text:
    Mrs. Billie BROWN, Plaintiff-Appellant, v. HARTFORD INSURANCE COMPANY et al., Defendants-Appellees.
    No. 6933.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1979.

      Kimball, McLeod & Dow, William L. McLeod, Jr., Lake Charles, for plaintiff-appellant.
    Jones, Patin, Tate, Nolen & Hanchey, Greg P. Massey, Lake Charles, for defendants-appellees.
    Before CULPEPPER, CUTRER and STOKER, JJ.
   STOKER, Judge.

This is a suit for damages allegedly suffered as a result of a false detention. Plaintiff, Mrs. Billie Brown, asserts that she suffered these damages as a result of being falsely detained by employees of Gibson’s Products Company of Lake Charles, Inc., a defendant herein. Plaintiff also made the store’s insurer, Hartford Insurance Company, a defendant in this case. The issue posed by the present appeal is: Did the jury commit manifest error in concluding that defendant-store had “reasonable cause” to detain the plaintiff?

The record in this case reflects the following. On September 28, 1977, the plaintiff, Mrs. Billie Brown, had entered a Gibson’s Department Store in Lake Charles, Louisiana. While inside the store, Mrs. Brown was observed by a security guard placing a glass jar lid into her purse. Mrs. Brown was followed into the pharmacy area of the store by several store employees whose suspicion had become aroused by her actions. After having a prescription filled, Mrs. Brown proceeded to zip up her purse and leave this area of the store. On the way to the front of the store, the plaintiff observed one of the store employees and became nervous, carefully guarding her purse. Mrs. Brown went back to the pharmacy where she handed a clerk at the counter a prescription and proceeded towards two chairs placed near the counter for the convenience of customers. The security guard observed the plaintiff reach inside her purse, pull the lid out, and very quickly place it on the seat, concealing the item as she sat down. At this time, the security guard approached Mrs. Brown • and confronted her as to the whereabouts of the lid. According to testimony adduced by the defendants, the plaintiff responded quizzically by stating to the guard: “What lid?” The security guard then informed Mrs. Brown that he had reference to the lid upon which she was sitting. As she stood to respond to the guard, the lid’s location was revealed and Mrs. Brown was requested to accompany the guard into the back where he wished to question her on suspicion of theft of the lid. Once in the back, an employee of Gibson’s telephoned the police. The police arrived a short time thereafter and conducted the plaintiff to the police station. Mrs. Brown was released without being charged.

The plaintiff brought this civil action to recover damages for her false detention. Conflicting evidence was introduced at trial by both plaintiff and defendants. In the court below, the jury returned a verdict for the defendants. Plaintiff now appeals.

As stated above, the issue presented herein is: Did the jury commit manifest error in concluding that defendant-store had reasonable cause to detain the plaintiff?

Plaintiff contends that Gibson’s detained Mrs. Brown falsely in two different respects. First of all, plaintiff asserts that the initial detention subjects the defendants to liability for damages. Secondly, plaintiff argues that the subsequent detention in the back of the store without allowing her to explain her actions constitutes false detention. Plaintiff asserts that if she had been allowed to explain she could have logically accounted for her suspicious conduct.

Article 215 of the Code of Criminal Procedure reads in pertinent part as follows:

A. A peace officer, merchant, or a specifically authorized employee of a merchant, may use reasonable force to detain a person for questioning on the merchant’s premises, for a length of time not to exceed sixty minutes, when he has reasonable cause to believe that the person has committed a theft of goods held for sale by the merchant, regardless of the actual value of the goods. The detention shall not constitute an arrest.
A peace officer may, without a warrant, arrest a person when he has reasonable grounds to believe the person has committed a theft of goods held for sale by a merchant, regardless of the actual value of the goods. A complaint made to a peace officer by a merchant or a merchant’s employee shall constitute reasonable cause for the officer making the arrest.

A determination of whether a shopkeeper had reasonable cause to detain an individual suspected of shoplifting is a factual question. Guidry v. IGF, Inc., 332 So.2d 515 (La.App. 3rd Cir. 1976). Being a factual issue, the decision of the trier of fact will not be reversed in the absence of manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). The present case was tried by a jury which returned a general verdict. Since no specific findings of fact were made by the jury, it must be presumed that it resolved all factual conflicts in favor of the party for whom the verdict was returned, in this case the defendants. Bolden v. New Orleans Public Service, Inc., 349 So.2d 377 (La.App. 4th Cir. 1977).

INITIAL DETENTION

After a thorough review of the record, we hold that the jury did not commit manifest error in concluding that the defendant-store acted reasonably in originally detaining Mrs. Brown. Even if the jury had accepted Mrs. Brown’s testimony in its entirety, it would have acted properly in finding that Gibson’s acted reasonably in initially detaining the plaintiff. Mrs. Brown testified that she did pick up the lid and eventually placed it in her purse. (Tr. 388-391) Mrs. Brown carried the lid from one area of the store to another without asking the price of the lid or whether the lid could be purchased separate from the accompanying jar. (Tr. 429-430)

While in the store, Mrs. Brown observed a woman security guard of Gibson’s following her. Whenever she would move toward Mrs. Brown, the plaintiff would switch her purse from one side to the other. (Tr. 432) Mrs. Brown testified that while in the pharmacy department of Gibson’s, she laid the lid down in a chair and then sat down in the same chair. She admitted under cross examination that the lid was “more under me . . . than off of me.” (Tr. 447) Further, there is much more testimony by Mrs. Brown which would give another person “reasonable cause” to believe that she had committed a theft. The fact that testimony by employees of Gibson’s conflict with that given by the plaintiff only further supports a holding that the jury did not commit manifest error in finding that the employees had reasonable cause to detain Mrs. Brown.

Notwithstanding the above-mentioned testimony, plaintiff argues that the employee who initially detained her did not have “reasonable cause” because he thought she was going to “ditch” the lid in the store. Plaintiff’s theory is that she would not have committed a theft if she had left the lid in the store before departing. Therefore, plaintiff argues that since the employee thought Mrs. Brown was going to leave the store without the lid, he also had to believe that she did not intend to commit theft. This argument falls, however, when it is noted that a theft takes place once a person takes something of value which belongs to another, without consent and with the intent to permanently deprive. LSA-R.S. 14:67. Hence, the theft would occur at the moment of the taking of the lid if she had the requisite intent and the fact that Mrs. Brown later “ditched” the lid would be irrelevant. In fact, “ditching” the lid would be an incriminating factor the trier of the fact might consider in determining the original intent of Mrs. Brown. For cases where merchants have been held to have been reasonable in detaining suspects prior to their opportunity to pay, see Jordon v. Mangel Stores Corp., 336 So.2d 278 (La.App. 1st Cir. 1976); and Williams v. F. W. Woolworth Co., 242 So.2d 16 (La.App. 4th Cir. 1970).

SUBSEQUENT DETENTION

Plaintiff argues that even if the initial detention was reasonable, the defendants should still be held liable because the subsequent detention was unreasonable. The basis of this assertion is that the defendant-store wronged Mrs. Brown by keeping her in the back without allowing her to explain her actions.

The record reveals that Mrs. Brown was detained in the back of the store for approximately thirty minutes. During this time the police were called. Mrs. Brown was arrested upon the arrival of the police.

We conclude that the store acted reasonably in detaining Mrs. Brown for thirty minutes. If she had been allowed to explain, she would have told the employees that she was going to wait and ask the price of the lid at the check-out stand. This explanation is one that probably has been heard by merchants many times before. It certainly would not have convinced the employees that the plaintiff was not shoplifting. Hence, the employees did not act unreasonably in failing to allow Mrs. Brown to explain her actions. It should be kept in mind in cases of this nature that the test of liability is not based on the store patron’s actual guilt or innocence, but rather on the reasonableness of the store employees action under all the circumstances. Thompson v. LeBlanc, 336 So.2d 344 (La.App. 1st Cir. 1976); Roche v. Aetna Casualty and Surety Co., 303 So.2d 888 (La.App. 1st Cir. 1974).

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

AFFIRMED.

      . While the testimony of plaintiff and defendant’s employees is opposed on individual points, it is to a large extent quite in harmony.

      . Mrs. Brown testified that she did not know the woman was a security guard, but stated thought her to be a pickpocket.


source: Caselaw Access Project

author: DOUCET, Judge.

license: Public Domain

text:
    Don RACHAL, Plaintiff-Appellant, v. NATCHITOCHES PARISH POLICE JURY, Defendant-Appellee.
    No. 6935.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1979.
    Gravel, Roy & Burnes, Robert L. Royer, Alexandria, for plaintiff-appellant.

      Eric R. Harrington, Natchitoches, for defendant-appellee.
    Before DOMENGEAUX, SWIFT and DOUCET, JJ.
   DOUCET, Judge.

This is a companion case consolidated for trial with Rachal v. Natchitoches Parish Police Jury, 370 So.2d 185 our docket No. 7053. Separate decisions in these cases are being rendered by us this date.

On September 8,1978, plaintiff petitioned the district court for preliminary and permanent injunctions, prohibiting the Natchi-toches Parish Police Jury from holding a “Local Option Stock Law Election” scheduled to be held on September 16,1978. The basis for his complaint was certain irregularities which he alleged to exist in the voters’ petition for the election. An adversary proceeding between plaintiff and the police jury was held on September 13, 1978, after which his request was denied. Plaintiff perfected a devolutive appeal from that judgment (our docket number 7053) and the election proceeded as planned. Subsequent to the election, he brought this suit to have the election declared invalid. The district court again declined to grant the relief prayed for, and he has appealed.

The first irregularity in the petition which plaintiff complains of concerns its verification by the Natchitoches Parish Registrar of Voters showing that it was signed by the number of voters required by LSA-R.S. 3:3009(B), which provides:

“B. The petition shall be signed by twenty-five percent of the electors of the ward qualified to vote on the date on which the first signature is attached to the petition and shall state the date of signing and the address of each signing elector.” (Emphasis added)

The date on which the first signature was attached was May 10, 1978, as evidenced by the petition. The Registrar inserted June 13, 1978 in the blank left in the form he used for verifying the petition as the date on which the names were verified. However, prior to the election, he sent a letter to the police jury in which he stated that the June 13th date was an error and that it was actually meant to be May 10,1978. He testified to the same effect at trial. That testimony stands uncontradicted and unim-peached in the record. Under these circumstances, we believe that the names were verified as of May 10, 1978 as required by the statute.

The next irregularity alleged by plaintiff is that the petition does not conform to LSA-R.S. 26:583 in that the language on the first page does not appear at the top of each subsequent page. LSA-R.S. 26:583 prescribes the form which must be used for a petition for local option elections permitting the sale of alcoholic beverages. Although a reference to this provision appears on one area of the blank form used by the registrar to verify the petition, he was not bound by its requirements, since they do not appear in the law governing local option stock law elections. Crews v. Cappell, 277 So.2d 150 (La.App. 3rd Cir. 1973), writs denied, 279 So.2d 695 (La.1973).

Plaintiff also complains that the language at the top of the petition does not specify which species of livestock are to be prohibited from roaming at large. The language referred to reads as follows:

“Please be advised that the undersigned qualified electors of Ward four (4), Natchitoches Parish, Louisiana, hereby request that an election be called pursuant to the requirements of R.S. 3:3001, et seq., to submit to the duly qualified electors of the said Ward Four (4), Natch-itoches Parish, Louisiana, the proposition of prohibiting any species of horses, mules, cattle, swine, sheep, or goats from roaming at large on the public highways of said ward.”

It is apparent from the above language that this complaint is totally without merit.

Finally, plaintiff alleges that various irregularities existed in the manner in which the names on the petition were compared with those in the registrar’s book and determined to be genuine. In Fuller v. Police Jury of Grant Parish, 144 So.2d 766 (La.App. 3rd Cir. 1962), this court stated:

“It has also been held that a petition for a local option election is valid, if, after striking any invalid signatures from it, there are nevertheless enough valid signatures remaining to satisfy the minimum number required by statute. Waggoner v. Grant Parish Police Jury, 203 La. 1071, 14 So.2d 855; Graham v. Police Jury of Livingston Parish, La.App. 1 Cir., 195 So. 79; Cf., Shaw v. Police Jury of Beauregard Parish, 202 La. 774, 12 So.2d 810. Further, when a petition is filed with the police jury and has been certified by the registrar as containing a sufficient number of valid signatures so as to entitle the petitioners to a local option election, the opponents to the petition have the burden of proving that the signatures or their number are not sufficient because of defects or timely withdrawals. Graham v. Police Jury of Livingston Parish, cited above.”

While plaintiff did elicit testimony from the registrar of voters, suggesting that certain signatures on the petition might not have been properly scrutinized, he did not show that a sufficient number of the signatures were defective to establish that the petition did not contain the requisite number of signatures.

For the above reasons, we hold that the district court was correct in denying plaintiff’s request for injunctions and refusing to declare the election invalid. We note that our decision today is in line with prior jurisprudence establishing that even when irregularities do exist in the petition on which a local option election is held, the election will not be declared invalid when there has been substantial compliance with the governing statute. Crews v. Cappell, supra; Boykin v. Desoto Parish Police Jury, 359 So.2d 239 (La.App. 2nd Cir. 1978); Fuller v. Police Jury of Grant Parish, supra; Hollan v. Police Jury of Webster Parish, 134 So.2d 132 (La.App. 2nd Cir. 1961); Ginn v. Village of Bonita, 62 So.2d 159 (La.App. 2nd Cir. 1952).

For these reasons, the judgment of the district court is affirmed. All costs of this appeal are assessed against plaintiff-appellant.

AFFIRMED.


text:
    Don RACHAL, Plaintiff-Appellant, v. NATCHITOCHES PARISH POLICE JURY, Defendant-Appellee.
    No. 7053.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1979.
    Gravel, Roy & Burnes, Robert L. Royer, Alexandria, for plaintiff-appellant.
    Eric R. Harrington, Natchitoches, for defendant-appellee.
    Before DOMENGEAUX, SWIFT and DOUCET, JJ.
   DOUCET, Judge.

This is a companion case consolidated for trial with Rachal v. Natchitoches Parish Police Jury, 370 So.2d 183, our docket No. 6935. Separate decisions in these cases are being rendered by us this date.

For the reasons assigned in Rachal v. Natchitoches Parish Police Jury, 370 So.2d 183, our docket No. 6935, the judgment of the trial court is affirmed. The costs of this appeal are assessed against plaintiff-appellant.

AFFIRMED.


author: CUTRER, Judge.

text:
    Mildred Rachal SMITH, Plaintiff-Appellee, v. RESERVE NATIONAL INSURANCE COMPANY, Defendant-Appellant.
    No. 6937.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1979.
    Eric Harrington, Natchitoches, for defendant-appellant.
    Davis & Simmons, Kenneth N. Simmons, Many, for plaintiff-appellee.
    Before CULPEPPER, CUTRER and STOKER, JJ.
   CUTRER, Judge.

This is a suit by Mildred Smith to recover expenditures incurred for hospitalization and other medical expenses in conformity with the provisions of four (4) hospitalization insurance policies issued to the plaintiff by defendant, Reserve National Life Insurance Company. Plaintiff also requested penalties and attorney fees for the unreasonable refusal to pay such expenses.

From a judgment awarding the plaintiff the sum of $3,033.15, plus a like amount as a penalty, and $2,500.00 attorney fees, the defendant appeals. Plaintiff answered the appeal requesting an increase of attorney fees.

The undisputed facts are that the defendant issued the four hospitalization policies to plaintiff, three of which had effective dates of May 22, 1975 and one had an effective date of July 8, 1975. Mrs. Smith was admitted to the DeSoto General Hospital in Mansfield, Louisiana, on March 30, 1977, complaining of fever and abdominal pain. Dr. Jack Grindle concluded that Mrs. Smith was suffering from an inflammation of the gallbladder. Dr. Grindle then performed a cholecystectomy, the removal of the gallbladder. The procedure disclosed the presence of gallstones. Mrs. Smith’s claim for the hospital and medical expenses were denied by defendant on the ground that the "sickness or disease” for which Mrs. Smith was operated upon predated the issuance of the policy.

The issues presented on appeal are (1) whether the plaintiff had a pre-existing illness which would deny coverage under the terms of the policies; and (2) whether penalties and attorney fees should be awarded.

The defendant contends that under the definition of “sickness” in each policy, the plaintiff has no coverage, as the “sickness” for which she incurred expenses predated the policies.

The definition of “sickness” in two of the policies (P-4 and P-6) reads as follows:

“The term ‘sickness’ as used in this policy means sickness or disease, . . . sustained by an Insured Person, which first manifests itself after the effective date of this policy, and which causes loss while this policy is in force. . . . ”

The trial court gave no reasons for judgment. By deciding the case in favor of the plaintiff, we can thus infer that the trial judge held as a fact that the “sickness” did not predate the effective dates of the policies. We shall examine the record to determine whether such conclusion was manifest error.

Mrs. Smith, a 64-year-old widow, testified that she had never had any gallbladder attacks prior to November of 1976 and the subsequent hospitalization of March 30, 1977. She stated that Dr. Jack Grindle had been her family physician since 1973. She did state that she was hospitalized in 1971 for arthritis. Again, in 1974 she was hospitalized for several days for "shingles.”

The hospital records in evidence are not clear as to why Mrs. Smith was admitted to the hospital for two days in 1971. The records do reflect, however, that she was hospitalized for several days in 1974 for the treatment of “shingles.”

Dr. John Greer, a radiologist, testified by deposition that he conducted X-ray examinations of Mrs. Smith during the hospitalization stays in 1971 and 1974 wherein he noted the possible existence of a gallstone. He could not say that he told Mrs. Smith of this finding. Dr. Greer felt that there is a good possibility that the gallstone indicated in the 1971 and 1974 X-rays continued to exist up until the time of the operation in 1977. This physician pointed out that the medical term for the existence of a gallstone is “cholelithiasis,” whereas the medical term for an inflammation of the gallbladder is termed “cholecystitis.” He further stated that a gallbladder inflammation can be caused not only by the existence of a gallstone but also for other reasons.

Dr. Jack Grindle, the family physician for Mrs. Smith since 1973, testified that the first time he diagnosed any gallbladder trouble for Mrs. smith was in November of 1976. He treated Mrs. Smith as an outpatient at that time and later, March of 1977, he diagnosed Mrs. Smith’s condition as “acute cholecystitis” (inflammation of the gallbladder). This attack resulted in the surgery previously discussed.

The question then arises as to whether the “sickness” for which Mrs. Smith was operated upon, acute cholecystitis (inflammation of the gallbladder), predated the effective dates of the policies.

The record is clear and counsel for defendant admitted on oral argument that Mrs. Smith’s first manifestation of acute gallbladder inflammation came about in November 1976, which attack resulted in the hospitalization and gallbladder removal procedure of March 1977. The existence of a gallstone may have predated the policy, but such a condition was not a “sickness” within the definitions of the policies. The “sickness” herein (acute inflammation of the gallbladder) occurred or manifested itself for the first time and caused the loss (medical expenses) well after the effective dates of the policies.

In the case of Phelps v. Southern National Insurance Company, 88 So.2d 463 (La. App. 2nd Cir. 1955), the court was faced with a similar problem. In that case the plaintiff’s gallbladder was removed. Gallstones were found as a result of the operation and the defendant contended that the presence of gallstones in plaintiff’s gallbladder was proof of a preexisting “sickness or disease.” The court stated that the medical evidence reflected that “the mere presence of gallstones within the gallbladder does not constitute a ‘sickness’.” The court further held that the loss occurred when the plaintiff was hospitalized for the gallbladder operation and during which time the policy was in effect.

In the case at hand, we conclude that the sickness and loss occurred during the time the policies were in effect. The trial court correctly allowed recovery.

The second issue is whether the trial judge erred in awarding penalties and attorney fees.

Dr. Grindle testified that he mailed two letters to the insurance company, one being dated May 31, 1977 and the other August 15, 1977, stating that in his opinion Mrs. Smith was asymptomatic up until November of 1976 insofar as a gallbladder inflammation attack was concerned. By letter dated May 26, 1977, the claims manager of the defendant informed Mrs. Smith that they were denying her claims due to the fact that Mrs. Smith’s medical problem predated the policy dates. No further investigation or testimony was presented by the defendant in this regard.

We find that the insurer did not have a reasonable basis for withholding benefits in this case. Although an insurer has a right to test its liability on an insurance contract and demand a judicial interpretation of its policy provisions, the company must do so at its own expense and not at the expense of the insured. Rushing v. American Income Insurance Company, 274 So.2d 458 (La.App. 3rd Cir. 1973); Phelps v. Southern National Insurance Company, supra.

The trial court was correct in awarding penalties and attorney fees but we conclude that the trial court erred in the amount of penalty awarded.

The trial court awarded penalties payable to the plaintiff in an amount of $3033.15 which is a sum equal to the total amount of medical and hospitalization expenses awarded. This is the penalty authorized by LSA-R.S. 22:657. We conclude that the award of penalties under this statute is error. The award of penalties should be made under the provisions of LSA-R.S. 22:658 which provides for a penalty of 12% on the total loss.

LSA-R.S. 22:657 applies only to “health and accident” insurance which is defined as follows in LSA-R.S. 22:6(2):

“Insurance shall be classified and defined as follows:
* * * * 9fe *
“(2) Health and accident. Insurance against bodily injury, disablement or death by accident and against disablement resulting from sickness and every insurance appertaining thereto.”

An examination of the four policies reflects that they cannot be classified as “Health and Accident” policies. Three of the policies provide only benefits for hospital and medical care. In the recent case of Tabb v. Louisiana Health Services and Indemnity Co., 361 So.2d 862 (La.1978), the Supreme Court held that a Blue Cross policy which provided only hospital and medical care was not a “Health and Accident” policy but was classified as “Miscellaneous” under the provisions of LSA-R.S. 22:6(14).

The fourth policy herein, in addition to hospital and medical care, does contain one additional provision which affords coverage for loss of life, limb or sight. It may be argued that this additional coverage brings it within the definition of a “Health and Accident” policy. Such a contention, however, will not prevail as the coverage of this policy is primarily or principally for hospital and medical expenses. Since the policy has a principal coverage for hospital and medical expenses, the additional coverage does not convert it into a “Health and Accident” policy classification. This policy shall also be classified as “Miscellaneous.” See Johnson v. State Farm Mutual Automobile Insurance Company, 342 So.2d 664 (La.1977); Pugh v. Travelers Indemnity Company, 166 So.2d 373 (La.App. 1st Cir. 1964); and Miles v. Central National Insurance Company of Omaha, 163 So.2d 838 (La.App. 4th Cir. 1964).

We therefore conclude that the four policies herein are “Miscellaneous” policies and thus penalties of 12% shall be awarded under the provisions of LSA-R.S. 22:658.

Plaintiff has answered the appeal and asked for an increase in attorney fees for the appeal. We conclude that an additional $500 should be awarded for the preparation of and the presentation of the appeal.

For these reasons, it is ordered that the judgment of the trial court is amended by awarding plaintiff 12% penalties on the amount of the loss plus $500 additional attorney fees, and as amended, the judgment of the trial court is affirmed. Defendant to pay all costs of this appeal.

AMENDED AND AFFIRMED.

      . The other two policies contain similar definitions of “sickness” as follows:

        P-3 “The term ‘sickness’ . . . means a sickness or disease and its resulting pathology or related conditions, which is contracted and commences after the effective date hereof, and which causes loss while this policy is in force. . .

        P-5 “The term ‘sickness’ as used in this policy means sickness or disease, . sustained by an Insured Person, which is contracted and commences after the effective date of this policy, and which causes loss while this policy is in force. . . ”

      . LSA-R.S. 22:657 provides as follows:
      A. All claims arising under the terms of health and accident contracts issued in this state, except as provided in Subsection B, shall be paid not more than thirty days from the date upon which written notice and proof of claim, in the form required by the terms of the policy, are furnished to the insurer unless just and reasonable grounds, such as would put a reasonable and prudent business man on his guard, exist. The insurer shall make payment at least every thirty days to the assured during that part of the period of his disability covered by the policy or contract of insurance during which the insured is entitled to such payments. Failure to comply with the provisions of this Section shall subject the insurer to a penalty payable to the insured of double the amount of the health and accident benefits due under the terms of the policy or contract during the period of delay, together with attorney’s fees to be determined by the court. The district court of the parish where the insured lives or has his domicile shall have jurisdiction to try such cases.
      B. All claims for accidental death arising under the terms of health and accident contracts where such contracts insure against accidental death shall be settled by the insurer within sixty days of receipt of due proof of death and should the insurer fail to do so without just cause, then the amount due shall bear interest at the rate of six percent per annum from date of receipt of due proof of death by the insurer until paid.

      . LSA-R.S. 22:658 provides as follows:
      All insurers issuing any type of contract other than those specified in R.S. 22:656 and 22:657 shall pay the amount of any claim due any insured including any employee under Chapter 10 of Title 23 of the Revised Statutes of 1950 within sixty days after receipt of satisfactory proofs of loss from the insured, employee or any party in interest. Failure to make such payment within sixty days after receipt of such proofs and demand therefor, when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of 12% damages on the total amount of the loss, payable to the insured, or to any of said employees, together with all reasonable attorney’s fees for the prosecution and collection of such loss, or in the event a partial payment or tender has been made, 12% of the difference between the amount paid or tendered and the amount found to be due and all reasonable attorney’s fees for the prosecution and collection of such amount. Provided, that all losses on policies covering automobiles, trucks, motor propelled vehicles and other property against fire and theft, the amount of the penalty in each of the above cases shall be 25% and all reasonable attorney’s fees.

      . LSA-R.S. 22:6(14) reads as follows:
      “(14) Miscellaneous. Any other kind of loss, damage, or liability properly the subject of insurance and not within any other kind or kinds of insurance as defined in this Section, if such insurance is not contrary to law or public policy.”


author: CULPEPPER, Judge.

text:
    Shirley VINCENT, Plaintiff and Appellant, v. Joseph Jessie LEMAIRE, Defendant and Appellee.
    No. 6940.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1979.

      Thompson & Sellers by Roger C. Sellers, Abbeville, and Darrell J. Hartman, Kaplan, for plaintiff-appellant.
    Theall & Fontana by Anthony J. Fonta-na, Jr., Abbeville, Wade A. Mouton, Kaplan, for defendant-appellee.
    Before CULPEPPER, CUTRER and STOKER, JJ.
   CULPEPPER, Judge.

This suit originated with a petition by the plaintiff wife, Shirley Vincent, seeking a separation from bed and board from the defendant husband, Joseph Jessie Lemaire. The judgment of separation was rendered on August 25, 1975 and is not at issue on this appeal. On August 10, 1977 the plaintiff wife filed a petition for partition of community property. The only community asset alleged is the sum of $200,000 received by the defendant husband on or about August 4, 1977 in settlement of his claim for personal injuries under the Jones Act, arising out of an accident which occurred on January 5, 1975. The cause of action under the Jones Act arose during the existence of the community, but the settlement funds were not received by defendant until after the dissolution of the community.

At the time of filing her petition for partition, the wife also obtained a temporary restraining order, without a bond, enjoining the defendant husband from disposing of any of the settlement funds. On August 12, 1977, the defendant husband obtained an order reducing the amount restrained to $50,000, and, on the same date, an order that plaintiff post a bond in the sum of $5,000 as security for any damages sustained by defendant because of the wrongful issuance of the temporary restraining order. Pursuant to a later rule to fix the amount of these damages, the court rendered a judgment on February 8, 1979 awarding the defendant husband $500 as attorney’s fees,' but referred the question of any other damages to the merits. On the trial of the merits, the district judge held that of the $200,000 in settlement funds, $18,342.52 was owned by the community, $3,342.52 being for lost wages and $15,000 being for pain and suffering during the community. The plaintiff wife appealed. The defendant husband answered the appeal.

The plaintiff wife contends the trial court erred in: (1) Failing to order the production of a settlement brochure prepared by defendant’s attorneys during negotiation of his personal injury claim. (2) Awarding defendant $75 in attorney’s fees for opposing plaintiff’s motion to produce the settlement brochure. (3) Failing to allow plaintiff to take the depositions of two psychiatrists who treated defendant. (4) Placing the burden of proof upon plaintiff to show what portion of the settlement funds were owned by the community. (5) Quashing subpoenaes duces tecum to defendant’s attorney and the insurance adjuster to produce their files in connection with the settlement. (6) Finding that only $18,342.52 of the $200,000 settlement is owned by the community.

In his answer to the appeal, the defendant husband contends the trial court erred in: (1) Not following the itemization of the settlement funds in the judgment of August 4,1975 approving the Jones Act settlement. (2) Denying defendant’s reconven-tional demand for damages in the sum of $95,200 for wrongful issuance of the temporary restraining order. (3) Failing to recall the preliminary injunction upon rendition of the partition judgment.

GENERAL FACTS

The general facts are that plaintiff and defendant were married in 1956. On January 5,1975, at which time defendant was 49 years of age, he was injured while working as a seaman for Brown & Root, Inc. off the coast of Brazil. The barge he was on was struck by a wave, causing him to fall backward and strike the back of his head. He was flown to New Orleans, where he was seen by physicians and hospitalized. On about April 1,1975, he returned to his home in Vermilion Parish. Within the next few days, he went to physicians in Lafayette, complaining of pain in his head, neck and shoulders. He was admitted to the hospital in Lafayette. While there he developed behavioral changes later diagnosed as post-traumatic paranoid psychosis. On his return to his home with his wife and children, his behavior became so erratic and irrational that on about May 1,1975 he was sent to Central State Hospital in Pineville, Louisiana. There his condition was diagnosed as psychosis with brain trauma and as psychotic depressive reaction. After about 15 days at Central, he returned to Kaplan to his wife and children. But his behavior again became irrational and he was recommitted to Central State Hospital. On July 15, 1975, he returned to Kaplan but lived with his oldest son. His wife stated that he had ordered her out of the house. On July 28, 1975, his wife filed the suit for separation.

After the separation, defendant continued to have serious medical problems. In early 1976, he complained of back pain and was finally diagnosed as having a herniated cervical disc for which he underwent surgery. He continued to complaint of headaches which were diagnosed as left occipital neuralgia, for which a neucretomy was performed in January of 1977. This latter surgical procedure relieved the severe headaches, but plaintiff continued to suffer from back complaints and depression up until the time of the Jones Act settlement, with only a fair prognosis for recovery, provided defendant receive continued psychiatric treatment.

Having stated the general facts, we will now address plaintiff’s contentions of error in the order listed above.

FAILURE TO ORDER PRODUCTION OF SETTLEMENT BROCHURE

Plaintiff’s first contention is that the trial judge erred in denying her motion to produce the settlement brochure, a document prepared by defendant’s attorneys in negotiating the settlement of the Jones Act claim. The trial judge denied the motion to produce the brochure for three reasons: (1) LSA-C.C.P. Article 1424 prohibits the discovery of an attorney’s work product. (2) All information contained in the brochure, except the attorney’s work product, and in particular all of the medical records in defendant’s possession at the time of preparation of the brochure, had already been supplied to the plaintiff. (3) Much of the information sought by plaintiff from the brochure is irrelevant to the present partition of the community which existed for only seven months after defendant’s accident.

We agree with the trial judge’s ruling. The record shows defendant’s attorneys furnished to plaintiff all the medical evidence in their possession. This was the principal evidence plaintiff needed to prepare for trial of this partition of the settlement funds under the rules established in West v. Ortego, 325 So.2d 242 (La.1975). In West the court held that where a spouse is injured during the community, but the settlement of the claim is made after dissolution of the community, that portion of the séttlement funds which compensates for predissolution damages is owned by the community, and that portion of the settlement which compensates for post-dissolution damages falls into the separate estate of the injured spouse. Thus, the issue in the present case was how much of the settlement funds compensated for damage to the community during the seven months between the time of the accident and the time of dissolution. Defendant furnished to plaintiff all of the medical records concerning this issue. Clearly, the trial judge did not abuse his discretion in finding that the other portions of the brochure were either the attorney’s work product or were irrelevant.

Moreover, any error by the trial judge in refusing to order production of the brochure was not sufficiently prejudicial to require reversal. The record shows that at the trial on the merits the parties introduced medical and other evidence as to loss of wages and pain and suffering sufficient to decide the issue of apportionment of settlement funds between the community and defendant’s separate estate.

ATTORNEY’S FEES FOR SUCCESSFULLY OPPOSING PLAINTIFF’S MOTION TO PRODUCE BROCHURE

Plaintiff next contends the trial judge erred in awarding defendant $75 in attorney’s fees for successfully opposing plaintiff’s motion to produce the brochure. LSA-C.C.P. Article 1469(4) gives the trial judge discretion to allow such attorney’s fees. We find no abuse of such discretion in this case.

DEPOSITIONS OF PSYCHIATRISTS WHO TREATED DEFENDANT

Plaintiff next contends the trial court erred in failing to allow her to take the depositions of two psychiatrists who examined and treated the defendant at the Central Louisiana State Hospital in Pine-ville, Louisiana. The trial judge’s ruling was based on the refusal of the defendant to consent to the release of this privileged medical information. LSA-R.S. 13:3734 provides that a physician cannot, without the consent of the patient, give any information required in attending the patient.

Plaintiff contends that in the present case an exception to the statutory rule should be made, similar to the exception stated in the statute that where the patient brings an action to recover damages he shall be deemed to consent to the release of the privileged medical information.

The defendant correctly points out that this is not a suit by the patient for damages, and thus the exception stated in the statute has no application. Defendant also points out that a holding that the present case constitutes an exception to the doctor-patient privilege would not only be contrary to the statute but would be a dangerous precedent in future cases. We agree.

Moreover, the record shows that defendant furnished plaintiff with all relevant medical evidence in his possession. We can readily understand defendant’s reluctance to consent to depositions by these two psychiatrists who treated him in a mental institution.

BURDEN OF PROOF

Plaintiff next contends the trial judge erred in his ruling in a pretrial motion that plaintiff has the burden of proving what portion of the settlement funds were owned by the community. Plaintiff quotes from LSA—C.C. Article 2405: “At the time of the dissolution of the marriage, all effects which both husband and wife reciprocally possess, are presumed common effects or gains, . . . .” Under this article, plaintiff argues that since the cause of action under the Jones Act occurred during the community, it is presumed to be a community asset, and the settlement funds, although received after dissolution of the community, must also be presumed community until the contrary is proven by defendant.

The problem is difficult, as can be readily seen from a reading of the decisions in Chambers v. Chambers, 259 La. 246, 249 So.2d 896 (1971); West v. Ortego, 325 So.2d 242 (La.1975) and Broussard v. Broussard, 340 So.2d 1309 (La.1977). Our Supreme Court did not expressly discuss the burden of proof in any of these cases. One court of appeal case, Barton v. Barton, 349 So.2d 1013 (2d Cir. 1977), holds in a factual situation almost identical to that in the present case, that the wife has the burden of proving what portion of the settlement funds compensates for pre-dissolution damages.

In the present case, we find it unnecessary to decide whether the husband or the wife had the burden of proof. Regardless of who had the burden, sufficient evidence was introduced to decide what portion of the settlement funds is owned by the community and what portion is owned by the husband’s separate estate.

QUASHING SUBPOENAES DUCES TECUM

Plaintiff next asserts the trial judge erred in quashing plaintiff’s subpoenaes duces tecum issued to Mr. James Diaz, one of defendant’s attorneys, and to Mr. John Bosworth, adjuster for Brown & Root’s insurer, for each to produce his file in connection with the Jones Act settlement. Plaintiff contends these files would show respectively how defendant’s attorney and the insurance adjuster evaluated the claim, and that this material was needed by plaintiff to show the amounts of the settlement which were paid for pain and suffering, loss of wages and other items of damages.

Defendant’s motion to quash the subpoe-naes alleged: (1) That plaintiff had not deposited with the clerk of court the costs required for persons living outside the parish, as required by LSA-R.S. 13:3661. (2) That the material sought is protected by the attorney-client privilege. (3) That the material sought is irrelevant to the partition.

We do not find in the record the reasons for the trial judge’s order quashing the subpoenaes. Nevertheless, even if the ruling was erroneous, it was not reversible error. At the trial on the merits sufficient evidence was introduced to decide the issues presented in the partition.

SETTLEMENT FUNDS COMMUNITY OR SEPARATE

Plaintiff’s final contention is that the trial judge erred in finding that only $18,342.50 of the $200,000 settlement funds is owned by the community. After carefully reviewing the evidence, as discussed briefly in the above statement of the general facts, we conclude the trial judge was not manifestly erroneous nor clearly wrong in his factual finding that of the settlement funds $3,342.52 compensated the community for lost wages and $15,000 compensated the community for pain and suffering by the defendant during the seven months’ existence of the community following the accident. Clearly, most of the lost wages, pain and suffering at the time of the settlement were attributable to post-dissolution damages.

CONTENTIONS IN ANSWER TO THE APPEAL

In his answer to the appeal, defendant contends first that the trial judge erred in not following the itemization of the settlement funds contained in the August 4, 1977 judgment of the state district court approving the Jones Act settlement. That judgment itemizes $1,782.80 for pain and suffering and $3,342.52 for loss of wages, a total of $5,125.32, for the period between the date of the accident and the dissolution of the community. As stated above, the district judge found the same figure for loss of wages during the community, but he increased the figure for pain and suffering from $1,782.80 to the sum of $15,000.

In effect, defendant’s argument is that the judgment approving the Jones Act settlement is res judicata in the present partition suit. This argument has no merit. LSA-C.C. Article 2286 provides the essential elements of res judicata: (1) The thing demanded must be the same; (2) The demand must be founded on the same cause of action; (3) The demand must be between the parties; (4) The demand must be formed by them against each other in the same quality. All of these necessary elements are missing here. The thing demanded was not the same in the Jones Act suit as in the present partition, nor is the demand founded on the same cause of action, nor is it between the same parties, nor is it formed between the parties in the same quality.

Defendant’s next contention in his answer to the appeal is that the trial judge erred in denying his reconventional demand for damages in the sum of $95,200 for wrongful issuance of the temporary restraining order. As stated above, the trial judge did award defendant $500 as attorney’s fees for the wrongful issuance of the temporary restraining order. However, the judge found defendant suffered no other damages in the short time the temporary restraining order was in existence. Despite defendant’s arguments that he suffered great emotional distress when all of his settlement funds were restrained by the temporary restraining order, we find no manifest error by the trial judge.

Defendant’s next contention is that the trial judge erred in not recalling the preliminary injunction upon rendition of the judgment in this partition action. Since the preliminary injunction is not in the record before us, we cannot determine whether it provides for dissolution upon the final settlement of the community and disbursement of proceeds in conformance with the judgment. Out of an abundance of precaution, we will amend the trial court judgment to provide that upon final settlement of the community and disbursement of the funds the preliminary injunction will be lifted.

DECREE

For the reasons assigned, the judgment appealed is amended to provide that upon final settlement of the community and disbursement of the proceeds, in compliance with the judgment appealed, the preliminary injunction will be lifted. Otherwise than as amended, the judgment appealed is affirmed. All costs of this appeal must be paid from community funds.

AFFIRMED, AS AMENDED.


author: DOMENGEAUX, Judge.

text:
    Allen T. CONLAY, Plaintiff-Appellant-Appellee, v. HOUSTON GENERAL INSURANCE COMPANY, Defendant-Appellee-Appellant.
    No. 6952.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1979.
    Writ Granted May 21,1979.

      Gahagan & Gahagan, Russell E. Gahagan, Natchitoches, for plaintiff-appellant-appel-lee.
    Gold, Little, Simon, Weems & Bruser, Eugene J. Sues, Alexandria, for defendant-appellee-appellant.
    Before DOMENGEAUX, SWIFT and DOUCET, JJ.
   DOMENGEAUX, Judge.

This is a workmen’s compensation suit which involves a determination of whether plaintiff, Allen T. Conlay, is totally or partially disabled.

The following facts are not in dispute: Plaintiff, a 52 year old male, was employed by the Louisiana Department of Highways for over twenty-eight years. On February 9, 1976, he sustained an injury to his right knee while in the course and scope of his employment as an asphalt job foreman. He did not return to work after the injury. Compensation payments of $85.00 per week were paid from the date of the accident until October 4, 1977, at which time they were terminated.

Following the insurer’s termination of benefits, plaintiff filed suit on October 28, 1977, for resumption of the $85.00 weekly benefits, penalties, and attorney’s fees.

After trial, judgment was rendered in plaintiff’s favor. The trial judge found plaintiff partially disabled under the amended provisions of La.R.S. 23:1221(3). Benefits of $85.00 per week for 400 weeks, subject to a credit of 86 weeks for benefits already paid, were awarded. Additionally, the trial judge found the insurer arbitrary and capricious in discontinuing the payment of benefits, and cast it for a 12% penalty on past due payments and for $2,000.00 in attorney’s fees.

Both plaintiff and defendant appeal. Plaintiff argues that he should have been found totally disabled, and that the $2,000.00 award for attorney’s fees was inadequate. Defendant argues that plaintiff is not totally or partially disabled, but that he suffers from a percentage disability of an extremity, apparently under the provisions of La.R.S. 23:1221(4), and that it was error to award penalties and attorney’s fees. Additionally, both parties have answered the appeals of the other, advancing the same arguments raised in their respective appeals. Plaintiff raises the additional request, in his answer, that additional attorney’s fees should be awarded for services rendered on appeal.

We will dispose of the defendant-insurer’s argument that plaintiff is suffering only from a percentage disability of an extremity under La.R.S. 23:1221(4) at the outset.

La.R.S. 23:1221 is divided into four subsections. The first three subsections deal with temporary total, permanent total, and partial disabilities in general. The fourth subsection, however, provides benefits for loss of particular members of the body, loss of the use of such members, disfigurements of the face or head, impairments of the use of a physical function, and inguinal hernias. We recently discussed subsection (4) in Clarius v. Fogleman Truck Lines, Inc., 367 So.2d 1264 (La.App. 3rd Cir. 1979), wherein we explained that the particular condition for which the injured workman seeks compensation must be categorized into one of the provisions of La.R.S. 23:1221, and that these provisions are mutually exclusive. In other words, if the injured workman can be shown to be disabled under subsections (1), (2), or (3), subsection (4) is inapplicable. Jack v. Fidelity & Casualty Company of New York, 326 So.2d 584 (La.App. 3rd Cir. 1976), writ denied 330 So.2d 295 (La.1976); Allen v. Insurance Company of North America, 216 So.2d 400 (La.App. 4th Cir. 1968). We thus turn to the evidence to see if plaintiff can qualify for total or partial disability benefits under subsections (1), (2), or (3).

Doctor Clinton G. McAlister, the treating orthopedist, described plaintiff’s condition as a tear of the right medial meniscus, a body of cartilage found in the knee. To alleviate this condition, he performed a surgical procedure known as a medial meni-sectomy. At the time that plaintiff’s right ■ knee was surgically exposed, the doctor found evidence of arthritis, which he thought had developed prior to the accident. The overall medical situation in the knee was aggravated by the arthritis, as well as another pre-injury condition present in the knee known as chrondromacia. The doctor felt that the prognosis of the patient from the surgery was good. However, he was of the opinion that plaintiff could not return to his former employment, nor to any other type of employment involving heavy manual labor or stress to the knee.

The testimony of Dr. Carl Goodman, another orthopedist who examined plaintiff, was to the same effect, except with regard to the arthritis, which Doctor Goodman felt resulted from the accident or the subsequent surgery. He also was of the opinion that plaintiff could not return to his former position, or any other position involving standing, squatting, climbing, etc. He recommended that plaintiff find some lighter form of work.

Dr. Douglas L. Gamburg, another orthopedist, examined plaintiff for the first time over two years following the accident. He felt that plaintiff’s symptoms were a result of a pre-injury, non-traumatic arthritic condition in the knee; however, he stated that the arthritic condition was aggravated by the testing and surgery required as a result of the accident. Additionally, Doctor Gam-burg felt that plaintiff could engage in lighter work not involving heavy manual labor or stressful activity to the knee.

The family physician, Dr. Ira L. Campbell, Jr., also testified. He stated that plaintiff’s current condition ruled out any possibility of plaintiff working in a laboring type capacity, however, he felt plaintiff could engage in any occupation not requiring stress to the knee.

We feel that the above testimony clearly shows that plaintiff is unable to return to his former position. He, therefore, is suffering from either a total or partial disability under subsections (1), (2), or (3), and the provisions of La.R.S. 23:1221(4), relating to the loss of use of an extremity, are inapplicable. Consequently, we find the defendant-insurer’s contention in this regard without merit.

Whether plaintiff’s disability is total or partial is another matter. The cases arising after the 1975 Legislative amendments to the Compensation Act, relative to total and partial disabilities, have percolated through the appellate level. There is now a sufficient amount of commentary to justify making a few general observations.

It is well recognized that the 1975 amendments to La.R.S. 23:1221 markedly changed the criteria for determining whether an injured workman suffers from a total or partial disability. The inability of an injured employee to return to his former occupation or position does not, in and of itself, lead to a finding of total disability. Lachney v. Cabot Corporation, 368 So.2d 500 (La.App. 3rd Cir. 1979); Kilbourne v. Armstrong, 351 So.2d 802 (La.App. 1st Cir. 1977); Leblanc v. Commercial Union Assurance Company, 349 So.2d 1283 (La.App. 1st Cir. 1977), writ denied 351 So.2d 174 (La. 1977). An injured employee is totally disabled, either permanently or temporarily, only if he is incapable of returning to any type of gainful employment whatsoever, or, although capable, he is unable to return to gainful employment because of substantial pain. Simmons v. Louisiana Department of Transportation and Development, 368 So.2d 770 (La.App. 2nd Cir. 1979); Rachal v. Highlands Insurance Company, 355 So.2d 1355 (La.App. 3rd Cir. 1978), writ denied 358 So.2d 645 (La.1978); Phillips v. Dresser Engineering Company, 351 So.2d 304 (La. App. 3rd Cir. 1977), writ denied 353 So.2d 1048 (La.1978).

On the other hand, if an injured workman cannot return to his former employment because of his injury, but can perform gainful work in another position, he is partially disabled. Kilbourne v. Armstrong, supra; Leblanc v. Commercial Union Assurance Company, supra. Partial disability also includes the situation where a workman would experience substantial pain when working in his former occupation, but where he could work in other categories of jobs without experiencing such pain. Lach-ney v. Cabot Corporation, supra.

In the instant case, plaintiff bases his argument for total disability on substantial pain. If plaintiff will experience substantial pain in all types of employment, he should be considered totally disabled; if, however, he can work in some position without experiencing substantial pain, he is only partially disabled.

The amount of pain an injured workman experiences is a question of fact. Newell v. United States Fidelity & Guaranty Company, 368 So.2d 1158 (La.App. 3rd Cir. 1979); Carter v. Roy O. Martin Industries, 336 So.2d 1002 (La.App. 3rd Cir. 1976). A determination of fact will not be disturbed when there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s findings, unless such findings are clearly wrong. Crump v. Hartford Accident & Indemnity Company, 367 So.2d 300 (La.1979); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

As has been stated many times previously, the reason for this rule of appellate review relates to both the allocation of trial and appellate functions and to the trial court’s better capacity to evaluate live witnesses. The trial court’s favored position in seeing and hearing live witnesses is especially important when the factual determination involves a concept as subjective as pain. Colorful inflections and subtle nuances given to spoken and physical expressions describing the degree of pain simply do not come out in the black and white transcription of testimony contained in the appellate record.

Looking to the evidence bearing on pain in this case, we have the testimony of all four physicians, as well as, that of plaintiff and several lay witnesses called on his behalf.

Of the physicians who testified, Doctor McAlister commented upon plaintiff’s pain the most. He stated that, although plaintiff experiences and will continue to experience pain as a result of his knee, he did not think it particularly severe or disabling. The doctor referred to it as a general soreness or tenderness. He testified that it was in the nature of an annoyance with which one would have to learn to live. He also testified with reference to a second surgical procedure, termed a tibia oesteotomy, by which the weight bearing forces of the knee would be realigned. This procedure was discussed with plaintiff, but the doctor thought it indicated only if plaintiff’s pain got severe. At the time of the doctor’s deposition, neither he nor plaintiff had determined if the pain had reached the level requiring additional surgery.

Doctor Gamburg stated that repetitive squatting, stooping, or strain could cause increased levels of pain to plaintiff, but that ordinary activities should not. Doctors Goodman and Campbell both testified that complaints of pain would be compatible with plaintiff’s condition, but their testimony is not enlightening with respect to the degree of pain.

As noted previously, all of the physicians thought plaintiff capable of engaging in some type of lighter work, if stress could be kept off of the knee.

Plaintiff testified that he experienced pain in his knee constantly and that he takes over-the-counter pain medication to alleviate this condition. He stated that his physical activities are limited because of the condition in his knee, and that the pain increases whenever he uses his knee, as, for example, when walking. He admitted, however, that, on advice of Doctor McAlis-ter, he did do minor carpentry work, fence mending, and gardening after the accident. He qualified these statements by stating that some of these activities made the condition in his knee worse. He also testified that he drives and attends cattle auctions frequently. Additionally, he stated that he directs some activities for various business concerns in which he and his wife have an ownership interest, although he said that he is not an employee of any of these businesses. Finally, plaintiff admitted that he would accept employment in a position where he could sit down and work with his hands.

Several other lay witnesses testified; however, their testimony was cumulative and largely supportive of the testimony of plaintiff.

After closely reviewing the evidence, we do not feel that the trial judge was manifestly erroneous in finding plaintiff partially, and not totally, disabled. We have no doubt that plaintiff’s condition is painful; however, we cannot say that the trial judge was clearly wrong in failing to conclude that plaintiff’s pain was substantial enough to constitute a total disability. Laehney v. Cabot Corporation, supra.

The final matter in this case deals with the award of penalties and attorney’s fees.

The insurer ceased payment of compensation benefits based upon a report of Doctor McAlister, which stated that plaintiff had a 20% permanent physical impairment of his right leg. The insurer took the position that this placed plaintiff under the provisions of La.R.S. 23:1221(4), relative to a percentage disability of an extremity, and it felt it had already overpaid plaintiff the amount of compensation due. However, Doctor McAlister’s report also stated that plaintiff would be unable to engage in any activity which would be strenuous to his lower leg and that plaintiff would have to restrict his work to light activity. Clearly, the insurer should have known that this meant plaintiff could not return to his former position. Considering this and the other medical evidence in this case, it is difficult to justify the insurer’s total cessation of benefits. We feel, as did the trial judge, that it should be responsible for penalties and attorney’s fees.

Plaintiff argues that the $2,000.00 awarded as attorney’s fees is inadequate to compensate for the services rendered at the trial level. We think, however, that this amount was within the discretion allowed to the trial judge in the assessment of attorney’s fees. Hebert v. Loffland Brothers, 363 So.2d 969 (La.App. 3rd Cir. 1978); Cullivan v. Fish Engineering and Construction Company, 354 So.2d 597 (La.App. 3rd Cir. 1977); Carter v. Roy O. Martin Industries, Inc., supra.

Plaintiff also requests additional attorney’s fees for the legal services required on appeal. An increase in attorney’s fees for services on appeal is usually awarded when the defendant appeals and obtains no relief on appeal, and the plaintiff requests it in accordance with proper appellate procedure. The basis for awarding additional attorney’s fees is that the litigant successful at the trial level must incur additional expenses, which otherwise would not have been incurred, in order to protect his rights on appeal. Horn v. Vancouver Plywood Corporation, 322 So.2d 816 (La.App. 3rd Cir. 1975). In this case, plaintiff is not only protecting his rights relative to defendant’s appeal, but is also seeking additional relief denied at the trial level and denied on appeal, viz., a declaration of total disability. Under these circumstances, we find that additional attorney’s fees for services rendered on appeal are not warranted.

For the above reasons, the judgment of the District Court is affirmed. Costs on appeal are assessed one-half to each party.

AFFIRMED.


text:
    Elaine REEVES, Individually and as natural tutrix of her minor son, John Reeves, Plaintiff-Appellee-Appellant, v. The GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., et al., Defendants-Appellants-Appellees.
    No. 6895.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1979.
    Writs Refused June 1,1979.

      William P. Polk, Gold, Little, Simon, Weems & Bruser, Edward E. Rundell, Alexandria, for defendant-appellant.
    Broussard, Bolton & Halcomb, Roy S. Halcomb, Jr., Alexandria, for plaintiff-ap-pellee.
    Sessions, Fishman, Rosenson, Snellings & Boisfontaine by Walter C. Thompson, Jr., New Orleans, for defendant-appellee.
    Before DOMENGEAUX, SWIFT and DOUCET, JJ.
   DOMENGEAUX, Judge.

On June 21, 1977, plaintiff, Mrs. Elaine Reeves, purchased a 32-ounce bottle of Coca-Cola from a supermarket in Alexandria, Louisiana, owned and operated by The Great Atlantic & Pacific Tea Company, Inc., hereinafter referred to as A & P, for the sum of forty-five cents. She brought the bottle of Coca-Cola home and placed it into her refrigerator. Later that night, her minor son, John Reeves, who had returned from playing a little league baseball game, went into the refrigerator and obtained the bottle of Coke.

After opening the bottle and drinking from it, he found that it smelled and tasted badly. Almost immediately, he started regurgitating and felt ill.

Both Mrs. Reeves and her son examined the bottle of Coke and held it up to the light. They discovered that there were foreign objects floating around in the liquid. Mrs. Reeves recapped the bottle, placed it into the refrigerator, and brought it to her attorney some days later.

On October 3,1977, Mrs. Reeves filed suit on behalf of her minor son in order to recover for the injuries sustained by him as a result of drinking the contaminated bottle of Coke. Made defendants were A & P, the Alexandria Coca-Cola Bottling Company, Ltd., hereinafter referred to sometimes as the bottler or the bottling company, and the Coca-Cola Company. On March 23, 1978, an amending petition was filed in which Mrs. Reeves appeared individually and as the administrator of the estate of her minor child, John, in order to add an additional demand for rescission of the sale of the beverage, and for attorney’s fees. On May 16, 1978, a second amending petition was filed, reiterating her demands for rescission.

A problem was presented, however, with regard to Mrs. Reeves’ right to bring a cause of action on behalf of her minor son because, although divorced from her husband and having custody of John, she was not appointed the child’s natural tutrix. Pursuant to this end, she petitioned for and finally was appointed the natural tutrix of John on May 24, 1978.

On May 17, 1978, A & P filed a third party demand against the Coca-Cola Company and the Alexandria Coca-Cola Bottling Company, Ltd., in order to recover any amounts which it would be liable to pay to the plaintiff.

After several procedural preliminary matters were resolved, none of which are involved in this appeal, the case proceeded to trial. The trial judge found that plaintiff proved her case in order to recover for the personal injuries of her minor son. He assessed personal injury damages, however, only against the Alexandria Coca-Cola Bottling Company, Ltd., as the manufacturer of the soft drink. However, he found that A & P would be liable for return of the purchase price under a redhibitory theory of recovery to Mrs. Reeves individually. On the same theory, he found that the Alexandria Coca-Cola Bottling Company, Ltd., as the manufacturer, would be liable also for return of the purchase price of the soft drink, and, additionally, for attorney’s fees. He found that the Coca-Cola Company was simply the manufacturer of the syrup and, inasmuch as there was no proof that the defect in the final product was as a result of the syrup, and inasmuch as there was no proof of negligence on the part of the Coca-Cola Company, he absolved them from liability in tort and, also, from liability in redhibition.

Accordingly, judgment was entered in favor of the Coca-Cola Company, and against the plaintiff, dismissing her demands against that defendant; judgment was rendered in favor of the plaintiff and against A & P and the Alexandria Coca-Cola Bottling Company, Ltd. in solido, for return of the purchase price of the soft drink; and judgment was entered in favor of plaintiff and against the Alexandria Coca-Cola Bottling Company, Ltd. for $2,500.00 attorney’s fees. Additionally, the Alexandria Coca-Cola Bottling Company, Ltd. was found liable for $300.00 for the personal injuries sustained by John Reeves. The bottler was cast for all costs.

From this judgment, Mrs. Reeves, the Alexandria Coca-Cola Bottling Company, Ltd., and A & P, all appeal. Additionally, Mrs. Reeves answers the appeal filed by the Alexandria Coca-Cola Bottling Company, Ltd. The Coca-Cola Company answers the appeals of both Mrs. Reeves and A & P.

Numerous issues are raised in this case; however, at the outset, we feel it necessary to comment upon some of the peculiar aspects of this litigation. In her pleadings, Mrs. Reeves urged two demands. She originally sued in tort for the recovery of the personal injury damages sustained by her minor son as a result of the ingestion of an unwholesome food product. Additionally, she added a claim in redhibition against the immediate vendor, A & P, and the alleged manufacturers, the Alexandria Coca-Cola Bottling Company, Ltd., and the Coca-Cola Company, contending that the thing sold, a bottle of Coca-Cola, contained a latent defect entitling her to rescission of the sale, damages, and attorney’s fees under La.C.C. Art. 2545.

The inclusion of the redhibitory claim is somewhat unique because, prior to the landmark decision of Media Production Consultants, Inc. v. Mercedes-Benz of North America, Inc., 262 La. 80, 262 So.2d 377 (1972), this type of case would always be couched in terms of products liability in tort. By suing in tort, the victim proceeds directly against the manufacturer of the defective product in order to recover for his injuries. He must prove that the product is defective, i. e. unreasonably dangerous for normal use, and that his injuries were caused by the defect. The plaintiff need not prove any particular act of negligence; he is assisted by the presumption that the manufacturer is presumed to know of the defects in the thing he makes. Weber v. Fidelity & Casualty Insurance Company of New York, 259 La. 599, 250 So.2d 754 (1971); Lachney v. Motor Parts & Bearing Supply, Inc., 357 So.2d 1277 (La.App. 3rd Cir. 1978).

Prior to the Media decision, the use of the redhibitory action to a plaintiff who was injured by a defective product was of little utility. The remedy was against the seller of the product and not the manufacturer. If the seller did not know that the product sold was defective, plaintiff’s relief was restricted to rescission of the sale, return of the purchase price, expenses of the sale, and expenses incurred in preserving the thing sold. C.C.Art. 2531. Only if it could be shown that the seller knew of the defect, could plaintiff recover damages, and, since a 1968 amendment to C.C.Art. 2545, attorney’s fees. Additionally, the plaintiff would have to show that he was a purchaser, and there could be some question as to what “damages” are contemplated by C.C. Art. 2545.

This situation changed somewhat, however, beginning with the Media decision. That case, and its progeny, most notably Rey v. Cuccia, 298 So.2d 840 (La.1974), put to rest any requirement of privity as between the purchaser of the defective product and the manufacturer of that product in a suit to recover under the Codal articles on redhibition. Thus, under Media, a buyer would be allowed to proceed directly against the manufacturer of a defective product in redhibition, thereby removing one of the factors that would have restricted a plaintiff injured by a defective product, namely, limitation of potential defendants to the immediate seller. Additionally, inasmuch as the manufacturer is presumed to know of the defect in the product he manufactures, the manufacturer will be almost invariably a bad faith seller, thereby entitling the purchaser to damages and attorney’s fees under C.C.Art. 2545. It would seem, therefore, that, in light of Media, suit in redhibition would be the preferred route in which to proceed when injury is caused by a defective product, because a prospective plaintiff could get attorney’s fees, which could not be awarded if he proceeded in tort.

Nevertheless, the redhibitory path is not clear. There are two significant questions remaining unanswered, viz.:

1. Are the damages awardable under C.C.Art. 2545 in redhibition the same as are awardable in tort under products liability; and

2. If it is not necessary that the defendant in a redhibitory suit be the actual seller, is it necessary that the plaintiff be the actual purchaser?

Although this case came close, these questions actually are not presented here. In our suit, the actual purchaser of the defective product is Mrs. Reeves, who does not claim any injuries on her own behalf, but only on behalf of her minor son. Thus, the first question, concerning the type of damages awardable in the redhibitory suit against the manufacturer, is not presented because the minor’s damages can be awarded on a tort basis.

The second question, concerning whether a redhibitory suit can be maintained by one other than the immediate purchaser, is also not presented because it is the actual purchaser, Mrs. Reeves, who is maintaining the redhibitory action and seeking attorney’s fees, independent of the personal injury demand made on behalf of her minor son. Although ostensibly this suit appears to award attorney’s fees in a products liability case, it actually does not. Attorney’s fees are awarded only on the basis of Mrs. Reeves’ demand for rescission. Personal injury damages are awarded separately on a tort theory.

We specifically point out that in order to resolve the complicated legal issues arising from the substantial overlap between the law of products liability and the law of redhibition, other factors would have to be present in this case. For example, had tender of the purchase price of the product been made to Mrs. Reeves prior to filing suit, the question of whether suit could be maintained on behalf of the son against the manufacturer under a redhibitory theory, and, consequently, whether attorney’s fees could be allowed, would be presented. Alternatively, had Mrs. Reeves sustained her own personal injuries by use of the defective product, and tender of only the purchase price and no personal injury damages been made, the question of what damages are awardable by C.C.Art. 2545, would arise. These factors are not present here.

Having concluded our discussion of these preliminary matters, we now proceed to the specific issues presented by this case. We will discuss separately the claim for personal injury damages to the minor in tort and the claim for rescission and attorney’s fees in redhibition.

I. TORT CLAIM

The Alexandria Coca-Cola Bottling Company, Ltd. argues that plaintiff failed to discharge her burden in proving that the cause of her son’s illness was the ingestion of a contaminated Coke. Apparently, there is no dispute on appeal with regard to the fact that the Coke contained a foreign ingredient at the time her son drank from it.

To support its proposition, the bottler correctly points out several facts contained in the record. The evidence shows that John had eaten a hamburger and french fries prepared in the home by Mrs. Reeves in the late afternoon of June 21, 1977. Shortly thereafter, John left to play a little league baseball game, which lasted until approximately 8 P.M. John’s team won, and they were treated to free Cokes at a local restaurant. However, John did not drink much of his Coke because he felt overheated. He returned home and obtained the bottle of Coke from his mother’s refrigerator, broke open the seal, and took a swallow from it. Immediately thereafter, he began to regurgitate and, within twenty minutes, he developed a fever of 101 degrees.

From this evidence, the bottling company argues that the more likely cause of the injury was the result of consuming a hamburger and french fries immediately prior to engaging in the baseball game during the middle of the summer, or that the boy had some illness developing within him pri- or to drinking the Coke, which only manifested itself after ingestion of the drink. As further support of this latter theory, the bottler points out that it is highly unlikely that a healthy boy would refuse a free Coke after playing a baseball game, and that the development of a 101 degree temperature within twenty minutes after the ingestion of a foreign substance was physiologically unlikely.

The bottler also points out that the sales slip from the A & P store indicates that the beverage was purchased on May 18, 1977, rather than June 21, 1977. It apparently maintains that this discrepancy indicates that the drink was purchased and consumed before June 21, 1977, and, that the boy’s illness on June 21, 1977, was for a reason other than consuming the bottle of Coke in question.

We reject the bottler’s arguments. In the leading products liability case, Weber v. Fidelity & Casualty Company of New York, supra, the Supreme Court specifically addressed itself to the burden of proof in showing causation in a products liability suit. It was there stated:

“In this civil case, the plaintiffs’ burden is to prove causation by a preponderance of the evidence. This burden may be met either by direct or, as in this ease, by circumstantial evidence. Jordan v. Travelers Insurance Co., 257 La. 995, 245 So.2d 151 (1971); Naquin v. Marquette Cas. Co., 244 La. 569, 153 So.2d 395 (1963).
As we stated in the latter decision, 153 So.2d 397: ‘Taken as a whole, circumstantial evidence must exclude other reasonable hypotheses with a fair amount of certainty. This does not mean, however, that it must negate all other possible causes. Otherwise, the mere identification by the record of another possibility, although not shown to be causally active, would break the chain of causation.’ ”

250 So.2d at page 757.

We think that, under the circumstances presented in this case, the most logical explanation for the son’s illness was the ingestion of the contaminated bottle of Coca-Cola. Although the hypotheses offered by the bottler in order to explain the illness in terms other than the ingestion of the Coke are reasonable, we feel that the trial judge was correct in finding that the preponderance of the evidence in this case rested with the plaintiff.

We also note that the trial judge did not attach much significance to the fact that the sales receipt was dated May 18, 1977, rather than June 21, 1977, and we agree. Mrs. Reeves was unwaivering in her testimony that the Coke was purchased on June 21, 1977. Other evidence indicated that the date appearing on the register receipt could be inaccurate.

The bottler also maintains that the amount of damages awarded on behalf of the minor, John, were not proven. On the other hand, plaintiff argues that the amount of damages should be increased.

The trial judge awarded $300.00 in personal injury damages on behalf of the minor. The record shows that the child became ill and started vomiting immediately after the consumption of the Coke. He ran a temperature and spent a restless night, with nausea and stomach pains. The stomach pains continued into the next day, and John also developed diarrhea. Although his mother contacted a physician by telephone, the physician did not feel that an office or hospital visit was necessary, unless complications developed. The mother administered over-the-counter medication to the son in order to relieve his stomach pains and diarrhea. By the second day after the ingestion of the Coke, John returned to normal and went about his regular activities.

Under the circumstances presented, we feel that the $300.00 awarded by the trial judge for John’s pain and suffering is neither excessive nor inadequate. Accordingly, it will be affirmed.

In her brief, Mrs. Reeves seeks judgment against all three defendants for all amounts awarded. We will discuss the award of return of the purchase price and attorney’s fees with reference to this contention in the section of this opinion dealing with redhibition. We will discuss the award of personal injury damages presently.

It is well established in Louisiana that the manufacturer of a product, which involves the risk of injury to the user, is liable to any person, who, without fault on his part, sustains an injury caused by a defect in the design, composition, or manufacture of the product, if the injury reasonably might have been anticipated. Weber v. Fidelity & Casualty Company of New York, supra, and cases cited therein. The non-manufacturer seller of a defective product is not responsible for damages in tort, absent a showing that he knew or should have known that the product sold was defective. Spillers v. Montgomery Ward & Company, Inc., 294 So.2d 803 (La. 1974); Demars v. Natchitoches Coca-Cola Bottling Company, Inc., supra; McCauley v. Manda Brothers Provisions Company, Inc., 202 So.2d 492 (La.App. 1st Cir. 1967), affirmed 252 La. 528, 211 So.2d 637 (1968). The mere supplier of a component part of a finished product is not liable for damages in tort, absent a showing that the injury was caused by a defect contained in the component part, rather than a defect contained in the finished product. Andry v. Canada Dry Corporation, Division of Norton Simon, Inc., 355 So.2d 639 (La.App. 4th Cir. 1978), writ denied 357 So.2d 1167 (La.1978).

It is our opinion that the trial judge was not in error by holding only the Alexandria Coca-Cola Bottling Company, Ltd., responsible for the personal injury damages in this case.

The record shows that the bottle of Coke was in a sealed condition up to the time that John opened it. The evidence offered by the A & P Company, from which the Coke was purchased, indicated that their employees did not inspect sealed containers of foodstuffs and, therefore, it is obvious that A & P did not have knowledge of the contaminates contained in the bottle. Further, we think that A & P reasonably could rely on the assumption that sealed containers of foodstuffs obtained from reputable dealers were not contaminated. Since A & P neither knew nor should have known that the bottle of Coke in question was defective, the trial judge properly relieved it from liability in tort.

With regard to the Coca-Cola Company, the evidence shows that it merely supplied its syrup to the bottler and licensed the bottler to use its trademark. There was no evidence proving that the syrup supplied by the Coca-Cola Company was defective or that the company was negligent.

Some attempt was made by plaintiff to hold the Coca-Cola Company liable for damages on the basis that “Coca-Cola” is a trademark of the Coca-Cola Company and that the finished product was held out as being a product of the Coca-Cola Company. However, we do not think that there is sufficient evidence in the record which would allow the imposition of liability on this basis. For example, the magnitude of advertising and promotional activities conducted by the Coca-Cola Company was not revealed. Although the bottling contract was contained in the record, the provisions dealing with Coca-Cola’s control over the finished product were very vague. The actual day to day relationship between the Coca-Cola Company and the bottler was unclear. Under the facts presented in this particular case, we do not feel that the Coca-Cola Company can be held liable.

On the other hand, the evidence shows that the bottler was responsible for securing clean bottles for the finished product, for assembling and mixing the various component parts of the soft drink, and for sealing and distributing it. We think it abundantly clear that the Alexandria Coca-Cola Bottling Company, Ltd. was the manufacturer of the finished product of the bottled Coca-Cola beverage. As the manufacturer, it was the party responsible for the personal injury damages sustained by John and was properly cast for such.

II. REDHIBITORY CLAIM

As noted above, Mrs. Reeves sought, and was awarded, rescission of the sale, return of the purchase price, and attorney’s fees under a redhibitory theory. The trial judge found that the bottle of Coke contained a latent defect at the time of purchase. He determined that Mrs. Reeves was entitled to return of the purchase price from the seller of the product, A & P, and the manufacturer of the product, the Alexandria Coca-Cola Bottling Company, Ltd. A & P was found to have no knowledge of the defect of the Coke at the time of the sale. Accordingly, its liability was limited to rescission of the sale and return of the purchase price under Article 2531 of the Civil Code. The Alexandria Coca-Cola Bottling Company, Ltd. was found to be the manufacturer. It was held solidarily liable with A & P for rescission of the sale and return of the purchase price. Additionally, since it was presumed to have knowledge of the defect, it was found liable for $2,500.00 attorney’s fees under Article 2545 of the Civil Code.

The Coca-Cola Company was found to be the manufacturer of merely a component part, the syrup, from which the final product, the bottled beverage, was made. Since it was neither a manufacturer nor a seller, the Coca-Cola Company was not held liable in redhibition.

Both the bottler and A & P contend that Mrs. Reeves cannot recover in redhibition because the defect or vice in the beverage was apparent.

We feel that the evidence in this case clearly indicates that the objects floating in the Coke bottle could not be seen readily.

Neither Mrs. Reeves nor her son saw anything wrong with the beverage until after John drank it. Mrs. Reeves testified that in order to see the objects in the bottle, it was necessary to hold it up to the light in a certain fashion. She stated that sometimes the objects in the bottle were visible and sometimes they were not, depending upon how the light struck the contents.

Additionally, the bottle of Coke, with the contaminates in it, was introduced at trial, and the trial judge had the opportunity to inspect it. He made the specific factual determination, in his written reasons, that the defect was not apparent. Under these circumstances, we do not find manifest error in his factual conclusion that the defect was latent.

The bottler also raises the argument that Mrs. Reeves’ failure to call as witnesses three persons, who were guests in her home at the time John drank the contaminated Coke, should create a presumption against her. Although this may be correct, Mrs. Reeves’ failure to call the witnesses was not unexplained. She stated during her testimony that the guests were never shown the contaminated Coke. She simply put the bottle away into the refrigerator and suggested that they not drink from that particular bottle. The bottler argues that it is improbable that three people sitting in the same room where the incident occurred would not have been shown or would not have made an effort to look at the bottle in order to see if there was anything in it. However, this argument goes to the weight and credibility of Mrs. Reeves’ testimony. Considering the totality of evidence in this case, we do not feel that the adverse presumption drawn against Mrs. Reeves would be sufficient to justify a reversal of the trial court’s findings on appeal.

We now move to plaintiff’s contention that all defendants should be liable for all amounts. We have previously discussed this contention with regard to products liability, and now we determine who was responsible in redhibition. Under the current state of the law in redhibition, both the manufacturer and seller of a thing containing a redhibitory vice are responsible.

There is no question that A & P sold the bottle of Coke. However, as previously discussed, A & P did not know of the vice at the time of the sale. Their liability is governed by C.C.Art. 2531, which provides, inter alia, for restoration of the purchase price, reimbursement of the reasonable expenses of the sale, and reimbursement for the expenses incurred for preservation of the thing. In this case, there are no claims for reimbursement of the expenses of the sale and for expenses of preservation. Therefore, A & P is liable only for return of the purchase price of the Coke, which is $0.45.

We have already determined that the Alexandria Coca-Cola Bottling Company, Ltd. is the manufacturer of the bottled beverage. As the manufacturer, it is presumed to know of the vice in the thing it manufacturers. Its liability, therefore, is governed by C.C.Art. 2545, which provides for restitution of the purchase price, repayment of the expenses of the sale, repayment of the expenses of preservation, damages, and attorney’s fees. Since no claims for damages, expenses of the sale, or expenses of preservation are made by Mrs. Reeves, the Alexandria Coca-Cola Bottling Company, Ltd. is responsible for only return of the purchase price of the Coke, and attorney’s fees.

In summary, both A & P, the seller, and Alexandria Coca-Cola Bottling Company, Ltd., the manufacturer, are liable, in solido, for return of the $0.45 purchase price of the Coke. Rey v. Cuccia, supra; Breaux v. Winnebago Industries; Inc., 282 So.2d 763 (La.App. 1st Cir. 1973). Additionally, the Alexandria Coca-Cola Bottling Company, Ltd. is liable for attorney’s fees.

However, we have some question with regard to the amount of attorney’s fees awarded. The trial judge set the fees at $2,500.00. In his written reasons, it was specifically pointed out that attorney’s fees were being awarded solely on the basis of the redhibitory action and not on the basis of the tort action. Further, several aspects of both the redhibitory and tort claims were common and intertwined with each other. Considering all the circumstances involved in this case, including the fact that the bill introduced for services rendered by plaintiff’s counsel at the time of trial is in an amount significantly less than $2,500.00, and including the fact that recovery on the redhibitory claim is only for $0.45, we feel that an award of $1,500.00 for attorney’s fees would be more equitable under the situation presented. The judgment will be amended accordingly.

With regard to the responsibility of the Coca-Cola Company in redhibition, a problem is presented. Plaintiff argues that the law enunciated in Media is authority for holding the Coca-Cola Company liable. We do not feel that Media is applicable to the present situation. In Media, the Supreme Court found that the North American distributor of a defective Mercedes-Benz automobile had, for purposes of redhibition, the same responsibility as that of the manufacturer. In so doing, the Court specifically noted the following:

“The maker of Media’s [the purchaser’s] vehicle is a foreign corporation, not qualified to do business in the United States. In its distribution agreement, MBNA [Mercedes-Benz of North America, Inc.] assumes the total responsibility for marketing the cars in the United States and for selling, servicing, and establishing franchise dealerships. Its name appears upon the Dealers Claims Policies and Procedures Manual, the owner’s service policy, and the owner’s automobile manual.
It operates a vehicle distribution center and inspects, adjusts, and prepares the automobiles for placement in the hands of a dealer for retail sale.”

262 So.2d at page 380.

In our case, there is no showing that the Coca-Cola Company assumed responsibility for the finished product. The Coca-Cola Company does not operate any bottling companies in the United States. As noted previously, although the bottling contract between the Coca-Cola Company and the Alexandria Coca-Cola Bottling Company, Ltd. was introduced into evidence, the provisions dealing with Coca-Cola’s control over the finished product are vague. The day to day working arrangement between the Coca-Cola Company and the bottler was not explored in detail. Further, evidence concerning the extent of advertising and promotional campaigns conducted by the Coca-Cola Company was not disclosed.

Additionally, in Media, the North American distributor occupied an intermediate position between the purchaser and the actual manufacturer. In our case, the Coca-Cola Company does not occupy an intermediate position. Furthermore, it should be noted that the actual manufacturer of the automobile in Media was not qualified to do business in the United States and probably was not amenable to process. In our case, the Alexandria Coca-Cola Bottling Company, Ltd. is a Louisiana corporation, and is amenable to process.

Considering the lack of specific evidence and other circumstances presented by this case, we cannot hold the Coca-Cola Company liable.

A & P raises the contention that, if it is responsible to Mrs. Reeves for return of the purchase price, it is entitled to recovery of this amount against the Alexandria Coca-Cola Bottling Company, Ltd. Pursuant to this end, it made a third party demand at the trial level; however, the trial judge failed to rule on this demand. A & P is entitled to judgment on their third party demand against the bottling company. Breaux v. Winnebago Industries, Inc., supra.

The final matter in this case deals with the request by plaintiff, in her appellate answer, for an increase in attorney’s fees for the services rendered on appeal.

An increase in attorney’s fees for services rendered on appeal is usually awarded when the defendant appeals and obtains no relief on appeal, and when the plaintiff requests it in accordance with proper appellate procedure. The basis for awarding additional attorney’s fees is that the litigant successful at the trial level must incur additional expenses, which otherwise would not have been incurred, in order to protect his rights on appeal. In this case, plaintiff is not only protecting her rights on appeal, but she is also seeking additional relief denied at the trial level and denied on appeal. Under these circumstances, we find that additional attorney’s fees for services rendered on appeal are not warranted. Conlay v. Houston General Insurance Company, 370 So.2d 196 (La.App. 3rd Cir. 1979).

For the above reasons, the judgment of the District Court is amended in order to enter judgment herein in favor of The Great Atlantic & Pacific Tea Company, Inc., and against the Alexandria Coca-Cola Bottling Company, Ltd., in the sum of $0.45, together with legal interest from date of judicial demand until paid. The judgment is also amended in order to reduce the amount of attorney’s fees awarded to Elaine Reeves from the sum of $2,500.00 to $1,500.00. In all other respects, the judgment of the District Court is affirmed. Costs on appeal are assessed one-half against plaintiff, Elaine Reeves, and one-half against defendant Alexandria Coca-Cola Bottling Company, Ltd.

AFFIRMED AS AMENDED.

      . We are aware of only one other case in which a redhibitory theory was used in a suit for personal injuries resulting from a defectively bottled soft drink, and that case arose after Media. In Demars v. Natchitoches Coca-Cola Bottling Co., Inc., 353 So.2d 433 (La.App. 3rd Cir. 1977), writ denied 354 So.2d 1384 (La. 1978), plaintiff purchased and drank a bottled soft drink which contained particles of glass. She sued the seller of the drink, Morgan & Lindsey, Inc., and the manufacturer, Natchi-toches Coca-Cola Bottling Co., Inc., seeking rescission of the sale of the soft drink, return of the purchase price, damages, and attorney’s fees under C.C.Art. 2545. At the trial level, she received judgment for rescission of the sale, personal injury damages, and attorney’s fees against both defendants. On appeal, we reversed and denied plaintiff recovery under a redhibitory theory, finding, as a matter of fact. that since the rim of the bottle containing the soft drink was chipped, the defect was apparent, and thus, redhibitory relief could not be granted. Instead, we awarded damages under a theory of breach of an implied warranty of wholesomeness. The end result of the case was that the judgment for attorney’s fees and damages against the seller, Morgan & Lindsey, was reversed; the judgment for attorney’s fees against the manufacturer, the Natchitoches Coca-Cola Bottling Company, Inc., was also reversed; but the judgment awarding personal injury damages against the Natchitoches Coca-Cola Bottling Company, Inc., was affirmed. We specifically note that Demars did not preclude the possibility of bringing a redhibitory suit against the seller and manufacturer of a defectively bottled soft drink. Redhibition was denied in Demars simply on the basis that the redhibitory vice was apparent.

      . For an indepth discussion of the interesting problems presented by the overlap between products liability and redhibition see Robertson, Manufacturer’s Liability for Defective Products in Louisiana Law, 50 Tul.L.Rev. 50 (1975).

      . We are mindful of the Supreme Court’s decision in Chappuis v. Sears Roebuck and Company, 358 So.2d 926 (La.1978), in which the seller of a defective hammer, Sears, was held to the same responsibility in products liability as the manufacturer of the hammer, Vaughan and Bushnell Manufacturing Company, partly because Sears held the hammer out to the public as its own. However, we find the relationship between Sears and Vaughan and Bushnell in Chappuis distinguishable from the relationship between the Coca-Cola Company and the Alexandria Coca-Cola Bottling Company, Ltd. as presented by the fact of this case.