author: PONDER, Judge.

text:
    Andrea ENTREVIA v. A. E. HOOD, Jr.
    No. 14725.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.
    Rehearing Denied May 25, 1982.
    Douglas Curet, Hammond, for plaintiff.
    Joseph H. Simpson, Amite, for defendant.

      Before ELLIS, PONDER and SAVOIE, JJ.
   PONDER, Judge.

Plaintiff appealed from the dismissal of her suit for damages resulting from the collapse of concrete steps.

The issues are the strict liability of the defendant, the duty owed to a trespasser and the existence of an agency relationship between defendant and a caretaker.

Plaintiff was inspecting a rural house with her friend, Mrs. Dixon, who had informed plaintiff that she and her husband were intending to rent the house. They looked at the house from the outside, since they did not have a key. After Mrs. Dixon walked up the back steps to peer into the house and came back down, plaintiff attempted to do the same, but her leg went through the concrete steps. Torn ligaments around her knee required surgery.

The trial judge concluded that there was no rental agreement due to the lack of consent by the owner and that the plaintiff was aware the Dixons had no right of occupancy. The court found no unreasonable risk of harm to the plaintiff, particularly since the house was enclosed by a fence and there were “no trespassing” signs in the area.

Appellant first argues that the trial court failed to apply the proper test for strict liability under La.C.C.Art. 2317 and 2322. To prove liability under La.C.C.Art. 2317, the plaintiff must show that the thing causing the damage is in defendant’s custody, that the thing has a vice or defect and that the defect or vice caused the damage. Loescher v. Parr, 324 So.2d 441 (La.1975). Article 2322 imposes liability upon the owner of a “building,” to persons injured through its “ruin,” whether due to a vice in its original construction or through his neglect to repair it. A presumption of legal fault is created against the defendant, who may exculpate himself by showing the damage was caused by fault of the victim, by fault of a third person or by an irresistible force. Loescher v. Parr, supra.

Plaintiff proved that the steps were owned by the defendant, they were defective and the vice caused her injury. The defendant then had to absolve himself from liability.

Defendant alleges defenses of contributory negligence and assumption of the risk. Contributory negligence has been at times equated with “victim fault” as a defense to strict liability. See Dorry v. LaFleur, 399 So.2d 559 (La.1981); Stewart v. Sam Wallace Industrial Company, 409 So.2d 335 (La. App., 1981); Sullivan v. Gulf States Utilities Co., 382 So.2d 184 (La.App. 1st Cir. 1980), writ denied 384 So.2d 447 (La.1980).

Plaintiff testified that she noticed no cracks on the stairs except for a chip on the top step, but felt they were safe after seeing Mrs. Dixon use them. Mrs. Dixon testified that the steps were old and not in good condition. Although the trial judge indicated that he doubted the credibility of the plaintiff and Mrs. Dixon, the conflicting testimony which raised those doubts had nothing to do with the condition of the steps.

We find that defendant has not carried the burden of proving victim fault or contributory negligence. In the absence of any evidence that plaintiff was negligent in not observing the condition of the steps, we find that her actions did not constitute contributory negligence.

There was no evidence to support a finding that plaintiff had any subjective knowledge of the risk presented by the defective steps.

There are no allegations of or proof of fault of a third person or irresistible force.

Because of our finding, we need not consider the issues of the duty owed to a trespasser (see Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976) and of any possible agency relationship.

Defendant cites Harris v. Guif States Utilities Co., 391 So.2d 1270 (La.App., 1st Cir. 1980) writ denied 396 So.2d 920 (La.1981), as showing that defendant has acted reasonably under the circumstances. We find the case inapplicable. Plaintiff in that case urged that the landlord had breached his duty. The court did not reach the question of strict liability.

Plaintiff suffered a torn ligament in the knee area and had to undergo surgery. She subsequently wore a east for approximately five weeks. Plaintiff recovered without complications, but was left with a ten per cent disability to the extremity. Plaintiff proved special damages in the amount of $2,285.75 and we find that $17,-000.00 will adequately compensate the plaintiff for her general damages.

For these reasons, we reverse the trial court judgment. There is now judgment in favor of the plaintiff in the amount of $19,285.75. Defendant is cast with all costs of these proceedings.

REVERSED AND RENDERED.

      . La.C.C.Art. 2317:
      “We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.”


source: Caselaw Access Project

author: STOKER, Judge.

license: Public Domain

text:
    Antoine SEMIEN, Plaintiff-Appellant, v. PPG INDUSTRIES, INC., et al, Defendant-Appellee-Appellant.
    No. 8601.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1982.
    Rehearing Denied June 1, 1982.
    Poteet & Landry, Walter J. Landry, Lafayette, for plaintiff-appellant-appellee.
    Stockwell & Associates, John S. Bradford, Lake Charles, for Intervenor-appellee-ap-pellant.
    McGlinchey, Stafford, Mintz & Hoffman, C. G. Norwood, Jr., New Orleans, for defendant-appellee.
    Before GUIDRY, CUTRER and STOKER, JJ.
   STOKER, Judge.

The appeal in this case poses two issues: (1) the proper standard to be applied in motions for directed verdicts in non-jury trials under the Section B part of LSA-C. C.P. art. 1810 and (2) assuming that the judge in this case applied the proper standard, was his factual determination correct under the “clearly wrong” test of Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Mrs. Mary Fondel Semien, as curatrix of Antoine Semien, brought this suit against Caterpillar Tractor Company for injuries her husband sustained in May of 1977. PPG Industries intervened seeking recovery of compensation benefits it paid Mr. Semien as a result of the accident. After allowing both plaintiff and intervenor to present their cases in chief, the trial court granted defendant’s motion to dismiss pursuant to LSA-C.C.P. art. 1810(B). Plaintiff and in-tervenor now appeal. We affirm.

On May 27, 1977, Antoine Semien sustained a head injury in an accident while in the course and scope of his employment with PPG Industries (PPG). Mr. Semien was employed as a packer at the pigments plant section of PPG in Lake Charles, Louisiana. He had been employed in this capacity for a number of years and had much experience in operating forklift trucks. Mr. Semien’s work activities required that he operate a forklift truck on two levels of the plant’s complex. The two levels are connected by a concrete ramp, which has a slope of about 20 percent and is covered with epoxy which is impregnated with sand to increase friction.

Apparently, Mr. Semien was injured while he was operating a forklift truck designated by PPG as No. 280. A short time 'after noticing Mr. Semien drive the truck up to the concrete ramp, a co-worker, Freddie Dargin, heard a sound which he thought to be Mr. Semien’s hard hat hitting the floor. Mr. Dargin, who was working the conveyor line, looked up to see Mr. Semien seated upright in the forklift truck; he did not have his hat on and his head was “waving”. The lift truck had just come up the ramp and was moving on the horizontal surface of the plant floor. The truck continued to move, slowly at that point, and had traveled approximately 50 feet from the ramp by the time Mr. Dargin was able to reach Mr. Semien and assist him. Mr. Dargin helped Mr. Semien to walk about 100 feet to the office, where others took charge of him and transferred him to St. Patrick’s Hospital. Mr. Semien never lost consciousness.

Following the accident, Mr. Semien told Murray Davis, the PPG safety director, that just as he drove the forklift truck up the ramp and leveled off on the building floor, an object struck him in the eye. He claimed not to have seen or heard anything coming toward him. At no time did he complain of any malfunction or sudden movement of the forklift truck. There was moving machinery in the vicinity of the accident, including the conveyor which Mr. Dargin turned off upon noting Mr. Semien’s distress. Some PPG employees initially thought that something may have fallen or come loose from the conveyor which travels over the area where Mr. Semien was operating. No object was found on the floor in the area where Mr. Semien was injured, however.

The forklift truck itself was carefully examined by PPG personnel, and no defects or deficiencies were found. It was returned to service without repair or adjustment of any kind, and is still in service at PPG.

The case was tried on April 13, 1981, and following the plaintiff’s case in chief the defendant moved for dismissal under LSA-C.C.P. art. 1810(B). After argument, the trial court granted the motion and dismissed plaintiff’s case with prejudice. After permitting the intervenor, PPG, an opportunity to present additional evidence, the court granted defendant’s motion to dismiss the intervenor’s claim on the same basis as the plaintiff. Both plaintiff and intervenor now appeal.

STANDARD FOR DIRECTED VERDICTS IN NONJURY TRIALS

The statute concerning directed verdicts is LSA-C.C.P. art. 1810, which provides in pertinent part:

“B. In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.”

In a number of recent decisions, Louisiana courts have held that in a judge-tried case, the trial judge has a responsibility to weigh and evaluate all the evidence and render a decision based upon a preponderance of the evidence. Sevin v. Shape Spa For Health & Beauty, Inc., 384 So.2d 1011 (La.App. 4th Cir. 1980); Gleason v. City of Shreveport, 393 So.2d 827 (La.App. 2nd Cir. 1981), writ denied, 397 So.2d 806 (La.1981); Bryan v. Varnado, 394 So.2d 1321 (La.App. 1st Cir. 1981); Murray v. Haspel-Kansas Investments, 395 So.2d 453 (La.App. 4th Cir. 1981); Burrell v. Kirkpatrick, 410 So.2d 1255 (La.App. 3rd Cir. 1982), and Thomas v. Thom, 408 So.2d 442 (La.App. 1st Cir. 1981). The position taken in these cases is correct. The trial court in this case did not err in applying the preponderance of evidence rule.

SUFFICIENCY OF PLAINTIFF’S EVIDENCE

The theory of the plaintiff and intervenor is that Mr. Semien’s injury resulted from a design defect in the shifting or transmission system of the forklift truck he was operating. Plaintiff’s experts testified that a defect existed because a single pedal, manipulated by the left foot of the operator, was susceptible of accidental or inadvertent misapplication by the operator. The single pedal was used to cause the forklift truck to go forward and to reverse depending on the manner in which the foot was moved. The experts theorized that some misapplication of the pedal by Mr. Semien caused the machine to stop suddenly or reverse so as to force Mr. Semien’s head to come in violent contact with the steering wheel of the forklift truck. One reason the experts believed this happened is because the frame of Mr. Semien’s glasses were bent into a shape which persuaded the experts that the frame had made forceful contact with the steering wheel so as to leave the wheel’s imprint in the glasses’ frame.

No one knows what happened. No one saw the accident. No proof exists that Mr. Semien’s manipulation of the shift pedal caused his head to strike the steering wheel as the experts think happened. Plaintiff and the intervenor frankly rely on the circumstantial evidence rule. In essence the experts testified that the accident could have occurred in the manner and for the reasons they described. There is no proof that the accident did happen in that manner or for the reasons given by the experts.

The trial court found as a matter of fact that the identity of the object which struck Mr. Semien was never proved. Since the causation element of plaintiff’s and interve-nor’s case was not proved, it is unnecessary to inquire into the possible liability of the manufacturer of the forklift truck under a products liability theory.

Concerning the trial court’s finding of fact, there is no basis on which the trial court’s finding could be deemed “clearly wrong”. The only evidence which the plaintiff put on to support his case was testimony of what could have happened to cause the injury. No evidence was presented to prove that the forklift in any way caused the injury. Plaintiff’s entire case was based on supposition. Mr. Semien himself stated to the safety director at PPG that an object struck him in the eye. In this case, the victim was the only witness to the accident. Mr. Semien’s statement does not fit into the theory that the forklift truck caused his injury.

In light of the lack of evidence, the trial court was not clearly wrong in determining as a matter of fact that the identity of the object which struck him was never proved by a preponderance of the evidence.

We therefore affirm the trial court’s decision and assess all costs of this appeal half to the plaintiff-appellant and half to the intervenor-appellant.

AFFIRMED.

      . Mr. Semien apparently never indicated to anyone that he knew what caused his accident. Dr. Clinton E. Hart, the surgeon who attended to his wound, attempted to obtain a history of the accident. He testified that “the only thing 1 could obtain was that he had been struck by something.” In September after the accident Mr. Semien began to suffer from depression and consulted Dr. Gilíes R. Morin, a psychiatrist. Mr. Semien told Dr. Morin he did not know what happened. Within a short time Mr. Semien began to experience gradual mental deterioration, and at trial Dr. Morin testified that Mr. Semien ultimately reached a nearly vegetable mental condition and he would not know what was going on if he was brought to court.

      . The position taken on behalf of plaintiff and intervenor is that the standard should be the same as that applied in jury trials; that is, that the evidence should be weighed in the light most favorable to plaintiffs case. See Campbell v. Mouton, 373 So.2d 237 (La.App. 3rd Cir. 1979). Under the Campbell rule the facts and inferences must point so strongly and overwhelmingly in favor of one party that the court must believe reasonable persons could not arrive at a contrary verdict. The cases cited in the text of our opinion demonstrate that in cases tried before a judge alone the rule of Campbell is inappropriate, and it is proper for the trial judge to evaluate the plaintiffs case in chief based on a preponderance of evidence.


author: LABORDE, Judge. DOMENGEAUX, Judge, FORET, Judge,

text:
    Troy Hickman PRESTRIDGE, Sr., Plaintiff-Appellee, v. COMMERCIAL UNION ASSURANCE COMPANIES, et al., Defendants-Appellants.
    No. 8699.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1982.
    Rehearing Denied June 1, 1982.

      Stafford, Stewart & Potter, Larry A. Stewart, Trimble, Randow, Percy, Smith, Wilson & Foote, James T. Trimble, Jr., Alexandria, for defendants-appellants.
    Rivers & Willson, Larry W. Rivers, J. Marc Lampert, Alexandria, for plaintiff-ap-pellee.
    Before DOMENGEAUX, FORET and LABORDE, JJ.
   LABORDE, Judge.

This personal injury action arises out of a boat launching accident. Troy Prestridge, Sr. filed this suit for damages against his son, Troy Prestridge, Jr., and his son’s automobile liability carrier, Employers Fire Insurance Company, and his son’s boat insurer, Trinity Universal Insurance Company. The matter was tried to a jury which found that Troy, Jr. was negligent and that Troy, Sr. was not contributorily negligent. The jury awarded plaintiff $25,000 in general damages and $600 in special damages. Defendants suspensively appeal the judgment. We affirm.

The issues on appeal concern Troy, Jr.’s negligence, Troy, Sr.’s contributory negligence and the excessiveness of the general damage award.

On Friday, April 28, 1978, Troy Jr. picked up his father, Troy, Sr., and they traveled from Alexandria to Troy, Jr.’s camp on Toledo Bend Reservoir where they planned to spend the weekend. Troy, Jr. drove them in his pick-up truck, pulling behind it his boat and trailer. They reached the camp sometime between 5:30-6:30 P.M. unloaded their weekend supplies, gathered their fishing gear and proceeded on to a nearby boat launch. Troy, Jr. backed the trailer and boat down the ramp and into the water. He freed the boat from the trailer and then handed the bow line of the boat to his father. Troy, Sr. held the bow line while his son drove his pick-up truck and trailer up the launching ramp. As Troy, Jr. was proceeding up the ramp, the bow line his father was holding became entangled in the guard rail of the trailer pulling Troy, Sr. into the guard rails which ultimately resulted in the amputation of the tips of two of Troy, Sr.’s fingers.

Defendants contend the jury erred in finding Troy, Jr. negligent, or alternatively, in failing to find Troy, Sr. contributorily negligent and in any event, it erred in awarding excessive general damages.

In regard to the first two issues, once the applicable standards of care are established, negligence and contributory negligence are questions of fact to be determined by the judge or jury. Steele v. St. Paul Fire & Marine Ins. Co., 371 So.2d 843 (La.App. 3rd Cir. 1979), writ denied, 374 So.2d 658 (La.1979); Cooksey v. Central Louisiana Electric Co., Inc., 279 So.2d 242 (La.App. 3rd Cir. 1973). In the absence of manifest error, a reviewing court should not disturb these factual determinations. In order to find manifest error, the record must support the conclusion that the factual determinations were clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

We have reviewed the entire record and we find that there is evidence presented that is supportive of the jury’s conclusion that Troy, Jr. was negligent and that Troy, Sr. was free from contributory negligence.

Defendants argue that there was nothing unusual about the procedure used in launching the boat, that the father and son had used the same procedure numerous times without accident and that if anything, Troy, Sr. was responsible for keeping the bow line from becoming entangled. However, several things appear in the record that contradict, explain or qualify these allegations of defendants. For example, both Troy, Sr. and his son testified that upon arriving at the boat launch, they observed a large log floating in the area where the boat was to be launched. They were unable to move the log and had to launch the boat with it in the way. There is some evidence indicating that the trailer wheel rolled over the log complicating the launching procedure and perhaps even causing the bow line to become entangled.

The evidence also shows that even though Troy, Sr. and Troy, Jr. had launched boats together before, this was the first time Troy, Sr. had assisted his son in launching this particular boat. Also unusual was that on the date of the accident, even though Troy, Sr. and Troy, Jr. used a launching procedure similar to ones they had used in the past, they exchanged their customary roles in this procedure. Whereas Troy, Sr. always drove the truck up the ramp and Troy, Jr. always held the bow line, on this particular day, Troy, Jr. instructed his father to hold the bow line while he drove the truck up the steep ramp because the clutch on the truck was slipping. Both Troy, Jr. and his father testified that in order to drive the truck with its slipping clutch up the steep ramp, Troy, Jr. had to race the motor. In driving the truck up the ramp, Troy, Jr. looked back to make sure his father was clear of the trailer. Once he determined this, he looked forward.and continued up the ramp rapidly without again looking back to make sure he could pull the trailer out safely. In the meantime, while Troy, Jr. was proceeding up the ramp with the motor racing and without looking back, Troy, Sr. encountered some problems with the bow line which he testified was his responsibility to keep from becoming entangled. He explained that he was standing near the trailer, holding the bow line and watching for problems. As soon as the bow line became entangled in the trailer he yelled to his son and tried to flip the bow line clear. His son did not hear him yell, possibly due to the noise of the racing motor, and continued up the ramp. Before Troy, Sr. could take any other action he had been pulled into the trailer guides resulting in the amputation of the tips of two of his fingers.

These are some of the factors the jury could have relied upon in reaching its conclusions that Troy, Sr. had exercised ordinary care and prudence under the circumstances while Troy, Jr. had not. Even though another jury might have found otherwise, the jury chosen to try this case did not. The standard for changing a finding of fact by a jury is clear error and that standard has not been shown. Soileau v. South Central Bell Telephone Company, 406 So.2d 182 (La.1981).

The final issue concerns quantum, in particular, the general damages portion of the jury award. Here again much discretion is left to the jury in assessing damages and such discretion should not be disturbed on appellate review in the absence of abuse. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976).

The jury awarded $25,000 in general damages. In view of plaintiff’s injury, we conclude that the jury did not abuse its much discretion. . The accident resulted in the immediate amputation of the distal joint of the long finger of the left hand and amputation of the ring finger down to the middle joint of the same hand. Plaintiff described the immediate pain as feeling like he had been burned with a blowtorch. He was taken to a nearby hospital, received several pain shots and was transferred to Alexandria where he was treated by Dr. P.M. Davis, Jr., a local orthopedic surgeon. Dr. Davis testified to the above by videotape deposition at trial.

Plaintiff testified that following the accident, he remained in almost constant pain for about three months in spite of the pain medications prescribed for him. After this three month period, he continued to suffer pain to a lesser degree and on an .intermittent basis continuing through the date of trial.

Before the accident, plaintiff had no problems with or deformities of his left hand. Now he has problems with his hand that have forced him to limit his fishing activities which he enjoyed and have also affected his ability to do normal chores around the house as well as his ability to repair small machinery which he did to help supplement his retirement income. Plaintiff’s testimony was completely corroborated by his wife’s testimony. Additionally, plaintiff is aware of the disfiguring nature of his injury and has suffered mental anguish as a result of his deformity, all factors which the jury had before it in making its award.

Accordingly, the jury verdict is affirmed in all respects. Appellants, Employers Fire Insurance Company and Trinity Universal Insurance Company, are cast for all costs of this appeal.

AFFIRMED.

DOMENGEAUX, J., concurs and assigns reasons.

FORET, J., dissents with reasons.

DOMENGEAUX, Judge,

concurring.

I believe that the jury was wrong in not finding negligence on the part of the plaintiff father, however, I cannot say that it was clearly wrong, and consequently I am bound by the rules of appellate review set out by our Supreme Court in numerous cases, including Canter v. Koehring Company and Arceneaux v. Domingue, both of which are so well known that citations are not necessary.

I reluctantly agree with the majority opinion and consequently concur therein.

FORET, Judge,

dissenting.

I respectfully dissent from the decision arrived at by my learned brethren. Try as I may, I cannot strain a judgment for the plaintiff from the facts of this case. I find no negligence of plaintiff’s son that was a cause-in-fact of the accident involved. As I see it, the sole negligence involved is that of the plaintiff himself. He permitted the happening of exactly what he was supposed to prevent from happening, i.e., preventing the bowline from becoming entangled in the trailer. As a hapless consequence, two of his fingers were amputated. It was his sole responsibility to keep the bowline from becoming tangled, and he failed in that responsibility. The least he could have done was to let go of the line when he saw that it was becoming entangled, and this he also failed to do.

Even assuming, arguendo, that plaintiff’s son was negligent, at the very least, the plaintiff-father was contributorily negligent and should be barred from recovery.


author: FORET, Judge.

text:
    Viola BORDELON, Plaintiff-Appellee, v. RANGER INSURANCE COMPANY and Colonial Nursing Home, Defendants-Appellants.
    No. 8740.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1982.
    Rehearing Denied June 1, 1982.

      Gist, Methvin, Hughes & Munsterman, H. B. Gist, III, Alexandria, for defendant-appellant.
    James T. Lee, Marksville, for plaintiff-ap-pellee.
    Before DOMENGEAUX, FORET and LÁBORDE, JJ.
   FORET, Judge.

Viola Bordelon (Plaintiff) brought this workmen’s compensation action to recover disability benefits, medical expenses, travel and incidental expenses, and penalties and attorney’s fees. Defendants are Colonihl Nursing Home (Colonial) and its workmen’s compensation insurer, the Ranger Insurance Company (Ranger).

The trial court, after trial, rendered judgment in favor of plaintiff for permanent total disability and all medical expenses, but denied plaintiff’s demands for penalties and attorney’s fees.

Defendants appeal suspensively from the trial court’s judgment and raise the following issue:

Whether the trial court committed manifest error in finding that plaintiff was suffering from substantial pain that rendered her totally and permanently disabled.

Plaintiff has answered the appeal praying that the judgment appealed from be amended to award her penalties and attorney’s fees and that the judgment be affirmed as amended.

FACTS

This action arises out of an accident which occurred on January 15, 1981, when plaintiff, employed as a cook by Colonial, slipped and fell on a wet floor of the kitchen of that facility, injuring herself.

The following facts were stipulated to:

(1) Plaintiff was involved in a work-related accident on or about January 15, 1981, while employed by Colonial;
(2) Ranger provided workmen’s compensation insurance coverage to Colonial on the date and at the time of the accident;
(3) That all medical bills incurred by plaintiff up to the date of trial have been paid by Ranger;
(4) The compensation rate is $89.33 per week;
(5) Payment of workmen’s compensation benefits to plaintiff was terminated on February 19, 1981.

Plaintiff alleges: the happening of the work-related accident and that she suffered injury to her left elbow and right shoulder in that accident; that, as a result of those injuries, she has suffered severe discomfort and substantial pain; that because employment of another type would require special training, she must depend upon labor of the type which she performed for Colonial in order to earn a livelihood; that defendants had acted in an arbitrary and capricious manner when they terminated the payment of workmen’s compensation disability benefits to her; that she is entitled to recover benefits as provided in LSA — R.S. 23:1221(2) for total and permanent disability; that, in the alternative, she is entitled to recover permanent partial disability benefits as provided for in LSA-R.S. 23:1221(4), or any other applicable provisions of the Louisiana Workmen’s Compensation Act; and, that defendants are responsible for all medical expenses incurred in the treatment of her injuries, both past and future, together with all incidental expenses related thereto. Plaintiff also sought to recover penalties and attorney’s fees for defendants’ alleged arbitrary and capricious actions in terminating the payment of disability benefits to her.

Defendants contend that they had terminated the payment of disability benefits to plaintiff upon receipt of an unequivocal report from plaintiff’s treating orthopedic surgeon stating that plaintiff had fully recovered from her injuries and was able to resume full employment without any disability.

PLAINTIFF’S ALLEGED DISABILITY

The trial court made the following findings of fact, which it set forth in its written opinion:

“1) Plaintiff’s shoulder and arm conditions were related to the job site accident and thus the disability of Mrs. Bordelon arose from the said accident;
2) Viola Bordelon has bursitis which is related to the fall of Viola Bordelon at Colonial Nursing Home;
3) Plaintiff’s bursitis is very painful and interminable;
4) Plaintiff is totally and permanently unable to pursue any gainful employment without experiencing substantial pain.”

The trial court further stated that:

“Mrs. Bordelon testified that she has limited education; that the only work she has done is work as a laborer and a cook which involves heavy lifting and heavy labor; that she is not able to do work because of the injuries which she sustained in the accident.

The law clearly provides that a worker is totally disabled if he is unable to pursue any gainful employment without experiencing substantial pain.”

As can be seen from the above excerpts, the trial court analyzed this “substantial pain” case within the framework of the “Odd Lot Doctrine”.

A worker who cannot return to any gainful employment without suffering substantial pain is entitled to compensation benefits for total disability. Lattin v. HICA Corporation, 395 So.2d 690 (La.1981); Wilson v. Ebasco Services, Inc., 393 So.2d 1248 (La.1981); Dusang v. Henry C. Beck Builders, Inc., 389 So.2d 367 (La.1980); Whitaker v. Church’s Fried Chicken, Inc., 387 So.2d 1093 (La.1980).

Lattin stated, on pages 693 and 694 that:

“Under the odd lot doctrine, a claimant is considered totally disabled if his injury makes him an odd lot in the labor market, that is, one capable of obtaining employment periodically but one whose services are so limited in quality, dependability or quantity that a reasonably stable market for his services does not exist. An odd lot claimant need not be absolutely helpless to qualify for total disability. If the claimant can prove that his physical condition, mental capacity, education, training age or other factors combine to place him at a substantial disadvantage in the competitive labor market, he has made out a prima facie case for classification in the odd lot category. This satisfies his burden of proving that he should be awarded benefits for permanent and total disability. The employer or insurer must then show that some form of gainful occupation is regularly and continuously available to the employee within reasonable proximity to the employee’s residence.”
“The odd lot doctrine is also applicable to substantial pain cases because a worker who, due to his injury, can function only with substantial pain or with the help of fellow workers may not be considered a particularly desirable employee. Thus, if a claimant’s pain appreciably limits the types of work available to him and greatly diminishes his ability to compete in the labor market, he can be treated as an odd lot worker and be awarded total disability, unless there is proof that jobs are realistically available to him. On the other hand, if a worker cannot perform the same work that he did before his injury because it causes him substantial pain, but he has the mental capacity to perform other jobs which are available, he should be considered partially disabled. Busang v. Henry C. Beck Builders, Inc., supra.”

Defendants contend that the trial court committed manifest error in making its finding of fact number (4), i.e., that plaintiff is totally and permanently unable to pursue any gainful employment without experiencing substantial pain. Defendants argue that plaintiff failed to prove that she is totally and permanently disabled and/or that she suffers from substantial pain.

The claimant has the burden of proving to a legal certainty and by a reasonable preponderance of the evidence that he is disabled. Elie v. St. Paul Fire & Marine Insurance Co., 408 So.2d 297 (La. App. 3 Cir. 1981); Augustine v. Courtney Construction Co. of Alexandria, Inc., 405 So.2d 579 (La.App. 3 Cir. 1981), writ denied, 407 So.2d 735 (La.1981); Guidry v. Ford, Bacon & Davis Const. Corp., 376 So.2d 352 (La.App. 3 Cir. 1979); Soileau v. Bituminous Casualty Corp., 348 So.2d 1313 (La. App. 3 Cir. 1977). Whether a workmen’s compensation claimant is suffering pain substantial enough to be disabling is a question of fact to be decided by the trial court on the basis of the preponderance of the medical and lay evidence. Lemoine v. Employers Casualty Company, 378 So.2d 594 (La.App. 3 Cir. 1979), writ denied, 380 So.2d 101 (La.1980); Newell v. United States Fidelity & Guaranty Company, 368 So.2d 1158 (La.App. 3 Cir. 1979); Lucas v. Insurance Company of North America, 342 So.2d 591 (La.1977). Once the trial court has made factual findings as to disability and the length thereof, these determinations are entitled to great weight and are not to be disturbed except upon a showing of manifest error. Hookfin v. Schwegmann Brothers Giant Super Markets, Inc., 398 So.2d 1218 (La.App. 4 Cir. 1981); Newell v. United States Fidelity & Guaranty Co., supra; Stokes v. Continental Insurance Co., 345 So.2d 1200 (La.App. 1 Cir. 1977).

We have carefully reviewed the medical evidence and lay testimony. While a different trier of facts, and while we ourselves may have reached a conclusion different from that reached by the trial judge herein, we cannot say that reversible error was committed by the trial court.

There is considerable conflict in the medical evidence, and there are even discrepancies in the plaintiff’s testimony, which tend to bring the judgment of the trial court under some suspicion of error. But, due to the traditional liberal treatment of workmen’s compensation cases, and the restricted judicial review afforded to the intermediate appellate courts of Louisiana, we feel that we would ultimately be found in error should we reverse the trial court judgment.

Further, the defendants herein have the option of re-opening this case according to law for later evaluation of plaintiff’s physical condition. In such an eventuality, both the trial court and this Court may have further opportunity to review the matter. Likewise, for the reasons stated above, we are of the opinion that the judgment of the trial court denying penalties and attorney’s fees is correct, and we affirm same.

Costs of this appeal are assessed against appellants.

AFFIRMED.

DOMENGEAUX, J., concurs in the result.

      . The Colonial Nursing Home is located in Marksville, Louisiana.


author: DOUCET, Judge.

text:
    Robert SIDNEY, Plaintiff and Plaintiff-Appellant, v. Aaron FROSCH, Albert Krafcheck, Charlotte Tucker, All as Trustees of the James Ware Gardiner Trust, Defendants and Appellees.
    No. 8761.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1982.
    Rehearing Denied June 1, 1982.
    Plauche, Smith, Hebert & Nieset, Reid K. Hebert, Lake Charles, for plaintiff and plaintiff-appellant.
    Liskow & Lewis, Stephen T. Victory, New Orleans, for defendants and appellees.
    Before CULPEPPER, SWIFT and DOU-CET, JJ.
   DOUCET, Judge.

Plaintiff-Appellant, Robert Sidney, instituted this action for declaratory judgment and an accounting against the executors-trustees of the will of James Ware Gard-iner, who had died in Las Vegas, Nevada, on November 6, 1976, leaving a sizeable estate, the majority of which was located in Connecticut and Louisiana. The Will was probated in Connecticut, decedent’s domicile, and here in Louisiana in ancillary proceedings. As a legatee under the will and a beneficiary under the trust created therein, plaintiff sought an interpretation of certain provisions thereto and, if the interpretation was more favorable to him than the interpretation previously given by the trustees, he sought an accounting.

The provision in dispute is contained in Article 28, which provides in its entirety:

“TWENTY-EIGHTH: All the rest, residue and remainder of my Estate whether real, personal or mixed and wheresoever situated and whatsoever the same may be, of which I may die seized or possessed, or to which I shall be in any way entitled, or over which I shall possess any power of appointment by will at the time of my demise, including any failed or lapsed legacies or bequests (hereinafter called my Residuary Estate) I give, devise and bequeath to my Trustees hereinafter named, in Trust, to hold, manage, invest, and reinvest the same, to receive and collect the income therefrom and to pay out of the income therefrom as and to the extent indicated below. This Trust shall exist until the death of the last survivor of the following:
CHARLOTTE TUCKER, BEN VAN DER HOUWEN, ROBERT SIDNEY and JOSE ALGUERO which period is hereinafter called the “Trust Term.” During the Trust Term, from the income of the Trust, my Trustees shall pay the sum of TEN THOUSAND ($10,000) DOLLARS annually to each of CHARLOTTE TUCKER, JAMES FLOWERS, BEN VAN DER HOUWEN and JOSE ALGUERO during their respective lives. During the Trust Term, my Trustees are also hereby authorized to make such payments from the income of Trust to or on behalf of LOUIS SATENSTEIN as my Trustees may in their sole and absolute discretion deem necessary or advisable. To the extent such portion of the income of the Trust may be insufficient to make the payments to CHARLOTTE TUCKER, BEN VAN DER HOUWEN, JOSE ALGUERO, JAMES FLOWERS and LOUIS SATEN-STEIN as provided for herein, the Trustees may utilize principal of this Trust to make up any difference.
a)I further direct that my Trustees shall pay one-fifth of the remaining net income of this Trust annually or more frequently, to or on behalf of ROBERT SIDNEY during his life, or not less than the sum of TWENTY-FIVE THOUSAND ($25,000) DOLLARS annually, whichever is lesser, and two-fifths to JAMES GARDINER GARRISON, my great-nephew, and two-fifths to institutions named in this Will.
b) Any income of this Trust which my Trustees have not directed to be paid prior to the close of the Trust’s year (whether calendar or fiscal) shall be added to principal.
c) It is my desire that to the extent that my Residuary Estate and the Trust created thereunder shall be comprised of certain interests known as the ‘GARDINER LANDS’ (for the purposes hereof ‘GARDINER LANDS’ shall be deemed to mean those lands and all interests affecting lands in states other than Connecticut which I inherited from my father JAMES WARE GARDINER, my mother KATHERINE BEL GARDINER HANSZEN and my stepfather HARRY C. HANSZEN) such interest shall be retained by my Executors and Trustees and not disposed of prior to the disposition of the other assets comprising my Residuary Estate and/or the corpus of the trust created hereunder.
d) Upon the expiration of the Trust Term, I give, devise and bequeath said interests in and to said Gardiner lands, as follows:
An undivided one half interest therein to and among the then living issue of my nephew DAVID L. GARRISON, JR. in equal shares per stripes and the remaining undivided one half interest to the listed charities and institutions in this Will.
e) Upon the expiration of the Trust Term, the then remaining principal of the Trust created with regard to my Residuary Estate after giving effect to the provisions of the preceding subpar-agraph (d) shall be distributed and paid out in equal shares to and among the ST. PATRICK’S HOSPITAL, Lake Charles, Louisiana, the ST. JOSEPH’S HOSPITAL, Stamford, Connecticut (with the hope that they will properly honor the memory of my late sister, Katharine) and the NORWALK HOSPITAL, Norwalk, Connecticut, and Washington and Lee University, Lexington, Virginia.

(emphasis ours)

The trustees’ interpretation results in plaintiff receiving a maximum of $25,000 per year during his life. They maintain that the disputed provision contains ambiguities within and that their construction harmonizes said Article 28(a) with the remainder of the will.

Portions of the will not disputed establish the property to be included in the trust, and provide that $10,000 is to be given annually to four individuals during their respective lives, payable from the income generated by the trust, and from the principal to the extent insufficient income exists. Appel-lees contend that Article 28(a) is ambiguous inasmuch as it could be construed to provide plaintiff with either a minimum or maximum of $25,000 annually. In support thereof they note that plaintiff was excluded from the group of aforementioned individuals guaranteed a specific annual income, and that had testator intended plaintiff be guaranteed a minimum of $25,000 annually he too would be allowed to invade the principal if insufficient income existed. Additionally, appellees call attention to a provision of the will granting trustees authority to pay all of the income to one Louis Satenstein, if they so desired, thereby depleting the fund available to satisfy plaintiff’s portion. Furthermore, they note that subparagraph (a) of Article 28 grants unto James Garrison two-fifths of the net income with a like amount given to charitable institutions and conclude therefrom that plaintiff’s $25,000 portion was intended to be a maximum. Finally, appellees urge that the testator’s recognition that circumstances could exist requiring undistributed income be added to the principal, as evidenced by Subparagraph (6), not enumerated hereinabove, supports the limiting construction accorded plaintiff’s bequest.

Conversely, plaintiff maintains that the trustees’ interpretation ignores the phrase “not less than” the sum of $25,000 annually and renders the clause “not more than”. Plaintiff’s interpretation of the clause is that the testator intended to assure him the greater of $25,000 or one-fifth annually and that the phrase “whichever is lesser” was merely an inept and inaccurate mode of expression.

Our paramount concern is, of course, to ascertain the intention of the testator. LSA-C.C. Art. 1712: Carter v. Succession of Carter, 332 So.2d 439 (La.1976); Succession of Gardner, 336 So.2d 1065 (La.App. 3rd Cir. 1979). If any ambiguity exists as to the testator’s intent with regard to a particular clause or bequest, other clauses or bequests must be considered along with the ambiguous clause or provision to reach, if possible, an interpretation which harmonizes the whole. Succession of Levy, 207 La. 1062, 22 So.2d 650 (La.1945); Succession of Griffin, 366 So.2d 1029 (La.App. 1st Cir. 1979).

As evidenced by the persuasive argument advanced by each side, the bequest is easily capable of opposing interpretations, both of which are reasonable. The disputed provision contains two contradictory expressions which are irreconcilable; thus one must yield. When a will is capable of being construed so as to grant differing amounts, our Civil Code resolves the conflict by adapting the interpretation giving the lesser sum. LSA-C.C. Art. 1717 provides:

“If it can not be ascertained whether a greater or less quantity has been bequeathed, it must be decided for the least.”

Construing the will as a whole, the interpretation thereof adopted by the trustees and the trial court was correct. Moreover, the result reached is consistent with codal rules of construction favoring construction bequesting a lesser amount. Accordingly, we affirm. All costs taxed to appellant.

AFFIRMED.


author: LABORDE, Judge.

text:
    Oran MONTGOMERY, Plaintiff-Appellant, v. COMMERCIAL UNION ASSURANCE COMPANY, et al., Defendants-Appellees.
    No. 8772.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1982.
    Rehearing Denied June 1, 1982.
    Raleigh Newman, Lake Charles, for plaintiff-appellant.
    Brame, Bergstedt & Brame, David A. Fraser, Lake Charles, for defendants-appel-lees.
    Before DOMENGEAUX, FORET and LABORDE, JJ.
   LABORDE, Judge.

Plaintiff, Oran Montgomery, sued his employer, Port City Construction Company, Inc., and its compensation carrier, Commercial Union Assurance Company, to recover workmen’s compensation benefits and penalties and attorney’s fees. The trial court, finding plaintiff to be totally and permanently disabled, granted him benefits. His claim for penalties and attorney’s fees was denied. Plaintiff appeals that portion of the judgment denying him penalties and attorney’s fees.

The sole issue on appeal is: Whether Commercial Union acted arbitrarily, capriciously or without probable cause in failing to pay plaintiff’s workmen’s compensation benefits so as to be subject to penalties and attorney’s fees under LSA-R.S. 22:658. We hold that it did.

Plaintiff, who was working as a construction laborer for Port City Construction Company, was injured on March 23, 1977, when a large board fell 30 to 40 feet and struck him on the head. His employer and its insurer, Commercial Union, never questioned that plaintiff suffered an employment related injury and that whatever disability he suffered was compensable at the rate of $95 per week. Compensation was paid at that rate from the date of the accident until September 21, 1977, for a total of $2,375. Defendants also paid most of the medical expenses for that period of time and some medical expenses incurred thereafter. The present suit was filed November 2, 1977. Trial was held on April 2, 1981.

Commercial Union stopped paying compensation in September of 1977 because it believed that plaintiff had completely recovered from whatever physical injury he had suffered from the accident. From September of 1977 through the date of trial on April 2, 1981, Commercial Union, for the same reason, refused to reinstate compensation benefits and also refused to pay the bulk of medical expenses incurred for almost four years.

Plaintiff contends that he never recovered from the accident and that defendants’ termination of benefits and its refusal to reinstate them during this interval prior to trial was unreasonable and entitles him to penalties and attorney’s fees.

From the date of the accident until September, 1977, plaintiff was treated by at least twenty doctors in Lake Charles, Houston or Lafayette. In terminating benefits as of September 21, 1977, Commercial Union relied upon the examinations conducted by two of these doctors, .Dr. Daniel C. Dunlap, a neurologist of Lafayette and Dr. Fred C. Weber, an orthopedist of Lafayette. Both doctors, with a few qualifications, found nothing wrong with plaintiff and felt he could return to work.

The record shows that subsequent to these findings, Commercial Union received medical reports from doctors, each well-respected in his field, who had examined and treated plaintiff. The great preponderance of these subsequent medical reports indicated that plaintiff had not sufficiently recovered from the accident such that he could return to work. Several doctors even went so far as to express doubt as to whether plaintiff would ever be able to return to work. Examples of only a few of the subsequent medical opinions which conflicted with the medical opinions of Drs. Weber and Dunlap follow. Plaintiff, complaining of severe pain, saw Dr. Charles Neblett, a neurosurgeon in Houston, on June 29, 1977. Dr. Neblett, after examining plaintiff, found a neurological basis for plaintiff’s complaints of headaches and neck pain. Plaintiff was hospitalized for additional tests in Methodist Hospital in Houston. X-rays confirmed a fracture of the mandible which required treatment. This injury had been completely over-looked by the prior treating physicians. Dr. Neblett testified he also found limitation of motion in movement of plaintiff’s head with spasms in the neck area and tenderness radiating into the right shoulder. He also stated plaintiff suffered a hearing loss and that there was a significant degree of cervical spondylosis— all findings, he felt, which were consistent with a blow on the head. Dr. Neblett’s deposition was taken November 6, 1979.

Plaintiff continued to suffer and was referred to Dr. Joseph Epps, Jr., a neurosurgeon in New Orleans. Dr. Epps examined plaintiff on May 11, 1978, and due to his findings he had a myelogram and an EMG run at Baptist Hospital in New Orleans. The tests showed nerve root involvements at L4-5 and SI. He recommended surgery and performed a laminectomy at L4 — 5 and L5/S1 and a diskectomy on the right side. Plaintiff continued to suffer with neck pain and when discharged from the hospital, Dr. Epps prescribed that he wear a transcuta-neous nerve stimulator. Plaintiff continued to experience signs and symptoms associated with nerve root irritation in spite of the surgery. It was Dr. Epps’ opinion that plaintiff was disabled from engaging in any gainful employment due to his injury resulting from the accident and that his chances for returning to employment requiring manual labor were poor as were his chances for improvements in his medical condition. Dr. Epps was deposed on August 21, 1979, and as early as June 6, 1978, Commercial Union was in receipt of copies of the operation report and discharge summary.

Plaintiff was also seen by Dr. Jerome W. Ambrister, an orthopedic surgeon in Lake Charles, on October 2,1978, and January 26, 1979. Dr. Ambrister submitted a report on May 19, 1979, and testified in court that plaintiff was disabled from returning to any type of arduous work and that his prognosis of ever returning to work at any job was poor.

Plaintiff was next seen by Dr. Ernest Kinchen, a general surgeon in Lafayette, on September 18, 1979. Plaintiff was hospitalized after an EMG indicated either probable L5-S1 denervation or probable nerve root lesion. Dr. Kinchen indicated that plaintiff could not return to work and that although he was developing psychological problems, he also had real findings from an objective medical standpoint relative to the back and neck area. Dr. Kinchen felt plaintiff could not return to any type of strenuous work because of the persisting problems. Dr. Kinchen was deposed on November 5, 1979.

On September 20, 1979, at Dr. Kinchen’s request, plaintiff was examined by Dr. William Cloyd, a psychiatrist in Lafayette. Dr. Cloyd found a severe traumatic neurosis with deterioration of personality function with severe symptoms which were neurotic almost to the psychotic level. He found both physical and emotional problems all of which were very real and disabling to plaintiff. On the date Dr. Cloyd’s deposition was taken, November 5, 1979, he felt plaintiffs condition was deteriorating instead of improving. It was his opinion that more probably than not, plaintiff would never be able to return to any type of employment.

Almost all of the doctors who examined plaintiff agreed that he was not a malingerer, nor was he preoccupied with compensation.

Assuming that Commercial Union relied on the earlier reports of Drs. Weber and Dunlap to justify its termination of compensation benefits in September of 1977, defendant was placed on notice shortly and then continually thereafter of conflicting medical reports. Upon receipt of medical reports showing that plaintiff was still injured and could not return to work, it was incumbent upon defendants to make a reasonable effort to ascertain plaintiff’s exact condition. The record contains no evidence as to such an inquiry. We hold defendant, Commercial Union, was arbitrary and capricious in failing to make such an inquiry, choosing instead to rely on the earlier dated medical reports of two doctors. Walker v. Gaines P. Wilson & Son, Inc., 340 So.2d 985 (La.1976).

The trial court, in denying plaintiff penalties and attorney’s fees, stated:

“. . . viewed in retrospect and as a whole, plaintiff’s entitlement to compensation is clear, but it would be hard to say at what point in the development of the medical case that became clear, and I do not think that this is a case where penalties and attorney’s fees ought to be imposed . . . . ”

We disagree. Commercial Union terminated compensation benefits on September 21, 1977, and refused to reinstate same up until the time of trial on April 2, 1981. In the meantime, it received report after report indicating that plaintiff had not fully recovered and still could not return to work. While it may be hard to pick a precise date, it is clear that at some time prior to trial Commercial Union acted arbitrarily and capriciously in not resuming and bringing up to date payment of weekly benefits to plaintiff. We hold that it is liable for penalties in accord with LSA-R.S. 22:658 and we place the date at August 21, 1979, the date Dr. Epps was deposed.

Commercial Union’s action also subjects it to attorney’s fees. In determining the amount to be awarded, the relevant factors include the degree of skill of the attorney and the volume of work performed by him in prosecution of the claim. Considering these factors we award attorney’s fees of $5000. Moreau v. Houston General Ins. Co., 386 So.2d 151 (La.App. 3rd Cir. 1980).

For the above and foregoing reasons, the judgment as amended is affirmed insofar as it declares plaintiff to be totally and permanently disabled and awards benefits and interest accordingly. It is reversed insofar as it'denies plaintiff recovery of statutory penalties and attorney’s fees against defendant, Commercial Union Assurance Company. It is hereby ordered that there be judgment in favor of plaintiff and against defendant, Commercial Union Assurance Company, in the amount of $5,000 for attorney fees plus 12% penalties on all weekly benefits due after August 21, 1979. Costs of this appeal are assessed to Commercial Union Assurance Company.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

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


text:
    Ronnie MAGNON, Plaintiff-Appellee, v. ACADIAN METROPOLITAN CODE AUTHORITY, Defendant-Appellant.
    No. 8774.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1982.
    Rehearing Denied June 1, 1982.

      J. M. Wooderson, Lafayette, for defendant-appellant.
    Cole & Guidry, J. N. Prather, Jr., Lafayette, for plaintiff-appellee.
    Before DOMENGEAUX, FORET and LABORDE, JJ.
   FORET, Judge.

Ronnie Magnon (Plaintiff) brought this action to have a writ of mandamus issued directing defendant, Acadian Metropolitan Code Authority, to issue him a master’s electrical license, or to show cause to the contrary.

The trial court, after hearing, rendered judgment in favor of plaintiff making the writ peremptory and ordering defendant to issue plaintiff a master’s electrical license. We reverse.

Defendant appeals devolutively from the trial court’s judgment and raises the following issues:

(1) Whether a master’s electrical license can be issued to an individual only, or can it be issued to a corporation;
(2) Whether corporate income tax returns are relevant in making a determination of an applicant’s prime source of income, if a master’s electrical license can be issued only to an individual;
(3) Whether an applicant for a master’s electrical license must prove that electrical work provided his “prime source” of income for each of the five years preceding the date on which he applies for the license, or can he average his income from electrical work for those five years and his total income, and still meet the requirements of a “grandfather clause” for the issuance of such a license; and
(4)What does the term “reasonable proof” mean with respect to the requirements of the “grandfather clause”.

FACTS

Defendant was created in the early part of 1980, as an intergovernmental public corporate body by ordinances adopted by the Lafayette Parish Police Jury and certain municipalities and villages within that parish . At that time, the same public entities adopted what is known as the “Joint Services Agreement” (the agreement) and defendant was to administer the terms of that agreement. The agreement provides the following in Section I regarding defendant’s purpose:

“I

PURPOSE

The purpose of the Acadian Metropolitan Code Authority is to provide minimum requirements to safeguard life, health, and public welfare and the protection of property as it relates to these safeguards by regulating and controlling the design, construction, alteration, repair, equipment use and occupancy, location, maintenance, removal and demolition of all buildings or structures and appurtenances thereto.”

Plaintiff was a contractor who had constructed a number of houses in Lafayette Parish prior to the adoption of the agreement. Plaintiff apparently obtained two permits from defendant in the latter part of 1980 allowing him to perform electrical work on two houses he was constructing. However, when he called for defendant to inspect the work he had done, defendant refused to do so asserting that he needed a master’s electrical license to perform such work. Plaintiff then applied for such a license on the basis of a “grandfather clause” contained in Section XVI of the agreement. That section provides:

“XVI

ACADIAN METROPOLITAN CODE AUTHORITIES, SCOPE OF SERVICES

The Acadian Metropolitan Code Authority shall license all contractors in the trades governed by it. Licensing shall be as a result of successful completion of an exam conducted before the Acadian Metropolitan Code Authority Board of Regents, and subject to the regulations concerning the examination as put out by the Acadian Metropolitan Code Authority Board of Regents. However, all valid licenses now in effect for electrical, plumbing, and mechanical contractors issued by the City of Lafayette authorizing them to do business in the City of Lafayette shall be honored by the Acadi-an Metropolitan Code Authority and shall be deemed as prima-facie evidence of competence to hold such license. All contractors in the Parish exclusive of the jurisdiction of the City of Lafayette who show reasonable proof that they have earned their living through the prime source of contracting in those specific trades for a period of at least five (5) years, shall be granted a license. It shall be illegal to practice a trade requiring a license without such license within the jurisdictional boun-dries of the Acadian Metropolitan Code Authority.

Defendant refused to issue plaintiff a master’s electrical license finding that plaintiff had failed to prove that he had earned his living through the prime source of electrical contracting for a period of at least five years. Plaintiff appealed defendant’s refusal to grant him a license to the Acadian Metropolitan Code Authority Advisory Electrical Board of Standards and Appeals (Advisory Board). Section XX(W)(e)(4) of the agreement provides the following regarding the powers and duties of the Advisory Board:

“(4) To act as a Board of Arbitration for the contractor, owner, or others who feel that' a decision regarding interpretation of the code or a refusal of variance to code is incorrect or unjust.” (Emphasis ours.)

Before the Advisory Board, plaintiff once again argued that he should be issued a master’s electrical license because he met the requirements for such as set forth in the “grandfather clause”. Ed Dauphin (Dauphin), defendant’s executive director, testified that the Advisory Board (rejected plaintiff’s appeal because he again failed to prove that electrical contracting had provided his prime source of income for five years.

Having exhausted his appeals under the agreement, plaintiff instituted this action on March 18, 1981, alleging that his prime source of income for the previous six years had been from electrical contracting.

WHO MAY OBTAIN A MASTER’S ELECTRICAL LICENSE UNDER THE AGREEMENT.

Defendant raises the issues of whether a corporation may obtain a master’s electrical license under the agreement and, if such a license can only be issued to an individual, whether corporate income tax returns are relevant in making a determination of an individual applicant’s prime source of income.

We find no need to engage in a discussion of either of these issues. The record clearly shows that plaintiff was applying for a master’s electrical license as an individual, and that the state and federal income tax returns introduced in evidence were the individual joint returns of plaintiff and his wife.

PLAINTIFF’S PROOF OF HIS PRIME SOURCE OF INCOME

Defendant contends that the trial court committed manifest error in finding that plaintiff’s prime source of income, for the five years preceding the date on which he applied for his master’s electrical license, was electrical contracting. Defendant argues that plaintiff failed to list his occupation as “electrical contractor” on his income tax returns and, instead, listed his occupation on his 1975 returns as tile worker and as a general contractor on his returns for 1976 through 1979.

We find that plaintiff’s failure to list his occupation as electrical contractor on his income tax returns in no way precludes him from proving that his prime source of income was actually electrical contracting during the time periods covered by those returns.

Defendant next argues that the “grandfather clause” requires that an applicant’s prime source of income be from the trade he seeks to be licensed in for each of the five years preceding the date of his application. It does not permit an applicant to average his income from the trade for the five-year period and then divide that figure by his average total income for the same period to show that the trade provided his prime source of income. However, there was evidence presented to the trial court by plaintiff in which he did just that, i.e., average his income over the five-year period preceding the date of his application to show that electrical contracting had provided his prime source of income during that time period.

Dauphin, defendant’s executive director, testified that he was the sole author of the agreement. He stated that it was his intent to require applicants to show that their prime source of income for each of the preceding five years be from the trade before issuing them a license under the “grandfather clause”. He also intended that the term “prime source” mean over 50% of an applicant’s income. The Advisory Board interpreted this requirement of the “grandfather clause” in the same manner.

The legislative grant of authority allowing parishes and municipalities to enter into agreements such as the one in this case is found in that part of the Revised Statutes known as “The Local Services Law”. See LSA-R.S. 33:1322.

LSA—R.S. 33:1323 provides:

“§ 1323. Liberal construction

This Part shall be construed liberally, to the end that, through the use of the arrangements provided herein, greater economy and efficiency in the operation of local services may be encouraged, and the benefits of such services may be extended.”

It has long been recognized in Louisiana that the valid exercise of the police power of a municipality requires that such actions be reasonably related to the public health, morals, and general welfare. The means adopted by an ordinance must be reasonably adapted to a public end and must not be arbitrary, oppressive, or unreasonable. City of Crowley Firemen v. City of Crowley, 264 So.2d 368 (La.App. 3 Cir. 1972), writ issued, 262 La. 1086, 266 So.2d 219 (1972), affirmed, 280 So.2d 897 (La.1973); Louisiana Gas Service Company v. Louisiana Public Service Commission, 245 La. 1029, 162 So.2d 555 (1964).

The court will not interfere with the exercise of legislative discretion nor substitute its own judgment for legislative discretion, except where the legislative action is so clearly arbitrary and capricious as to be unreasonable. City of Crowley Firemen v. City of Crowley, supra; Hunter v. City of Shreveport, 216 So.2d 140 (La.App. 2 Cir. 1968), writ denied, 217 So.2d 414 (La.1969).

We find that defendant, created as an agency and instrumentality of Lafayette Parish and some municipalities located therein to administer the terms of the agreement, has the power to interpret the terms of the agreement. See Section XX(W)(e)(4) of the agreement, reproduced above. In the absence of a showing that defendant’s interpretation and application is unreasonable and/or arbitrary and capricious, a court should accept that interpretation. There has been no showing made in the case before us that defendant’s interpretation and application of the requirements of the “grandfather clause” is unreasonable and/or arbitrary and capricious, and we accept it.

Under the terms of the agreement, plaintiff must show by reasonable proof that he has earned his living through the prime source of electrical contracting for a period of at least five years to obtain a master’s electrical license. Reasonable proof is defined by the agreement as: “Documented evidence such as federal income tax files or a certified public accountants [sic] affidavit attesting to the facts.” We find that the listing of documentary evidence necessary to provide reasonable proof of an applicant’s ability to meet the requirements of the “grandfather clause” is merely illustrative, rather than exclusive.

Plaintiff introduced in evidence the individual joint federal and state income tax returns filed by him and his wife for the years 1975 through 1979. A review of those returns shows that it is impossible to discern, from them alone, whether plaintiff’s prime source of income for those five years came from electrical contracting. Aubrey Bourgeois, a CPA who had been handling plaintiff’s books for some three and a-half years, testified that he had signed an affidavit, introduced in evidence, in which he stated: “Therefore it is to my personal knowledge that Ronnie Magnon has derived and is deriving his living through the prime source of electrical contracting.” Bourgeois was asked in court to state the basis of his conclusion. He testified that he selected three of plaintiff’s jobs at random and made a determination of what percentage of plaintiff’s total profit on each job came from the electrical work performed by plaintiff. He stated that plaintiff’s electrical work accounted for 44.83%, 40%, and 57.73% of the total profit on each job, respectively.

Under cross-examination, Bourgeois admitted that all three jobs had been performed by plaintiff in 1980, and that he had no similar cost breakdowns for jobs performed in earlier years. He further admitted that he had no personal knowledge of what percentage of plaintiff’s income came from electrical contracting for the three years prior to 1980. Finally, as noted above, Bourgeois had been handling plaintiff’s financial records for only the past three and a-half years. Paul LeBlanc, an employee of the same accounting firm as Bourgeois, testified that he prepared income tax returns and that he was familiar with plaintiff’s income tax returns. He stated that, with the information plaintiff had submitted to the firm, there was no way he could determine what percentage of plaintiff’s profits came from any particular source.

Defendant introduced in evidence a transcript of plaintiff’s hearing on his appeal to the Advisory Board, where plaintiff was asked what percentage of his income was derived from electrical contracting work. Plaintiff replied that such work was producing 25% of his income. Plaintiff admitted that he had said this at the hearing and offered no explanation for doing so. He testified that he probably could find the receipts, etc. dating back to 1975, that were associated with the jobs he had done, although he usually didn’t keep such things for more than three years. The record shows that none of these receipts, etc. were introduced in evidence for any of the five years in which plaintiff claimed that his prime source of income was derived from electrical contracting.

It is our opinion that the trial court committed manifest error in finding that plaintiff had proved that he was entitled to be issued a master’s electrical license under the “grandfather clause”.

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

REVERSED.

      . See LSA-R.S. 33:1324, LSA-R.S. 33:1332, and LSA-Const. Art. VI, § 20, authorizing the creation of such intergovernmental public corporate bodies.

      . The municipalities and villages that entered into the agreement with the Lafayette Parish Police Jury are: the City of Lafayette; the Town of Broussard; the Town of Carenero, and the Village of Youngsville.

        Reasonable proof shall mean: Documented evidence such as federal income tax return files or a certified public accountants affidavit attesting to the facts." (Emphasis ours.)

      . Plaintiff has not taken, nor has he requested, an examination conducted by the defendant to determine his qualifications for the license which he seeks.

      . Actually, the trial court made no such specific finding. Instead, the trial court simply found that the law and evidence were in favor of plaintiff and against defendant.


text:
    Robert Lawrence WARNER, Plaintiff-Appellant, v. Mary Grace Peters WARNER, Defendant-Appellee.
    No. 8782.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1982.
    Rehearing Denied June 1, 1982.
    Rivers & Willson, Thomas R. Willson, Alexandria, for plaintiff-appellant.
    Lauve & Hill, Lewis O. Lauve, Alexandria, for defendant-appellee.
    Before DOMENGEAUX, FORET and LABORDE, JJ.
   LABORDE, Judge.

Robert Lawrence Warner, appellant, was awarded custody of Christopher. Darrell Warner and Jessica Lenore Warner, the minor children born of his marriage to Mary Grace Peters Warner, appellee, in both the judgment of separation rendered here in Louisiana and in the judgment of divorce obtained by appellee in the State of Georgia. Appellee filed a motion to set specific visitation rights with her minor children. Appellant filed a reconventional demand requesting reasonable child support. Appellant appeals an adverse trial court judgment denying his request for child support.

The issue presented on appeal is whether a non-custodial parent has the obligation to support his or her minor children, and if so, in what amount.

We hold that appellee has the obligation to contribute to the support of her minor children and we hereby fix that monthly support award at $100 per month.

The evidence shows that Grace is remarried and is presently unemployed, although she testified that she had worked as a waitress and in factories in Georgia. She is in good health, but has been unable to find a job. Her present husband has a gross income of $250 per week and a net income of $174.90 per week. Their monthly expenses total $480.58 excluding food and clothing. Grace’s present husband earns some extra money by installing carpet. They have no children.

Robert has also remarried. He and his present wife, who also works, have a gross income of $2,398 per month and a net income of $1,700. Their itemized monthly obligations, including support for the minor children, total $1,585.75.

Following the hearing on the rule the trial judge held: “For the oral reasons this day handed down the rule for child support is dismissed at movant’s costs.”

The issue to be addressed is whether the trial court abused its discretion in denying appellant’s request for child support.

In Prudhomme v. Prudhomme, 381 So.2d 906 (La.App. 3rd Cir. 1980), writ denied, 383 So.2d 782 (La.1980), we said:

“A mutual obligation of support, maintenance, and education of children is imposed by our law on both parents. The degree of support required of each is determined by the needs of the children and the circumstances of those who are obliged to pay it. LSA-C.C. Articles 227, 230 and 231; Graval v. Graval, 355 So.2d 1057 (La.App. 4th Cir. 1978); Marcus v. Burnett, 282 So.2d 122 (La.1973); Strickland v. Strickland, 377 So.2d 537 (La.App. 3rd Cir. 1979). The customary duties performed and services rendered by a mother on a daily basis contribute substantially to the mutual obligation of support. Ducote v. Ducote, 339 So.2d 835 (La.1976). In instances where one or both of the parties have remarried the earnings of their respective spouses is to be considered in making an award for child support. In essence the court must consider, in calculating the award to be made, the totality of all pertinent circumstances. Marcus v. Burnett, supra.

As stated above, the law imposes upon parents the mutual obligation of their children’s support, maintenance and education. It is well-settled that this obligation does not terminate for one parent upon an award of custody in favor of the other parent. This being so, we hold that the trial court erred in denying appellant’s request for child support. We feel that a minimal contribution by the appellee is justified in this case.

To arrive at the degree of support required in the present case, we must refer to the needs of the minor children and the circumstances of their parents.

As mentioned above, their mother testified that she was healthy and capable of working and had in fact been employed in the past. She indicated she was waiting for work to start at her former place of employment. It seems reasonable that she should obtain either part-time or full-time employment in order to discharge her obligation of assisting in the support, maintenance and education of her children.

In addition, although the record does not include the judgment fixing visitation rights, we assume appellee was granted reasonable visitation privileges. The burden of providing at least some minimal support is slight considering the benefits and privileges gained from exercise of these visitation rights. Appellee’s desire to exercise her visitation rights with her children should also indicate her desire to contribute toward their welfare for their benefit. We will give her the opportunity to do so by fixing a child support award for her two children in the amount of $100 per month.

Accordingly, the trial court judgment denying appellant’s request for child support is reversed and it is now ordered that appel-lee, Mary Grace Peters Warner, pay child support for her two children in the amount of $100 per month. Appellee is taxed with costs of this appeal.

REVERSED AND RENDERED.


author: DOMENGEAUX, Judge.

text:
    HUVAL TRACTOR, INC., Plaintiff-Appellant, v. Gilbert JOURNET, Defendant-Appellee.
    No. 8801.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1982.
    Rehearing Denied June 1, 1982.

      J. B. Willis, St. Martinville, for plaintiff-appellant.
    Gauthier & Cedars, Ltd., Stanford B. Gauthier, II, Breaux Bridge, for defendant-appellee.
    Before DOMENGEAUX, FORET and LABORDE, JJ.
   DOMENGEAUX, Judge.

This action was instituted by plaintiff-appellant, Huval Tractor, Inc. (Huval), against defendant-appellee, Gilbert Journet (Jour-net), for the balance due on two promissory notes. Defendant reconvened for expenses he incurred in order to dissolve plaintiff’s writ of sequestration, which defendant claimed was wrongfully issued. The trial judge found in favor of defendant dismissing plaintiff’s action and further granted defendant judgment for his reconventional demand. We affirm, but will amend the judgment in order to award attorney fees for services on appeal and to correct a clerical error.

This suit arose out of a series of three transactions which took place between Hu-val and Journet. The first was on March 23, 1978, when Huval sold an Allis Chalmer tractor to Journet for $8,067.12, represented by chattel mortgage note payable in three successive annual installments commencing December 1, 1978. The second was on May 18, 1978, when Huval sold a set of Burch Row Planters with other equipment to Journet for $2,192.12. This latter sale was represented by a chattel mortgage note payable in two successive annual installments also commencing December 1, 1978.

The third transaction took place on November 25, 1978, when Journet purchased from Huval one (1) Case tractor. To secure payment for this tractor Journet executed a promissory note made payable to Huval secured by a chattel mortgage on said tractor. The sale and the chattel mortgage representing this last transaction shows that no cash downpayment was made, however, Journet traded in the Allis Chalmer tractor on the Case tractor. The unpaid balance of the purchase price was $26,637.00, which, according to the chattel mortgage, was to be financed at an annual percentage rate of 16.5%.

Huval commenced suit against Journet on June 12, 1979, on the note in the principal amount of $8,067.12, dated March 23, 1978 (first of the transactions), and also on the note in the principal amount of $2,192.12, dated May 18,1978 (second transaction). Huval also requested that a writ of sequestration issue. The writ was issued without bond on June 12, 1979, ordering the Sheriff to seize the Allis Chalmer tractor (of the third transaction) and Burch Row Planters. The writ was issued; however, the items were not actually seized as Huval had actual possession of the Allis Chalmer tractor and the Sheriff was unable to locate the Burch Row Planters.

Journet filed an answer and reconven-tional demand on July 25, 1979. In answer, Journet alleged that the first note was extinguished by the trade-in of the Allis Chal-mer tractor and further, that Huval was the owner of the Allis Chalmer tractor. Journet also requested damages from Hu-val alleging that as the writ of sequestration was issued without bond, Journet was entitled to have the writ dissolved and awarded damages for its wrongful issuance.

Prior to trial, the note dated May 18,1978 (second transaction), was paid in full by Journet, and therefore, this issue was not litigated.

Trial on the merits was held on May 18, 1981, at which time the trial court granted Journet’s motion for a directed verdict on the note dated March 23, 1978 (first transaction), in the principal amount of $8,067.12. Thereafter, the trial court received testimony regarding the reconventional demand of Journet, and awarded Journet damages in the amount of $500.00 for wrongful issuance of the writ of sequestration. This appeal followed.

Huval appeals contending that the trial judge erred in (1) finding that the promissory note dated March 23, 1978 was extinguished by novation; and (2) awarding Journet $500.00 for attorney fees to dissolve the writ. Journet answered the appeal asking that a clerical error in the original judgment be corrected, and that the amount of damages be increased to reflect the additional attorney fees incurred on appeal.

EXTINGUISHMENT OF THE NOTE

The trial judge in reasons orally assigned dismissed plaintiff’s principal demand on the March 23, 1978 note holding that the debt had been extinguished by novation. We agree.

The following Articles of the Louisiana Civil Code are applicable:

“Art. 2185. Novation is a contract, consisting of two stipulations; one to extinguish an existing obligation, the other to substitute a new one in its place.
Art. 2190. Novation can be made only by persons capable of contracting; it is not presumed; the intention to make it must clearly result from the terms of the agreement, or by a full discharge of the original debt.”

Huval’s principal argument, based on the cited Articles of the Civil Code, is that the terms of the Sale and Chattel Mortgage Agreement do not make it clear that the parties intended to extinguish the obligation underlined in the March 23, 1978 note and substitute the November 25, 1978 note in its place; that novation cannot be presumed; and that the evidence thus fails to support a holding that the November 25, 1978 note effected a novation of the previously existing debt.

Although the Code Articles state that novation is not presumed to occur and that a creditor must expressly declare his intent to discharge his debtor, our Courts have held that a debtor may be discharged where the intent of the creditor to novate is clearly indicated. Isaacs v. Van Hoose, 171 La. 676, 131 So. 845 (1930); Strunk Chain Saws, Inc. v. C. W. Williams, 111 So.2d 195 (La.App. 2nd Cir. 1959). Novation may also occur when the intent of the parties, the character of the transaction, the facts and circumstances surrounding the transaction, and the terms of the agreement itself reveal a desire to effect a novation. Placid Oil Company v. Taylor, 325 So.2d 313 (La. App. 3rd Cir. 1975), writ denied 329 So.2d 455 (La.1976); Smith, Howard and McCoy, Inc. v. Acme General Contractors, Inc., 152 So.2d 596 (La.App. 2nd Cir. 1963), writ refused 244 La. 663, 153 So.2d 881 (1963); Harepour v. A. C. Collins Ford of New Orleans, Inc., 363 So.2d 1261 (La.App. 4th Cir. 1978).

Upon review of the record, we agree with the district judge who found that the November 25, 1978 Sale and Chattel Mortgage Agreement representing the sale of the Case tractor, along with the nature of the transaction and the surrounding circumstances, clearly indicates Huval’s intention to discharge the debt on the Allis Chalmers tractor. The sale and the chattel mortgage states the value of the Allis Chalmers tractor to be $7,200.00, and the balance owing to be $7,008.00, giving a positive trade-in allowance of $192.00. Additionally, this document specifically recites that Journet “bargains, sells, conveys unto Seller” the trade-in equipment. Upon the face of this document alone it is apparent that Huval intended to extinguish the debt on the Allis Chalmer tractor in exchange for Journet’s purchase of the Case tractor. Consequently, we affirm the judgment of the trial judge dismissing Huval’s suit on the March 23, 1978 note.

THE WRIT

Huval contends that the trial judge erred in awarding damages for the wrongful issuance of the writ of sequestration on Journet’s equipment, when the law does not require that security be furnished in order to obtain a writ of sequestration. We disagree.

Huval obtained a writ of sequestration in the instant proceedings without furnishing security as required by La.C.C.P. Article 3501 and La.C.C.P. Article 3574. Huval in brief states that there is no need to post security, however, it fails to cite any authority to support its position.

Journet answered the original petition and alleged that the writ was wrongfully issued. Thereupon, Huval was burdened with the obligation to establish the facts constituting the issuance of the writ. La.C.C.P. Article 3506; Yorkwood Savings and Loan Association v. Thomas, 379 So.2d 798 (La.App. 4th Cir. 1980). As Huval must show the grounds upon which the writ was issued, it must first establish that the writ was issued with security. As the record indicates, Huval failed to prove this. However, assuming for the purposes of argument that the writ was properly issued without bond, Huval must then prove the allegations of its petition claiming its right to a writ of sequestration. This, it did not do. Therefore, for this reason as well as those previously mentioned, the writ was wrongfully issued, and Huval is liable for damages resulting from its issuance.

La.C.C.P. Article 3506 provides that the court may award damages, including attorney’s fees for the dissolution of the writ which was wrongfully issued. The trial court properly concluded the writ was wrongfully issued, dissolved same and thereafter, awarded damages to Journet in the amount of $500.00, which were entirely composed of attorney’s fees. In answering this appeal Journet requests additional attorney’s fees of $2,000.00 as compensation for the efforts required in prosecuting this appeal. This court has consistently recognized the fact in these type cases that litigants successful at the trial level, must incur additional expenses to protect their rights upon appeal. Accordingly, we have granted additional attorney’s fees in the amount of $500.00 in similar cases. See Horn v. Vancouver Plywood Company, 322 So.2d 816 (La.App. 3rd Cir. 1975) and the cases cited therein. As Journet has been forced to again defend himself on this sus-pensive appeal, we increase his award of attorney’s fees from $500.00 to $1,000.00 to cover the cost of this appeal.

CORRECTION OF THE TRIAL COURT’S JUDGMENT

The trial court in its oral reasons for judgment rendered judgment in favor of Journet on his recon ventional demand. However, in preparation of the formal written judgment, a clerical error was committed and it stated that there would be judgment in favor of plaintiff in reconvention, Huval Tractor, Inc., in the amount of $500.00. The record is clear that the $500.00 judgment was rendered in favor of plaintiff in reconvention, Gilbert Journet, not Huval Tractor, Inc., and as such the judgment will be amended to reflect the same.

DECREE

For the above and foregoing reasons the judgment of the trial court is amended to increase the amount of attorney’s fees therein from $500.00 to $1,000.00. The trial court’s judgment is also amended to reflect that Gilbert Journet and not Huval Tractor, Inc. is the plaintiff in reconvention, and therefore is entitled to the attorney’s fees as herein provided. In all other respects the judgment of the trial court is affirmed with costs at trial and on appeal being assessed against appellant, Huval Tractor, Inc.

AMENDED AND AFFIRMED.

      . Since none of the equipment was actually seized by the Sheriff the only damages incurred by Journet was attorney fees for dissolution of the writ.

      . “C.C.P. Art. 3501. Petition; affidavit; security
      A writ of attachment or of sequestration shall issue only when the nature of the claim and the amount thereof, if any, and the grounds relied upon for the issuance of the writ clearly appear from specific facts shown by the petition verified by, or by the separate affidavit of, the petitioner, his counsel or agent.
      The applicant shall furnish security as required by law for the payment of the damages the defendant may sustain when the writ is obtained wrongfully.”

      .“C.C.P. Art. 3574. Plaintiff’s security
      An applicant for a writ of sequestration shall furnish security for an amount determined by the court to be sufficient to protect the defendant against any damage resulting from a wrongful issuance, unless security is dispensed with by law.”