text:
    MELDEAN’S, INC., Plaintiff-Appellant, v. Woodrow W. RIVERS, Defendant-Appellee.
    No. 8591.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1982.
    Rehearing Denied March 23, 1982.

      Roy A. Raspanti, New Orleans, for plaintiff-appellant.
    Führer & Flournoy, Leonard Führer, Alexandria, for defendant-appellee.
    Before DOMENGEAUX, DOUCET and LABORDE, JJ.
   DOMENGEAUX, Judge.

Meldean’s, Inc., plaintiff-appellant, filed this suit against Woodrow W. Rivers (Rivers), defendant-appellee, seeking to annul a monetary judgment obtained against it by Rivers.

The judgment sought to be annuled was rendered in the proceeding entitled “Rivers v. Schlumberger’s Well Surveying Corporation, et al,” No. 30522 of the Thirtieth Judicial District Court, Parish of Vernon, State of Louisiana. That suit was under the Jones Act (46 U.S.C.A. § 688) for damages resulting from the personal injuries sustained by Rivers and culminated in a judgment in favor of Rivers and against Meldean’s, Inc. in the sum of $229,000.00 plus interest and costs. The judgment was rendered on November 5, 1979, and affirmed on appeal on October 8, 1980.

This suit to annul the judgment obtained against it was filed by Meldean’s, Inc. on March 10, 1981. From a judgment of the trial court sustaining Rivers’ peremptory exception of no cause of action, Meldean’s, Inc. has appealed.

In its petition to annul, Meldean’s makes the following allegations:

1. On October 8, 1980, the Third Circuit Court of Appeal affirmed the judgment of the trial court.

2. Immediately thereafter, Lynn B. Dean, President of Meldean’s, Inc., asked the attorney for Meldean’s, Inc. to apply for a rehearing.

3. The attorney for Meldean's, Inc. failed to apply for rehearing and on November 12, 1980, the record was returned to the trial court.

4. Meldean’s, Inc. did not learn that the time for applying for a rehearing had run until Lynn B. Dean made personal inquiry of the Clerk of Court for the Third Circuit Court of Appeal.

5. Meldean's, Inc. had an absolutely valid defense and through no fault of its own it did not receive a rehearing in the Court of Appeal because its attorney failed to make application for rehearing.

6. The judgment referred to herein was obtained through ill practices and should be annulled.

An exception of no cause of action is tried solely on the face of the petition and attached documents. In ruling on an exception of no cause of action, all well pleaded facts in the petition and attached documents must be accepted as true, and any doubt must be resolved in favor of the sufficiency of the pleadings to state a cause of action. Guillory v. Nicklos Oil & Gas Company, 315 So.2d 878 (La.App. 3rd Cir. 1975). After closely reviewing the plaintiff’s petition and according it the proper weight, we find that the defendant’s exception was properly sustained.

In its petition and attached affidavit plaintiff contends that the previous judgment against it, and affirmed on appeal, should be declared a nullity because its former attorney failed to timely apply for a rehearing when, as plaintiff alleges, it had an absolutely valid defense.

Facts establishing the “absolutely valid defense”, which plaintiff alleges was available to it, were not alleged in its petition for nullity or attached affidavit. As such, plaintiff merely alleges conclusions of law which, for the purposes of determining whether the petition states a cause of action, cannot be regarded as factual allegations supportive to its action for nullity. First Natchez Bank v. Malarcherdamare Co., Ltd., et al, 135 La. 295, 65 So. 270 (1914); HMC Management Corporation v. New Orleans Basketball Club, et a 1, 375 So.2d 700 (La.App. 4th Cir. 1979, writs denied, 378 So.2d 1384; 379 So.2d 11; Papania v. Aetna Casualty & Surety Company, et al, 291 So.2d 908 (La.App. 3rd Cir. 1974), writ denied, 294 So.2d 835.

Plaintiff’s other contention is that the prior judgment should be declared null due to ill practice on the part of its former attorney, and cites LSA C.C.P. Article 2004 to support this proposition. Article 2004 provides as follows:

“A final judgment obtained by fraud or ill practices may be annulled.
An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.”

LSA C.C.P. Article 2004 was derived from the 1870 Code of Practice Articles 607 and 613. Comment (b) of 2004 portrays the intention of its redactors and states that, although the illustrations set forth in the source articles (607 and 613 of the former Code of Practice) had been omitted, there was no intention to change the law. Fraud and ill practices as illustrated in the 1870 Code of Practice Articles, and obviously applicable to LSA C.C.P. Article 2004, are the type which involved instances of trickery, deceit, or intentional misrepresentations. Whereas we feel that LSA C.C.P. Article 2005 rather than 2004 is dispositive in the case at bar, as will be discussed below, we nonetheless feel that the failure of one’s attorney to timely file for a rehearing does not constitute a fraud or ill practice within the perimeters of Article 2004.

When an action has already been disposed of on appeal, as here, LSA C.C.P. Art. 2005 establishes the exclusive grounds available to a litigant in a subsequent suit for nullity. Article 2005 of the Code of Civil Procedure provides as follows:

“A judgment may be annulled prior to or pending an appeal therefrom, or after the delays for appealing have elapsed.
A judgment affirmed, reversed, amended, or otherwise rendered by an appellate court may be annulled only when the ground for nullity did not appear in the record of appeal or was not considered by the appellate court.
An action of nullity does not affect the right to appeal.” (Emphasis added).

The official comment to this Article provides in part:

“... where an appeal is a proper remedy for the correction of a judgment, an action of nullity does not lie upon a general allegation that the judgment is contrary to the law and the evidence, (citations omitted). In the case of State v. Sommerville, 112 La. 1091, 36 So. 864 (1904), the court pointed out that the action of nullity was not to be used as a means of affording another day in court for a litigant, who has neglected his opportunity, and that its purpose under Article 607 of the 1870 Code of Practice was to furnish relief against fraud in the obtention of the judgment, which makes no appearance on the record, and for which an appeal would afford no remedy.”

In the original proceedings Meldean’s, Inc. was afforded its “day in court”, and allowed an opportunity to fully litigate all of its claims and/or defenses in that action. After being cast in judgment, Meldean’s appealed, and in a lengthy and exhaustive opinion, this Court affirmed the judgment of the court below. Thereafter, Meldean’s attorney, for one reason or another, did not apply for a rehearing.

Our jurisprudence is well settled that an action for nullity cannot be substituted for a defense on the merits or for a timely appeal. Levy v. Stelly, 254 So.2d 665 (La.App. 4th Cir. 1971); Southern Wheel & Rim Service, Inc. v. Champion Machine Works, Inc., 283 So.2d 328 (La.App. 4th Cir. 1973); Alleman v. Guillot, 225 So.2d 607 (La.App. 1st Cir. 1969); C. I. T. Leasing Corporation v. Bar-Tender of Louisiana, Inc., 258 So.2d 228 (La.App. 4th Cir. 1972); LeGlue Buick, Inc. v. Smith, 390 So.2d 262 (La.App. 3rd Cir. 1980). Accordingly, logic mandates us to find that an action for nullity cannot be substituted for one’s failure to timely apply for rehearing after an appellate decision. To hold otherwise would be to authorize a suit for nullity whenever one failed to meet the statutory time delays to apply for rehearing as provided by law.

We have carefully reviewed plaintiff’s petition and attached affidavit of the nullity action before us, and we fail to ascertain any grounds, under our law, upon which a cause of action for nullity may rest. As aforementioned, plaintiff has not alleged any facts which indicate a ground for nullity existed outside the record of appeal in the previous suit, nor that this court failed to consider any other grounds for nullity in that suit which did appear in the record on appeal.

For the above and foregoing reasons the judgment of the trial court sustaining defendant’s exception of no cause of action is affirmed. All costs at trial and on appeal are to be taxed against plaintiff-appellant, Meldean’s, Inc.

AFFIRMED.

      . The other two defendants to this suit were Meldean’s, Inc., the plaintiff herein, and Elevating Boats, Inc.

      . The opinion of the Court of Appeal can be found at 389 So.2d 807 (La.App. 3rd Cir. 1980).

      . Articles 607 and 613 of the Code of Practice read as follows:
      Article 607:
      “A definitive judgment may be annulled in all cases where it appears that it has been obtained through fraud, or other ill practices on the part of the party in whose favor it was rendered; as if he had obtained the same by bribing the judge or the witnesses, or by producing forged documents, or by denying having received the payment of a sum, the receipt of which the defendant had lost or could not find at the time, but has found since the rendering of the judgment.”
      Article 613:
      “When a judgment has been obtained through fraud on the part of the plaintiff, or because the defendant had lost or mislaid the receipt given to him by the plaintiff, the action for annulling such judgment must be brought within the year after the fraud has been discovered, or the receipt found.”

      . No reasons were given for plaintiffs former attorney’s failure to timely apply for a rehearing. Therefore, this Court has no way of knowing whether such failure was due to any negligence on his part, or whether it was the result of a policy decision of some sort. This issue, however, is not now before us, and rather than speculate we refrain from expressing any opinion on the matter.


source: Caselaw Access Project

author: STOKER, Judge.

license: Public Domain

text:
    SUCCESSION OF Joseph F. FAVALORO.
    No. 8596.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1982.
    Rehearing Denied March 23, 1982.

      Fernand F. Willoz, III and Peter J. Com-pagno, New Orleans, for plaintiffs-appellants.
    Onebane & Associates, Joseph Onebane and Gordon T. Whitman, Lafayette, for defendants-appellees.
    Before GUIDRY, SWIFT and STOKER, JJ.
   STOKER, Judge.

The issue in this case concerns the ownership of certain U. S. Savings Bonds. The bonds were issued to Mr. Joseph F. Favalo-ro “or” Mrs. Lucille Gouaux Favaloro. The parties were husband and wife. Mr. Fava-loro died on April 18, 1973, and Mrs. Favalo-ro died on July 10, 1979. Following her husband’s death, Mrs. Favaloro qualified as testamentary executrix and opened his succession. She listed the U. S. Savings Bonds as community property in the succession proceedings. Mr. Favaloro left a will in which he made certain specific bequests. He bequeathed the remainder of his property to his brothers and sisters (the Favalo-ros), subject to a life usufruct in favor of his wife.

More specifically stated, the issue in this case is whether the act of Mrs. Favaloro in listing the U. S. Savings Bonds as community property and the signing of a judgment of possession recognizing the naked ownership of the Favaloros resulted in the Fava-loros becoming owners of a one-half interest in the bonds. Following the death of Mrs. Favaloro in 1979, the judgment of possession was amended to eliminate the bonds from the succession. The Favaloros brought this action to annul the judgment amending the judgment of possession and sought declaratory relief to have themselves recognized as owners of an undivided one-half interest in the U. S. Savings Bonds.

The trial court rejected the demands of the Favaloros and they brought this appeal. We affirm the trial court judgment.

The notary who inventoried the succession of Mr. Favaloro failed to show the manner in which the ownership was listed on the face of the bonds. As noted, the bonds were listed as community property in Mr. Favaloro’s succession despite the fact that the bonds were issued to Mr. “or” Mrs. Favaloro. Under federal law, bonds issued in the names of two co-owners become the property of the survivor upon the other’s death. Free v. Bland, 369 U.S. 663, 82 S.Ct. 1089, 8 L.Ed.2d 108 (1962). See also the provisions of 31 C.F. § 315.70. All parties to this action concede this to be the law. As federal law, this provision super-cedes state law. Unquestionably, therefore, Mrs. Favaloro became sole owner of the bonds upon her husband’s death and they should not have been included in Mr. Fava-loro’s succession as community property.

Despite the effect of federal law, the Favaloros take the position that the act of Mrs. Favaloro in including the bonds in her husband’s succession was a judicial confession that the Favaloros had an interest in the bonds and the judgment of possession based on the confession cannot be set aside. We find this contention without merit. Certain cases cited to us on behalf of the Favaloros are not entirely apropos. All but one of the cases cited were decided long before Free v. Bland which was decided in 1962.

The'Favaloros also cited the case of Succession of Williams, 405 So.2d 336 (La.App. 2nd Cir. 1981), which held that a daughter of the decedent had judicially confessed that she was a co-heir with her brother’s children (after the brother renounced his share of their mother’s succession) by participating in a petition sending the children into possession of half of the estate. While we express no opinion as to the correctness of the decision of our brothers of the Court of Appeal for the Second Circuit, we note that Williams is not apropos to the case before us because it did not concern a conflict between state and federal law.

In a sense the Favaloros contend that Mrs. Favaloro intended to donate a one-half interest in the bonds to them or that she is estopped from denying their interest inasmuch as she listed the property as community property. However, the elements and requirements necessary to prove a donation or an estoppel are lacking. Furthermore, the case of United States v. Chandler, 410 U.S. 257, 93 S.Ct. 880, 35 L.Ed.2d 247 (1973) held that a physical inter vivos delivery of U. S. Savings Bonds was insufficient to transfer ownership. The bond must be reissued in the new owner’s name according to government regulations fbr the transfer to be effective.

For the foregoing reasons the judgment of the trial court is affirmed. The costs of this appeal are assessed to petitioners, the Favaloros.

AFFIRMED.

      . Under LSA-C.C.P. art. 3137 the court may amend a descriptive list in a succession to correct errors upon the ex parte motion of the person filing it. A judgment of possession sending parties into possession of property is not conclusive as to ownership. It is prima facie evidence of ownership but it is subject to attack. Blanc v. Succession of Simon, 295 So.2d 569 (La.App. 3rd Cir. 1974), writ denied, 300 So.2d 182 (La.1974).


author: LABORDE, Judge.

text:
    STANDARD MACHINE & EQUIPMENT COMPANY, Plaintiff-Appellant, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, Defendant-Appellee.
    No. 8600.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1982.
    Rehearings Denied March 23, 1982.

      Hunt, Godwin, Painter & Roddy, John S. Hood and E. C. Hunt, Alexandria, for plaintiff-appellant.
    Scofield & Associates, Robert L. Hackett, Raggio, Cappel, Chozen & Berniard, Thomas L. Raggio, Lake Charles, for defendant-appellee.
    Before DOMENGEAUX, DOUCET and LABORDE, JJ.
   LABORDE, Judge.

Plaintiff, Standard Machine & Equipment Company, (Standard) filed this property damage suit seeking an award for damage to and resulting loss of use of its 125 ton capacity motor crane which was struck by four railroad cars at the Olin Chemical Plant, Westlake, Louisiana. Made defendants were Olin Corporation (Olin) and Southern Pacific Transportation Company (Southern Pacific). Defendants brought third party actions against each other and Olin additionally filed a third party claim against Standard seeking expenses and attorney’s fees.

At the conclusion of Standard’s case-in-chief, the trial court granted Olin’s motion for dismissal but limited it to the main demand. A similar motion urged by Southern Pacific was denied. No third party claims were dismissed.

The trial court awarded Standard $2,256.02 on its main demand against Southern Pacific. Southern Pacific’s third party claim against Olin was denied. Olin’s third party claim against Standard for expenses and attorney’s fees was granted and Olin was awarded $5,000.

Standard appealed devolutively from the damage award against Southern Pacific and suspensively from the expenses and attorney’s fee award against it. Both Southern Pacific and Olin answered the appeal.

Questioned on appeal are the court’s findings regarding: the granting of Olin’s Motion for Dismissal; the negligence of Southern Pacific; the contributory negligence of Standard; quantum; indemnity or other contractual agreements existing between Olin and Standard and between the predecessors of Olin and Southern Pacific; the calling of employees of the different parties under cross examination; and the proffer made by Southern Pacific and considered by the court in reaching its conclusions.

We reverse and as permitted by LSA-C. C.P. art. 2164, remand.

The trial court in its well-written reasons for judgment adequately outlined the salient facts of the instant matter which we adopt as follows:

“Plaintiff brings this action for property damage to, and resulting loss of use, of its 125 ton capacity Link-Belt Motor Crane which it sustained when struck by an untended hopper railroad car at the Olin chemical plant at Westlake, Louisiana. Made defendants are Olin Corporation and Southern Pacific Transportation Company. The defendants then bring third party action against each other and Olin third parties original plaintiff for its expenses and attorney fees.
Plaintiff, whose business is demolishing industrial facilities, entered into a written contract with Olin to demolish a soda ash unit on the south side of its plant site.
Olin makes considerable use of railroad transportation and has its own trackage within its facilities. One track, hereinafter referred to as Track 4, forms an oval near the outer sides of the plant property and has various sidetracks in different areas. Olin uses its own engine to position cars for its operational uses but Southern Pacific, whose tracks come to the site and join those of Olin, delivers railroad cars to the site and upon receiving a ‘list-out’ from Olin gathers the designated cars from their location and takes them away from the plant site for shipment.
Near the south side of the site, Track 4 runs approximately east and west and there are three side tracks off the south side of Track 4, which join Track 4 at each of their ends. All four of these tracks run through the soda ash unit which was to be demolished and was approximately equidistant from the east and west end of the side tracks. For purposes of identification the side tracks are referred to numerically by numbers 3, 2 and 1, with Track 1 being the southern most one. The contract between Olin and plaintiff provided that plaintiff may use Tracks 3, 2 and 1 for loading for shipment the salvage and debris from the unit.
On October 12, 1977, plaintiff was using its 125 ton capacity Link-Belt Motor Crane in its demolishing work. The crane was equipped with 200 feet of boom and a sixty foot jib boom entending from its upper end. The crane was positioned between Tracks 1 and 2, with its outriggers extended and the front at an angle near to or extending partially over Track 1. The front end of the crane, or at least the truck or ‘carrier’ upon which it was mounted, was facing approximately west-southwest. At the end of the day work shift the load line had been lowered from the boom, fastened to a piece of the plant and the slack pulled out, making it taunt for stability against wind.
Five covered hopper railroad cars were parked on Track 1, west of the crane, with the one nearest the crane a distance of 200 feet or more. It is unknown who placed the cars there or when they were put there, although there is some indication they had been there at least since the previous day. Olin had given Southern Pacific a ‘list-out’ the day before for the car located fourth from the west end. The Southern Pacific engine, with some cars to make up a train, came around Track 4 from the east, stopped, disconnected from its cars, backed onto Track 1 and connected to the first car. The train crew disconnected the fifth car, leaving it in place, pulled the four cars out onto Track 4, backed up and connected the fourth car to its train. The third car was then disconnected from the fourth car, the engine pulled the three cars forward, backed onto Track 1 and car three was connected to car five, the car which had been left in its original position. The couplings of cars three and five did not connect when the engine backed car three against car five and it was only after the engine pushed car three back against car five the third time that the connection was made. In this process car five was pushed east a few feet. The brakeman who saw to this connection, Mr. Ray Du-hon, then signaled the engine to back up (to the east, toward the crane) as he walked toward the engine, to disconnect it from car one. The cars are each about 50 feet long, and Mr. Duhon was approximately 150 feet east of the engine when he ordered it to back toward him. The engine then departed Track 1 for Track 4, connected to its ‘train’ and proceeded around the west end of the plant site to perform work on the north side of the plant.
According to testimony of all the train crew and from some of the photographs in evidence, a portion of Track 1 slopes slightly down, from west to east.
Immediately after the crew and train departed the area and unknown to the train crew, the four hopper cars rolled down the grade at a slow speed and the left corner of car five collided with the left front of the crane ‘carrier’.”

We begin with the issue of whether the trial court properly granted Olin’s motion, dismissing Standard’s suit against it. The unusual events preceding Olin’s dismissal are very important to the outcome of this issue on appeal and for that reason, we feel it important to detail them.

In its petition against Olin, Standard alleged that the accident was due in part to Olin’s negligence which consisted of:

“(a) Assigning and designating an area for the performance of petitioner’s contractual work when such area was known by defendant to be extremely hazardous and unsafe;
(b) Allowing petitioner to position its equipment in an area known by defendant to be dangerous and unsafe;
(c) Failing to contact SOUTHERN PACIFIC TRANSPORTATION COMPANY and inform them of the nature of the work being undertaken by petitioner and the position of petitioner’s equipment;
(d) Failing to make the railroad tracks assigned to petitioner under the contract safe for the intended use and purpose;
(e) Failing to adequately perform safety inspections of the work being done by petitioner under the contract between petitioner and OLIN CORPORATION for Soda Ash Demolition;
(f) Other acts of negligence to be proven at trial.”

Near the beginning of trial, Standard attempted to call employees of Southern Pacific under cross-examination. The trial judge ruled against this and Standard proceeded to put on its case by calling the employees under direct examination. The trial continued under this ruling and plaintiff rested its case without calling any of Olin’s employees to testify. Olin moved for dismissal pursuant to LSA-C.C.P. art. 1810(B) and the trial court, over objections, granted the motion but limited it to a dismissal of the main demand only. The trial continued with Southern Pacific putting on its case. As part of its case, Southern Pacific called two of Olin’s employees; safety supervisor, Huey McClure, and construction superintendent Dale Roger Bonin. Later during the trial, the trial court' realized its error in not allowing the parties to call employees of the other parties under cross-examination. In an effort to remedy this error, the trial judge allowed the parties to re-call witnesses or re-classify testimony already received.

Plaintiff was also allowed to re-open its case-in-chief. Instead of calling or re-calling witnesses, plaintiff, in addition to converting some of the testimony already received, converted the testimony of the two Olin employees called by Southern Pacific into testimony under cross-examination and then included it as part of its case-in-chief. Due to its changed ruling and the effect thereof, the trial court required all previously granted motions to be re-urged. Olin again moved to have Standard’s case against it dismissed and the trial court again granted this motion. With these facts in mind, we must determine whether the trial court erred in granting Olin’s motion for dismissal.

Louisiana Code of Civil Procedure Article 1810(B) provides:

“B. In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.”

The proper standard for granting a judgment of dismissal under LSA-C.C.P. art. 1810(B) was announced in Sevin v. Shape Spa For Health & Beauty Inc., 384 So.2d 1011 (La.App. 4th Cir. 1980). In the Sevin case, the court stated that in a non-jury case, the trial judge in considering a motion under Article 1810(B), must weigh and evaluate all of the evidence presented up to that point in the trial and must grant a dismissal if plaintiff has not established proof by a preponderance of the evidence.

Applying this standard to our case, we hold that the trial judge erred in granting Olin’s motion for dismissal.

When Olin’s motion was re-urged the second time, the evidence at that point included the testimony of some of Standard’s employees, the testimony of some of Olin’s employees and the contract entered between Olin and Standard. A review of this evidence convinces us that Standard sustained its proper burden of proof.

The evidence showed that Olin maintained a stringent safety program at its plant and required of its contractors that they participate in this safety program by attending safety meetings. Adherence to Olin’s safety program was made a part of the contract between Olin and its contractors. The testimony of Olin employees, Huey McClure and Dale Roger Bonin, vividly illustrates the obligations of Olin in this regard. Mr. McClure, safety supervisor of the area where the accident occurred, testified that his duties included monitoring safety within Olin’s plant. In carrying out this duty, walk-through inspections were conducted periodically to see if the contractors were abiding by Olin’s safety rules and regulations. Mr. McClure, when questioned about what he would do if he saw a situation involving a potential danger of great property damage, replied that he would contact the contractor and assist him in correcting it.

Mr. McClure testified that he had never been informed that the crane was blocking the railroad track but that had he known he would have advised Southern Pacific and he probably would have used cross-ties or some other device to block the track ahead of the crane.

Mr. McClure further testified that he was aware of the incline and knew that it was a possibility that cars would roll down the incline.

Mr. Bonin, who in the Olin chain of command was responsible for monitoring and inspecting the jobs under Mr. McClure’s supervision, also testified. Mr. Bonin stated that he could see that the crane was blocking or fouling Track 1; that he had no authority to permit the blocking; that he did not know whether the crane blockage had been cleared with either Olin or Southern Pacific; and that he assumed, without checking, that it had been cleared with Olin.

Mr. Bonin also testified that in order for Standard to fulfill its contract, the crane had to be situated precisely where it was.

Earl Millsaps,’ general superintendent for Standard, testified that Standard had permission from Mr. Bonin to block Track 1. In this regard, Mr. Bonin testified that he did not remember giving Mr. Millsaps permission to block Track 1 but added that neither could he deny that he had. Mr. Bonin also admitted that he had never known of Standard blocking a track without obtaining permission.

The extent of Olin’s duty is best illustrated by the last question posed to Mr. Bonin and his answer to that question:

“Q If you had discovered a defect or felt that there was an unsafe situation regarding the position of the crane, do you feel it was a part of your duty as a construction superintendent and area superintendent to have pointed those out to Standard Machine?
A Definitely.”

Based on the above, we hold that the preponderance of the evidence presented by plaintiff established breach of a duty on the part of Olin.

In order to do justice to the parties, we decline the invitation to decide this case finally on the incomplete record before us. We fear that plaintiff was never fully able to recoup its loss of procedural options because of it being denied initially the right of cross-examination. Also, due to the procedural rulings noted above, the record in its present state suggests that Olin, who never was required to call any witnesses, may have claims which were not presented to the trial court. As permitted by LSA-C. C.P. art. 2164, we order that the case be remanded. Further, we elect to remand in toto due to our belief that the whole complexion of the case may be changed by the additional evidence.

For the above reasons, the judgment of the trial court is set aside and the case is remanded for trial of all claims and issues. All costs to await final disposition.

REVERSED AND REMANDED.


author: BOUTALL, Judge.

text:
    Claude E. FORD v. GULF ATLANTIC DISTRIBUTION SERVICES & Ranger Insurance Company.
    No. 5-75.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1982.
    Robert F. Shearman of Badeaux, Discon, Cumberland & Barbier, New Orleans, for Claude E. Ford plaintiff-appellant.
    Paul G. Preston of Christovich & Kear-ney, New Orleans, for Gulf Atlantic Distribution and Ranger Insurance Co. defendant-appellee.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   BOUTALL, Judge.

From a judgment dismissing his Workmen’s Compensation case, an employee appeals.

Claude E. Ford was employed by defendant, Gulf Atlantic Distribution Services, and while alighting from a forklift machine on April 10, 1979, he slipped and fell, causing an injury to his back. There is no serious contest as to those facts, the issue being narrowed to the extent of disability because the injury is superimposed upon a pre-existing spondylolysis and possible spon-dylolisthesis in his low back. Plaintiff contends that he has total permanent disability resulting from the fall because that injury caused his dormant back problems to become exacerbated and symptomatic such that he can no longer work. In opposition, the defendant contends that Ford only sustained a lower back musculature sprain which was healed by August 14, 1979, and that any further problems are the cause of the pre-existing condition not the injury. Accordingly, the defendant paid compensation from date of injury through August 14, 1979, and the medical expenses incurred. The trial judge agreed with the defendant and, plaintiff having been paid all that was due, dismissed plaintiff’s suit.

The evidence, in addition to the testimony of Ford, consists of the depositions of an orthopedist, Dr. Levy, and a neurosurgeon, Dr. Schuhmacher, who were consulted by the treating physician during the initial phases of Ford’s treatment for the injuries, and the testimony of Dr. Adatto, an orthopedist who was consulted by Ford slightly over a year post accident. After the accident on April 10, 1979, Ford had been treated for several weeks by the Fisher-Rabin Clinic and was referred by them in the course of treatment to Dr. Russell Levy, an orthopedist, who examined Ford on April 19, 1979. At that time it appeared that Ford had some muscle spasms, however, on testing it was revealed that he did have problems with his back. However, further tests showed that Ford had a spondylolysis at the L5-S1 level on the right side, a pre-existing condition for a period of at least four years. It was noticed that Ford had suffered an injury in 1975 which disclosed this condition, and which had caused an aggravation of the condition for several months.

In subsequent examinations from April, 1979, Dr. Levy found that the effects of the muscle strain , had dissipated, and he could find nothing to explain Ford’s continued complaints of pain. Accordingly, he referred Ford to a neurosurgeon, Dr. Schuh-macher, who similarly found no residuals from injury on his tests. In an effort to find some basis for Ford’s complaints, the doctors committed him to the hospital for more involved and detailed tests, which disclosed nothing other than the spondylolysis previously mentioned. Dr. Levy saw him again on August 8, 1979, at which time he felt that he could probably return to some form of light duty and that he would be able to work. The doctor did not see him again until September 11, 1980, over a year later, and his examination did not reveal anything which caused him to change his original opinion.

In the interim Ford had not seen a doctor from August 8, 1979, until he was referred to Dr. Adatto by his attorney on June 10, 1980. Dr. Adatto submitted him to a number of tests and concluded that he had a grade one spondylolysis at the L5-S1 level with bilateral L-5 spondylitic defects. Dr. Adatto concluded that if Ford had been suffering back pain from the time of the injury down to the time that he saw him, that the injury was the cause of the disabling pain. However the evidence does not support Ford’s complaints, and we point out that from the time he was discharged by Dr. Levy in August, he did not see another doctor until he was referred to Dr. Adatto. In the interim, Ford did not work but instead had taken a course of study to be a medical assistant. The trial judge was of the opinion that the accident had caused a muscle sprain which was superimposed upon the spondylolysis and had healed by August, 1979, and his present back problems were not shown to be causally related to the April 19, 1979, injury. Our examination of the evidence convinces us that this finding is correct.

For the reasons assigned, the judgment appealed is affirmed at appellant’s costs.

AFFIRMED.


author: CHEHARDY, Judge. KLIEBERT, Judge,

text:
    SECURITY INSURANCE COMPANY OF HARTFORD v. Russell HOLLIDAY, Sr.
    No. 12281.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1982.

      Rudolph R. Schoemann, New Orleans, for plaintiff-appellant.
    Samuel W. Ethridge, Kenner, for Glenn D. Rogers, garnishee-appellee.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   CHEHARDY, Judge.

Plaintiff, Security Insurance Company of Hartford (Security), appeals a district court judgment in favor of Glenn D. Rogers, garnishee in a prior suit entitled “Security Insurance Company of Hartford v. Russell Holliday, Sr.,” No. 171-354 on the docket of the Twenty-fourth Judicial District Court in and for the Parish of Jefferson, State of Louisiana, annulling and vacating that judgment issued against him on March 25, 1977. The judgment in the present case also ordered Rogers to pay $750 attorney -fees to Security and all costs of the garnishment proceedings as against himself.Z

This case arose from an embezzlement by Russell Holliday, Sr., of his employer, Le Pavilion Hotel. After it paid its assured, Le Pavilion, Security obtained judgment against Holliday in the sum of $11,000. At the request of Security a writ of fieri facias directed against Holliday was issued, and Rogers did not respond to garnishment interrogatories, nor did he make an appearance, and he was ultimately cast in judgment for $13,634.65, representing the amount owed under the garnishment, plus interest, costs and attorney fees. Although Rogers appealed that judgment, it was affirmed by this court and the Louisiana Supreme Court denied writs. Thereafter, Rogers filed the present action for nullity.

At a trial on the merits of the case Janice Bertucci testified that she was the daughter of Jack Craft, owner of Craft Motor Company, and that she was working at that establishment during the years of 1976 and 1977. She stated that Holliday worked for the company from the end of November, 1976 through April of 1977 and this was verified by records she kept and maintained for Craft’s sales tax returns and office correspondence signed by Holliday.

Mrs. Bertucci also produced checks covering the above employment period, which were made out to Holliday, and she said she dispensed information regarding his employment status at Craft to a number of callers. She also said that no deductions were taken from the salary paid to Holliday by Craft.

Jack Craft also testified that his company employed Holliday from the end of November, 1976 through April of 1977. He stated Holliday did light accounting work, handled correspondence, tax forms, performed sales and that he was employed as “contract labor.” He also said he did not conceal the fact that Holliday was employed by him and he added Holliday was previously employed by Rogers as the company’s certified public accountant.

Mrs. Glenn Rogers testified she worked for her husband who was in the accounting business in 1976 and 1977 and that Holliday left his employment in November of 1976. She said before Christmas of that year she answered a number of calls telling the callers that Holliday no longer worked there.

Rogers said at trial that Holliday worked for him on a work release program after he left prison. He stated Holliday worked for him on a subcontract basis so he would not withhold any taxes from his pay.

Rogers stated the first occasion he knew there was a judgment against him was in April of 1978. He said after Holliday left his employ he still had contact with him because he (Rogers) was also performing services for Craft Motor Company and Hol-liday used Rogers’ facilities to do his own work for Craft.

Holliday also testified he worked for Rogers until the 29th or 30th of November of 1976, at which time he began working for Craft. He stated he worked for Craft until April of 1977 and during that employment period he worked at Rogers’ office intermittently. He said also that in January of 1977 while he was on Rogers’ premises he was served with some papers from Security, saw that they pertained to himself, so he put them in his pocket and took them home. He stated he saw no reason to tell Rogers about the papers because they pertained to him, Holliday.

Holliday further said that in April of 1978 Rogers contacted him and asked him to come over and speak to him in reference to the matter of Security versus Holliday. Rogers also informed Holliday that a judgment had been entered against himself which Holliday said surprised him. He said he told Rogers at that time about being served with the papers in January.

Holliday said he had previously been in a penal institution because he had embezzled $17,000 from Le Pavilion Hotel and stated he did not work for Rogers after November of 1976.

In regard to the fact of concealment of the papers which Holliday had received for Rogers, the court noted that it was “extremely concerned.” Holliday, however, said that he would not characterize his actions as a form of concealment because the top paper was addressed to himself. He said he did not read the “long paper” until later on.

In his petition for nullity of the judgment of garnishment, Rogers avers, among other things, that he at no time received actual notice of the garnishment proceedings nor was he at any time legally cited therein and that, therefore, this honorable court was without jurisdiction ratione personae to render judgment herein. In a judgment rendered on July 9, 1979 the district court granted Security its exception of no cause of action to the nullity petition filed by Rogers. The judgment further ordered that Rogers amend his petition for nullity on or before July 9, 1979 or suffer dismissal of same with prejudice at his costs. On July 9, 1979, the petitioner did amend said petition alleging therein that the judgment against him was obtained through ill practices, fraud and/or misrepresentation which became known to him since April 25, 1978 in that the record showed the same law firm represented plaintiff and defendant in the original action, the judgment against the original defendant was rendered at a pretrial conference where both parties were represented by the same law firm; the original plaintiff and/or their representative knew that the original defendant was not employed by the plaintiff in January 1977 but was in fact employed by Craft; and that on March 25, 1977 both plaintiff and/or their representative was aware that the original defendant was not in the employment of the plaintiff in the present case.

In his reasons for judgment in the present case the trial court judge said:

“This cause arises out of garnishment interrogatories filed and served at the office of Glenn Rogers, garnishee herein on January 16, 1977. The evidence clearly shows Glenn Rogers was not served but the original defendant Russell Holli-day was served. Mr. Holliday admitted he took the garnishment interrogatories and secreted them from Glenn Rogers.
“The evidence shows that at the time the garnishment interrogatories were served at Glenn Rogers’ office to Mr. Holliday, that Mr. Holliday, the original debtor was not employed by Glenn Rogers, but was in fact an employee of Craft Motor Company.
“This situation is complicated by the fact that Glenn Rogers is a C.P.A. who had hired Holliday on a work release program from Louisiana Department of Corrections. In late November, 1976 Holli-day left Rogers employ and went to work for Craft Motor Company, a client of Rogers’ C.P.A. firm.
“The Craft Motor Company people clearly verified this to be true. The happenstance of Holliday being in Rogers’ office when service of the garnishee interrogatories was made was occasioned by the fact that Rogers was allowing Holliday to use his (Rogers) office equipment, hoping to get Holliday off to a new start after his embezzlement conviction (the basis for the original judgment in this case).
“Suffice it to say, the Court is clearly convinced that the judgment debtor Hol-liday was not in the employ of garnishee Rogers at the time the garnishment interrogatories were served.
“The Judgment creditor, Security Insurance Company of Hartford, filed on February 10, 1977 for a pro confesso judgment which was served on Rogers at his domicile. Judgment was rendered thereon March 25, 1977, which was noticed to Rogers in April, 1978 over one year later. A new trial motion filed by Rogers was denied and there was an appeal therefrom, which affirmed the Court’s decision.
“A petition for nullity was filed on Rogers’ behalf attesting [sic] the judgment pro confesso rendered March 25, 1977.
“The evidence as discussed herein above shows that the garnishee Rogers was not served and the Judgment should be annulled.
“The 1st Circuit Court of Appeals ruled in a situation remarkably similar to this case in Mid-City Investment Co., Inc. vs. Baptist, 248 So.2d 88 1st C.C.A. 1971 that since the garnishee was not in fact indebted to the Judgment debtor at the time of service, that the garnishee’s failure to answer timely etc., makes the garnishee liable for all costs and reasonable attorney’s fees.”

The attorney for Security testified at trial that he has never represented Holliday and his name listed on one of the judgments in the case as representing him was a typographical error. He said although he saw the judgment after it was prepared he did not catch the error. He said the judgment, in fact, should have read that he was attorney for the plaintiff, thereby dispensing with Rogers’ allegations of misrepresentation and ill practice on that basis.

Security also argues that the action for nullity had prescribed due to the fact that the petitioner’s amended petition was filed more than one year after discovery of the ill practices or fraud alleged to have occurred and the first petition (filed within the one-year limit) was dismissed on the exception of no cause of action.

LSA-C.C.P. art. 2004 provides that a final judgment obtained by fraud or ill practices may be annulled. It also states, however, that an action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.

The case of Towne v. Towne, 364 So.2d 627 (La.App. 2d Cir. 1978), also held that where a plaintiff had been aware of fraud or ill practices, he had no more than one year from that awareness to file his suit for nullity.

In the case of Phoenix of Hartford Ins. Co. v. United States Rub. Co., 245 So.2d 436 (La.App. 1st Cir. 1970), the court also said at 439:

“Assuming, arguendo, that the original petition failed to state a cause of action, we are satisfied, nevertheless, that the filing of the original petition within the one-year prescriptive period sufficed to interrupt prescription so that if plaintiff first stated a cause of action upon the filing of its first “Supplemental and Amended Petition,” the sustaining by the trial court of the peremptory exception of prescription was erroneous.
“The applicable law in this regard is well summarized by the Lousiana Supreme Court in Callender v. Marks, 185 La. 948, 171 So. 86, 87, 88 (1936), as follows:
‘The jurisprudence is well established that where a petition imperfectly states a cause of action due to insufficiency of allegations, but informs the defendant of the nature of the claim or demand, an amended petition supplying the deficiency may be filed even after an exception of vagueness or an exception of no right or cause of action has been sustained, and after the prescriptive period has elapsed, because the amendment does not set up a new, different or separate cause of action, but merely clarifies and amplifies the allegations of the original petition or demand which interrupted prescription. Reeves v. Globe Indemnity Co. of New York, 185 La. 42, 168 So. 488; McCoy v. Arkansas Natural Gas Co. et al., 184 La. 101, 165 So. 632; National Park Bank v. Concordia Land & Timber Co., 159 La. 86, 105 So. 234-240; James v. City of New Orleans, 151 La. 480, 91 So. 846-848; Missouri, etc., R. R. Co. v. Wulf, 226 U.S. 570, 33 S.Ct. 135, 57 L.Ed. 355, Ann.Cas. 1914B, 134.
‘Where an exception of no right or cause of action is sustained because the petition does not state any right or cause of action whatsoever, prescription is not interrupted by the filing thereof, and the amended petition or the subsequent suit, which does set forth a cause of action or another demand based on different grounds than those contained in the original petition, does not date back to the filing of the original petition, and, if filed after the prescriptive period has elapsed, will be dismissed upon a plea of prescription. National Park Bank v. Concordia Land & Timber Co., supra; De Bouchel v. Koss Const. Co., Inc., et al., 177 La. 841, 149 So. 496; Union Pacific R. Co. v. Wyler, 158 U.S. 285, 15 S.Ct. 877, 39 L.Ed. 983; Sicard v. Davis, 31 U.S. (6 Pet.) 124, 8 L.Ed. 342.’ ”

In the present case Rogers testified that he did not learn of the act of Holliday (in secreting the petition served at Rogers’ office) until after April of 1978 when the judgment was served upon him, and this was confirmed by the testimony of Holli-day. Although the amending petition was filed on July 9, 1979, the judgment rendered on that date granting the exception of no cause of action (in regard to the original petition) simply ordered Rogers to amend his petition or suffer dismissal of same. We hold, therefore, that under Phoenix of Hartford Ins. Co. v. United States Rub. Co., supra, Security was informed of the notice of the claim or demand by the original petition filed by Rogers on March 16, 1979 which interrupted the prescriptive period that had begun to run on April 25, 1978, as alleged in the amending petition.

Security also argues that the decision rendered by this court in the case of Security Ins. Co. of Hartford v. Holliday, 367 So.2d 1352 (La.App. 4th Cir. 1979), is res judicata to the present suit. Regarding the exception of res judicata, however, this court stated in Bowers v. Jones-Journet, 316 So.2d 18, 20 (La.App. 4th Cir. 1975):

“Res judicata is discussed in our Civil Code in terms of the ‘thing adjudged.’ Article 3556(31) defines the thing adjudged as follows:
‘Thing Adjudged. — Thing adjudged is said of that which has been decided by a final judgment, from which there can be no appeal, either because the appeal did not lie, or because the time fixed by law for appealing is elapsed, or because it has been confirmed on the appeal.’ LSA-C.C. Art. 3556(31).
“There is no doubt in this case that the judgment of April 29, 1974 is a final judgment, no longer appealable. Personal service of a copy of that judgment was made on appellant on May 2, 1974 and the delays for appealing had elapsed prior to the rendition of the September 9, 1974 judgment appealed from.
“However, as provided by Article 2286 of the Civil Code, for a judgment to have the authority of the thing adjudged, the following requirements must exist: (1) the demand must be the same; (2) the demand must be founded on the same cause of action; (3) the demand must be between the same parties; and (4) the demand must be between the parties in the same quality. When a claim obtains the authority of the thing adjudged, no further suit or action may be had thereon.”

Moreover, in Tracy v. Dufrene, 240 La. 232, 121 So.2d 843 (1960), the court also said at 845:

“Hence, this Court has, as recently as 1942, recognized that a district court could declare the nullity of one of its own judgments on the ground that it had been obtained through fraud, even though the judgment had been affirmed by this Court on appeal. This, we think, is proper as we find it difficult to perceive why a judgment obtained through fraud or ill practice should be immune from an action of nullity because it has been approved on appeal by this Court, so long as this Court has not passed on the issue upon which the annulment action is based.

A review of the decision of this court rendered in Security Ins. Co. of Hartford v. Holliday, supra, reveals that the issue of fraud or ill practices was never addressed by the court. In fact that opinion states at 1353:

“Garnishee, Glenn D. Rogers, appeals from an adverse money judgment in favor of plaintiff. We affirm.
“The attack by garnishee on the validity of the garnishment proceedings and the judgment rendered against him is threefold.
“First, Rogers claims the rule to show cause filed against the garnishee for the amount of the unpaid judgment requires personal service. Personal service of the supplemental petition and interrogatories was made on the garnishee. However, domiciliary service of the rule was made on garnishee’s wife.
“Second, relying on LSA-C.C.P. art. 1155, the garnishee contends that the supplemental petition in the garnishment proceeding requires ‘ruling the garnishee into court.' Although not clear, garnishee apparently claims that the supplemental petition and interrogatories must be accompanied by a rule to show cause why the petition and interrogatories should not be answered.
“Third, garnishee claims LSA-C.C.P. art. 2411, requires that garnishee not only be served with a copy of the supplemental petition and the interrogatories but also with a copy of the original petition filed against the defendant in the matter. Because the original petition was not attached to the supplemental petition and interrogatories in the garnishment proceedings, garnishee claims the garnishment is fatal and plaintiff is not entitled to judgment.”

This court in the Security Ins. Co. of Hartford case, therefore, did not consider any allegations of fraud or ill practices which may have led to Rogers having a default judgment rendered against him. In the present case, accordingly, this court cannot hold that Security Ins. Co. of Hartford v. Holliday, supra, is res judicata to the action at bar.

Neither can this court hold that Rogers’ motion for a new trial or his appeal in the previous case should be considered as a general appearance, invoking the jurisdiction of the court. His acts in these regards were strictly based upon his allegations of insufficiency of service of process. LSA-C. C.P. art. 1201 states that without citation and service of process all civil proceedings, except those which are summary or execu-tory, are absolutely null. Since the motion for new trial and appeal in the previous case was based on allegations of insufficiency of service of process, we hold, that Rogers did not thereby submit himself to the jurisdiction of the court. DLJ of Louisiana # 1 v. Green Thumb, Inc., 334 So.2d 801 (La.App. 3d Cir. 1976).

In the present case all of the testimony presented by Rogers established without contradiction that the debtor, Holliday, was not employed by Rogers at the time the garnishment suit was served at his office and, therefore, he did not have property of nor was he indebted to the judgment debt- or, Holliday, at that time. Accordingly, the district court judgment annulling the prior judgment between these parties was a proper one. Because Rogers failed to answer interrogatories timely the court was also correct in assessing costs and attorney fees against Rogers. LSA-C.C.P. art. 2413 and Mid-City Investment Co. v. Batiste, 248 So.2d 88 (La.App. 1st Cir. 1970; On Rehearing April 19, 1971; Writ Refused May 24, 1971).

Although Security also asks that attorney fees assessed against Rogers be increased on appeal, we hold that those awarded by the district court are reasonable within the meaning of LSA-C.C.P. art. 2413.

For the reasons assigned, therefore, the trial court judgment is affirmed.

AFFIRMED.

KLIEBERT, Judge,

dissenting.

The garnishee, Rogers, had filed a motion for a new trial on the grounds “Glenn D. Rogers was not served and never received a copy of the rule for judgment against the garnishee.” The motion for the new trial was denied by the trial court and his denial affirmed by this court. Security Insurance Company of Hartford v. Russell Holliday, Sr., 367 So.2d 1352 (4th Cir. 1979).

Thereafter, the garnishee filed a motion for nullity of the judgment alleging grounds as follows:

“1. As appears from the citation and return of the Sheriff for the Parish of Jefferson of the interrogatories in the above proceedings dated January 13, 1977, the said citation was made by means of personal service on your petitioner at 1605 Fairway, Kenner, Louisiana.
2. Petitioner avers that he has never been served interrogatories in this matter and if they were in fact served at 1605 Fairway, they were served on someone other than petitioner.
3. Petitioner shows that he at no time received actual notice of the garnishment proceedings nor was he at any time legally cited therein, and that, therefore, this honorable court was without jurisdiction rationae personae to render judgment herein.
4. Petitioner shows that the judgment against him was obtained through ill practices, fraud, and/or misrepresentation in that:
a. The record shows that the same law firm represented the plaintiff and the defendant in the original action.
b. The record further shows that the judgment against the original defendant was granted at a pretrial conference whereat both parties were represented by the same law firm.
c. The original plaintiff and/or their representative knew that the original defendant was not employed by your petitioner in January 1977 but was in fact employed by Craft Motor Company.
d. Again on March 25, 1977 when the court was informed that the original defendant was employed by your petitioner and that your petitioner had received personal service, both original plaintiff and/or their representative was well aware that original defendant was not in the employment of your petitioner.”

The trial judge maintained an exception of no cause of action but gave garnishee the “right to amend the petition insofar as it alleged ill practice, fraud, and/or misrepresentation.” Paragraph Four of the petition was amended to read as follows:

“4. Petitioner show that the judgment against him was obtained through ill practices, fraud, and/or misrepresentation, which became known to him since April 25, 1978, in that;
a. The record shows that the same law firm represented the plaintiff and the defendant in the original action.
b. The record further shows that the judgment against the original defendant was granted at a pretrial conference whereat both parties were represented by the same law firm.
c. The original plaintiff and/or their representative knew that the original defendant was not employed by your petitioner in January 1977 but was in fact employed by Craft Motor Company.
d. Again on March 25, 1977, when the court was informed that the original defendant was employed by your petitioner and that your petitioner had received personal service, both original plaintiff and/or their representative was well aware that original defendant was not in the employment of your petitioner.”

At the commencement of the hearing on the motion for nullity of the judgment, the trial judge said:

“In order that we don’t take a lot of time with objections and so forth and so on, Mr. Ethridge in accordance with the previous rulings of the Court in connection with this matter, any witness or any evidence you want to take concerning the service in this matter should be brought on, brought about as a result of the proffer which will be treated as a proffer and sealed, transcribed and sealed. So when he is talking about service, it won’t be necessary for you to object, Mr. Morrison. The Court is going to treat that as a proffer from the outset.”

Clearly the trial court sought to limit the introduction of evidence on the motion to annul so that supporting the allegations of paragraph 4 of the motion because of his previous ruling on the exception of no cause of action that the allegations as to lack of service of the original garnishment petition and the interrogatories had already been ruled on by the appellate court and hence could not serve as the basis for annullment of the judgment.

As a result of the trial judge’s preliminary rulings, the hearing on the action of nullity was for the purpose of taking evidence on the alleged “fraud and ill practices”. The essence of the majority opinion, however, is to hold that the trial court did not have jurisdiction rationae personae over the garnishee Rogers; therefore, any judgment rendered against him was null from its inception. Such a holding ignores the situation involved here.

Although the original petition and interrogatories as now contended by the garnishee may have been secreted by the original debtor (Holliday), the contradictory rule to show cause why judgment should not be rendered against the garnishee (Rogers) was served on Rogers' wife at their home in Metairie. The record also reflects that an attempt was made to serve a previous rule on the garnishee at his office, but was returned to the Sheriff’s office with the notation “no longer lives at this address”. As was held in this very case, domiciliary service of the rule on the garnishee’s wife was proper. Thus, the trial court did have jurisdiction rationae personae over the garnishee (Rogers) by virtue of the domiciliary service. Had he responded to the rule at that point and proven the present contention that the original garnishee secreted the petition and interrogatories, judgment would not have been rendered against him. In my view, therefore, the trial court did have jurisdiction rationae personae over the garnishee at the time judgment was rendered.

Further, it is inconceivable to me that the garnishee knew nothing of the garnishment proceeding until he was served with a copy of the judgment against him in April, 1978. From a review of this record, it seems to me the proper conclusion to draw is that the garnishee was aware of the garnishment proceeding from its inception and for reasons known only to him, elected to ignore them until such time as a personal judgment was rendered against him. Therefore, even if he were able to show fraud or ill practice (in my view this record does not show that he proved fraud or ill practice) his motion for nullity should be dismissed because it came too late. CCP Article 2004.

Although I fully recognize that my views would cause hard results, I believe for a free society such as ours to survive, the laws which govern its everyday affairs must be applied with consistency and finality. Here, pursuant to the clear requirements of CCP Article 2413, the trial judge rendered judgment in favor of the original creditor and against the garnishee. The garnishee applied for a rehearing on the basis of insufficient service. In this motion, he does not spell out the contentions he here makes relative to the secreting of the petition and interrogatories by the original debtor. The trial judge refused to grant the rehearing. On appeal, this court first refused to dismiss the appeal and on the merits upheld the trial judge’s ruling denying the rehearing. An application for writs was (ienied by the Supreme Court.

Then the garnishee starts all over again in the trial court. He files a motion to annul the judgment, and for the first time alleges the original petition and interrogatories were served on someone other than himself. This is dismissed on an exception of no cause of action. The garnishee is then given an opportunity to amend the motion to specify the fraud and ill practice complained of and the date on which he became aware of the alleged fraud and ill practice. Thereafter, notwithstanding the trial judge’s ruling that he would only admit evidence on the fraud and ill practice, at the conclusion of the hearing he points to the evidence originally entered on a proffer as the basis for annulling the judgment. In my view, this does not constitute applying the law with consistency and finality. If in fact we believe an injustice was done, then we, sitting as a court of equity as well as a court of law, should declare the injustice and change the result rather than “bending” the law to achieve a desired result. Although dismissal of the motion for nullity would result in harsh consequences, these consequences are caused by the lack of action on the part of the garnishee. For that reason, I respectfully dissent from the majority opinion.

      “1 In this connection, it is also apt to note that the new Louisiana Code of Civil Procedure, which was recently passed by our State Legislature, and which is to go into effect on January 1, 1961, provides in Article 2006 that an action to annul a judgment must be brought in the trial court, even though the judgment sought to be annulled may have been affirmed on appeal, or even rendered by the appellate court.”


author: BARRY, Judge. LOBRANO, Judge,

text:
    Diane Delery, wife of and Carl DELERY, Individually, v. Marvin J. SCHNEIDER, Owens Country Sausage, Inc., and Employees Casualty Company.
    No. 12574.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1982.
    Writ Denied April 15, 1982.
    Murray, Murray, Ellis, Braden & Landry, Julian R. Murray, Jr., New Orleans, for plaintiffs-appellants.
    Phelps, Dunbar, Marks, Claverie & Sims, Jesse R. Adams, Jr. and William H. Howard, III, New Orleans, for defendants-appel-lees.
    Before BARRY, LOBRANO and KLEES, JJ.
   BARRY, Judge.

Plaintiff appeals a judgment which found her contributorily negligent in a vehicular accident.

The accident occurred on a dry, clear afternoon when plaintiff, Mrs. Diane De-lery, exited a shopping center parking lot onto Touro Street, a two-way, undivided street, and was moving in a southerly direction. The defendant, Marvin J. Schneider, was driving a truck owned by his employer and proceeding on Touro in a northerly direction. Plaintiff realized there was insufficient space for the two vehicles to pass and attempted to pull into an open spot on her side of the street, blew her horn, and stopped on an angle with the front of her car partially into the parking space. In the next moment the left rear of the truck struck the left rear of plaintiff’s vehicle.

Plaintiff sued for neck, back, and dental injuries, plus medical expenses and property damage. Defendants are the driver, his employer Owens Country Sausage, Inc., and its liability insurer, Employer’s Casualty Company. Testimony was heard on March 6 and March 20,1980 and the case held open for 10 days to allow the employer time to locate its driver, but to no avail. On May 6, 1980 the Trial Judge dismissed the lawsuit after pretermitting the truck driver’s negligence and found plaintiff was contributorily negligent because:

“Her vehicle, according to the testimony, was not entirely on the lane of traffic in which she would have been traveling had she not attempted to move from it, hence the truck collided with the left rear end of the Van.”

Plaintiff argues the evidence does not support a holding of negligence and points to the reasons for judgment which specify she was driving a van whereas the record shows it was an Audi. She stresses the difference is important because a van is longer and more likely to protrude into defendant’s path. She also points to the court’s reasons which state she blew her horn before leaving the parking lot whereas her testimony was that she blew the horn after entering the street and just moments before she realized the truck was about to hit her vehicle.

Defendant counters that the judgment was proper even if some individual findings of fact were incorrect. Defendant says plaintiff knew the truck was large and moving in her direction and that the street was too narrow for her to enter, but despite this knowledge she pulled into the street when the truck was less than a block away and the truck driver had only seconds to react. Defendant argues plaintiff should have waited in the parking lot until the truck passed and it is contributory negligence for a person to leave a position of safety and proceed to a place of known or expected danger where an accident takes place. Defendant submits the trial court’s finding was reasonably supported by the record and should not be reversed unless there is a showing that “there was no credible evidence in the record to support the conclusion.” Lamonte v. Mason, 345 So.2d 1268 (La.App. 1st Cir. 1977) at p. 1269.

LIABILITY

Plaintiff and the investigating officer were the only two fact witnesses. The officer was qualified as a reconstruction expert and he emphatically testified the collision occurred on plaintiff’s side of the street. Plaintiff testified she safely entered the street and was driving in her lane when she realized there was insufficient room for the two vehicles to pass whereupon she pulled over as far as she Could and stopped. She asserts she was at a complete stop for two or three seconds before the truck struck the left , rear of her vehicle on her side of the street.

Defendants had the burden of proving Mrs. Delery’s negligence/contributory negligence. In Dupas v. City of New Orleans, 354 So.2d 1311 (La.1978), Justice Tate quoting from Smolinski v. Taulli, 276 So.2d 286, at 290 (La.1973) summarized:

“ ‘Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection. The standard of conduct to which the plaintiff must conform for his own protection is that of a reasonable man under like circumstances. The party relying upon contributory negligence has the burden of proving it.
“ ‘Failure to take every precaution against every foreseeable risk or to use extraordinary skill, caution, and foresight does not constitute negligence or contributory negligence ... (The victim) is required only to use reasonable precautions, and (his) conduct in this regard is not negligent if, by a common-sense test, it is in accord with that of reasonably prudent persons faced with similar conditions and circumstances.’ ”

We feel plaintiff’s uncontradicted testimony shows she did all that a reasonable and prudent person could do and her entry onto Touro Street did not cause or contribute to the accident. There is no evidentiary basis to support the factual finding that plaintiff’s vehicle protruded into defendant’s traffic lane before or at the time of impact and her conservative actions prior to the collision did not constitute negligence. Mrs. Delery’s testimony is buttressed by the only unbiased witness, the police officer, who unequivocally stated the impact occurred on plaintiff’s side of the street.

We find nothing in the record, and hence no reasonable basis, to support the finding that plaintiff was contributorily negligent and the lower court judgment to the contrary was clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). The truck driver knew Touro Street was narrow, did not slow down, was in the wrong lane and had to see the oncoming vehicle, yet did nothing to avoid the collision. We conclude the truck driver’s negligence was the sole cause of the accident.

DAMAGES

Mrs. Delery testified that following the accident on December 21, 1976 she couldn’t remember getting out of the car and wasn’t aware of her injuries except for oral bleeding. The following day she was “stiff”, had pain and restricted movement, and consulted Dr. H. E. Braden on December 23. She complained of neck and back pains, loose teeth and pain in her gums. Dr. Braden found acute cervical and moderately severe thoracic spine sprain with restriction of motion and pain. X-rays were negative for fracture. Dr. Braden’s diagnosis was a moderately severe “classic whiplash” soft tissue injury.

Treatment consisted of physiotherapy, moist heat, muscle relaxants, fiorinal with codeine and aspirin. Mrs. Delery received 31 physiotherapy treatments beginning December 23 until her discharge March 22, 1977 at which time her condition improved and the spasm had subsided.

Dr. Philip Sunseri, plaintiff’s family dentist, testified he examined her two months before the accident and her teeth were in good condition. He saw her one day after the accident and found several cracked, fractured, broken cusps and her mouth was sore with bruises and cuts on her upper lip and inside her mouth. Mrs. Delery required eleven palliative therapy treatments consisting of antibiotics, pain pills and emolient in her gums and cheeks. Dr. Sunseri’s treatment required 30 visits spanning approximately seven months and included four extractions, gold restorations and gold bridges.

There is no testimony which contradicts plaintiff’s evidence regarding her neck and back injuries. However, defendants strongly contest plaintiff’s teeth damage resulted from the accident.

Mrs. Delery testified that prior to the accident she never had a permanent tooth pulled and never experienced dental problems. Dr. Sunseri presented x-rays taken on December 22 to identify the damaged areas, but on cross-examination he admitted one x-ray was missing and that another did not belong to Mrs. Delery.

Defendant called two dental experts who examined the x-rays and stated they showed no evidence of fracture, breaks or cusps missing. Other x-rays taken by Dr. Sunseri in 1970 indicated that two x-rays allegedly taken after the accident may not be of Mrs. Delery’s mouth. Based upon the trauma x-rays one expert stated he saw “no causal relationship between the accident and the work that was placed in the mouth” and that a whiplash injury is not compatible with the alleged mouth damage.

Plaintiff countered with a dental radiology expert who said that “most” of the time oral injuries do not appear on x-ray and x-rays are insufficient to make a diagnosis without examining the patient.

It is clear that Dr. Sunseri’s records caused confusion as to some of his testimony. But there was no evidence which negated plaintiff’s testimony of the trauma or that the dental work was not performed. Defendant’s experts were not the treating dentists and neither one examined the plaintiff — their testimony was limited to a review of Dr. Sunseri’s x-rays (including those possibly not of plaintiff’s mouth).

It would be unfair to penalize this plaintiff for the faulty record keeping of her dentist. We are satisfied that plaintiff had no dental problem prior to this accident and that her painful oral injuries and protracted work resulted from the collision.

We itemize plaintiff’s award as follows:

Injuries:
Neck and back $ 6,000.00
Oral 10,000.00
Medical:
Dr. Henry E. Braden III 525.00
Dr. Philip P. Sunseri 4,275.00
$20,800.00

There was no evidence of automobile damage because the estimator did not testify and the car was not repaired, hence no award.

DECREE

The judgment of the Trial Court is reversed, and IT IS NOW ORDERED that judgment be rendered in favor of Mr. and Mrs. Carl Delery and against Marvin J. Schneider, Owens Country Sausage, Inc., and Employer’s Casualty Company in the amount of $20,800.00, with legal interest from the date of judicial demand, and all costs of these proceedings in both courts.

REVERSED AND RENDERED.

LOBRANO, Judge,

concurring.

I concur with the majority opinion as to the liability of the defendants, Marvin J. Schneider, Owens Country Sausage, Inc., and Employer’s Casualty Company. However, I feel that the award given to plaintiff for her neck and back injuries is low. For a moderately severe whiplash injury that required three months treatment I would award $6,000.00.


author: KLIEBERT, Judge.

text:
    Joseph E. CAIN v. SCHWEGMANN BROTHERS GIANT SUPERMARKETS, INC.
    No. 5-125.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1982.
    Rehearing Denied March 19, 1982.
    Writ Denied April 30, 1982.

      Preston G. Sutherland, Kambur & Sutherland, New Orleans, for plaintiff-appellee.
    William G. Tabb, III, New Orleans, for defendant-appellant.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   KLIEBERT, Judge.

The plaintiff, Joseph E. Cain (hereafter Cain), on March 3, 1978, while in the course and scope of his employment with Schweg-mann Brothers Giant Super Markets, Inc. (hereafter Schwegmann), sustained an injury to his right hand and wrist. Schweg-mann paid Cain workmen’s compensation benefits of $90.04 per week from March 3, 1978 to March 31, 1978. Two weeks after the compensation benefits were terminated, Dr. Iteld, an internist, forwarded to Schwegmann a report stating Cain was unable to return to work. Schwegmann did not recommence compensation payments but made an offer to pay eight additional weeks of benefits. Plaintiff refused the offer.

Cain brought this suit alleging total disability and praying for compensation benefits, plus penalties and attorney fees. Schwegmann filed a general denial. The litigants stipulated into evidence (1) the Fisher-Rabin Medical Center’s final report dated April 14, 1978; (2) the medical report of Dr. Mímeles, an orthopedist, dated March 21, 1978; (3) the report of Dr. James Williams, an orthopedist, dated May 22, 1978; (4) the report of nerve conduction study of Dr. Richard Palmer, neurologist, dated May 30 and May 31, 1978; (5) the deposition of Dr. Bruce Iteld, dated September 3, 1980; (6) the medical report of Dr. John Fisher, psychiatrist, dated June 26, 1978, and (7) the medical report of Dr. Kenneth E. Vogel, neurologist, dated August 29, 1979. Plaintiff was the only witness who testified at the trial.

From the inception of the injury to the time of trial, plaintiff complained of a numbness and tingling in the right hand. The March 21, 1978 report of Dr. Mímeles, orthopedist, said:

“He complained of numbness into the right hand primarily in the media nerve distribution. There were no objective findings and no swelling in and about the right wrist. He did complain of pain on motion; however, the most dramatic complaint was the numbness.”

Dr. Mimeles sent Cain back to Fisher-Rabin for continued therapy but said:

“... I do not anticipate any long range problems ...”

The May 22, 1978, orthopedic report of Dr. James T. Williams concluded with the following opinion:

“Examination of Joseph E. Caines does not reveal any orthopaedic evidence of injury or disability which would explain the patient’s complaints. In view of the complaints of numbness and paresthesia in his hand, I would recommend a neurological consultation to include nerve conduction studies.”

This was done and on May 31, 1978, Dr. Palmer reported:

“. .. He (Cain) complains of numbness and tingling in his first, third, fourth and fifth fingers. This numbness and tingling is also present in the palm, and he has pain radiating up the volar aspect of his forearm.
On physical examination, he had either weakness or splinting of all the muscles of his right hand. There was no atrophy. None of the nerves exhibited Tinel’s sign on percussion. He had generalized numbness to pinprick on his right hand. I performed a nerve conduction study and EMG on May 30, 1978. It was normal. My impression is that Mr. Cain has no nerve damage or any other neurological disease.”

Another neurologist, Dr. Kenneth E. Vogel, examined Cain on August 29, 1979 and reported as follows:

“I do not find evidence of an organic neurologic deficit.”

Dr. Iteld, an internist, and the primary treating physician, first saw Cain on March 24, 1978. With respect to this visit he stated:

“Basically what happened, he had resistance to rotation, extension and flexion. Here again, that is not totally objective. Subjectively we had major problems with the motion of the Wrist, and I thought significant decrease in grip.
In other words, the strength of the wrist. Here again, I am not — you know, there would be no 100 percent foolproof way to know whether that is subjective or objective.”

The trial judge made the following conclusion:

“The Court was fortunate enough to have eyewitnessed the demeanor of the plaintiff as he testified at the trial of this matter. This 21-22 year old male has obvious psychological problems, considering the rambling nature of his testimony and the depiction of auditory and visual hallucinations which he relayed to the Court. Accordingly, the Court sadly, but appropriately, dismisses the testimony of plaintiff and relies exclusively on the record and stipulations therein.
The Court is cognizant of the holdings of other cases which stand for the proposition that ‘one takes the victim as he finds him’. The Court feels, however, that although there were latent psychological problems which were manifesting themselves during plaintiffs employment with Schwegmann, they did not come to the fore until well after the incident at bar.
The Court is, therefore, reluctant to associate the defendant with the plaintiff’s present, obvious inability to maintain gainful employment, said inability being more attributable to mental rather than physical problems which were not job-related. Accordingly, the Court declines to declare Cain totally and permanently disabled because of the on-job trauma.
However, the Court does not intend to minimize the physical ailments that Cain suffers. It is convinced that the young man suffers numbness in his hand, as evidenced by pinpricking testing of the orthopod and neurosurgeon. Accordingly, the Court finds he has sustained a partial disability, which permits the award of compensation benefits as scheduled under LSA-R.S. 23:1221(4)(e). [i.e., 66%% wages during 150 weeks].
The Court finds a genuine dispute existed herein which justified Schwegmann’s termination of workmen’s compensation benefits until judicial determination of entitlement to same was rendered. Accordingly, the Court declines an award of statutory penalties and attorney’s fees, but does award plaintiff the reimbursement of unpaid medical bills introduced into evidence herein.”

We cannot say the trial judge committed manifest error in his findings of fact in his rulings. Accordingly, his judgment is affirmed. All costs to be borne by the defendant.

AFFIRMED.


text:
    Curtis E. BARRIOS v. RHEEM MANUFACTURING COMPANY and the Home Insurance Company, a/k/a The Home Indemnity Company.
    No. 5-146.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1982.
    Rehearing Denied March 19, 1982.

      Daniel E. Becnel, Jr., The Law Offices of Daniel E. Becnel, Jr., Reserve, for plaintiff-appellee.
    Frank J. Achary, Metairie, for defendants-appellants.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   KLIEBERT, Judge.

The plaintiff, Curtis E. Barrios (hereafter Barrios), was employed by Rheems Manufacturing Company (hereafter Rheems), as a press operator for 30 years. On May 20, 1980, Barrios was operating the press when a rod broke, resulting in the press crushing Barrios’ right hand. At the time of the injury, Barrios was 60 years of age, had a ninth grade education and had no other skills or specialized training other than being a janitor.

On August 8,1980, the plaintiff filed suit against Rheems and its insurance carrier, The Home Indemnity Company (hereafter Home), claiming total disability compensation benefits plus penalties and attorney fees. Rheems and Home filed an answer admitting the employment and the injury but denying all other allegations of the petition.

Trial on the merits was had on April 10, 1981. At commencement of the trial, the parties stipulated that “medicals paid to date is $7,495.88; that compensation paid to date is $5,497.14.” Payments were made by Home. The plaintiff testified in person. Dr. Morris Fisher, the treating physician’s deposition dated January 7, 1981 was submitted in evidence by stipulation. The only other witness was Fadious Foret, a supervisory employee of Rheems and a friend of Barrios.

Barrios testified that he was naturally right handed, was hospitalized for about three weeks and had attempted to return to work for the first time on November 26, 1980. He worked for about three months and then decided to leave (he stopped going to work three or four weeks before the trial) with the idea of taking five weeks of vacation and then retiring because he could not perform the work he was assigned to do without pain. Barrios stopped working after he was involved in an automobile accident in March, 1981. He sustained rib injuries in the accident and obtained medical treatment for the injuries. Barrios denies receiving any instructions from his doctor relative to the continuation of work after sustaining the rib injuries. He also testified that before the injury he had planned on retiring at 62 or 65, depending on how he felt. Barrios had worked for Rheems for thirty years and prior thereto had been a clerk in a grocery store and had worked at cleaning business machines. During the period Barrios returned to work, he would tape his fingers with bandaids. Nevertheless, blood blisters would form on the “nubs” of the amputated fingers.

Mr. Fadious Foret, an employee of Rheems and a personal friend of Barrios, testified that when Barrios returned to work, he assigned him to all types of work, except the operation of the heavy press on which he was injured, and instructed Barrios to inform him if he could not perform the work. At no time did he receive a complaint from Barrios about his ability to perform the assigned work. He stated, however, that Barrios had talked to Rheem about stopping work and retiring before he was injured in the automobile accident.

Dr. Fisher had last seen Barrios on December 20, 1980. When first seen by him, Barrios had “severe tissue destruction on the second and third fingers of the right hand and a crushed fracture of the distal end of the right thumb.” He amputated the second and third fingers and repaired the remainder of the hand. Dr. Fisher described the injuries when he last saw Barrios as follows:

“He had limited motion in the right thumb, which had a fracture when he originally got injured. The amputated fingers, the second and third fingers, were healing satisfactorily. They were still tender and still swollen. So he was having pain in the three fingers he had injured. In the other two fingers there was limited extreme motion of the fingers due to some swelling of the fingers, which I’m sure was just a reaction to the healing from the injury he sustained.”

He testified that Barrios was not on pain medication at the time of his last visit and that he considered Barrios’ anatomical disability as:

“... he has loss of the two fingers and right now I would estimate 35% permanent disability of that right hand.”

As to Barrios’ functional disability, Dr. Fisher believed that he would never be able to lift heavy objects with his right hand, but in time would be in a position to lift light objects, but could never return to operating the press he was working on at the time of the injury.

The trial judge concluded Barrios was totally disabled and awarded compensation benefits as such, together with penalties and attorney fees. The defendants have appealed. In brief here, they do not contest the trial judge’s ruling of total disability but strenuously argue that penalties and attorney fees should not have been awarded, or alternatively, the $5,000.00 award for attorney fees is excessive.

The disability benefit provisions of the workmen’s compensation statute, i.e., R.S. 23:1221(2) read as follows: and R.S. 22:658 is the authority for assessing penalties and attorney fees against the insurer, where the insurer discontinues the payment of compensation benefits, and such failure is found to be arbitrary, capricious and without probable cause.

“Compensation shall be paid under this Chapter in accordance with the following schedule of payments:
(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, 66 and % percen-tum of wages during the period of such disability.”

The crucial question here was whether Barrios’ impairment disabled him from “engaging in any gainful occupation for wages” within the meaning of R.S. 23:1221(2). As observed by the trial judge in his reasons for judgment, since the supreme court decision in Oster v. Wetzel Printing Inc., 390 So.2d 1318 (La.1980), the answer to the question is to be determined by application of the “odd-lot” doctrine.

Justice Dennis, in the Oster case, supra, at page 1323 and page 1324 stated the criteria for application of the “odd-lot” doctrine as follows:

“In order to determine whether the plaintiff fits within this category of odd-lot workers, he must show that because of his physical impairment, mental capacity, education, training, age, availability of employment in his area, and any other relevant factor, that he “cannot perform the substantial and material parts of some gainful work or occupation with reasonable continuity.” Reese v. Preston Marketing Assoc., 274 Minn. 150, 142 N.W.2d 721, 723 (1966). If the plaintiff is successful in showing a combination of factors 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, he has presented a prima facie case for classification in the odd-lot category. An offering of such proof by the plaintiff, therefore, satisfies his burden of proving that he should be awarded benefits for permanent and total disability. The defendant employer then has the onus of showing that there are jobs which are available to provide a steady income to the plaintiff or that will provide him with “a gainful occupation.” It is fairer to place the burden on the defendant to show that there are steady jobs available to the plaintiff, after plaintiff has shown his odd-lot status, than to require the plaintiff to prove the universal negative of not being employable at any occupation. Brown v. Safeway Stores [82 N.M. 424], 483 P.2d 305, 308 (N.M.App.1971); Lyons v. Industrial Special Indem. Fund, 98 Idaho 403, 565 P.2d 1360, 1363 (1977); Larson, supra, § 57.61 at pp. 10-136-137. This apportionment of the burden of proof is equitable in our jurisdiction for the additional reason that the Louisiana statutory scheme does not include any effort to rehabilitate the injured worker. Thus, for all the reasons stated above and because we consider the doctrine to be consistent with the underlying policy and purpose of our workers’ compensation statute, and essential to its interpretation in accordance with the compensation principle, we conclude that the odd-lot doctrine should be employed as the guiding concept in determining permanent total disability.”

In Oster, supra, Mrs. Oster, the plaintiff, was 61 years of age, had no formal education other than one year of junior high, her previous employment had been limited to manual labor, she was right handed and her injuries to her right hand consisted of the amputation of parts of her index and middle fingers with a severe crushing of her ring finger, leaving it partially disabled. According to the medical testimony, Mrs. Oster still suffered from hypersensitivity because of the injuries to her fingers. Additionally, according to the unrebutted testimony of her psychiatrist, she was suffering from the psychoneurotic reaction to her injury and her ability to return to gainful employment was zero. Under those facts, Justice Dennis at page 1324 said:

“. .. The evidence shows that, because of her severely injured hand, her neurosis, her lack of education and her age, she 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.”

and, therefore, concluded Mrs. Oster was totally and permanently disabled.

In the present case, Mr. Barrios’ age, his lack of formal education and the injuries to his right hand were similar to those sustained by Mrs. Oster. However, here, unlike Oster, the plaintiff had returned to work on his own, was in fact performing work similar to that performed when injured and there is no evidence or indication that plaintiff had developed a neurosis from the hypersensitivity of the fingers. Instead, there is medical evidence that there was no neurosis from the amputation or injury. Additionally, here, there is a factual dispute as to whether Barrios had left the employment three or four weeks before the accident because he could no longer perform the work without pain or whether he left work because of injuries sustained in an automobile accident. Also, the medical testimony here indicates that Barrios was still under treatment and at the time of the doctor’s last examination, in December, 1980, the hand was still in the healing process, thus raising the question as to whether Barrios could perform the work he was performing without pain after the hand had completely healed.

The trial judge, following the cri-terias enunciated in the Oster case, supra, and Lattin v. Hica Corp. 395 So.2d 690 (La.1981), resolved the disputed issues in favor of the plaintiff by finding him totally and permanently disabled. We cannot say he committed manifest error in this holding. However, we believe he erred in assessing penalties and attorney fees. Although the trial judge gave valid and ample reasons for finding the plaintiff was totally and permanently disabled, he gave no reasons for determining that the defendant acted “arbitrary, capricious or without probable cause” in terminating the compensation benefits when Barrios returned to work.

Barrios was not discharged by his treating physician nor was he advised to return to work by his doctor. He returned to work on his own and performed the work assigned to him to the full satisfaction of his employer. After he sustained injuries in an automobile accident, he stopped working. Although the record is unclear, it appears that at the time of trial Barrios was actually on a five week vacation preparatory to going on retirement. Therefore, from the time of the injury to the time of trial Barrios received compensation benefits when he was off of work and his regular salary while at work, except at most for a three or four week period immediately before trial and even as to those three or four weeks, he apparently received vacation pay.

There is no evidence indicating that the defendant acted arbitrarily, capriciously or without probable cause when it terminated compensation benefits when the plaintiff returned to work. When Barrios returned to work and performed the work assigned satisfactorily, the defendant was justified in terminating the compensation payments because Barrios was then engaged “in a gainful occupation for wages similar to that engaged in when injured”. Barrios, therefore, had the burden of proving that he was able to perform this work only under pain. The defendant was not arbitrary or capricious in making the decision to defend, where Barrios had actually performed the work for three months and did not stop performing the work until he was involved in an automobile accident three or four weeks before trial and the only medical evidence indicated that Barrios’ work related injuries were still in the process of healing. Employers or their insurers are not to be penalized for taking their case to court for judicial resolution of a close factual question. Thompson v. Natchitoches Parish Hospital Service District, 335 So.2d 81 (3rd Cir. 1976).

Accordingly, the trial court judgment is affirmed insofar as it awarded total and permanent workmen’s compensation benefits, medical payments and expert witness fees. The judgment awarding penalties and attorney fees is reversed and set aside. All costs of this appeal are assessed to the defendants.

AFFIRMED IN PART, REVERSED IN PART.

      . Plaintiff in brief stated that the compensation payments were terminated on November 27, 1980. The trial judge also stated in his reasons for judgment that compensation benefits were paid to November 27, 1980.