination between the acknowledged illegitimate children of the mother and those of the father. U.S.Constitution, 14th Amendment; La.Constitution, 1974, Article 1, Section 3. For the reasons which follow, we conclude that Mildred failed in her burden [see Succession of Washington, 308 So.2d 892 (La.App. 2d Cir. 1974)] of proving she is the child of Calis Matte. Failing in this burden, Mildred has no standing to challenge the constitutionality of our laws of intestate succession in general and the above mentioned articles in particular. Furthermore, any general attacks on our intestate succession laws on the grounds that they discriminate between legitimate and illegitimate children are foreclosed by the decision of the U.S. Supreme Court in Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288.

Illegitimate children may be acknowledged by their parents either formally or informally. The procedure for formal acknowledgment is stated in . Civil Code Article 203:

“The acknowledgment of an illegitimate child shall be made by a declaration executed before a Notary Public, in presence of two witnesses, by the father and mother or either of them, whenever it shall not have been made in registering of the birth or baptism of such child.”

We are not concerned with formal acknowledgment in the present case, because there is no evidence that Calis Matte acknowledged Mildred as his child by notarial act or by witnessing or signing the certificate of baptism naming Mildred as his child. See State v. De Lavallade, 215 La. 123, 39 So.2d 845 (1949); Williams v. Vidrine, 330 So.2d 396 (La.App. 3rd Cir. 1976), footnote one.

Informal acknowledgment is not specifically defined or authorized by the Louisiana Civil Code, but is instead a product of our jurisprudence. Taylor v. Allen, 151 La. 82, 91 So. 635 (1921); State v. De Lavallade, supra; Keen, Irregular Successions in Louisiana, 7 Loy.L.Rev. 94, 102-105 (1954); Oppenheim, Acknowledgment and Legitimation in Louisiana, 19 Tul.L.Rev. 326 (1945). Proof of informal acknowledgment is made by proving paternal descent. Succession of Corsey, 171 La. 663, 131 So. 841 (1930); Comment, What Effect Has Proof of Maternity, 6 La.Law Review, 268 (1945); Oppenheim, Acknowledgment and Legitimation in Louisiana, supra. Often, the courts turn to Article 209 as a standard for determining whether there has been an informal acknowledgment by proof of paternal filiation. See, for example, Bourriaque v. Charles, 107 La. 217, 31 So. 757 (1920); Succession of Corsey, supra; Succession of Washington, on rehearing, supra. Article 209 provides:

“In the case where the proof of paternal descent is authorized by the preceding article, the proof may be made in either of the following ways: (1) By all kinds of private writings in which the father may have acknowledged the bastard as his child, or may have called him so; (2) when the father, either in public or in-private, has acknowledged him as his child, or has called him so in conversation, or has caused him to be educated as such; (3) when the mother of the child was known as living in a state of concubinage with the father, and resided as such in his house at the time when the child was conceived.”

A review of the jurisprudence interpreting this article, in both informal acknowledgment cases and in cases involving claims by illegitimate children for alimony from their fathers, reveals that the courts have generally been reluctant to find an acknowledgment (or proof of paternity) unless the father continuously and unequivocally recognizes the child as his own. In several cases where the court found an informal acknowledgment or sufficient proof of paternity, the court stressed the importance of (1) continuous acknowledgment, or (2) “habitual acknowledgment”, and (3) proof that the alleged father was generally reputed to be the father of the child. See respectively Succession of Corsey, supra; Gibney v. Fitzsimmons, 5 La.Ann. 250 (1850), and Succession of Vance, 110 La. 760, 34 So. 767 (1903). In a note entitled Family Law — Illegitimate Children — Proof of Paternity, 15 La.Law Review 218 (1954), the author lists from the jurisprudence the following acts which do not constitute admissions of paternity under Civil Code Article 209:

“Referring to the child as his son more than 50 years before the trial in the presence of witnesses who were then young boys unable to tell whether the remarks were made ‘in' an affectionately playful manner or with serious intent — or perhaps in the nature of braggadocio;’ [Succession of Wallace, 219 La. 297, 52 So.2d 858]; and calling the children his own when no one was present but the children. [Badillo v. Tio, 6 La.Ann. 129 (1951)]. In the latter case the court in a dictum implied that only oral admissions of paternity made in ‘habitual conversations with others’ (id. at 131) could be used to prove paternity under Article 209.”

Perhaps the most recent judicial interpretation of sufficiency of evidence under Article 209 came in our decision in Williams v. Vidrine, 330 So.2d 396 (La.App. 3rd Cir. 1976). There, we quoted with approval the following guidelines from the written reasons of the trial judge:

“Proof in such cases should be such that paternity should not be based on conjecture, but rather than verbal acknowledgments in public or private, or in conversations, are sufficiently frequent that there can be little doubt that the alleged father truly believes himself to be the father of the child.”

There have, of course, been cases where the courts have found an informal acknowledgment or sufficient proof of paternity on relatively weak evidence. See Rousseau v. Bartell, 224 La. 601, 70 So.2d 394 (1954); Ogborn v. Bush, 255 So.2d 199 (La.App. 4th Cir. 1971), writ refused.

Obviously, the determination of whether or not there has been an informal acknowledgment or sufficient proof of descent from the alleged parent is a factual determination which must be made by reference to the record as a whole. Justice Dennis, then a judge in the Second Circuit Court of Appeal recognized this principal in Succession of Washington, supra, on rehearing. Thus, if there is a reasonable factual basis for the trial judge’s conclusion regarding informal acknowledgment or proof of descent, his conclusion should not be disturbed on appeal.

In the present case, there is a reasonable factual basis for the trial court’s conclusion that Mildred is not the acknowledged daughter of Calis Matte. There is no evidence that Mildred’s mother had any kind of an intimate relationship with Calis Matte shortly before or after Mildred’s birth in 1935. About the time of Mildred’s birth, her mother started living with a man named Angelle. From that time and all through her school years Mildred went by the name Angelle. Even after her mother started living with Calis Matte, Mildred retained the name of Angelle. It was not until Mildred decided to get married in 1953 that she changed her name to Matte. She did not have a birth certificate and she needed proof of her age to obtain a marriage license. So a “baptism certificate” was obtained showing she was born in 1935. and that her father was Calis Matte. The marriage license also shows her father as Calis Matte. Under these circumstances the trial judge could reasonably have concluded that these documents showed Calis Matte as the father simply because he was living with the mother in 1953 when the documents were obtained.

It is noteworthy that neither Mildred nor her mother claimed an interest in the succession of Calis Matte after his death in 1962. It was not until the total value of the property at stake was increased by the death of Zoe T. Matte that Mildred chose to assert her long dormant claim as the alleged legitimate or acknowledged daughter of Calis Matte. It is also significant that Mildred’s mother was not called as a witness in her behalf at trial. The trial judge made mention of this in his written reasons.

It is apparent that the trial judge weighed all these factors and concluded on the record as a whole that Mildred was not even the natural child of Calis Matte. We recognize and acknowledge the warm, friendly relationship which developed between Mildred and Calis Matte after she and her mother started living in his house. Undoubtedly, bonds of friendship, respect and love approximately those found in typical legitimate family relations grew between Calis Matte and Mildred. These bonds, rooted in Calis Matte’s apparent benevolence, cannot substitute for the biological or bloodline filiation upon which our intestate succession articles are structured.

If Calis Matte wished to grant Mildred rights to his succession, he could have provided for her in a will or adopted her.

We reiterate that we do not reach the previously mentioned constitutional issues because Mildred lacks the requisite standing to pursue such an argument.

For the reasons assigned, the judgment of the district court is affirmed. The costs of this appeal are assessed against the appellant, Mildred Arsement.

AFFIRMED.


text:
    SUCCESSION of Zoe Thibodeaux MATTE.
    No. 5854.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 1977.
    Rehearing Denied June 24, 1977.
    Privat & Regan by Kenneth 0. Privat, Crowley, for plaintiff-appellant.
    Guillory, McGee & Mayeux by Robert K. Guillory, Eunice, for defendant-appellee.
    Before CULPEPPER, WATSON and STOKER, JJ.
   CULPEPPER, Judge.

For the reasons stated in the companion case of Succession of Matte, 346 So.2d 1345, in which a separate decision is being rendered by us this date, the judgment of the district court in the present case is affirmed. All costs of this appeal are assessed against the appellant, Mildred Marie Matte Arsement.

AFFIRMED.


text:
    Willie S. COOLEY, Plaintiff-Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, et al., Defendants-Appellees.
    No. 5876.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 1977.
    Rehearing Denied June 24, 1977.
    Garrett & Ryland by'B. Dexter Ryland, Alexandria, for plaintiff-appellant.
    Bolén, Halcomb, Bolton & Erwin by James A. Bolen, Jr., Alexandria, for defendants-appellees.
    Before HOOD, FORET,and HEARD, JJ.
   HOOD, Judge.

This is a workmen’s compensation suit instituted by Willie S. Cooley against Badger Company, Inc., and its insurer, Liberty Mutual Insurance Company. The trial court rendered judgment sustaining an exception of prematurity filed by defendants and dismissing the suit. Plaintiff appealed.

The issue presented is whether plaintiff’s allegation, or claim, that he has not been provided with proper medical attention is justified under the facts, and thus whether the trial court erred in sustaining defendants’ exception of prematurity.

Plaintiff alleges that he was injured on October 2, 1975, and that compensation at the rate of $85.00 per week is presently being paid to him. He also alleges that he has incurred medical and hospital expenses, but that “Employer and insurer have failed and refused to authorize and pay for necessary medical expenses notwithstanding numerous requests; additional surgery and medical expense have been recommended by the treating physician which are necessary and defendants’ failure to pay medical bills as they become due necessitated this suit.”

Cooley demands judgment against defendants for compensation benefits at the maximum rate of $85.00 per week beginning from the date of the accident and continuing during his period of disability, subject to credit for the benefits heretofore paid. He also demands judgment against defendants for a sum, up to $12,500.00, for medical and hospital treatment.

Defendants filed an answer and an exception of prematurity. The exception was tried, and judgment was rendered by the trial court sustaining that exception and dismissing plaintiff’s suit. Plaintiff appealed, and that appeal is before us now.

LSA-R.S. 23:1314 provides that suits claiming workmen’s compensation benefits are premature and shall be dismissed unless (1) the employee is not being or has not been paid the maximum percent of wages to which he is entitled, or (2) the employee has not been furnished the proper medical attention, or (3) the employee has not been furnished with copies of the reports of examinations made by the employer’s medical experts.

The evidence in the instant suit shows that plaintiff has been paid the maximum percent of wages to which he is entitled under the provisions of the Workmen’s Compensation Law from the date the accident occurred until the present time. He has been provided with proper medical attention for his injuries, and he has never been denied any such treatment. He does not allege or claim that defendants have failed to furnish him with copies of any reports of medical examinations. Applying the provisions of LSA-R.S. 23:1314 to the circumstances which exist here, it appears to us that plaintiff’s suit is premature and that the trial court did not err in dismissing it.

Plaintiff contends, however, that defendants have failed or refused to pay some of the expenses he incurred for hospital treatment, and that their failure to pay those expenses was “tantamount to a failure to furnish adequate medical treatment.” He argues that his suit for compensation benefits is not premature, since he “has not been furnished the proper medical attention,” as provided in the above cited section of the Revised Statutes.

The record shows that plaintiff became indebted to the Rapides General Hospital on three separate charge accounts, amounting to the total sum of $261.40, for out-patient treatment administered to him on or before December 23, 1975. Defendants paid those three accounts by issuing one check to the hospital on March 4, 1976, for the above amount. The hospital received that payment, but it erroneously credited the amount paid to another, or a fourth, account owed it by plaintiff, in the amount of $695.25, for in-patient treatment administered in February, 1976. The hospital thereafter made demands on defendants to pay the indebtedness shown on the three accounts for out-patient treatment, amounting to $261.40, and defendants understandably resisted those demands on the ground that they had already paid those accounts. The hospital then turned the accounts over to a collection agency which made demand on plaintiff, and shortly thereafter this suit was filed.

The trial judge found, correctly we think, that the failure of defendants to pay all of plaintiffs hospital bills promptly was due to a “misunderstanding,” or to some “confusion,” or to a “clerical error,” as to how much, if anything, was owed to the hospital. That misunderstanding was cleared up shortly after the suit was filed, and we understand from the record and briefs that defendants have paid or are willing to pay the balance which is due on the above hospital bills. Regardless of the confusion which existed as to the amount due as hospital expenses, and despite defendants’ failure to pay or the delay which occurred in the payment of those expenses, the evidence is clear that plaintiff was at all times furnished with proper medical attention.

In determining whether a suit should be dismissed on an exception of prematurity under LSA-R.S. 23:1314, the test is not whether the employer has refused to pay the medical bills incurred, but instead it is whether “the employee has been furnished the proper medical attention.” Jack v. Fidelity and Casualty Company of New York, 306 So.2d 806 (La.App. 3 Cir. 1975); Moore v. American Motorist Insurance Company, 216 So.2d 674 (La.App. 3 Cir. 1968); Cucote v. Harris, 335 So.2d 91 (La.App. 3 Cir. 1976).

In the instant suit the failure of defendants to pay, or their delay in paying, the above hospital bills did not deprive plaintiff of any medical or hospital treatment he needed. He has been furnished proper medical attention. Under those circumstances, this suit is premature, and the trial judge did not err in dismissing it under LSA-R.S. 23:1314.

The record does not show whether all of the hospital expenses incurred by plaintiff for the treatment of his work-connected injuries have been paid by defendants. We hold, however, that the judgment appealed from herein, which sustains the exception of prematurity filed by defendants and dismisses the suit, does not preclude plaintiff from maintaining another action against defendants to recover any other medical or hospital expenses incurred by plaintiff for treatment of the above injuries, which may be due by defendants and are still unpaid or unreimbursed. See Lanoue v. Century Indemnity Co., 30 So.2d 207 (La.App. 1 Cir. 1947).

For the reasons assigned, the judgment appealed from is affirmed. The costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED.


text:
    E. J. ABSHIRE et ux., Plaintiffs-Appellants, v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY et al., Defendants-Appellees.
    No. 5906.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 1977.
    Rehearing Denied June 24, 1977.

      Thompson & Sellers by Charles M. Thompson, Jr., Abbeville, for plaintiffs-appellants.
    Edwards, Stefanski & Barousse by Larry C. Dupuis, Crowley, Andrew J. Vidrine, Church Point, for defendants-appellees.
    Before HOOD, FORET and HEARD, JJ.
   HOOD, Judge.

Mr. and Mrs. E. J. Abshire claim damages for personal injuries sustained by Mrs. Ab-shire as a result of a motor vehicle accident. The defendants are Chester Faulk, Southern Farm Bureau Casualty Insurance Company and Acadia Parish Police Jury. Judgment was rendered by the trial court in favor of defendants, dismissing plaintiffs’ suit. Plaintiffs appealed.

The principle issues presented are (1) whether defendant Faulk was negligent, (2) whether the Acadia Parish Police Jury was negligent, and (3) whether plaintiffs are barred from recovery by the contributory negligence of Mrs. Abshire.

The accident occurred about 3:50 P.M., on May 30, 1973, at or near the intersection of a blacktopped road and a gravel road, in a rural part of Acadia Parish. Both of the above thoroughfares are parish roads.

Immediately before the accident occurred, Mrs. Abshire was driving her community-owned automobile north on the blacktopped road. Shortly before she reached the above intersection a pickup truck, owned and being driven by defendant Faulk, entered the crossing from her right. Mrs. Abshire applied her brakes as soon as she saw the Faulk truck, and she veered to her right to avoid striking it. The vehicles did not collide, but Mrs. Ab-shire lost control of her car when it ran over some loose gravel as she entered the crossing and attempted to swerve around the rear of the truck. Her automobile first ran off the east side of the blacktopped highway. It then re-crossed that thoroughfare, ran off the west side of it, crossed a ditch and went through a fence, and it finally came to rest in a field on the west side of the blacktopped road, about thirty feet west of the above ditch.

The weather was clear and dry. Mrs. Abshire was travelling between 55 and 60 miles per hour as she approached the crossing. The speed at which she was driving was within the legal speed limit at that time. The wheels of her ear skidded when she applied the brakes, leaving 92 feet of skid marks immediately before her car first entered the intersection.

Faulk was driving west on the gravel road at a speed of 25 or 30 miles per hour immediately before the accident occurred. He saw the Abshire automobile approaching from his left before he reached the crossing, when he was about 25 yards from the center of the intersection. He estimated that Mrs. Abshire was 100 yards from the center of the crossing and was travel-ling at a speed of 60 miles per hour at that time. He reduced the speed of his vehicle slightly after he first observed Mrs. Abshire approaching, but he then decided that he could get across the intersection before she reached it, so he proceeded to cross the blacktopped road. He increased the speed of his truck while he was in the intersection “to be sure we had plenty of clearance between us.” He saw the accident occur through his rear view mirror after he went through the intersection, and thereafter he stopped his truck on the gravel road, west of the blacktopped thoroughfare.

There were no stop signs or traffic signals at that intersection when the accident occurred. The evidence shows that the Acadia Parish Police Jury erected stop signs at that crossing when the north-south road was blacktopped in the early 1960’s, but that those signs were removed or destroyed before this accident occurred. The stop signs, while they were in place, directed motorists on the gravel road to stop before entering the intersection. The Police Jury has never formally designated the blacktopped road as the preferred thoroughfare at that crossing, but it apparently has had a policy for years of making a blacktopped road the preferred route at points where it is intersected by gravel roads. The president of the Police Jury, who also is the parish manager, testified for instance that at the time of the accident it was still the policy of the Police Jury “for the gravel road to recognize the blacktop road as having a right-of-way.” The road foreman for the Police Jury testified that “we put the stop signs to give the blacktop the right-of-way.” The state trooper who investigated the accident testified that the people travel-ling that road “take for granted that this blacktop road has the right-of-way,” and he put in his report of the accident that “this parish blacktop is taken for granted by the public to have the right-of-way.”

Both of the drivers, Faulk and Mrs. Ab-shire, were thoroughly familiar with that particular intersection. Faulk testified, in fact, that he traverses it about five times per week. Both of them considered the blacktopped road as being the preferred thoroughfare at that intersection, and Faulk admitted that vehicles travelling on the gravel road customarily stopped or yielded the right-of-way to vehicles which were on the blacktopped thoroughfare. Faulk testified that he customarily “let the blacktopped go on and have the right-of-way,” that he felt that “. . . the blacktop would have the right-of-way,” and that he did not expect Mrs. Abshire to stop before proceeding to cross the gravel road. He stated that when he approached that intersection while on the gravel road “if I would see somebody coming I would come to a complete stop.”

There is a conflict in the testimony of the drivers as to the position of the Faulk truck when Mrs. Abshire entered the intersection. Faulk testified that he had completely traversed the intersection and had reached a point 100 yards west of that crossing before the Abshire vehicle entered it. Mrs. Ab-shire testified that the Faulk truck was in the intersection as she traversed it, that she “swerved to the right” in order to avoid running broadside into it, and that she “missed his back bumper ... a foot and a half or two feet.”

If we accept Faulk’s own testimony as to the speed of each- vehicle as it approached the intersection, the distance each was from that junction when Faulk first observed Mrs. Abshire, and the distance the Abshire car traveled after it traversed the crossing, we find it difficult to rationalize how Faulk could have travelled 100 yards beyond the intersection before Mrs. Abshire entered it. The evidence convinces us that Faulk entered the crossing directly in front of the Abshire vehicle, at a time when it was unsafe for him to do so, and that it was only because of the evasive action taken by Mrs. Abshire that a collision between the two vehicles was avoided.

The trial judge found that Faulk preempted the intersection, and based on that finding he concluded that Faulk was not negligent. He rendered judgment, therefore, in favor of Faulk and his insurer, Southern Farm Bureau Casualty Insurance Company, rejecting plaintiffs’ demands.

Before a motorist can successfully rely on the doctrine of preemption, he must show that he entered the intersection at a proper speed and sufficiently in advance of, the car approaching from another direction to permit him to cross without requiring any emergency stop by the other vehicle. Entry into the intersection at the same time, or just a fraction of a second ahead of the other vehicle, does not constitute a preemption of the crossing. Byers v. Creel, 198 So.2d 739 (La.App. 4 Cir. 1967); West v. Travelers Indemnity Company, 225 So.2d 139 (La.App. 4 Cir. 1969); Robertson v. Ratcliff, 260 So.2d 155 (La.App. 2 Cir. 1972); Rhodus v. Allstate Insurance Company, 192 So.2d 226 (La.App. 4 Cir. 1966); Ernst v. O’Bannion, 278 So.2d 830 (La.App. 3 Cir. 1973); writ denied, 281 So.2d 749.

In the instant suit Faulk entered the intersection directly in front of the approaching Abshire vehicle, just a fraction of a seeond before Mrs. Abshire entered it, when it should have been apparent to him that he could not safely traverse that crossing without requiring an emergency stop by the other vehicle. We conclude that the mere fact that Faulk entered the intersection a moment before the Abshire vehicle entered it was not sufficient to constitute a preemption of that crossing, and it did not relieve Faulk from negligence or liability.

We believe that the question of which of the two drivers had the legal right-of-way is immaterial here. If the blacktopped road was the preferred highway, then Faulk unquestionably was negligent in having failed to stop before entering the intersection. If neither highway was preferred, however, and Faulk is correct in his contention that he was entitled to the right-of-way since he approached the highway from Mrs. Abshire’s right, then we have concluded that he nevertheless was negligent in having failed to yield to the Abshire vehicle under the circumstances presented here.

A greater degree of care is required of a motorist who enjoys only a directional right-of-way than is required of a driver approaching an intersection on a right-of-way street, where the other intersecting street is controlled by stop signs. Such a motorist must maintain a proper lookout and must exercise reasonable care and caution as he nears the crossing. If he sees or should see that the approaching vehicle will continue its approach and will ignore the right-of-way, then he will be held to be negligent if he fails to take every available and reasonable precaution to avoid a collision. Schmidt v. Schwall, 265 So.2d 357 (La.App. 4 Cir. 1972); Bergeron v. Trueblood, 266 So.2d 742 (La.App. 4 Cir. 1972); Smith v. Borchers, 243 La. 746, 146 So.2d 793 (1962).

In Smith v. Borchers, supra, our Supreme Court said:

“ * * * Even when one has the right of way he is not relieved from the necessity of looking into the direction from which others may be expected to come, and where such care would have prevented the accident, he who fails to look or to keep a proper lookout cannot recover, even though the other party was grossly at fault.”

In the instant suit both drivers felt that the blacktopped highway was preferred over the gravel road at that crossing. Mrs. Abshire thought she had the right-of-way, as did other motorists using the blacktopped road. She assumed that Faulk would yield the right-of-way to her, and based on that assumption she did not intend to stop at the crossing. Faulk also felt that Mrs. Abshire was on the preferred highway. He saw her approach the intersection in ample time to enable him to stop, and he testified that he knew at that time that she did not intend to stop at the crossing. Under those circumstances, we conclude that Faulk was negligent in attempting to cross the blacktopped highway without stopping or without yielding the right-of-way to the Abshire vehicle. His negligence was a proximate cause of the accident.

We find that Mrs. Abshire was free from negligence. She was driving her automobile within the speed limit and at a reasonable rate of speed. Because of the custom in that area, we feel that she was not negligent in assuming that Faulk would yield the right-of-way to her at that intersection, since she was travelling on the blacktopped road. She was maintaining a proper lookout as she approached the crossing, and we think she observed that Faulk did not intend to yield the right-of-way as soon as it reasonably was possible for her to do so. As soon as she made that observation she did all that she reasonably could do to avoid an accident.

Faulk suggests that if Mrs. Abshire had not veered to her right while in the crossing, she would not have lost control of her car, and she also would not have collided with his truck. The evidence does not convince us that an accident would have been avoided if Mrs. Abshire had followed that course of action. Even if it would have been better for her to have taken that action, however, we find that Mrs. Abshire was confronted with an emergency when Faulk suddenly entered the crossing in front of her, and we think the efforts she made to avoid an accident were reasonable under those circumstances. We conclude that she was not negligent, and that plaintiffs are not barred from recovery because of contributory negligence on her part.

We turn now to the question of whether Acadia Parish Police Jury was negligent and thus is liable in damages. Plaintiffs contend that the Police Jury was negligent in failing to cut the weeds and shrubs in the southeast quadrant of the above road junction, so that the view of a motorist approaching from the south or east would not be obscured. They also argue that the Policy Jury was negligent in failing to maintain a stop sign at that crossing.

The evidence shows that the weeds and shrubbery at that intersection were not high enough to prevent the two motorists involved here from observing each other as they approached the intersection. Faulk admits that he saw Mrs. Abshire approaching the crossing when he was 25 yards from it. The failure of the Police Jury to erect or to replace the stop sign at that intersection was not a cause of the accident. Both parties were thoroughly familiar with that intersection. Faulk saw the Abshire vehicle approaching, and he knew that the driver could not and did not intend to stop. He also knew that, by custom at least, the blacktopped road was regarded by motorists as being the preferred thoroughfare, and that Mrs. Abshire would expect him to yield the right-of-way to her. The presence of a stop sign at that corner would not have given Faulk any warning or information he did not already have, and it thus would not ■have avoided an accident.

We agree with the trial court that the Acadia Parish Police Jury was free from negligence and is not liable.

Our conclusion is that plaintiffs are entitled to recover from defendant Faulk and from his insurer, Southern Farm Bureau, for the damages which plaintiffs sustained as a result of this accident. The trial judge erred, therefore, in rejecting plaintiffs’ demands against those defendants.

Mrs. Abshire sustained injuries to her right shoulder, right arm, left leg and left hip as a result of the accident. She later developed a back condition which is painful, but we have decided that the abnormal condition of her back did not result from the above automobile accident.

Immediately after the accident occurred Mrs. Abshire was treated by Dr. Eugene S. Fields, a surgeon, and she remained under his treatment until he discharged her about two and one-half months later, on August 7, 1973. He found that she sustained massive contusions about her right shoulder and arm, and bruises on her upper left leg and left hip. An x-ray examination disclosed no fractures, dislocations or bone injuries of any kind. She was not hospitalized, except for her initial examination and treatment in the emergency room at a local hospital on the day of the accident. The treatment administered to her by Dr. Fields included cortisone injections in the shoulder, physical therapy and tranquilizers. The doctor confirmed Mrs. Abshire’s testimony that she suffered severe pain during that time, and that she was still suffering pain in her shoulder when he discharged her. In view of her continued complaints, he recommended that she see an orthopedic surgeon.

Plaintiff did not see Dr. Fields again until March 5, 1976, more than two and one-half years later. At that time she complained of severe pain in her chest and in her shoulder. Her chest x-rays were essentially negative. Dr. Fields at that time again injected cortisone in her shoulder and administered tranquilizers. He felt that her shoulder pain had caused her to have an “acute anxiety reaction,” which caused the chest pain. In his opinion the shoulder pain which she experienced in 1976 was “related” to the accident which occurred on May 30, 1973. The evidence does not show whether she has had any recurrence of her shoulder pain. Her other injuries, that is, the injuries to her right arm, left leg and left hip, apparently cleared up by the time Dr. Fields first discharged her, on August 7, 1973.

We have decided that an award of $5,000.00 to Mrs. Abshire for the above injuries, and for the pain and suffering she underwent as a result of those injuries, would be fair and adequate.

Mrs. Abshire did not complain of pain in her back on the day of the accident, or at any time while Dr. Fields was treating her. In September, 1973, however, or more than three months after the accident occurred, she experienced severe pain in her lower back area when she tried to straighten up after stooping over to pick up some merchandise in a store. She testified that she was hospitalized immediately and was treated by the late Dr. G. Dunning, an orthopedic surgeon. After Dr. Dunning’s death she was treated for her back condition by Dr. John D. Jackson, a neurosurgeon, who concluded that plaintiff’s two lower discs are “abnormal,” that they are causing her symptoms and that corrective surgery should be performed.

The evidence shows, however, that Mrs. Abshire sustained a severe back injury in an earlier motor vehicle accident which occurred in 1964 or 1965. As a result of that injury she underwent surgery which consisted of a lumbar laminectomy, with the removal of a bulging disc. She wore a back brace for two years thereafter, and although she recovered substantially from that back injury, she had not recovered sufficiently by May 30, 1973, to enable her to do some of her household duties such as sweeping or mopping. She instituted suit for damages resulting from the back injury she suffered in that first accident, and she eventually entered into a compromise settlement of her claim.

As we interpret the opinions of the two treating physicians who testified, Dr. Fields concluded that plaintiff’s back injury did not result from the accident of May 30, 1973. Dr. Jackson expressed the opinion that her back condition is related to the automobile accident, but he based that conclusion on an incorrect assumption that Mrs. Abshire has been suffering pain in her back continuously since the date of the accident. The evidence shows that she did not experience back pain until several months after the accident, when she attempted to pick up a small package in a store. When asked to assume those facts, which we find to be true, Dr. Jackson then expressed the view that Mrs. Abshire’s back symptoms resulted from the store incident, and not from the automobile accident.

We have concluded that the abnormal condition of Mrs. Abshire’s back did not result from the accident which occurred on May 30, 1973. She thus is not entitled to recover damages for that claimed injury.

Plaintiffs incurred medical expenses amounting to $422.18 for the treatment of Mrs. Abshire’s injuries. The community-owned automobile was damaged as a result of the accident to the extent that it was a total loss. It had a value of $1,425.00 at the time of the loss. Mr. Abshire is entitled to recover for these special damages.

For the reasons assigned, the judgment appealed from is reversed insofar as it rejects plaintiffs’ demands against defendants, Chester Faulk and Southern Farm Bureau Casualty Insurance Company, and insofar as it condemns plaintiffs to pay the costs of court. Judgment is hereby rendered (1) in favor of plaintiff, Mrs. Mary Lou Abshire, and against defendants, Chester Faulk and Southern Farm Bureau Casualty Insurance Company, in solido, for the sum of $5,000.00, with legal interest thereon from date of judicial demand until paid; and (2) in favor of plaintiff, E. J. Abshire, and against defendants, Chester Faulk and Southern Farm Bureau Casualty Insurance Company, in solido, for the sum of $1,847.18, with legal interest thereon from date of judicial demand until paid, and for all costs of this suit. The judgment appealed from is affirmed in all other respects, and particularly insofar as it rejects the demands of plaintiffs, and the third party demands of Chester Faulk and Southern Farm Bureau Casualty Insurance Company, against defendant Acadia Parish Police Jury.

The costs of this appeal are assessed to defendants-appellees, Chester Faulk and Southern Farm Bureau Casualty Insurance Company.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.


text:
    C. A. PRENTICE, Jr., Plaintiff-Appellee, v. Jo Ann Perry McGOWEN and Charles McGowen, Defendants-Appellants.
    No. 5913.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 1977.
    Rehearing Denied June 24, 1977.

      L. H. Olivier, Lafayette, for defendants-appellants.
    Armen tor & Wattigny by Minos H. Ar-mentor, New Iberia, for plaintiff-appellee.
    Before HOOD, CULPEPPER and STOKER, JJ.
   HOOD, Judge.

C. A. Prentice, Jr., instituted this suit against Mr. and Mrs. Charles McGowen to recover expenses incurred by Prentice for attorney’s fees in defending a suit which previously had been filed against him by Mrs. McGowen. Judgment was rendered by the trial court in favor of plaintiff. Defendants appealed.

The issues presented are whether plaintiff is entitled to recover attorney’s fees under LSA-R.S. 42:261(E), and if so, whether the amount awarded by the trial court is excessive.

LSA-R.S. 42:261(E) provides:

“E. Any party who files suit against any duly elected or appointed public official of this state of or any of its agencies or political subdivisions for any matter arising out of the performance of the duties of his office other than matters pertaining to the collection and payment of taxes and those cases where the plaintiff is seeking to compel the defendant to comply with and apply the laws of this state relative to the registration of voters, and who is unsuccessful in his demands, shall be liable to said public official for all attorneys fees incurred by said public official in the defense of said lawsuit or lawsuits, which attorneys fees shall be fixed by the court.
“The defendant public official shall have the right, by rule, to require the plaintiff to furnish bond as in the case of bond for costs to cover such attorneys fees before proceeding with the trial of said cause.”

In July, 1974, Mrs. McGowen instituted suit against Prentice for damages, alleging as grounds therefor that Prentice defamed her while she was a teacher in the Jeaner-ette Senior High School. Prentice was principal of that school at the time the alleged defamation occurred, and he has continued to serve as principal of the school since that time. Mrs. McGowen alleged and contended in that suit that she sustained damages as the result of representations made by Prentice to the Superintendent of the school, to the School Board and to other school personnel which reflected adversely on her competence as a teacher. After trial on the merits, judgment was rendered by the trial court in favor of defendant dismissing Mrs. McGowen’s suit. We affirmed that judgment. See McGowen v. Prentice, 341 So.2d 55 (La.App. 3 Cir. 1976).

Shortly after that judgment was rendered, Prentice instituted the instant suit against Mr. and Mrs. McGowen, seeking to recover the expenses he incurred for attorney’s fees in defending the above defamation suit. He contends that the cause of action in that suit was based on a matter arising out of the performance of the duties of his office as principal of the Jeanerette Senior High School, and that he is entitled to recover from the McGowens under LSA-R.S. 42:261(E) the expenses he incurred for attorney’s fees in defending that suit. He demands judgment for $7,500.00. The trial court rendered judgment in favor of Prentice and against Mr. and Mrs. McGowen for the sum of $4,000.00. Defendants appealed, and it is that appeal which is before us now.

We find that at the time the alleged defamation occurred, at the time the above suit was filed, and during the entire time that suit was pending, Prentice was an appointed public official, as that term is used in LSA-R.S. 42:261(E). See Hall v. City of Shreveport, 157 La. 589, 102 So. 680 (1925); State v. Dark, 195 La. 139, 196 So. 47 (1940); Jones v. Anderson, 277 So.2d 697 (La.App. 2 Cir. 1973); Foshee v. Longino, 236 So.2d 870 (La.App. 3 Cir. 1970); Houston v. Brown, 292 So.2d 911 (La.App. 2 Cir. 1974). The suit which Mrs. McGowen filed against him, claiming damages for defamation, was based on a matter which arose out of the performance of the duties of his office as principal of the Jeanerette Senior High School. Mrs. McGowen was unsuccessful in her demands. Under those circumstances we think Prentice is entitled to recover the expenses he incurred for attorney’s fees in defense of that suit.

Defendants contend, however, that no formal contract was entered into between Prentice and his counsel as to the amount which would be owed as attorney’s fees, that no expert testimony was introduced to establish what a “reasonable fee” would be for handling the defense of the defamation suit, and that the evidence fails to support the award which was made by the trial court. They argue that under those circumstances the court erred in awarding plaintiff any attorney’s fees at all.

The evidence in the instant suit shows that no formal contract was entered into between plaintiff and his counsel as to the amount of the attorney’s fees which would be owed for defending Prentice in the defamation suit. The latter’s attorney testified, however, as to the nature and extent of the legal services which he rendered in defending that suit, and the entire record of the defamation suit was filed in evidence in the present action for attorney’s fees. The same district judge who presided over the trial of the defamation suit also presided at the trial of the instant suit.

When attorney’s fees are found to be due for legal services rendered, the court may fix the amount of those fees despite the fact that no formal agreement was entered into between the party and his counsel as to the amount of the fee, and even though no expert evidence was presented to show the value of the services rendered. When the nature and extent of the legal services are shown by the record, it is the duty of the court to bring to bear its knowledge of the value of the services of counsel and to fix the value of those services, even in the absence of expert testimony. James, Robinson, Felts and Starnes v. Powell, 303 So.2d 229 (La.App. 2 Cir. 1974); Grant v. Anderson, 331 So.2d 862 (La.App. 2 Cir. 1976); Sokol v. Bob McKinnon Chevrolet, Inc., 307 So.2d 404 (La.App. 4 Cir. 1975); Jones v. Bryant, 283 So.2d 307 (La.App. 4 Cir. 1973).

The nature and extent of the services rendered by counsel for Prentice in defending the defamation suit are shown in the instant proceedings. The trial judge did not err, therefore, in fixing the value of those services.

In the earlier suit, Mrs. McGowen sought to recover $250,000.00 from Prentice as damages for the alleged defamation. The suit was filed in July, 1974, and it was not concluded until the judgment we rendered on December 21, 1976, became final during the early part of 1977. Several interlocutory matters were disposed of before the case was tried on its merits, and the trial itself lasted three days. The record is voluminous, containing more than 600 pages of testimony. An appeal was taken and was argued before this court. Considering the amount claimed, the responsibility which rested on counsel, the nature of the work performed and the skill required, we conclude that the trial court did not err in fixing the attorney’s fees at the sum of $4,000.00.

Defendants point out that in the defamation suit Prentice filed a motion to compel Mrs. McGowen to post security for costs, and that in response to that motion the trial court ordered the claimant to file a bond in the amount of $2,050.00 as security for the costs. The McGowens argue that Prentice is barred from claiming attorney’s fees now, since hé did not seek to recover such fees in the original suit. They also argue that in any event plaintiff is estopped from recovering more than the amount of the cost bond which was furnished by Mrs. McGowen in the defamation suit. We find no merit to those arguments. The proceeding in the defamation suit, which resulted in a judgment ordering Mrs. McGowen to furnish a cost bond, did not have the effect of fixing or limiting the amount of attorney’s fees which Prentice could recover under LSA-R.S. 42:261(E). No law or jurisprudence has been pointed out to us, and we know of none, which bars plaintiff from maintaining a separate action for attorney’s fees under the above cited section of the Revised Statutes.

Defendants contend, finally, that a part of the attorney’s fees claimed by plaintiff were for prosecuting the instant suit, and they argue that no fees can be allowed under LSA-R.S. 42:261(E) for those services.

The record shows that on April 2, 1976, Prentice’s counsel presented a statement to him for legal services amounting to the total sum of $7,500.00, which included a charge of $5,025.00 for legal services rendered in defending the defamation suit, and a charge of $2,475.00 for services to be rendered in the instant suit.

The award of $4,000.00 made by the trial court is less than the amount which was shown in the above statement for services rendered for defending Prentice in the defamation suit, and we have found that there was no abuse of discretion in fixing the attorney’s fees at that amount for legal services rendered solely in connection with the defamation suit. There is no merit to defendants’ argument that the award must be rescinded or reduced simply because plaintiff demanded in this suit more than he may be entitled to recover.

For the reasons assigned, the judgment appealed from is affirmed. The costs of this appeal are assessed to defendants-appellants.

AFFIRMED.