author: MORIAL, Judge.

text:
    David ODOM v. BURAS CONTRACTORS, INC.
    No. 7621.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 18, 1977.
    Rehearing Denied June 7, 1977.

      Clark A. Richard, Metairie, for plaintiff-appellee.
    Wayne C. Guidry, Grand Isle, for defendant-appellant.
    Before STOULIG, BOUTALL and MORIAL, JJ.
   MORIAL, Judge.

Buras Contractors, Inc. (Buras) appeals from a judgment awarding David C. Odom dividends of $56,403.35 and five percent ownership in Buras. Odom answered the appeal and prayed that the judgment be amended to increase the number of shares awarded to ten and the monetary award to $112,806.70.

Odom brought a suit against Buras to recover a ten percent share of dividends and corporate profits. Buras denied Odom’s ownership of an interest and reconvened for damages against Odom for instituting a frivolous lawsuit.

On April 2, 1963 Odom joined with two other men, Edward Schertler, Jr., now deceased, and Charles H. Taylor, to form Bu-ras for the purpose of carrying on the business of oil field construction and contracting. The articles of incorporation listed the incorporators and their subscriptions to shares as follows: Mrs. Gloria A. Taylor, 50 shares; Edward Schertler, 45 shares; David C. Odom, 5 shares. Subsequently, a Mrs. Della Blevens acquired ten of Schertler’s 45 shares. Mrs. Taylor was merely the nominal owner of the shares. Her husband, Charles Taylor was the owner in fact, and it was Mr. Taylor who was active in the affairs of the corporation with the full power to act with respect to the shares. When the stock certificates were issued, Schertler retained Odom’s certificate for five shares and placed it in a safety deposit box.

Odom was the superintendent and spent his time in the field supervising the actual construction business. Taylor and Schertler directed their attention to office management. The shareholders elected to be treated as a small business corporation under 26 U.S.C. 1371, et seq., commonly called a sub-chapter “S” corporation. Accordingly,.corporate profits were attributable to, and taxable to the shareholders in proportion to their holdings. The business was conducted informally and there were no minutes or other records kept of corporate meetings.

In 1964, at a meeting between Odom, Taylor and Schertler, Odom requested a larger share of the corporate profits. The other two stockholders agreed and Odom was assigned the right to receive additional dividends on five of the shares belonging to Taylor.

On March 24, 1966 a check for $12,862.21 was issued to Odom. This payment was entered in the corporate books as dividends paid to Odom, and a voucher attached to the check bore the notation “draw dividends.” On the same date, a check for $20,000.00 was issued to Gloria A. Taylor with the same notation.

Approximately six months later, August of 1966, Odom left the employ of Buras and moved to Texas. In that same month the Taylors executed an act of sale transferring their fifty shares of stock to Schertler. At approximately the same time, the original bookkeeping entry, which recorded the payment of dividends to Odom, was altered by erasing the original figure of $12,852.21 and inserting $12,252.21. The balance of $600.00 was transferred to another account and entered as payment by Edward Schert-ler for the five shares of stock owned by Odom. From then on, Mr. Odom was shown on the books as having sold his interest to Edward Schertler.

Odom returned to the state in late 1966 and worked for Buras for a few months. On March 7, 1967 Odom left Buras. He received no dividends or distributions after the check dated March 24, 1966.

On July 21, 1972 Odom through counsel, sent a letter to Buras requesting permission to examine the books of account. Buras replied by a letter dated July 24, 1972, refusing the request, and denying that Odom was a shareholder. On August 24, 1972, Odom applied for writs of mandamus and two warrants to compel the company to produce its books for inspection. The writ of mandamus was originally granted, but on a motion for new trial, the court rescinded the order and ordered a new hearing. Odom then voluntarily withdrew the application and filed this suit to recover dividends on October 5, 1973.

The trial judge granted a judgment ordering Buras to issue to Odom five shares of stock showing a five percent interest in the corporation, and to pay plaintiff the sum of $56,403.35 in declared dividends for the years 1966 through 1973.

The issues before the court are:

(1) Whether or not the check received by Odom in March 1966 was a dividend payment or payment for the purchase of his interest in the company;

(2) If no sale occurred, whether or not after Odom left the employ of the company he retained the right assigned to him to receive dividends on five of the shares belonging to Taylor;

(3) Whether or not the amount of dividends awarded by the trial judge is correct;

(4) Whether or not Odom’s action to recover the dividends has prescribed.

Buras contends that the trial judge erred in not concluding that a sale of the Odom interest occurred in March 1966. It argues that proof of a sale is reflected in the corporate records and in the testimony of the company bookkeeper. Absent the finding of a sale, appellant argues that the trial court wrongly calculated the amount due Odom in that he is only entitled to recover his interest in the dividends actually declared. Buras further contends that even if appellee is found to be the owner of the stock, his action to recover the dividends has prescribed. Buras urges the prescriptive period of one year classifying Odom’s action as one for conversion of his stock LSA-R.C.C. Article 3534. Alternatively, Buras argues, the suit is an action on a debt which is prescribed in three (LSA-R.C.C. Article 3538) or five (LSA-R.C.C. Article 3540) years depending on whether or not it is in writing.

Odom argues that there was never a sale of his stock. He also contends that the transfer of the additional five percent interest in the company was a permanent assignment of the right to receive additional dividends and that the trial court did not award him the full amount he is due. He also argues that the corporation held the dividends in trust for its stockholders and that prescription cannot begin to run until a demand is made by the stockholder.

The trial court on the basis of the testimony given concluded that Odom did not sell his interest in the corporation in March 1964. Where there is evidence to support the trial court’s conclusions of facts, such conclusions will not be disturbed in the absence of manifest error. See Canter v. Koehring Company, La., 283 So.2d 716 (1973). Furthermore, there is no evidence to support Odom’s claim to ownership of the five (5) Taylor shares. This assignment of the right to the dividends on those shares was not irrevocable and obviously intended to last only so long as Odom remained in the employment of Buras.

Based upon the corporate tax returns, Buras declared $725,593.00 in dividends for the period 1966-1973. Odom was entitled to five (5%) percent of that amount which is $36,279.65. However, for the same period the corporate tax returns show net income in the amount of $1,128,067.00. As a stockholder of a sub-chapter “S” corporation, Odom’s pro rata portion of the Buras undistributed taxable income was to be included in his gross income. See 26 U.S.C.A. Section 1373. Accordingly, Odom is entitled to an additional five (5%) percent of $402,474.00, the undistributed taxable income of Buras. Odom, therefore, is due $56,403.35 less the amount of one half of $12,852.21 he previously received as a dividend in 1966.

As to Buras’ argument that Odom’s claim for dividends is prescribed, it was stated in Scott v. New York Life Ins. Co., 16 So.2d 685, 686 (La.App. 2 Cir. 1944).

“The relation of a corporation to its stockholders is that of a trustee of a direct trust, as to which limitations are inapplicable until there is a clear and unequivocal disavowal of the trust and notice brought to the cestui que trust. “A stockholder is under no obligation to draw or demand his dividends within any prescribed period; the declared dividend being in the nature of a debt on the part of the corporation to the stockholder, payable on demand.
“The obligation of a corporation to pay a declared dividend to a stockholder is not subject to limitations until there has been a demand on the corporation and a refusal to pay.”

Armant v. New Orleans & C.R. Co., 41 La.Ann. 1020, 7 So. 35 (1889); De St. Romes v. Levee Steam Cotton Press, 20 La.Ann. 381 (1868); Fairex v. N. O. City R. R. Co., 36 La.Ann. 60 (1884). Therefore, prescription did not begin to run until Odom demanded the payment of dividends. This record discloses no demand of Odom for payment prior to the filing of this suit on October 5, 1973. Further, in Vaudry v. New Orleans Cotton Exchange, 2 McGloin 154 (App.1884), plaintiff sued to recover the value of his stock he had acquired twelve years earlier. The court stated that the prescriptive periods of three, five and ten years did not apply to the action relying on Fairex, supra.

For the foregoing reasons the judgment of the district court is amended to reduce the amount awarded to the plaintiff to $49,-977.25. As amended, the judgment is affirmed.

AMENDED AND AFFIRMED.

      . The amount of dividends credited is reduced by one half since we do not include the 5% of dividends assigned to Odom in 1966 in our calculation of total dividends due Odom.


source: Caselaw Access Project

author: EDWARDS, Judge.

license: Public Domain

text:
    CAPITOL STEEL, INC. v. Ross E. COX and Ross E. Cox, Inc.
    No. 11240.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.

      Cordell H. Haymon, Baton Rouge, of counsel, for plaintiff Capitol Steel, Inc., appellant.
    William P. Wray, Jr., Baton Rouge, of counsel, for defendant Ross E. Cox & Ross E. Cox, Inc., appellee.
    Before LANDRY, EDWARDS and COLE, JJ.
   EDWARDS, Judge.

This is a suit by Capitol Steel, Inc. (Capitol) against Ross E. Cox for the balance due on sales of wire mesh and other steel products. The defendant answered denying any indebtedness to Capitol and reconvened for damages occasioned by Capitol’s refusal to furnish wire mesh and other steel products under the terms of an existing contract. After trial on the merits, judgment was rendered in favor of Cox, dismissing Capitol’s demand, and granting judgment against Capitol on the reconventional demand. Prom this judgment, Capitol has appealed.

Ross E. Cox is a construction contractor who for many years prior to this suit had purchased steel products from Capitol, a steel products supply firm. The present controversy stems from two construction contracts awarded Cox for the improvement of the White Bayou-Baker Canal Diversion project (White Bayou).

White Bayou is a large existing canal which forms a portion of the drainage system of East Baton Rouge Parish. The improvement of the canal involved excavation and concrete-lining of the bottom and sides of the canal. The total project for the improvement of White Bayou was divided into five separate projects or phases, with the contract for each phase being awarded independently. Cox was the successful bidder on both the first and second phases of the project and signed contracts for these phases with the City-Parish governing body on March 8, 1971 and December 13, 1971 respectively. The contracts provided that the first phase would be completed within 300 calendar days after issuance of a work order and the second phase within 360 calendar days of the appropriate work order. Additionally, the contract for the second phase of the project stated:

“the worjk order on this project will not be issued until such time as the contractor on the first section has completed pouring 6 inch concrete revetment on the channel bottom and the project is ready to receive large volumes of stored water as determined by the Engineer.”

On December 15, 1971, Capitol and Cox executed two purchase orders which called for Capitol to furnish, at specified unit price f.o.b. — jobsite, certain steel products to be used in the construction at White Bayou. The principal products involved were six gauge wire mesh at $30.00 per roll and reinforcing steel at $8.80 per hundredweight. The purchase orders bear different project numbers and refer to different quantities of material, but both require that material be furnished “in strict accordance with plans, specifications and all addenda” on the referenced projects. In the blank space following the words delivery date requested, the first purchase order (P-1) contains the words “as required” and the second purchase order (P-2) contains “as requested.”

Capitol subsequently began deliveries under the first purchase order (P-1) and the products covered by this order were ultimately delivered without incident.

The present controversy concerns the steel products to be delivered under the second purchase order (P-2). The work order for the second phase construction was issued on April 5, 1973.

On June 5, 1973, the manager of Capitol, Tom Wylie, after being informed that considerable materials were yet to be ordered under the second purchase order (P-2) wrote to Cox requesting a price increase on the wire mesh to be delivered. This request was based on the fact that steel prices, which had remained relatively stable for many years, had begun to rise sharply during the 2nd quarter of 1973. Cox, by return letter of June 7, 1973, rejected any price increase beyond the purchase order price, but invited further discussion. Thereafter certain deliveries were made and invoiced under the purchase order.

On October 19, 1973, Capitol informed Cox that it would not continue to deliver steel at the purchase order price. Capitol was placed in default on October 22, 1973.

Some shipments of steel products were subsequently made under a “reservation of rights” agreement. This agreement was ultimately abandoned and Cox purchased the remainder of the steel required for the job at a substantially higher price from another supplier.

Thereafter, Capitol instituted this suit to recover the sum of $28,783.58, subsequently amended to $31,312.41, as the amount due at the current prices for steel delivered after the decision not to supply at the purchase order price. Cox filed a reconven-tional demand seeking damages for breach of contract including the costs in excess of the purchase order price of securing the steel products needed for White Bayou.

Capitol contends that the purchase order stipulates no time for performance, so the law implies a reasonable time, and that this reasonable time had elapsed prior to its decision to increase prices. Therefore, it argues, the contract had lapsed, and it was not obligated to furnish any materials under the purchase order.

The trial court held that the purchase order contained a definite term by virtue of inclusion by reference of the terms of the construction contract between Cox and the City-Parish. Additionally the trial court stated that a reasonable time had not elapsed on October 22, 1973 when Capitol defaulted on the contract.

Capitol contends that the trial court erred in finding that the purchase order contained a stipulated time for performance other than a reasonable time as implied by law; and in failing to find that this reasonable time elapsed before Cox sought to enforce the purchase order.

We pretermit the issue of whether or not the purchase order included by reference the time for performance contained in the construction contract, since the record is clear that in any event a reasonable time as implied by law had not elapsed when Capitol defaulted on its obligation. This reasonable time is to be determined by the circumstances in each case. Guzzo v. Liggio, 224 La. 313, 69 So.2d 357 (1953); Schnauder v. Rojas, 292 So.2d 754 (La.App. 4th Cir. 1974).

In the instant case, the time period imposed on Cox for completion of construction on the second phase of White Bayou was 360 days, but to run consecutively behind completion of the first phase. This time period was subject to extensions for inclement weather, and fortuitous and unforeseen events beyond the contractor’s control.

Tom Wylie, Capitol’s manager, stated that he had not considered a time frame for performance in signing the purchase order. Indeed the record is clear that time was not a crucial factor in the stable pre-1973 steel market. It appears that the practice of the steel products supply industry was such that materials were sold on an “as requested” or “as required” basis, and this was understood as meaning to be supplied during construction when needed. Had it not been for the sudden and unforeseen price increases during 1973, the record is clear that the time of performance for the second purchase order (P-2) would have, remained consistent with this practice as evidenced by the actions of the parties regarding the first purchase order (P-1).

Three City-Parish engineers testified at trial concerning the magnitude and uncertainties of the White Bayou project. They stated that this was one of, if not the, largest canal improvement projects in the Baton Rouge area. Additionally they testified that construction was often impeded by the weather, soil conditions and the large volume of water flow in the canal. All felt that the contractor, Cox, had proceeded within the applicable time frame and the extensions to which he was entitled on both phases of White Bayou.

We decline to compare the White Bayou project with the numerous other canal projects suggested by Capitol because of the innumerable variables inherent in each. White Bayou is distinguishable from other projects by its size and unusual soil conditions alone.

The trial court concluded after an evaluation of all the facts that the reasonable time for performance as implied by law had not elapsed prior to Capitol’s default since the parties “may be supposed to have contemplated in a general way” a time frame in excess of October, 1973. There is ample evidence in the record to support this conclusion. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

Accordingly, we find that Cox was justified in obtaining the steel products from another source after Capitol was placed in default on the purchase order. The trial court properly awarded damages to Cox based on the excess amount paid for the materials above the purchase order price.

Cox has urged us to increase the trial court’s award by giving damages for labor and machinery utilized in loading and transporting the steel products subsequently purchased to the job site. The trial court found, and we agree, that though the evidence establishes that the labor and ma-ehinery were so utilized, Cox failed to prove the value of his damages.

Similarly, Capitol has urged that the credit of $14,217.55 allowed by the trial court, for materials sold and delivered to Cox and not paid for, be increased to $15,-807.55 because of a mathematical miscalculation. Our examination of the record and invoices establishes that this contention is well founded. It appears that 468 rolls of wire mesh and 9,918 pounds of reinforcing steel were sold to Cox and not paid for. These items charged at the purchase order price of $30.00 per roll and $8.80 per hundredweight respectively, plus the applicable sales tax amounts to a credit of $15,807.55.

This credit when deducted from the award for excess cost allowed Cox by the trial court results in a net judgment in favor of Cox in the amount of $2,528.75.

For the reasons assigned, the judgment of the trial court in favor of Ross E. Cox in the amount of $4,118.75 is amended to read the amount of $2,528.75, and in all other respects, the judgment is affirmed at appellant’s cost.

AMENDED AND AFFIRMED.

      . This suit was originally brought against Ross E. Cox and Ross E. Cox, Inc. The corporate defendant obtained a summary judgment dismissing the suit against it on April 18, 1976. Capitol has not appealed that judgment.

      . The first purchase order is numbered 2131-M, refers to White Bayou No. 70-DR-CI-0102 and was designated by the trial court as P-1. It represents the agreement between the parties regarding the first phase of the construction. Similarly, P-2 is the designation assigned by the trial court to the second purchase order. It is numbered 2132-M and references White Bayou No. 71-DR-CI-0101, the second phase.

      . Capitol claims that the invoicing was due to a clerical error and should have been charged at the then current prices.


author: COVINGTON, Judge.

text:
    George PROFIT v. Stoney R. LINN et al.
    No. 11286.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.

      Sidney C. Sundbery and Stanwood R. Du-val, Jr., Houma, for plaintiff and appellant.
    Philip J. McMahon, Houma, for defendants and appellees.
    Paul M. Batiza, Thibodaux, for interve-nor.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   COVINGTON, Judge.

This is a suit by George Profit against Stoney R. Linn, Berry Brothers General Contractors, Inc., and The Travelers Indemnity Company for damages for personal injuries suffered by the plaintiff in a motor vehicular accident. Southern Farm Bureau Casualty Insurance Company, as the workmen’s compensation carrier, intervened to recover medical expenses and compensation paid by it.

On January 25, 1974, the plaintiff, while employed by Louis LeCompte as a bagasse truck driver, was driving a tractor-truck in an easterly direction on U. S. Highway 90 in LaFourche Parish, Louisiana, when at approximately 1:10 P.M., his vehicle was struck by a pick-up truck driven by Stoney R. Linn, who was employed by Berry Brothers General Contractors, Inc., the owner of the truck, which was insured by The Travelers Indemnity Company. The vehicle driven by Linn passed another vehicle, and as Linn crossed back into his lane of traffic he lost control and his vehicle spun into Profit’s lane of traffic, colliding head-on with the Profit vehicle. The liability of the defendants, Linn, his employer, and Travelers, is thus not in serious dispute. Johnson v. McKay, 306 So.2d 417 (La.App. 3 Cir. 1975).

As a result of the accident, Profit sustained severe injuries. The extent of the plaintiff’s injuries and the damages he suffered as a result thereof was the primary question which the trial court had to resolve.

After a three-day trial, the trial court awarded the plaintiff the sum of $83,507.00 as damages. The plaintiff moved for a new trial, asserting that the judgment was erroneous as to quantum. The trial court denied the new trial, and the plaintiff has appealed, seeking an increase in the award. The defendants have not appealed, nor have they answered the appeal.

At the time of the accident George Profit was 39 years old, had little formal schooling and was only trained to manual labor. He was earning about $10,000.00 a year as a truck driver.

As a result of the accident, he suffered a back injury which was diagnosed as a herniated lumbar disc. Profit was examined by several doctors, and on September 24, 1974, a laminectomy was performed by Dr. Dexter Gary. On March 21, 1975, about six months after the operation, Profit began to receive physical therapy. He continued to see Dr. Gary for several months.

In reaching his decision as to the amount of the award, the trial judge remarked in his written reasons:

“The doctors are all in accord as to the nature of plaintiff’s injuries, and while their opinions vary somewhat as to the extent of permanent disability, the Court feels that the plaintiff has proven by a preponderance of the evidence that he will never be able, to return to strenuous physical labor but must be satisfied in the future with light work. Since Dr. Gary, his primary treating physician, is more familiar with the nature and extent of plaintiff’s injuries and felt that as of April 28, 1975, approximately seven months after the laminectomy, that plaintiff was physically in shape to return to light work, an award of $7,500.00 should be adequate for the initial severe pain and suffering suffered by the plaintiff. (Morille T. Guidry vs. Canal Insurance Co., et al.— # 10,107 1st Circuit) (313 So.2d 860, La.App. 1 Cir. 1975).
“Proven medical expenses stipulated and admitted in evidence totaled $3,633.48 which were paid by the intervenor, Southern Farm Bureau Casualty Insurance Company. Intervenor, Southern Farm Bureau Casualty Insurance Company, also paid plaintiff the sum of $7,150.00 in compensation payments from February 2,1974 through March 24,1976.
“Plaintiff, George Profit, in 1973 had an income of $10,449.00. This is an average monthly income of $870.75. According to Dr. Gary’s testimony, plaintiff, George Profit, was disabled for a period of 15 months. For loss of wages up through the time of trial, an award of $13,061.25 will be made.
“Plaintiff has shown by a preponderance of the evidence that he will never be able to return to strenuous physical labor but there is no evidence in the record whatsoever which indicates that he is either physically or mentally unable to perform other less strenuous jobs. Plaintiff is a 39 year old male and except for his back injury, is in good health. He stands approximately six feet tall and must weigh approximately 210 pounds. Under these circumstances, the Court believes that it would be unrealistic to award loss of wages for the rest of his working life. He should be given a period of two years within which to obtain training for another occupation. Considering plaintiff’s earning capacity prior to the accident, I think an award of $25,000.00 should compensate him for loss (of) wages, past and future, while he prepares himself for another less strenuous occupation. (See Peter Parfait v. State of Louisiana, through the Department of Highways, # 10749 1st Circuit) (334 So.2d 549, La.App. 1 Cir. 1976).
“Plaintiff contends that additional surgery will be necessary and it has been stipulated that the cost of such surgery would be $2,911.00. A review of the medical evidence in this record clearly indicates that the plaintiff has failed to prove by a preponderance of the evidence that George Profit will, in fact, need additional surgery. See depositions of Drs. Gary, Phillips and Jackson. In order to give the plaintiff every possible chance to recover as fully as possible, the Court will allow plaintiff the sum of $2,911.00 for future medical expenses. This, together with the $25,000.00 awarded plaintiff for loss of wages, past and future, will allow plaintiff to prepare himself for another less strenuous occupation. It should be noted that plaintiff was advised to seek vocational training in some areas suited to his physical capacities, but, as of the time of the trial, he had not done so. “In addition to the above, the Court will award plaintiff the sum of $35,000.00 for pain and suffering, past, present and future. Accordingly, we summarize plaintiff’s award as follows:
For physical pain and suffering through the date of trial . 1_$ 7,500.00
For loss of wages up through the time of trial _$13,061.25
For future medical expenses _$ 2,911.00
For loss (of) wages, past and future, while in preparation for a less strenuous occupation_$25,000.00
For pain and suffering, past, present and future_$35,000.00
Amount stipulated in Plaintiffs Exhibit No. 13 and Plaintiff’s Exhibit No. 14-3>_34.75 TOTAL_$83,507.00
“There will therefore be judgment for this amount with defendant to pay all costs of these proceedings. Included as costs are the expert fees of Dr. Gary, Dr. Phillips, Dr. Chisholm and Mr. Cranford at the sum of $75.00.”

The appellate review of awards for general damages is limited. An abuse of the trial court’s “much discretion” must be clearly demonstrated from the record before an appellate court can disturb a trial court’s judgment. LSA-C.C. art. 1934(3); Revon v. American Guarantee & Liability Insurance Co., 296 So.2d 257 (La.1974). Each personal injury must be evaluated according to its own peculiar facts and circumstances. See Riley v. Frantz, 253 So.2d 237 (La.App. 4 Cir. 1971). Since the trial judge has a closer contact with the injured party, he is better able to estimate his actual loss. See Canter v. Koehring Company, 283 So.2d 716 (La.1973); Gaspard v. Le-Maire, 245 La.239, 158 So.2d 149 (1963).

In the recent case of Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976), the Supreme Court has explicated the character of appellate review of quantum awards, in the following language:

“Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded the court. Bitoun v. Landry, 302 So.2d 278, La.1974; Spillers v. Montgomery Ward & Company, Inc., 294 So.2d 803, La.1974. It is never appropriate for a Court of Appeal, having found that the trial court has abused its discretion, simply to decide what it considers an appropriate award on the basis of the evidence.”

The back injury has resulted in some permanent partial physical function disability. Dr. Dexter Gary, an orthopedic surgeon, who performed the laminectomy on Profit and who was the treating physician, estimated his disability at 15% of the body as a whole. Dr. Stuart I. Phillips, an orthopedic surgeon, who examined Profit for evaluation purposes, estimated the disability at 20%, while Dr. John D. Jackson, a neurological surgeon, who also examined Profit for evaluation purposes, estimated his disability at 10% of the body as a whole. Each of them related the disability to the back impairment. They all seem to agree that the plaintiff can return to work of a type less strenuous than that which he was doing prior to the accident. The main restriction on his work activity is that the plaintiff can not lift anything heavier than 35-50 pounds.

Dr. Dexter Gary first examined Profit on June 14, 1974, some five months after the January 25th accident. Dr. Gary considered that he had a low back injury. Dr. Gary again saw the plaintiff on July 15, 1974, about the same complaints. It was Dr. Gary’s impression at that time that the plaintiff had degenerative disc problems and that a myelogram would be needed if the symptoms persisted. The plaintiff was next seen by Dr. Gary on September 12, 1974; and at that time the doctor noted that Profit had had a myelographic examination which revealed a herniated disc at L-4-5 level. The doctor scheduled the plaintiff for a laminectomy, which was performed on September 24,1974. Post-opera-tively the plaintiff did well and his recovery was uneventful. In due course, the plaintiff began physical therapy to strengthen his back. When Dr. Gary examined the plaintiff on April 28, 1975, he considered that Profit had an impairment of 15% of the body.

In July of 1975, Dr. Gary found his condition to be unchanged and indicated to Profit that he should be discharged with the physical impairment of 15% of the body as a whole. Dr. Gary expressed the opinion that Profit was able to drive a truck, but should restrict his lifting activities.

On October 2, 1975, the plaintiff was examined by Dr. Stuart I. Phillips, an orthopedic surgeon. Dr. Phillips rated Profit “as a 20 per cent disability of the back secondary to the effects of the accident, subsequent surgery,” and rated him as unable to do work which entailed “working in a stooped position or bending and stooping repetitively.” Dr. Phillips considered that Profit was able to work as a truck driver, but that he should not lift weights heavier than 50 pounds.

Dr. John D. Jackson, a neurological surgeon, examined Profit on April 19, 1976. Dr. Jackson rated the plaintiff as having a 10% permanent partial disability of the body as a whole, but that he could probably still drive a truck if he did not have to do any heavy lifting. Dr. Jackson found no paraspinous muscular weakness or atrophy. The sensory examination revealed decreased sensation over the lateral aspect of the left foot, leg and thigh to pin scratch and light touch. There was also some limitation of motion to the lumbar spine. These findings were consistent with Profit’s medical history. Dr. Jackson found the remainder of the neurological examination to be normal.

In cases of this nature, a plaintiff must prove that either he can do no other work, or although with his physical disability he is able to perform other work, he will suffer a loss of income. See Parfait v. State, through Department of Highways, 334 So.2d 549 (La.App. 1 Cir. 1976). Even though there is no evidence in the record as to the exact amount of the plaintiff’s loss of future income, there is ample lay and expert testimony to prove that he is no longer able to perform the type of work that he had been doing and that he will in fact suffer a loss of income. The plaintiff has some impairment of bodily functions due to the back injury and subsequent surgery, but this impairment mainly affects the plaintiff’s ability to lift heavy weights. The record does not establish that future surgery will be required; nor does it establish that the plaintiff has been removed from the labor market, or his loss of income with exactitude.

The plaintiff was granted an award by the trial court which took into consideration all of the factors that can properly be considered in fixing an award for personal injury damages. While perhaps conservative, the trial court’s award was not so disproportionate to awards for injuries of this nature as to constitute an abuse of his discretion.

For the foregoing reasons, the judgment of the trial court is increased to a total of $87,140.48 by adding $3,633.48. As thus amended, it is affirmed at appellant’s cost.

AMENDED AND AFFIRMED.

      . Counsel, in oral argument before this court, agreed that this sum is due the plaintiff. The trial court inadvertently omitted it in its itemization of the total award. Therefore, we will amend the judgment by including this item.


author: FORET, Judge. WATSON, Judge,

text:
    FIRST NATIONAL BANK OF SHREVEPORT, Plaintiff-Appellee, v. James Henry WILLIAMS, Defendant-Appellant.
    No. 5939.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 1977.

      Watson, Murchison, Crews & Arthur, by Daniel T. Murchison, John G. Williams, Natchitoches, for defendant-appellant.
    Gahagan & Gahagan by H. C. Gahagan, Jr., Natchitoches, for defendant-appellee, Harry Friedman, Jr.
    Blanchard, Walker, O’Quin & Roberts by Neilson S. Jacobs, Shreveport, for plaintiff-appellee.
    Before WATSON, FORET and HEARD, JJ.
   FORET, Judge.

This appeal arises from the consolidation of two cases, the first of which judgment was rendered in favor of plaintiff, First National Bank of Shreveport (hereinafter referred to as First National) against James Henry Williams upon a promissory note dated January 8, 1975, and the second of which judgment was rendered against the plaintiff, James Henry Williams, and in favor of defendant, Harry Friedman, Jr. In the first suit, appellant Williams asserted the affirmative defenses of lack of consent due to error in fact, lack of agreement on the subject matter of the sale, invalidity of the note on grounds of lack of capacity to contract due to a temporary derangement of intellect as a result of disease, lack of a negative (contravention of prohibitory law) brucellosis test regarding a herd of cattle, and lack of a plaintiff holder in due course. In the second suit, these affirmative defenses were the causes of action brought by Williams in an attempt to seek a declaration that the sale and promissory note dated January 8, 1975, were null and void.

On or about December 14, 1974, James Henry Williams, a/k/a J. H. Williams, and Harry Friedman, Jr., began negotiations for Mr. Williams to purchase the cattle of Mr. Friedman as well as certain agricultural implements and to lease lands upon which Mr. Friedman was grazing his herd of cattle. These negotiations continued with the two parties meeting each other on occasions and with certain agents and employees of Mr. Williams, particularly his son-in-law, Ralph Ingram, Jr., consulting with Harry Friedman, Jr. On or about January 4,1975, Bruce Champion and four other employees or agents of Mr. Williams began counting, inventorying, and appraising the cattle and equipment belonging to Friedman. This series of negotiations and appraisals culminated in a sale of the cattle and equipment and the execution of a promissory note in the law office of Sam Friedman, a first cousin of Harry Friedman, Jr., in Natchitoches, Louisiana, on January 8, 1975. On January 16, 1975, J. H. Williams was forcibly committed to Brentwood Hospital in Shreveport, Louisiana, to be treated for a mental condition subsequently diagnosed as “manic-depression”. J. H. Williams remained hospitalized until February 22,1975.

On or about January 10, 1975, employees of J. H. Williams took possession of the cattle and equipment formerly belonging to Harry Friedman, Jr. Possession was maintained until on or about March 12, 1975, when Williams advised Friedman that the cattle were going to be returned.

The consideration of the sale from Friedman to Williams was a promissory note dated January 8,1975, and due on February 15, 1975. Approximately two days prior to the commitment of J. H. Williams to Brentwood Hospital, Harry Friedman, Jr. physically delivered and pledged the note to the First National Bank of Shreveport. On January 27, 1975, Ralph C. Ingram, Jr., son-in-law of J. H. Williams and manager of his extensive farming and agricultural operations, executed a letter purporting to confirm, ratify and recognize the validity of the sale of the cattle and equipment in return for an extension of the due date of the promissory note which was the consideration for the sale on January 8, 1975. Mr. Ingram was the duly appointed agent and attorney-in-fact for J. H. Williams by virtue of an Act of Procuration of record in the Clerk’s Office in Natchitoches Parish.

Approximately two and one-half weeks after his return from the Brentwood Hospital, J. H. Williams denied liability to a representative of the First National Bank of Shreveport on the January 8, 1975 promissory note in the sum of Two Hundred Forty-Three Thousand, Seven Hundred Fifty and No/100 ($243,750.00) • Dollars. The First National Bank then sued J. H. Williams. Mr. Williams answered contending that the note was null and void on the basis of temporary insanity at the time the note was executed; that the sale of cattle and other items for which the note was given was null and void because it was made without a valid thirty-day negative brucel-losis test certificate; and, that the plaintiff, First National Bank of Shreveport, was not a holder in due course of the note.

Harry Friedman, Jr., who had originally pledged the note to the First National Bank of Shreveport, was made a third party defendant in the action filed by the Bank. Immediately after the suit filed by the First National Bank, J. H. Williams brought suit against Harry Friedman, Jr. seeking to have the sale of the cattle and resulting note declared null and void and the lease of lands cancelled. The two suits were consolidated for trial.

From judgment rendered in favor of the First National Bank of Shreveport and Harry Friedman, Jr. rendered September 20, 1976, signed September 27, 1976, J. H. Williams perfected this appeal. Harry Friedman, Jr. answered the appeal of J. H. Williams requesting that certain items of expense for the care and maintenance of the cattle subsequent to March 12, 1975, be increased.

In his appeal, appellant, J. H. Williams, assigned as issues to be resolved in this Court, the following, to-wit:

1. Was the sale of January 8, 1975, invalid because of any or all of the following alternative reasons, to-wit:
a. Want of legal capacity on the part of Mr. Williams to enter into a contract by reason of temporary insanity;
b. Consent was lacking by reason of error in fact;
c. There was no agreement on the subject of the sale;
d. The sale was made in contravention of prohibitory law;
e. The sale was voidable on the grounds of breach of warranty;
2. Is the First National Bank of Shreveport a holder in due course, and are the defenses against Harry Friedman, Jr., enumerated above, equally applicable to the Bank in connection with its suit on the note, which note was given in consideration of the sale?
3. Was the action of the First National Bank of Shreveport in filing its suit on the note premature, and if so, should the suit on the note be dismissed because of the prematurity?

For the making of any valid contract, four (4) elements are absolutely required:

(1) Parties possessing the capacity to contract;
(2) Mutual consent freely given thereto;
(3) A certain object;
(4) A lawful purpose.

As to the first element, that is, capacity to contract, in the absence of a special exception, a presumption arises that all persons possess that capacity. C.C.Art. 1782.

In this case, it is contended that J. H. Williams, on the 8th day of January, 1975, because of unsound mind, did not possess the capacity to contract. This exception to the presumption of capacity to contract is specifically enumerated in the Louisiana Civil Code, which provides:

“Art. 1788 The contract, entered into by a person of insane mind, is void as to him for the want of that consent, which none but persons in possession of their mental faculties can give. It is not the judgment of interdiction, therefore, that creates the incapacity; it is evidence only of its existence, but it is conclusive evidence, and from these principles result the following rules:
. . . (2) As to contracts, made pri- or to the application for the interdiction, they can only be invalidated by proving the incapacity to have existed at the time the contracts were made.
‘(3) But in order to prevent imposition, it is not enough to make the proof mentioned in the last rule; it must also, in that case, be shown that the person interdicted was known by those who generally saw and conversed with him, to be in a state of mental derangement, or that the person who contracted with him, from that or other circumstances, was acquainted with his incapacity.’ ”
“Art. 1789 A temporary derangement of intellect, whether arising from disease, accident, or other cause, also creates an incapacity pending its duration, provided the situation of the party and his incapacity were apparent.”

The provisions of Civil Code Article 1788 do not apply to the case at bar. In this case, in which a living person directly attacks the validity of a contract to which he is a party on the ground of lack of capacity due to a mental condition, in order for Article 1788 to apply, proceedings for an interdiction of that party must have commenced, and that party must be insane. Coburn Finance Corp. v. Bennett, 241 So.2d 802 (La.App. 3 Cir. 1970); Ponder v. Pechon, 274 So.2d 386 (La.1973). In this case, no judgment of interdiction has been rendered and no proceedings for the interdiction of J. H. Williams have been filed; no allegation has been made, and no evidence has been admitted, that J. H. Williams, on January 8, 1975, did “not enjoy the exercise and use of reason . . . C.C.Art. 31.

The provisions of Civil Code Article 1789 do, however, apply to the very factual situation of this case. No interdiction proceedings have been instituted; Williams alleges that, as a result of a temporary derangement of his intellect as a result of a disease —psychosis, manic depressive, manic stage — as of the date of the execution of the sales contract and the promissory note, which mental derangement was generally known or known to Harry Friedman, Jr., the other contracting party, he lacked the capacity to contract. Vance v. Ellerbe, 150 La. 388, 90 So. 735 (1922); Banks v. Johns, 289 So.2d 194 (La.App. 1 Cir. 1973); Brumfield v. Paul, 145 So.2d 46 (La.App. 4 Cir. 1962); Smith v. Blum, 143 So.2d 419 (La. App. 4 Cir. 1962).

The jurisprudence of this State in relation to Civil Code Article 1789 is somewhat old and few in number. In the case of Coburn v. Bennett, supra, the defendant could neither read nor write, and had the mentality of a five or six-year-old. The other party was notified of defendant’s mental age and defendant’s speech showed signs of the mental deficiency. In such case, this Court ruled that the defendant suffered a temporary derangement of intellect as a result of disease or accident, and that the other contracting party was cognizant of that fact. In the case of Banks v. Johns, supra, the heirs of the vendor attempted to rescind a sale on the grounds of the mental incompetence of the vendor. Three days prior to the sale, Banks, vendor, had shot his wife. On the following day,! Banks was admitted to East Louisiana State Hospital, and his condition was diagnosed as chronic brain syndrome associated with cerebral arteriosclerosis, with psychotic episodes. On trial of the matter, a physician testified that Banks knew that which he was doing on the date of the sale, and that Banks showed no signs of psychosis at the time of admission to the hospital. The purchaser, a witness to the sale, and the notary before whom the sale was passed testified that Banks seemed to have understood that which he was doing and looked no different than he did before. The First Circuit ruled that the evidence did not preponderate to the effect that the situation of the party and his incapacity were apparent to the other contracting party or to the general public.

In the case of Brumfield v. Paul, supra, a contract was declared to be null and void upon the grounds of the mental incompetence of one of the parties thereto. It was shown, by a preponderance of the evidence, that at the inception of the sales contract, the plaintiff was receiving medication, was under heavy sedation, and was irrational and therefore incapable of making any decision or transferring of property.

In the Succession of Schmidt, 219 La. 675, 53 So.2d 834 (1951), the heirs of a testatrix attacked the validity of her olographic will. The evidence presented established that the testatrix suffered from toxic psychosis, which disease causes the person suffering therefrom to undergo periods of exacerbation and remission of irrationality and lucidity. The court ruled that this was a case to be determined according to C. C. Article 1789. Because the disease admitted of rational periods and evidence was presented that the testatrix did in fact have rational periods, the Court ruled that the presumption that the testatrix wrote the will during one of her lucid rational periods existed, and the plaintiffs did not bear their burden of proving that such was not the case.

We have reviewed several decisions of other jurisdictions to determine exactly what test or tests are used to determine whether or not, at the inception of the contract, the parties thereto have the mental capacity to contract. According to the case of Ebrite v. Brookhyser, 219 Ark. 676, 244 S.W.2d 625, 44 A.L.R.2d 587 (1951) if the maker of a deed has sufficient mental capacity to retain in his memory, without prompting, the extent and condition of his property, to comprehend how he is disposing of it and to whom and upon what consideration, then he possesses sufficient mental capacity to execute such instrument. If a person has such mental capacity, then, in the absence of fraud, duress, or undue influence, mental weakness, whether produced by old age or through physical infirmity, will not invalidate an instrument executed by him.

In the case of Buuck v. Kruckeberg, 121 Ind.App. 262, 95 N.E.2d 304, 22 A.L.R.2d 1145 (1950), the test of mental capacity to make a deed is that the parties thereto shall have sufficient mind and memory to comprehend the nature and extent of their acts, to understand the nature of the business in which they are engaged, and to exercise their own will in reference thereto. In Tate v. Murphy, 202 Okl. 671, 217 P.2d 177, 18 A.L.R.2d 892 (1949), it was ruled that evidence of the mental condition or capacity of a contracting party at the time of the execution of the contract was controlling over evidence of the mental capacity of such party before and after the act. The finding of the trial court that a party was incompetent at the time of a transfer was against the clear weight of evidence where, despite evidence of instances indicating failing memory, a failing sense of direction, hallucinations, susceptibility of being influenced, and inclination to a change of mind, while the contracting party was under the influence of sedatives, there was undisputed evidence that at other times the contracting party knew what he was doing, and was fully able to understand the effect of his deed, and all the witnesses who saw him on the date of the transfer testified that he was mentally competent at that time.

During trial, the following medical doctors — N. J. Bender, James Kaufman, Charles E. Cook, and William A. McBride, Jr. — testified concerning the mental condition of J. H. Williams prior and subsequent to January 8, 1975, the date of the execution of the contract for the rescission of which Williams brought suit. All of the doctors agree that J. H. Williams suffered from manic depressive psychosis as of January 16, 1975.

Dr. N. J. Bender, psychiatrist, examined and treated J. H. Williams but once prior to January 8, 1975. That occasion was at Schumpert Hospital, Shreveport, Louisiana, on July 22, 1974, at which time Bender diagnosed Williams’ condition as depressive neurosis, a relatively mild illness of which the principal symptoms are alternating periods of anxiety and depression, the latter of which is of a more frequent nature. Dr. Bender’s next treatment of Williams occurred on January 16, 1975, at which time Bender diagnosed Williams’ mental condition as psychosis, manic depressive, manic stage, a severe mental illness involving a change in the patient’s total personality and in the patient’s ability to test reality.

As to a guide to a better understanding of the manic depressive psychosis illness, Dr. Bender enumerated the following stages through which the patient passes: (1) hypomania; (2) mania; (3) manic delirium, and stated that there is no such thing as a lucid interval (a full return of the mind to sanity — see Succession of Tyler, 193 La. 480, 190 So. 651 (1939)) for one suffering from manic depressive psychosis. Dr. Bender stated that Williams’ July, 1974 depressive neurosis was but the beginning of that which finally culminated in the manic depressive psychotic illness and that in November and December, 1974, during the time in which Williams passed through the hypomania stage, his judgment was impaired.

Dr. Bender, however, greatly confused this reader when he stated that one suffering from manic depressive psychosis can talk, operate a motor vehicle, write, dress himself, show affection, and boast, as well as any normal person; that although that person will have impaired judgment, he may know what he is doing; that Williams always exhibited a cyclothymic personality, one in which the person alternately experiences more elation and more depression than the normal individual and exhibits the same traits as does one under the hypoma-nia stage; and that a lay person probably could not distinguish between hypomanic symptoms and the normal actions of an extrovert — loud and/or rapid rate of speech; indulgence in theatrical behavior; domination of conversation; lack of concentration for an extended period of time.

Dr. James Kaufman, general practitioner and assistant coroner for the Parish of Natchitoches, the family physician of the Williams family, treated and examined Williams in July, 1974, at which time clinical examination revealed that Williams suffered from marked mental depression, and on December 10, 1974, at which time Williams was very hyperactive, agitated, and belligerent. Although he merely conversed with Williams on December 19, 1974, and gave no psychological evaluations and/or tests, Dr. Kaufman concluded that, at that time, Williams was within the manic stage of his psychotic illness.

Dr. Charles E. Cook, general practitioner and Coroner of Natchitoches Parish, concluded, upon the basis of conversations and meetings with Williams, that the latter was sane and acted within the normal range of his extroverted and outgoing personality as of December 25, 1974. Dr. Cook’s first clinical examination of Williams was dated January 16, 1975, at which time he made preparations for Williams’ confinement to Brentwood Hospital in Shreveport, Louisiana.

Dr. William A. McBride, Jr., psychiatrist, never examined and/or treated J. H. Williams. His testimony concerned the nature and extent of psychotic mental illness, the detection of same, and the nature and extent of the cyclothymic personality. According to this expert in the mental field of medicine, manic depressive psychosis is an abnormal change in the individual’s total personality, in which the individual loses control with reality and his ability to function in reality. The individual normally undergoes these phases of the illness: (1) depression; (2) mania; (3) manic delirium, which phases may, or may not, be progressive, depending upon the state of the individual, the degree of stress, and the degree of exhaustion of the individual. Dr. McBride stated that the illness is characteristically cyclical without deterioration and that there is a high rate of recurrence- — depression, mania, manic delirium, normalcy; in the intervals between such episodes, the individual usually is clearheaded, can function very effectively in society, “and for all intents and purposes he is normal as everybody else", (emphasis provided)

Dr. McBride opined that manic depressive psychosis can only be diagnosed at the point at which the individual passes through the manic delirium stage and is very belligerent. He further stated that the probability of detection by a lay person of a cyclothymic personality with that mental condition would be quite difficult.

Dr. McBride definitely stated that hypo-mania was not considered a psychotic illness, but rather was listed in the nonpsy-chotic disorders and in relation to the cy-clothymic personality. He- stated that the cyclothymic personality was within the range of normalcy and was between the normal and the psychotic. According to the Doctor, hypomanic behavior is usual of an energetic, aggressive person not in conflict with society, and not exhibiting irrational behavior.

From his review of the records of Brent-wood Hospital, the report and testimony of Dr. Bender, and a narrative of the personality of J. H. Williams, Dr. McBride agreed with Dr. Bender’s diagnosis of January 16, 1975, but concluded that Williams exhibited hypomanic behavior until January 12, 1975, the date of commencement of the manic phase of the psychotic illness.

A large number of lay witnesses testified as to the general reputation of Williams within the Natchitoches community. Although most stated that the rumors concerning Williams related largely to the number and profitability of the transactions undertaken by Williams, and although a great majority of those transacted business with Williams, they opined that in the latter part of 1974 and the early part of 1975, Williams suffered from a deteriorated mental condition.

Three lay witnesses — James Stacy, Harry Friedman, Jr., and Sam Friedman — testified as to Williams’ conduct and behavior on January 8, 1975. Stacy stated that Williams acted as if he understood the provisions of the lease as between the two of them. Harry Friedman opined that Williams was fully cognizant of their contract of sale and viewed the list of equipment and cattle that were the object of the sale; and stated that when disagreement as to the sales price arose as between the two of them (each had an appraisal of the worth of the cattle), they arrived at a sales price by splitting the difference of the two appraisals. Sam Friedman (a prominent Natchi-toches attorney), the notary public who executed the Stacy lease and the Friedman sale, stated that Williams gave the impression that he understood the provisions of the two contracts, and that had Williams not done so, he, Friedman, would not have completed the execution of the contracts.

The law of this State presumes the capacity to contract and favors and promotes that freedom. But very few exceptions exist as to this presumed capacity to contract, which exceptions must be shown quite convincingly and by the great weight of the evidence. Where doubt exists as to the showing of an exception, the presumed capacity to contract prevails. In a case such as this, in which the experts differ in their opinions as to the effect of the disease as regards the ability to understand and reason; evidence, although controverted, is presented to establish periods of sanity, of lucidity, for a person suffering from the disease; and unrefuted testimony is presented that the person so suffering exhibited reason and understanding of the contract sought to be rescinded, doubt exists as to the weight of evidence in favor of an exception, and the presumption of the capacity to contract remains.

The evidence presented in this case satisfied the trial court and satisfies this Court that Williams freely and legally consented to the sales contract with Friedman — that he understood the obligation(s) to which he was bound, and the number, amount, and value of the equipment and cattle which he purchased. Therefore, we conclude that appellant’s argument as to lack of consent and of agreement on the subject of the sale are not meritorious.

Evidence was presented that the sales contract was executed in contravention of prohibitory law — no test for brucel-losis was conducted within thirty (30) days of the sale. However, nothing was before the trial court which revealed bad faith, moral turpitude and/or that the contract was against public morals. For such reasons, we hold, as did the trial court, that the sales contract cannot be rescinded. Post Office Employees Credit Union v. Frosina, 77 So.2d 213 (Orl.La.App.1955); Fix-It Shop v. Roy, 68 So.2d 332 (Orl.La.App.1953).

For the above reasons and rulings, the issue as to whether or not the First National Bank of Shreveport was a holder in due course is pretermitted.

Prior to trial, appellant filed an Exception of Prematurity. On trial of the matter appellant, Williams, testified that Ralph Ingram, his manager, had no authority to extend the date upon which the note was to mature, and thus contradicted the basis of his exception. For that reason the trial court properly overruled the exception.

Appellee in our Number 5940, entitled “James Henry Williams v. Harry Friedman, Jr.”, has answered the Williams appeal, urging that we sustain other portions of the judgment rendered in the trial court, but amend same in the following respects:

1. Increase the trial court’s award of $26,686.86, to $47,843.17 together with legal interest thereon at the rate of 7% per annum from date of judicial demand until paid, which amount represents expenses for the preservation of cattle for the period January 8, 1975, to September 30, 1975; and
2. Reserve defendant-appellee’s right to claim, additionally, expenses incurred for the preservation of the said cattle subsequent to September 30, 1975.

Regarding the increase of the award for expenses, sought by defendant-appellee, we find no manifest error in the trial court’s award for expenses for the preservation of the cattle during the period above mentioned. A reasonable evidentiary basis appears from the record, sufficient to sustain the trial court’s award, and we find no manifest error in that award. Consequently, under the prevailing jurisprudence, we will not disturb same.

With reference to defendant-appellee Harry Friedman’s second requested amendment, we find merit in his contention that his right to make a claim for such expenses incurred subsequent to September 30, 1975, should be reserved unto him. Accordingly, we would amend the judgment of the trial court to include the following:

“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the right to claim expenses incurred for the preservation of the cattle subsequent to September 30, 1975, be reserved to Harry Friedman, Jr.”

Costs of this appeal are to be borne by appellant, James Henry Williams.

AMENDED AND AFFIRMED.

WATSON, J., concurs and assigns reasons.

WATSON, Judge,

concurring:

With reluctance I concur in the decision of the majority to affirm the judgment of the trial court.

My study of the medical and lay testimony convinces me that Mr. Williams was suffering “derangement of intellect” within the meaning of LSA-C.C. art. 1789 on the date the cattle were purchased and the note was executed.

However, despite a thorough and skillful job by his counsel, plaintiff ran into insurmountable difficulties in proving the second element of Article 1789, that: “the situation of the party and his incapacity were apparent”. This latter element is a fact question and the voluminous record includes substantial evidence on both sides. While I may very well have decided the case differently in the trial court, my limited authority on appeal is that of reviewing the facts to determine whether the trier of fact had a reasonable evidentiary basis for his decision. It matters not that there may be an equally reasonable basis for a contrary decision because the appellate court is not entitled to substitute its judgment for that of the trier of fact. Canter v. Koehring Company, 283 So.2d 716 (La., 1973); Pierre v. Landry, 341 So.2d 891 (La., 1977); Wiley v. Travelers Insurance Company, 300 So.2d 555 (La.App. 3 Cir. 1974), writ denied, 303 So.2d 187 (La.); Mulcahy v. State Department of Corrections, 334 So.2d 509 (La.App. 1 Cir. 1976); Andrew v. State Farm Mutual Automobile Ins. Co., 316 So.2d 883 (La.App. 3 Cir. 1975).

Therefore, I respectfully concur.

      . The other case being Williams v. Friedman, Jr., Docket No. 5940 of this Court, 346 So.2d 265.

      . C.C.Art. 1779.


author: FORET, Judge.

text:
    James Henry WILLIAMS, Plaintiff-Appellant, v. Harry FRIEDMAN, Jr., Defendant-Appellee.
    No. 5940.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 1977.

      Watson, Murchison, Crews & Arthur by Daniel T. Murchison, John G. Williams, Natchitoches, for defendant-appellant.
    Gahagan & Gahagan by H. C. Gahagan, Jr., Natchitoches, for defendant-appellee, Harry Friedman, Jr.
    Blanchard, Walker, O’Quin & Roberts by Neilson S. Jacobs, Shreveport, for plaintiff-appellee.
    Before WATSON, FORET and HEARD, JJ.
   FORET, Judge.

For reasons handed down this date in the companion case of First National Bank of Shreveport v. Williams, Number 5939, Third Circuit Court of Appeal, 346 So.2d 257, the judgment of the trial court is affirmed as amended.

AMENDED AND AFFIRMED.

WATSON, J., concurs for reasons assigned in # 5939.


author: SAMUEL, Judge.

text:
    Mrs. Calvin J. PEPITONE et al. v. STATE FARM MUTUAL INSURANCE COMPANY et al.
    No. 8066.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 1977.

      M. L. Juran and Jerome Friedman, Me-tairie, for ■ plaintiff-appellant.
    Dillon & Williams, Robert E. Birtel, New Orleans, for intervenor-defendant in recon-vention.
    Before SAMUEL, GULOTTA and BOU-TALL, JJ.
   SAMUEL, Judge.

Plaintiffs, the widow and sons of decedent, Calvin J. Pepitone, filed this tort suit against several defendants and their liability insurers seeking damages for decedent’s alleged wrongful death as a result of an automobile accident.

Mr. Pepitone was employed as an electrical inspector for the Parish of Jefferson. Fireman’s Fund Insurance Company, the parish’s workmen’s compensation insurer, intervened in the tort suit to recover all workmen’s compensation benefits paid to the widow from any money damages which might be awarded her. Plaintiffs filed an answer and a reconventional demand to the petition of intervention. The answer generally denies the allegations of the petition, which denials are based on a lack of information, and the reconventional demand seeks enforcement of what plaintiffs contend to be a contract of settlement of the workmen’s compensation claim in the sum of $13,000 and judicial approval of that settlement. Fireman’s Fund then filed an exception of no cause of action to the recon-ventional demand. Plaintiffs have appealed from a judgment maintaining the exception and dismissing their reconventional demand.

The accident occurred on June 19, 1974 and Mr. Pepitone died from his injuries on June 25, 1974. Thereafter, plaintiffs made claim against Fireman’s Fund for workmen’s compensation benefits, and Fireman’s Fund commenced weekly payments of $65.

Relative to the alleged contract of settlement, the reconventional demand alleges: On February 6, 1975 a representative of Fireman’s Fund wrote plaintiffs’ attorney inquiring of the possibility of a lump sum settlement of the workmen’s compensation claim; on February 10, 1975 plaintiffs’ attorney answered requesting the company make an offer of settlement; on February 20, 1975, another representative of Fireman’s Fund wrote plaintiffs’ attorney offering to settle the claim for $13,000; on July 9,1975, plaintiffs' attorney wrote Fireman’s Fund accepting the $13,000 offer; and Fireman’s Fund refused to pay the $13,000 “offered and accepted in writing.” In the July 9, 1975 letter plaintiffs’ attorney informed Fireman’s Fund of the filing of this tort suit arising out of the automobile accident, in which suit Fireman’s Fund (as liability insurer of the Parish of Jefferson) is a named defendant. Fireman’s Fund then refused to go forward with the compensation compromise agreement and intervened in the tort suit to recover sums paid to Mrs. Pepitone.

The question presented is whether the letter acceptance of intervenor’s offer to settle the workmen’s compensation claim for $13,000 was a binding contract of compromise which the compensation insurer could not unilaterally repudiate. Plaintiffs contend the agreement must be performed by Fireman’s Fund to the extent of submitting the compromise to the court for the latter’s approval.

Matters involving compensation claims are governed exclusively by the Workmen’s Compensation Act (LSA-R.S. 23:1021 et seq.) and the general law of contracts is inapplicable when in contravention of the provisions of that act. In compensation cases, an additional formality is imposed by R.S. 23:1272 which requires: “The agreement entered into between the employee or his dependents and the employer or his insurer, shall be presented to the court for its approval upon a joint petition verified by all parties thereto.”

As the above quoted requirement of judicial approval of compensation settlements is necessary to protect the parties from unwise actions which may cause them serious detriment, and as that requirement appears to us to contemplate a proposed settlement to which all parties must agree at the time of the verifying and filing of the joint petition, we are satisfied that any party may unilaterally withdraw from the agreement prior to that time. Certainly, an employee or his dependents who had agreed to accept a settlement could withdraw from that agreement at any time prior to verification and filing, and we see no reason why the employer and his insurer cannot do the same thing.

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

AFFIRMED.

      . See Puchner v. Employers’ Liability Assur. Corporation, 198 La. 921, 5 So.2d 288.

      . We do not consider the question of unilateral withdrawal after verification and filing but before court approval. That question is not before us.


text:
    Joseph JENNINGS v. HALLIBURTON COMPANY, IMCO Drilling Mud, Inc., Highland Insurance Company.
    No. 8236.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 1977.

      Badeaux, Discon, Cumberland & Barbier, Fernand L. Laudumiey, III, New Orleans, for plaintiff-appellant.
    Phelps, Dunbar, Marks, Claverie & Sims, Esmond Phelps, II, New Orleans, for defendants-appellees.
    Before SAMUEL, REDMANN and BEER, JJ.
   SAMUEL, Judge.

Plaintiff, Joseph Jennings, filed this suit against Halliburton Company, IMCO Drilling Mud, Inc., and Highlands Insurance Company, seeking to recover workmen’s compensation benefits for permanent and total disability at the rate of $65 per week for 500 weeks as a result of an injury he sustained on November 19, 1973.- Defendants answered, admitted plaintiff was injured, but denied plaintiff was disabled beyond February, 1974, when compensation benefits were terminated.

After a trial on the merits, judgment was rendered in favor of the defendants, dismissing plaintiff’s suit at his cost. Plaintiff has appealed.

The record reveals plaintiff was employed by Halliburton as a truck driver and part of his functions included loading and unloading heavy material from his truck. On November 19, 1973, he was returning from such a delivery when he became comatose from gas escaping from his truck’s faulty exhaust system. The truck left the road and crashed into a telephone pole, throwing plaintiff through the windshield. The issue in this court is whether or not plaintiff is disabled by reason of a neurosis caused or aggravated by the accident.

Plaintiff does not remember the accident. His recollection began in the hospital where he was brought for observation. He received a concussion, multiple contusions, and multiple abrasions of the left knee, left arm, nose and face. He also received cervical and lumbosacral strains.

Upon release from the hospital, he was treated by defendant’s physician, Dr. William Gadow. He was also seen on a consulting basis by specialists in orthopedics, neurosurgery, and otholaryngology. Dr. Gadow concluded plaintiff was able to resume his normal occupational duties on March 1, 1974, four and one-half months after his injury.

Before Dr. Gadow released plaintiff, he obtained an evaluation of plaintiff’s condition from Dr. Thomas Tate, an otholaryn-gologist. Dr. Tate’s examination was negative, except that he discovered a hearing loss of 31% in plaintiff’s right ear and 28% in his left ear. Not having seen plaintiff prior to his accident, Dr. Tate could not state the accident caused the hearing loss, but he indicated plaintiff’s injuries were sufficiently severe to have caused the condition. On May 19, 1975, plaintiff was seen by another physician who found only a hearing loss of 2.5% in the right ear and 5% in the left. Dr. Tate again tested plaintiff on September 15, 1975 and arrived at basically his original findings.

Plaintiff returned to work, but complained of severe back pain when he attempted bending or lifting. Apparently as a result of conflict with his employer, he voluntarily left his employment on March 15, 1974. However, he continued to consult physicians because, as he testified, of his pain. None of these physicians could find objective symptoms to substantiate his corn-plaints; the consensus of their diagnosis was an acute cervical and lumbosacral strain which had healed. Among these physicians was Dr. Rayburn C. Leuwellen, a neurosurgeon.

Because plaintiff, again as he testified, experienced increased emotional problems, he sought psychiatric help from Dr. Alvin Cohen. Dr. Cohen, the only psychiatrist who testified, diagnosed plaintiff’s condition as a severe anxiety neurosis with depression. In his opinion the condition was precipitated by plaintiff’s injury. Dr. Cohen’s reasoning was based on plaintiff’s performance of his job duties without difficulty until the accident, which was the only injury suffered by plaintiff (according to the information Dr. Cohen received from plaintiff) and which he thought was sufficiently severe to cause such a neurosis. Dr. Cohen further felt plaintiff had a predisposition to a neurosis of this type because of his extremely low intellectual level. However, he detected no hearing difficulties and stated plaintiff’s responses to his questions indicated plaintiff heard very well.

Plaintiff testified he worked for several employers since the accident, but his duties only involved truck driving and light work. He said he could no longer perform heavy duty, including bending and lifting, as he had done before the accident without substantial pain. He further testified he had worked only seven and one-half months in the interval between the accident and the trial. This testimony was inconsistent with statements made by him in discovery, and the discrepancy formed part of the trial judge’s reasons for doubting plaintiff’s veracity.

The trial judge rendered extensive reasons for judgment, the nexus of which is that he simply did not believe the plaintiff’s testimony or believe that the plaintiff was disabled after March 1, 1974.

The record shows plaintiff worked after his discharge, and that he did not accurately relate these and other facts to Dr. Cohen. Dr. Cohen’s testimony clearly shows he placed no importance whatever on the misstatement by plaintiff to him regarding employment activities. He stated at trial he would have reached the same diagnosis no matter what plaintiff had said, essentially because of plaintiff’s low intellectual level. Also significant is Dr. Cohen’s testimony regarding the connection between plaintiff’s neurosis and his physical symptoms. When asked how a neurosis can cause physical symptoms, Dr. Cohen responded that when plaintiff thinks about his problems his mind generates impulses which travel throughout his body and focus on various parts thereof, such as his neck or back. Dr. Cohen stated these impulses are perceived by plaintiff as pain because plaintiffs muscles actually go into spasms. Dr. Cohen further stated in his opinion the pain is very real to plaintiff because the muscle spasms grow progressively worse. However, on cross examination Dr. Cohen admitted he did not see plaintiff in muscle spasm because he conducted no physical examination whatsoever.

In Canter v. Koehring Company, the Supreme Court set forth the broad discretion given to the trier of fact, especially in areas of credibility of witnesses. The trial judge simply did not believe plaintiff’s testimony, which was contradicted in part by his own psychiatrist. There is nothing in the record to indicate the trial judge committed error by arriving at this conclusion.

While Dr. Cohen’s testimony stands uncontradicted in the record, its contents disclose the trial judge did not commit error in disregarding it. It is the duty of the trial judge to evaluate the testimony of all the witnesses, both lay and medical. After making such an evaluation, he may accept or reject the opinion expressed by any medical expert, depending on how impressed he is with the qualifications, credibility, and testimony of that expert. In short, the trial judge is obliged to evaluate testimony of a medical witness according to the same rules applicable to other witnesses.

The psychiatrist’s testimony was predicated both on incorrect statements derived from plaintiff and on the presupposition, unsubstantiated by physical examination, that plaintiff suffered muscle spasms.

This court handled a similar problem in Richards v. Travelers Insurance Company, in the following manner:

“. . ., we cannot say that he manifestly erred in choosing to disregard Dr. Graham’s opinion. That opinion was based upon one forty-five minute interview with Richards and necessarily depended upon factual representations made by Richards to Dr. Graham. If the trial judge, in painstakingly considering all of the testimony and related evidence, had come to the conclusion that Richards’ representations were not worthy of belief, then he surely had a right to conclude that Richards’ representations to Dr. Graham were, likewise, so tainted. His testimony could not be ‘laundered’ simply by passing it into Dr. Graham’s ears and out Dr. Graham’s mouth in different words but based on the same representations.”

Considering the entire record, we are of the opinion the trial judge committed no error in holding the plaintiff did not prove his case by a preponderance of the evidence. In cases involving a condition such as the one presented here, the court must proceed with utmost caution and exercise extreme care because of the nebulous characteristic of such a condition and the possibility of the symptoms being feigned. Evidence in cases of this nature should be scrutinized carefully and every precaution taken to protect employers and insurers against unjustified claims because of alleged mental affliction.

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

AFFIRMED.

      . In defendants’ answer, it was explained the proper defendant was IMCO Services, a division of Halliburton Company. In addition, plaintiff voluntarily dismissed Highlands Insurance Company upon learning it did not insure the defendant.

      . La., 283 So.2d 716, 724.

      . Matirne v. Wilson, La.App., 336 So.2d 960; Touchet v. Fidelity and Casualty Co. of New York, La.App., 264 So.2d 752.

        . Matirne v. Wilson, Id.; Frame v. Majors, La. App., 224 So.2d 65; Williams v. Southern Advance Bag & Paper Company, La.App., 87 So.2d 165.

      . La.App., 327 So.2d 620, 623.

      . Andrus v. Rimmer & Garrett, Inc., La.App., 316 So.2d 433.


text:
    John A. VICTORIANA v. ORLEANS PARISH SCHOOL BOARD.
    No. 8015.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 1977.

      Wayne W. Yuspeh, Metairie, for plaintiff-appellant.
    Polack, Rosenberg, Rittenberg & Endom, Franklin Y. Endom, Jr., New Orleans, for defendant-appellee.
    Before SAMUEL, BOUTALL and MORIAL, JJ.
   SAMUEL, Judge.

Plaintiff, a maintenance employee of the defendant, appeals from a judgment rejecting his claim for total and permanent disability benefits, penalties and attorney’s fees under the Louisiana Workmen’s Compensation Act.

The accident in suit occurred on March 8, 1974 when he was struck on the head by a pair of pliers which fell from above, a distance of twelve feet or less. He sustained a contusion and a small abrasion at the vertex of the scalp. Following the accident, he was seen by various physicians, all of whom were of the opinion he was physically able to return to work. He was paid weekly compensation during that period.

Plaintiff’s claim is based solely upon a psychiatric condition identified by his psychiatrist, Dr. Robert L. Newman, Jr., as a “psychophysiologic musculoskeletal disorder”. In this court he contends: (1) he was not afforded an equal opportunity to argue because the commissioner (the matter was heard by a commissioner and judge ad hoc) refused to hear oral argument and requested briefs confined to case law and burden of proof on traumatic neurosis, with which request he complied, but that the memorandum submitted by the attorney for defendant also included argument and testimony, which plaintiff had no chance to rebut; and (2) plaintiff proved his case by a preponderance of the evidence.

We do not agree with the first contention. Appellant moved for a new trial, and at a hearing on this motion he had an opportunity to present any argument he deemed necessary. He also had the opportunity in this court, by oral argument and in brief, to present his client’s case in full.

Regarding the second contention, it is now our settled jurisprudence that recovery may be had in compensation cases for disability resulting from a mental condition. The condition must be proven, as any other disabling injury, by a preponderance of the evidence, and it must be shown that the disability was causally connected to the work related accident. In such cases the court must proceed with utmost caution and exercise extreme care in view of the nebulous characteristics of the condition, and the possibility of the symptoms being easily feigned; the evidence in these cases should be scrutinized carefully and every precaution taken to guard against unjustified claims.

In addition, as this court said in Jennings v. Halliburton Company:

“. . . It is the duty of the trial judge to evaluate the testimony of all the witnesses, both lay and medical. After making such an evaluation, he may accept or reject the opinion expressed by any medical expert, depending on how impressed he is with the qualifications, credibility, and testimony of that expert. In short, the trial judge is obliged to evaluate testimony of a medical witness according to the same rules applicable to other witnesses.”

In the instant case the trial judge refused to accept Dr. Newman’s opinion that, based upon the history given to the doctor by the appellant, the relatively inconsequential injury resulting from the fall of the pliers was a precipitating factor in, or causally connected to, appellant’s present condition as diagnosed by that doctor. In this connection we quote with approval these portions of the Reasons for Judgment:

“Dr. Newman did find the psychiatric disorder previously stated and further explained that the plaintiff had a ‘passive dependent’ personality preexisting the accident. Based upon the history given to him by the plaintiff, the doctor’s conclusions in regard to plaintiff’s personality form the backdrop of the doctor’s ultimate diagnosis. The doctor found that the plaintiff had a high regard for himself and turned to other family members for succor and support in meeting life’s tribulations. From this style of coping with life the plaintiff came to expect the rest of humanity to render such assistance in the same style and dispatch afforded by his family. On feeling that life’s realities did not coincide with plaintiff’s expectations under this personality deficit, the plaintiff caused his own headaches, dizziness, etc. in an attempt to seek justification for seeking the desired succor and support.
On questioning, Dr. Newman did provide the criteria upon which he based his belief of the plaintiff’s story. The criteria were: the time of commencement of symptoms, dreams, a ‘startle’ reaction, lack of control of impulses, fear of return to the scene of the accident and adoption of a ‘don’t care’ attitude toward life.
Dr. Newman also referred to the consistency of the story upon its retelling by the plaintiff as a further buttress to its credibility.
The plaintiff did not exhibit symptoms in all of the criteria. He had no adverse dreams. He had no geographical fear. His ‘startle’ reaction was none when first seen in August, 1974 and was only noted by Dr. Newman in April, 1975 a year after the episode. Dr. Newman, based on the history given, did conclude that commencement of symptoms was fixed at the time of the fall of the pliers, that he had adopted a ‘don’t care’ attitude toward life and that he lacked impulse control. No examples were given in regard to the latter observation. The diagnosis apparently can be made regardless of failure of findings in all of the criteria.
Dr. Newman did state that the precipitating factor causing the collapse of plaintiff’s ability to work was not necessarily a physical trauma but could have been some nonphysical occurrence. Dr. Newman did believe that the fall of the pliers was the precipitating factor in plaintiff’s case based upon the history given.
The defense, on the other hand, showed that since the plaintiff’s separation from the service in 1968 the plaintiff had been employed in a general laborer category by quite a number of different employers. It was shown that plaintiff’s immediate family and other relations interceded for the plaintiff in obtaining employment. It was shown that on at least one job, employment was terminated because the plaintiff failed to go to work, preferring bowling activities instead.
It was also established that the school board job held by the plaintiff was temporary and known by him to be such. It was generally known that a lay-off was contemplated in the future of all such categorized employees.
On the day of the accident, upon reporting to the job, the plaintiff informed the crew boss that he was quitting and going to work for the Jefferson Parish School Board. The plaintiff filled in a termination form and gave it to the crew boss and left the site. He returned, however, and retrieved the form from the crew boss. He explained that this was all done in jest. The crew boss testified in no uncertain terms that the matter of termination was handled seriously and with advice by him to the plaintiff to reconsider his intended course of action. The plaintiff’s return prior to the crew boss’s call to the office advising of the termination gave the opportunity to plaintiff to recover the termination form.
While these facts bear no legal significance in regard to the plaintiff’s status as an employee, they do however show that the plaintiff’s mental condition was adverse to continuance of employment at a time prior to the fall of the pliers. The Court finds that plaintiff’s subsequently recalled termination was indeed serious and not done in jest.
Also shown were other adversities which affected the plaintiff. He was evicted from his home. His wife became pregnant. The medical attention afforded to him, in his estimation, was not adequate.
With the exception of plaintiff’s wife, no other family member testified on his behalf in regard to the plaintiff’s mental or physical condition, or upon any efforts exerted by the plaintiff to perform work.
While Louisiana law does recognize that work related accidents may cause psychological impairment of working ability and thus become compensable in benefits under the Workmen’s Compensation Act, nonetheless, the claimant bears the burden of proof proving his case. In this matter such burden has not been met and judgment should be rendered dismissing plaintiff’s suit.”

As it reasonably appears that appellant’s condition would have developed with or without the very minor accident in suit, if indeed it did develop after the accident, we cannot say the trial judge committed error in concluding the appellant had not proved his case by a preponderance of the evidence.

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

AFFIRMED.

      . Junker v. Toye Brothers Yellow Cab Company, La.App., 163 So.2d 150; Williams v. Bituminous Casualty Corporation, La.App., 131 So.2d 844.

      . Andrus v. Rimmer & Garrett, Inc., La.App., 316 So.2d 433; Thomas v. St. Patrick’s Hospital, La.App., 276 So.2d 749; Muse v. Sentry Insurance Company, La.App., 269 So.2d 609.

      . Andrus v. Rimmer & Garrett, Inc., supra, footnote 2; Messex v. Georgia-Pacific Corporation, La.App., 293 So.2d 615; George v. Lafayette Well Service, Inc., La.App., 249 So.2d 212; Boutte v. Mudd Separators, Inc., La.App., 236 So.2d 906; Jackson v. International Paper Company, Inc., La.App., 163 So.2d 362.

      . No. 8236 of our docket, 346 So.2d 268, handed down this day.


author: SAMUEL, Judge. LEMMON, Judge,

text:
    TERRA TRUCKS, INC. v. Lois WEBER.
    No. 7763.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 1977.
    Craig J. Cimo, Gretna, for plaintiff-appel-lee.
    Graham, Kiefer & Arceneaux, Louis B. Graham, New Orleans, for defendant-appellant.
    Before SAMUEL, LEMMON and GU-LOTTA, JJ.
   SAMUEL, Judge.

Defendant appeals from a judgment condemning her to pay $600 on an open account. She had entered into an oral contract with the plaintiff corporation through its president under which the latter provided fill for two lots owned by her for a total price of $2,200. Defendant paid the sum of $1,600, but refused to pay the $600 balance because of a dispute as to whether the fill provided conformed with that agreed upon.

In this court, as she did in the trial court, appellant defends on the ground of accord and satisfaction. Thus, the sole issue before us is whether defendant’s check for $1,600, which was deposited by plaintiff in its bank account, was tendered and accepted in full settlement of the claim. In addition to that check the only evidence contained in the record relative to that issue is the testimony of the defendant and the testimony of plaintiff’s president, Salvadore J. Gulino.

Written on the lower left face of the $1,600 check are the words “Fill Pasadena Lots”. Defendant testified she was not satisfied with the type of fill supplied by plaintiff, refused to pay the full contract price, and discussed the matter with Mr. Gulino who agreed to settle for $1,600. The Gulino testimony contradicts this. He stated the fill was in accordance with the contract; that although defendant visited the site every other day while the fill was being delivered, spread and graded, she made no complaints until he sent the bill; and that he never agreed to accept $1,600 as full payment.

Although the doctrine of accord and satisfaction is unknown in Louisiana statutory law, the principle is incorporated in Louisiana jurisprudence by case law. For such a defense to be applicable, three elements must be present: (1) a dispute as to the amount owed; (2) a tender by the debt- or in full settlement of the claim; and (3) acceptance of the tender as full payment by the creditor.

While the acceptance and cashing of a check for an amount less than that claimed when tendered as full payment constitutes accord and satisfaction and extinguishes the entire debt, the question of whether or not the check had been tendered and accepted as full payment is a matter of fact.

The trial court obviously accepted the Gulino testimony to the effect that he had not agreed to accept $1,600 as full payment and had not done so. Nor does the inscription “Fill Pasadena Lots” indicate anything other than the debt to which the $1,600 check should be applied; it does not inform the payee that the check was being tendered in full settlement of the entire debt. Under these circumstances, we agree with the trial court’s conclusion that the defendant has failed to prove at least the third element necessary for accord and satisfaction, the creditor’s acceptance of the tender as full payment.

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

AFFIRMED.

LEMMON, Judge,

concurs and assigns reasons.

In my opinion it is unnecessary and “un-civilian” to import the common law doctrine of accord and satisfaction to decide issues involving transaction and compromise.

C.C. art. 3071 et seq. control the situation when two parties attempt to adjust their differences by mutual consent, as was alleged in this case. Since these articles control, this case may be resolved by simply applying C.C. art. 3071’s rule that the contract of transaction or compromise must be reduced to writing.

The only writing in this case was the check, which contains no indication that the check was offered by defendant or accepted by plaintiff in satisfaction of the entire debt. The element of mutual consent to the condition of full payment simply cannot be proved by verbal testimony.

The reason for the codal article’s rule is obvious. If verbal evidence were allowed to prove that a check for less than the amount claimed was offered and accepted as payment of the full amount of the debt, then no creditor could accept a check in partial payment for fear of losing his right to claim the balance in a swearing match with a dishonest debtor.

Our Civil Code adequately provides the solution in the present case, and I would prefer to decide this case by simply citing the appropriate article.

      . Berger v. Quintero, 170 La. 37, 127 So. 356; Linda Mercantile Corp. v. Bowers, La.App., 230 So.2d 302; Braudaway v. United Equitable Insurance Co., La.App., 208 So.2d 359; 14 Tul.L.Rev. 282, 287.

      . Van-Trow Olds Cadillac, Inc. v. Dodwell, La. App., 229 So.2d 154; Miller v. Oak Builders, Inc., La.App., 306 So.2d 449.