author: DOMENGEAUX, Judge.

text:
    Aleen L. YEUTTER et al., Plaintiffs and Appellants, v. Ralph L. LEWIS, Sr., Defendant and Appellee.
    No. 5542.
    Court of Appeal of Louisiana, Third Circuit.
    July 6, 1976.
    Henry A. Bernard, Jr., New Iberia, for plaintiff s-appellants.
    Daniel L. Regard, New Iberia, for defendant-appellee.
    Before MILLER, DOMENGEAUX, and PAVY, JJ.
   DOMENGEAUX, Judge.

Plaintiff-appellant, Aleen L. Yeutter, brought this action against defendant-ap-pellee, Ralph L. Lewis, Sr., to recover damages for an alleged breach of contract. After a trial on the merits the District Judge dismissed the plaintiffs suit without prejudice. Plaintiff has appealed. We affirm.

Defendant was hired by plaintiff some time in 1971 to do certain roofing repair work on the latter’s plantation home known as “Justine” in Iberia Parish. Defendant allegedly completed his task and was paid the sum of $1,116.83 for the job. Shortly thereafter plaintiff’s roof developed a number of serious leaks, and the interior of the home suffered from considerable water damage. Defendant attempted to repair the leaking roof on several occasions but was unsuccessful, and this litigation ensued.

At the trial on the merits, plaintiff presented the testimony of Paul Dartez, a general contractor, who determined that the cost of repairing the interior water damage to the home was approximately $3,300.48. The witness spoke from memory and produced no work sheets or data to support his estimate. He merely stated that after viewing the interior of “Justine” he found that he could do the repair job for approximately 25 cents per square foot and on that basis arrived at the abovemen-tioned figure. When queried by the trial judge concerning his method of computation the witness candidly admitted that he had not prepared the estimate with the contemplation of being called upon to verify its accuracy and method in court.

Mr. Dartez also testified that, in his opinion, the repairs to the roof would cost approximately $485.00. However, he also stated that he was not a roofing contractor and that said amount did not represent a definite price. He further testified that he had no actual knowledge as to the extent of roof damage as in fact he never got onto the roof but rather produced a rough estimate while standing on the ground.

L. E. Greer, who was accepted by the court as an expert appraiser, testified for the defendant. Mr. Greer stated that in his opinion the interior work could have been done for approximately 20 cents per square foot. However the witness conceded that he had never been to “Justine” and had only seen photographs of some of the interior damage to the house.

After the termination of the trial, the District Judge issued an order to the attorneys for both parties stating that although he determined that the interior damage to the house and the leaks in the roof were caused by the defendant’s faulty work, he found the evidence insufficient to adequately establish the extent of the damages suffered by plaintiff. He therefore ordered that the evidence be reopened and that both parties submit additional proof concerning the cost of repair to the roof and interior of the home. Thereafter, both attorneys filed a joint motion wherein they stated their intentions not to produce any further testimony and requested the trial judge to decide the case on the previously adduced evidence. The district judge dismissed the suit without prejudice stating, in his written reasons, that he could find no basis in the evidence upon which to determine the exact amount of damages to award plaintiff.

Plaintiff contends that the trial judge lacked authority to enter a judgment of non-suit and argues that the trial judge was presented with an adequate basis for determining quantum.

The decision to re-open a case for the production of further evidence after all parties have rested is within the sound discretion of the trial judge, and absent a clear abuse of discretion his decision must be sustained by an appellant court. See Clifford v. Recreation and Park Commission, 289 So.2d 373 (La.App. 1st Cir. 1973), writ refused 293 So.2d 168 (La.); Poche v. Frazier, 232 So.2d 851 (La.App. 4th Cir. 1970); Walker v. Joyner, 45 So.2d 113 (La.App. 2nd Cir. 1950).

A trial judge has a right, if in his opinion the ends of justice so require, to reopen a case to permit the further production of evidence by either party. Cali v. Cloverland Dairy Products Company, 21 So.2d 166 (La.App. 1st Cir. 1945).

Under the facts of this case, we do not find an abuse of the broad discretion afforded the trial judge in his decision to reopen the case for the production of additional evidence which he felt necessary to the determination of quantum.

A trial court is endowed with the inherent power to order a litigant to perform some action, procedural in nature, and upon noncompliance can dismiss the suit without prejudice. See Prejean v. Ortego, 262 So.2d 402 (La.App. 3rd Cir. 1972); Martin v. Garon, 172 So.2d 751 (La.App. 4th Cir. 1965); Bogan v. Byrom, 151 So.2d 718 (La.App. 3rd Cir. 1963); and Neal v. Hall, 28 So.2d 131 (La.App. 2nd Cir. 1946). See also, in the area of non-suit for failure to produce necessary evidence, the cases of Rapides Savings & Loan Association v. Lakeview Development Corp., 326 So.2d 511 (La.App. 3rd Cir. 1976); Aswell v. United States Fidelity & Guaranty Company, 244 So.2d 243 (La.App. 3rd Cir. 1971); and Arthur v. Dupuy 130 La. 782, 58 So. 570 (1912). See also LSA C.C.P. Arts. 1631, 1632.

Under the facts presented by this litigation we feel that the trial judge’s dismissal of the suit without prejudice because of the parties’ failure to comply with his order to produce additional evidence was within the broad discretion accorded him by the above cited authorities.

For the above and foregoing reasons the judgment of the district court is affirmed.

Costs of this appeal are assessed against the plaintiffs-appellants.

AFFIRMED.


source: Caselaw Access Project

author: BERTRAND, Judge.

license: Public Domain

text:
    Lenora G. HATHORN, Plaintiff-Appellee, v. CONTINENTAL BANKERS LIFE INSURANCE COMPANY OF THE SOUTH, Defendant-Appellant.
    No. 5530.
    Court of Appeal of Louisiana, Third Circuit.
    July 6, 1976.

      Gist, Methvin & Trimble by Alonzo P. Wilson, Alexandria, for defendant-appellant.
    Gravel, Roy & Burnes by Dan E. Melich-ar, Alexandria, for plaintiff-appellee.
    Before CULPEPPER, GUIDRY and BERTRAND, JJ.
   BERTRAND, Judge.

This suit arises out of a claim for benefits under a group hospitalization policy. The case was tried on a stipulation of facts. A certified copy of the insurance policy was introduced into evidence. The trial court rendered judgment in favor of plaintiff in the sum of $2,912.04, and defendant has appealed. We reverse.

On December 13, 1973, plaintiff’s husband, Alfred W. Hathorn, sustained injuries as a result of a gunshot wound incurred during the course of a robbery at his place of business. These injuries were incurred at a time when Mr. Hathorn was operating a business known as Hathorn’s Pecans, which business was owned and operated by Mr. Hathorn for profit. Mr. Hathorn was self-employed. His business was a seasonal business whereby he bought and sold pecans during the fall of the year in conjunction with the pecan harvest.

On the day in question, three (3) individuals walked into the store and told Mr. Hathorn that they had some pecans to sell and then informed him that they were going to hold him up and demanded that he give them his money. Mr. Hathorn refused to turn over his money and he was shot.' He later died on March 31, 1974 of causes unrelated to the accident.

Suit was brought by Mr. Hathorn’s widow and surviving children for benefits allegedly due under the group hospitalization policy issued by the defendant, Continental Bankers Life Insurance Company of the South, to the Rapides Parish School Board. This policy affords medical and hospitalization benefits to plaintiff, as an employee teacher of the School Board, for certain expenses incurred as a result of non-occupational bodily injury incurred by the plaintiff or members of her family.

The issue to be decided in this case is whether the medical and hospitalization expenses, which form the basis of this suit, were incurred as a result of a non-occupational bodily injury within the intendment of the coverage provisions of the policy.

In defining “non-occupational bodily injury,” the policy provides:

“The term ‘non-occupational bodily injury’ means an accidental bodily injury which does not arise out of, or in the course of, any employment or occupation for compensation or profit, and which is not caused or contributed to by, or as a consequence of, any injury which arises out of, or in the course of, any employment or occupation for compensation or profit.
Anything in the foregoing paragraph to the contrary not withstanding, an accidental bodily injury which arises out of, or in the course of, the employee’s employment with the policyholder, shall, for the purposes of insurance under the policy, be considered a ‘non-occupational bodily injury.’ ”

Under the section entitled, “Exclusions and Limitations,” paragraph 13 states:

“No Major Medical Expense Benefits will be payable for or in connection with (a) any charges which are not specifically included in the section entitled ‘Covered Charges,’ or (b) any charges
i{c ‡
13. for any medical case, services or supplies received or furnished in connection with, or as a result of (a) any bodily injury which arises out of, or in the course of, any employment or occupation (other than with the Policyholder) for compensation or profit, or (b) any sickness for which benefits are payable under any Workmen’s Compensation Law, occupational disease law or any other legislation of similar purpose.”

This policy language clearly and unambiguously precludes coverage for injuries which arise out of, or in the course of, any employment or occupation (other than with the Policyholder) for compensation or profit. Thusly stated, the issue resolves itself into the question of whether or not the injury complained of arises out of, or in the course of Mr. Hathorn’s employment.

Defendant argues that this question should be answered in its favor because of the following sentence from Paragraph IV of the stipulation:

“Mr. Hathorn was injured on the date in question while in the course of running his business known as Hathorn’s Pecans.”

We do not feel that this sentence taken from the narrative statement of facts should be used to decide the legal question of whether or not Mr. Hathorn was in the course of his employment within the intendment of the policy provisions.

We have examined the Louisiana cases cited by counsel for both plaintiff and defendant and do not find them dispositive of the issue before us.

In Johnson v. Northern Assurance Company of America, 193 So.2d 920 (La.App. 3rd Cir. 1967), a case relied on by plaintiff, the sole issue presented for the Court’s determination was whether a deputy sheriff is an “employee” within the meaning of the exclusionary clause contained in the policy. The clause on which the insurer relied provides as follows:

[No coverage is afforded by this policy] “Under division 1 of coverage C [medical payments provision], to bodily injury to or sickness, disease or death of any employee of the named insured or spouse arising out of and in the course of (1) * * *; (2) other employment by the named insured or spouse; * * * ”

In finding coverage, the Court stated:

“In our opinion, it is obvious that a clause in any automobile liability policy which withdraws medical payments coverage in case of bodily injury to, or sickness, disease or death of any employee of the named insured arising out of and in the course of his employment is designed to prevent multiple recovery of medical expenses by the employee under this type of policy, and the parallel provisions of our Workmen’s Compensation Law.”

The Court distinguished the case of Myers v. Fidelity & Casualty Co. of New York, 152 So.2d 96 (La.App. 3rd Cir. 1963), wherein coverage was denied, on the grounds that the plaintiff was protected by workmen’s compensation, whereas the plaintiff in Johnson was not. It is important to note that the court in both cases recognized a correlation between the exclusion clause in an automobile liability policy and coverage provisions of our Workmen’s Compensation Act, and decided the cover-erage question in the light of this correlation.

The reasoning used by the court in Johnson is inapplicable to the instant case because of a basic difference in the policy provisions at issue. In Johnson, no coverage is afforded, “to bodily injury to . any employee of the named insured or spouse arising out of and (emphasis ours) in the course of (1) . . .; (2) other employment by the named insured or spouse; . . This language clearly tracks the wording of the Workmen’s Compensation Act, LSA-R.S. 23:1031, and justifies the conclusion that the purpose of the exclusionary clause is designed to prevent multiple recovery.

In the instant case, the policy excludes benefits

“For any medical care, services or supplies received or furnished in connection with, or as a result of (a) any bodily injury which arises out of, or (emphasis ours) in the course of, any employment or occupation (other than with the Policyholder) for compensation or profit, or (b) any sickness for which benefits are payable under any Workmen’s Compensation Law, occupational disease law or any other legislation of similar purpose.”

There is no correlation between the Workmen’s Compensation Act and the language used here. On the contrary, the policy clearly envisions the situation of self-employed individuals who do not come under the Workmen’s Compensation Act. The insurer obviously intends that these individuals provide their own business coverage, or, in cases of no coverage, that the business bear the risk. Furthermore, unlike the policy provision in Johnson, the exclusion in the instant case is not written to prevent double recovery for an employee of the policyholder. In fact, it specifically allows double recovery if the bodily injury arises out of, or in the course of any employment or occupation with the Policyholder. For these reasons, the Johnson case is inapposite and its reasoning cannot be used to support plaintiff’s position.

The second case upon which plaintiff relies is Rankin v. New York Life Insurance Company, 240 So.2d 758 (La.App. 2d Cir. 1970), writ refused, 1971. This case is likewise inapplicable in that the policy language in Rankin was held to be 'ambiguous, and the disputed portion was construed against the insurer. The court stated:

“New York Life having failed to compose its hospital expense exclusionary provision in four separate subsections, it becomes the duty of this court to determine if the clause is ambiguous and, if so, to interpret it in a manner consonant with the provision of La.C.C. Art. 1957, supra. We conclude that, if intended to be considered as two exclusions, the condition designated (c) is ambiguous. Therefore, we construe the disputed portion to mean the insured dependent is entitled to hospital benefits unless her confinement is due to accidental injury or sickness arising out of or in the course of her employment, for which she would be entitled to benefits under a Workmen’s Compensation Act or similar legislation.”

The exclusion in the instant case is clear and unambiguous under the test set forth in Rankin, because each subsection of the exclusion is clearly designated as such. Furthermore, there is no logical way to read the exclusion in the instant case as excluding coverage only if the plaintiff is entitled to benefits under the Act.

Plaintiff additionally argues that the liberal construction placed on the terms “arising out of” and “in the course of” in workmen’s compensation cases should not be used to defeat coverage in the instant case. The reasoning behind this argument is that the liberal construction implements a public policy that seeks to compensate persons injured in hazardous occupations and these terms are so construed as to favor payment to the injured party.

In its written reasons, the trial court applied this reasoning and concluded that plaintiff’s injury did not arise out of or in the course of 'his employment.

In Manuel v. Liberty Mutual Insurance Company, 256 La. 480, 236 So.2d 807 (1970), the Supreme Court faced the problem created by the narrow interpretation given to the phrase “in the course of his employment” in tort actions as opposed to the liberal interpretation given to this phrase in workmen’s compensation cases. This case involved an interpretation of the phrase, “in the course of” as used in an exclusionary clause in an automobile liability policy. The Court of Appeal had ruled that the liberal interpretation afforded the phrase in compensation cases was not controlling and found coverage. The Supreme Court reversed and stated as follows:

“Our research of the matter, however, reveals that there are some cases which do hold that in tort actions, where the issue is whether an alleged tort feasor is in the course of 'his employment, the same considerations are not given to holdings involving the same issue in compensation suits, because a stricter rule applies in tort action. But those decisions were rendered in suits by third parties against the employer of the tort feasor, and recovery depended on the application of the doctrine of respondeat superior. Even so, there are cases in the jurisprudence to the contrary.”

In a footnote in the case of LeBrane v. Lewis, 292 So.2d 216 (La.1974), Justice Tate pointed out that the increasing trend is to employ the same test in tort and workmen’s compensation cases. In the recent case of Spain v. Travelers Insurance Company, 332 So.2d 827 (La.1976), the Supreme Court followed its previous decision in Manuel v. Liberty Mutual Insurance Company, supra, and held that the same test should be used in construing liability policies as is used in workmen’s compensation cases. Such pronouncements by our Supreme Court led us to the conclusion that the notion of separate tests should not be relied on to decide the instant case.

It is important to reiterate that the policy provision in the instant case requires only that the injuries arise out of or in the course of any employment or occupation. Louisiana jurisprudence recognizes that these terms are not synonymous. See Gorings v. Edwards, 222 So.2d 530 (La. App. 4th Cir. 1969), and cases cited therein, and Hall v. Joiner, 324 So.2d 884 (La. App. 3d Cir. 1975). It has long been recognized that the term “in the course of,” involves the time and place relationship between the risk and the employment, while the term “arising out of” concerns itself with an inquiry into the character or origin of the risk. This distinction has been recognized not only in workmen’s compensation cases, but also in tort cases. Wilmot v. Wilmot, 223 La. 221, 65 So.2d 321 (1953); Williams v. Shreveport Yellow Cab Co., Inc., 183 So. 120 (La.App. 2nd Cir. 1938); LeBrane v. Lewis, supra.

While we have been unable to find any Louisiana case involving the exact policy language at issue in the instant case, the above discussed jurisprudence dealing with torts, workmen’s compensation, and automobile liability policies, offers guidelines in interpreting the phrase, “in the course of his employment.” In view of this jurisprudence, we have little difficulty in finding that the plaintiff in the instant case was injured “in the course of” his employment or occupation. Mr. Hathorn was shot at his place of business, during his working hours, and while actually operating his business.

Having determined that Mr. Hathorn’s injuries were incurred while in the course of 'his employment or occupation, it is unnecessary to decide whether his injuries “arose out of” his occupation. However, it is our opinion that even if the word “or” were construed to mean that “in the course of” is the equivalent of, or explanatory of, “arises out of,” the exclusion would nonetheless preclude coverage. This view is supported by the reasoning of the court in Manuel v. Liberty Mutual Insurance Company, supra; Spain v. Travelers Insurance Company, et al., supra, and somewhat by the reasoning of the court in LeDoux v. Travelers Insurance Company, 223 So.2d 684 (La.App. 4th Cir. 1969).

We conclude that under the clear and unambiguous terms of the policy, Mr. Ha-thorn did not incur hospitalization and medical expenses resulting from a “nonoccupational bodily injury” so as to bring him within the coverage provision of the policy in question.

For the reasons assigned, the judgment of the trial court is reversed, at appellee’s cost.

REVERSED AND RENDERED.


author: GUIDRY, Judge.

text:
    Bobby Lee CARROLL, Plaintiff-Appellant, v. Frank TERRAL, Defendant-Appellee.
    No. 5500.
    Court of Appeal of Louisiana, Third Circuit.
    July 6, 1976.
    William Henry Sanders, Jena, and Kap-lan & Rivers by Edward A. Kaplan, Alexandria, for plaintiff-appellant.
    Gist, Methvin & Trimble by DeWitt T. Methvin, Jr., Alexandria, for defendant-appellee.
    Before CULPEPPER, GUIDRY and BERTRAND, JJ.
   GUIDRY, Judge.

Plaintiff, Bobby Lee Carroll, instituted this action against Frank Terral, defendant, for workman’s compensation benefits as a result of an injury he allegedly sustained in the course and scope of his employment on July 22, 1974. At the time of his alleged injury plaintiff was working with his uncle, Eugene Pippins, who was producing pulpwood for the defendant, Frank Terral.

Plaintiff appeals from the trial court judgment dismissing his claim for workmen’s compensation benefits.

Plaintiff contends that the trial court erred in failing to find that his injury of July 22, 1974 was unrelated and distinguishable from the work connected injury he sustained on November 25, 1971 and for which he received total and permanent workmen’s compensation disability benefits. The trial court found that the plaintiff sustained no new injury to his shoulder on July 22, 1974. The trial court did determine that the plaintiff was suffering from a cervical disc problem, however, denied recovery finding that the disc problem began before July 22, 1974, the date of plaintiff’s alleged injury while in the employ of Frank Terral, defendant.

The claimant in this matter, Bobby Lee Carroll, was previously injured on November 25, 1971 and as a result thereof received an award for total and permanent workman’s compensation benefits in litigation previously before this court. Bobby Carroll v. Southern Casualty Insurance Company, 285 So.2d 370 (La.App. 3rd Cir., 1973), writ denied 288 So.2d 356 (La.1974). In the cited case the plaintiff herein, Bobby Carroll, sued for workman’s compensation benefits, alleging that he had sustained a shoulder injury. In Carroll, supra, this court in reviewing the medical evidence concerning plaintiff’s injury and in concluding in regard to its permanent nature stated as follows, pgs., 371, 372, 373, 375:

“On December 1, 1971, plaintiff was examined and treated by Dr. I. C. Turn-ley, Jr., a general practitioner of Jena. Doctor Turnley found swelling and tenderness in the right shoulder joint and was of the opinion that plaintiff had a possible separation of the acromio-clavicular joint . . .
Doctor Turnley immediately referred plaintiff to Dr. T. E. Banks, an ortho-paedic specialist of Alexandria, whom he saw on the same day. Doctor Banks’ examination confirmed Doctor Turnley’s diagnosis and plaintiff was admitted to the hospital the following day. On December 10 an operation was performed to stabilize the shoulder joint so as to allow the ligaments to heal .
Plaintiff was again seen by Doctor Banks on August 2, 1972. Plaintiff complained to the orthopaedist of burning and aching sensation, after a period of labor, in the scapula region behind the shoulder, rather than the site of the injury. The doctor found tenderness in this area and was of the opinion that the transverse scapula nerve was irritated .
Doctor Turney also re-examined plaintiff on May 7, 1972, (sic) the day of trial.
At that time, when asked for an opinion as to plaintiff’s present condition, he explained:
‘Following a separation of the acromio-clavicular joint and following its healing, very often we find- — I shouldn’t say very often — occasionally we find residual effects in the shoulder joint caused by disuse and effects from the injury itself, trauma to the joint capsule and so forth, which causes a swelling of the synovial tissue, this is the lining of this joint and the bursa surrounding it. This synovial tissue, being very sensitive, is often frequently the cause and origin of subsequent pain. It will make the shoulder joint, or that particular area, more sensitive to trauma, it will make it more sensitive to excess use, and many other things, all of which are relatively minor, but they are noticeable and they cannot be ignored when they do occur. Now, this man developed what we call tendonitis following this episode, which is nothing more than just an inflammatory process at the attachment of the tendons around this acromioclavicular joint. And this will cause pain and increased sensation and some swelling of the joint and so forth, for an indefinite period of time. Now we can immobilize his shoulder and it will get better, but when he starts using it again it will reoccur. For a period of time, and I don’t know how long, maybe a year, maybe two years, maybe ten years’ ” (emphasis mine)
“Each case must rest upon its own facts. In the instant case it is evident from the medical evidence as well as from plaintiff’s own testimony that as a result of pain he is unable to fulfill the functions of his former job. Plaintiff can no longer place the large pulpwood logs on his shoulder, nor can he use a saw without considerable pain. Prior to the accident, he customarily perform-these duties and other heavy labor requiring the use of his shoulder. The record further indicates that if plaintiff continues his former work on a regular basis it would likely be deleterious to his health and recovery.”
“The trial judge concluded:
‘ . . . [the pulpwood field] . . . calls for more physical agility and movement and sheer hard work than most others .... I’m of the opinion that this man cannot do the work that he was doing before without pain or without his arm swelling up, and Dr. Turnley testified that he felt that the man’s complaints were genuine.any time this man puts in a full day’s work without help, his arm swells up and he has considerable amount of pain. Now, under the circumstances then, he has been able to work doing something radically different; as I see it, handling tongs around pulpwood is really quite a bit different because handling a saw is very difficult, much more difficult than carrying a set of tongs and attaching them to a tree, allowing somebody else to turn on the machine and drag the wood out.
So I am of the opinion that he can’t work without the aid of a helper. I am also of the opinion that continuation of employment of a nature that he did at the time he was hurt just prolongs his disability. Dr. Turnley said that continuation of this will aggravate it and that he is likely to continue to have this type of trouble any time that he goes back to work and tries to do so without help.’
We cannot say that the trial judge erred in arriving at that conclusion.”

In the instant matter plaintiff’s petition states that while carrying out routine duties, and while loading handwood, “petitioner’s shoulder swelled, became painful and became totally disabling, and he developed an acromioclavicular strain at (sic) a cervical disc syndrome . . . ”

The lay testimony substantiated the petitioner’s allegations as to the pain and swelling in his shoulder. Bobby Phillips, the plaintiff’s brother-in-law, who was cutting and stacking logs with the plaintiff on the day of the alleged injury remembered no accident involving plaintiff. Bobby Phillips did remember the plaintiff’s complaints in regard to the pain in his shoulder.

The plaintiff, who had just returned to Louisiana was working with the defendant in the pulpwood business only two days when the alleged injury occurred. Prior to this time and following his injury in November of 1971, plaintiff sporadically performed very strenuous jobs, including work for an oilfield drilling company and as a garbageman for the City of Monroe. In each instance he left such employment becoming unable to perform the work because of pain and swelling in his arm and neck. He at one point in time, moved to Dolphin, Alabama where he worked in a weaving factory for about three weeks. His duties there entailed carrying and lifting heavy spools of yam. Plaintiff testified that one reason he left this job was because of the pain he was experiencing in his shoulder and neck. Upon his return to Louisiana he was hired by his uncle Eugene Pippens, to help produce pulpwood for the defendant. After two days on the job, his shoulder and neck became swollen. On the second day, i. e., July 22, 1974 plaintiff quit and has not worked since.

Dr. Billy C. Nesbitt, a general practitioner, saw the plaintiff on July 23, 1974 the day after the alleged injury. His report on that date indicated that plaintiff had possibly sustained a reinjury of his right shoulder. The Doctor’s notes further reflected that there was some swelling in the plaintiff’s right arm. No other remarkable signs were noted. No examination of the neck was made.

On August 6, 1974, Dr. C. W. Lowery, an orthopaedic surgeon, examined plaintiff. The Doctor found that plaintiff’s complaints were related to the continued swelling of his shoulder and arm which condition related to his prior injury. The Doctor found that plaintiff was suffering from an acromioclaovicular strain as a result of the old injury.

The plaintiff next saw Dr. T. E. Banks, an orthopaedic surgeon,, who had treated him for his injury in 1971. The examination on August 30, 1974 revealed acute tenderness on posterior oblique bending of the neck, with slight tenderness in the acromioclavicular joint. Dr. Banks also noted swelling in the arms, and based upon these findings diagnosed a possible cervical disc injury. The plaintiff was hospitalized for 48 hours. Traction and medication helped alleviate the pain. Dr. Banks stated that the pain from the transverse scapula nerve, with which the plaintiff had had problems since August 1972, could be the same nerve root that would cause pain from the neck and down the right arm.

Dr. Nesbitt again examined plaintiff on March 28, 1975. At this time the doctor noted swelling in the right shoulder and arm, diagnosing a possible cervical strain and right shoulder strain. The evidence in this regard shows that the plaintiff was engaged in a personal activity involving strenuous physical labor the day before. Plaintiff admitted to the use of a heavy hammer on March 27, 1975 and that immediately afterwards his shoulder flared up again.

The medical testimony in Carroll, supra, predicted that plaintiff’s persistence in performing heavy manual labor would result in a reoccurrence of pain and swelling in the acromioclavicular joint. In the earlier case Dr. Turnley opined that such symptoms of pain and swelling would reoccur when heavy labor was performed for “maybe a year, maybe two years, maybe ten years.” The record in this matter reveals the accuracy of that prediction. We agree with the trial court that plaintiff suffered no new injury on July 22, 1974, rather his difficulty arose as a result of his inability to perform the type of work in which he was then engaged because of the old injury of November 25, 1971.

We entertain serious doubt as to the trial judge’s conclusion that plaintiff suffers from a cervical disc problem. There is no medical evidence which would support this conclusion other than the suggestion by Dr. T. E. Banks of the “possibility” that plaintiff has such a problem. In any event, we do agree that the trial court could reasonably conclude from the record that if plaintiff does suffer from a cervical disc syndrome such condition existed prior to his employment with the defendant.

Under the provisions of our Workmen’s Compensation Act an employee is entitled to benefits only if he receives personal injury by accident arising in the course of his employment.

We 'conclude as did the trial court that plaintiff has not borne his burden of proving that any present disability from which he suffers was caused by an accident in the course of his employment with the defendant.

For the above and foregoing reasons the judgment appealed is affirmed. All costs of this appeal are assessed to the plaintiff-appellant.

AFFIRMED.

      . The day of the trial was May 7, 1973 not May 7, 1972 as indicated.

      . Should be and rather than at.


author: HOOD, Judge.

text:
    Marie Ney MADDOX, Plaitniff-Appellant, v. Cornelia Ney VANLANGENDONCK et al., Defendants-Appellees.
    No. 5458.
    Court of Appeal of Louisiana, Third Circuit.
    July 6, 1976.
    Gist, Methvin & Trimble by DeWitt T. Methvin, Jr., Alexandria, for plaintiff-appellant.
    Bolen, Halcomb, Bolton & Erwin by Frank R. Bolton, Jr., Richard E. Chaudoir, Alexandria, for defendants-appellees.
    Before HOOD, CULPEPPER and PAVY, JJ.
   HOOD, Judge.

Mrs. Marie Ney Maddox instituted this suit against her daughter, Mrs. Cornelia Ney Maddox Vanlangendonck, for a declaratory judgment decreeing plaintiff to be the owner of a tract of land in the City of Alexandria, Louisiana. Judgment was rendered by the trial court rejecting plaintiff’s demands and dismissing the suit. Plaintiff appealed.

The issues presented are (1) whether plaintiff has acquired title to the subject property by acquisitive prescription of 30 years; and (2) alternatively, whether the purported sale of that property to defendant, Mrs. Vanlangendonck, constituted a donation omnium bororum, which is null under the provisions of LSA-C.C. art. 1497.

The property involved in this suit comprises 1.279 acres. It has a frontage of 137.5 feet on the north side of MacArthur Drive, the east line of the property extending to a depth of 300.4 feet along Betty Street, its west line extending to a depth of 315.6 feet from MacArthur Drive, and the north line of the property being 136.65 feet long.

Plaintiff was born in 1891, and she thus was 84 or 85 years of age at the time of the trial. She was married to the late Robert G. Maddox, and of that marriage seven children were born, one of whom is Bettie Maddox (now Mrs. Bettie Maddox Texada), and another is defendant, Mrs. Vanlangendonck.

In December, 1941, Mr. and Mrs. Maddox began constructing a house on the above property, and they moved into that house with their youngest son later that month. They lived together on that property until the death of Mr. Maddox on October 12, 1943. Mrs. Maddox has continued to live on the property since her husband’s death, except for a period of about one month when she rented the house to a tenant.

Shortly before plaintiff and her husband moved on the property, Mr. Maddox entered into a verbal agreement with Sireno E. Bowers, in which Maddox agreed to purchase from Bowers a tract of land containing more than seven acres in the City of Alexandria, having a frontage of about 300 feet on U. S. Highway 71 (now MacArthur Drive) by a depth of about 1108 feet. The land affected by that verbal agreement included the property which is in dispute here. On December 23, 1941, Bowers entered into a written contract with Bettie Maddox, one of plaintiff’s daughters, under the terms of which Bowers agreed to sell to Bettie Maddox, and the latter agreed to buy, a part of the land which Bowers previously had verbally agreed to sell to Mr. Maddox. In that agreement Bettie Maddox agreed to make payments monthly to apply on the purchase price and Bowers agreed to deliver to her a warranty deed for the property upon payment of the full price. We consider that agreement to be a “bond for deed contract.” See LSA-R.S. 9:2941. After it was entered into, numerous payments were made on the purchase price of the property.

Bettie Maddox (now Mrs. Texada) testified that she entered into the bond for deed contract with Bowers at the request of her father, because Mr. Maddox owed some debts and he was afraid that his creditors might attempt to execute on the property if title was vested in his name.

The record does not contain all of the deeds or written contracts which were executed relating to the property Mr. Maddox agreed to purchase from Bowers, although it does contain those which are essential for a disposition of this case. The evidence makes it clear, however, that Bowers and Bettie Maddox entered into written agreements providing that Bowers would sell all of that property to Bettie Maddox, that the agreed purchase price was paid to Bowers and that the latter executed several deeds conveying that property to defendant, Mrs. Vanlangendonck, instead of to Bettie Maddox. We find that after the agreed purchase price was paid to Bowers, the interested parties decided that it would be advisable to vest title in Mrs. Vanlan-gendonck, instead of in Bettie Maddox, because they feared that the latter’s first husband, Mr. Merritt, from whom she was then divorced, might claim on interest in the property. It is for that reason that Bowers conveyed title to Mrs. Vanlangen-donck instead of to Bettie Maddox.

On May 20, 1942, Bowers executed a deed conveying to Mrs. Vanlangendonck a strip of land having a frontage of 50 feet on U. S. Highway 71, being a part of the property which he had orally agreed to sell to Maddox. The sale was made on credit, and the purchaser, Mrs. Vanlangendonck, executed five promissory notes evidencing the balance due on the purchase price, together with a vendor’s lien affecting the property to secure the payment of those notes.

By warranty deed dated October 11, 1943, Bowers sold and conveyed to Mrs. Vanlangendonck two additional strips of land, being the remainder of the property which Maddox had agreed to purchase from him. Bettie Maddox, who by that time had remarried and was then the wife of James R. Texada, also joined Bowers in executing the last mentioned act of sale as a vendor. The deed recites that Bettie Maddox “owned an interest in the property . . . before her marriage to James R. Texada, the property being in the name of Bettie Maddox,” and as a part of the description of the property therein conveyed the deed states:

“Both tracts of land being a part of the property Sireno E. Bowers contracted to sell to Bettie Maddox before her marriage to James R. Texada, dated December 18, 1941, and now being a part of the Maddox subdivision extension as surveyed, platted and recorded in the Records of Rapides parish, Louisiana by L. J. Daigre, parish surveyor.”

The property conveyed to Mrs. Vanlan-gendonck by the above mentioned deeds, dated May 20, 1942, and October 11, 1943, constituted the western part of the land which Maddox had originally agreed to purchase from Bowers, and it included all of the property which is in dispute in this suit.

Early in 1942, Mr. Maddox engaged L. J. Daigre, a surveyor, to subdivide a part of the property which he had agreed orally to purchase from Bowers. A plat of survey subdividing the eastern part of that property into 16 numbered lots and two unnumbered lots was completed on April 21, 1942, and it was filed for record on May 15, 1942. Betty Street was shown on that survey, and the plat constituted a dedication of that street. On May 12, 1942, the Police Jury of Rapides Parish adopted a resolution abandoning an existing road which ran through a part of the proposed subdivision in favor of Betty Street.

Mr. Maddox later engaged the same surveyor to subdivide the remainder of the property which he had agreed orally to buy from Bowers. Another plat of survey was completed by Mr. Daigre in September, 1943, subdividing all of the property which Maddox originally had agreed to buy from Bowers, including the eastern part which had previously been surveyed. The subdivision is identified in that plat as the “Maddox Subdivision Extension.” The plat subdivides the property lying east of Betty Street into 17 numbered lots and one unnumbered lot, and it subdivides the property lying west of Betty Street into 14 numbered lots (numbered from 18 to 31) and one large unnumbered lot fronting on MacArthur Drive. The large unnumbered lot fronting on MacArthur Drive is the property which is at issue in the instant suit. As already noted, a part of that lot was conveyed to defendant by deed dated May 20, 1942, and the remainder of it was conveyed to her by deed dated October 11, 1943.

The evidence shows that Mr. and Mrs. Maddox lived on and possessed the property in dispute here from December, 1941, until the death of Mr. Maddox in 1943. During that time they built a house on the land, occupied it, repaired the building and had the property subdivided into lots. Mrs. Maddox continued to possess the property after her husband died, and she has lived on it continuously since that time, except for a brief period when she rented it to a third party. She has planted trees and shrubs on the land, has maintained the grounds, has repaired the house and has leased a small part of the property for the erection and maintenance of billboards. Neither Mrs. Vanlangendonck, nor anyone else, has lived on or possessed the property since Mr. and Mrs. Maddox moved on it in 1941.

A dispute arose between plaintiff and Mrs. Vanlangendonck as to the ownership of the property, and as a result of that dispute this suit was instituted on May 17, 1973. Plaintiff contends primarily that she has acquired ownership of the property by prescription of 30 years, under Article 3499 of the Louisiana Civil Code.

The trial judge concluded that the possession exercised by Mr. and Mrs. Maddox, or by either of them, over the subject property has been “precarious at all times,” that neither of said parties intended to possess the property as owner, and that the possession they exercised over the property was not adverse “to the acknowledged record title in defendant.” The trial judge also found that plaintiff at various times acknowledged that defendant was the owner of the property, and he held that those acknowledgments had the effect of interrupting the running of any prescription which may have begun in favor of plaintiff. Judgment thus was rendered by the trial court in favor of defendant, rejecting plaintiff’s demands and dismissing the suit.

We find no error in the conclusions which were reached by the trial judge.

The possession on which acquisitive prescription of 30 years is founded must be continuous and uninterrupted during all of the time, and it must be public and unequivocal and under the title of owner. LSA-C.C. art. 3500. The prescription of 30 years may apply even though the possessor is without any title, and whether he is in good faith or not. LSA-C.C. art. 3475.

A person who is in possession of immovable property is presumed to have possessed it as owner, unless it appears that his possession began in the name of and for another. LSA-C.C. art. 3488. When his possession commenced for another, however, there is a presumption that he continued always to possess under the same title, unless there be proof to the contrary. LSA-C.C. art. 3489.

Article 3520 of the Civil Code provides:

“Prescription ceases likewise to run whenever the debtor, or possessor, makes acknowledgment of the right of the person whose title they prescribed.”

In Foscue v. Mitchell, 190 La. 758, 182 So. 740 (1938), our Supreme Court said:

“The cases are uniform in holding that the possession must not only begin but also that it must continue as owner and adverse to the true owner.”
* . * * * * *
“The acknowledgment which constitutes an interruption that may defeat the adverse possessor’s claim of title is a factor separate and apart from the essential elements by which title may be acquired by adverse possession. The acknowledgment cannot be so restricted as to eliminate from the law one of the essential elements which must be established in order to acquire title by the mere possession for the time necessary to prescribe. Article 3520 of the Civil Code merely established a means to prevent what might otherwise be the effect of such possession. The acknowledgment may be sufficiently broad to evidence the intent of the possessor no longer to possess as owner, or to show that his original intent was not to possess as owner. But this is not essential. The intention of the possessor not to possess as owner or his acknowledgment of title in another may be shown, and the effect of either is sufficient to defeat the claim of ownership by prescription . . .”

The evidence in this case shows that neither Mrs. Maddox, nor her late husband, ever had any indicia of ownership, and neither of them ever claimed to be owners of the land in dispute here. Mr. Maddox, by entering into an oral agreement to purchase the property from Bowers in 1941, acknowledged that Bowers was the owner of that property when he and plaintiff first began to possess it. Although that oral agreement was not enforceable as a bond for deed contract, it nevertheless constituted an acknowledgment by Mr. Maddox that he was not the owner of that property, and that he was possessing for another. The possession exercised by Mr. and Mrs. Maddox thus was precarious at the outset, since both of them acknowledged that the land was owned by someone else. They obviously went into possession of the property by sufferance or with permission of the owner.

Plaintiff argues that the purchaser under a bond for deed contract has the same right to possess the property as does the purchaser under a sale and mortgage contract, and that the possession exercised by Mr. and Mrs. Maddox after the first bond for deed contract was executed thus was not precarious. We do not agree.

LSA-R.S. 9:2941 defines a “bond for deed” as a “contract to sell real property, in which the purchase price is to be paid by the buyer to the seller in installments and in which the seller after payment of a stipulated sum agrees to deliver title to the buyer.” That definition makes it clear that the buyer does not become the owner of the property until title has been delivered to him by the seller. The possession exercised by the buyer under a bond for deed contract prior to delivery of title, therefore, is at the sufferance of the seller, and his possession thus is precarious.

Since the possession of Mr. and Mrs. Maddox commenced for another, that is, at the sufferance or with the permission of the acknowledged owner, Bowers, it is presumed to have continued under that same title, unless there be proof to the contrary. LSA-C.C. art. 3489.

It is argued that even if plaintiff’s possession was precarious at the outset, that circumstance ended on May 20, 1942, when a part of the subject property was conveyed to Mrs. Vanlangendonck. We find, however, that Mr. and Mrs. Maddox acknowledged that defendant was the owner of the subject property after Bowers conveyed it to her by the deeds dated May 20, 1942, and October 11, 1943. Their possession thus continued to be precarious after those dates.

On February 6, 1943, Mrs. Vanlangen-donck executed a deed conveying to the Louisiana Department of Highways a right-of-way for the construction of the Alexandria By-pass Highway. The property affected by that right-of-way deed was a part of the land which she had acquired from Bowers, and it was a part of the lot on which plaintiff and her husband were residing. Mr. Maddox was living at that time, and he signed that right-of-way deed as a witness. The granting of the right-of-way also made it necessary for Maddox to move the house in which he was living from its original location and to dig another well, all of which was done by him without protest. By witnessing that right-of-way deed, he acknowledged that the land was owned by defendant, Mrs. V anlangendonck.

On November 25, 1943, Mrs. Vanlangen-donck executed a “bond for deed contract” with Harry Vaughan, under the terms of which she agreed to sell to Vaughan Lot 25 of the Maddox Subdivision Extension upon payment of the agreed purchase price. Mr. Maddox was deceased when that agreement was entered into, but plaintiff, Mrs. Maddox, signed that contract as a witness. By doing so, she acknowledged that Mrs. Vanlangendonck owned the lot. The evidence shows that Mrs. Vanlangendonck executed a deed conveying that lot to Vaughan on February 21, 1944.

Although Lot 25 of the above subdivision is not at issue in this suit, Mrs. Van-langendonck acquired that lot by the same acts of sale which conveyed to her the property which is in dispute here. We think plaintiff’s acknowledgment that defendant was the owner of Lot 25 constituted an acknowledgment that she also owned the other property which was conveyed by the same acts of sale, including the subject property.

The evidence also shows that a meeting of the members of the Maddox family was convened a few years before this suit was filed for the purpose of trying to persuade Mrs. Vanlangendonck to convey to Mrs. Maddox the tract of land on which the latter resided. We cannot determine the exact date on which that meeting was held, but the record shows that it was held in defendant’s home, and that defendant’s husband, Fred J. Vanlangendonck, was present. Mr. Vanlangendonck died on February 17, 1970, so the family meeting obviously was held sometime before that date. Mr. and Mrs. Vanlangendonck, Mrs. Maddox and several of Mrs. Maddox’s other children were present. At that meeting Mrs. Maddox requested that defendant execute a deed conveying the property to her. Her verbal request that that be done at that time also constituted an acknowledgment by Mrs. Maddox of the fact that the property was owned by defendant.

After the property had been subdivided and sold to Mrs. Vanlangendonck, the latter executed a number of deeds selling lots to various purchasers. She testified that the amounts which she received for the sale of the lots were turned over to her father prior to his death, and thereafter to her mother, and that those funds were used to pay on the purchase price of the property which had been acquired from Bowers. The evidence shows that defendant paid the city taxes on the subject property from the time it was included in the city limits in 1958, until 1974, and that those taxes were paid from her own funds, or from funds belonging to her husband. She also paid the assessment imposed on the property for the paving of Betty Street. Mrs. Maddox knew that defendant was selling the lots and was paying the taxes and the paving lien due on the property. She did not contribute to the payment of the taxes or the paving assessment.

The evidence thus is convincing that plaintiff has never claimed to be the owner of the property, and that she has consistently recognized that defendant was and is the owner of the property which she has possessed.

Plaintiff points out that the subject property has been assessed to Mrs. Van-langendonck since 1943, and that for many years the latter signed applications for homestead exemptions in behalf of her mother relative to this property, certifying in effect that her mother was the owner of and resided on the property. She argues that the signing of these applications constituted an acknowledgment by defendant that Mrs. Maddox was the owner of the property. We do not agree. The signing of those applications for homestead exemptions did not have the effect of transferring title to Mrs. Maddox, and the fact that they were signed does not establish that plaintiff possessed the property as owner since 1943.

On September 25, 1973, which was shortly after the instant suit was filed, Mrs. Vanlangendonck instituted an eviction proceeding against her mother, Mrs. Maddox, seeking to evict her from the subject property. That proceeding apparently is still pending in the Ninth Judicial District Court, Rapides Parish, Louisiana.

We conclude, as did the trial judge, that Mrs. Maddox has not possessed the subject property as owner, and that her possession thus has not been sufficient to entitle her to ownership of the property by acquisitive prescription of thirty years.

Although counsel have not raised the issue, we wish to point out that we have given effect to the role of possession in this action for declaratory judgment where the ownership of immovable property has been decided. LSA-C.C.P. art. 3654 provides that where the issue of ownership of immovable property is presented in an action for declaratory judgment, the court shall render judgment in favor of the party: “(1) Who would be entitled to the possession of the immovable property or real right in a possessory action, unless the adverse party makes out his title thereto; or (2) who proves better title to the immovable property or real right, when neither party would be entitled to the possession of the immovable property or real right in a possessory action.” In the present case, plaintiff, Mrs. Maddox, was still living on the property and had possessed it for many years at the time this suit was filed in 1973. However, LSA-C.C.P. art. 3660 provides that a person is in possession of immovable property within the intendment of the real actions, only where he “possesses for himself.” Mrs. Maddox did not possess for herself. She possessed for the defendant, Mrs. Vanlangendonck. Therefore, plaintiff is not entitled to judgment under LSA-C.C.P. art. 3654(1), even though the adverse party, Mrs. Vanlangendonck, has not made out her title to the property whose ownership is at issue in these proceedings.

Plaintiff also contends that the two acts of sale from Bowers to Mrs. Vanlan-gendonck, dated May 20, 1942, and October 11, 1943, constituted donations inter vivos from Mr. Maddox to defendant. She takes the position that those donations divested Mr. Maddox, as the donor, of all of his property, and that the donations thus are null. She relies on LSA-C.C. art. 1497, which provides:

“The donation inter vivos shall in no case divest the donor of all his property; he must reserve to himself enough for subsistence; if he does not do it, the donation is null for the whole.”

We find no merit to that argument. In the first place, the property was never owned by Mr. Maddox, and it thus could not have been donated by him. Second, the law provides that every act of donation of immovable property made during the lifetime of the donor must be in the form of an authentic act. See LSA-C.C. art. 1536. No authentic act was executed by Mr. Maddox purporting to transfer the subject property to Mrs. Vanlangendonck. Plaintiff has not sought in this action to have the deeds from Bowers to defendant reformed to show that the property actually was conveyed to Mr. Maddox, and even if that relief had been sought the evidence would not support such a demand. Third, the acts of sale from Bowers to Mrs. Van-langendonck cannot be considered as donations. In each instance the property was sold for a price, and the evidence shows that the price was paid. And, finally the evidence does not show that Mr. or Mrs. Maddox were divested of all of their property at the time the above deeds were executed conveying the property to Mrs. Van-langendonck.

Our conclusion is that the conveyance of a part of the subject property from Bowers to Mrs. Vanlangendonck on May 20, 1942, and the conveyance of the remainder of such property to defendant on October 11, 1943, were valid and were not void as being prohibited donations under LSA-C.C. art. 1497.

In our opinion there is no error in the judgment appealed from, and that judgment thus will be affirmed.

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

AFFIRMED.


text:
    Sibyl SHEPARD, Plaintiff-Appellant, v. James E. SHEPARD, Defendant-Appellee.
    No. 5497.
    Court of Appeal of Louisiana, Third Circuit.
    July 6, 1976.

      Allen, Gooch & Bourgeois by Arthur Robison, Lafayette, for plaintiff-appellant.
    Olivier & Brinkhaus by John L. Olivier, Sunset, for defendant-appellee.
    Before HOOD, WATSON and PETERS, JJ.
   HOOD, Judge.

Mrs. Sibyl Shepard instituted this suit seeking a separation from bed and board from her husband, James E. Shepard. Incidental to the suit, she prayed for alimony pendente lite. After a hearing on the rule for alimony, the trial judge rendered judgment ordering defendant to pay alimony pendente lite to plaintiff in the amount of $600.00 per month, plus the additional sum of $175.00 per month “when Sibyl Shepard does not reside in the last common dwelling.” Mrs. Shepard appealed, claiming that the amount of the award should be increased. Defendant answered the appeal, praying that it be reduced.

The sole issue presented is whether the amount awarded by the trial court as alimony pendente lite should be increased or reduced.

The applicable law is set out in LSA-C. C. art. 148, which provides:

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

In making an award for alimony pendente lite, the court must take into consideration the needs of the wife and the husband’s means. The actual needs for the maintenance and support of the wife must first be ascertained, and if the amount needed is proportionate to the husband’s means, that amount should be awarded. If her needs exceed the husband’s ability to pay then alimony pendente lite should be fixed at a sum which will as nearly as possible be just and fair to all parties involved. Small v. Small, 173 So.2d 854 (La.App. 4 Cir. 1965).

If the means of the husband are sufficient, the wife ordinarily is entitled to alimony pendente lite in an amount which is sufficient to maintain her in a standard of living comparable to that which she enjoyed prior to her separation from her husband, by reason of her husband’s means and position in the community. Nelson v. Nelson, 311 So.2d 268 (La.App. 1 Cir. 1974); Small v. Small, supra; Bernard v. Bernard, 300 So.2d 499 (La.App. 3 Cir. 1974).

The .fixing of the amount which the husband should be required to pay to his wife as alimony pendente lite is largely within the discretion of the trial judge, and his conclusions as to the amount of the award ordinarily will not be interfered with on appeal unless there has been a clear abuse of discretion. McMath v. Masters, 198 So.2d 734 (La.App. 3 Cir. 1967); Stansbury v. Stansbury, 258 So.2d 170 (La.App. 1 Cir. 1972).

The record in the instant suit shows that Mr. and Mrs. Shepard were married on September 17, 1972, and that immediately thereafter they established their home on a small farm which Mr. Shepard had purchased prior to his marriage. No children were born of that union.

The parties separated on March 19, 1975, and they have not lived together since that time. This suit was instituted on August 21, 1975, and a hearing was held on the rule for alimony on September 19, 1975. The trial court rendered judgment awarding her alimony pendente lite on September 29, 1975.

Mrs. Shepard continued to live on her husband’s farm, in the house they had occupied as their matrimonial domicile, from the time they separated until the date of the above hearing. The record shows, however, that judgment was rendered later in this suit ordering Mrs. Shepard to vacate the farm premises on or before November 1,1975.

Both parties agree that Mrs. Shepard vacated the farm on November 1, 1975, and that she now “does not reside in the last common dwelling.” Plaintiff thus is entitled to alimony pendente lite in the amount of $775.00 per month, under the judgment rendered by the trial court.

Plaintiff had been married previously, and children were born of that union. All of her children are grown, however, and none of them live with her. No one is dependent upon her for support. She owns some rental property which belongs to her separate estate, and she receives $360.00 per month as rentals from that property. Out of those receipts she makes monthly payments on a mortgage indebtedness due on that property, and she pays the expenses incurred for repairs, insurance and taxes. There is a dispute as to the amount she pays for repairs, insurance and taxes, but Mrs. Shepard concedes that she nets at least $110.00 per month from that rental property.

Plaintiff’s income, including the net return from her rental property and the alimony awarded by the trial court, thus amounts to $885.00 per month. She is not employed and she has no other income. The evidence shows that she owes no debts, other than the mortgage indebtedness due on her separate property, that she is in good health, and that she has no unusual expenses.

Mrs. Shepard lived with her husband on the latter’s farm during the entire time they lived together. They raised cows, horses and dogs on the farm, and that involved feeding those animals, repairing fenses, recovering stray cattle and treating them for diseases. They did not have a maid or any other employee, and they alone apparently did all the work which had to be done on that farm. Plaintiff testified that prior to their separation she and defendant took vacations and went on trips together, and that occasionally they ate out at restaurants, but that they would not do that often. After their separation, Mrs. Shepard continued to live alone on the farm. She testified that she took care of the animals, repaired the fences, kept up the insurance and maintained the farm property while she lived alone on that property, but that it has been necessary for her to employ someone to assist her in managing the farm.

Plaintiff submitted a list of her estimated monthly expenses for herself, and for the upkeep of her rental properties and her home. The expenses shown on that list amount to the total sum of $1,942.91 per month. She includes on that list estimated amounts she expects to pay on the mortgage indebtedness and for insurance., repairs and taxes due on her separate rental property, amounting to $255.60. We have already considered and allowed those expenses in determining that she has a net income of $110.00 per month from that property.

Plaintiff also lists as her anticipated monthly expenses some payments which relate solely to the operation of her husband’s farm. These include farm insurance, flood insurance, utilities, farm labor, animals, feed and upkeep of farm animals, upkeep of well and water softener, exterminator, and gas, oil, upkeep and insurance for pick-up truck. The items which relate solely to the operation of the farm amount to the aggregate sum of $415.31. Those expenses obviously will not be incurred by plaintiff now that she does not live on the farm and does not have the responsibility of managing it.

Plaintiff lists some other anticipated expenses which are questioned by defendant. She contends, for instance, that for her maintenance it will be necessary for her to incur the following expenses each month:

Apartment Rental $275.00

Food 220.00

Clothing 150.00

Beauty Shop 46.50

Cosmetics 13.00

Newspapers, magazine, books 25.20

Entertainment & recreation 100.00

Vacation 85.00

Federal Income Tax 150.00

Schatzie (plaintiff’s dog) 12.00

Plaintiff concedes that she merely estimated what her expenses would be for some of those items. The trial judge did not assign written reasons for his conclusions as to the award of alimony pendente lite, but we presume that he felt that some of plaintiff’s estimates were inflated. We find that the evidence does not support awards of the amounts claimed for several of the above items, and particularly her claim for apartment rental, food, clothing, entertainment, vacation and Federal Income Tax.

Defendant is employed as manager of a J. C. Penney Store in Lafayette. He is paid an annual salary of $20,880.00, and he receives a substantial bonus each year. His adjusted annual income from 1972 through 1974, according to his income tax returns, ranged from $44,085.14 to approximately $51,000.00 (excluding the sale of some Texas property in 1973) before the deduction of income taxes. We agree with plaintiff that defendant is able to pay more than was awarded by the trial court. The question presented, however, is whether plaintiff has established that she needs more than that amount for her maintenance.

Plaintiff has cited several cases to support her argument. Each of those cases, however, involved claims for the support of the wife and minor children, and only two of them involved awards which can be compared to the award made in this case. The claim in the instant suit, of course, is solely for the support of the wife, there being no minor children.

In Nelson v. Nelson, supra, cited by plaintiff, the husband’s means were substantially greater than are defendant’s means in this suit, and the wife was accustomed to a much more luxurious standard of living than plaintiff has shown here. In that case, for instance, the wife enjoyed a social secretary, a live-in housekeeper, two full-time servants, thoroughbred horses and memberships in social clubs. The First Circuit Court of Appeal affirmed an award to her of $750.00 per month as alimony pendente lite and $750.00 per month for child support.

Substantially the same circumstances as existed in Nelson, supra, were presented in Gardes v. Gardes, 249 So.2d 221 (La.App. 4 Cir. 1971), also cited by plaintiff. In that case the court awarded the wife $1,350.00 per month for the support of herself and their three children, ranging in ages from 15 to 19, each of whom attended a private school and had his own automobile.

After considering the facts presented here, the authorities cited and the arguments of counsel, we have concluded that the trial judge did not abuse the discretion vested in him in awarding plaintiff alimony pendente lite in the amount of $775.00 per month. We thus will not disturb that award.

For the reasons assigned, the judgment appealed from is affirmed. In view of the-provisions of LSA-C.C.P. art. 2164 and defendant’s obligation to support his wife pending this suit, the costs of this appeal are assessed to defendant-appellee.

AFFIRMED.


author: MILLER, Judge.

text:
    Joyce SMITH, Plaintiff-Appellant, v. LOUISIANA-PACIFIC CORPORATION, Defendant-Appellee.
    No. 5507.
    Court of Appeal of Louisiana, Third Circuit.
    July 6, 1976.

      Long & Peters by Jimmie C. Peters and Glenn T. Cambre, Jena, for plaintiff-appellant.
    Gaharan & Richey by L. W. Richey and Joseph Wilson, Jena, for defendant-ap-pellee.
    Before MILLER, DOMENGEAUX and PAVY, JJ.
   MILLER, Judge.

Plaintiff Joyce Smith appeals the dismissal of her claim for workmen’s compensation benefits allegedly due from her former employer, defendant Louisiana-Pacific Corporation. We affirm in part and reverse in part.

On December 10, 1974, while trying to free a strip of wood veneer from a drying machine, Smith sustained an injury to the tip of the middle finger of her left hand. She suffered a crush-type fracture of the end of that distal phalanx and a small portion of the tuft of her finger was pinched off. There was no displacement of the fractured tip of the finger. The loss of a portion of the tuft at the tip of her finger occurred at the time of the accident and was not related to the treatment.

Smith saw the treating physician sixteen times and on January 29, 1975 was discharged to return to full duty.

At her employer’s request and to prevent the accident from being listed as a “lost time” accident, Smith returned to work the day following the accident. She was unable to perform her usual work at the drying machine, but did utility work until she terminated her employment on January 13, 1975. She was paid at the hourly rate for drying machine operators rather than as a utility employee, and worked 72% of the available hours of employment from December 10, 1974 through January 13, 1975.

The medical testimony uniformly supports the trial court’s conclusion that as of January 29, 1975 Smith was able to return to work with no disability. Her hand grip and finger strength were not limited by the injury; there was no stiffness in the joints; Smith could feel and pick up items with security. The only residual problems found by her physician were an increased sensation in the tip of the injured finger and complaints of pain each time the finger was struck. She generally complained of pain in the finger and testified she had particular pain when she washed her hair.

Two issues are presented on appeal: 1) Did Smith suffer a permanent impairment and loss of a physical function as contemplated by LSA-R.S. 23:1221 (4) (o) and/or (p) ? 2) Is Smith entitled to workmen’s compensation benefits from December 10, 1974 until January 29, 1975, the date she had fully recovered from her injury?

There is no manifest error in the trial court’s rejection of Smith’s claim insofar as it was based on the alleged impairment of a physical function. Smith’s medical testimony supported the trial court finding that there was no serious impairment of her finger or hand. On that basis we distinguish Babineaux v. Great American Insurance Company, 245 La. 718, 160 So.2d 591 (1964), and Curry v. Vanantwerpen, 278 So.2d 793 (La.App. 3 Cir. 1973). As noted in Breaux v. Kaplan Rice Mill, Inc., 280 So.2d 923 at 925 (La.App. 3 Cir. 1973):

Applicable here is the rule that a claimant will not be held to be disabled within the meaning of the Workmen’s Compensation Act solely because he suffers some residual pain and discomfort when he attempts to work following a work-connected accident. The residual pain or discomfort in such a circumstance will be considered as being disabling only if it is substantial or appreciable pain.

With respect to the second issue, Louisiana-Pacific does not contend Smith was not entitled to compensation from December 10, 1974 until January 29, 1975. Instead it contends that wages paid to Smith after December 10, 1974 were paid in lieu of workmen’s compensation; that the wages paid were not “truly earned” because she returned to light duty to avoid reporting a “lost time” accident; and that she was performing lesser duties for the same hourly rate paid to drying machine operators. The hourly rate for utility employees does not appear in the record, but she had earned $2.80 per hour as operator of the drying machine. Louisiana-Pacific did not attempt to prove that utility workers were paid a lesser rate.

Louisiana-Pacific contends that when Smith voluntarily returned to work to avoid reporting a “lost time” accident, she agreed that wages were being paid in lieu of compensation. Caston v. Combined Insurance Company of America, 308 So.2d 287 (La.App. 1 Cir. 1975), was cited to support this argument. In Caston the court acknowledged that an employee could agree that wages were being paid in lieu of compensation, but found the facts did not support that defense. The same result is appropriate here.

For two reasons we find manifest error in the holding that Smith’s wages were paid in lieu of compensation: 1) Smith earned all wages paid to her after her injury, and 2) Wages were not paid to her during the entire period of her disability.

Firstly, Louisiana-Pacific placed in evidence Smith’s time sheets which show she was paid for hours actually worked. There is no suggestion in the record that Smith did not earn her wages. Since she earned her wages, they were not paid in lieu of workmen’s compensation. Madison v. American Sugar Refining Co., 243 La. 408, 144 So.2d 377 (1962); Lindsey v. Continental Casualty Company, 242 La. 694, 138 So.2d 543 (1962).

In Lindsey, supra, a farm equipment mechanic lost the vision in his right eye as a result of a compensable accident. His employer promoted him from mechanic to shop foreman at an increase in pay, and claimed wages offset compensation. The court acknowledged credit could be allowed in a proper case, but applied the basic test: were the wages paid after the injury actually earned? Seemingly contrary earlier decisions were distinguished on the basis that, under the facts of those cases, the wages paid were not fully earned. See Landry v. Ferguson, 264 So.2d 746 (La.App. 3 Cir. 1972), reversed on other grounds, 279 So.2d 185 (La.1973). That reasoning was also followed in Pender v. National Fire & Marine Insurance Company, 255 So.2d 95 (La.App. 3 Cir. 1971), where credit was given only for those wages paid as a gratuity, and in LeBlanc v. Mangel’s of Louisiana, Inc., 306 So.2d 422 (La.App. 3 Cir. 1975), where the injured claimant’s wages remained the same after the accident, even though her workload was lightened. No inference arises that wages were paid in lieu of compensation from the fact that the work performed after the accident was lighter or dissimilar from that done prior to the accident. See LeBlanc, 306 So.2d 422 at 426. See also Bourgeois v. Fireman’s Insurance Company of Newark, New Jersey, 316 So.2d 3 at 6 (La.App. 1 Cir. 1975), where the court stressed that the employer received substantial value for the wages he paid. The record in this case falls into that mold.

These cases illustrate the rule that a claimant may be disabled and still earn wages. To determine whether compensation is due, the test is whether the claimant is prevented from performing all the prior duties.

Secondly, Louisiana-Pacific paid no wages to Smith after January 13, 1975. Since she was unable to return to her prior employment until January 29th, she was at the very least entitled to compensation from January 13 to 29, 1975.

Since Smith earned her wages following the accident and was unable to return to her prior duties until January 29, 1975, Louisiana-Pacific is not entitled to credit for wages paid as against its obligation to pay workmen’s compensation benefits.

The trial court judgment taxing costs half to each party and denying total and permanent workmen’s compensation benefits is affirmed. The balance of the judgment is set aside and reversed. Joyce Smith is awarded judgment against defendant Louisiana-Pacific Corporation for workmen’s compensation at the rate of $65 per week for the period December 10, 1974 through January 29, 1975. Costs of this appeal are assessed half to each party.

AFFIRMED, in part; in part REVERSED and RENDERED.


author: GULOTTA, Judge.

text:
    Edward BAILEY v. SCHOTT AND COMPANY, INC. and Liberty Mutual Insurance Company.
    No. 7665.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1976.
    Rehearing Denied July 29, 1976.

      Dufour, Levy, Marx, Lucas & Osborne, Michael Osborne and Patrick Rankin, New Orleans, for plaintiff-appellant.
    Stephen L. Huber, Metairie, for defendants-appellees.
    Before GULOTTA, STOULIG and MORIAL, JJ.
   GULOTTA, Judge.

Plaintiff appeals from a judgment awarding scheduled workmen’s compensation benefits for partial loss of a thumb. It is plaintiff’s contention that he is entitled to total and permanent disability benefits for the reasons that: 1) the duties of his preinjury employment require that he work in substantial pain; 2) the injured thumb is susceptible to reinjury; and, 3) plaintiff’s ability to compete in the common labor market has been substantially impaired.

The facts are that while working in his employment at Schott and Company on July 16, 1973, plaintiff’s left thumb became caught in a meat grinder, causing a severe laceration of the distal phalanges of the thumb, a laceration of the thumb’s tendon and nerves and a crushing of the soft part of the thumb at the flexor surface (the surface opposite the nail).

In dismissing plaintiff’s suit for total and permanent disability, the trial judge concluded that plaintiff was not entitled to any additional compensation other than the amounts previously paid in accordance with the scheduled benefits for partial loss of a thumb. The record supports this conclusion.

SUBSTANTIAL PAIN

We reject, as did the trial judge, plaintiff’s first contention that the injury caused him to work in his preinjury employment in substantial pain. On the date of the accident, July 16, 1973, plaintiff was seen by Dr. Ernest Celli, an industrial surgeon. Six sutures were required to repair the laceration. Between August 9, 1973 and September 20, 1973, Dr. Celli saw plaintiff on four occasions. The doctor testified that flexion in the injured thumb was limited to 15%, as compared to 60% of the right thumb. Dr. Celli indicated also that plaintiff’s complaints of numbness at the tip of the thumb and sensitivity to cold would improve with time. Bailey was released to return to work on August 20, 1973. Significantly, the doctor did not testify regarding the degree of pain that plaintiff might suffer while working in his employment.

Subsequent to Bailey’s return to work, he continued to experience pain at the tip of the thumb upon touch, restricted motion upon flexion, and lack of sensation in the thumb. Because of these continued complaints, the 53-year-old plaintiff, who had been employed at Schott and Company for 28 years, saw Dr. Harold M. Stokes, an orthopedic surgeon, on October 24, 1973. On January 6, 1974, Dr. Stokes surgically removed adhesions surrounding the tendon, excised a large neuroma of the digital nerve and repaired the nerve. According to Dr. Stokes, following the surgery there existed no indication of the formation of another neuroma.

Plaintiff was discharged from the hospital on January 8, 1974. Between January 28, 1974 and April 8, 1974, plaintiff was seen on four additional occasions. On the April 8 examination, there was some limitation of joint motion of the thumb, but according to Dr. Stokes, it was relatively painless. Dr. Stokes recorded no complaint of pain on the April 8 visit, and was told by plaintiff that he had been working with his thumb in a pain-free manner and was doing his job without difficulty. The doctor stated that Bailey no longer had any uncomfortable neuroma sensation in the thumb.

Dr. Joseph P. Licciardi, an orthopedic surgeon, examined plaintiff on one occasion, April 24, 1975. Plaintiff complained of persistent pain and numbness and inability to use his thumb. Although it was Dr. Licciardi’s opinion that there existed a neuroma at the site of the injury to the thumb, the doctor did not think that plaintiff was suffering from a severe amount of pain. Dr. Licciardi thought that plaintiff would be “uncomfortable” if he were required to use his hand.

Plaintiff testified that his thumb caused him pain, however, we note that subsequent to the July 16, 1973 accident, plaintiff returned to work about August 20, 1973. He continued working until surgery was performed in January, 1974. Plaintiff returned to work in February, 1974, and remained in his preinjury employment until July, ,1974, when he ceased working for reasons unrelated to the thumb injury.

Theodore C. Mumme, plaintiff’s supervisor at Schott and Company testified that during the period plaintiff worked following the July, 1973 accident, he was able to perform the same work as before the accident, i. e., weighing meat, without any extra job assistance and without complaint.

Whether an individual is undergoing substantial pain in the performance and duties of his employment is a factual question, dependent upon the circumstances of each case. Bernal v. Employers Commercial Union Insurance Company, 329 So.2d 907 (La.App.2d Cir. 1976). A claimant will not be considered totally and permanently disabled because he suffers “from some residual pain and discomfort” when he attempts to work following a work-connected accident. The residual pain will be considered disabling only if it is “substantial or appreciable”. Breaux v. Kaplan Rice Mill, Inc., 280 So.2d 923 (La.App. 3d Cir. 1973). Under the circumstances, we cannot say the trial judge erred in concluding that plaintiff did not suffer substantial pain as a result of the accident.

SUSCEPTIBILITY TO REINJURY

We also find no merit to plaintiff’s contention that the injury to plaintiff’s thumb causes substantial susceptibility to reinjury. Plaintiff simply failed to offer evidence supporting this claim.

In this connection, Dr. Stokes testified that plaintiff had some “protective”, in addition to normal, sensation in his thumb. However, it was Dr. Stokes’ conclusion that plaintiff could have safely carried on his work. Although Dr. Licciardi testified that he had seen patients with numbness and without pain “drop things”, the doctor was responding to a hypothetical question and never testified that plaintiff’s injury might cause him to be more susceptible to reinjury at work.

ABILITY TO COMPETE IN LABOR MARKET

Finally, we find no merit to plaintiff’s contention that the injury has impaired plaintiff’s ability to compete in the common labor market. Dr. Stokes testified that plaintiff had a 25% partial impairment of the thumb. It was this doctor’s opinion that plaintiff was not job disabled and that plaintiff demonstrated a capacity to work despite the physical impairment. Even Dr. Licciardi, who concluded that plaintiff’s thumb was probably 30% less effective and assessed plaintiff’s disability as an approximate 10-15% physical impairment of the person as a whole, did not indicate plaintiff could not work in his preinjury employment.

The fact that plaintiff could still compete in the common labor market is also supported by plaintiff’s work record subsequent to the accident. As stated previously, plaintiff informed Dr. Stokes that he had been doing his regular job without difficulty. Mumme testified that plaintiff continued to work without complaint and without assistance. Following the January, 1974 operation, plaintiff returned in February, 1974, until he left the defendant company in July, 1974, for non-related medical reasons.

Under the circumstances, we find no error in the dismissal of plaintiff’s claim for total and permanent disability benefits. The judgment is affirmed.

AFFIRMED.

      . LSA-R.S. 23:1221(4) (a) and (o) reads as follows:
      § 1221. Temporary, permanent, or partial disability; schedule of payments

      “Compensation shall be paid under this Chapter in accordance with the following schedule of payments:
      *****
      (4) In the following cases, the compensation shall be as follows:
      (a) For loss of a thumb, sixty-six and two-thirds per centum of wages during fifty weeks.
      * % * * *
      (o) In all cases involving a permanent partial loss of the use or function of the members mentioned hereinabove, compensation shall bear such proportion to the amounts named herein for the total loss of such members as the disability to such members bears to the total loss of the member, provided that in no ease shall compensation for an injury to a member exceed the compensation payable for the loss of such member.”

      . Scar tissue or tumor of the nerve causing sensitivity to touch.

      . Bailey testified he returned to work (although in pain) because he had a family to support.


author: MORIAL, Judge.

text:
    Mrs. Mary K. Whittaker, wife of/and John WHITTAKER v. SCHWEGMANN BROTHERS GIANT SUPERMARKETS and Fireman’s Fund American Insurance Company.
    No. 7531.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1976.
    Rehearing Denied July 29, 1976.

      James S. Quinlivan, Jr., Jefferson, for plaintiffs-appellees.
    Dillon & Williams, C. T. Williams, Jr., New Orleans, for defendants-appellants.
    Before SAMUEL, GULOTTA and MORIAL, JJ.
   MORIAL, Judge.

The sole issue raised by defendants in this appeal is the contributory negligence of plaintiff, Mrs. Mary K. Whittaker.

Mrs. Whittaker testified that she was proceeding down an aisle to the rear of Schwegmann’s Airline Highway store pushing her shopping basket before her as she shopped. She parked her basket on the left side of the aisle and walked to the right side of the aisle to get an item from the shelf. As she looked at the merchandise on the shelf, another patron pushing a shopping basket approached from her right and she moved backwards about three feet to allow this patron to pass in front of her. She then fell over a closed box eighteen inches high by three feet long. There is no denial that the box had been placed negligently in the aisle by an employee of defendant.

It is unrefuted that plaintiff parked her basket beyond the point where the box over which she later fell was located. She then walked at an angle past the box as she went to the shelves on the right of the aisle. Mrs. Whittaker testified that she did not see the box as she crossed the aisle. Upon this set of facts, defendants contend plaintiff was contributorily negligent relying upon our decision in Meyers v. Schwegmann Bros. Giant Super Mkts., Inc., 284 So.2d 847 (La.App. 4 Cir. 1973).

In Meyers, we concluded that the injuries which resulted from a patron falling over boxes in a supermarket aisle were caused by the patron’s negligence. Our ruling therein was predicated upon the plaintiff’s failure to prove that the boxes over which she fell as she made a complete turn-around were placed in her path by an employee of defendant and her equivocal testimony relating to the location of the boxes before and at the time she fell. Here, Mrs. Whittaker does not equivocate. She testified that at no time did she see the box.

We believe that under the circumstances of this case, it is reasonable for a customer who is focusing on a storekeeper's merchandise to move backwards in the aisle and away from the shelf without looking to her rear when allowing another shopper to pass in front of her.

While a storekeeper is under a duty to keep the passageway free from obstructions, a grocery store patron is under no obligation to make specific observation of the floor before taking each step. He has the right to presume that the aisles and passageways where it is intended for him to walk will be free from obstructions, especially in view of the storekeeper’s presumed intention and knowledge that the customer will devote the major portion of his or her attention to inspecting the merchandise deliberately displayed to attract the customer. See Kavlich v. Kramer, La., 315 So.2d 282 (1975) and cases cited therein.

There is nothing in the record to indicate that the trial court committed manifest error in apparently holding that the evidence failed to establish any contributory negligence on the part of Mrs. Whittaker. The burden of proving contributory negligence is, of course, upon the defendant, and the evidence fails to preponderate in favor of this affirmative defense.

The trial judge awarded Mrs. Whittaker the sum of $10,000.00 for her injuries and for the pain and suffering she endured as a result of the accident. She contends that the award should be increased to $25,000.-00.

After considering the nature of the injuries sustained by Mrs. Whittaker, we are of the opinion that the award of $10,000.00 is fair and adequate. The award substantially compensates her for her injuries and does not amount to an abuse of the “much discretion” vested in the trial judge in fixing damages. See LSA-R.C.C. 1934(3) and Bitoun v. Landry, La., 302 So.2d 278 (1974).

AFFIRMED.


text:
    Mr. and Mrs. Walter J. GRATHER v. TIPERY STUDIOS, INC.
    No. 7453.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 9, 1976.
    Rehearing Denied July 29, 1976.

      William M. Detweiler, New Orleans, for plaintiffs-appellees.
    William F. Wessel, New Orleans, for defendant-appellant.
    Before REDMANN, GULOTTA and STOULIG, JJ.
   GULOTTA, Judge.

Defendant appeals from a judgment awarding plaintiffs a return of $248.54, representing the purchase price of plaintiffs’ wedding pictures, and $250.00 in general damages, arising out of the unprofessional manner in which defendant photographed plaintiffs’ wedding. Although not broken down or explained in the judgment, the $250.00 general damage award presumably was made in response to plaintiffs’ demand for damages caused by mental anguish and embarrassment.

The record supports plaintiffs’ specific complaints that the photographer’s impatience and failure to exercise professional care resulted in photographs with poor positioning and unsatisfactory backgrounds (exit signs, kitchen in disarray and glasses left on the table). The bride’s testimony that the photographer was impatient in taking the photographs is unre-butted. The photographer failed to testify and no explanation was given for his nonappearance. Further, the testimony of Paul P. Palermo, secretary of Tipery Studios, supports plaintiffs’ claim that professional care requires that attention be given by the photographer to the background of a picture. In this connection, Palermo testified:

“Q I am asking you as a professional if you had it within your power to look at the background that you were going to take and knowing that you contracted to take pictures that are going to be kept and used for memory and so forth for years to come, would you not take the care of closing that curtain?
A I would ask the caterer to do it. Because we don’t move things in the caterer’s place.
Q Have you ever, sir, in taking a picture, gone up and picked up a glass or cup or something and moved it out of the way when you’re looking at your picture?
A Yes.
Q When you’re looking at what you’re going to take?
A Right.”

Palermo further stated:

“Q If you were going to shoot a picture of Judge O’Keefe sitting here in that position and you used a lens that may have picked up that open door, would you go close that open door?
A Yes.
Q Of course you’re looking for background and the individuals involved?
A Right.
Q Now, this Proof No. 88, it is a very poor job as far as background is concerned, is it not?
A It is bad.”

Palermo added:

“Q What about this? Would you have picked up the cups off the table? Not the glasses of champagne. I am talking about the plastic cups that are by the cake.
A Me personally, yes.
Q As a good professional wedding photographer, that’s what you would have done, is that correct, sir?
A I would have picked them up myself personally. But it’s also the caterer’s job to make sure that everything is clean.”

Further, an examination of the pictures, even to an untrained eye, indicates the photographer’s lack of care, in some cases, with respect to positioning and his inattention to background.

We are not in agreement with defendant’s contention that the bride, after viewing the pictures, acquiesced in the quality of the photography when she ordered photographs in addition to those for which she contracted. Plaintiff testified she complained about the quality of the pictures to Mr. Palermo. According to Mrs. Grather, an unsatisfactory solution to the problem was suggested by Palermo when he stated to her that she could return the pictures and he would return the money. We cannot say that a purchase of additional photographs of a memorable wedding event, under the circumstances, indicates satisfaction with the quality of the photography.

With respect to the professional care required of one providing services, LSA-C.C. art. 2769 provides:

Art. 2769. Contractor’s liability for noncompliance with contract

“Art. 2769. If an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his non-compliance with his contract.”

Further, as was stated in Hebert v. Pierrotti, 205 So.2d 888 (La.App. 3d Cir. 1968):

“As a general rule, there is implied in every contract for work or services that the work will be performed in a skillful, careful, diligent and good workmanlike manner. * * * ”

Under the circumstances, we conclude the photographs were less than professional and plaintiffs are entitled to recover. We are not in agreement, however, with the trial court’s judgment ordering return of the purchase price, together with the general damage award, and the further judgment allowing plaintiffs to retain the photographs.

Plaintiffs are not entitled to the return of the purchase price and retention of the photographs. On the other hand, return of the photographs, from plaintiffs’ point of view, is not a satisfactory resolution to the dispute. Plaintiffs are entitled to retain the wedding photographs, but are not entitled to a return of the $248.54 purchase price. Because, however, of the less than professional quality of the wedding pictures, plaintiffs are entitled to a general damage award for mental anguish and embarrassment.

A -bride and groom who desire non-amateur photographs and employ a professional photographer are seeking “the gratification of some intellectual enjoyment” within the meaning of LSA-C.C. art. 1934(3). When the photographs are of less than professional quality, the bride and groom are deprived of the full enjoyment, which they can rightfully expect, of pictures commemorating their wedding and reception. Plaintiffs are entitled to compensation in damages for this loss of enjoyment.

In the instant case, however, we are not presented with a situation where the photographer failed to appear at the wedding and reception, and failed to take the photographs. Nor are we presented with a camera or film failure resulting in seriously marred or flawed photography. We are presented with a few selected photographs which evidence poor positioning and unsatisfactory backgrounds. Under the circumstances, we deem a trial court’s $250.-00 general damage award for mental anguish and humiliation to be excessive. We conclude that a $125.00 general damage award is warranted under the circumstances.

Accordingly, the judgment of the trial court is annulled, vacated and set aside. Judgment is recast and is now rendered in favor of plaintiffs, Mr. and Mrs. Walter J. Grather, and against Tipery Studios, Inc., awarding plaintiffs retention of the photographs and general damages in the sum of $125.00, together with interest from date of judicial demand. Judgment is further rendered awarding defendant, Tipery Studios, Inc., retention of the purchase price, i. e., the sum of $248.54. Costs to be paid by defendant.

ANNULLED, VACATED AND SET ASIDE; JUDGMENT RECAST AND RENDERED.

      . The trial judge further ordered that plaintiffs retain the photographs.