author: FORET, Judge.

text:
    Leopold GOUDCHAUX, Plaintiff-Appellant, v. STATE FARM FIRE & CASUALTY COMPANY, Defendant-Appellee.
    No. 8542.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 16, 1981.
    Rehearing Denied Jan. 29, 1982.

      Führer & Flournoy, Philip G. Hunter, Alexandria, for plaintiff-appellant.
    Gist, Methvin, Hughes & Munsterman, DeWitt T. Methvin, Jr., Alexandria, for defendant-appellee.
    Before FORET, SWIFT and LABORDE, JJ.
   FORET, Judge.

Leopold Goudchaud (Plaintiff) brought this tort action to recover damages for personal injuries he suffered while using a sewer auger at the residence of William J. Wood (Wood). State Farm Fire & Casualty Company (State Farm), Wood’s homeowners liability insurer, was named defendant.

The trial court rendered judgment in favor of State Farm rejecting plaintiff’s demand. Plaintiff appeals from that judgment and raises the following issues:

(1) Whether the trial court committed manifest error in finding (a) that the sewer auger was not in the custody of Wood at the time the accident occurred and/or (b) that there was no defect or vice in that machine;
(2) Whether the trial court erred in failing to find Wood guilty of actionable negligence for which State Farm should be held liable to plaintiff.

FACTS

The accident giving rise to this action occurred on January 26, 1980, in Alexandria, Louisiana. Wood rented the sewer auger from the Rent-It Company (Rent-It) in Alexandria and brought it to his residence to clear the sewer lines serving his home. He had been using the machine for a couple of hours when plaintiff came over to borrow a tach-dwell meter for use in servicing plaintiff’s automobile. Wood lent him the meter and plaintiff proceeded to work on his automobile in Wood’s driveway. Meanwhile, Wood resumed the task of cleaning his sewer lines. Approximately fifteen to twenty minutes later, Wood called out to plaintiff to come over and help him. Wood had removed a glove he was wearing and told appellant that he had injured his hand using the machine. They examined Wood’s hand to see if any bones had been fractured.

Wood then asked plaintiff to help him finish cleaning the sewer line as it was getting late. Plaintiff agreed and had been operating the machine for between three to five minutes when the accident occurred. Apparently, the cutting head of the machine struck some solid object causing the steel cable to twist violently. In doing so, it severed the distal phalanx of plaintiff’s left ring finger. A search of the sewer line failed to produce that portion of plaintiff’s finger. Plaintiff was brought to the emergency room of a local hospital where the wound was treated.

Plaintiff instituted this action alleging that Wood was strictly liable for the injuries suffered by him. In the alternative, plaintiff alleged that Wood had been negligent in several respects and that this negligence resulted in his injury. State Farm has agreed to pay all of plaintiff’s medical expenses resulting from the accident. Thus, all plaintiff seeks is an award for general damages.

The action was tried by the trial court which returned a judgment in favor of State Farm and against plaintiff, who was granted a devolutive appeal from the trial court’s judgment.

STRICT LIABILITY

Plaintiff contends that Wood should be held strictly liable to him for the injuries he suffered under the provisions of LSA-C.C. Article 2317 and/or LSA-C.C. Article 2322.

LSA-C.C. Article 2317 provides, in pertinent part:

“Art. 2317. Acts of others and of things in custody
Art. 2317. We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody.”

For recovery under LSA-C.C. Article 2317, a plaintiff must show: (1) that the thing which caused the injury was in the care or custody of the defendant/owner; (2) that a vice or defect existed in the thing; and, (3) that the vice or defect caused the injury. A vice or defect is defined as one which creates an unreasonable risk of injury to another. Loescher v. Parr, 324 So.2d 441 (La.1975); Reinhard v. City of New Orleans, 371 So.2d 286 (La.App. 4 Cir. 1979).

We note at the outset that plaintiff has cited to this Court a line of jurisprudence characterized by the decision in Weber v. Fidelity & Casualty Insurance Company of New York, 259 La. 599, 250 So.2d 754 (1971), in support of his contentions. These cases are inapposite to the issues before us as they concern the liability of a manufacturer of a defective product. Here, plaintiff has brought no action against the manufacturer of the sewer auger.

The first inquiry in making a determination of strict liability for damages caused by a defect in a thing is whether the thing was in the care or custody of the defendant at the time the accident occurred. Loescher contains the following quote concerning this issue of the care or custody of a thing on 324 So.2d 449, Footnote 7:

“7. In Verlander, We are Responsible . . ., 2 Tulane Civil Law Forum, No. 2, p. 64 (1974), which contains a perceptive and thorough analysis of the French, Quebecois, and Louisiana interpretations, it is suggested: “[T]he things in one’s care are those things to which one bears such a relationship as to have the right of direction and control over them, and to draw some kind of benefit from them. This relationship will ordinarily be associated with ownership, but the guardianship will also belong to the bailee, the lessee, the usufructuary, the borrower for use and the repairmen, among others. It will not belong to the agent or the mandatory, the employee or the servant, or to anyone else for whom there is a responsible principal. The owner may transfer the guardianship by transferring the thing to another who will bear such a relationship to the thing as to himself have the care of it. He may also lose the care of this thing, principally by the theft of the thing.” (Emphasis ours)

Plaintiff contends that the sewer auger was in the care or custody of Wood at the time that the accident occurred. The trial court found that it wasn’t, and we agree. Liability under LSA-C.C. Article 2317 arises from the legal relationship of the person sought to be held liable to the thing which creates an unreasonable risk of injuries to others because it is defective. The fault of the person thus liable is based upon his failure to prevent the thing for which he is responsible from presenting such unreasonable risk of injury to others. Loescher v. Parr, supra; Shipp v. City of Alexandria, 395 So.2d 727 (La.1981); Jones v. City of Baton Rouge-Parish of East Baton Rouge, 388 So.2d 737 (La.1980); Morgan v. Hartford Accident & Indemnity Company, 402 So.2d 640 (La.1981).

The evidence shows that Wood had rented the sewer auger a couple of hours before the accident occurred. Wood, himself, used the machine during that period of time. This rental and use for a short period of time are the only existing elements of Wood’s relationship to the machine. It is Rent-It, rather than Wood, which has the responsibility of maintaining the things it offers to rent on a short term basis to the general public. Rent-It is the entity that has direction and control over those things and it derives benefits from them. We find that Wood’s relationship to the sewer auger is insufficient to result in the imposition of strict liability on him for injuries caused by any defect which may exist in that machine. Our finding is supported by the following quotes from Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Arceneaux arose from a collision between a plaintiff’s automobile and an automobile owned by one Jimmy Bearb and being driven by one Drew Domingue. It was alleged that Domingue had been unable to stop the car because of a defect in its braking system. Arceneaux discussed the liability for defects in a thing under LSA-C.C. Article 2317 and Loescher v. Parr, supra, and stated on page 1335:

“In a genuine case of brake failure, the owner, charged with the responsibility of maintenance, should not escape liability merely because another person was driving the car.”

Justice Dennis, concurring in Arceneaux, wrote on page 1337:

“Accordingly, an individual is liable for his legal fault in maintaining a defective vehicle which creates an unreasonable risk of harm to others, such as an automobile with defective brakes, which causes injury unless he proves that the damage was caused by the fault of the victim, by the fault of a third person, or by an irresistible force. Consequently, an individual who lends his properly maintained automobile to a friend who negligently injures another is not liable either because the injury was caused by a “third person” or because it did not result from a vice or defect in the vehicle. However, if the cause of the injury was due to a defect or vice in the automobile, the owner, who has custody or care of the vehicle even while it is in his friend’s possession, is liable unless he proves that the damage was caused by the victim’s fault, by a third person’s fault, or by an irresistible force.” (Emphasis ours.)

Cardwell v. Jefferson Rentals Division of J-R Equipment Corporation Assurance Company, 379 So.3d 255 (La.App. 4 Cir. 1979), writ application withdrawn, 382 So.2d 164 (La.1980), dealt with a situation consisting of facts and circumstances similar to those in the action before us. In Cardwell, defendant had rented a chain hoist to another firm, Hollywood Door Sales (Hollywood), for use by its employees in hanging doors. One of Hollywood’s employees picked up the chain hoist from defendant one afternoon for use the next morning. The chain hoist broke almost immediately after being put to use, causing injury to two of Hollywood’s employees. Cardwell found that the relationship between the lessee (Hollywood) and the thing (chain hoist) was insufficient to support a finding that the care or custody of the thing had been transferred from the lessor (Jefferson Rentals) to the lessee. We reach the same result here.

APPLICABILITY OF LSA-C.C. ARTICLE 2322

Appellant also relies on LSA-C.C. Article 2322 in contending that Wood is strictly Hable for the injuries suffered by him. LSA-C.C. Article 2322 provides:

“Art. 2322. Damage caused by ruin of building
Art. 2322. The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice in its original construction.”

Wood testified that the sewer lines would sometimes become blocked after a hard rain. This was caused by the public sewer system which was unable to handle the increased run-off of water resulting from the construction of many homes in the area. Debris would be pushed back into the sewer lines by the rising water and would remain there once the water level fell. Thus, the blockage of the sewer lines running to Wood’s home resulted from inadequacies in the public sewer system rather than any ruin of his “building” caused by a neglect to repair it or a vice in its original construction. We find that LSA-C.C. Article 2322 is inapplicable to the facts before us.

There being no basis for liability on the part of Wood under either LSA-C.C. Article 2317 or LSA-C.C. Article 2322, we find that Wood is not strictly liable to appellant.

WOOD’S ALLEGED NEGLIGENCE

In the alternative, appellant contends that Wood was negligent in failing to fully instruct him on the use of the machine and in failing to warn him of the dangers connected with such use. Appellant bases his contention on the broad provisions of LSA-C.C. Articles 2315 and 2316.

The first inquiry in making a determination of liability under these articles is whether any causal relationship exists between the harm suffered by appellant and Wood’s alleged negligent conduct. Thus, if appellant can show that he probably would not have suffered the injuries complained of but for Wood’s conduct, he has carried his burden of proof relative to cause-in-fact. Shelton v. Aetna Casualty and Surety Company, 334 So.2d 406 (La.1976); Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972); Vidrine v. Missouri Farm Association, 339 So.2d 877 (La.App. 3 Cir. 1976), writ denied, 342 So.2d 216 (La.1977); Stewart v. Gibson Products Company of Natchitoches Parish Louisiana, Inc., 300 So.2d 870 (La.App. 3 Cir. 1974).

Plaintiff admitted that he knew that Wood’s hand had been injured by the sewer auger after Wood had called out to him for help and he had examined Wood’s hand. He also knew that it was the cable on the sewer auger that had caused the injury. Wood testified that he did tell plaintiff that the machine had struck something causing the cable to wrap around his hand. We fail to see how Wood could have given better warning to appellant than by showing appellant his own injury and telling him what had happened. We find that Wood did warn appellant of the dangers of using the machine. There being no failure to warn, it could not be a cause-in-fact of the accident.

Plaintiff also contends that Wood failed to relate to him the full instructions given by the employees of Rent-It to Wood respecting the operation of the sewer auger. Wood testified as to the instructions given him by Rent-It. These included an admonition that Wood wear gloves while using the machine and that there be no more than a certain distance between that portion of the machine through which the cable is fed and the hole into which it is being placed. Wood stated that one of Rent-It’s employees had held up his hands to show him roughly what that distance should be. He estimated it to be 5 to 5V2 inches. That same employee had indicated that the cable could twist up if the distance was greater than that. However, Wood testified that he had no idea that a twist in the cable could cut someone’s finger off. Wood testified that the machine was approximately 6 to 8 inches from the hole when the accident occurred.

Plaintiff testified that Wood did instruct him on the function and use of the foot pedal and that Wood showed him how to feed the cable into the hole. We find that Wood did show appellant how to operate the machine to the best of his knowledge, although he may not have specifically stated to appellant that the machine should be no more than a certain distance from the hole. We also find that Wood did tell plaintiff that he should wear gloves before the accident occurred, but after appellant began operating the machine. In any case, there was no evidence presented to show that the accident would not have occurred had appellant been wearing gloves. Thus, since Wood did instruct appellant as to the proper method of operating the machine to the best of his knowledge, there was no failure to do so which could be considered a cause-in-fact of the accident. Having failed to prove that Wood engaged in the conduct alleged, appellant is not entitled to recover damages from Wood or State Farm for his injuries.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed against plaintiff-appellant.

AFFIRMED.

      . A sewer auger is a device used to remove debris from sewer pipes. The sewer auger with which we are concerned was powered by a small electric motor. That motor was used to rotate a circular metal frame containing a flexible steel cable. The rotation of the circular metal frame also causes the cable to rotate. The cutting head is attached to the end of the cable and the cable is then fed into the sewer line sought to be cleaned. By pushing the spinning cable into the hole, the rotating cutting head is forced against obstructions in the lines and cuts through them. The electric motor is controlled by means of a foot pedal. The device is similar to what is commonly known as a “Roto-Rooter” machine.

      . We also agree with the trial court’s finding that plaintiff failed to prove the existence of any defect in the sewer auger. The only evidence offered by plaintiff on this issue was that showing that he had been injured by the machine. As was noted in Shipp v. City of Alexandria, infra, the mere fact that one is injured by a thing does not elevate the condition of that thing to that of an unreasonably dangerous vice or defect. See also Broussard v. Pennsylvania Millers Mutual Ins. Co., 406 So.2d 574 (La.1981).

      . Williams v. Hempen, 396 So.2d 999 (La.App. 3 Cir. 1979), provides an example of a situation in which the relationship between a lessee and a defective thing was found to be sufficient enough to impose strict liability on the lessee for injuries caused by the thing. Williams was brought on behalf of a minor plaintiff who was injured when a large trash dumpster fell on him. The dumpster was owned by the City of Alexandria and leased to Hempen Motor Company. The evidence showed that under an oral lease the dumpster had been delivered to Hempen for its exclusive use in the disposal of its trash. Hempen had used the dumpster for that purpose for approximately four or five years prior to the date on which the plaintiff was injured. This Court found that it was Hempen, as lessee and possessor, who exercised direction and control over the dumpster and who derived benefit from it. Thus, Hempen was found to have had the care or custody of the dumpster at the time of the accident.-


source: Caselaw Access Project

author: GUIDRY, Judge.

license: Public Domain

text:
    Geraldine Richard BABINEAUX, Plaintiff-Appellee, v. CONTINENTAL OIL COMPANY, et al., Defendants-Appellants.
    No. 8553.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 16, 1981.

      Jones, Patine, Tete, Nolen & Hanchey, Gregory P. Massey, Lake Charles, for defendants-appellants.
    Terry J. Manuel, Lake Charles, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and DOUCET, JJ.
   GUIDRY, Judge.

This is a suit for workmen’s compensation benefits. Plaintiff, Geraldine Richard Ba-bineaux, instituted this suit against defendants, Continental Oil Company (hereafter Conoco), and its workmen’s compensation insurer, Hartford Insurance Company (hereafter Hartford), alleging that she is entitled to workmen’s compensation benefits and medical and chiropractic expenses as a result of a work-related injury sustained while she was employed by Conoco. Plaintiff additionally requested that the trial court award penalties and attorney’s fees, contending that defendant’s failure to pay compensation benefits to her was arbitrary and capricious. After a trial on the merits, the trial court held in favor of the plaintiff and against defendants ordering the latter to pay to plaintiff the sum of $141.00 per week for a period extending from April 20, 1979 to July 14, 1980, and additionally, ordering that defendants pay all outstanding medical and chiropractic expenses incurred as a result of the subject accident. The trial court, however, denied plaintiff's demand for penalties and attorney’s fees. Defendants appeal suspensively from that judgment. Plaintiff did not appeal and did not file an answer to defendants’ appeal.

Prior to trial, the parties stipulated that plaintiff was involved in a work-related accident while employed by Conoco as a utility helper. In addition, the parties stipulated that Conoco was engaged in a hazardous business and that plaintiff was engaged in such hazardous activities at the time of the accident, all within the meaning of the Louisiana Workmen’s Compensation statute.

The record reflects that on April 20, 1979, plaintiff, while engaged in'duties associated with her job, slipped and fell on a wet concrete floor allegedly injuring her back, elbows, and right shoulder. Plaintiff testified that, as she fell, her right shoulder struck a drum located in the area. Leon Banks, a fellow employee, who was with plaintiff at the time of her accident, stated that although there were no drums in the immediate area of plaintiff’s accident, there was a “concrete pier” which her shoulder may have hit. Immediately after the accident, Mrs. Babineaux was examined by Gordon Monroe, a registered nurse employed by Conoco. Monroe indicated at trial that his examination revealed no external manifestations of injury and he concluded that plaintiff could return to work. Contrary to Monroe’s evaluation of her injuries, plaintiff testified that she continued to experience substantial pain as a result of her fall, and thus, was unable to return to work that day. Mrs. Babineaux stated that she went home and related the incident to her mother, who suggested that plaintiff consult with her family physician, Dr. Robert C. Looney. Dr. Looney examined plaintiff and concluded that she had sustained a mild straining-type injury to her back. He advised plaintiff to engage in only light work for a one week period, and additionally, he prescribed a muscle relaxant to ease her discomfort. Dr. Looney did not schedule plaintiff for a follow-up appointment. At the urging of Conoco, plaintiff was examined by Dr. Edmund E. Campbell, an orthopedist, approximately four days after the accident. After a fifteen minute examination, Dr. Campbell concluded that plaintiff had sustained “contusing injuries to the dorsal and lumbar area of the back and both elbows”. Dr. Campbell ordered x-rays which were interpreted by Dr. Elwyn Ca-vin, a radiologist. Dr. Cavin concluded that plaintiff’s x-rays were normal. Dr. Campbell indicated that plaintiff should recover from her injuries within one week and did not schedule her for a follow-up appointment.

In May of 1979, Mrs. Babineaux became pregnant and delivered her first child on February 10, 1980. The record indicates that Mrs. Babineaux frequently complained of back pain to her obstetrician, Dr. Michael Kudla. In his deposition, Dr. Kudla indicated that a substantial number of pregnant women experience some degree of back pain as a result of their pregnancy. However, Dr. Kudla stated that plaintiff complained somewhat more frequently of such pain than most of his other patients. Since back pain is commonly associated with pregnancy, Dr. Kudla was unable to state whether or not plaintiff’s pain derived from her pregnancy or was a residual effect of her work-related injury.

On or about May 2, 1979, Dr. C. G. Trimm, a chiropractor, began to treat plaintiff for back and shoulder pain. Plaintiff continued to receive such treatment until discharged by Trimm on July 14, 1980. Trimm testified that his examination revealed that plaintiff sustained a straining-type injury to her back. Trimm also stated that plaintiff’s injury was disabling and prevented her from doing her usual tasks throughout the period during which she was being treated.

On October 16, 1979, at Hartford’s request, plaintiff was examined by Dr. Clark Gunderson. Dr. Gunderson’s examination revealed that plaintiff suffered crepitation on range of motion in the right shoulder which he diagnosed as possible tendonitis. Dr. Gunderson did not indicate whether or not plaintiff’s tendonitis resulted from her accident in April of 1979. The record reflects that plaintiff was last seen by medical personnel on November 12, 1980. On that date, Dr. Looney again examined Mrs. Babineaux. At that time, Dr. Looney diagnosed plaintiff’s ailment as acute myositis and opined that her condition had nothing to do with the subject accident.

Plaintiff testified that she experienced substantial pain in her back, elbows, and shoulder subsequent to the accident. She stated that such pain greatly restricted her ability to perform various physical tasks. Plaintiff testified that she returned to work on April 24, 1979. Although assigned to light duty, she continued to experience pain, particularly in her right shoulder. In addition, the medication prescribed to ease plaintiff’s discomfort was sleep-inducing, thus, making it difficult for her to perform her duties. Plaintiff stated that on or about April 27,1979, Conoco terminated her employment. Mrs. Babineaux indicated that she was unemployed from that time until July 21, 1980 when she began working at a Goodyear Tire Store as a clerk/cashier.

Mabel Richard, plaintiff’s mother, and David Babineaux, plaintiff’s husband testified regarding their observations of plaintiff’s ability/inability to perform certain physical tasks. Mrs. Richard stated that prior to the accident, plaintiff could actively engage in all household chores including mopping, sweeping, making beds, etc. However, after the accident, plaintiff was unable to do such activities due to the substantial pain in her back and shoulder. Mr. Babineaux stated that his wife continues to experience pain in her back and shoulder which prevents her from doing many of the usual household chores. Mr. Babineaux testified that his wife cannot engage in any type of heavy work and that he does the majority of such work around the house.

On appeal, defendants contend that the trial court erred in concluding that the plaintiff was disabled for a period longer than one week as a result of the April 20, 1979 accident, considering the uncontradict-ed medical testimony. Alternatively, defendants argue that if plaintiff was disabled for more than one week, her disability ceased as of the end of June, 1979, the date on which she ceased “regular” chiropractic treatment.

Initially, we observe that the trial court was significantly impressed with the credibility of the lay testimony received at trial. In this regard, the trial judge stated:

“The testimony presents a rather credible case of an injury and disability based on the lay testimony alone. Plaintiff’s testimony was supported by that of her mother and her husband. While all of the lay testimony, including that of plaintiff herself is characterized by the usual selfserv-ing emphasis, imperfect memory, and some inconsistency, the court was fairly impressed by the credibility of the lay testimony and believes that it presents a substantially accurate picture of the plaintiff’s disability ...”

In Tantillo v. Liberty Mutual Insurance Company, 315 So.2d 743 (La.1975), our Supreme Court stated:

“Lay testimony has great probative value in establishing certain facts, such as the existence and location of pain and the actual ability or inability of a claimant to perform certain physical functions or to pursue his regular employment. See Larson, supra, at § 79.53. We conclude that lay evidence must be weighed with consideration for the medical fact to be established, of the conclusiveness and validity of the medical evidence and the materiality, relevance and reliability of the particular lay evidence, according to its focus, foundation and its source.”

Further, our court in Boustany v. Fluid Dynamics, Inc., 392 So.2d 750 (La.App. 3rd Cir. 1980) reiterated jurisprudence of longstanding by stating: “It is the task of the trial judge to determine the credibility of the witnesses and this determination will not be disturbed absent manifest error. Canter v. Koehring, 283 So.2d 716 (La.1973).”

After hearing extensive medical and lay testimony, the trial judge concluded that “between the dates of April 20, 1979 and July 14, 1980, there is simply not enough adverse medical testimony to overcome the convincing weight of the lay testimony that plaintiff was in fact disabled as a result of the accident”. Our review of the medical testimony received at trial reveals the same to be inconclusive regarding the existence/non-existence and extent of plaintiff’s injuries. Dr. Looney and Dr. Campbell both testified as to their initial impressions regarding plaintiff’s injuries, however, neither physician scheduled follow-up appointments to determine plaintiff’s subsequent condition or whether or not plaintiff suffered any residual effects from her fall. Dr. Kudla, plaintiff’s obstetrician, testified that he could not definitively state whether the source of plaintiff’s back pain was her pregnancy or from the subject accident. Further, Dr. Gunderson in his deposition gives no opinion regarding the cause of plaintiff’s shoulder ailment. Therefore, we conclude that the trial court was not clearly wrong in giving great weight to the lay testimony received at trial and in concluding that plaintiff suffered a disabling injury as a result of her work-related accident on April 20,1979. See Harris v. State through Huey P. Long Memorial Hospital, 378 So.2d 383 (La.1979); Canter v. Koehring Company, supra; Arceneaux v. Domingue, writ granted, 359 So.2d 1303 (La.1978), 365 So.2d 1330 (La.1978), on remand, 370 So.2d 1262 (La.App. 3rd Cir. 1979); Bertrand v. Aetna Casualty and Surety Company, 306 So.2d 343 (La.App. 3rd Cir. 1975).

In the alternative, defendants contend that if the trial court was correct in determining that plaintiff suffered a disabling injury, the trial court erred in concluding that plaintiff was not recovered from such injury by June, 1979, the date defendants allege that plaintiff ceased “regular” chiropractic treatment. The record reflects that plaintiff sought chiropractic care for treatment of her injury on May 2, 1979. She continued to see Dr. Trimm an average of eleven times per month during May and June. After that time, plaintiff began to receive chiropractic treatment less frequently. On June 29, 1979, Dr. Trimm submitted to plaintiff a so-called “Chiropractor’s Final Report and Bill” which indicated that the results of plaintiff’s treatment had been good. Defendants aver that this report clearly establishes that plaintiff no longer suffered any disability. However, Dr. Trimm testified, and his records clearly reflect, that plaintiff was not discharged from his care until July 14, 1980. The trial court concluded that plaintiff’s recovery from her disabling injury was not completed until the date of her discharge from Dr. Trimm’s care. We discern no clear error in such conclusion. The record indicates that plaintiff’s disability continued to cause her pain until that time. Dr. Trimm, as plaintiff’s chiropractor, saw her on a regular basis and his evaluation regarding her condition, specifically that she had not recovered to the extent that his care was no longer needed until July, 1980, supports the trial court’s findings. See Arceneaux v. Domingue, supra.

For the above and foregoing reasons the judgment of the trial court is affirmed. All costs of these proceedings are assessed to the defendants, Continental Oil Company and Hartford Insurance Company.

AFFIRMED.


author: SWIFT, Judge.

text:
    STATE of Louisiana, Through the DEPARTMENT OF HEALTH & HUMAN RESOURCES, In the Interest of Gretchen Guillory and Mark Guillory, Plaintiff-Appellant, v. Gregory J. GUILLORY, Defendant-Appellee.
    No. 8558.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 16, 1981.

      Tony G. Sanders, Asst. Dist. Atty., Lake Charles, for plaintiff-appellant.
    Migues & Leckband, Carl A. Leckband, Jr., Lake Charles, for defendan1>appellee.
    Before FORET, SWIFT and LABORDE, JJ.
   SWIFT, Judge.

This suit was brought by the State of Louisiana against Gregory J. Guillory to prove paternity and to provide support for two minor children of Mrs. Charley Batiste Easton. The trial court ruled in favor of the defendant, concluding that LSA-R.S. 46:236.1(F) did not authorize the state to bring a paternity action against the natural father of Gretchen Dawn Nichole Easton since the husband of her mother is conclusively presumed to be her father and that the evidence was not sufficient to establish the defendant was the biological father of Mark Anthony Easton. The state has appealed.

Charley Easton was married to Kenneth Easton on August 18, 1969, and they lived together until about May, 1972, when Mr. Eason was sent to Vietnam. In 1972 or 1973 Gregory Guillory moved in with Mrs. Easton and they cohabited as though man and wife. A child, Gretchen Easton, was born on January 1, 1974. In July, 1974, the defendant and Charley Easton parted and thereafter she had sexual relations with three other men. Mrs. Easton testified, however, that she and Guillory “were still seeing each other sexually” and they lived together occasionally. On September 17, 1974, Mr. Easton obtained a divorce on the ground of his wife’s adultery. Mrs. Easton gave birth to Mark on March 20, 1975. Her former husband has not taken any action to disavow paternity of either Gretchen or Mark.

Mrs. Easton and her five children, including Gretchen and Mark, were certified to receive aid to families with dependent children in July, 1979. The family was still receiving such assistance at the time of trial.

The issues presented by this appeal are: 1) Whether LSA-R.S. 46:236.1 authorizes the State of Louisiana to bring a paternity suit against the alleged biological father when the husband of the mother is presumed to be the father; and 2) Whether the evidence established the defendant is the father of Gretchen and/or Mark.

In State in Interest of Poche v. Poche, 368 So.2d 175 (La.App. 4 Cir. 1979), writ denied, 370 So.2d 577 (La.1979), a similar action, the court affirmed a support judgment against the biological father even though Louisiana law: presumed the child to be the legitimate child of her mother’s husband. Citing Warren v. Richard, 296 So.2d 813 (La.1974), the court stated in Poche:

“The fact that the law considered the child to be the legitimate child of another will not alter the result and ‘cannot deprive her of a right which illegitimate children generally may have ... ’ ”

We agree with the decision and conclude that LSA-R.S. 46:236.1(F) is applicable under such circumstance.

Additionally, the defendant argues that the plaintiff had no authority to bring the present action under the statute, because it is not in the best interest of Gretchen and also that Mr. Guillory is not the person primarily liable for her support. We disagree.

It is true the statute only authorizes such an action when it is in the best interest of the child. In this case Mrs. Easton and her family, including Gretchen, are receiving public assistance and they are obviously in necessitous circumstances. Kenneth Ea-ston, Gretchen’s presumed father, left the matrimonial domicile before Gretchen’s birth and is thought to be living in California. He and her mother have been divorced over six years and he has never provided support for this child. On the other hand, Gregory Guillory testified in court that he is known to be her natural father. He has always treated Gretchen as his daughter. She was baptized as Gretchen Guillory in his presence and the certificate of baptism names the defendant as her father. Even after he ceased living with the mother in 1974, Guillory visited with Gretchen and Mark. All things considered, to conclude that the defendant is the biological father of Gretchen certainly would not be detrimental to her interests. On the contrary, we are convinced that this action to prove paternity and for support is in the best interests of both the child and the state.

The statute also provides that the action for support be brought against the person “primarily legally responsible” for the support of the child. Under Louisiana Civil Code Article 240 fathers and mothers owe alimony to their illegitimate children when they are in need. That our law considers a child to be the legitimate child of another, who is also obligated for support, does not alter the biological father’s duty under Article 240. We conclude, as the court evidently did in Poche, that a natural father is within the ambit of primary responsibility for the support of his children. See State v. Manning, 390 So.2d 494 (La.1980). Therefore, this action is proper under LSA-R.S. 46:236.1(F).

The trial judge made no finding as to filiation between Gretchen and Gregory Guillory in view of his interpretation of the statute. As mentioned heretofore, the mother testified that her husband was sent to Vietnam during her pregnancy with an older child and subsequently she began living with the defendant. Further testimony revealed that during the period of cohabitation with the defendant, she became pregnant and gave birth to Gretchen. She stated that she was only exposed to pregnancy by the defendant during this time. The defendant stated under oath that he was known as the father of Gretchen. He was listed as the father on Gretchen’s certificate of baptism and attended this ceremony. We are satisfied the proof was adequate to establish that he was the biological father of this child.

As to the trial court’s finding that the defendant was not the father of Mark Easton, we, of course, are not at liberty to disturb such a factual determination unless it was manifestly erroneous. Canter v. Koehring Co., 288 So.2d 716 (La.1973); and Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The record reflects that Mark Ea-ston was born on March 20, 1975. His mother testified she believed he was born a couple of weeks early and thought Mark was conceived in July, 1974. She admitted the defendant ceased living with her in the middle of July, 1974, and she then had sexual relations with two other men. Nevertheless, she believes the defendant is Mark’s father.

The defendant testified that he ceased living and having sexual relations with Mrs. Easton in the middle of 1974, although he was unsure of the month. He also stated he believed another man to be the father of Mark. On the child’s birth certificate the place for the father’s name was left blank. The defendant did not attend Mark’s baptism ceremonies.

Considering this evidence, we are unable to say that the trial court committed manifest error in finding that the evidence did not establish that Mark was conceived while the defendant was living with Mrs. Easton and that he is the defendant’s child.

The State has proved that Gretchen is in need of support and she and her family is receiving state assistance. However, in order to determine the amount of the award, it is necessary to consider both the needs of the child and the ability of the father to pay. McConkey v. Pinto, 305 So.2d 469 (La.1974); and Smith v. Stamper, 357 So.2d 904 (La.App. 2 Cir. 1978).

The record contains some evidence as to the defendant’s income, but none as to Gretchen’s individual needs. It is therefore necessary for us to remand this case to the trial court to receive evidence as to the needs of this child and the ability of the defendant to pay and thereafter to determine the amount of support which the state is entitled to recover: See McConkey v. Pinto, supra, and LSA-C.C.P. Article 2164.

For the foregoing reasons, the judgment of the district court is reversed insofar as it rejected the plaintiff’s demands that the defendant, Gregory Guillory, be decreed to be the biological father of Gretchen Easton and therefore liable for the support of such child. Otherwise, it is affirmed. It is further ordered that the case be remanded for the fixing of the amount of support due by the defendant for the minor Gretchen Dawn Nichole Easton and rendition of final judgment therefor. All costs of this appeal are assessed to the defendant-appellee.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

      . LSA-R.S. 46:236.1(F) reads as follows:
      “The department, except when it is not in the best interest of the child, may, without the necessity of written assignment, subrogation, tutorship proceedings, separation proceedings, or divorce proceedings, take direct civil action, including actions to establish paternity, in any court of competent civil jurisdiction to obtain child support from the person primarily legally responsible for the support of a minor child who is receiving aid to families with dependent children when that person has failed to support such child. The amount of such child support shall be set only by order of a court of competent jurisdiction or by the consent of the parties. A separate and distinct cause of action in favor of the department is hereby created, and suits brought under this provision need not be ancillary to or dependent upon any other legal proceeding.”


text:
    Alfred P. CROCHET, Jr., Plaintiff-Appellant, v. AMERICAN TOBACCO COMPANY, Defendant-Appellee.
    No. 8559.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 16, 1981.

      Baggett, McCall, Singleton, & Ranier, Drew Ranier, Lake Charles, for plaintiff-appellant.
    Stockwell & Associates, John S. Bradford and Robert S. Dampf, Lake Charles, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and DOUCET, JJ.
   GUIDRY, Judge.

Plaintiff, Alfred Crochet, Jr., instituted this suit against defendant, American Tobacco Company, contending that he is entitled to workmen’s compensation benefits due to a back injury allegedly sustained while plaintiff was in the course and scope of his employment with defendant. Plaintiff additionally prayed for an award of penalties and attorney’s fees contending that the defendant was arbitrary and capricious in its refusal to pay benefits allegedly due. The trial court denied plaintiff’s claim for benefits as well as his demand for penalties and attorney’s fees. Plaintiff appeals from that judgment.

The record indicates that at the time of the alleged accident, plaintiff was employed by the defendant as a traveling sales representative. Plaintiff’s job duties included calling upon numerous businesses in the southwest Louisiana area to insure that such businesses were adequately stocked with defendant’s products; maintaining accurate daily reports of such calls; setting up product displays; and, providing product promotional materials. Crochet was provided a company automobile for transportation purposes. Plaintiff testified that on September 19, 1980, while traveling from Sul-phur to Lake Charles, to exchange certain cigarette stock at Schlesinger’s Wholesale, he had a tire blowout which necessitated that he change the damaged tire. Crochet stated that he injured his back while attempting to throw the damaged tire into the trunk of his company car after he had mounted the spare tire on his vehicle. Plaintiff stated that, although injured, he continued to make a few business calls that day, however, at about 1:30 p. m. he was forced to return home due to the substantial pain in his back. Plaintiff indicated at trial that he did call at Schlesinger’s Wholesale where he told an employee there, Greg Gerard, about his injury. Plaintiff stated that he had to rely upon Gerard to load his cigarette stock into his car due to his back pain. Plaintiff did not return to work until October 14, 1980. Crochet worked from that date until he was terminated on October 21, 1980 for reasons unrelated to his alleged back injury.

The record reflects that Crochet was paid workmen’s compensation benefits for approximately eleven weeks after the accident totaling $1,804.00 and medical expenses in the sum of $250.11.

The trial court, in dismissing plaintiff’s suit, concluded that he failed to establish by a preponderance of the evidence that he was disabled as the result of an accident which occurred during the course and scope of his employment with the defendant.

The following issues are presented on appeal:

(1) Did the trial court clearly err in its aforestated conclusion; and,
(2) If so, did plaintiff’s work-related accident cause him to be disabled?

Plaintiff contends that the weight of the evidence adduced at trial was manifestly in favor of the occurrence of a compensable accident. We disagree.

Initially, we observe that the trial judge, in his oral reasons for judgment, indicates that he was not impressed with the credibility of plaintiff’s representations regarding the alleged accident. Our review of the record confirms that plaintiff’s testimony is characterized by gross inconsistencies, and further, reveals a pattern of inaccurate and false statements made by plaintiff from the time of the alleged accident through the trial of this matter.

Plaintiff was required by his employer, American Tobacco Company, to complete accurate daily reports which contain information regarding routine business calls made during the day. In addition, defendant’s sales personnel are required to note on the daily report any unusual occurrences which happen while such employees are on the job. A copy of plaintiff’s report for September 19, 1980, the alleged date of the accident, does not reflect the occurrence of any accident although plaintiff admitted that noting such an occurrence is standard procedure. Further, plaintiff’s daily report on the date at issue reflects that he quit working that day at 3:30 p. m. contrary to plaintiff’s own testimony that he worked only until 1:30 p. m. Plaintiff stated that shortly after the accident he made a business call at Schlesinger’s Wholesale where he told a Schlesinger employee, Greg Gerard, about his accident and subsequent injury. Crochet also testified that due to the pain in his back, Gerard loaded his cigarette stock into the trunk of his car. Gerard testified at trial that he did not remember plaintiff telling him about any accident nor did he remember loading plaintiff’s merchandise in his car.

Plaintiff filed several inaccurate and false business reports while employed by defendant. Several such reports indicate that he had serviced various business outlets when, in fact, he had not done so. Additionally, plaintiff reported to defendant that he had incurred various expenses due to certain cigarette promotional campaigns for which plaintiff was subsequently reimbursed by defendant, however, it was established at trial that plaintiff had not actually incurred such expenses. Crochet admitted that he falsified various business records and reports after the date of the accident. These activities resulted in the termination of plaintiff’s employment with defendant.

The trial court was obviously adversely impressed by the numerous discrepancies and inconsistencies between plaintiff’s testimony and that of the other witnesses and the documentary evidence received at trial. In this regard the trial court stated:

“Plaintiff himself admitted that he had falsified various work records of his em ployer after the date of the accident for which he was ultimately discharged. The Court, as previously stated, also had the opportunity to observe the plaintiff on the witness stand on cross-examination, and, in fact, notes that at one point in time, the plaintiff himself stated on the witness stand that he wasn’t even sure when the accident happened. After observing the plaintiff’s demeanor on the witness stand on cross-examination and after considering all of the other evidence, which in the Court’s opinion is sufficient in and of itself to discredit or cast serious doubt on the truthfulness of the plaintiff’s version of the occurrence of the accident, the Court is not impressed with the truthfulness of the plaintiff’s testimony as to the occurrence of the accident.”

The record clearly casts doubt upon the plaintiff’s credibility and veracity, and for this reason, even the medical testimony presented at trial must be considered inconclusive. All of the medical expert witnesses stated that their opinions, as to the cause of plaintiff’s alleged injury, were dependent upon the accurateness and truthfulness of plaintiff’s representations regarding the occurrence of the accident. In addition, the record reflects that plaintiff sustained a back injury and thereafter underwent back surgery in 1967. Crochet, himself, testified inconsistently regarding whether or not he had any residual effects from the aforesaid injury and subsequent surgery. We observe that plaintiff’s family physician and two other examining physicians found no objective evidence of plaintiff’s alleged disability. In fact, one physician, an orthopedic surgeon, testified that plaintiff was exaggerating his symptoms and that certain tests administered to plaintiff obtained results inconsistent with plaintiff’s complaints of back pain. Shortly before trial, plaintiff was examined by a neurosurgeon who opined that plaintiff suffered from a probable herniated disc, however, he gave no indication that the disc problem was connected with plaintiff’s alleged accident on September 19, 1980.

It is settled jurisprudence that the workmen’s compensation claimant has the burden of proving by a preponderance of the evidence that his disability is causally related to an accident that occurred during the course and scope of his employment. Prim v. City of Shreveport, 297 So.2d 421 (La.1974). The testimony of a claimant alone may be sufficient to prove the occurrence of a work-related accident, if such testimony is plausible, consistent, and is supported by other circumstances appearing from the record. However, where the plaintiff’s testimony is the sole evidence, it must be clear and convincing. See Soileau v. Bituminous Casualty Corp., 348 So.2d 1313 (La.App. 3rd Cir. 1977).

In West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979), our Supreme Court stated:

"... the trier of fact should accept as true the uncontradicted testimony of a witness, even though the witness is a party, at least in the absence of circumstances in the record casting suspicion on the reliability of the testimony.”

In Charleston v. Nabors Trailers, Inc., 381 So.2d 894 (La.App. 2d Cir. 1980), contradictions and discrepancies in the testimony of the claimant were deemed to be “circumstances casting suspicion on the reliability of this testimony”. In the instant case, plaintiff was the sole witness to the alleged accident. His testimony regarding the circumstances surrounding the incident were inconsistent and characterized by significant discrepancies. In addition, the medical testimony received at trial failed to establish plaintiff’s alleged disability.

It is well settled that the reviewing court must give great weight to the reasonable evaluations of credibility and reasonable inferences of fact made by the trial court. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, writ granted, 359 So.2d 1303 (La.1978), 365 So.2d 1330 (La.1978), on remand, 370 So.2d 1262 (La.App. 3rd Cir. 1979); Bertrand v. Aetna Casualty and Surety Compa ny, 306 So.2d 343 (La.App. 3rd Cir. 1975). After examining the record, we conclude that the same clearly supports the finding of the trial judge that the plaintiff failed to prove the occurrence of a work-related accident by a preponderance of the evidence.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of these proceedings are assessed to plaintiff, Alfred Crochet, Jr.

AFFIRMED.


text:
    Deborah DUHON, Plaintiff-Appellant, v. Arlie D. DUGAS, Defendant-Appellee.
    No. 8568.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 16, 1981.

      Miguez & Leckband, Carl A. Leckband, Jr., Lake Charles, for plaintiff-appellant.
    Scofield & Associates, Benjamin W. Mount, Lake Charles, for defendant-appel-lee.
    Before FORET, SWIFT and LABORDE, JJ.
   FORET, Judge.

Deborah Duhon (Plaintiff) brought this tort action seeking to recover damages for personal injuries and the destruction of a house purchased by her from defendant, Arlie D. Dugas. Plaintiff alleges that these damages resulted from defendant’s negligence. Defendant reconvened and sought to recover damages for personal injuries, property damages and expenses incurred as a result of plaintiff’s failure to move the house off of defendant’s land at the time agreed upon.

The trial court rendered judgment dismissing plaintiff’s main demand and defendant’s reconventional demand. Plaintiff-appellant raises the following issues on appeal:

(1) Whether the trial court committed manifest error in finding no conduct on the part of the defendant which was a cause-in-fact of the harm suffered by the plaintiff;
(2) Whether the trial court erred in finding that the risk of destruction of the object of the sale (the house) was on the plaintiff,

FACTS

This suit arises out of the verbal sale of a house belonging to defendant and purchased by plaintiff on May 17, 1978, for the sum of $2,500.00. The house was located in Iowa, Louisiana, and was to be moved by plaintiff as soon as possible, to enable defendant to begin construction of a new home on the land.

At the time of the sale, there was at least one tree limb overhanging the house which had to be cut to allow the movers to jack up the house. In addition, the top story and one of the rooms had to be removed because of height and width restrictions. Several days after these alterations were made, the movers arrived at the location to begin the move. The testimony is contradictory as to what happened next, except for the fact that the house wasn’t moved.

The movers were unable to return to complete the job until August 17, 1978, some two months later than planned. During this period of time, the house was covered with plastic sheeting as the roof had been removed. However, this proved to be inadequate protection and heavy rains caused extensive damage to the interior of the house. Plaintiff attempted to repair the house after it was moved, but the damage was too great and it was finally torn down.

Plaintiff instituted this action on June 15, 1979, alleging: that defendant refused to allow the removal of a tree or the cutting of any branches of the tree, which were blocking the path to be used in moving the house; that this resulted in the movers’ leaving and the house remaining on defendant’s land for some two months with its top story and roof removed; and, that during this period of time the plastic sheeting covering the house failed, resulting in extensive and irreparable damage to the house. Plaintiff contended that defendant’s refusal to allow the removal of the tree or the cutting of its branches constitutes actionable negligence and that defendant is liable to her for the damages caused by said refusal. Plaintiff also alleged that she suffered personal injuries (mental anguish and harassment) which were caused by defendant’s negligence.

Defendant answered plaintiff’s petition generally denying the allegations of fact contained therein and then assumed the position of plaintiff-in-reconvention. She alleged in her recon ventional demand: that a verbal sale of the house had been made to plaintiff on May 17, 1978; that plaintiff had agreed to move the house on June 26, 1978; that on June 26, 1978, plaintiff could have moved the house off of her property by heading north, but instead wanted to go south, which would have necessitated the cutting and removal of trees; that plaintiff’s mover agreed that the house could be moved through the north side of the property; that plaintiff and mover left without moving the house and failed to return until August 15, 1978, and moved the house off on August 17, 1978.

DEFENDANT’S ALLEGED NEGLIGENCE

Plaintiff contends that the trial court committed manifest error in failing to find that actionable conduct on the part of defendant was a cause-in-fact of the harm suffered by plaintiff. Essentially, plaintiff argues that defendant refused to allow the cutting of any tree limbs that presented obstacles to the moving of the house and that this refusal ultimately resulted in the destruction of the house.

The testimony of the parties and their witnesses as to defendant’s alleged refusal is completely contradictory. Plaintiff testified that the parties had agreed that the house be moved off of defendant’s land towards the north and that certain limbs on a tree could be cut to facilitate the move. An employee of the moving company testified that there never was any question as to the fact that the best way to move the house was towards the north. He also testified that defendant came by the house on the day it was to be moved and told them that he could not cut a limb overhanging the house.

Defendant, on the other hand, testified that she had met with plaintiff prior to the date on which the house was to be moved. She stated that she told plaintiff that it would be best to move the house towards the north, but was informed that the mover wanted to move it towards the south. A move towards the south would have necessitated the complete removal of an oak tree and a number of limbs from other trees and defendant was opposed to this. The first contact defendant had with the movers was on or around July 1, 1978. Defendant drove out to the house that morning and noticed that the movers were preparing to move the house. She testified that the foreman indicated that they were planning to move the house towards the south. She objected to this and the foreman told her he would make a phone call. When he returned, he indicated to her that it would be all right to move the house towards the north. She testified that she had given the movers permission to remove those limbs blocking the way towards the north and then left, believing that the house would be moved in that direction. She passed by the house early that afternoon and testified that the movers appeared to be proceeding with the job. However, when she went to the house around dusk, the movers had left and taken their equipment with them. She had no further contact with them. She finally set a deadline for plaintiff to have the house moved. On August 17, 1978, the house was moved by going north.

Defendant’s son, John P. Dugas, testified that he did meet with the movers when he found out that the house had not been moved at the time agreed upon. He stated that he got into a heated discussion with the foreman because the foreman kept indicating that he wanted to move the house toward the south because it would be easier. The object was to get the house to U.S. Highway 90 and one could go straight to that highway by going south. However, Dugas emphatically stated that he did not want the oak tree blocking the path destroyed. He had no further contact with the movers.

Our review of the record establishes that the trial court’s finding that no conduct of the defendant was a cause-in-fact of plaintiff’s harm is not clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Co., 283 So.2d 716 (La.1973).

EXISTENCE OF A CONTRACT OF SALE

Plaintiff contends that a contract of sale was entered into by the parties for the sale of the house. She argues that, under the provisions of certain articles found in Title VII (“Of Sale”) of Book III of the Louisiana Civil Code, it is defendant who is responsible for the destruction of the house, or, who bore the risk of its destruction. However, there exists a potential problem in making such a determination based on those codal articles. The problem arises from the fact that the object of the sale (the house) is an immovable. See LSA-C.C. Article 464 and comments thereto.

LSA-C.C. Article 2440 provides:

“Art. 2440. Sale of immovable, methods of making
Art. 2440. All sales of immovable property shall be made by authentic act or under private signature.
Except as provided in article 2275, every verbal sale of immovables shall be null, as well for third persons as for the contracting parties themselves, and the testimonial proof of it shall not be admitted.” (Emphasis ours).

There was no authentic act or act under private signature entered in evidence to prove the existence of a contract of sale between the parties.

LSA-C.C. Article 2275 provides:

“Art. 2275. Verbal sale of immovables Art. 2275. Every transfer of immovable property must be in writing; but if a verbal sale, or other disposition of such property, be made, it shall be good against the vendor, as well as against the vendee, who confesses it when interrogated on oath, provided actual delivery has been made of the immovable property thus sold.”

In conformity with the above mentioned codal authority, it is now the well-settled law of this State that sales of immovable property must be in writing and no verbal sale or disposition of immovable property shall be valid against an alleged vendor unless the vendor admits the sale or disposition when interrogated under oath, provided also actual delivery of the immovable sold has been made. Perry v. Perry, 122 So.2d 829 (La.App. 1 Cir. 1960), and authorities cited therein. See also Williams v. Alexander, 193 So.2d 94 (La.App. 1 Cir. 1966), and Langevin v. Howard, 363 So.2d 1209 (La.App. 2 Cir. 1978), writ denied, 366 So.2d 560 (La.1979).

The record shows that defendant (vendor) admitted at trial, under oath, that she had made a verbal sale of the house to plaintiff. Thus, if there was actual delivery made of the house to plaintiff prior to trial, the verbal sale is valid. LSA-C.C. Article 2275, supra, provides no definition of the term “actual delivery” as used therein.

LSA-C.C. Article 2477 provides:

“Art. 2477. Tradition or delivery, definition
Art. 2477. The tradition or delivery is the transferring of the thing sold into the power and possession of the buyer.”

We are of the opinion that the term “actual delivery” as used in LSA-C.C. Article 2275 means that the immovable, which is the object of the verbal sale, has in fact been transferred or placed into the power and possession of the buyer. A determination of whether “actual delivery” of an immovable has been made as required by LSA-C.C. Article 2275 depends on the facts and circumstances of each individual case.

Here, defendant testified that she agreed to sell the house to plaintiff on May 17, 1978, and that plaintiff gave her a check that day for the full amount of the purchase price. She told plaintiff at that time that she wanted the house moved as soon as possible and plaintiff agreed to do so. Plaintiff’s testimony as to the details of this sale is essentially the same as defendant’s, except that she places the date of the sale on or around June 15, 1978. We accept the date given by defendant as the date on which the verbal sale was made.

We find that “actual delivery” of the house was made to plaintiff on May 17, 1978. It was on that day that the house was in fact transferred or placed into the power and possession of the plaintiff (buyer). She was free to do whatever she wanted with it and could have moved it that day had she chosen to do so.

We find that the verbal sale of the house by defendant to plaintiff was valid since all of the requirements of LSA-C.C. Article 2275 were met.

RISK OF DESTRUCTION

Having found that a valid sale of the house was made, we must now determine who bore the risk of its destruction at the time it was destroyed.

LSA-C.C. Article 2467 provides, in pertinent part:

“Art. 2467. Risk after sale
Art. 2467. As soon as the contract of sale is completed, the thing sold is at the risk of the buyer, ...”

LSA-C.C. Article 2456 provides:

“Art. 2456. Completion of contract by agreement as to object and price
Art. 2456. 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.”

As noted above, both parties testified that they reached an agreement for the object (the house) and for the price thereof ($2,500.00). We have found that this agreement was reached on May 17, 1978 and, thus, plaintiff bore the risk of the destruction of the house thereafter. We note that the damage to the house occurred sometime after July 1, 1978, which was subsequent to the date on which plaintiff testified that an agreement had been reached by the parties.

Plaintiff contends that defendant breached her duty under LSA-C.C. Article 2468 to guard the house as a faithful administrator pending its delivery to plaintiff. There is no evidence in the record to support this contention.

For the above and foregoing reasons, the judgment of the trial court dismissing plaintiff’s main demand is affirmed. All costs of this appeal are assessed against plaintiff-appellant.

AFFIRMED.

      . Ms. Dugas did not appeal the dismissal of her reconventional demand, nor did she answer plaintiff’s appeal: therefore, the judgment of the trial court is final as regards her reconven-tional demand.

      . This method of making delivery of immova-bles is to be distinguished from that found in LSA-C.C. Article 2479 which provides:
      “Art. 2479. Immovables, method of making delivery
      Art. 2479. The law considers the tradition or delivery of immovables, as always accompanying the public act, which transfers the property. Every obstacle which the seller afterwards interposes to prevent the taking of corporal possession by the buyer, is considered as a trespass.”

      . LSA-C.C. Article 2468 provides:
      “Art. 2468. Seller’s duty of care pending delivery
      Art. 2468. Until the thing sold is delivered to the buyer, the seller is obliged to guard it as a faithful administrator; and if, through want of this care, the thing is destroyed, or its value diminished, the seller is responsible for the loss.”


author: LABORDE, Judge.

text:
    Nguyen VAN DUNG, Plaintiff-Appellee, v. TEL AG SERVICES, INC., Defendant-Appellant.
    No. 8571.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 16, 1981.
    Ben C. Bennett, Jr., Marksville, for defendant-appellant.
    Pavy, Hebert & Carriere, Donald W. Hebert, Opelousas, for plaintiff-appellee.
    Before FORET, SWIFT and LABORDE, JJ.
   LABORDE, Judge.

Nguyen Van Dung brought this suit for the balance in wages allegedly due him under an employment contract entered into with Tel Ag Services, Inc., wherein plaintiff was to perform services as a helicopter pilot for the defendant’s crop dusting business. Plaintiff also sought penalties and attorney’s fees pursuant to LSA — R.S. 23:631 and 632. Following a jury trial, plaintiff was awarded $10,441 in back wages along with attorney’s fees in the amount of $3,480.33 Plaintiff’s claim for penalties was denied. From the judgment, defendant appealed and plaintiff answered the appeal.

The issues involve the construction of the employment contract and the applicability of LSA-R.S. 23:631 and 632. We amend and affirm.

FACTS

On February 8, 1979, plaintiff and defendant entered into a contract of employment. Plaintiff agreed to perform services as a helicopter pilot for the defendant’s crop dusting business. The employment contract covered one crop year commencing February 7, 1979, and ending December 31, 1979. Plaintiff, under the terms of the contract, agreed to devote his entire occupational time and energy to the performance of his duties as provided by the contract.

Defendant, in return for plaintiff’s services, agreed to compensate him with a guaranteed salary of $1,000 per calendar month. Defendant also agreed that “when and if Tell [sic] Ag Service, Inc. shall have done a gross business of $48,000.00 then the said Nguyen Van Dung shall be entitled to Vi of said gross profit and Tell [sic] Ag Service, Inc. shall be entitled to a credit in the sum of monies already paid to Nguyen Van Dung.” Additionally, the parties agreed that defendant would pay all maintenance and insurance expense associated with aircraft equipment or other items used in its crop dusting business.

According to the facts established at trial, plaintiff performed flying services for the entire crop year of 1979 pursuant to the employment agreement. Throughout that year, plaintiff was paid $1,000 for eleven months and in November of 1979 he also received from defendant a payment of $5,000.

At the close of the contract term, plaintiff determined that defendant had earned a gross profit of $105,767 attributed to plaintiff’s flying services. Plaintiff, claiming that under the contract one fourth of this amount less credits was owed him, made several demands for its payment. Defendant refused, justifying his refusal on the basis that gross profit as used in the contract was intended by him to mean gross receipts less expenses. Institution of this suit followed.

INTERPRETATION OF THE EMPLOYMENT CONTRACT

Three of defendant’s assignment of errors center upon the proper interpretation to be given Section 3 of the employment contract. Section 3, reproduced below, sets forth the manner in which plaintiff was to be compensated for his services.

In his first assignment of errors, appellant argues that the terms “gross business” and “gross profit” render the contract vague and susceptible to differing interpretations and as a result, defendant should have been permitted to introduce evidence to show the true intention of the parties.

Civil Code Articles 1945 et seq. set forth several axioms of contract interpretation. Those applicable here include the well settled one that courts are bound to give legal effect to all contracts according to the true intent of the parties. It is equally well settled that the intent is to be determined by the words of the contract when they are clear and explicit and lead to no absurd consequences. LSA-C.C. art. 1945. In addition, all clauses of agreements are interpreted the one by the other, giving to each the sense that results from the entire act. LSA-C.C. art. 1955.

The issue of whether the contract was ambiguous was raised in and decided by the lower court. After a lengthy probing, the court found the contract to be unambiguous and stated that extrinsic evidence would not be admitted to expand its terms. The matter proceeded to trial and at its conclusion, the jury was instructed in accordance with the principles set forth above. Presumably following these instructions, the jury determined that the parties, by their contract, intended the terms “gross business” and “gross profit” to have the same meaning.

Upon our reading of the entire contract in the case at hand, especially Section 4 wherein defendant agreed to pay all expenses associated with its crop dusting business, we agree that its terms are clear and explicit and that the interpretation arrived at by the jury is one which leads to no absurd consequences.

In spite of the court’s ruling that the contract was unambiguous and that extrinsic evidence would not be allowed to expand its terms, the court, nonetheless, throughout the trial allowed testimony regarding income and expenses of the business as well as evidence relative to the gross business and gross profit of defendant’s crop dusting business for the 1979 crop year. Part of this additional evidence was a U.S. Partnership Return of Income prepared on behalf of plaintiff and defendant and filed by them for the year 1979. Line 1-a indicated gross receipts of $105,767.05. Line 2, where cost of operations, if any, should be listed, showed none. Line 3 indicated gross profits of $105,767.05. We mention this merely to show that the jury’s conclusion that the parties intended the terms “gross business” and “gross profit” to have the same meaning, is a reasonable one and will not be disturbed on appeal.

Defendant next argues that it was error for the judge to allow a jury to interpret the contract. We disagree. The interpretation of a contract is a question of fact, not of law. The record shows the jury performed the function it was called upon to perform — that of determining the meaning of the contract. This second assignment lacks merit.

Defendant’s next assignment of error is similar to its first. In the third assignment, defendant states that the jury failed to consider the wording of section 3 of the contract, especially the terms “gross business” and “gross profit.” We feel our discussion under the first assignment of error is equally applicable here. Defendant in his third assignment also states that in a doubtful case, a contract must be interpreted against the one who prepared it. While this is a correct statement of law, (See LSA-C.C. art. 1957), it has no application here for two reasons: It has not been shown that this is a doubtful case, and the record does not indicate that plaintiff was responsible for preparation of the contract. Defendant’s third assignment of error lacks merit.

Upon our review, we hold that the judge’s ruling that the contract was unambiguous and the jury’s conclusions regarding the contract are amply supported by the record and are affirmed on appeal.

PENALTIES AND ATTORNEY’S FEES

Under LSA-R.S. 23:632 the jury denied plaintiff’s claim for penalty wages but awarded him $3,480.33 in attorney’s fees. Defendant appealed arguing that an award of attorney’s fees is improper where plaintiff’s claims for penalty wages is denied and that in any event, plaintiff had no cause or right of action under these statutes. Plaintiff answered the appeal and asked that penalty wages be awarded and that the award of attorney’s fees be increased due to additional work required on appeal.

Turning first to the matter of plaintiff’s rights under these statutes, the record shows that plaintiff was hired for a period of one crop year commencing February 7, 1979, and ending December 31, 1979. During that term, plaintiff’s pay was to be $1,000 per month guaranteed, but when and if defendant did a gross business of $48,000 then plaintiff would be entitled to one fourth less a credit for sums already paid. These facts are reiterated merely to emphasize that plaintiff’s rate of pay was indefinite and that his employment was not by the hour, the day, the week, or the month. Hence the statutes are inapplicable to the situation involved in this action. Gatti v. Southern Research Company, Inc., 271 So.2d 376 (La.App.2d Cir. 1972); and Benham v. Guilbeaux, 356 So.2d 1062 (La. App.3rd Cir. 1978), writ refused, 358 So.2d 642 (La.1978).

Our determination that plaintiff does not come within the purview of these statutes pretermits a discussion of the remaining issues concerning their application.

For the above reasons, the judgment of the lower court is amended to exclude the award of attorney’s fees to plaintiff. In all other respects, it is affirmed. Costs of this appeal are assessed one-half to defendant-appellant and one-half to plaintiff-appellee.

AMENDED, AND AFFIRMED AS AMENDED.

SWIFT, J., concurs in the result.

      . “Nguyen Van Dung shall be paid, by Tell Ag Service, Inc., for his services as follows: (a) a guaranteed $1000.00 per calendar month, payable on or before the 5th of each month, commencing with the month of February, 1979 in which month he shall be paid as of contract date, (b) when and if Tell Ag Service, Inc. shall have done a gross business of $48,000.00 then the said Nguyen Van Dung shall be entitled to ‘A of said gross profit and Tell Ag Service, Inc. shall be entitled to a credit in the sum of monies already paid to Nguyen Van Dung.”


author: STOKER, Judge.

text:
    Bivion Cecil BROOKING, Plaintiff-Appellee, v. Freddie Lavergne BROOKING, Defendant-Appellant.
    No. 8418.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 16, 1981.
    Rehearing Denied Jan. 29, 1982.

      Norman M. Magee, Ferriday, for defendant-appellant.
    John R. Rarick, St. Francisville, for plaintiff-appellee.
    Before CULPEPPER, CUTRER, and STOKER, JJ.
   STOKER, Judge.

The sole issue on appeal in this case is the interpretation to be given to a clause in a community property agreement between defendant-appellant, Bivion Cecil Brooking, and plaintiff-appellee, Freddie Lavergne Brooking. The clause in contention, found in Article IV, Subsection 1 of the agreement, is as follows:

“BIVION CECIL BROOKING, JR., AND FREDDIE LAVERGNE BROOKING agree further to these items:
“1) BIVION CECIL BROOKING, JR., will assume and pay $13,757 of 1978 income tax billed to and due by Freddie Lavergne Brooking as part of the community settlement, plus the state tax for the year 1978.”

The appellee claims that the disputed clause renders the appellant liable not only for the amount of taxes mentioned in the agreement but also for any penalties and interest accruing for failure to pay that amount timely. The appellant contends that the clause quoted above limits his liability for appellee’s tax debt to the amount specified, the sum of $13,757.00.

The trial court overruled an Exception of No Right and No Cause of Action filed by appellant. After trial on the merits the trial court held appellant liable to appellee for the sum of $932.04, the amount of penalties and interest which appellee was required to pay on $13,737.00.

FACTS

The parties entered into the community property agreement in question on December 10,1979, and were divorced on the same day. The parties agree that the figure of $13,757.00 stated in paragraph IV, subpara-graph 1 of their agreement was derived by the appellant’s accountant in an amended tax return for 1978 filed in November of 1979 and was the accountant’s estimate of the appellee’s share of the 1978 federal income tax.

The appellee’s actual tax assessment without penalties and interest was $13,-737.00, as shown by an Internal Revenue Service Tax notice dated February 11,1980. With interest, the tax at the time of the February 11 notice amounted to $14,442.29. The appellant sent two checks totalling $13,737.00 to the appellee on March 10, 1980.

Appellee paid $13,737.00 to the Internal Revenue Service using these two checks. She then received a second billing from the Internal Revenue Service dated April 4, 1980, for $705.29 owed as interest on the first bill plus an additional interest charge for $158.07 and a late payment penalty of $68.68. In response to the second billing appellee paid the total of $932.04 by check dated April 5, 1980. This sum of $932.04 was awarded to the appellee by the trial court.

ISSUES

The appellant contends that the trial court erred in two respects in making this award:

1. In overruling the Exception of No Right and No Cause of Action filed by defendant, Bivion Cecil Brooking; and

2. In holding that Article Four (4) SubSection (1) of the Community Property Contract “was not restrictive and limited in nature”.

These assignments of error are discussed below.

WAS THE EXCEPTION OF NO RIGHT AND NO CAUSE OF ACTION PROPERLY OVERRULED?

With respect to appellant’s “exception of no cause or right of action” it is clear that appellant’s pleading sets forth an exception of no cause of action only. The exception as particularized reads in part that “plaintiff’s allegations fail to show or disclose any cause or right of action as the defendant has paid the amount he agreed to pay as set forth in Paragraph IV(1) of the community property settlement.”

Reserving judgment for the moment as to whether the allegations in the petition, based on questions of interpretation of the agreement, state a cause of action for the full sum of $932.04 prayed for, we find that the allegation that the defendant paid only $13,737.00 of the petitioner’s 1978 taxes although he agreed to pay $13,757.00 of that debt states a cause of action for the sum of $20.00. When a petition states a cause of action as to any ground or portion of the demand, the exception of no cause of action must be overruled. Rodriguez v. American Bankers Insurance Company of Florida, 386 So.2d 652 (La.1980); Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La.1975).

DOES THE COMMUNITY PROPERTY AGREEMENT LIMIT APPELLANT’S LIABILITY?

Appellant contends that the language of Article IV, subsection 1 of the community property agreement quoted above limited and restricted his liability for the appellee’s 1978 tax liability to the maximum sum of $13,757.00 specified. Appellant also cites LSA-C.C. art. 2236 to support his argument. Article 2236 states:

“The authentic act is full proof of the agreement contained in it, against the contracting parties and their heirs or assigns, unless it be declared and proved a forgery.”

We find that the language of the section of the community property agreement is clear and unambiguous in expressing the intention to limit the appellant’s liability. We also find that the agreement is in authentic form, having been executed before a notary public and two witnesses in conformance with LSA-C.C. art. 2234. Therefore, the community property agreement is full proof of the agreement between the contracting parties in this case. Since the language of the section of the agreement in dispute is clear and unambiguous, and no allegations were made that the contract is a forgery, the court cannot vary the terms of the agreement by parol evidence. LSA-C.C. art. 2276; Gay v. Martinolich, 271 So.2d 689 (La.App. 1st Cir. 1972).

Appellee sought by parol evidence to establish that the figure stated in the agreement represented the total amount of tax, exclusive of any interest and penalties that might be assessed and which the parties anticipated would be owed by the appellee. Appellee’s position is that the parties actually agreed that the appellant would be liable for the appellee’s total income tax debt for 1978, calculated from a base of $13,757.00; that is, base plus any interest and penalties which might be assessed. However, the disputed section of the agreement clearly states that the appellant, Bivion Cecil Brooking, Jr., “will assume and pay $13,757.00 of 1978 Income tax billed to and due by Freddie Lavergne Brooking,” the appellee. (Emphasis supplied.) Parol evidence should not be admitted to alter the terms of an agreement in authentic form in the absence of fraud, error, a counter-letter, or an assumption of facts to the contrary made by the parties thereto. Cosey v. Cosey, 376 So.2d 486 (La.1979); Summers v. Summers Brothers, Inc., 385 So.2d 489 (La.App. 1st Cir. 1980); Morrison v. Richards, 343 So.2d 375 (La.App. 4th Cir. 1977), writ denied, 345 So.2d 503 (La.1977); Miles v. Miles, 328 So.2d 394 (La.App.3rd Cir. 1976).

No fraud, error, or counter-letter was alleged in this case, and the only admission of facts shown by the record is that the figure of $13,757.00 in the agreement was the appellee’s tax debt anticipated by the parties. This admission does not show that the parties intended that the appellant would be liable for more than $13,757.00 should the appellee’s total tax debt be greater than that amount.

The trial court reached the opposite conclusion in formulating its judgment. In its reasons for judgment the trial court stated:

“I do not agree, under the facts of this case and the language of the contract, that Plaintiff’s obligation is limited to this specific monetary figure recited in the agreement. In my view, that is simply describing the income tax as it existed on the date of the agreement.”

The court does not give further reasons to support these conclusions.

For the reasons stated above, we find that appellant is liable for $13,757.00 of appellee’s 1978 tax debt and no more under the terms of the community property agreement. We also find that the appellant’s total tax debt was $14,669.04 and therefore it exceeds the amount appellant agreed to pay. Consequently, appellant was obligated to pay the full amount of $13,757.00. Inasmuch as the appellant paid only $13,-737.00 of the appellee’s total tax debt and he agreed to pay $13,757.00 of that debt, we amend the trial court’s judgment to render judgment in favor of appellee Freddie Lav-ergne Brooking, and against appellant, Bivion Cecil Brooking, in the sum of $20.00 together with legal interest thereon and costs of these proceedings in the trial court. Plaintiff-appellee is cast for all costs of this appeal.

AMENDED AND AFFIRMED AS AMENDED.

      . An issue raised at trial was whether one of these checks, which was a refund from the State of Louisiana in the amount of $902.00, represented community property, and therefore whether half of the amount was already owned by the appellee. The trial court, however, found that under another clause in the community property agreement the check was fully owned by the appellant before he assigned it to the appellee to discharge part of her tax debt. The appellee did not answer the appeal and this point is not at issue before us, as is conceded in appellee’s brief.

      . LSA-C.C. art. 2234 provides in pertinent part:
      “The authentic act, as relates to contracts, is that which has been executed before a notary public or other officer authorized to execute such functions, in presence of two witnesses, aged at least fourteen years, or of three witnesses, if a party be blind. If a party does not know how to sign, the notary must cause him to affix his mark to the instrument.”
      4: sj< ¡fc * * %

      . As pointed out by the trial court, under section 6601(e)(1) of the Internal Revenue Code interest and penalties are considered part of the tax.


author: CULPEPPER, Judge.

text:
    Rodney LACOMBE, Individually and on Behalf of His Minor Son, Chad Lacombe, Plaintiffs & Appellants, v. Carroll GREATHOUSE, et al., Defendants & Appellees.
    No. 8486.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 16, 1981.

      Cox & Cox by William N. Cox and Rex D. Townsley, Lake Charles, for plaintiffs & appellants.
    Plauche, Smith, Hebert & Nieset, James R. Nieset, Raggio, Cappel, Chozen & Bern-iard, Christopher M. Trahan, Lake Charles, for defendants & appellees.
    Before CULPEPPER, CUTRER and STOKER, JJ.
   CULPEPPER, Judge.

Plaintiff, individually and on behalf of his minor son, Chad Lacombe, seeks damages resulting from injuries sustained by the minor when he fell into a bed of hot coals under a burned out brush pile during land clearing operations. Defendants are Carroll Greathouse, the clearing contractor, his liability insurer, St. Paul Fire & Marine Insurance Company, and Southern Farm Bureau Casualty Insurance Company, liability insurer of the landowner.

After presentation of plaintiff’s case, Southern Farm Bureau moved for a directed verdict, which was granted by the trial judge. After further evidence was adduced on the issue of liability of the contractor, the case was submitted to the jury, which found that Greathouse was not negligent. From a judgment dismissing his suit, plaintiff appeals. We affirm.

Plaintiff presents two issues on appeal: (1) Does the directed verdict granted by the trial judge in favor of Southern Farm Bureau, liability insurer of the property owner, constitute reversible error? (2) Was the jury clearly wrong in finding the clearing contractor not negligent?

FACTS

Defendant, Carroll Greathouse, was retained by a representative of the R. W. Peyton Estate to clear a 20-acre tract near a residential area in Lake Charles, preparatory to subdividing it. The contractor and the estate representative who hired him mutually agreed that the debris would be disposed of by burning it on the premises, as this was customary and was cheaper than hauling it away.

Other than this contact with the representative, Greathouse had complete control over the clearing operations. The procedure involved first using bulldozers to push the trees and other debris on the property into piles, approximately 30 feet in diameter at the base. Mr. Greathouse or his employee later set fire to the piles. After each fire burned down, usually a day or two after it was first lit, they would dig a hole and push the remaining ashes into it.

Before the clearing operation began, children of the neighborhood often played on the partly wooded 20-acre tract. They rode their bicycles on trails, had built a tree-house and a tree-swing, and, generally, played in the area.

On the day in question, seven-year-old Chad was playing with a young friend after school. He was wearing tennis shoes without socks. In the course of play, the two boys went to the 20-acre tract where they had played many times before. They were aware that bulldozers had recently been working on the property and that brush-fires had been burned. Chad climbed on the branch of a fallen tree and began to walk away from the trunk toward the end of the branch. When he reached a point at which the branch was approximately two feet off the ground, it broke and Chad fell into hot ashes underneath it, sustaining first, second and third degree burns of his right foot, and first and second degree burns of his left. He has scars on his right foot, but no residual disability.

DIRECTED VERDICT

The standard for determining the propriety of granting a directed verdict was definitively stated by this Court in Campbell v. Mouton, 373 So.2d 237 (La.App. 3rd Cir. 1979):

“On motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence—not just that evidence which supports the non-mover’s case—but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury.”

The trial judge directed a verdict in favor of the landowner’s insurer based on the defendant’s contention that the plaintiff failed to show a legal duty owed by the landowner, the breach of which was a proximate cause of Chad’s injuries. Plaintiff argues that the holding of the trial court was in error, since reasonable and fairmind-ed men would have found that Southern Farm’s insured had a landowner’s duty to take preventive or precautionary measures, that it breached this duty, and that absent such breach, Chad would not have been injured.

The landowner’s insurer urged two grounds to support its motion for directed verdict at the trial. It contends that either of these grounds justifies the directed verdict. The second ground stated in the motion is that the landowner had permitted recreational use of the property, thus relieving it from liability except for the willful or malicious failure to warn against a dangerous condition, under La.R.S. 9:2795{B). The trial court rejected this argument, holding the statute inapplicable. We find this conclusion to be correct.

The statute in question reads as follows:

“B. Except for willful or malicious failure to warn against a dangerous condition, use, structure, or activity, an owner of land, except an owner of commercial recreational developments or facilities, who permits with or without charge any person to use his land for recreational purposes as herein defined does not thereby:
(1) Extend any assurance that the premises are safe for any purposes.
(2) Constitute such person the legal status of an invitee or licensee to whom a duty of care is owed.
(3) Incur liability for any injury to person or property incurred by such person.”

Southern Farm Bureau argues that allowing neighborhood children to play at random on the property brings its insured within the scope of the statute limiting liability. “Recreational purposes” is defined in R.S. 9:2795(A), Subsection 3 as follows:

“(3) ‘Recreational purposes’ includes, but is not limited to, any of the following, or any combination thereof: hunting, fishing, trapping, swimming, boating, camping, picnicking, hiking, horseback riding, bicycle riding, motorized vehicle operation for recreation purposes, nature study, water skiing, ice skating, sledding, snow mobiling, snow skiing, summer and winter sports, and viewing or enjoying historical, archaeological, scenic, or scientific sites.”

Southern Farm argues the statute contemplates the instant situation, where the landowner allowed use of his property as an area of impromptu play activity. We pre-termit this issue. Even if such use was within the meaning of the statute, we are in agreement with the trial judge’s finding that after the clearing operations began any previous permission to use the property for recreational purposes was withdrawn. The result is that the landowner does not enjoy the benefit of the statute.

The first grounds stated by Southern Farm in support of its motion for a directed verdict is that there was no breach of a duty owed to Chad Lacombe by its insured. This was the ground upon which the trial court granted a directed verdict. The apparent rationale was that the danger was open and obvious, the landowner had no duty to warn against it, and even if it was hidden the landowner could not be held liable as it was created by the negligence of an independent contractor.

We conclude that under the above quoted standards it was error to grant the motion on this grounds. A landowner has a duty to those on his property, expressed by the Louisiana Supreme Court in Shelton v. Aetna Casualty & Surety Company, 334 So.2d 406 (La.1976). Where a plaintiff has implied permission to use the property in question and frequently does so, the landowner owes him a duty to discover any unreasonably dangerous condition on the premises, and either to correct it or warn of its existence. The duty of a landowner is to act reasonably in view of the probability of injury to others. Shelton, supra; Walker v. Union Oil Mill, Inc., 369 So.2d 1043 (La.1979).

Whether or not the conduct of the defendant’s insured conformed to the standard of care that would be exercised by a reasonable landowner, or whether the insured’s conduct breached the landowner’s duty to protect those likely to be on his property against injury, are factual questions to be answered in accordance with the facts and circumstances peculiar to each case. Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972); Steele v. St. Paul Fire & Marine Insurance Company, 371 So.2d 843 (La.App. 3rd Cir. 1979), writ denied 374 So.2d 658.

The person charged with administration of this property was aware of the manner in which the clearing activities were being carried out. Indeed, it had been discussed and agreed between him and the contractor that the fallen trees would be piled and burned on the property. Both parties have stressed that certain parts of this tract had been used for some time as a playground by the neighborhood children. In light of the circumstances of this particular case, we feel that reasonable minds could have differed on the question of whether or not the landowner’s conduct or omissions constituted a breach of the duty to discover and correct or warn of unreasonable conditions, as expressed in Shelton and Walker, supra. Furthermore, if there was a breach, we feel that reasonable minds could have differed on the question of whether or not such breach was a cause-in-fact of Chad’s injuries. Therefore, these questions should have been submitted to the jury.

JURY VERDICT

The jury exonerated the defendant-contractor by holding that he was not negligent. The determinative issue on the question of the contractor’s negligence is one of reasonableness, i.e., conformity of his conduct to the standard of care that would be exercised by a reasonable man in the same or similar circumstances. Dyson v. Gulf Modular Corporation, 338 So.2d 1385 (La.1976); Hunt v. City Stores, 387 So.2d 585 (La.1980), rehearing denied September 12, 1980. The issue of the breach of this duty of reasonableness involves a factual determination. An appellate court is not free to substitute its own version of the facts for that found by the trial court absent manifest error. We cannot disturb this jury verdict unless it is clearly wrong. Dyson v. Gulf Modular Corporation, supra; Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Steele v. St. Paul Fire & Marine Insurance Company, supra.

Mr. Greathouse testified that he had been performing such jobs for ten years. The procedure used in clearing this tract was customary, as well as being less expensive than other methods. The only difference between this and other jobs, he stated, was that he took more care to keep the piles farther from the homes and the road. The fire in which young Chad was burned was at least 200 feet from the property line.

In both negligence and strict liability cases, the probability and magnitude of the risk are to be balanced against the utility of the thing or activity causing the harm. Hunt v. City Stores, supra. We here note that the activities of these defendants in preparing this tract of land for subdivision development is a useful undertaking. Moreover, the expense involved in carrying out the job in an alternative manner would be prohibitive to such endeavors. The clearing operations and fires in connection therewith were obvious to the entire neighborhood, so that, in the normal course of such circumstances, children would be admonished by their parents and others to stay away from the area, thus reducing the probability of such injuries as this to a minimum. Actually, plaintiff had told his wife to tell Chad to stay away from the fires.

Furthermore, the evidence obviously did not satisfy the jury that Chad would have heeded or understood warnings by this contractor, or indeed by this landowner, had they been given, or that some sort of individual barriers around the fires would have been successful in preventing Chad’s injuries. In the light of all of these surrounding circumstances, we cannot hold that the jury’s finding of no negligence was clearly wrong.

CONCLUSION

The final issue to be dealt with is whether our holding that the trial judge’s granting of a directed verdict was in error mandates a remand to the trial court, as requested by the plaintiff. We find to the contrary.

In Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975), our Supreme Court stated:

“[3,4] While the trial court remains the original forum for resolving factual and legal issues, the Louisiana Constitution expressly extends the jurisdiction of appellate courts in civil cases to the review of facts as well as law.
******
“In addition to the constitutional authority, and consistent with it, there is a very practical consideration which encourages our appellate courts to exercise their jurisdiction to review factual findings: judicial economy. When the entire record is before the appellate court, remand for a new trial produces delay of the final outcome and congestion of crowded dockets while adding little to the judicial determination process. Although the appellate court does not gain the benefit of personally viewing the witnesses, it does have a complete record and the constitutional authority to decide.”

Although we find that reasonable minds could differ as to whether or not the landowner failed to use reasonable care with regard to persons on his property, no remand is necessary in the instant case. The jury held, and we affirm, that the contractor was not negligent. Thus, there was no negligence by Greathouse which could be imputed to the landowner, regardless of whether he was an employee or an independent contractor. Furthermore, for the reasons stated above that there was no negligence by Greathouse, there was also no independent negligence by the landowner. Thus, the landowner was not negligent either vicariously or independently.

For the reasons assigned, the judgment appealed is affirmed at plaintiff’s cost.

AFFIRMED.