author: CHEHARDY, Judge.

text:
    Sandra MALBROUGH, wife of and Bernard Malbrough, individually and on behalf of their minor children Michelle and Rose Malbrough v. George PASCAL and National Car Rental System, Inc.
    No. 11869.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 5, 1981.

      Edward R. Drury and Clark A. Richard, New Orleans, for plaintiffs-appellants.
    James J. Morse and Carl L. Aspelund, New Orleans, for George Pascal and The Travelers Ins. Co., defendants-appellees.
    Before SAMUEL, GULOTTA and CHE-HARDY, JJ.
   CHEHARDY, Judge.

Plaintiffs, Sandra Malbrough, wife of and Bernard Malbrough, individually and on behalf of their minor children, Michelle and Rose Malbrough, appeal a trial court decision in favor of Sandra Malbrough and against defendants, George Pascal and National Car Rental System, Inc., in the sum of $5,000, together with legal interest from date of judicial demand and all costs of the proceedings. Judgment was also rendered in favor of Bernard Malbrough and against the defendants in the sum of $970.98. The demands of Bernard Malbrough on behalf of his minor children were dismissed at his costs.

Defendants have answered the appeal, asking that the judgment of the district court in favor of the plaintiffs, Sandra Malbrough and Bernard Malbrough, be reversed.

The record indicates that on the morning of April 29,1977 the plaintiff Sandra Malb-rough was operating her vehicle, a 1969 Lincoln, on Williams Boulevard in Kenner, Louisiana, when she lightly hit the car in front of her when traffic came to a sudden stop. As she attempted to exit from her car, it was hit from the rear by a vehicle driven by George Pascal, one of the defendants, resulting in injuries complained of in this suit. Although two of Mrs. Malb-rough’s children were passengers in the car at the time of the accident, no evidence was produced at trial of any injuries sustained by them as a result of the collision.

Mrs. Malbrough testified that on the evening of the accident she began experiencing stiffness extending from her neck down to her lower back, and the next day this pain increased, resulting in her consulting Dr. Robert L. Mimeles, an orthopedist.

Dr. Mimeles testified that his examination revealed Mrs. Malbrough had sustained a sprain to the musculature in the neck and lower back and a bruise to the left lower leg; however, he added her X rays were normal with regard to any fractures, dislocations or pathology and that he did not find evidence of a ruptured disk or pinched nerve during the time he treated her, consisting of four or five office visits. Accordingly, he prescribed muscle relaxants, pain pills and several physical therapy treatments.

Although Dr. Mimeles instructed Mrs. Malbrough in May of 1977 to return to the clinic in ten days, he did not see her again until November of the same year, at which time she complained of pains going into her legs, a symptom which, according to his records, had been previously absent. He added that although burning numbness into the legs could be typical of nerve root irritation, he could discover no objective findings of that condition, such as muscle atrophy, and it was his opinion that at no time when he was treating her did she evidence disc pathology.

Dr. Stuart Phillips, an orthopedic surgeon who first saw Mrs. Malbrough in March of 1978, diagnosed her as having a ruptured disc at that time. He added, however, that if Mrs. Malbrough had been free of symptoms between May and November of 1977, this would indicate the accident was probably not the cause of the disc problem. Dr. Phillips estimated Mrs. Malbrough’s physical impairment to be approximately 30% regarding her general functioning, and approximately 10% in regard to her activities as a secretary; he added that there was a 51% chance of improvement of her condition with surgery and that, even without surgery, such patients tend to improve, although the process is slow.

Dr. William C. Chapel, Sr., a chiropractor, testified he had treated Mrs. Malbrough for pain in the left leg from May to July of 1978. He said that on her last visit she was almost symptom free and indicated that she only had an occasional “twinge” of pain. He explained his treatment of the plaintiff consisted of chiropractic manipulation and diathermy; his records also revealed that she had stated she had only had the condition seven months, since October of 1977.

Both Mrs. Malbrough and her husband testified she had no back problems prior to the April 1977 accident, and Mrs. Malb-rough said she experienced her leg and back problems since that time, although they became worse in November of 1977. At the time of trial she said she was not considering surgery.

In his reasons for judgment, the district court judge concluded the plaintiff “may or may not” have a ruptured disc; however, since the evidence indicated that she had pain in her back for at least one year after the accident and up until the time of a second accident in which she was involved (in April of 1978), the court was of the opinion that $5,000 was adequate compensation for the injuries proven.

We agree. After looking to the effect of the particular proven injuries suffered by Mrs. Malbrough we do not find that abuse of the trial court’s “much discretion” that would allow this court to disturb the damages allowed by the trial judge. Reck v. Stevens, 373 So.2d 498 (La.1979). Since the medical testimony elicited at trial regarding the existence of a ruptured disc was contradictory among Mrs. Malbrough’s several attending physicians, we conclude the trial court was correct in limiting the award to those physical injuries actually established by a preponderance of the evidence. Furthermore, since Mrs. Malbrough is able to maintain employment, drive a car and perform light housework, as well as accompany her family on outings and vacations, and since she has not needed to undergo surgery for her condition nor suffered any physical disfigurement, we hold the award of the district court was both just and adequate.

Even if this court were to look to the cases cited by the plaintiff in support of her request for an increase in damages, such as Spain v. Travelers Indemnity Company, 321 So.2d 10 (La.App. 3d Cir. 1975); Miller v. Chicago Insurance Company, 306 So.2d 355 (La.App. 3d Cir. 1975); Reeves v. Louisiana and Arkansas Railway Co., 304 So.2d 370 (La.App. 1st Cir. 1974); and Pope v. St. Paul Fire & Marine Insurance Company, 299 So.2d 863 (La.App. 2d Cir. 1974), we would have to find these cases distinguishable on the facts as they involved plaintiffs with much more extensive injuries than those of Mrs. Malbrough.

Defendants suggest in their brief “ * * * Plaintiff’s negligence was a contributing factor. It is obvious from a reading of her testimony that she was negligent in striking the car in front of her and that her negligence in striking that car created the situation in which the accident occurred.”

A reading of the record does not sustain defendants’ position. The record supports the finding of the trial court that the plaintiff’s accidental bumping of the car in front of her did not cause the accident with Pascal’s car nor the damages suffered by Mrs. Malbrough.

For the reasons assigned, the district court decision is affirmed in all respects.

AFFIRMED.

      . The original judgment was amended, striking National Car Rental System, Inc., from the decree and substituting the name of The Travelers Insurance Company.


source: Caselaw Access Project

license: Public Domain

text:
    John JOHNSON v. HIGHLANDS INSURANCE COMPANY.
    No. 11969.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 5, 1981.
    Rehearing Denied March 16, 1981.
    Jefferson, Bryan & Gray, Clare Jupiter, New Orleans, for plaintiff-appellant.
    Christovich & Kearney, Michael M. Chris-tovich, New Orleans, for defendant-appel-lee.
    Before SAMUEL, GULOTTA and CHE-HARDY, JJ.
   CHEHARDY, Judge.

Plaintiff, John Johnson, appeals a trial court decision maintaining the peremptory exception of prescription filed by the defendant, Highlands Insurance Company, and dismissing the plaintiff’s suit at his costs.

Plaintiff’s petition, which was filed on April 23, 1980, alleged that on January 19, 1979, he was employed by the St. Bernard Parish Sewerage District and while in the course and scope of his employment, he was injured when a chlorine tank he was trying to open exploded, knocking him down and causing him to inhale chlorine gas.

Johnson’s petition further alleged that his employer was immediately aware of his injuries, that he is totally and permanently disabled as a result of those injuries, and that despite amicable demand the defendant refused to pay workmen’s compensation benefits due the plaintiff. Johnson’s petition further demanded past and future medical expenses and attorney fees.

At the hearing on the exception, defendant cited LSA-R.S. 23:1209, which states:

“In case of personal injury (including death resulting therefrom) all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter or unless within one year after the accident proceedings have been begun as provided in Parts III and IV of this Chapter. Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in cases of partial disability this limitation shall not take effect until three years from the time of making the last payment. Also, where the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until the expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.”

Plaintiff argued in the district court, contrarily, that although, on the face of the petition, his course of action may be prescribed, if he were allowed to amend his petition to allege that he is only partially disabled and that he had received some payments from his employer after the accident, his cause of action would not be barred by prescription. The district court judge, however, denied the plaintiff’s request to amend his pleadings and maintained the exception.

This court is aware of the legal principle that when the objection raised by a peremptory exception may be cured by amendment, petitioners shall be granted an opportunity to amend. Aetna Finance Co. v. Antoine, 343 So.2d 1195 (La.App. 4th Cir. 1977); Sick v. Bendix-United Geophysical Corp., 341 So.2d 1308 (La.App. 1st Cir. 1976); LSA-C.C.P. art. 934.

In the instant case we do not have a situation falling within the intent of LSA-C.C.P. art. 934. Defendant properly asserted the peremptory exception of prescription based on allegations made in plaintiff’s petition for workmen’s compensation benefits. The petition on its face establishes that plaintiff’s action had prescribed. Plaintiff at trial presented no evidence to show an interruption of prescription. Medical payments were admitted by the defendant, but as referred to earlier, the only assertions of payments in lieu of compensation were made by plaintiff after the trial of this matter and are not properly before this court for consideration.

In Youngblood v. Belden Concrete Products, 349 So.2d 439 (La.App. 4th Cir. 1977), this court held that where benefits paid to an injured laborer would have been the same for total or partial disability, payments are presumed to have been made for partial disability and the three-year prescriptive period, rather than one year, was applicable to a claim for workmen’s compensation.

However, in the case of Sewell v. Argonaut-Southwest Ins. Co., 338 So.2d 1208 (La. App. 3d Cir. 1976), the court said when more than one year has elapsed between payment of the last compensation and institution of suit, plaintiff bears the burden of establishing that prescription had been interrupted and/or that defendant is estopped from urging such a plea.

In the present case, the plaintiff’s affidavit, alleging that after his January 18, 1979 injury he received “to or three payments” from his employer, was filed with the district court on July 31, 1980, two months after the May 30, 1980 trial on the exception. That affidavit, therefore, cannot be considered by this court on appeal. The record reveals absolutely no other evidence produced by the plaintiff at that hearing establishing that prescription had been interrupted.

In the case of Leger v. Delano Plantation, Inc., 350 So.2d 377 (La.App. 3d Cir. 1977), it was also noted that courts of appeal may not consider evidence which was not previously introduced in the trial court.

We therefore conclude that the district court judge was not in error in denying plaintiff’s request to amend his petition.

For the reasons assigned, the decision of the trial court is affirmed in all respects.

AFFIRMED.


author: KLIEBERT, Judge.

text:
    BARBATO, SUPER & ROBINSON, INC. v. Louis R. KOERNER.
    No. 11372.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 5, 1981.
    Law Offices of Louis R. Koerner, Jr., a Professional Law Corp., Louis R. Koerner, Jr., and Briley Richmond, New Orleans, for defendant-appellant.
    Trudy Oppenheim, P. C., New Orleans, for plaintiff-appellee.
    Before BOUTALL, GARRISON and KLIEBERT, JJ.
   KLIEBERT, Judge.

This suit arose over the non-payment by defendant of charges for taking depositions. Plaintiff, Barbato, Super & Robinson, Inc., a court reporting firm, originally sued Louis R. Koerner, Jr., an attorney, individually, for $757.84 allegedly due on an open account. After the filing of an exception by Louis R. Koerner, individually, the plaintiff amended his petition to include the Law Offices of Louis R. Koerner, Jr., a Professional Law Corporation, as a defendant.

The trial court dismissed the claims against Louis R. Koerner, Jr., individually, and awarded judgment in favor of plaintiff, Barbato, Super & Robinson, Inc., and against the Law Offices of Louis R. Koer-ner, Jr., a Professional Law Corporation, in the amount of $757.84 with legal interest from date of judicial demand until paid, plus 25% of the principal and interest as attorney’s fees.

Counsel for appellant and appellee contend the issue is res nova in Louisiana. The defendant-appellant, citing common law jurisprudence, contends the expenses of a lawsuit are those of the client; hence, the attorney is not liable unless he expressly or impliedly assumes special liability therefor. He argues that the relationship created between the attorney and his client by the employment contract is a mandate; hence, the attorney as an agent is not personally liable on a contract made for his client, the principal, where the other party to the contract knows the attorney is acting as an agent for his client. The appellee, also citing common law jurisprudence, contends that even though the attorney is a principal and the person with whom he contracts knows it, the attorney is personally liable for the expenses in the absence of an express disclaimer of responsibility at the time the services are ordered.

Under the facts of this case, this court does not believe it is necessary to go into the client-attorney relationship or accept one or the other of the common law views urged by the appellant and the appellee to resolve the case.

In the case at bar, the employees of the Law Offices of Louis R. Koerner, Jr., a legal corporation, contacted plaintiff for court reporting services. Mr. Koerner, testifying at the trial, admitted that a series of depositions were taken by plaintiff for his office in numerous cases. He also admitted that he had never told the court reporter to bill the client directly for costs of the depositions nor did he ever give the reporter his clients’ addresses. The charges he was refusing to pay was for some of the many charges made on the firm’s open account.

Mr. George Barbato, an owner of the court reporting firm, testified that the firm had extended an open account to the Law Offices of Louis R. Koerner, Jr. He also stated that Mr. Koerner never objected to the outstanding balance in question here; but, always expressed an intent to pay it. He also testified that this method of contracting for services between the parties has gone on for a long period of time.

Under these facts, the law firm, a legal entity, contracted with the plaintiff for the services for itself under a long established open account and, hence, bound itself for the charges. The law firm may or may not have a claim against its client for the charges. We do not pass on that issue.

The appellant also contends that since deposition expenses are taxable as cost of the litigation, they cannot be held to be the responsibility of the attorney. This argument has no merit. The costs of discovery depositions not used at the trial may not be taxed as costs. R.S. 13:4533. Succession of Franz, 242 La. 875, 139 So.2d 216 (1962); Parish v. Bill Watson Ford, Inc., La.App., 354 So.2d 727, writs denied 356 So.2d 1005. Since there is nothing in the record to indicate otherwise, it would be speculating to accept as fact that the depositions, the charges for which are the subject of this suit, were or will ultimately be taxed as costs.

Additionally, the defendant contends the trial court erred in awarding attorney’s fees because the debt arose prior to the effective date of R.S. 9:2781. Therefore, he urges the awarding of attorney’s fees in this instance gave the statute an improper or illegal retroactive effect.

R.S. 9:2781 reads in pertinent part as follows:

“When any person fails to pay an open account within thirty days after receipt of written demand therefor correctly setting forth the amount owed and a copy of the invoices in support thereof, that person shall be liable for reasonable attorney fees for the prosecution and collection of such claim when judgment on the claim is rendered in favor of the claimant-”

Clearly, the attorney fees are awarded for the prosecution and collection of the claim. The suit for the collection and prosecution of the claim was instituted after demand for payment was made on the defendant and after the effective date of the statute. Defendant could have avoided the application of the statute at any time before filing of the suit by paying the account. Since the plaintiff timely complied with the requirement of the statute and judgment on the claim was rendered against him, the trial court and this Court is mandatorially required to apply the statute. The award of 25% for attorney fees made by the trial judge is reasonable.

Accordingly, for the reasons stated above the judgment of the trial court is affirmed. All costs of appeal to be paid by appellant.

AFFIRMED.


text:
    Charles J. BORDLEE, Sr. v. NEYREY PARK, INC., Joseph A. Neyrey General Contractors, Inc. and Joseph A. Neyrey.
    No. 11578.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 5, 1981.
    William J. Luscy, III, Metairie, for plaintiff-appellant.
    Hammett, Leake & Hammett, Herbert B. Bowers, III, New Orleans, for defendants-appellees.
    Before BOUTALL, GARRISON and KLIEBERT, JJ.
   KLIEBERT, Judge.

Plaintiff purchased a home from defendant, Neyrey Park, Inc., in November, 1963. In June, 1978 plaintiff discovered that the house was sinking on its southeastern corner. Plaintiff filed suit in redhibition on June 8,1979 for damages allegedly incurred by defective construction. Made defendants were Neyrey Park, Inc., the seller; Joseph A. Neyrey General Contractors, Inc., the contractor, and Joseph A. Neyrey, individually, who allegedly planned the specifications for the house.

Neyrey Park, Inc. filed an exception of no cause of action, which the trial court maintained on the basis plaintiff’s cause of action was preempted under LSA-R.S. 9:2772. From this ruling plaintiff brought this appeal.

The appellant contends the trial court erred in applying the provisions of R. S. 9:2772 rather than the provisions of Article Code Articles 2534, 2545 and 2546 on redhi-bition.

R.S. 9:2772 provides as follows:

“Pre-emptive period for actions involving deficiencies in design, supervision
or construction of improvements to im-movables.
A. No action whether ex contractu, ex delicto or otherwise, to recover on a contract or to recover damages shall be brought against any person performing or furnishing the design, planning, supervision, inspection or observation of construction or the construction of an improvement to immovable property:
(1) More than ten years after the date of registry in the mortgage office of acceptance of the work by owner; or
(2) If no such acceptance is recorded within six months from the date the owner has occupied or taken possession of the improvement, in whole or in part, more than ten years after the improvement has been thus occupied by the owner; or
(3) If the person furnishing the design and planning does not perform any inspection of the work, more than ten years after he has completed the design and planning with regard to actions against that person.
B. The causes which are pre-empted within the time described above include any action:
(1) For any deficiency in the design, planning, inspection, supervision or observation of construction or in the construction of an improvement to immovable property;
(2) For damage to property, movable or immovable, arising out of any such deficiency;
(3) For injury to the person or for wrongful death arising out of any such deficiency; and
(4) Any action brought against a person for the action or failure to act of his employees.
This pre-emptive period shall extend to every demand whether brought by direct action or for contribution or indemnity or by third party practice, and whether brought by the owner or by any other person.
C. If such an injury to the property or to the person or if such a wrongful death occurs during the ninth year after the date set forth in Sub-section A, an action to recover the damages thereby suffered may be brought within one year after the date of the injury, but in no event more than eleven years after the date set forth in Sub-section A (even if the wrongful death results thereafter).
D. Actions for the causes enumerated in Sub-section B of this Section, against the persons enumerated in Sub-section A of this Section, shall prescribe by the applicable prescriptive periods established by law for such actions.
E. The pre-emptive period provided by this Section shall not be asserted by way of defense by a person in possession or control, as owner, lessor, tenant, or otherwise, of such an improvement at the time any deficiency in such an improvement constitutes the proximate cause of the injury, damage, or death sued upon with regard to any cause of action arising out of the alleged delict, quasi delict, or obligation of any such person arising out of his possession or control of the property-
F. Nothing in this Section shall be construed as modifying the liability or responsibility otherwise imposed by law on the owner of an immovable or the possessor, lessor or lessee of an immovable, by reason of the design, planning, supervision, inspection or observation of construction, or construction of improvements to immovable property.
G. Causes of action which exist prior to July 29, 1964 shall be pre-empted one year from said date or by the applicable pre-emptive period established by this Section, whichever is later. Added Acts 1964, No. 189, § 1.”

Plaintiff is clearly within the purview of LSA-R.S. 9:2772, Sections A and B because this is an action brought against those “performing or furnishing the design, planning, supervision, inspection or observation of construction or the construction of an improvement to immovable property.”

Under the statute, it matters not that the vice or defect did not manifest itself prior to that date. The legislature has fixed the absolute ten year peremptive period as the termination date for claims, regardless of whether or not the claims have manifested themselves.

It is axiomatic that a peremptive statute destroys a cause of action. As the Louisiana Supreme Court stated in Guillory v. Avoyelles Ry. Co., 104 La. 11, 28 So. 899 (1900) at page 901:

“When a statute creates a right of action, and stipulates the delay within which that right is to be executed, the delay thus fixed is not, properly speaking, one of prescription, but it is one of peremption. Statutes of prescription simply bar the remedy. Statutes of peremption destroy the cause of action itself. That is to say, after the limit of time expires, the cause of action no longer exists; it is lost.” (emphasis added)

Any redhibitory action which existed in appellant’s favor herein was lost by the passing of the ten year peremptive period.

Appellant also contends the application of R.S. 9:2772 to the case here is a retroactive application and would divest him of a vested cause of action in violation of his constitutional rights to due process.

In Stipe v. Joseph A. Neyrey General Contractors, Inc., 385 So.2d 568 (La.App. 4th Cir. 1980), the exact argument was presented to this Court and was ruled to be without merit. In Stipe, the plaintiff purchased and occupied a residence in 1961. The residence began sinking sixteen years later. This Court affirmed the district court’s judgment holding the plaintiff’s cause of action was pre-empted under LSA-R.S. 9:2772 (which came into effect in 1964). We also affirmed the lower court’s ruling that the retroactive effect given to R.S. 9:2772 did not divest the plaintiff of a vested property right nor violate the due process clauses of the federal and state constitutions. This ruling was grounded in Section G of LSA-R.S. 9:2772, supra, which states “Causes of action which exist prior to July 29, 1964 shall be pre-empted one year from said date or by the applicable preemptive period established by this Section, whichever is later.” Thus, we concluded that plaintiff had a reasonable time to assert his rights; hence, there has been no violation of his constitutional rights.

Accordingly, the judgment of the trial court maintaining the exception of no cause of action and dismissing plaintiffs suit at plaintiff’s costs is affirmed in all respects. Plaintiff to bear costs of appeal.

AFFIRMED.


text:
    Einar J. FERRO, Jr. v. Edward GREEN and New Orleans Public Service, Inc.
    No. 11610.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 5, 1981.

      Jacob Taranto, III, New Orleans, for plaintiff-appellee.
    C. B. Ogden, II, New Orleans, for defendant-appellant.
    Before BOUTALL, GARRISON and KLIEBERT, JJ.
   KLIEBERT, Judge.

The plaintiff-appellee, Einar J. Ferro, Jr., filed suit against Edward Green and New Orleans Public Service, Inc. claiming damages arising out of an automobile accident which occurred on August 4, 1970 at the intersection of Burgundy Street and Esplanade Avenue in the City of New Orleans. Burgundy Street, at the point it intersects Esplanade Avenue is a one way street with two lanes of traffic proceeding towards Esplanade. On August 4,1970, the plaintiff’s, Einar J. Ferro, Jr.’s, vehicle was stopped in the extreme right lane of Burgundy Street facing Esplanade Avenue. The defendant’s, New Orleans Public Service’s, bus operator was driving a NOPSI bus in the extreme left land of Burgundy Street. As the bus attempted to execute a right hand turn across plaintiff’s lane of traffic and onto Esplanade Avenue, the bus collided into the left side of plaintiff’s vehicle, causing the plaintiff’s vehicle to be raised from the ground and the plaintiff to be thrown about in his automobile.

After trial on the merits, judgment was rendered in plaintiff’s favor. The judgment was for a total of $42,462.14, computed by the trial judge as $15,000.00 for pain and suffering, $26,854.00 for past lost wages, $341.00 for past doctor bills and $264.13 for property damage to the automobile.

NOPSI appealed, contending plaintiff failed to prove the necessary causation between the accident of August 4, 1970 and plaintiff’s injuries. Plaintiff answered the appeal, claiming inadequate damages were awarded. Liability is not an issue on appeal. Hence, we direct our attention to the question of quantum.

According to the testimony given at the trial, since the accident plaintiff was examined by four physicians, two of whom treated him over a long period of time.

Dr. Alvin Johnson, a general practitioner, treated him from August 5, 1970 (the day after the accident) to October 26, 1970 (the date plaintiff was discharged). He diagnosed plaintiff’s injuries as a moderate cervical sprain, with traumatic myositis of the posterior and postero-lateral neck muscles, the upper trapezii and the left sternomas-toid, and a moderately severe lumbosacral jointsprain with involvement of the lower lumbar paravertebral musculature. Treatment consisted of analgesics, muscle relaxants, and proteolytic enzymes. Dr. Johnson discharged plaintiff on October 26, 1970, stating that no objective findings were evident as of that date, even though plaintiff had subjective feelings of pain.

On August 17, 1971 and March 1, 1972, Ferro was examined by Dr. Ray Haddad, an orthopedic surgeon. Dr. Haddad found no objective findings of injury in either examination. In light of Ferro’s history, Dr. Haddad felt the pain Ferro was experiencing was the result of a muscular injury. He found no signs of a disc problem and no evidence of nerve root irritation. Accordingly, Dr. Haddad prescribed flexion exercises to ease Ferro’s discomfort.

Dr. Stuart Phillips, an orthopedic surgeon, examined plaintiff for the first time on September 6, 1974. Plaintiff remained under Dr. Phillips’ treatment from then through the date of trial. He diagnosed plaintiff’s injury as a weakened disc, or an incomplete rupture. After subsequent examinations, he put the plaintiff in a support corset and prescribed isometric exercises, and Dilaudid for pain. On trial, Dr. Phillips testified he diagnosed plaintiff’s injury as a ruptured disc and based on plaintiff’s history felt it was reasonable to conclude the injury was caused by the accident of August 4,1970. Dr. Phillips assigned a disability of between ten and twenty per cent to the lumbar spine and ten per cent disability to the body as a whole.

The fourth doctor to examine the plaintiff was Dr. Richard Levy, a neurologist. At the defendant’s request, he examined Ferro in September, 1976. Dr. Levy could find no neurological involvement in either the cervical region or the lumbar region. Dr. Levy did find objective symptoms of mild mechanical low back pain, but he stated that those were ligamentous or muscular in origin. Since they were not the result of an injury or disease of the spinal cord or nerve roots, Dr. Levy referred Ferro back to his treating orthopedist.

Appellant contends there is no conclusive or strongly suggestive evidence of disc involvement. Further, Counsel argues plaintiff has failed to meet the burden of proving the injuries were caused by the accident of August, 1970. Additionally, appellant argues that several incidents subsequent to the accident, such as, weight lifting or throwing an anchor from a boat, could have caused the disc injury.

Plaintiff, Einar John Ferro, Jr., testified that prior to the accident of August 4,1970, he never had back problems; but, since the accident, the pain has never left his back. Ferro also disavowed any intervening accident or injury to his back and no proof was adduced at trial to support any such intervening cause for his injuries.

The Court was impressed with the logic of the treating orthopedist, Dr. Phillips, and hence quotes from Tr. pp. 225 and 226 as follows:

“_First off from an orthopedic standpoint, it obviously didn’t matter what caused the ruptured disc, whether weight lifting, the accident, a fall, the treatment is all the same so from an orthopedic standpoint it doesn’t make any difference, the treatment is the same there is no medical necessity to make a distinction. From a legal standpoint obviously there is quite a bit of necessity to make a distinction and the only way that I know of to make a distinction is by history, in other words, what the patient tells you about, when they hurt themselves and how they hurt themselves and from the history if the patient had back pain after an accident and never had a symptom free episode, by that I mean a six or twelve week period when he was pain free and functioning normally and the pain is intermittently every time that he stretched his back the pain continued to return, then you would just say by conviction that it was the accident that caused the first symptoms that caused the disc. On the other hand, say if the patient got well for a year and then was out lifting weights and had a reoccur-rence of pain then you would say that the second accident, the lifting of the weights was the cause of the patient’s present problems and that the first one was merely something that weakened it so it would be more likely to rupture. Now, all that I have for causation therefore is Mr. Ferro’s complaints and if the history is that his pain occurred in the back soon after the accident and has continued on a regular basis up until the present time that he never had a symptom free episode then my diagnosis would be that the automobile accident of 1970 caused it and if that’s not the history then my diagnosis would be that it did not cause it but merely weakened the disc.”

It is significant to note that none of the other three doctors who examined Ferro was willing to state that the accident of 1970 was not the cause of Ferro’s injuries. All three doctors stated, in essence, that it was possible, if not probable, for the accident to have caused Ferro’s injuries.

In addition, Dr. Phillips stated that the reports of Doctors Johnson and Haddad support his disc disease diagnosis because the symptoms that they report are symptoms of such a disease. Even though Dr. Haddad, a fellow orthopedist, found no objective findings of disc problems in his examinations of Ferro in 1971 and 1972, Dr. Phillips explained that such a finding was possible and doesn’t preclude having a weakened disc, since it was quite possible that Dr. Haddad saw plaintiff on a day when plaintiff had no objective findings.

The medical testimony in evidence, together with the testimony of Ferro, his wife, and a co-worker to the effect that there were no intervening causes, accidents or trauma, illustrate that plaintiff has proven by a preponderance of the evidence that his injuries are causally related to the accident of August 4, 1970.

Proof by a preponderance of the evidence simply means that, taking the evidence as a whole, such proof shows that the fact or cause sought to be proved is more probable than not. Marcotte v. Travelers Insurance Company, 258 La. 989, 249 So.2d 105 (1971).

It is axiomatic that the plaintiff has the burden of proving the causal connection between damages claimed and the accident by a reasonable preponderance of the evidence. Comeaux v. Barksdale, 342 So.2d 1181 (La.App. 1st Cir. 1977).

The trial court, viewing the evidence as a whole, concluded it was more probable than not that plaintiffs injuries were caused by the accident with the defendant. A trial judge’s finding of fact is not to be disturbed in the absence of manifest error. Canter v. Koehring Co., 283 So.2d 716 (La.1973).

We find no manifest error in the finding of causation by the Court below. The record clearly supports the determination of causation.

The standard of review for quantum was enunciated by the Supreme Court in Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976), wherein it stated (at 334):

“We do reemphasize, however, that before a Court of Appeal can disturb an award made by a trial court that the record must clearly reveal that the trier of fact abused its discretion in making its award, (citations omitted) Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court.”

The Supreme Court further articulated the process for evaluating quantum in Reck v. Stevens, 373 So.2d 498, 501 (La.1979) wherein it stated that:

“_the initial inquiry must always be directed at whether the trier court’s award for the particular injuries and their effects upon this particular injured person is, a clear abuse of the trier of fact’s ‘much discretion,’ La.Civ.C. Art. 1934(3), in the award of damages. It is only after articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review, for articulated reason, be considered either excessive_or insufficient, (emphasis added)

The trial court awarded plaintiff $15,000.00 for pain and suffering. We conclude that given the facts of this case, such an award is neither insufficient nor excessive.

However, the trial court also awarded plaintiff $26,854.00 for lost wages between 1970 and 1978. The proof adduced at trial to support a claim for lost wages was the testimony of John Heausler, official of' New Orleans Clerks and Checkers Union ILA Local 1497. Ferro is a member of this union. Basically, Heausler testified that Ferro was guaranteed 2080 hours a year by the union and that in the time span of 1970-1978, Ferro should have made $108,-680.00, but he only earned $81,826.00, a difference of $26,845.00. There was no explicit testimony adduced as to why Ferro missed the work time. The only testimony which referred to this was Ferro’s statement that he missed “two to four months a year” and about 200 to 300 hours of overtime. Since the requisite connexity between the plaintiff’s injury (which was caused by the accident) and the lost wages has not been satisfactorily proven, then plaintiff has failed to prove these damages by a preponderance of the evidence. See Marcotte v. Travelers, supra, and Comeaux v. Barksdale, supra.

However, the trial court also failed to take cognizance of the fact that plaintiff has incurred a disability of ten to twenty per cent of the lumbar spine and ten per cent of the body as a whole. No damages were awarded by the trial court for this disability, and we feel that it was manifest error to not grant same.

In our view, the award for lost wages is manifestly excessive. The award for permanent disability, being non-existent, is manifestly inadequate. However, within the limits of our permissible review under the guidelines enunciated by the Supreme Court in Coco and Reck, supra, the total amount awarded by the trial court is neither excessive nor inadequate. See, also, Wall v. New Orleans Public Service, Inc., 389 So.2d 80 (La.App. 4th Cir. 1980). Accordingly, we affirm.

For the foregoing assigned reasons, the judgment appealed from is affirmed. All costs of appeal to be paid by defendant-appellant, New Orleans Public Service, Inc.

AFFIRMED.


text:
    The BANK OF NEW ORLEANS AND TRUST COMPANY v. Mrs. Rosemary LEWIS.
    No. 11658.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 5, 1981.
    Newman & Drolla, A Professional Law Corporation, Robert T. Wakefield and Richard J. Tomeny, Jr., New Orleans, for plaintiff-appellant.
    The Legal Clinics of Paula Perrone, Paula Perrone Tardo and Bonnie L. McRae, New Orleans, for defendant-appellee.
    Before BOUTALL, GARRISON and KLIEBERT, JJ.
   KLIEBERT, Judge.

The plaintiff-appellant, The Bank of New Orleans and Trust Company, filed suit against Rosemary Lewis, as an endorser of a promissory note made by Rochell (Rochelle) Lewis, her daughter. The plaintiff’s motion for summary judgment was denied by the trial court.

The parties stipulated as to all facts material hereto, i. e., plaintiff is the payee and holder of a promissory note dated February 16,1978 in the sum of $2,979.60; the sum of $695.24 had been paid on said note; the defendant was entitled to an interest rebate of $24.51; the maker had defaulted in making payments; and there remains due and owing to BNO on the note the sum of $2,259.85, with eight (8%) per cent per an-num interest thereon from March 8, 1979 until paid. The parties also agreed that payments by the original maker, Rochell M. Lewis, were being made in accordance with a Chapter XIII Bankruptcy Earner Plan.

The matter was submitted to the trial court on the sole legal defense urged by defendant, i. e., whether or not a Chapter XIII Wage Earner Plan which has been filed and approved by the Bankruptcy Court for the maker of a note precludes the payee of said note from seeking legal redress from any endorser or co-maker of the note.

In the trial court, plaintiff’s counsel in his brief argued that the discharge of the maker of a note in bankruptcy did not alter the obligation of the endorser. The trial court concluded that since the maker of the note had not been discharged under the terms of the Bankruptcy Act and since the defendant, Rosemary Lewis, as an endorser continues to be obligated to pay if the maker, Rochell Lewis, does not and since the maker was making payments under the terms of the Chapter XIII Wage Earner Plan (albeit not according to the terms of the note), then plaintiff cannot have satisfaction from defendant at this time, and therefor entered judgment for defendant and dismissed plaintiff’s suit at its cost.

The obligation to which the defendant, Rosemary Lewis, bound herself is written on the reverse side of the note and is as follows:

“In consideration of the making at the request of the undersigned of the loan evidenced by the within note, the undersigned has taken notice of the conditions and promises on the reverse hereof, and binds himself in solido, by each and all of them, as thereon stated.”

By the very nature of the language of her obligation, defendant has become a soli-dary obligor, and as such is responsible for the entire obligation sued upon. C.C. Art. 2082 defines solidary liability as follows:

“When several persons obligate themselves to the obligee by the terms in solido, or use any other expressions which clearly show that they intend that each one shall be separately bound to perform the whole of the obligation, it is called an obligation in solido on the part of the obligors.”

Since defendant’s obligation has, by its very language, bound her in solido with the maker, and since the “in solido ” language “clearly show(s) that they intend that each one shall be separately bound to perform the whole of the obligation,” then Rosemary Lewis is in the same position as the marker of the note, and as such can be held liable for the entire amount sued upon.

The only remaining issue to be determined is whether this proceeding is within the purview of the Bankruptcy Reform Act of 1978 or within the purview of the Bankruptcy Act of 1898 as it existed prior to the effective date of the Reform Act. If it is under the Bankruptcy Reform Act of 1978, then 11 U.S.C. § 1301 would prohibit plaintiff, the creditor, from acting on or commencing or continuing any civil action against a co-debtor for debts which are within the purview of the act. This protection was not afforded under the bankruptcy law in effect prior to the Bankruptcy Reform Act of 1978.

Both parties herein acknowledged that the Bankruptcy Reform Act of 1978 became effective on October 1, 1979. P.L. 95-598, Title IV § 402. In the affidavit in opposition to plaintiff’s motion for summary judgment, defendant’s attorney acknowledged that the Chapter XIII Wage Earner Plan was confected and approved on January 10, 1979.

Section 403(a) of Title IV of the Reform Act provides:

“A case commenced under the Bankruptcy Act, and all matters and proceedings in or relating to any such case, shall be conducted and determined under such act as if this act had not been enacted, and the substantive rights of parties in connection with any such bankruptcy case, matter, or proceeding shall continue to be governed by the law applicable to such case, matter, or proceeding as if this act had not been enacted.”

Since the Wage Earner Plan of the original maker of the note was filed before the effective date of the Bankruptcy Reform Act of 1978, it is clear the law of the prior Bankruptcy Act of 1898 is applicable.

Formerly, 11 U.S.C. § 34, dealing with co-debtors of a bankrupt, provided that liability of a bankrupt’s co-debtor is not altered by a bankrupt’s discharge. Federal jurisprudence has consistently applied 11 U.S.C. § 34 to Chapter XIII, holding that co-debtors are not affected by a Chapter XIII proceeding. See, generally, In re Lancaster, 38 F.Supp. 318 (W.D.Mo.1941); Schraer v. G. A. C. Finance Corporation, 408 F.2d 891 (6th Cir. 1969); Reed v. General Finance Loan Company of Norfolk, 394 F.2d 509 (4th Cir. 1968).

Since the creditor herein, The Bank of New Orleans, clearly has the right to pursue his remedy against the co-debtor herein, Rosemary Lewis, then the judgment of the trial court must be reversed.

Accordingly, the judgment of the trial court is reversed, and judgment is rendered herein in favor of plaintiff, The Bank of New Orleans and Trust Company, and against defendant, Rosemary Lewis, in the full sum of $2,259.85, together with interest at the rate of eight (8%) per cent per an-num from March 8,1979 until paid, and 20% attorney’s fees, and for all costs, subject to a credit for all amounts received by plaintiff under Chapter XIII, the Wage Earner Plan of Rochell Lewis. All costs of this appeal to be paid by Rosemary Lewis.

REVERSED AND RENDERED.


text:
    Albert A. RICKER, Jr. v. Webster THOMPSON, Little Zion Missionary Baptist Church of Kenner, Louisiana, Inc. and Travelers Indemnity Company.
    No. 11616.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 5, 1981.

      Reuter & Reuter, Arthur C. Reuter, Jr., New Orleans, for plaintiff-appellee-appel-lant.
    Law Offices of James J. Morse, Carl L. Aspelund, New Orleans, for defendant-appellant-appellees.
    Anderson Council, Kenner, for defendant-appellee.
    Before BOUTALL, GARRISON and KLIEBERT, JJ.
   KLIEBERT, Judge.

Louisiana Highway 48 (Jefferson Highway) is a four-lane highway which runs through the City of Harahan and which is intersected by South Cumberland Street. On November 22,1977, Albert A. Ricker, Jr. was operating his motorcycle in a westerly direction on Louisiana Highway 48 (towards Kenner). As Ricker approached the intersection of Jefferson Highway and South Cumberland Street, a 1962 Chevrolet van, which had been traveling in an easterly direction (towards New Orleans), turned left into the path of Ricker’s motorcycle, resulting in a collision which injured Ricker.

Ricker sued for damages, alleging severe, painful, disabling, disfiguring and permanent injuries, which primarily consisted of multiple facial fractures, loss of nine teeth, and resultant scarring and speech impediment. Made defendants were Webster Thompson, the owner and driver of the Chevrolet van, the Travelers Indemnity Company, the liability insurer of Webster Thompson, and Little Zion Missionary Baptist Church of Kenner, Louisiana, Inc.

After trial on the merits, judgment was rendered in favor of Albert A. Ricker, Jr., and against Webster Thompson and Travelers Indemnity Company, jointly and in soli-do, in the sum of $50,619.13, subject to the limits of liability insurance policy, together with all costs of the proceeding. In addition, judgment was rendered in favor of defendant, Little Zion Missionary Baptist Church, dismissing plaintiff’s demand against them.

Webster Thompson and Travelers devolu-tively appealed the judgment, assigning as error the determinations of liability, quantum, and the defendant’s ability to respond in judgment. Plaintiff answered the appeal, seeking to have the judgment amended insofar as it absolved Little Zion Missionary Baptist Church of liability. Subsequent to trial, Webster Thompson died and his widow, Mildred Green Thompson, was substituted as proper party defendant herein.

Defendants appealed the trial court’s holding that Webster Thompson’s negligence caused the accident and contends plaintiff was negligent or contributo-rily negligent in causing the accident. The record does not support the defendant’s contention.

The record is devoid of any actionable negligence on plaintiff’s part. Albert Ricker, Jr. was proceeding lawfully on a favored street at a lawful rate of speed. A motorist who is proceeding lawfully on a favored street at a lawful rate of speed is entitled to presume that a crossing motorist will obey the law and allow him to continue. Bailes v. Casualty Reciprocal Exchange, 279 So.2d 255 (La.App. 2nd Cir. 1973); Simmons v. Alphonse, 291 So.2d 534 (La.App. 4th Cir. 1974).

Furthermore, the duties imposed upon Webster Thompson as a left-turning motorist are clear. Basically, the driver of a left-turning vehicle must yield the right of way to oncoming vehicles if they are so close to constitute an immediate hazard. Bennett v. U. S. Fidelity & Guaranty Company, 373 So.2d 1362 (La.App. 1st Cir. 1979), writ denied 376 So.2d 1269; R.S. 32:104.

Since Webster Thompson violated his duty of yielding the right of way to Ricker’s oncoming motorcycle, and since there is no proof of negligence on Ricker’s part, then the trial court was correct in finding that Webster Thompson’s negligence was the proximate cause of the accident.

The standard of review for quantum was enunciated by the Supreme Court in Coco v. Winston Industries, Inc., 341 So.2d 332 (La. 1976) wherein it stated (at 334):

“We do reemphasize, however, that before a Court of Appeal can disturb an award made by a trial court that the record must clearly reveal that the trier of fact abused its discretion in making its award, (citations omitted) Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court.”

The Supreme Court further articulated the process for evaluating quantum in Reck v. Stevens, 373 So.2d 498, 501 (La.1979) wherein it stated that:

“_the initial inquiry must always be directed at whether the trier court’s award for the particular injuries and their effects upon this particular injured person is a clear abuse of the trier of fact’s ‘much discretion,’ La.Civ.C. Art. 1934(3), in the award of damages. It is only after articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review, for articulate reason, be considered either excessive _or insufficient.” (emphasis added)

Analysis of the evidence in this case reveals that the trial court’s award of quantum was not an abuse of the “much discretion” afforded trial courts under La.Civ.C. Art. 1934(3). The testimony elicited at the trial amply supports the award made by the trial court.

Dr. Robert H. Cox, an ear, nose and throat specialist, first examined plaintiff the day after the accident. He diagnosed plaintiff as having fractures of both cheekbones and fractures of the gums that hold sockets for the teeth. Additionally, plaintiff suffered a broken nose and had a split in his palate, running the full length of his mouth, separating one cheekbone from the other. After waiting ten days for the swelling to subside, Dr. Cox performed surgery on the plaintiff in order to wire his cheekbones and face together and to wire plaintiff’s jaws shut. Dr. Cox saw plaintiff five times after the surgery and initially released him from his care on January 31, 1978. At the trial, Dr. Cox described plaintiff’s injuries as being both “severe” and “painful”.

In 1979 plaintiff, complaining of having trouble breathing through his nose, again visited Dr. Cox. He discovered a broken bone obstructing plaintiff’s breathing and performed additional corrective surgery in December, 1979. Although plaintiff had scars under his lower eyelids, scars on both sides of an eyebrow, scars on his chin and multiple facial scars due to facial lacerations, Dr. Cox did not recommend plastic surgery for them. He termed the results of both surgeries as “satisfactory” and stated the bones were well-healed and in good position. Also, he did not feel Ricker was any more susceptible to facial trauma than an individual who did not have Ricker’s problems.

A specialist in oral surgery, Dr. Richard K. Aiken, participated with Dr. Cox in the first operation performed on Ricker. His testimony as to the injuries sustained by Ricker corroborated that of Dr. Cox. The wires were removed from Ricker’s jaws on January 24, 1978 by Dr. Aiken. For sometime thereafter, Ricker had difficulty opening his mouth. He was able to open his mouth only 26 millimeters, while normal opening is 45 millimeters. Dr. Aiken also removed two upper and five lower teeth from Ricker in February, 1978, then discharged him to his general dentist that same month.

Dr. Robert S. Barry, D.D.S., first saw Ricker on February 2, 1978. He stated plaintiff was initially unable to open his mouth wide enough to take x-rays or impressions. Hence, he referred plaintiff to an orthodontist for therapy and orthodontic work. At the time of trial, plaintiff needed restorative dental work done to remedy the missing teeth. According to Dr. Barry, this would take approximately eight to ten office visits over a four month period to complete. The cost of completion was estimated at $4,600.00.

Dr. Barry related a good prognosis for Ricker after completion of the restorative work, stating that Ricker should be able to function, speak and eat adequately with the prosthesis he would place in Ricker’s mouth. The prosthesis would look acceptable in appearance as compared to natural teeth. The restorative work would probably have to be redone at least once more during Ricker’s lifetime.

Albert Ricker, Jr., plaintiff, testified he was in severe pain for several months after the accident. He could not walk or go to the bathroom without assistance for one month following the accident. Walking required the use of a cane six to eight weeks after the accident. At the time of trial, he still could not eat all foods or chew gum.

At the time of the accident, Ricker had just quit a job as a deckhand and dispatcher in order to attend Delgado in December, 1977. As a result of this accident, plaintiff had to delay school for a seven-month period and subsequently attended and finished Delgado as an automotive technician. Ricker was employed as an auto mechanic making $8.50 per hour and commission at the time of trial. He testified as to only slight pain and problems with his teeth at the time of trial which was January, 1980. His father, Albert Ricker, Sr., testified as to his son’s inability to function without assistance for about two months subsequent to the accident and to the fact that plaintiff’s speech has been impaired since the accident.

The trial court did not itemize its total award of $50,619.13 for damages. Considering the stipulated special damages ($11,020.00), the restorative work which is needed by Ricker, loss of wages for seven months, past, present and future pain and suffering, permanent loss of teeth, scarring, speech impediment, and mental anguish, we find no abuse of the discretion the trial court has in awarding damages. In the absence of such abuse, we have no reason to disturb the trial court’s award. See Coco v. Winston Industries, Inc., supra, and Reck v. Stevens, supra.

Defendant argues for a reduction of the award because of the defendant Thompson’s inability to respond in judgment. The evidence adduced at the trial indicated Webster Thompson and his wife’s income at $638.00 per month. In addition, Thompson had an interest in two lots of ground located in Jefferson Parish. No appraisals as to the value of the lots were submitted. Several pictures of Thompson’s house were admitted in evidence.

It is a well-established principle in awarding damages for personal injuries that the defendant’s ability to pay is one of the factors which must be considered. Smith v. Girley, 242 So.2d 32 (La.App. 1st Cir. 1970). Given the foregoing facts, the trial judge concluded in his reasons for judgment “Webster Thompson, being a homeowner in Jefferson Parish, as well as an owner of another piece of immovable property can and must respond in judgment”. We find no error in this conclusion.

The trial court dismissed plaintiff’s demands against Little Zion Missionary Baptist Church of Kenner, Louisiana, Inc. Plaintiff appealed from the ruling.

Webster Thompson’s deposition shows he was a member of, a deacon, and on the Board of Trustees of the Little Zion Missionary Baptist Church, Inc. At the time of the accident, he was bringing children home from Sunday School. Thompson testified that he wasn’t paid, but “just did it for a pleasure”. He denied receiving a salary or that the church had control over his vehicle or his route or his actions. He admitted receiving a little money to defray his expenses.

Reverend Arthur Paul Clay, Sr., testified that Thompson was not directed to go to any particular geographic location and was not answerable to either him or the chairman of the Trustee Board. In addition, he stated Thompson was given money or a check to help defray his gasoline expenses. Reverend Clay further testified that the church did not insure or maintain Thompson’s vehicle, nor tell Thompson how many or which children to transport to school.

In its reasons for judgment, the trial court explained its rationale for dismissing the plaintiff’s claims against the church as follows:

“Defendant, Webster Thompson, received no compensation for his services from defendant, Little Zion Missionary Baptist Church; accordingly, the Court must conclude that an employer-employee relationship did not exist between Webster Thompson and Little Zion Missionary Baptist Church. However, lack of an economic relationship will not bar the existence of a principal-agent relationship. In order for a principal-agent relationship to exist, subjecting the principal to liability for the conduct of the agent, the principal must have the right to control the physical details of the agent’s activities. The Court, considering the undisputed facts in this case concludes that Little Zion Missionary Baptist Church did not exercise any control and/or direction over the person of Webster Thompson. Accordingly, the Court finds that the negligence of defendant Webster Thompson can not be imputed to defendant Little Zion Missionary Baptist Church.”

We find no error in the trial judge’s conclusions.

In Blanchard v. Ogima, 253 La. 34, 215 So.2d 902 (1968), Justice Barham said:

“A master or employer is liable for the tortious conduct of a servant or employee which is within the scope of authority or employment, but a principal is not liable for the physical torts of a non-servant agent.
* * * * * *
Although a servant may possess the qualities of an agent, all agents do not qualify as servants. The master-servant relationship cannot be equated with the principal-agent relationship. Employer-employee status may be included within the master-servant relation, but principal-agent status cannot unless the agent is also a servant. Neither jurisprudence nor modern commerce will allow us to define “servant” as one who does only physical acts.
‘Servant’ must be interpreted as that particular kind of agent who has a very close economic relation to, and is subject to a very close control by, the principal. A servant is one who offers his personal services for a price. He is an integral part of his employer’s business and must submit to the control of his physical conduct as well as of his time. A non-servant agent contributes to the business of his employer, but he is not such a part of it that his physical acts and the time to be devoted to the business are subject to control.”

For the foregoing reasons, the judgment appealed from is affirmed. Costs to be borne by the defendants, Travelers and Thompson.

AFFIRMED.


author: C. LENTON SARTAIN, Judge.

text:
    Angelo G. SILVESTRI v. BEAVER PRODUCTIONS, INC.
    No. 11550.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 5, 1981.
    Silvestri, Marinaro, Massicot & Davis, John P. Massicot and Anthony L. Marinaro, New Orleans, for plaintiff-appellee.
    Tucker & Schonekas, Arthur S. Mann, III, New Orleans, for defendant-appellant.
    Before GULOTTA, SCHOTT and C. LENTON SARTAIN, JJ.
   C. LENTON SARTAIN, Judge.

This litigation concerns the validity of service and citation. The defendant, Beaver Productions, Inc. (Beaver), appeals from a judgment dismissing its suit to annul a default judgment against it. We reverse and render.

The procedural facts are: Angelo G. Sil-vestri instituted suit against Beaver for penalties and attorney’s fees in connection with delayed payment of past due wages. R.S. 23:631 and 632. Purported service and citation were made on Beaver under the provisions of C.C.P. arts. 1261 and 1262 below. Judgment by default was entered in Silvestri’s favor on September 22, 1977. Silvestri then levied upon the assets of Beaver at the Bank of New Orleans, New Orleans, Louisiana. Beaver, averring that this was its first knowledge of the suit, brought the instant action to annul the judgment based, inter alia, on faulty service and citation. The seizure of Beaver’s assets was enjoined and the matter proceeded to trial on the merits. Beaver’s claim of defective service and citation was denied, the preliminary injunction was vacated, and this sus-pensive appeal followed.

The applicable codal provisions are C.C.P. arts. 1261 and 1262, which provide:

Article 1261:
“Service of citation or other process on a domestic or foreign corporation is made by personal service on any one of its agents for service of process.
“If the corporation has failed to designate an agent for service of process, or if there is no registered agent by reason of death, resignation, or removal, service of citation or other process may be made at any place where the business of the corporation is regularly conducted either:
“(1) By personal service on any officer, director, or resident agent named in the articles of incorporation or in the last report previously filed with the secretary of state, or “(2) By personal service on any employee of suitable age and discretion.”
Article 1262:
“If the officer making service certifies that he is unable, after diligent effort, to have service made as provided in Article 1261, then the service may be made personally on the secretary of state, or on a person in his office designated to receive service of process on corporations. The secretary of state shall forward this citation to the corporation at its last known address.”

Beaver is a domestic corporation, domiciled in the Parish of Orleans. At the time of the filing of the original suit (June 24, 1977) the records in the office of the Secretary of State reflected that the corporation’s registered address was 8200 Hampson Street, New Orleans, Louisiana, and its agents for service of process were shown as Donald H. Fox and Brian J. Glynn. Their respective addresses were also shown as 8200 Hampson Street. Beaver had failed to designate a later change of address.

Beaver had in fact some three years earlier moved its offices to 323 Dauphine Street in New Orleans. It also maintained and used a warehouse on Tchoupitoulas Street in the City of New Orleans.

The Deputy Constable, First City Court, Parish of Orleans, designated to effect service on Beaver, testified that he made some 10 to 15 trips to Hampson Street when finally someone there told him that Beaver had moved. After some consultation between himself, his superior, and counsel for plaintiff, he was advised to try the warehouse on Tchoupitoulas Street. His repeated efforts there were also unsuccessful. He was then advised to signify his failure to make service “after due and diligent search” and return the papers to the Court for service through the Secretary of State under C.C.P. art. 1262, above. This officer further testified that he did not look in the New Orleans telephone directory, but followed his “Blue Book”, which continued to show the Hampson Street address for Beaver and its agents. He overheard some discussion in his office about the Dauphine Street address but was not requested to attempt service there nor did he do so.

Plaintiff Silvestri testified that in the preceding 18 months he had been to the Dauphine Street offices on approximately three occasions and had telephoned and talked to one of the corporate officers at that address on several other occasions. The last such occasion was about one week before suit was filed when he made verbal demand for his wages. His registered demand letter was addressed to and the return receipt therefor was from the Dau-phine Street address.

Under these facts the issue is whether the constable satisfied the “diligent effort” requirement of C.C.P. art. 1262, above. We think not.

Were it not for the particular facts of this case we would be inclined to affirm. The purpose and requirements of R.S. 12:104 are to prevent and eliminate the difficulties encountered herein with respect to the location of domestic corporations and their agents for service of process. However, where the plaintiff is well aware of the location of the corporate defendant’s principal office, he is obliged to notify his counsel. In turn counsel is obliged to notify the serving officer. In the instant matter a simple telephone call would have resolved the dilemma.

Simply stated: Service and citation on a corporate defendant whose address is well known to the plaintiff and, to a lesser degree, to the serving officer, cannot be made on the Secretary of State under the provisions of C.C.P. art. 1262, above. The essential requirement of “diligent effort” has not been satisfied and any judgment rendered thereon without subsequent personal appearance by the defendant may be annulled. C.C.P. art. 2002(2).

For these reasons the judgment of the trial court is reversed and judgment is rendered herein in favor of Beaver Productions, Inc. and against Angelo G. Silvestri, decreeing null and void the default judgment of September 22,1977 against Beaver Productions, Inc., in favor of Angelo G. Silvestri, in Suit No. 200-381 Sect. “C” on the docket of the First City Court, Parish of Orleans, New Orleans, Louisiana.

All costs of these proceedings are assessed against Angelo G. Silvestri.

REVERSED AND RENDERED.

      . R.S. 12:104 reads:
      “A. Every corporation shall continuously maintain an office in this state, to be known as its registered office. The location and post office address of the original registered office shall be stated in the initial report, as provided in R.S. 12:101.
      “B. After incorporation, a change in the location of the registered office may be authorized at any time by the board of directors. Within thirty days after the change is made, notice of the change, and of the post office address of the new registered office, shall be filed with the Secretary of State and with the recorder of mortgages of the parish in which the new office is located. If the registered office should be vacated by the corporation, a new registered office shall be designated by the board, and notice of the change and of the post office address of the new office filed with the Secretary of State and with the recorder of mortgages of the parish in which the new office is located, within thirty days. The designation of a registered office shall remain effective until a change is made therein, and notice of the change is filed in the manner hereinabove provided; except that if no notice of change is filed within thirty days after the registered office has been vacated, the office of the Secretary of State may thereafter be treated as the registered office by any person other than the corporation itself. If the registered office is changed from one parish to another, the notice of change shall be filed with the recorder of mortgages of both the parish from which and that to which the registered office is removed. The registered office shall be considered the domicile of the corporation for all purposes.”

      . C.C.P. art. 2002(2) reads:
      “A final judgment shall be annulled if it is rendered:
      # # jfc # # #
      “(2) Against a defendant who has not been served with process as required by law and who has not entered a general appearance, or against whom a valid judgment by default has not been taken ...”


author: EDWIN R. HUGHES, Judge.

text:
    Carol SCHRECK v. ONE HOUR MARTINIZING, INC.
    No. 11575.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 5, 1981.

      Ross T. Scaccia, New Orleans, for plaintiff-appellee.
    Frederick S. Haygood, Camp, Carmouche, Palmer Barsh & Hunter, New Orleans, for defendant-appellant.
    Before REDMANN, SCHOTT and EDWIN R. HUGHES, JJ.
   EDWIN R. HUGHES, Judge.

This is an appeal by defendant, One Hour Martinizing, A/K/A Supervisory Services, Inc., from a judgment condemning it to pay $650.00 plus $100.00 in attorney’s fees to plaintiff, Carol Schreck. Plaintiff instituted suit against defendant alleging that the One Hour Martinizing Company located at 6043 Magazine Street ruined a dress which she delivered to them for cleaning. Ms. Schreck claimed damages of $150.00 for the cost of the dress and $500.00 for inconvenience and requested attorney’s fees. After trial on the merits, the trial judge awarded plaintiff $650.00 plus $100.00 in attorney’s fees. Defendant appealed and we affirm in part and reverse in part.

The testimony established that Ms. Schreck was a regular customer of defendant and that she brought an aqua-blue silk dress in for cleaning on January 23, 1979. Sometime shortly thereafter complaining that the dress was out of shape and its color had been ruined. Defendant’s employee testified that the dress was cleaned by the normal process for a delicate fabric: “... we put it in a flight bag, cleaned it for a short period of time and threw it in the dryer for a short period of time ...

Responding to plaintiff’s complaints, the defendant sent the dress to the International Fabric Institute of Silver Springs, Maryland for analysis. The Institute sent its report back to One Hour Martinizing. Plaintiff refused to accept either the report or the dress and commenced the present action.

Defendant raises the following issues on appeal:

Whether the trial judge was manifestly erroneous in finding liability on the part of defendant when such liability is unsupported by law or fact.

Whether the inconvenience award of $500.00 is excessive and should be set aside.

Whether the award of $100.00 for attorney’s fees is contrary to the law and should be set aside.

Defendant’s initial assertion on appeal is that the trial court committed error in concluding that the dry cleaner was liable for the distortion and discoloration of the dress. It should be noted that the amount awarded for the cost of the dress is not at issue on appeal. Though no receipt was offered into evidence, defendant’s two experts testified that $150.00 was not an unreasonable sum for the dress.

Mr. Norman Oehlke of the International Fabric Institute of Silver Springs, Maryland testified that the dress simply could not withstand the regular dry cleaning process since the agitation of the machines necessary to get the garment cleaned pulled the dress out of shape due to the nature of the fabric itself. However, there is no evidence that the garment could not be cleaned satisfactorily if given special individual attention.

Plaintiff testified that she inquired whether defendant could safely clean the dress and that she was assured by defendant’s employees that they could. She stated that at other times when a questionable item was delivered for cleaning the establishment would have her sign a release saying that they would not be responsible for damage but they did not ask her to do this with the dress. Though defendant’s employees could not remember any specifics on the day the dress was brought in, there was no testimony to refute plaintiff’s recollections. Based on its’ own expert’s testimony, defendant either knew or should have known of the risks involved in cleaning this 100% silk dress and having represented to plaintiff that there was no risk in cleaning the dress, the defendant is liable.

Turning to the issue of damages for inconvenience; awards of damages for non-pecuniary losses for breach of contract are viewed with skepticism in Louisiana. Meador v. Toyota of Jefferson, 332 So.2d 433 (La.1976). Inconvenience and mental anguish damages are more readily recoverable in tort. In many cases, elements of contract and tort are so intertwined that labeling the case one or the other is difficult. Defendant contends that both tort (C.C.Art. 2315) and contract (C.C.Art. 2937; contract of deposit) are involved here, however, where one has agreed to perform a service for another, this is generally viewed as a contract situation. Regardless of the category of the present action, the plaintiff is required to prove, with at least minimal certainty, each element of damage suffered. Campbell v. Lelong Trust, 327 So.2d 533 (La.App. 2nd Cir. 1976).

In Gele v. Markey & Hanover Ins. Co., 387 So.2d 1162 (La.1980) decided by the Louisiana Supreme Court in September of 1980, the plaintiffs, an elderly couple, sued the lessor of a building in which they operated a small grocery after the ceiling of the building collapsed resulting in the termination of their livelihood. The Supreme Court, in affirming the appellate court’s denial of damages for emotional distress held that although such damages should be compensable upon adequate proof, plaintiff’s testimony that they were “distraught” after the accident was not sufficient “to prove that they suffered any real, substantial emotional distress or loss of intellectual enjoyment because of the ceiling’s collapse”. In the instant matter, the record is void of any testimony or evidence whatsoever of Ms. Schreck’s emotional distress or inconvenience. She, in fact, testified that she lived across the street from the defendant’s establishment and “walked it (the dress) across the street” once she noticed the damage. Because plaintiff has failed to prove any legally compensable degree of inconvenience the award of $500.00 for the same should be reversed.

Finally, it is well settled that attorney’s fees are not allowed unless provided for by statute or contract. Maloney v. Oak Builders, Inc., 256 La. 85, 235 So.2d 386 (1970); Pelican Printing Co. v. Pecot, 216 So.2d 153 (La.App. 4th Cir. 1968). Therefore, the award of $100.00 for attorney’s fees unsupported by statute or contract should be reversed.

Accordingly, the award of $150.00 for the cost of the dress is affirmed. The award of $500.00 for inconvenience and the award of $100.00 for attorney’s fees are reversed. Each party shall bear their own costs for this appeal.

AFFIRMED IN PART;

REVERSED IN PART.


text:
    Anthony CUCCIA, Jr. v. Linda French CUCCIA.
    Nos. 11680, 11681.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 5, 1981.

      Ann Steinhardt, New Orleans, for plaintiff-appellant.
    Reed & Reed, Floyd J. Reed, New Orleans, for defendant-appellee.
    Before GULOTTA, BOUTALL and EDWIN R. HUGHES, JJ.
   EDWIN R. HUGHES, Judge.

Plaintiff-appellant, Anthony Cuccia, Jr., instituted two actions against his former wife in small claims court. The suits were for damages ($750.00) and rental due ($580.00) on a home located at 1729 Sandra Avenue in Metairie, Louisiana. Defendant-appellee, Linda French Cuccia, filed for removal of the cases to the regular docket of First City Court, as was her right under La.R.S. 13:5209. The cases were transferred and consolidated for trial.

On April 16, 1980 a trial on the merits was initiated and plaintiff, appearing in proper person, put on his case. At the close of plaintiff’s case, defendant moved for a directed verdict under La.C.C.P. 1810B. The motion was granted and plaintiff’s suit was dismissed. Plaintiff appealed, presenting the issue to this court as: Did the trial court consider the separateness of the property resulting from an alleged contract between plaintiff and defendant.

Defendant-appellee maintains, in her brief, that the property involved in this litigation was co-owned by the parties and was the family home during their marriage and that these suits were instituted merely out of vengeance. By answer to appeal, dated June 5, 1980, she seeks damages for frivolous appeal.

A directed verdict is properly granted on defendant’s motion, when, at the completion of plaintiff’s evidence, the trial judge determines that plaintiff has shown no right to relief.

We are not given the benefit of any recorded testimony or proof presented before the trial court for our review of its determination. Likewise, we have been given no explanation for appellant’s failure to provide us with anything on which we could review the trial court’s action.

La.C.C.P. Art. 2131 provides:

If the testimony of the witnesses has not been taken down in writing the appellant must request the other parties to join with him in a written and signed narrative of the facts, and in cases of disagreement as to this narrative or of refusal to join in it, at any time prior to the lodging of the record in the appellate court, the judge shall make a written narrative of the facts, which shall be conclusive.

Louisiana jurisdiction has consistently held that where the appellate record contains neither a transcript of testimony nor a narrative of the facts agreed to by the parties or made by the judge pursuant to the above statute, the Court of Appeal cannot review the sufficiency of evidence questions. We therefore must consider the judgment of the trial court as correct and supported by sufficient evidence. Schroeder v. Schroeder, 184 So.2d 75 (La.App. 4th Cir. 1966); Bourgeois v. Daigle, 340 So.2d 1063 (La.App. 1st Cir. 1976); Vaughan v. Fair, 337 So.2d 675 (La.App. 3rd Cir. 1976); Hutcherson v. Welch, 316 So.2d 144 (La. App. 2d Cir. 1975).

Appellant has filed a one page brief that is so sparse that it does not even argue that appellant ever agreed to pay rent after the parties divorced. It is our view that when an appellant invokes the appellate process but fails to avail himself of recording services that are available at the trial court level or provisions of La.C.C.P. 1810B and then avoids dismissal of appeal by filing a brief that is no more helpful than the one now before us, the accusation that the appeal was frivolous cannot be ignored. It is our view that this appeal was frivolous and that appellee is entitled to damages in the amount of $1,000.

We therefore order, adjudge and decree that Anthony Cuccia, Jr. pay to Linda French Cuccia the full sum and amount of $1,000. plus legal interest thereon from June 2, 1980 until paid and all costs of this appeal. In all other respects, the judgment of the trial court is affirmed.

AFFIRMED.

      . The issues and parties in these two consolidated actions are identical; therefore, this opinion applies to both appeals.


author: FORET, Judge.

text:
    George Deloyce BLEWER, Plaintiff-Appellee, v. CONTINENTAL ASSURANCE COMPANY and The State Employees Group Benefits Program, Defendants-Appellants.
    No. 8010.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 1981.

      Tommy D. Teague, Baton Rouge, for defendants-appellants.
    Watson, Murchison, Crews, Arthur & Corkern by Wm. P. Crews, Jr., Natchitoch-es, for plaintiff-appellee.
    Before FORET, SWIFT and DOUCET, JJ.
   FORET, Judge.

George Deloyce Blewer (Plaintiff) brought this action under LSA-R.S. 22:657 to recover penalties and attorney’s fees as provided for in that statute. The Continental Assurance Company (Continental) and The State Employees Group Benefits Program (the Program) were made defendants.

The trial court gave judgment in favor of plaintiff, and defendants appealed. Defendants-appellants present three issues for determination:

(1) Whether LSA-R.S. 22:657 is applicable under the facts and circumstances of this case;
(2) Whether the delay in the payment of plaintiff’s claims was unreasonable; and, alternatively,
(3) Whether the trial court’s award of attorney’s fees was excessive.

FACTS

Plaintiff sustained serious injury on September 1,1979, when a shotgun accidentally discharged, wounding his left hand. He was initially treated at Natchitoches Parish Hospital and later transferred to Schum-pert Memorial Medical Center in Shreveport, Louisiana.

Elizabeth B. Blewer, plaintiff’s wife, is a state employee, and plaintiff is a covered dependent under the program. Plaintiff began submitting various claim forms to the Program on September 27, 1979. He failed to receive any satisfactory response to his claim and engaged legal counsel who made written demand on defendants. Defendants replied by letter dated January 16, 1980, stating that, “a draft has been printed” and “will be mailed within the next two days”. However, Elizabeth Blewer subsequently received a letter from the defendants dated January 21,1980, in which it was stated that “no benefits are payable” on plaintiff’s claim for medical expenses incurred at Schumpert Memorial Medical Center.

Plaintiff then filed this action on January 29, 1980, alleging that defendants had violated the provisions of LSA-R.S. 22:657 by arbitrarily and capriciously failing to pay his valid claim within thirty days from the date upon which written notice and proof of claim had been submitted. The parties stipulated that the total sum of claims paid after the thirty-day time period had expired was $9,136.20. It was further stipulated that all eligible benefits were paid before trial.

The trial of this action was held on April 21, 1980, and the trial court rendered judgment in favor of plaintiff and against the Program on May 16, 1980. The judgment awarded plaintiff $9,136.20 in penalties and $1,000.00 in attorney’s fees and denied all demands against Continental. Defendants were granted a suspensive appeal from that judgment.

APPLICABILITY OF LSA-R.S. 22:657

The first issue is whether LSA-R.S. 22:657 was applicable to the Program, a state agency, at the time this action arose.

The Program is a system of self insurance set up by the State to provide insurance coverage to certain of its employees and their dependents. The Program is administered by Continental under a contract with the State.

Appellants argue that the trial court erred in finding that LSA-R.S. 22:657 was applicable in this action. It is appellants’ contention that LSA-R.S. 22:657 was inapplicable to the Program prior to its amendment by Acts 1979, # 240 § 1, effective September 7, 1979. LSA-R.S. 22:657 prior to Act 240 of 1979, read:

“§ 657. Payments of claims; health and accident policies; penalties
A. All claims arising under the terms of health and accident contracts issued in this state, except as provided in Subsection B, shall be paid not more than thirty days from the date upon which written notice and proof of claim, in the form required by the terms of the policy, are furnished to the insurer unless just and reasonable grounds, such as would put a reasonable and prudent business man on his guard, exist. The insurer shall make payment at least every thirty days to the assured during that part of the period of his disability covered by the policy or contract of insurance during which the insured is entitled to such payments. Failure to comply with the provisions of this Section shall subject the insurer to a penalty payable to the insured of double the amount of the health and accident benefits due under the terms of the policy or contract during the period of delay, together with attorney’s fees to be determined by the court. The district court of the parish where the insured lives or has his domicile shall have jurisdiction to try such cases.
B. All claims for accidental death arising under the terms of health and accident contracts where such contracts insure against accidental death shall be settled by the insurer within sixty days of receipt of due proof of death and should the insurer fail to do so without just cause, then the amount due shall bear interest at the rate of six percent per annum from date of receipt of due proof of death by the insurer until paid.” (Emphasis provided.)

Appellants argue that by the very terms of the statute, the penalty provision applies only to insurers. Appellants then cite the definition of insurer found in LSA-R.S. 22:5(2). This provision reads:

“(2) “Insurer” includes every person engaged in the business of making contracts of insurance, other than a fraternal benefit society. A reciprocal, an inter-insurance exchange or a Lloyds organization is an “insurer”. Any person who provides an employee benefit trust as specified in R.S. 22:5(1) is an insurer.”

Appellants also cite Killebrew v. Abbott Laboratories, 359 So.2d 1275 (La.1978), a case decided before LSA-R.S. 22:657 was amended in 1979, where our Supreme Court had the occasion to interpret and apply LSA-R.S. 22:5(2) and stated on page 1279 that:

“Abbott is not ‘engaged in the business of making contracts of insurance’ merely because it provides, through a trust, a long-term disability plan for its employees. Abbott does not offer the program primarily for profit, nor is the coverage of its own employees the result of advertisement or solicitation of insurance business from the general public or of holding itself out or doing business as a commercial insurer. See Metropolitan Police Retiring Assoc., Inc., 113 U.S.App.D.C. 168, 306 F.2d 775 (1962); Danna v. Comm’r of Ins., 228 So.2d 708 (La.App. 1st Cir. 1969); State ex rel. Farmer v. Monsanto Co., 517 S.W.2d 129 (Mo.1974); Mutual Life Ins. Co. of N. Y. v. N. Y. State Tax Comm., 32 N.Y.2d 348, 345 N.Y.S.2d 475, 298 N.E.2d 632 (1973). Accordingly, Abbott is not an ‘insurer’ subject to the Insurance Code; therefore, La.R.S. 22:657 A is not applicable to Abbott. The courts below correctly denied penalties and attorney fees in the instant case.”

Similarly, appellants argue that the State Employees Group Benefits Program of the State of Louisiana, is a self-insured program offered as a fringe benefit to state employees and an employee’s coverage arises from his employment status and not from an independently secured contract of insurance. Therefore, the State of Louisiana is not a commercial insurer and cannot be subject to the penalty and attorney’s fees provisions of LSA-R.S. 22:657, as it read prior to Act 240 of 1979.

Plaintiff-appellee argues to the contrary that LSA-R.S. 22:657 as amended by Act 240 of 1979 is applicable to the Program by virtue of that amendment. LSA-R.S. 22:657 was amended by Act 240 of 1979 to add Subsection C which reads:

“§ 657. Payment of claims; health and accident policies; penalties; self-insurers

[See main volume for text of A and E]

C. Any person, partnership, corporation or other organization, or the State of Louisiana which provides or contracts to provide health and accident benefit coverage as a self-insurer for his or its employees, stockholders or any other persons, shall be subject to the provisions of this Section, including the provisions relating to penalties and attorney fees, without regard to whether the person or organization is a commercial insurer provided, however, this Section shall not apply to collectively bargained union welfare plans other than health and accident plans.”

This subsection clearly subjects the Program to LSA-R.S. 22:657(A) and the delays and penalties provided therein. However, appellants argue that since plaintiff’s claim arose on September 1,1979, the date he was injured, to apply LSA-R.S. 22:657 as amended by Act 240 of 1979, effective September 7, 1979, would be to give a retroactive effect to the substantive change in the law. We disagree.

We agree with the argument of plaintiff-appellee that his cause of action for penalties and attorney’s fees arose only after the appellants failed to make payment on his claims within the thirty-day time period. Plaintiff-appellee brought this action based on the provisions of LSA-R.S. 22:657 and it is that statute which gave rise to his cause of action. The plaintiff-appellee submitted his claim for medical expenses incurred at Schumpert Memorial Medical Center to the Program on October 5, 1979. His cause of action under LSA-R.S. 22:657 against the Program for penalties and attorney’s fees came into existence thirty days after October 5,1979, when the Program failed to pay his claim.

We find that plaintiff-appellee’s cause of action arose after the amendment to LSA-R.S. 22:657 by Acts 240 of 1979 had become effective and that this provision, as amended, applies to the action before us.

DELAY IN PAYMENT OF PLAINTIFF’S CLAIM

The second issue we address is whether appellants’ delay in the payment of benefits to plaintiff on his claims was based on just and reasonable grounds such as would put a reasonable and prudent businessman on his guard. LSA-R.S. 22:657 (A).

Appellants argue that no benefits are payable under the Program for intentional self-inflicted injuries, injuries sustained in an aggressor role or on any attempt at suicide, and that any gunshot wound is automatically suspect under this provision.

On October 5,1979, six days after submission of the claim form, the Program requested a copy of the police report on this incident. This is normal procedure when any claim for a gunshot wound is received for payment. No report was forthcoming, and on three other occasions, through January 30, 1980, a police report was requested. It was only upon the trial of this matter that appellants learned that no police report had been filed.

Appellants contend that the facts of this case were such as to put a reasonable and prudent businessman on his guard concerning whether petitioner was injured while in an aggressor role or whether the injury was self-inflicted, and that the delay in payment was justified. We disagree.

We adopt the findings of the trial court on this issue as expressed in its written reasons for judgment. These findings were:

“In brief, counsel for Insurer states that the representatives of Insurer were excused from the 30 day rule because Blew-er’s injuries were caused by a gun shot. That accordingly, Insurer had to determine if Blewer’s wound was the result of “Intentional self-inflicted injuries; injuries sustained while in an aggressor role or an attempted suicide.”
“Counsel stated the Insurer’s representatives asked for a “police report” which was non-existant [sic]. As of September 4, 1979, a “statement of claim” was signed by Blewer and his wife, Mrs. Elizabeth F. Blewer, stating: “Accidental self-inflicted gun shot while hunting.” With this knowledge it would have been a simple task to confirm. Insurer offered no evidence of the acts done to secure confirmation of how Blewer was injured. This Court finds it difficult to imagine a more unreasonable and unjust handling of this a major claim. The Insurer’s representatives were grossly negligent and arbitrary in processing these claims. Their correspondence shows lack of communication between personnel responsible for the expeditiously [sic] paying of these claims. This is evident by the letter to counsel for Blewer that payment would be made within two days after January 16,1980 and on January 21,1980, a letter to Mrs. Blewer, wife of Blewer, that no claims would be honored.
“This Court is well aware of the fact that the above statute is penal in nature and must be strictly construed. But the most charitable approach in considering the Insurer’s actions requires this Court to hold that such penalties are here applicable and are enforceable against the Insurer.”

We find appellants’ actions to be unreasonable and unjustified to the extent that the Program is subject to penalties provided for by LSA-R.S. 22:657 for failure to pay plaintiff’s claim within the thirty-day period allowed by that statute.

ATTORNEY’S FEES

LSA-R.S. 22:657(A) clearly provides for an award of attorney’s fees against an insurer who fails to comply with the terms of that statute.

Appellants argue that the award to plaintiff-appellee of $1,000.00 for attorney’s fees is excessive. They argue that no testimony was received at the trial court level regarding the time and effort of counsel in preparing this case. However, the appellants seem to overlook the fact, and the record of the minutes of court indicates, that the parties stipulated that no evidence would be required by the court and that the parties would defer to the court on this issue.

Plaintiff-appellee, on the other hand, argues that this Court should increase the award of attorney’s fees by $750.00. However, plaintiff-appellee failed to appeal or answer the appeal on this issue as required by LSA-C.C.P. Article 2133 when a party desires to have a trial court judgment modified, revised, or reversed in part. Therefore, we affirm the trial court’s award of $1,000.00 for attorney’s fees to the plaintiff-appellee.

THE INSURER

The trial court rendered judgment against the Program, finding it to be the insurer under LSA-R.S. 22:657. It denied plaintiff’s demands against Continental, finding it to be only the manager and service agent for the insurer. We affirm these findings.

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

All costs of these proceedings, which amount to $279.77 are assessed against the State Employees Group Benefits Program.

AFFIRMED.

      . The record furnishes no explanation as to why Continental joined the Program in the motion for a suspensive appeal, inasmuch as the trial court judgment, while casting the Program in judgment, denied all of plaintiff’s demands against Continental.