author: STOKER, Judge.

text:
    James R. HUDSON, et ux., Plaintiffs-Appellees, v. Jackie THOMPSON, et al., Defendants-Appellants.
    No. 82-270.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.
    Bodenheimer, Jones, Klotz & Simmons, J.W. Jones, Shreveport, for defendant-appellant-appellee.
    Lunn, Irion, Switzer, Johnson & Salley, Jack E. Carlisle, and Ronald Raney, Shreveport, for defendant-appellee-appellant.
    Don M. Burkett, Many, for defendant-ap-pellee.
    E.L. Edwards, Jr., Many, for plaintiff-ap-pellee.
    Before FORET, CUTRER, STOKER, JJ.
   STOKER, Judge.

Plaintiffs in this case, James and Florence Hudson, brought suit against the minor driver of a vehicle which hit them from the rear and his father, Marc and Jackie Thompson respectively. Also named as defendants were the Thompsons’ liability insurer, Casualty Reciprocal Exchange (Casualty), and plaintiffs’ own uninsured motorist insurer, Continental Insurance Company (Continental). Continental filed a third party action against the Thompsons and Casualty to exercise its subrogation rights for reimbursement of any amount paid by it to the Hudsons.

Judgment was granted in favor of the Hudsons and liability is not an issue in this appeal. The automobile insurers for plaintiffs and defendants raise questions of policy interpretation. Continental challenges an award of $15,000 in general damages and $6,344.26 in special damages granted to Florence Hudson (Florence). Continental also challenges the trial court’s ruling permitting stacking of uninsured motorist coverages provided by Continental’s policy in favor of the Hudsons. Casualty appeals the trial court’s ruling which held ineffective a policy provision specifically excluding coverage if sixteen year old Marc Thompson was driver of the Thompson vehicle.

Judgment in the trial court was rendered as follows:

(1) In favor of Florence and against Casualty, Jackie and Marc Thompson, in solido, for $10,000, the limits under Casualty’s liability policy.

(2) In favor of James and against Casualty, Jackie and Marc Thompson, in solido, for $700, to cover his $200 deductible on his property damage insurance and $500 general damages for him.

(3) In favor of Florence and against Continental for $11,344.84 under her uninsured motorist coverage to cover her general damages of $15,000 and lost wages.

(4) In favor of Continental and against Jackie and Marc Thompson in solido, for $10,000 to reimburse for uninsured motorist payments.

(5) In favor of Continental and against Casualty, Jackie and Marc Thompson, in solido, for $1,639.81 through subrogation of the Hudson’s claim for property damage.

Only the insurers, Casualty and Continental, appeal. We reverse in part and recast the judgment for reasons set out below.

The matters considered on appeal are: (1) Casualty’s claim that the trial court erred in finding an endorsement which specifically excluded Marc from liability coverage void as against public policy, (2) Continental’s claim that the trial court erred in “stacking” its uninsured motorist coverage, and (3) Continental’s claim that the damage award of $15,000 to Florence was excessive.

LIABILITY COVERAGE

Casualty denies that the liability policy issued by them to Jackie Thompson covers his minor son, Marc. The basis of this contention is an endorsement to the policy which reads:

“Subject' to the agreements, conditions, exclusions and other terms of the above numbered policy, it is hereby understood and agreed by and between the Company and the Named Insured that as a part of the consideration for the issuance or continuance of this policy, in addition to the premium charged, that the policy does not cover, nor shall the Company be liable for any accident, claim or lawsuit while any car covered hereunder is being operated by Marc Thompson or Jackie Thompson.”

At a hearing on Casualty’s motion for summary judgment before the Honorable W. Charles Brown, District Judge, the Hudsons and Continental successfully contended that the exclusion was against the public policy of the state of Louisiana and, as such, is unenforceable. We disagree.

Although there is a public policy in Louisiana requiring any registered car owner to have a motor vehicle liability policy or a motor vehicle liability bond, there is no legislative mandate requiring that an insurer issuing such a liability policy include any specific provisions. It is the statutory duty of the insured, not the insurer, to procure adequate liability coverage.

Unlike uninsured motorist coverage which insurers are required to provide by clear legislative directive in LSA-R.S. 22:1406, specific or standard provisions for automobile liability policies have not been made the subject of any statute directed at insurers. The court in Johnson v. Universal Automobile Insurance Association, 124 So.2d 580 (La.App. 3rd Cir.1960), said, “In the absence of statutory regulations to the contrary, insurers, and their policy holders may contract for limitations of the insurer’s liability as they wish.” This is still the law today and we find no statutory regulation which would prohibit Casualty from contracting as it did with the Thompsons. The liability policy issued by Casualty did not provide coverage for Marc. Therefore, all judgments against Casualty in favor of the Hudsons or Continental are reversed and the actions against it are dismissed.

STACKING

In rendering judgment of $11,344.84 in favor of Florence against Continental, the trial judge apparently “stacked” the uninsured motorist coverage in the Continental policy which covered two cars owned by the Hudsons. The limits of that coverage for each car under the one policy are $10,000 for any one injury and $20,000 for multiple injuries in any one accident.

Continental correctly contends that the maximum amount of its liability for uninsured motorist coverage under this policy is $10,000. LSA-R.S. 22:1406(D)(l)(c) provides:

“If the insured has any limits of uninsured motorist coverage in a policy of automobile liability insurance, in accordance with the terms of Subsection D(l), then such limits of liability shall not be increased because of multiple motor vehicles covered under said policy of insurance and such limits of uninsured motorist coverage shall not be increased when the insured has insurance available to him under more than one uninsured motorist coverage provision or policy; provided, however, that with respect to other insurance available, the policy of insurance or endorsement shall provide the following:
With respect to bodily injury to an injured party while occupying an automobile not owned by said injured party, the following priorities of recovery under uninsured motorist coverage shall apply:
(i) The uninsured motorist coverage on the vehicle in which the injured party was an occupant is primary;
(ii) Should that primary uninsured motorist coverage be exhausted due to the extent of damages, then the injured occupant may recover as excess from other uninsured motorist coverage available to him. In no instance shall more than one coverage from more than one uninsured motorist policy be available as excess over and above the primary coverage available to the injured occupant.” (Emphasis added.)

There is only one policy covering the two automobiles owned by the Hudsons; therefore, under the general provisions of the statute just quoted Continental’s uninsured motorist liability is limited to $10,000 for Florence. See Jones v. MFA Mutual Insurance Company, 410 So.2d 1190 (La.App. 3rd Cir.1982). In any event, Florence was occupying a car of which she is a co-owner and is not included in those specific exceptions to “anti-stacking” stated in the proviso portion of the statute quoted above. Courville v. State Farm Mutual Automobile Insurance Company, 393 So.2d 703 (La.1981).

AMOUNT OF DAMAGES

Continental also objects to the damage award to Florence, specifically, $6,344.26 for lost wages and $15,000 for general damages.

Although Florence did continue to be paid for the time she missed work, she lost accumulated sick leave in direct proportion to that time. The trial court was correct in holding that accumulated sick leave which is lost is a compensable item of damages. Teal v. Allstate Insurance Co., 348 So.2d 83 (La.App. 4th Cir.1977), writ denied, 351 So.2d 164 (La.1977); see also Kipp v. Hurdle, 307 So.2d 125 (La.App. 1st Cir.1974), writ refused, 310 So.2d 643 (La.1975).

As to the $15,000 general damage award, it appears that Florence’s injury was something more than minor whiplash. The force of the crash tore loose Florence’s seat belt and tore the bucket seat itself loose. She testified that she braced herself with her hands on the dashboard. Dr. Gunderson, an orthopedist, was the treating doctor in this case and found that Florence had a cervical and lumbar straining-type injury. He also found damage to bones in her wrist caused by arthritis which could have been aggravated by the accident.

Continental contends that plaintiff’s failure to require other doctors who saw her to testify would create a presumption that they would testify against her. The only doctors to which such a rule could apply in this case were her family doctor who saw her once in the emergency room in relation to this accident and Dr. Buttress, a doctor of internal medicine, who saw her on referral from Dr. Gunderson because her blood pressure was unusually high. Even if we presume that these doctors would have testified against Florence, the statements given by Dr. Gunderson are sufficient to support the award. He was the treating physician in the case and a specialist in orthopedics, a field of medicine covering Florence’s injuries.

We do not find that the $15,000 award was an abuse of discretion by the trial judge. Although we may not have awarded this amount, we do not find that it exceeds the highest amount reasonably within the discretion afforded the trier of fact. See Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977).

JUDGMENT

For purposes of clarity, we note at the outset that the amount of medical payments for Florence proven at trial was $1,985.58, despite the fact that Continental had already made medical payments in excess of $2,000. Absent conventional subro-gation, an insurer does not become legally subrogated to the rights of the insured by virtue of payments made under the policy’s medical payment coverage. Courtney v. Harris, 355 So.2d 1039 (La.App. 4th Cir.1978). Continental had no conventional subrogation for medical payments and cannot recover them from the Thompsons.

However, under the collateral source rule a tortfeasor may not benefit because of payments made through insurance benefits received by the victim from sources independent of the wrongdoer’s procuration or contribution. Bennett v. United States Fidelity and Guaranty Company, 373 So.2d 1362 (La.App. 1st Cir.1979), writ denied, 376 So.2d 1269 (La.1979). Therefore, even though Continental has paid Florence for medical expenses, the Thompsons are nevertheless liable to her for them.

In further explanation, we recognize that although Continental as the uninsured motorist insurer has no contractual or legal right to subrogation regarding its uninsured motorist coverage, it is entitled to reimbursement from Florence’s judgment against the Thompsons. Cf. Bond v. Commercial Union Assurance Company, 407 So.2d 401 (La.1981), on remand 415 So.2d 572 (La.App. 3rd Cir.1982).

For the foregoing reasons, we affirm the trial court judgment in part and reverse it in part and recast it as follows:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment in favor of plaintiff, James R. Hudson, and against defendants, Jackie and Marc Thompson, in solido, in the full sum of $700, together with legal interest from judicial demand until paid.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment in favor of plaintiff, Florence E. Hudson, and against defendants, Jackie and Marc Thompson and Continental Insurance Company, in solido, in the full sum of $23,-329.84, the judgment against Continental Insurance Company to be limited to the amount of its coverage, the sum of $10,000, together with legal interest from judicial demand until paid.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that there be judgment in favor of Continental Insurance Company on its third party demand and against Jackie and Marc Thompson, in soli-do, in the full sum of $11,639.81, together with legal interest from judicial demand until paid.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that an expert witness fee of $200, to be paid to Dr. Clark Alan Gunderson, is hereby fixed, same to be taxed as an item of costs.

IT . IS FURTHER ORDERED, ADJUDGED, AND DECREED that the judgment of the trial court, insofar as it grants judgment in favor of the principal plaintiffs, James and Florence Hudson, and in favor of the third party plaintiff, Continental Insurance Company, and against defendant and third party defendant Casualty Reciprocal Exchange, be and it is hereby reversed, and the actions against it are dismissed, the costs to be assessed as provided below.

The costs of the proceedings in the trial court are reassessed, and Continental Insurance Company and Jackie and Marc Thompson are east for these costs in solido, one-half to be paid by Continental Insurance Company and one-half by Jackie and Marc Thompson, the obligation as between Jackie and Marc Thompson for their one-half to be solidary. The costs of this appeal are assessed in solido, one-half to Continental Insurance Company and one-half to James and Florence Hudson, the obligation of James and Florence Hudson to be in solido as between them.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

      . Jackie Thompson is also a minor child of Jackie W. Thompson.

      . The total sum of $23,329.84 consists of $15,-000 in general damages, $6,344.26 in lost wages and $1,985.58 in medical expenses.


source: Caselaw Access Project

author: CUTRER, Judge.

license: Public Domain

text:
    Sharon Kay MAHFOUZ, Plaintiff-Appellee, v. Wallace R. DAVIDSON, Defendant-Appellant.
    No. 82-277.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.

      Louis M. Corne, Lafayette, for defendant-appellant.
    Constance Koury and Joseph A. Koury, Lafayette, for plaintiff-appellee.
    Before FORET, CUTRER and STOKER, JJ.
   CUTRER, Judge.

In late 1980 plaintiff listed her home with C.D.T. Agency (Cecil Trahan Realty) through Mildred Clark, a listing agent for C.D.T. Defendant was in the market for a town house and contacted Ellinor Anderson, an employee of C.D.T., to locate a home.

Anderson showed plaintiff’s home to defendant on November 5, 1980. On November 21, 1980, Anderson and defendant submitted an “Agreement to Purchase or Sell” to Clark, plaintiff’s agent. This agreement had been signed by the defendant. The agreement was accepted by plaintiff the same day.

The agreement called for the sale to be closed and plaintiff to vacate by January 15,1981. Anderson selected an attorney to handle the closing and scheduled a meeting for Thursday, January 15, 1981. Plaintiff, Clark, Anderson and the closing attorney met on the 15th. They were informed by, one of defendant’s employees that the defendant was hospitalized and could not attend. Another meeting was set for the following day. At this meeting the sale papers were signed by plaintiff, then delivered to an employee of the defendant for transfer to the hospital for defendant’s signature. The defendant signed the sale papers and wrote a check for $78,566.00, the cash portion of the sale price, payable to plaintiff. The defendant also assumed an existing mortgage.

On Sunday, January 18, 1981, defendant, on an afternoon furlough from the hospital, visited the property where he noticed that a mantle and firescreen had been removed. Defendant called Anderson and complained about these items being missing and other items of complaint.

On Monday, January 19,1981, the defendant stopped payment on his check for $78,-566.00 that had been delivered to plaintiff. Plaintiff examined the conveyance record and found the transfer had been filed of record. Plaintiff consulted her attorney. Defendant refused to take possession of the property.

Plaintiff had vacated the premises in question on January 13, 1981. Because plaintiff did not realize any money on the sale to defendant, plaintiff was unable to complete the purchase of another town house which she had contracted to buy. At the time suit was filed plaintiff was renting a town house and the premises in question were unoccupied. Plaintiff was then paying the note on the premises in question and rent on another town house. Approximately six months after suit was filed plaintiff moved back into the premises in question at the request of defendant’s attorney “so as to reduce damages.” Plaintiff continued to make the payments on the premises.

The plaintiff brought suit for specific performance, attorney’s fees and damages. The defendant reconvened for a declaratory judgment to have the sale declared invalid and also pleaded (not in the alternative) that, if he owed anything, he would get credit for rent owed by defendant at the rate of $750.00 per month.

The trial court rendered judgment awarding plaintiff $78,566.00 as the cash portion of the purchase price; $8,538.13 damages and $5,000.00 attorney’s fees. The reconventional demand of the defendant was dismissed.

Defendant appealed complaining only of the award of attorney’s fees and a portion of the damages awarded. We reverse in part and affirm in part.

Two issues are presented on appeal:

(1) Whether attorney’s fees should have been awarded to plaintiff; and
(2) Whether the plaintiff should have been awarded $6,340.68 for house payments she made after the cash sale and assumption was executed and, if so, whether defendant should be awarded a rental value of the house occupied by plaintiff for six months pending litigation.

ATTORNEY’S FEES

As a general rule attorney’s fees are not allowed a successful litigant in Louisiana except where authorized by statute or agreed to by contract. Rutherford v. Impson, 366 So.2d 944 (La.App. 1st Cir.1978), writ ref’d, 369 So.2d 140 (La.1979).

No statutory provisions cover this case. The contract must be examined to decide if attorney’s fees were properly awarded.

The contract to purchase signed by the plaintiff and defendant was a form used by C.D.T. The form contained blanks which were filled in by the selling agent; in this case, Anderson, to meet the particular needs of the parties to the contract. The form also provided for the contract to be “submitted to” the listing agent, Clark, for approval by the seller. This contract form puts defendant in the posture, as purchaser, of offering to buy from the plaintiff.

The disputed language regarding attorney’s fees is found at lines 58 and 59 of the form. These lines read as follows:

“Either party hereto who fails to comply with the terms of this offer, if accepted, is obligated and agrees to pay the agent’s commission and all fees and costs incurred in enforcing collection and damages.”

Plaintiff contends that “all fees” is a separate penalty provision encompassing attorney’s fees in addition to the penalty of paying the agent’s commission. Defendant contends the language “all fees,” etc., refers only to expenses incurred in collecting the agent’s commission.

The same language was interpreted by the court in the case of Lanusse v. Gerrets, 357 So.2d 45 (La.App. 4th Cir.1978). The court held that the provision only applied to the agent and had no reference to the right of the buyer or seller to seek attorney’s fees.

We hold that the provision specifically refers only to the fees and costs incurred in enforcing collection of the agent’s commission for making the sale. These fees and costs do not apply to suits for specific performance of the contract to sell. The trial court erred in awarding attorney’s fees and it will be reversed in this regard.

DAMAGES

The trial court found that the sale of .the town house was valid and complete. Plaintiff was awarded the purchase price called for in the contract. Defendant has not appealed this portion of the judgment. We will address the question, whether the trial court erred in its award of damages in conjunction with specific performance.

LSA-C.C. art. 2555 provides as follows:

“The purchaser, who neglects to obtain delivery of the thing sold, after having been put in default, is answerable to the vendor for the damage he may sustain on that account, and for the reimbursement of the expense which may have been incurred for the preservation of the thing.”

Defendant stopped payment on his check for the purchase price. This was an active breach on his part and putting in default was unnecessary. LSA-C.C. art. 1932.

The only item of damages which defendant appeals is an award to the plaintiff for amounts paid on the note after the date of sale. Such reimbursement is authorized by art. 2555. By continuing to pay the note on the town house, plaintiff preserved the premises for defendant. Plaintiff prevented defendant from defaulting on the loan he assumed when the sale was entered into.

The trial court properly awarded plaintiff the amount paid on the house notes after the sale of January 16, 1981.

CREDIT FOR RENT

On the day of trial defendant amended his reconventional demand adding a claim for the rental value of the town house during the time plaintiff occupied the premises while this suit was pending. Looking beyond the inconsistency of defendant’s claiming that he had not purchased the premises and his request for rent on these same premises, we find the contract precludes any such rent being paid.

Lines 27 and 28 of the contract read as follows:

“Either party hereto who occupies the property without holding the title will do so as a tenant of the other party and will pay rent of $ ‘N.A.’ per month during occupancy.”

We note that the blank was filled by defendant’s agent by inserting “N.A.” Anderson, defendant’s agent, prepared this contract and submitted it to plaintiff.

The inserted “N.A.” may be interpreted to mean that the occupying party acknowledges title in the other party and that a dollar amount is “not applicable.” An alternative interpretation may be that the entire rental clause is “not applicable.” In that case, the confector of the contract, the defendant, through Anderson, saw the provision and intentionally did away with it. In either event, construing the contract most favorably for the non-confecting party, plaintiff, there is no rent provided for.

The trial court was correct in dismissing the reconventional demand disallowing any credit for rent.

For these reasons, the trial court’s award of attorney’s fees to plaintiff is reversed and set aside. In all other respects the judgment of the trial court is affirmed. The costs of this appeal are to be paid one-half by plaintiff-appellee and one-half by defendant-appellant.

REVERSED IN PART; AFFIRMED IN PART.


author: FORET, Judge.

text:
    William BUXTON, d/b/a Buck’s Grocery and Meat Market, Plaintiff-Appellant, v. FIREMAN’S FUND INSURANCE COMPANY, et al., Defendant-Appellee.
    No. 82-281.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.

      John C. Ford, of Smith, Ford & Clark, Leesville, for plaintiff-appellant.
    Kimball, McLeod & Dow, William L. McLeod, Jr., Lake Charles, Bolen & Erwin, James A. Bolen, Jr., Alexandria, for defendant-appellee.
    Before FORET, CUTRER and STOKER, JJ.
   FORET, Judge.

William Buxton, d/b/a Buck’s Grocery & Meat Market (plaintiff), appeals from a judgment of the trial court maintaining a peremptory exception of no cause of action filed by defendant, CHM, Inc. We reverse and remand.

The sole issue is whether the trial court erred in maintaining defendant’s exception of no cause of action.

FACTS

Plaintiff filed a petition in which he alleged that he was the owner and operator of Buck’s Grocery and Meat Market on November 16, 1978, when that establishment and its contents were totally destroyed by fire. Defendant is an incorporated insur-anee agency d/b/a DeRidder Insurance Agency (CHM, Inc.). Plaintiff further alleged that he had procured certain insurance contracts with two of the original defendants to this action (see Footnote 1) through the defendant insurance agency, and alternatively plead that the latter was liable to him in the sum of $10,303.40. Plaintiff based his claim against defendant on certain acts of negligence allegedly committed by it.

From a reading of the petition, it appears that plaintiff had made an, inventory of the contents of his business and tendered it to defendant for transmission to his insurers. The insurance contracts required plaintiff to submit an inventory at regular intervals to the insurers for full coverage to remain in effect. If plaintiff failed to do this, then the insurers were liable only up to 75% of the policy limits. Defendant apparently failed to transmit plaintiff’s inventory to the insurers after receiving it, but prior to the occurrence of the fire. Pursuant to the terms of the insurance contracts, the insurers paid plaintiff 75% of the policy limits for the losses he suffered. Plaintiff is now seeking to recover damages from defendant for his losses, in excess of the amounts paid him by the insurers.

EXCEPTION OF NO CAUSE OF ACTION

Plaintiff contends that the trial court erred in maintaining defendant’s exception of no cause of action. He argues that his petition does state a cause of action in negligence.

The trial court found that plaintiff’s petition contained no allegations of fact pertaining to a breach of any contract that may have existed between the parties. The trial court further found that the petition failed to contain any allegations of fact relating to any duty owed by defendant to plaintiff, or how defendant had breached such a duty. The pertinent paragraphs of plaintiff’s petition read as follows:

“10:

That on or about October 26, 1978, petitioner, in accordance with the terms of said policy of insurance, completed an inventory of the stock and merchandise situated in and at said Buck’s Grocery and Meat Market and tendered said inventory to said Agency, agent for said Fireman’s and said American.

11:

That said Agency failed and omitted to provide said inventory to said Fireman’s and said American.

12:

That, in the alternative, should this Honorable Court find that said Fireman’s and said American are not indebted unto petitioner, then petitioner alleges his damages were the result of the negligence and fault of said Agency, as is hereinafter more particularly set forth:

(A) In failing to report or tender petitioner’s inventory to said Fireman’s and/or said American;
(B) In failing to provide petitioner with the necessary forms for the taking of regular and periodic inventories;
(C) In failing to instruct petitioner as to the proper procedures for making regular and periodic inventories;
(D) In failing to warn petitioner of the consequences of failing to make regular and periodic inventories.”
(“Agency” refers to the sole remaining defendant to this action.)

The purpose of the exception of no cause of action is to test whether the allegations of the petition entitle the petitioner to a remedy under any theory of law. For the purpose of deciding this exception, all well-pleaded allegations of fact in the petition must be accepted as true. Every reasonable interpretation must be afforded the language of the petition so as to maintain the sufficiency of the petition and to afford plaintiff his or her day in court. Androwski v. Ole McDonald’s Farms, Inc., 407 So.2d 455 (La.App. 1 Cir.1981), writ denied, 409 So.2d 666 (La.1982); Hero Lands Co. v. Texaco, Inc., 310 So.2d 93 (La.1975); Bielkiewicz v. Rudisill, 201 So.2d 136 (La.App. 3 Cir.1967).

In order to sustain a cause of action under LSA-C.C. Articles 2315 and 2316, the petition must adequately allege fault, causation, and damage. Pence v. Ketchum, 326 So.2d 831 (La.1976), overruled in part, 373 So.2d 494 (La.1979); Eschete v. City of New Orleans, 258 La. 133, 245 So.2d 383 (1971). Fault is a broad concept and, of course, includes negligence. LSA-C.C. Article 2316; Pence v. Ketchum, supra. For analysis, negligence is often divided into duty and breach of duty. Pence v. Ketchum, supra; Prosser, Law of Torts, § 30, pg. 143 (4th ed. 1971).

We find, as did the trial court, that plaintiffs petition fails to allege a breach of any duty owed him by defendant, or the existence of such a duty. Nowhere in his petition does plaintiff allege that defendant was his agent, or that there existed an agreement between the parties that plaintiff would tender his inventory .to defendant for transmission to the insurers, or any other facts that would create a duty on the part of defendant to do so. Thus, plaintiff is unable to sustain a cause of action in negligence against defendant because his petition fails to adequately allege fault on its part, and the trial court properly maintained the exception of no cause of action filed by it.

However, LSA-C.C.P. Articlé 934 provides:

“Art. 934. Effect of sustaining peremptory exception
When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of .the objection cannot be so removed, or if plaintiff fails to comply with the order to amend, the action shall be dismissed.” (Emphasis ours.)

Under the provisions of LSA-C.C.P. Article 934, it is mandatory that the trial judge permit an amendment of the petition when the grounds of the objection pleaded by the exception are of such a nature as to be removed by amendment. Wheelahan v. State of La., Through Louisiana State Claims Review Board, 376 So.2d 576 (La.App. 4 Cir.1979); Menard v. Associated Royal Crown Bottling Company, 249 So.2d 363 (La.App. 4 Cir.1971).

As a general rule, the word “shall” in LSA-C.C.P. Article 934 requires that the adverse party be given an opportunity to amend where there is a conceivable possibility that a cause or right of action may be stated. Louisiana & Southern Life Ins. Co. v. New Orleans Steamship Association, International Longshoremen’s Association (AF of L—CIO) Welfare Plan, 384 So.2d 594 (La.App. 4 Cir.1980); Hodges v. LaSalle Parish Police Jury, 368 So.2d 1117 (La.App. 3 Cir.1979). However, the right to amend is not so absolute as to permit the same when such amendment would constitute a vain and useless act. Louisiana & Southern Life Ins. Co. v. New Orleans Steamship, International Longshoremen’s Association (AF of L-CIO) Welfare Plan, supra; Perkins v. Desrochers, 359 So.2d 323 (La.App. 4 Cir.1978), writ denied, 362 So.2d 578 (La.1978).

We have reviewed the judgment maintaining the exception of no cause of action and note that it contains no order directing plaintiff to amend his petition. We are of the opinion that, given the opportunity to amend, there is a conceivable possibility that plaintiff may be able to state a cause of action against defendant, and that our learned Brother below should have ordered such an amendment. We will remand with the instruction that an order issue directing plaintiff to amend his petition, if he can, to state a cause of action within a delay deemed by the trial court to be reasonable.

DECREE

For the above and foregoing reasons, the judgment of the trial court is reversed and the case remanded with instructions to order plaintiff to amend his petition, if he can, to state a cause of action within the delay allowed.

The costs of this appeal are assessed equally between plaintiff and defendant. The assessment of costs in the trial court shall be made upon a final determination in this matter.

REVERSED AND REMANDED WITH INSTRUCTIONS.

      . Plaintiffs original petition also named Fireman’s Fund Insurance Company (Fireman’s) and American Insurance Co. (American) as defendants. An exception of no cause of action, filed by these defendants, was maintained by the trial court. Plaintiff attempted to remedy the deficiencies in his original petition by filing a supplemental and amended petition. Fireman’s and American responded by filing peremptory exceptions of no right of action, no cause of action, and res judicata. In addition, these defendants filed a motion for summary judgment. The trial court maintained the exception of res judicata finding that plaintiff had failed to amend his petition within the time allowed. Plaintiff has failed to appeal from either of these judgments and they are now final. Thus, Fireman’s and American are no longer defendants to this action.

      . CHM, Inc. brought a third party demand against the insurers alleging that they were liable to it, if it was found liable to plaintiff. The third party demand was based on certain alleged acts of negligence committed by the insurers. The insurers filed exceptions of no right of action and no cause of action in response to the third party demand. The trial court rendered judgment maintaining the insurers’ exception of no cause of action. CHM, Inc. has taken no appeal from this judgment, and it is now final


text:
    Lester E. FOREMAN, Plaintiff-Appellee, v. Peggy SARVER, Defendant-Appellant.
    No. 82-283.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.
    Lucius A. Hornsby, Jr. of Hornsby & Landry, Lafayette, for defendant-appellant.
    Champagne, Colomb. & Brumbaugh, George J. Champagne, Jr., Lafayette, for plaintiff-appellee.
    Before FORET, CUTRER and STOKER, JJ.
   STOKER, Judge.

Defendant, Peggy Sarver (Sarver), appeals from a trial court judgment ordering a partition by licitation of property owned in indivisión by defendant and plaintiff, Lester Foreman (Foreman). We affirm.

The property which is the subject of this suit was acquired by Sarver in full ownership from Teddy W. Bertrand, a former husband. Prior to her marriage to Foreman, Sarver conveyed a one-half undivided interest in the property to him for $2,000. During the course of extensive divorce litigation, Sarver sought to rescind the sale of this property to Foreman based on lesion beyond moiety. Foreman’s peremptory exception of prescription was maintained and the suit was dismissed. Appeal of the matter was foregone by Sarver and that judgment has become final.

At the hearing on Foreman’s petition for partition by licitation, only counsel for the parties appeared. There was no testimony. Counsel for plaintiff presented his case and entered into evidence, without objection, (1) the petition in this matter, (2) an act of sale to Teddy Bertrand who was Sarver’s husband at the time of that sale, (3) an act of sale to Foreman from Sarver, and (4) the record of suit number 44,515 from Acadia Parish entitled “Peggy Sarver v. Lester Foreman” which included Sarver’s unsuccessful suit for rescission of the sale on the basis of lesion beyond moiety. Sarver alleged in a petition on file in this suit that the one-half acre contained a brick home valued at $30,000 in 1974. (Tr. 24 of that record.)

On appeal, defendant Sarver asserts that the evidence presented by plaintiff Foreman at the hearing was insufficient to support the judgment ordering a partition by licitation. After reviewing the evidence, particularly the record from suit number 44,515, we agree with the trial judge that a partition by licitation was proper in this case. The property consisted of approximately one-half an acre with improvements including a brick home. (Tr. 24, suit number 44,515, supra.) From its very nature this property would not be susceptible of a partition in kind.

Defendant s contention that the trial judge erroneously relied on alleged stipulations by counsel is not well founded. No mention is made in the trial court’s oral reasons for judgment of any such stipulations, and this court recognizes that there were none. It appears that, as asserted by plaintiff’s counsel in brief, the reference to “stipulation of counsel” in the written judgment was inadvertently included when he prepared it for signature by the trial judge. This inadvertence was harmless and the trial court’s judgment was valid without any stipulations. Hence, the erroneous reference to stipulations of counsel in the judgment does not warrant a reversal of the trial court’s judgment.

For the foregoing reasons the judgment of the trial court is affirmed. Costs of the appeal are to be assessed to defendant-appellant.

AFFIRMED.

      . The property is described as follows:
      “The North half (NV2) of that certain one (1) acre tract, more or less, together with all buildings and improvements situated thereon and thereunto appertaining, but without any of the oil, gas and other minerals underlying and forming part thereof, situated in Section Thirty-six (36), Township 10 South, Range 1 East, Acadia Parish, Louisiana, bounded, now or formerly, on the Northwest by Lonnie Sarver and/or Theresa Sarver Deshotels; East by Clyde Hoffpauir, and South by Hagen Sarver; the said one acre tract being triangular in shape. It is the intent and desire of the parties that the property herein conveyed shall be triangular in shape, the east boundary line shall extend from the Northernmost point of the property to a point on the east boundary line of the said one (1) acre tract which, when extended in a westerly direction on a line parallel with the South boundary line to an intersection with the Northwest boundary of said one (1) acre tract, shall enclose one-half (V2) of an acre, more or less.”


text:
    Roy Bush BRIDGES, Plaintiff-Appellee, v. J.K. MARTIN PULPWOOD COMPANY, INC., Defendant-Appellant.
    No. 82-285.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.

      Charles B. Bice, Winnfield, for defendant-appellant.
    Gahagan & Gahagan, Russell Gahagan, Natchitoches, for plaintiff-appellee.
    Before FORET, CUTRER and STOKER, JJ.
   CUTRER, Judge.

This appeal arises out of a trial court judgment awarding plaintiff damages caused by the illegal cutting of timber on land possessed by the plaintiff.

Roy Bridges filed suit against J.K. Martin Pulpwood Company, Inc. (Martin) and Glyn Simons alleging that defendants had cut a fence and illegally removed timber from a portion of lands possessed by him located near Marthaville, Louisiana. Plaintiff alleged that he was in possession of two 40 acre tracts described as the SE!4 of NE!4 and the NWW of NEVi, Section 16, T9N, R10W. The land in question borders on land owned by the Natchitoches Parish School Board which had sold its timber to Jimmy Weeks. Weeks, in turn, had sold the timber to Martin. While cutting timber on the school board property, Martin, through its contractor, Glyn Simons, allegedly cut plaintiff’s fence and removed timber from land possessed by plaintiff.

After trial on the merits, the trial court rendered judgment awarding plaintiff the sum of $2,916.15. Defendants appealed. We affirm.

The sole issue presented is as follows:

Must one instituting a possessory action prove with certainty the location of the property claimed to be possessed.

This cause of action in trespass is authorized by LSA-R.S. 56:1478.1 which provides as follows:

“A. It shall be unlawful for any person to cut, fell, destroy or remove any trees, or to authorize or direct his agent or employee to cut, fell, destroy or remove any trees, growing or lying on the land of another, without the consent of the owner or legal possessor.
“B. Whoever willfully and intentionally violates the provisions of Subsection A shall be liable to the owner or legal possessor of the trees for civil damages in the amount of three times the fair market value of the trees cut, felled, destroyed or removed.
“C. Whoever violates the provisions of Subsection A in good faith shall be liable to the owner or legal possessor of the trees for three times the fair market value of the trees cut, felled, destroyed or removed, except however, that the provisions of this section shall apply only to trees cut or removed across ownership lines, marked boundary lines, or outside of designated cutting area lines, and that no provision herein shall apply to cutting operations within an area covered by a contract or agreement with the owner.” (Emphasis added.)

The proof requirements of this statute were discussed in the case of Garrett v. Martin Timber Co., Inc., 391 So.2d 928, 931 (La.App. 2nd Cir.1980), writ den., 397 So.2d 804 (La.1981), as follows:

“While the action for trespass is a separate cause of action not addressed by the Code of Civil Procedure, when it is predicated on possession, as it is here, it is very similar to the possessory action. It has long been established that one in legal possession of land is entitled to bring a suit for damages against one who disturbs his possession. See Gillan v. Jones, 157 So.2d 598 (La.App. 2d Cir.1963) writ denied 159 So.2d 284 ([La.] 1964), and cases cited therein. In such an action the plaintiff need only prove that he was in legal possession of the land at issue; that his possession was disturbed by the defendant, and that he brought suit within one year of the disturbance. ”

We turn to the facts to determine whether the trial court was correct in its determination that defendants had committed a trespass upon the property possessed by plaintiff.

Plaintiff testified that the two 40 acre tracts had been originally owned and farmed by his maternal grandfather, C.C. McCartney. Plaintiff purchased the interest in this property from his mother, Vorice McCartney Bridges, and the other C.C. McCartney heirs. The last of these purchases occurred in 1973. Plaintiff testified that the property was under fence when he purchased it and had so remained until the time of the removal of the timber by Martin. It was stipulated that if Vorice McCartney Bridges, plaintiff’s mother, and Bessie McCartney Lang, plaintiff’s aunt, were called to testify they would state that they were reared on the property in question. They stated that the property was under fence when they were young girls and the property was being farmed. They stated that they had kept in touch with the property and that it had remained under fence until they sold their interest to plaintiff in the 1970’s. It was also stipulated that if Jim Lauw, a neighbor, was called to testify, he would state that he had lived in the neighborhood all his life and was familiar with the property. He knew the property remained under fence until the defendants cut the fence and removed the timber in question.

It was also stipulated that, if called, Denise Birdwell, a native of the area who was acquainted with plaintiff’s property, would have testified that he went to the property when he learned that timber cutting was taking place in the area, and found that defendants had cut the fence of plaintiff’s and were cutting timber from plaintiff’s property.

Plaintiff testified that when he first learned of the cutting of timber on his property, he contacted Weeks about the damage. As a result, Don Price, forester for Martin, and Benny Martin, who was associated with defendant Martin, met with plaintiff at the site of the cutting. Plaintiff stated that Martin and Price acknowledged that they had cut the plaintiff’s fence and timber. They offered to rebuild the fence and pay $1,000.00 for the timber. Plaintiff refused the offer for timber cut as he felt it was inadequate.

Don Price, the forester for Martin, testified that he and Benny Martin had met plaintiff at the site of the cutting and offered to pay the plaintiff $1,000.00 for the timber cut and to rebuild the fence.

Plaintiff testified that the area where the cutting took place was in the southeast corner of one of the 40 acre plots that he owned (SEVi of NEVi). The plaintiff testified from a sketch that reflected the four 40 acre tracts in this township that were owned by the schoolboard and the two 40 acre tracts owned by plaintiff. Two of the 40 acre tracts owned by the school board bordered the SEVi of NEV4 on the south and west sides. The plaintiff’s ownership of those 40 acre tracts is not disputed. The defendant’s objection was that the introduction of the sketch and testimony concerning same may enlarge the pleadings as it was not shown that the fence line, which was cut, was located upon the boundary of the plaintiff’s SEV1 of NEVi. The trial court correctly overruled the objection. The pleadings were not enlarged as the evidence preponderates that the fence line was generally located along the south and west lines of the southeast corner of this 40 acre plot.

We come to this conclusion after considering the testimony of not only the plaintiff and his witnesses, but the testimony of Don Price, the supervisor of the cutting for Martin. He stated that prior to the beginning of the cutting he located the southeast corner of plaintiff’s 40 acre tract that is in question. From that point, he ran a line to the west for one-quarter mile (the measurement for a square 40 acre tract). An old fence was located along this line. He stated that the fence then extended north for about 225 feet and then the fence meandered in a northeasterly direction. He stated that the east-west line he had flagged was the south line of the plaintiff’s property or the north line of the adjacent school board property. Price further stated that the fence was cut along this east-west line and the timber was cut across this fence line on property claimed by plaintiff.

We conclude that the evidence is sufficient to establish plaintiff’s legal possession of the area where this fence was cut and from which the timber was removed. The plaintiff has fully met his burden of proof that, is required by LSA-R.S. 56:1478.1 as interpreted by Garrett v. Martin Lumber Company, Inc., supra.

The trial judge correctly held that plaintiff had been disturbed in his possession of the subject property and was entitled to damages. Since the amount of damages is not at issue on appeal, the judgment of the trial court will be affirmed.

For these reasons, the judgment of the trial court is affirmed. The defendants-appellants are to pay costs of this appeal.

AFFIRMED.


text:
    Barbara TRAHAN on Behalf of Daughter Sandra R. WALKER, Plaintiff-Appellee, v. CITY OF LAFAYETTE, Defendant-Appellant.
    No. 82-286.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.
    Voorhies & Labbe, Robert A. Lecky, Lafayette, for defendant-appellant.
    Poteet & Landry, John G. Poteet, Lafayette, for plaintiff-appellee.
    Before FORET, CUTRER and STOKER, JJ.
   STOKER, Judge.

The issue before us on this appeal is the quantum of damages awarded to plaintiff and against the appellant, the City of Lafayette. Specifically, the appellant contends the trial judge abused her discretion in awarding to Barbara Trahan, on behalf of her daughter, Sandra R. Walker, $5,000 in general damages Sandra incurred on August 2, 1980, when the chain on a park swing, owned by the appellant, broke in mid-flight, causing Sandra to plummet unexpectedly to the ground. The issue of liability is not before us, nor is the issue of the special damages awarded by the trial court. Appellant apparently concedes those issues, and its assignment of error refers only to the general damages that were awarded and that are discussed herein.

According to the examining physician’s report and the trial court’s findings, Miss Walker suffered a three inch laceration to the side of her left foot near the toe area and also a sprain of the right ankle and a contusion of the right ankle. The doctor examined Miss Walker first on August 12, 1980, ten days after the accident, and observed the above injuries. In a letter to appellee’s counsel, the doctor states that Sandra was suffering from pain and stiffness of the right ankle and left toe and that there was tenderness present in and about the right ankle joint.

On two more occasions, August 26, 1980, and September 30, 1980, the doctor examined Sandra and observed that she was still suffering from pain and stiffness in the right ankle, tenderness was present in the right ankle area, and movement of the right ankle produced increased pain. At the last examination by the doctor, on November 17,1980, he observed no swelling or pain on motion of the right ankle, and there were no other objective signs of residual disability. However, Sandra’s mother testified that if Sandra runs and plays, the ankle will swell. Sandra testified that, if she makes the “wrong move” on the ankle, it “gives out”.

The testimony of Sandra, her mother Barbara Trahan, and Abby Gail Eaglin, a friend who was present at the scene of the accident, indicates that the accident suffered was painful, bloody, required painful stitching and hypodermic injections, and resulted in Sandra’s sleeplessness for up to one week. It was 2lk weeks before Sandra could get out of bed unassisted and then her method of moving around was to slide on her buttocks or crawl with her injured ankle held up off the floor. Her mother testified that it was IV2 to 2 months before Sandra began to move around normally, but Sandra could not participate in physical education at her school for some time thereafter.

Sandra’s mother testified that, as a result of the accident, Sandra started school one month late that fall and that she believed this was a major factor in Sandra’s failing school that year.

The appellant’s objection to the award made by the trial court (other than an argument against some factual findings made) stems from a survey of cases presented in appellant’s brief which shows that general damage awards made in cases involving more severe injuries to the leg or foot areas of the body are generally lower than the award made in this case.

While the award of $5,000 for general damages in this -case may be on the high side, we do not feel justified in reducing the amount under the guide lines prescribed in Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977). The defendant questions the seriousness of the.factors relied on by the trial court other than the purely physical injuries of the sprained right ankle and the laceration of the left foot and such weight as it assigned to them. We do not conclude that' the trial court was clearly wrong in doing so. Therefore, we will affirm the award.

The costs of this appeal are assessed to appellant.

AFFIRMED.


text:
    Flora M. WILLIAMS, Plaintiff-Appellant, v. COMMERCIAL UNION ASSURANCE COMPANY, Defendant-Appellee.
    No. 82-287.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.
    Guillory, McGee, Mayeux & Fontenot,' John G. Fontenot, Eunice, for plaintiff-appellant.
    Guglielmo & Lopez, Peter F. Caviness, Opelousas, for defendant-appellee.
    Before FORET, CUTRER and STOKER, JJ.
   STOKER, Judge.

Plaintiff, Flora Williams, appeals from an adverse judgment in her suit for worker’s compensation benefits. She suffered a back strain on September 29, 1978, while lifting a patient in the Bayou Vista Nursing Home where she was employed. Commercial Union Assurance Company, defendant herein, is Bayou Vista’s worker’s compensation insurer. Plaintiff sued Commercial Union only. The issue on appeal is whether Flora was disabled by the accident beyond August 20, 1979. We affirm the judgment of the trial court insofar as it holds that plaintiff was not disabled, but reverse the denial of certain outstanding medical expenses.

The details surrounding the on-the-job accident are not seriously disputed. While Flora and another aide were attempting to lift a particularly heavy patient, the patient slipped and her entire weight was shifted to Flora. It is undisputed that Flora suffered a lumbarsacral strain as a result, and she received compensation benefits from September 30, 1978, through August 23, 1979. The medical expenses incurred by Flora during this time were also paid by defendant.

DISABILITY

From the date of her accident until the time of trial, Flora was seen by numerous doctors of varied specialties. Only the testimony of the most significant of these will be addressed.

After some weekly visits to a general practitioner, Flora was referred to Dr. J. Frazer Gaar, an orthopedic surgeon, on November 7, 1978. His diagnosis was that of lumbarsacral strain and the treatment given Flora was “conservative” according to the doctor. He recommended diet and exercise, gave her a corset to wear, and advised her to avoid heavy lifting, bending, or straining. Dr. Gaar and Flora discussed surgical excision of the disc, but this was never recommended by the doctor, contrary to plaintiff’s contentions on appeal. Further, it does not appear to us that Dr. Gaar became “an advocate against the plaintiff” nor do we find any reason for him to have done so.

Dr. Gaar continued to treat Flora until August 20, 1979, at which time he reported to the Mason Perrault Claims Service that:

“My examinations have revealed no significant clinical problems. I am of the opinion that she has probably reached a medical plateau in regards to her back complaints. I feel that this lady probably has been symptomatic with chronic lum-barsacral strain, with periodic episodes of radiculitis. I have not seen anything lately to make me feel that she is having any acute problems. For this reason, I feel that her problem has probably resolved to the extent that I feel she probably can get back to her previous type work at the nursing home. She of course, may have intermittent low back difficulty, however I would relate this to her obesity as being the responsible factor involved. I do not feel that anything further is indicated at this time and I am releasing her from my care. She states that she is considering seeing another physician for another opinion. I am not. objectionable to this. Should she do so, I would be happy to make my records available to anyone.
“It is also my opinion that there is no residual permanent physical impairment nor loss of physical function as a result of her so stated injury of one year ago. She is released today.”

In reliance on this report, Commercial Union stopped all benefits as of August 23, 1979.

Flora saw Dr. John Tassin, a general practitioner, for the first time on August 21, 1979, apparently for a second opinion. She saw him approximately four more times until September 18, 1980. He recommended the same type treatment that had been given by Dr. Gaar and that Flora not do any heavy lifting or use her back excessively. However, Dr. Tassin stated in his deposition that other people would probably be more qualified to say how much of Flora’s problems were related to the accident because he did not see her until a year later.

Dr. William Foster, a neurosurgeon, also saw Flora during this time. Her initial visit with him was on September 12, 1979, at which time he felt that a discogram should be performed. He admitted Flora to the hospital on September 16, 1979, and she remained there until October 1,1979. None of the tests performed during this time, including the discogram, showed any organic reason for Flora’s continued complaints.

The other doctors of note seen by Flora are psychiatrists. Dr. William Cloyd evaluated her at her attorney’s request on March 21,1980. The interview was approximately two hours. At that time it was his opinion that she was disabled due to depressive neurosis causally related to the accident. He saw her again on November 5,1980, and his opinion then was “... that from the standpoint of the depression that she was not disabled but looking at it overall in an individual of limited intellectual and emotional assets that certainly most probably from the overall standpoint she was disabled.” This statement is equivocal at best, particularly in regard to the issue of causation.

At the request of defendant’s counsel, Dr. Gilíes Morin also gave a psychiatric evaluation of Flora on April 30, 1980. This interview lasted about fifty minutes. Dr. Morin agreed with Dr. Cloyd’s finding of depression but felt that it would not stop her from returning to full employment.

Plaintiff relies heavily on the testimony of Dr. Tassin who recommended that Flora not do any heavy lifting, excessive bending, or other exercise involving the low back. Plaintiff also relies on the statement by Dr. Cloyd regarding disability. Much emphasis is also given to the lay testimony of Flora’s husband and her neighbor to the effect that Flora was a changed person after the accident and that she could no longer do the things she had done before. Thus, it would appear that the claim of disability is based on physical as well as emotional aspects.

As to physical aspects of disability, it is well established that the testimony of a specialist is entitled to greater weight than that of a general practitioner. Blue v. Kinney Company, Inc., 256 So.2d 145 (La.App. 3rd Cir.1971), writ refused, 260 La. 1119, 258 So.2d 375 (1972). Dr. Gaar and Dr. Foster were the main specialists in this case, and neither found any organic reason for Flora’s continued complaints. Dr. Foster felt that further tests were required. These tests, the principal one being the discogram, failed to objectively corroborate Flora’s problems. Dr. Tassin himself admits that he is not in the best position to evaluate Flora’s condition.

The emotional aspect of the disability as testified to by Dr. Cloyd was called “depressive neurosis”. This court in Andrus v. Rimmer & Garrett, Inc., 316 So.2d 433 (La.App. 3rd Cir.1975) stated:

“Where a claimant seeks workmen’s compensation for neurotic disability, traumatic neurosis, et seq., such condition must be proven, as in any other disabling injury, by a preponderance of the evidence. Such condition must not only be shown to exist but also that it was causally connected with the work related accident. (Citations omitted)
“Our jurisprudence has further indicated that in such cases the court must proceed with utmost caution and exercise extreme care in view of the nebulous characteristics of such a condition and the possibility of the symptoms being easily feigned. The evidence in cases of this nature should be scrutinized carefully and every precaution taken to protect employers and insurers against unjustified claims because of alleged mental affliction.” (Citations omitted.)

See also Babineaux v. Consolidated Aluminum Corporation, 389 So.2d 818 (La.App. 3rd Cir.1980). In view of the equivocal nature of the statement given by Dr. Cloyd quoted supra, we do not believe the trial court erred in finding the plaintiff was not disabled on an emotional basis.

Despite the holding of the Louisiana Supreme Court in Tantillo v. Liberty Mutual Insurance Company, 315 So.2d 743 (La.1975), that medical and lay testimony must be considered even if there is no conflict in the medical, it is clear that the credibility of this evidence is still to be determined by the trial court. Absent clear error a trial court’s determination will not be disturbed on appeal. No such error appears in this case.

MEDICAL EXPENSES

Defendant terminated all payments to plaintiff as of August 23, 1979, refusing to pay the expenses incurred as a result of her hospitalization by Dr. Foster. In light of Dr. Foster’s statement that he felt the discogram was required, it appears that the expenses were necessary and within those contemplated by LSA-R.S. 23:1203. Cf. Turner v. J & J Wells Contractors, Inc., 396 So.2d 552 (La.App. 3rd Cir.1981), writ denied, 399 So.2d 620 (La.1981). The amount of these expenses as set out in a letter dated November 5, 1979, from plaintiff’s counsel to defendant’s counsel is $3,174.54.

Plaintiff also demands reimbursement for travel expenses incurred in traveling to and from her various doctors. The only proof of these expenses is a rough list of some trips with dates and mileage. There is no proof of how the trips were made or what actual expenses were incurred in making them. In the absence of such proof, plaintiff is not entitled to reimbursement for these expenses. Romano v. Davis, 339 So.2d 1309 (La.App. 1st Cir.1976).

Plaintiff’s demand for penalties and attorney’s fees is also rejected. Defendant’s failure to pay the medical expenses awarded to plaintiff herein was not arbitrary, capricious, or without probable cause.

Except insofar as the trial court’s judgment failed to award the medical expenses attributable to the services of Dr. Foster, the judgment is affirmed. Insofar as the judgment denied those medical expenses it is reversed, and judgment is now given in favor of plaintiff-appellant, Flora M. Williams, and against defendant-appellee, Commercial Union Assurance Company, in the sum of $3,174.54 together with legal interest from date of judicial demand until paid. The costs of this proceeding in the trial court and on this appeal are assessed one-half to plaintiff-appellant and one-half to defendant-appellee.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.


text:
    J. Mark BARTLETT, Plaintiff-Appellee, v. DOCTORS HOSPITAL OF TIOGA and Diagnostic Health Care Services, Inc., Defendants-Appellants.
    No. 82-288.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.

      Dorwan G. Vizzier, Alexandria, for defendants-appellants.
    Gold, Little, Simon, Weems & Bruser, Robert G. Nida, Alexandria, for plaintiff-appellee.
    Before FORET, CUTRER and STOKER, JJ.
   CUTRER, Judge.

James Mark Bartlett (Bartlett) brought suit against Doctors Hospital of Tioga, Inc. (Doctors Hospital) and Diagnostic Health Care Services, Inc. (Diagnostic) seeking the remaining portion of his salary under an alleged one year employment contract pursuant to the provisions of LSA-C.C. art. 2749. The trial court rendered judgment in favor of Bartlett against Doctors Hospital in the amount of $12,480.00 and against Diagnostic in the amount of $13,750.00. Doctors Hospital and Diagnostic appealed contending Bartlett was entitled to no recovery or, if recovery is allowed, it should be decreased. Bartlett answered the appeal seeking an increase in his award. We amend and affirm.

Doctors Hospital is located in Tioga, Louisiana, and, in addition to other medical services, it maintains and staffs a therapy department.

Diagnostic, located in Tioga, is a separate corporation which provides services to a number of local hospitals including Doctors Hospital. These services include nuclear scans, sonograms and echocardiograms. Sonograms (only tests pertinent to this suit) are tests in which internal structures of the body are reviewed through the use of sound waves. Burl Cupples was administrator of both of these institutions.

On June 4, 1981, Bartlett was employed in a full time capacity at Huey P. Long Hospital and in a part time capacity at Doctors Hospital. He worked in the respiratory department at both institutions. On this day Burl Cupples approached Bartlett and offered him a full time employment at Doctors Hospital and Diagnostic. The two men discussed the terms of Bartlett’s employment that day in Cupples’ office. The exact terms the two men agreed upon are in dispute and form the basis of this lawsuit.

Bartlett contends that he and Cupples agreed that Bartlett’s working hours would be 8:00 A.M. to 4:30 P.M. each day. He would begin each day at Diagnostic performing sonograms at $12.50 per sonogram. After finishing his sonogram work at Diagnostic, which was usually before noon each day, Bartlett was to work the balance of the work day in the respiratory department of Doctors Hospital as its supervisor. His compensation from Doctors Hospital would be $6.50 per hour and would be set at 80 hours per pay period (two weeks) regardless of the time Bartlett actually spent in the respiratory department. Bartlett also maintains that Cupples assured him that his salary would be approximately $30,000.00 a year and that his employment was guaranteed for one year.

Cupples’ version of their agreement is quite different. He states that Bartlett was to perform sonograms for Diagnostic at $12.50 per test, then Bartlett was to report to the respiratory department at Doctors Hospital and put in a full eight-hour shift at $6.50 per hour. Cupples contends that Bartlett’s continued employment was dependent upon the quality of his work and upon his certification as a respiratory therapy technician before the next Medicare survey at Doctors Hospital (Doctors Hospital was required to have a certified respiratory therapy technician as the head of its respiratory department to qualify for benefits under a Medicare plan). Cupples denies that he and Bartlett agreed to a one year employment contract and also denies that he guaranteed Bartlett an annual salary of $30,000.00 a year.

Bartlett resigned from Huey P. Long Hospital the same day as the conversation with Cupples and immediately began work for Doctors Hospital and Diagnostic. During the first month of his new job, Bartlett received two hours of on-the-job sonogra-phy instruction for a few days each week. When this sonography instruction ceased Bartlett spoke with Cupples about the possibility of continuing this instruction under Paula Amsden, a registered ultrosonogra-pher working at Rapides General Hospital. Bartlett set up a meeting between Cupples and Amsden to discuss the terms of Bartlett’s instruction.

During the meeting between Cupples and Amsden the job of performing sonograms for Diagnostic was offered to Ms. Amsden. Cupples stated that he was in a “hot seat” because the $62,000.00 mobile sonogram unit was not producing a satisfactory amount of business for Diagnostic. Cupples stated that he was not entirely satisfied with Bartlett’s sonogram production and that he needed Ms. Amsden to get the mobile unit operating at full capacity again. Shortly thereafter Ms. Amsden accepted Cupples’ offer.

Cupples later notified Bartlett that Ams-den had been hired to perform the sonograms for Diagnostic, but that Bartlett would still be able to make the “sonogram” money that Cupples and Bartlett had previously agreed to. Cupples never told Bartlett how this would be accomplished.

On July 15, 1981, the working hours for the respiratory staff at Doctors Hospital were extended to 8:30 P.M. A dispute arose and Bartlett was terminated along with others of the staff.

Despite the fact that Bartlett’s employment with Doctors Hospital and Diagnostic was officially terminated on July 16, 1981, he was told that he could not get his wages due from Doctors Hospital until the next pay period on July 31, 1981. Diagnostic paid the wages through July 16th. Bartlett filed suit against Doctors Hospital in Pineville City Court under LSA-R.S. 23:631 et seq. for his wages due at termination, penalty wages and attorney’s fees. He also filed suit against Doctors Hospital and Diagnostic in Ninth Judicial District Court under LSA-C.C. art. 2749 for the remaining salary under his one year employment contract with Doctors Hospital and Diagnostic. Bartlett was successful in his city court suit which this court affirmed, Bartlett v. Doctors Hosp. of Tioga, Inc., 415 So.2d 635 (La.App. 3rd Cir.1982). The judgment in that suit is now final. Bartlett was also successful in his Ninth Judicial District Court suit which is now before us on this appeal.

The issues of this appeal are:

(1) Whether filing the suit in Pineville City Court under LSA-R.S. 23:631 et seq. and in state district court under LSA-C.C. art. 2749 amounts to a splitting of Bartlett’s cause of action;
(2) Whether Doctors Hospital and Diagnostic, through their administrator, Burl Cupples, and Bartlett entered into a contract of employment with a certain term of one year;
(3) Whether Doctors Hospital and Diagnostic, through their administrator, Burl Cupples, terminated Bartlett’s employment without just cause; and
(4) Whether the trial court erred in its award of damages to Bartlett.

(1)Splitting of a Cause of Action.

Doctors Hospital and Diagnostic allege error in the trial court’s failure to find that Bartlett split his cause of action. They urge that Bartlett split his cause of action when he filed one suit in Pineville City Court for wages due upon termination of his employment and filed another suit in the Ninth Judicial District Court for his remaining salary under his alleged one year employment contract. Having received satisfaction from his city court suit first, Bartlett has, according to Doctors Hospital and Diagnostic, lost his right to pursue any future salary by virtue of LSA-C.C.P. art. 425.

This brings up the question of whether R.S. 23:631 and C.C. art. 2749 create only one cause of action. We find that two separate causes of action are created by these statutes.

LSA-R.S. 23:631 et seq. creates a cause of action whereby a discharged or resigning employee can enforce his right to wages due him at the termination of his employment. This cause of action arises when the employer fails to pay the employee wages due him within 72 hours of his termination.

LSA-C.C. art. 2749 creates a cause of action whereby an employee, hired for a certain term and fired without just cause, can enforce his rights under the employment contract for the remaining portion of his salary. This cause of action is contractual in nature and arises upon termination of employment.

In summary, LSA-R.S. 23:631 and LSA-C.C. art. 2749 create separate causes of action. In filing separate suits under these statutes Bartlett did not split his cause of action. These causes of action can be pursued by separate suits.

Doctors Hospital and Diagnostic also urge that Bartlett’s posture in state district court under C.C. art. 2749 is inconsistent with his posture in Pineville City Court under R.S. 23:631 et seq. Doctors Hospital and Diagnostic contend that Bartlett’s posture under C.C. art. 2749 is an employee hired for a certain term, while his posture under R.S. 23:631 et seq. is an employee hired for an uncertain, indefinite term. Doctors Hospital and Diagnostic state that since Bartlett’s posture in city court is inconsistent with the posture he is assuming in state district court, Bartlett should be precluded from pursuing his remedy under C.C. art. 2749 as an employee hired for a certain term. Doctors Hospital and Diagnostic suggest various forms of estoppel and res judicata as the vehicle for such a preclusion. Such a contention by Doctors Hospital and Diagnostic is without merit.

The Supreme Court in Mason v. Norton, 360 So.2d 178 (La.1978), found that the phrase “ ‘by the day, week, or month’ ” in LSA-R.S. 23:631 is properly construed as describing the pay period, rather than the method of calculating wages. Under such an interpretation by the Supreme Court, the phrase of LSA-R.S. 23:631, “by the day, week or month” does not preclude the possibility that a person so employed might also be employed for a certain term. We hold that, by suing for the relief provided by LSA-R.S. 23:631 et seq., a person is not estopped from suing under LSA-C.C. art. 2749 for future salary under an employment contract with a certain term.

The plea of res judicata is also without merit. As we have previously held, the causes of action under LSA-R.S. 23:631 et seq. and LSA-C.C. art. 2749 are not identical. The demands are founded on different causes of action, thus res judicata is not applicable.

(2) Whether This Was a Term Contract and, if so, Whether Bartlett Was Discharged for Cause.

When a contract of employment has been entered for a definite term just cause is required for termination of employment during that term. Griffith v. Sollay Foundation Drilling, Inc., 373 So.2d 979 (La.App. 3rd Cir.1979).

The trial judge found that Doctors Hospital and Diagnostic did enter an employment contract for a fixed term with Bartlett. In his reasons for judgment the trial judge stated:

“I feel that the circumstances leading up to and surrounding the hiring of Mark Bartlett overwhelmingly corroborate his testimony that he had entered into a contract of employment with Doctors and Diagnostic for a period of one year.
“First off, Diagnostic was in a bind for they had just fired Mrs. Addington and they had no one to run that operation. Cupples was familiar with Bartlett’s qualifications and suggested that he take the job with the understanding that he would have certified people to instruct him in Sonography and that this expense would be paid by Diagnostic. The offer from a money standpoint was most attractive to Bartlett but he had a good secure job and told Cupples that the only way he would take it would be with the understanding that it was for at least a period of one year.”

Á review of the testimony of Cupples shows discrepancies and shows that he was evasive, both of which reflects upon his credibility.

After a review of the testimony and the circumstances, we find that the trial court was not clearly wrong in its determination that Bartlett and Cupples had entered into a contract of employment for one year.

We next turn to whether Bartlett was terminated without just cause. Having found that Bartlett was employed for a fixed term and having awarded him his remaining salary under his one year employment contract, the trial court apparently felt that Bartlett’s employment was terminated without just cause.

A short time before July 16, 1981, Bob McBride, Assistant Administrator of Doctors Hospital, approached Bartlett about making a new schedule of expanded hours for the respiratory department. Bartlett answered that expanded hours were impossible considering the number of personnel employed in the respiratory department. McBride then formed a schedule whereby the respiratory department was to operate from 6:00 A.M. to 8:30 P.M. instead of the prior schedule of 6:30 A.M. to 4:30 P.M.

On July 16, 1981, McBride had a meeting with Bartlett and the other members of the respiratory staff. McBride presented his new schedule and met instant opposition from those present. Exactly what transpired at this meeting is in dispute, but Bartlett testified that at some point he told McBride that he was not hired to work the extended hours proposed in the new schedule. He told McBride that he and Cupples had agreed upon an 8:30 A.M. to 4:30 P.M. schedule for his work. McBride then told all present that if they would not abide by this new schedule he would terminate the whole department. After Bartlett raised the question of having to work beyond 4:30, McBride terminated him.

McBride testified that when he informed Bartlett of the new hours, there was objection by the personnel. He told them that if they did not agree to work the new hours, he would have to terminate them. He then stated that he did not terminate them as they all resigned including Bartlett. The trial court evidently accepted Bartlett’s statement that he was terminated after he objected to McBride’s attempt to modify his contract of employment by extending the working hours from 4:30 P.M. to 8:30 P.M. Termination of Bartlett under these circumstances would be without cause.

In applying the review determined by Canter v. Koehring Company, 283 So.2d 716 (La.1973), this court finds that the trial judge was not clearly wrong in this regard.

(3) Whether the Trial Court Erred in Determining Bartlett’s Award.

In awarding Bartlett the remaining salary under his contract of employment for one year the trial judge stated in his reasons for judgment that:

“As mentioned above Bartlett was to receive $6.50/hr X 80 hr X 26 (number of pay periods) or $18,520 annually from Doctors and $12.50 for every sonogram he ran for Diagnostic. Diagnostic was averaging about 100 sonograms per month. Therefore, Bartlett’s compensation due from Diagnostic is found to be $15,000. Bartlett has previously received pay for two pay periods, therefore judgment is rendered in his favor and against Doctors in the sum of $12,480.00 and against Diagnostic in the sum of $13,750.00. Legal interest is to run on both sums from date of judicial demand until paid and the defendants are cast for all costs.”

The trial judge erred in these calculations in that he awarded Bartlett the sum of 24 pay periods (26 pay periods less 2 for which Bartlett was already paid). The error in this calculation can be seen when considering the fact that Bartlett had been paid through July 12, 1981 by Doctors Hospital and that he recovered the wages due him from July 13th through July 16th (date of employment termination in the city court suit). Diagnostic had apparently paid Bartlett through July 16th and was not a party to the city court suit. The trial judge failed to take this into consideration when he awarded Bartlett a salary for 24 pay periods as the remaining portion of his salary under his one year employment contract.

A more accurate award would reduce the trial court’s award against Doctors Hospital by $211.66 with the latter amount representing the wages Bartlett had already received for July 13th through July 16th. A similar reduction of the award against Diagnostic is in order. This would reduce that amount by $250.00 (100 sonograms a month; 20 working days a month; 5 sonograms a day at $12.50 per sonogram equals $62.50 a day for four days [July 13th through July 16th]). The trial court judgment will be amended accordingly.

In answering the appeal Bartlett has sought to have his award against Doctors Hospital increased by $1,560.00. This amount is said to reflect the compensation of $10.00 for being subject to call and for call backs during the remaining portion of his employment of one year. Bartlett cites LSA-C.C. art. 1903 as authority for his prayer for increase.

This call back compensation was not a part of Bartlett’s contract. When questioned about the elements of their agreement Bartlett does not mention call back compensation. Article 1903 does not apply to the contract in question.

A more appropriate description of the call duty would be as a departmental obligation shared by all members of the respiratory department. From testimony presented at trial it appears that all the members of the respiratory department performed this duty. They split the hours with each other and in turn shared the compensation Doctors Hospital paid for the call duty.

We conclude that call duty was not a part of Bartlett’s contract but was a departmental practice shared by all members of the respiratory department. Accordingly, Bartlett’s prayer for an increase is denied.

For the above reasons, the judgment of the trial court is amended by reducing the judgment against Doctors Hospital of Tioga to $12,268.34 and by reducing the judgment against Diagnostic Health Care Services, Inc. to $13,500.00. In all other respects the judgment of the trial court is affirmed. The costs of this appeal are assessed to defendants-appellants.

AMENDED AND AFFIRMED.

      . LSA-C.C. art. 2749 states:
      “If, without any serious ground of complaint, a man should send away a laborer whose services he has hired for a certain time, before that time has expired, he shall be bound to pay to such laborer the whole of the salaries which he would have been entitled to receive, had the full term of his services arrived.”

      . LSA-R.S. 23:631 states, in pertinent part:
      “A. Upon the discharge or resignation of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, not later than three days following the date of discharge or resignation. Said payment shall be made at the place and in the manner which has been customary during the employment, except that payment may be made via United States mail to the laborer or other employee, provided postage has been prepaid and the envelope properly addressed with the employee’s or laborer’s current address as shown in the employer’s records. In the event payment is made by mail the employer shall be deemed to have made such payment when it is mailed. The timeliness of the mailing may be shown by an official United States postmark or other official documentation from the United States Postal Service.
      B. In the event of a dispute as to the amount due under this Section, the employer shall pay the undisputed portion of the amount due as provided for in Subsection A of this Section.” (Emphasis ours.)
      LSA-R.S. 23:632 states:
      “Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety days wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. Reasonable attorney fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after three days shall have elapsed from time of making the first demand following discharge or resignation.”

      . LSA-C.C.P. art. 425 provides:
      “An obligee cannot divide an obligation due him for the purpose of bringing separate actions on different portions thereof. If he brings an action to enforce only a portion of the obligation, and does not amend his pleading to demand the enforcement of the full obligation, he shall lose his right to enforce the remaining portion.”

      . LSA-C.C. art. 1903 states:
      “The obligation of contracts extends not only to what is expressly stipulated, but also to everything that, by law, equity or custom, is considered as incidental to the particular contract, or necessary to carry it into effect.”


author: CULPEPPER, Judge.

text:
    Ervin BRISCO, Plaintiff & Appellant, v. BOARD OF ELEMENTARY AND SECONDARY EDUCATION, et al., Defendants & Appellees.
    No. 82-289.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.
    Rehearing Denied Dec. 28, 1982.
    Chris J. Roy, Alexandria, for plaintiff & appellant.
    Davis & Murchison, James D. Davis, Alexandria, for defendant & appellee.
    Before CULPEPPER, DOMENGEAUX and GUIDRY, JJ.
   CULPEPPER, Judge.

This workmen’s compensation suit was instituted by Ervin Brisco seeking benefits for total and permanent disability. From a judgment dismissing the plaintiff’s demands, he appealed.

The issues on appeal are (1) whether the trial court erred in failing to find the plaintiff disabled by substantial pain, (2) whether the plaintiff is entitled to an award of penalties and attorney’s fees, (3) whether the plaintiff should have been granted a new trial, and (4) whether we should remand for additional medical evidence?

FACTS

Plaintiff was employed by the defendant Board of Elementary and Secondary Education as a Resident Training Aid (RTA) at the Alexandria Special Education Center. He cared for a group of five children who are spastic or crippled. His duties included dressing them, walking them, and generally helping them get about.

On January 11, 1981, plaintiff was assisting one of his charges into a wheelchair. The child put his arm around Brisco’s neck, pulling him down into the wheelchair. Brisco testified his neck hurt, but he made no complaint at that time, because the incident occurred only shortly before the end of his night shift. On January 12, 1981, he went to Rapides General Hospital emergency room for neck pain. On January 14, the plaintiff returned to work, but was discharged the next day for an unrelated reason.

Brisco was initially treated for his neck injury by Dr. Boisvert, D.C., at the Alexandria Chiropractic Clinic. On February 26, 1981, Brisco was examined by Dr. Vanda L. Davidson, an orthopedist, to whom Brisco was sent by the defendant worker’s compensation insurer. Dr. Davidson continued to treat plaintiff for his neck injury. His medical reports through that dated May 28, 1981 were introduced into the record without objection, although he did not testify at trial nor was his deposition taken. Failure to depose Dr. Davidson was apparently due to circumstances beyond the control of either party. The deposition of Dr. Boisvert was introduced into the record.

Lay testimony introduced with regard to the pain experienced by the plaintiff consisted of his own testimony, that of his mother and that of his cousin.

At the time of trial, the defendant had paid a total of $2,440.89 in worker’s compensation benefits, including payment for medical services rendered, lost wages, and travel expenses from the time of the first trip to the emergency room until Dr. Davidson pronounced Brisco fit to return to work in his report of February 26, 1981.

The trial court held the plaintiff failed to prove by a preponderance of the evidence that he suffers from substantial pain, and that he was not entitled to penalties and attorney’s fees because of the defendant’s cessation of benefits.

On this appeal, plaintiff argues these findings were in error, or, in the alternative, the case should be remanded for the taking of further medical evidence.

DISABILITY

The plaintiff contends the trial court erred in failing to find him disabled. He argues the evidence shows that he cannot work without substantial pain, and further that the medication prescribed to alleviate the pain also renders him disabled to work because it makes him too drowsy to work.

An employee is not disabled within the meaning of the worker’s compensation law solely because he suffers some residual pain or discomfort when attempting to work. Such residual pain or discomfort is considered disabling only if it is substantial. Furthermore, the claimant alleging such pain must prove it to a reasonable certainty and by a fair preponderance of the evidence. Dusang v. Henry C. Beck Builders, Inc., 389 So.2d 367 (La.1980), and cases cited therein. Whether the claimant has met his burden of proving substantial pain is an issue of fact to be decided on both the medical and lay evidence. Lucas v. Insurance Company of North America, 342 So.2d 591 (La.1977).

The medical evidence in this case consists of the deposition of the chiropractor, Dr. Boisvert, from whom the claimant initially sought treatment, and medical reports by Dr. Davidson, the orthopedic surgeon to whom the defendant referred the employee. Dr. Boisvert testified in his deposition that he last saw the plaintiff on February 10, 1981, approximately four weeks after the plaintiff’s alleged injury on January 12, 1981, and that he was not able to work at that time. He also stated that under normal circumstances, he felt it should take six to eight weeks to recover from such an injury sufficiently to return to work.

Dr. Vanda Davidson, the orthopedist, whose deposition was not taken, and who did not testify at trial, stated in a report dated February 26, 1981 that the patient should return to work. Also in his report of April 6,1981, he stated that the patient was able to return to work. The medical reports of April 24, 1981 and May 14, 1981 reflected no change in Dr. Davidson’s opinion, and the report dated May 28, 1981 pronounced claimant still able to work.

The claimant testified that he is still in pain and continues to take various drugs, which render him unable to work. He stated that the reason he takes medication is because he has trouble sleeping. Claimant’s mother testified that her son has not been employed since he was injured in January of 1981, and that he complains about his neck a lot and takes medication. It was stipulated that the claimant’s cousin, Jeffrey Brandon, would give testimony which would be substantially the same as Mrs. Brisco’s.

The trial court held that, in light of the plaintiff’s failure to prove by a preponderance of the evidence that he suffers from substantial pain, the defendants have completely discharged their obligation to pay worker’s compensation benefits. He also found defendant not arbitrary in cessation of benefits.

The trial judge obviously did not give much weight to the lay testimony. The deposition of Dr. Boisvert was inconclusive inasmuch as he knew nothing of the condition of the plaintiff after February 10, 1981. The orthopedic surgeon’s reports pronounced the plaintiff able to return to work by the time benefits were terminated. Considering all of the evidence, the trial judge found the claimant’s burden of proof had not been met.

Great weight is given to the findings of the trial court with regard to the credibility of the plaintiff in a workmen’s compensation proceeding. Joseph v. Martin Mills, Inc., 394 So.2d 722 (La.App. 3rd Cir.1981). Furthermore, the issue of disability is a question of fact which should not be disturbed in the absence of manifest error. Scott v. Sears, Roebuck & Company, 406 So.2d 701 (La.App.2d Cir.1981). We find no such manifest error here, especially in light of the meager evidence presented at trial.

Plaintiff also makes a claim for penalties and attorney’s fees as a result of the employer’s alleged arbitrary and capricious conduct in terminating benefits. The determination of whether the employer’s conduct is arbitrary, capricious or without probable cause is a question of fact for the trial court, whose finding will not be disturbed on appeal unless it is manifestly erroneous. Scott v. Sears, Roebuck & Company, supra. For the reasons discussed above, we affirm the trial court’s denial of penalties and attorney’s fees.

DENIAL OF A NEW TRIAL

The plaintiff’s final specification of error concerns the trial court’s denial of a new trial for the taking of further medical evidence. He argues that this court should reverse and remand the case for the purpose of admitting additional medical evidence, i.e., reports by Dr. Davidson, describing his examination of the plaintiff conducted in the months of July, 1981 through February of 1982, which were not introduced at trial, and also for the taking of Dr. Davidson’s deposition.

Counsel attached to his motion for a new trial copies of medical reports by Dr. Davidson which were not filed in evidence, these reports being dated July 9, 1981, July 30, 1981, September 21, 1981, October 29, 1981, December 3, 1981, January 8, 1982, February 8, 1982, March 5, 1982 and March 15, 1982. He states he was not aware of these medical reports until after the trial on March 11, 1982.

First he argues that the employer was required by LSA-R.S. 23:1122, et seq, and in particular R.S. 23:1125, to furnish the employee with all reports of medical examinations by Dr. Davidson. However, a reading of R.S. 23:1125 shows that the employer is not required by law to continue to send to the employee medical reports unless there is a written demand for same. There is no evidence of such a written demand in the present case. Plaintiff argues further that it is customary in the area for attorneys in workmen’s compensation cases to exchange all medical reports, and this was not done here.

It is obvious from the testimony by Brisco at the trial that his counsel was aware that Brisco continued to see Dr. Davidson until shortly before the trial. Of course, any reports of these examinations were discoverable by plaintiff before trial, and also the deposition of Dr. Davidson could have been taken by plaintiff before trial. Thus, there is no peremptory grounds for the granting of a new trial under LSA-C.C.P. article 1972, because this evidence was discoverable and could have been obtained with due diligence before the trial.

The next question is whether a new trial should have been granted on discretionary grounds under LSA-C.C.P. article 1973. We have carefully read the additional medical reports of Dr. Davidson attached to plaintiffs motion for a new trial and find that although the doctor continued to prescribe drugs for muscle relaxation, sleep and discomfort, he found no significant change in plaintiff’s condition from the time he reported in February of 1981 that he could return to work. Certainly, there is nothing in the reports to show that plaintiff is disabled by substantial pain.

The reopening of the plaintiff’s evidence, or the granting of a new trial, absent peremptory grounds therefor, is within the sound discretion of the trial court. See LSA-C.C.P. article 1973; Williams v. Cinclare Central Factory, 396 So.2d 301 (La.App. 1st Cir.1981), writ refused 399 So.2d 621 (La.1981). In the instant case we find no abuse of that discretion. We also find no reason to remand.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against plaintiff-appellant.

AFFIRMED.