author: STOULIG, Judge. REDMANN, Judge LEMMON, Judge

text:
    Philip Glenn STRALEY v. CALONGNE DRAYAGE & STORAGE, INC.
    No. 7405.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1976.
    Rehearing Denied Oct. 13, 1976.

      J. Fred Patín, Lake Charles, for plaintiff-appellee.
    Drury, Lozes & Curry, Rene A. Curry, Jr., New Orleans, for defendant-appellant.
    Adams & Reese, Lloyd W. Hayes, New Orleans, for Smith-Willow Distributing Co., Inc., and Aetna Cas. & Sur. Co., interve-nors-appellees.
    Before SAMUEL, REDMANN, LEM-MON, GULOTTA and STOULIG, JJ.
   STOULIG, Judge.

Plaintiff, Philip Glenn Straley, filed suit for personal injuries he sustained when an elevator-hoist fell in a building leased by his employer, Smith-Willow Distributing, Inc., from defendant, Calongne Drayage & Storage, Inc. Plaintiff alleged his injury resulted from the negligent design of an unsafe elevator.

Defendant denied negligence and alternatively pleaded either plaintiff was contribu-torily negligent or Smith-Willow was negligent. Then, assuming the position of third party plaintiff, Calongne sought indemnification from Smith-Willow for any amount it was cast in judgment under a hold harmless provision in their contract of lease.

Aetna Casualty and Surety Company had paid and was paying workmen’s compensation benefits to plaintiff at the time of the trial, and it intervened for reimbursement of any sums paid should the plaintiff be successful in his suit.

From an adverse judgment awarding plaintiff $25,000; awarding intervenor the reimbursement of compensation payments; and dismissing defendant’s third party petition, Calongne has appealed.

On April 11, 1973, plaintiff, employed as a warehouseman for Smith-Willow, was operating a hoist and moving palletized furniture on the balcony level of the warehouse. Initially the furniture was loaded on a hoist at ground level by his coworker Ollie Whit and when it reached the second level 15 feet above, plaintiff was to unload the elevator, store the merchandise, and then send the hoist back to the ground level for another load.

The elevator, designed by defendant’s president R. Gerard Calongne, consisted of a 5-by-5-foot platform without sides that moved between the ground level and balcony in an angle iron superstructure. Powered electrically by a motor at the top of the shaft, it was raised and lowered by the reeling and unreeling of a chain connected to a moving platform by an open hook. Ropes that controlled the up and down movement of the hoist were attached to a motor which was located at the top of the tower 10 feet above the balcony level. These lines dangled at the ground floor level about waist high. The lift was raised by pulling on one line and keeping pressure on it and stopped by releasing the line. The other line was similarly used to lower it.

Immediately before plaintiff was injured he had unloaded a pallet from the hoist with a hydraulic jack. Because there was an aperture between the floor of the balcony and the elevator platform of approximately 1 inch, plaintiff inserted a board in the gap that rested on the lip of the balcony opening and fitted flush between the floor and the hoist, providing an almost continuous smooth surface. Plaintiff explained he did this to prevent the wheels of the jack from sticking in the opening. After he moved the loaded pallet from the hoist, he started the elevator downward and tied the down cord to the switch so that it would continue moving downward while he stored the furniture he had just removed from the elevator. Plaintiff’s reason for tying the cord to the switch was that the elevator moved slowly and he wanted to save time.

What happened when plaintiff returned to the elevator is not clear. At the trial he stated the elevator moved continuously. In his deposition he said it was stopped. In reviewing his testimony it is obvious plaintiff felt his actions in inserting the wood in the gap and/or tying down the line to keep the elevator moving had somehow caused it to squeak. As he hurriedly dropped to one knee next to the shaft and removed the inserted board, the elevator fell. Plaintiff then lost his balance and dropped to the top of the hoist in a spread eagle position. As he looked up the shaft he noticed the chain and hook near the top of the structure. He could not be sure whether the chain was or was not descending at this time.

There is nothing in the record to explain why the elevator fell, nor can plaintiff explain why he fell. Admittedly he was not a passenger on the elevator, and there is no testimony, including plaintiff’s, that his fall was caused by being struck by the elevator. He was aware of another occasion when the hook became detached from the eye at the top of the lift. At that time the platform had reached ground level and the chain continued unreeling because pressure was still being exerted on the down line. After the weight stress of the platform was eliminated, the chain became slack and the hook came out.

Based upon the testimony of the plaintiff himself and his coworker, at the time this accident happened plaintiff had deviated in two particulars from standard operating procedure. First, he inserted the board in the gap when Ollie Whit, a fellow employee, testified this action was completely unnecessary and unauthorized. Second, he activated the platform in an uncontrolled downward motion by tying the operating cord to a switch. We also know plaintiff was attempting to hurriedly remove the board he thought was causing the elevator to squeak when it fell. His testimony indicates he felt his unorthodox operation of the hoist had created the problem. We quote:

“Q When you heard the elevator squeak, did you think that had something to do with the board that you had inserted in there?
A Well, I really didn’t think it could have because the board was only about two feet wide.
Q Well, at the time did you think that the squeaking had something to do with the board being inserted in there by you?
A I must have or I wouldn’t have, you know, bent down to grab it so fast.
Q And at that point when you bent down to grab it the elevator was moving, is that right?
A Yes.
Q Because you had secured the line to the switch, right.
A Yes.
Q As a matter of fact, isn’t it correct that the thing that prompted you to remove the board was that you thought the board was causing the squeaking in the elevator?
A Probably.
Q Pardon?
A Yes, probably.”

In written reasons for judgment the trial court concluded:

“The primary cause of this accident was the design, construction and installation of the home-made elevator or hoist by the defendant Calongne. It had no safety factors of any kind built into it. It was dangerous per se. * * *

We agree with this statement to the extent that the hoist had no safety features; however, we cannot conclude plaintiff has proven the lack of safety features caused the accident. Calongne admitted it would have been safer to use a hook that could close to avoid it coming from the eye on the lift. He explained, however, the elevator was designed only to lift furniture and to be operated from the ground floor. Plaintiff admits he was instructed never to ride this elevator but he knew nothing of the instruction that it was to be operated only from the ground floor.

Liability in this case must be tested by C.C. art. 2315. To prevail plaintiff must prove fault, causation and damage, and his claim may be defeated by a successful contributory negligence defense. The landlord is not burdened with the evidentia-ry requisites of C.C. art. 2695 because the warranty obligating the lessor to deliver and maintain the premises in a safe condition from which the presumption of liability arises is limited only to the lessee and may not be extended to third parties. Plaintiff, as an employee of the lessee, does not have the advantage of C.C. art. 2695.

Nor is the defendant subject to the absolute liability imposed by C.C. art. 2322, which obligates the owner to respond in damages to anyone damaged by its “ruin.” The “ruin” contemplated is actual collapse of the edifice or one of its structures. Had the hoist in this case simply fallen without plaintiff’s having touched its controls or deviated from normal operation procedure, it might come under the absolute liability of Article 2322. However, this is not the case.

Plaintiff failed to prove causation or fault on the part of the owner. The record does not establish why the hoist fell or to explain why plaintiff fell atop the elevator since he was not struck by it. Conversely, his testimony shows he precipitated the crisis by ignoring his employer’s instructions and substituting dangerous innovations. Had he not tied down the control line to the switch, the elevator would not have continued in its downward movement. Had he not wedged the board in the gap between the hoist platform and the balcony floor the moving hoist would not have jammed. The circumstances indicate while plaintiff was attempting to pull the wedge from the jammed platform, the motor kept running, the chain kept unwinding, and the tension that kept the hoist suspended was slackened so that the hook could become disengaged from the eye. We conclude plaintiff not only failed to prove defendant’s negligence but also established his own negligence was a proximate, or at least a contributing, cause of the accident.

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

REVERSED.

REDMANN, J., dissents with written reasons.

LEMMON, J., dissents with written reasons.

REDMANN, Judge

(dissenting).

The mangled arm of plaintiff can only have been struck by the top beam of the falling elevator. Defendant building owner — the designer and manufacturer of the elevator, which had a “vice in its original construction,” C.C. 2322 — “knew” of the defects within R.S. 9:3221, and therefore cannot escape liability by having the employer-lessee assume it. This jack-leg, erector-set elevator was a menace, and fell to “ruin” within C.C. 2322; Adamson v. Westinghouse Elec. Corp., La.App.1970, 236 So.2d 556.

Contributory negligence is not a defense to the strict liability imposed on the owner by C.C. 2322.

(Furthermore, it is doubtful that plaintiff, a 19-year-old, can fairly be held con-tributorily negligent. The reasonably prudent 19-year-old would not have foreseen the danger resulting from his actions.)

We should affirm on liability and decide the quantum question.

LEMMON, Judge

(dissenting).

The evidence established that the elevator fell when the open hook became undone from the top of the elevator cage. The most plausible explanation from the evidence as to the events occurring immediately thereafter was that plaintiff was struck by the top beam of the elevator (although plaintiff could not remember being struck, nor could he testify as to what caused him to fall).

Inasmuch as the accident would not have happened if the elevator had been equipped with a safety device to prevent unhooking, the absence of this vital device was a cause-in-fact of the accident. This is so even if an act causing the elevator to unhook was also a cause-in-fact. Design of the elevator without such a safety device obviously constitutes negligence. Defendant building owner, who designed and manufactured the elevator, was responsible for this design defect. Defendant is therefore legally liable for plaintiff’s damages.

The tough problem in the case is the affirmative defense of contributory negligence, which the defendant bore the burden of proving.

Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection, the standard being that of a reasonable man under like circumstances. Smolinski v. Taulli, 276 So.2d 286 (La.1973). In considering negligence and contributory negligence, a court does not necessarily demand identical conduct of the plaintiff and the defendant. Varying factors affect what conduct the reasonable man standard requires. Hall v. Hartford Indemnity Co., 278 So.2d 795 (La.App. 4th Cir. 1973), cert. den. 281 So.2d 753 (La.).

The designer of the elevator knew or should have known that events could occur which would cause the manifestly unsafe hook to become undone. On the other hand, the 19-year-old user of the elevator, who was simply instructed to pull a control line to move the elevator and to use the elevator only for freight, could not reasonably be expected to exercise knowledgeable control over the risks which might (unfore-seeably in his mind) cause unhooking.

Even if it were proved by inference that plaintiff’s placing the thin slat of orange crate in the gap and tying the control line caused the elevator to become unhooked, his conduct in performing these acts under the circumstances did not fall below the objective standard to which a reasonable 19-year-old warehouseman with limited instruction and experience should be required to conform for his own protection.

The record supports the judgment as to Calongne’s liability.

      . Eschete v. City of New Orleans, 258 La. 133, 245 So.2d 383 (1971).

      . Weiland v. King, 281 So.2d 688 (La.1973).

        . Davis v. Royal-Globe Insurance Companies, 257 La. 523, 242 So.2d 839 (1970). See also source articles of C.C. art. 2322: C.N. 1804, art. 1386, and C.C. 1808, p. 322, art. 22.


source: Caselaw Access Project

author: MORIAL, Judge.

license: Public Domain

text:
    PITTMAN CONSTRUCTION COMPANY, INC. v. Ralph MEADOWS and American Fidelity Fire Insurance Company.
    No. 7541.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 14, 1976.
    Rehearing Denied Oct. 13, 1976.
    Stone, Pigman, Walther, Whittman & Hutchinson, Harry M. Zimmerman, Jr., New Orleans, for plaintiff-appellant.
    Bernard J. Capella, New Orleans, for defendant-appellee.
    Deutsch, Kerrigan & Stiles, A. Morgan Brian, Jr., New Orleans, for defendant-ap-pellee.
    Before STOULIG, MORIAL and BAILES, JJ.
   MORIAL, Judge.

On October 23, 1970 Pittman Construction Company, Inc. (Pittman), the prime contractor for the construction of an addition to the Charity Hospital in New Orleans, entered into a subcontract with Ralph Meadows (Meadows), an Indiana resident, for the placing of a limestone veneer on the exterior walls of the structure. For the agreed upon price of $24,000.00, Meadows was to furnish and pay for all labor, materials and equipment necessary for the completion of the exterior walls of the building. Meadows was also required to provide workmen’s compensation insurance for his employees. Additionally, in order to insure performance of the subcontract, Meadows was to provide Pittman with a bond in the amount of the subcontract.

Meadows and his employees began their work approximately on December 1, 1971. In early February 1972, it was discovered that Meadows’ workmen’s compensation insurance carrier was not qualified to do business in Louisiana. So as not to delay the completion of the project and to accommodate Meadows, it was agreed by both Pittman and Meadows that beginning the week of February 9, 1972 Pittman would carry Meadows’ employees on its payroll. This plan would, in effect, cover Meadows’ employees under Pittman’s compensation insurance policy. It was further agreed that since Meadows had been having difficulty getting local credit, Pittman would pay for certain equipment, materials and other expenses and at the completion of the job Meadows would make a settlement for all funds which Pittman had expended.

Meadows continued working under these circumstances until March 30, 1972, when he left New Orleans and returned to Indiana. At this time, all the stonework had been completed and the subcontract was substantially complete. The only work which remained was approximately 25% of the cleanup work, i. e., dismantling of scaffolding, cleaning of surfaces and pointing of joints. Meadows, believing there to be no reason for him to be present for this type of work, allowed his employees to finish the job under the supervision of his foreman.

At the completion of the job, Pittman calculated total expenditures of $31,374.30 and demanded as reimbursement from either Meadows or his surety, American Fidelity Insurance Company (American), the sum of $7,374.30 (the amount over and above the $24,000.00 subcontract price). When Meadows failed to reimburse Pittman and American denied liability in the matter, Pittman filed this suit.

After trial on the merits, the district court found that the contract price was $24,000.00; that Pittman had proved it had expended a total sum of $31,374.30; and that the balance was $7,374.30. The court noted, however, that after Meadows left New Orleans on March 30, 1972, payments subsequently made by Pittman amounted to $2,254.62. The court thereupon ruled that Meadows was entitled to have the balance due reduced by this sum and, it therefore, awarded judgment in favor of Pittman and against Meadows and American, in solido, in the full sum of $5,119.68.

Both Pittman and American filed motions for new trial limited to reargument. The trial court granted both motions and in a judgment rendered on June 9, 1975 affirmed its award of the $2,254.62 credit to Meadows. The court also amended its original judgment and dismissed Pittman’s suit against American. Pittman alone appeals alleging error in the granting of the credit to Meadows and in the dismissal of American. We reverse.

We find no basis in the record to support the granting of the credit to Meadows. Meadows agreed that Pittman would take over all payments and at the completion of the project he would make a settlement for all funds which had been expended. This agreement was, in effect, a subsequent modification of the contract which supplemented the contract’s existing provisions. Based upon undisputed evidence, the trial court found that Pittman had expended a total sum of $7,374.30 in excess of the contract price in order to complete the project. We believe that this full sum should have been awarded to Pittman.

Meadows admitted there was work still to be done after he left town. The charges for this work are all well substantiated and, in fact, the major portion of these charges consists of payments to Meadows’ employees. There is no allegation that any of the funds were not expended on the project or that any charges were excessive. Whether Meadows was present during the expenditure of the totality of these funds is of no moment. The trial court erred in denying Pittman recovery of the full sum of its expenditures.

We also find the trial court erred in its dismissal of Pittman’s suit against American. Under the provisions of the bond, American bound itself to guarantee Meadows’ faithful performance of the subcontract and all its stipulations, provisions and agreements. The guarantee does not, as American contends, limit the surety’s liability to those situations where there has been a default under the terms of the subcontract.

The subcontract provided that Meadows was to furnish workmen’s compensation insurance and that he was to complete the project for a total cost of $24,000.00. Meadows failed to furnish the insurance and the total cost exceeded the agreed upon price. Thus, two provisions of the contract were clearly breached.

American argues that it cannot be held liable due to the fact that it never received notice of the payment takeover agreement. As previously noted, the takeover scheme was a modification of the terms of the contract. The bond specifically states that “no changes or alterations of the said contract shall release the surety herein.” The bond includes no requirement of notice to the surety before an alteration becomes effective. Obligations set forth in a bond given by a compensated surety are strictly construed in favor of affording protection to the one in whose favor it is issued. F. Miller and Sons, Inc. v. Travelers Indemnity Co., 161 So.2d 349 (La.App. 3 Cir. 1964). The present bond having been issued in favor of Pittman and American having failed to show any grounds upon which to escape liability, American must be held liable in solido with Meadows for Meadows’ failure to complete the subcontract according to its terms and conditions.

For the aforestated reasons, the judgment of the district court is reversed and it is now hereby ordered, adjudged and decreed that there be judgment herein in favor of plaintiff, Pittman Construction Company, Inc., and against defendants, Ralph Meadows and American Fidelity Fire Insurance Company, in solido, in the full sum of $7,374.30, together with legal interest thereon from date of judicial demand until paid, and for all costs.

REVERSED.

      . The pertinent provision of the bond provides: “ * * * The condition of this obligation is such that if the said principal shall well and faithfully perform said contract and all its stipulations, provisions and agreements, including the prompt payment of all persons furnishing labor or materials used in the prosecution of said work, then this obligation is to be void; otherwise to remain in full force and effect.”


author: LEMMON, Judge. SAMUEL, Judge BEER, Judge

text:
    August H. BROWN v. GLOBE TOOL & ENGINEERING COMPANY et al.
    No. 8000.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 27, 1976.

      Hammett, Leake, Hammett, Hulse & Nelson, Craig R. Nelson, New Orleans, for Globe Tool & Engineering Co., third party defendant-relator.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Donald 0. Collins, New Orleans, for S. M. Rosamond, Joseph Rup-pel, Willie J. Rucker, Jr., Albert J. Dien-donne, Odell Waller, Samuel A. Rosamond, Jr., Edmore E. Himel, Jr., Joseph P. Monroe, Jr., Marjorie H. Hardie, Marilyn M. Wolf, George Burck, Frank Serpas, Ernest Leonhard, and The Travelers Ins. Co., third party plaintiffs-respondents.
    Before SAMUEL, LEMMON and BEER, JJ.
   LEMMON, Judge.

We granted Globe Tool & Engineering Company’s application for certiorari in order to review a trial court judgment which in effect overruled Globe’s exception of res judicata and judicial estoppel.

August Brown, an employee of Boland Marine & Manufacturing Company, sustained injuries in the course of his employment and filed two suits to recover his damages. The first suit, filed in federal court, sought recovery against Globe on the basis that the balancing machine manufactured by Globe was unreasonably dangerous in normal use and that his injury was caused by reason of this defect. The second suit, filed in state court, sought recovery against Globe on identical allegations and further sought recovery against certain of Boland’s executives on the basis of their individual negligence. By third party petition Boland’s executives sought indemnity or contribution against Globe, based on similar allegations relating to the design and manufacture of the balancing machine.

The federal action was tried first and resulted in a judgment in favor of Globe, the only defendant. Thereafter, Globe filed exceptions of res judicata and judicial es-toppel in the state action.

The trial court maintained the exception of res judicata as to the main demand, and the judgment dismissing plaintiff’s demand against Globe has now become final and definitive. However, while the original judgment on the exceptions had also dismissed the Boland executives’ third party demand against Globe, the trial court subsequently granted third party plaintiffs a new trial, in effect overruling the exceptions. Globe’s writ application followed.

I

The requirements of res judicata, stated in C.C. art. 2286, obviously have not been met, since identity of parties is lacking, and that exception was properly overruled.

As to judicial estoppel, Globe bases its argument on the premise that it should not be required to relitigate the issue of its liability as manufacturer, since that issue has already been fairly presented to and decided by a court of competent jurisdiction.

The threshold question, one that is frequently posed, is whether the doctrine of judicial estoppel [or, perhaps more properly, estoppel by judgment — see discussion of distinction in Stevens v. New Orleans & Northeastern R. R. Co., 341 F.Supp. 497 (E.D.La.1972)] is recognized in Louisiana. Many cases arise in which the more strictly defined doctrine of res judicata plainly does not apply, and in each case the court is faced with deciding whether to bar a second action on equity grounds.

The underlying reasoning for estoppel by judgment (and indeed for all legislation and decisions barring second actions) is that matters, once determined by a final and definitive judgment of a court of competent jurisdiction, should never again be called into question by the parties or their privies. See Heroman v. Louisiana Institute of Deaf and Dumb, 34 La.Ann. 805 (La.1882); Buillard v. Davis, 185 La. 255, 169 So. 78 (1936); Pitts v. Neugent, 184 La. 694, 175 So. 460 (La.1937); and California Co. v. Price, 234 La. 338, 99 So.2d 743 (1957).

Most cases involving estoppel by judgment have presented the problem of whether a judgment is conclusive not only of what was pleaded, but also of what might have been pleaded. This problem usually occurs because of the codal requirement for res judicata of identities of demands and causes of action, rather than merely of identity of issues. While the problem in the present case is the rarer one of lack of identity of parties, a discussion of the leading cases on estoppel by judgment is nevertheless appropriate.

II

In Hope v. Madison, 194 La. 337, 193 So. 666 (1940) the plaintiff had first sued to annul a contract (granting a mineral interest to her attorney in other litigation) on grounds of lack of consideration, misrepresentation and fraud. Being unsuccessful in that suit, she then filed an action to annul the contract as the purchase of a litigious right. The court refused to maintain the plea of res judicata, emphasizing a need for “rigid exaction of the three unities”, but did maintain an exception of no cause of action.

In Quarles v. Lewis, 226 La. 76, 75 So.2d 14 (La.1954) plaintiff had originally sued to compel specific performance of a contract to sell immovable property and obtained a judgment. Thereafter, plaintiff sought in a second suit to recover damages sustained because of the delay in the performance of the contract. The court refused to maintain an exception of res judicata, noting that the thing demanded was not the same even if the breach of contract only gave rise to one cause of action. The court further observed that common law concepts of res judicata do not prevail in Louisiana, except that the codal requirements do admit of three exceptions: (1) petitory actions, (2) partition suits, and (3) injunctions to arrest execution of judgments or writs of seizure. A fourth exception was footnoted, namely, a case in which the prior litigation was determined on questions of fact, so that even if the thing demanded was not identical, the court was precluded from again considering the same issue of fact. (In the cited cases there was identity of parties). Finally, the court distinguished several cases which “appear to be out of line with the rest of the jurisprudence”, noting that the cases were correctly decided on the basis of improper division of causes of action, but were improperly classified as maintaining exceptions of res judicata rather than of no cause of action or of judicial estoppel.

The Quarles decision was reviewed in California Co. v. Price, supra, in which a mineral lessor had originally filed a concur-sus proceeding, depositing royalties into the registry of court and impleading rival claimants of ownership of the property. Subsequently, in a second concursus proceeding involving royalties from production of different wells on the same property, the successful claimants from the first suit pleaded res judicata and judicial estoppel. Noting that validity of title was necessarily determined in the first case, the court maintained the exception of judicial estoppel, stating:

“ . . . Even if res judicata cannot be strictly applied the parties to this litigation are bound by judicial estoppel which extends to every material allegation or statement made on one side in. the prior Price case and denied on the other which was determined in the course of the proceedings.”

The court further observed that the doctrine of judicial estoppel had been specifically recognized in the Quarles case.

The California Co. case has never been overruled. It is not appropriate for this court to review that decision or to determine in this case whether the doctrine of judicial estoppel may be applied in Louisiana.

The thrust of the California Co. decision, considered with earlier and later decisions on the subject, is that when the triple identities are present, C.C. art. 2286 (contained in the section on presumptions of the chapter on proof of obligations) controls, but that when the triple identities are not present, a second action may still be barred by estoppel. Since the defense of estoppel by judgment, like the defense of fraud, is an equitable doctrine which cuts across positive law, its applicability must be decided on a case by case basis by an examination and analysis of the underlying facts and circumstances. No absolute or inflexible rules should be formulated as exceptions to the strictly defined codal provision for res judicata. Rather, estoppel by judgment should be applied when the court determines the demands of equity in a particular case dictate that an already adjudicated issue should not be relitigated and that the parties should be bound by a prior determination.

III

In the present case the identity of parties is lacking. Identity of parties, however, is not an absolute requirement for application of judicial estoppel. In Muntz v. Algiers & Gretna St. Ry. Co., 116 La. 236, 40 So. 688 (1906) an unsuccessful suit for negligence against the lessee of a railroad was held to bar, on grounds of res judicata, a subsequent similar action against the lessor railroad which might have been vicariously liable if sued in the first suit. And in McKnight v. State, 68 So.2d 652 (La.App. 1st Cir. 1953) plaintiff, after losing a tort suit against state policemen, sought to recover for the same incident against the state as employer of the officers. The state obtained a dismissal based on res judicata.

In Williams v. Marionneaux, 240 La. 713, 124 So.2d 919 (1960) the Supreme Court discussed the Muntz and McKnight cases and stated that while the essential elements of res judicata were missing, the correct result had been reached and a plea of judicial estoppel would have been appropriate procedurally.

Perhaps the most interesting case involving estoppel, when there was no identity of parties, is Cauefield v. Fidelity & Cas. Co. of N. Y., 378 F.2d 876 (5th Cir. 1967), in which 41 relatives of persons buried in a cemetery brought numerous suits for desecration as a result of cleaning operations. When the first suit came to trial, the plaintiffs in the pending Cauefield case were active participating witnesses. After nine days of trial, the suit was dismissed. When the Cauefield case came to trial, plaintiffs used the same attorney and conceded that the evidence would be the same. The court, noting that proof of desecration of any part of the cemetery was all that was needed for plaintiffs to prevail in the first action, concluded that the first case had been tacitly intended to resolve all of the claims and maintained the exception.

In the present case there was no improper division of causes of action; there was no relationship between the plaintiffs and the third party plaintiffs; the third party plaintiffs did not participate in any manner or exercise any control whatsoever in the prior action; and there was no party in that action concerned with protecting their interests. Furthermore, the third party plaintiffs had no opportunity to appear or participate in the prior action and could not ever have been joined as a defendant by the plaintiff in federal court. 33 U.S.C. § 933(i). And, finally, there is no flavor of class action.

If the prior determination of Globe’s liability were held to be binding on the third party plaintiffs under these circumstances, serious questions of substantive due process and basic fairness would be presented. This case may be decided, however, on the basis of balancing the competing equities.

That this is the third party plaintiffs’ first day in court is a factor of significant importance. Lack of an opportunity to participate in the prior decision deprived them of a choice of attorneys, arguments, and methods of procedure and of presentation of evidence.

On the other hand, although Globe has an interest in avoiding additional costly and vexatious litigation after already being subjected to expensive litigation on the issue of its liability as manufacturer, elements of cost and delay are accessory factors in most litigations. These factors alone should not outweigh a party’s right to its first and only day in court. Nor should the admitted fact that the cause of efficient judicial administration is served by avoiding additional expenses, crowded dockets, and possibility of inconsistent results.

In this case the importance of providing third party plaintiffs their day in court far outweighs the competing interests, and the facts and circumstances of this case are therefore inappropriate for application of estoppel by judgment.

Accordingly, the issuance of supervisory writs is recalled.

WRITS RECALLED.

SAMUEL, J., concurs and assigns reasons.

BEER, J., dissents and assigns reasons.

SAMUEL, Judge

(concurring).

Quite clearly, the exception must be overruled insofar as it is based on res judicata. One of the requirements of our res judicata (Civil Code Article 2286), “the demand must be between the same parties, and formed by them against each other in the same quality,” is not met.

Insofar as the exception is based on the doctrine of estoppel by judgment, for the reasons expressed in Bordelon v. Landry, La.App., 278 So.2d 173, I am of the opinion that doctrine should not judicially be made applicable in this state beyond its presently existing exceptions; and this case is not one of those exceptions.

However, even if the doctrine of estoppel by judgment is considered applicable in this case, the exception must be overruled due to an absence of identity of parties. Estop-pel by judgment properly can be applied, without taking into consideration any equities which may be involved, only to the parties to the prior action or to those persons who are vicariously or derivatively liable solely as a result of the actions of such parties. See Barnett v. Develle, La., 289 So.2d 129, 138; Baker v. Wheless Drilling Company, La.App., 303 So.2d 511, 515.

Accordingly, I respectfully concur.

BEER, Judge

(dissenting).

I respectfully dissent.

The majority opinion states that “this case may be decided, however, on the basis of balancing the competing equities.” I agree, but reject the conclusion which the majority opinion reaches when the balancing test is applied.

In my view, a balancing of the competing equities in this case should result in judicial estoppel.

The Boland executives’ claim to a day in court is not sufficient, in the circumstances of this case, to offset the combined countervailing interests of protecting Globe from expensive and vexatious litigation based upon identical contentions which they have already successfully defended and the protection of the judicial process from repetitious litigation and the public confidence shattering possibility of inconsistent results.

Manipulation of the courts in order to create two separate trials of identical issues should not automatically guarantee all inclusive due process. Circumstances may justify the according of reduced weight to a litigant’s right to a second trial of the issues already judicially determined and thus permit same to be outweighed by the combination of interests served by the imposition of judicial estoppel. Such is this case.

      . Counsel stipulated at oral argument that the trial court actually overruled the exception, although only the judgment granting the new trial was in the record which was transmitted to this court.

      . As stated in Sliman v. McBee, 311 So.2d 248 (La.1975) the term “cause of action” is a mistranslation from the French, “cause” in original context referring to the legal obligation upon which the action is founded. See also XXIX La.L.Rev. 278, 292, fn. 65 (1969).

      . Arguably, the court meant that when a party files an exception of res judicata, the three identities must be present, but the codal article does not preclude pleas of estoppel based on equity grounds or pleas of no cause of action based on grounds of improper division of causes of action.

      . The California Co. decision prompted Dean Henry G. McMahon to remark at XIX La.L.Rev. 390 (1959) that “(i)f there is anything in Louisiana law which is not res judicata, it is the subject of res judicata itself.” Ten years later Justice Albert Tate, Jr. stated that the related doctrine of judicial estoppel “in modified form, may or may.not apply in Louisiana”, citing cases both ways. XXIX La.L.Rev. 278 (1969). He observed, however, that the “might have been pleaded” view has been rejected by a decided preponderance of modem Louisiana decisions which hold that the judgment is conclusive only as to matters put at issue and actually decided.

      . In Sliman v. McBee, supra, the court observed that the applicability of judicial estoppel “in the civil law system of Louisiana is not free from doubt” and found it specifically inapplicable in that case.

      . For an excellent discussion of the considerations in applying estoppel when there is no identity of parties, see Collateral Estoppel of Nonparties, 87 Harvard L.Rev. 1485 (1974).


author: CULPEPPER, Judge. MILLER, Judge

text:
    Sam COLE, Jr., Plaintiff and Appellee, v. SEARS, ROEBUCK & COMPANY, Defendant and Appellant.
    No. 5571.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 29, 1976.
    Watson, Murchison, Crews & Arthur by William P. Crews, Jr., and Ronald E. Cor-kern, Jr., Natchitoches, for defendant and appellant.
    G. F. Thomas, Jr., Natchitoches, for plaintiff and appellee.
    Before HOOD, CULPEPPER, MILLER, DOMENGEAUX and GUIDRY, JJ.
   CULPEPPER, Judge.

Plaintiff seeks workmen’s compensation benefits for total and permanent disability resulting from an accidental injury to his back on July 22, 1975 while working for the defendant, Sears, Roebuck & Company. The district judge awarded benefits plus penalties and attorney’s fees. The defendant appealed.

The substantial issues are: (1) Did the plaintiff sustain a job-related accidental injury on July 22, 1975? (2) If so, is plaintiff entitled to penalties and attorney’s fees?

The record shows that plaintiff is 59 years of age and has been employed by the Sears, Roebuck & Company catalogue store in Natchitoches since 1956. He worked in the freight department, sorting out all incoming freight and occasionally helping customers load their purchases. The items of freight included heavy appliances, such as washing machines, stoves, refrigerators, etc.

THE ACCIDENT

The testimony is in conflict as to whether an accident occurred on July 22, 1975. Plaintiff says that at about 9:30 a. m. he was moving a heavily loaded hand truck, and the load shifted forward. He says the truck fell forward and he went with it. The front of his body fell on the truck, and he felt like he had “pulled something aloose” in his back.

Plaintiff testified that he did not complain immediately to anyone about his back injury, thinking that it would “go away”. However, shortly before noon that morning he went to the office of the manager and reported to her that he had hurt his back and had to go to the doctor. He says that at the same time he complained to the manager that his job was too heavy for one man and he wanted another employee to be assigned to help him.

Plaintiff testified he went home at noon and took a hot bath and told his wife about the injury. The next day, July 23, 1975, he went to see Dr. R. R. Sills, a general practitioner in Natchitoches. Dr. Sills had treated plaintiff for previous back complaints in 1972 and in February of 1975. Plaintiff says he told Dr. Sills his back hurt, but he could not remember whether he told the doctor on this occasion that he had injured his back at work on the previous day.

Dr. Sills testified that in view of plaintiff’s previous complaints of back pain, and the fact that he had a complaint of pain running down into his legs, the doctor suspected a herniated disc. Dr. Sills referred plaintiff to Dr. Richard Ashby, a neurosurgeon in Shreveport.

It is particularly noteworthy that Dr. Sills testified his notes of his July 23, 1975 examination showed no mention by plaintiff of any accidental injury at work on the previous day. Dr. Sills testified further that if there was a ruptured disc, it could have occurred a year or two previously.

On or about July 29, 1975, plaintiff was seen by Dr. Ashby in Shreveport. This physician hospitalized plaintiff for about two weeks for tests and examination. His final diagnosis was a ruptured disc at L4-L5. He recommended surgery, which plaintiff refused. There is no question that plaintiff is presently disabled from returning to his former employment.

Plaintiff’s wife corroborated his testimony that he came home from work at noon on July 22, 1975 and told her he had hurt his back at work that morning.

Joseph Metoyer, an employee at Sears, corroborated plaintiff’s testimony to the extent that he said he saw plaintiff leaving the store on July 22 and that he appeared to be “walking funny”. Metoyer also testified that plaintiff was “mad” when he left.

The defense witnesses testified as follows regarding the accident: Mrs. Sambrough, the manager of the store, stated that on the morning of July 22, 1975, she was in the freight room and plaintiff asked to see her. Shortly thereafter, plaintiff came to her office. She testified plaintiff complained that the work was too heavy for him to perform alone and that he needed help. Mrs. Sambrough says that on two previous occasions plaintiff had complained that Joe Maricelli, who worked in the freight room with plaintiff, was not doing his share of the work. It was Mrs. Sambrough’s testimony that on July 22 plaintiff was mad because Maricelli would not help him and he became angered and said he was going to quit. She says she told plaintiff she would check into his eligibility for retirement and let him know.

Mrs. Sambrough testified positively that on July 22 plaintiff made no mention whatever of having hurt his back that morning and that he never did file an accident report. Actually, plaintiff does not contend that he filed an accident report. He contends that he told the manager about his injury on July 22.

Joe Maricelli, who works with plaintiff in the freight room, testified that he was working with plaintiff for 30 or 40 minutes before plaintiff left and that he observed no accident or injury or anything unusual. He says plaintiff got mad because Maricelli was not helping him and that he went and complained to the manager.

As stated above, Dr. Sills testified that when he examined plaintiff on July 23, the day after the alleged accident, plaintiff made no mention of any recent back injury. In a letter which Dr. Sills mailed to Sears of date, July 29, 1975, he states that he saw Sam Cole on July 23, 1975 “for old back injury which has reoccurred”. In his testimony, Dr. Sills stated that plaintiff told him that his back was “still hurting”. From this, Dr. Sills received the impression that plaintiff was complaining of the old back injury for which he had seen plaintiff in 1972 and in February of 1975.

Three or four other employees of Sears testified they saw plaintiff at the store on July 22, 1975 and they noticed nothing abnormal about the way he walked or his behavior.

Dr. Archie Breazeale, Jr., also a general practitioner of Natchitoches, testified that he had also seen plaintiff for a strained back several times beginning in 1965. The last time this physician saw plaintiff for his back condition was in 1974.

From the above, it is seen that the testimony was in conflict as to the occurrence of the alleged accident on July 22, 1975. However, we conclude that under the rule of Canter v. Koehring Company, La., 283 So.2d 716 (1973) there is a sufficient evidentiary basis to support the finding of the trial judge, based on his evaluation of credibility, that plaintiff did sustain a job-related accident on July 22, 1975.

PENALTIES AND ATTORNEY’S FEES

The next issue is whether the trial judge erred in awarding plaintiff penalties and attorney’s fees. LSA-R.S. 23:1201.2 provides that where an employer fails to pay workmen’s compensation benefits within sixty days after demand, the employer shall be liable for penalties and attorney’s fees where such failure to pay is found to be “arbitrary, capricious, or without probable cause . . . .” Jurisprudence has construed this statute to mean that where there is a bona fide factual dispute as to whether the employee’s disability was work-related, the employer has “probable cause” to refuse to pay workmen’s compensation benefits. Wright v. Red Ball Motor Freight, In., La.App., 315 So.2d 344 (1st Cir. 1975). Also applicable here is the rule that the statute, being penal in nature, must be strictly construed. Gros v. LeBlanc, La.App., 304 So.2d 49 (1st Cir. 1974).

Applying these rules to the present case, we find there was a serious factual issue as to whether plaintiff’s disability was caused by a job-related accident on July 22, 1975. Plaintiff testified that he hurt his back about 9:30 a. m. and that he reported the accident to the manager, Mrs. Samb-rough, shortly before noon. Mrs. Samb-rough denied that plaintiff had reported any accident to her on July 22. Instead, she said plaintiff complained that Joe Maricelli would not help him in the freight room, and that he said he was going to quit work and was not coming back. Plaintiff admits he made no formal accident report. He also admits that he does not remember whether he told Dr. Sills on the day after the accident, that he had hurt his back on the job the day before. Of course, Dr. Sills testified his notes showed that on July 23, plaintiff made no mention of any recent back injury.

The testimony of Joe Maricelli, who worked with plaintiff in the freight room, seriously contradicts plaintiff’s testimony. Maricelli says he worked with plaintiff for 30 or 40 minutes immediately before plaintiff left, and that he noticed nothing unusual or abnormal about plaintiff that would indicate he had suffered an injury or had an accident. Three or four other employees stated they had seen plaintiff at the store that morning and he appeared to be normal.

The testimony of Mr. Tom Shaw, assistant personnel manager in the Dallas office of Sears, shows that Sears carries its own workmen’s compensation insurance. An investigation was made by Sears in which it considered the statements by Mrs. Samb-rough and Joe Maricelli, as well as the statements of other store employees. Mr. Shaw also testified he considered the letter written by Dr. Sills of date, July 29, 1975, in which Dr. Sills makes no mention of any work-related accident on July 22. All of this information was referred to the legal department of Sears, and a determination, was made to refuse workmen’s compensation benefits on the grounds that there was no job-related accident on July 22, 1975.

Plaintiff contends defendant should have known from Dr. Ashby’s report that plaintiff suffered an injury at work on July 22, 1975. Dr. Ashby did not testify, but in his letter report to Dr. Sills, he states that plaintiff had a history of an injury on the job about two weeks before. Plaintiff testified he told Dr. Ashby he hurt his back at work on July 22, 1975. This explains Dr. Ashby giving this history in his report. However, defendant was not bound by this mere statement of history which the doctor had obviously received from plaintiff himself.

We conclude there is a serious factual issue as to whether a job-related accident occurred on July 22 and that Sears was entitled to assert this as a bona fide defense for court determination. Accordingly, the defendant is not liable for penalties or attorney’s fees.

THE DECREE

For the reasons assigned, the judgment appealed is amended so as to delete therefrom the award to plaintiff of penalties and attorney’s fees. Otherwise, the judgment is affirmed. All costs of this appeal are assessed against the defendant-appellant.

AFFIRMED, AS AMENDED.

MILLER, J., dissents and assigns written reasons.

MILLER, Judge

(concurring in part; in part dissenting).

The trial court award of total and permanent workmen’s compensation benefits to plaintiff Sam Cole, Jr. is properly affirmed. I respectfully dissent to the reversal of the trial court award of penalties and attorney fees.

I firmly agree that employers are not arbitrary when they, in good faith, undertake to defend a workmen’s compensation claim on the ground that the workman failed to prove the occurrence of an accident. My position is that defendant has failed to establish manifest error in the trial court determination that Sears’ defense in this case was not undertaken in good faith.

Plaintiff Cole established that Sears followed a pattern of conduct to handle his workmen’s compensation claims as health and accident insurance disability benefit claims. Following the accident which is the subject of this compensation award, Sears immediately commenced insurance disability benefits payable to- Cole — benefits which amounted to full pay for ten weeks, then half pay for an additional ten weeks. Immediately thereafter, Cole was processed for early retirement.

It must be remembered that this 59 year old employee had been employed by Sears’ Natchitoches catalog store .for nineteen years. On five separate occasions in the past ten years Cole injured his back in job related accidents. So far as this record indicates, every one of these on the job accidents resulted in insurance disability benefits and not one was handled as a workmen’s compensation claim.

Cole’s failure to file an accident report is not as significant as Sears contends. Only one accident report had been filed concerning Cole’s five previous on the job back injuries, and that one report related to insurance disability benefits. It had been made out by a Sears employee and was signed by Cole eight weeks after that accident.

Considering Sears pattern of conduct (in paying health and accident insurance disability benefits instead of workmen’s compensation benefits for on the job accidents) and the extreme difficulty Cole demonstrated in articulating his problems, I do not find it significant that Cole failed to file an accident report.

These seem to be adequate reasons for refusing to find manifest error in the award of penalties. Furthermore the trial judge was impressed by the fact that Sears failed to promptly pay Cole’s extensive medical bills. Sears acknowledged they did not promptly pay Cole’s medical bills, even though they were obligated to pay a substantial part of these bills under an employee’s insurance plan.

The trial court made a factual determination based on credibility when he found Sears’ defense of this claim to be arbitrary. When evidence is before the trier of fact which, upon a reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, the appellate court should not disturb this finding absent manifest error, even though the appellate court may believe its own evaluations and inferences are as reasonable. Constance v. Smith, 326 So.2d 905 at 906 (La.App. 3 Cir. 1976).

A workmen’s compensation claimant is entitled to penalties and attorney fees when the employer is arbitrary, capricious or without probable cause in refusing compensation. LSA-R.S. 23:1201.2; Gauthier v. Employers National Insurance Co., 316 So.2d 769 (La.App. 1 Cir. 1975).

Penalties were awarded because Sears was unable to satisfactorily explain why they ignored 1) the treating neurosurgeon’s August 18, 1975 report that Cole was injured on the job, and 2) Cole’s attorney’s reports of the accident. All of these were received more than sixty days before suit was filed.

Failing to find manifest error in the trial court determination that penalties and attorney fees are due, I respectfully dissent to that reversal.


author: PETERS, Judge ad hoc.

text:
    Marie B. BORDELON, Plaintiff-Appellant, v. HAAS INVESTMENT COMPANY, INC., Defendant-Appellee.
    No. 5583.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 29, 1976.
    Riddle, Bennett & Ryland by John T. Bennett, Marksville, for plaintiff-appellant.
    LaBorde & Lafargue by C. E. Laborde, Jr., Marksville, for defendant-appellee.
    Before MILLER, WATSON, and PETERS, JJ.
   PETERS, Judge ad hoc.

This is an action to remove a cloud from title. The lower court dismissed the suit on an exception of no cause of action and plaintiff has appealed.

Plaintiff alleged in her petition that by deed filed of record on June 7, 1958, she acquired and went into possession of the following described property:

“A certain tract or parcel of land lying, being and situated in the 10th Ward of Avoyelles Parish, Louisiana, containing 228 acres, more or less, bounded now or formerly on the North by C. Tanner, South by B. Weil, East by Bostick, and West by C. E. Normand, see Conveyance Book A-30, page 331, records of Avo-yelles Parish, Louisiana.”

Plaintiff further alleged in her petition that subsequent to her purchase of the property, on May 21, 1960, she redeemed the property at a tax sale, which sale was recorded June 1, 1960. Further, a redemption deed in plaintiff’s favor was recorded on July 27, 1960.

Plaintiff further alleged that on or about July 17, 1951, defendant recorded an act of sale of the following property:

“A certain tract or parcel of land lying, being and situated in Avoyelles Parish, Louisiana, containing 120 acres, more or less, being the East Vfe of the East k, the NWVi of the NWVi, the WV2 of the SEVi, Section 30, TIN, R3E, acquired by Larry Marchand in Conveyance Book A-137, page 513, Records of Avoyelles Parish Clerk of Court.”

She alleged this instrument cast a cloud upon plaintiff’s title and plaintiff prayed to have this instrument ordered cancelled and erased from the public records.

We find the exception of no cause of action was properly sustained and therefore affirm the dismissal of the suit.

At the outset, we must consider defendant’s argument that there is no longer any Action to Remove Cloud from Title in Louisiana law. In Walmsley v. Pan American Petroleum Corporation, 244 La. 513, 153 So.2d 375 (1963), our Supreme Court held that this action survived enactment of the Code of Civil Procedure in 1960. Although the Walmsley decision has been much criticized it has never been overruled. However, this court, in Verret v. Norwood (La.App. 3rd Cir., 1975), 311 So.2d 86, held that in an Action to Remove Cloud, the plaintiff must meet the same burden of proof as would be required of him by LSA-C.C.P. 3653 in a petitory action. The Supreme Court denied certiorari in Verret, 313 So.2d 842 (1975), and three justices, one in dissenting and two in concurring in the denial of review, intimated the Walmsley decision was incorrectly decided and the Action to Remove Cloud from Title was abolished by the enactment of the Code of Civil Procedure in 1960. Thus, the continued validity of Walmsley is uncertain at the present time. However, we need not rule on this issue for plaintiff’s petition fails to state a cause of action even under the established jurisprudence concerning the Action to Remove Cloud.

In Walmsley, the court said, at page 378: “It is necessary in connection with plaintiffs’ action to remove a cloud from title that they allege a basis for such a demand. Here they have alleged their perfect record ownership and that allegation is made merely to serve as a basis for their right to have the cloud removed from their title.”

In the instant case, no basis was alleged for the demand that defendant’s act of sale be cancelled and erased from the records. There is no allegation that plaintiff’s title to the property described in her deeds is perfect or better than that of defendant. Furthermore, there is no allegation that the property allegedly claimed by defendant by virtue of its act of sale is the same land acquired and claimed by plaintiff. The description of land in plaintiff’s title is different from that in defendant’s title, and without additional allegations to show that plaintiff and defendant are claiming the same tract of land, the petition does not allege any facts which show the recordation of defendant’s act of sale is casting any cloud on plaintiff’s title.

Quite simply, plaintiff’s petition does not allege such facts as would entitle her to any relief. For this reason, the exception of no cause of action was properly sustained. Guillory v. Nicklos Oil and Gas Company (La.App. 3rd Cir., 1975), 315 So.2d 878; American Bank and Trust Company v. French (La.App. 1st Cir., 1969), 226 So.2d 580.

For the reasons assigned, the judgment of the lower court is affirmed at plaintiff-appellant’s costs.

Affirmed.


author: HOOD, Judge.

text:
    Nolton LEDOUX, Individually and as Administrator of the Estate of his minor child, Frances Ledoux, Plaintiffs-Appellees, v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY et al., Defendants-Appellants.
    No. 5600.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 29, 1976.
    Pucheu & Pucheu by Jacque B. Pucheu, Sr., Eunice, Dubuisson, Brinkhaus, Gugliel-mo & Dauzat by William A. Brinkhaus, Opelousas, for defendants-appellants.
    Guillory, McGee & Mayeux by Robert K. Guillory, Eunice, for plaintiffs-appellees.
    Before HOOD, MILLER and WATSON, JJ.
   HOOD, Judge.

Nolton Ledoux and his daughter, Frances Ledoux, claim damages for personal injuries sustained by the latter as a result of an automobile accident. The defendants are Southern Farm Bureau Casualty Insurance Company, Ronald Dale Thibodeaux and Lela Thibodeaux Manuel. A judgment was rendered by the district court in favor of plaintiffs, and defendants Thibodeaux and Manuel appealed.

A number of questions are presented. We believe, however, that the decisive issue to be determined on this appeal is whether the judgment appealed from is null because of the fact that it was signed by a judge other than the judge who presided at the trial and took the case under advisement.

This case was tried on its merits before Judge Joseph A. LaHaye, one of the duly elected judges of the Twenty-Seventh Judicial District Court, in and for St. Landry Parish. At the conclusion of the trial Judge LaHaye took the case under advisement, and later, on July 10,1975, he assigned and filed in open court his written reasons for judgment. As shown in his reasons for judgment, Judge LaHaye decided the issues presented, finding that plaintiffs are entitled to recover from defendants the aggregate sum of $345,943.26 as damages. He concluded his reasons for judgment with the statement, “Judgment will be prepared in accordance with these reasons and submitted to the court for signature.” The minutes of the trial court for July 10, 1975, show with reference to this case, “Reasons for Judgment and all attorneys of record notified.”

On July 17, 1975, a formal judgment was rendered and signed by Judge H. Garland Pavy, who also is a duly elected judge of the Twenty-Seventh Judicial District Court, in and for St. Landry Parish. Judge Pavy, of course, did not preside at the trial of this case, he did not take it under advisement, he did not assign reasons for judgment and he did not decide any of the issues presented prior to the time the above decree was signed. The judgment which was signed by Judge Pavy concludes with the words, “Judgment read, rendered and signed in open court this 17th day of July, 1975, at Opelousas, Louisiana.” The minutes of the district court for July 17, 1975, show the following with reference to this case: “Judgment rendered in favor of plaintiff, read and signed in open court. See decree.”

Judge Pavy stated that he did not talk to Judge LaHaye, and that he did not read the latter’s reasons for judgment, before he rendered and signed the judgment which is now before us on appeal. No contention is made here, however, that the judgment rendered and signed by Judge Pavy was inconsistent with the conclusion which had been reached by the trial judge, as shown in the latter’s reasons for judgment.

Immediately after the above judgment was signed by Judge Pavy, and pursuant to a request made by plaintiffs, the Clerk of Court issued a writ of fieri facias and a writ of attachment authorizing the seizure of certain property allegedly owned by defendants.

On the next day, July 18, 1975, defendants Thibodeaux and Manuel sought and obtained a rule directing plaintiffs and others to show cause why the judgment rendered on July 17 should not be decreed to be null and void, why the writs of fieri facias and attachment should not be can-celled and why defendants’ property should not be released from seizure. They alleged, as a ground for demanding that the judgment be annulled, that Judge Pavy had no authority to sign the decree since the case was tried before another judge. The rule issued in response to defendants’ application was tried before Judge Pavy, and on August 28, 1975, Judge Pavy rendered judgment (1) dismissing the rule insofar as it sought to annul the judgment signed on July 17; and (2) making the rule absolute insofar as it sought to annul the writ of fieri facias and the seizure of defendants’ property.

Defendants filed a motion for a new trial which was denied, and two of the defendants thereupon appealed from the judgment rendered on July 17, 1975. One of their arguments on this appeal is that the judgment appealed from is null because it was signed by Judge Pavy instead of by Judge LaHaye. Defendants contend that Judge LaHaye is the only judge who had authority to sign the decree, since he was the trial judge, he took the case under advisement, and he handed down written reasons for judgment indicating the conclusions he had reached.

We have decided that Judge Pavy did not have authority to render and sign the judgment appealed from, and that the case must be remanded to the district court in order to enable Judge LaHaye, the trial judge, to render and sign such a judgment.

LSA-C.C.P. art. 1911 is included in Title VI, Chapter 3, of the Louisiana Code of Civil Procedure. Title VI is entitled “Judgments,” and Chapter 3 of that title is labeled “Rendition.” Article 1911, as amended in 1974, provides that “Except as otherwise provided by law, all final judgments shall be signed by the judge.” We think the term, “the judge,” as used in that article, means the judge before whom the case was tried. If the redactors of the code had intended to provide that another judge could read and sign the judgment, we believe they would have used the words “a judge,” or “a judge of the same court,” or some other similar language, instead of simply “the judge.”

Comment (c) under LSA-C.C.P. art. 1918 states that Article 1911 of the Code of Civil Procedure, and two other articles, require “that the judgment be signed by the trial judge, with certain exceptions.” We think the term, “the trial judge,” as used in that comment, means the judge who presided at the trial. The authors of that comment thus apparently felt that “the trial judge,” or the judge who presided at the trial, was required to sign the judgment.

LSA-C.C.P. art. 1917, which also is included in Title VI, Chapter 3, of the Code of Civil Procedure, provides that “the court when requested to do so by a party shall give in writing its findings of fact and reasons for judgment.” When that article is read in connection with the other articles in the- same chapter, we think it means that the judge who renders and signs the judgment may be required to give his findings of fact and reasons for judgment. That could be done only by the judge who presided at the trial of the case. Article 1917 indicates, therefore, that the judgment should be rendered and signed by the same judge who presided at the trial.

LSA-R.S. 13:4207, relating to maximum delays for decisions in some cases, provides that “The district judges and the judges of the city courts, shall render judgments in all cases taken under advisement by them . .” Judge LaHaye took the instant suit under advisement, and the above statute seems to require that he render judgment in that case.

LSA-R.S. 13:4209 provides:

“In all cases where cases are heard and taken under advisement of the district judge or judges of the city courts, if the judge before whom a case is tried should die, resign, or be removed from office, or should his term expire before rendering his judgment in the case, his successor in office shall decide the case from the evidence in the record, if all of the testimony is in writing, but if it should be a case in which the testimony has not been reduced to writing, the succeeding judge shall decide the case from a statement of the facts, if one be found in the record, or if the parties to the suit agree upon a statement of facts, and if the testimony be not in the record, and there be no statement of facts, the case shall be tried de novo.”

That statute makes provision for deciding a case which was tried and taken under advisement by a judge who dies, resigns, is removed from office or whose term expires. There is an implication, of course, that the case cannot be decided by any judge other than the one who heard the case and took it under advisement, except where one of those circumstances exists. No such circumstance exists in the instant suit.

After considering all of the above statutes, we have concluded that generally when a case has been tried before and taken under advisement by a judge, the judgment must be signed by that judge. We recognize the exception to that rule made by LSA-R.S. 13:4209, but we have pointed out that that statute is not applicable here.

We find no merit to plaintiffs’ argument that Judge Pavy performed merely a “ministerial act” in signing the judgment, and that he had authority to sign the judgment under the inherent judicial power granted to him by LSA-C.C.P. art. 191. We also cannot agree with plaintiffs’ argument that the rules of the Twenty-Seventh Judicial District Court gave Judge Pavy the authority to sign this judgment solely because he was the “Duty Judge” that day, and, as such he was authorized by the rules “to dispose of all matters which present themselves.”

Our conclusion is that a judge of a district court has no authority to render and sign a judgment in a case which was tried before and taken under advisement by another judge of that court, except as provided in LSA-R.S. 13:4209. We also believe that the better rule is to provide that only the judge who tried the case has authority to render and sign the judgment in that case. To hold otherwise may lead to confusion, particularly in cases where two or more judges sign conflicting judgments purporting to finally decide the same case.

For the reasons herein set out, judgment is hereby rendered annulling the judgment rendered and signed on July 17, 1975. The case is remanded to the trial court in order to enable Judge Joseph A. LaHaye, the trial judge, to render and sign a proper judgment. The right to appeal from such a judgment is reserved to all parties. The costs of this appeal are assessed to plaintiffs-appellees.

JUDGMENT ANNULLED and CASE REMANDED.


author: MILLER, Judge.

text:
    George EAMES, Plaintiff-Appellant, v. Ray GOODWIN and Ronnie Goodwin, Defendants-Appellees.
    No. 5603.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 29, 1976.
    George Eames, in pro. per.

      John Sturgeon, Ferriday, for plaintiff-appellant.
    Smith, Taliaferro, Seibert & Boothe by J. W. Seibert, III, Jonesville, for defendant-appellee.
    Before HOOD, MILLER and WATSON, JJ.
   MILLER, Judge.

Plaintiff landowner George Eames appeals the judgment dismissing his rule to evict defendants tenants Ray Goodwin and Ronnie Goodwin from his 750 acre soybean farm. The trial court held Goodwins’ verbal predial lease was on a calendar year basis and was tacitly reconducted when landowner failed to take some action to evict tenants during the month of January, 1976. We reverse.

In July of 1973, landowner and Ray Goodwin (on behalf of tenants) signed a written lease covering the period July 3, 1973 through December 31, 1973; tenants were to farm soybeans on landowner’s property and pay landowner the value of 25% of the crop or $8,000, which ever was greater. The written contract granted tenants an option to enter into a five year lease commencing in January of 1974, but this option was not exercised.

The crops for calendar years 1974 and 1975 were farmed by the Goodwins under a tacit reconduction of the 1973 lease. In the spring of 1975 landowner put tenants on notice that he intended to farm his own land in 1976. This factual finding by the trial court is supported by the evidence. It is confirmed by the following facts: 1) tenants saw landowner ditching a 200 acre portion of the 750 acre tract during the spring of 1975; 2) in December 1975 Ronnie Goodwin asked landowner if he could have a hunting lease on the 750 acre tract; 3) in March 1976 Ronnie Goodwin asked landowner if he could store his equipment on landowner’s premises and landowner agreed; and 4) tenants sought the advice of an attorney in the spring of 1975 and tenants concluded that if they would record the 1973 lease in the public records, they would be entitled to farm the property for the five year period ending in 1978 even though they had not exercised their option. Tenants’ testimony uniformly indicates they interpreted the written contract, which they recorded in August 1975, to grant them exclusive rights to farm the 750 acre tract through the 1978 crop year. Nevertheless, their counsel concedes that the option to lease the tract through 1978 was not exercised.

After the notice given in the spring of 1975, landowner did not give further notice that the predial lease would terminate at the end of the 1975 crop year until March 1976, and the eviction proceedings were filed on March 30, 1976.

Notwithstanding the notice received by tenants in the spring of 1975 that landowner would farm his own tract during the 1976 crop year, the trial court refused to evict tenants because no action was taken during the first month of 1976 to cause defendants tenants to deliver up possession of the estate. The trial court acknowledged that for predial leases, written notice is not required by LSA-C.C. art. 2688, but held that landowner must take action to evict his tenant(s) during the month following expiration of the lease. We do not find C.C. art. 2688 to require this interpretation.

With emphasis by us, C.C. art. 2688 is quoted.

If, after the lease of a predial estate has expired, the farmer should still continue to possess the same during one month without any step having been taken, either by the lessor or by a new lessee, to cause him to deliver up the possession of the estate, the former lease shall continue subject to the same clauses and conditions which it contained; but it shall continue only for the year next following the expiration of the lease.

The emphasized words “having been taken” indicates the past tense. Tacit re-conduction is to apply only when no action has been taken before the lease expires. This interpretation is supported by the verb tenses used in the following article, C.C. art. 2689: — “if the tenant either of a house or a room should continue in possession for a week after his lease has expired, without any opposition BEING made thereto by the lessor, the lease shall be presumed to have been continued . . ” (All emphasis supplied.)

The same basic phrase is used in both articles 2688 and 2689, however, one is in the present tense and one in the past. To support the trial court’s holding, the italicized section of art. 2688 should read “without any step BEING taken.”

We recognize the article is subject to the other interpretation, but the other interpretation fails to grasp the fact that tacit reconduction applies when the parties have not expressed a contrary intent; it applies when the parties have been silent on the issue of cancellation of the predial lease and have implied that the lease is to be renewed. Tacit reconduction has no application when either party has announced his intention not to renew the lease on the same terms or for a full year. Tacit recon-duetion does not apply when one party has announced his intention to terminate the lease. It is not to be used to force a contract upon parties unwilling to contract, but merely to establish a rule of evidence, or a presumption, as to their intention when a contrary intent has not been expressed. Ashton Realty Company v. Prowell, 165 La. 328, 115 So. 579 (1928). While Ashton Realty Company can be distinguished from this case on the facts, the validity of the foregoing statement has not been questioned; it has been cited with approval. Scanlan v. Haristy, 316 So.2d 841 (La.App. 3 Cir. 1975); Prisock v. Boyd, 199 So.2d 373 (La.App. 2 Cir. 1967). Although these cases can also be distinguished on the basis that eviction proceedings were instituted during the month following termination of the lease, we don’t find that distinction to be decisive of the issue before us.

In summary, in the spring of 1975 landowner terminated the predial lease by verbally notifying tenants that he would farm the tract in 1976. The lease which had been tacitly reconducted for 1974 and 1975 was not subject to reconduction for the year 1976 because, in the spring of 1975, the contract was terminated effective December 31, 1975. Having terminated the predial lease in this manner, landowner was not required to give additional notice or to file eviction proceedings within “one month” immediately following expiration of the predial lease.

The trial court judgment is set aside and reversed. It is ordered, adjudged and decreed that there be judgment in favor of plaintiff George Eames and against defendants Ray Goodwin and Ronnie Goodwin ordering defendants to be evicted from plaintiff’s 750 acre tract. All costs, both at trial and on appeal, are taxed to defendants.

REVERSED and RENDERED.


author: WATSON, Judge.

text:
    Cindy FARRAR and R. W. Farrar, Jr., Plaintiffs-Appellees, v. SWEDISH HEALTH SPA, Defendant-Appellant.
    No. 5604.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 29, 1976.

      Baggett, McClain & Morgan by Robert C. McCall, Lake Charles, for plaintiff-appellant.
    Raggio, Farrar, Cappel & Chozen by Stephan A. Berniard, Jr., Lake Charles, for defendant-appellee.
    Before HOOD, MILLER and WATSON, JJ.
   WATSON, Judge.

Defendant, Swedish Health Spa, has appealed from a summary judgment awarding plaintiff, Cindy Farrar, and the intervenor, R. W. Farrar, Jr., the amount of $324.31, which was paid by Farrar after Cindy signed a form taking out a spa membership and charged it on Farrar’s Master Charge card.

The facts are as follows:

Plaintiff, Cindy Farrar, signed a form at the Oak Park Swedish Health Spa for a two-year membership at a price of $324.31. The printed form used is by its terms an agreement for the sale of movable property with reservation of a chattel mortgage, and states that it is “negotiable paper” and that the buyer is “of lawful age”. The form is dated February 21, 1974. Across the bottom is written “Paid in Full Master Charge”.

Cindy filed this petition for restitution alleging: that she was born January 29, 1957, and was seventeen years of age, an unemancipated minor, on February 21, 1974; that she did not ratify the agreement after reaching majority; that she did not have the capacity to contract on February 21, 1974, under LSA-C.C. art. 1785; and that she is entitled to annulment of the agreement and restitution of the price. An exception was filed to plaintiff’s petition alleging that the payment was actually made by Cindy’s father, R. W. Farrar, Jr., through a Master Charge credit card. R. W. Farrar, Jr. then intervened, alleging that he paid the $324.31 charged to his Master Charge credit card and had an interest in the suit.

The Farrars, father and daughter, moved for summary judgment and each filed a supporting affidavit. Nothing was filed by the spa in opposition although counsel for the spa objected to the Farrar affidavits. It is stipulated that the various documents, including the Master Charge slip and the purported contract are in evidence.

The affidavit of Cindy recites that she never used the facilities or services of the Swedish Health Spa subsequent to the date of the agreement and that she used her father’s Master Charge credit card to pay the $324.31.

The affidavit of Farrar recites that he paid his Master Charge bill but then advised the spa that his daughter was a minor and asked that the price be refunded.

Summary judgment was rendered on the basis of affidavits by Farrar and Cindy, awarding plaintiff and intervenor $324.31.

There appears from the record no genuine issue as to material fact so the decisive question on appeal is whether the Farrars were “ . . . entitled to judgment as a matter of law.” LSA-C.C.P. art. 966.

The spa contends that the trial court erred in several particulars and we will consider these in resolving the question as to whether the Farrars are entitled to judgment. Appellant contends the trial court erred:

(1) in not giving the spa a continuance to enable it to produce counter affidavits;
(2) in not applying an estoppel theory to prevent the father from taking advantage of the daughter’s minority to recover the amount paid;
(3) in not finding that Farrar’s payment of a natural obligation ratified it and barred suit for recovery.

CONTINUANCE

As to the first assignment of error, the record does not show that a continuance was requested or denied by the trial court. It is contended that there may have been some desire to file counter-affidavits, but we find no real contention that there are factual issues. LSA-C.C.P. art. 967. Counsel for the spa concedes in brief that “[t]he factual questions are largely not disputed”.

ESTOPPEL

The next issue is whether Farrar’s payment of the Master Charge bill operates as an estoppel which bars this action for restitution.

There is no question that the spa could not obtain affirmative performance of this alleged contract with the minor. Aside from Cindy’s minority, there are other deficiencies. Among them is the fact that the form is not executed by anyone on behalf of the spa and represents to some extent a unilateral promise to pay by the minor. Simple lesion relieves a minor of every species of contract, and one who deals with a minor must accept the consequences of the legal protection afforded minors in contractual relationships. Wilkinson v. Wilkinson, 323 So.2d 120 (La., 1975).

Wilkinson, supra, analyzes the doctrine of equitable estoppel. Estoppels are not favored in Louisiana. To rely on estoppel, the spa would have to show that it had changed its position to its detriment in reliance on Farrar’s action. There is no indication here of either justifiable reliance or a change in position, and the spa cannot avail itself of the doctrine of equitable es-toppel.

PAYMENT

The next issue presented is whether Far-rar’s payment of the Master Charge bill ratified the contract and prevents recovery of the amount paid, alleged to be in satisfaction of a natural obligation.

A minor can validly contract for necessaries for his support or education and can accept a contract of mandate under certain circumstances; other contracts of a minor may be ratified. LSA-C.C. art. 1785. Here, we are not dealing with necessities, and the record does not indicate whether a mandate theory is applicable. There is no evidence that Cindy was authorized to use her father’s credit card and no indication of the way in which she obtained it. There was no ratification by Cindy after majority. LSA-C.C. art. 1875.

As to the father’s payment, a natural obligation is defined in LSA-C.C. art. 1757(2):

“A natural obligation is one which can not be enforced by action, but which is binding on the party who makes it, in conscience and according to natural justice.”

LSA-C.C. art. 1759 provides:

“No suit will lie to recover what has been paid, or given in compliance with a natural obligation. * * *”

The problem with finding a natural obligation on the part of the father here is that no advantage accrued to the minor, because no use was made of the spa facilities. Had the father intended a ratification of the agreement by his payment, Cindy would presumably have availed herself of the benefits purchased.

The payment was not made directly but to a credit card company. Credit cards such as Master Charge are to some extent a new element in our society; the issuing bank is a third party interposed between the merchant and the purchaser. The bank charges a fee to the merchants honoring the card and collects interest on unpaid balances from the customers, furnishing a service to both parties and acting to some extent as a collection agency for the merchants.

The Louisiana rule as to ratification of contracts is as follows:

“No intention to ratify will be inferred when the act can be otherwise explained . And in case of doubt the party against whom ratification or voluntary execution is claimed must have the benefit of the doubt" Derouen’s Estate v. General Motors Acceptance Corp., 245 La. 615, 159 So.2d 695 at 698 (1964).

Farrar’s payment of his Master Charge bill is an act that does not necessarily imply an intent to ratify Cindy’s agreement. It can be otherwise explained.

To refuse to pay the credit card bill may well have resulted in interest charges, damage to his credit rating or cancellation of the card. Few substantial citizens desire to jeopardize their credit standing in such a manner. We find no ratification by Farrar.

The trial court correctly concluded that Farrar is entitled to restitution of the sum paid. The spa has an obligation to repay it under LSA-C.C. art. 2301:

“He who receives what is not due to him, whether he receives it through error or knowingly, obliges himself to restore it to him from whom he has unduly received it.”

However, since it was Farrar and not Cindy who paid, we find that the judgment incorrectly gave judgment to both. Therefore, the judgment will be amended to omit the name of Cindy Farrar as a party entitled to judgment.

Costs are taxed against the Swedish Health Spa.

AMENDED AND AFFIRMED.

      . LSA-C.C. arts. 1860 and 1864:
      “Art. 1860. Lesion is the injury suffered by one who does not receive a full equivalent for what he gives in a commutative contract. The remedy given for this injury, is founded on its being the effect of implied error or imposition; for, in every commutative contract, equivalents are supposed to be given and received.”
      “Art. 1864. Minors, not emancipated, are re-lievable against simple lesion in every species of contract. That is called simple lesion, in which the amount to be suffered by it, is not designated by law, as it is in the cases above mentioned of partition and sale between persons of full age.”


author: HOOD, Judge. WATSON, Judge

text:
    Willie M. CROOKS, Plaintiff-Appellee, v. SOUTHERN CASUALTY INSURANCE COMPANY et al., Defendants-Appellants.
    No. 5607.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 29, 1976.

      Holloway, Baker, Culpepper & Brunson by Bobby L. Culpepper, Jonesboro, for defendants-appellants.
    Neblett, Führer & Broussard by Robert B. Neblett, Jr., Alexandria, for plaintiff-ap-pellee.
    Before HOOD, MILLER and WATSON, JJ.
   HOOD, Judge.

This is a workmen’s compensation suit instituted by William M. Crooks against Tioga Timber Company, Inc., and its insurer, Southern Casualty Insurance Company. Judgment was rendered by the trial court in favor of plaintiff, awarding him compensation benefits based on a finding of total and permanent disability, plus penalties and attorney’s fees, subject to a credit for the amounts previously paid. Defendants appealed. Plaintiff answered the appeal praying that the amount awarded as attorney’s fees be increased.

The sole issues presented are whether plaintiff is entitled to recover penalties and attorney’s fees, and if so, whether the amount awarded as attorney’s fees is excessive or inadequate.

Plaintiff sustained an injury to his right leg on September 13, 1971, while cutting timber or pulpwood for Tioga Timber Company. He was examined and treated by Dr. Daniel Kingsley, an orthopaedic surgeon, on the day the accident occurred, and he has been under the treatment of that doctor continuously since that date.

The defendant insurer paid workmen’s compensation benefits to plaintiff at the rate of $49.00 per week from the date of the accident, September 13, 1971, until October 30, 1975. It discontinued paying those benefits on October 30, 1975, however, and no other compensation benefits have been paid to plaintiff since that date. The aggregate sum of $10,535.00 was paid to plaintiff as compensation benefits before the suit was filed, and $2,459.89 was paid as medical expenses.

This suit was instituted on November 10, 1975. The trial was held on March 18, 1976. The trial judge concluded that plaintiff has been totally disabled since the date of the accident, and that defendants were arbitrary, capricious, or without probable cause, in discontinuing the payment of compensation benefits on October 30, 1975. He rendered judgment in favor of plaintiff, awarding him compensation at the rate of $49.00 per week, beginning September 13, 1971, and continuing for a period not to exceed 500 weeks, together with penalties and attorney’s fees, subject to a credit for the amounts previously paid. The sum of $2,000.00 was awarded to plaintiff as attorney’s fees.

The evidence shows that plaintiff has been totally disabled within the meaning of the workmen’s compensation act since September 13, 1971. Defendants apparently concede on this appeal that plaintiff is still disabled. They argue here, however, that they had “probable cause” to discontinue the payment of compensation benefits, that they were not arbitrary or capricious in doing so, and that the trial judge erred in condemning them to pay penalties and attorney’s fees.

A determination of the question of whether the discontinuance of compensation is arbitrary, capricious, or without probable cause, depends primarily upon the facts existing and known to the employer, or to its insurer, at the time the payments were stopped. Lee v. Smith, 248 La. 16, 176 So.2d 413 (1965); Arthur v. McConnell, 286 So.2d 499 (La.App. 2 Cir. 1973).

Dr. C. W. Lowrey, an orthopaedic surgeon, examined plaintiff on December 18, 1972, and reported to the defendant insurer at that time that in his opinion Crooks had about a 30 to 35 percent impairment of the right leg as a whole.

Dr. Kingsley, plaintiff’s treating physician, reported to defendant on May 8, 1973, that he agreed with the “percentage of disability given by Dr. Lowery.” On October 23, 1973, he reported that plaintiff’s residual disability was about 10 percent higher than his previous estimate, making it 45 percent of the extremity as a whole. On May 1, 1974, he reported to defendant that he found no reason to change his previous estimate of disability. Immediately after his last examination of plaintiff, made on July 11, 1975, he reported that “I actually see no changes from my previous report,” and we interpret that to mean that he felt that Crooks still had a 45 percent disability of the right leg. He stated in that report, however, that he found plaintiff’s thighs to be equal in circumference, and that “The fact that the thighs are equal in circumference I think is very significant.”

Dr. Kingsley testified at the trial that he felt that plaintiff was disabled from doing heavy manual labor when he last examined him, and that he “never informed the company that plaintiff could go back to heavy manual labor.”

Defendants received no other medical reports as to plaintiff’s condition between the time Dr. Kingsley reported on his examination of July 11, 1975, and the time payment of compensation benefits was discontinued on October 30, 1975. All of the medical reports which defendants had on the last mentioned date thus showed clearly that plaintiff was still disabled.

Crooks was examined by Dr. R. J. Beur-lot, Jr., an orthopaedic surgeon, on January 19, 1976, after this suit was filed. Dr. Beurlot confirmed the other medical reports that plaintiff could not perform heavy manual labor.

Defendants contend, however, that they had probable cause to discontinue the payment of additional benefits because of other information which they obtained about plaintiff’s condition.

Mr. Barry Mitchell, an adjuster for defendant insurer, testified that he observed plaintiff cutting and hauling pulpwood on two occasions within a week or ten days prior to October 30, 1975. He reviewed plaintiff’s file and noticed that Dr. Kingsley had found no atrophy in plaintiff’s right leg on July 11, 1975. He thereupon ordered a retail credit report on plaintiff, and was informed by that report that Crooks was working at that time. He talked to several local business people and was informed by them that plaintiff had been hauling wood with his son, but that his son had sustained an injury and was then disabled. Mitchell then engaged the Wilkins Claim Service to investigate the matter, and in connection with that investigation plaintiff’s son signed a statement to the effect that plaintiff was physically able to work in the wood business. Mitchell then discussed the matter with his attorney and decided to discontinue the payment of compensation to plaintiff on October 30, 1975.

Mitchell stated that he did not consult Dr. Kingsley or any other doctor before he terminated plaintiff’s compensation payments. He conceded that on the two occasions when he observed Crooks working in the woods, he did not see plaintiff use a chain saw, lift anything heavier than a light chain or do any heavy manual labor. He saw plaintiff drive a loader and a truck, which was shown to be light work. The evidence shows that plaintiff worked in the woods with his son after the accident, but that he performed only light duties, such as driving a truck or loader. He did not do any sawing, lifting, climbing or heavy manual labor.

Considering all of the facts presented here, we conclude, as did the trial judge, that defendants were arbitrary in discontinuing the payment of compensation benefits without first having plaintiff examined again by a doctor, or without obtaining additional medical evidence as to his ability to return to work. We agree with the trial judge that defendants were arbitrary, capricious, or without probable cause, in discontinuing the payment of compensation benefits to plaintiff on October 30, 1975.

We thus find no error in that part of the judgment appealed from which condemns defendants to pay penalties and attorney’s fees.

The trial judge awarded plaintiff $2,000.00 as attorney’s fees. Defendants contend that the award is excessive and should be reduced. Plaintiff contends that it should be increased.

The amount awarded as attorney’s fees rests largely on the discretion of the trial court. The factors which may be considered in determining the amount of such an award include the volume of work performed by the attorney, the amount of the claim, the amount recovered for the plaintiff, the skill required of the attorney and the time devoted to the case. Each case must be decided in the light of its own facts and circumstances, bearing in mind that the fee awarded must be reasonable. Bezue v. Hartford Accident and Indemnity Company, 224 So.2d 76 (La.App. 1 Cir. 1969); Ray v. Superior Iron Works and Supply Company, Inc., 284 So.2d 140 (La.App. 3 Cir. 1973); Williams v. Liberty Mutual Insurance Company, 327 So.2d 462 (La.App. 3 Cir. 1976).

In the instant suit the trial was completed in one day. One deposition was taken in connection with that trial, and that was taken by plaintiff in the office of plaintiff’s counsel. A motion to traverse plaintiff’s right to sue in forma pauperis was filed by defendants, but the parties stipulated shortly thereafter that plaintiff was able to pay the costs as they accrued and that the order authorizing him to sue in forma pauperis should be rescinded. The rule was never tried. Only one doctor testified at the trial, and he was called by plaintiff. There was no serious contest as to any of the facts or as to the law. Only a minimum of skill was required on the part of the attorney for plaintiff in handling the case. Plaintiff’s counsel was thoroughly familiar with the case before the payment of compensation benefits was discontinued and before suit was filed, since he had represented plaintiff for some time before this suit was instituted and compensation benefits had been paid through the office of plaintiff’s counsel. A substantial part of the total compensation due plaintiff was paid voluntarily by defendants before the suit was filed. Plaintiff claimed, and the trial court properly awarded to him, only the remaining payments which were owed. There were no contests as to the amount of plaintiff’s wages, the amounts of the weekly payments which were due, the hazardous nature of the employment, or whether plaintiff’s injury was sustained in the course of his employment.

Considering all of the above circumstances, we conclude that the amount awarded by the trial court as attorney’s fees was reasonable, that it adequately compensates plaintiff’s counsel for the work performed in this case, both in the trial court and on appeal, and that the fee allowed was not excessive. We find that the trial court did not abuse his discretion in fixing the fee at $2,000.00, and we thus affirm that award.

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

AFFIRMED.

WATSON, J., concurs in part and dissents in part.

WATSON, Judge

(concurring in part and dissenting in part):

I concur with the majority that the trial judge correctly awarded penalties and attorneys’ fees. I do not find an abuse of discretion in the award of $2,000 for the work performed by plaintiff’s counsel in the trial court, although I do not subscribe to the characterization of this attorney’s services by the majority.

I dissent from the failure to allow an increase in the attorney’s fee for services on appeal. In the past, when an appeal has been answered, this court has awarded compensation for the attorney’s services on appeal. See Chavis v. Maryland Casualty Company, 307 So.2d 663 (La.App. 3 Cir. 1975); writ den. 310 So.2d 854 (La.). The amount customarily has been $500. I see no reason in this particular case to depart from the usual policy.


text:
    Janie D. TYLER, Plaintiff-Appellant, v. AMERICAN HOME ASSURANCE CORPORATION, Defendant-Appellee.
    No. 5616.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 29, 1976.
    Gist, Methvin & Trimble, by David A. Hughes, Alexandria, for plaintiff-appellant.
    John L. Pitts, Alexandria, for defendant-appellee.
    Before HOOD, MILLER and WATSON, JJ.
   MILLER, Judge.

Plaintiff Mrs. Janie D. Tyler appeals the judgment dismissing her claim against defendant American Home Assurance Corporation for $10,000 in death benefits under an accidental death policy covering her deceased husband. We affirm.

The trial court assigned well supported written reasons for concluding that Mrs. Tyler’s deceased husband was intoxicated when he drove his car into a curve, crossed the yellow line and entered the oncoming traffic lane to strike the left rear portion of an oncoming 18 wheel truck and trailer; that he died as a result of these injuries; that he had consumed five bourbon and coke drinks during a two hour period immediately before the accident; that a test of his blood alcohol content was timely run and registered .228 gram percent of alcohol; and that the accidental death policy provided no coverage to the insured for injuries sustained while intoxicated.

Plaintiff Tyler contends the facts of this case are similar to those presented in Ray v. Superior Iron Works, etc., 284 So.2d 140 (La.App. 3 Cir.1973), and we should follow that decision. We distinguish that ease on the facts. The Ray case was a workmen’s compensation claim and the court based its reversal on “the liberal nature of the workmen’s compensation law.” The court was concerned about the fact that claimant’s employer forced him to attend the party where intoxicating liquors were freely distributed and he was encouraged to indulge. 284 So.2d 140 at 146. Furthermore claimant’s testimony raised an issue of fact as to whether claimant’s intoxication was the cause of the accident. The majority in Ray did not consider or distinguish Matthews v. All American Assurance Company, 226 So.2d 181 (La.App. 3 Cir.1969) or Young v. All American Assurance Company, 243 So.2d 894 (La.App. 3 Cir.1971). Although there was a dissent in the Ray case, the dissent did not cite either Matthews or Young, neither of which involved a workmen’s compensation claim but both of which, insofar as they were relevant, supported the dissent.

This court’s latest expression on the precise issue presented here is set forth in Richard v. American Home Assurance Company, 318 So.2d 613 (La.App. 3 Cir.1975), where we followed the Matthews and Young cases. We were not asked to distinguish the Ray case.

There is no manifest error in the trial court’s factual conclusions; the Richard decision was properly cited and followed. The trial court judgment is affirmed at appellant’s costs.

AFFIRMED.