text:
    Samuel T. TRAPANI, et al v. Glenn L. MORGAN.
    Nos. 13227, 13228.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1983.
    Rehearing Denied Feb. 24, 1983.

      Glenn L. Morgan, in pro. per.
    David E. Hogan, Sarpy & Hogan, New Orleans, for plaintiffs-appellees.
    Before KLEES, BYRNES and WARD, JJ.
   KLEES, Judge.

In these consolidated cases, appellant, Glenn Morgan, appeals from a judgment 1) awarding $700 for past due rent, 20% attorney’s fees, interest and costs to appellees Samuel Trapani and A. Lester Sarpy, on Apartment B, 511 Esplanade Avenue, New Orleans, dismissing his reconventional demand and 2) denying his motion for nullity of judgment.

Denial of Motion for Nullity

Appellees, Trapani and Sarpy, co-owners of rental property, filed a rule against appellant for possession of Apartment B on January 15, 1981 (Case No. 181-793). Appellant claims that he timely filed exceptions and an answer to the rule for possession and a motion for continuance (which was never signed by the judge) with the minute clerk on January 26,1981. Neither, he asserts, were placed in the record until after the appellees took a default judgment against him on January 27, 1981. Judgment of eviction was rendered against him based on LSA-C.C.P. art. 4732 which provides that at the trial of the rule of possession, “[i]f the court finds the lessor or owner entitled to the relief sought, or if the lessee or occupant fails to answer or to appear at the trial, the court shall render immediately a judgment of eviction ordering the lessee or occupant to deliver possession of the premises to the lessor or owner.” According to appellees’ attorney, neither an answer nor a motion for continuance were present in the record or in the Clerk’s Office at the time of the judgment. Appellant asserts that they were misplaced by the Clerk’s Office.

On February 5, 1981, appellant filed a Rule to Show Cause Why the Judgment Rendered in Rule on the 27th day of January, 1981 Should Not be Vacated. Appel-lees filed an exception, asserting that a rule was the improper procedure to set aside a judgment. The court heard the rule to vacate the judgment on February 20, 1981, maintained appellees’ exceptions and dismissed the rule.

On February 23, 1981, appellant filed a Petition for Nullity of Judgment and In-junctive Relief, claiming that the enforcement of the judgment would be unconscionable. He argues that the default judgment was rendered after the court had been informed that no pleadings had been filed by appellant, when shortly after the judgment, the court was presented with the answer and motion for a continuance timely filed. This action was heard by the trial court on January 13, 1982 and denied.

The trial court did not err in denying the appellant’s action for nullity of the judgment of eviction.

A valid judgment pursuant to LSA-C.C.P. art. 4732 was obtained against appellant on January 27, 1981. Although the motion for continuance was not in the record at the time, the motion had not been granted or signed by the judge. It is the duty of the mover to inform himself whether or not the court has signed the continuance. Under the circumstances presented here, this was not done, thus the rule was properly heard. Without verification of the motion for continuance being granted, it was incumbent upon mover or mover’s counsel to appear at the hearing. The alleged understanding between counsel is of no moment. Stephens v. Stephens, 407 So.2d 475 (La.App. 1st Cir.1981). Appellant contends that the judgment of eviction was a “default” judgment, and illegally rendered because an answer had been filed. Nonetheless, under LSA-C.C.P. Art. 4732, a summary matter, the court properly ruled on the evidence presented and found sufficient evidence to evict defendant.

Judgment Awarding Damages and Dismissing the Reconventional Demand

On March 21, 1981, in Case No. 241-640, appellees filed suit against appellant for four months past-due rent, totaling $700, legal interest and attorney’s fees. Appellant answered and filed a reconventional demand against appellees for the amount of $25,300 alleging: 1) Failure to account for or return the $100 deposit he had previously given appellees, 2) Their engaging in business as a partnership without filing articles of partnership or a trade name affidavit as required by the criminal laws of the State of Louisiana, 3) The filing of numerous and repetitive lawsuits against appellant, the defenses of which have cost him time and money, 4) Defamation, 5) Failure to provide premises which meet the minimum standards required by law in the City of New Orleans and failure to make necessary repairs, 6) Failure to provide proper security which subjected defendant to a burglary of $250 in cash, and 7) Failure to properly screen tenants which caused disturbances in the area resulting in mental suffering and possible loss of reputation to appellant. The trial court dismissed appellant’s exceptions and awarded appellees $700.00 in past due rent together with 20% attorney’s fees and legal interest. From this judgment appellant appeals.

Appellant was given a written lease for Apartment B for $160.00 per month which rent was increased to $185.00 per month by letter to appellant from appellees. Appellant admits that the agreed rent was $175.00 per month, and according to Trapa-ni’s testimony, appellant agreed to the increase and paid it for several months after the notice. The lease states that the rent is due on the first of each month, however, if paid within five days after it is due, there would be a $10.00 discount, thus the rent would be $175.00.

Appellant claims that he mailed the rent on October 31, 1981, however, appellees did not receive the check until November 7, 1981, two days after the rent was due. On November 7, 1981, appellees mailed the check back to appellant along with notice of appellees’ intention to file a rule for possession against appellant. Monthly rental checks for December, January, and February were mailed to appellees at the beginning of each respective month. However, each was returned to appellant with an explanation that appellant was in the process of being evicted, and to accept the rent would upset this rule for possession.

Appellant breached his obligation in the lease by not paying his rent when due, and there is sufficient evidence in the record to support this finding of the trial court and an award of $700.00 to appellees for the rents for the months of November, December, January and February.

Attorney’s fees were properly awarded to appellees based on Lassen v. Otalvaro, 391 So.2d 1378 (La.App. 4th Cir. 1980) which holds that:

“Under lease providing that in case an attorney was employed to protect any right of lessor or lessees arising under the lease the party whose actions or inactions necessitated such employment shall pay additionally a reasonable attorney’s fee, lessor who was entitled to total amount of delinquent rental that was due was entitled to attorney’s fees.”

Appellant’s lease contained a clause requiring him to pay 20% attorney’s fees if the lessor must employ an attorney to enforce the lease.

Several claims for damages were presented by appellant in his reconventional demand, all of which were denied by the trial court. Appellant argues that appellees have been engaging in a business as a partnership without having filed a trade name affidavit as required by LSA-R.S. 51:281.

No evidence was adduced by appellant to support these allegations, nor did appellant prove any damages as a result of an alleged violation of the penal statute. We thus find no error in the trial court’s ruling.

Appellant alleges that appellees have filed numerous and repetitive lawsuits against appellant which have cost him time and money entitling him to damages.

Malice is a necessary element which must be proved for an action for malicious prosecution to lie, Vasseur v. Eunice Superette, Inc., 386 So.2d 692 (La.App. 3rd Cir.1980), writ refused 393 So.2d 747 (La.1980). For purposes of malicious prosecution, malice exists when a charge is made with knowledge that it is false or with reckless disregard for truth. Hill v. Smith, 399 So.2d 708 (La.App. 1st Cir.1981). The appellant simply failed to prove any malice existed on behalf of appellees in their filing of law suits against him.-

Appellant’s action for defamation is also without merit. He asserts in his testimony that “... I have heard Mr. Tra-pani say to people in my presence that I was a liar, heard him tell the people in the Clerk’s Office that I was in fact a slickster or somebody that was trying to cheat him.”

The plaintiff in a defamation suit must establish the following elements: defamatory words; publication, that is, communication to persons other than the one alleging the action; falsity; malice, actual or implied; and resulting injury. Desselle v. Guillory, 407 So.2d 79 (La.App. 3rd Cir. 1981). Appellant did not show when or to whom the alleged defamatory statements were made, and furthermore, failed to prove loss of income, loss of reputation, or any other damages resulting therefrom.

Appellant contends that appel-lees failed to provide premises which meet the minimum standards required by law in the City of New Orleans. Nonetheless, he failed to produce evidence of this at trial as there was no testimony from city inspectors as to any housing or safety violations. The uncertified copy of a citation by the Fire Department was properly excluded by the trial court as hearsay.

Appellant argues that he is entitled to damages due to appellees’ failure to make necessary repairs to the apartment after notification thereof by letter. This contention is without merit.

The law provides that the lessee may be expelled from the property if he fails to pay the rent when it becomes due. LSA-C.C. art. 2712. The neglect of the lessor to fulfill his engagements may give cause for a dissolution of the lease. LSA-C.C. art. 2729. If the lessor refuses or neglects to make the necessary repairs, the lessee may himself cause those repairs to be made and deduct the price from the rent due, on proving that the repairs were indispensible and that the price which he has paid was just and reasonable. LSA-C.C. art. 2694.

In citing these articles, the court in Cameron v. Krantz, 299 So.2d 919 (La.App. 3rd Cir.1974) states:

“The jurisprudence interpreting these articles of the Civil Code is settled that a lessor’s breach of his obligation to repair the leased premises does not exonerate the lessee from his obligation to pay the stipulated rental if he continues to occupy and use those premises. If the lessor fails to make the repairs required by the lease contract or by law, the lessee at his option may either (1) complete the repairs himself within a reasonable time, and deduct the cost of them from the rent to become due, on proving that the repairs were indispensible and that the price which he has paid was just and reasonable, or (2) he may terminate the lease and surrender possession of the premises to the owner.”

If lessee does neither, as in the instant case, failure to pay the rent constitutes a breach of the lease, entitling lessor to the total amount of the delinquent rent that was due. Lassen v. Otabvaro, supra.

Appellant argues that appellees failed to properly screen tenants which has subjected him to police raids and visits and has exposed him to gunplay in the patio. He further alleges that appellees knowingly permitted female and transexual prostitutes to rent apartments and ply their trade in the building, sometimes in an obvious manner, which has caused him mental suffering and possible loss of reputation. The trial court did not err in refusing to award appellant damages. Appellant failed to prove these occurrences took place. Furthermore, in Louisiana, a lessor has no such obligation to screen tenants.

In this case, the trial judge made evaluations and conclusions which upon our independent examinations of the record show us were not “clearly wrong”. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Finally, appellant contends that appellees have failed to account for or return the $100.00 deposit he had previously given ap-pellees. Appellant claims he is entitled to judgment refunding the deposit, awarding him $200.00 damages and reasonable attorney’s fees.

LSA-R.S. 9:3251 reads as follows:

§ 3251. Lessee’s deposit to secure lease; retention by lessor; itemized statement by lessor
“Any advance or deposit of money furnished by a tenant or lessee to a landlord or lessor to secure the performance of any part of a written or oral lease or rental agreement shall be returned to the tenant or lessee of dwelling premises within one month after the lease shall terminate, except that the landlord or lessor may retain all or any portion of the advance or deposit as is reasonably necessary to remedy a default of the tenant or to remedy unreasonable wear to the premises. If any portion of an advance or deposit is retained by a landlord or lessor, he shall forward to the tenant or lessee, within one month after the date the tenancy terminates, an itemized statement accounting for the proceeds which are retained and giving the reasons therefore. The tenant shall furnish lessor a forwarding address at the termination of the lease, to which such statements may be sent.
The foregoing provisions shall not apply when the tenant abandons the premises, either without giving notice as required, or prior to the termination of the lease.”

LSA-R.S. 9:3252 reads as follows:

§ 3252. Damages.
“The willful failure to comply with R.S. 9:3251 shall give the tenant or lessee the right to recover actual damages or two hundred dollars, whichever is greater, from the landlord or lessor. Failure to remit within thirty days after written demand for a refund shall constitute willful failure.”

LSA-R.S. 9:3253 provides:

“In an action brought under R.S. 9:3252, the court may in its discretion award costs and attorney’s fees to the prevailing party.”

LSA-R.S. 3254 states:

“Any waiver of the right of a tenant under this part shall be null and void.”

The record does not disclose that appel-lees sent appellant an itemized statement accounting for the retained $100.00 deposit with reasons for retention within one month after the tenancy terminated as required by the statute.

Even if there is valid dispute over the lease, the lessor must comply with this section or suffer penalties provided under R.S. 9:3252 and R.S. 9:3253. Altazin v. Pirello, 391 So.2d 1267 (La.App. 1st Cir. 1980).

It appears that appellant is not entitled to the damages of $200.00 provided by LSA-R.S. 9:3252 (willful failure to comply with R.S. 9:3251) because there is no evidence in the record that appellant made a written demand for a refund. Appellant should, however, be awarded $100.00, the amount of his deposit that was withheld.

Accordingly, for the reasons expressed above, the judgment of the court below is amended to award appellant the $100.00 retained deposit. In all other respects, the judgment of the lower court is affirmed. Costs to be borne by appellant.

AMENDED IN PART AFFIRMED.


source: Caselaw Access Project

author: LOBRANO, Judge.

license: Public Domain

text:
    Stanley HENDERSON v. The ADMINISTRATORS OF TULANE UNIVERSITY OF LOUISIANA, et al.
    No. CA-0077.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1983.
    Rehearing Denied Feb. 24, 1983.

      Arthur C. Reuter, Jr., Reuter & Reuter, New Orleans, for defendant/appellee.
    J. Nelson Mayer, III, Heisler & Wysocki, New Orleans, for plaintiff/appellant.
    Before REDMANN, LOBRANO and WARD, JJ.
   LOBRANO, Judge.

Plaintiff-appellant, Stanley Henderson, appeals the granting of summary judgment in favor of defendant-appellee, The Administrators of Tulane University of Louisiana (Tulane). We affirm.

In 1980, prior to plaintiff’s accident, Professional Food Service Management, Inc., (P.F.M.) contracted with Tulane University to be responsible for all of the food service operations at the University, including the management and operation of the university cafeterias, and all normal cleaning operations of same. Under said contract P.F.M. was required to carry all necessary insurances with companies and in amounts acceptable to Tulane.

On October 11, 1980, plaintiff, while employed by P.F.M. as a general clean-up man, suffered an injury to his foot when an iron grating of a service elevator fell and struck him. The service elevator was owned, operated and under the maintenance of Tulane and was located adjacent to the Tulane University cafeteria. As a result of the accident, plaintiff received workmen’s compensation benefits from P.F.M.

Thereafter plaintiff brought suit, ex de-licto, against Tulane, and its liability insurer, alleging that Tulane was liable for the injuries sustained due to its having a defective elevator on the premises, and for failing to maintain and warn others of same.

St. Paul Fire and Marine Insurance Co., the workmen’s compensation insurer of P.F.M. intervened, seeking recovery from the other named defendants for the workmen’s compensation benefits and medical expenses it paid to plaintiff.

Tulane moved for a summary judgment on the grounds that it was plaintiff’s statutory employer under the provisions of La. R.S. 23:1061, and as such his exclusive remedy was workmen’s compensation. La.R.S. 23:1032. The trial court granted Tulane’s summary judgment, and plaintiff has appealed.

The only issue presented is whether Tulane has shown there is no genuine issue as to a material fact, i.e. that the food services P.F.M. provided for Tulane was part of Tulane’s “trade, business, or occupation” for purposes of establishing exclusive coverage by the workmen’s compensation statute. La.R.S. 23:1061.

In support of its motion for summary judgment Don Moore, Vice-President and Dean for Student Services of Tulane University stated by sworn affidavit, that “he is familiar with the duties performed by Professional Food Service Management, Inc. on the campus of Tulane University on October 11,1980 and familiar with the contracts between P.F.M. and Tulane University on that date.” Additionally he stated “That P.F.M., Inc. was responsible for all of the food service and for the management and operation of the university cafeterias. P.F.M., Inc. was also responsible for all of the normal cleaning operations which included cleaning and washing the floors, tables, kitchen cafeteria and other food preparation areas.”

A copy of the contract between Tulane University and P.F.M., Inc. was also attached and made a part of the affidavit. This contract set out the responsibilities and duties of P.F.M. in regard to operating all food services at Tulane. A review of that document leads us to the inescapable conclusion that Tulane had contracted with P.F.M. to manage and operate all aspects of the University food service including cleaning and maintenance.

The brief and affidavit filed on behalf of plaintiff in opposition to the summary judgment do not present questions of material fact, and merely constitute a general denial. This will not suffice. When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on mere allegations or denials. He must, in his response by affidavits or otherwise, set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. Parker v. Sears, Roebuck & Co., 418 So.2d 1361 (La.App. 2nd Cir.1982).

In its latest pronouncement on summary judgment, the Supreme Court, in Thompson v. South Central Bell Telephone Co., 411 So.2d 26 (La.1982) stated:

“Summary judgment under La.C.C.P. Arts. 966-969 is based on Federal Rule 56. Although it is an extremely useful device for putting an end to unnecessary litigation, it must be used with caution. ‘Summary Judgment procedure is not a catchpenny contrivance to take unwary litigants into its toils and deprive them of a trial.’ Whitaker v. Coleman, 115 F.2d 305, 307 (5th Cir.1940). Rather, it is available only when “the pleadings depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.C.C.P. Art. 966; Dixie Campers, Inc. v. Vesely Co., 398 So.2d 1087 (La.1981); Chaisson v. Dominque, 372 So.2d 1225 (La.1979). Whenever there remain factual issues in dispute, a court should not grant summary judgment but should set the case for trial.”

A most liberal reading of the record leads this court to conclude that there are no material disputed issues of fact.

Defendant’s position is clear. Part of its trade, business and occupation is the providing of food services, and that was contracted out to P.F.M. By operation of law defendant becomes the statutory employer of plaintiff, and therefore his exclusive remedy is workmen’s compensation.

For the above and foregoing reasons, the judgment of the trial court is affirmed dismissing plaintiff’s case. All costs of this appeal to be borne by plaintiff-appellant.

AFFIRMED.

      . LSA-R.S. 23:1061, in pertinent part provides:
      “Where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business, or occupation or which he had contracted to perform, and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him; and where compensation is claimed from, or proceedings are taken against, the principal, then, in the application of this Chapter reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the employer by whom he is immediately employed.”


text:
    A. Lester SARPY and Samuel T. Trapani v. Glenn L. MORGAN and Occupants.
    No. CA-0170.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1983.
    Rehearing Denied Feb. 24, 1983.

      Glenn L. Morgan, in pro. per.
    David E. Hogan, New Orleans, for appel-lee.
    Before REDMANN, LOBRANO and WARD, JJ.
   LOBRANO, Judge.

This case is a result of a suspensive appeal filed in this court in a prior matter, case No. 13016. In the prior case, the trial judge ruled in favor of the plaintiff-landlord and ordered defendant to vacate the leased premises for non-payment of the September, 1981 rent. Defendant took a suspensive appeal. This court held that the plaintiff had accepted a check after notice to vacate had been given but before judgment of eviction and therefore could not obtain a judgment of eviction. Rehearing was denied on July 16, 1982. During the period that the appeal was pending, appellant in the instant case refused to pay the rent for October, 1981 to March 31, 1982. On July 21, 1982, appellant was given a notice to vacate based on his failure to pay this rent. On August 31, 1982 a rule for possession was heard in the First City Court, Parish of Orleans. The trial judge ordered the rule for possession absolute, and ordered appellant to vacate the premises. Appellant then filed the instant suspen-sive appeal. In addition, he tendered the rent due for September, 1982 but same was refused by appellees because of the pending eviction and appeal.

Appellant asserts three specifications of error:

1) the trial court erred in its failure to sustain the exception of no right of action based on the written lease which lists the lessor as Trapani Land-view.
2) The court below erred in its failure to hold that the appellee had no right or cause of action since under La.C.C.P. Art. 2166 the suspensive appeal and bond was in effect at the time of the filing of the rule for eviction.
3) The court below erred in its failure to hold that under Louisiana law the posting of an appeal bond in an eviction case suspends the obligation to pay the rent.

Appellant’s first specification of error is without merit. This Court in appeal No. 13016, June 8,1982, addressed the question of appellee’s right of action. It was noted that the trial judge signed an order, prior to the hearing, permitting the new co-owner, A. Lester Sarpy, to join as co-plaintiff. Thus, A. Lester Sarpy and Samuel Trapani have a right of action as owners of the leased premises. This court further ruled that the lack of a trade name affidavit required by L.S.A.R.S. 51:281 by the co-owners was not a proper defense to an eviction proceeding.

Appellant’s second and third specifications of error are also without merit. Under La.C.C.P. Art. 2123, a suspensive appeal suspends the effect or execution of an appealable order or judgment of a lower court. The suspensive appeal in No. 13016 dealt with eviction due to non-payment of rent for September, 1981. Thus, only eviction based on non-payment of that month’s rent was suspended. Nothing more. The payment or non-payment of any future rents due under the lease was not at issue and was not suspended.

Our civil code clearly enumerates the rights, obligations and privileges of lessors and lessees. La.C.C. Art. 2729 provides that the lease may be dissolved if the lessee fails to comply with the terms of the lease. La. C.C. Art. 2710 states that in return for enjoying the use of the thing leased, the lessee is bound to pay the rent as agreed. Failure to pay the rent as it becomes due breaches the lease and the lessor can evict the lessee. . (Emphasis added).

Under the terms of the lease in the instant case the rent was due on a month to month basis. Therefore, each month the lessee failed to pay the rent constituted a separate breach and thus a separate cause of action for which the lessor could sue to evict the lessee. La.C.C.Pro. Arts. 421-423.

It is clear from the record before us that appellant breached the terms of the lease by failing to pay the rent from October, 1981 to March 31, 1982.

For the foregoing reasons the judgment of the trial court is affirmed.

AFFIRMED.


author: WARD, Judge.

text:
    Richard HEBERT, Individually and as Administrator of the minor Child, Richard Hebert, Jr. v. WINN DIXIE STORES OF LOUISIANA, INC. and XYZ Insurance Company.
    No. CA-0097.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1983.
    Rehearing Denied Feb. 24, 1983.

      Michael I. Rodriguez, New Orleans, for plaintiffs-appellees.
    Robert E. Peyton, New Orleans, for defendants-appellants.
    Before REDMANN, WARD and LOBRA-NO, JJ.
   WARD, Judge.

Richard Hebert, Jr., a minor child thirteen years of age, slipped and fell striking his elbow on the floor at a Winn-Dixie store in New Orleans on December 8, 1979. His father, Mr. Hebert, individually and as administrator for his child, filed suit in the Civil District Court, asking damages for personal injury to his child and for medical expenses which he had incurred for treatment of his child’s injuries. After a bench trial on March 23, 1982, the Trial Judge rendered his verdict against Winn-Dixie and awarded to Mr. Hebert, $250.25 for medical expenses and $1,250.00 for his son’s pain and suffering. Winn-Dixie has appealed, asking this Court to reverse the verdict. Plaintiff has answered the appeal, and he requests this court to increase the amount of damages to $3,000.25 and to order Winn-Dixie to pay the legal costs of both trial and appeal.

When a grocery store customer is injured from a fall caused by a foreign substance on the floor of the grocery, the burden of proof shifts and the defendant store must exculpate itself from the claim of negligence. Gonzales v. Winn Dixie Louisiana, Inc. 326 So.2d 486 (La.1976); Peralta v. Schwegmann Bros. Giant Supermarkets, Inc. 406 So.2d 720 (La.App. 4th Cir.1981), writ denied 410 So.2d 762 (La.1982). The issue on appeal, therefore, is whether Winn-Dixie has exculpated itself from this claim of negligence.

Winn-Dixie argues that the Trial Judge’s verdict, finding it negligent, was manifestly erroneous. Plaintiff argues that the verdict should be given great weight and should not be disturbed on appeal because it is not manifestly erroneous. Plaintiff, although contending the Trial Judge’s verdict was correct, nonetheless also argues that the Trial Judge abused his discretion when he awarded insufficient damages, and he asks that the award be increased.

The injury occurred when thirteen year old Richard Hebert, Jr., while shopping with his mother, fell to the floor after he slipped on broken eggs strewn on the floor of the dairy products section of the grocery. The accident happened about five o’clock in the afternoon. The fall caused pain in Richard’s elbow, and since the pain continued during the night, Richard was taken to Methodist Hospital where he was x-rayed and given aspirin. The next morning, the doctor diagnosed the injury as a chipped bone in the elbow and put Richard’s arm in a sling. During his recovery, he could not participate in his usual activities of football, physical education, playing in the school band or helping around the house, but he did not miss school, and he was able to resume his normal activities and was discharged by his physician approximately five weeks after the accident. Total medical costs were $250.25.

During the trial, Richard’s mother, Mrs. Hebert, testified that although she had not seen the fall, she went over to Richard after he called out to her and he was lying on the floor. Nearby were broken eggs. Richard testified at trial that while he was helping his mother with her shopping, he slipped on broken eggs, but that he did not see them before he slipped, and that he did not know how many eggs were on the floor. In his deposition of February 11, 1981, prior to trial, he stated there were about two dozen.

Winn-Dixie produced two witnesses, one was an employee and the other was the manager of the store. The employee, Clarence Carline, testified that he was the dairy clerk who was in charge of the frozen food and dairy sections and that he was responsible to keep the floors clean and free from any spills in his area. He was the only employee on duty in this section. He testified that he had been in the area of the accident only five minutes before the plaintiff fell and that the floor was clean. He added that if any spills had been on the floor, he would have seen them. He left the dairy area to get his order book, which took three to five minutes, and when he returned, at the time of the accident, he was working about fifteen feet away by the frozen food display case which is across from the dairy aisle, but separated by the frozen food cooling case.

The store manager, Mr. Harvey Louper, testified that he was responsible for store safety and that as a matter of policy, employees inspect the store for hazards every hour. He also testified that he had been in the area less than a minute before the accident occurred and that there were no eggs on the floor. He learned of this accident when Mr. Carline came and told him what occurred, and he testified that when he investigated the accident, he saw one egg on the floor. Mr. Louper was not unfamiliar with slip and fall claims, and he related how he had seen Richard and his mother when they came into the grocery store and why he decided to follow them through the store. In his own words, “The lady had a neck brace on and she looked up and glanced at the office and I said ‘look at this! If she is going to slip down I better follow her.’ ” He followed them for ten or fifteen minutes. Nonetheless, he was about forty feet away from the accident when it happened because he had quit following “those people” when someone had called him back to his office.

Winn-Dixie argues that through the testimony of its witnesses, they proved that they were free from negligence. They rely both on Reed v. Kroger Co., 400 So.2d 1106 (La.App. 1st Cir.1981) in which the First Circuit Court of Appeal held that a defendant-grocer who was able to show an “aisle was clear five to ten minutes before the accident”, had met its burden to prove that it was free from negligence, and on Mercadel v. Winn-Dixie Louisiana, Inc., 399 So.2d 1317 (La.App. 4th Cir.1981), in which this Court held that where the evidence showed that a substance had been on the floor for no more than two minutes, that evidence was sufficient to prove that the defendant grocer had not been negligent. In support of their argument in this case, Winn-Dixie claims that its witnesses have given uncon-troverted testimony to show that broken eggs were on the floor no more than five minutes, and, hence, their testimony must be accepted as true.

Winn-Dixie apparently relies on decisions of the Courts of Appeal to establish rules of law for determining when a store owner has proven itself free of negligence. Therefore, any showing that a substance has been on the floor for only a few minutes will exculpate the store from charges of negligence. We believe, on the other hand, that these decisions are factual determinations, not rules of law, and that every case must stand or fall on the factual circumstances surrounding the accident. The sea of facts is endless, and it is unwise to turn factual determinations into rules of law.

Nor do we accept Winn-Dixie’s claim that uncontradicted testimony must be accepted as true. While uncontroverted evidence must generally be accepted as true to establish a fact for which it is offered, this is qualified and limited to situations where there is no showing of falsity or unreliability. Tolar v. K & G Contractors, 214 So.2d 176, (La.App. 4th Cir.1968) writ denied, 254 La. 830, 227 So.2d 373 (1969); Campo v. LaNasa, 173 So.2d 365 (La.App. 4th Cir. 1964), writ denied, 247 La. 874, 175 So.2d 109 (1965).

We also believe that reasonable evaluations of credibility by the Trial Court must be given great weight — even where there is no conflicting testimony. To hold otherwise would require the Trial Court to accept all uncontroverted testimony, no matter how specious or patently false, denying to him the opportunity provided by a trial to evaluate the witnesses.

In evaluating testimony, the Trial Court, of course, may consider that it was not contradicted, but this is only one of many factors to be considered in the question of credibility. Another factor, equally' important, is the consideration of whether the opposing party could reasonably produce evidence to contradict testimony. In the instant case, they could not, nor could they reasonably be expected to. There was little chance they could prove that there were not regular inspections or that either the employee or the manager had not been in the area minutes before the fall occurred. While uncontroverted testimony must be evaluated, the Trial Judge, in the exercise of his sound discretion, may accept it as true or reject it as false, just as any other testimony.

As we have noted, the Louisiana Supreme Court has held that the burden of proof shifts to the owner of a self-service grocery store to show that it is free from negligence, and this determination is (usually) a question of fact. The dilemma in this appeal is apparent. If the testimony of all witnesses is accepted as true, this factual determination would strongly support Winn-Dixie’s claim that it had proven it was not negligent. On the other hand, the verdict of the Trial Judge raises the irresistible inference that he did not believe the testimony of Winn-Dixie’s witnesses. Unfortunately, the Trial Judge did not articulate factual findings or give reasons for his verdict. Nevertheless, because we believe that the issue of freedom from negligence is a factual one, and because we believe that it is within the Trial Judge’s sound discretion to accept as true or reject as false the testimony of Winn-Dixie’s witnesses, we can only conclude that the Trial Judge did not believe that Winn-Dixie had proven it was free of negligence. We cannot say that the Trial Judge committed manifest error in his factual determination. We may not agree with those findings, but reasonable persons may differ on their evaluation of the evidence, and we find there exists a reasonable factual basis for the conclusion of the Trial Court.

Although the plaintiff has asked this Court to increase the Trial Court’s award of damages for his minor son’s injuries, the record does not indicate that the Trial Court abused its discretion in awarding damages.

We affirm.


author: G. WILLIAM SWIFT, Jr., Judge Pro Tern.

text:
    Roy J. SICARD v. Marianne B. Sicard, Wife of Roy J. SICARD.
    No. CA 0058.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1983.
    Rehearing Denied Feb. 24, 1983.

      William L. Yon Hoene, New Orleans, for plaintiff-appellant.
    Martin A. Welp, New Orleans, for defendant-appellee.
    Before GULOTTA and BYRNES, JJ., and SWIFT, J. Pro Tern.
   G. WILLIAM SWIFT, Jr., Judge Pro Tern.

This is an appeal by an ex-husband from that portion of a judgment of the district court in favor of his former wife which annulled and set aside an inventory, a sheriff’s sale of community property and dismissed the husband’s petition to homologate a partition prepared by the court-appointed notary public. The judgment, however, denied the wife’s demand to set aside the original default judgment which ordered the community immovables sold to effect the partition.

Roy and Marianne Sicard were divorced in August, 1979. On July 2, 1980, Roy Sicard filed a petition to partition the community property, at which time the court appointed a notary to conduct an inventory. The petition and order were personally served on Marianne Sicard oh July 14,1980. She filed no pleadings and on September 8, 1980, a preliminary default was entered. An inventory was filed and on March 27, 1981, the default was confirmed. That judgment ordered a partition by licitation of the immovables, the sale to be conducted by the sheriff, equal division of a savings account and payment of $1,000.00 to Roy Sicard for his one-half interest in a truck in the possession of his former wife.

Subsequently, a public sale of the real property was advertised by the sheriff and on May 7, 1981, the sale was held. Roy Sicard and the notary attended same and the notary bid the three pieces of property in for the account of Roy Sicard for the total price of $25,600.00.

On June 18, 1981, the notary notified Marianne Sicard by certified mail of his intent to effect a partition at his office on June 24, 1981. Mrs. Sicard testified that this was the first notice she received that the community property had been inventoried. She stated that she notified her attorney, but neither party appeared at the notary’s office on June 24 or responded in any way to the letter.

On July 1,1981 the notary filed a petition to homologate the partition which he had prepared. Shortly thereafter, Mrs. Sicard filed a petition to nullify the default judgment, to void the sheriff’s sale, to dismiss the petition to homolgate the partition and to dismiss the notary. The trial court on December 14, 1981, refused to annul the default judgment, but ordered the sheriff’s sale and the inventory set aside and the petition to homolgate the property inventoried dismissed.

Mrs. Sicard’s position in the district court and on this appeal is that the entire proceedings, including the default judgment and the sheriff’s sale, are null and void under C.C.P. Art. 2004, because of ill practices on the part of her former husband, his attorney and the notary appointed by the court to make the partition. Her counsel admits that there was no fraud involved, but asserts that the immovable property should have been partitioned in kind rather than by licitation and that he and Mrs. Sicard were not given proper notices of the default judgment, the sale and the prepare tion of the inventory and the partition.

Mrs. Sicard neither appealed nor answered her husband’s appeal from the judgment of December 14,1981, now before this court, which recognized the validity of the default judgment dated March 27, 1981. Consequently, we are unable to amend that judgment in favor of the appellee even had the district court erred in ordering the sale of the immovables by the sheriff to effect a partition.

Be that as it may, the record discloses that no ill practice was involved in connection with the default judgment and that it is valid in every respect. Mrs. Si-card was personally served with the citation and petition for a partition by lieitation, and after expiration of the delays provided by law a preliminary default was confirmed on due proof that the immovables were not divisible in kind. While neither Mrs. Sicard nor her attorney (who was not then counsel of record and had not notified Mr. Sicard or his lawyer of his representation) received any further notice of the default judgment or the sale, service of citation and the petition for partition by lieitation was the only notice to which she was entitled. Gauthreaux v. Gauthreaux, 377 So.2d 567 (La. App. 3 Cir.1979). Kees v. Michael, 376 So.2d 1282 (La.App. 2 Cir.1979). While adequate proof was actually presented, Mrs. Sicard’s failure to timely appeal from the default judgment foreclosed any attack thereon based on insufficiency of the proof upon which the judgment was rendered.

Despite the specific finding in his written reasons for judgment that “there is no evidence of fraud or ill practice by either Mr. Sicard, his attorney, William Von Hoene or the notary, Frank C. Moran ...” the trial judge set aside the sheriffs sale and the notary’s recommended partition, because the latter’s “actions, though well intended, failed the test of impartiality incumbent on him as the court’s appointee.” The bases expressed for such holding were that the notary failed to contact Mrs. Sicard or her lawyer to obtain information from them as to the community assets in order to prepare the inventory and also that the notary attended the sheriff’s sale at the request of Mr. Sicard and his attorney and bid the property in for the husband.

In this instance the notary public was an attorney who occupied office space with (but was not a partner or an associate of) Mr. Von Hoene. He was acquainted with Mr. Sicard, who went to the sale and instructed him in regard to the bids that he made against one or more other bidders. Mr. Von Hoene may have also been present. There is no indication of irregularity or suppression of bidding at the public sale. Mr. Moran’s testimony that he “just upped” the bids until the property was finally purchased for Mr. Sicard is uncontradicted.

We respectfully disagree with the trial judge that the notary’s having bid the property in for Mr. Sicard under these circumstances was so unconscionable or inequitable that the sheriff’s sale must be decreed a nullity.

According to Gauthreaux and Kees, supra, Mrs. Sicard was not entitled to further notice of the sale after being personally served with the petition for the partition by lieitation. See also Accardo v. Dimiceli, 226 La. 435, 76 So.2d 521 (1954).

While a notary appointed to effect a partition must act fairly and impartially, he is not an administrator of the community estate. Succession of Czarnowski, 158 La. 1093, 105 So. 76 (La.1925). His functions are purely ministerial and he must simply follow the judgment which ordered the partition and regulated the manner in which it is to be made. Jung v. Stewart, 190 La. 91, 181 So. 867 (1938); Randazzo v. Randazzo, 401 So.2d 1255 (La.App.1981). And our Supreme Court held in Covas v. Bertoulin, 44 La.Ann. 683, 11 So. 143 (1892), that where the proceedings were fairly conducted, the fact that the notary who made the inventory and conducted the family meeting for minor co-owners was the agent of two major co-owners did not constitute a ground to annul the partition sale.

As stated, there is no indication that there was any suppression of bids or other irregularity at this sheriff’s sale. Had Mr. Sicard or Mr. Von Hoene done the bidding themselves, Mrs. Sicard certainly could not complain. The notary’s bids at the request and on behalf of the husband actually inured to the wife’s benefit, because a higher price was ultimately obtained for the property.

While it is true that the immova-bles were sold for slightly less than one-half their appraised value, unless the court which ordered the sale to effect a partition fixes a minimum price, the property may be sold for whatever it will bring at a public sale regardless of appraisement. Barbarich v. Meyer, 154 La. 325, 97 So. 459 (1923). Had Mrs. Sicard been prepared to bid more than was realized at this sheriff’s sale, her failure to do so resulted from her own or her attorney’s inaction, not the lack of proper notice or ill practice on the party of the notary, Mr. Sicard or his attorney. It is clear from the record that this sale was duly and fairly conducted.

We fail to see how the failure to notify or contact Mrs. Sicard before preparing the inventory of the community property was such an irregularity or impropriety as to nullify the sheriff’s sale. Code of Civil Procedure Article 4604 provides that the court may order an inventory of the property sought to be partitioned, but it is neither required nor essential. Barbarich v. Meyer, supra; Lester v. Lester, 245 So.2d 478, 481 (La.App. 3 Cir.1971); McElwee v. McElwee, 255 So.2d 883 (La.App. 2 Cir.1972), writ denied 260 La. 861, 257 So.2d 434 (1972).

Actually, the notary public attempted to locate Mrs. Sicard by telephone and he wrote two letters notifying her of the time, date and place he planned to commence the partition and requesting that she arrange to be present. One of these Mrs. Sicard admittedly received before the appointed time, but she neither appeared nor did she contact the notary.

The parties, of course, are not bound by either the inventory or the notary’s recommended partition. Aucoin v. Greenwood, 199 La. 764, 7 So.2d 50 (1942). Neither have been homologated by the court and it is therefore necessary to remand this matter for this purpose. Lester v. Lester, supra. Mrs. Sicard can then file an opposition asserting her position as to any omitted community property and also her claims in accordance with C.C.P. Art. 4610. The trial court will rule thereon and direct the complete partition of the proceeds of the sheriff’s sale and the other property of the former community.

For the foregoing reasons, the judgment of the district court is affirmed insofar as it dismissed the plaintiff’s demand to set aside the default judgment dated March 27,1981, but otherwise it is reversed. This case is remanded to the district court for completion of the inventory and partition in accordance with C.C.P. Art. 4601 et seq. The costs of the appeal are assessed to Mrs. Sicard. Other court costs will be assessed upon final determination of the proceedings.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.


author: G. WILLIAM SWIFT, Jr., Judge Pro Tem.

text:
    Harold J. BUTTS v. Geraldine Morrison, Wife of Harold J. BUTTS.
    No. CA-0117.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1983.
    Rehearing Denied Feb. 24, 1983.

      Trudy H. Oppenheim, New Orleans, for plaintiff-appellee.
    Philip A. Gattuso, Gretna, for defendant-appellant.
    Before GULOTTA and BYRNES, JJ., and SWIFT, J. Pro Tem.
   G. WILLIAM SWIFT, Jr., Judge Pro Tem.

Mrs. Geraldine M. Butts has appealed from two judgments involving her marriage to Harold J. Butts, one dated April 10,1981, which decreed a separation between the parties upon a finding of mutual fault, and the other rendered on October 30,1981, that granted to Mr. Butts an absolute divorce for living separate and apart continuously for more than one year under La.R.S. 9:301.

The validity of the divorce decree is not at issue. Consequently, the principal issue for us to decide is whether Mrs. Butts was guilty of such fault that she is precluded from permanent alimony after the divorce.

The parties were married in 1950. At that time Mrs. Butts’ daughter, Cheryl, was five years old. Cheryl suffered from an incurable disease of the vertebrae, Potts disease, and had already undergone two spinal fusion operations. Mr. Butts adopted Cheryl after the marriage. Because of Cheryl’s physical handicaps, certain emotional problems began to develop in the family.

Mr. Butts is presently in his sixties, is employed as a river pilot and earns $93,-000.00 per year. He was disturbed by Mrs. Butts’ affection for the daughter and resented the time she spent in administering to the physical and emotional needs of Cheryl. He gradually withdrew from the family unit, failing to cooperate in family group therapy because he was dissatisfied with the results of the treatment of his wife and daughter, and finally moved to his own apartment and found new friends, including females.

For a time Mr. and Mrs. Butts both agreed to follow Cheryl’s psychiatrist’s advice by removing the daughter from the matrimonial domicile and providing her with her own apartment. Mr; Butts agreed to pay for the apartment, but Mrs. Butts found suitable quarters and a roommate capable of taking care of Cheryl’s physical needs, moving, etc. The relationship between Cheryl and Mr. Butts deteriorated to such an extent that hatred developed between the father and daughter. He even had two of Cheryl’s dogs put to sleep because their barking interfered with his sleep.

Mr. Butts appears to have been a good father for Cheryl until she graduated from high school, but thereafter his help and support (other than financial) ended. Mrs. Butts’ mother later moved into the Butts household and helped Mrs. Butts to care for Cheryl. Not long after the grandmother died, when the burden of helping to care for Cheryl was increased, Mr. Butts rented his own apartment.

Cheryl Butts was 34 years old at the time of the trial and unemployed. She was diagnosed as a passive-aggressive personality type, despondent and depressed. Her psychiatrist testified that Cheryl is not only emotionally, but also physically, incapable of being self-supporting and living alone as she is confined to a wheelchair and requires help to get into and out of a bathtub, needs assistance in using toilet facilities and in loading and unloading her wheelchair in a car. If a car is properly equipped with special devices for the handicapped, she can drive a car. Cheryl is abnormally dependent upon her mother and is jealous of her mother’s affection for her father. The testimony of all parties indicated that Cheryl is highly manipulative and that she vied with her father for her mother’s affection. On many occasions when Mr. and Mrs. Butts would go out without Cheryl she would follow them or attempt to locate them by telephone. Once when they went to their farm in Mississippi for a weekend alone, Cheryl followed them all the way to Mississippi. Both parties acknowledged that Cheryl was the principal cause of the marital breakdown.

Mrs. Butts was torn between her daughter and her husband. She was diagnosed by her psychiatrist also as a passive-aggressive personality type. Mrs. Butts testified that she still loves her husband and that she always supported her husband’s side in the father-daughter fights, although she could not abandon her daughter. Mr. Butts admitted that his wife supported him against Cheryl to some extent. Mrs. Butts appears to have not only allowed both Cheryl and her husband to manipulate her but also ruin her own mental and physical health in the process.

La.C.C. Art. 141 provides for a separation from bed and board when both parties are “mutually at fault” in causing the separation. In such case permanent alimony is not allowed on final divorce.

In Adams v. Adams, 389 So.2d 381 (La.1980), the Louisiana Supreme Court approved this court’s determination that the phrase “mutually at fault” means that “the husband must have committed acts which would be grounds for a fault-based separation in favor of the wife and the wife must have committed acts which would be grounds for a fault-based separation in favor of the husband.” See also Favalora v. Favalora, 391 So.2d 966 (La.App. 4 Cir. 1980).

Like Favalora, the instant appeal deals with an abandonment by one of the spouses allegedly caused by fault on the part of the other.

From our careful review of the record we are convinced that Mrs. Butts has done nothing which would constitute legal fault and be a ground for a separation decree in favor of the husband.

We can understand that it became exceedingly difficult for Mr. Butts to live happily in the household and put up with Cheryl’s excessive demands for his wife’s attention. However, it is clear that their problems were created by Cheryl, not Mrs. Butts. The husband admittedly had grown to dislike the daughter and testified that if she had only left them alone they “could have lived with it and in peace and harmony.” He also said his wife was attempting to be a good wife, but with all of the arguments and things “I don’t guess she could do any more than she did right at that time. She wasn’t going to change her life and Sheryl (sic) wasn’t going to change her ways.” Mrs. Butts testified; “I did everything I could with Sheryl (sic) to try and save my marriage except completely abandon her.” We believe these excerpts from their testimony pretty well portray the situation and we are convinced there was no cruelty on the part of Mrs. Butts of such a nature as to render the husband’s living with her insupportable.

As previously stated, Mr. Butts admitted that his wife never mistreated or neglected him and never denied him sexually. Mrs. Butts did allow herself to be manipulated by Cheryl, but at all times she believed that she was only fulfilling a mother’s obligation to an incompetent daughter. It must be remembered that Cheryl was also Mr. Butts’ daughter by adoption and he was obliged to care for her, too.

In regard to appellee’s contention that his wife was also at fault in handling money, the only incident proved was when Mrs. Butts inadvertently wrote a check or checks on the wrong checking account and overdrew same. The record reflects that this was a mere error which was later corrected and Mr. Butts was only inconvenienced thereby. We certainly do not consider this a ground for separation.

Under the circumstances we conclude that the trial judge erred in finding that Mrs. Butts was guilty of legal fault and decreeing a separation on the ground of mutual fault under La.C.C. Art. 141. Although there does not appear to have been any justification for the husband’s leaving the matrimonial domicile, it is unnecessary for us to decide this issue in view of the subsequent judgment granting an absolute divorce between the parties.

Having found the wife was free of fault, she may be awarded permanent alimony after the divorce under La.C.C. Art. 160. However, we are unable to determine from the record before us the wife’s needs and the husband’s ability to pay. Therefore, the case will have to be remanded for a determination of the amount of alimony, if any, to which Mrs. Butts is entitled.

For the foregoing reasons, the judgment of the district court, dated April 10,1981, is reversed and set aside, but the judgment rendered on October 30, 1981, is affirmed, subject to a determination by the lower court of the amount of permanent alimony, if any, to which appellant, Geraldine M. Butts, is entitled, for which purpose this case is remanded. The costs of this appeal are assessed to the appellee. The other court costs will be assessed to the community-

REVERSED IN PART, AFFIRMED IN PART AND REMANDED.


author: KLIEBERT, Judge.

text:
    James E. MAYEUX v. CANE-AIR, INC.
    No. 5-265.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 10, 1983.
    Writ Denied March 4, 1983.

      Donald T. Carmouche, Talbot, Sotile, Car-mouche, Marchand & Marcello, Donaldson-ville, for defendant-appellant.
    Edward James Gaidry, Law Offices of Gaidry & LaRussa, Houma, for plaintiff-ap-pellee.
    John J. McGuckin, Jr., Hailey, McNamara, McNamara & Hall, Metairie, for defendant-appellee.
    Before KLIEBERT, CHEHARDY and CURRAULT, JJ.
   KLIEBERT, Judge.

Mr. James Mayeux (hereafter Mayeux) sued Cane Air, Inc. for damages to his soybean crop allegedly caused by the spraying of a phenoxy chemical herbicide over 230 acres of soybeans in July and August of 1978. In turn, Cane Air, Inc. (hereinafter Cane Air) brought a third party claim against Riverside Chemical, Inc. (hereafter Riverside), a supplier of one of the chemicals sprayed on the soybeans. Thereafter, Mayeux amended his pleadings to include Riverside as a defendant. The trial judge rendered judgment in favor of Mayeux and against Cane Air for $16,163.54 and dismissed all claims against Riverside. Cane Air suspensively appeals the trial court’s judgment. The essence of its assignments of error are that the trial judge erred in finding that the soybeans were damaged by a phenoxy chemical and/or that Cane Air sprayed a phenoxy chemical on Mayeux’s soybeans. We reverse the trial court on the second assignment of error.

In mid-July of 1978, James Mayeux, a farmer in St. John the Baptist Parish, contacted Cane Air, an aerial application firm, to have a 230 acre tract of Forrest variety soybeans sprayed with chemicals. The tract was a portion of the Belle Point Plantation located north of the Airline Highway (U.S. 61). On the westernmost edge of the tract was the East St. John High School and on the easternmost portion was the LaPlace Chrysler Plymouth lot. Under the agreement reached by the parties, Cane Air was to provide Methyl-Parathion (an insecticide purchased from “Riverside”) and Mayeux was to provide Benlate (a fungicide he acquired from the U.S. Department of Agriculture). The Benlate was to be mixed with the Methyl Parathion and then sprayed over the 230 acre tract. Pursuant to the agreement, Cane Air sprayed the westernmost 90 to 100 acres of the 230 acre tract on July 19, 1978. On July 20, 1978, the remaining acreage in the tract, except for a six acre plot located in the easternmost edge (adjacent to the LaPlace Chrysler-Plymouth lot) was sprayed by Cane Air. On both days the wind was strong and blowing out of the south-southeast and Mayeux personally flagged (moved a marker in the field to show the area sprayed) for the pilot. On August 4,1978, the entire 230 acre tract was sprayed. On August 23, 1978, the easternmost 50 acres of the 230 acre tract was sprayed with Methyl-Parathion. Mayeux did not do any flagging on this occasion.

The issues presented in the trial court and here are (1) Was there damage to the soybeans from a phenoxy chemical, and if so, (2) who or what caused the distribution of the phenoxy chemical over the 230 acre tract of soybeans. The essence of Mayeux’s position is that there was phenoxy damage to his crop of soybeans on the 230 acre tract and this damage resulted from the application of a phenoxy by the aerial spraying performed by Cane Air. On the other hand, Cane Air’s position is that there was no phenoxy damage to the soybeans, but should the court conclude otherwise, then the phenoxy chemical which caused the damage was applied by someone other than Cane Air, or in the alternative, if Cane Air is found to be liable, Riverside should be cast in judgment as the supplier of one of the chemicals sprayed by Cane Air.

This is not a La.C.C. Article 667 strict liability case as would be applicable where a neighbor’s crop is damaged by the aerial spraying of a chemical in a nearby field. Whether it is considered a breach of contract suit or a La.C.C. Article 2315 tort action, the plaintiff is required to prove by a preponderance of the evidence that he sustained damages and it is more probable than not defendant’s action or inaction was the cause of the damage sustained. Whereas here, the plaintiff seeks to prove his case by circumstantial evidence, the evidence submitted must exclude other reasonable hypothesis with a fair amount of certainty so that it is more probable than not the damages were caused by the action or lack of action of the defendant. Townsend v. State Department of Highways, 322 So.2d 139 (La.1975); Braud v. Kinchen, 310 So.2d 657 (La.App. 1st Cir.1975).

Following the first two applications by Cane Air, Mayeux noticed some yellowing in his soybeans. He complained to Cane Air and discussed the problem with Mr. Larry Brock, his county agent. In turn, Mr. Brock called on the State Department of Agriculture for assistance. The representatives of that agency who made visual inspections of the field or performed other functions in the investigation were Mr. E.A. Cancienne, Director of Pesticide Commission; Mr. Edsel Elledge, Jr., Agricultural Inspector, and Mr. Ernest Epps, Jr., a chemist jointly employed by LSU and the Department of Agriculture. They in turn called on Dr. Walter Morrison, an agronomist and a soybean specialist with LSU for assistance in making their investigation. Mr. Michael Crawford, Consumer Safety Officer for the United States Environmental Protection Agency was called on by Mayeux and he made an investigation for the purpose of determining whether there was a violation of the federal acts and regulations for the use of phenoxy and report on his findings. After making five visual inspections and considering the information furnished by the others whom he called on for assistance, Mr. Elledge concluded there was insufficient evidence to show phenoxy damage to the soybeans and, hence, terminated further investigation by the Department of Agriculture.

At the trial, Mr. Brock, Mr. Elledge and Dr. Morrison personally appeared and testified. Additionally, Mr. Robert Odom, Jr., a former agricultural inspector and the then Commissioner of Agriculture for the State of Louisiana, appeared as an expert witness in pesticides and crop damage on behalf of Mayeux. Also, Mr. L.B. Davis, an entomologist and agricultural consultant, who qualified as an expert in entomology, soybeans and 2,4r-D (a type of phenoxy), appeared on behalf of Cane Air.

According to the expert witness, some plants are more susceptible to phenoxy damage than others. Hence, on a visual inspection to determine whether there has been a phenoxy application in the field, all types of vegetation growing in the field are examined. All experts testified to the existence of phenoxy damage to weeds such as sesbania (indigo), cockleburs and wild okra. However, with the exception of Dr. Morrison, all testified they found no evidence of phenoxy damage to the soybean plants in the field. Although Dr. Morrison testified to seeing visual evidence of phenoxy damage to soybean plants, he stated there was some doubt in his mind as to whether there was in fact phenoxy damage to the soybean crop. It was for this reason that he suggested the establishment of a test plot which could be used to compare soybean yields in the test plot to those in the suspected phenoxy damaged tract.

All of the experts testified to the existence of Red Crown rot and other diseases throughout the 230 acre tract. The actual disagreement between the experts was whether the visual evidence of phenoxy damage was sufficient to justify a conclusion the soybean crop had in fact sustained phenoxy damage and whether this damage was the cause of a lower yield in the 230 acre tract when compared to the test plot.

Where a crop is damaged rather than destroyed, a commonly accepted method of determining the extent of the damage is to establish a test plot. This plot is selected by the experts and then controlled by them while the suspected damaged crop is growing. The yield from the test plot is then compared to the yield from the suspected damaged crop to determine the extent of the damage. Here, due to the paucity of visual evidence of phenoxy damage to the soybean crop, Dr. Morrison and Mr. Odom suggested the establishment of a test plot. In fact, however, a test plot was not established and controlled by the experts. Instead, Mr. Mayeux selected a portion of the field south of the Airline Highway which he said had not been sprayed by Cane Air and compared its yield to the yield from the 230 acre tract. The experts did not control the test plot and did not oversee the harvest of the crop, hence, they were not in a position to testify as to whether the yield from the 230 acre tract was less than the yield from the field south of the Airline Highway.

The trial judge recognized the paucity of the visual evidence as to phenoxy damage to the soybean crop; but, nevertheless, concluded that based on Mr. Mayeux’s testimony as to the greater yield in a selected plot located south of the Airline Highway as compared to the yield on the 230 acre tract north of the Airline Highway, the 230 acre tract did in fact sustain phenoxy damage. Other than the general testimony that the soil on the entirety of Belle Point is generally the same and that the field south of the Airline Highway was cultivated in the same manner and received the same chemicals (except for the Cane Air sprayings) as the crop north of the Airline Highway, there was no direct evidence to establish the plot selected by Mr. Mayeux for yield comparison was in fact comparable to the 230 acre tract.

Were this a case of first impression, from the evidence submitted, we would have concluded differently from the trial judge; however, under the rules for appellate review set by the Supreme Court, we cannot substitute our view for those of the trial court. To change findings of the trier of the facts, we have to first find he committed manifest error. Since there was evidence from which the trial judge could reasonably conclude there was phenoxy damage to the soybean crop, we cannot say the trial judge committed manifest error in so concluding. See Canter v. Koehring, 283 So.2d 716 (La.1973).

Having reached this conclusion, we now consider the element of causation, i.e., how was the phenoxy chemical distributed over the field?

In seeking to support their respective positions, the litigants urge three ways in which a phenoxy chemical could have been distributed over the field: (1) the Methyl Parathion supplied by Riverside and sprayed on the soybeans by Cane Air contained a phenoxy chemical, (2) a residue of a phenoxy chemical from a spraying prior to the time the Mayeux field was sprayed was left in the tanks of the airplane when spraying Mayeux’s 230 acre tract, and (3) there was a direct application of phenoxy chemicals in the fields by Mayeux which caused the damage.

The only direct evidence of a phenoxy chemical application was (1) the testimony of Mr. Epps, a chemist, submitted by deposition stating that the chemical Methyl Parathion, supplied by Riverside and sprayed by Cane Air, contained 7.8 part per million of phenoxy and that there was phenoxy on soybean plant leaves from a sample collected by Mr. Crawford in the field, and (2) the affidavit and testimony of Mr. Mayeux that he used 2,4-D in a hand sprayer to control weeds on the lot fronting on the Airline Highway adjacent to the soybeans and also that at the same time Cane Air was spraying the fields and while he was serving as a flagman he made direct applications of chemicals containing phenoxy on the headlands adjacent to the lot over which 2,4^D was sprayed with a hand sprayer.

In his reasons for judgment, the trial judge excluded Riverside from responsibility for the following stated reasons:

“This court cannot find Riverside Chemicals Inc., to have been at fault. The testimony of Acosta that Cane-Air-Inc., purchased the methyl parathion from Riverside in 1977 and used it during 1978 with the only complaint being that of Mayeux, coupled with his testimony that a phenoxy had been previously sprayed, and no showing that the spraying equipment was flushed or purged does not bear the proof necessary to hold Riverside at fault.”

The trial judge’s reasons for judgment made no comment as to the application of phenoxy chemicals by Mayeux or of the flushing or purging of the spraying tanks or equipment other than that stated above; but, nevertheless, he cast Cane Air in judgment. We believe he committed manifest error in so concluding.

The plaintiff sought to prove Cane Air’s liability circumstantially, i.e., there was phenoxy damage to the soybean crop which appeared after Cane Air sprayed the crop, therefore, Cane Air applied the phenoxy which caused the damage. Since this is not a strict liability case under Article 667, Mr. Mayeux was obligated to prove his case against Cane Air by a preponderance of the evidence and where his proof is by circumstantial evidence, he was also obligated to exclude other reasonable hypothesis as to the cause of the phenoxy damage with a fair amount of certainty. This he failed to do.

Mr. Epps made a chemical analysis of the Methyl Parathion supplied by Riverside. The sample which he analyzed was taken directly from the container supplied by Riverside. It was not a sample of the mixture of Benlate and Methyl Parathion sprayed by Cane Air. There was no analysis made of the Benlate. All experts agreed the small amount of phenoxy contained in the Menthyl Parathion was insufficient to cause harm to the soybean crop. By refusing to cast Riverside in judgment, the trial judge accepted that opinion and so do we. Hence, the only direct evidence of phenoxy being included in the chemicals sprayed by Cane Air also shows the amount of phenoxy sprayed was not sufficient to harm the soybeans.

This leaves for consideration the direct evidence as to Mayeux’s direct application of phenoxy chemicals and the possibility of a phenoxy chemical residue from a prior spraying left in the tanks by Cane Air. Mr. Mayeux testified to having made direct applications of phenoxy to weeds located on the headlands of the 230 acre tract by means of a stick and rag while he was flagging for the plane. In testifying how he made this direct application, Mayeux said:

Q. Applications that you made with the rag that you referred to, was that to the beans or to the weeds?
A. That was to the weeds growing above the beans. It was a sack on a pole that it’s saturated with the 2,4-D, and what it amounts to instead of walking over four rows on each side, I walked down one and I could use, well, I could just reach a little bit further. And this was only done where I was standing while I was flagging for the airplane.
Q. So you didn’t apply it throughout the field?
A. No.
Q, You did not apply to the beans?
A. No, Sir. If I did it would have killed the beans.”

and upon being asked why he applied the chemicals, he said:

“Well, right on the headland, generally when you come to the headland, you have your weed control, it’s not as great because you shut off your valves because in the process of making a turn, you put too much, okay? So naturally, the weeds are heavier on your turnovers, well, they were above the beans at the time. I was flagging for the airplane in my pickup truck and I made my, well, I made me a rag and while I was waiting for him to go get a load and come back, I would do this.”

The report of Mr. Crawford, with the United States Environmental Protection Agency, was introduced in evidence as a joint exhibit of the plaintiff and the defendant. Attached to the report was an affidavit by Mr. Mayeux in which he stated he had sprayed the Chrysler Plymouth lot with a phenoxy chemical for weed control on two occasions in late July and August.

Also, according to this affidavit, on August 24, the day after the easternmost 50 acres of the 230 acre tract had been sprayed by Cane Air, at Mr. Mayeux’s request, Mr. Elledge collected samples of vegetation in the field. Mr. Elledge testified these samples were delivered to a private lab for analysis. Mr. Mayeux testified that he did not know whether the samples were delivered or whether the samples were analyzed. There is no report in the record as to an analysis of these samples.

According to Mr. Crawford’s report, he collected a substantial number of vegetation samples in the field on August 29th and 30th and also obtained a sample of the rag used by Mr. Mayeux to make the direct application. Mr. Epps’ analysis of only two samples is shown in the record i.e., those of soybean leaves collected at site A and of the rag used by Mr. Mayeux in making direct application of phenoxy in the field. His analysis of the soybean leaves was as follows:

Lab. No. Sample
- 2,4-D
Soybean leaves
152X # 149397 Site A Sub # 1 0.09 ppm
153X # 149397 Site A 0.15 ppm

The site (A) from which the soybean leaves were collected was in the cut near the first headland on the eastern side of the 230 acre tract in close proximity to the lot of La-Place Chrysler Plymouth where Mayeux testified he had used phenoxy for weed control in late July and in early August.

The chemical analysis of the rag used by Mr. Mayeux in making the direct application of phenoxy was as follows:

Lab.
No. Sample Material Extracted From Rag
151X Old Rag Isooctyl Ester of 2, 4-D 4.3%
Isooctyl Ester of Silvex 3.9%

In his deposition Mr. Epps stated this concentration of phenoxy in the Isooctyl Ester was a high concentration. Mr. Davis, the expert submitted by Cane Air, testified the phenoxy on the rag was in an “Ester formulation”, and as such would change from a liquid to gas, i.e., volatilize when applied at high temperatures and as a gas be distributed by air currents. Considering the fact the direct application of the phe-noxy by Mr. Mayeux was in late July and August and applied when the field was being flown over by an airplane, a reasonable hypothesis as to the way in which the phenoxy was distributed over the field is that as Mr. Mayeux directly applied the chemical containing the phenoxy, it volatilized and was distributed over the field by the air current created by the airplane while spraying the field.

On direct examination, Mr. Acosta, the operations manager for Cane Air, testified that on the spraying jobs immediately prior to the spraying of Mr. Mayeux’s soybeans, on July 19 and 21st and on August 4th and 23rd, the chemical sprayed by the same plane used to spray Mr. Mayeux’s field was an insecticide as opposed to a herbicide in which grouping phenoxy belonged. On examination, it was shown that the documents put into evidence to support Mr. Acosta’s testimony as to July 19th when a sugar cane test plot was flown for the USDA, there was no indication on the documents as to what chemical was flown. However, he testified that to his knowledge the USDA did not spray phenoxy on sugar cane. On two sprayings prior to the spraying of Mr. Mayeux’s soybeans on August 4th, a mixture of Guthion (an insecticide) and 2,4 — D (a phenoxy) was sprayed by the same plane which sprayed the Mayeux crop. There was, however, a non-phenoxy chemical sprayed by the plane before it commenced spraying Mayeux’s crop.

When he appeared earlier in the proceeding, Mr. Acosta was asked:

Q. Mr. Acosta, what generally is the procedure when you spray one chemical and then you have to in turn spray another, general procedure for the operating of that?
A. Well, what determines it is the type of chemical in use, whether it is herbicide or whether it is insecticide generally will determine.

He was not asked and, therefore, never testified as to what procedure is required when changing from a herbicide to an insecticide. According to the state regulations, aerial applicators are required to purge or flush the plane tanks and equipment when changing from a herbicide to an insecticide. The trial judge in stating his reasons for refusing to cast Riverside in judgment noted that a phenoxy had previously been sprayed and there was “no showing that the spraying equipment was flushed or purged”. Although Acosta did testify that a phenoxy was sprayed prior to the August 4th spraying of Mayeux’s crop, it was not the spraying immediately preceding the Mayeux spraying, therefore, there was no requirement that the tanks and equipment be purged or flushed. Further, since this is not a strict liability case under Article 667, there was no requirement that Cane Air absolve itself of liability.

Rather, the burden of proof was on Mr. Mayeux to show that the reduction in yield of the field north of the Airline Highway, as compared to the field south of the Airline Highway, was caused by some action or lack of action on the part of Cane Air. Mr. Mayeux has failed to meet that burden by a preponderance of the evidence. From the record here, it is just as probable the reduction in the soybean yield was caused by the direct application of phenoxy by Mayeux or by the plant diseases, or from soil conditions as it is probable it was caused by Cane Air’s failure to flush or clean its tanks. Accordingly, the judgment of the trial court is reversed. Each party to bear his own costs.

REVERSED.


author: WILLIAMS, Judge. CIACCIO, Judge,

text:
    Daniel P. ZIEGLER v. DEPARTMENT OF FIRE.
    No. CA-0062.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1983.
    Rehearing Denied Feb. 24, 1983.

      Louis L. Robein, Jr., New Orleans, for plaintiff-appellant.
    Charles J. Willoughby, Asst. City Atty., New Orleans, for defendant-appellee.
    Before SCHOTT, CIACCIO and WILLIAMS, JJ.
   WILLIAMS, Judge.

This is an appeal from a decision by the Civil Service Commission upholding the dismissal of Daniel P. Ziegler from the New Orleans Fire Department based on his alleged inability to perform his duties as a result of his alcoholism.

Ziegler had been with the Fire Department for seventeen years. Although he testified that he had been drinking heavily since he was fourteen, there was no evidence that his alcoholism interfered with his duties as a Fire Captain, other than one seizure that he suffered at the station house. He had tried to seek professional help to quit drinking, but was unable to remain with a program for any length of time.

Ziegler suffered an injury when he struck his head during a seizure he suffered at home in March, 1981. He consulted Dr. Jack Ruli for treatment of his head injury. Dr. Ruli was the physician for the New Orleans Fire Department. Ziegler returned to work in May, 1981.

On June 25, 1981, Ruli sent a report to William McCrossen, Superintendent of the Fire Department. The letter stated in part:

“My opinion is that Mr. Ziegler be considered totally and permanently disabled from performing fire duty. This is based on the diagnosis of severe alcoholism which has caused him to have a seizure problem, abnormal brain findings and liver disease....
“I would like to make the following recommendation. That Mr. Ziegler be maintained in long-term rehabilitation program with careful supervision. (This has failed in the past!) If this can be accomplished successfully he may possibly improve sufficiently for re-evaluation at a later date.”

As McCrossen testified at the Civil Service Commission hearing, the basis for the dismissal was the letter from Ruli, stating that Ziegler was unable to return to Fire Duty. Ziegler was told to make arrangements with the Fireman’s Pension Board.

Because Ziegler had been with the Fire Department for just seventeen years, he was only eligible for a medical pension. He was denied a pension by the Board, because in its opinion, Ruli’s letter showed that Ziegler was not totally and permanently disabled.

Ziegler appealed the decision of Superintendent McCrossen to the Civil Service Commission. After a hearing, the Commission upheld the decision to terminate Ziegler’s employment. He has appealed from that decision to this court.

On appeal, Ziegler has urged two errors: (1) Dr. Ruli’s testimony was inadmissible based on the patient-physician privilege, and (2) based on the evidence, the Civil Service Commission should not have upheld his dismissal.

PATIENT-PHYSICIAN PRIVILEGE

Ziegler argues that the evidence presented by Ruli should have been excluded because Ruli was his physician, and he did not waive the patient-physician privilege.

The defense asserts that: (1) the privilege did not exist between Ruli and Ziegler and (2) assuming arguendo that communications between them were privileged, Ziegler waived the privilege by not asserting it timely.

In McConkey v. Pinto, 305 So.2d 469 (La.1974), the Louisiana Supreme Court held that the patient-physician privilege was waived when a patient failed to claim it at trial or to object to testimony on that basis. Id. n. 3 at 471. See generally La.R.S. 13:3734.

At no time during the hearing did Ziegler or his attorney assert that any communication between plaintiff and Ruli was privileged. It is not necessary, therefore, for us to determine whether any communication between Ziegler and Ruli was privileged; Ziegler cannot now assert that it was.

This argument is without merit. DISMISSAL

It is clear from the record that the only evidence upon which McCrossen based his decision to terminate Ziegler’s employment was the letter from Dr. Ruli.

Ruli’s letter appears to be inconsistent. He stated that Ziegler was totally and permanently disabled. He also stated, however, that Ziegler might possibly be able to return to work after being re-evaluated at a later time. This inconsistency is highlighted by the Pension Board’s refusal to find Ziegler disabled on the basis of the letter.

We find that Ziegler was not permanently disabled. The only evidence that he might not eventually return to work is Ruli’s letter, which was supported equivoca-bly by his testimony at the Commission hearing. At the hearing (and to an extent in his letter), Ruli said that if Ziegler could quit drinking for a year, or possibly less, then he might be able to return to the position of Fire Captain.

The testimony presented at the hearing to the effect that Ziegler has participated in a rehabilitation program and has successfully controlled his drinking for a number of months was uncontradicted. Furthermore, testimony indicated that Ziegler’s seizures were a result of his drinking, and once his drinking was under control, he would no longer suffer the seizures.

According to testimony at trial, Ziegler had accumulated almost one year of statutory sick leave. Ziegler argues that he should be allowed to use his sick leave to recover. Although the Superintendent MeCrossen testified that it was difficult to maintain a full force because of the various leaves allowed to the employees, that consideration alone cannot be sufficient to terminate employment if the employee is entitled to take sick leave and is not totally and permanently disabled. The solution to this apparently difficult problem lies in reform of the leave policy, not the dismissal of employees who are not totally and permanently disabled.

Ziegler is a seventeen year veteran of the Fire Department who is statutorily entitled to approximately 300 days of sick leave. From the vast majority of evidence presented, it appears that he may eventually be able to function in his position. The only evidence against this assertion was contradicted by the same person who presented it. Ziegler may or may not eventually be able to return to the Fire Department. Furthermore, there was no evidence presented upon which the Civil Service Commission could determine that Ziegler’s alcoholism was the result of his own negligence or culpable indiscretion. He should be allowed his accrued sick leave to rehabilitate himself so that he may return to work. If he is unable to do so, then clearly he should be entitled to his medical pension.

For the foregoing reasons, the decision of the Civil Service Commission upholding the dismissal of Daniel P. Ziegler on the basis that he was totally and permanently disabled is hereby reversed. Ziegler is to be reinstated, and the time elapsed since his dismissal is to be considered as statutory sick leave.

REVERSED.

CIACCIO, Judge,

dissenting.

The majority finds that Mr. Ziegler was not permanently disabled, and therefore concludes that his dismissal was improper. This is the wrong test, the correct one being the inability of the employee to perform the duties of his position. Civil Service Rule IX provides in part, that “when any regular employee in the classified service is unable or unwilling to perform the duties of his position ...” the appointing authority shall take action warranted by the circumstances to maintain the standard of effective service.

The grounds for plaintiff’s dismissal was the June 26,1981 letter from Dr. Jack Ruli which indicated that Mr. Ziegler be considered totally and permanently disabled from performing fire duties based upon the diagnosis of severe alcoholism which had caused him to have a seizure problem, abnormal brain findings and liver disease. The Civil Service Commission upheld the dismissal, after finding that “At the time the appellant was dismissed, it is clear that cause existed.” The record fully supports this finding.

The fact findings of the Civil Service Commission are to be accorded the same efficacy as a finding of fact made by a trial court. Gallardo v. Department of Fire, 399 So.2d 626 (La.App., 4th Cir., 1981). The appellate court is not at liberty to make findings of fact the effect of which would necessitate a different result, unless it appears that the trier of fact committed manifest error. Gallardo v. Department of Fire, supra. Arceneaux v. Domingue, 365 So.2d 1330 (La., 1978), Canter v. Koehring Co., 283 So.2d 716, (La., 1973).

The Commission, in its opinion, stated: “The precise issue is therefore the propriety of the position taken by the Appointing Authority that appellant should be given no further opportunity to resolve his problem with alcoholism while in the employ of the Fire Department. The evidence is uncontradicted that the Department had cooperated with appellant for a number of years, at least since 1977, in dealing with alcoholism. This is therefore not a case of an insensitive and uncaring employer refusing assistance to its employee. Despite these earlier efforts, at the time of his dismissal appellant was still drinking and continued to do so until August, 1981.”

Under these circumstances, this Court should not substitute its opinion for that of the Superintendent, and should not require the Fire Department to reinstate the appellant and to undertake further rehabilitative efforts which have no guarantee of success, at a risk to the well being of the employee himself, his fellow employees and the public. Further, the right to reinstate such a discharged employee is reserved to the appointing authority, with the approval of the Commission. C.S.C., Rule VI, § 4.6.

Although the opinion indicates that Mr. Ziegler returned to work in May, 1981, this is incorrect as he was on sick leave at the time of his dismissal. He had not stopped drinking as of this date and, by his own testimony, did not seek help until August of 1981, several weeks after his discharge. The plaintiff’s condition after the date of his dismissal should not be considered by this Court, and it is clearly wrong for this Court to vacate the dismissal on the basis of subsequent events.

Moreover, I further disagree with that portion of the majority opinion which would allow the plaintiff to use accumulated statutory sick leave to recover.

The applicable statutory provision dictates the following conditions concerning the accumulation of sick leave:

Louisiana Revised Statute, Title 33 Section 1995:

Every fireman in the employ of a municipality, parish or fire protection district to which this Sub-part applies, shall be entitled to full pay during sickness or incapacity not brought about by his own negligence or culpable indiscretion for a period of not less than fifty-two weeks. As amended Acts 1962, No. 132, § 1. (Emphasis Supplied)

It is my opinion that the plaintiffs condition was a direct result of his own “culpable indiscretion” which precludes him from claiming the benefits of R.S. 33:1995.

Appellant admits to drinking heavily since the age of fourteen. Although he has served satisfactorily in the New Orleans Fire Department for nearly seventeen years and no evidence was presented that he ever drank on duty, his drinking problem had grown progressively worse in recent years, to the point where he occasionally suffered short seizures or black-outs, one of which occurred while on duty. On several occasions the Fire Department’s physician, Dr. Ruli, examined appellant and detected various physical abnormalities attributable to his alcoholism. Appellant participated in various alcoholism treatment programs over a period of time but prior to March, 1981 had not been successful in controlling his condition.

Appellant’s failure to control his drinking habit and his failure to cooperate with prior rehabilitation efforts amounts to “culpable indiscretion.”

The majority recognized that Ziegler was suffering from the effects of alcoholism which prevented him from performing his duties but orders that he be credited with statutory sick leave. This is an admission that the cause for his dismissal, i.e., his inability to perform his duties, was present, but this Court then substitutes its judgment for that of the Superintendent, an action we prohibited the Civil Service Commission from doing in the case of Branighan v. Department of Police, 362 So.2d, 1221 (La. App., 4th Cir.1978)’ This is clearly wrong.

For the stated reasons, I would affirm the decision of the Civil Service Commission, which upheld plaintiff’s dismissal.

I respectfully dissent.


author: JASPER E. JONES, Judge.

text:
    TEXAS INDUSTRIES, INC., d/b/a Louisiana Industries, Plaintiff-Appellee, v. C. Alvin ROACH, Defendant-Appellant.
    No. 14993.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 17, 1983.

      Skeels, Baker, Coleman & Strickland by Donald L. Baker, Shreveport, for defendant-appellant.
    Tyler & Johnson by Tommy J. Johnson, Shreveport, for plaintiff-appellee.
    Before HALL, MARVIN and JASPER E. JONES, JJ.
   JASPER E. JONES, Judge.

In this action on an open account the defendant, C. Alvin Roach, appeals a judgment in favor of the plaintiff, Texas Industries, Inc., d/b/a Louisiana Industries (TI), for $9,240.70 with interest, costs and attorney’s fees in the amount of $1,500. We amend and affirm.

Appellant Roach makes three assignments of error. He contends the district judge erred in finding:

(1) that plaintiff had borne its burden of proof;
(2) that this was an action on an open account; and
(3) that the demand letter written by plaintiff’s counsel fulfilled the requirements of R.S. 9:2781.

THE FACTS

Roach is in the construction business and made frequent credit purchases of items from TI. Roach was slow in paying and on March 23, 1981, plaintiff’s attorney wrote Roach by certified mail and advised him that unless he paid his account balance of $11,885.84 legal proceedings would be commenced.

This action for $11,885.84, interest, costs and attorney’s fees was filed May 1, 1981. On the day of trial TI’s counsel orally amended the petition to reduce its demand for the account balance to $9,240.70 to reflect payments by appellant. The case was tried on the merits and the judgment complained of was rendered.

ASSIGNMENT # 1

At trial plaintiff attempted to show the amount due on the account through certain records and the testimony of its bookkeeper, Mrs. Mary McLelland, and defendant, Roach. Through this assignment appellant contends that the evidence introduced by plaintiff is so unreliable that the trial judge erred in concluding that TI had carried its burden of proof.

The plaintiff in an action on open account bears the burden of proving his case by a preponderance of the evidence. Freiberg v. Rembert, 213 So.2d 104 (La. App. 1st Cir.1968).

The amount of an account is a question of fact on which the trial judge’s findings may not be disturbed absent manifest error. Gulf coast Newspapers, Inc. v. Cart, 331 So.2d 177 (La.App. 3d Cir.1976), writ refused, 334 So.2d 230 (La.1976); First Nat. Bank v. Higgs, 406 So.2d 673 (La.App. 2d Cir.1981); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Though TI’s accounting methods are somewhat awkward, its bookkeeper testified that the balance due on the account was $9,240.70 and explained the accounting procedures to the satisfaction of the trial judge despite extensive cross examination by defendant’s counsel.

The demand need not be rejected merely because plaintiff’s accounting practices do not conform to the highest standards or use the best methods. Freiberg v. Rembert, supra.

The trial judge concluded that the balance due on account was $9,240.70. That factual conclusion is buttressed by substantial evidence in the form of records and McLelland’s testimony. Additionally, we note that appellant admitted the correctness of the invoices and trip tickets introduced by plaintiff and that he had been given credit for all payments he had made. Under these circumstances we cannot say the trial judge was clearly wrong in finding the balance due on the account to be $9,240.70.

ASSIGNMENT #3

Through this assignment of error Roach attacks the award of attorney’s fees by arguing that the demand letter written by plaintiff’s counsel does not meet the requirements of R.S. 9:2781 in that it does not correctly set forth the amount owed.

The provisions of § 2781, including the requirement that the letter correctly state the amount owed, must be strictly complied with in order for the plaintiff to obtain attorney’s fees. Scarborough v. Nelson, 371 So.2d 1261 (La.App. 3d Cir.1979).

Awards of attorney’s fees are penal or punitive in nature. Braswell v. Morris, 275 So.2d 189 (La.App. 2d Cir.1973); Allen v. Delta Match Corporation, 250 So.2d 563 (La. App. 1st Cir.1971); Viator v. Haynesville Mercantile Company, 230 La. 132, 88 So.2d 1 (1956).

Because of the penal nature of attorney’s fees awards they are not favored and should be made only in eases which are clear and free from doubt. Schwegmann Bros. Giant Super Mkts., Inc. v. Mouton, 309 So.2d 686 (La.App. 4th Cir.1975), writ denied, 310 So.2d 845 (La.1975).

The demand letter of March 23, 1981, states that the account balance is $11,-885.84. There is a serious question as to the accuracy of that figure for the following reasons.

In August 1980, Roach gave TI a note in the amount of $16,341.06 representing almost the entire balance due on his account at that time. Sometime in March 1981, probably on the 19th, Roach bought and gave to TI a money order in the amount of $17,000 to pay the note. The excess of the money order over the note, $658.94, was credited to Roach’s account. Thus, it appears that at the time the demand letter was written the balance due on Roach’s account was no more than $11,226.90.

The record also shows that Roach made another payment of $1,986.20 to his account during March 1981. The exact date of this payment is not clear from the record.

It is incumbent on the creditor seeking attorney’s fees through 9:2781 to clearly show that the amount due, as stated in the demand letter, was correct at the time the letter was sent to the debtor. This is particularly true in a case where, as here, the amount due at the time of trial differs from the amount stated to be due in the letter.

In the instant case TI could have made the necessary showing simply by proving that the two payments made on Roach’s account in March, 1981, were made after the demand letter was sent. However, this was not done and, consequently, there is serious doubt as to the accuracy of the statement of the amount due in the demand letter. Under these circumstances the trial judge erred in awarding attorney’s fees.

In brief, TI contends that this result will permit debtors to avoid attorney’s fees merely by making a small payment on account after receiving a demand letter. We disagree. We do not hold that the amount due as stated in the demand letter and the amount recovered in the judgment must be the same in order for a party to recover attorney’s fees under § 2781. Instead, we hold only that a correct statement of the amount due in the demand letter is a condition precedent to an award of attorney’s fees under the statute and that the creditor bears the burden of clearly showing the accuracy of that statement.

Our resolution of this assignment makes it unnecessary for us to consider appellant’s second assignment of error.

For the foregoing reasons the judgment of the district court is amended to delete the award of attorney’s fees and as AMENDED the judgment is AFFIRMED.

      . “A. 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. Evidence of receipt of written demand by the spouse of the debtor, when they are living together as husband and wife, on behalf of the debtor may be introduced as evidence of written demand on the debtor.”