author: WILLIAMS, Judge.

text:
    Dorothy Richard wife of James THOMPSON v. James THOMPSON.
    No. 12536.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.

      Trudy H. Oppenheim, New Orleans, for plaintiff-appellee.
    Edgar K. Corey, New Orleans, Kirk A. Vaughn, Arabi, for defendant-appellant.
    Before GARRISON, CIACCIO and WILLIAMS, JJ.
   WILLIAMS, Judge.

This is an appeal from a default judgment which set aside a conveyance of property.

The Thompsons were married in 1961. The marriage was dissolved on October 3, 1980. On July 12,1978, during his marriage to the plaintiff, defendant Thompson conveyed property at 1218-20 Alabo Street in New Orleans to his sister, Pearl Thompson Banks. The property was community property. The plaintiff later discovered that the property had been sold to defendant Banks when she attempted to pay a hundred dollar service tax on the property and was informed of the transfer. Mrs. Thompson then filed suit seeking to have the conveyance of the property set aside because it was fraudulent. The defendants did not respond to the plaintiff’s petition and a default judgment was entered against them on June 25, 1980. The judgment set aside the entire sale by defendant Thompson to his sister and awarded the plaintiff $1,200.00 in attorneys’ fees.

Defendant Thompson has appealed the default judgment asserting that the petition failed to state factual allegations constituting fraud and that no evidence of fraud had been introduced at trial. Defendant Thompson also appeals the award of attorneys’ fees in the absence of a contractual provision or an express statute awarding attorneys’ fees.

La.C.C.Pr. art. 856 states in part: “In pleading fraud or mistake, the circumstances constituting fraud or mistake shall be alleged with particularity... . ”

In her petition, the plaintiff asserted that she had been defrauded by Thompson’s sale to his sister and that the sale was “done with the intent ... to deprive her of her rightful interest in the community property.” The petition itself was styled as a “Petition To Set Aside a Fraudulent Conveyance” and throughout the petition allegations of fraud are numerous. The petition is sufficient to meet the requirement that fraud be pleaded specifically. La.C. C.Pr. art. 856. Additionally, the plaintiff incorporated, by reference, the testimony of defendant Thompson, outlined infra, that further supported the allegations of fraud. See Chrysler Credit Corp. v. Henry, 221 So.2d 529 (La.App. 4th Cir. 1969); La.C. C.Pr. art. 853.

The plaintiff introduced at trial the transcript of court proceedings held on August 3, 1979, to determine her entitlement to alimony. Thompson’s testimony at that previous hearing clearly shows that the property in question was acquired during the existence of the community, and, therefore, was community property. La.C.C. art. 2334. Defendant Thompson also testified that: (1) his income in 1978, the year in which the sale occurred, was $400.00; (2) he sometimes received money from his gambling activities, but at that time was “behind”, and (3) he was able to obtain “loans” from friends. Nowhere in his testimony did he ever indicate that he had received any money as a result of the sale, although the act of sale states that $19,180.66 of the $20,000.00 purchase price was paid in cash. In fact, he stated that he still owned the property in question although in fact it already had been sold to his sister.

Although fraud itself is never presumed, see, e.g. Matassa v. Temple, 346 So.2d 803 (La.App. 1st Cir. 1977), it can be proven by presumption.

Article 1848 of the Louisiana Civil Code states:

“Fraud, like every other allegation must be proved by him who alleges it, but it may be proved by simple presumptions or by legal presumptions, as well as by other evidence. The maxim that fraud is not to be presumed, means no more than it is not to be imputed without legal evidence.”

See generally La.C.C. art. 1847.

In Williams v. Smith, 340 So.2d 401 (La.App.2d Cir. 1976), a woman sued her former husband to have a sale of property to his brother declared null on the ground that no money had been paid for the property and the sale, therefore, was a simulated contract. The court outlined the pertinent law as follows:

“A simulated contract is one which has no substance whatsoever. Such a contract may be declared null at any time at the demand of any person in interest. A presumption of simulation may arise when the plaintiff produces facts casting serious doubt on the validity of the transaction. Once the presumption arises the burden shifts to the defendants to prove the validity of the transaction.”

Id. at 403 (citations omitted). See Auger v. Auger, 381 So.2d 879 (La.App.2d Cir. 1980).

As the court in Williams found, we also find that the facts surrounding Thompson’s sale to his sister are sufficient to create the presumption of simulation.

Defendant Thompson testified under oath that his only income in 1978, the year that the sale supposedly occurred, was $400, and money obtained from borrowing and gambling; he did not testify that he received income from any sale of property. Furthermore, he stated that he owned the property although he had sold it to his sister.

The trial court declared the entire sale to be null and void. The sale should be set aside, however, only insofar as it affects the plaintiff’s community interest in the property. Williams, supra at 403.

The plaintiff requested and the trial court awarded attorneys’ fees in the amount of $1,200.00. The law is clear that absent a specific statute or a contractural provision to that effect, attorneys’ fees will not be awarded. E.g. Killebrew v. Abbott Laboratories, 359 So.2d 1275, 1278 (La. 1978). Because neither of these situations are present here, the trial court’s award of $1,200.00 for attorneys’ fees is reversed.

For the foregoing reasons, the judgment of the trial court is affirmed and amended insofar as it sets aside that portion of the sale that affects the plaintiff’s community-interest in the property, and amended in part and reversed in part, insofar as it awards attorneys’ fees to the plaintiff.

AMENDED AND AFFIRMED IN PART AND REVERSED IN PART.

      . We note that under the law as it existed at the time of the sale, Thompson did have a right to alienate community property without his wife’s consent absent a showing that the sale was simulated. La.Civ.C. art. 2404 (repealed) (1979). See e.g. Mitchell v. Commissioner of Int. Rev., 430 F.2d 1 (5th Cir. 1970); Thigpen v. Thigpen, 231 La. 206, 91 So.2d 12 (1956).


source: Caselaw Access Project

author: DOUCET, Judge.

license: Public Domain

text:
    Michael FRANCIS, Plaintiff-Appellant, v. MANPOWER, INC. and Fireman’s Fund Insurance, Defendant-Appellee.
    No. 8607.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1982.
    Walter J. Rippas, St. Martinville, for plaintiff-appellant.
    Onebane & Associates, Chris G. Robbins, Lafayette, for defendant-appellee.
    Before FORET, CUTRER and DOUCET, JJ.
   DOUCET, Judge.

This is a workmen’s compensation suit in which plaintiff, Michael Francis, sued defendants, Manpower, Inc. and Fireman’s Fund Insurance Company to recover compensation benefits and penalties and attorney’s fees as a result of an alleged injury sustained during the course and scope of his employment. The trial court denied all of plaintiff’s demands. Plaintiff now appeals. We affirm.

Plaintiff, Michael Francis, alleged that he was injured on September 3, 1980 while he was sweeping iron filings on an oil rig in New Iberia. He claims he slipped and fell on his back as he was walking backwards, tripping on an extended piece of pipe. Mr. Francis was employed at the time by Manpower, Inc. and the employer’s insurer was Fireman’s Fund Insurance Company.

The day of the incident plaintiff was examined and treated by Dr. Jacob Lahasky of New Iberia, Louisiana. Dr. Lahasky’s final medical report reflects a diagnosis of a contusion to the lower back with a low back sprain. He recommended physical therapy and prescribed muscle relaxants and pain medication. Dr. Lahasky also noted in his report that plaintiff was capable of doing the same work as before the injury.

Mr. Francis was subsequently examined and treated by Dr. Kenneth Foumet of St. Martinville, Louisiana on September 16th and 21st of 1980. Muscle relaxants were again prescribed and physical therapy administered on five occasions from September 22nd until October 10th of 1980. Dr. Fournet’s medical report of November 4, 1980 gives no diagnosis, but does state that X-rays of the lumbar spine were taken and were reported to be within normal limits.

Plaintiff was later treated by Dr. J. Boring Montgomery of Lafayette, Louisiana from October 13, 1980 until February 10, 1981. Dr. Montgomery diagnosed a severe lumbosacral strain, prescribed pain medication and recommended physical therapy, which Mr. Francis underwent.

Mr. Francis was also examined by Dr. David Jarrott on March 30, 1981, a neurosurgeon in New Orleans, Louisiana. Dr. Jarrott diagnosed a lumbar disc syndrome and advised a lumbar myelogram.

Dr. James C. McDaniel, an orthopedic surgeon, examined plaintiff on April 22, 1981 and found him to have had an essentially normal back examination.

The plaintiff, Mr. Francis, made demand upon Fireman’s Fund Insurance Company, the employer’s insurer, for the payment of weekly workmen’s compensation benefits and medical expenses in September, 1980. The medical bill of Dr. Lahasky was paid by defendant but no other medical expenses have been paid, nor have any compensation benefits been paid. The trial court dismissed plaintiff’s case and denied all requested recovery and it is from this judgment that the plaintiff now appeals.

The issue is whether the trial court was manifestly erroneous in denying the plaintiff’s claim for workmen’s compensation benefits, medical expenses, and penalties and attorney’s fees.

It is the well settled jurisprudence of Louisiana that the findings of the trial court are not to be disturbed in the absence of a showing of manifest error. If there is a reasonable evidentiary basis for the trial court’s findings of fact, its ruling must be affirmed. Wiley v. Travelers Insurance Company, 300 So.2d 555 (La.App. 3rd Cir. 1974), writ denied, 303 So.2d 187. Brookshire v. Guidry, 355 So.2d 559 (La.App. 3rd Cir. 1978).

“The trial judge may accept or reject an opinion expressed by any medical expert depending on how impressed he is with the qualifications, credibility, and testimony of the expert. In evaluating the testimony of medical experts of nearly equal qualifications, considerable weight must be attached to the opportunities each doctor had for observation of the patient and the doctor’s familiarity with the patient and his history. The testimony of a treating physician who has had the benefit of repeated examinations and sustained observation of a patient under his direct care is to be accorded greater weight and probative value than that of a physician who has not undertaken treatment of the patient but has merely examined him a few times preparatory to giving expert testimony regarding the patient’s condition. The testimony of a physician who examines and treats the claimant from the inception of injury is entitled to greater weight than the opinion of one who examines the claimant later.”

Rodriquez v. American International Insurance Company, 394 So.2d 621 (La.App. 3rd Cir. 1980).

This court must give great weight to the reasonable evaluations of credibility and inferences of fact made by the trial court. It is evident in the instant case that the trial court chose not to believe the testimony of the plaintiff since it denied his claim for compensation benefits. The plaintiff, Michael Francis, was the only witness who testified as to the alleged accident and his story was not corroborated by any other witnesses.

Additionally, the record reveals that medical testimony supports the conclusion that the alleged incident did not produce any disability. The medical testimony and reports admitted into evidence at trial were from five different physicians. It is expected, therefore, that there be some inconsistencies in the opinions rendered by the different doctors.

The trial court chose to give greater weight to the report of Dr. Lahasky, who examined the claimant from the inception of the alleged injury and was of the opinion that plaintiff could return to his same work. Neither Dr. Lahasky nor Dr. Fournet reported any objective findings of disability and the X-rays taken at Dr. Fournet’s dircction were within normal limits. The trial court has the discretion to give more weight to the reports of these physicians than those of Dr. Montgomery, whose first examination of plaintiff was over a month after the alleged accident. Neither Dr. Jar-rott nor Dr. McDaniel examined the plaintiff more than once. It is evident that the trial court chose to believe the opinion of Dr. McDaniel. He was of the opinion that plaintiffs back examination was essentially normal. Both doctors are well qualified in their specialty, and the trial court preferred to weigh Dr. McDaniel’s opinion more in its decision. There is a reasonable factual basis for the trial court’s decision and it is adequately supported by the record. Therefore, the decision is not manifestly erroneous and the trial court’s judgment is affirmed. All costs of this appeal are assessed against the plaintiff-appellant.

AFFIRMED.


author: STOKER, Judge.

text:
    Norward LEE and Ruby Watson, Plaintiffs-Appellants, v. Eddie Lee HARTFORD, et al., Defendants-Appellees.
    No. 8611.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1982.
    Boatner & Luke, Peter J. Lemoine, Bunk-ie, for plaintiffs-appellants.

      Bolen & Erwin, Ltd. by Charles Munster-man, Alexandria, for defendants-appellees.
    Before CULPEPPER, GUIDRY and STOKER, JJ.
   STOKER, Judge.

This is a wrongful death suit instituted by plaintiffs-appellants, Norward Lee and Ruby Watson, to recover damages for the death of their son, James Lee, who was struck and killed by a truck driven by defendant-appellee, Eddie Lee Hartford (Hartford) while employed by Lieux Chevrolet Company, Inc. Lieux Chevrolet and Liberty Mutual Insurance Company, the owner and insurer of the truck, respectively, were also made defendants in this case. Trial of this matter was held in the Twelfth Judicial District Court on May 19 and 20, 1981. The jury found that Hartford was not negligent and returned a verdict in favor of the defendants. Plaintiffs appeal this judgment. We affirm.

The only issue on appeal is whether the trial court erred in determining that Hartford was not negligent.

FACTS

On April 16, 1980, at approximately 3:00 PM on a clear day, Hartford was driving a 1975 Chevrolet truck west on Yellow Bayou Road located just outside the town of Simmesport, Louisiana. Yellow Bayou Road is a narrow rural road, black-topped but unelevated, and used by most drivers as a single lane road. The portion of the road on which the accident occurred is straight with numerous residences south of the road and a small grassy area located three to five feet from the north side of the road. Three young children, ages 2 to 4, were playing in this grassy area as evidenced by an area of mashed-down weeds located a few feet from the road and separated from the road by more weeds. (Tr. 206) The area was just east of a bridge on Yellow Bayou Road which crossed a deep ditch. As Hartford crossed this bridge traveling west, the three children emerged from the weeds. The three and four year old apparently stopped on the shoulder of the road, but the two year old, plaintiffs’ son, darted across the road and was hit by Hartford’s vehicle. (Tr. 162, 248)

Plaintiffs seek to have this Court review the facts without reference to the manifest error rule, relying on the standard of review set forth in Billiot v. Bourg, 317 So.2d 684 (La.App. 1st Cir. 1975). However, this standard of review was rejected by the Louisiana Supreme Court decision of this case on appeal in which the judgment of the Court of Appeal was set aside. 338 So.2d 1148 (La.1976). It is clear that we cannot disturb the trial court’s finding, if supported by a reasonable factual basis, in the absence of manifest error. Canter v. Koehring, 283 So.2d 716 (La.1973).

Plaintiffs’ main argument is that the jury failed to apply the correct standard of law in reaching its verdict. A motorist who sees a child on or near the road is subject to a high degree of care and a duty to anticipate that the child, possessed of limited judgment, might be unable to appreciate impending danger, is likely to be inattentive, and might suddenly place himself in a position of peril. Buckley v. Exxon Corporation, 390 So.2d 512 (La.1980); and Dufrene v. Dixie Auto Insurance Company, 373 So.2d 162 (La.1979). However, while a motorist who sees or should see children near the roadside must exercise a high degree of care, he is not an insurer of the safety of children playing near the street. If the motorist is proceeding at a lawful and reasonable speed and is obeying all the rules of the road as to proper lookout, he will not be held liable when a child suddenly darts or runs into his path from a concealed position. Raphile v. Alexander, 315 So.2d 836 (La.App. 4th Cir. 1975); and Vaughn v. Earthly, 313 So.2d 347 (La.App. 3rd Cir. 1975), writ refused, 318 So.2d 52 (La.App.1975).

Plaintiffs point out that Hartford was familiar with Yellow Bayou Road, and knew that young children lived and played along the road. (Tr. 78) Plaintiffs also rely heavily on Hartford’s statement to a bystander immediately after the accident that he saw the first two children but did not see the third child until it was too late and that he threw on the brakes and tried to avoid hitting that child, but was unable to do so. (Tr. 133-134) Plaintiffs contend that Hartford was under a high duty of care because he saw or should have seen these children on the side of the road.

The evidence produced at trial indicated that Hartford was traveling between 32 and 40 mph in a 55 mph zone when the accident occurred. (Tr. 160, 229, 245) There was also substantial evidence before the jury that the children were hidden from Hartford’s view by the bridge or the weeds, and that Hartford was unable to stop his vehicle from hitting James Lee by the time he saw the child or his playmates. The jury could have reasonably found that Hartford was traveling at a lawful and reasonable speed and was maintaining a proper lookout, but that the accident was unavoidable because James Lee suddenly darted onto the road from a concealed position. Therefore, finding no manifest error, we will not disturb the trial court’s findings.

AFFIRMED.


author: CULPEPPER, Judge.

text:
    Jesse L. JAMES, Plaintiff and Appellant, v. Lacy C. VANCE, Defendant and Appellee.
    No. 8620.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1982.
    Gravel, Robertson & Brady, James J. Brady, Alexandria, for plaintiff-appellant.
    Gist, Methvin, Hughes & Munsterman, DeWitt T. Methvin, Jr., Alexandria, for defendant-appellee.
    Before CULPEPPER, GUIDRY and STOKER, JJ.
   CULPEPPER, Judge.

Plaintiff alleges he was walking a picket line when he was struck by an automobile driven by defendant. The trial judge rejected plaintiff’s demand for damages. Plaintiff appealed. We affirm.

The substantial issue is whether the trial judge was clearly wrong in his finding of fact that: “Plaintiff assumed the risk of injury when he placed himself in front of defendant’s slow moving car.”

Both plaintiff, Jesse L. James, and defendant, Lacy C. Vance, were employees at the Dresser Industries Plant near Tioga. Plaintiff is a member of a labor union which was conducting a strike at the plant at the time of the incident. The defendant is a member of another union and was a non-striking employee. On May 7, 1979, a temporary restraining order had been issued enjoining the union and its members from blocking the entrances to the plant. Despite the restraining order, on May 9, 1979, plaintiff and several strikers were walking in a circle in one of the plant entrances.

The defendant had attempted to return to work two days earlier but was prevented from doing so by the strikers. His foreman contacted him and instructed to come to work on May 9, after the injunction was obtained. At approximately 7:30 A.M. on May 9, the defendant, Mr. Vance, drove to work in his 1971 Datsun automobile and attempted to enter one of the plant entrances, but his passageway was blocked by a number of union strikers, one of which was the plaintiff. Mr. Vance testified that he turned into the driveway and, seeing the strikers, he momentarily stopped and then “inched” forward without using the accelerator. He stated that as he inched forward, the plaintiff moved up and struck the front of his car with his hands and then fell over backwards. Vance testified that then a group of strikers surrounded his car and started to hit it and also tried to kick out the lights and turn it over.

The plaintiff, Mr. James, testified that defendant first stopped and then “guzzled on” into him as he was standing in the picket line.

Plaintiff’s injuries were minor. He complained of a neck injury, but the doctors found only slight cervical muscle spasm from which he recovered in a few days.

Several witnesses testified about this incident at trial giving a variety of accounts supporting one side or the other. There were also varying accounts of the occurrence or non-occurrence of a similar incident about an hour later involving another non-striking employee, Cletus Stienhoff. It is alleged that Mr. Stienhoff attempted to enter the plant, but was blocked. As a deputy sheriff attempted to guide the car into the plant, another picketer was either struck by Mr. Steinhoff’s car or threw himself on the ground by the car.

An appellate court may not disturb a trial court’s evaluation of credibility and factual determinations unless the record reveals that the trial court’s decision is manifestly erroneous or clearly wrong. Areeneaux v. Domingue, 365 So.2d 1330 (La. 1978); Canter v. Koehring Company, 283 So.2d 716 (La.1973).

The Louisiana Supreme Court in Dofflemyer v. Gilley, 384 So.2d 435 (La.1980) stated the requisites for the defense of assumption of risk:

“It is fundamental that, in order to assume a risk, one must knowingly and voluntarily encounter a risk which caused him harm. Plaintiff must understand and appreciate the risk involved and must accept the risk as well as the inherent possibility of danger because of the risk. Prestenbach v. Sentry Insurance Co., 340 So.2d 1331 (La.1976); McInnis v. Fireman’s Fund Insurance Co., 322 So.2d 155 (La.1975); Brantley v. Brown, 277 So.2d 141 (La.1973); Langlois [Langlois v. Allied Chemical Corporation, 258 La. 1067, 249 So.2d 133], supra. Assumption of risk is an affirmative defense that must be specially pleaded. La.Code Civ.P. art. 1005. The burden of proving this defense is upon the defendant. Langlois, supra.

The trial court heard the contradictory versions of the incident described above. Apparently, he believed defendant’s version, under which he could have reasonably inferred that plaintiff understood and appreciated the risk of moving in front of defendant’s car, and that he accepted the inherent possibility of danger. Certainly, the trial judge was not clearly wrong in this finding of fact.

For the reasons assigned, the judgment appealed is affirmed at plaintiff’s cost.

AFFIRMED.


author: FORET, Judge.

text:
    Alvin LAUGHLIN, Plaintiff-Appellee, v. CITY OF CROWLEY, Defendant-Appellant.
    No. 8661.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1982.

      Privat & Regan, Thomas K. Regan, Crowley, for defendant-appellant.
    Miller, Miller & Craton, Jack Derrick Miller, Crowley, for plaintiff-appellee.
    Before FORET, CUTRER and DOUCET, JJ.
   FORET, Judge.

Alvin Laughlin (plaintiff) brought this workmen’s compensation action to recover disability benefits, medical expenses, and penalties and attorney’s fees from defendant, City of Crowley.

Trial of plaintiff’s action resulted in a judgment in his favor ordering defendant to pay him disability benefits at the rate of $77.33 per week from August 21,1980, until further orders were received from the court, together with penalties of 12% and reasonable attorney’s fees of $1,700. In addition, defendant was ordered to pay all of plaintiff’s medical expenses connected with his claim, both past and future.

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

(1) Whether the trial court committed manifest error in finding plaintiff to be totally and permanently disabled as a result of personal injuries suffered in a work-related accident, while employed by defendant;
(2) Whether the trial court committed manifest error in finding defendant to have been arbitrary and capricious in terminating the payment of disability benefits to plaintiff.

Plaintiff answered the appeal and raises the following issues:

(1) Whether the trial court committed manifest error in finding that defendant had good cause for failing to timely pay his medical expenses;
(2) Whether the amount awarded as attorney’s fees should be increased, if this Court affirms the trial court’s judgment.

FACTS

Plaintiff’s claim arises out of an accident that occurred in Crowley, on April 17,1980. On that date, plaintiff was employed as a sanitation worker by defendant and injured his back when he and a co-worker lifted a barrel containing discarded automobile parts onto the bed of one of defendant’s trucks.

Plaintiff instituted this action on September 24, 1980, alleging that the injuries suffered in the accident had rendered him totally and permanently disabled or, in the alternative, partially disabled. Plaintiff further alleged: that he was entitled to disability benefits of $80 per week for as long as he is disabled; that defendant was responsible for all medical expenses, past and future, incurred for the treatment of his injuries; that defendant had terminated payment of his disability benefits and medical expenses without just cause, entitling him to penalties of 12% of the amounts due him, together with reasonable attorney’s fees; and, that expert witness fees should be taxed as costs of court against defendant.

Defendant answered plaintiff’s petition, admitting that he was employed by it on the date of the accident, and that compensation payments were made to him through August 21, 1980, but denying all other allegations contained therein.

PLAINTIFF’S ALLEGED DISABILITY

Defendant contends that the trial court committed manifest error in finding plaintiff totally and permanently disabled, under the provisions of LSA-R.S. 23:1221(2) , and entitled to benefits therefor. Essentially, defendant argues that plaintiff failed to prove his claim for benefits.

The plaintiff-employee in a workmen’s compensation’s action, in order to successfully maintain a claim for disability benefits, must prove, by a preponderance of the evidence: that he received personal injury by accident arising out of and in the course of his employment ; that he is disabled ; and, that his disability resulted from injuries sustained in the work-related accident.

The first issue for our determination is whether the trial court committed manifest error in finding that plaintiff received a personal injury by accident arising out of and in the course of his employment.

Plaintiff testified that one of his duties as defendant’s employee was to drive a flatbed truck to different locations in Crowley to pick up trash and debris that regular garbage trucks were unable to handle. Frederick Roche (Roche) was also one of defendant’s employees and was assigned to plaintiff as a helper. They followed regular routes in performing their duties and would also respond to special requests for their services as directed by their supervisor, Oscar Primeaux (Primeaux).

Plaintiff and Roche reported to work at approximately 7:00 a. m. on the day of the accident. They went to the Goodyear dealership, a regular stop on their route, where they found some old, discarded tires and some 55-gallon oil drums filled with trash. Plaintiff alleges that he injured his back when he and Roche lifted one of the barrels onto the bed of the truck. Roche stated that right after they lifted the barrels, plaintiff told him that he felt something “pop” in his back. Plaintiff testified that he immediately experienced pain in his back.

Alfred E. Harmon, M.D., testified that he examined plaintiff on April 21, 1980, some four days after the accident occurred, and that plaintiff related the details of the accident to him. At that time, plaintiff’s primary complaint was pain in his low back area. Dr. Harmon found tenderness in the left lumbo-sacral area, with a moderate amount of muscle spasm present. Plaintiff had some limitation of flexion from the waist and decreased deep tendon reflexes. X-rays revealed some generalized spur formation and degenerative changes of the lumbar vertebra. Dr. Harmon felt that these conditions pre-dated plaintiff’s injury as they take months or years to develop. Dr. Harmon’s diagnosis was that plaintiff was suffering from lumbo-sacral strain with possible lumbar disc disease or aggravation of a pre-existing disc pathology. Plaintiff was given a lumbo-sacral brace to wear and referred to a physical therapist for further treatment.

LSA-R.S. 23:1031 provides that compensation shall be allowed for accidental injury “arising out of and in the course of” the claimant’s employment. Under the jurisprudence interpreting this statute, it has been held that the terms “arising out of” and “in the course of” are not synonymous but, nevertheless, must be considered together. To “arise out of” the employment, the accident must be the result of some risk-to which the employee is subjected in the course of his employment and to which he would not have been subjected had he not been so employed. Time, place and circumstance must determine this. An accident occurs during the course of the employment when it occurs during the time of the employment and at a place contemplated by it.

The trial court’s finding that plaintiff received personal injuries by accident arising out of and in the course of his employment is not clearly wrong.

The next issue is whether the trial court committed manifest error in finding that plaintiff was totally and permanently disabled under the “Odd Lot” doctrine.

In making determinations of whether an employee is totally and permanently disabled, Osier v. Wetzel Printing, Inc., 390 So.2d 1318 (La.1980), concluded that the “Odd Lot” doctrine should be used as a guide in interpreting the provisions of LSA-R.S. 23:1221(2). Oster set forth the “Odd Lot” doctrine, as follows, on page 1320:

“In determining whether an employee is permanently and totally disabled, it is not a prerequisite that he be absolutely helpless. If the evidence of his physical impairment and of other such factors as his mental capacity, education, and training indicates that he can perform no services other than those which are so limited in quality, dependability or quantity that a reasonably stable market for them does not exist, the injured employee is entitled to total disability compensation unless the employer or his insurer is able to show that some form of suitable work is regularly and continuously available to the employee within reasonable proximity to his residence.”

Oster found that a plaintiff makes a prima facie case for inclusion in the “Odd Lot” category, and satisfies his burden of proving that he should be awarded benefits for permanent and total disability, when he is able to show a combination of factors (physical impairment, mental capacity, education, training, age, availability of employment in his area, etc.) indicating that the services which he is able to render are so limited in quality, quantity, or dependability, that a market for his labor does not exist within which he can effectively compete. Once such a showing is made, the burden of proof shifts to the employer to show that there are jobs available to provide a steady income to the plaintiff or that will provide him with a “gainful occupation”.

In the action before us, plaintiff has no education, training, or skills, and is 54 years old. He returned to see Dr. Harmon approximately two weeks after his first visit with persistent complaints of low back pain. Dr. Harmon re-examined him and found signs of nerve root irritation and muscle spasm in the lumbo-sacral muscles. He then referred plaintiff to an orthopedic surgeon, James R. LaFleur, M.D.

Dr. LaFleur examined plaintiff on June 19, 1980. Plaintiff told him of an earlier injury to his back and that he had rein-jured his back picking up a barrel while employed by defendant. Dr. LaFleur also found evidence of mild degenerative joint disease in plaintiff’s lumbar spine and felt that this condition could have been aggravated by these two injuries. Dr. LaFleur stated that intensive physical therapy and/or a lumbar myelogram would be needed in order to make a definitive determination of whether plaintiff was suffering from a slipped disc or nerve root impingement. He opined that plaintiff should not engage in even moderate labor based on his findings.

Plaintiff continued to see Dr. Harmon until August 6,1980, complaining of pain in his back. Dr. Harmon’s examination, conducted on that date, revealed tenderness and swelling of the left lumbo-sacral area, but no apparent muscle spasm. Dr. Harmon again found signs of nerve root irritation. However, he released plaintiff from his care because he felt that he had offered enough conservative medical treatment and could do no more. He examined plaintiff once more on March 10, 1981, the date of trial, and found plaintiff’s condition essentially unchanged from the prior examination. He felt that plaintiff would never be fit for heavy duty work in the future.

Defendant has presented no evidence showing that there are jobs available to provide a steady income to plaintiff or that will provide him with a gainful occupation.

The trial court’s finding that plaintiff is totally and permanently disabled under the provisions of LSA-R.S. 23:1221(2), and under the “Odd Lot” doctrine, is not clearly wrong.

The final issue is whether the trial court committed manifest error in finding a causal connection between the injuries suffered by plaintiff in the work-related accident and his disability.

Plaintiff argues that he is entitled to benefit from the following presumption, recently restated in Allor v. Belden Corporation, 393 So.2d 1233 (La.1981), on page 1236:

“On the specific issue of the causal connection between the accident and the disability, the claimant is entitled to the benefit of a presumption in certain cases. If an otherwise healthy worker suffers an accident at work and is thereafter disabled, it is presumed that there is a causal connection between the two, so long as the medical evidence establishes a reasonable possibility of such a connection.” (Emphasis ours.)

This presumption is unavailable to plaintiff as the evidence shows that he is not “an otherwise healthy worker”. Both medical experts testified that they found plaintiff to be suffering from a degenerative condition affecting his spine.

However, the jurisprudence is clear that the employer takes the employee as he finds him, and that an employee’s disability is compensable if a work-related accident aggravates or accelerates a pre-existing condition to produce disability. Cadiere v. West Gibson Products Co., Inc., 364 So.2d 998 (La.1978); Crawford v. Al Smith Plumbing & Heating Service, Inc., 352 So.2d 669 (La.1977); Johnson v. Travelers Insurance Company, 284 So.2d 888 (La.1973).

Plaintiff testified that before he was employed by it as a sanitation worker, he had worked for defendant part-time. He was assigned to work in the graveyard where he mowed the grass with a push mower and leveled dirt with a shovel. He would also have to haul dirt in a wheelbarrow. He did this type of work for five or six months before going to work full-time with defendant in October or November of 1979. He was apparently able to perform his duties as a sanitation worker (emptying barrels of trash, picking up discarded objects, etc.) for the next five or six months until the accident occurred. He has been unable to perform light to moderate labor since then without experiencing pain in his back.

Dr. Harmon testified that he believed that plaintiff’s pre-existing back condition had been aggravated by injuries received in the accident. He felt that plaintiff would have been experiencing “rather severe pain” had he been performing his duties as a sanitation worker, prior to the accident, with his back in its present condition. Dr. LaFleur examined plaintiff only once for evaluation. He stated that the accident could have aggravated plaintiff’s pre-exist-ing back condition.

The trial court’s finding of a causal relationship between plaintiff’s disability and the injuries he received in the work-related accident is not clearly wrong. Thus, plaintiff is entitled to recover disability benefits from defendant.

PENALTIES AND ATTORNEY’S FEES

Defendant contends that the trial court committed manifest error in finding that it had acted arbitrarily, capriciously, and without probable cause in terminating payment of disability benefits to plaintiff on August 21, 1980. Defendant argues that it was entitled to rely on medical reports it received and that these reports indicated that plaintiff had suffered no disabling injuries in the accident.

Daniel R. Hughes (Hughes) testified that he was claims manager for All Risk Management Services, which is a supporting facility for a program in which defendant participates, set up by the Louisiana Legislature called “Self Insurance Funding for Governmental Subdivisions”. Hughes handled workmen’s compensation claims for defendant and made the decision to terminate payment of disability benefits to plaintiff. His decision was based solely on reports sent to him by Dr. Harmon, Dr. LaFleur, and Stephen Wilson, M.D., an orthopedic surgeon. Dr. Wilson did not testify at trial. However, his report was allowed in evidence, over plaintiff’s objection, for the sole purpose of showing what Hughes had based his decision on.

We have reviewed these reports and note that none of them state that plaintiff may return to work. The reports of Drs. Harmon and LaFleur state that they had made positive findings indicating that plaintiff could be suffering from a ruptured disc and that further tests were necessary before a definitive diagnosis could be made. However, Hughes testified that he told Dr. LaFleur that defendant would not pay for a myelogram if the test was related to, or made necessary by, plaintiff’s pre-existing condition. Plaintiff was unable to have this test performed because of his own poverty and defendant’s equivocal consent to pay for it.

The trial court’s finding that defendant was arbitrary, capricious, and without probable cause in terminating payment of disability benefits to plaintiff is not clearly wrong.

ANSWER TO APPEAL

Plaintiff contends that the trial court committed manifest error in finding that defendant’s failure to timely pay his medical bills was with good cause and not arbitrary and capricious.

The evidence shows that defendant had paid all of plaintiff’s medical expenses at the time of trial. Hughes testified that, before paying such bills, it was customary procedure for him to wait for medical reports to substantiate them. The evidence shows that the bills were paid once the reports were received.

The trial court’s finding that the defendant had good cause to delay payment of plaintiff’s medical expenses is not clearly wrong.

Finally, plaintiff contends that we should raise the trial court’s award of reasonable attorney’s fees to include fees for legal services rendered in connection with this appeal. We agree and increase the award for attorney’s fees by $750.00.

For the above and foregoing reasons, the judgment of the trial court is affirmed. We award plaintiff $750.00 for attorney’s fees for a total award of $2,450.00 for this item.

All costs of this appeal are assessed against defendant-appellant.

AFFIRMED, AS AMENDED.

      . “(2) For injury producing permanent total disability of an employee to engage in any gainful occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training, and experience, sixty-six and two-thirds per centum of wages during the period of such disability.”

      . See LSA-R.S. 23:1031; Simpson v. S.S. Kresge Co., 389 So.2d 65 (La.1980); Gorbach v. Prager, Inc., 310 So.2d 604 (La.1975); Prim v. City of Shreveport, 297 So.2d 421 (La.1974).

      . See Guidry v. Ford, Bacon & Davis Construction Corp., 376 So.2d 352 (La.App. 3 Cir. 1979); Soileau v. Bituminous Casualty Corp., 348 So.2d 1313 (La.App. 3 Cir. 1977); Hamilton v. Georgia Pacific Corp., 344 So.2d 400 (La.App. 1 Cir. 1977).

      . See authorities cited in Footnote # 1; Hammond v. Fidelity & Casualty Co. of New York, 407 So.2d 13 (La.App. 3 Cir. 1981); Hall v. Houston General Insurance Co., 377 So.2d 561 (La.App. 3 Cir. 1979), writ denied, 379 So.2d 10 (La.1980); Soileau v. Bituminous Casualty Corp., supra.

      . See Lisonbee v. Chicago Mill and Lumber Company, 278 So.2d 5 (La.1973); Renfroe v. City of New Orleans, 394 So.2d 787 (La.App. 4 Cir. 1981), writ denied, 399 So.2d 621 (La.1981).

      . See Lisonbee v. Chicago Mill & Lumber Co., supra; Kern v. Southport Mill, Ltd., 174 La. 432, 141 So. 19 (1932).

      . See Lisonbee v. Chicago Mill & Lumber Co., supra; Renfroe v. City of New Orleans, supra; Whitney v. U. S. Fidelity & Guaranty Insurance Co., 373 So.2d 728 (La.App. 2 Cir. 1979), writ denied, 376 So.2d 320 (La.1979).

      . Plaintiff had injured his back in 1969, while constructing board roads in the oilfields.


author: CUTRER, Judge.

text:
    Succession of Eddy HOFFPAUIR.
    No. 8673.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1982.

      Miller, Miller & Craton, John F. Craton, Crowley, for appellant.
    Edwards, Stefanski & Barousse, Homer Ed Barousse, Jr., Crowley, for appellee.
    Before FORET, CUTRER and DOUCET, JJ.
   CUTRER, Judge.

This appeal arises out of a suit by heirs of deceased Eddy Hoffpauir, who sought to reduce a bequest made to the surviving spouse, Effie Hoffpauir. By reconventional demand Effie Hoffpauir sought judgment against such heirs for certain debts owed to her by the separate estate of the decedent.

The facts, as presented in this case, are:

Eddy Hoffpauir (decedent) died August 21, 1978. He had been married twice. He first married Elia Credeur who predeceased him in 1932. Of that marriage six children (Plaintiffs) were born: Hollen Hoffpauir, Edith Hoffpauir Sarver, Lucy Hoffpauir Guidry, Dallas Hoffpauir, James Hoffpauir and Sidney Hoffpauir. The second marriage was to Effie Trahan, in 1937, by whom three children were born: Pearl Hoffpauir Guidry, Eldridge Hoffpauir and Eddy Hoffpauir.

Decedent executed a statutory testament in which he made a bequest to his wife of IV2 acres of land and a house. The property was the separate property of decedent subject to certain community claims asserted by the second wife. Other than the bequest to Effie Hoffpauir, the remaining property was bequeathed to the surviving children.

The will was filed for probate whereupon the children of the first marriage (Plaintiffs) filed suit to reduce the bequest to Effie as an excessive donation. Effie answered and reconvened, alleging the bequest to be an onerous, or remunerative, donation, thus not excessive, and claiming that the separate estate of decedent was liable to the former community of acquets and gains, which existed between them, for the enhanced value of decedent’s separate property.

In his reasons for judgment the trial judge found the donation to be excessive by the amount of $7,236.00. The trial judge also concluded that Effie Hoffpauir was “entitled to a credit of $7,281.00 against the estate, the portion bequeathed to her does not exceed the debt owed to her, and the donation will not be set aside.”

The trial court rendered judgment dismissing the principal demand of the heirs with prejudice. The plaintiffs in the principal demand appeal. The trial court judgment made no specific disposition of the reconventional demand.

We have concluded that neither the principal demand nor the reconventional demand states a cause of action. On this basis we do not decide the merits of the demands but we must dismiss both actions without prejudice.

PRINCIPAL DEMAND FOR REDUCTION OF DONATION

On September 11, 1978, Effie Hoffpauir was confirmed and qualified as Executrix of the Estate of Eddy Hoffpauir. Letters Testamentary were issued on that date. The suit for reduction was filed September 20, 1979, while the succession was under administration with Effie Hoffpauir as the qualified executrix.

The suit was filed against Effie Hoff-pauir individually and not in her capacity as executrix. The petition states as follows:

“1.
“Made defendant herein is EFFIE TRAHAN HOFFPAUIR, surviving widow of Eddy Hoffpauir, a resident of the full age of majority of Vermilion Parish, Louisiana.”

The prayer states as follows:

“WHEREFORE, petitioners pray that the defendant, EFFIE TRAHAN HOFF-PAUIR, be served with a certified copy of this petition and cited to appear and answer same, and that after all legal delays and due proceedings are had, there be judgment herein in favor of the petitioners, HOLLEN HOFFPAUIR, EDITH HOFFPAUIR SARVER, LUCY HOFF-PAUIR GUIDRY, DALLAS HOFF-PAUIR, JAMES HOFFPAUIR, and SIDNEY HOFFPAUIR, and against the defendant, EFFIE TRAHAN HOFF-PAUIR, recognizing that the donations inter vivos and mortis causa made by Eddy Hoffpauir to Effie Trahan Hoff-pauir exceed the disposable portion of this estate and impinge on the legatime of the petitioners and reducing the donations to the disposable portion of this estate and recognizing petitioners as the owners of the legatime to which they are entitled.”

In the case of Danos v. Waterford Oil Company, 225 So.2d 708, 712 (La.App. 1st Cir. 1969), the court stated that:

“Our jurisprudence appears well settled that at the death of an individual his succession exists as a separate, distinct legal entity until terminated by proceedings had pursuant to administration by an administrator or executor, or its unqualified acceptance by all the heirs concerned.”

There has been no termination of this succession. A suit for reduction of an excessive donation can only be brought against the succession entity through its executrix, Effie Hoffpauir.

While the heirs may have seizin from the moment of death, the executrix is the proper party defendant for suits against the estate until judgment of possession has been signed. Stansbury v. Hover, 366 So.2d 918 (La.App. 1st Cir. 1978); Gibbs v. Succession of Scott, 265 So.2d 249 (La.App. 3rd Cir. 1972); LSA-C.C.P. art. 734.

Under these authorities, the principal demand by the heirs of the reduction of a donation herein, brought against the legatee, Effie Hoffpauir, individually, states no cause of action and on that basis we shall affirm its dismissal. However, we will amend the dismissal to reflect that such is dismissed without prejudice.

RECONVENTIONAL DEMAND OF EFFIE HOFFPAUIR

Effie Hoffpauir, individually and as plaintiff-in-reconvention, reconvened against the heirs (plaintiffs in principal demand), claiming that the separate estate of decedent was liable for sums due to the former community existing between her and the decedent. Effie sought judgment against such heirs individually for the sum of the debts.

The reconventional demand alleges as follows:

“AND NOW, assuming the role as the plaintiff in reconvention, Effie Trahan Hoffpauir respectfully represents as follows:
“A.
“Edith Hoffpauir Sarver, Lucy Hoff-pauir Guidry, Dallas Hoffpauir, James Hoffpauir and Sidney Hoffpauir, all residents of Acadia Parish, Louisiana, and Hollen Hoffpauir, who is domiciled in the State of Arizona, are hereby made defendants herein.”

and prayed for a personal money judgment against the heirs stating:

“WHEREFORE, premises considered, the defendant, Effie Trahan Hoffpauir, prays that this be deemed a just and proper answer to the petition filed on behalf of the plaintiffs, Edith Hoffpauir Sarver, Lucy Hoffpauir Guidry, Dallas Hoffpauir, James Hoffpauir, Sidney Hoffpauir and Hollen Hoffpauir, and after due proceedings had and after the lapse of the requisite legal delays that their demands be dismissed at their cost; and further, as plaintiff in reconvention, Effie Trahan Hoffpauir, prays that there be judgment herein in her favor and against the defendants in reconvention, Edith Hoffpauir Sarver, Lucy Hoffpauir Guidry, Dallas Hoffpauir, James Hoff-pauir, Sideny Hoffpauir and Hollen Hoff-pauir, in the full sum of FIFTY THOUSAND AND NO/lOO ($50,000.00) DOLLARS and further that the separate estate of Eddy Hoffpauir be declared indebted to the former community of ac-quets and gains which existed between Eddy Hoffpauir and Effie Trahan Hoff-pauir in the sum of SIXTEEN THOUSAND FIVE HUNDRED AND NO/100 ($16,500.00) DOLLARS and for all just and equitable relief.”

Effie Hoffpauir, individually, has no cause of action against the heirs, individually, for debts owed to her by the separate estate of the deceased. The succession is under administration of the executrix, Effie Hoffpauir. The duties of the executrix have not been completed as no judgment of possession has been rendered. The proper remedy for the payment of debts owed by a succession under administration is set forth in LSA-C.C.P. articles 3241, et seq.

Under these articles such debts of the succession owed to the executrix (surviving spouse) are properly presented by the executrix in her proposed tableau of distribution. Any opposition to payment of debts so proposed may be filed by the heirs prior to the homologation of such tableau. The opposition by the heirs to the payment of the proposed debts creates an adversary proceeding between the heirs and the succession representative for a determination of whether such succession representatives shall be authorized by the court to pay such debts. For the purpose of such litigation, the succession representative (executrix in this case) becomes the proper defendant.

In this case, Effie Hoffpauir, individually, has no personal cause of action against the heirs for payment of succession debts. Thus, the reconventional demand will also be dismissed without prejudice.

For the reasons assigned, the judgment of the trial court dismissing the plaintiffs’ principal demand shall be amended by dismissing same without prejudice. As amended the judgment dismissing same is affirmed.

It is further ordered that the reconven-tional demand filed by Effie Hoffpauir is also dismissed without prejudice. The costs of the trial court and this appeal shall be paid one-half by the parties-plaintiff in the principal demand and one-half by the party-plaintiff in the reconventional demand.

AMENDED AND AFFIRMED IN PART; AND RENDERED.

      . The children of the second marriage are not parties to this suit.

      . We take notice of such exceptions under the authority of LSA-C.C.P. art. 927.

      . LSA-C.C.P. art. 734 states:
      “The succession representative appointed by the court of this state is the proper defendant in an action to enforce an obligation of the deceased or of his succession, while the latter is under administration. The heirs or legatees of the deceased, whether present or represented in the state or not, need not be joined as parties, whether the action is personal, real, or mixed.”


text:
    Helen B. CHARPENTIER, et al., Plaintiffs-Appellants, v. ST. MARTIN PARISH SCHOOL BOARD, et al., Defendant-Appellee.
    No. 8674.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1982.

      Hornsby & Landry, Lucius A. Hornsby, Jr., Lafayette, for plaintiffs-appellants.
    Gachassin & Capretz, Nicholas Gachassin and Carey, Tom Jones, Lafayette, for defendant-appellee.
    Before FORET, CUTRER and DOUCET, JJ.
   FORET, Judge.

Helen Charpentier and her daughter, Gwen Charpentier Hardy, (plaintiffs) brought this tort action to recover damages for personal injuries suffered by Gwen in two separate falls, one of which occurred at Cecilia High School, and the other on a school bus. Plaintiffs also sought to recover all medical expenses incurred by them for treatment of those injuries. The St. Martin Parish School Board (School Board), the owner and operator of the school, and Valley Alleman (Alleman), the driver of the school bus, were named defendants.

The School Board attempted to file a third party demand against Alleman and his liability insurer, Commercial Union Insurance Company (Commercial Union), but the trial court refused to grant leave for it to do so. Plaintiffs entered into a settlement and compromise with the School Board, Alleman, and Commercial Union with respect to their cause of action arising out of Gwen’s fall on the school bus. The trial court, on motion of plaintiffs, and pursuant to that settlement and compromise, rendered judgment dismissing, with prejudice, plaintiffs’ claims arising out of the school bus incident. Thus, the School Board was the only remaining defendant to this action at the time of trial.

Trial of plaintiffs’ action resulted in a judgment in favor of defendant and against plaintiffs, dismissing their action.

Plaintiffs appeal devolutively from the trial court’s judgment and raise the following issues:

(1) Whether the trial court committed manifest error in finding that plaintiffs had failed to prove that Gwen’s fall at Cecilia High School was caused by a defect in the school’s classroom building;
(2) Whether the trial court committed manifest error in finding that plaintiffs had failed to prove that the School Board breached any duty owed Gwen.

Defendant answered this appeal and raises the issue of whether the trial court committed manifest error in denying its motion to traverse Gwen Charpentier Hardy’s right to appeal in forma pauperis. Because of our decision herein, this issue is now moot.

PACTS

This action arises out of an accident which occurred on December 20,1977, when plaintiff, Gwen Charpentier Hardy, fell down a flight of stairs at Cecilia High School, located in St. Martin Parish. Gwen had reported to her homeroom, which was located on the third floor of the classroom building, at the commencement of classes that day. She was informed at that time that she was wanted in the principal’s office, which is located on the first floor, and she immediately proceeded down one of the two stairwells in that building to the first floor.

The stairwells were designed in such a manner that the flight of stairs between each floor consisted of a stairway leading to a landing, and then another stairway heading in the opposite direction to the next floor. Gwen had reached the landing between the third and second floors, and tripped when she started down the stairway leading to the second floor. She suffered fairly severe injuries to her left knee, which eventually required surgery to correct.

Plaintiff, Helen Charpentier, instituted this action on December 1, 1978, individually, and as natural tutrix of her then minor daughter, Gwen Charpentier, alleging that Gwen’s fall resulted from the School Board’s: failure to properly clean steps and walkways during the day when the school building is occupied by students; failure to properly maintain steps located in the school building to insure their safety for children walking down and up said steps; failure to do what they should have done to insure the safety of the steps in a public school building; failure to see what they should have seen, or failing to do what they should have done, or having seen what they should have seen concerning the unsafe conditions of the steps in the school building; and, other acts of negligence to be listed pending discovery. Mrs. Charpentier sought to recover $180,000 in general damages for the injuries suffered by Gwen in both falls (settlement and compromise regarding the fall on the bus having been entered into subsequent to the filing of the petition), and $30,000 for past, present, and future medical expenses incurred for the treatment of those injuries.

Mrs. Charpentier filed a motion to amend her original petition on April 30,1980, alleging that Gwen had married subsequent to the filing of the original petition, and that Gwen was now emancipated and entitled to pursue her own claim as a party plaintiff. Mrs. Charpentier further alleged that she should be allowed to remain in the action as a party plaintiff to pursue her own claim for the medical expenses she incurred, prior to Gwen’s marriage, for the treatment of her injuries. The trial court granted the motion.

The School Board’s answer to the original petition consists of a general denial. Its answer to the amended petition also consists of a general denial, but the affirmative defense of contributory negligence is alternatively plead therein. The School Board attempted to file a third party demand against Alleman and Commercial Union shortly before the trial of this action, but long after it had answered plaintiffs’ petitions. The trial court refused to grant leave to allow the School Board to file its third party demand finding that it would retard the progress of plaintiffs’ main demand.

STRICT LIABILITY AND CAUSATION

Plaintiffs contend that the trial court committed manifest error in finding that they had failed to prove that any defect in the school building caused Gwen’s fall down the stairs. Plaintiffs rely on LSA-C.C. Article 2322 to support their cause of action in strict liability against the School Board.

LSA-C.C. Article 2322 provides:

“Art. 2322. Damage caused by ruin of building
Art. 2322. The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice in its original construction.”

Under the provisions of LSA-C.C. Article 2322, several requirements for the imposition of liability under the article must be met:

(1) There must be a building;
(2) The defendant must be its owner, and
(3) There must be a “ruin” caused by a vice in construction or a neglect to repair, which occasions the damage sought to be recovered.

Olsen v. Shell Oil Company, 365 So.2d 1285 (La.1979).

The trial court found that while there were defects in some of the steps of the stairways in the school building, plaintiffs failed to prove that Gwen’s fall was caused by any of these defects. Our review of the record (see appendix) establishes that this finding of the trial court is not clearly wrong.

NEGLIGENCE

Plaintiffs also contend that the cause of Gwen’s fall was the failure of defendant to properly clean and maintain the stairways at Cecilia High School, and that this constitutes negligent conduct on defendant’s part for which it should be held liable in damages to them. Plaintiffs’ claim is based on the provisions of LSA-C.C. Articles 2315 and 2316.

The first inquiry in making a determination of liability under these articles is whether any causal relationship exists between the harm suffered by Gwen and the defendant’s alleged negligent conduct. Thus, if plaintiffs can show that Gwen probably would not have suffered injuries complained of but for the defendant’s conduct, they have carried their burden of proof relative to cause-in-fact. Shelton v. Aetna Casualty & Surety Company, 334 So.2d 406 (La.1976); Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972); Vidrine v. Missouri Farm Association, 339 So.2d 877 (La.App. 3 Cir. 1976), writ denied, 342 So.2d 216 (La.1977); Stewart v. Gibson Products of Natchitoches Parish Louisiana, Inc., 300 So.2d 870 (La.App. 3 Cir. 1974).

In resolving the question of whether an act or acts of a defendant were a cause-in-fact of the harm suffered by a plaintiff, we make no inquiry as to whether the act or acts were unlawful or negligent. We determine only whether they were a substantial factor without which the accident would not have occurred, i.e., whether they had some direct relationship to the accident. Laird v. Travelers Insurance Company, 267 So.2d 714 (La.1972); Pierrotti v. Associated Indemnity Corp., 399 So.2d 679 (La.App. 1 Cir. 1981).

The trial court made no finding regarding cause-in-fact in making its decision. Instead, it assumed that there was gum on the stairs and that this caused Gwen to fall. It then went on to determine the duty owed by defendant towards students such as Gwen and found no breach of this duty. Plaintiffs contend that the trial court committed manifest error in finding no breach of duty by defendant because it used the wrong standard of care (or duty) to judge defendant’s action by.

We agree with the trial court’s conclusion that defendant was guilty of no negligence for which it should be held liable to plaintiffs for the injuries suffered by Gwen. However, we prefer to base our decision on a finding that plaintiffs failed to prove that any conduct of defendant was a cause-in-fact of Gwen’s injuries.

Plaintiffs allege that Gwen’s fall resulted from defendant’s failure to clean and/or maintain the stairways at Cecilia High School. The evidence shows that the stairways were cleaned every afternoon after school was dismissed. Once classes were dismissed in the afternoon, no students were allowed back in the building until the next morning, unless they had a justifiable reason for re-entering the building.

Calais (the school principal) testified that students were forbidden to chew gum in the classrooms. There were three full-time and one part-time custodians that cleaned the school. Calais had instructed both the custodians and teachers to immediately report to him any problems they observed regarding the cleaning or maintenance of the building. There was testimony from several witnesses indicating that Calais paid particular attention to conditions affecting the cleanliness or maintenance of the school building. See Appendix.

Gwen’s accident occurred approximately five minutes after classes had commenced in the morning. There were no students in the building prior to that time, and the school had been cleaned the afternoon before. In all probability, the gum that stuck to Gwen’s shoe had been dropped on the stairway by a student on his way to class. In any event, plaintiffs failed to prove that defendant’s allegedly negligent conduct even occurred. In fact, the evidence shows that it didn’t. Again, see appendix. Having failed to prove this, plaintiffs are unable to prove that any conduct and/or omission of defendant was a cause-in-fact of Gwen’s injuries. Thus, there is no need to proceed on to a determination of defendant’s duty and whether that duty was breached.

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

All costs of this appeal are assessed against plaintiffs-appellants.

AFFIRMED.

APPENDIX

Gwen testified that as she stepped onto either the first or second step below the landing, a piece of gum stuck to her left shoe and something loose on the step. She tried raising her left shoe once, but the gum remained attached to something. She then raised her left shoe a second time and lost her balance, falling forward down the stairs. Gwen was unable to identify exactly what it was that she alleged the gum remained attached to and which was loose on the step. She “guessed” that it was a loose board.

Malcolm Calais, principal of the school at the time of the accident, testified that he checked the stairs where Gwen fell within a half-hour or so after the accident and could find no gum on the stairs. He stated that the steps were covered with rubber matting that could and did become loose at times, and which had to be nailed down. However, he was unable to recall whether the matting located on the steps where Gwen fell was loose that day. He did remember that he found nothing that caused him to be concerned enough to call the maintenance crew to repair.

Mrs. Charpentier testified that she returned to the school the afternoon after the accident and that Calais took her to the place where Gwen fell. She stated that he ran his hand under the rubber matting on the first step below the landing and showed her that the rubber matting on the second step was also loose. Calais testified that he was unable to remember if he had done this.

Allen Stelly, a part-time assistant principal at the school at the time of the accident, testified that he examined the stairs where Gwen fell an hour and a-half to two hours after the accident. He stated that he saw nothing there which might have caused a person to trip and fall. However, he did acknowledge that he did not check the rubber matting covering the steps to see if any were loose.

Gwen denied ever having problems with her left knee, or that she had problems playing basketball because of it, prior to the accident. She did admit that in 1976, she had injured her left “leg” in an accident at the school, and that such injury was in the vicinity of her left knee. Velma Landry, the girls’ basketball and softball coach at the school at the time of the accident, testified that plaintiff had tried out for the basketball team, prior to the accident, but was unable to make the team because of a problem with her knees.

Fletcher Sutton, M.D., was accepted by the court as an expert in the field of orthopedic surgery. Dr. Sutton testified that he first saw Gwen on February 13, 1978, approximately one and one-half months after the accident. He stated that on that occasion, “She gave a history of the knee seeming to give way, to have intermittent pain in the knee, especially when going up or down stairs”. Dr. Sutton also found that Gwen had a condition which he described as “congenitally knock-kneed”. He explained that this condition causes a person such as Gwen to be susceptible to having the knee cap or patella slip out of place when the knee is injured. Dr. Sutton was unable to state, with any degree of probability, whether Gwen’s injury to her left knee in 1976 or the injury to that knee sustained in the fall on the stairs caused a partial dislocation of her knee cap, which he eventually repaired through surgery. However, he did believe that the dislocation of her knee cap was the result of some trauma sustained by the knee and that, based on the history Gwen had given him, it was more than likely that the knee was dislocated when she fell on the stairs.

      . Helen Charpentier also named the XYZ Insurance Company, a fictitious entity representing the unknown liability insurer of the St. Martin Parish School Board, and the ABC Insurance Company, a fictitious entity representing the unknown liability insurer of the school bus operated by Valley Alleman, as defendants.

      . The School Board alleged in its third party demand that the injuries suffered by Gwen were caused solely by her fall on the school bus which resulted from Alleman’s own negligence. The School Board sought indemnity from Alle-man and Commercial Union for any amounts for which it might be held liable to plaintiffs.


text:
    Bobby Joe DUNN, Plaintiff-Appellee, v. REDMAN HOMES, INC., et al., Defendant-Appellant.
    No. 8678.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1982.

      Provosty, Sadler & deLaunay, David P. Spence, Alexandria, for defendant-appellant.
    Kennedy & Yeager, Ralph W. Kennedy, Alexandria, for plaintiff-appellee.
    Before FORET, CUTRER and DOUCET, JJ.
   DOUCET, Judge.

This suit in redhibition was brought by the buyer of a mobile home, Billy Joe Dunn, appellee herein, against the manufacturer, Redman Homes, Inc., and the seller, Cannon Mobile Homes, seeking recision of the sale, return of the purchase price, incidental damages, and attorney’s fees. The manufacturer responded to the suit alleging that the mobile home was not defective, that any defects therein were due to fault of those other than the manufacturer, and that in the event a defect was proven plaintiff was only entitled to reduction in the purchase price and the manufacturer was entitled to a credit against any judgment for the value of the use of the mobile home by plaintiff. The seller did not answer the suit and a default judgment was rendered against it.

Following trial on the merits, the trial court rendered judgment in favor of the plaintiff, rescinding the sale, and awarding damages and attorney’s fees. From said judgment, defendant, Redman Homes, Inc., has appealed assigning as error the trial court’s factual determination that the mobile home was defective as manufactured, and the relief awarded. More specifically, the latter attack is premised on the fact that recision of the sale was ordered rather than awarding quanti minoris relief, that the award of damages was excessive, that an offset for plaintiff’s use of the mobile home should have been granted, and lastly, that the trial court erred in awarding attorney’s fees.

Preliminarily, we take note of the applicable codal articles pertaining to such suits in redhibition:

Art. 2520. Redhibition, definition
Art. 2520. Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.
* * * * sb *
Art. 2530. Proof of existence of vice before sale
Art. 2530. The buyer who institutes the redhibitory action, must prove that the vice existed before the sale was made to him. If the vice has made its appearance within three days immediately following the sale, it is presumed to have existed before the sale.
Sjí ¡Jí % sfc * *
Art. 2545. Liability of seller for concealment of vice
Art. 2545. The seller, who knows the vice of the thing he sells and omits to declare it, besides the restitution of the price and repayment of the expenses, is answerable to the buyer in damages.

Our review of the record indicates the trial judge accurately portrayed the facts in his opinion, and accordingly we incorporate his summation herein:

“Plaintiff purchased the mobile home, manufactured by Redman Homes, Inc., on or about June 19, 1979, from the defendant Cannon Mobile Homes for a negotiated cash price of $16,608.80 which includes $638.80 in taxes. Other expenses of the sale included property insurance of $818.00, title fee of $7.00 and recordation fees of $2.00. Plaintiff placed a down payment of $7,000 on the mobile home and financed the balance, through Commercial National Bank of Shreveport, for a total deferred payment price of $27,-163.60. This sum includes interest on the loan totaling $9,727.80.
Testimony at trial established that the plaintiff observed the home, at Cannon Mobile Homes, two or three times prior to purchasing it. During these visits the plaintiff did not notice any defects in the mobile home. After purchase plaintiff had the site for the home prepared by a road crew from the Grant Parish Police Jury. The Police Jury road crew leveled off the site and prepared the foundation.
After site preparation was completed the home was moved on site by Tom Crocker. Mr. Crocker handled all of the home movings and set ups for Cannon Mobile Homes. At trial of the matter Mr. Crocker testified that he had moved and set up thousands of mobile homes since starting his moving business. I found Mr. Crocker to be very competent in this aspect of the business. There were no problems in moving the home to the site and the home foundation was compacted and as hard as concrete as testified to by Mr. Crocker. After the home was moved to the site, the operation to place it on concrete blocks and level it was begun. It was at this time that the problems for the plaintiff began.
To determine if the home is level, Mr. Crocker uses a four foot level placed on the floor of the home to get a correct reading and to determine which side, if any, needed to be raised or lowered to facilitate the leveling. Mr. Crocker was hampered in his efforts to level the home due to the unlevel floors throughout the home. He testified that the floor of the home was like a rocking chair and there was no place he could get an accurate reading from the level. Defendants’ Exhibit 4 shows the bow in the floor of 3/s". Mr. Crocker testifies that it got worse toward the back of the home.
After attempting to level the mobile home, and failing, Mr. Crocker notified the plaintiff of the problem and advised him to get in touch with Mr. Cannon of Cannon Mobile Homes, which the plaintiff did. Mr. Cannon and Mr. Crocker then returned in an attempt to level the home. The two men attempted to level the home by the usual methods, but were unsuccessful.
Although the home was not level, the plaintiff and his family moved in. After moving in the plaintiff noticed other defects in the home. Because the home was not level the water would not drain out of the bathtub and lavatories properly. The door would not remain open unless they were propped open. In addition to these inconveniences there were also a number of cosmetic defects including a hole in the sidewall of the home. The cosmetic defects were soon remedied, but the home was never leveled.
After Mr. Cannon and Mr. Crocker failed in their attempt to level the home, plaintiff placed a phone call to Redman Homes to find out if they could remedy the problem. The defendants sent out their serviceman, Stan Hanna, in an attempt to correct the problem. Hanna made at least three (3) trips to the plaintiff’s home. The first trip, as evidenced by Redman Homes, Inc., Service Authorization and Inspection Release (P-4), was to repair the cosmetic defects complained of by plaintiff and mentioned earlier in this opinion.
The second and third visits evidenced by plaintiff’s Exhibit 5(P-5), shows that Hanna went to the home to check on a sagging frame, fixed bowed rafters and found that the floor was crowned both ways. Hanna also tried to level the home, but he failed even after replacing some of the blocks of the foundation. Hanna notified Redman Homes in Texas that he was unable to level the home. Redman Homes then sent out troubleshooters in an attempt to correct the problems with plaintiff’s home. On one of these occasions a welder welded some additional angle iron to the structure of the home in an attempt to correct the problem, but to no avail.
Tom Crocker testified that he thought the problem was caused by a dropped sidewall of the home or could be caused by bowed cross members in the floor itself. The extra angle iron welded to the home was an attempt to correct the problem of the dropped sidewall. The bowed cross members would have to be removed from under the floor and replaced, if in fact this is the problem with the home.
The plaintiff, still having problems with the home, had Daniel Gleason inspect the home. Daniel Gleason is a self-employed mobile home serviceman. He has been in this business since 1969. He inspected the home and also found that he could not find a level place on the floor. He also found that the frame on the left side of the home was approximately 6 inches lower than the frame on the right side. Mr. Gleason also attempted to level the trailer, but was unsuccessful.
After the numerous attempts to correct the defects in the mobile home, the plaintiff tendered the home back to the defendants and asked to rescind the sale. The defendants refused and this suit ensued. ...”

The trial judge, after reviewing the testimony and evidence adduced at trial, was convinced that the defects complained of by plaintiff existed at the time of the sale, that they were not apparent, and were so serious as to warrant recision of the sale. This court will not disturb reasonable evaluations of credibility and inferences of fact absent manifest error. Aleman v. Lionel F. Favret Co., Inc., 349 So.2d 262 (La.1977); Canter v. Koehring, 283 So.2d 716 (La.1973); Boustany v. Fluid Dynamics, Inc., 392 So.2d 750 (La.App. 3rd Cir. 1980). In the present case we find no manifest error. Indeed the evidence fully supports the trial court’s findings that a serious defect, sufficient to warrant recision of the sale, existed at the time of the sale. The evidence indicates that the defect was discovered by Mr. Crocker, delivery agent for the seller, upon delivery and set-up of the mobile home. Upon discovery of the defects Mr. Crocker notified the plaintiff, who thereafter made repeated attempts to have the defects remedied, but to no avail. As one is not likely to note an unlevel mobile home until it is properly placed on a foundation, we find no error in the trial judge’s application of the three day presumption, contained in LSA-C.C. Art. 2530, to the facts of this case. Appellant’s claim that plaintiff should not be able to avail himself of this presumption because he did not move into the mobile home until a week after delivery is without merit. In any event, the plaintiff discharged his burden of proving the existence of a defect at the time of the sale by direct and circumstantial evidence. He was not required to negate all other possible causes of the defect as long as the circumstantial evidence excludes all other reasonable hypotheses with a fair amount of certainty. Rey v. Cuccia, 298 So.2d 840 (La.1974); Custom Metal & Air Conditioning Co. v. Boudreaux, 346 So.2d 1379 (La.App. 3rd Cir. 1977). Conversely, there was no evidence to support Redman’s contention that the damage occurred in transportation of the home to plaintiff’s lot, or that there was any other event which could have reasonably caused the defects complained of.

Before this court will disturb an award by the trial court, the record must clearly reveal that the trier of fact abused its much discretion in making the award. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977); Reck v. Stevens, 373 So.2d 498 (La.1979). The trial judge did not abuse his discretion in ordering recision, rather than reduction in the price, in light of his factual determination that the mobile home was altogether unsuited for its intended purpose, and the fact that attempts to rectify the problems had been futile. Similarly, we do not feel the trial judge abused his discretion in awarding damages. The trial court itemized its award to plaintiff as follows: (A) $7,000.00 — down payment; (B) $638.80 for taxes; (C) $7.00 — Title fee; (D) $2.00 — recordation fee; (E) $27,163.60 (total deferred payment price) — • less the balance due and owing to the Commercial Bank of Shreveport. In order that the mobile home be returned to defendant free of all liens and encumbrances, the trial judge directed defendant to apply part of the sum awarded to plaintiff in satisfaction of the loan held by the Commercial Bank of Shreveport. Thus by phrasing the award in such a fashion the trial court did not duplicate the first four elements of the award. Appellant claims it is entitled to a credit for unearned interest which will occur upon prepayment of the loan, however, there is no evidence of any provision for such credit; thus this claim is denied.

Furthermore, appellant claims the trial court erred in denying defendant an offset for plaintiff’s use and depreciation of the mobile home. Admittedly some credit is usually awarded, Weaver v. Fleetwood Homes of Mississippi, Inc., 327 So.2d 172 (La.App. 3rd Cir. 1976), however, in the present case the trial judge noted that the home had been a constant inconvenience and worry to plaintiff, and he never had the opportunity to fully utilize the home. Any benefit of possession obtained by plaintiff was occasioned by the seller’s rejection of plaintiff’s tender of the mobile home. Additionally, the trial judge observed that any depreciation that occurred took place before the sale. We feel that the trial court’s award substantially restored the parties to the same situation as existed prior to the sale, and ascertain no abuse of discretion.

Finally, the trial court awarded $9,000.00 in attorney’s fees, an amount appellant claims is excessive. We agree. Factors to be considered in determining the award of attorney’s fees include the degree of professional skill and ability exercised, the amount of the claim, the amount recovered for the plaintiff, and the time devoted to the case. Artigue v. Louisiana Farm Bureau Mut. Ins. Co., 339 So.2d 880 (La. App. 3rd Cir. 1976), writ ref. 341 So.2d 1132 (La.1977). Although the skill and ability of plaintiff’s counsel is not questioned, the issues presented were not novel. The record indicates suit was filed on January 29,1980, and the case was heard on April 21, 1981. There were no preliminary motions or exceptions. Presentation of the case was completed in one day. In light of the above, we believe an award of $4,000 would be sufficient and reasonable to compensate plaintiff’s attorney for services rendered at both the trial and appellate levels.

For reasons assigned the judgment appealed is amended to reduce the award of attorney’s fees to $4,000.00. In all other respects, the judgment is affirmed. All costs taxed to appellant.

AFFIRMED AS AMENDED.

      . At the time of trial Cannon Mobile Homes was no longer in business.


author: LABORDE, Judge.

text:
    Mrs. Emma Viator REAUX, et al., Plaintiffs-Appellants, v. IBERIA PARISH POLICE JURY, Defendant-Appellee.
    No. 8681.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1982.

      Eugene D. Broussard, Sr., New Iberia, and Voorhies & Labbe, Marc Judice, Lafayette, for plaintiff-appellant.
    Ralph K. Lee, Jr., Asst. Dist. Atty., New Iberia, for defendant-appellee.
    Before DOMENGEAUX, SWIFT and LABORDE, JJ.
   LABORDE, Judge.

This case is on appeal from the trial court’s sustaining of defendant’s exception of res judicata. Plaintiffs, Mrs. Emma Via-tor Reaux, Harold Andrew Reaux, and Joseph C. Romero, seek to avail themselves of a “repurchase clause” inserted in the deeds of cash sale executed by their respective ancestors in favor of the defendant, Iberia Parish Police Jury (Parish). Defendant filed an exception of res judicata based on a prior expropriation proceeding filed by the federal government against plaintiffs’ ancestors to cure any title questions arising from the reversionary clauses. From a judgment sustaining the exception of res judicata, plaintiffs have appealed.

On appeal, we must determine if the judgment in the federal expropriation suit is res judicata as to the present suit. For the reasons which follow, we hold that it is not and hence, we reverse.

Essentially, the present suit is an action by the heirs of Wilfred Reaux and Joseph Romero to enforce a reversionary clause contained in the conveyances from those owners to the Parish of Iberia in 1942. The reversionary clause provides:

“It is understood and agreed that in the event the property hereinabove conveyed is no longer used as an airport, or for any public purpose whatsoever, and the Iberia Parish Police Jury desires to dispose of the said property, the present vendors shall have the privilege and option of purchasing the said property within ninety (90) days after the Police Jury gives public notice of intention to sell the same for the same basic price per acre paid by present purchaser.”

A chronological history of the litigation and facts pertaining to the property involved in this lawsuit follows.

Prior to March 28, 1942, the Parish of Iberia, Louisiana, was desirous of establishing an airport in their parish. In furtherance of this program, 926.787 acres of contiguous land were voluntarily purchased by the Parish from the individual landowners. Two of these landowners were plaintiffs’ ancestors, namely Joseph Romero who sold two acres to the Parish on March 31, 1942, and Wilfred Reaux who sold fifty acres to the Parish on May 6, 1942. In all, there were twenty-three separate acts of cash sale executed between the landowners and the Parish and all contained the reversion-ary clause, supra, which granted the former owners an option to repurchase their property at 1942 prices if the property was no longer used for public purposes and the Parish desired to dispose of the property.

In addition to the “repurchase clause” contained in each deed, the Parish also, on April 9, 1942, passed the following resolution:

“BE IT RESOLVED by the Police Jury of Iberia Parish, Louisiana, that in the event the property acquired for the proposed airport by the Police Jury of Iberia Parish is no longer used as an airport or for any public purpose whatsoever, and the Iberia Parish Police Jury desires to dispose of said property, the vendors of said land shall have the privilege and option of purchasing their respective property within ninety (90) days after the Police Jury gives public notice of intention to sell the said property for the same basic price per acre paid by the said Iberia Parish Police Jury, and that any resolutions or ordinances contrary to or in conflict herewith are hereby repealed.”

After the property was acquired, the airport was established and put into use. On December 13, 1955, the Parish donated the entire 926.787 acres of land to the United States for use as a naval auxiliary air station. On December 6, 1956, the United States filed expropriation proceedings in the United States District Court against the former owners of the property, (including plaintiffs ancestors) to cure any title questions arising from the reversionary clauses. On May 1, 1964, the United States District Court rendered judgment against defendants, including Wilfred Reaux, deceased husband of plaintiff Emma Viator Reaux and father of plaintiff Harold Reaux, decreeing that the defendants had no right, title or interest of any kind whatsoever in or to the property condemned in the proceedings. This case is reported as United States v. 926.787 Acres of Land, Etc., 227 F.Supp. 361 (D.C.1964). This ease was affirmed on appeal in Nelson v. United States, 345 F.2d 888 (5 Cir., 1965).

On June 9, 1964, the United States District Court rendered judgment dismissing Joseph Romero, father of plaintiff Joseph C. Romero from the expropriation suit for failure to answer in that any claim Joseph Romero might have asserted would have been on the same ground as that of the other defendants.

On May 6, 1968, the United States conveyed the 926.787 acre tract back to the Parish. The conveyance contained the condition “That no property transferred by this instrument shall be used, leased, sold, salvaged or disposed of by the grantee for other than airport purposes without the written consent of the Federal Aviation Administration ...” Since 1968, the property has been maintained and operated by the Parish as Acadiana Regional Airport.

In 1976, the Acadiana Regional Airport Authority developed a master plan for the airport’s future growth and development. As part of this plan, the land formerly owned by plaintiffs’ ancestors was designated as an industrial area and subdivided into lots for industrial development. The Parish asked the Federal Aviation Administration to release 43.03 acres of the industrial area to sell to private industries. The Federal Aviation Administration released the property April 17, 1979. The property which is the basis of the present suit is a part of the 43.03 acres.

On May 9, 1979, the Parish adopted a resolution to sell lots from the 43.03 acres of land to private industry for $12,500 per acre. On May 31, 1979, published minutes of the Airport Authority reflect the Authority’s similar intention to sell the acreage to private industry at the same price.

On July 31 and August 27,1979, plaintiffs recorded documents indicating their interest to repurchase the property in accordance with the 1942 reversionary clauses.

On September 12, 1979, the Parish adopted a resolution authorizing the president of the police jury to sign respective deeds of sale from the police jury to the plaintiffs at the 1942 price. The president of the police jury did not sign the sale documents.

On December 18,1979, plaintiffs filed the present suit. Thereafter, on January 9, 1980, the Parish withdrew its previous offers to sell and on May 12,1981, it rescinded its September 12, 1979, resolution wherein it had agreed to sell property to plaintiffs at the 1942 price.

On appeal, plaintiffs contend that they should not be precluded from litigating their demands in the present suit by principles of res judicata and that the lower court’s holding to that effect should be reversed.

In order to maintain an exception of res judicata in a subsequent action, three things must occur. The subsequent action must (1) contain the same parties, (2) be based on the same “cause” and (3) the thing demanded must be the same. LSA-C.C. art. 2286; Welch v. Crown Zellerbach Corp., 359 So.2d 154 (La.1978); Mitchell v. Bertol- la, 340 So.2d 287 (La.1976). We also note that a final judgment in federal court may form the basis of a plea of res judicata in state court. McCoy v. Tangipahoa Parish School Board, 308 So.2d 382 (La.App. 1st Cir. 1975), writ refused, 310 So.2d 856 (La.1975).

Louisiana jurisprudence is very clear that res judicata is stricti juris. Scurlock Oil Company v. Getty Oil Company, 294 So.2d 810 (La.1974) and cases cited therein. A final judgment has the authority of res judicata only as to those issues presented in the pleadings and conclusively adjudicated by the court, and where any doubt exists the second suit will be maintained. McNeal v. State Farm Mutual Automobile Ins. Co., 278 So.2d 108 (La.1973).

With these principles in mind, we return to the facts. We begin with whether the parties are the same. It is not necessary that the parties in the separate lawsuits be the identical persons in each lawsuit. The plaintiffs in the present lawsuit are the widow and/or children of the landowners who sold their property in 1942 to the Parish of Iberia and who were defendants in the expropriation suit filed by the United States of America in the 1950’s. The Iberia Parish Police Jury is the successor in title to the same property from the United States of America as a result of the deed of title from the United States of America to the Iberia Parish Police Jury in 1968. Both the Parish and the plaintiffs are the successors of the former landowners, asserting rights derived from the former landowners and as such they are the “same parties” in legal contemplation within the intendment of Article 2286. Scurlock Oil Company v. Getty Oil Company, 294 So.2d 810, 815 (1974).

We next determine whether the causes presented in this action are identical to those presented in the federal expropriation proceeding. In Sliman v. McBee, 311 So.2d 248 (La.1975), the Supreme Court determined the civilian definition of “cause” in the area of res judicata to be “the legal obligation upon which the action is founded.” See Mitchell v. Bertolla, 340 So.2d 287 (La.1976) for a full discussion of “cause.”

In the federal expropriation proceedings, the district judge, in discussing the re-purchase clause upon which plaintiffs’ ancestors’ claim was based, stated:

“The Court is of the opinion that this provision is clear and unambiguous, and that nothing has transpired which could in any way be construed to give these defendants any claim or interest in or to the property in question. The provision contained in the sale provides that “In the event the property hereinabove conveyed is no longer used as an airport, or for any public purpose whatsoever, and the Iberia Parish Police Jury desires to dispose of the said property,” the present vendors would have the right or option to re-purchase it within a given time. Thus, it is clear that in order for these vendors to acquire a right to re-purchase, it is necessary that two things occur. First, it is necessary that the property be no longer used “for any public purpose whatsoever”, and “the Iberia Parish Police Jury desires to dispose of said property.” It will be noted that the two required conditions are stated conjunctively, and not disjunctively. Thus, had the property ceased to be used for a public purpose, but had the Iberia Parish Police Jury desired to retain the property rather than dispose of it, the right to re-purchase reserved to the vendors would never have come into being. Likewise, should the Police Jury desire to dispose of the property in such a manner as to assure its continued use for public purposes, the right reserved by the vendors to re-purchase would not become operative. Such was the case in the present situation. The Iberia Parish Police Jury did decide to dispose of the property, but its disposition of the property was for the purpose of allowing it to continue to be used for a public purpose, i.e., for use as a United States Naval Auxiliary Air Station.”

The Court then went on to conclude:

“Thus, under the present circumstances, no right of re-purchase has accrued to these defendants, and thus, at the time of the acquisition of the property by the United States of America from the Police Jury, and at the time of the filing of the present condemnation suit, defendants were the owners of no right, title or interest of any kind whatsoever in or to this property.”

In the present suit, the legal obligation upon which the action is founded has changed. Unlike in the federal proceedings where the right to repurchase had not yet matured, our review of the record convinces us that both conditions were met at the time the present suit was filed. Although both suits were based on the identical repurchase clauses, this court has serious doubts as to whether a previous litigation can be conclusive as to rights not yet possessed by the litigants at that time. Therefore, where any doubt exists, the controlling jurisprudence is clear that plaintiffs are favored, hence the exception of res judi-cata which the district court sustained, is now overruled. This of course will necessitate a remand to the trial court for further proceedings.

For the above and foregoing reasons, the judgment of the trial court is reversed and remanded for further proceedings; The Iberia Parish Police Jury is cast for all costs of this proceeding in the amount of $1,185.-40, as provided by law.

REVERSED AND REMANDED.

      . The Reaux heirs were to purchase 10.526 acres at $189.48 per acre for a total of $1,944.57. The Romero heirs were to purchase 2 acres at $1,840.00 per acre for a total of $3,680.00.