text:
    Dale C. GRIFFIN and Peggy Griffin v. COLEMAN OLDSMOBILE, INC., d/b/a Coleman RV Center, et al.
    No. 82 CA 0228.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.

      Jeri Ann H. Flynn, Baton Rouge, for plaintiffs-appellees Dale C. Griffin and Peggy Griffin.
    Carey J. Guglielmo, Baton Rouge, for defendant-appellant Chrysler Corp.
    John R. Keogh, Baton Rouge, for defendant-appellee Fleetwood Motor Homes of Indiana, Inc.
    Robert L. Kleinpeter, Baton Rouge, for defendant-appellant Coleman Oldsmobile, Inc., d/b/a Coleman RV Center.
    Before PONDER, SAVOIE and ELLIS, JJ.
   SAVOIE, Judge.

Dale and Peggy Griffin brought this suit in redhibition against Coleman Oldsmobile, Inc., Fleetwood Motor Homes of Indiana, Inc., and the Chrysler Corporation. These defendants were the seller, manufacturer of the coach and manufacturer of the chassis of the recreational vehicle, respectively.

The trial court determined that each of the defendants was liable in quanti minoris for the defects. This determination was based on the court findings that some of the defects were outstanding at the time of the motor home’s manufacture and that the dealers were tardy in curing the defects. Accordingly, the lower court awarded $3,000 in damages. Further, it awarded plaintiffs $1,000 in attorney’s fees against the defendants. Thereafter, the portion of the judgment holding Coleman liable for attorney’s fees was stricken. The court denied any offset for use and depreciation, and dismissed all third party demands.

Each defendant appealed. Subsequently, Fleetwood and Chrysler were dismissed upon joint motions of the parties. As a result, the only issues before the court are those presented by Coleman, to-wit:

1. The trial court erred in granting relief in a redhibitory action inasmuch as all defects had been corrected prior to suit.
2. The trial court erred in awarding $3,000 in damages because there was no evidence of the cost of the repairs or to repair. Further, there was no proof of the value of the vehicle in the condition in which it existed at the time suit was instituted or at trial.
3. The trial court erred in refusing indemnification to Coleman against Fleetwood.

The record supports the trial court’s conclusions that a reduction in price was warranted and that the defendants were equally liable therefor. Further, there is no showing that the trial court abused its discretion in setting the award. We affirm.

On November 2, 1979, the Griffins purchased a motor home from Coleman for $17,278.00. The evidence reflects that at the time of sale, the Griffins pointed out several defects which Coleman agreed to fix and did not. Shortly after purchase, the vehicle was beset with a myriad of defects, including problems with the air conditioner, leaks from the roof vents, overheating, and various other items. The unit was never in for repairs for less than a week and was usually kept for two weeks. On the last occasion, because of Fleetwood’s error in sending a roof panel, the motor home was retained more than three months. It was not until after suit was filed that this part was installed.

ASSIGNMENT OF ERROR NO. 1

Coleman contends that the trial court erred in granting relief because all the defects were corrected prior to suit.

Upon an inspection of the motor home in question, the trial court found that most of cosmetic problems with the interior of the coach had been cured, and it concluded that the evidence established that the overheating problem had been corrected. However, the trial court also found that roof panel repairs were not made until after suit was filed. Therefore, Coleman’s assertion that all the defects had been corrected prior to suit is without merit. (Emphasis added).

With respect to this assignment of error, Coleman argues additionally that an action in redhibition must be based on vices or defects which existed at the time of sale and, therefore, vices which occur at some later date cannot form the basis of an action in redhibition.

It is true that the buyer who institutes the redhibitory action must prove that the vice existed before the sale was made to him. C.C. art. 2530. Further, a defect is presumed to have existed before the sale if it manifests itself within three days immediately following the sale. C.C. art. 2530. Later appearing defects do not enjoy that status as a matter of law. However, our jurisprudence has provided that, in the absence of other explanations, later appearing defects may be inferred to have pre-existed the sale, when such defects do not usually result from ordinary use. Perrin v. Read Imports, Inc., 359 So.2d 738, 739 (La.App. 4th Cir.1978). See also Moreno’s, Inc. v. Lake Charles Catholic High Schools, Inc., 315 So.2d 660 (La.1975); Ball v. Ford Motor Company, 407 So.2d 777 (La.App. 1st Cir.1981). This contention is also without merit.

ASSIGNMENT OF ERROR NO. 2

Coleman argues that the trial court erred in awarding $3,000 in damages because there was no evidence of the cost of repair or to repair. Further, Coleman claims there was no proof of the value of the vehicle in the condition in which it existed at either the time suit was instituted or at trial.

The reduction in price which the trial court may decree under C.C. art. 2541, et seq. is the difference between the sale price and the price a reasonable buyer and seller would have agreed upon if they had known of the defects. Ball, supra; Menville v. Stephens Chevrolet, Inc., 300 So.2d 858 (La.App. 4th Cir.1974), writ denied, 303 So.2d 186 (La.1974). One of the principal elements in formulating the reduction of the sale price is the cost of the repairs. However, a greater reduction is warranted when the defects are numerous and the repairs lengthy and frequent. This is so because a forewarned buyer would not reasonably pay the full price, reduced only by the cost of the repairs, if he knew the extensive repairs of the defects would significantly curtail his use and cause him considerable inconvenience and aggravation. Menville, supra.

The trial court relied specifically on Menville, supra in determining the amount of the award. It concluded that not only was there an inordinate number of defects but that those responsible under the warranties (Coleman and Chapman Dodge) kept the unit for excessive periods of time for relatively simple repairs. Particularly, it noted that the unit was kept for three months and suit instituted before the roof panels were installed. The lower court also pointed out the numerous times the unit was brought in for repairs and the inconvenience resulting therefrom.

Coleman has failed to demonstrate that the trial court abused its discretion in setting this award. In the absence of such a showing, the trial court’s award should be upheld.

ASSIGNMENT OF ERROR NO. 3

Coleman contends that the trial court erred in refusing Coleman indemnification against Fleetwood.

C.C. Art. 2531 provides that when the seller is held liable because of redhibitory defects in the thing sold, he shall have a corresponding and similar right to action against the manufacturer of the thing for any losses sustained by him. However, this right to claim indemnity has been tempered somewhat by the jurisprudence.

Indemnification has been denied when the dealer has made no serious effort to correct the defects or call upon the manufacturer for assistance. Bagwell v. Coleman Oldsmobile, Inc., 391 So.2d 1260 (La.App. 1st Cir.1980). Also, it has been denied on the basis of the dealer’s tardiness in repairing the vehicle and notifying the owner of the progress of the repairs, even though the defects arose at the time of and were attributable to the manufacturer. Lehn v. Clearview Dodge Sales, Inc., 400 So.2d 317 (La.App. 4th Cir.1981), writ denied, 406 So.2d 608 (La.1981).

The trial court noted specifically that Coleman was dilatory in repairing the Griffins’ motor home. Further, the trial judge concluded that Coleman was “equally liable” with the manufacturers for damages in quanti minoris. These are factual findings of the court and should not be disturbed by the appellate court absent a showing of manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), rehearing denied, January 26, 1979. We find no such error. Therefore, Coleman is not entitled to indemnification.

For the foregoing reasons, the judgment of the trial court is affirmed. Appellant is to pay all costs of this appeal.

AFFIRMED.

      . The trial court held the defendants liable under the theory of quanti minoris. Under C.C. 2544 an action for reduction of the price is subject to the same rules and to the same limitations as the redhibitory action.

      . As a result of plaintiffs’ allegations, Coleman filed a third-party demand against Chrysler and Fleetwood. In turn, Fleetwood third-partied Coleman and Chrysler.


source: Caselaw Access Project

author: LEAR, Judge.

license: Public Domain

text:
    Maurice STAFFORD v. DOW CHEMICAL CORPORATION and Aetna Life and Casualty Company.
    No. 82 CA 0231.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.
    Writ Denied Feb. 23, 1983.
    Michael J. Samanie, Houma, for plaintiff and appellant.
    Sidney L. Patin, Houma, for defendants and appellees.

      Before COVINGTON, LEAR and LANIER, JJ.
   LEAR, Judge.

This is a suit seeking the enforcement of a settlement agreement allegedly entered into between plaintiff, Maurice Stafford, and defendants, Dow Chemical Corporation and Aetna Life and Casualty Company, in settlement of plaintiff’s workmen’s compensation claim. The trial court sustained defendants’ exception of lis pendens and dismissed plaintiff’s suit. This devolutive appeal followed.

After reviewing this entire record, the briefs of the parties and the relevant jurisprudence, we find that the trial court was correct in the judgment appealed from. The facts and relevant principles of law are well set forth by the trial court in its reasons for judgment, the pertinent portions of which we quote as follows:

“On October 6, 1976, plaintiff, Maurice Stafford, while in the course and scope of his employment with Dowell, Inc., was injured .when a truck in which he was riding was struck from the rear by Mr. Eric Robertson. Mr. Stafford suffered neck, shoulder, and back injuries which allegedly rendered him totally and permanently disabled.
“On January 5, 1977, plaintiff filed a civil suit against the tortfeasor, Mr. Eric Robertson, and his insurer, State Farm Insurance Company (# 49,585) in the 32nd Judicial District Court, Parish of Terrebonne, notifying the defendants in the instant case of the pending litigation. Defendants did not intervene in the civil suit.
“On October 26, 1977, judgment was rendered in Mr. Stafford’s favor against the tortfeasor and his insurer. Subsequently, Aetna Life and Casualty Company on December 8, 1980, discontinued workmen’s compensation benefits to Mr. Stafford, claiming the right to credit compensation benefits from the judgment rendered against Mr. Robertson and his insurer.
“On January 9, 1981, plaintiff, Maurice Stafford, filed a petition for workmen’s compensation benefits in the 32nd Judicial District Court, Parish of Terrebonne, (# 63,444) entitled ‘Maurice Stafford vs. Dow Chemical Corporation and the Aetna Life and Casualty Company.’
“The defendants, Dow Chemical Corporation and the Aetna Life and Casualty Company, filed a dilatory exception of prematurity, which was heard by the Honorable Judge Wilmore J. Broussard, Jr. on May 5, 1981. Judgment was rendered in defendants’ favor on May 19, 1981. Plaintiff, Maurice Stafford, subsequently filed for appeal to the First Circuit Court of Appeal to review the decision of the Honorable Judge Wilmore J. Broussard, Jr. in suit # 63,444. This matter is still pending.
“Subsequently, on June 24, 1981, plaintiff, Maurice Stafford, filed the instant suit in the 32nd Judicial District Court, Parish of Terrebonne, State of Louisiana, entitled ‘Maurice Stafford vs. Dow Chemical Corporation and the Aetna Life and Casualty Company,’ suit # 65,132. The suit is captioned ‘Petition to Enforce Settlement.’ Plaintiff claims a settlement agreement was entered into and accepted by both the defendant, Aetna Life and Casualty Company, and the plaintiff, Maurice Stafford, in the sum of $40,000.00.
“The defendants, Dow Chemical Corporation and the Aetna Life and Casualty Company, have filed an exception of lis pendens claiming that Mr. Stafford’s workmen’s compensation suit # 63,444 and his petition to enforce settlement suit # 65,132 are between the same parties, in the same capacities, on the same cause of action, and have the same object.
“Louisiana Code of Civil Procedure Article 531 provides:
“ ‘When two or more suits are pending in a Louisiana Court or Courts, on the same cause of action, between the same parties in the same capacities, and having the same object, the defendant may have all but the first suit dismissed by excepting thereto.... ’
“Plaintiff argues that in the instant case, the cause of action and the object of the two litigations are not the same. This Court cannot agree with plaintiff’s contentions.
“Admittedly, the prayers of the two petitions differ. In the first suit (# 63,-444) plaintiff prays for $95.00 per week compensation benefits, plus penalties of 12%. In the second suit plaintiff prays for the enforcement of a settlement in the full amount of $40,000.00, with legal interest from date of judicial demand, together with attorney’s fees.
“However, in the earlier case, as well as in the instant case, the cause of action and the thing demanded are in fact one and the same, to wit, workmen’s compensation benefits. The method of payment sought may differ. For example, in the first suit weekly installments are sought and in the instant suit, a lump sum is sought; but the object of the suit and the cause of action lie in workmen’s compensation. The rights and remedies of a worker under the Louisiana Workmen’s Compensation Act are exclusive of all other rights and remedies of such employee (LSA R.S. 23:1032). The plaintiff in the instant case seeks to enforce his alleged rights to workmen’s compensation benefits in two separate suits. Both petitions allege injury in the course and scope of employment and a claim to workmen’s compensation. A granting of either relief would exclude a judgment for the other. There is no doubt that the object of both suits is the same, that, is workmen’s compensation benefits. There is a distinction between this case and Bank of New Orleans and Trust Company v. Seavey, (La.App. 4th Cir., 1979), 374 So.2d 696. In Seavey, the Court found two separate causes of action, one in Federal Court based on the Securities Act of 1933, and the other a cause of action on a promissory note in the Louisiana Court. There is no such difference in the instant case.”

For the above reasons, which we adopt as our own, the judgment of the trial court is hereby affirmed. All costs, both at trial and on appeal, are to be paid by plaintiff-appellant, Maurice Stafford.

AFFIRMED.


author: WATKINS, Judge.

text:
    Robert A. MARIE, et al. v. CASUALTY RECIPROCAL EXCHANGE, et al.
    No. 82 CA 0232.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.

      Ernest A. Kelly, Houma, for plaintiffs and appellees.
    Wood Brown III, New Orleans, for defendants and appellants.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   WATKINS, Judge.

This is an action for death benefits brought by Robert A. Marie and Sherrlyn Dupre Marie under the Workmen’s Compensation statute. The trial court rendered judgment awarding the plaintiffs, surviving parents of decedent, the sum of $20,000. each as death benefits for the death of their son, Timothy J. Marie. Additionally, the sum of $3,000. was awarded the parents jointly for reasons not made clear by written reasons for judgment, but which defendant’s brief states was awarded for burial expenses. Attorney’s fees and penalty were denied. Defendant appealed and plaintiffs have answered the appeal, seeking penalty and attorney’s fees as well as damages for frivolous appeal.

We have thoroughly reviewed the record and the applicable law and find the trial court well sets forth the facts and issues of law and properly renders decision therein in written reasons for judgment, which are adopted as this court’s decision and quoted in full:

“This is a case in workman’s (sic) compensation filed by the surviving parents of Timothy Marie, a 19-year-old employee of Marie’s Auto Parts No. 1, who was fatally injured in a one car accident on April 21, 1981, at approximately 3:30 P.M.

The accident was investigated by State Trooper John B. Matte, whose deposition was admitted into evidence subject to objection of counsel for plaintiffs. Trooper Matte arrived on the scene at 4:18 P.M., by which time Timothy Marie was on the grass near the vehicle and was being treated by personnel from Acadian Ambulance. The trooper did not get close enough to the victim to make any personal observations of him. Timothy Marie was transported to Terrebonne General Hospital where he died sometime the same afternoon. An autopsy was performed.

The accident occurred while Timothy Marie was driving north on La.Hwy. 56 near the residence of Mr. Calvin Martin, who was a witness to the accident and was called by the defendants as a witness at trial.

La. 56 is a two-lane, undivided highway which passes through Chauvin, Louisiana. At the point of the accident, this is a mixed residential/commercial area.

The state trooper’s investigation of the scene of the accident established that the youth had been driving on the 12-foot, loose shell shoulder of the road for approximately 500 feet before his vehicle left the shoulder. The vehicle traveled 119 feet before jumping a ditch (width undetermined) and hitting a cement culvert marker on the north edge of the ditch. It then struck a tree 35 feet north of the ditch. Point of impact on the vehicle was midway on the right side with the car facing west. The impact spun the car around the tree until it came to rest facing east on the opposite side of the tree.

Mr. Calvin Martin, who was in his yard prior to the accident, testified that his first observation consisted of seeing a ‘cloud of dust’ on the shoulder about 200 feet from him. He moved out of the way to avoid being hit.

Plaintiff, Robert Marie, testified that shortly before the accident he had sent his employee/son to LeCompte’s Hardware to get some links or shackles for use on the job they were performing that afternoon at the business.

Timothy told him he was going to use his own car instead of a company truck because he needed to get gas and some fried chicken at Danny’s.

Mr. Marie testified he had strict rules about drinking on the job because the employees had to drive company vehicles. He said Timothy had not been drinking that afternoon.

Two other witnesses were called by the plaintiffs: (sic) Mr. Thomas T. Hargrove, an employee at Marie’s Auto Yard; and Mr. Wayne Ledet, a former policeman who was just visiting at the business the afternoon of the accident. Both men verified Mr. Marie’s testimony that Timothy had been sent on a company mission and that Timothy did not appear to have been drinking that afternoon. Mr. Ledet stated he and Timothy talked alone for ten to twenty minutes before Timothy left on the business errand.

The defendants called Mr. William M. Bessey, a Crawford and Company investigator who had been assigned to investigate the claim. His testimony verified the negative return on defendant’s subpoena duces tecum to LeCompte’s for purchases for Marie’s on April 21,1981; he said the people at LeCompte’s had not seen Timothy that afternoon. Trooper Matte’s inspection of the interior of the vehicle was also negative— there were no liquor bottles or food containers.

The defendants also called Dr. Monroe Samuels, who was qualified as an expert pathologist. Dr. Samuels, who performed the autopsy, testified that the victim’s blood sample showed a reading of .11 alcohol content. He further testified that the medical records furnished him by the hospital showed that Timothy had been given infusions of Ringers solution; he estimated at least 2 liters. His medical opinion was that the solution tends to lower the alcohol content rating of the blood.

Prior to trial, counsel for both parties stipulated to the following limitation of issues in this case:

1. Was Timothy Marie working within the course and scope of his employment at the time of his death?
2. Was Timothy Marie intoxicated at the time of his death? And, if so:
a. Was that intoxication the proximate cause of his injury? and,
b. Is intoxication a bar to the claim of plaintiffs to the statutory compensation benefits under Louisiana law?

1. In a workman’s (sic) compensation case, the claimant has the burden of proving that the injury occurred while the employee was within the course and scope of his employment. The testimony of plaintiffs three witnesses was sufficient to carry this burden, as they all said Timothy left the yard on an errand for the business.

However, plaintiffs proof is subject to rebuttal by defendants, at which time the burden shifts to defendant to prove that the employee deviated from the business mission, the standard ‘detour’ theory. The testimony of plaintiff’s witnesses established that Timothy intended to get gas and some fried chicken. However, there was no proof that he stopped for either of these two purchases prior to the accident. The only thing defendant has proved is that the youth did not reach LeCompte’s. Defendant urges that because Timothy was travel-ling north on La. 56, away from LeCompte’s and toward Marie’s, this Court should conclude that he deviated from his mission. There is no proof in the record from which such a conclusion can be drawn, such as a showing of locations of gas stations or Danny’s. The youth could have decided to return to Marie’s for some business-related reason prior to proceeding on to Le-Compte’s. This Court, therefore, holds that plaintiff has made a prima facia (sic) showing that the employee was in the course and scope of his employment, and that the defendant has failed to carry its burden of proof that the employee deviated from that course and scope.

2. Because of the .11 alcohol-level reading of the blood sample and the expert testimony that the Ringers solution administered to the victim would tend to lower that reading, this Court concludes that it is more probable than not that Timothy Marie was under the influence of alcohol at the time of the accident.

2. a) & b) Intoxication is a legitimate defense in a workman’s (sic) compensation case.

LSA R.S. 23:1031 provides in pertinent part:

‘If an employee not otherwise eliminated from the benefits of this Chapter receives personal injury by accident arising out of and in the course of his employment, his employer shall pay compensation in the amounts, on the conditions, and to the person or persons hereinafter designated.’
LSA R.S. 23:1081 further provides that: ‘No compensation shall be allowed for an injury caused by: ... (2) by the injured employee’s intoxication at the time of the injury.
In determining whether or not an employer shall be exempt from and relieved of paying compensation because of injuries (sic) sustained by an employee for the causes and reasons set forth in this section, the burden of proof shall be upon the employer.’

Although this Court has found that Timothy Marie was probably under the influence of alcohol at the time of the accident, the defendant has failed to carry its further burden of proving that the fatal injury was caused by Timothy’s intoxication, which burden is established in LSA R.S. 23:1081, supra.

Neither the jurisprudence nor the facts of this case permits defendant to rest on the presumption of LSA R.S. 32:662, which is inapplicable in civil cases. The Supreme Court in Parker v. Kroger’s, Inc. 394 So.2d 1178 (La., 1981) looked to evidence beyond the mere blood sample, such as the testimony of a competent expert witness, to interpret effect of such level on a person’s ability to operate a motor vehicle. Although the defendant in the instant case attempted to elicit such information from Dr. Samuels, the expert witness was careful to point out that the effects of a .11 reading, such as impairment of visual and motor coordination and increased reflex time, vary from individual to individual. Furthermore, the testimony of the three witnesses who were with the decedent shortly before the accident dictates against the degree of intoxication of the victim creating a (sic) impairment sufficient for a finding by this Court that the intoxication caused the injury. O’Neal v. Home Insurance Company (La.App. 2nd Cir., 1981) 404 So.2d 1355. It is improbable that a former police officer and a friend of the decedent would not have objected to decedent’s driving if he had been obviously impaired because of the alcohol.

Unlike the Parker case, supra, there was no evidence of decedent’s drinking — other than the blood count — prior to the accident, such as an admission by plaintiff’s witnesses, evidence of alcohol on the employee’s breath, or evidence of liquor containers in the vehicle.

This Court holds that the defendant has failed to carry the burden of proof established by LSA R.S. 23:1081, because the prima facia (sic) proof of the .11 alcohol content of the blood was successfully refuted by the testimony of plaintiff’s witnesses. Therefore, the ruling of this Court is that the intoxication of the employee was not the proximate cause of his injury. Therefore such intoxication does not bar plaintiff’s claim.

Defendant’s defense of intoxication was a serious issue about which reasonable minds could differ. Defendant was entitled to rely on the autopsy report of a .11 blood alcohol level. Defendant was not arbitrary, capricious, or unreasonable in its refusal to pay this claim. Plaintiff’s demand for penalties and attorney’s fees will be denied.

Judgment will be rendered accordingly.”

Because the trial court found that Timothy Marie was probably under the influence of alcohol, we find that appellant’s contention that Timothy Marie was intoxicated and that this intoxication caused the accident was not without merit, although we agree with the trial court’s written reasons for judgment. We, therefore, deny damages for a frivolous appeal.

The judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.


author: SHORTESS, Judge.

text:
    Colleen MADERE and John A. Lingo v. Ellen M. COLE.
    No. 82 CA 0233.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.

      Guy A. Módica, Baton Rouge, for plaintiffs-appellants.
    Doris Gates Rankin, Baton Rouge, for defendant-appellee.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   SHORTESS, Judge.

Colleen Madere and John A. Lingo (plaintiffs) filed suit against Ellen M. Cole (defendant) for the purchase price of a poodle puppy ($350.00), or alternatively, for dissolution of the sale and return of the puppy. The trial judge found that ambiguity existed in the sale and applied La.C.C. art. 2474 in construing said ambiguity against the sellers (plaintiffs), and awarded them $150.00.

Plaintiffs agreed to provide a stud for defendant’s female poodle. The fee for this service was to be $150.00 cash in advance, or the pick of the litter. The litter consisted of two puppies, but one died. When the surviving puppy was six or seven weeks old, defendant brought it to the plaintiffs, but expressed a desire to keep the puppy. She was told that the puppy would ordinarily be sold for $350.00; but that since she owned the puppy’s mother, she could purchase it for $250.00. Defendant wrote a check for $250.00 and left with the puppy. That evening she telephoned plaintiffs and told them that her husband would not let her pay $250.00. Plaintiff Colleen Madere told her she could return the puppy and receive her money back. However, defendant did not want to return the puppy. Instead, she stopped payment on the $250.00 check and mailed another check for $150.00. Plaintiffs never negotiated the second check and filed suit.

Plaintiffs have assigned the following errors: (1) the trial court erred in failing to find that a valid contract of sale was perfected; (2) the trial court erred in not enforcing said contract of sale; and (3) the trial court erred in finding that ambiguities existed in the agreement and in construing same against them.

Before this controversy can be resolved, an analysis must be made of the agreements between the parties. Two distinct agreements are involved.

The parties first entered into a synallag-matic or bilateral contract involving stud services. La.C.C. art. 1765. The parties had correlative obligations: (1) the defendant was obligated to either pay $150.00 or surrender the pick of the litter; and (2) the plaintiffs were obligated to provide a stud for the female poodle. The defendant’s obligation was alternative. La.C.C. art. 2066. The initial option belonged to defendant. La.C.C. art. 2068. Because defendant did not pay $150.00 in advance, she apparently chose to discharge her obligation by delivering the pick of the litter. La.C.C. art. 2067. Defendant argued that she did not know she had to give the $150.00 in advance. However, her testimony revealed that she understood that she was to bring the litter in at six weeks so that plaintiffs could choose the puppy they wanted:

“Q But when you left after having your dog bred, you were under the impression that you were to bring that dog back in six weeks so that they could have the pick of the litter, is that correct?
A Right, uh-huh.”

When defendant did not pay the $150.00 in advance, plaintiffs assumed that she chose to discharge her obligation by allowing them to have the pick of the litter. Defendant testified several times that this was her understanding. Thus, defendant’s obligation could only be extinguished by allowing plaintiffs to keep the puppy of their choice. The choice belonged to plaintiffs. La.C.C. art. 2068. No ambiguity resulted when only one puppy survived. The obligation became pure and simple. La.C.C. art. 2070. Since one of the two puppies died without the fault of defendant, plaintiffs were obligated to accept the surviving puppy in satisfaction of the obligation. La. C.C. arts. 2071, 2072. Thus, the surviving puppy belonged to plaintiffs prior to the time that the second contract was perfected.

The second contract was one of sale:

“The contract of sale is an agreement by which one gives a thing for a price in current money, and the other gives the price in order to have the thing itself.
“Three circumstances concur to the perfection of the contract, to wit: the thing sold, the price and the consent.” La.C.C. art. 2439
“The sale is considered to be perfect between the parties, and the property is of right acquired to the purchaser with regard to the seller, as soon as there exists an agreement for the object and for the price thereof, although the object has not yet been delivered, nor the price paid.” La.C.C. art. 2456

When defendant gave plaintiffs a check for $250.00 and took the puppy home, a contract of sale was perfected.

No ambiguity existed in this sale. When the sale took place, any alleged ambiguity in the prior agreement was irrelevant because the parties consented to the thing (the puppy) and the price ($250.00). La.C.C. art. 2439. The obligations of the seller were clear. La.C.C. art. 2474. Therefore, the trial judge erroneously found that ambiguities existed in the sale and erroneously construed said ambiguities against plaintiffs.

Once the contract of sale had been perfected, defendant was obliged to pay the price. La.C.C. art. 2549. When she failed to do so, plaintiffs were entitled to sue to either compel the payment or to dissolve the sale. La.C.C. arts. 2551, 2561, 2564. We find that the appropriate remedy is to enforce payment of the purchase price. Therefore, the judgment of the trial court is amended, and plaintiffs are awarded $250.00. All costs of this appeal are taxed to defendant.

AFFIRMED, AS AMENDED.

      . The verbal sale of a movable is valid. La.C.C. art. 2441.

      . Defendant’s testimony was inconsistent. At time she stated that she thought she could still pay $150.00 after the puppies were born. However, she also repeatedly said that her understanding was that she was to allow plaintiffs to retain their choice from the litter.


author: COVINGTON, Judge.

text:
    INSURED LLOYDS INSURANCE COMPANY v. SOUTH COAST GAS COMPANY, INC., et al.
    No. 82 CA 0241.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.
    Joseph A. Reilly, Jr., Houma, for plaintiff-appellant Insured Lloyds Ins. Co.
    Frederick P. Heisler, New Orleans, for plaintiff-appellant Helen D. Galjour.
    E. Phelps Gay, New Orleans, for defendants-appellees South Coast Gas Co., Inc., et al.
    Before COVINGTON, LEAR and LANIER, JJ.
   COVINGTON, Judge.

This case is before the court on an appeal of a summary judgment granted in favor of South Coast Gas Company, Inc., who was sued by Insured Lloyds Insurance Company and Mrs. Helen D. Galjour for damages arising out of the rupture of a gas service line and subsequent explosion and fire which destroyed Mrs. Galjour’s mobile home in Galliano, Louisiana, on June 22, 1979.

In 1951, South Coast Gas Company laid the service line which was ruptured. It was buried 12 to 18 inches deep on property located at the corner of Louisiana Highway 1 and West 138th Street in Galliano, with the line extending at a right angle from the main line which ran along Highway 1. The residence of Remis Lafont was serviced by this line. Subsequently, South Coast installed another main line along West 138th Street. Lafont built a restaurant and bar which was serviced by the new line, although the building was located over the 1951 service line. Later the restaurant and bar was sold to the father of Mrs. Galjour by Lafont. In 1978, following her father’s death, Mrs. Galjour bought her coheirs’ interest in the business. She then moved a mobile home onto the property adjacent to the business premises; and it too was over the 1951 service line. At this time she did not obtain additional service from South Coast; instead, she had a temporary line rigged up from the hot water heater in the restaurant and bar to the mobile home.

While digging a cesspool near the Galjour mobile home, Harris Compeaux, a backhoe operator hired by Alvin Devillier, Mrs. Galj-our’s brother, struck a gas line with his backhoe. Believing the line to be “dead”, Compeaux and Devillier attempted to remove it. During this operation, the gas line ruptured and caused an explosion and fire which destroyed the mobile home and its contents. Insured Lloyds Insurance Company paid Mrs. Galjour the sum of $19,-218.64 for the loss of the mobile home under its policy. Thereafter, the insurer and Mrs. Galjour sued in separate suits to recover their respective losses.

To the suits, South Coast filed motion for summary judgment. In granting the motion, the trial judge considered an affidavit of Wade Guidry, technical supervisor of the company, to the effect that:

1. The service line which was pulled up by the backhoe was installed prior to any building or structure was placed over the line.
2. Upon notice, the company locates its service lines; and relocates them at company cost when necessary.
3. There is no requirement that service lines be marked on the ground with line markers.
4. The service line which was ruptured by the backhoe had been buried at a proper depth in accordance with federal regulations.
5. South Coast had conducted leak detection surveys at proper intervals pursuant to federal regulations.
6. A cement porch had been constructed after the installation of the gas line, which hid the gas meter and rises from view.
7.There was no activity of South Coast in the area at the time which in any way contributed to the cause of the explosion and fire and resulting damage.

The trial judge found that there was no breach of duty owed by South Coast to the plaintiffs. The trial court considered that the sole proximate cause of the incident was the negligence of Compeaux and Devil-lier, Mrs. Galjour’s agents, in being content merely to shut off the gas meter, and making no effort to notify the gas company prior to their undertaking the backhoe operation.

Prom the uncontroverted facts before us, we can reach no conclusion but that South Coast was guilty of no negligence and that the explosion and fire which caused the damages complained of was due solely to the combined negligence of Compeaux and Devillier, as, explained above.. Therefore, we agree with the trial judge that there was no genuine issue of material fact; thus, South Coast is entitled to judgment as a matter of law. LSA-C.C.P. art. 966; Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976).

For the reasons assigned, the judgment in favor of South Coast Gas Company, Inc. and against plaintiff, Insured Lloyd Insurance Company, granting defendant’s motion for summary judgment and dismissing plaintiff’s suit with prejudice is affirmed at appellant’s cost.

AFFIRMED.

      . The suit brought by Mrs. Helen D. Galjour was consolidated with the instant case on motion of defendant, South Coast Gas Company, Inc., and one judgment was rendered in the consolidated suits in the court below.


text:
    Helen D. GALJOUR v. SOUTH COAST GAS COMPANY, INC., et al.
    No. 82 CA 0242.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.
    Joseph A. Reilly, Jr., Houma, for plaintiff-appellant Insured Lloyds Ins. Co.
    Frederick P. Heisler, New Orleans, for plaintiff-appellant Helen D. Galjour.
    E. Phelps Gay, New Orleans, for defendant-appellee South Coast Gas Co., Inc., et al.
    Before COVINGTON, LEAR and LANIER, JJ.
   COVINGTON, Judge.

For the reasons stated in the companion case of Insured Lloyds Insurance Company v. South Coast Gas Company, Inc., 424 So.2d 1128 (La.App. 1st Cir.1982), in which a separate decision has been rendered by us on this date, the judgment appealed herein granting defendant’s motion for summary judgment and dismissing the suit of Helen D. Galjour, the plaintiff, with prejudice is affirmed at appellant’s cost.

AFFIRMED.


author: LANIER, Judge.

text:
    Judith Cheryl DURBIN v. W.T. DURBIN, Jr.
    No. 82 CA 0243.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.

      Walton J. Barnes, Baton Rouge, for plaintiff — in rule appellant W.T. Durbin, Jr.
    James Don Thomas, III, Baton Rouge, for defendant — in rule appellee Judith Cheryl Durbin.
    Before COVINGTON, LEAR and LANIER, JJ.
   LANIER, Judge.

This is a rule to terminate permanent alimony and reduce child support payments. After the husband (plaintiff-in-rule) completed the presentation of his evidence, the wife (defendant-in-rule) made a motion for a directed verdict which was granted by the trial court. La.C.C.P. art. 1810(B). This devolutive appeal followed.

I. FACTS

Judith Cheryl Durbin and W.T. Durbin, Jr. were married on June 4, 1966. Two children were born of this marriage — Cheryl D’Shea Durbin on May 2, 1969, and Andrea Michelle Durbin on October 20, 1976. The Durbins physically separated on December 1, 1978. On September 18, 1979, Mrs. Durbin obtained a judgment of separation. Alimony pendente lite and child support payments were established by the consent of the parties at $1,000 every two weeks. The sum of $500 was designated for alimony pendente lite and child support payments were fixed at $250 for each child. In October of 1979, the Durbins entered into a community property settlement agreement which contained a provision continuing the previous agreement for payment of alimony pendente lite and child support and provided that “(A)limony shall be payable until the death of either party or the remarriage of the First Party [Mrs. Durbin], whichever first occurs, but shall be subject to judicial review should the need therefor arise.”

On February 6,1980, Mr. Durbin obtained a judgment of divorce which perpetuated the prior agreement for alimony and child support. Apparently, shortly thereafter in either February or March of 1980, Mr. Dur-bin remarried.

On March 4,1981, Mr. Durbin filed a rule to terminate permanent alimony and reduce child support alleging that Mrs. Durbin was employed, had sufficient means for her support, and that his income had substantially decreased since the date of the divorce. At the hearing of this rule on March 26, 1981, Mrs. Durbin introduced evidence to show that her net monthly income from her job, her alimony and child support payments and the assets that she obtained in the community property settlement was $2,686.04 and that her monthly expenses were $2,840.83. Mr. Durbin testified that during 1979 and 1980, he earned more than $100,000 per annum. However, effective March 1, 1981, he left his job because the stress of the job caused him to have high blood pressure. He felt the change was necessary for his health. Mr. Durbin purchased a 125 acre farm on which he would raise cows and breed dogs. He indicated that his income was uncertain, but that he expected to receive $15,000 during 1981 from the farm. Mr. Durbin introduced evidence indicating that his monthly expenses were $2,946. The trial judge found that the uncorrorborated statement of Mr. Durbin concerning his health did not justify a change of employment and that he failed to prove a change of circumstances sufficient to warrant a modification of the prior alimony and child support judgment. This ruling by the trial court was not appealed and became final.

On August 3, 1981, Mr. Durbin filed the instant rule to terminate alimony and reduce child support. This rule alleged that the circumstances of the parties substantially and materially changed because Mrs. Durbin was gainfully employed at a higher salary, that she had additional independent means of support, that his health had deteriorated to the point that his earning capabilities were diminished appreciably and he was unable to pay the alimony and child support as ordered. The hearing on this rule was held on December 15, 1981. At this time, Mr. Durbin testified that he was being paid $1,000 per week by his previous employer on the purchase price of his stock in the company and for consulting services. He purchased the 125 acre farm for $212,-000. He also purchased a feed store for $200,000, by making a down payment of $65,000 and signing a note for $135,000. He projected his gross income for 1981 at $65,-675 and his net income at $53,675. He calculated that his farm expenses would run $19,850, leaving a disposable income of $33,-825 ($2,819 per month). He indicated that he had personal expenses of $3,245 per month. Mrs. Durbin’s testimony indicated that her circumstances were essentially the same in December of 1981 as they were in March of 1981 with the exception that she had a raise on her salary of approximately $75 per month. Mr. Durbin’s doctor testified that he did not tell Mr. Durbin to change jobs and that Mr. Durbin’s blood pressure problem was under control when he was last examined in the spring of 1981.

The trial judge held that a person cannot voluntarily leave gainful employment without good reasons solely for the purpose of defeating his alimony and child support obligations, that the medical evidence presented did not support the contention that Mr. Durbin’s health required his change of employment, and that there was no showing of any change in circumstances of such a nature as would warrant a modification of the judgment previously rendered.

II. NECESSITY TO SHOW CHANGE OF CIRCUMSTANCES

The community property settlement agreement provided that the consent agreement for alimony pendente lite and child support “shall be subject to judicial review should the need therefor arise.” The appellant argues that this language reserved to him the right to an initial adjudication of the alimony-support issue at anytime and released him from the requirement of showing a change in circumstances in order to secure a modification of those awards.

This contention is without merit. In Crum v. Crum, 330 So.2d 925 (La.App. 1st Cir.1976), the consent judgment reserved to each party the right to seek a change in alimony. This court held that this language in the consent decree did not change the legal rights of the parties, hut merely confirmed the right of the parties to seek a change granted by law. This court further held that a waiver of the requirement of proving a substantial change in circumstances to justify the modification of a prior alimony award must be express and unequivocal to be effective. Since the community property agreement in the instant case does not contain such an express waiver of this requirement, the appellant is not entitled to that benefit.

III. MODIFICATION OF ALIMONY AND CHILD SUPPORT AWARDS

To modify a judgment or a consent decree awarding alimony and child support, the party seeking to modify the awards bears the burden of showing that there has been a substantial change in circumstances of one, or both, of the spouses. La.C.C. arts. 160, 227 and 231; Ducote v. Ducote, 339 So.2d 835 (La.1976); Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973); DeMarcay v. DeMarcay, 414 So.2d 845 (La.App. 4th Cir.1982); Kirk v. Kirk, 413 So.2d 592 (La.App. 1st Cir.1982); Blondeau v. Blondeau, 396 So.2d 403 (La.App. 1st Cir.1981). The trial judge is given great discretion in either granting or modifying awards of alimony and child support and his judgment will not be set aside or amended unless a clear abuse of that discretion is shown. Oliver v. Oliver, 417 So.2d 1278 (La.App. 1st Cir.1982); Nelms v. Nelms, 413 So.2d 1341 (La.App. 1st Cir.1982), writ denied 415 So.2d 944 (La.1982). A parent and spouse will not be relieved of his obligation to support his children and pay alimony because of an unstable financial condition brought upon himself. Laiche v. Laiche, 237 La. 298, 111 So.2d 120 (1959); Ledet v. Ledet, 416 So.2d 1309 (La.App. 1st Cir.1982).

At the conclusion of the hearing held on December 15,1981, the trial judge rendered the following reasons for judgment from the bench:

“Now, we had a full blown hearing last March in this case, we devoted just about as much time to it then as we have devoted to it today. Mr. Durbin was given a full opportunity to fully present his case to show a change in circumstances. The court at that time found that he had voluntarily relinquished his employment to buy a hundred and twenty-five acre farm, out of which he was then proposed to make his living apparently, and the court held, and I think correctly so, that an individual cannot voluntarily leave gainful employment without good reason, solely for the purpose of avoiding or defeating alimentary obligations. Persons, of course, have the right to change careers. The court noted that at that time; but it is done for the purpose of hopefully thereafter improving your financial situation and not destroying it. And the court notes that no reference was made at that hearing to the fact that Mr. Durbin would receive a thousand dollars a week from his former employment. I don’t recall whether or not any reference was made to the feed store or not. I don’t have the benefit of that transcript before me. But, in any event, there was a full evidentary hearing relating to all factors incident to Mr. Durbin’s leaving the engineering company, except that the court excluded or did not consider anything— and on objection, did not permit any reference at that hearing to his physical condition, because it was a matter of a medical condition, and the court today wanted to give Mr. Durbin the benefit of a full hearing, anticipating that he would come forth on this occasion with some medical information which might warrant the court in concluding that it was necessary that he leave that employment. Since no medical evidence had been presented previously, the court felt as though, at least as a matter of equity, that he should be permitted to present to the court whatever medical information might be appropriate which might be evidence of the fact that he had to leave his employment for health reasons. He brought in his medical evidence today, but the medical evidence did not support his contention. The Doctor stated that he had made no recommendation that Mr. Durbin leave his employment. He further stated that he, on frequent occasions, did make such a recommendation to appropriate heart patients. Obviously the Doctor had benefit of a full history on Mr. Durbin. He didn’t feel as though such a recommendation was warranted under the circumstances.
“We have had a full hearing and the case is res judicata, as the court sees it, as of the March hearing, at least as to all issues relating to the reasons Mr. Durbin left his employment, except for the medical reasons, and the court has allowed further evidence on that. Mr. Durbin has not produced any evidence which would warrant the court in reaching any contrary conclusion; and further, as a matter of fact, the record now shows that as of today, Mr. Durbin, instead of surviving only on the farm, has an income of approximately sixty-five thousand dollars a year. So even if the court did conclude that there had been a change of circumstances, and even though the court was warranted in reviewing this matter again, the court will undoubtedly reach the conclusion and does reach the conclusion that even in that event, that Mr. Durbin should rearrange his finances so as to take care of his alimentary obligations. On a sixty-five thousand dollar a year income, he can certainly pay the amount of support that has heretofore been fixed. He gets the benefit of the exemption from taxes of the amount that is paid to his wife and he gets the dependents exemption for the amount that is paid to the children. Although he is paying his wife thirteen thousand dollars a year in alimony, she has to pay the taxes on that. He just takes that right off of the top of his income every year, he pays no taxes on it. If he is in a fifty percent bracket, that means it is costing him sixty-five hundred dollars a year to give her thirteen thousand. So the court does find, again, supplemental to the March hearing, that there has been no showing of any change in circumstances of a nature which would warrant the court in modifying this judgment. Mr. Durbin agreed to it, he has had opportunity of full hearings before the court, but the court just does not find there has been any change which would warrant the court in changing the amount that he agreed to and which was subsequently fixed by judgment of the court. The motion for a directed verdict is, therefore, granted.”

After reviewing the trial judge’s reasons for judgment, the transcripts of the contradictory hearings held in March and December of 1981, and the evidence submitted during these contradictory hearings, we are of the opinion that the trial judge did not abuse the much discretion afforded him by law.

IV. CONCLUSION

For the foregoing reasons, the judgment of the trial court is correct and is affirmed at the appellant’s costs.

AFFIRMED.


text:
    Marcus BATES v. INTERNATIONAL PAPER COMPANY.
    No. 82 CA 0248.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.

      Robert W. Drouant, New Orleans, for plaintiff-appellant.
    Charles M. Reid, Amite, for defendant-appellee.
    Before COVINGTON, LEAR and LANIER, JJ.
   COVINGTON, Judge.

This is a worker’s compensation suit. The district court found plaintiff failed to prove a compensable accident. Hence, the lower court did not reach the questions of disability or penalties and attorney fees. The plaintiff has appealed from the judgment denying him recovery and rejecting his demands.

The general facts are that plaintiff, Marcus Bates, was 24 years old and in good health and prior to the events at issue here had worked as a common laborer for several months with defendant, International Paper Company. On December 18, 1979, Bates was stacking a load of logs that had fallen from a railroad flatcar in the Osyka Woodyard of the company where he worked. During the stacking, a number of logs slid from the car, with one log striking him in the lower back, as Bates testified, or with none of the logs actually striking him, as the other witnesses testified, but forcing him to jump or leap out of the way in such a manner that he injured his back.

Immediately after the incident, Bates complained to Roderick Dykes, his supervisor, who witnessed the logs sliding off the car. After a brief period of time during which the supervisor was unable to arrange transportation to the doctor for him, Bates drove himself to Pike Memorial Hospital in nearby Kentwood, where he obtained medical treatment in the emergency room. Eleven days later he was admitted to the hospital with muscle spasms in his back, and was treated with traction and muscle relaxers. Dr. Carlton S. Faller, Bates’ physician, noted that Bates did not seem to respond to this treatment even though there were some conflicting indications from various examination procedures which were performed on the patient. Since Bates was released from the hospital on January 3, 1980, he has been unable to return to work.

In oral reasons stated at the conclusion of the trial, the district judge said that he doubted that Bates was injured on the job, placing great emphasis upon the facts that two witnesses did not see a log strike Bates and that the several doctors indicated different parts of Bates’ anatomy were injured by the log in the medical history portion of their reports. The trial judge was not satisfied that the activities of December 18,1979, resulted in any of the logs actually striking Bates, so he did not find an accident within the meaning of the Workmen’s Compensation Statute. We disagree.

LSA-R.S. 28:1021(1) defines “accident” as “... an unexpected or unforseen event happening suddenly or violently, with or without human fault and producing at the time objective symptoms of an injury.” Byrer v. Southern Baptist Hospital, Inc., 350 So.2d 1233 (La.App. 4th Cir.1977). If there is a suddenness either in the precipitating incident or in the manifestation of disability, the requirement of “accident” is satisfied. Self v. Riverside Companies, Inc., 382 So.2d 1037 (La.App. 2d Cir.1980), writ denied 385 So.2d 793 (La.1980); Francis v. Kaiser Aluminum & Chemical Corporation, 225 So.2d 756 (La.App. 4th Cir.1969).

We conclude that Bates suffered an injury arising out of and in the course of his employment. Although he received no blow or trauma if we accept the factual findings of the trial judge, he was injured because of physical stress or strain, without which he would not have a back injury. The injury was accidental because it was unexpected or unforeseen, happened suddenly or violently, and produced at the time objective symptoms of an injury. See Ferguson v. HDE, Inc., 270 So.2d 867 (1972).

On the specific issue of the causal connection between the accident and the disability, the claimant is entitled to the benefit of a presumption in certain cases. If an otherwise healthy worker suffers an accident at work and is thereafter disabled, it is presumed that there is a causal connection between the two, so long as the medical evidence establishes a reasonable possibility of such a connection. This presumption is not conclusive, but it forces the defendant to come forward with sufficient contrary evidence to rebut it. Allor v. Belden Corporation, 393 So.2d 1233 (La.1981); Herrin v. Georgia Casualty & Surety Company, 414 So.2d 1323 (La.App. 2d Cir.1982). The eye witness testimony offered by the defendant merely tends to show that a falling log did not actually strike Bates; such testimony in no way refutes the happening of the accident and the painful back injury sustained by plaintiff as a result of his attempt to dodge the falling logs. The medical evidence offered by defendant fails to rebut that offered by plaintiff tending to show that Bates suffered a severe back injury as a result of the accident. There is no evidence that plaintiff underwent any trauma between the time of the accident and the time he sought medical treatment (or the time of the trial, for that matter).

In the instant case the unrebutted evidence shows that plaintiff was in good health and had no problems with his back prior to the incident in question, but that back pain appeared immediately and after-wards he was frequently in severe pain. The medical evidence is clearly to the effect that the accident was at least a reasonably possible cause of the back condition which has been diagnosed. It was therefore error for the trial court to fail to apply the well-established presumption that such conditions are caused by the incidents which they follow. Lindsey v. H.A. Lott, Inc., 387 So.2d 1091 (La.1980); Dixon v. Ruby’s Inc., 389 So.2d 73 (La.App. 1 Cir.1980).

The fact that plaintiff’s co-workers had a different version of the incident in that they did not see a log strike the plaintiff or recall any specific injury to plaintiff at that time is not controlling. We do not consider it unusual that from different vantage points, eye witnesses would see diverse events transpire and have various impressions of the same incident. The fact that plaintiff experienced immediate pain in his back after manuevering in a twisting manner in an attempt to escape the falling logs necessitating him to seek medical attention in the emergency room of a nearby hospital is sufficient in our minds to support the conclusion that a disabling condition of the back immediately appeared following the accident.

We think a clear preponderance of the medical evidence shows that plaintiff was still totally disabled at the time of trial. A worker who cannot return to any gainful employment without suffering substantial pain is entitled to compensation benefits for total disability. LSA-R.S. 23:1221(2); Wilson v. Ebasco Services, Inc., 393 So.2d 1248 (La.1981). We do not find ourselves in conflict with the trial judge on this issue since he did not reach it. See Conner v. Travelers Insurance Company, 324 So.2d 903 (La.App. 3rd Cir.1975), writ denied 329 So.2d 454 (La.1976).

The final issue is whether plaintiff is entitled to penalties and attorney fees. There was a reasonable basis on which the employer could reach the conclusion that Bates had not been injured on the job. The crucial dispute was whether he had sustained a job-related injury. Considering the serious legal question of causation between employment and accident, and considering the facts of the case concerning the occurrence of the accident, we do not find that the defendant was arbitrary, capricious or without probable cause in its refusal to pay benefits until after the case had been tried and decided. Bartley v. Insurance Company of North America, 388 So.2d 461 (La.App. 2d Cir.1980). We find that penalties and attorney fees provided in LSA-R.S. 23:1201.2 are not warranted in the case.

Therefore, for the above and foregoing reasons, the judgment of the trial court is reversed, and judgment is rendered in favor of Marcus Bates so as to award the plaintiff total and permanent disability benefits at the rate of $136.14 per week commencing from December 18, 1979 for as long as the plaintiff’s disability continues, together with legal interest on all past due installments.

Additionally, plaintiff is awarded judgment against the defendant for all medical and incidental expenses up to the maximum sum provided by law with interest at the rate of 12% per annum from the date of judicial demand until paid. Plaintiff’s demand for penalties and attorney fees is rejected. All costs in the district court, including the fees of expert witnesses, and all costs of this appeal are assessed against the defendant.

REVERSED AND RENDERED.

       Sum is based on 66% of the average weekly wage of the employee. LSA-R.S. 23:1202. Employee averaged $5,105 per hour for 40 hour week.


text:
    Clifton E. CHISHOLM v. L.S. WOMACK, INC.
    No. 82 CA 0260.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.

      Hobart Pardue, Springfield, for plaintiff-appellee.
    Michael Caldwell, Baton Rouge, for defendant-appellant.
    Before COVINGTON, LEAR and LANIER, JJ.
   LANIER, Judge.

This is a suit for workmen’s compensation benefits and statutory penalties alleging that the plaintiff was totally and permanently disabled in a job related accident. The trial court rendered judgment in favor of the employee for compensation benefits for total temporary disability in the sum of $163 per week for the period of February 18, 1981 (the date of the alleged accident), through November 20, 1981 (the date of trial), a period of 39 weeks and 2 days, and assessed the employer with statutory penalties which included an attorney fee of $3,500. This suspensive appeal followed.

I. FACTS

On February 18,1981, the employee, Clifton E. Chisholm, was employed as a “pusher” of a five man crew with L.S. Womack, Inc. (Womack) and was engaged in cleaning a mud tank located in Morganza, Parish of Pointe Coupee, Louisiana. The men would enter the tank and clean for only five minutes at a time because of the noxious fumes inside the tank. Chisholm contends that he injured his back when he slipped on an iron rod on the inside of the tank. The men terminated work at 6:00 A.M. and Chisholm went home and slept until 2:00 P.M. He subsequently went to the Baton Rouge General Hospital for treatment on the evening of February 18, 1981, and remained in the hospital until he was discharged on February 21, 1981. Womack was contacted by the hospital to confirm insurance coverage on Chisholm and it refused to do so. Subsequently, Womack also declined to pay workmen’s compensation benefit payments to Chisholm and this suit followed.

II. WAS THERE A COMPENSABLE ACCIDENT?

At the trial, Chisholm testified that just prior to 6:00 A.M. on February 18, 1981, he slipped on an iron rod on the inside of the mud tank, but caught himself to keep from falling to the bottom of the tank. He felt a burning sensation in his back at that time. On direct examination, Chisholm contended that he was alone in the tank when he slipped. Chisholm was recalled to the stand and testified that possibly William Morris, a fellow employee, was in the tank with him at the time of the incident. Chisholm went directly from work to his home and slept from 6:30 A.M. until approximately 2:00 P.M. His back bothered him that afternoon and about 6:00 P.M., he went to C.J.’s bar to get some cigarettes and report the accident. At C.J.’s bar, Chisholm’s wife called the dispatcher for Womack to report Chisholm’s injury and to advise that he was going to the hospital for treatment. Chisholm stayed at the bar for another thirty minutes to an hour, but did not have anything to drink. He met another fellow employee, Mike Welch, at the bar and gave him some jumper cables to start his truck. Chisholm then left C.J.’s and went to the Baton Rouge General Hospital for treatment. Chisholm testified that he has not worked or attempted to work since that time because of pain in his back.

William Morris, a fellow employee, testified that he was in the tank with Chisholm and observed him slip on the day in question.

Gary O’Neil testified that he was a stockholder of and house counsel for Womack. The first notice that Womack got of the accident and that Chisholm was in the hospital was when the hospital called Wom-ack’s office to verify insurance coverage. At that point, Womack immediately instituted an investigation into the facts of the matter. O’Neil interviewed William Morris as part of this investigation. Morris advised him that he did not see the accident. O’Neil also interviewed the other members of Chisholm’s work crew and none were aware of any accident or injury. O’Neil reviewed the dispatcher’s log for the time period in question and there was no record of Mrs. Chisholm calling the dispatcher to report the accident or advising that Chisholm was going to Baton Rouge General Hospital for treatment.

Mike Welch, another fellow employee, testified that he saw Chisholm at CJ.’s bar (also known as Bubba’s) between 6:30 and 7:00 P.M. on the night in question. Chisholm was drinking little Miller beers and playing a bowling machine. Welch asked Chisholm to help him get his truck started. Chisholm obtained some jumper cables and helped Welch. Welch left around 8:00 P.M. and Chisholm was still there. Two other fellow employees, Albert Hutchinson and John Doss, were also there.

Albert Hutchinson testified that on the evening of February 18,1981, he saw Chisholm drinking beer in Bubba’s Lounge in Port Allen, Louisiana. Chisholm was in the bar when he arrived and he was still there when Hutchinson left two hours later around 9:30 or 10:00 P.M. During the time that Hutchinson was in the bar, he observed Chisholm shoot some pool and fall off of a bar stool onto the floor of the bar. Hutchinson further testified that after February 18, 1981, and prior to the trial, he saw Chisholm move furniture and a bathtub and helped him to move scrap iron and a V-8 engine block. Hutchinson testified that in the latter part of October, 1981, Chisholm told him that he was making $50 per day working for a plumber.

Joseph Eugene Morel testified that he was an insurance adjuster who investigated the Chisholm claim for the insurer of Wom-ack. During the course of his investigation, he took a tape recorded statement from William Morris, in which Morris stated that he had been in the tank with Chisholm holding a flashlight, that he observed Chisholm at all times, and that he did not see Chisholm slip. On November 11 and 12, 1981, Morel conducted surveillance on Chisholm. On both mornings, Chisholm left his home just before 7:00 A.M. dressed in work clothes and drove off. Morel attempted to follow him, but lost him both days.

Mrs. Bobbie Chisholm, the wife of the employee, testified that she went to C.J.’s bar with Chisholm and called the Womack dispatcher to notify him of the injury and that Chisholm was proceeding to the hospital for treatment. She saw Mike Welch at the bar and Chisholm helped him start his vehicle. Chisholm was not drinking in the bar and Hutchinson was not present at the bar. When they left C.J.’s, she went with her husband to the Baton Rouge General Hospital and arrived at about 9:45 P.M.

In a workmen’s compensation action, the employee bears the burden of establishing by a preponderance of the evidence that he received an injury arising out of and in the course of his employment. Cadiere v. West Gibson Products Company, Inc., 364 So.2d 998 (La.1978); Yokeum v. ITT Henze Service, 396 So.2d 611 (La.App. 1st Cir.1981), writ denied 406 So.2d 625 (La.1981). An appellate court cannot reverse a trial court factual determination unless an examination of the record as a whole demonstrates that the trial court was clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Williams v. Offshore Food Service, Inc., 417 So.2d 475 (La.App. 1st Cir.1982). Although there are inconsistencies in and contradictions to the evidence presented by the plaintiff, and although we may have reached a different conclusion on the facts were we sitting as a trial court, after considering the record as a whole, we cannot say that the trial court was clearly wrong in determining that the plaintiff proved a work related accident by a preponderance of the evidence.

III. DISABILITY

In 1975, Dr. Thomas B. Flynn performed surgery on Chisholm and removed a disc from the area of his fifth lumbar vertebra. As a result of this surgery, Chisholm had a 10-15% disability. After discharge from treatment, Chisholm could do any type of work provided it did not require lifting of more than 50 pounds.

On February 19, 1981, Dr. Flynn examined Chisholm at the Baton Rouge General Hospital. Chisholm gave a history of slipping and falling at work while cleaning a tank. Chisholm complained of a stinging sensation in his back and left hip, shooting pains in his left leg and the left leg giving away. Dr. Flynn had X-rays made of Chisholm’s back which showed evidence of the prior disc surgery, narrowing of the innerspace where the surgery was performed, and “no other changes of significance.” Dr. Flynn found no evidence of muscle spasm. A neurological examination was normal. Chisholm complained of pain on the straight leg raising test at 60 degrees. Dr. Flynn felt that the shooting pains in the leg possibly could be caused by irritation of the nerve root (sciatica). An electromyelogram and a lumbar myelogram were performed and the results were normal, indicating no nerve root irritation. Dr. Flynn prescribed traction and physical therapy. Chisholm left Baton Rouge General Hospital on February 21, 1981.

Dr. Flynn saw Chisholm again on March 17, 1981, and Chisholm’s symptoms were unchanged. Dr. Flynn saw Chisholm again on May 25, 1981, and was then of the opinion that he should be rehospitalized for further diagnostic studies to determine the exact nature of his problems.

On August 10,1981, Chisholm was examined by Dr. Herbert K. Plauche’. Chisholm gave a history of slipping down a steel bar inside a mud tank and feeling a burning pain in his lower back. Chisholm complained of low back pain radiating into the left hip down to the knee, accompanied by weakness of the entire left leg. Dr. Plauche’ found no neurovascular deficit in either leg, but did note a moderate degree of paraspinous muscle spasm in the lumbo-sacral area bilaterally. Straight leg raising tests produced low back pain, but no sciatica. X-rays of the lumbosacral spine and pelvis revealed no acute bone or joint abnormalities. Dr. Plauche’ recommended a complete neurological workup and that Chisholm engage in no strenuous physical activity until the workup was completed.

On September 10, 1981, Chisholm was examined by Dr. Stephen Wilson. He gave a history of slipping in some mud in a tank while at work and injuring his lower back. Dr. Wilson’s examination revealed no swelling or inflammation in the low back area. Chisholm complained of some pain on forward flexion and deep palpation of the lum-bosacral spine area. There was no evidence of muscle atrophy or muscle weakness and there was a good range of motion in all of the joints. Straight leg raising tests were negative in the sitting position. X-ray examination of the lumbosacral spine showed no evidence of fracture or dislocation, and the alignment of the vertebra was satisfactory. Dr. Wilson diagnosed Chisholm’s problem as a musculo-ligamentous strain to the lumbosacral region. Dr. Wilson observed that he could “find nothing on physical examination or x-ray examination as to why this patient continues to have such severe difficulty.” Dr. Wilson found no form of permanent disability and opined “that whether or not he returns to any form of gainful employment has a great deal to do with his motivation and desire.”

Chisholm was examined by Dr. Flynn on September 15, 1981, and subsequently admitted to Our Lady of the Lake Hospital in Baton Rouge, Louisiana, on September 19, 1981, for further diagnostic studies. His neurological examination was normal. A second myelogram was performed, and the results were also normal. Dr. Flynn found no evidence of scar tissue formation or recurrent disc herniation. Chisholm was released from the hospital on September 21, 1981.

Chisholm was again examined by Dr. Flynn on October 6,1981. At that time, Dr. Flynn described his examination of Chisholm as “essentially normal”. Dr. Flynn was of the opinion that Chisholm should not lift over 40-50 pounds or work on heavy equipment. Dr. Flynn indicated that Chisholm’s physical condition as of October 6,1981, was substantially the same as his physical condition when he was discharged from his operation in 1975. Dr. Flynn described Chisholm’s condition as an aggravation of a preexisting back condition with no objective evidence of new injury. On October 6, 1981, the work limitations placed on Chisholm were the same as those imposed on him when he was discharged in 1975.

On November 17,1981, Chisholm was examined by Dr. Arlo Chavers. Dr. Chavers furnished the following report on this examination:

“The patient tells me that he is having continued disabling back and leg pain. He has a normal examination. He tells me that he is unable to perform any type of activity of any sort. However, he has heavily stained and calloused hands indicating very heavy manual labor in the recent past. No return appointment given.”

A claimant in a workmen’s compensation proceeding bears the burden of proving to a legal certainty and by a reasonable preponderance of the evidence the nature and extent of his disability. Elie v. St. Paul Fire & Marine Insurance Company, 408 So.2d 297 (La.App. 3rd Cir.1981); Hamilton v. Georgia Pacific Corp., 344 So.2d 400 (La.App. 1st Cir.1977). The issue of whether or not he has carried this burden must be determined by examining the totality of the evidence. Crawford v. Al Smith Plumbing & Heating Service, Inc., 352 So.2d 669 (La.1977). Disability is compensable only if it results from a work-related accident. Simpson v. S.S. Kresge Company, 389 So.2d 65 (La.1980).

The evidence indicates that Chisholm is not permanently and totally disabled in the purview of La.R.S. 23:1221(2). Dr. Flynn testified that the work limitations on Chisholm in October of 1981 were essentially the same as those when he was discharged from his operation in 1975. After his discharge in 1975, Chisholm was gainfully employed and thus in October of 1981, he again was able to engage in a gainful occupation for wages.

Chisholm was not partially disabled by the accident of February of 1981 within the purview of La.R.S. 23:1221(3). Dr. Flynn testified that in October of 1981, Chisholm was able to perform the same employment duties that he was customarily engaged in prior to the time that he was injured in February of 1981. The work limitations placed upon him prior to February 18,1981, were essentially the same as those placed upon him post October 6, 1981.

We believe that the evidence of record indicates that Chisholm was temporarily totally disabled during the period of February 18, 1981, until October 6, 1981. According to the testimony of Dr. Flynn when he last examined Chisholm in October of 1981, the aggravation of the pre-existing back condition which occurred in February of 1981, was essentially resolved. In view of this, the trial judge was clearly wrong in allowing benefits for temporary total disability until the date of trial on November 20, 1981. The judgment will be amended accordingly.

IV. STATUTORY PENALTIES

The trial judge assessed statutory penalties, including a $3,500 attorney fee, pursuant to La.R.S. 23:1201.2. That statute authorizes penalties to be levied against an employer who arbitrarily, capriciously, or without probable cause fails to make compensation benefit and medical payments within sixty days after receipt of notice of the claim. Because this statute is penal in nature, it should be utilized only in those instances in which the facts negate probable cause for nonpayment. Schouest v. J. Ray McDermott & Co., Inc., 411 So.2d 1042 (La.1982). Where there is a serious defense presented in good faith, the assessment of the statutory penalties is not appropriate. Furtado v. Alton Ochsner Medical Foundation, 413 So.2d 528 (La.App. 4th Cir.1982), writ denied 420 So.2d 171 (La.1982).

Our review of the record shows that Womack asserted a serious defense in good faith on the issue of whether or not a compensable accident had occurred. The testimony of Chisholm about slipping in the mud tank was contradicted by Hutchinson who claimed he saw him fall off of a bar stool onto the floor. The testimony of William Morris that he observed Chisholm slip in the mud tank was contradicted by statements that he gave to Gary O’Neil and Eugene Morel. The statement by Mrs. Chisholm that she called in to report the accident to the Womack dispatcher was contradicted by the fact that the Womack records did not reflect that the call was made. Chisholm testified that he was not drinking prior to going to the hospital, but both Mike Welch and Hutchinson testified that they observed him doing so. In view of these serious factual disputes on the issue of whether or not a compensable accident occurred, the assessment of statutory penalties is not appropriate and is reversed.

V. CONCLUSION

For the foregoing reasons, the judgment of the trial court granting compensation benefit payments of $163 per week for total temporary disability from February 18,1981, to November 20,1981, is amended to terminate those payments on October 6, 1981. The trial court judgment awarding medical bills and expenses in the sum of $584.25 is affirmed. The trial court judgment assessing statutory penalties is reversed. The trial court erroneously granted legal interest from the date of judicial demand until paid on the judgment awarding weekly compensation benefit payments. This portion of the judgment is amended to award legal interest on each weekly compensation payment from its date due until paid. Crockett v. St. Paul Insurance Company, 413 So.2d 949 (La.App. 1st Cir.1982). Since the medical bills and expenses claimed in the trial court were due and payable prior to the time that suit was filed, the appellee is entitled to legal interest thereon from date of judicial demand until paid. The appellant is cast for all costs of this appeal.

AMENDED, AND AS AMENDED, AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

      . Chisholm testified that he did not have a telephone at his home.

      . No evidence was presented at the trial to show the employees weekly wages. The parties stipulated that the maximum benefits were $163 if disability were found.