author: PAVY, Judge. DOMENGEAUX, Judge

text:
    B. J. LUCAS, Plaintiff-Appellee, v. INSURANCE COMPANY OF NORTH AMERICA et al., Defendants-Appellants.
    No. 5223.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 1975.
    Dissenting Opinion Feb. 12, 1976.
    Rehearing Denied March 4, 1976.
    Writ Granted April 27, 1976.
    Stafford, Pitts & Stafford, Alexandria, for defendants-appellants; John W. Scott, Alexandria, of counsel.
    Ford & Nugent, by Howard N. Nugent, Jr., Alexandria, for plaintiff-appellee.

      William Henry Sanders, Jena, for inter-venor-appellee.
    Before HOOD, CULPEPPER, DO-MENGEAUX, GUIDRY and PAVY, JJ.
   PAVY, Judge.

This is a workmen’s compensation suit in which the plaintiff, B. J. Lucas, sought a judgment against the defendant, Insurance Company of North America, as insurer of his employer, I. E. Miller & Sons. The trial court awarded plaintiff maximum benefits for total and permanent disability and further held defendant liable for statutory penalties and attorney’s fees finding that the defendant — insurer was arbitrary and capricious in terminating plaintiff’s workmen’s compensation benefits. From this judgment the defendant has appealed. We reverse.

Plaintiff was employed as the operator of an oil field hauling truck and his duties required that he assist in loading and unloading the vehicle. On February IS, 1970, while handling heavy pipe, he sustained a crushing type injury limited to the tips of the middle and ring fingers of his left dominant hand. A few days after the accident either plaintiff quit his employment or his employer discharged him. About two months later he obtained work as the operator of an oil field rigging truck in which employment he had continued steadily until the trial in October, 1974.

There is much argument and evidence in the case regarding the nature and extent of plaintiff’s disability in connection with the extent to which the duties of his employment when injured were different from those of his subsequent employment. We pretermit these issues and base our decision on a lack of causation between the injury and the allegedly disabling conditions.

We base this holding on the following: (1) plaintiff’s injury was limited to the ends of the two fingers of his left hand, (2) his claimed disability consisted of pain and swelling of the whole hand, parts of the arm and vague and erratic complaints pertaining to other parts of the body, (3) none of the many medical experts could confirm any causal relationship between the injury plaintiff experienced and the type of complaints allegedly disabling plaintiff, (4) many of the experts found plaintiff had an extreme psychological overlay, (5) plaintiff’s family doctor found arthritic swelling not only in the two affected fingers but in all fingers of his left hand, the right hand and generally throughout the body, (6) as early as August, 1967, this doctor had noticed bursitis (a form of arthritis) in plaintiff’s knee.

Plaintiff was examined, treated or certified by thirteen physicians. Some of these doctors’ knowledge of the case is completely insignificant and some of the testimony of the others is irrelevant to the present inquiry. We will now discuss the pertinent parts of the doctors’ testimony or reports.

Dr. H. L. Schaheen, general practitioner, initially treated plaintiff. He diagnosed the injury as a hematoma with laceration on end of ring finger and a small hemato-ma on the third finger of the left hand, stitched the laceration and referred plaintiff to his family doctor.

Dr. Louis Shirley, a general practitioner, treated plaintiff on several occasions for about a month after the accident. His report shows he diagnosed plaintiff’s injury as a laceration of the middle and ring fingers of the left hand with a fracture of the left ring finger.

These two doctors had no further contact with plaintiff for he moved to Jena several weeks after the accident and was thereafter treated mostly by Doctors B. E. Doughty and Billy Nesbitt, both general practitioners.

Dr. Doughty saw plaintiff on 11 occasions between the accident date in 1970 and the trial in November, 1974. The first four visits were during the months immediately following the accident. The first visit was to redress the bandage on Mr. Lucas’ ring finger and the second visit was to obtain a medical authorization from Dr. Doughty to drive a truck for Pelican Truck Lines. Dr. Doughty did not X-ray Lucas’ two fingers but he detected bone fractures in Lucas’ left ring finger. These fractures were fully healed by May 27, 1970. After the May, 1970 visit with Dr. Doughty, plaintiff’s complaints began to change. On July 23, 1970 he told Dr. Doughty he had pain running up his left arm to his shoulder. On August 24, 1970, plaintiff complained of left shoulder pain and swelling in both hands. There was no longer any complaint regarding the two injured fingers. Dr. Doughty examined plaintiff eight times from August, 1970 until the date of trial and heard complaints including left arm pain, right arm pain, neck pain, headaches, pain across chest, back pain, and blurry eyesight.

The only difficulty Dr. Doughty could find with the two fingers was arthritis. During direct examination, Dr. Doughty admitted this arthritis could have traumatic origin. During cross-examination, this testimony was well clarified:

“Q. Okay, Now when you were asked that question a little while ago about whether or not there was traumatic arthritis in his left ring finger and his left middle finger, it was limited only to those two fingers?
Uh-huh. >
Now, is it not true that you’ve also found that this man has an arthritic condition in his other fingers of both hands ? ©
That’s true. >
That is true? ©
Yes. >
And then the arthritic condition in these other fingers would be un- © related to trauma because they haven’t been exposed to trauma, is that correct ?
A. That’s correct.
O. So it may be that the man was even, if the other fingers are suffering from arthritis, then perhaps these two fingers in question were also suffering from arthritis' even before this accident in February of 1970, isn’t that correct?
A. That’s true.
Q. So you certainly can’t say with any certainty that the arthritis in his two fingers on his left hand was necessarily related to trauma if he’s had all these pains in his other fingers?
A. No, you can’t.”
Dr. Doughty also testified as follows:
“Q. Does this man have arthritis anywhere else besides in his right hand and his left hand? Does he have it anywhere else?
A. He’s got it just about everywhere. He’s got it in his knees, his shoulder, his neck, back, hips. At one time or other he’s had pains related to all of it.
O. So he’s just arthritic ridden all over his body is what it boils down to?
A. Well, I can’t quite give that impression. He’s not bed-ridden or anything of that sort, but he does have arthritis. And at one time or another he’s complained of most major joints anyway.
Q. Now, your diagnosis of arthritis both in these two fingers and his unrelated fingers, plus his right hand and these other major joints, is this based on x-ray findings of arthritis on your part, or just a—
A. No, it isn’t.
Q. Is it based on his complaints ?
A. Complaints, yeah.
Q. All right. And is there any other symptom that you based your findings of arthritis on?
A. Are you talking about symptoms and signs or just the symptoms?
Q. I’m sorry. I couldn’t understand you?
A. Symptoms and signs or just the symptoms ?
Q. Symptoms and signs I suppose, sir.
A. Well, he’d be swelling, too.
Q. All right. Anywhere else besides these two fingers on his left hand?
A. Yeah. He’s had swelling at times • in both hands and I know he’s complained of pain and swelling in his hips and knees and shoulders at times.
Q. Okay. So his compaints of swelling are not restricted to just these two fingers of his left hand, are they ?
A. That’s correct.
Q. Is it fair to say that the symptoms of arthritis you found in this man’s left ring finger and left middle finger are the same signs and symptoms you found of arthritis in the unrelated — in the fingers unrelated to trauma ? The hand and the other major joints unrelated to trauma ?
A. Are the symptoms the same ? Yeah, the symptoms are the same.
Q. That is, swelling and complaints of pain?
A. Yes.
Q. Had you ever examined this man prior to 1970?
A. Yes, I had.
Q. For what purpose?
A. I saw him on August 31, 1967. He was having bursitis in his left knee, which is a form of arthritis.”

Dr. Nesbitt is a general practitioner who treated and examined plaintiff initially on October 1, 1970 for complaints of swelling of the fingers of his left hand. X-rays taken of Mr. Lucas’ left hand and fingers disclosed no existing fractures but did show degenerative changes in all fingers. Due to plaintiff’s complaints, Dr. Nesbitt referred him to Dr. Lowrey, an orthopae-dic surgeon, for examination. Dr. Lowrey advised Dr. Nesbitt that plaintiff’s finger stiffness should cause no more than a 10-15% impairment to the left hand and that he was able to return to his former employment. On December 22, 1970, plaintiff again consulted Dr. Nesbitt. He com-plaintd of his shoulder hurting him but Dr. Nesbitt could find no cause of the pain. For this reason, he sent Mr. Lucas to Dr. Irby, a neurosurgeon, for examination. Dr. Irby advised Dr. Nesbitt that he could find nothing neurologically wrong with Mr. Lucas. Dr. Irby also reported that a good deal of plaintiff’s difficulties were psycho-physiological in nature.

Dr. Nesbitt examined plaintiff for neck and back pains in early 1971 and finally in mid 1974 for complaints of neck pain and a headache.

In June, 1970, Dr. D. M. Kingsley, an orthopaedic surgeon, examined plaintiff who then complained of finger, arm and shoulder pain. This doctor noted a slight degree of stiffness in the two fingers and sensitivity at the tips of them. X-rays revealed fractures of only the tips of these fingers. This doctor found that plaintiff’s finger joints were not damaged in the accident and that only the tips were involved. He thought that the slight residual stiffness he noted in the two injured fingers should dissipate in time with usage and should not be permanent. Dr. Kingsley-testified that he thought plaintiff was overreacting and testified that his complaints of arm and shoulder pain could not be related to the finger injury.

Dr. Ray E. King examined plaintiff on two occasions in late 1970 and in December, 1973. During these visits plaintiff complained of his entire left hand, left arm swelling and pain going into the base of the neck, hernia, cervical neck pain and increased sensitivity to the tips of the two affected fingers. Dr. King found full motion in the fingers of the left hand and his x-rays revealed a healed fracture at the extreme tip of the left ring finger. Dr. King found some hypersensitivity of the fingertips and, based on this, concluded that plaintiff’s' left hand as a whole was impaired approximately 5 to 10 percent.

Dr. Austin W. Gleason, an orthopaedic surgeon, examined plaintiff in March, 1971, at which time plaintiff complained of pain from his ring and middle finger traveling up his arm past his elbow to his shoulder along with headaches and occasional numbness of the entire left arm. This doctor testified that plaintiff could not make a fist because he would not flex his knuckle joints but found full motion in the interphalangeal and distal joints, that is, the last two joints of the fingers. X-rays revealed only a healed fracture to the tip of the ring finger. Dr. Gleason’s conclusion was that plaintiff might have a nerve root irritation in the cervical region but could not relate this to the hand injury and suggested that much of plaintiff’s difficulty was due to his psychological overlay.

There were many other details concerning the findings and opinions of the experts. Suffice it to say that none of them found any evidence of injury to plaintiff other than to the tips of his two fingers and that the only result that they could connect causally was that injury was the minimum residual stiffness in these fingers.

There is evidence that plaintiff had a prior injury affecting his left index finger with some residual stiffness but the extent of this is not shown. There is evidence that plaintiff had residual effects of polio on his right side but the evidence does not show that it significantly affected the use of the right arm and the hand. The trend of the evidence on this is that, for all practical purposes, there was no impairment of his right arm and hand.

Testimony by plaintiff and lay witnesses was given regarding his alleged disability. In summary, it was to the effect that plaintiff’s disability resulted from periodic pain, swelling and discoloration of the whole left hand, parts of the left hand in addition to the two injured fingers and on occasions parts of the left arm. Although it may be that plaintiff does experience these complaints and they may be disabling, the evidence does not preponderate that these conditions were caused by the injury to the fingertips. The evidence-preponderates that his complaints are basically the result of the longstanding arthritis and the only result of the fingertip injury is the minimum stiffness in those two fingers which is not disabling. We therefore conclude that the evidence as a whole does not preponderately show a causal connection bétween plaintiff’s injury and any disabling condition.

In Johnson v. Travelers Insurance Co., 284 So.2d 888 (S.Ct.1973), the law with regard to plaintiff’s burden of proof on the causal relationship in a workman’s compensation case is stated as follows:

“The plaintiff has the burden of proof in a workmen’s compensation case. Burk v. Security Ins. Co. of New Haven, 248 La. 177, 177 So.2d 278 (1965); Adams v. Home Indemnity Co., La.App., 180 So.2d 51, writ ref. 248 La. 697, 181 So.2d 398 (1965); Wells v. Kaiser Aluminum and Chemical Corp., La.App., 185 So.2d 37 (1966). It is incumbent upon the plaintiff to establish the causal relationship between the accident and his disability by a preponderance of the evidence. Russell v. Employers Mutual Liability Ins. Co. of Wis., 246 La. 1012, 169 So.2d 82 (1964).”

Accordingly, for reasons assigned the judgment of the lower court is reversed. Judgment is now rendered in favor of defendants, rejecting plaintiff’s demands and dismissing his suit. All costs of the trial and appellate courts are assessed against the plaintiff.

Reversed and rendered.

DOMENGEAUX, J., dissents, and assigns written reasons.

DOMENGEAUX, Judge

(dissenting).

I respectfully dissent.

The majority “pretermits” the issue of disability and rests its decision solely upon its finding of lack of causal relationship between plaintiff’s accident and his subsequent disability. I shall address the issue of disability at the outset, proceed to establish a causal link between the disability and the accident, and finally deal with the aspect of this case relative to penalties and attorney’s fees.

DISABILITY

On February 15, 1970, plaintiff was in the employ of I. E. Miller & Sons, functioning in the capacity of driver of an oilfield gin pole truck. After driving his truck to a job site, plaintiff was assisting in the unloading of pipe to be used in the assembly of a drilling rig when a joint of that pipe rolled onto his left hand, causing a crushing-type facture to the middle and ring fingers of that appendage. Thereafter, unable to continue performing the duties required by his employment, plaintiff’s relationship with I. E. Miller & Sons was terminated. Subsequently he was hired as a gin pole truck driver by another company, Pelican Truck Lines, Inc.

A superficial review of these facts might belie plaintiff’s disability since he continued to work as an oilfield truck driver. However, a careful analysis reveals subtle but distinct variations in the two jobs.

The typical oilfield gin pole truck driver operates a large vehicle which is used in the assembly and disassembly of drilling rigs. In his employment with I. E. Miller & Sons plaintiff was required (as are most other oilfield truck drivers) to assist workers at the job site in the manipulation and transportation of pipe and other heavy objects. There was testimony to the effect that a gin pole truck driver’s duties usually involve about ninety percent driving and winch operation and about ten percent heavy manual labor. Plaintiff’s former job required him to drive a medium size gin pole truck devoid of many of the power assisted, labor-saving devices usually found on a larger vehicle.

In his present job with Pelican Truck Lines, Inc., plaintiff works under very specialized conditions. He drives the largest gin pole truck available, a 20-ton rig. This truck is replete with power assisted devices which aid the driver in his operation of the vehicle. The general consensus from the testimony is that a larger truck is more complicated to operate but less demanding physically. In addition, with Pelican, plaintiff is always provided with a. full-time helper and exempted from performing the normally required heavy labor associated with his employment position.

The secretary-treasurer of Pelican Truck Lines, Inc., Roy Windham, testified that plaintiff was hired under special circumstances, to-wit: that while he was a questionable employee as a normal oilfield truck driver, it was felt that his experience might compensate for his lack of physical ability to perform his tasks. Mr. Wind-ham also expressed doubts that plaintiff possesses the capacity to perform any of the heavy labor normally associated with the job of oilfield truck driver.

Several of the doctors whose depositions were introduced at trial found that the plaintiff suffers from a palsy-type condition on his right side and that he relies more heavily upon his left arm and hand. Since his left hand sustained a crushing-type injury his capacity to use that dominant appendage has become highly diminished.

The trial judge found, and I concur, that in order to perform his previous functions fully as an ablebodied oilfield truck driver, the plaintiff would be forced to endure continuous pain and swelling in his left hand and fingers. A worker is not required to work in pain or in such diminished capacity that his activities will endanger himself and his fellow workers. Carroll v. Southern Casualty Insurance Company, 285 So.2d 370 (La.App. 3rd Cir. 1973), writ refused 288 So.2d 356; Chapman v. Travelers Insurance Company, 250 So.2d 248 (La.App. 3rd Cir. 1971). I find the situation presented in the instant case analogous to that of Chapman, supra. In Chapman, the plaintiff worked as a combination oilfield truck driver and swamper. His ankle was injured while he was engaged in loading segments of pipe on a job site. After his injury, plaintiff was unable to continue the work of oilfield truck driver and swamper, but found employment as a dump truck driver, which, while appearing to be similar employment, is in fact quite a different type of work. In finding the plaintiff totally and permanently disabled in Chapman, the court quoted Professor Malone’s Louisiana Workmen’s Compensation' Law and Practice, Section 272, page 327, as follows:

“ ‘A worker will be regarded as totally disabled if he is unable to do work reasonably of the same kind and character as that which his training, education, experience, and status in life qualify him to perform, in the customary way without any unusual difficulty or pain.’ ”

I find further similarity between the present litigation and the case of Futrell v. Hartford Accident and Indemnity Company, 276 So.2d 271 (La.1973). The plaintiff in Futrell was an automobile mechanic who suffered a ten percent functional impairment of the right extremity. The evidence indicated that the plaintiff was able to perform satisfactorily as an automobile mechanic but only with the assistance of numerous mechanical labor saving devices, the existence of which was not prevalent throughout the industry. As the Supreme Court stated in Futrell:

“The degree of Futrell’s disability must not, however, be judged by placing him in ideal working conditions. The test must be whether the injury has substantially decreased Futrell’s ability to compete with ablebodied mechanics in the general labor market.” (Emphasis added).

I find that in the instant case, plaintiff has secured employment only because of the benevolent attitude and willingness to assume a risk by his present employer, Pelican Truck Lines, Inc. It appears that nowhere else in the industry would plaintiff be able to find the type of ideal working conditions afforded by said employer. The injury to his left hand has decreased his attractiveness to other oilfield trucking concerns. I find significance in the fact that, after his injury, plaintiff was refused work by J. C. Duke, a former employer, because that company had no need for a truck driver in his condition. I must conclude that plaintiff is currently employed only because of special considerations made by his present employer in providing him with a truck which is physically easy to operate, a helper, and an exemption from the type of duties normally required in the industry of one working in his capacity. Finding plaintiff unable to return to the type of work in which he was engaged at the time of his injury, I agree with the trial judge’s ruling that he is totally and permanently disabled within the intendment of the workmen’s compensation act.

CAUSATION

The plaintiff in a workmen’s compensation suit need not prove the causal connection between disability and an employment related injury to an absolute certainty. It is sufficient that he. demonstrate a reasonable probability that the disability is causally connected with the injury. Bryant v. Magnolia Garment Company, Inc., 307 So.2d 395 (La.App. 2nd Cir. 1975); Grigsby v. Argonaut Insurance Company, 297 So.2d 698 (La.App. 1st Cir. 1974); Chandler v. American & Foreign Insurance Company, 257 So.2d 825 (La.App. 3rd Cir. 1972); Norred v. Travelers Insurance Company, 236 So.2d 637 (La.App. 2nd Cir. 1970), writ denied 256 La. 842, 239 So.2d 354; Adams v. Home Indemnity Company, 180 So.2d 51 (La.App. 3rd Cir. 1965), writ refused 248 La. 697, 181 So.2d 398; Teekel v. Campbell Construction Company, Inc., 160 So.2d 447 (La.App. 2nd Cir. 1964).

In determining causal relation, great weight attaches to the fact of sudden change from a condition of health and ablebodiedness to one of disability immediately after the accident. Johnson v. Travelers Insurance Company, 284 So.2d 888 (La.1973); Matte v. Power Rig Drilling Company, Inc., 260 So.2d 19 (La.App. 3rd Cir. 1972), writ refused 261 La. 1048, 262 So.2d 37; Ardoin v. Houston Fire & Casualty Company, 235 So.2d 426 (La.App. 3rd Cir. 1970); Bertrand v. Coal Operators Casualty Company, 253 La. 1115, 221 So.2d 816 (1969).

It is undisputed that plaintiff functioned adequately as an oilfield truck driver prior to his injury. Immediately after his accident he became incapacitated to such a degree that he was unable to perform any tasks related to the heavy labor aspect of his job. Therefore, I feel that the above-mentioned presumption of causality should be applicable to this case.

Much ado is made about the fact that the medical testimony indicates that plaintiff suffered from an arthritic condition prevalent throughout his body. As previously mentioned, there is also evidence to the effect that plaintiff also suffered from a partially disabled right side, the result of a possible childhood polio condition. I willingly concede that these afflictions contributed to plaintiff’s inability to function in his prior employment. However, the jurisprudence is well settled for the propositions that an employer takes an employee as he finds him, and that employee’s disability is compensable even though caused in part by a contributing pre-existent condition or pre-disposition. See Carter v. Avondale Shipyards, Inc., 308 So.2d 472 (La.App. 4th Cir. 1975); Odom v. Kaiser Aluminum & Chemical Corporation, 282 So.2d 580 (La.App. 4th Cir. 1973); Jones v. Douglas Public Service, 264 So.2d 267 (La.App. 4th Cir. 1972); Johnson v. Employers Mutual Liability Insurance Company of Wisconsin, 250 So.2d 38 (La.App. 3rd Cir. 1971); and Parish v. Fidelity & Casualty Company of New York, 124 So.2d 234 (La.App. 2nd Cir. 1960), cert. denied January 9, 1961.

It is also immaterial whether an employee’s continued disability directly results from an injury or from a condition resulting from an injury, or whether the injury was the sole cause, or merely a contributing cause. Norred v. Travelers Insurance Company, supra, Stovall v. S. Bender Iron and Supply Company, 152 So. 387 (La.App. 2nd Cir. 1934); Anderson v. Louisiana Oil Refining Corporation, 134 So. 343 (La.App. 2nd Cir. 1931); Taylor v. Southern Engineering Construction Company, 125 So. 877 (La.App. 2nd Cir. 1930).

The physicians who testified, mostly by deposition, were not altogether consistent in their findings. While it is true that most of them could find no neurological relationship between plaintiff’s crushing injury to his hand and subsequent complaints of head, neck, and back pains, all the doctors recognized the seriousness of the hand injury.

Dr. C. W. Lowrey found a 15% disability of plaintiff’s left hand and acknowledged the existence of a palsy-type condition on the right side. Dr. Don W. Irby found that the arthritis in plaintiff’s injured fingers could have been traumatically induced. Dr. Ray E. King found a 5 to 10% disability of plaintiff’s left hand, pain in the injured fingers due to residuals of contusions to the digital nerves of those fingers, and opined that a permanent condition in that hand existed, which would continue to cause plaintiff pain upon activity. Dr. D. M. Kingsley found a 5% disability of plaintiff’s left hand. Dr. Bernard E. Doughty diagnosed plaintiff’s problem as a permanent traumatic arthritic condition and felt that as a result, plaintiff was ill equipped to compete on the labor market. Finally, Dr. Billy Nesbitt was of the opinion that plaintiff would be unable to resume his work if his duties included heavy lifting. There is little doubt in my mind that plaintiff has established a causal link between the crushing injury which he received to the third and fourth fingers of his left hand and the subsequent permanent impairment of those appendages.

While it is true that if plaintiff’s right side were healthy, and he did not suffer from an arthritic condition, the crushing injury would probably not be disabling, I feel that this latter injury was in effect, “the straw that broke the camel’s back”. Plaintiff was a risky employee at best, but the risk of his disability should be borne by the employer who hired him subject to those pre-existing deficiencies.

The finding of causation is a factual determination and within the province of the trial judge. In the case at hand the district judge had opportunity to review all of the- abovementioned medical testimony and even conducted his own examination of the plaintiff s disabled hand. He stated, for the record:

“Show that when he was asked to close his fist, he was able to hold his fingers together but he was not able to touch his palm with the tips of his fingers. Show that when he was asked to place his hand flat on the table, he did so but claimed that he was unable to raise his fingers from the flat table top on which they were resting. Show also that his fingers were noticably discolored in the portion of his finger closest to his palm, when he was trying to raise his fingers.

Well when he had it down, put it flat. It looks to me like it’s darker from here back.”

In his reasons for judgment the trial judge stated:

“The plaintiff claims he can work but a full day of heavy work causes swelling, loss of manual dexterity and strength and considerable pain that persists until he obtains adequate rest. His description of his own experiences fits in well with the medical testimony that reflects the condition of his hand varies from day to day and is dependent on the degree of work he has been doing. Plaintiff contends when he attempts any heavy work with his hand the swelling and pain occurs and reaches such proportions [sic] that he cannot perform the heavy work he once did without pain and endangering himself, equipment he might be using and customers’ machinery he might be lifting. The Court finds him credible and believes he has made a courageous and good faith effort to rehabilitate himself.”

Under the rules of appellate review set forth in the case of Canter v. Koehring Company, 283 So.2d 716 (La.1973), I feel that the evidence in this case “furnishes a reasonable factual basis for the trial court’s finding”, and I am unwilling to concur with my brothers of the majority in finding manifest error. I strongly disagree with the unwarranted intrusion by this court into the domain of the trier of fact, and I would uphold the trial judge’s ruling on causation in the instant case.

PENALTIES AND ATTORNEY’S FEES

Finding the plaintiff totally and permanently disabled as a result of his accident while in the employ of I. E. Miller & Sons, I find it necessary to dispose of the issue of penalties and attorney’s fees. The trial judge awarded statutory penalties and the amount of $3,500.00 as attorney’s fees.

The defendant’s agent-insurance adjuster testified that based upon a report by Doctor Kingsley and the knowledge that plaintiff was working as a truck driver for another company, he concluded that this claimant was no longer totally or partially disabled and terminated weekly benefits shortly after receipt of said report. An analysis of Doctor Kingsley’s report is necessary in order to consider defendant’s basis for terminating compensation benefits.

' The report is dated June 1, 1970, but apparently it was not received by the defendant until approximately three weeks later.

In the portion of the report captioned “History” the Doctor states that:

“This 40-year old white male drove a truck for I. E. Miller & Son Trucking Company of Eunice, Louisiana, for about eight months prior to an accident on February 15, 1970. He was near Long-ville, Louisiana, loading drill pipe. Another worker dropped a piece of pipe across the patient’s left hand.”

Under the heading “X-rays” the Doctor stated:

“These x-rays show that the distal portion of the ungual tufts have been fractured and several fragments show in each of them.”

Finally, under the paragraph entitled “Remarks” the Doctor stated:

“In any event, at the present time, there is still noticeable stiffness' in the ring and middle fingers of the left hand and there is x-ray evidence of injury to the ungual tufts . . . . the findings on this date are compatable only with a crushing type of injury leaving some residual stiffness. I see no reason why this patient should not be able to drive a truck. It is possible the stiffness will persist. However, only use of the fingers can determine this point. The patient was therefore told to use his hand. I shall be glad to see him and check on his progress in several weeks to see whether any other opinion is indicated.”

I hardly find this physician’s report to be a reasonable basis for the conclusion that the plaintiff was no longer disabled from returning to his previous employment. As the report stated in its very first sentence, the doctor considered the plaintiff to be a truck driver but recognized the fact that he was injured while loading drill pipe. However, the doctor later remarked that he saw “no reason why this patient should not be able to drive a truck”. The defendant further relied upon a written statement taken by its insurance adjuster in which plaintiff stated that he worked strictly as a truck driver but then later fully described the events surrounding his injury and the activity in which he was engaged at the time of the accident. It is clear from both the doctor’s report and the statement of Mr. Lucas that his job entailed more than merely the act of driving a truck. I also find that Doctor Kingsley’s report indicates a residual stiffness and the existence of several bone fragments in the injured fingers. This evidence is somewhat inconsistent with the doctor’s conclusion that Mr. Lucas could return to his work as a truck driver. I feel that under these circumstances it was incumbent upon the defendant insurer to make further investigation to determine the exact nature of plaintiff’s work and his ability to return to and function in that activity. See Trahan v. Rockwood Insurance Company, 284 So.2d 659 (La.App. 3rd Cir. 1973).

I also question defendant’s interpretation of Doctor Kingsley’s report in concluding that Mr. Lucas was not at least entitled to some compensation for partial disability benefits at that time. The report is very clear that there was a residual stiffness in the fingers and points to the existence of some bone fragments. See Fruge v. Pacific Employers Insurance Company, 226 La. 530, 76 So.2d 719 (La.1954); Breen v. Bituminous Casualty Company, 249 So.2d 338 (La.App. 4th Cir. 1971); Parish v. Standard Accident Insurance Company, 158 So.2d 892 (La.App. 3rd Cir. 1963).

The trial judge found that the defendant’s :

“ . . . election to terminate benefits after payment of merely a portion of what was due reflects the disregard for the obligation of the employer insured. The overall attitude reflects carelessness or callousness in handling of claims that violate the spirit of the act and anticipate good faith action by an employer or insurer and can be equated under the terms of La.R.S. 1201.2 [sic, 22:658] to a termination that is arbitrary or without probable cause.”

I agree with the trial judge’s finding that the defendant insurer failed in its duty to ascertain the full nature of plaintiff’s injury and its effect upon his ability to return to the type of work in which he was engaged at the time of his injury. Thus, I find no manifest error in the trial judge’s ruling that plaintiff’s compensation benefits were terminated arbitrarily and without probable cause, thereby entitling him to statutory penalties and the attorney fee award.

For the above and foregoing reasons I would affirm the judgment of the district court in all respects.


source: Caselaw Access Project

author: MILLER, Judge.

license: Public Domain

text:
    Mrs. Eric Linda PARKS, Plaintiff-Appellant, v. INSURANCE COMPANY OF NORTH AMERICA et al., Defendants-Appellees.
    No. 5215.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1976.
    Rehearing Denied March 4, 1976.
    Writ Granted April 23, 1976.

      Riddle & Bennett, Marksville (John T. Bennett, Marksville, of counsel), for plaintiff-appellant.
    Stafford, Pitts & Stafford by John W. Scott, Alexandria, Laborde & Lafargue by Edwin L. Lafargue, Marksville, for defendants-appellees.
    Before MILLER, WATSON and CU-TRER, JJ.
   MILLER, Judge.

Plaintiff Linda Parks appeals the denial of her workmen’s compensation claim against her former employer Marksville Industries, Inc. (hereinafter referred to as Garan) and its insurer Insurance Company of North America. Alternatively, she seeks an increase in the award of disability benefits under an Accident and Health Insurance policy with defendant New York Life Insurance Company, which policy was provided by Garan for its employees for non-work connected accidents or disabilities. New York Life answered the appeal seeking recovery from INA should plaintiff recover from INA on her workmen’s compensation claim, and alternatively to reduce the award for disability benefits. We affirm.

In 1972, Mrs. Parks quit a job in a canning factory after working one month, then quit a job in a nursing home after working two months. About January 1, 1973 she started smoking one pack of cigarettes each day. A few months after quitting her nursing home job, Mrs. Parks started working (on May 17, 1973 at the age of 19) for Garan’s garment factory where cloth is cut and sewed into garments. Her specific task was sewing on pockets. On October 10, 1973 she consulted her physician and was diagnosed with chronic bronchitis. She contends her bronchitis was an allergenic or irritant induced or aggravated by excessive dust and lint at the sewing factory. Garan contends her bronchitis was either of infectuous origin or was an acute state of a respiratory problem identified as allergic asthma.

On Mrs. Parks’ Oct. 10, 1973 visit to her physician she complained of coughing over a period of one or more months. She had a severe cough and fever. Antibiotics were prescribed and when she failed to respond she was hospitalized from October 15th to 19th. Shortly after her release from the hospital she asked for and obtained a release to allow her to return to work with the understanding she would not work in the sewing room. She brought this release to her employer but never attempted to return to the workroom. She had two relapses—first on November 2nd and again on November ISth and was readmitted to the hospital on both occasions. She testified at Tr. 288 she had recovered by November 22nd and has been trouble free since that time. However all physicians advised against her return to the sewing room because the dust and lint might adversely affect her respiratory problem. The physicians also recommended she stop smoking cigarettes, but she has maintained that habit.

The medical testimony established Mrs. Parks had a respiratory infection diagnosed by culture when she first saw a doctor in October. The medical testimony preponderated that she was not allergic to dust or lint in the factory and she had an asthmatic condition. The strongest testimony in her favor was that the dust and lint in the garment factory together with her smoking may have precipitated or aggravated the bronchitis.

The trial court assigned written reasons in which he carefully reviewed the evidence and concluded there was no proof that the fibers or dust from the garment factory caused her trouble, and the evidence preponderated against her on this point. Plaintiff appellant has failed to establish manifest error in this conclusion.

This is confirmed by plaintiff’s application to N.Y. Life under her health insurance policy filed late in November. Her application stated the bronchitis was not related to an on the job accident. On the basis of that application, New York Life paid plaintiff’s claim—some $600 in medical expenses. She did not claim disability benefits until this suit was filed, and then the claim was made alternatively in the event her workmen’s compensation claim was denied.

New York Life’s policy provided a maximum disability benefit of $40 per week for 13 weeks, and although she admits she recovered by November 22, 1973 she claims the full 13 weeks on the basis of the doctors’ recommendation that she not return to work in the sewing room. The garment factory is the largest employer in her area and since her physicians will no longer allow her to work in that plant, she contends she is disabled under the terms of the policy.

The trial judge properly concluded plaintiff was disabled through November and not disabled thereafter. Disability benefits were due under the policy as long as plaintiff could not “engage in any work for remuneration or profit.” Plaintiff is not entitled to benefits after the date she admits she regained her health.

New York Life’s answer to the appeal contends disability benefits should have been terminated at the end of October when her treating physician returned her to work. The evidence supports the trial court’s conclusion she did not return to work at that time because her disability continued for the number of weeks awarded by the trial court.

Finally, plaintiff contends the court erred in assessing only $15 in court costs against New York Life; that failure to tax costs to defendant will tend to prevent claimants from pursuing their claims. We do not agree. New York Life was brought into this litigation by an amendment and only as an alternative in the event her workmen’s compensation claim was denied. Her first attempt to collect disability benefits was conditioned on failure of her compensation claim. The court costs taxed to plaintiff were those relating to plaintiff’s unsuccessful workmen’s compensation claim against Garan and INA, and are properly taxed to her. There is no reason to shift that burden to New York Life when plaintiff never sought disability benefits until she amended her petition to make the alternative claim.

The trial court has broad discretion to assess court costs. LSA-C.C.P. art. 1920. Richard v. Southern Farm Bureau Casualty Insurance Company, 212 So.2d 471 (La.App. 3 Cir. 1968). We find no abuse of that discretion.

The trial court judgment is affirmed at appellant’s costs.

Affirmed.


author: SCHOTT, Judge.

text:
    Mrs. Jennie Barksdale GILLASPIE v. Dr. and Mrs. Ernest J. MITTELBRONN.
    No. 7234.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1976.
    Rehearings Denied Feb. 10, 1976.
    Writ Refused March 23, 1976.

      Tucker, Schonekas & Garrison, Gibson Tucker, Jr., and Arthur S. Mann, III, New Orleans, for defendant-appellee Mrs. Joan Rulis Mittelbronn.
    Derbes & Derbes, Jorda S. Derbes, New Orleans, for plaintiff-appellant.
    Dr. Ernest J. Mittelbronn, in pro per.
    Before SAMUEL, LEMMON and SCHOTT, JJ.
   SCHOTT, Judge.

Plaintiff is the mother of Dr. Mittel-bronn, one of the defendants. Dr. and Mrs. Mittelbronn separated on February 6, 1973, and the separation and divorce proceedings have been pending between them since February 8, 1973. Plaintiff is claiming the sum of $31,704.49 as a debt of the community formerly existing between defendants and she seeks to be declared owner of a number of items of furniture and household wares in the possession of defendants.

Plaintiff’s claim is based upon six cash loans to her son between July, 1968, and May, 1971, and a claim for $1,545.00 under three leases for rent of a garage and a portion of plaintiff’s home allegedly used by defendants for storage.

In response to plaintiff’s petition her son admitted all of her allegations except to claim a credit of $1,300.00, but Mrs. Mit-telbronn denied her allegations and alleged that plaintiff’s claim stems from a conspiracy between her and her son to cause a judgment to be rendered against the community of the Mittelbronns to her detriment.

The trial judge dismissed each one of plaintiff’s monetary claims and with some few exceptions rejected plaintiff’s claim to be declared owner of the various articles of furniture. From that judgment plaintiff has appealed.

At this point some reference should be made to the manner in which the trial of the case progressed. At the outset Mrs. Mittelbronn’s counsel objected to the insufficiency of returns made by plaintiff and Dr. Mittelbronn to subpoenae duces tecum which had been served on them for documents and Mrs. Mittelbronn’s counsel moved to continue the case. This motion was denied and plaintiff’s case commenced. It consisted of the testimony of Dr. Mittel-bronn and plaintiff as to each item with some documentation in corroboration. After the first day of trial, the judge dismissed the claim as to four of the alleged loans and the lease claims, but announced that he would “leave open” the other two alleged loans until further evidence was taken on these. On the first trial day the judge also passed on the claim of ownership of the furniture. When the case was resumed both sides got returns on subpoe-nae duces tecum for documents but because the return by Dr. Mittelbronn was still insufficient the case was again only partially tried and continued until a third day. After some additional testimony was taken relative to the two claims still open these were likewise dismissed.

With respect to the five monetary items disposed of originally it is unnecessary for our purpose here to review the testimony in detail. It suffices to say that it was vague, equivocal, self-contradicting and contradictory as between plaintiff and her son.

On four alleged loans, no documentary evidence was introduced to corroborate the testimony other than some acknowledgments handwritten and signed by Dr. Mittelbronn purportedly on the dates when the loans were allegedly made. The weakness of plaintiffs case on these four items can be demonstrated by the following: Regarding an alleged loan of $1,797.-66 on August 30, 1969, plaintiff testified in answer to a question as to how it came about and where it took place that she did not remember. As to an alleged loan of $5,475.00 on May 14, 1971, Dr. Mittelbronn was unable to recall the transaction. As to a loan of $1,000.00 on November 6, 1970, Dr. Mittelbronn had no recollection of the transaction while plaintiff was unable to explain an inconsistency between her testimony that she gave her son cash in this instance and the allegation in her petition which she signed to the effect that she had gotten a cashier’s check for the $1,000.00. Dr. Mittelbronn testified several times that he got cash in these sizable transactions and placed it in a shoe box at home with his wife’s knowledge, but Mrs. Mittelbronn denied this. Dr. Mittelbronn also testified that these loans were made to enable him to invest in real estate with his wife’s full knowledge but she also denied this. These examples illustrate that the trial judge’s apparent disbelief of plaintiff and Dr. Mit-telbronn is supported by the record.

Similarly unconvincing testimony was given to show that the so-called leases were confected to permit Dr. Mittelbronn to store personal belongings in his mother’s garage and home since May, 1968, although no rental payments were ever made under the leases. We find no error in the trial judge’s conclusion “that it was never intended that these rental items would be collected . . . it is only natural that a mother would furnish storage space for the son. Quite true, the leases were drawn up, but in the opinion of the court, to be used only if necessary . . .”

On the claim of plaintiff to be recognized as the owner of items of furniture, a number of these are pieces which are being used by defendants’ daughters in their own bedrooms, including beds, dressers and chairs. The court found that these items were gifts by the grandmother to the girls and declared the latter to be the owners of this furniture. With respect to all of the furniture there is hopeless contradiction between the testimony of plaintiff and that of Mrs. Mittelbronn, and the trial court’s resolution of these conflicts will not be disturbed by this Court.

The other two alleged loans, one for $17,995.75 on May 6, 1969, and another for $2,431.74 on December 3, 1968, warrant closer scrutiny. Despite the fact that plaintiff produced some objective documentary evidence to support these claims the trial judge dismissed them at the conclusion of the trial. The larger of the two will be discussed hereafter in connection with plaintiff’s motion to remand filed in this Court. As to the smaller one, we disagree with the trial court’s conclusion.

Placed in evidence were two pass books for savings accounts at the Globe Homestead Association which were closed out on December 3, 1968. On both account books there are acknowledgments written and signed by Dr. Mittelbronn to the effect that he received these sums as loans and would repay his mother. In one case he promised to pay the amount involved and stated that “I will include you [plaintiff] as a percentage partner in the acquisition of property and you will share percentage of profits as well.” On the first day of the trial these hooks were introduced along with the testimony of plaintiff and Dr. Mittelbronn which was typically vague, equivocal and unconvincing. However, at the continued trial in response to a subpoe-nae duces tecum an official of the homestead produced two checks for the amounts which had been in the homestead, both dated December 3, 1968, to the order of plaintiff, endorsed by her and marked for deposit to the office account of Dr. Mittel-bronn at the National American Bank of New Orleans, and showing that the checks were negotiated at that bank. Dr. Mittel-bronn produced a check drawn by him on this account for $4,500.00 to the order of “Caltronics,” and testified that the money borrowed from plaintiff was used to purchase Caltronics stock. This check was negotiated on December 9, 1968. Mrs. Mittelbronn’s counsel made much over the fact that this check was dated October 30, 1968, and the contradiction between the acknowledgment written by Dr. Mittelbronn on the pass book that the funds would be used to purchase real estate, as compared to his testimony that the funds were used to purchase stock, but the homestead checks with the endorsements constitute mute corroboration for the testimony of plaintiff and her son that he did in fact receive these funds. We have therefore concluded that plaintiff produced sufficient proof to establish the loan and the corresponding liability of the community between defendants.

We come now to a discussion of the claim for $17,995.75 allegedly loaned on May 6, 1969, and the motion to remand.

Dr. Mittelbronn and his mother testified that he was anxious to invest in real estate in St. Tammany Parish and persuaded her to refinance her home with the Globe Homestead Association. She did so and produced in evidence a check issued by the attorneys for the homestead on May 6, 1969, to the order of plaintiff and endorsed by her together with her son. The check shows that it was negotiated at the International City Bank (ICB) on May 8, 1969. It is true that Dr. Mittelbronn’s testimony was typically vague and equivocal. At times he insisted that he received cash for the check at the ICB and kept it in the shoe box at his home until he used $10,000.00 in connection with the cash portion of a purchase price he paid to acquire property in the St. Tammany Parish on June 14, 1969. He repeatedly stated that he was unable to recall the details about this transaction and at other times testified that he did not receive all cash at the ICB but also a mixture of cash and cashier’s checks. At the continued trial an official of the ICB, in response to a subpoenae duces tecum, testified that a search of the bank’s records showed no cashier’s checks had been issued to Dr. Mittelbronn during this period. On the first day of the trial plaintiff was put on the witness stand to make a return on a subpoenae duces tecum issued in behalf of Mrs. Mittelbronn, and in connection therewith she did produce the handwritten memoranda and notes, as well as the leases which have previously been discussed. But not until the continued trial did she produce a statement of the notary for the Globe Homestead Association, dated May 6, 1969, prepared in connection with the $17,995.75 loan, on the back of which was a statement handwritten and signed by Dr. Mittelbronn purportedly dated May 7, 1969, promising to pay plaintiff the $17,995.75. She testified that she had searched for all of such documents before the first day of the trial but had overlooked this one.

The foregoing demonstrates why the trial judge was apparently unimpressed with the quality of the proof offered with respect to this alleged debt. The case had been pending for some time before the first day of trial and there was no satisfactory explanation as to why the acknowledgment was not produced from the beginning. The manner in which the acknowledgment of the debt was made is such that it could have been prepared at any time and not necessarily on May 7, 1969, as plaintiff and her son both testified. There was little objective documentary evidence, such as cancelled checks or bank statements to support the claim so that plaintiff’s overlooking the supposed acknowledgment at the outset of the trial is difficult to understand. Yet the cancelled check of the homestead notary endorsed by plaintiff and her son should have been afforded some weight and must be reevaluated in the light of matters brought out by plaintiff in her motion to remand.

. This motion was filed here on July 30, 1975, shortly after the appeal was lodged. It is supported by an affidavit of plaintiff’s counsel to which is attached a transcript of testimony by Mrs. Mittelbronn, taken on February 27, 1973, in the domestic case between the Mittelbronns. There'in the following questions were put to and answers given by Mrs. Mittelbronn:

“Q Mrs. Mittelbronn, Judge Marcus was asking you about any other expenses. Does he have any loans with his mother ?
A He did borrow $20,000 from his mother.
Q And that is still owed to his mother ?
A I have no idea.”

At the trial of the case now before us the following testimony was given by Mrs. Mittelbronn on October 30, 1974, in response to questions by her own counsel, on cross examination by Dr. Mittelbronn who appeared in proper person and cross examination by plaintiff’s counsel:

DIRECT EXAMINATION BY MR. TUCKER:
Q Mrs. Mittelbronn, you are the wife of Dr. Mittelbronn who has been testifying, is that right ?
A Yes.
Q There has been some testimony in the Record about a shoe box in your closet in the home you and he were living in back in 1968 to 1969, and in which considerable sums of cash money were kept. Did you ever know about such an arrangement?
A No, sir.
Q It was supposed to be one of your shoe boxes. Do you say you didn’t know about it?
A No, I did not.
Q So did you ever hear your husband mention it that he had a shoe box in the closet that he was keeping large sums of money in it ?
A No, sir.
Q Did you know anything about him borrowing $17,995.75 from his mother?
A No, sir.
Q Did his mother ever give him money ?
A Yes, sir, maybe to go — take us or the children I should say out for hamburgers, but for a treat, biit that’s all I know.
MR. TUCKER:
That’s all I have, your Honor.
DR. MITTELBRONN:
Since I’m appearing as my own attorney may I ask the witness a question?
THE COURT:
Yes, you certainly may.
CROSS EXAMINATION BY DR. MIT-TELBRONN IN PROPER PERSON:
Q I’m not very up to date; I certainly don’t know about the law, the court, so please excuse me if I’m extremely uninitiated. This witness has so. testified previously in the separation pendente lite that she knew about a twenty thousand dollar debt to Mrs. Jennie B. Gil-laspie and she so testified under oath—
MR. TUCKER:
Objection.
THE COURT:
Maintained.
BY DR. MITTELBRONN:
Q Do you remember testifying that you knew of a twenty thousand dollar debt owed to Mrs. Jennie B. Gillaspie at a previous hearing for alimony pendente lite?
A No.
DR. MITTELBRONN:
That’s all.
RE-CROSS EXAMINATION BY MR. DERBES:
Q Could you have possibly testified to that?
A Not that I remember.
Q You never did know that Mrs. Gillas-pie was lending her son money to invest in property in St. Tammany?
A No. For what I have known Mrs. Gillaspie never did have money; she was always poor. Her son had to give her money to help bury his grandmother.
Q And he never told you that he borrowed any money from your mother at any time?
A No. We were pretty well off. He had a private practice and had three or offices. [Sic]
Q At no time he ever told you that the money he was using to buy property in Jefferson Parish was partly advanced by his mother ?
A No, sir.
THE COURT:
You mean St. Tammany Parish? Jefferson, also?
MR. DERBES:
I don’t know anything about Jefferson.
THE COURT:
Read back what Mr. Derbes said.
(AT THIS TIME LAST QUESTION BY MR. DERBES READ BACK).
THE COURT:
Correct to St. Tammany.
BY MR. DERBES:
Q So all of this suit came as a complete surprise to you ?
I ve heard him ask his mother and his mother refused. >
You have heard him ask his mother for money? a
Yes, and she refused. <
And where did that happen ? a
Oh, golly, I guess the exact year I couldn’t really tell you. I guess maybe —I’ve no idea, sir, I couldn’t tell you. <
Where did it happen ? a
When we were in our home. c
If she was so poor, weren’t you surprised that he had asked her to loan him money? a
Yes, I was very surprised, sir. >
But you knew that Mrs. Gillaspie owned her own home ? ©
A Pardon ?
Q You knew she owned her own home on Napoleon Avenue ?
A Yes, I did.
THE COURT:
We’ll break for lunch now and be back for 1:00.
(AT THIS TIME LUNCH RECESS HELD.)
BY MR. DERBES:
Q How did you know that Mrs. Gillas-pie had no money, was very poor, what facts did you base that statement on?
A From her statements, her saying so.
Q Like what, what kind of statements did she make ?
A Just that she never — something in particular? Is that what you want? Well, she was never extravagant, never bought oodles of things; she took care of her mother that I knew.
Q Did you know that she got some money from her mother ?
A No. Her mother was on welfare.
Q You had no knowledge of your own that Mrs. Gillaspie had sufficient money to lend to your husband ?
A I never knew she had money to loan him.
Q You had no facts on which to base your statement that Mrs. Gillaspie was poor and had no money except your testimony except that she wasn’t extravagant and took care of her mother, is that right ?
A Plus the fact that she was always stating that she was taking care of her mother, that all her salary she had was for her mother who was ill for many years and she had to have someone there to take, care of her.
MR. DERBES:
That’s all.
MR. TUCKER:
Your Honor, I feel like I have been able to complete my proof.
. THE COURT:

Oh, yes, I agree with you on this item.

It is clear that the trial judge afforded much weight to the quoted testimony of Mrs. Mittelbronn in which she flatly contradicted her husband’s testimony about her knowledge of the shoe box and plaintiff’s loans to her husband. It is equally clear that she flatly contradicted her own testimony given twenty months previously that her husband had borrowed $20,000.00 from his mother. The question is, what would have been the effect on the trial judge’s evaluation of Mrs. Mittelbronn’s testimony had the previous testimony been placed in evidence ? What would have been the effect on the judge’s evaluation of- plaintiff’s case on the $17,995.75 item had the evidence of Mrs. Mittelbronn’s previous statement been before him ?

Ordinarily a case will not be remanded to allow a party to produce evidence which was available in the first instance. But the peculiar circumstances prevailing here persuade us to remand the case under the authority of LSA-C.C.P. Art. 2164. Plaintiff was not a party to the domestic proceedings. The Mittelbronns were represented by counsel who are not involved in the instant case. In his affidavit plaintiff’s counsel recites that the first knowledge he and his client had of Mrs. Mittelbronn’s previous testimony was gained when Dr. Mittelbronn asked her about it, He checked the record of the separation proceedings but found no reference to a hearing in February, 1973. He spoke to Dr. Mittelbronn’s previous counsel who said that he recalled no testimony previous to July, 1973. Yet, somehow, counsel located the testimony and it is now available to the parties. We conclude that the advantage of insuring that justice is done by having the trial court consider the previous testimony with full opportunity afforded to all parties for examination and cross examination on the point outweighs any disadvantage which may result from further delay in these proceedings. The use of the previous testimony on remand will be confined to its bearing on the issue of the validity of plaintiff’s claim for $17,995.75.

Accordingly, the judgment appealed from is affirmed with respect to all claims of plaintiff except those for $2,431.74 and $17,995.75. That portion of the judgment dismissing plaintiff’s claim for $2,431.74 is reversed and it is now ordered that there be judgment in favor of plaintiff, Mrs. Jennie Barksdale Gillaspie, and against defendant, Dr. Ernest J. Mittelbronn, as head and master of the community formerly existing between him and Mrs. Mittelbronn, in the full amount of $2,431.74 together with 5% interest from December 3, 1968, until August 12, 1973, and at 7% from August 13, 1973, until paid. That portion of the judgment dismissing plaintiff’s claim for $17,995.75 is annulled and, insofar as that claim alone is concerned, the matter is remanded to enable the parties to introduce the transcript of the testimony of Mrs. Joan Rulis Mittelbronn taken on February 27, 1973, in proceedings No. 551-488 of the Civil District Court for the Parish of Orleans, entitled “Mrs. Joan Rulis, wife of Ernest J. Mittelbronn, III vs. Ernest J. Mittelbronn, III,” and to be afforded an opportunity to offer evidence with respect thereto. After the hearing on remand the trial judge shall render judgment as to the $17,995.75 claim. Each party to bear his own costs to date; future costs on the sole remaining claim to await a final determination thereof.

Affirmed in part, reversed in part and rendered: annulled and set aside in part and remanded.


author: HOOD, Judge.

text:
    Katie Lee PRICE, Plaintiff-Appellee, v. Albert PRICE, Jr., et al., Defendant-Appellant.
    No. 5315.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1976.

      Bruscato & Loomis by Anthony J. Brus-cato and Percy A. Ford, Jr., Monroe, for de f endant-appellant.
    William G. Avery, Jonesville, for plaintiff-appellee.
    Before HOOD, GUIDRY and PETERS, JJ-
   HOOD, Judge.

Plaintiff, Katie Lee Price, seeks a judgment recognizing her as the owner of an undivided one-half interest in an improved lot of land in Catahoula Parish, and ordering that that property be partitioned by lic-itation. Defendants are Albert Price, Jr., and L. D. Wilson. Judgment was rendered by the trial court decreeing that “Plaintiff, Katie Lee Price, and defendant, L. D. Wilson, are each the owner of an undivided one-half interest” in and to that property, and ordering that the property be sold at public auction to effect its partition by lici-tation. Defendant Price appealed.

The principal question presented is whether defendant Price may collaterally attack in this proceeding a judgment which was rendered previously by the trial court in another suit.

Defendants, Albert Price, Jr., and L. D. Wilson, were married in Franklin Parish on November 28, 1939. The record indicates that they have never been divorced or judicially separated, at least up to the time of the trial of the instant suit, although they have not lived together for many years.

Despite the fact that Albert Price, Jr., was legally married to L. D. Wilson, he nevertheless married plaintiff in this suit, Katie Lee Price, in Catahoula Parish on or about August 21, 1951. The parties lived together as man and wife from the date of their marriage until they separated during the year 1974.

Some time between 1951 and 1974, while defendant Price and Katie Lee Price were living together as man and wife, Albert Price, Jr., acquired ownership of the following described property situated in Cata-houla Parish, Louisiana, to-wit:

“Lot 2 of the Georgia Westbrook Pen-iston Subdivision in the Town of Sicily Island, Louisiana, and added buildings and improvements thereto.”

On June 5, 1974, Katie Lee Price filed suit against Albert Price, Jr., demanding a judgment of divorce on the grounds that the parties had lived separate and apart for a period of more than two years. That suit bears No. 11,517 on the Docket of the Seventh Judicial District Court, for Cata-houla Parish. Defendant Price answered, denying that he and plaintiff had been living separate and apart. Plaintiff thereupon filed a supplemental and amending petition in the same suit, alleging that she learned after the original petition was filed that defendant had previously married L. D. Wilson and had never been divorced, that plaintiff married defendant in good faith, that the parties acquired property during that marriage, and that the marriage thus produced its civil effects in her favor. She prayed for judgment decreeing that the marriage between her and defendant Price was a nullity, and ordering “that the property acquired during the putative marriage of plaintiff and defendant be partitioned.”

Defendant Price did not answer that supplemental and amending petition, and after due proceedings plaintiff obtained a default judgment against him on October 17, 1974, decreeing that:

“1. The marriage between Katie Lee Price and Albert Price, Jr., on August 21, 1951, was an absolute nullity;
“2. Plaintiff, Katie Lee Price, contracted the marriage now decreed to be a nullity in good faith, without any knowledge of any impediment thereto and is held to be a putative spouse;
“3. Plaintiff, Katie Lee Price, is recognized and declared to be the owner of an undivided one-half interest in all property owned by the putative community of acquets and gains that existed between the parties during the period August 21, 1951 to September 5, 1974;
“4. The child of the putative marriage between the parties hereto, Alma Lee Price, is recognized and declared to be the legitimate child of each party hereto.”

No appeal has been taken from that judgment, and it now has become final.

The instant suit, bearing No. 11,619 on the Docket of the Seventh Judicial District Court for the Parish of Catahoula, was instituted on November 1, 1974. In this suit, plaintiff alleged that she is the putative spouse of defendant Price, that she married him in good faith, that during that marriage she and defendant acquired the above described property, and that she owns an undivided one-half interest in that property. She demands, among other things, that judgment be rendered decreeing “that the property held in common between them, in the proportion of an undivided one-half interest to petitioner, and the remainder as determined by this court, be partitioned by licitation, and ordering that a sale of said property be conducted at public auction.” Answers were filed by both defendants. Defendant Price alleged in his answer that at the time of his marriage to Katie Lee Price, “plaintiff was aware that defendant was legally married and, therefore, is not a putative spouse marrying defendant in good faith.”

No reconventional demands were filed, and defendant Price prayed in his answer merely that “the demands of plaintiff be rejected at her cost.”

After trial, judgment was rendered by the trial court in the instant suit on June 5, 1975, decreeing that plaintiff, Katie Lee Price, owns an undivided one-half interest in and to the above described property, and that defendant, L. D. Wilson, owns the remaining undivided one-half interest in that property. The judgment also orders that the property be sold to effect a partition by licitation. It is from this last mentioned judgment that defendant Price has appealed.

Although this appeal was taken from the judgment rendered on June 5, 1975, in suit No. 11,619 of the trial court docket, defendant Price argues here that the judgment rendered on October 17, 1974, in the prior suit (Docket No. 11,517) was erroneous insofar as it decreed that plaintiff married defendant Price in good faith, and that plaintiff thus was defendant’s putative wife. Price does not ask us to reverse the judgment which was rendered in the prior suit, but he does seek to have the judgment rendered in the instant suit reversed and the case remanded, on the ground that the earlier judgment was erroneous and that plaintiff was not the putative wife of the defendant.

To support his contention that the judgment in the earlier suit was erroneous, Price argues.(1) that the issue of whether plaintiff was the putative wife, in good faith, of defendant Price was not before the court in the earlier suit, because plaintiff did not pray for judgment to that effect in that suit; and (2) that in the prior suit the trial court erred in failing to apply the presumption of good faith to defendant Price, as well as to plaintiff, and in failing to hold that defendant Price also was in good faith. Defendant Price also argues that in the instant suit he should be granted “some interest in the property,” in view of the absence of specific evidence to the effect that he was in bad faith at the time of his marriage to plaintiff.

We think the judgment rendered in the prior suit (No. 11,517) was responsive to the pleadings filed in that suit. The plaintiff specifically alleged that she “married defendant in good faith, having no idea that he was already married,” that she .lived with him for 20 years and bore him one child, that she and defendant “acquired community property during the time they lived together,” and that “the marriage produced its civil effects in her favor.” She prayed that “the property acquired during the putative marriage of plaintiff and defendant be partitioned.” Despite our conclusions as to the validity of the earlier judgment, however, we have decided to base our decision in the instant suit on another ground.

The pleadings filed by defendant Price in the instant suit, and the position taken by him at the trial and on this appeal, constitute a collateral attack on the judgment which was rendered on October 17, 1974, in the first suit filed by plaintiff.

Our law forbids a collateral attack on a judgment or order of a competent tribunal, not void on its face ab initio. A judgment rendered by a court of competent jurisdiction imparts absolute verity and has the force of things adjudged, unless and until it is set aside in a direct action of nullity. It cannot be attacked collaterally. Allen v. Commercial National Bank in Shreveport, 243 La. 840, 147 So.2d 865 (1962); Collins v. Zachary Hardwood Lumber Company, Inc., 207 So.2d 796 (La.App. 1 Cir. 1968); Barnes v. Perkins, 201 So.2d 324 (La.App. 3 Cir. 1967); Carrier v. Travelers Insurance Company, 304 So.2d 62 (La.App. 1 Cir. 1974).

In Allen v. Commercial National Bank in Shreveport, supra, our Supreme Court said:

“. . . . It is the settled law of this state that a judgment is a fiat of a court settling the rights of the parties, and however unjust, erroneous, or illegal the settlement may be, the parties can only claim under it that which, by its terms, the judgment awards. If changes therein are warranted, such may and must be effected before its finality, for which ways and means are provided.
“ . . . . Matters once determined by a court of competent jurisdiction, if the judgment has become final, can never again be called into question by the parties or their privies though the judgment may have been erroneous and liable to certain reversal on appeal.

". . . . A judgment is final as to a party taking no appeal. .

“No principle of law has received greater and more frequent sanction, or is more deeply inbedded in our jurisprudence, than that which forbids a collateral attack on a judgment or order of a competent tribunal, not void on its face ab initio. . . .”

The judgment which defendant Price attacks here was rendered by a court of competent jurisdiction and it has the force of things adjudged. It has never been set aside in a direct action of nullity. The parties to that suit are the two principal parties to the instant suit. The issues were presented in the prior suit as to whether plaintiff was in good faith when she married defendant Price in 1951, whether she became his putative spouse and whether she was entitled to an interest in the estate which belonged to the putative community. The court decreed that she was in good faith, that she was the putative spouse of defendant, and that she is the owner of an undivided one-half interest in all property owned by the putative community which existed between them. We consider the issues determined by that judgment to be things adjudged, and not subject to collateral attack here.

We conclude that the judgment rendered in the prior suit is binding here, that plaintiff thus was in good faith when she married defendant Price, that she has been the putative wife of that defendant, and that she is the owner of an undivided one-half interest in and to all property owned by the putative community.

The law is settled that when a man contracts -a second marriage while his first wife is living and undivorced, and dies leaving community property acquired during the second marriage, contracted in good faith, the estate will be divided equally by the two wives. Patton v. Cities of Philadelphia and New Orleans, 1 La.Ann. 98 (1846); Ray v. Knox, 164 La. 193, 113 So. 814 (1927); Waterhouse v. Star Land Company, 139 La. 177, 71 So. 358 (1916); Jackson v. Gordon, 186 So. 399 (La.App. 1 Cir. 1939); Succession of Fields, 222 La. 310, 62 So.2d 495 (1952); Prince v. Hopson, 230 La. 575, 89 So.2d 128 (1956).

We think the same rule applies when there existed a putative marriage, contracted in good faith by the wife, and that putative marriage thereafter is dissolved by a judgment annulling it. Under those circumstances, the estate belonging to the putative community is divided in half. The putative wife is entitled to one-half of the property belonging to that community, and the first wife is entitled to the remaining one-half of that property.

There is no merit to defendant’s argument that Price should be awarded “some interest” in the property on the ground that the evidence fails to show that he was in bad faith. The evidence convinces us, as it apparently did the trial court, that defendant Price was not in good faith when he married plaintiff. The record contains a copy of the marriage certificate which was issued on November 28, 1939, evidencing Price’s marriage to L. D. Wilson. Price signed that certificate, and he is presumed to have known about that prior marriage when he married plaintiff in 1951. He has not alleged, or testified or attempted to show in any way that his first marriage has ever been dissolved. We conclude that he had knowledge of his prior marriage, and that he was not in good faith when he married plaintiff. In view of that finding, it is not necessary for us to consider whether he would have been entitled to “some interest” in the property in the event he had been in good faith.

We thus affirm that part of the judgment appealed from in the instant suit which decrees that plaintiff, Katie Lee Price, owns an undivided one-half interest in and to the above described property, and which directs that that property be sold at public auction by the sheriff to effect its partition by licitation.

We also affirm that part of the judgment appealed from which decrees that defendant, L. D. Wilson, is the owner of the remaining undivided one-half interest in the above property. The record, however, does not show whether the community which existed between L. D. Wilson and defendant Price has been dissolved since the trial, or since the above property was acquired. If it has been dissolved, then one-half the net proceeds of the sale of the above property should be paid to defendant Wilson. On the other hand, if the community should not be dissolved by the time the proceeds of the sale are ready for distribution, then a question would be presented as to whether L. D. Wilson’s portion of those proceeds should be paid to her or to defendant Price, as the head and master of the community. We express no opinion as to that question, because that issue is not before us at this time. We believe, however, that the judgment appealed from should be amended by adding to it directions as to how the net proceeds of the sale should be distributed.

Our decision is that the judgment appealed from should be affirmed, but that there should be added to that judgment a decree that the net proceeds of the sale of the above property, after deducting the costs of the sale, the costs of this suit and the amounts required to satisfy any special mortgages or liens against the property, shall be distributed as follows: One-half of such net proceeds are to be paid to plaintiff, Katie Lee Price, and the remaining one-half of such net proceeds are to be paid into the registry of the trial court, to be distributed thereafter pursuant to the orders of that court.

For the reasons assigned, the judgment appealed from is affirmed. There is added to that judgment, however, the following decree:

“It is further ORDERED, ADJUDGED and DECREED that the net proceeds of the sale of the above described property, after deducting the costs of the sale, the costs of this suit and the amounts required to satisfy any special mortgages or liens affecting the property, shall be distributed as follows: (1) One-half of the net proceeds of that sale shall be paid to plaintiff, Katie Lee Price; and (2) the remaining one-half of the net proceeds shall be paid into the registry of the trial court, to be distributed thereafter in accordance with the orders of that court.”

The costs of this suit and of the sale of the property are to paid from the proceeds of that sale. The costs of this appeal are assessed to defendant-appellant, Albert Price, Jr.

Amended and affirmed.