text:
    Ernest CHAPMAN, Plaintiff-Appellant, v. Kenneth C. LEGER, et al., Defendants, State Farm Mutual Automobile Insurance Company, Appellee.
    No. 8371.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 7, 1981.

      Migues & Leckband, James Miguez, Lake Charles, for plaintiff-appellant.
    Stockwell and Associates, Robert S. Dampf, Lake Charles, for defendant-appel-lee.
    Before CULPEPPER, DOMENGEAUX, and DOUCET, JJ.
   DOMENGEAUX, Judge.

Plaintiff, Ernest Chapman, sued Kenneth C. Leger and the latter’s alleged liability insurer, State Farm Mutual Automobile Insurance Company (State Farm) for personal injury and property damages resulting from an accident on June 23, 1979, between the Chapman and Leger vehicles.

Defendant State Farm filed a motion for summary judgment contending that it did not cover the defendant Leger’s vehicle inasmuch as a liability policy issued by it to Leger, and covering his vehicle, had been cancelled on June 7,1979, some sixteen days prior to the accident date.

The district court granted the summary judgment rejecting plaintiff’s demands against State Farm.

Plaintiff has appealed.

The issue on appeal is whether the notice of cancellation was statutorily and jurispru-dentially sufficient to avoid coverage for the accident of June 23, 1979.

A review of the affidavits and the cancellation notice filed with State Farm’s motion for summary judgment confirms the correctness of the trial court decision.

At the outset, it should be noted that there is no dispute between the parties as to the pertinent facts needed for a determination of the issue before us. The issue here is one of law, and can be resolved by means of summary judgment.

The applicable statutory laws on cancellation of automobile liability insurance policies insofar as this case is concerned are La.R.S. 22:636.1B., which reads:

“A notice of cancellation of a policy shall be effective only if it is based on one or more of the following reasons:

(1) Nonpayment of premium; ... ”, and the pertinent part of Section D. of that statute which states:

“D. No notice of cancellation of a policy to which Subsections B or C applies shall be effective unless mailed or delivered by the insurer to the named insured at least twenty days prior to the effective date of cancellation; provided, however, that where cancellation is for nonpayment of premium at least ten days notice of cancellation accompanied by the reason therefor shall be given . . . . ”

An automobile liability insurer has the burden of proving that the policy had been cancelled prior to the date of the accident giving rise to a claim under the policy. Leger v. Lisonbee, 207 So.2d 563 (La.App. 3rd Cir. 1968); such an insurer must show facts which constitute positive and unambiguous proof of understanding of the cancellation of the policy. I. C. Realty, Inc. v. Clifton Conduit Company, etc., 291 So.2d 422 (La.App. 4th Cir. 1974).

The cancellation notice sent to Leger on May 25, 1979, contained in the top left hand corner thereof very clear and conspicuously positioned language in white letters on a black background stating the following:

CANCELLATION NOTICE

Nonpayment of Premium

It further contained the policy identification and date the notice was sent. It also stated:

“We have not received the full amount required to keep this policy in force so in accordance with its cancellation provisions your policy identified in this notice is hereby cancelled effective 12:01 A. M. standard time JUNE-07-79 due to nonpayment of the premium. No further notice will be sent to you.”

The notice also contained, in the lower right hand comer thereof a small rectangular frame reproduced as follows:

It is the above reproduced frame and its contents which appellant suggests results in ambiguity, and therefore the whole notice was as susceptible of interpretation as a demand for payment of the balance due as it was of a notice of cancellation.

We disagree and quote approvingly from the district judge’s reasons for judgment, as follows:

“. . . Both counsel agree that if effective cancellation was made by the mover, then mover would be successful in its motion. The only question is whether the insurer complied with the requirements of the appropriate statute by the sending of the cancellation notice, which is one of the exhibits. It’s a very close question of law. The Court has reviewed some four or five cases, all wrestling with this particular problem. The burden of proof to show cancellation is upon the insurer, and to satisfy the cancellation requirement the notice must be an unequivocal cancellation. This brings us to an analysis of the notice in question. I think that counsel would agree that were it not for the box in the lower right hand corner of the cancellation notice giving a figure designated as ‘amount due’ that the notice would be satisfactory. Nowhere in the notice does it request payment or demand payment or make cancellation dependent upon future nonpayment. If there is any construction that this is a demand for payment it must arise from the little box which I described earlier. I have reviewed the requirements for cancellation, and it was encumbent upon the insurance company in this ease to designate the reason for cancellation. Of course, nonpayment is mentioned three times, so they have satisfied that requirement. It also states in there that it was nonpayment of the full amount. Although the Court doesn’t have before it the evidence to support this, I assume that this must be a policy where installment payments are made and not a single payment type of policy. The term ‘full amount’ would indicate this to the Court. I think, in keeping with the requirements of law, the insurance company should communicate to the insured the amount which was not paid. An effective way to do it is to put that figure on the cancellation notice. Nowhere on the cancellation notice does it suggest that the payment of what was not paid will reinstate the policy. I think that in putting the figure with the designation ‘amount due’ the insurance company was satisfying a statutory requirement. This does not change the unequivocal nature of the cancellation notice. Having found that the cancellation notice is unequivocal, I find that it satisfies the statutory requirements and that on the day of the accident, as alleged in the petition, there was no insurance coverage for State Farm Mutual Automobile Insurance Company covering Kenneth Leger, and the motion for summary judgment is sustained.”

Appellant suggests that the cases of Ellzey v. Hardware Mutual Ins. Co. of Minnesota, 40 So.2d 24 (La.App. 1st Cir. 1949), and Alexander v. State Farm Mutual Automobile Insurance Company, 148 So.2d 898 (La.App. 1st Cir. 1962) support his position in this appeal. These cases are clearly distinguishable and therefore inapplicable.

It is axiomatic that a determination of whether or not a cancellation notice is sufficient depends upon the language of that particular cancellation notice. The cancellation notices involved in Ellzey and Alexander are significantly different from the one involved in our present case. Those cases involved cancellation notices which indicated that the insured might avoid cancellation by responding to the invitation to remit the premium payment. An examination of the cancellation notice in our case does not contain ambiguities nor suggestions that the insured might avoid cancellation by remitting the premium payment.

For the above and foregoing reasons the judgment of the district court is affirmed at appellant’s costs.

AFFIRMED.


source: Caselaw Access Project

author: DOUCET, Judge.

license: Public Domain

text:
    Linda GUILLORY & Shannon Michael Fontenot, Plaintiffs-Appellees, v. TEXAS PETRO GAS COMPANY, Defendant-Appellant.
    No. 8372.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 7, 1981.

      Drury & Lozes, Felieien P. Lozes, New Orleans, for defendant-appellant.
    J. Harold Fontenot, Opelousas, for plaintiff-appellee.
    Before CULPEPPER, DOMENGEAUX, and DOUCET, JJ.
   DOUCET, Judge.

The plaintiff, a guest passenger in an automobile being driven by Karl Fontenot, was involved in an accident with a Texas Petro Gas tanker truck on October 18, 1979, in the City of Lafayette, and filed suit on her behalf and on behalf of her minor son. After trial on the merits, the trial judge rendered judgment in favor of plaintiff in the sum of $42,702.80 and against defendant, Texas Petro Gas Company from which judgment defendant has perfected this sus-pensive and devolutive appeal.

In his appeal defendant alleges that: 1) His employee’s actions were executed with the utmost safety and did not breach either a statutory or civil duty owed plaintiff; 2) The accident was caused by the intoxication of Mr. Fontenot, driver of the other vehicle, which intoxication was known by the plaintiff who nevertheless voluntarily rode with him and therefore cannot recover for injuries received in said accident; and 3) The trial judge clearly abused his discretion for pain and suffering and lost wages for psychiatric problems not caused by the accident in question. The plaintiff answered the appeal seeking an increase in damages.

The collision occurred when a Texas Pe-tro Gas tanker truck, being driven by Ronald G. Olivier while in the course and scope of his employment, made a left turn on North University Avenue in the City of Lafayette, and entered the driveway of a customer’s premises to which he was attempting to make a delivery. A gate on the customer’s premises prevented the truck from completely clearing the avenue, and the driver alleges that he began alighting from the truck in order to open the gate when a northbound vehicle, driven by Karl Fontenot in which the plaintiff, Linda Guil-lory, and her minor son Shannon Michael Guillory, were passengers, collided with the right rear end of the truck which was protruding approximately four feet into the four lane avenue. Linda Guillory was knocked unconscious and taken to the emergency room at a local hospital. Her son was also taken to the hospital. The police were summoned to the scene of the accident, and the investigating officers observed that the driver of the automobile, Mr. Fontenot, appeared intoxicated and ultimately tests were given to him, both from a standpoint of observation of coordination and chemical, which resulted in a positive finding of intoxication on his part. The driver of the truck, Ronald Olivier, was issued a traffic citation for failure to yield the right of way. Subsequent to the accident, the plaintiff appeared at various doctors for treatment of personal injuries and psychiatric problems. Suit was filed, wherein the primary issue was whether the accident was caused by the defendant’s failure to yield prior to executing a left turn, or whether the driver of the other auto failed to avoid the accident due to his intoxication.

The trial court found that the defendant was negligent in parking his truck so as to obstruct the right of way, and that the plaintiff was unaware of Fontenot’s intoxication, therefore, she could not be said to have assumed the risk of riding with him. We affirm.

Both parties call attention to the applicability, or lack thereof, of Louisiana Revised Statute 32:141(A) which provides:

“Upon any highway outside of a business or residence district, no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main traveled part of the highway when it is practicable to stop, park or so leave such vehicle off such part of said highway, but in every event an unobstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicles shall be available from a distance of two hundred feet in each direction upon such highway.”

The violation of such a traffic ordinance is negligence per se if the accident was one which statute was enacted to prevent and the violation thereof caused the accident. Dixie Drive It Yourself System v. American Beverage Company, 242 La. 471, 137 So.2d 298 (1962). However, as appellant points out, the above cited statute is not applicable where alleged violations occurred within a business or residential district. Reed v. City of Alexandria, 212 So.2d 286 (La.App. 3rd Cir. 1968); Steagall v. Houston Fire & Casualty Insurance, 138 So.2d 433 (La.App. 3rd Cir. 1960); Chatagnier v. Allstate Insurance Co., 248 So.2d 590 (La.App. 3rd Cir. 1971). Nonetheless, the defendant may be found negligent although not negligent per se. Leaving a vehicle partly blocking a highway may constitute actionable civil negligence even though such conduct does not constitute an express statutory violation. Levron v. Dupre, et al., 307 So.2d 107 (La.App. 1st Cir. 1974). There was a sufficient factual basis from which the trial judge could conclude that such was the case here. Mr. Fontenot reported to investigating officers that the truck was so close as to constitute an immediate hazard, and that he was unable to pass due to the presence of another vehicle. Ms. Guillory, who was knocked unconscious, testified that the trailer pulled in front of them and there was a crash and that’s all she remembered. The standard of review in a factual dispute such as the one before us is explained in Canter v. Koehring, 383 So.2d 716 (La.1973):

“When there is evidence before the trier of facts which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.”

Accord: Boustany v. Fluid Dynamics, Inc., 392 So.2d 750 (La.App. 3rd Cir. 1980); Johnson v. Coca Cola Bottling Co., Inc., 286 So.2d 993 (La.App. 3rd Cir. 1980). We find no manifest error.

For the same reason the trial court’s finding that plaintiff was unaware of Fon-tenot’s intoxication must also remain undisturbed. Ms. Guillory had just left her place of employment and had been in the vehicle for approximately ten minutes before the accident, during which time she observed no indication of drinking. Additionally, there was sufficient evidence from which the trial court could conclude that Fontenot lacked a sufficient quantity of intoxicants to make him lose normal control of his mental and physical faculties to the extent that same was materially impaired. Cf.: Johnson v. Allstate Insurance Co., 254 So.2d 91 (La.App. 3rd Cir. 1971).

The appellant’s third assignment of error is that the trial judge abused his discretion in awarding damages for pain and suffering and lost wages for psychiatric problems not caused by the accident in question. Appellant attacks the validity of plaintiff’s treatment by a social worker at the Acadiana Mental Health Center, however, this is the accepted way of handling patients at the Center and it would be an injustice to penalize her due to her inability to afford private treatment. Additionally, Drs. Goldware, Fontenot, Pruss, and Landry testified by deposition or appearance, and their testimony provided sufficient evidence for the trial court’s award of damages. Dr. Landry testified that the accident was the primary contributing factor to the physical and neurotic conditions plaintiff complained of. Appellant further complains that the plaintiff had a history of personal problems and that plaintiff’s present complaints were unrelated to the accident. However, defendant did not produce any expert testimony to rebut plaintiff’s testimony and it is elementary that a tortfeasor takes his victim as he finds him. We will not disturb reasonable evaluations of credibility and inferences of fact simply because another result might be just as reasonable. Aleman v. Lionel F. Favret Co., Inc., 349 So.2d 262 (La.1977); Canter v. Koehring, 283 So.2d 716 (La.1973); Boustany v. Fluid Dynamics, Inc., supra; Johnson v. Coca Cola Bottling Co., Inc., supra. Before this court will disturb an award by the trial court, the record must clearly reveal that the trier of fact abused its much discretion in making the award. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977); Reck v. Stevens, 373 So.2d 498 (La.1979); Mid State Homes Inc. v. Lartigue, 383 So.2d 99 (La.App. 3rd Cir. 1980). As we find no abuse of discretion the appeals of both plaintiff, who sought an increase of damages for herself and an award for her minor son, and defendant in this regard, must fail.

For the above and foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are taxed to the defendant.

AFFIRMED.


text:
    Marvin CORMIER, et al., Plaintiffs-Appellees, v. FOREMOST INSURANCE COMPANY, Defendant-Appellant.
    No. 8374.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 7, 1981.

      Franklin, Moore & Walsh by Albert Dale Clary, Terrence C. McRea and Richard T. Reed, Baton Rouge, for plaintiffs-appellees.
    Mouton, Roy, Carmouch, Bivens & Kraft, Ralph E. Kraft, Lafayette, for defendant-appellant.
    Before CULPEPPER, DOMENGEAUX and DOUCET, JJ.
   DOUCET, Judge.

This suit was originally filed by Marvin Cormier and Louisiana National Bank against Foremost Insurance Company to recover damages sustained as a result of a fire in a motor home owned by Cormier. Foremost, as insurer of the motor home, brought a third party action against Midas International, seeking indemnification on the basis that the fire resulted from a defect in the motor home which was manufactured by Midas. Settlement was reached on the primary demand and Foremost maintained its suit to recover the amount paid its insured from Midas. The trial court held that Foremost failed to establish, by a preponderance of evidence, the origin of fire was attributable to Midas. From that adverse ruling Foremost appeals.

There are two issues before this court: 1) whether the trial court applied the proper burden of proof, and 2) whether Foremost proved its case by a preponderance of evidence.

The evidence shows the fire occurred in December of 1977 when Mr. and Mrs. Cor-mier were traveling in the recreational vehicle on the highway. The interior of the motor home was dark and it was not until Mrs. Cormier smelled smoke that they were alerted as to the existence of the fire. The vehicle was immediately stopped, nonetheless extensive damage occurred before the conflagration could be extinguished. The evidence indicates that the fire originated in a cabinet near the gas filler cap and the only item stored therein were some Christmas lights. The Cormiers did not smoke and no flammable materials were kept within the recreational vehicle.

Extensive testimony was heard by the trial court concerning the cause of the fire, much of which testimony was conflicting. Mr. Harold Myers was tendered by Foremost as a fire reconstruction expert, and so accepted by the court. He had personally investigated the motor home to determine the cause of the fire, and had taken several photographs, which were introduced into evidence. He determined from the burn pattern that it was apparent the fire began in the cabinet where the gas filler tube came into the motor home and then passed through the floor, and from there it had spread to the rear of the motor home, fanned by the general movement of the vehicle. Mr. Myers discussed several potential causes of the fire which he investigated, however he admitted on cross-examination that he could not pinpoint what caused the fire, and accordingly could not state in terms of probability the cause of the said fire.

Mr. George Pappas testified on behalf of Midas concerning the cause of the fire, and his opinion differed greatly from that of Mr. Myers’. They both agreed the location of the fire was the same, but Mr. Pappas felt that because there was no explosion, this would have negated the prospect of the fire being caused by gasoline, as contended by Mr. Myers. Testimony was also heard by Mr. Jim Jamison, also on behalf of Midas, that the closest electrical switch to where Mr. Myers estimated was the origin of the fire, and presumably the location of the alleged gasoline fumes, was the switch totally isolated and removed from that area by at least one internal cabinet wall and one external wall and two sets of isolated shelving.

The standard of care for a defendant who allegedly provides a defectively designed product approaches the negligence standard. State Farm Fire and Casualty Co. v. Gibson Products of Sulpher, 346 So.2d 1287 (La.App. 3rd Cir. 1977). The burden imposed upon the plaintiff in such a case was summarized in Townsend v. State Department of Highways, 322 So.2d 139 (La.1975) as follows:

“.. . The plaintiff has the burden of proving causation by a preponderance of evidence. It is only necessary that evidence show that it is more probable than not that the harm caused by the tortious conduct of the defendant. Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971); Perkins v. Texas & New Orleans Railroad Company, 243 La. 829, 147 So.2d 646 (1962); This burden of proof may be satisfied by direct or circumstantial evidence. Lombard v. Sewerage & Water Board of New Orleans, 285 So.2d 905 (La.1973); Jordan v. Travelers Insurance Company, supra; Naquin v. Marquette Casualty Company, 244 La. 569, 153 So.2d 395 (1963). It suffices if the circumstantial evidence excludes other reasonable hypotheses only with a fair amount of certainty so that it is more probable than not that the harm was caused by the tortious conduct of the defendant. Boudreaux v. American Insurance Company, 262 La. 721, 264 So.2d 621 (1972), on rehearing.”

The perusal of the record reveals that the third party plaintiff has failed to sustain the burden of proving causation by a preponderance of the evidence. Where, as here, there is conflict in testimony as to the cause of the fire, reasonable evaluations of credibility and reasonable inferences of fact by the trial court will not be disturbed even though this court may feel other evaluations and inferences are as reasonable. Canter v. Koehring, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Boustany v. Fluid Dynamics, Inc., 392 So.2d 750 (La.App. 3rd Cir. 1980). There was sufficient evidence from which the trial court could conclude that the circumstantial proof presented by Midas did not exclude other reasonable hypothesis with a fair amount of certainty. Under these circumstances, it is the insurance company, whose rate structure includes such unknown factors, who must bear the burden of loss for fires of unknown origin.

As we cannot say the trial judge committed manifest error in finding that Foremost did not, by a preponderance of evidence, establish any negligence as to Midas, the judgment of the district court is affirmed. All costs of this appeal are taxed to appellant.

AFFIRMED.


text:
    Kenneth HICKMAN, Plaintiff and Appellant-Appellee, v. Prentice MILLER, et al., Defendants and Appellees-Appellants.
    No. 8382.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 7, 1981.

      Hall, Lestage & Lestage, F. Steve Lan-dreneau, DeRidder, for intervenor-appellee-appellant.
    E. M. Nichols, Lake Charles, for plaintiff and appellant-appellee.
    Brame, Bergstedt & Brame, Joe A. Brame, Lake Charles, for defendants and appellees-appellants.
    Plauche, Smith, Hebert & Nieset, James R. Nieset, Lake Charles, Ronald Thibo-deaux, DeRidder, Ellis R. Keene, Pollock, for defendants-appellees.
    Before CULPEPPER, DOMENGEAUX and DOUCET, JJ.
   DOUCET, Judge.

This action arises out of a chain collision accident involving five vehicles which occurred on August 8, 1978 on Highway 171 in DeRidder, Beauregard Parish, Louisiana. After trial by jury, judgment was entered for plaintiff in the sum of $15,000 as against defendants Prentice Miller and Commercial Union, owner and insurer respectively of the last vehicle in the chain. Plaintiff’s claim against the owner and insurer of the second to last vehicle, driven by Ronald Thibodeaux, was dismissed. Plaintiff assigns as error that: 1) the jury was clearly wrong in finding that Ronald Thibo-deaux was not negligent, and 2) the jury’s award of damages was an abuse of its discretion. We affirm.

Involved in the accident were two pickup trucks followed by three 18-wheeler tractors and trailers loaded with wood chips. First in the sequence of westbound vehicles was a pickup truck owned and driven by Wilmer Johnson (hereinafter referred to as the “Johnson pickup”), followed by a pickup truck owned by Boyd Hightower and being driven by Wytonia E. Valorie (hereinafter referred to as the “Valorie pickup”). Immediately behind the aforesaid pickups was a tractor-trailer driven by plaintiff, Kenneth Hickman (hereinafter referred to as “Hickman truck”), which was owned by his employer L. A. Rathel. Next in line was a tractor-trailer driven by Ronald Thibodeaux (hereinafter referred to as the “Thibodeaux truck”), owned by his employer, Blackman Trucking Company, and insured by Gulf Insurance Company. The last vehicle involved was a tractor-trailer being driven by Ellis R. Keene (hereinafter referred to as the “Keene truck”), owned by Keene’s employer, Prentice Miller, and insured by Commercial Union Insurance Company.

Just prior to the accident, the Johnson pickup had stopped to make a left turn, and the Valorie pickup and Hickman truck respectively came to a stop while awaiting Johnson’s execution of the turn. The next occurrence is disputed. Although there is no question but that the Keene truck did run into the rear of the Thibodeaux truck, there is controversy as to whether the Thi-bodeaux truck hit the Hickman truck before it was in turn struck by the Keene truck.

Plaintiff instituted suit against the drivers, owners, and insurers of both the Thibo-deaux and Keene trucks, and was granted a jury trial. After trial by jury, the following verdict was returned:

“SPECIAL VERDICT OF JURY
1. Was Ronald Thibodeaux negligent, and if so, was his negligence a proximate cause of the accident and injuries?
Answer No
2. Was Ellis R. Keene negligent and, if so, was his negligence a proximate cause of the accident and injuries?
Answer Yes
3. Was there a brake failure on the vehicle driven by Ellis R. Keene and, if so, was such failure a proximate cause of the accident and injuries?
Answer Yes
If any of the above questions have been answered “Yes”, then you must answer the following question.
4.What was the amount of damages sustained by Kenneth Hickman?
Answer $15.000.00
S/ C. R. Banks, Foreman”

Thereafter, appeals were taken devolu-tively by Kenneth Hickman, plaintiff, and Georgia Casualty, intervenor, and suspen-sively by defendants Prentice Miller and Commercial Union.

The record reveals ample evidence from which the jury could conclude that Keene alone proximately caused the plaintiff’s injuries. Although Hickman, Valorie, and both of their guest passengers testified there were two impacts, the jury may have chosen to accept the investigating officer’s explanation as to how there could be two impacts without Thibodeaux striking Hickman before being struck himself. Assuming all of the drivers’ attentions were focused forward, the last two drivers would be in a superior position to observe whether Thibodeaux struck Hickman before himself being struck, and both Thibodeaux and Keene testified to the effect that Thibo-deaux had come to a stop before the Keene impact. Furthermore, there were sixteen feet of skid marks attributable to the Keene truck — -a fact substantiated by Mrs. Valorie’s testimony that she heard tires squealing prior to any impact.

Alternatively, the jury may have concluded that if Thibodeaux indeed had struck Hickman before the Keene impact, that such was not the proximate cause of Hickman’s injuries. The record reveals that the damage to the Thibodeaux truck was minor and the plaintiff himself testified that the second impact was the one that hurt him.

Both defense theories available to the jury to exonerate Thibodeaux from liability are supported by a reasonable factual basis, and as such, will not be disturbed by this court in review. We will not disturb reasonable evaluations of credibility and inferences of fact simply because another re-suit might be just as reasonable. Aleman v. Lionel F. Favret Co., Inc., 349 So.2d 262 (La.1977); Gradney v. Vancouver Plywood Co., Inc., 299 So.2d 347 (La.1974); Canter v. Koehring, 283 So.2d 716 (La.1973); Boustany v. Fluid Dynamics, Inc., 392 So.2d 750 (La.App.3rd Cir. 1980); Johnson v. Coca Cola Bottling Co., Inc., 386 So.2d 993 (La.App.3rd Cir. 1980).

On the issue of quantum, the plaintiff’s contention that the jury abused its discretion in awarding only $15,000 is also without merit. We observe that Civil Code Art. 1934 provides, in the assessment of damages, “. . . much discretion must be left to the judge or jury...” The record must clearly reveal that the trier of fact abused its discretion in making its award before this court will disturb that finding. Coco v. Winston, Inc., 341 So.2d 332 (La.1977); Reck v. Stevens, 373 So.2d 498 (La.1979); Boustany v. Fluid Dynamics, supra; Commercial Credit Corp. v. Nolan, 385 So.2d 1246 (La.App.3rd Cir. 1980); Mid-State Homes, Inc. v. Lartigue, 383 So.2d 99 (La.App.3rd Cir. 1980). Although the award may appear low, the jury was entitled to accept the testimony of those physicians who felt the plaintiff’s complaints were not justified for the duration alleged by the plaintiff. Furthermore, plaintiff received more income in workmen’s compensation benefits than he had in years prior, according to his tax returns. The record indicates that in 1976 and 1977 plaintiff did not earn enough to file tax returns, and in 1975 he earned only $1,011.90.

For the above and foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are taxed to the plaintiff.

AFFIRMED.

      . Originally included in plaintiff’s specification of errors was that the trial court erred in failing to grant plaintiffs attorney a first lien and privilege on the judgment obtained for his attorney’s fees in preference to the intervention claimant. At the trial level, Georgia Casualty & Surety Company filed an intervention alleging it was the workmen’s compensation insurance carrier of plaintiff’s employer, and it was stipulated that benefits had been paid in the sum of $16,009.27. After overruling a motion by counsel for plaintiff to tax his attorney’s fees in preference to the stipulated intervention, the trial judge apportioned the judgment of $15,000 so as to reimburse Georgia Casualty. Subsequent to the filing of appeals, a settlement was reached between plaintiff and inter-venor rendering the third assignment of error moot, and thus it will not be considered herein.

      . The appeal of Georgia Casualty was dismissed at its cost after the settlement in footnote one (1) was reached.


author: CULPEPPER, Judge.

text:
    Patricia LEVICKEY, Plaintiff and Appellant, v. CARGILL, INC., Defendant and Appellee.
    No. 8384.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 7, 1981.

      Martzell, Montero & Lamothe, Charles F. Gay, Jr., New Orleans, for plaintiff and appellant.
    John K. Hill, Jr., Lafayette, for defendant and appellee.
    Before CULPEPPER, DOMENGEAUX and DOUCET, JJ.
   CULPEPPER, Judge.

This appeal was taken by claimant-appellant from a judgment terminating workmen’s compensation benefits in a proceeding for modification of a previous decree, instituted by the employer pursuant to La. R.S. 23:1331. The appellant raises two issues: (1) Was termination of benefits justified in light of the evidence adduced? (2) Did the trial judge err in holding the employer was not liable for certain medical expense he found to be unnecessary and unreasonable?

FACTS

Ms. Patricia Ann Levickey sustained a back injury on August 18, 1978 while working as a barge loader for Cargill, Inc. The employer paid workmen’s compensation until November of 1978 when evaluations by two orthopedic surgeons revealed no disability. Ms. Levickey filed suit for compensation benefits, and a trial on the merits was held January 10, 1980. Judgment was rendered February 26, 1980 decreeing that Ms. Levickey was entitled to compensation benefits. The issue of employer’s liability for medical expenses was pretermitted at that time, reserving the right of either party to reopen the proceedings for consideration thereof. A hearing on medical expenses was held June 6, 1980, at which time the trial court held that Cargill was liable for part, but not all of claimant’s medical expenses incurred in connection with hospitalization in the fall of 1979. Another rule on medical expenses subsequently incurred for hospitalization was heard September 12, 1980. The trial court again held that Car-gill was not liable for all of claimant’s medical expenses but reserved the employee’s right to reopen that issue for further development of the evidence at the six months’ review hearing. Trial was held December 23, 1980 on the employer’s application for modification of the previous judgment, resulting in the decree that claimant is no longer entitled to compensation benefits.

TERMINATION OF BENEFITS

It is well settled that in proceedings for modification of decrees awarding workmen’s compensation benefits to an employee, the employer bears the burden of proving, by a preponderance of the evidence, that the condition of the injured employee is favorably altered from what it was at the time of the original adjudication. Belsome v. Southern Stevedoring, Inc., 239 La. 413, 118 So.2d 458 (La.1960); Cloud v. National Surety Corp., 166 So.2d 31 (La.App. 3rd Cir. 1964); Duncan v. Carlo Ditta, Inc., 206 So.2d 140 (La.App. 4th Cir. 1968). The trial judge held that Cargill met this burden of proof, based on evidence obtained after the first trial. After the first trial, Ms. Levick-ey was hospitalized for the second time and a battery of tests very similar to those run while hospitalized before the first trial were repeated. The results were all negative. Also after the first trial, Ms. Levickey was discharged by Dr. Brown, the only one of the four qualified physicians who testified she was disabled at the time of the first trial. None of the medical examinations conducted subsequent to the employee’s discharge by Dr. Brown revealed any muscle spasms, which was the only objective evidence of disability Dr. Brown had been able to find.

It is the responsibility of the trial judge in such proceedings to determine if and to what extent the claimant suffers a disabling injury. To do so, he may draw on all the evidence in the record, including both lay and medical testimony. Thompson v. Natchitoches Parish Hospital Service District, 365 So.2d pg. 57 (La.App. 3rd Cir. 1978). The only evidence here that the claimant remains disabled is her own testimony. Proof of disability arising by reason of subjective pain depends to a great extent on the trial court’s evaluation of credibility of the witnesses in light of the medical testimony. Whether such pain is substantial enough to continue to be disabling is a question for the trier of fact. Johnson Guastella Construction & Realty Company, 338 So.2d 747 (La.App. 4th Cir. 1976), writ refused 341 So.2d 403. The trial judge made his own evaluation of Ms. Levickey’s testimony and decided that her condition was unchanged in light of the above-mentioned medical evidence, as well as the testimony of Dr. Ray Haddad, an orthopedic surgeon who examined her after her release by Dr. Brown.

The fact findings of the trial judge in a workmen’s compensation case, particularly those involving a determination of the credibility of witnesses, are entitled to great weight. Thompson, supra; Broussard v. Acadia Industries, Inc., 339 So.2d 48 (La.App. 3rd Cir. 1976). Such findings will not be disturbed unless found to be clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Thompson, supra; O’Donnell v. City of New Orleans, 338 So.2d 981 (La.App. 4th Cir. 1976). The trial judge was not clearly wrong in finding as a fact that plaintiff is no longer disabled.

MEDICAL EXPENSES

The claimant raises the issue of whether or not the employer should be liable for all medical expenses arising out of or directly connected with her injury, contending that the trial court erred in failing to charge the defendant-employer with the full amount of her medical expenses. The claim is made with respect to expenses incurred when Ms. Levickey was hospitalized both in October and November, 1979, and in May of 1980. The defendant argues that the present appeal arises from the judgment rendered in connection with the hearing held December 23, 1980, in which the only issue considered was termination vel non of compensation benefits pursuant to LSA-R.S. 23:1331. Cargill contends that the issue of medical expenses is not properly before this Court, because no appeal was taken from the judgments adjudicating those issues.

With respect to the expenses incurred for the hospitalizations during October and November of 1979, a hearing was held on June 6, 1980. Judgment thereon was rendered July 2, 1980 decreeing that the employer is liable for only a part of the expenses considered at the hearing. LSA-R.S. 23:1317 provides, in pertinent part, that judgments rendered in workmen’s compensation proceedings shall be appealable in the same manner as other judgments. R.S. 23:1351(A) provides:

“§ 1351. Appeal; security for suspen-sive appeal
A. Either party may appeal to the proper appellate court from any judgment rendered in accordance with the provisions of this Chapter. Except as provided in this Section, the procedure for appeal and the effect thereof shall be in accordance with the provisions of the Louisiana Code of Civil Procedure.”

The judgment of July 2, 1980 was a determination on the merits of the issue of medical expenses incurred during 1979 and therefore constitutes a final judgment as to those issues within the meaning of La.C.C.P. Art. 1841. The delays for appeal of the July 2, 1980 judgment expired long before the taking of the present appeal. Therefore, the issue of whether or not the July 2, 1980 judgment is correct cannot be considered.

However, the expenses for Ms. Levickey’s hospitalization in May of 1980 were not considered until the hearing of September 12, 1980, which was held pursuant to her rule to compel payment of medical expenses. At that time, the trial judge held that Cargill did not have to pay any more of those hospital expenses than it had already paid but reserved further judgment until the six months’ review hearing. The essence of his ruling was as follows:

“I will order that as of now you don’t have to pay for the May hospitalization, except for what you have paid. But I will allow the reopening of that when we come for six-months’ review hearing, which you’ve filed for. And I’ll reserve further judgment, and we can maybe develop that evidence some and see how it looks at that time. But for right now, you don’t have to pay it.” (Emphasis supplied)

No judgment was signed in connection with this hearing until the judgment presently under consideration, which includes the following decree:

“IT IS ORDERED, ADJUDGED AND DECREED that the obligation of Cargill, Inc. and its workers’ compensation insurers to pay unto Ms. Levickey and/or on her behalf any weekly benefits, medical expenses or other benefits of any kind under the Louisiana Workers’ Compensation Act growing out of her accident of August 28, 1978, be and the same is hereby terminated as of December 23, 1980.” (Emphasis supplied)

LSA-C.C.P. Article 1911 states:

“Art. 1911. Final judgments; signing; appeals
Except as otherwise provided by law, every final judgment shall be signed by the judge. For the purpose of an appeal as provided in Article 2083, no appeal may be taken from a final judgment until the requirement of this Article has been fulfilled.
Amended by Acts 1974, No. 87, § 1; Acts 1979, No. 618, § 1.”

The date of signing of a judgment is the date from which prescription, execution and all other rights accrue, for a judgment is inchoate until it is signed. Thus, an appeal can be taken only from a formally-signed judgment, and the delays for appealing do not commence until the judgment is signed. Malbrough v. Kiff, 312 So.2d 915 (La.App. 1st Cir. 1975); Capuder v. Misko, 174 So.2d 535 (La.App. 3rd Cir. 1965); Succession of Savoie, 195 La. 433, 196 So.2d 923 (1940); King v. King, 253 So.2d 660 (La.App. 1st Cir. 1971), writ refused 260 La. 128, 255 So.2d 353; Martin v. American Benefit Life Insurance Company, 274 So.2d 442 (La.App. 1st Cir. 1973). In the instant case, no final judgment on the merits with regard to the expenses of the May hospitalization was rendered until the signing of the judgment now before us. We conclude this issue is properly before us.

By the plain words of the statute, an employer is bound to “furnish all necessary medical, surgical and hospital services, and medicines, or any non-medical treatment recognized by the laws of this state as legal.” La.R.S. 23:1203. The claimant contends in her brief that “necessary” means any expenses flowing from or related in any way to the accident. She relies primarily on Mitchell v. K-Mart Enterprises of Louisiana, 319 So.2d 826 (La.App. 1st Cir. 1976), where the trial court’s allowance of the total medical expenses claimed was affirmed, although admittedly high. The court was careful to point out that “the award of medical expenses must be limited to those made necessary by the accident.” and simply found that the evidence was sufficient to justify the trial court’s conclusion. Plaintiff further cites Dyson v. Travelers Insurance Company, 256 So.2d 468 (La.App. 4th Cir. 1972); McKnight v. Clemons, 114 So.2d 114 (La.App. 1st Cir. 1959); and Rushing v. Employers Liability Assurance Company, 129 So.2d 576 (La.App. 2d Cir. 1961), all of which held expenses for diagnosis and medical treatment are allowable where attributable or related to the accident. In none of the above cited cases, however, was the question raised as to whether said expenses were actually necessary.

In Gourdon v. Rockwood Insurance Company, 368 So.2d 1156 (La.App. 3rd Cir. 1979), this court considered the question of whether or not medical expenses were allowable under the Workmen’s Compensation Statute when incurred in the treatment of pain, as opposed to treatment for the purpose of curing the disability. We observed that an employee is entitled under R.S. 23:1203 to both “necessary medical and non-medical treatment which will serve to cure his disability” and “all such treatment as is necessary to relieve the pain” suffered as a result of the disability. (Emphasis supplied) It was further stated that “We assume that [the trial judge] concluded on the basis of the evidence presented that the treatments received by the plaintiff were both beneficial and necessary. We discern no manifest error in this conclusion.”

The First Circuit, in Lanieux v. Iberville Services, Inc., 391 So.2d 1282 (La.App. 1st Cir. 1980), recently held that a workmen’s compensation claimant was not entitled to all medical expenses arising from the accident but only those which were necessary. Only those expenses which had been allowed by the trial judge were found to be necessary, and the trial court’s judgment was affirmed.

In the present case, the medical expense at issue on this appeal is that incurred at Touro Infirmary from May 8, 1980 to May 17,1980, during which time Dr. Brown hospitalized the claimant for additional tests. The defendant paid for a CAT scan and a bone scan, both of which were negative, but neither of which had been previously performed, but it refused to pay for the hospital costs or for other tests which had been previously performed and were negative on both occasions. The trial judge disallowed all of this May medical expense. As to the hospitalization, he accepted the testimony of Dr. Haddad that the bone scan and the CAT scan could have been performed without hospitalization and the hospitalization for the other tests which were repetitive and negative was not necessary. Under the above cited jurisprudence, this finding as to whether the unpaid May medical expense was necessary was a question of fact. The trial judge was not clearly wrong in concluding as a fact that these expenses were unnecessary.

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

AFFIRMED.


author: FORET, Judge.

text:
    Joseph Leo GUINN, Plaintiff-Defendant in Rule-Appellant, v. Linda Price GUINN, Defendant-Plaintiff in Rule-Appellee.
    No. 8385.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 7, 1981.
    James H. Galloway, Jr., Alexandria, for plaintiff-defendant in rule-appellant.
    Davis & Murchison, James D. Davis, Alexandria, for defendant-plaintiff in rule-appellee.
    Before GUIDRY, FORET and SWIFT, JJ.
   FORET, Judge.

Linda Sue Price Guinn (appellee) brought a rule for child support on behalf of her minor child, Ashlee Anne Guinn, born of the marriage between appellee and her former husband, Joseph Leo Guinn (appellant). The trial court rendered judgment on the rule and ordered appellant to pay appellee $225.00 per month for child support.

The sole issue presented on appeal is whether the trial court abused its discretion in the amount awarded.

FACTS

Appellant instituted an action for divorce against appellee on January 30, 1980, on the grounds that they had been living separate and apart for one year. Appellee answered appellant’s petition and sought the custody of Ashlee, together with an award of $500.00 per month for child support. After a hearing on the merits, the trial court rendered judgment in favor of appellant and against appellee, decreeing a divorce a vinculo matrimonii between the parties, and awarding appellee custody of Ashlee, and $225.00 per month for child support. Appellant appealed from that judgment.

CHILD SUPPORT AWARD

Appellant contends that the trial court abused its discretion in ordering him to pay $225.00 per month in child support in view of the evidence presented concerning his ability to pay such an award.

LSA-C.C. Article 227 imposes on parents a mutual obligation of support, maintenance, and education of their children. The degree of support is determined by the needs of the child, as well as the circumstances of those who are obligated to pay it. LSA-C.C. Articles 230 and 231; Graval v. Graval, 355 So.2d 1057 (La.App. 4 Cir. 1978); Marcus v. Burnett, 282 So.2d 122 (La.1973); Prudhomme v. Prudhomme, 381 So.2d 906 (La.App. 3 Cir. 1980).

The evidence shows that Ashlee, who is two years old, suffers from an allergic condition which makes it necessary for her to avoid eating certain foods and wearing clothing made from certain materials. Further, her clothing must be washed in special detergents. Appellee testified that she must take Ashlee to a physician about once a month for treatment of the allergic condition and other medical problems. Appellee expressed a desire to take Ashlee to a specialist if she could afford to do so. Appellee testified that one specialist quoted her a fee of $300.00 for initial consultation and $40.00 per month thereafter for the treatment needed by Ashlee. Appellee is employed and must place Ashlee in a day care center while working.

Appellant testified that he and two friends share a three bedroom, brick home and the expenses connected therewith. Appellant is employed as a sales person for Sears and has an average net monthly income of $570.00. The evidence shows that appellant has been employed as a pipe fitter in the past earning approximately $10.00 per hour. Appellant has also worked in the oil field as a member of a casing crew and as a roughneck. Appellant has a car note of $265.00 per month and estimates a payment of $130.00 per month for gasoline, automobile liability insurance, etc. Thus, it does appear that the award of $225.00 per month for child support is high since it leaves appellant only $345.00 per month to meet his other expenses. However, there is no doubt that Ashlee’s needs are higher than would be expected for a normal, healthy child.

The support obligation imposed on the father and the mother of minor children by LSA-C.C. Article 227 is firmly entrenched in our law and is a matter of public policy. Neither equity (LSA-C.C. Art. 21), nor practical inability to pay (LSA-C.C. Art. 232) overrides this policy or allows a parent to avoid paying his or her share of the obligation where the inability arises solely from that parent’s own neglect and failure. Laiche v. Laiche, 237 La. 298, 111 So.2d 120 (1959). See also Moore v. Moore, 380 So.2d 180 (La.App. 2 Cir. 1980); Theriot v. Melancon, 311 So.2d 578 (La.App. 3 Cir. 1975); Baer v. Simon, 334 So.2d 796 (La.App. 3 Cir. 1976); Dugas v. Dugas, 374 So.2d 1278 (La.App. 3 Cir. 1979). It is apparent that the trial court took into consideration the fact that appellant could find employment in a higher paying job if he so desired. We believe that this is a proper consideration.

The trial court is vested with considerable discretion in fixing child support payments. Such determination will not be disturbed unless there appears to be an abuse of that discretion. Dupre v. May, 365 So.2d 1173 (La.App. 3 Cir. 1978); Gravel v. Gravel, 331 So.2d 580 (La.App. 3 Cir. 1976). We find no abuse of discretion by the trial court in fixing appellant’s child support obligation at $225.00 per month.

For the above and foregoing reasons, the judgment of the trial court is affirmed.

All costs of this appeal are assessed against plaintiff-defendant in rule-appellant, Joseph Leo Guinn.

AFFIRMED.


author: DOMENGEAUX, Judge.

text:
    Phillip Nelson GARRETT, Plaintiff-Appellant, v. John Leo GAYLE, William Joseph Gayle, Phillip Anthony Gayle, and Mrs. Henrietta M. Gayle, Defendants-Appellees.
    No. 8386.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 7, 1981.
    Rehearing Denied Nov. 20, 1981.
    Kenneth Michael Wright, Lake Charles, for plaintiff-appellant.
    McHale, Bufkin & Dees, Michael K. Dees, Lake Charles, for defendant-appellee.
    Before CULPEPPER, DOMENGEAUX and DOUCET, JJ.
   DOMENGEAUX, Judge.

Plaintiff, claiming that the house he purchased from defendants contained a hidden redhibitory defect (a leaking roof) of which he was not told by defendants and which he did not discover prior to the sale, filed a petition for redhibition seeking to rescind the sale, or in the alternative, to reduce the purchase price of the house. Defendants filed a motion for summary judgment which was granted by the trial court.

Plaintiff has appealed.

Defendants offered three depositions in support of their motion — two by plaintiff and one by his wife. The depositions reveal that plaintiff and his wife twice visited the house before purchasing it. On the first visit, from outside the house, plaintiff observed that the gutters had rusted out and that some shingles on the roof were starting to curl. He testified that he understood from this phenomenon that either “there’s something wrong with the roof or it’s getting too old”; that the roof “was bad or going bad”; and that “if there was a problem and the roof was bad . . . water would eventually seep in through it and come through the house.”

On his second visit to the house, plaintiff climbed into the attic, particularly to check the heating unit, the ducts, and the pipes located there. While he was in the attic, he walked as far as he could along a boardwalk running the length of the house in order to inspect the inside of the roof. However, he did not inspect those areas of the roof near where the roof meets the ceiling, because those areas were dark and inaccessible except to one who crawled thereto, something plaintiff did not or could not do. With respect to those portions of the inside of the roof which he did inspect, though, plaintiff did not see any evidence of leaking.

Based on the above facts, the trial court held that there was no disputed issue of material fact that plaintiff had knowledge, prior to his purchase of the house, that the roof had apparent visible defects, or that he would have had such knowledge with further inspection of the roof after first noticing apparent visible defects as required by a reasonably prudent buyer acting under similar circumstances. Pursell v. Kelly, 244 La. 323, 152 So.2d 36 (1963). We reverse. The duty to further inspect after first noticing apparent visible defects has no application here because the depositions do not establish that plaintiff had knowledge of any apparent visible defects in the roof which caused the roof to leak.

This Court, in Goldberg v. Oliver, 212 So.2d 277 (La.App. 3rd Cir. 1968), application denied 252 La. 896, 214 So.2d 719 (1968), application denied 253 La. 649, 219 So.2d 178 (1969), opined that an old and worn roof, which was not leaking at the time of purchase, was not a vice or defect under the contemplation of the Civil Code articles on redhibitory actions, where the vendor made no representation whatsoever pertaining to its condition. Other cases have held that a leaking roof, even though it may be old and worn, is a redhibitory defect entitling the purchaser to rescission of the sale or reduction of the purchase price if the purchaser was unaware of and had no reason to expect the leak prior to the sale and the evidence established that the leak occurred prior to the sale. Hunter v. Wilson, 355 So.2d 39 (La.App. 3rd Cir. 1978), writ denied 357 So.2d 1154 (La.1978) and cases cited therein, and Verlander v. Hoffer, 351 So.2d 229 (La.App. 4th Cir. 1977), writ denied 353 So.2d 1037 (La.1978).

The depositions reveal that the only “apparent visible defects” of which plaintiff was aware were the rusted gutters and curling shingles. Although none of the depositions establishes the age of the house and/or roof, it seems reasonable to assume, from the condition of the gutters and shingles, that the house was fairly old. Assuming this to be the ease, we conclude, under the Goldberg rationale, that the curling shingles were merely indicative of age and wear and did not constitute a defect which would put plaintiff on notice that he should inspect for leaks. Plaintiff did not otherwise notice any evidence of leaking prior to the sale, even though he inspected as much of the inside of the roof as he could from the attic and he had no reason to expect that he was purchasing a house with a leaky roof, since the defendants made no representations pertaining to the condition of the roof. The depositions show that it was not until a couple of months after the sale that plaintiff observed leaks after a heavy rain — and discovered that certain water-stained areas of the ceilings of the house had been recently painted over by the previous owner.

The duty to investigate further, imposed by Pursell, applies in a situation where the defect complained of is partially apparent. Under Goldberg, a visibly worn roof, in and of itself, is not a defect which would put one on notice to inspect for leaks in the roof.

Having found that the Pursell rule does not apply, we remand the case to the trial court for further proceedings.

We must bear in mind that summary judgment is not a substitute for trial. We stated recently in the case of LeBlanc v. Landry, 371 So.2d 1276 (La.App. 3rd Cir. 1979):

“The summary judgment procedure should be used cautiously and sparingly and any reasonable doubt concerning the existence of such should be resolved against the mover and in favor of a full trial on the merits. Mecom v. Mobil Oil Corp., 299 So.2d 380 (La.App. 3rd Cir. 1974). Moreover, the fact that the court might conclude that the evidence preponderates in favor of the opponent does not justify the denial of a full trial on the merits to resolve the disputed issue. Dougharty v. Calkraft Paper Co., 335 So.2d 772 (La.App. 3rd Cir. 1976).”

For the above and foregoing reasons, the summary judgment granted by the district court is reversed, and this case is remanded for further proceedings. All costs are assessed against the defendants.

REVERSED AND REMANDED.

      . In Pursell, obvious termite damage was visible to the purchaser prior to the sale. The Supreme Court held that the known presence of some termite damage necessitated further inspection on the purchaser’s part to determine whether other areas of the premises suffered termite damage.


text:
    Richard Benjamin TAUNTON, Plaintiff-Appellee, v. CANE AIR, INC., Defendant-Appellant.
    No. 8387.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 7, 1981.
    Jess J. Waguespack, Donaldsonville, for defendant-appellant.
    Hal J. Scott, Jonesville, for plaintiff-ap-pellee.
    Before CULPEPPER, DOMENGEAUX and DOUCET, JJ.
   DOMENGEAUX, Judge.

This is a suit for the balance due under an oral contract of employment.

Plaintiff, Richard Benjamin Taunton, is a pilot who had been employed by Louisiana Aircraft in Baton Rouge as an aircraft salesman prior to the events leading up to this suit. Defendant, Cane Air, Inc., is a Louisiana corporation domiciled at Belle Rose, Louisiana, engaged in aerial application services to agriculture. For some years prior to 1979, it operated a satellite operation at Jonesville, Louisiana. V. R. “Ray” Thornton is the president and chief executive officer of Cane Air, Inc. and also organized the firm some years ago.

Sometime around May, 1979, plaintiff began discussions, and then negotiations with Thornton about the possible sale of the Jonesville operation to him. While this was taking place, Thornton offered Taunton a pilot’s job in Jonesville. In May, 1980, the Jonesville operation was sold to someone other than Taunton.

The trial court was presented with the task of determining the terms of the oral employment contract between plaintiff Taunton and defendant Cane Air, Inc. Taunton claimed that he was to be compensated at the rate of 25% of the gross billings for his flying plus 2*/2% of the gross income of the entire Jonesville operation. Thornton agreed that the percentages were correct but were predicated and conditioned upon plaintiff purchasing the business. Additional conditions alleged by Thornton was that Taunton “do a good job and not destroy any equipment”.

The trial court obviously credited Taun-ton’s testimony with more weight than Thornton’s and found that the oral contract was subject to no conditions. Plaintiff was awarded the full amount he had prayed for ($3,364.74) which was the difference between the amount he had been paid and the amount he claimed based upon the percentages stipulated previously. Defendant has appealed.

We cite approvingly from O’Rourke v. Tracy, 375 So.2d 747 (La.App. 4th Cir. 1979), which commented upon La. C.C. Art. 2277, as follows:

“Civil Code Article 2277 is the basic rule governing proof of oral contracts. That article states,
‘All agreements relative to movable property, and all contracts for the payment of money, where the value does not exceed five hundred dollars, which are not reduced to writing, may be provided by any other competent evidence; such contracts or agreements, above five hundred dollars in value, must be approved at least by one credible witness, and other corroborating circumstances’ (Emphasis added.)
It is well settled that a party to the lawsuit may serve as his own ‘credible witness’ for purposes of this article. Foshee v. Hand-Enis Realty Co., 237 So.2d 437 (La.App.3rd Cir. 1970). Moreover, although he still must show other circumstances which corroborate his claim, this means only general corroboration and does not require independent proof of every detail of the witness’s testimony. Samuels v. Firestone Tire & Rubber Co., 342 So.2d 661 (La.1977). Nonetheless, the question of whether the evidence offered by plaintiff corroborates his claim is a finding to be made by the trier of fact, and thus is not subject to reversal unless it is clearly wrong. Taylor v. Clark, 304 So.2d 728 (La.App. 4th Cir. 1974); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). The reviewing court must give great weight to the factual conclusions of the trier of fact, and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed, even though the appellate court may feel that its own evaluations and inferences are reasonable. Canter v. Koehring Co., 283 So.2d 716 (La.1973).”

Our overview and close study of this record leads us to conclude that there is ample evidence to sustain the decision of the trial court. Certainly, at the very least, we find no manifest error.

Even though plaintiff and Mr. Thornton were seriously discussing plaintiff’s purchase of defendant’s Jonesville branch business, all circumstances as testified to could cause the trier of fact to conclude that no strings were attached to the oral contract of employment. It is evident that defendant’s chief officer, Mr. Thornton, was hopeful that plaintiff would purchase the business but it is also evident that the trial court concluded that these hopes did not evolve or materialize as conditions of the employment.

There is testimony to the effect that, in addition to plaintiff being hired to cropdust, he was also to help in the office and to solicit and secure new business. This reasonably explains the payment provision for 214% of the gross profits of the business. The record shows, in fact, that plaintiff was instrumental in securing approximately $33,300.00 worth of new business which was about half of the total gross that defendant’s Jonesville operation experienced during the time that plaintiff was in defendant’s employ.

It was shown that during the course of the employment the plaintiff damaged two of defendant’s planes in flying accidents. However, the evidence unequivocally indicates that pilots were not held financially responsible for these type accidents because such occurrences were not unusual in the eropdusting business. Furthermore, the planes involved in this case were insured, as was customary in the cropdusting business. Defendant contends that the employment was conditioned upon plaintiff doing a “good job and not destroying any equipment”, and that plaintiff’s damaging of two planes was in violation of the contract agreement. This supposition was obviously not given much weight by the trial court. It is evident that the trial court did not believe that such a condition existed, and that conclusion is bolstered by the aforementioned evidentiary fact that cropdust-ing pilots were generally not held financially responsible for damages to planes or other equipment.

Defendant suggests in brief that the three witnesses called by plaintiff to corroborate plaintiff’s testimony testified only to hearsay. Defendant failed to object in any way to this testimony at the trial. It is well settled that failure to object to hearsay or secondary evidence when admitted at trial constitutes a waiver of the right to object to its admissibility and that such evidence may then be considered and given probative effect. The aggrieved party may not subsequently on appeal urge that such evidence was not actually admissible. Richard v. Southwest Louisiana Hospital Association, 383 So.2d 83 (La.App.3rd Cir. 1980), writ refused, 385 So.2d 274 (1980); see also Wade v. Joffrion, 387 So.2d 1265 (La.App. 1st Cir. 1980).

In conclusion, and contrary to appellant’s contentions, we find no error in the amount awarded plaintiff in the judgment rendered in the district court.

Applying the rationale of O’Rourke to the facts of this case, we conclude that plaintiff should prevail here, and his judgment should not be overturned.

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

AFFIRMED.


author: LABORDE, Judge.

text:
    John C. PERRONCEL, et al., Plaintiffs-Appellants, v. JUDGE ROY BEAN’S SALOON, INC., et al., Defendants-Appellees.
    No. 8393.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 7, 1981.
    Rehearing Denied Nov. 20, 1981.

      McHale, Bufkin & Dees, Louis D. Bufkin, Lake Charles, for plaintiffs-appellants.
    Camp, Carmouche, Palmer, Barsh & Hunter, A. J. Gray, III, Lake Charles, for defendants-appellees.
    Before CUTRER, STOKER and LA-BORDE, JJ.
   LABORDE, Judge.

This is an appeal from a suit filed by plaintiff lessors against defendant lessees for alleged losses of certain movable items and alleged damages to the leased premises. At the close of plaintiffs’ case, the trial court, on motion of defendants, dismissed plaintiffs’ suit. For reasons other than those stated by the trial court at the close of trial, we affirm.

Plaintiff lessors, John C. Perroncel, Michael M. Sperandeo and E. J. Bolzoni, seek damages from defendant lessees, Earl L. Hebert and Charles Goodson pursuant to a lease agreement executed on July 7, 1975. The lease agreement covered a building formerly operated as a restaurant-lounge as well as movable property located in the building. Attached to and made a part of the lease agreement was an inventory listing this movable property.

On July 6, 1978, defendant lessees assigned their lease for the remaining term to a new lessee. Shortly thereafter, representatives of plaintiffs, defendants and the new lessee met to aid in an orderly transition of the leased premises from defendants to the new lessee. At this time, another inventory was taken for the benefit of all parties. Plaintiffs contend that while the premises were being inspected for purposes of this new inventory, a large number of items which were listed in the original inventory were found to be damaged or missing from the leased building. This suit for damages ensued. In their petition, plaintiffs listed the following as missing items and damages to the leased premises:

“(1) Eighteen High Back Dining Chairs at $200.00 each
(2) Seventeen Table Lamps' at $25.50 each
(3) One Cocktail Roller Chair at $250.00 each
(4) One Model HC 455 Howard Sliding Glass Door Refrigerator, Stainless Steel Front
(5) One Nelson, Model 3 DF 86 Sundae Server with pump, ladle and jar kit.
(6) One Stainless Steel Bread Warmer Pan
(7) Five Dish Washer Racks at $15.00 each
(8) One Model AHCT2 Hobart Automatic Dish Washer, Serial No. 309036 with Model CH15, 15 kw. Lectro Speed Hot Water Booster complete with trim package
(9)One Model SD502 G.E. Disposal with accessories, 280 volt, 3 phase
(10) One Charcoal Pit Cooker
(11) One Plastic Food Bin
(12) Two Wire Stands and Buckets at $20.00 each
(13) Replace Iron Fencing in front of building
(14) Repair broken plaster, paper and repaint chipped paint on door facing on second floor
(15) Men’s Room on first floor — Replace doors on water closets, repair hole in wall and paint
(16) Repair angle iron on elevator
(17) Concrete steps to Kitchen
(18) Replace door to Garage Apartment”

At the bench trial, plaintiffs produced one witness, John C. Perroncel. The gist of Mr. Perroncel’s rather brief testimony was that he participated in the second inventory of the leased premises and personally noted the alleged shortages. At the conclusion of Mr. Perroncel’s testimony, plaintiffs rested their case. Alleging lack of proof, defendants moved to have plaintiffs’ suit dismissed. Defendants contended they fulfilled their obligation to return the leased premises and leased equipment in the same condition as when received, ordinary wear and tear excepted. It was defendants’ position that all plaintiffs proved was a discrepancy in a numerical inventory adding that no proof was advanced to show that the numerical difference was damage incurred above and beyond ordinary wear and tear.

The trial court granted defendants’ motion and dismissed plaintiffs’ suit. In so doing the court cited Louisiana Civil Code Article 2721 and Provosty v. Guss, 350 So.2d 1239 (La.App. 4th Cir. 1977) and proceeded to discuss the burden of proof the plaintiff lessor bears in such a case. The court observed that Article 2721 reads:

“The lessee is only liable for the injuries and losses sustained through his own fault.”

The court then stated that the burden this article creates is one, “which I would not hesitate to suspect would be impossible in this situation. . . . ” The court continued, citing the Provosty case, supra, and adding:

“This jurisprudence, in my opinion, places a burden upon the plaintiff to fulfill in that regard a burden of which I cannot take judicial notice, but practically speaking, I would imagine would be an impossibility, considering the nature of the business that was operated with the leased equipment. For the plaintiff to be able to prove by whose fault a chair was broken or damaged, or why a pot was missing, which we could assume may have been thrown out because it had food burned into it and could not be cleaned, or anything of that nature * * * The provision and the law demand and require the lessor to establish that fault, establish a practical impossibility in this situation.”

The general issue posed on appeal is whether the trial court erred by granting defendants’ motion and ordering plaintiffs’ suit dismissed. While we hold the trial court committed no error in dismissing plaintiffs’ suit, we do so for reasons other than those stated by the trial judge, especially with regard to his discussion of the burden of proof.

The burden of proof in a suit by a landlord against his tenant for damages to the leased premises was set forth in Ferguson v. Smill, 183 So. 600 (La.App.Orl.1938). In the Ferguson case, as in the instant case, the lease required the lessees “to return said premises ... in like good order as received by actual delivery of the keys to Lessor or Agent. The usual decay, wear and tear excepted.” (Our Emphasis) The court then explained:

“. . . Art. 2719 of the Civil Code, even had there been no written lease, would have created just this obligation, for it, in part, provides that “it shall be the duty of the lessee to deliver back everything in the same state in which it was when taken possession of by him, making, however, the necessary allowance for wear and tear and for' unavoidable accidents”.
While, therefore, it is quite true that tenants are not liable except for loss resulting from their negligence, it is quite obvious that the burden of absolving themselves should be placed upon them, particularly when it is not damage by wear and tear that is complained of but the entire absence of some part of the leased premises. In other words, if a tenant seeks to avoid responsibility for the value of some missing part of the leased building, he must show that it was not his negligence that caused the loss. All a lessor need do is to show the loss and at once there is thrown on the tenant the necessity to explain.
“The burden of proof is on him who has to support his case by a fact of which he is supposed to be most cognizant, and the evidence of which is more within his power than that of his opponent. Thus; the lessee of slaves, whose lease and delivery have been proved, must explain why he cannot return them. Delery v. Mornet, 11 Mart., O.S., 4; Nicholls v. Roland, 11 Mart., O.S., 190, 194; Meilleur v. His Creditors, 3 La. 532, 534; Offutt v. Scribner, 10 La.Ann. 639; Ford v. Simmons, 13 La.Ann. 397.” 1 Hennen’s Digest, 495, VIII, No. 2.
******
“C. C., 2721 (2691): ‘The lessee is only liable for the injuries and losses sustained through his own fault.’
“The burden of proof is upon the lessee of movables to exonerate himself from liability for their damage or loss because the evidence of that fact is more within his power. 1 H.D. 495, VIII, No. 2. After he has negatived the presumption of negligence on his part, created by the damage or loss of the thing while in his possession, the burden of proof is shifted to the lessor to establish that the damage or loss was caused by the fault of the lessee. 1 H.D. 802(2) Nos. 1 to 9.”
See also Buchanan v. Daspit, 245 So.2d 506 (La.App.3rd Cir. 1971).

Thus, under Ferguson, the burden of proof is allocated in the following way: The lessor begins by showing the loss, the lessee then must absolve himself by showing that the loss did not result from his negligence especially if some part of the leased premises is missing entirely, and then the burden shifts back to the lessor to show that the damage or loss was caused by the lessee’s fault.

By announcing that when a lessor could show only that the leased items were missing but could not explain further it would thereafter be impossible for him to discharge his burden of proving that the loss or damage was a result of the lessee’s fault, the trial court confused the order of the burdens of proof.

Under the Ferguson case then, which we hold governs the instant case, all the lessor need initially show is the loss. This plaintiff lessors did by utilizing two inventories, one taken prior to the lease and the other taken subsequent to the lease. The inventories illustrated the shortages upon which plaintiffs’ claims were based.

Upon a showing of the loss, it was incumbent upon defendant lessees to show that the loss was not due to negligence on their part. Defendants fulfilled their burden through answers to interrogatories entered into evidence at the beginning of trial. In their answers defendants explained what, if anything, had happened to or had been done to the movable items plaintiffs listed as missing. The content of these explanations is such that we find defendants adequately discharged their burden of exculpating themselves by showing that the shortages and damages complained of resulted from ordinary wear and tear and did not result from their negligence as argued by plaintiffs.

The burden then shifted back to plaintiff lessors to prove that the loss or damage was caused by the fault of the defendant lessees. A review of the record convinces this court that plaintiffs failed to discharge this burden as the record is devoid of anything that shows or even suggests that the damages complained of were caused by fault of the defendant lessees.

Louisiana Code of Civil Procedure Article 1810 B. provides:

“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.”

Under the facts presented in the instant case, we hold that the trial court correctly granted defendants’ motion to dismiss plaintiffs’ suit.

For the above reasons, the judgment of the trial court is affirmed; costs are assessed against plaintiffs-appellants.

AFFIRMED.

      . During the lease term, defendant lessees assigned their lease. By way of a third party petition, the defendant lessees added this sub-lessee as a third party defendant. As a result, additional claims were asserted between the original defendants and the third party defendants. However, due to the result reached in the lower court, the various claims were deferred for trial at a later date; leaving only the principal demand at issue on appeal.

      . The lease agreement (Tr. 8-14) evidences additional parties who neither joined as plaintiffs nor were made defendants. The record reflects that defendants filed a peremptory exception of non-joinder of an indispensible party and in the alternative an exception of no right of action. After a hearing, the trial court overruled this exception which was not appealed and is now final.


text:
    Herbert G. BARNETT, Jr., Plaintiff-Appellee, v. Gaynell A. BARNETT, Defendant-Appellant.
    No. 8394.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 7, 1981.
    Miller, Miller & Craton, Michael B. Miller, Crowley, for defendant-appellant.
    Herbert G. Barnett, in pro. per.
    Before CUTRER, STOKER and LA-BORDE, JJ.
   LABORDE, Judge.

Appellant, Gaynell A. Barnett, sued her previous husband, Herbert G. Barnett, Jr., appellee, for an increase in child support, past due support, contempt of court, and attorney fees. The trial court denied each of appellant’s demands and she applied for a new trial following which judgment was rendered in her favor making past due child support executory in the amount of $120; all other demands were again denied.

Appellant appeals the lower court’s denial of an increase in child support. Our review of the record convinces us that the trial judge did not abuse his discretion in denying the request. Hence, we affirm.

The record shows that the litigants were divorced January 26, 1976. Custody of their daughter, Phyllis, was granted to appellant and child support payments were fixed at $120 per month.

On November 3, 1980, the date of the hearing for increased child support, appellant, who had remarried and was separated from her second husband, introduced an affidavit showing her gross monthly income to be $644.60. Appellant estimated Phyllis’ needs to be $417 per month.

Appellee who had also remarried and had a small child of his second marriage introduced an affidavit which included his present wife’s monthly income of $800. Their combined gross income totaled $2,414.84 and deductions and monthly expenses totaled $2,336.42.

The trial judge concluded that “there was no showing that the father was in a better financial position to authorize an increase in the child support.”

The trial court has much discretion in fixing alimony and child support and the award will not be disturbed unless there is a clear abuse of discretion. Kellogg v. Kellogg, 375 So.2d 200 (La.App. 2nd Cir. 1979) and Vidrine v. Vidrine, 402 So.2d 793 (La.App. 3rd Cir. 1981).

Our review of the respective income and expenses of the litigants does not establish that there has been any abuse of discretion by the trial judge in denying appellant’s request for an increase in child support for Phyllis.

For the above and foregoing reasons the decision of the trial court is affirmed at appellant’s costs.

AFFIRMED.

      . Appellee was under the impression that he did not owe the child support for February 1980, the one month period his daughter lived with him as requested by appellant.


author: CUTRER, Judge.

text:
    Hayward McCULLERS, et al., Plaintiffs-Appellees, v. STATE of Louisiana, DEPARTMENT OF LABOR, OFFICE OF EMPLOYMENT SECURITY, Defendant-Appellant.
    No. 8396.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 7, 1981.

      James A. McGraw and Willie D. Maynor, Baton Rouge, for defendant-appellant.
    Cooper & Woodruff, Abbeville, John E. Ortego, Abbeville, for plaintiffs-appellees.
    Before CUTRER, STOKER and LA-BORDE, JJ.
   CUTRER, Judge.

The plaintiffs, Hayward and Connie McCullers, filed a rule to show cause why the State of Louisiana, Department of Labor, Office of Employment Security (Office of Employment Security) should not be ordered to pay them unemployment compensation benefits for each week in which they were unemployed during the months of February, March, April and May of 1980, plus interest and costs. The trial court granted judgment ordering the payment of such benefits and interest for each week beginning January 14, 1980 through May 19, 1980. The Administrator of the Office of Employment Security appeals. We reverse.

The trial court set forth the events leading up to the trial of the rule to show cause as follows:

“Plaintiffs, Mr. and Mrs. Haywood McCullers, are both shrimpers who work out of the Delcambre, Louisiana area. For a variety of reasons unimportant to the resolution of this dispute, the McCul-lers formed a corporation in order to conduct their shrimping business. This corporation is a closely held corporation; Mr. and Mrs. McCullers are the sole shareholders.
“The McCullers ceased shrimping activities sometime during the late fall of 1979 and did not return to shrimping until the middle of May, 1980. The McCullers first applied for unemployment benefits with the Office of Employment Security on January 14th, 1980 at the agency’s office in New Iberia, Louisiana. This claim was denied because the McCullers were officers of a corporation. On or about February 12th, 1980, they were advised by the Office of Employment Security that they had been declared ineligible for unemployment compensation benefits. At this time they were also notified of their rights to an appeal. Accordingly, the McCullers filed a timely appeal and a hearing was afforded them before an Appeals Referee. The Appeals Referee affirmed the previous determination based on the facts that the plaintiffs were indeed officers of their own corporation. The McCullers then took the next required step by appealing to a Board of Review, which in turn affirmed the Appeals Referee on the same grounds. At this point suit was filed in accordance with the law.
“Prior to the date of the scheduled court hearing, the Office of Employment Security agreed to a stipulated judgment since they felt that the facts as proven showed that the McCullers were not working because of factors beyond their control. Thus, the original determination that they were not eligible for benefits may have been incorrect (the record is clear that for Gulf Coast shrimpers, shrimping during the winter months is a risky and unprofitable venture at best).
“In accordance with this stipulated judgment, the Court rendered a judg ment on September 9th, 1980 ordering that this ease be remanded to the Office of Employment Security for payments of all benefits to which the McCullers are otherwise entitled to by virtue of law.
“Since that time the Office of Employment Security has refused to pay to the McCullers benefits accruing from January, 1980 through May of 1980. As a result of this refusal, the instant rule was filed.
“Regulation 14 of the Revised Regulations for the Administration of the Employment Security Law, prescribed and adopted by the Administrator of the Office of Employment Security, has been in effect since March 25th, 1946. That regulation provides in pertinent part:
‘.. . . To establish eligibility for benefits . . . for weeks of total or part total unemployment during any continuous period of employment, the claimant shall continue to report in person or by mail weekly or biweekly, or at more frequent intervals, if directed by the Administrator or his representative, to the Department of Employment Security Office where he registered for work and filed his claims ... If the failure of an individual to file such a claim at the time specified is found to be without good cause or if the continued claim is not filed within the abovemen-tioned seven days, the continued claim will be disallowed.’
“After the initial denial of benefits, each subsequent notice supplied by the Office of Employment Security contained a statement to the effect that ‘If you appeal, you should continue to file claims until a final decision is rendered or you return to work.’ Other documents received by the McCullers from the Office of Employment Security directed them to ‘continue to file claims until a final decision is rendered . . .’.
“It is the position of the Office of Employment Security that at every stage of the administrative handling of this case, the McCullers were advised on the face of each form that they received that it was necessary to continue to file each week for benefits until they either returned to work or the initial claim determinations became final by the exhaustion of the administrative appeals and judicial review proceedings.
“Because of the McCullers’ failure to file weekly claims even after the Office of Employment Security determined that they were ineligible and refused to pay them, the benefits accruing throughout this period were denied. ”

The initial judgment only disposed of the question of whether plaintiffs’ status as corporate officers and stockholders would disqualify them from benefits or if they had shown that they were not working for reasons beyond their control thus retaining eligibility despite their corporate positions. That judgment, consented to by both parties, was a final termination of a judicial proceeding within the purview of LSA-R.S. 23:1634. The statute provides that following such termination of a judicial proceeding the Board of Review shall enter an order in accordance with the mandate of the court.

The plaintiffs brought this rule, apparently contending that the refusal of the Office of Employment Security to pay compensation benefits for the weeks between January 14, 1980 and May 19, 1980, contradicts the initial judgment of September 9, 1980, ordering payments of all benefits to which the plaintiffs “are otherwise entitled by law.” The determination of what were the benefits to which the plaintiffs were otherwise entitled by law involves questions not resolved in the initial judicial proceeding. The subsequent agency determination that plaintiffs are ineligible for the benefits they now seek because they never applied for those benefits should have been judicially reviewed upon an administrative record as in any appeal from the Board of Review in an unemployment compensation case.

Here the trial court took evidence, consisting primarily of the testimony of the plaintiffs. This is a violation of LSA-R.S. 23:1634 which provides that in reviewing the agency decision, the court is to take no evidence. The court may order additional evidence to be taken before the Board of Review, if necessary. Melady v. Louisiana Bd. of Review, 375 So.2d 760 (La.App. 4th Cir. 1979); Houston v. Administrator of Division of Emp. Sec., 191 So.2d 167 (La.App. 3rd Cir. 1966).

However, no objection was made to the introduction of the testimony at trial and the facts are essentially undisputed. The only issues are legal. We find that a remand would serve no useful purpose and consequently we will proceed to the merits.

The defendants raise three issues on appeal:

(1) Whether the plaintiffs can collect unemployment compensation for the weeks during which their appeal of the initial determination of ineligibility was pending, where they filed no claims for such compensation;
(2) Whether the trial court’s order that the defendant pay unemployment compensation for certain specified weeks constituted an impermissible money judgment in a judicial review proceeding; and
(3) Whether legal interest was properly granted as part of the award.

Both plaintiffs and defendant admit that there has been no judicial determination of the first issue prior to this case. The trial court concluded that the requirement of continued weekly filing of claims while an appeal is pending, is unduly technical. He further found that the plaintiffs were not sufficiently apprised of the fact that the continued filing was mandatory in order to receive benefits. We disagree.

We are aware that the Unemployment Compensation Act must be construed liberally in the interest of its beneficiaries. Parker v. Gerace, 354 So.2d 1022 (La.1978), but the Administrator is given express authority to prescribe regulations governing claims for benefits. LSA-R.S. 23:1622. An individual is eligible to receive benefits only if he has made a claim in accordance with such regulations. LSA-R.S. 23:1600.

The Office of Employment Security must have an effective means of monitoring the claimant’s eligibility on a contemporaneous basis. To be eligible for benefits a claimant must meet a number of requirements under LSA-R.S. 23:1600 and also must not fall within any of the causes for disqualification under LSA-R.S. 23:1601. If a claimant is allowed to forego making weekly claims, while an appeal is pending regarding one requirement for eligibility, it may be impossible for the agency to make an effective retroactive evaluation as to whether the plaintiff met other eligibility requirements during that time period. We find the requirement of continued filing of weekly claims is reasonable and necessary in light of the purposes of the Act.

It is undisputed that the plaintiffs knew they were to continue to file claims on a weekly basis while their appeal was pending. The trial court’s finding that the filing was at no time made mandatory but rather was “. . . couched in permissive terms” is erroneous. The information booklet given the plaintiffs explicitly states that unemployment compensation is paid on the basis of eligibility from week to week. It also states in a simple imperative statement:

“If you appeal, continue to file claims until a final decision is rendered.”

It is difficult to see how the requirement could have been more plainly stated. We do not think that the plaintiffs were entitled to simply disregard the requirement because they found that filing the claims was inconvenient.

Plaintiffs also argue that their not filing claims is a sort of affirmative defense and having not been pled prior to the original judgment, cannot now be raised. This contention is without merit. To accept plaintiffs’ position would mean that any time a claimant appealed an initial determination that he was not entitled to benefits, he would, if ultimately successful, be entitled to benefits for the entire time consumed in reaching a final resolution regardless of whether claimant lost his eligibility or became disqualified for other reasons during the appeal proceedings. Furthermore, the requirement, that a claim be made for any benefits sought, is not a defense but an essential element of the claimant’s initial eligibility.

Since we find that the plaintiffs are not entitled to unemployment compensation benefits we do not reach the, remaining issues.

For the foregoing reasons, the judgment of the trial court is reversed and set aside. Costs of the trial court and this appeal to be paid by plaintiffs-appellees.

REVERSED; SET ASIDE AND RENDERED.