author: CUTRER, Judge. STOKER, Judge, FORET, Judge,

text:
    James Wayne SAM, Plaintiff-Appellee, v. STANDARD FITTINGS COMPANY, Defendant-Appellant.
    No. 7681.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1980.
    Dissenting Opinion Oct. 10, 1980.
    Lewis & Lewis, James C. Lopez, Opelou-sas, for defendant-appellant.

      Felix A. DeJean, III, Opelousas, for plaintiff-appellee.
    Before DOMENGEAUX, FORET, CUT-RER, STOKER and LABORDE, JJ.
   CUTRER, Judge.

James Wayne Sam brought this workmen’s compensation suit against his self -insured employer, Standard Fittings Company (Standard), seeking medical expenses incurred as a result of a disabling work-related accident, along with penalties and attorney’s fees. Standard filed an answer and an exception of prematurity.- The exception was referred to the merits. After trial, judgment was rendered in favor of Sam overruling the exception of prematurity and awarding Sam penalties in the amount of $4,990.51 and attorney’s fees of $3,500.00. Standard appeals from this judgment. Sam has answered the appeal seeking an increase in the attorney’s fees.

The primary issue presented is whether the suit was filed prematurely and, thus, whether it should be dismissed under the provisions of LSA-R.S 23:1314. We have decided that a resolution of this issue disposes of the case.

Sam’s petition alleged that he was injured on the job in November or December of 1976. He alleged that weekly compensation payments had been paid in the amount of $77.84. Sam further alleged that medical expenses in the amount of $41,546.00 had been incurred and had not been paid at the time the original petition was filed on July 11, 1978.

The record reflects that after the suit was filed, but before trial, all medical expenses were paid. Standard issued two checks, dated September 6, 1978 and September 12, 1978, for the payment of the physicians’ bills and the hospital expenses for $41,590.06, the total medical expenses that were due.

Our examination of the record brings us to the conclusion that the trial court erred in overruling the exception of prematurity filed by Standard. Therefore, we reverse.

LSA -R.S. 23:1314 provides that suits under the Workmen’s Compensation Act shall be premature and shall be dismissed unless:

(1) “. . . the employee ... is not being-paid or has not been paid . . . the maximum percent of wages ...” or
(2) “. . . the employee has not been furnished the proper medical attention ...” or
(3) “. . . the employee has not been furnished with copies of the [medical] reports .. . after written requests].”

Items (1) and (3) above are not at issue. Sam alleged in his petition that he did not receive proper medical attention when he had been temporarily refused admission to Opelousas General Hospital because some previous bills remained unpaid. At trial it was shown that Sam had been instructed by his physician to have weekly blood tests for the purpose of detecting blood clots that might develop. On the first of these visits to the hospital he was refused admission. The next day, however, he was admitted for the tests, apparently as a result of his physician’s intervention. We do not deem this one instance significant in determining whether Sam was furnished proper medical attention. Sam’s medical treatment was not seriously disrupted, and he had otherwise received proper treatment. The evidence reflects no harm came of this brief delay, nor did the delay jeopardize Sam’s health. The petition does not otherwise allege failure by the employer to furnish proper medical attention. In view of the failure of plaintiff to make any of the required allegations, we find that the trial court erred in failing to sustain the exception of prematurity.

The record clearly reflects that Sam had always been furnished proper medical attention. In the case of Cooley v. Liberty Mut. Ins. Co., 346 So.2d 1352 (La.App. 3rd Cir. 1977), writ den., 350 So.2d 903 (La. 1977), the court, sustaining an exception of prematurity, addressed this issue as follows:

“In determining whether a suit should be dismissed on an exception of prematurity under LSA-R.S. 28:1314, the test is not whether the employer has refused to pay the medical bills incurred, but instead it is whether ‘the employee has been furnished the proper medical attention.’ Jack v. Fidelity and Casualty Company of New York, 306 So.2d 806 (La.App. 3 Cir. 1975); Moore v. American Motorist Insurance Company, 216 So.2d 674 (La.App. 3 Cir. 1968); Cucote v. Harris, 335 So.2d 91 (La.App. 3 Cir. 1976).”

Sam was admittéd to the Opelousas General Hospital on several occasions. According to the hospital director, on each admission, Standard was informed by telephone and each time Standard agreed that it would be responsible for the medical expenses.

This court, in the very recent case of Dove v. Liberty Mutual Insurance Co., 379 So.2d 1193 (1980), faced with the same issue presented herein, and similar facts, reversed the trial court and sustained the exception of prematurity, concluding as follows:

‘‘In the instant case there has been no showing of a failure to furnish proper medical attention. This being considered together with the fact that plaintiff continues to be paid all benefits to which she is entitled under the workmen’s compensation act it is axiomatic that her suit is premature. Accordingly, we conclude that the exception of prematurity should have been sustained and plaintiff’s suit dismissed. ”

Since Sam failed to make the proper allegations and we have determined the allegation of failure to provide medical attention is not justified, the exception of prematurity should have been sustained and the suit dismissed as of non-suit.

Plaintiff seeks to recover penalties and attorney’s fees under LSA-R.S. 23:1201.2, alleging Standard’s refusal to pay medical expenses was arbitrary and capricious or without probable cause.

Since we have determined that the suit should be dismissed as premature we must reverse the award of penalties and attorney’s fees.

We have previously held that LSA-R.S. 22:658, providing for award of penalties and attorney’s fees against insurers, does not allow penalties where the main demand is premature. Moore v. American Motorist Insurance Company, 216 So.2d 674 (La.App. 3rd Cir. 1968), writs den., 218 So.2d 902 (La.1969). As stated in Roberie v. Ashy Construction Company, 215 So.2d 857 (La.App. 3rd Cir. 1968), writs den., 217 So.2d 414 (La.1969):

‘‘The penalty statute applicable to insurers, LSA-R.S. 22:658, is essentially the same as that applicable to uninsured employers, LSA — R.S. 23:1201.2, and hence jurisprudence construing one statute is persuasive in construing the other. Plaisance v. Collins Industries, Inc., 193 So.2d 876.” Footnote (7), page 864.

We conclude therefore that, since the penalty statute LSA R.S. 23:1201.2 is essentially the same as LSA R.S. 22:658, penalties and attorney’s fees cannot be awarded under LSA R.S. 23:1201.2 when the main demand is premature.

For the reasons assigned, the judgment of the trial court is reversed and. the plaintiff’s suit is ordered dismissed as of non-suit. Plaintiff appellee is assessed costs at the trial level and on appeal.

REVERSED AND RENDERED.

STOKER, J., concurs and assigns written reasons.

■ FORET, J., dissents and assigns written reasons.

LABORDE, J., dissents.

STOKER, Judge,

concurring.

I concur in the majority opinion because I believe it correctly states the law as it has crystalized in jurisprudence. Nevertheless, this case and the Cooley case cited in the majority opinion illustrate that under the established jurisprudence an injured worker may be put to the expense, trouble and delay of a law suit in order to put an end to the dalliance of an employer or compensation carrier. Under the present law delay or tardiness in payment of medical expenses by one who owes them is sanctioned. All an employer or insurer need do after a suit is filed is pay the medical expenses, and the plaintiff worker will be undone by a plea of prematurity. When such a plea of prematurity is filed the plaintiff is met with the settled law that “the test is not whether the employer has refused to pay the medical bills incurred, but instead it is whether the employee has not been furnished the proper medical attention.” Under such circumstances the injured worker forced to sue is not entitled to penalties and attorney’s fees. Still worse, the plaintiff has to bear the costs of the abortive suit. Jack v. Fidelity & Casualty Company of New York, 306 So.2d 806 (La.App. 3rd Cir. 1975); Moore v. American Motorist Insurance Company, 216 So.2d 674 (La.App. 3rd Cir. 1968), writ refused, 218 So.2d 902 (La.1969); Dugas v. Houston Contracting Company, 191 So.2d 178 (La.App. 3rd Cir. 1966); Cucote v. Harris, 335 So.2d 91 (La.App. 3rd Cir. 1976); Cooley v. Liberty Mutual Ins. Co., 346 So.2d 1352 (La.App. 3rd Cir. 1977), writ denied, 350 So.2d 903 (La.1977) and Dove v. Liberty Mutual Ins. Co., 379 So.2d 1193 (La.App. 3rd Cir. 1980). In fact the employer or insurer obligated to pay for medical treatment does not have to pay for the medical expenses to maintain an exception of prematurity. All such an obligor need show is that it authorized the medical services.

We may gather from the jurisprudence in this area that, if the provider of medical services furnishes them to the injured worker (to use the statutory language), because of assurances by the obligor that the obligor will pay for them, then this is deemed equivalent to furnishing medical services by the obligated employer or insurer. In other words, the rationale of the developed jurisprudence is that if the obligor enables the workman to obtain medical attention, it has been “furnished” to him, and the injured worker has no concern or interest as to when the obligor actually pays for the medical services.

Our prevailing theory raises several serious questions. Could the employee be held liable for the services if the obligor never pays for them? Suppose prescription runs on medical claims. Will the authorization given by an obligor to a medical provider to give medical services serve to interrupt prescription? Can we truly say, where injuries of a worker require extended treatment, that nonpayment of the accrued expenses does not hamper or inhibit the worker from obtaining continued service? Finally, can we truly say, where an obligor admits liability for medical services but fails to pay for them over a long period of time, that the obligor has “furnished” medical services? Why should the worker be left in the lurch?

It appears to me that in focusing always on the facts as they exist at the time of trial of exceptions of prematurity, rather than the overall facts, we may fail in certain cases to give effective meaning to the word “furnished” as employed in LSA-R.S. 23:1314. This statute provides that a workmen’s compensation suit is premature unless “the employee has not been furnished the proper medical attention.”

Perhaps in the case before us we have simply been presented with a case of hard facts failure to pay medical expenses for an injury in November or December of 1976 until after suit is filed on July 11, 1978. In view of the settled nature of the jurisprudence, I think adherence to the settled rule is proper. Any change or emendation of our interpretation of the statutory language in question is a matter which should be left to legislative action.

FORET, Judge,

dissenting.

My research is this case reveals a series of cases, including some of our own, which lead to the inevitable conclusion that quite possibly we have made inconsistent remarks in Cooley v. Liberty Mutual Insurance Co., 346 So.2d 1352 (La.App. 3 Cir. 1977), writ denied, 350 So.2d 903 (La.1977); Dove v. Liberty Mutual Insurance Company, 379 So.2d 1193 (La.App. 3 Cir. 1980), and in Cucote v. Harris, 355 So.2d 91 (La.App. 3 Cir. 1976). In Cooley, in which I was a member of the panel, we stated:

“In determining whether a suit should be dismissed on an exception of prematurity under LSA-R.S. 23:1314, the test is not whether the employer has refused to pay the medical bills incurred, but instead it is whether the employee has been furnished proper medical attention.”

However, in Cooley, we said that the record did not show whether all of the medical expenses incurred by plaintiff had been paid by defendants, and we held therefore that our judgment sustaining the exception of prematurity and dismissing the suit did not prevent plaintiff from maintaining another action against defendants to recover any other medical or hospital expenses incurred by plaintiff for treatment of the above injuries, which may be due by defendants and are still unpaid or unreimbursed. Although I was on the panel, and signed this decision, there certainly seems to be an obvious inconsistency in our judgment. This inconsistency now bothers me a good deal.

I make mention some other cases which have held that an employee’s claim for medical expenses does not exist outside the workmen’s compensation statute, and the time within which to claim medical expenses is accordingly governed by the statute and that an employee’s claim for medical expenses must be brought within one year of the last medical payment. See Rowley v. Lumberman’s Mutual Casualty Company, 2A1 So.2d 135 (La.App. 2 Cir. 1971), writ refused June 21, 1971; Blanchard v. Liberty Mutual Insurance Company, 280 So.2d 592 (La.App. 3 Cir. 1973); Brown v. Travelers Insurance Company, 247 La. 7, 169 So.2d 540 (1964).

Again, in Andrus v. Employers Insurance of Wausau, 348 So.2d 1337 (La.App. 3 Cir. 1977), we again said that there was no showing of a failure to furnish medical attention, and the suit was therefore premature, “however, medical expenses which have not been paid may be demanded in an independent action,” citing Blanchard v. Liberty Mutual Insurance Company, supra, and that particular portion of the opinion in Cooley.

It seems to me, however, that a claim for unpaid medical expenses may be demanded by plaintiff even though he is being paid weekly benefits, and therefore precluded from (a) filing a suit for weekly benefits, or (b) from lumping together a lawsuit for both weekly benefits and medical expenses. In order to reconcile these cases, we can hold that a claimant who is drawing weekly compensation benefits can nevertheless maintain a separate action for unpaid medical expenses independent of any proceedings concerning his extent of disability, etc. If we are going to say that Cooley, Andrus, Cucóte, etc. mean that a plaintiff can never file suit for unpaid medical expenses, as long as he is receiving medical treatment, then we run into the problem of peremption/prescription mentioned in Blanchard and Prejean v. Travelers Insurance Company, 234 So.2d 527 (La.App. 3 Cir. 1970). LSA-R.S. 23:1209 certainly sets out a per-emptive period within which the claimant must file suit for medical expenses or his cause of action will be prescribed, even though he may be drawing weekly compensation benefits. I think what I am really trying to say here is that we cannot insinuate that the legislature was so inept as to mean that LSA-R.S. 23:1314 declares premature any action by a claimant for unpaid medical expenses to which he is entitled, as long as he is furnished proper medical attention; whereas, on the other hand, the legislature in LSA-R.S. 23:1209 says that a claim for unpaid medical expenses by an employee must be brought within one year from the incurring of these expenses, or his claim will be perempted or prescribed, and he will forever lose his cause of action for such unpaid medical expenses. I simply cannot believe that the legislature intended such an absurd result.

In Blanchard, supra, we said, at page 598:

“Our jurisprudence is settled that medical expenses do not constitute a part of “compensation,” that a demand for medical expenses can be independently asserted, and that such a demand is controlled by the prescription or peremption provided in LSA-R.S. 23:1209. Brown v. Travelers Ins. Co., 247 La. 7, 169 So.2d 540 (1964). The “payment” necessary to interrupt prescription of a claim for medical expenses is a medical payment. [In other words, payment of weekly compensation benefits does not interrupt prescription as to medical expenses.] Prejean v. Travelers Insurance Company, 234 So.2d 527 (La.App. 3 Cir. 1970).
In the instant suit more than one year elapsed between the medical payment made on February 4, 1969, and the one made on March 10, 1970. The trial judge thus correctly determined that plaintiff’s right to claim medical expenses was lost by prescription.”

A conclusion can be drawn then, based on Blanchard, that all that Standard Fittings was legally required to pay was the medical expenses incurred during the year before suit was filed. I have found nothing in the record to show that Standard Fittings ever acknowledged, in writing, either to Opelou-sas General Hospital, Dr. Granger, or any other doctors, or to the plaintiff, that they waived prescription, and acknowledged the debt. The only evidence in the record to that effect is that hospital employees testified that upon each admission to the hospital, that they called Standard Fittings and that someone at Standard Fittings said they would be responsible for the bill. The same testimony is applicable to the bill of Dr. Granger. However, again, we have nothing in writing, nothing but telephone conversations, until after suit was filed. On the contrary, the employees of Opelousas General repeatedly admonished plaintiff that if Standard Fittings did not pay the bill, he would be personally responsible; and also discussed the delinquent account with him on several occasions. So, it appears to me that the rationale of Blanchard and the cases cited therein is that a compensation plaintiff certainly must have a right to file suit for unpaid medical expenses at least before prescription runs.

DID EMPLOYER FURNISH PROPER MEDICAL ATTENTION?

The majority reverses the trial court and sustains defendant’s exception of prematurity on the grounds that a workmen’s compensation suit will be timely where “the employee has not been furnished the proper medical attention”, implying that if the employee is furnished proper medical attention, a suit by him for payment for these expenses will be premature. That may be well and good, however, I am of the opinion that in this case, where plaintiff was injured in November of 1975, and not one cent of medical expenses was paid by the employer until September 6, 1978, (2 months after filing of suit) two years and some ten months after the accident, at which time medical expenses totalled $41,-590, that by any stretch of the imagination can the employer be said to have “furnished medical attention” to the plaintiff. Plaintiff’s doctors and Opelousas General Hospital furnished him medical attention .. . not the employer. When this reasoning is applied to the prescriptive period of one year, resulting in almost two years of plaintiff’s right to recover medical expenses being prescribed, then I fail to see how the employer “furnished medical attention” to this claimant. See the comments on this point made by Judge Stoker in his concurring opinion herein.

For the above reasons, I respectfully dissent. As we said in Southern Builders, Inc. v. Carla Charcoal, Inc., 357 So.2d 638 (La.App. 3 Cir. 1978), writ denied 358 So.2d 632 (La.1978), quoting Justice Frankfurter in Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13, 99 L.Ed. 11 (1954): “justice must satisfy the appearance of justice”. The result in this ease certainly, in my mind, does not “satisfy the appearance of justice”.

      . Cooley v. Liberty Mutual Ins. Co., 346 So.2d 1352 (La.App. 3rd Cir. 1977), writ denied, 350 So.2d 903 (La.1977).

      . I recognize Ancelet v. Moreno’s Air Conditioning, 331 So.2d 127 (La.App. 3 Cir. 1976) where a panel of this Court held exactly the opposite of Blanchard, supra, and picked up a dissenting opinion in a La. Supreme Court ^
      [2] Harris v. Traders & General Insurance Company, 200 La. 445, 8 So.2d 289 (1942).
      case to hold that the prescriptive period did not apply. Of course no writs were applied for in Ancelet, and I have grave doubts that Ancelet is correct in view of La.R.S. 23:1209.

      . I might mention that not only did claimant have to hire a lawyer to get his medical expenses paid, he also has been condemned to pay the court costs incurred herein, both at trial level and on appeal. On the other hand, the employer enjoyed a substantial economic benefit by hanging on to its money for the time for which it did — it probably either earned interest, or avoided payment of interest in a sufficient amount to pay its own lawyers to defend this suit.


source: Caselaw Access Project

author: DOUCET, Judge.

license: Public Domain

text:
    Michael L. GLAZE, Plaintiff-Appellee, v. Kimberly Ellsworth Tarver GLAZE, Defendant-Appellant.
    No. 7698
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1980.
    Broussard, Bolton & Halcomb, Daniel E. Broussard, Jr., Alexandria, for defendant-appellant.
    Kramer & Laird, Bernard Kramer, Alexandria, for plaintiff -appellee.
    Before CULPEPPER, SWIFT and DOU-CET, JJ.
   DOUCET, Judge.

Michael L. Glaze brought this suit to annul his marriage to defendant, Kimberly Ellsworth Tarver Glaze, on the ground that defendant’s divorce from her previous husband is an absolute nullity. Defendant filed the peremptory exception of res judi-cata, alleging that the full faith and credit clause of the United States Constitution bars plaintiff from attacking the Arkansas divorce decree. Following a trial, the trial judge overruled defendant’s exception and rendered judgment in plaintiff’s favor, declaring the marriage a nullity. Defendant appeals.

The only issue on appeal is whether the trial judge erred in overruling the exception of res judicata. For the following reasons, we find that he did, and we reverse.

The facts are not disputed. Defendant was married to Gary L. Tarver on December 20, 1977. On September 13, 1978, she filed suit for divorce in the Chancery Court, Union County, Arkansas. Neither defendant not Tarver were domiciled in, or residents of the State of Arkansas at that time. Nevertheless, she alleged in her petition that she had been a resident of Arkansas for more than 60 days. On the same date, Tarver executed a waiver of service and entry of appearance, which was filed into the record on October 25, 1978, when the matter was tried. After hearing the testimony of two witnesses, the court rendered and signed a decree of final divorce.

The Louisiana Supreme Court dealt with a similar situation in Boudreaux v. Welch, 249 La. 983, 192 So.2d 356 (1966). That case involved a wrongful death action brought by the plaintiff, who claimed to be the widow of the decedent. The defendant challenged her right to bring the suit, alleging that the plaintiff’s marriage to the decedent was an absolute nullity, because her Mississippi divorce from her previous husband was void for lack of jurisdiction. The evidence established that neither the plaintiff nor her first husband were ever domiciled in Mississippi. However, the plaintiff had filed suit in Mississippi, and her previous husband had executed a waiver of service and entry of appearance in conformance with Mississippi law. Our Supreme Court held that that case was controlled by the holding of the United States Supreme Court in Johnson v. Muelberger, 340 U.S. 581, 71 S.Ct. 474, 95 L.Ed. 552, (1951), wherein the Court stated:

“It is clear from the foregoing that, under our decisions, a state by virtue of the clause must give full faith and credit to an out-of-state divorce by barring either party to that divorce who has been personally served or who has entered a personal appearance from collaterally attacking the decree. Such an attack is barred where the party attacking would not be permitted to make a collateral attack in the courts of the granting state.”
“When a divorce cannot be attacked for lack of jurisdiction by parties actually before the court or strangers in the rendering state, it cannot be attacked by them anywhere in the Union. The Full Faith and Credit Clause forbids.”

Applying the rule enunciated in Muelberger to the facts in Boudreaux v. Welch, supra, our Supreme Court stated:

“This is exactly the case here. Mr. Mire, plaintiff’s first husband, filed in the record in the Mississippi divorce proceedings a waiver of summons and entry of appearance. Issue was thus joined and this was sufficient to foreclose the jurisdictional question as res judicata. The filing of the waiver of summons and entry of appearance pursuant to Chapter 244, Mississippi Laws of 1936, after the institution of the divorce proceeding rendered the judgment unassailable as to Mr. Mire. In other words, by his entry of appearance he had an opportunity to litigate the jurisdictional question and this is all that is necessary in order for the Full Faith and Credit Clause to apply.
“It was not obligatory, as the Court of Appeal believed, for Mire to have resisted the granting of the divorce. Indeed, Johnson v. Muelberger does not indicate that active participation by the defendant is necessary. On the contrary the basic element which bars collateral attack here is that the rendering State will not permit such an attack and considers the matter res judicata.” (Emphasis added. Footnotes omitted.)

The trial judge distinguished the case at hand from Boudreaux on the ground that Tarver’s waiver was ineffective, because it was obtained prior to the commencement of the action. He concluded that since the petition and the waiver were filed simultaneously, the waiver had to have been executed prior to that time. However, as we noted earlier, the record shows that although the waiver was executed on September 13, 1978, when the petition was filed, it was not entered into the record until October 25, 1978, when the case was tried. Thus, it might have been executed after the suit was brought. Furthermore, we are not convinced that the simultaneous filing of the petition and the waiver would necessarily have rendered the waiver ineffective.

The trial judge apparently relied on language used by the Court in Boudreaux to distinguish the earlier case of Eaton v. Eaton, 227 La. 992, 81 So.2d 371 (1955). That case also involved a dispute over the validity of an Arkansas divorce decree. As in this case, the residency’ requirements of that state had not actually been fulfilled. A waiver of summons and entry of appearance had been executed by the defendant spouse, but it had never been filed into the record. It was held that the Arkansas judgment was assailable in that case, because the issue of jurisdiction had not been litigated.

In distinguishing Eaton, the Boudreaux court noted at the outset that the issue of Mrs. Eaton’s. right to assail the Arkansas divorce judgment had not been questioned in that case. Thus, Johnson v. Muelberger, supra, was not applicable. Secondly, it noted that the waiver had not been filed into the record in that case. In concluding, the court stated the following:

“Moreover, assuming that the Arkansas statute is substantially the same as the Mississippi statute, the waiver of summons and entry of appearance in the Eaton case would have been legally ineffectual since it was executed prior to the day on which the divorce suit was filed in the Arkansas court.” (Emphasis added).

The trial judge apparently relied on that language in arriving at his conclusion about the effectiveness of the waiver.

Since it has not been shown that the waiver was executed prior to the filing of the suit, any conclusions that we might draw about the effectiveness of prior obtained waivers would be unnecessary and inappropriate. However, we note that in a similar case, in which it was shown that the petition and waiver were filed together, our brethren of the Second Court held that the Arkansas divorce decree could not be collaterally attacked.

In light of the holding in Boudreaux v. Welch, supra, we conclude that the Arkansas judgment in this case is entitled to full faith and credit. Accordingly, the judgment of the district court in favor of the plaintiff, Michael Glaze, and against the defendant, Kimberly Glaze, declaring their marriage a nullity, is reversed and set aside. Judgment is rendered in favor of the defendant, sustaining her exception of res ju-dicata, and dismissing the plaintiff’s suit at his cost. The costs of this appeal are assessed against the plaintiff-appellee.

REVERSED AND RENDERED.

      . Reeves v. Reeves, 209 So.2d 554 (La.App. 2nd Cir. 1966).


author: SWIFT, Judge.

text:
    Charles Wayne HIGGINBOTHAM et al., Plaintiffs-Appellants, v. GENERAL MOTORS CORPORATION et al., Defendants-Appellees.
    No. 7707.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1980.

      William J. F. Gearheard, Lafayette, Martzell & Montero, Wilson M. Montero, New Orleans, for plaintiffs-appellants.
    Voorhies & Labbe, D. Mark Bienvenu, Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Timothy J. McNamara, Lafayette, Dubuisson, Brinkhaus & Dauzat, James G. Dubuisson, Stephen J. Ledet and Bruce A. Gaudin, Opelousas, Lemle, Kelle-her, Kohlmeyer & Mathews, Allen R. Fontenot, New Orleans, for defendants-ap-pellees.
    Before GUIDRY, SWIFT and DOUCET, JJ.
   SWIFT, Judge.

The plaintiffs-appellants, Charles Wayne Higginbotham, Georgia M. Martin and Henrietta Richard, brought this suit against General Motors Corporation, Goodyear Tire & Rubber Company, Roy Motors, Inc. and Kelsey-Hayes Company, seeking damages for personal injuries sustained as a result of a one -car accident. Cavalier Insurance Company intervened asserting its subrogation claim as the collision insurer of the automobile. Goodyear Tire & Rubber Company and Kelsey ■ Hayes Company were dismissed from the suit on motions for summary judgment. After a trial on the merits against the remaining defendants, General Motors Corporation and Roy Motors, Inc., the court held that the plaintiffs failed to prove these defendants were negligent or that any defect in the vehicle caused the accident. From that adverse judgment, the plaintiffs have appealed. We affirm.

MOTION TO DISMISS THE APPEAL

General Motors Corporation has filed a motion to dismiss the appeal against it on the ground that plaintiffs’ brief is directed solely to that portion of the lower court’s judgment which dismissed co-defendant, Roy Motors, Inc., from the litigation. They also state that the brief of co-defendant Roy Motors, Inc. does not specify any error in the judgment with respect to the dismissal of General Motors Corporation.

We find the alleged grounds for dismissal to be without merit. The fact that neither of the other two parties involved in this litigation argued that the dismissal of the suit against General Motors Corporation was improper is hot a ground for dismissal. Such a failure to argue may well indicate that the trial court properly dismissed the suit against General Motors Corporation, but does not limit our consideration of the case. The plaintiffs named General Motors Corporation as a defendant and have appealed from the trial court’s dismissal of them as well as the dismissal against co-defendant, Roy Motors, Inc. Therefore, all the parties are presently before us on this appeal.

We base our decision on several general principles. It is well settled that appeals are favored in the law and should be disallowed or declared abandoned only for substantial cause. Charles C. Cloy, Gen. Con., Inc. v. DiVincenti Bros., Inc., 308 So.2d 493 (La.App. 1 Cir. 1974). Also, the courts of appeal have the authority to render any judgment which is proper on the record regardless of the legal point that is made by the parties. Givens v. Richland Morris Agency, Inc., 369 So.2d 1184 (La.App. 2 Cir. 1979). Finally, we note that LSA-C.C.P. Art. 2164 states that the appellate courts should render any judgment which is legal and proper based on the record. The comments to that article indicate that its purpose is to give freedom to the courts of appeal to do justice based on the record, regardless of whether or not a particular legal point is made.

Therefore, the motion to dismiss is denied.

THE MERITS

The appellants urge that the trial court erred in failing to find negligence on the part of Roy Motors and a causal relationship between its alleged negligent service or repair of the vehicle and the accident. Their position is that the trial court erred in failing to properly apply the rules of circumstantial evidence. It is their theory that the accident occurred due to excessive vibrations which caused the 1975 Starfire Oldsmobile to run off the road and strike the culverts.

While there is some evidence in the record that indicates that the car’s wheel rims may have been abused during the mounting procedure, the trial court did not find that this was a cause in fact of the accident.

The facts are that on the morning of October 5, 1975 at about 4:55 a. m. the plaintiffs were en route to a barber shop in Opelousas for the ladies to have their hair done before a hair styling show that they were to attend later in the morning. The car in which they were riding was owned and driven by Mr. Higginbotham, a hair stylist, who had picked up the other two plaintiffs at lounges early that morning. Each of the plaintiffs admitted having something alcoholic to drink prior to the accident, but testified that it was not substantial. They were proceeding toward the south on U.S. Highway 167 and were a short distance north of the corporate limits of Opelousas when the accident occurred as the highway curves slightly. According to the state trooper who investigated the accident, their automobile left the roadway approximately 100 feet before it struck a set of concrete culverts and then traveled another 50 feet where it came to rest in a ditch at an intersection.

The trial court gave the following reasons for denying the plaintiffs’ recovery:

“Having considered the evidence and the arguments of counsel, I am of the opinion that the plaintiffs have failed to prove by preponderance of the evidence any negligence of General Motors Corporation or Roy Motors, Incorporated, or that any defect in the vehicle being driven by Charles Wayne Higginbotham at the time of the accident, caused or contributed to the accident under consideration. On the contrary, the testimony of the state policeman of the physical facts as borne out by his investigation of the accident serve to convince that Mr. Higginbotham simply failed to negotiate a curve and drove his vehicle straight off the highway into a culvert with resulting damages and injuries suffered by the occupants of the automobile.” (Emphasis added.)

The standard of review in a factual dispute such as the one before us is explained in Canter v. Koehring, 283 So.2d 716 (La.1973):

“When there is evidence before the trier of fact 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.”

In Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), the supreme court defined manifestly erroneous as meaning clearly wrong.

We cannot say that the court was clearly wrong in its determination that the negligence of Mr. Higginbotham was the sole cause of this accident.

For the foregoing reasons, the judgment of the district court is affirmed. All costs of this appeal are taxed to the plaintiffs-appellants.

AFFIRMED.


text:
    William Keith FUSILIER, Plaintiff-Appellee, v. DEPARTMENT OF PUBLIC SAFETY, Defendant-Appellant.
    No. 7709.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1980.
    William Keith Fuselier, in pro. per.
    Robert L. Roshto, Baton Rouge, for defendant-appellant.
    Tate & Tate, Paul C. Tate, Jr., Mamou, for plaintiff-appellee.
    Before GUIDRY, SWIFT and DOUCET, JJ.
   DOUCET, Judge.

The Louisiana Department, of Public Safety has taken this appeal from a judgment of the district court granting the plaintiff a restricted driver’s license under LSA-R.S. 32:415.1.

Plaintiff, William Keith Fuselier, was convicted of operating a motor vehicle while under the influence of intoxicating beverages in Allen Parish in 1974, in Evangeline Parish in 1976, and in Evangeline Parish in 1979. After defendant’s second conviction in Evangeline Parish his license was suspended for one year. Plaintiff instituted the present action seeking a restricted driving license after his license was suspended for the aforesaid one year period.

The Department contends that since plaintiff’s license had been suspended on two prior occasions he is not eligible for a restricted driver’s license. We agree.

LSA-R.S. 32:415.1 A(l) expressly provides that a restricted license for economic hardship can only be issued where the applicant’s driver’s license has been suspended, revoked, or cancelled “for the first time only” under LSA-R.S. 32:414B, C, D, E and LSA-R.S. 32:415.

Mr. Fusilier admitted at trial that his license had been suspended on two prior occasions as a result of DWI convictions. Since the applicant’s driver’s license has been suspended on two prior occasions, the district judge lacked authority to issue a restricted license. Bradley v. State of Louisiana., Department of Public Safety, 372 So.2d 1259 (La.App. 3rd Cir. 1979); Howard v. Louisiana Department of Public Safety, 360 So.2d 228 (La.App. 1st Cir. 1978).

For the above and foregoing reasons, the judgment of the trial court is reversed and judgment is rendered in favor of the State of Louisiana, Department of Public Safety, dismissing plaintiff’s suit. Costs of this appeal are assessed against appellee.

REVERSED AND RENDERED.


text:
    Milbert ST. AMAND, Plaintiff-Appellant, v. Larry Joseph ZERANGUE et al., Defendants-Appellees.
    No. 7722.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1980.
    Morrow & Morrow, Patrick C. Morrow, Opelousas, for plaintiff-appellant.
    DeJean & DeJean, Robert F. DeJean, Jr., Sandoz, Sandoz & Schiff, C. L. B. Sandoz, Jr., Opelousas, for defendants-appellees.
    Before GUIDRY, SWIFT and DOUCET, JJ.
   SWIFT, Judge.

Plaintiff, Milbert St. Amand, instituted this suit to compel specific performance of an option to purchase which he allegedly exercised. Made defendants were the owners of the property: Larry and Dianna Ze-rangue, Aldest and Felicion Zerangue, and Pershing and Beatrice Wimberly (Lessors) and Dianne Cooke Tevault.

The facts are that on January 26, 1977, the Lessors leased to Dianne Tevault certain immovable property in Opelousas for the operation of a lounge for a primary term of five years, beginning January 10, 1977, and ending January 10, 1982. The stipulated rental was $300.00 per month, payable on or before the first of each month. The lease also contained the following provision:

“As further consideration, Lessee is hereby granted an Option to Purchase the above described property and all buildings and improvements thereon, on/or before the tenth (10th) day of January, 1979, for the full sum and amount of Thirty-Three Thousand and no/100 ($33,-000.00) Dollars, the monthly rentals paid by Lessee to Lessors as consideration for this lease, to be deducted and subtracted from the purchase price should Lessee decide to exercise the Option to Purchase, it being further understood between Lessee and Lessors that the consideration to be paid should Lessee exercise the Option to Purchase shall be paid by Lessee to Lessors in cash.”

On April 4,1977, Ms. Tevault entered into an agreement with plaintiff in which the latter agreed to lend Tevault the sum of $20,000.00, repayable in monthly installments, to remodel and stock the lounge. This contract also contained the following provision:

“In the event of non-payment of the monthly installment by the Debtor, the Creditor will have the first option to purchase the business including the name, equipment and good will in order to protect his investment, with the purchase price to be negotiated at the time of the exercising of the option. Included in this option is the right to purchase the property on which the business establishment is located which said option is presently available to the debtor.”

In September, 1977, Tevault sent a check for the September rent to the Lessors. However, it was returned to the latter twice because of insufficient funds. Aldest Zerangue attempted to contact Ms. Tevault, but was unable to locate her. The October rent was not paid when due.

On October 6, 1977, the Lessors sent Te-vault a letter notifying her that the lease had terminated for her failure to pay the September and October rent. She was directed to vacate the premises within five days of receipt of the letter.

After some negotiations wherein both sides were represented by counsel, to avoid filing eviction proceedings Ms. Tevault signed a letter to the Lessors admitting her default under the lease and requesting the execution of a new lease. Also, it was agreed that she would pay the amount of the rent owed for September and October and a new lease would be granted.

On November 4, 1977, the $600.00 was paid by check (later returned “N.S.F.”, but made good) and a second lease covering the same property was entered into between Dianne Tevault and the Lessors at a monthly rental of $300.00 for a primary term of 1 year beginning November 1, 1977. This lease included the right to renew for three additional five year periods at increased monthly rentals. It also granted the lessee the option to purchase the leased property for the sum of $35,000.00 during a six-month period from November 1, 1977, through May 1, 1978.

By letter dated December 19, 1978, the plaintiff informed the Lessors that he had been assigned the option to purchase under the first lease and he was exercising the option. The Lessors refused to convey the property to plaintiff and this suit followed.

In J. F. Audrer Laboratories v. Deas, 223 La. 923, 67 So.2d 179 (La.1953), our supreme court ruled that an assignee of an option to purchase leased premises stands in the shoes of the original optionee. The principal question presented in the instant ease therefore is whether Ms. Tevault could have exercised the first lease’s option to purchase on December 19, 1978.

In rejecting plaintiff’s demands, the trial judge found that the second lease entered into between the Lessors and Tevault on November 4, 1977, superceded the first lease. The plaintiff contends, however, that the first lease was still in existence on December 19, 1978, because Ms. Tevault paid the arrearages due under the first lease on November 4,1977, when the second lease was executed. His position is that the acceptance of this late payment and the Lessors’ acquiescence in similar conduct in the past amounted to a waiver of the right to insist on punctual payment of the rentals. In addition he relies on authority to the effect that after a notice to vacate has been given a landlord’s acceptance of rent for a period beyond the date of the lease’s termination vitiates the notice.

These rules of law in our opinion are inapplicable to this case. Although Ms. Te-vault paid arrearages due under the first lease on November 4, 1977, this was not done simply as payment of the September and October rentals. Testimony at trial revealed that the lessors required Ms. Te-vault to pay the arrearages under the first lease as part of the consideration for granting a new lease. Although the second lease does not specifically state that the first lease had terminated, it is clear that it had and the parties, Ms. Tevault and the Lessors, recognized this to be the case. Otherwise, there was no necessity for execution of the second lease. It is likewise certain that there was no collusion or intent on the part of the parties to deprive the plaintiff of any right which he may have had to the option. The first lease simply terminated for failure to pay timely the September and October rentals. LSA-C.C. Articles 2710 and 2712. The Lessors did not condone these violations of the lease or waive the right to complain of such breaches by accepting the $600.00 on November 4, 1977, because there is no indication that they thereby impliedly consented to so modify the lease. Illinois Cent. R. Co. v. International Harvester, 368 So.2d 1009 (La.1979).

As stated, under the jurisprudence where a lease and option to purchase are part of the same agreement, the option is in full force and effect only as long as the lease is in full force. Smith Enterprises, Inc. v. Borne, 245 So.2d 9 (La.App. 1 Cir. 1971). In the present action, since the January, 1977, lease had terminated prior to November 4, 1977, when the second lease was entered into, the option granted in the first lease also terminated with that lease. Thereafter, Ms. Tevault could not have exercised the option to purchase granted under the first lease and her assignee of the option had no greater right to exercise such option. Mr. St. Amand’s attempted exercise of the option on December 19, 1978, therefore had no effect. The trial judge correctly rejected the plaintiff’s demands.

Although there appears to be merit in the Lessors’ contention that their exception of no cause of action should have been sustained, it is unnecessary for us to rule in this respect in view of the conclusion we have reached on the merits.

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

AFFIRMED.


author: CUTRER, Judge.

text:
    Woodrow W. RIVERS, Plaintiff-Appellant-Appellee, v. SCHLUMBERGER WELL SURVEYING CORP., et al., Defendants-Appellees-Appellants.
    No. 7729.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1980.

      James A. Cobb, Jr., New Orleans, for defendant-appellee-appellant.
    Francis Emmett, New Orleans, George J. Dowd, Chalmette, for defendant-appellant-appellee.
    Führer & Flournoy, Leonard Führer, Alexandria, and Rivers & Willson, Larry Rivers, Alexandria, for plaintiff-appellee-ap-pellant.
    Before CULPEPPER, DOMENGEAUX and CUTRER, JJ.

      . The proper title of Schlumberger Well Surveying is Schlumberger Well Services, a Division of Schlumberger Technology Corporation.

   CUTRER, Judge.

Woodrow W. Rivers brought this suit under the Jones Act and General Maritime Law against Schlumberger Well Surveying Corporation (Schlumberger), Elevating Boats, Inc. (Elevating Boats) and Meldeans, Inc. (Meldeans) for losses due to injuries received when Rivers fell into a hole, or washout, near the dock where the vessel “Billiot” was berthed. The petition alleged that he was jointly employed by the three defendants as a seaman serving aboard the Billiot. He alleges that each defendant was his employer within the meaning of the Jones Act.

Schlumberger answered and filed a third party demand against Elevating Boats claiming that under the provisions of a contract between Schlumberger and Elevating Boats, Elevating Boats should indemnify Schlumberger for claims such as that of Rivers. Schlumberger also seeks attorney’s fees for defending the suit.

Schlumberger states in their brief that Elevating Boats and Meldeans filed a third party demand against Schlumberger seeking indemnity for any liability to Rivers that they might incur. Such demand, however, does not appear in the record and we do not pass on same.

The trial court found Meldeans, but not Schlumberger or Elevating Boats, to be the Jones Act employer of Rivers. Judgment

was rendered in favor of Rivers and against Meldeans for $229,000.00 plus medical expenses and $750.00 travel expenses. The trial court did not rule on Schlumberger’s third party demand against Elevating Boats.

The issues presented by these appeals are as follows:

(1) Whether Schlumberger was an employer of Rivers at the time of the accident, within the meaning of the Jones Act;
(2) Whether Elevating Boats should be held liable on the ground that Meldeans was the alter ego of Elevating Boats;
(3) Whether Meldeans was liable for Rivers’ losses under the circumstances presented;
(4) Whether Rivers can recover from Schlumberger under Louisiana Tort Law;
(5) What disposition should be made of the third party demands of Schlumber-ger; and
(6) Whether the trial court correctly decided the quantum of damages.

The basic facts are that Woodrow Rivers was captain of the jack-up boat, Billiot. That vessel was owned by Meldeans. It was being used exclusively by Schlumber-ger, which provided the dock at which the Billiot was berthed. Rivers had been an employee of Elevating Boats until he requested a change of location so that he could be nearer his home. In response to that request, he was transferred to the employment of Meldeans as captain of the Billiot. Meldeans had an agreement with Elevating Boats by which Elevating Boats located rental customers for the two boats owned by Meldeans. For this service, Elevating Boats received six percent of the rentals paid for the services of Meldeans’ boats.

On the night of January 28, 1977, plaintiff left his boat to dispose of a can of paint chips which he had scraped from the engine room of the Billiot. He stepped off the stern of the Billiot onto a walkway (approximately 4 feet wide and 100 feet long) which was adjacent to the bank of Bayou Sycamore. Rivers crossed the walkway and proceeded to step onto the bank to empty the can of scrapings. He stepped across the hole and as he applied his weight to his foot on the bank of the hole, the bank gave way, causing him to fall into the hole. By the next morning, he was stiff and suffering pain. This started the medical history which was to culminate in spinal surgery, from which plaintiff has never fully recovered.

Before entering into a discussion of the issues we want to point out that our scope of review in this case is severely limited by federal law and we must confine ourselves to those limits in examining the trial judge’s findings. This court, in the case of Hocut v. Insurance Company of North America, 254 So.2d 108, 111 (La.App. 3rd Cir. 1971), writs ref’d, 256 So.2d 292 (La.1972), made the following observation in this regard:

“We deem it proper to point out, before beginning our discussion of the issues herein, that the scope of our review in Jones Act cases is the same as that accorded the Federal appellate courts. Trahan v. Gulf Crews, Inc., La.App., 246 So.2d 280; and cases cited therein. In Gallick v. Baltimore and Ohio Railroad Company, 372 U.S. 108, 83 S.Ct. 659, 9 L.Ed.2d 618, the Supreme Court of the United States in quoting from Tennant v. Peoria & P. U. R. Co., 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520 defined those limits as follows:
‘It is not the function of a court to search the record for conflicting circumstantial evidence in order to take the case away from the jury on a theory that the proof gives equal support to inconsistent and uncertain inferences. The focal point of judicial review is the reasonableness of the particular inference or conclusion drawn by the jury. It is the jury, not the court, which is the fact-finding body. It weighs the contradictory evidence and inferences, judges the credibility of witnesses, receives expert instructions, and draws the ultimate conclusion as to the facts. The very essence of its function is to select from among conflicting inferences and conclusions that which it considers most reasonable. Washington & Georgetown R. Co. v. McDade, 135 U.S. 554, 571, 572, 10 S.Ct. 1044, 1049, 34 L.Ed. 235; Tiller v. Atlantic Coast Line R. Co., supra, 318 U.S. [54] 68, 63 S.Ct. [444] 451 [87 L.Ed. 610], 143 A.L.R. 967; Bailey v. Central Vermont Ry., 319 U.S. 350, 353, 354, 63 S.Ct. 1062, 1064, 87 L.Ed. 1444. That conclusion, whether it relates to negligence, causation or any other factual matter, cannot be ignored. Courts are not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable.’ 321 U.S., at 35, 64 S.Ct. at 412.”

With those principles in mind, we proceed with the issues presented herein.

(1) Whether Schlumberger Was an Employer of Rivers at the Time of the Accident.

To recover under the Jones Act, an employee must show that he was a seaman at the time of accidental injury. Rivers’ status as a seaman at the time of injury is not disputed herein. The claimant must also establish an employer-employee relationship at the time of the injury. As to whether a claimant may have more than one employer under the provisions of the Jones Act, the recent case of Guidry v. South Louisiana Contractors, Inc., 614 F.2d 447, 452 (5th Cir. 1980), the court held as follows:

“A Jones Act claim also requires proof of an employment relationship either with the owner of the vessel or with some other employer who assigns the worker to a task creating a vessel connection, for ‘[b]y the express terms of the Jones Act an employer-employee relationship is essential to recovery.’ Spinks v. Chevron Oil Co., 507 F.2d 216, 224 (5th Cir. 1975). The employer need not be the owner or the operator of the vessel. Barrios v. Louisiana Construction Materials Co., 465 F.2d 1157 (5th Cir. 1972). Independent contractors may be liable under the Act, Mahramas v. American Export Isbrandtsen Lines, Inc., 475 F.2d 165, 171 (2d Cir. 1973); Barrios v. Louisiana Construction Materials Co., 465 F.2d 1157 (5th Cir. 1972). And a third person who borrows a worker may become his employer if the borrowing employer assumes enough control over the worker. Ruiz v. Shell Oil Co., 413 F.2d 310 (5th Cir. 1969). However, even if a seaman is deemed to be a borrowed servant of one employer, this does not automatically mean that he ceases to be his immediate employer’s servant for Jones Act purposes. Spinks v. Chevron Oil Co., 507 F.2d 216, 224 (5th Cir. 1975). It may also be possible for a seaman to have more than one Jones Act employer. Id. at 225-26.” (Emphasis ours)

Rivers contends that, not only was he an employee of Meldeans at the time of injury, he was also a borrowed employee of Schlumberger at that time. On this basis he seeks to hold both of these defendants jointly liable.

The factors which must be considered in making the determination of the employer-employee relationship between Schlumber-ger and Rivers are set forth in Norris’ Supplement to the Law of the Sea, § 676. They are as follows:

“1. Was there an understanding or agreement by the employers regarding the loan of the employee?
“2. Has the servant assented, either expressly or by implication, to the transfer?
“3. Did the servant perform his work pursuant to direct orders of the asserted employer or was he following mere suggestions?
“4. Did the general employer temporarily terminate its relationship with the servant?
“5. Has the temporary employer furnished the necessary instruments and the place for the performance of the work in question?
“6. Has the employment of the servant by the temporary employer extended over a considerable length of time?
“7. Is the work performed the work of the temporary employer?
“8. Does the temporary employer have the right to discharge the servant?
“9. Is the temporary employer obligated for the payment of the wages of the servant?”

For a discussion and application of these factors, see the case of Ruiz v. Shell Oil Company, 413 F.2d 310 (5th Cir. 1969).

In the case at hand, Elevating Boats was a corporation engaged in the construction and rental of elevated boats to companies who serviced oil well operations. Mel-deans was also a' corporation who owned two elevated boats which it rented to such service companies. One of Meldeans’ boats was called the “Billiot.” Meldeans entered into an agreement with Elevating Boats wherein Elevating Boats would secure rental customers for Meldeans. For this service Elevating Boats would receive six percent of the rental fees paid for the boat. Elevating Boats was authorized to enter into contracts for the rental of Meldeans’ boats, which contracts would be binding on Melde-ans as well as Elevating Boats. In this respect, Elevating Boats was acting as agent for Meldeans.

On April 20, 1972, Elevating Boats entered into a five year contract with Schlum-berger for the use of the Billiot at a monthly rental of $6,000.00. This agreement contained the following provision:

“OWNER’S Masters (and crews) shall in no event be considered employees of SCHLUMBERGER it being understood and agreed that OWNER’S Masters shall be in full charge of this vessel at all times. Each vessel (and crew) shall be subject to the sole direction and control of the OWNER and its masters, and the OWNER and its Masters shall be solely responsible for the method of navigation, the control of the vessel and the course to be followed and all other matters concerning the operation and navigation of the vessel.”

From the above, the parties expressly agreed that no employees of Meldeans could be considered an employee of Schlumber-ger.

As to whether Rivers assented to the transfer to Schlumberger, it may be said that while plaintiff certainly acquiesced in his working relationship with Schlumber-ger, nothing in the record reveals that he considered himself to have been transferred from Meldeans to Schlumberger.

Rivers did work under Schlumberger’s instructions in that he went where they wanted him to, when they wanted him to and when on a job he positioned his boat in accordance with their wishes. But, Rivers, as captain of the boat, was in charge of his vessel and had the authority not to follow Schlumberger instructions if such would endanger the vessel in any way. Schlumber-ger was interested in results, that is, in having a platform from which their employees could perform their well servicing operations, not in directing plaintiff in piloting his boat. It also must be remembered that at the time of plaintiff’s accident he was enroute to dump paint chippings, the result of maintenance work done on board the Billiot. In such maintenance activities, Schlumberger exercised no control at all over Rivers.

The facts indicate that nothing more than cooperation existed between Rivers and the employees of Schlumberger. In considering whether the authority exists to control a servant, a careful distinction must be made between authoritative direction or control and mere suggestion as to details or necessary cooperation. This is especially applicable where the work furnished is part of a larger undertaking. “Cooperation,” as distinguished from “subordination,” is not enough to create an employment relationship. Ruiz v. Shell Oil Company, supra, and Standard Oil Co. v. Anderson, 212 U.S. 215, 29 S.Ct. 252, 53 L.Ed. 480 (1909). Under the totality of the circumstances herein, we conclude that the activities performed by Rivers were cooperation between him and Schlumberger but not subordination or control.

Further, Meldeans never terminated its relationship with Rivers. Meldeans, not Schlumberger, had the right to discharge Rivers. Meldeans, not Schlumberger, was responsible for paying plaintiff. Meldeans issued his checks, withheld his taxes and paid the employer’s share of social security.

Further, the work performed by Rivers was clearly in furtherance of Schlumber-ger’s objective of providing certain geological testing services to oil and gas wells, but it was Meldeans, not Schlumberger, that was in the business of providing transportation and working platforms in the submerged areas of Louisiana. Thus, Rivers was engaged in Meldeans’ work, which was to provide jack-up boats and pilots to those that needed such an unusual form of transportation. Maintenance of the boat, the activity in which Rivers was engaged at the time of the accident, is even more clearly the work of Meldeans.

We have considered the factors enunciated in light of all the circumstances presented herein and we conclude that the trial judge correctly concluded that Rivers was a seaman employee of Meldeans but not an employee of Schlumberger.

(2) Whether Meldeans was the Alter Ego of Elevating Boats.

Plaintiff urges the court to “pierce the corporate veil” of Meldeans and hold that Meldeans is actually the alter.ego of Elevating Boats and, thus, Elevating Boats should be held to be an employer of Rivers and liable for damages incurred by Rivers.

In the case of Haynes v. Champagne Tile Corporation, 228 F.Supp. 157, 159 (E.D.La. 1964), the court held as follows:

“While the plaintiff recognizes that a corporation, under Louisiana law, is a separate legal entity, Louisiana Civil Code (1870) Article 435, he nevertheless urges this Court to ‘pierce the corporate veil,’ and hold that Champagne Tile Corporation is actually the alter ego of J. C. Champagne, Inc., and therefore should be held liable for the debts of J. C. Champagne, Inc. Under Louisiana law, the ‘corporate veil’ is pierced when the theory of separate entity leads to an absurdity, or the persons involved in a corporation seek to use this legal fiction to immunize them from the consequences of their fraud or illegal actions. Keller v. Haas, 202 La. 486, 12 So.2d 238 (1943); National Surety Corporation v. Pope, 147 So.2d 239 (La.App. 4th Cir. 1962). ..."

Applying these principles to the facts herein, we find no reason to pierce the corporate veil as contended by Rivers. The two corporations, Elevating Boats and Mel-deans, are separate corporations with different stockholders, with the exception of one stockholder who owns only a five percent stock interest in both corporations. The bookkeeping systems and other records of the two corporations are kept separately. Each holds their own stockholder and board meetings. Meldeans declares dividends among its stockholders who are principally employees. It was admitted on oral argument that no fraud or illegal actions existed herein. The evidence is clear that Rivers has failed to produce any evidence that would be grounds for piercing the corporate veil herein.

The cases cited by Rivers are not applicable. They deal with factual situations which fully justified the piercing of the corporate veil.

(3) Meldean’s Liability.

The Jones Act goes beyond the scope of traditional maritime law in that it applies to injuries which occur on land. The test for Jones Act liability is not whether the injury occurred on navigable waters but rather whether a seaman was injured by employer negligence in the course of his employment. Braen v. Pfeifer Oil Transportation Co., 361 U.S. 129, 80 S.Ct. 247, 4 L.Ed.2d 191 (1959). To be actionable under the Jones Act, the employer’s negligence does not have to have as great a causal connection to the injury as is true in general tort law.

"... The question of proximate cause in an action under the Jones Act turns on whether the actions of the defendant contributed to the injury even in the slightest degree. ...”

Spinks v. Chevron Oil Company, 507 F.2d 216, 221 (5th Cir. 1975); Sanford Bros. Boats, Inc. v. Vidrine, 412 F.2d 958 (5th Cir. 1969).

Further, a Jones Act employer has a non-delegable duty to furnish a seaman with a safe means of ingress and egress to and from the vessel. The scope of this duty extends from the vessel to the shore and includes the dock to which the vessel may be berthed, and adjacent land. The vessel owner has the duty to inspect the means of ingress or egress and to take reasonable precautions to remedy same. Failure to perform any of these duties is negligence. Hocut v. Insurance Company of North America, supra; Hebert v. Otto Candies, Inc., 402 F.Supp. 503 (E.D.La.1975).

The Billiot had been berthed at this dock for a considerable length of time. The dock has a walkway adjacent to and parallel to the bank for a distance of approximately 100 feet. The elevating boats were brought into position with the stern of the vessel next to the walkway. The “legs” are then lowered until they touch the bottom of the bayou, thereby stabilizing the boat against the dock. This was the position of the boat at the time of the accident.

The hole or washout in question was located directly across the walkway from the stern of the boat. The washout was adjacent to the walkway. The condition had existed for several months and such condition was known to all who traversed the area. The area had been traversed by Schlumberger employees, Meldean employees and the port captain for Elevating Boats. The port captain inspected' the boats approximately once each month. The size of the hole was approximately 3 feet wide and 4 feet deep. It presented an unsafe condition for those who used this area for ingress to and egress from the Billiot. The hole was usually covered by a piece of plywood. This plywood was not always present, however, and when the plywood was not in place, those going to or from the boat would step across the hole. Such was the condition on the night in question.

The Billiot had been berthed at this dock on standby for a few days. Rivers came on duty three days before the accident. Rivers and another captain were assigned to the Billiot. They alternated working seven days on and seven days off. No other crewmen were assigned to the boat.

On Friday night, January 28, 1977, at approximately 9:00 P.M., Rivers was performing maintenance work in the engine room. As a result of some previous scraping and painting, he had accumulated some scrapings in a can. He decided to empty them on the bank. He went to the stern, crossed the walkway, stepped across the washout and when he placed his weight on the opposite side, the bank of the hole caved in, causing Rivers to fall into the hole, injuring himself.

The question then becomes: Did the employer’s (Meldeans’) negligence play any part, even the slightest, in causing the fall and injuries to Rivers? This court finds that Meldeans, an employer, owed Rivers the non-delegable duty to provide a safe method of boarding and departing the vessel. Meldeans failed to carry out this duty, which failure is negligence. Hocut v. Insurance Company of North America, supra; Superior Oil Co. v. Trahan, 322 F.2d 234 (5th Cir. 1963).

Defendants argue that, as captain of the Billiot, Rivers had a duty to maintain the dock area in a safe condition. They contend that the failure to perform such duty was the sole cause of the accident. Defendants cite the following cases to support their position: Peymann v. Perini Corporation, 507 F.2d 1318 (1st Cir. 1974), writs den., 421 U.S. 914, 95 S.Ct. 1572, 43 L.Ed.2d 780 (1975); Reinhart v. United States, 457 F.2d 151 (9th Cir. 1972), and Walker v. Lykes Bros. S. S. Co., 193 F.2d 772 (2nd Cir. 1952). These cases stand for the general proposition that a seaman may not recover where such seaman’s breach of duty constitutes the sole cause of the accident and injury. A brief summary of the facts in these cases show that they are clearly distinguishable from the case at hand.

The facts of these cases are substantially as follows:

In Peymann, the chief engineer was injured when he slipped from an oil covered iron railing while attempting to fasten a chain fall to the ceiling of the engine room. The chief engineer was in charge of this procedure and he failed to provide a safe place to work when he did not obtain an available ladder for the work, or if the rail was used, it was his duty to see that it was free of oil before he stepped upon it.

In Reinhart, the chief mate was injured when he was performing duties down in the hold of the ship. The sheathing had been previously damaged, creating an unsafe condition. The chief mate’s duties included the inspection of the sheathing after each voyage since damage to same was not unusual. The chief mate also had the duty to inspect and provide adequate lighting in the hold. This, he also failed to perform.

In Walker, the captain was injured when the ship rolled, causing a steel file drawer to roll out of its cabinet, striking the captain, causing leg injuries. The safety catches on the drawer had been out of order for four months, all to the knowledge of the captain. The vessel had made a number of ports of call during this period but the captain failed to have the catches repaired.

In each of the cases above, the failure of the seaman’s duty was the sole cause of the accident. The rulings in these cases, however, are not applicable to the circumstances herein.

We have heretofore held that Melde-ans failed in its non-delegable duty to provide a safe method of ingress and egress to the vessel. Further, there is no showing that Rivers had any authority to perform, or have performed, any substantial repairs to the dock area which was owned and controlled by Schlumberger. Under these circumstances, we cannot hold that Rivers’ injuries were caused by his neglect to perform a duty. The cause of this accident was the failure of Meldeans to provide a safe method of ingress and egress to the vessel.

A case more on point with this case is Hebert v. Otto Candies, Inc., 402 F.Supp. 503 (E.D.La.1975). In that case, recovery was granted for the drowning death of the crew boat captain due to the lack of a safe means of ingress and egress. We conclude that Rivers did not breach a duty, thereby barring his right to recovery.

Meldeans can find no comfort in its argument that it is relieved of liability because the dock was under the control of Schlumberger. The trial court, in its reasons for judgment, stated that the existence of the condition was common knowledge to both Schlumberger and Elevating Boats (Meldeans’ agent). The trial court noted that the condition had concerned the employees of these parties for quite some time. Meldeans, however, negligently allowed the continued existence of this unsafe condition. The record reflects that shortly after the accident, a Meldeans official, with the cooperation of Schlumberger, remedied the condition by filling the washout or hole. This could have also been done before the accident, but Meldeans neglected to do so.

Defendants further contend that Rivers was negligent and that such negligence caused the accident. Defendants contend that Rivers knew the washout existed and should have berthed the boat at another berth. Also, it is contended that Rivers was negligent when he attempted to traverse the unsafe area with knowledge that such existed. We will now discuss these two contentions.

We find the contention, that plaintiff was negligent in not docking his jack-up boat in a vacant berth between the normal docking location of the Billiot and that of the Jay Elevator, without merit. The testimony at trial establishes that there were offsetting considerations for not using the middle berth. The middle berth was considered less desirable because it was not protected by the sides that extended perpendicular to the dock on each end of the docking area. The Billiot had been berthed in this particular area and it was desirable to continue using the same spot to jack up the boat since letting the legs down, onto areas previously used, gave them a more solid foundation to stabilize the boat. It is also true that the Billiot had been docking in that spot for a considerable period of time before Rivers was assigned to her.

Under the facts presented, we cannot say that Rivers was negligent in his berthing of the vessel in the usual area.

As to Rivers’ negligence in attempting to traverse the unsafe area, we must first point out, as was done in Spinks v. Chevron Oil Company, 507 F.2d 216, 223 (5th Cir. 1975), that under the law of admiralty:

“Because of strong policy considerations in admiralty, legal cause analysis is particularly suited to maritime tort law. Seamen as a class have often been styled ‘wards of the court’, and employers have been assigned a high standard of duty towards them. This policy of protecting seamen from the hazards of their profession is evidenced by the employer’s strict liability for providing a seaworthy vessel, and supplying maintenance and cure for ill seamen. In negligence cases, admiralty prohibits defenses of assumption of risk, see Neal v. Saga Shipping Co., 5 Cir. 1969, 407 F.2d 481, ....’’

A seaman’s duty to protect himself is slight. His duty is to do the work assigned, not to find the safest method to work. Spinks v. Chevron Oil Company, supra. Any negligence of a seaman which causes his injury is subject to the law of comparative negligence.

With these principles in mind, we examine the facts to determine whether the trial court was correct in finding that Rivers was free of negligence.

The testimony of several witnesses indicated that everyone going to and from the vessel traversed the hole with impunity. No one saw fit to detour around it. Plaintiff testified as to how the fall actually occurred:

“Q. Did you put your foot where you intended to put it?
“A. Yes sir. Yes sir.
“Q. Did you think at that time that there was going to be any problem? Did you expect there to be any caving in of the hole?
“A. No sir, I didn’t really expect it, but . . .
“Q. It did occur, though?
“A. Yes sir. It did.
“Q. Uh, did you actually think it safe to do what you did do?
“A. Well, I’d done it many a time before and, you know, I thought—I didn’t think I was acting in a reckless way. I’ll put it that way.”

Plaintiff had acted in a similar manner many times without mishap. He had no reason to believe that when he stepped to the opposite side of the hole, that the bank would cave in. We cannot say that the trial court was clearly erroneous when he found that plaintiff was free of fault.

(4) Whether Rivers Can Recover from Schlumberger Under Louisiana Tort Law (LSA-C.C. art. 2315)

Rivers petitioned the court for specific relief under the Jones Act and General Maritime Law. The allegations are clearly drafted to the end of establishing liability under said federal law. The petition does not mention any action under Louisiana Tort Law. Rivers’ counsel takes the position that enough evidence was presented to bring the action against Schlumberger within the purview of Louisiana Tort Law without having to plead same. With this argument, we disagree.

Our Supreme Court, in the case of Lav-ergne v. Western Co. of North America, Inc., 371 So.2d 807, 809 (La.1979), after discussing the fact that this type suit may be brought in either the federal or state courts, went on to hold as follows:

"... However, regardless of in which court the action is brought, the federal substantive admiralty or maritime law applies if the claim is one cognizable in admiralty. Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, 369 U.S. 355, 82 S.Ct. 780, 7 L.Ed. 798 (1962); Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143 (1953); Garrett v. Moore-McCormack Company, 317 U.S. 239, 63 S.Ct. 246, 87 L.Ed. 239 (1942).” (Emphasis ours)

In the case at hand, Rivers brought this action against Schlumberger under the federal law as stated above. We are relegated, under these circumstances, to apply the federal substantive admiralty or maritime law and not Louisiana Tort Law. We have performed this duty by applying such federal law, finding that the trial court properly dismissed Schlumberger as it was not an employer of Rivers under the provisions of the Jones Act.

Further, Rivers alleged in his petition that Schlumberger was his employer. This allegation, that Schlumberger was Rivers’ employer (necessary to recover under the Jones Act), is inconsistent with the theory of recovery under Louisiana Tort Law. If Schlumberger was Rivers’ employer, Rivers would have no cause of action against Schlumberger under Louisiana Tort Law. (Article 2815)

(5) Third Party Demands of Schlumberger.

Schlumberger filed a third party demand against Elevating Boats contending that the contract between them provided that Elevating Boats would indemnify Schlumberger for claims under the Jones Act, including attorney’s fees incurred by Schlumberger. The contract entered into by Elevating Boats (agent of Meldeans) and Schlumberger contained the following provision:

OWNER agrees to either carry Workmen’s Compensation with endorsements for Marine and Voluntary Compensation, the Jones Act and the United States Longshoremen’s Compensation Act as respects OWNER’S Masters, crews and other employees, if any, and that there will be a waiver of subrogation by OWNER and its insurer in favor or [sic] Schlum-berger or, in the alternative, to be responsible for and hold harmless and indemnify SCHLUMBERGER for any losses normally covered by such acts or provided for by the State of Louisiana.”

Schlumberger furnished the dock in question. It also had a duty to keep the dock area in a safe condition. Schlumberger was clearly negligent in failing to perform its duty and such negligence, along with the negligence of Meldeans, caused the accident by not filling the hole where Rivers fell. It is well settled that contractual indemnification for one's own negligence cannot be allowed unless the parties specifically, clearly and expressly agree to such. Batson-Cook Company v. Industrial Steel Erectors, 257 F.2d 410 (5th Cir. 1958). A reading of the indemnification paragraph above contains no such provision.

This demand of Schlumberger was properly dismissed by the trial court.

(As we have previously noted, the alleged third party demand of Elevated Boats and Meldeans against Schlumberger does not appear in the record for disposition.)

(6) Quantum.

Finally, we consider whether damages were awarded in the proper amount. We do so, keeping in mind that the trial judge must be found clearly erroneous before a disturbance of his award is warranted.

Rivers’ only disagreement with the trial court’s award is the award of $62,000.00 for the loss of future earnings. The trial court awarded $100,000.00 for losses of past and future earnings, $38,000.00 of which was designated as losses of past earnings. Rivers contends that the award of $62,000.00 is too low. Rivers’ argument principally results from the trial court’s finding that Rivers would, in the future, be able to engage in some type of gainful employment which does not entail heavy lifting.

The defendants contend that Rivers had a prior back condition which was of such magnitude that the injury herein complained of did not effectively change his condition.

The trial court, in its written reasons for judgment, reviews in detail the medical testimony, Rivers’ work history and other evidence pertaining to the subject of quantum. The trial court concluded as follows:

“A review of the testimony of Dr. La-Rocca, Dr. Davis and Dr. Fresh convinces me that plaintiff sustained, from the fall, in addition to the comparatively minor injury to his thoracic spine, a ruptured intervertebral disc at L5-S1. Plaintiff was disabled thereby and achieved his maximum improvement in about one year following the surgery (Dr. Fresh 14).”

The trial court also determined that Rivers:

"... was not able to return t'o the type of work in which he was engaged at the time of the accident ...”

The court did observe, however, that Rivers:

.. should be able to engage in some type of gainful employment which does not entail heavy manual labor.”

These findings of the trial court are fully supported by the record. We find no reason to disturb these findings, nor the awards of the trial court.

For the reasons assigned, the judgment of the trial court is affirmed. It is ordered that Schlumberger’s third party demand against Elevating Boats be dismissed. It is also ordered that the “Motion for Sanctions and Costs” filed by Schlumberger be dismissed. Costs of this appeal shall be prorated between Meldeans and Schlumberger, with each to pay fifty percent (50%) thereof.

AFFIRMED.

      . Schlumberger also filed in this court a “Motion for Sanctions and Costs” against Elevating Boats alleging that due to the delay of Elevating Boats’ counsel to send Schlumberger’s counsel a copy of Elevating Boats’ brief, a motion to compel such production was necessitated. Schlumberger’s counsel seeks attorney’s fees and costs for the filing of such motion.
      Schlumberger cites no authority for this court to impose a sanction of payment of attorney’s fees for such delay. We have been unable to find any authority for the imposition of such sanctions. The motion shall be denied.


text:
    Wilfred BABINEAUX, Plaintiff-Appellant, v. CONSOLIDATED ALUMINUM CORPORATION (Conalco, Inc.) et al., Defendants-Appellees.
    No. 7748.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1980.

      Cox & Cox, Rex D. Townsley, Lake Charles, for plaintiff-appellant.
    Brame, Bergstedt & Brame, John E. Bergstedt, Lakes Charles, for defendants-appellees.
    Before GUIDRY, SWIFT and DOUCET, JJ.
   DOUCET, Judge.

Plaintiff, Wilfred Babineaux, instituted this workmen’s compensation action against Consolidated Aluminum Corporation and its workmen’s compensation insurer, Employers Insurance of Wausau, seeking benefits for total and permanent disability. Following a trial, judgment was rendered in defendants’ favor, dismissing plaintiff’s suit. Plaintiff appealed.

Plaintiff was employed by defendant as an ore feeder. On August 7, 1976, he fell approximately six to eight feet onto his back while attempting to climb an ore wagon. The following morning he was sent to Lake Charles Memorial Hospital by his employer. Dr. Arthur Rhoades diagnosed his injury as a lumbar sprain and advised plaintiff to rest for a couple of weeks. On August 18, 1976, Dr. Rhoades advised him to return to light duty. On November 2, 1976, he released him for regular duty. Plaintiff continued working for defendant until February 1977, when he resigned. He has not returned to work since terminating his employment with defendant.

Plaintiff received compensation benefits from August 17, 1976 to October 14, 1976 and from February 1, 1977 to May 5, 1977. When defendant refused to reinstate the benefit payments, plaintiff filed the instant action. Plaintiff contends the trial judge erred in failing to find that he is totally and permanently disabled because of a traumatic neurosis caused by his work related accident.

In Andrus v. Rimmer & Garrett, Inc., 316 So.2d 433 (La.App. 3rd Cir. 1975), this court stated:

“Where a claimant seeks workmen’s compensation for neurotic disability, traumatic neurosis, et seq., such condition must be proven, as in any other disabling injury, by a preponderance of the evidence. Such condition must not only be shown to exist but also that it was causally connected with the work related accident. Thomas v. St. Patrick’s Hospital, 276 So.2d 749 (La.App. 3rd Cir. 1973); Muse v. Sentry Insurance Company, 269 So.2d 609 (La.App. 3rd Cir. 1972).
“Our jurisprudence has further indicated that in such cases the court must proceed with utmost caution and exercise extreme care in view of the nebulous characteristics of such a condition and the possibility of the symptoms being easily feigned. The evidence in cases of this nature should be scrutinized carefully and every precaution taken to protect employers and insurers against unjustified claims because of alleged mental affliction. Messex v. Georgia-Pacific Corporation, 293 So.2d 615 (La.App. 3rd Cir. 1974); George v. Lafayette Well Service, Inc., 249 So.2d 212 (La.App. 3rd Cir. 1971); Boutte v. Mud Separators, Inc., 236 So.2d 906 (La.App. 3rd Cir. 1970); Jackson v. International Paper Co., 163 So.2d 362 (La.App. 3rd Cir. 1964).”

In the present action, the trial judge found that plaintiff failed to meet his burden of proof. An examination of the record reveals no manifest error in this finding.

Dr. David Drez, an orthopedist, examined plaintiff in February 1977. Dr. Drez stated that plaintiff’s complaints of pain were exaggerated and that the examination revealed no objective signs of any injury.

Dr. Norman Morin, an orthopedist, examined plaintiff on July 1, 1977. Dr. Morin testified that an examination revealed no objective evidence of any injury. Dr. Morin stated that he felt plaintiff was a malingerer.

Plaintiff was examined by Dr. William Foster, a neurosurgeon, on January 30, 1978. Dr. Foster also found no objective evidence of any physical disability. Dr. Foster testified, in his deposition, that he believed plaintiff had fully recovered from the jury to his back.

Dr. William Cloyd, a psychiatrist, examined plaintiff on April 11, 1978. Plaintiff related a history of falling from a truck at work and complained of low back pain. Dr. Cloyd concluded that plaintiff was suffering from a depressive neurosis caused by the work related accident.

In rejecting plaintiff’s demands, the trial judge relied heavily on the testimony of Drs. Morin, Foster and Drez. Our examination of the record has not revealed that he erred by doing so, or by failing to accept Dr. Cloyd’s diagnosis. As this court noted in Andrus v. Rimmer & Garrett, Inc., supra:

“The evaluation of the credibility of witnesses is peculiarly within the trial judge’s domain. In addition, the amount of weight placed by the trial judge on expert testimony, and the findings of fact in this regard, are entitled to great weight on appeal.”

Drs. Morin, Foster and Drez testified that plaintiff had no objective signs of any injury. Dr. Drez stated that he felt that plaintiff was exaggerating his complaints. Dr. Morin pointedly stated that he felt that plaintiff was a malingerer. Dr. Cloyd’s contrary conclusions were based, in part, on a history related by plaintiff. In view of the testimony of the other experts as to plaintiff’s exaggeration of complaints, we cannot say that the trial judge erred by rejecting Dr. Cloyd’s diagnosis.

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

AFFIRMED.


author: CULPEPPER, Judge.

text:
    Arsmond BORDELON, Plaintiff and Appellant, v. Eldie Mary DAUZAT, Defendant and Appellee.
    No. 7751.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1980.

      Ben C. Bennett, Jr., and William Joseph Bennett, Marksville, for plaintiff & appellant.
    Michael J. Johnson, Cottonport, for defendant & appellee.
    Before CULPEPPER, SWIFT and DOU-CET, JJ.
   CULPEPPER, Judge.

This is an action to annul a judgment on the grounds of “ill practice” by the trial judge. From an adverse judgment, plaintiff appealed.

The substantial issue is whether a trial judge has the right to change the substance and the result of his written reasons prior to signing a final judgment.

The following facts were established at trial of the present suit. In Suit No. 37,741 Eldie Mary Dauzat sued Arsmond Bordelon. A trial was held at which plaintiff Dauzat was represented by an attorney and defendant Bordelon appeared without counsel. On October 24, 1978, the trial judge gave written reasons rejecting plaintiff Dauzat’s demand. Defendant Bordelon made no effort to obtain a signed judgment. On November 3,1978, plaintiff Dauzat in that suit filed an application for a new trial, which was set for hearing on November 17, 1978. Defendant Bordelon received notice of the hearing and appeared in court, again unrepresented. Plaintiff Dauzat appeared with her attorney. No hearing was held on the application for a new trial. Instead, the trial judge, on November 17, 1978, gave new written reasons holding in favor of Dauzat. On November 21, 1978, a final judgment was rendered and signed in favor of Dauzat.

Bordelon then consulted an attorney and was advised his only remedy was to appeal. Bordelon elected not to appeal. Some months later, Bordelon consulted another attorney, who filed Suit No. 39,616 against Eldie Mary Dauzat. That suit was dismissed on an exception of res judicata.

Bordelon’s attorney then filed the present suit, and a trial was held on November 19, 1979. Defendant Dauzat did not appear personally but was present through counsel. The only evidence introduced at trial was the testimony of plaintiff Bordelon, who related substantially the above facts. The trial judge had before him the record in Suit No. 37,741 and took notice of the contents thereof, as described above. But, the record on appeal does not contain the record in Suit No. 37,741.

On appeal, plaintiff contends first that the judgment rendered in Suit No. 37,741 should be annulled because the trial judge changed his original written reasons without complying with LSA-C.C.P. Article 1977, which provides:

“When a new trial is granted, it shall be assigned for hearing in accordance with the rules and practice of the court.”

This argument has no merit. It ignores the fundamental distinction between the written reasons and the final judgment. LSA-C.C.P. Articles 1911 and 1918 provide:

“Art. 1911. Final judgments read and signed in open court
“Except as otherwise provided by law, all final judgments shall be read and signed by the judge in open court.”
“Art. 1918. Form of final judgment
“A final judgment shall be identified as such by appropriate language. When written reasons for the judgment are assigned, they shall be set out in an opinion separate from the judgment.”

The jurisprudence under these articles uniformly holds that where there are only written reasons and no separate signed judgment, there is no final judgment. Fisher v. Rollins, 231 La. 252, 91 So.2d 28 (1956); Pearce v. Johnson, 250 So.2d 567 (3rd Cir. 1971).

Prior to final judgment, a trial judge may, at his discretion, change the substance or the result of interlocutory rulings. Labourdette v. Doullut and Williams Shipbuilding Co., 156 La. 412, 100 So. 547 (1924); Arnold v. Stupp Corporation, 249 So.2d 276 (1st Cir. 1971); Grady v. Allstate Insurance Co., 355 So.2d 1070 (4th Cir. 1978); Jarvis v. Lafayette General Hospital, 373 So.2d 1000 (3rd Cir. 1979), on remand 379 So.2d 1179 (3rd Cir. 1980). A trial judge may also sign a judgment based on written reasons which differ substantially from previously stated oral reasons. Margan v. Precision Motors, Inc., 317 So.2d 644 (4th Cir. 1975).

The fact that Dauzat erroneously filed an application for a new trial before a final judgment was rendered has no effect on our result. Procedures for motions for new trials and the granting of new trials do not apply prior to the signing of judgment. LSA-C.C.P. 1974 provides:

“Art. 1974. Delay for applying for new trial
“The delay for applying for a new trial shall be seven days, exclusive of legal holdings. Except as otherwise provided in the second paragraph hereof, this delay commences to run on the day after the judgment was signed.
“When notice of the judgment is required under Article 1913, the delay for applying for a new trial commences to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment as required by Article 1913.”

In William T. Burton Industries, Inc. v. Monk, 372 So.2d 817 (3rd Cir. 1979) this court held C.C.P. 1974 only applies when a judgment has been signed. In Chamblee v. Chamblee, 340 So.2d 378 (4th Cir. 1976) the court stated an application for new trial filed before the signing of judgment was premature and without legal effect as to appeal delays. See Acts 1960 No. 32, Sec. 2, effective January 1, 1961, repealing former LSA-R.S. 13:4213, which provided for new trial prior to the signing of judgment.

Since the application for new trial in Suit No. 37,714 was without effect, the trial court was correct in not acting on the application.

Plaintiff makes the additional argument that the failure to hold a hearing when changing written reasons constitutes an “ill practice” within the meaning of LSA-C.C.P. Article 2004. Plaintiff contends he had a right to a hearing based on the application for new trial filed by his opponent. We reject this argument also. Even where the application for new trial is properly filed, no absolute right to a hearing exists. See Sonnier v. Liberty Mutual Insurance Company, 258 La. 813, 248 So.2d 299 (1971) where the application was denied without hearing, and Borras v. Falgoust, 285 So.2d 583 (4th Cir. 1973) where the application was granted without hearing. The failure to hold a hearing under the circumstances of this case clearly did not constitute an “ill practice” under LSA-C. C.P. Article 2004. See Succession of Skye, 364 So.2d 1357 (3rd Cir. 1978) for a discussion of “ill practices.”

Out of an abundance of caution, we have also considered the question of whether a hearing should have been held solely for the purpose of explaining the change in the decision to the unrepresented party. However, Bordelon was present in court when the new written reasons were given, and he understood he had lost the case. He even consulted an attorney, who advised him to appeal the decision on the merits. He elected not to appeal. Bordelon was not deceived nor deprived of his rights in any way.

For the reasons assigned, the judgment appealed is affirmed at plaintiffs costs.

AFFIRMED.