text:
    Louis McDONALD et ux., Plaintiffs and Appellees, v. FIDELITY & CASUALTY COMPANY OF NEW YORK et al., Defendants and Appellants.
    No. 5064.
    Court of Appeal of Louisiana, Third Circuit.
    July 30, 1975.
    Rehearing Denied Aug. 28, 1975.

      Stockwell, St. Dizier, Sievert & Viccéllio by Robert W. Clements, Lake Charles, for defendants-appellants.
    Raleigh Newman, Lake Charles, for plaintiffs-appellees.
    Before HOOD, CULPEPPER and WATSON, JJ.
   CULPEPPER, Judge.

This is a suit for damages for personal injuries. The plaintiff, Mrs. Dorothy McDonald, was driving her automobile downgrade on a bridge on Interstate Highway 10 near Lake Charles. Her vehicle was struck violently from the rear by a heavily loaded truck-tractor being driven by the defendant, Carlton J. Beale, and insured by the defendant, Fidelity & Casualty Company of New York. A jury awarded Mrs. McDonald $8,000 in general damages. The jury awarded $4,000 in special damages to her husband, Louis McDonald. The defendants appealed, contending the awards are excessive.

On appeal, the plaintiff, ' Louis McDonald, admits the award to him of $4,000 for special damages is excessive, and should be reduced to the actual allowable medical expense which he paid as head and master of the community. The substantial issue is whether the award of $8,000 in general damages to Mrs. McDonald is excessive.

The evidence shows the impact was severe. The McDonald vehicle was a total loss. The front seat, where Mrs. McDonald and her son were riding, was thrown into the back seat. Mrs. McDonald, who is 38 years of age, suffered a whiplash injury to the cervical area and straining injuries to the lumbar area.

Immediately after the accident, on March 21, 1973, Mrs. McDonald was taken to a hospital where she was examined by Dr. Charles Anderson, a general practitioner. She complained principally of pain in the cervical area, but the doctor found no objective symptoms, such as muscle spasm, restricted motion or positive x-ray findings. He prescribed drugs for pain and muscle relaxation, and released her without hospitalization.

Two days later, Dr. Anderson saw Mrs. McDonald again in his office. On that occasion he again found no objective symptoms, but he instructed Mrs. McDonald to continue to take the drugs which he had prescribed.

Approximately 10 days after the acci-deat, Mrs. McDonald went to see Dr. William Akins, Jr., an orthopedic surgeon. She complained of pain in the cervical area, radiating down the arm, and also pain in the low back area. Dr. Akins found “a tenseness or thickening of the muscles in the front part of the neck.” However, he found no restriction of motion of the neck and no other objective findings in the cervical area. X-rays of both the cervical and lumbar areas were within normal limits. Dr. Akins’ impression was that Mrs. McDonald was suffering from a whiplash injury and low back pain. He recommended complete bed rest at home for seven days and prescribed drugs for pain and rest.

Dr. Akins continued to treat Mrs. McDonald for a period of about three months. During this time he prescribed a back brace or corset to minimize the low back complaints. He finally discharged her on June 19, 1973, as having recovered to the extent that no further treatment was necessary. However, he did say that she was still having the “band-like” headaches which were typical of whiplash injuries, and she was also still complaining of aching in the shoulders and pain in her neck and back.

At the request of plaintiffs’ attorney, she was examined on April 17, 1973 by Dr. George P. Schneider, an orthopedic surgeon. It was his opinion that Mrs. McDonald was recovering from a straining injury to the cervical and lumbar areas. His prognosis was for recovery in a period of about three months from the date of his examination, with no residual disability.

Mrs. McDonald testified that she spent much time at home in bed, and that she wore her corset when not in bed until December of 1973. She said the pain was such that she could not stand on her feet very long and could not attend beauty school classes.

Susan Simmons, a neighbor of Mrs. McDonald, also testified about Mrs. McDonald’s reduced activity after the accident.

Mrs. McDonald testified that after leaving the treatment of Dr. Akins, the pain finally became so severe that on November 1, 1973 she went to see Dr. Eastman, a chiropractor. She saw this chiropractor a total of 23 times over the period November 1, 1973 to January 16, 1974. She testified she stopped going to see the chiropractor because she could no longer pay the bills.

Defendant contends that according to the testimony of the physicians, Mrs. McDonald suffered only a minimal whiplash injury which caused pain for only about three months. Under these circumstances, defendants contend the award of $8,000 in general damages is grossly excessive and should be reduced to no more than $2,500.

On the other hand, plaintiff contends that although Dr. Akins discharged Mrs. McDonald about three months post-injury, he said that she still had some tenderness and pain. Of course, plaintiff relies heavily on her own testimony that she continued to have pain for a total of about 15 months, on the fact that she went to see a chiropractor 23 times during a period of 2\Zz months which was 9 or 10 months post-injury, and on the testimony of the lay witness that she appeared to restrict her activity because of pain.

In the recent case of Bitoun v. Landry, La., 302 So.2d 278 (1974) our Supreme Court restated the rule of appellate review of awards for personal injuries as follows:

“The question is not whether a different award might have been more appropriate, but whether the award of the trial court can be reasonably supported by the evidence and justifiable inferences from the evidence before it. That such evidence might also support a greater (or smaller) award will not justify a change in the “amount by the appellate court. Only when the trial court abuses its broad discretion should the award be adjusted, either up or down.”

In the present case, the evidence is not conclusive as to whether this was a three-month whiplash, as contended by the defendant, or a 15-month whiplash, as contended by plaintiff. There are reasonably justifiable inferences which the jury could have drawn from the evidence that the residuals from this injury lasted considerably longer than three months. Under all of the circumstances, we cannot say, under the above quoted rule of appellate review, that the trial jury abused its broad discretion.

As stated above, the plaintiff, Louis McDonald, concedes that the award of $4,000 for special damages is excessive. This award must be reduced to the actual medical expense in the sum of $322.23, plus the cost of the chiropractor’s services in the sum of $198, a total of $520.23.

For the reasons assigned, the judgment appealed is amended to reduce the award for special damages to Louis McDonald from the sum of $4,000 to the sum of $520.23. Otherwise, the judgment is affirmed. All costs of this appeal are assessed against the defendants.

Affirmed, as amended.


source: Caselaw Access Project

author: DOMENGEAUX, Judge. WATSON, Judge

license: Public Domain

text:
    William R. DRUILHET, Individually, et ux., Plaintiffs-Appellants, v. Dr. Paul COMEAUX et al., Defendants-Appellees.
    No. 5081.
    Court of Appeal of Louisiana, Third Circuit.
    July 30, 1975.
    Rehearing Denied Aug. 28, 1975.

      Raleigh Newman, Lake Charles, for plaintiffs- appellants.
    Raggio, Farrar, Cappel & Chozen, by R. W. Farrar, Jr., Lake Charles, for defendants-appellees.
    Before FRUGÉ, DOMENGEAUX and WATSON, JJ.
   DOMENGEAUX, Judge.

This is a malpractice suit by the plaintiff-husband, individually and as head and master of the community, and his wife, for damages allegedly sustained as a result of a sponge or other foreign object being left internally in the plaintiff-wife during childbirth. Defendants in the suit are Dr. Paul Comeaux (the physician who delivered plaintiff-wife’s child); Sorkow, Shorts, and Comeaux, Drs., Ltd. (the professional medical corporation of which Doctor Comeaux is a member); Southwest Louisiana Hospital Association d/b/a Lake Charles Memorial Hospital; and St. Paul Fire & Marine Insurance Company (malpractice insurer for the defendants). From a jury verdict in favor of the defendants, the plaintiffs have appealed.

The plaintiff, Mary Ellen Druilhet, gave normal birth to her third child on September 7, 1971, in Lake Charles Memorial Hospital. The attending physician was Dr. Paul Comeaux, a general practitioner. Subsequent to birth the plaintiff returned to Doctor Comeaux for routine three and six week examinations.

A pelvic examination was subsequently-performed by Dr. Eli Sorkow (a general practitioner and member of the medical corporation of which Doctor Comeaux was attached) on October 28, 1971. On this occasion the doctor removed from the entrance of plaintiffs vagina what he opined to be a surgical sponge (a 4 x 4 inch folded piece of sterilized gauze).

Subsequently the plaintiff-wife was seen on December 7, 1971, by Dr. James T. Austin, Jr., a local obstetrician and gynecologist, complaining of abdominal and vaginal pain. Mrs. Druilhet was treated by Doctor Austin for the following nine-month period. She was also experiencing extreme nervousness during this time and after prescribed medication failed to alleviate her trouble, she was referred to the local mental health center. Doctor Austin finally advised the plaintiff that she should have a hysterectomy operation because of her continued severe pain. Said operation was performed on August 2, 1972.

This suit was filed on September 6, 1972, alleging that the defendants were responsible for severe complications following childbirth as a result of the sponge or foreign object being left in her vagina and/or womb. It was contended that in addition to sustained pain and suffering the object caused infection in her vagina and/or womb, the occurrence of a tumorj and finally, the hysterectomy. Plaintiff-husband sought medical expenses and damages for the loss of normal marital relations, as well as the fact that the couple could have no more children.

A jury trial was also requested in plaintiffs’ initial petition. Subsequently, during the voir dire of prospective jurors plaintiffs’ counsel was prevented from asking the jurors as to whether or not they would accept the law as to the doctrine of res ipsa loquitur, specifically. The court denied same on the basis that questions relating to the judge’s charges are not the proper subject for voir dire, the purpose being to determine whether or not any partiality exists on the part of the jurors.

Following trial, counsel for the plaintiffs and defendants presented closing arguments to the jury and the district judge gave instructions to the jury as to the laws applicable and the form of the verdict. Said charge included the doctrine of res ipsa loquitur and no objections were made to the charge.

The jury returned its special verdict indicating the actions of the defendants did not constitute negligence which was the proximate cause of plaintiff-wife’s alleged injuries. Plaintiffs subsequently applied for a new trial which was also denied.

The following issues are raised on this appeal: (1) Whether one or more of the defendants were negligent? (2) If so, whether such negligence was a cause in fact of the injuries complained of? (3) Whether counsel for the plaintiffs should have been allowed to question the jurors on voir dire regarding the doctrine of res ipsa loquitur, and (4) Whether plaintiffs should have been granted a new trial?

The first issue we will consider is the alleged negligence of the defendants.

The record clearly shows that a foreign object was removed from plaintiff-wife’s vaginal tract on October 28, 1971, by Dr. Eli Sorkow. Although the object in question was immediately disposed of and testimony reflects it “could have been” a Tampax, cotton, etc., Doctor Sorkow explicitly stated that in his opinion the object removed was a surgical sponge. His testimony is not refuted. The evidence further preponderates to the effect that the sponge was left internally in Mrs. Druilhet’s vaginal tract during the hospital delivery of her child.

Although there was testimony to the effect that sponges are left internally in patients for an extended period on occasion by physicians who practice obstetrics, the same testimony confirmed that such was unintentional and not supposed to occur. Thus it must be said that when such an occurrence takes place the responsible physician has not exercised the standard of care normally practiced under similar circumstances by members of his profession in good standing in the same locality.

Failure to remove the sponge from plaintiff’s vaginal tract immediately following delivery was an untoward or unusual event such as to bring into application the doctrine of res ipsa loquitur. See: Wells v. Woman’s Hospital Foundation, 286 So.2d 439 (La.App. 1st Cir. 1973), writ denied, 288 So.2d 646 (La.1974).

Therefore the burden of proof shifted to the defendant(s) to prove lack of negligence. Doctor Comeaux was the attending physician during plaintiff-wife’s childbirth and as a result was responsible for overseeing the procedures in the delivery room. No real contention is made by the plaintiffs that anyone other than Doctor Comeaux was the party who left the sponge inside the plaintiff-wife. The doctor testified essentially that he could not recall the particular delivery and did not believe he left the sponge, but could not deny that he might have done so. Under the foregoing facts, we conclude that the doctor failed to sustain the burden of showing his freedom from negligence.

As in any other tort action, however, such negligence must be shown to have a causal relationship to the injuries complained of by the plaintiff. See Margiotta v. Trachtman, 310 So.2d 151 (La. App. 4th Cir. 1975); Davis v. Southern Baptist Hospital, 293 So.2d 238 (La.App. 4th Cir. 1974). The jury found causality lacking and we agree.

In this regard, we turn first to the testimony of Mrs. Druilhet, who stated essentially: that prior to her last child being born she had not experienced female problems; that immediately following her return home from the hospital she began to have pains continuously; that she complained of pain to Doctor Comeaux at both the three-week and six-week examinations; and that on the date when Doctor Sorkow removed the foreign object she experienced pain during the removal thereof and additionally complained of pain to the doctor. She further contended that about three weeks following delivery she had a “falling” sensation in the area of her female organs and called Doctor Comeaux to inform him of same. The doctor allegedly told the plaintiff that he thought her womb had fallen, for her to go to bed and place her legs in the air, and that if the womb did not go back into place an operation would have to be performed. Plaintiff-wife further testified that she continued to have pain throughout her visits to Doctor Austin and on one occasion inquired from the doctor if the sponge could have had something to do with her condition. Allegedly the doctor replied in the affirmative.

The foregoing testimony of Mrs. Druil-het is, however, contradicted throughout the record.

The plaintiff had been a long-time patient of Drs. Sorkow, Shorts, and Co-meaux. In March of 1968 she had complaints of pain in the vagina and of bloody discharges. In December of 1968 she complained of irregular menstrual periods, nausea, and nervousness.

Doctor Comeaux made no notation of any complaints of pain by the plaintiff upon her three and six week examinations. The doctor did not recall the conversation regarding the “falling womb”.

Doctor Sorkow testified that he made no notation of pelvic pain at the time he removed the sponge from the plaintiff and indicated in all probability he would have noted it, had it been present. He further opined that the sponge had no adverse effects on the plaintiff and no bearing upon plaintiff’s subsequent hysterectomy. The doctor compared the sponge to Tampax and noted that a number of his patients had left Tampax in their vaginal area for a three or four month period without any damage, the only effect being a feeling of “fullness” and foul smelling discharge.

Dr. James Austin testified that upon initial examination plaintiff told him she had been having sharp lower abdominal and vaginal pains since her child was seven weeks old. He also testified that when asked if the sponge had any correlation to her pains he replied in the negative. Doctor Austin further opined that plaintiff’s pains were possibly caused from degeneration of a small fibroid tumor in her uterus following pregnancy, which was a very common condition (although no tumor was found when the hysterectomy operation was performed) or inflammation and infection of fallopian tubes. He further opined that the sponge had no causal relationship with the suspected tumor or any uterine infection. In addition he stated that plaintiff-wife had a uterine prolapse which could have caused the pelvic pains but that such was likewise not associated with the sponge. The doctor stated in conclusion that the hysterectomy was performed because of severe pain and that the pain was in no way connected with the aforementioned sponge.

Dr. Avery L. Cook, a pathologist, testified that in his examination of a uterine tissue specimen from Mrs. Druilhet he found no evidence to indicate a foreign body had been in the uterus, or caused an infection, and that the uterus had no infection in it for a seven or eight month period before.

Doctor George W. Tucker, a gynecologist associated with Doctor Austin, testified that pelvic pain following childbirth is common and often caused by uterine prolapse. In addition he indicated nervousness can also cause such pelvic pain. He felt very strongly, that the sponge in the vagina would not have produced plaintiff’s symptoms nor caused the subsequent hysterectomy. He also indicated that on occasion Tampax had been left in a patient for a number of weeks without any damage.

No expert testimony was introduced to refute the foregoing evidence. As a result we cannot say the jury erred in concluding that the actions of the defendants did not constitute negligence which was the proximate cause of plaintiff-wife’s alleged injuries. Although failure to remove the sponge was negligence, the evidence simply does not show that plaintiff sustained any damage as a result of same.

Plaintiffs also specify as error the refusal of the trial judge to allow their counsel to question the prospective jurors on voir dire regarding the doctrine of res ipsa lo-quitur.

Although it is possible the trial judge might have been in error in refusing to allow plaintiffs’ desired scope of voir dire, no harmful or prejudicial effect occurred in light of our holding that no causal relationship was established between any negligence on the part of the defendant(s) and plaintiffs’ alleged injuries.

The last issue raised is the denial of plaintiffs’ motion for a new trial.

Peremptory grounds for granting a new trial in a jury case are present if it be proven the jury was bribed or behaved improperly so that impartial justice has not been done. LSA-C.C.P. Art. 1814. Otherwise, the trial judge is granted wide discretion in allowing or denying the motion. LSA-C.C.P. Art. 1973.

In this regard plaintiffs offered affidavits of two parties (including one juror) attempting to show the juror(s) did not understand the instructions given by the trial judge on the burden of proof in the case and felt bound by an alleged instruction to the effect that plaintiff had to show how the foreign object came to be in her body.

After review of the charges given to the jury at the close of the trial we find same to be clear and concise statements of the legal principles involved. Nowhere do we find the abovementioned instruction allegedly followed by member(s) of the jury.

Assuming, however, some confusion existed among the jurors regarding the burden of proof, there is simply no evidence supporting an inference that more than one juror was confused. Only nine of the twelve need concur (LSA-C.C.P. Art. 1795). The jury had adequate opportunity to request further application of any charges, yet sought none.

Nevertheless failure of either party to object to the charges resulted in a waiver of any alleged defects therein. LSA-C.C.P. Art. 1793, Renz v. Texas & Pacific Railway Co., 138 So.2d 114 (La.App. 3rd Cir. 1962).

Our courts have also expressed the view in civil cases that even assuming errors in the jury charge we have the constitutional duty to review the entire record and if we find that same supports the judgment we should affirm the case rather than remand it, thereby causing undue delay and expenses. Bartholomew v. Travelers Insurance Co., 290 So.2d 390 (La.App. 4th Cir. 1974); Bryant v. St. Paul Fire & Marine Insurance Co., 272 So.2d 448 (La. App. 2nd Cir. 1973).

As pointed out in Thibeaux v. State Farm Mutual Automobile Ins. Co., 285 So. ed 363, 366 (La.App. 3rd Cir. 1973):

“This court is not disposed to interfere with the deliberations and determinations of juries when conducted under such circumstances that it can be safely assumed that impartial justice was achieved . . To enter the confidential sphere or realm of the jury in the instant case, would be to disturb the jury system as we know it. It would ultimately result in an unnecessary and destructive disruption of jury findings in future cases.”

We do not find proof herein of misconduct such as to preclude the impartial administration of justice and as a result conclude that the judge was well within his discretion in denying the motion for a new trial.

For the above and foregoing reasons the judgment of the trial court is affirmed at plaintiff-appellants’ costs.

Affirmed.

WATSON, J., concurs and assigns written reasons.

WATSON, Judge

(concurring):

I concur in the result reached by the majority, but I differ as to the reasons for affirming the jury verdict. I would not hold Dr. Comeaux negligent; in fact, I would not even reach that question.

My basic difference with the majority opinion is in the approach to the problem presented. The first and basic inquiry should be into causation. Was the alleged act or omission of the defendant doctor a cause in fact of the plaintiff-wife’s injury? Since, according to the evidence, the alleged conduct did not result in injury to the plaintiff-wife, it is not necessary to consider whether the doctor was negligent.

I do not believe the res ipsa loquitur doctrine (the thing speaks for itself) is applicable to the instant case. In certain types of malpractice actions, res ipsa loqui-tur is an appropriate legal doctrine, but not in all, and not, in my opinion, here.

“Before the rule of res ipsa loquitur can be applied, it must be possible to say, first, that it is more probable than not that the injury was caused by someone’s negligence, . . . ” 58 Am.Jur.2d Sec. 480, pg. 55.
“It is . ... axiomatic that the plaintiff must satisfy the trier that a causal connection exists between the defendant’s negligence and the injury.” Studies in Louisiana Torts Law, Wex S. Malone and Leah Guerry, page 220.
“The rule [of res ipsa loquitur] applies when the facts shown suggest the negligence of the defendant as the most plausible explanation of the injury.” McCann v. Baton Rouge General Hospital, 276 So.2d 259 at 261 (La.1973).

The prerequisites of the doctrine of res ipsa loquitur do not exist here, and the doctrine is inapplicable.

I am convinced that a surgical sponge left at the entrance to plaintiff-wife’s vagina is not analogous to a surgical sponge inside a surgically closed incision as in the Wells v. Woman’s Hospital Foundation, 286 So.2d 439 (La.App. 1 Cir. 1973); writ denied, La., 288 So.2d 646, case. The jury concluded that Dr. Comeaux was not guilty of negligence which was “a proximate cause” of the alleged injuries, that being the terminology submitted to them on the form for their verdict by the trial court. The jury may well have concluded that plaintiff failed to prove causation in fact. They may well have been impressed with and accepted the testimony of Dr. Tucker.

Dr. George William Tucker, an American Board certified obstetrician and gynecologist, testified that he was not aware of a reported instance in his twenty years of reading medical literature where a sponge left in the vagina caused serious complications. He stated that there is no sponge count after childbirth, as there is after surgery, because sponges left in the vagina, a not infrequent occurrence, are not a hazard to patients. This evidence was uncon-tradicted.

In my opinion, if plaintiff failed to prove causation in fact, then the question of whether Dr. Comeaux was negligent never arises. I disagree with the majority’s conclusion that he was negligent and that he had the burden of proof in this connection.

In any event, this was a jury trial in which plaintiff failed to convince the triers of fact. There is ample evidence on which the jury could base a reasonable conclusion that: (1) plaintiffs failed to prove causation in fact; or (2) Dr. Comeaux was not negligent.

“Ours is not the primary duty of weighing the evidence, judging the credibility of witnesses or evaluating the strength of the various experts’ opinions. On the contrary, these tasks are allotted initially to the triers of fact, here the jury; and the conclusions of the jury as to facts should not be disturbed unless manifestly erroneous. See Hooper v. Wilkinson, 252 So.2d 137 (La.App. 3 Cir. 1971); and Busby v. St. Paul Fire & Marine Insurance Company, 290 So.2d 701 (La.App. 1 Cir. 1974); writ denied, La., 294 So.2d 546. The intermediate appellate court is to examine the record and to review the facts to determine whether there is a reasonable evidentiary basis for the decision: by the triers of fact. Dunlap v. Armendariz, 265 So.2d 352 (La.App. 4 Cir. 1972).” Wiley v. Travelers Insurance Company, 300 So.2d 555, at 558 (La.App. 3 Cir. 1974); writ denied, 303 So.2d 187.

For these reasons, I would affirm the. verdict but on different grounds. Therefore, I respectfully concur.

      . Although plaintiffs attempted to prove that the sponge was left in Mrs. Druilhet’s uterus or womb, rather than the vaginal tract, the expert testimony at trial clearly indicated that such was essentially an impossibility and that if it had occurred plaintiff-wife would have likely sustained internal infection or other complications.

      . See Trahan v. Odell Vinson Oil Field Contractors, Inc., 295 So.2d 224 (La.App.3rd Cir. 1974). Contra, however, is the fact that the record is unclear as to the extent plaintiff wanted to pursue his inquiry. Additionally, broad discretion rests in the trial judge as to the scope and extent of voir dire. His rulings are not to be disturbed absent a clear abuse of discretion.


author: SAMUEL, Judge.

text:
    Ernest L. PERRY v. The TEXACO COMPANY and the Travelers Insurance Company.
    No. 6993.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 5, 1975.
    Robert E. Lee, Gretna, for plaintiff-appellant.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, John J. Weigel, New Orleans, for The Texaco Co., defendant-appellee.
   ON MOTION TO DISMISS

Before SAMUEL, STOULIG and BOU-TALL, JJ.

SAMUEL, Judge.

The defendants-appellees have filed a motion to dismiss the devolutive appeal taken herein by the plaintiff. That motion to dismiss is the only matter before us at this time.

On the same day the plaintiff filed his petition, the trial judge signed an order permitting him to proceed in forma pau-peris. After trial on the merits, there was judgment in favor of the defendants and against the plaintiff, dismissing the latter’s demand. The judgment was read, rendered and signed June 24, 1974. Plaintiff filed his motion for appeal on September 18, 1974. The order of appeal granted a devolutive appeal upon plaintiff furnishing bond in the amount of $350. No appeal bond has been furnished.

Appellees contend that where the order of devolutive appeal requires the furnishing of a .bond, but the bond is not timely furnished, the appeal must be dismissed for lack of jurisdiction unless a forma pauper-is order relieving the appellant from the necessity of furnishing the bond is granted within the 90 day delay allowed by LSA-C.C.P. Art. 2087. They argue the appeal in this case must be dismissed because the 90 day delay for appealing has elapsed and appellant has not obtained an order relieving him of the necessity of furnishing the bond.

We do not agree with the contention or argument. It is true that where a litigant has not been permitted to proceed in forma pauperis the devolutive appeal bond must be furnished within the 90 day delay allowed for such appeals. It is also true that, as stated or held in some of the cited cases, where there has been no order permitting a litigant to proceed in forma pauperis, to perfect a devolutive appeal he must either furnish the required appeal bond or obtain such an order relieving him of the necessity of furnishing the bond, and that order must be obtained within the delay allowed for taking the appeal.

However, in the instant case the order permitting the appellant to litigate without the payment of costs was obtained from the trial court at the time the suit was filed and that order has not been rescinded. Under the clear provision of LSA-C.C.P. Art. 5185 (4) the order includes the right to a devolutive appeal without the necessity of furnishing bond therefor and without the necessity of obtaining another in forma pauperis order.

As presented to the trial court, the order of appeal in this case contained wording requiring the furnishing of an appeal bond in an amount left blank. There is nothing on the face of the one-page motion and order indicating the proceeding was in forma pauperis and, in all probability, the trial judge was unaware of the fact that appellant had been permitted to so proceed. In any event, having permitted the appellant to proceed in forma pauperis, the trial court was without authority to require the furnishing of an appeal bond in the absence of rescinding the order permitting appellant to so proceed.

For the reasons assigned, the motion to dismiss the appeal is denied.

Motion to dismiss denied.

      . In support of the contention, appellees cite: Orrell v. Southern, Farm Bureau Casualty Ins. Co., 248 La. 576, 180 So.2d 710; Enterkin v. Devaux, La.App., 266 So.2d 721; Auto for Bent, Ine. v. Provenza, La.App., 261 So.2d 732; Hyatt v. Hartford Accident and Indemnity Company, La.App., 225 So.2d 102; Wilkerson v. Luneau, La.App., 198 So.2d 183.

      . In pertinent part LSA-C.C.P. Art. 5185 provides:
      “When an order of court permits a party to litigate without the payment of costs, until this order is rescinded, he is entitled to:

      (4) The right to a devolutive appeal, and to apply for supervisory writs.” LSA-C.C.P. Art. 5185. (emphasis ours).


author: BARNETTE, Judge.

text:
    George E. MILLER, v. MONTGOMERY WARD AND COMPANY, INC.
    No. 10379.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1975.
    Rehearing Denied Aug. 26, 1975.
    Writ Refused Oct. 24, 1975.

      Robert G. Szabo, Baton Rouge, for appellant.
    John B. Noland, Breazeale, Sachse & Wilson, Baton Rouge, for appellee.
    Before SARTAIN, ELLIS and BAR-NETTE, JJ.
   BARNETTE, Judge.

This is a suit for damages brought by George E. Miller and his wife, Mrs. Inez C. Miller on account of personal injuries sustained by Mrs. Miller in a fall in the defendant’s store. The demands of the plaintiffs were denied and their suit dismissed. They have appealed.

Mrs. Miller was shopping in defendant’s store in Baton Rouge on March 3, 1973. She was interested in the purchase of a wig. The department in which the wigs were displayed and sold was a carpeted area with certain counters and other fixtures appropriately located to facilitate display of the merchandise. The carpeted area was adjacent to a main aisle of the store about eight or ten feet in width with a tile floor covering described as a linoleum or vinyl tile which resembled terrazzo. At the point where the carpeted area joined the tile flooring the edge of the carpet was secured with a conventional metal, probably aluminum, carpet strip fastened securely to the floor with the flat surface about three quarters to one inch wide. The thickness (height) of the strip was approximately three-eighths or one-half inch, slightly curved on the exposed corner. An exhibit, prepared especially to show the manner in which the carpet was laid indit cates a very common method of carpet laying abutting a conventional tile floor.

The sales clerk, who identified herself as manager of the accessory department, Mrs. Gloria G. Locke, was showing wigs to Mrs. Miller. She walked around a counter to obtain a certain wig on another fixture. To do so she stepped off the carpet onto the tile floor, walked around the end of the counter which came to the edge of the carpet and then back onto the carpet. Mrs. Miller was looking at other wigs and then attempted to jojn Mrs. Locke on the other side of the counter which separated them. As she attempted to leave the carpeted area and step into the aisle she fell to the floor and sustained painful and rather serious injuries.

Whether Mrs. Miller slipped on the tile or tripped on the metal carpet strip is not known. She was asked:

“Q. Now, Mrs. Miller, I take it that this fall was not a stumbling sort of thing it’s not like you caught your heel and then took a couple of awkward stumbling steps and fell, rather you slipped and fell at one time; is that correct ?
A. Yes.
Q. Do you know which shoe left that mark?
A. I do not.”

She also testified:

“Q. Now, is it your testimony that your heel caught on that metal strip, is that—
A. I don’t know if it caught or not, I don’t know what happened when I fell.”

There was no testimony to indicate any defect in the floor, the metal strip or the carpet. On the contrary the testimony of the store personnel was that a very careful examination was made which disclosed nothing abnormal about the floor. There was some testimony that a mark was seen projecting out from the metal strip on the tile about six or eight inches in length at an angle from the carpet edge. This was described as a scratch which appeared to have been made by a hard substance, not a typical black rubber heel scuff mark. Whether this mark was caused by Mrs. Miller’s slipping shoe is, at most, speculative.

About two months after the accident in question the entire store was renovated. Extensive alterations were made and the floor and display areas remodeled. No photographs were made, nor anything done to preserve the carpet or metal strip which was removed. Appellant makes a point of this and argues that an unfavorable presumption against the defendant should be drawn from its failure to preserve essential physical evidence. Citing: Simon v. Ford Motor Company et al., 282 So.2d 126 (La.1973); Joyner v. Aetna Casualty & Surety Company, 259 La. 660, 251 So.2d 166 (1971) and Weber v. Fidelity & Casualty Insurance Co. of New York, 259 La. 599, 250 So.2d 754 (1971).

In Simon v. Ford the alleged defective ball joint on a six year old Ford automobile was disposed of by the party alleging the defect and was not available at the trial. We do not find the Joyner case to be in point. In the Weber case, the plaintiff sought damages from the use of an alleged poisonous cattle dip solution. The mixture and the container were buried by plaintiff and later covered over by a roadway and not available as evidence at the trial. We do not find anything in eithen of those decisions upon which an unfavorable presumption against this defendant can be justified. It is true that the defendant in this case had knowledge of Mrs. Miller’s fall and injuries when the floor was remodeled, but there was nothing to put them on notice that a suit would be filed based on an alleged defect in the floor which was minutely examined and found free of defect at the time of Mrs. Miller’s fall. Her suit was not filed until March 1, 1974, two days before prescription had run. No inference of supression of evidence can be drawn from defendant’s failure to preserve the floor, a section thereof or a photograph under the facts in this case.

Briefs of counsel filed on this appeal and the written reasons for judgment by the trial judge, very correctly state the jurisprudential guidelines applicable to “slip and fall” or “trip and fall” cases. We quote with approval from the trial judge’s reasons for judgment as follows:

“The law and jurisprudence controlling in this case are cited as follows:
‘A storekeeper must maintain his premises in reasonably safe condition considering the nature of his business, for the use of his patrons and customers who may be expected to be primarily concerned with viewing merchandise on display more so than paying attention to the condition of the floor for the discovery of possible obstructions and hazards in the passageways. Robnett v. Great American Insurance Co. of New York, La.App., 187 So. 2d 152.
‘While a shopkeeper is not the insurer of the safety of his invitees, he nevertheless owes his customers the duty of providing a safe place in which they may shop. This burden includes the onus of providing clear and safe passageways in which the patrons may walk and move about and also the obligation of warning the customer of hazards of which the patron is otherwise unaware. Lawson v. Continental Southern Lines, Inc., La.App., 176 So. 2d 220.
‘In such instances the owner or lessee of the business establishment is not liable unless the injury results from his negligence. If the storekeeper was aware, or by the exercise of ordinary and reasonable care should have been aware, of the hazard or peril, he will be deemed negligent and consequently liable for the patron’s injuries. Provost v. Great Atlantic & Pacific Tea Co., La.App., 154 So.2d 597.’ Callais v. Furniture Showrooms, Inc., 213 So. 2d 537, 539, 540 (La.App. 1st Cir. 1968).
“Based on this jurisprudence, the Court is unable to find from the evidence that an inherently dangerous condition prevailed as suggested by the plaintiff. There is not a scintilla of evidence indicating that there was a defect in the installation or maintenance of the carpet, metal strip or flooring on the premises of the store. Consequently, the Court is compelled to find no liability, although the Court is moved by the problems which have faced the plaintiff and her husband.”

The following cases were cited by plaintiffs-appellants as examples of the application of the above stated principles of liability in cases of this kind: Paxton v. Ballard, 289 So.2d 85 (La.1974); Bergeron v. Employers-Commercial Union Companies, 306 So.2d 367 (La.App. 3d Cir. 1975); Grigsby v. Morgan & Lindsey, 148 So. 506 (La.App. 2d Cir. 1933). In each of these cases there was clear evidence of either a defect in the floor or an obstruction in a passageway for which the property owners and lessees were found to be negligent in not repairing, removing or giving a warning. In each of those cases the above stated principle of liability was applied, but they are not applicable to the factual situation in this case.

The trial judge’s finding of “not a scintilla” of evidence of failure on defendant’s part to provide a safe place for its patrons is an accurate appraisal of the testimony and evidence in the record before us. The defendant has met every test of the cited cases and the jurisprudence generally. There was nothing unusual or in the least abnormal in the manner in which the floor tile, carpet and carpet strip were installed, nor in the upkeep. There were no defects observable on close inspection, nor any foreign substance on the floor to suggest a cause of Mrs. Miller’s fall. It was simply an unexplained and unfortunate accident through no fault of the defendant storekeeper or its employees. The plaintiffs have failed to carry the burden of proof of fault. Bridges v. Liberty Mutual Insurance Company, 286 So.2d 754 (La.App. 1st Cir. 1973), cert. denied, 289 So.2d 156 (La.1974); Harper v. Great Atlantic & Pacific Tea Company, 257 So.2d 468 (La. App. 1st Cir. 1972).

For these reasons the judgment appealed is affirmed at appellant’s cost.

Affirmed.


author: SARTAIN, Judge.

text:
    LOUISIANA HOSPITAL SERVICE, INC., Plaintiff-Appellant, v. Peggy BOOKTER and the Administrator of the Department of Employment Security of the State of Louisiana, Defendant-Appellee.
    No. 10355.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1975.
    Rehearing Denied Aug. 26, 1975.
    Writ Refused Oct. 17, 1975.
    John S. White, Jr., Baton Rouge, for plaintiff-appellant.
    Marion Weimer, Baton Rouge, for defendant-appellee.
    Before SARTAIN, ELLIS and BAR-NETTE, JJ.
   SARTAIN, Judge.

This is an appeal by Louisiana Hospital Service, Inc. (formerly Blue Cross of Louisiana), former employer of defendant-claimant Peggy Bookter, from a decision of the trial court affirming a ruling of the Board of Review for the Department of Employment Security finding claimant innocent of any misconduct which would disqualify her from receiving unemployment compensation benefits. We affirm.

The record shows that plaintiff terminated claimant’s employment on November 19, 1973. Thereafter claimant filed a claim for unemployment compensation benefits, which claim was denied. On appeal to the Appeals Tribunal for the Department of Employment Security the appeals Referee held claimant disqualified for benefits on grounds that she was discharged under circumstances constituting misconduct within the meaning of R.S. 23:1601(2). Pursuant to R.S. 23:1630 the Board of Review of the Department of Employment Security upon request by claimant initiated a review of the Referee’s decision and reversed, finding no misconduct within the meaning of the statute. The Board’s findings are set out below:

“EVIDENCE
“The evidence shows that the claimant worked for Blue Cross of Louisiana in Baton Rouge, 39 months as a Clerk and her salary was $415 per month. Her work schedule was Monday through Friday, from 8:00 a. m. until 4:15 p. m. On November 16, 1973, the claimant requested permission to leave her job at three o’clock to keep a doctor appointment. The claimant’s afternoon break was from 2:40 p. m. until 2:55 p. m. When the claimant began her break on this particular afternoon, she went to the parking lot to see if her car would start, as she had had trouble with it and when she started it, she moved her car closer to the building. The claimant did not leave her work area until after three o’clock. In the testimony given by the witness for the employer, Mrs. Bank stated she saw the claimant'drive off the parking lot, and another statement at the close of the hearing, she stated that she did not see the claimant leave the premises. The claimant stated that she did not clock out as she forgot and other times when she failed to clock out or in, she would take her card to the Assistant Manager, or the Manager, and they would sign it stating the time. The claimant presented her doctor’s card signed .as one of the requirements. Her leaving before three o’clock would have been authorized leave without pay. The claimant- work on November 19, 1973, which was Monday following her leaving on Friday, until 4:20 p. m. when she was called to the Personnel Office and Mr. Prejean informed the claimant she was fired for misconduct.
“OPINION
“R.S. 23:1601(2) provides that a claimant shall be disqualified when discharged for misconduct connected with the employment. Such disqualification shall continue until such time as the' claimant has returned to work and earned wages equivalent to ten times the weekly benefit amount, and must then have been separated under nondisquali-fying circumstances.
“After carefully reading all of the testimony and evidence presented in this case, the Board of Review finds that there is conflicting testimony. We find that the claimant had been granted permission to leave early and the claimant testified that she did not leave the building before 3:00 p. m.
“We, therefore, conclude that the claimant is not guilty of misconduct within the meaning of the Act.
“IT IS ORDERED that the decision of the Appeals Referee be reversed and the disqualification removed.”

Plaintiff sought judicial review of the above decision pursuant to R.S. 23:1634 and the trial court affirmed.

On appeal to this court plaintiff contends that the trial court erred in concluding that there was sufficient evidence to support the Board’s finding of fact, and further, the court erred in failing to find a misapplication of the law by the Board.

Where judicial review is sought in unemployment compensation cases the finding of the Board of Review as to facts, if supported by sufficient evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law. R.S. 23:1634. We have reviewed the evidence before the Board and find it amply supportive of the Board’s findings.

We find no merit to plaintiff’s argument that we should give greater credence to the findings of the Appeals Referee rather than those of the Board since the Referee was able to observe the demeanor of the witnesses and therefore better able to determine the vital issues of credibility presented in this case. It is not the decision of the Appeals Referee which is here called into question, but rather, the decision of the Board of Review which is specifically granted the power to reverse the Appeals Referee even absent new evidence, R.S. 23:1630. It is not for this court to examine the propriety of each decision made at various administrative levels in a specific case. Rather, we are only concerned with the decision of the Board of Review, the administrative level of last resort in cases of this kind, and whether its findings of fact are supported by sufficient evidence. We have found that they are so supported.

Thus the only remaining issue for determination is whether under the facts found by the Board there was disqualifying misconduct by the claimant within the meaning of the statute. In Atkins v. Doyal, 274 So.2d 438 (1 La.App., 1973), we stated:

“Misconduct sufficient to disqualify a claimant from receiving unemployment compensation has been consistently defined to mean an act of willful or wanton disregard of the employer’s interest; a deliberate violation of the employer’s rules; a disregard of standards of behavior which the employer has the right to expect of his employee; or negligence in such degree or recurrence as to manifest culpability, wrongful interest, or evil design, or show an intentional and substantial disregard of the employer’s interest or of the employee’s duties and obligations to the employer. Horns v. Brown, 243 La. 936, 148 So.2d 607, 609 (1963); Payne v. Antoines Restaurant, 217 So.2d 514 (4th La.App.1969); Heard v. Doyal, 259 So.2d 412 (2nd La.App. 1972).
It is well established that it is the duty and obligation of the employer to prove the acts of disqualifying misconduct connected with the claimant’s employment. Gardere v. Brown, 170 So.2d 758 (1st La.App. 1964).”

In the present case the allegation of misconduct against claimant as it is contained in the termination slip states:

“4. REASON FOR SEPARATION. State fully and clearly.
Terminated. Violation of Company Rules and Insubordination.
Mrs. Bookter was seen leaving work on November 16, 1973 at 2:45 pm by a Medicare Supervisor. She left without proper authorization by her Supervisor. She had requested permission to leave at 3:00 pm on that date and this had been approved. She presented her time card to her Supervisor on Monday, November 19, 1973 stating she had forgotten to clock out. When asked what time she left on Friday, she indicated 3:00 pm.
I certify that the above worker whose name and number are entered above has been separated from work and that the information entered above is true and correct. I further certify that the worker whose name and number appear above has been handed or mailed a copy of this report.”

The board found as a matter of fact that claimant did not leave until after the approved 3:00 P.M. time and there is sufficient evidence to support this finding. This finding seemingly negates the gravamen of the employer’s complaint that claimant left work without proper authorization.

However, the attorney for the employer asserts that there is a second basis for misconduct, that being claimant’s failure to clock out on the day in question, thus rendering claimant in violation of a standard company rule. Assuming, ar-guendo, that this was a reason for her termination (which is not so indicated by the termination slip), we do not feel that under the facts of this case such conduct falls within the legal’ meaning of misconduct. Claimant is not alleged to be an habitual offender of the company rule in this respect, but is merely charged with failing to clock out on a particular day. As the Board noted, it was common practice for the company’s supervisor in such cases to merely fill in the time at which the employee either arrived or departed. We noted in Atkins, supra, that conduct which may give the employer sufficient cause to terminate his employees may not be sufficient to amount to misconduct which would disqualify the claimant from receiving unemployment compensation benefits.

For the above reasons, the judgment of the trial court is affirmed with all costs of ' these proceedings assessed against the plaintiff-appellant.

Affirmed.


author: DOMENGEAUX, Judge.

text:
    Daisy R. SCARBROCK, Plaintiff-Appellee, v. Andrew FOWLER et al., Defendants-Appellants.
    No. 5087.
    Court of Appeal of Louisiana, Third Circuit.
    July 30, 1975.
    Rehearing Denied Aug. 28, 1975.

      David A. Sheffield, Alexandria, for defendants-appellants.
    J. Michael Percy of Polk, Foote, Randolph, Percy & Ledbetter, Alexandria, for plaintiff-appellee.
    Before FRUGÉ, DOMENGEAUX and WATSON, JJ.
   DOMENGEAUX, Judge.

This is a possessory action brought by Daisy R. Scarbock against two brothers, Andrew and Edgar Fowler. Suit was filed on July 19, 1972, wherein it was alleged that plaintiff was disturbed in her possession of certain lands located in Rapides Parish, Louisiana, by defendants on June 8, 1972. She contended that the defendants entered and trespassed upon her lands with a bulldozer and other heavy equipment and tore down fences which she had erected, damaging valuable timber and other portions of the property. Plaintiff further alleged quiet and uninterrupted peaceful possession of this land for more than one year prior to the disturbance. The suit sought recognition of her right to possession of the property, in addition to recovery of damages for loss or harm to the property, and for harassment, embarrassment, humiliation, and mental anguish, in the amount of $2,000.00.

Subsequent to a trial on the possessory action, the district judge, in a thorough and well-written opinion, granted judgment in favor of the plaintiff, recognizing her right of and restoration to the quiet and peaceful possession of the immovable property in question, granting damages in the amount of $12 for destruction of her fence, and $2,000 to compensate her for her harassment, mental anguish, etc. He denied plaintiff’s claim for loss of timber, as not being proved.

Defendants have appealed. The plaintiff has neither appealed nor answered the appeal.

Defendants allege the following errors on the part of the trial court:

(1) In concluding that the plaintiff had established that she was in continuous uninterrupted possession of the lands in question for one year prior to June 8, 1972, the date of the alleged disturbance.

(2) In holding that there was in fact a disturbance upon land which was possessed by plaintiff on or about June 8, 1972.

(3) In failing to grant a new trial.

For clarity and ready reference, the following sketch of the area in question will be referred to. The property is situated in Section 67, Township 2 North, Range 1 East, of Rapides Parish, Louisiana. It is conceded that the twenty-two acre tract of land (Tract 1 on the map) belongs to the plaintiff. Tracts 2’and 3 are the disputed areas.

The requisites for a possessory action are set forth in LSA-C.C.P. Art. 3658, which reads as follows:

“To maintain the possessory action the possessor must allege and prove that:
(1) He had possession of the immovable property or real right at the time the disturbance occurred;
(2) He and his ancestors in title had such possession quietly and without interruption for more than a year immediately prior to the disturbance, unless evicted by force or fraud;
(3) The disturbance was one in fact or in law, as defined in Article 3659; and
(4) The possessory action was instituted within a year of the disturbance.”

The first issue we will consider is whether plaintiff sustained her burden of proving that she was in peaceful possession of the property in question for a period in excess of one year prior to the June 8, 1972, alleged disturbance by the defendants. After a lengthy trial, during which a large number of witnesses were heard, the district judge concluded that plaintiff had borne the burden by a “clear preponderance” of the evidence. We agree.

As pointed out by the trial judge, the evidence presented on behalf of the parties was diametrically opposed. The testimony of the plaintiff, and the witnesses called on her behalf, established the following:

In 1967 the land in question (comprising 15 acres) and the undisputed 22 acre tract were surveyed by one Charles L. Beeson on request of the plaintiff’s late husband, Louis Scarbrock. At the time, all or most of the acreage was woodland. Early in 1968 the area was cleared and subsequently leased to one Jack Mott who planted soybeans for the next three years. A fence was constructed in 1968 along the southern boundary of the property (from Point A to B on the enclosed map), dividing the Scar-brock tract from the land owned by Andrew Fowler to the south. Mott testified that he farmed up to the fence. “No trespassing” signs were subsequently erected along' the fence line. Another land survey- or, Barrett Gremillion, also testified to the effect that he prepared a survey and plat in May, 1968, for Cecil Charrier, the landowner immediately north of the Scarbrock tract. On the Gremillion plat the land in question herein is illustrated as being the same as represented on the Beeson plat. Huey P. Lambright had a lease on the Scarbrock property from 1971 to 1973 (in the latter year, however, releasing his right back to the plaintiff who in turn leased the property to a “Mr. French”) and was called by the Court as a witness and cross-examined by counsel for plaintiff and defendants. During his testimony Lam-bright drew a rough sketch of the approximate 30 acre tract which he farmed, without referring to any of the plats introduced into evidence at trial. As indicated by the trial judge, the rough sketch portrays the area in question with noticeable accurateness and similarity to the plats prepared by the above mentioned surveyors and aerial photographs. Lambright also indicated that a fence existed along the southern boundary of the property (from Point A to B). Barrett Gremillion conducted a second survey of the area in 1974. The resulting plat indicated vestiges of a fence remaining along line A to B, with at least one “Posted No — Trespassing” sign still existing.

Contrarywise, the defendants introduced testimony to the effect that the 15 acre tract in question was possessed in the immediate past only by the defendant — Andrew Fowler; that the area was not used as farmland until 1972 (when the defendant Edgar Fowler allegedly cleared the land) since it was overgrown and wooded; that no fence existed along points A to B.

In light of the conflicting testimony, the trial judge found himself in the position of having to- make credibility evaluations. His reasons for judgment indicate that he relied heavily on the testimony of Barrett Gremillion and Huey Lambright, both of whom he considered independent witnesses with no interest in the litigation. The trial judge indicated he was “extremely impressed” with the testimony of Lambright. Such weighing of testimony and determination of credibility was certainly within the district judge’s wide discretion.

The next question raised is whether plaintiff was disturbed in her possession. The evidence reflects no real issue existing in this regard.

Defendants themselves testified to the effect that on or about June 8, 1972, a clearing operation (ordered by Andrew Fowler and performed by his brother, Edgar Fowler, with bulldozers) took place on what are Tracts 2 and 3 on the enclosed map. Edgar Fowler even admitted that there were fence posts along points A to B, with barbed wire attached, at the time of the clearing operation. Plaintiff and a number of witnesses testified that defendants tore down and destroyed at least two-thirds of the fence and a number of trees along the southern boundary of the Scar-brock property.

The trial judge found such disturbance “by a clear preponderance” of the evidence and we agree. Under the foregoing it is evident that plaintiff has proven the requisites for the possessory action.

The last issue raised is whether the trial judge was in error in refusing to grant the defendants a new trial on the basis of alleged discovery of new evidence which appellants contend show that plaintiff did not possess the land in question through her lessees, immediately prior to the “disturbance”.

As we pointed out in Chauvin v. Chauvin, 297 So.2d 234 (La.App. 3rd Cir.1974):

“. . . a new trial must be granted on the grounds of newly discovered evidence where such evidence is not merely cumulative, would tend to change the result of the case, was discovered after the trial,- and could not with due diligence have been discovered before or during the trial. Strobel v. Schlegel, 145 So.2d 664 (La.App. 4th Cir. 1962).” LSA C.C.P. Art. 1972.

The trial in the present case stretched over a ten-month period, with all facets of the case having been gone into in detail. We find no showing that with due diligence the purported evidence could not have been discovered before or during the. trial. Accordingly, the grounds for granting the new trial were discretionary. LSA C.C.P. Art. 1973. We find no abuse of the district judge’s discretion in denying same.

For the above and foregoing reasons the judgment of the trial court is affirmed at defendants-appellants’ costs.

Affirmed.


author: COVINGTON, Judge.

text:
    Jack F. HARANG v. Jack W. HARANG, Individually and as Administrator of the Succession of Iris S. Harang. Succession of Iris S. HARANG.
    No. 10296.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1975.
    Rehearing Denied Aug. 26, 1975.

      R. Lee Eddy, III, New Orleans, for appellant.
    Clint L. Pierson, Jr., Covington, for ap-pellees.
    Before LOTTINGER, COVINGTON and BAILES, JJ.
   COVINGTON, Judge.

Jack F. Harang, as surviving widower, brought suit against the Succession of Iris S.Harang, and against the administrator and heir of the succession, seeking the usu-fruct of the estate of the deceased, which is alleged to be community property. On the trial the court rendered judgment dismissing the claim of the plaintiff and denying him usufructuary rights in the estate of the deceased. The plaintiff has appealed this judgment.

The pertinent facts are that Jack F. Harang and Iris S. Harang were married and had one child, Jack W. Harang; on November 8, 1972, Mrs. Harang obtained a judicial separation; then they reconciled; and Mrs. Harang then died intestate on July 3, 1973. There has been no formal partition of the community property, nor a formal re-establishment of the community, nor a final divorce. The succession has been opened and the son has been appointed administrator.

We have considered the record and the argument of counsel in this case and find that the case of Jarreau v. Succession of Jarreau, La.App., 268 So.2d 101, 104 (1 Cir.1972), writ denied, 263 La. 986, 270 So.2d 122 (1972), is dispositive of the instant case.

In the Jarreau case, where the surviving widow made a claim similar to the one made in this case, this Court said:

“We hold that, as a matter of law, property individually acquired by married persons pursuant to a settlement of their community affairs, following a judgment of separation from bed and board between them, is and remains the separate and paraphernal property of each spouse. We also hold that the status of separability thusly established is not affected by a subsequent reconciliation between husband and wife. We further hold that once the community of acquets and gains is terminated by judicial decree of separation, it can only be restored in compliance with the provisions of LSA-C.C. art. 155. It follows that in this instance there was no community existing between plaintiff and decedent at the time of decedent’s death.
“The usufruct granted by LSA-C.C. art. 916, extends only to decedent’s share of property belonging to the community of acquets and gains which existed between the surviving spouse and decedent at the time of decedent’s death. Here there was no such community. Moreover, the property in question belonged to decedent’s separate estate. Article 916, above, is clearly without application to property belonging to the separate estate of a deceased spouse.”

See also Austin v. Succession of Austin, 225 La. 449, 73 So.2d 312 (1954), noted 29 Tul.L.Rev. 144 (1954).

In discussing the usufruct of the surviving spouse, Professor Yiannopoulos writes:

“The community of acquets and gains exists until separation of the spouses from bed and board .... Accordingly, the usufruct under Article 916 of the Louisiana Civil Code of 1870 does not attach in favor of a separated spouse. This result follows from the rule that judgments of separation from bed and board dissolve the community as of the date of filing suit as well as from the classification of the survivor’s usu-fruct as a right of succession.”

See Yiannopoulos, 3 Civil Law Treatise, Personal Servitudes, sec. 101, page 335 (1968).

Nevertheless, appellant argues that the Jarreau and Austin cases are distinguishable from the instant case because in the cited cases a formal partition of the community property had been made following the judgment of separation, while in the instant case there has been no such partition of the property involved; consequently, appellant argues that it is the formal partition, rather than the judgment of separation, which is determinative of the characterization of the property as separate or community.

This argument is without merit. We explicitly stated in the Jarreau case, supra at 103:

“A judgment of separation from bed and board effects a termination of the marital community retroactive to the date on which the petition for separation was filed. LSA-C.C. art. 155.”

In Gouaux v. Gouaux, La.App., 211 So.2d 97, 100 (1 Cir. 1968), this Court pointed out that:

“. . . one of the effects of a separation from bed and board is the dissolution of the community of acquets and gains.”

Hence, it is established that it is the judgment of separation itself, not a formal partition of the community property, which dissolves the community of ac-quets and gains, effective from the date of the filing of the separation suit. Once terminated by the judgment of separation, the marital community can only be restored, upon reconciliation of the spouses, by authentic act duly recorded. See LSA-C.C. Art. 155; Austin v. Succession of Austin, supra; Corkern v. Corkern, La.App., 270 So.2d 209 (1 Cir.1972); see also LSA-C. C. Arts. 123, 136.

In Austin, supra at 317, the surviving widow, who had been judicially separated from and then reconciled to her deceased husband, sought to be recognized as the owner of one-half of all property acquired by them from the date of the marriage, on the basis that the reconciliation alone reestablished the marital community. The Court rejected the surviving widow’s claim and held that reconciliation between the spouses did not reinstate the community of acquets and gains, but that a community dissolved by a judgment of separation could only be re-established by compliance with the provisions of Civil Code Article 15-5.

The Court said in Austin :

“Therefore, only by the privilege conferred in the act of 1950 (amending Article 155) can the community be re-established, and it must be done with the forms and solemnities of the law as that act has prescribed.”

In Corkern, supra at 213, the Court stated:

“The law is clear that once the community of acquets and gains is terminated such as by virtue of a judicial separation, the subsequent reconciliation of the spouses, although it operates to vitiate the judgment of separation in other respects, does not re-establish the community of acquets and gains which previously existed between the spouses, nor does it establish a new community of ac-quets and gains between the spouses. On the contrary, the spouses remain separated in property unless and until they both agree to avail themselves of the privilege of re-establishing the community of acquets and gains as provided for by Louisiana Civil Code Article 155..."

We find that the deceased spouse left no community property herein, the marital community having been previously dissolved by the judgment of separation, and not re-established by authentic act duly recorded. The property in question belongs to the deceased’s separate estate. Inasmuch as Article 916, by its express provisions, applies only to community property; and there being none in the instant case, the surviving widower is not entitled to the usufruct over the decedent’s estate.

We, therefore, hold that the usu-fruct of the surviving spouse does not attach in favor of a judicially-separated spouse, despite a reconciliation, on the property of the deceased spouse, because the judgment of separation, without need of a formal partition, dissolved the marital community as of the date of the filing of the separation suit; and, thereafter, the property formerly belonging to the marital community belongs to the separate estates of each of the spouses, unless the community of acquets and gains has been re-established by a recorded authentic act.

For the foregoing reasons, we affirm the trial court’s rejection of the surviving widower’s claim for usufructuary rights in the estate of the deceased spouse, Iris S. Har-ang. The costs to be paid by the plaintiff-appellant.

Affirmed.


author: GULOTTA, Judge.

text:
    Robert MYLES v. Adam FALKENSTEIN, Warden of Parish Prison, et al.
    No. 6877.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 8, 1975.
    Rehearing Denied Sept. 9, 1975.

      Michael A. Dessommes, Charles C. Gar-retson, New Orleans, for plaintiff-appellee.
    Cronvich & Wambsgans, A. W. Wambs-gans, Metairie, for defendants-appellants.
    Before GULOTTA, STOULIG and MORIAL, JJ.
   GULOTTA, Judge.

This is an appeal by defendants, Louis A. Heyd, Jr., Criminal Sheriff of the Parish of Orleans, and Willis Etienne, Deputy Sheriff, from a judgment in favor of plaintiff, a prison inmate in the Orleans Parish Prison, for injuries sustained as a result of having been struck by Deputy Etienne while employed at the prison. The suit was initially directed against the sheriff, the warden of the parish prison and the deputy sheriff who struck plaintiff. Suit was dismissed against the warden; however, the sheriff and deputy were cast in judgment in the sum of $6,000.00.

The basis of plaintiff’s complaint is that he suffered a broken jaw as a result of having been punched in the face by the deputy, Willis Etienne, without provocation or justification. Plaintiff further claims that he was denied medical attention for a period of approximately three days following the incident.

On appeal, defendants contend that plaintiff failed to carry the burden of proof required since plaintiff’s testimony was contradicted by that of defendant Etienne, and neither his credibility nor that of plaintiff was attacked. Defendants further claim that although Deputy Sheriff Etienne did strike plaintiff, the force he used under the circumstances, in the tense atmosphere of the parish prison, was reasonable. Etienne claims that he was threatened with bodily harm and did only that which was necessary to protect himself against threatened injury and to maintain order in the parish prison.

In connection with the injuries claimed by plaintiff, defendants, on appeal, contend that plaintiff failed to produce any medical evidence to corroborate his contention that he sustained a fractured jaw. Under the circumstances, defendants alternatively suggest that the $6,000.00 award is excessive and that a more appropriate award would be between the sum of $750.00 and $1,500.00.

In brief and argument, defendants point out that plaintiff is a convicted felon and a former heroin addict. According to Etienne, when reporting for duty on March 17, 1973, the date of the incident, he found plaintiff and other inmates outside of their cells in violation of security measures and ordered their return. The deputy sheriff contends that plaintiff failed to heed his order, and after repeated orders to return (four or five times') were either ignored or not obeyed by plaintiff, plaintiff objected to the tone of Etienne’s order and “quickly turned and raised his hands, taking a menacing stance.” Whereupon, according to the weaponless Etienne, he instinctively reacted to the threat by punching plaintiff in the jaw, thereby restraining him.

Plaintiff’s version is strikingly different from that of Deputy Sheriff Etienne. According to plaintiff, at the time of the incident, he was a “tier representative” who enjoyed greater freedom and authority to move within the tier areas. Myles claims that he was assisting another deputy sheriff when defendant Etienne roughly and with the use of obscenity ordered him to return to the tier proper. According to Myles, as he turned to obey the orders of the defendant deputy sheriff, he was struck by the agressor Etienne without justification or provocation.

Regarding the proof of injuries sustained, plaintiff claims that he was placed in maximum security after the incident and was denied, for three days, a request for medical aid. He supports his claim by insisting that persons in maximum security are denied the opportunity to receive medical attention. Plaintiff claims that the injury and pain suffered by him were corroborated by the testimony of certain other prisoners who were in the cell with him after the incident and also points out that his jaw was wired as part of the treatment for the fracture. Finally, it is plaintiff’s position that the trial judge heard the evidence, that he placed more reliance on testimony of plaintiff’s witnesses than on that of defendants’ and that his findings were based upon a credibility determination which was not manifestly erroneous. We agree. Accordingly, we affirm.

We are confronted with the factual question of whether Etienne was provoked which justified his attack on Myles. Apparently, at the time of the altercation, the prison atmosphere was unusually tense because approximately a week earlier, an incident occurred in which an attempt was made by the inmates to take a deputy sheriff as a hostage. We recognize that provocation or lack thereof must be considered in light of existing circumstances in the prison atmosphere. We recognize also that the deputy’s action cannot be judged by hindsight and that a great deal of latitude must be afforded prison officials in the discipline of inmates and in maintaining order and safety in the prison, nevertheless, we, as did the trial judge, find no justification for the unprovoked attack on plaintiff by the deputy sheriff.

Defendants cite Greening v. Hill, 221 So.2d 261 (La.App., 2d Cir. 1969) to support the position that Etienne’s actions were within the latitude afforded police officers who are in the process of discharging their duties. We have no quarrel with the Greening' decision. In that case, the court stated:

“ * * * Such conditions cannot reasonably be expected to result in decisions, the product of calm deliberation, and actions, the product of accurate reflexes and perfect physical coordination.”

More importantly, however, that court held:

“ * * * A plaintiff cannot recover civil damages if he is at fault in provoking the difficulty in which the injury is received. Robertson v. Palmer, 74 So.2d 408 (La.App.1954); Britt v. Merritt, 45 So.2d 902 (La.App.1950).”

In the instant case, we find no provocation for the deputy’s attack on plaintiff. Shortly before the incident, defendant Etienne had come on duty at approximately 3:00 p. m. with the new shift. As a tier guard responsible for the security of the tier where Myles was located, Etienne was displeased with the congregating of several inmates outside their cells in a vestibule area which was violative of prison security regulations. At the time, Deputy Anthony LeFrere was in the process of transferring inmates from the tier area (over which Etienne had responsibility) to another tier. Myles, a “tier representative”, had been asked by LeFrere to assist with the transfer. Upon observing the large number of inmates in the prohibited (vestibule) area, Etienne ordered Myles back into the tier and out of the vestibule area although he was aware that he, Myles, was assisting Deputy LeFrere. Myles not only did not respond as quickly to Etienne’s command as Etienne would have liked, but, to Etienne’s displeasure, Myles engaged in conversation with another inmate. Whereupon, after Myles did not heed several orders to return to the tier, Etienne, with the use of vile epitaphs, reiterated his order. At this point, Myles apparently turned to face Etienne and objected to defendant’s vituperative tone and language.

As Myles turned to face Etienne, he was struck by the deputy. Defendants’ main contention is that Myles turned in a menacing way with his hands raised upward in a fighting stance. Significantly, Etienne makes no contention that Myles struck the first blow. Furthermore, on direct examination, Etienne stated with regard to the beginning of the fight: “He was raising his hands. I don’t know if they were clenched or not, but in this gesture I hit him . . .” It is significant also that neither other deputy sheriffs nor inmates who were in a position to see the altercation corroborated defendant Etienne’s version that plaintiff exhibited any menacing gesture prior to the striking. Myles denied that he made any menacing move toward Etienne or made any threats upon Etienne before he was struck.

The trial judge was confronted with a credibility determination which he resolved in favor of plaintiff. We cannot say the trial judge erred. The record supports his conclusions.

The record also supports the amount of the award in the sum of $6,000.-00. We do not find merit in defendants’ contention that plaintiff failed to produce medical reports from Charity Hospital to support his claim for damages for a broken jaw. The representative from Charity Hospital clearly pointed out in his testimony that for some unexplained reason part of plaintiff’s Charity Hospital record was missing and that hospital personnel were unable to locate it. It is not disputed that Myles received treatment at the hospital after the incident. Myles and several other inmates testified that plaintiff’s jaw was wired and defendant Etienne testified he saw plaintiff’s mouth wired. The evidence is clear that plaintiff was struck in the face by defendant Etienne; that plaintiff received medical treatment at Charity after the incident; and that plaintiff’s jaw was in fact wired. The trial judge concluded plaintiff had a broken jaw. We cannot say he erred.

The record is also clear that Myles remained in a maximum security cell for three days after the incident and before he received medical treatment for his injury. Two of plaintiff’s cellmates testified that Myles constantly complained about the pain in his jaw and that plaintiff could hardly talk because of the pain. It is not disputed either that the prisoners on the maximum security floor had a “knockdown” in an attempt to get medical attention for Myles, and that eventually plaintiff was taken to Charity Hospital.

Under the circumstances, we fail to find that the award in the sum of $6,000.00 is an abuse of discretion on the part of the trial judge. Accordingly, the judgment is affirmed.

Affirmed.

      . See Parker v. State, 282 So.2d 483 (La.1973).

      . Etienne testified he had boxing experience while in military service.

      . As described in the record, a “knockdown” is a method used by the inmates to make noise in any way possible to attract attention of the deputies to any complaints or grievances that the inmates may have.


author: STOULIG, Judge.

text:
    Saundra Spears, wife of/and Larry D. SPEARS v. Betty Eckerle, wife of/and Walter ECKERLE, Jr., and Government Employees Insurance Company.
    No. 6894.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 5, 1975.
    Ralph E. Orpys, New Orleans, for plaintiffs-appellees.
    Hammett, Leake, Hammett, Hayne & Hulse, Michael E. Wanek, New Orleans, for Government Employees Ins. Co., defendant-appellant.
    Before GULOTTA, STOULIG and MO-RIAL, JJ.
   STOULIG, Judge.

Defendants, Mr. and Mrs. Walter Eck-erle, Jr., have appealed a judgment awarding plaintiffs, Mr. and Mrs. Larry D. Spears, $3,000 as general and special damages for injuries sustained in an intersec-tional collision that the trial court found resulted through the sole negligence of Mrs. Eckerle. Government Employees Insurance Company (GEICO), plaintiffs’ insurer, was cast in judgment solidarily with the Eckerles under the uninsured motorist provision of its policy. GEICO, in turn, obtained a third party judgment of indemnification against the individual defendants. Appellants have limited the scope of this appeal to a review of liability.

The accident occurred at the intersection of West Metairie Avenue and Roosevelt Boulevard in the City of Kenner. According to her testimony, Mrs. Spears was driving toward Kenner on favored West Met-airie Avenue and approached the intersection of Roosevelt Boulevard at a speed of 35 miles per hour. She observed a car stopped on Roosevelt in obedience to a stop sign posted there and reasonably assumed it would remain there as she passed through the intersection. However, when plaintiff’s car was “40 feet or less” from Roosevelt, the stopped vehicle suddenly moved into the West Metairie traffic lanes and into the path of the oncoming Spears car, which was proceeding in the left lane. Despite the immediate and vigorous application of her brakes, plaintiff did not have enough time to avoid hitting the defendant’s car.

The defendant driver, Mrs. Eckerle, claimed her view of West Metairie was obstructed by high weeds on the bank of the drainage canal that divides the eastbound from the westbound lanes on the favored avenue, so she moved into the roadway and stopped again to get a clearer view of the traffic conditions. She testified she first saw the Spears car momentarily before impact, despite her testimony that she “could see pretty far ways down” West Metairie Avenue. After moving her vehicle for a second time to a stopped position, Mrs. Eckerle attempted to cross West Metairie Avenue and her automobile was struck by the Spears car.

Immediately after the accident, Mrs. Eckerle told Mrs. Spears and the investigating officer she attempted to cross when she did because she thought this was a four-way stop intersection. Defendant driver denied making this statement; however, as did the trial judge, we accept it at fact.

In any event, under either plaintiff’s or defendant’s version of the accident, Mrs. Eckerle’s actions would constitute the sole proximate cause for its occurrence. As the trial judge stated in written reasons, “ * * * the Eckerle vehicle entered an intersection when it was unsafe to do so * * * ”

Whether her negligent act was prompted by her misunderstanding of the traffic controls at the intersection or her failure to observe the approaching traffic and to accord it the right of way to which it was entitled before attempting to cross the favored avenue is of no importance in fixing liability because, under either hypothesis, the sole negligence rests on Mrs. Eckerle.

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

Affirmed.

      . This case was consolidated for trial with a suit by Mr. and Mrs. Walter Eckerle, Jr., against plaintiffs herein and their insurer GEICO, arising from the same accident discussed herein.

      . In her deposition this witness testified she could see a distance of two or three blocks on West Metairie Avenue; however, on trial she would not estimate the distance and stated it was “pretty far ways down.”


text:
    Betty Eckerle, wife of/and Walter ECKERLE, Jr., et al. v. Saundra Spears, wife of/and Larry D. SPEARS and Government Employees Insurance Company.
    No. 6893.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 5, 1975.
    Ralph E. Orpys, New Orleans, for plaintiffs-appellants.
    Hammett, Leake, Hammett, Hayne & Hulse, Michael E. Wanek, New Orleans, for Government Employees Ins. Co., defendant-appellee.
    Before GULOTTA, STOULIG and MO-RIAL, JJ.
   STOULIG, Judge.

Plaintiffs (the driver, the adult passenger, and the administrators of three minor guest passengers) have appealed a judgment dismissing their personal injury claims arising from an intersectional collision at West Metairie Avenue and Roosevelt Boulevard in the City of Kenner. Named defendants were Mr. and Mrs. Larry D. Spears and their liability insurer, Government Employees Insurance Company (GEICO).

This case was consolidated for trial with a suit filed by Spears v. Eckerle, and GEICO, La.App., 317 So.2d 296. Both suits arise from the same accident.

For the reasons - assigned in the companion case, the judgment appealed from is affirmed.

Affirmed.


author: FRUGÉ, Judge. WATSON, Judge

text:
    Lynn R. TRAHAN, Plaintiff-Appellee, v. Robert G. FRANKLAND and Charles W. Frankland, Defendants-Appellants.
    No. 5085.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 6, 1975.
    Planchard, Thompson & James, by A. J. Planchard, Sulphur, for defendants-appellants.
    J. Fred Patin, Lake Charles, for plaintiff-appellee.
    Before FRUGÉ, DOMENGEAUX and WATSON, JJ.
   FRUGÉ, Judge.

The plaintiff, Lynn R. Trahan, brought a possessory action against the defendants, Robert G. Frankland and Charles W. Frankland, seeking to maintain his possession of a strip of land approximately 50 feet in width, running north and south between properties of the parties. It was converted into a petitory action by the de--fendants. Stipulations entered at the trial on the merits relieved the defendants of the burden of proving their title, and left as the principal issue whether the plaintiff had acquired the 50 foot strip to the west of his property line by 30 years acquisitive prescription. Judgment was rendered denying the plaintiff’s claim of acquisitive prescription but granting him damages to reimburse him the cost of moving a fence from his property placed there by the defendants. The defendants have appealed contending that the trial court erred in awarding damages to the plaintiff. This appeal has been answered by the plaintiff, who asks for an increase in the award of damages and for a reversal of that part of the judgment which denies his claim of acquisitive prescription. We affirm.

By act of sale dated July 29, 1957, the plaintiff purchased from Paul Kiser Tract One of a survey of the west half of the southwest quarter of the southeast quarter of Section 15, Township 9 South, Range 10 West, Calcasieu Parish, Louisiana. By act of sale dated August 28, 1962, Robert Frankland purchased from Henry Kinney an undivided interest in and to the west half of Section 15, Township 9 South, Range 10 West, Calcasieu Parish, Louisiana. That property was partitioned on October 15, 1968, by which Robert Frankland received his portion of the property, the south half of the west half of Section 15. By act of sale dated January 18, 1968, Charles Frankland purchased an undivided interest in the west half of Section 15. The controversy in this case arose because the plaintiff was under the impression that a barbed wire fence to the west of his property marked the western boundary of his property. The defendants took the position that the property line was at some point east of this barbed wire fence. A survey was made on behalf of one of the defendants several years before the commencement of this litigation in an attempt to locate the proper boundary line between the two properties. Apparently some discussion was had between the plaintiff’s present attorney and an attorney who at that time represented one of the defendants. However, there was no resolution of the dispute, and just shortly before this suit was filed the defendants erected a fence, hereinafter designated “new fence”, on what they thought to be the property line between their property and the property owned by the plaintiff.

At the trial on the merits the plaintiff called to the stand several witnesses who testified that the barbed wire fence, hereinafter designated “old fence”, had been located in its present position for more than 30 years. One remembered it being in that position as far back as 1924. The defendants’ witnesses testified that the fence had not existed at that location in the late 1930’s and early 1940’s. The plaintiff’s witnesses were familiar with the area because of having either passed through the area while hunting or while cutting timber in the area. The defendants’ witnesses had farmed the area during the periods of which they testified. In his oral reasons for judgment the trial judge stated an affirmative belief in the credibility of the witnesses called upon to testify. He stated that he felt that some of the witnesses must have been in error as to the dates of their recollections of the location of the fence. He also suggested the possibility that the fence had existed as early as 1924 but had been removed during the period from about 1935 or 1936 to the mid or late 1940’s. With reference to the plea of prescription on the part of the plaintiff, the trial judge concluded that the plaintiff had failed to meet his burden of proof, and he declared the defendants to be the owners of the property in dispute up to the half section line dividing the west half of Section 15. He noted that the latest survey of the area, the Walton survey, indicated that the new fence erected by the defendants was located some seven feet to the east of the half section line and that this constituted a trespass on the plaintiff’s land. The trial judge awarded damages to the plaintiff for the cost to be incurred by him in removing the fence which had been placed on his property by the defendants.

The defendants have appealed alleging error on the part of the trial court in allowing damages to the plaintiff. The plaintiff has answered the appeal asking for an increase in the amount of damages awarded and for a reversal of the trial court’s determination that the plaintiff failed to prove his claim of acquisitive prescription.

We deal first with the issue of acquisitive prescription. Article 3499 of the Revised Civil Code provides as follows:

“The ownership of immovables is prescribed for by thirty years without any need of title or possession in good faith.”

Articles 3493 and 3494 provide that the possessor of an immovable is allowed to add to the sum of possession by him the sum of possession by his author in title in order to accumulate the necessary period of time for acquisitive prescription under Article 3499. Under these articles one claiming 30 years acquisitive prescription is not permitted to “tack” possession held by his vendor with whom he has no privity of estate or contract. See Stutson v. McGee, 241 La. 646, 130 So.2d 403 (1961). The plaintiff argues that in order to resolve the issues presented in this appeal we must consider the provisions of Article 852 of the Revised Civil Code, which provides as follows:

“Whether the titles, exhibited by the parties, whose lands are to be limited, consist of primitive concessions or other acts by which property may be transferred, if it be proved that the person whose title is of the latest date, or those under whom he holds, have enjoyed, in good or bad faith, uninterrupted possession during thirty years, of any quantity of land beyond that mentioned in his title, he will be permitted to retain it, and his neighbor, though he have a more ancient title, will only have a right to the excess; for if one can not prescribe against his own title', he can prescribe beyond his title or for more than it calls for, provided it be by thirty years possession.”

In Sessum v. Hemperley, 233 La. 444, 96 So.2d 832 (1957), the Louisiana Supreme Court stated as follows :

“Under the provisions of LSA-C.C. Art. 852 it is observed that one who has maintained uninterrupted possession of property within existing visible bounds during thirty years may retain the quantity so possessed by him though it be beyond and more than called for by his title. This is the possession that is essential to bring this article into operation, irrespective of the good or bad faith on the part of the possessor. There is nothing in the provisions of LSA-C.C. Art. 852 which demands the element of mutual consent of the parties. Its provisions clearly provide that possession of surplus land beyond one’s title shall entitle him to retain the same once his possession has continued uninterrupted within visible bounds for a period of thirty years.” 96 So.2d at 842. (Citations omitted).

The plaintiff contends that under Article 852 he is entitled to tack the possession of his vendor of all the property existing within the visible boundaries which he contends includes the 50 foot strip between his property and the property of the defendants. It is necessary for the plaintiff herein to establish his right to tack his vendor’s possession because his possession of the property was commenced in 1957, less than 30 years prior to the commencement of this litigation.

We reject the plaintiff’s claim of acquisitive prescription. The trial judge found as a matter of fact that the plaintiff had failed to meet his burden of proving the existence of the fence from approximately 1935 to 1948. Our review of the record indicates that the trial judge was not in error on this point. In addition, there is no evidence in the record to indicate that the plaintiff’s vendor considered the old fence as the western boundary of his property or that he had any intention of possessing up to that fence. The record indicates only that when the plaintiff purchased the property from his vendor he was aware of the location of the old fence and made certain repairs to prevent its deterioration. Apparently, he mistook the fence line as marking the western boundary of his property. For these reasons we affirm the trial judge’s denial of the plaintiff’s claim of acquisitive prescription.

Next we deal with the issue of damages. The defendants argue that under Smith v. Albritton, 153 La. 507, 96 So. 49 (1923), damages cannot be recovered when a pos-sessory action is converted into a petitory action by an answer asserting title in the defendants. Alternatively, the defendants argue that the plaintiff has failed to prove any damages with certainty.

Smith v. Albritton, supra, involved a jactitory action which was converted into a petitory action by the answer asserting title in the defendant. In denying the application for rehearing the Supreme Court stated that damages are not to be allowed in suits for slander of title when the defendant, by his answer, has converted the suit into a petitory action. The jactitory action was designed to protect possession and give the possessor the same advantages when disturbed by slander as by actual physical intrusion. Livingston v. Heerman, 9 Mart., O.S. 656 (1821); see also Bell v. Saunders, 139 La. 1037, 72 So. 727 (1916). In the present case there has been an actual physical intrusion consisting of the placement by the defendants of a fence on the plaintiff’s property. We find Smith inapplicable, and affirm the trial judge’s holding that the plaintiff is entitled to damages to reimburse him the cost of having to remove from his property the fence wrongfully placed there by the defendants.

The defendants’ contention that the plaintiff has failed to prove damages with certainty is without merit. The record supports the trial judge’s conclusion that the defendants wrongfully erected a fence on the plaintiff’s property. In order to reimburse the plaintiff the cost of removing the fence from his property the trial judge awarded him damages in the amount of $400.00. We find no error on the part of the trial judge in so ruling, and we therefore affirm that award.

For the reasons assigned the judgment of the trial court is affirmed. The costs of this appeal are to be borne by the defendants-appellants.

Affirmed.

WATSON, J., concurs in part and dissents in part, and assigns written reasons.

WATSON, Judge

(concurring in part and dissenting in part) :

I concur in the denial of plaintiff’s claim of acquisitive prescription, but I dissent as to the award of damages by the trial court. The award of $400 in damages is not supported by the evidence and, therefore, is manifestly erroneous. Hongo v. Carlton, 241 So.2d 34 (La.App. 3 Cir. 1970).

      . A survey by A. R. Walton, as well as several other surveys, was introduced into the record at trial, and Stipulations as to the accuracy of the Walton survey,were entered by the parties,