author: CULPEPPER, Judge. SWIFT, Judge,

text:
    Neva Lacour LEMOINE, Plaintiff and Appellee, v. MARKSVILLE INDUSTRIES, INC. and Insurance Company of North America, Defendants and Appellants.
    No. 7876.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1980.
    Rehearing Denied Jan. 2, 1981.

      Provosty, Sadler & deLaunay, David P. Spence, Alexandria, for defendants-appellants.
    Ben C. Bennett, Jr., Marksville, for plaintiff-appellee.
    Before CULPEPPER, CUTRER and SWIFT, JJ.
   CULPEPPER, Judge.

This is a workmen’s compensation case. Plaintiff allegedly sustained two accidents, .he first a back injury in November of 1978 and the second a fracture in the shoulder joint in July of 1979. The trial judge found plaintiff totally and permanently disabled as a result of the two accidents, but he denied penalties and attorney’s fees. Defendants appealed. Plaintiff has not appealed nor answered the appeal.

The substantial issues are: (1) Was the back injury caused by a work-related accident? (2) If so, does plaintiff have any disability residual to the back injury? (3) Is plaintiff totally and permanently disabled, or is she only partially disabled?

The evidence shows that plaintiff, a 47-year-old widow, was employed as a pants presser by Marksville Industries, Inc., a garment manufacturer. Stacks of pants were delivered to her station on a platform cart and placed to her right. She took each pair of pants from the cart, pressed them on the machine in front of her and then turned to her left and hung them up on a rack. She performed this procedure approximately 960 times a day. She was paid 2.326 cents per pair of pants pressed, and earned $127 to $132 per week.

After about one year on this job, Mrs. Lemoine began experiencing pains in the lower part of her back and radiating down her left leg. The pain started in October of 1978 and became progressively worse. She testified that on November 2, 1978 she “couldn’t stand anymore,” so she asked her supervisor for permission to go home. However, on the supervisor’s request she completed that day’s work. On the next day, she finished work at 11:30 A.M. and went to see Dr. Bryan McCann. He diagnosed tendinitis and arthritis of the lower back and prescribed medication for pain.

The pain persisted. Plaintiff did not return to work. She went to see Dr. Carl S. Jory, a general practitioner of Bunkie. He placed her in a hospital in traction for several days. She returned home but still had back and leg pains.

She next went to Dr. Daniel Kingsley, an orthopedic surgeon in Alexandria. He performed a myelogram which was inconclusive as to disc pathology.

On December 18, 1978, plaintiff was examined by Dr. Babson Fresh, a neurosurgeon of Alexandria, who diagnosed a herniated disc in the mid-back region. A few days later, Dr. Fresh performed a partial removal of the disc at the L-5, S-l level. Dr. Fresh testified plaintiff had a good result from the surgery. On May 2, 1979, he discharged her for return to work. He did not, see her after that date.

Plaintiff returned to her same job as a pants presser on or about June 6, 1979. She testified she was able to do the work but at night when she got home she had pain in her lower back and left leg. Nevertheless, she continued to work because she was a widow and needed the wages. She had received no workmen’s compensation benefits to that time.

On July 16, 1979, while at work, she tripped over a pallet and hurt her shoulder. She went to Dr. Edmund J. Kalifey, a general practitioner of Marksville, who diagnosed a fracture of the upper part of the left humerus, in the shoulder joint. Dr. Kalifey placed her left arm in an immobilizer to allow the fracture to heal. After about one month, he advised she start exercising by moving her fingers and wrist and gently moving her arm outward. With increased exercised, her progress was good until about November 2,1979 when she had a gallbladder attack, kidney trouble and phlebitis and stopped her exercises. These conditions were treated, and on November 15, 1979 Dr. Kalifey found her shoulder motions were improving and recommended she try to return to work.

Plaintiff testified she did not think she could return to her job as a pants presser, so she called the plant and told them she could not return to that job. She says she could not lift her left arm up above 45 degrees and could not turn the arm toward her back, so she could not hang the clothes up. Also, she says she was still having pain in her back radiating down her left leg.

After Dr. Kalifey discharged her in November of 1979, plaintiff tried to work in a pizza hut as a cook and dishwasher. She testified the sinks were very low and she is tall, and the bending required by the dish-washing and cooking hurt her back and also her shoulder. She worked at this job only eight days.

Plaintiff also testified she is a licensed beautician, but she did not try to re-enter that trade because of the limited motion .of her arm and shoulder.

Also, she testified there may be certain jobs at the garment factory which she could perform, such as inspector, but that she did not apply for any positions of that type.

When defendants received notice of the shoulder injury, workmen’s compensation payments were initiated and were paid from July of 1979 through November of 1979, which latter date was when Dr. Kali-fey recommended she return to work. This suit was filed on December 31, 1979.

On February 6, 1980, plaintiff was examined, on request of her attorney, by Dr. Francis C. McMains, an orthopedic surgeon of Baton Rouge. He testified the left shoulder had become frozen due to a prolonged period of immobilization of the arm and failure to exercise it. He recommended an intensive physical therapy program to attempt to stretch and strengthen the tendons and muscles. It was Dr. McMain’s estimate that plaintiff had 20 to 25% partial disability of the shoulder at the time of his examination, based on her inability to raise her left arm above about 45 degrees or to internally rotate it fully without substantial pain. Dr. McMain would not speculate as to whether, or the the degree to which and intensive physical therapy program would reduce her disability. He said he thought it would improve, but he could not be certain. On receiving Dr. McMain’s report, defendants reinstated workmen’s compensation benefits from the date of the shoulder injury on July 16, 1979, and they were still paying benefits at the time of trial.

At the time of trial on February 26,1980, plaintiff was not working. She had not worked since the eight days she worked at the pizza hut in November or December of 1979.

In his written reasons, the district judge concluded the back injury was work-related, and that plaintiff is permanently and totally disabled as a result of both the back injury and the shoulder injury. The judgment appealed orders the payment of weekly benefits in the sum of $77.32 beginning November 3, 1978 and continuing during disability.

WAS BACK INJURY WORK-RELATED?

The first issue is whether the back injury resulted from a work-related accident. Defendants contend that since the herniated disc developed gradually, rather than suddenly, there was no accident within the meaning of LSA-R.S. 23:1021(1) which provides:

“(1) ‘Accident’ means an unexpected or unforeseen event happening suddenly or violently, with or without human fault and producing at the time objective symptoms of an injury.”

Malone and Johnson, Workers’ Compensation, 2nd Ed., Sections 213-216 discusses generally the development of Louisiana jurisprudence construing the above quoted statutory provisions. The most recent Supreme Court case we find dealing with the particular question at issue here is Chism v. Kaiser Aluminum and Chemical Corporation, 332 So.2d 784 (La.1976). In that case plaintiff performed heavy manual labor at defendant’s plant for several years. He stepped in a hole and sought medical treatment for back pain at the company first-aid station. About three months later, he again suffered pain while at work and sought treatment at the first-aid station. Four months later, he again experienced pain on the job and went to the first-aid station, where he was referred to the company physician. Finally, after several days of going to work and reporting to the first-aid station, the pain became so severe that he was hospitalized. A herniated disc was diagnosed and surgery ensued. The court held:

“It is true that the record does not establish which of the several occupational incidents finally ruptured the disc. We find that it does establish, however, that one or more of the accidents on the job aggravated plaintiff’s back condition to the extent that he became disabled. Thus, under the jurisprudence, the plaintiff has discharged his burden of proof.”

See also Byrer v. Southern Baptist Hospital, Inc., 350 So.2d 1233 (La.App. 4th Cir. 1977); Satterwhite v. Zurich Insurance Company, 199 So.2d 429 (La.App. 1st Cir. 1967); York v. E. I. Dupont de Nemours & Company, 37 So.2d 68 (La.App. 1st Cir. 1948); and Romero v. Otis International, 343 So.2d 405 (La. App. 3rd Cir. 1977).

Applying these jurisprudential rules to the present case, plaintiff has sustained her burden of proving a work-related accident causing back injury. Although the evidence does not show what specific incident caused her first back pain, or which incident finally herniated the disc, the evidence clearly shows the numerous rapid twisting and turning movements required by her duties aggravated plaintiff’s existing back condition, whatever its origin, to the extent that she finally became disabled. Clearly, the trial judge was not manifestly erroneous in his factual conclusion that plaintiff proved a job-related accident caused the herniated disc.

DOES PLAINTIFF HAVE DISABILITY RESIDUAL TO THE BACK INJURY?

The next question is whether plaintiff proved that at the time of trial she had disability residual to the back injury. Defendant makes a respectable argument that following the disc surgery Dr. Fresh discharged plaintiff for return to work as a pants presser, that she actually returned to this work and performed it for about one month until she fractured her shoulder, that she never complained of her back pain to Dr. Kalifey, who treated her for her shoulder, and that she only mentioned to Dr. McMains that she had had a compensable back injury and underwent surgery in 1978. Thus, it appears that after plaintiff returned to work following the disc surgery, she did not seek further medical treatment for her back and did not complain to any physician about her back.

On the other hand, plaintiff testified that when she returned to work as a pants presser, following the disc surgery, she was able to do the work but in pain, and that when she went home at night she had pain in her back and her left leg. Her daughter, who lives with her, testified as to plaintiff’s pain in her back and leg at night after working. As stated above, plaintiff also testified that when she tried to work in the pizza hut, following the shoulder injury, she had to quit after eight days because of the combination of arm and shoulder pain and also pain in her back from bending over a low sink washing dishes. Furthermore, plaintiff testified at trial that the pain in her back and leg continued and still existed.

Plaintiff also relies on the testimony of Dr. Fresh that even though he discharged her to return to work following the disc surgery it would be “possible” that activity could cause pain in her mid-back and her left leg. However, since Dr. Fresh did not see plaintiff again after he discharged her in May of 1979, he could express no opinion as to whether the back and leg pain reoccurred.

As indicated from the above brief discussion of the evidence, there is a close factual question as to whether at the time of trial plaintiff had any disability residual to the back injury. Under the circumstances, we defer to the rule of appellate review that the finding of fact by the trial judge will not be disturbed unless he is manifestly erroneous or clearly wrong.

Defendants incorporated in their answer a plea that Mrs. Lemoine’s claim for benefits arising out of her back injury was prescribed by the lapse of one year from the date of the alleged accident until the date of filing suit. However, defendants concede that should we find, as we have, that plaintiff’s disability is caused by the combination of her back and shoulder injuries, the back injury can be considered in assessing her disability.

IS PLAINTIFF TOTALLY OR ONLY PARTIALLY DISABLED?

The next issue is whether plaintiff is totally or only partially disabled. Only one week before this case was argued in our court, the Supreme Court rendered its decision in Dusang v. Henry C. Beck Builders, et al., 389 So.2d 367 (La.1980). That court, for the first time, answered several questions which have arisen as to the new definitions of total disability, as distinguished from partial disability, contained in LSA-R.S. 23:1221 as amended in 1975.

The facts in Dusang were that plaintiff was employed as an iron worker and a welder when he slipped and fell, injuring his right shoulder and wrist. He returned to work as a welder, but continued to have pain. The pain interferred with his overhead work and heavy lifting. Nevertheless, he performed all the duties his job required, except for the heaviest. In the following portion of its decision, the Supreme Court stated the new “odd lot” doctrine, but then concluded Mr. Dusang did not fall into the “odd lot” category and was not totally disabled:

“Malone and Johnson have recommended that Louisiana courts adopt the ‘odd lot’ doctrine in interpreting the new total disability provision. Under this doctrine a claimant is considered totally disabled if his injury makes him an ‘odd lot’ in the labor market-in other words, if he can hold various jobs periodically, but the kind of work he can do is so limited that a reasonably stable market for it does not exist. An ‘odd lot’ claimant need not be absolutely helpless to qualify for total disability status. If the claimant can prove that his physical condition, his mental capacity, his education, training, age or other factors combine to place him at a substantial disadvantage in the competitive labor market, he has made out a prima facie case for classification in the ‘odd lot’ category. The employer or insurer must then show that some form of suitable work is regularly and continuously available to the claimant in the area where he resides. (Emphasis supplied)
* * * # * *
“In this case, even though we agree with the trial court and the Court of Appeal that Mr. Dusang works in substantial pain, he is not totally disabled. Except for the six weeks following his termination at Beck, Mr. Dusang has worked steadily following his injury. The pain has not been so disabling as to require him to be hospitalized or to miss work. While his co-workers testified that they needed to help him with heavy lifting following the accident, his foreman at Beck testified that he never had to substitute any employee for Mr. Dusang because of his inability to do the work. Mr. Dusang has been able to find work as a welder out of the electrician’s hall, and there is no clear evidence that he will not be able to find work in the future. At the time of trial he was earning more than he earned before his accident; the partial disability status will protect him in the future.”

Applying the above stated rules to the present case, the first question is whether plaintiff has made out a prima facie case that she is in the “odd lot” category. We conclude she has. We have found above that as a result of the back injury plaintiff still has pain in her mid-back and left leg which disables her from many activities such as bending, twisting or turning without substantial pain. In addition, the shoulder injury resulted in her not being able to raise her left arm above 45 degrees or rotate it internally toward the back without substantial pain. Clearly, plaintiff cannot return to work such as that of a pants presser, which she was performing at the times of the accidents. Furthermore, plaintiff made out a prima facie case that she cannot return to employments such as a cook or dishwasher in a pizza hut or as a beautician. Also, unlike the plaintiff in Dusang, Mrs. Lemoine has not worked after her shoulder injury, except for the eight days which she tried to perform the duties of a cook and dishwasher at a pizza hut and was unable to do so.

Having concluded plaintiff made out a prima facie case that she is an “odd lot” employee, the next question is whether the defendants have shown that some form of suitable work is regularly and continuously available to the claimant in the area where she resides. Although counsel did not have the benefit of the Dusang decision when this case was tried, the defense did make some effort to show that plaintiff could perform some types of work for wages. They point to the testimony by plaintiff that there may be jobs at the garment factory which she could perform, such as inspector, but that she had not applied for any positions of that type. They also argue that under the testimony of Dr. Kalifey and of Dr. McMain, the disability resulting from the shoulder injury is only a limitation in raising the left arm above 45 degrees or rotating it internally toward her back. These two physicians stated plaintiff should be able to perform work which did not require use of the left arm beyond these limitations. However, in answer to this latter argument regarding the testimony of Dr. Kalifey and of Dr. McMain, we note these two physicians considered only disability related to the shoulder injury and not to the back injury.

Although this also is a close factual question, we do not find the trial judge was manifestly erroneous or clearly wrong in concluding plaintiff is totally disabled.

Of course, if plaintiff returns to regular work which would remove her from the “odd lot” category, or if other evidence develops that plaintiff’s incapacity has diminished, defendants can seek judicial review at any time six months after the rendition of the judgment, under the provisions of LSA-R.S. 23:1331.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the defendants-appellants.

AFFIRMED.

SWIFT, J., dissents with written reasons.

SWIFT, Judge,

dissenting.

The Supreme Court of Louisiana has indicated in Dusang v. Henry C. Beck Builders, 389 So.2d 367 (La.1980), that it intends to apply the “odd lot” doctrine in a proper case. Nevertheless, I must dissent from the majority’s application of such rule in present suit, because I consider it to be a complete disregard, not just of the intent, but the clear express language of the 1975 amendment to our workmen’s compensation act.

Total disability, either temporary or permanent, is defined in LSA-R.S. 23:1221(1) and (2) as the inability of an employee “to engage in any gainful occupation for wages” regardless of whether the job is the same or similar to that which he was doing when injured and “whether or not” it is “an occupation for which the employee ... was particularly fitted by reason of education, training, and experience...” In other words, if the injured employee can perform the duties of any gainful occupation, he is not totally disabled no matter what he is particularly fitted to do by training, education or experience.

Contrary to this clear and unmistakable legislative language, the “odd lot” doctrine calls for a consideration of the injured employee’s job qualifications by education, training and experience in determining whether or not he is totally disabled. Therefore, I do not think the rule can be applied in making such a determination under our present work men’s compensation statutes.

I have always believed that, subject to constitutional limitations, laws are to be made and changed by our legislative bodies, not the courts. Otherwise, the people are deprived of their right to make the laws by which they are governed and this bulwark of freedom is eroded.

For the foregoing reasons, I respectfully dissent.


source: Caselaw Access Project

author: DOMENGEAUX, Judge.

license: Public Domain

text:
    Michael M. WAHLDER, Plaintiff-Appellant, v. TIGER STOP, INC., Defendant-Appellee.
    No. 7883.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1980.
    Rehearing Denied Jan. 2, 1981.
    Garrett, Ryland & Nunnally, B. Dexter Ryland, Alexandria, for plaintiff-appellant.
    Davis & Murchison, H. Dillon Murchison, Alexandria, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and STOKER, JJ.
   DOMENGEAUX, Judge.

By these proceedings, plaintiff, Michael M. Wahlder, is attempting to evict defendant from a lot and building in Rapides Parish owned by plaintiff. Defendant, Tiger Stop, Inc., is the corporate lessee of the lot and building. At trial the court held that defendant had successfully renewed the lease and dismissed the eviction suit. Plaintiff appeals.

FACTS

On October 23, 1978, plaintiff leased to Thomas L. Wansley the lot and building referred to above which was known locally as Tiger Stop, a convenience store. The primary term of the lease began November 1, 1978, and expired one year later on November 1, 1979. Wansley was given the right to extend the lease one year at a time for up to seven years (through November 1, 1986), provided he notify plaintiff in writing of his desire to exercise an option at least two months prior to the end of the primary term and each option period.

Between October 23rd and November 1, 1978, Wansley and others purchased the corporation, Tiger Stop, Inc., from plaintiff. At plaintiff’s suggestion, and with his written consent, Wansley assigned the lease to Tiger Stop, Inc. on November 30, 1978, and also accepted the assignment on behalf of the corporation.

On August 22, 1979, Wansley became the sole stockholder of Tiger Stop, Inc., by buying out his partner, Charles Griffin.

On October 22, 1979 (ten days before the primary term expired), Wansley suddenly remembered that he had to actively extend the lease to remain at the leased premises. His attorney, David Smith, informed him that the extension deadline, September 1, had long passed. Wansley telephoned plaintiff, explained to him that he had forgotten about the written notice requirement, and informed plaintiff that he desired to extend the lease for one year. The trial court found that plaintiff orally agreed to extend the lease, thus waiving the sixty day written notice requirement.

Wansley signed two letters drafted and dated October 22, 1979, addressed to plaintiff, which acknowledged their oral agreement to extend the lease for a one-year period and which served as written notice of Wansley’s intention to extend the lease, as per the telephone conversation. These letters were mailed to plaintiff. Later that day or the next, however, plaintiff contacted Wansley by telephone and attempted to rescind his earlier verbal agreement to extend the lease period. He also instructed Wansley to vacate the premises upon the expiration date of the lease. Wansley refused to abandon the premises so plaintiff began sending eviction notices to Wansley.

Since Wansley continued to occupy the premises past November 1, 1979, plaintiff initiated eviction proceedings against Wans-ley in the City Court of Alexandria. That suit was decided in Wansley’s favor. Plaintiff appealed to the District Court and requested a trial de novo. Plaintiff then initiated a second suit at the District Court level against Tiger Stop, Inc. By agreement the two cases were consolidated for hearing. During the course of the hearing, on March 17, 1980, plaintiff voluntarily dismissed, with prejudice, his suit against Wansley, and continued only the eviction proceeding against Tiger Stop, Inc.

The District Court held that the oral agreement of October 22,1979, and the two letters written in connection therewith, which were dated the same day and were signed by Wansley, constituted an effective exercise of the extension option.

Plaintiff argues that the trial court erred in the following respects:

(1) in confusing defendant Tiger Stop, Inc. with Thomas L. Wansley;

(2) in holding that Wansley could exercise the option on behalf of the defendant;

(3) in holding that the option had in fact been exercised;

(4) in allowing parol evidence to be admitted to show the verbal exercise of an option which, under the terms and conditions of the lease, had to be exercised in writing by registered or certified mail in a specific manner and within a specific time.

ASSIGNMENT OF ERROR NO. 1

For months, this litigation proceeded with Wansley as the only defendant. All parties had forgotten, until shortly before trial, that an assignment of the lease had been made to Tiger Stop, Inc. Thus, when the assignment was “discovered” plaintiff sued to evict Tiger Stop, Inc., the true lessee. Wansley was a defendant until after the hearing had begun. After the suit against him was dismissed, he testified on behalf of Tiger Stop, Inc. and probably appeared on behalf of Tiger Stop, Inc., in a representative capacity since he was the only shareholder. It is understandable, then, why the trial court’s opinion referred to the defendant as “he” rather than “it”, and referred to Wansley as the defendant. Despite this confusion of Wansley with the real defendant, Tiger Stop, Inc., in the court’s opinion, however, the signed judgment clearly was rendered in favor of Tiger Stop, Inc.-and not Wansley. The confusion of Wansley with Tiger Stop, Inc., was of no consequence. Therefore, we find plaintiff’s Assignment of Error No. 1 to be without merit.

ASSIGNMENT OF ERROR NO. 2

Could Wansley exercise the option on behalf of Tiger Stop, Inc.? We think he could. A corporation can act only through its officers, directors, employees, or agents. When Wansley called plaintiff with an offer to extend the lease he could be acting on none but the corporation’s behalf, since he had earlier assigned all his interest in the lease to the corporation. When plaintiff accepted this verbal offer, he must have known that it was for the benefit of Tiger Stop, Inc., because he consented to and signed the assignment of the lease from Wansley to Tiger Stop, Inc. He also observed Wansley accept the assignment on behalf of Tiger Stop, Inc. Thus, with respect to plaintiff, Wansley was clothed with apparent authority to act for the corporation. Lilliedahl & Mitchel, Inc. v. Avoyelles Trust and Savings Bank, 352 So.2d 781 (La.App. 3rd Cir. 1977).

Nothing in the record suggests that Wansley’s apparent authority was revoked. In fact, certain testimony indicates that plaintiff may have known that Wansley was the sole shareholder of Tiger Stop, Inc. In any event, plaintiff must have known that Wansley renewed the lease for the benefit of the corporation because Tiger Stop, Inc. issued rental checks to plaintiff for the months of November and December, 1979 (after the primary term had expired) in the amounts of $1,200.00 each. (We note, parenthetically, that the checks were signed by Wansley’s wife.)

In light of the above facts, we find that plaintiff had ample reason to believe Wans-ley was acting on behalf of Tiger Stop, and not for himself personally; he will not be heard to complain that Wansley did not say he was acting on behalf of the corporation or that Wansley did not sign the October 22,1978 letters as agent for Tiger Stop, Inc.

ASSIGNMENT OF ERROR NOS. 3 AND 4

We consider these issues together because a determination of whether the option to extend the lease had been exercised (Assignment of Error No. 3) depends upon whether parol evidence is admissible to prove a verbal exercise of the option (Assignment of Error No. 4).

It is a well-settled principle of our law that a written contract may be modified, abrogated or revoked by a subsequent oral agreement if the original contract is not one required by law to be in writing. Salley v. Louviere, 183 La. 92, 162 So. 811 (1935); Mott v. Phillips, 372 So.2d 223 (La.App. 3rd Cir. 1979); Hornsby v. Ray, 327 So.2d 146 (La.App. 3rd Cir. 1976); Grossie v. Lafayette Construction Co., Inc., 306 So.2d 453 (La.App. 3rd Cir. 1975); W. R. Aldrich & Company v. Spalitta, 285 So.2d 835 (La.App. 1st Cir. 1973); Christ v. Christ, 251 So.2d 197 (La.App. 3rd Cir. 1971).

A contract of lease is not required by law to be in writing. La.C.C. art. 2683. Therefore, parol evidence is admissible to prove the written lease was modified by a subsequent oral agreement between the parties. This is true even though the written contract provides that modifications must be agreed to in writing to have validity. Grossie v. Lafayette Construction Co., Inc., supra.

In the instant case, the written lease provided that lessor (plaintiff) be given written notice at least sixty days prior to the expiration of the primary term if lessee wished to extend the lease for an extra year. However, defendant (lessee) called plaintiff ten days before the primary term expired and expressed a desire to renew the lease. Plaintiff argues he did not orally consent to the extension. However, the record contains sufficient evidence indicating that plaintiff did consent to the extension and the trial court so found. Its determination of that factual question against plaintiff is not manifestly erroneous and will not be upset.

Once the lease was modified or altered by subsequent parol agreement, renewing the lease through November 1, 1979, that part of the written lease requiring sixty day written notice was effectively waived or abrogated with respect to the first option period. Salley v. Louviere, supra. Thus, the parties remain bound under all the terms of the original lease, with the exception that the first option was renewed orally. Unless the parties express a different intent, all future options (second through seventh) must be exercised in the manner prescribed by the original lease.

For the above and foregoing reasons the judgment of the District Court is affirmed. All costs are assessed against plaintiff, Michael M. Wahlder.

AFFIRMED.

      . Tiger Stop, Inc. had previously been formed by plaintiff and was doing business at the location leased by Wansley. Rather than form a new corporation, Wansley simply decided to purchase the existing corporation from plaintiff.

      . Plaintiff’s first suit was against Wansley only. When he remembered that the lease had been assigned he sued the assignee, Tiger Stop, Inc., believing it to be the proper party defendant.

      . The lease herein provided “No changes, modifications or amendments to this contract shall be of any validity unless in writing and signed by parties hereto.” However, admissible parol evidence demonstrated, as we hereinafter discuss, that the parties mutually agreed, by oral consent, to extend the lease, despite the above clause to the contrary.


author: FORET, Judge.

text:
    Keith MARKS, Plaintiff-Appellant, v. Delores SINGLETON et al., Defendants-Appellees.
    No. 7896.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1980.
    Rehearing Denied Jan. 2, 1981.

      Morrow & Morrow, Patrick C. Morrow, Opelousas, for plaintiff-appellant.
    McBride & Brewster, Norman P. Foret, Lafayette, for defendants-appellees.
    Before FORET, DOUCET and LA-BORDE, JJ.
   FORET, Judge.

Keith Marks, plaintiff, seeks to recover damages for personal injuries sustained by him as a result of an automobile-pedestrian collision. State Farm Mutual Automobile Insurance Company (State Farm) is the uninsured motorist insurer of the plaintiff’s mother, and is the only remaining defendant.

This action was tried before a jury on September 27, 1979, which returned a verdict in favor of the defendant. The trial court rendered judgment pursuant to that verdict and plaintiff has appealed.

The two issues raised by plaintiff (appellant) on appeal are:

(1) Whether the trial court erred in refusing to strike defendant’s demand for a jury trial, and
(2) Whether the finding in favor of the defendant by the jury was contrary to the law and evidence.

JURY TRIAL

State Farm (appellee) filed an amended and supplemental answer and third party demand on September 4, 1979, in which it requested a trial by jury. The appellant filed a motion to strike that request on the ground that it was untimely. The trial court granted appellee’s request and denied appellant’s motion. Appellant assigns error on the denial of its motion to strike.

Appellant alleges that appellee raised no new issues in its amended answer since all that was added was an additional allegation of contributory negligence on the part of appellant and the request for a jury trial. Appellant argues that, as contributory negligence is no defense to an action like the one before us, there was no new issue presented by the amended pleading; therefore appellee’s request should have been barred by the time limitations of LSA-C. C.P. Article 1732.

We find plaintiff’s assignment of error to be without merit. The minutes of court reveal the following entry made on September 10, 1979:

“MINUTES OF COURT
September 10. 1979
This matter was previously set for this date, now taken up as A Motion for Summary Judgment and Motion for Jury Trial. Present in open court was the plaintiff’s attorney, Patrick Morrow, and the defendant’s attorney Norman Foret. Pursuant to a pre-trial conference, it was stipulated that the Motion for Summary Judgment be denied and the Motion for jury Trial granted. Judgment in accordance with stipulation to be signed upon presentation.”

This entry clearly shows that attorneys for appellant and appellee stipulated that appellee’s motion for a jury trial be granted. The trial court correctly rendered judgment in accordance with that stipulation. Appellant does not urge, on appeal, that the minute entry is erroneous, or that he did not enter into such a stipulation. Accordingly, in our view, plaintiff-appellant waived his motion to strike the jury trial when he entered into the above stipulation.

THE JURY’S FINDING

The accident in which the appellant was injured occurred on January 5, 1978, in the City of Lafayette, Louisiana. It was approximately 8:30 P.M. and there was a light, misty rain falling. Keith Marks (appellant) was walking north on Jefferson Street. The automobile driven by Delores Singleton was proceeding west on Johnston Street. The appellant came to the intersection of those two streets and attempted to cross Johnston to continue down Jefferson to the Lafayette Aid House. Johnston is a four-lane street at this point.

The testimony of appellant and of the witnesses to the accident indicate that the accident happened in the following manner. Essie Johnson was traveling in the inside, west-bound lane on Johnston Street when she too came upon the above intersection. She testified that the traffic light was red as she approached it. She then stopped even though the traffic signal turned green shortly before she reached the intersection. She stopped because she saw appellant walking into the two east-bound lanes of Johnston and was afraid that appellant might enter her lane of travel. She testified that as soon as appellant started to cross the intersection the light turned green and appellant then began to run across Johnston Street. He ran in front of her automobile. She testified that, at the same moment, she also saw Delores Singleton’s vehicle approaching in the outside, westbound lane of Johnston Street. She knew that appellant was going to collide with that vehicle but could do nothing about it.

Appellant testified that as he walked into the intersection, he saw that the light was going to turn green, and he then began running across the intersection in an attempt to make it to the other side.

Gaylia Batiste testified that she was a passenger in the Singleton automobile. She testified that Mrs. Singleton had decreased her speed to about 25 miles per hour and was approximately three to four car lengths behind Essie Johnson’s automobile when the light turned green. Singleton then began increasing her speed to approximately 30 to 35 miles per hour. The speed limit on this particular stretch of Johnston is 45 miles per hour.

Essie Johnson had remained stationary in the inside, west-bound lane during this period of time. The evidence shows that when the automobile driven by Delores Singleton was about even with the Johnson vehicle, appellant suddenly appeared from the front of that vehicle. The evidence further shows that appellant actually ran into the left side of Delores Singleton’s vehicle and struck it just above the left front wheel.

The appellant submits that there is basically no dispute with regard to the facts surrounding this accident. The record confirms this. Appellant contends that it is the finding of the jury based on these facts which is erroneous.

The trial court, in its instructions to the jury, correctly explained the duty imposed upon a motorist with regard to pedestrians, as set out in Baumgartner v. State Farm Mutual Automobile Insurance Company, 356 So.2d 400 (La.1978). It is apparent that the jury felt that Delores Singleton had met that high standard of care in the operation of her vehicle and therefore found that appellee was not liable for the damages suffered by appellant.

This Court had occasion recently to review an action in which the facts were quite similar to those in the present suit. The pedestrian in Shank v. Government Employees Insurance Company, 390 So.2d 903 (La.App. 3 Cir. 1980), had attempted to cross a four-lane highway. She made it safely to the middle of the highway and then proceeded to cross in front of a vehicle which had stopped in the inside, northbound lane. She paused in the middle of the two north-bound lanes and then attempted to run across the outside, northbound lane. She was struck by an automobile in that lane. The evidence showed that the motorist had been traveling at or under the speed limit. The evidence also revealed that the motorist’s vision had been obstructed by the vehicle which had stopped in the inside lane. We affirmed the trial court’s finding of no negligence on the part of that driver.

We reiterate that Baumgartner v. State Farm Mutual Automobile Insurance Company, supra, requires a finding of negligence on the part of a motorist before that motorist will be held liable to a pedestrian whom he injures. Shank v. Government Employees Insurance Company, supra; Mathews v. Allstate Automobile Insurance Company, 370 So.2d 1331 (La.App. 2 Cir. 1979), writ denied, 373 So.2d 526 (La.1979).

A careful review of the evidence in this case convinces us that the jury verdict exculpating Delores Singleton and State Farm from liability to plaintiff is not clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Appellant further argues that the trial court erred by failing to instruct the jury to the effect that contributory negligence is no longer a defense in an action like the present one. There is no need to discuss this assignment of error in view of our above finding.

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

Costs of this appeal are assessed against appellant.

AFFIRMED.

      . The plaintiff has previously settled his claim against the driver of the automobile, Delores Singleton, and her automobile liability insurer, Fireman’s Fund Insurance Company. The trial court dismissed the suit against these two parties after a motion to dismiss was filed by the plaintiff.

      . State Farm filed a third party demand against Delores Singleton and Fireman’s Fund Insurance Company of Newark, N.J. The third party defendants filed a motion for summary judgment which was heard by agreement of counsel on memoranda. The trial court ruled in favor of third party defendants and dismissed State Farm’s demand against them.

      .“Art. 1732. Demand for jury trial
      A party may demand a trial by jury of any issue triable of right by a jury in a pleading filed not later than ten days after the service of the last pleading directed to such issue.
      Source: Fed.Rule 38(b); cf. C.P. Arts. 494, 495.”


author: LABORDE, Judge.

text:
    James D. LITTON, Plaintiff-Appellee, v. The HOME INDEMNITY COMPANY et al., Defendants-Appellants.
    No. 7901.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1980.

      Lunn, Irion, Switzer, Johnson & Salley, Samuel M. Hicks, Shreveport, for defendants-appellants.
    Thomas & Dunahoe, G. F. Thomas, Jr., Natchitoches, for plaintiff-appellee.
    Before FORET, DOUCET and LA-BORDE, JJ.
   LABORDE, Judge.

This personal injury suit arises out of a vehicular accident. Defendant-appellant, The Home Indemnity Company appeals from an adverse judgment in favor of James D. Litton, plaintiff-appellee. We affirm. We find no manifest error in the factual determinations of the trial judge, nor do we find an abuse of discretion by the trial judge in the damages awarded.

The facts are uncontroverted. On September 15, 1978, Litton was operating his 1978 Honda motorcycle in a southerly direction on U.S. Highway # 71, near Camp-ti, Natchitoches Parish, Louisiana. He was struck from the rear by a 1977 International tractor-trailer truck owned by Victor Simons, driven by Carl D. Simons, and insured by The Home Indemnity Company.

The trial court found the defendant negligent an_issue not seriously contested at trial. No appeal is taken on the issue of liability. The trial court’s award of $4,806.55 for special damages is also not in question on appeal.

Appellants make two (2) specifications of error:

(1) the plaintiff did not meet his burden of proof that he had sustained a permanently disabling injury, and
(2) the award of $60,000 to plaintiff for general damages was clearly wrong.

Addressing ourselves to specification of error (1), we have reviewed the record in light of the guidelines set by our Supreme Court in Jordan v. Travelers Insurance Co., 257 La. 995, 245 So.2d 151 (1971) and conclude that plaintiff has sustained his burden of proof.

In Jordan our Supreme Court held:

In Louisiana tort cases, the plaintiff must prove by a preponderance of the evidence both the negligence of the defendant and the damages caused by the latter’s fault; but proof need be only by a preponderance of the evidence, not by some artificially created greater standard. This burden of proof may be met by either direct or circumstantial evidence.
In describing this burden of proof, the courts sometimes speak of proof to a “reasonable certainty” or to a “legal certainty”; or of proof by evidence which is of “greater weight” or “more convincing” than that offered to the contrary; or (in the case of circumstantial evidence) of proof which excludes other reasonable hypotheses than the defendant’s tort with “a fair amount of certainty”. Whatever the descriptive term used, however, proof by direct or circumstantial evidence is sufficient to constitute a preponderance, when, taking the evidence as a whole, such proof shows that the fact or causation sought to be proved is more probable than not.

Jordan was cited approvingly by this court in the recent case of Moity v. Petty-Ray Geophysical, Inc., 369 So.2d 225 (La.App. 3rd Cir. 1979) where the court stated:

In negligence cases, proof by either direct or circumstantial evidence is sufficient to constitute a “preponderance of the evidence” when, taking the evidence as a whole, such proof shows that the fact or causation sought to be proved is more probable than not. Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971). Circumstantial evidence need not negate all other possible causes of injuries as long as the circumstantial proof excludes other reasonable hypotheses with a fair amount of certainty so that it is more probable than not that the harm was caused by the tortious conduct of the defendant. Boudreaux v. American Insurance Company, 262 La. 721, 264 So.2d 621 (1972).
It is a well-known principle that much weight is to be afforded to the trial court’s finding of fact, particularly where there is a conflict in the evidence taken at trial and the trial court’s judgment will not be reversed if the evidence of the successful party when considered by itself is sufficient to sustain the judgment. Gaudet v. Berry, 307 So.2d 767 (La.App. 1st Cir. 1975). The record in this case indicates that no manifest error was committed by the trial court. The evidence offered by the plaintiff was sufficient to sustain his burden of proof and the trial judge was correct in finding liability on behalf of the defendants.

In accordance with the above, our review of the record reveals that plaintiff adequately sustained his burden of proof.

Turning now to specification of error (2), we note that the trial judge, in his written reasons for judgment, found that:

“Plaintiff was injured while riding a motorcycle when struck by the defendant’s vehicle on U.S. Highway 71. Defendants do not seriously contest liability and candidly state in their brief that had the insured and the driver been present at the trial liability would have been stipulated. The Court, therefore, finds the defendants liable without having to reiterate the facts and make findings regarding liability.
The sole issue is quantum. Following the accident, the plaintiff was taken to a hospital in Coushatta and from there to Bossier City General Hospital. His injuries were: a cerebral contusion, probable skull fracture, and the usual bruises, contusions and abrasions. The skull fracture caused leakage of spinal fluid from both ears. The plaintiff quickly recovered physically; losing thirteen (13) actual work days of employment but returned to work within three (3) weeks. Plaintiff also suffered a broken tooth.
The most impressive item of damage caused by the vehicle injury is the complete personality change of the plaintiff. Testifying as lay witnesses were plaintiff’s great uncle; a school teach; [sic] a former high school coach; and several neighbors. Two (2) clinical psychologists examined and diagnosed plaintiff’s condition as being one of depression, associated with and caused by cerebral impairment as a direct result of the motorcycle accident. Whereas, the plaintiff, previous to the accident had been a healthy, energetic, outgoing and warm individual, at the trial of this case, his condition and personality was described as moody, depressed, withdrawn, irritable and incapable of doing the quality construction work that he was doing previous to the injury. The Court finds here there is great evidence of mental and emotional disability. The plaintiff cannot now follow simple instructions; he has loss of memory, and is not able to perform carpentry work, but acts now more as a helper and is assigned simpler tasks because of his incapability of doing the jobs required of highly trained and skilled carpenters.

In view of the injuries, the Court makes the following awards:

Dr. Warren $ 110.00
Bossier General Hospital 1,067.55
Natchitoches Parish Hospital (ambulance service) 124.00
Southwest Psychological Services 740.00
Physical damage to motorcycle 1,845.00
Loss of wages 780.00
Travel to and from doctor in Shreveport (5 trips x 120 miles, 700 miles x $.20) 140.00
$4,806.55

For general damages, pain, suffering (past, present, future), serious personality changes resulting from brain damage sixty thousand ($60,000.00) dollars.”

Civil Code Art. 1934 provides that, in the assessment of general damages, “much discretion must be left to the or

In Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977) the court stated:

“We do re-emphasize, however, that before a Court of Appeal can disturb an award made by a trial court that the record must clearly reveal that the trier of fact abused its discretion in making its award.”

The principles announced in Coco were affirmed in Reck v. Stevens, 373 So.2d 498 (La.1979), wherein the court stated:

“Thus, the initial inquiry must always be directed at whether the trier court’s award for the particular injuries and their effects upon this particular injured person is, a clear abuse of the trier of fact’s ‘much discretion’, La.Civ.C. Art. 1934(3) in the award of damages. It is only after articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review, for articulated reason, be considered either excessive, Carollo v. Wilson, 353 So.2d 249 (La.1977); Schexnayder v. Carpenter, 346 So.2d 196 (La.1977), or insufficient, Olds v. Ashley, 250 La. 935, 200 So.2d 1 (1967). Only after such determination of abuse has been reached, is a resort to prior awards appropriate under Coco for purposes of then determining what would be an appropriate award for the present case.”

Recounting the facts of the accident, Litton while riding his motorcycle, was struck from the rear by a tractor-trailer truck. The force of the collision was such that Litton and his cycle were thrown some eighty-four feet from the point of impact. Litton was rushed by ambulance to a hospital in Coushatta, Louisiana. A doctor there sent Litton to the Bossier General Hospital. During the ambulance trip, Litton moaned, groaned, and vomited as he slipped back and forth between unconsciousness and semi-consciousness.

At Bossier General, Litton was treated by Warran D. Long, M.D. In his deposition introduced into evidence at the trial, Dr. Long stated that when he saw Litton, he was unconscious and had blood and/or spinal fluid coming from both ears. Litton also had a broken tooth. Dr. Long diagnosed Litton as having probable biauricular skull fracture with a closed head injury and cerebral contusion concussion. Litton was released from the hospital four days later and for some time thereafter he continued to suffer headaches and dizzy spells.

About five months later, Dr. Long again examined Litton, this time at the request of Litton’s family who was concerned about his personality change and memory deficit. Dr. Long referred Litton to Donald K. Gucker, a clinical psychologist. Later Litton was examined by Dr. Ronald E. Goebel, also a clinical psychologist. Both psychologists administered a battery of psychological and neuro-psychological tests. The results of these tests were substantially the same, but before going into them, we note that both psychologists agreed that the results suggest no effort by Litton to malinger. In fact, they felt that Litton has given his best and if anything had downplayed his condition.

From the multiple tests each administered, both psychologists concluded that Litton suffered organic brain damage, that he experienced mild to moderate depression, anxiety, impulsiveness and withdrawal, and that the brain damage would be apt to cause some degree of the symptoms above mentioned.

In addition to the medical testimony, the trial judge also heard testimony given by several of Litton’s close friends and family. Unlike the medical testimony which probed only Litton’s post accident personality, this lay testimony offered a view of both Litton’s pre and post accident personality, allowing a comparison basis. In the words of Litton’s friends and relatives, before the accident Litton was “outgoing”, “nice”, “friendly”, “outstanding”, “pleasant”, “talkative”, “not reserved”, “jovial”, “active” and “an all around guy”. After the accident he was “withdrawn”, “depressed”, “slower”, “evasive”, “standoffish”, “not as quick witted” and “not as super”. The consensus of this lay testimony was that the accident caused the personality change in Litton.

Considering Litton’s general damages, pain, suffering, and serious personality changes resulting from brain damage, the trial judge awarded Litton $60,000.

We have carefully analyzed the entire record within the parameters set by our Supreme Court in Reck v. Stevens, supra, and conclude that the award of the trial court must stand.

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

AFFIRMED.


text:
    Validine F. GANEY et al., Plaintiffs-Appellees, v. David H. BEATTY et al., Defendants-Appellants.
    No. 7905.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1980.
    Rehearing Denied Jan. 2, 1981.
    Gold, Little, Simon, Weems & Bruser, Henry B. Bruser, III, Alexandria, Howard P. Elliot, Jr., Baton Rouge, for defendants-appellants.
    James H. Brown, Baton Rouge, for plaintiffs-appellees.
    Before FORET, DOUCET and LA-BORDE, JJ.
   FORET, Judge.

This is an action ex delicto. Plaintiff, Validine Ganey, seeks to recover for personal injuries and property damage caused by fire. Her fire insurer, Continental Insurance Company (Continental), pursuant to its right of subrogation, is seeking to recover from defendant what it has paid plaintiff as a result of the fire. Named as defendants are David Beatty and his general liability insurer, Aetna Casualty and Surety Company (Aetna).

The trial court rendered judgment in favor of plaintiff and Continental, and the defendants timely perfected a suspensive appeal. Plaintiff answered the appeal, seeking recovery for mental anguish.

ISSUES

We need discuss only one issue raised by the defendants-appellants, as our decision on that issue is dispositive of this appeal. The question is whether the trial court was correct in finding actionable negligence in the conduct of David Beatty such that he must respond in damages to the plaintiff. Specifically, was the negligent conduct of David Beatty a cause-in-fact of the harm suffered by plaintiff.

FACTS

There is no serious dispute as to the facts present here. This suit arises out of the aftermath of a fire which occurred on the evening of October 6, 1977, in Ferriday, Louisiana. The fire started in a building owned by David Beatty and spread to an adjacent building owned by Validine Ganey. Plaintiffs stipulated at trial, and the record clearly shows, that this fire was deliberately set by an arsonist who has not been captured by law enforcement authorities. The record further reveals that this was not the first attempt by an arsonist to burn this building. Someone had gone under the house a few days earlier and had cut out a two-inch segment of the pipe supplying natural gas to the building. However, this arson attempt was thwarted because the natural gas supplier had effectively locked the meter so that no gas could flow into that pipe. Apparently, it was a few days after this attempt that the arsonist entered the structure, doused the lower floor with a flammable liquid, and set fire to it. The spread of that fire to the building owned by Mrs. Ganey caused extensive damage to that structure which housed her residence and flower shop.

Plaintiff alleged the following, in her petition, as constituting negligent conduct on the part of the defendant, David Beatty. First, in paragraph three of said petition, it was alleged that:

“3.
The property belonging to the defendant included improvements, specifically a house, which constantly remained in a state of disrepair, through the neglect of the defendant, such as to render said house highly susceptible to fires and other such hazards, causing great distress in the neighborhood surrounding defendant’s property.”

Plaintiff further alleged, in paragraph four of her petition:

“4.
Said fire originated on the defendant’s property due to causes unknown to petitioner and best known by defendant, owner of the property. However, petitioner contends that the damage to her property may be attributed to defendant’s neglect of his property.”

The trial judge, in his written opinion and reasons, concluded:

“that the defendant-Beatty was negligent with respect to his property and that his negligence was a cause-in-fact of the fire which occurred on his premises and spread to those of the plaintiff causing her damage, and accordingly, he is liable for those damages.”

Appellants argue that the trial court erred in finding that the alleged negligent conduct of David Beatty was a cause-in-fact of the injuries suffered by plaintiff. We agree.

It is true that there is evidence in the record to indicate that defendant’s building was in poor condition. Parts of the wooden frame structure were rotten and were on the verge of collapsing. E. E. Wallace, Fire Chief of Ferriday, testified that he had issued an “order of correction” on March 21, 1977, in which he recited numerous hazards observed by him in a physical inspection of the premises.

David Beatty testified to the effect that he was familiar with the condition of the premises. He normally resided in Baton Rouge, Louisiana, but would drive to Ferri-day when possible to visit relatives and look over his property. The trial court found that David Beatty was negligent in his failure to properly maintain his property.

However, in order to establish liability on the part of the defendant, plaintiff, Ganey, must not only show that the defendant’s conduct was tortious, but also that the acts complained of were a cause-in-fact of her damages. Dixie Drive It Yourself System v. American Beverage Company, 137 So.2d 298 (La.1962); Brown v. Louisiana Department of Highways, 373 So.2d 605 (La.App. 3 Cir. 1979), writ denied, 376 So.2d 1269 (La.1979); Ducote v. Voorhies, 350 So.2d 1289 (La.App. 3 Cir. 1977).

The initial inquiry in any determination of actionable negligence on the part of a defendant is whether any causal relationship existed between the harm to the plaintiff and the defendant’s allegedly negligent conduct. Hill v. Lundin & Associates, Inc., 256 So.2d 620 (La.1972). The necessity of establishing this causal relationship is mandated by LSA-C.C. Article 2315 which reads, in pertinent part:

“Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” (Emphasis added.)

This Court, in State Farm Mutual Insurance Company v. South Central Bell Telephone Company, 343 So.2d 758 (La.App. 3 Cir. 1977), had occasion to confront this issue of causation. There we stated, at pages 759 and 760 that:

“A cause-in-fact is a substantial factor in the chain of events culminating in an accident. It is a ‘necessary antecedent’. Without it the accident would not have taken place. If the accident would have occurred, regardless of such cause, such cause is not a cause-in—fact. Dixie Drive-It-Yourself System v. American Beverage Co., supra.”

Similarly, if the fire in this case would have occurred irrespective of the negligence of the defendant, then his negligence is not a substantial factor or cause-in—fact.

To determine cause-in-fact, courts will carefully scrutinize all the evidence, and those acts will be adjudged causes-in-fact when it is found that more probably than not they were necessary ingredients of the accident. Stated otherwise, an act will be deemed a cause-in-fact of an accident only when, viewed in the light of all the evidence, it is concluded that it is a substantial factor without which the accident would not have happened. Laird v. Travelers Insurance Company, 267 So.2d 714 (La.1972); Follins v. Barrow, 354 So.2d 609 (La.App. 1 Cir. 1977), writ denied, 356 So.2d 434 (La.1978).

We are of the opinion that the trial court erred in concluding that David Beatty’s negligent failure to properly maintain his building was a cause-in-fact of the harm suffered by Validine Ganey. Plaintiff’s building would have burned no matter what condition defendant’s building was in once the arsonist had set the fire. The condition of defendant’s premises was an insignificant factor in the chain of events leading to the damage suffered by this plaintiff.

For the above and foregoing reasons, the judgment of the trial court is reversed, and plaintiff’s suit is dismissed. Costs at trial level and on appeal are assessed against the plaintiffs-appellees.

REVERSED.

      . For the sake of convenience, our reference herein to “plaintiff’ will (where appropriate) include both Mrs. Ganey and her insurer, Continental.


text:
    CITY OF NEW IBERIA, Plaintiff-Appellant, v. Exalta ROMERO, Sr., Defendant-Appellee.
    No. 7906.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1980.
    Armentor & Wattigny, Minos H. Armentor, New Iberia, for plaintiff-appellant.
    Edward J. Milligan, Jr., Lafayette, for defendant-appellee.
    Before FORET, DOUCET and LA-BORDE, JJ.
   LABORDE, Judge.

This appeal involves an eviction action filed by the City of New Iberia against Exalta Romero, Sr. based on a lease from the City to Romero. The lease covers a strip of land located in the City of New Iberia. The trial court, after sustaining Romero’s exception of thirty (30) years acquisitive prescription, ordered dismissal of the City’s eviction action. The City appeals. We affirm. We find no error in the trial court’s ruling.

On January 14, 1980, the City of New Iberia filed a motion to evict Exalta Romero, Sr. from a strip of land located in New Iberia pursuant to a lease dated May 23, 1972. The City alleged that the lease was for a period of one (1) year and continued from year to year after the primary term.

Romero filed peremptory exceptions of 10 years liberative prescription, 30 years acquisitive prescription, and no right of action. He alleged that the property in question, Wana Alley, acquired by the City on April 3, 1903, was not being used for any public purpose, and had been abandoned by nonuse for a period in excess of ten (10) years. Romero further alleged that on April 26, 1940, he acquired a certain town lot bounded by Wana Alley and since that time had been in uninterrupted possession of that portion of Wana Alley described as “A” on the plat of survey of Alvin C. Ba-deaux, City Engineer, dated March 1972 and attached to the lease.

The City of New Iberia contends that since Romero executed a lease on May 23, 1972, he is a precarious possessor and may not acquire his lessor’s property by prescription. Romero contends that the City has no standing to bring an eviction proceeding since he acquired ownership of the strip of land by 30 year acquisitive prescription pri- or to executing the lease on May 23, 1972.

In his reasons for judgment the trial court concluded that:

“The exception of thirty year acquisitive prescription is sustained, and the City’s eviction action will be dismissed.”

In reaching the conclusion that Romero’s plea of thirty years prescription was well founded, the trial court discussed two basic concepts which must be considered when acquisitive prescription arises involving a public body. We take the liberty of quoting in part from the trial judge’s well-written opinion.

First the state and its political subdivisions have a dual personality. They act as sovereign, and in a private capacity. (LSA-C.C. art. 450 Comments)
Secondly, things under the civil law have been traditionally divided into three categories: Common, public and private. (LSA-C.C. art. 448)
Common things may not be owned by anyone (LSA-C.C. art. 449). Public things are those things which are owned by the state or its political subdivisions in their capacity as public persons. They include such things as streets and squares. (LSA-C.C. art. 450) Private things are things owned by private persons, or by the state or its political subdivisions in their capacity as private persons. (LSA-C.C. art. 453).
Two recent Court of Appeal (Third Circuit) cases recognized these distinctions and hold that acquisitive prescription may run against a public body as to private things it owns, but not as to public things. In the case of Town of Broussard v. Broussard Volunteer Fire Dept., 357 So.2d 25 (1978) the Court held that acquisitive prescription as to the things in question ran against the municipality in favor of the Volunteer Fire Department, as they were private things owned by the City in the capacity of a private person. According to the Court in Broussard, public property to which all inhabitants of a City are entitled in common, such as public streets and walks, is not subject to acquisitive prescription. Public property not used by the people in common, which is used for their benefit by the administrators of the City, is subject to acquisitive prescription.
An immediate precursor to the Brous-sard case was that of Prothro v. City of Natchitoches, 265 So.2d 242, (C. of A.-3, 1972), which was cited by defendant in an attempt to show that prescription does run against a city.
A careful reading of Prothro reveals that the Court impliedly followed the same logic later specifically endorsed in Broussard. The property involved was originally acquired by the City for use in drilling water wells. Such a use falls into the category of administrative use defined in Broussard. As such, the property could not be considered “hors de commerce”, and insusceptible of prescription, and the Court decided that the prescription did run against the City.
As previously discussed, a street is a public thing owned by a political body in its capacity as a public person (LSA-C.C. art. 450, supra) and is consequently not susceptible of prescription. Both Proth-ro, and Broussard, supra, cited by defendant, are accordingly distinguishable from the instant matter in the sense that the property in dispute here was acquired by the plaintiff for use as a public street, but indistinguishable in the sense that the said property has not been put to use as a public street since at least 1940, and probably never was. Indeed, the first evidence of any use at all by the City is its lease to defendant in 1972. This certainly demonstrates an intention to own as a private person, to put to administrative use, and not for the use of the people in common. In fact, the lease spells out that the property was not then being used for public purposes. The next question, then, is whether a thing acquired by a public body as a public thing but subsequently owned as a private thing is subject to acquisitive prescription. The answer is found in the case of Louisiana Highway Commission v. Raxdale, 12 So.2d 631, C. of A.(2), 1943. In that case, the City of Alexandria had purchased property “as a street of said town”, but had never used it as such, and in fact had never possessed it at all, vendors and their heirs having retained possession up to the time of the litigation. The argument was made that the property was a public acquisition and not subject to acquisitive prescription. The Court, relying on the principles announced above and on former LSA-C.C. art. 482, at page 635 ruled in effect that regardless of the character of the acquisition, if the thing is never used, or ceases to be used, as a public thing, it takes on the character of alienability and becomes subject to prescription. Former LSA-C.C. art. 482 (now arts. 449, 450 and 455 provides, inter alia, that things naturally susceptible of ownership but applied to some public purpose, resume their original quality as soon as they cease to be applied to such public purpose; and gives as examples of such things highways, roads, streets and public places. The Court of Appeal, Third Circuit, by whose decisions the undersigned is bound, quoted in Prothro the following language of the district court therein:
‘In the case of Louisiana Highway Commission v. Raxdale, (La.App.) 12 So.2d (631) 633 (2nd Cir. 1943) the court stated that the deed to the Town of Alexandria contained this clause: “and purchased as a street of the said town of Alexandria.” The court found that there was no dedication of such area to public use and therefore it was not “common property.” The property in the instant case was acquired by the City in 1845 some 126 years ago. It was never in the history of man in the City’s possession or under its dominion. This court does not believe the property was ever in the category of “common property” but even had it been when purchased it had long since ceased to have this quality. See L.C.C. Art. 482.’
The Third Circuit panel in Prothro went on to say that it agreed with the finding of the trial judge that the property in dispute in that case was subject to acquisition by prescription, and in doing gave its nod of approval to the holding in Raxdale.
A remaining question on acquisitive prescription is whether the running of prescription is defeated by part of the property granted in 1903 being used as a public thing, since the evidence is that approximately half of it is being used by the public. The evidence is silent as to how long that part has been used by the public, but for purposes of argument, let us assume that it has been continuously since 1903. Such argument would not avail the City, because when the City uses a private thing, it is in the same position as a private person. Just as a private person is susceptible of losing only part of a piece of property through acquisitive prescription (by whatever method and for whatever reason), so is the City. In accordance with former LSA-CC art. 482, when any (part of whole) things naturally susceptible of ownership retains or resumes that quality, it may be prescribed against. The undersigned is aware of no authority to the contrary.
The evidence is clear and undisputed that defendant possessed adversely the property in dispute continuously from 1940 in such a manner as to acquire by prescription, until 1972. Thirty years had run prior to 1972, so the execution of the lease by defendant, whatever he thought he was signing (he testified he thought it was some sort of partition agreement), is of no moment.
Neither can it be said that defendant renounced his acquisition through prescription by entering into the 1972 lease, thereby acknowledging ownership in plaintiff. The law is clear that such a renunciation must be express, absolute and unequivocal, and be so clear that it leaves no room for contrary interpretation. Porter-Wadley Lumber Co. et al. v. Bailey, 110 F.2d 974, USCCA(5), 1940; A. M. Ross v. Harvey Adams, 23 La.Ann. 621 (1871); Reconstruction Finance Corp. v. Ardillo, 200 So. 687 (1941); LSA-CC arts. 3460, 3461; Traite Theorique et Pra-tique de Droit Civil, Vol. XXVIII, Nos. 1-815, at pages 44 — 45, Baudry — Lacantin-erie & Tessier. That is obviously not the case here.”

We find the trial judge’s scholarly analysis of the instant case to be fully supported by the record.

For the above and foregoing reasons the judgment of the trial court is affirmed. Appellant, City of New Iberia, is taxed all costs of this appeal in the amount of $_ as provided by law, LSA-R.S. 13:4521, 13:5112.

AFFIRMED.

APPENDIX I

STATE OF LOUISIANA

PARISH OF IBERIA

LEASE

This lease is made and entered into by and between the City of New Iberia, herein represented by J. Allen Daigre, Mayor, hereinafter sometime referred to as Lessor and Exalta Romero, Sr. residing at 915 Walton Street, New Iberia, Louisiana, hereinafter referred to as Lessee.

Lessor does hereby lease to Lessee a portion of Wana Alley as shown on plat annexed hereto and made part hereof, which alley is not presently being used for public purposes.

This lease is for a term of one (1) year from date hereof and shall continue from year to year thereafter. However, Lessor has a right to cancel his lease in full at any time upon his giving thirty (30) days written notice to Lessee at the address shown herein below. Lessee agrees to pay to Lessor the sum of ONE AND NO/100 ($1.00) DOLLAR per year as consideration of this lease.

Lessor shall not be liable for any injury to person or damage to property sustained by Lessee or any other persons and any such liability is assumed by Lessee. Upon termination of this lease, Lessee binds and obligates himself to remove all buildings and improvements from said leased premises.

THUS DONE AND SIGNED in New Iberia, Louisiana, this 23rd day of May, 1972.

      . Exalta Romero, Sr. died June 15, 1980. Blanch Romero, his widow, executrix of his estate is the voluntary appellee pursuant to Rule 13, Section 1 of the Uniform Rules of the Courts of Appeal.

      . The lease and plat of survey are attached as appendix 1.

      . The trial court’s entire opinion indicates that the words “distinguishable” and “indistinguishable” were mistakenly transposed in this sentence.

      . Our recent case of McPherson v. Roy, 390 So.2d 543 (La.App. 3rd Cir. 1980), likewise holds that, "... a renunciation to be effective must be unequivocal and takes place only when the intent to renounce is clear, direct and absolute and made manifest either by words or actions of the party in whose favor prescription has run. ...”


text:
    Wanda McGowen SKYE, Plaintiff-Appellee, v. William D. WHITE et al., Defendants-Appellants.
    No. 7928.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1980.
    Provosty, Sadler & deLaunay, Frederick Alexius and Ronald J. Fiorenza, Alexandria, for defendants-appellants.
    William E. Skye, Alexandria, for plaintiff-appellee.
    Before FORET, DOUCET and LA-BORDE, JJ.
   LABORDE, Judge.

Defendants, United Van Lines and William D. White d/b/a Bud White Moving and Storage, appeal a default judgment holding them liable for damages to furniture owned by plaintiff, Wanda McGowen Skye. We reverse. We hold that the trial court erred in confirming a default judgment without plaintiff’s proof of every essential element of her cause of action.

MOTION TO DISMISS THE APPEAL

We first consider appellee Skye’s motion to dismiss the appeal.

Skye moves to dismiss the appeal on the following grounds: no transcript was made of the evidence, the record contains no written reasons for judgment, and defendants-appellants failed to request a signed narrative of facts pursuant to LSA-C.C.P. 2131.

The general rule is where there is no transcript of evidence, nor written reasons for judgment, nor written narrative of facts, the appeal will be dismissed. However, there is an exception that even though the oral evidence is missing, the appeal will not be dismissed where the correctness of the trial court judgment does not depend upon the missing testimony. Clark v. Richardson, 157 So.2d 325 (La.App. 3rd Cir. 1963); Hydrotex Industries v. Cartwright, 45 So.2d 93 (La.App. 2nd Cir. 1950); and Williamson v. Enterprise Brick Company, Inc., 190 La. 415, 182 So. 556 (1938). Based on the following reasons, we hold that the above exception applies to this case.

White and United appeal the judgment urging the trial court erred in: 1) rendering a judgment when the record contained no return of service on the Secretary of State; 2) rendering a judgment in a matter in which it lacked subject matter jurisdiction; 3) rendering a judgment where the criteria for service had been preempted by federal law; 4) rendering a judgment where there had been no allegation or proof that the carrier received the items, allegedly damaged in transit, in good condition; and 5) rendering a money judgment based upon inadequate proof of damages. A determination of the correctness of these issues does not depend on the oral testimony. Instead, what is really involved are questions of law which this Court may consider and determine by viewing the pleadings and exhibits in the record (Hydrotex Industries v. Cartwright, supra) along with the briefs submitted by counsel. Bernhardt v. Curtis, 109 La. 171, 33 So. 125 (1902). Therefore, the motion to dismiss the appeal is denied.

THE MERITS

According to her petition, Skye hired White and United to move her furniture from her former home in Longview, Texas to her present home in Alexandria, Louisiana. On October 18, 1978, White and United moved Skye’s furniture pursuant to this arrangement. As her furniture was removed from appellants’ truck, Skye discovered the following damages to the items of her furniture:

(1) Queen Ann chair had a broken arm and the chair cannot be repaired $ 450.00
(2) King size rattan bed headboard was pierced and torn and cannot be repaired ' 490.00
(3) Baker end table was scraped along one side and needs refinishing 300.00
(4) Glass chandelier shattered 150.00
(5) One cushion from a sofa was missing and cannot be replaced, making the entire sofa worthless 1,100.00
(6) A glass top for a chrome table was not delivered 250.00
TOTAL. $2,640.00

Skye made numerous demands on appellants seeking payment of these damages. When they failed to respond, she filed suit which eventually led to a default judgment awarding the damages prayed for.

Appellants appeal the default judgment on the grounds above mentioned. One of appellants’ arguments is that the trial court erred in confirming a default without plaintiff’s allegation or proof of an essential element of her cause of action. For the reasons which follow, we agree.

To confirm a default judgment, plaintiff must prove every essential element of his cause of action. LSA-C.C.P. art. 1702. Skye’s cause of action involves recovery of damage to property caused by a common carrier in an interstate shipment. The basis and essential elements of this cause of action were announced by our Court in Dischler v. Red Ball Motor Freight, Inc., 352 So.2d 764 (La.App. 3rd Cir. 1977). In Dis-chler the Court stated:

“The basis for liability of a common carrier for any loss, damage or injury to property caused by the common carrier in an interstate shipment is the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C.A. Section 20(11). In order to maintain a successful action as against the carrier, the plaintiff, whether he be a shipper or consignee, must prove by a preponderance of the evidence (1) receipt by the carrier of the items in good condition; (2) arrival of the items in damaged condition to the plaintiff, and (3) the amount of the loss sustained thereby. Proof of all three is prerequisite to a judgment in favor of plaintiff. The absence of proof as to any one of the three leads to judgment in favor of the defendant carrier. Frischhertz Electric Co. v. Strickland Transp. Co., 262 La. 791, 264 So.2d 646 (1972); Home Furniture & App. v. Red Ball Motor Freight, Inc., 343 So.2d 319 (La.App. 2 Cir. 1977), writ refused 345 So.2d 1193 (La.); Caillier v. Texas & Pacific Railway Co., 303 So.2d 871 (La.App. 1 Cir. 1974), writ refused 307 So.2d 628.”

Examining Skye’s petition, we note the absence of any allegation that the appellants, White and United, received Skye’s furniture in good condition.

Generally, failure to plead the essential elements of a claim presents no problem because of the rule that so long as the essential facts constituting the claim are proved, the plaintiff may be granted any relief to which he is entitled under the evidence. This is because the opposing party, by failing to object to evidence not pertinent to any of the issues raised by the pleadings, is deemed to impliedly consent to enlargement of the pleadings by that evidence. However, this presumption is unavailable when confirming a default judgment. The very nature of a default judgment dictates this as no opposing party is present, and hence there is no basis to presume the pleadings were enlarged by that party’s failure to timely object. The result is that in confirming a default, plaintiff must not only prove every essential element of his cause of action, he must also plead every essential element as a prerequisite to that proof.

Applying the above criteria, Skye is precluded from proving that White and United received her furniture in good condition because she failed to plead that fact in her petition. Yet, the carrier’s receipt of the furniture in good condition is an essential element of Skye’s cause of action. Hence, we hold that the trial court erred in confirming a default judgment without plaintiff’s proof of this essential element of her cause of action. The default judgment must be reversed.

Since we have concluded that the default judgment must be reversed for the reasons above set out, it is unnecessary for us to consider the additional arguments appellants urge on appeal.

For the reasons assigned, the judgment appealed from is reversed, and plaintiff’s suit is dismissed without prejudice. Costs of this appeal are assessed to plaintiff-ap-

pellee. REVERSED AND RENDERED.

      . LSA-C.C.P. art. 2131 provides:
      “If the testimony of the witnesses has not been taken down in writing the appellant must request the other parties to join with him in a written and signed narrative of the facts, and in cases of disagreement to this narrative or of refusal to join in it, at any time prior to the lodging of the record in the appellate court, the judge shall make a written narrative of the facts, which shall be conclusive.”


author: CHEHARDY, Judge.

text:
    Dan SKINNER v. BAGGETT TRANSPORTATION COMPANY.
    No. 10691.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 1980.
    Rehearing Denied Dec. 19, 1980.

      Bendana & Carlton, Orlando G. Bendana, Wayne H. Carlton, Jr., New Orleans, for plaintiff-appellee.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Robert Henry Sarpy, Jr., Metairie, for defendant-appellant.
    Before SAMUEL, GARRISON and CHE-HARDY, JJ.
   CHEHARDY, Judge.

Defendant, Baggett Transportation Company, appeals a trial court judgment awarding the plaintiff, Dan Skinner, workmen’s compensation at the rate of $95 per week for 32 weeks subject to a credit for compensation already paid, 12% penalties and an attorney fee of $600 plus legal interest on total compensation due from date of judgment, and for all costs of the proceedings. The plaintiff has answered the appeal, asking that he be found totally and permanently disabled; that he be provided with all medical expenses; and that his attorney fees be increased.

Skinner was employed by Baggett as a tractor trailer driver, and one of his responsibilities was to assist in loading and unloading freight weighing from 25 to 80 pounds. In August of 1977, Skinner suffered an injury to his back while unloading barrels of “swimming pool granular”, which he estimated weighed between 60 and 65 pounds. Plaintiff was then sent to the company physician, Dr. Robert J. Segura, Jr., for treatment.

The plaintiff testified he returned to work for three days in September of 1977 and reinjured his back while handling rolls of carpet. At the time of the first injury, the plaintiff’s rate of pay was $5.50 per hour; however, he avers that when he returned to work during September his salary had been increased to $6.45 per hour. Skinner was paid compensation by Baggett at the rate of $95 per week from the time of the first injury until November of 1977, when the plant was closed. The plaintiff also testified he had been unable to secure other employment, due to the condition of his back, until two weeks before the time of trial, which occurred in June, 1980. At that time he was again hired as the trailer driver operating a boom with an electric crane, a position which required no lifting.

Dr. Segura testified that although an initial x ray of Skinner was read as showing a fracture through one of the vertebrae, the back injury appeared to him, on further study, to be mainly ligamentous with some swelling in the area of the nerves, for which he prescribed bed rest, medication for pain, muscle relaxants and heat.

Dr. Segura further testified that since no surgery was indicated Skinner was sent back to work on September 22, 1977, restricted to light duty. He also said the plaintiff returned complaining of problems again, but his records did not reflect a report of another injury. He added he again saw the patient on October 22, 1977, and allowed him to return to work with a limitation of his lifting load to 50 pounds, and he stated further that he released Skinner for work without restrictions on November 1, 1977. Plaintiff was seen by Dr. Segura intermittently until January 20, 1978, when he was discharged. Dr. Segura stated that a note presented at trial by Skinner still restricting his lifting as of November 1, 1977 was not written by him but by his nurse.

Dr. Eugene Dabezies, an orthopedic surgeon, consulted by Skinner in February, 1978, at the request of the plaintiff’s attorney, found that x rays of the lumbar spine revealed no fractures and was of the opinion that plaintiff had sustained a sprain of the lower back and was still having some persistent symptoms. He prescribed aspirin and a corset, and recommended Skinner gradually increase his activity. His conclusion was that “I think this man is recovering and I believe he is going to eventually get back to what he was doing before.”

The defendant argues that its termination of compensation was based upon competent medical evidence, that it was not arbitrary and capricious and, therefore, the trial court should not have awarded the plaintiff penalties and attorney fees. The defendant also contends the trial court erred in awarding the plaintiff a total of 32 weeks of compensation and in obviously having concluded that the plaintiff was in substantial pain for this amount of time.

Plaintiff, on appeal, argues that his current disability is due to the second accident, which occurred in September of 1977 when he attempted to return to work, that he is entitled to the maximum payments which became effective September 1, 1977, as opposed to the $95 per week maximum benefit which was effective prior to that date, and also asks that he be declared totally and permanently disabled, or, in the alternative, permanently and partially disabled. He also requests an increase in attorney fees to cover the expenditures of appeal, in addition to unpaid medical expenses.

We affirm the trial court’s judgment.

LSA-R.S. 23:1221, regarding the schedule of payments for temporary, permanent or partial disability, states in part:

“Compensation shall be paid under this Chapter in accordance with the following schedule of payments:
(1) For injury producing temporary total disability of an employee to engage in any gainful occupation for wages whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training, and experience, sixty-six and two-thirds per centum of wages during the period of such disability.
(2) For injury producing permanent total disability of an employee to engage in any gainful occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training, and experience, sixty-six and two-thirds per centum of wages during the period of such disability.
(3) For injury producing partial disability of the employee to perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description for which he was fitted by education, training, and experience, sixty-six and two-thirds per centum of the difference between the wages the employee was earning at the time of the injury and any lesser wages which the injured employee actually earns in any week thereafter 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, during the period of disability, but not beyond a maximum of four hundred weeks for such partial disability resulting from injury occurring on or after September 1, 1975, and on or before August 31, 1976; and not beyond a maximum of four hundred twenty-five weeks for such partial disability resulting from injury occurring on and after September 1, 1976, and on or before August 31, 1977, and not beyond a maximum of four hundred fifty weeks for such partial disability resulting from injury occurring on and after September 1, 1977; provided further that for any week during which the employee is paid any compensation under this subdivision (3) the employer shall be entitled to a reduction of one full week of compensation against the maximum number of weeks for which compensation is payable under this subdivision * *

LSA-R.S. 23:1202 states, regarding maximum and minimum amounts payable by employers in workmen’s compensation benefits:

“(1) The maximum compensation to be paid under this Chapter for injuries occurring on or after September 1, 1975, and on or before August 31,1976, shall be eighty-five dollars per week and the minimum compensation shall be twenty-five dollars per week; and for injuries occurring on or after September 1, 1976, and on or before August 31, 1977, the maximum weekly compensation to be paid under this chapter shall be ninety-five dollars per week and the minimum compensation shall be thirty dollars per week. For injuries occurring on or after September 1, 1977, the maximum weekly compensation to be paid under this Chapter shall be sixty-six and two-thirds per centum of the average weekly wage paid in all employment subject to the Louisiana Employment Security Law and the minimum compensation shall be not less than twenty per centum of such wage, said maximum and minimum to be computed to the nearest multiple of one dollar. In any case where the employee was receiving wages at a rate less than the applicable minimum compensation, the compensation shall be the employee’s ‘wages’.”

The record supports the trial court’s finding that plaintiff could not be considered totally and permanently disabled since he can perform, and was performing at the time of trial, some type of work for wages. Lachney v. Cabot Corporation, 368 So.2d 500 (La.App. 3d Cir. 1979); LSA-R.S. 23:1221(2).

Neither can plaintiff be considered partially and permanently disabled. At the time of trial he was once again employed as a tractor trailer driver at a rate of pay ($4.50 per hour) approximate to that which he was earning at the time of his injury ($5.50 per hour), and neither physician testified at trial that he expected Skinner’s back sprain to be a permanent condition.

The record substantiates the factual conclusion that the plaintiff’s injury was due to the accident of August, 1977 and not the alleged accident of September, 1977. Under the terms of LSA-R.S. 23:1202, therefore, Skinner was limited to maximum compensation benefits of $95 per week as awarded.

In regard to the question of attorney fees, LSA-R.S. 23:1201.2 states in pertinent part:

“A. Any employer whose liability for claims arising under the provisions of this Chapter is not covered by insurance, shall pay the amount of any claim due under the provisions of this Chapter, within sixty days after receipt of written notice. Failure to make such payment within sixty days after receipt of notice, when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the employer to a penalty, in addition to the amount of claim due, of 12% of the total amount of such claim, payable to the claimant, together with all reasonable attorney’s fees for the prosecution and collection of such claim, or in the event a partial payment or tender has been made, 12% of the difference between the amount paid or tendered and the amount found to be due, and all reasonable attorney’s fees for the prosecution and collection of such amount. Any such employer who at any time discontinues payment of claims due and arising under the provisions of this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the penalties set forth above, payable to the claimant, together with all reasonable attorney’s fees for the prosecution and collection of such claims. The provisions of R.S. 23:1141 limiting the amount of attorney’s fees shall not apply in cases wherein the employer is found liable for penalties and attorney’s fees under the provisions of this Section.”

The court in the case of Morgan v. Lumbermen’s Mutual Casualty Company, 317 So.2d 7 (La.App. 1st Cir. 1975), stated an accepted principle of jurisprudence at page 14:

“Generally when an insurance company bases its decision to discontinue compensation benefits on the report of a competent physician that an employee has recovered from his injuries to the point of ability to resume the duties of his employment, it will not be held liable for penalties and attorney’s fees, since reliance on a medical report is with probable cause and not. therefore arbitrary or capricious. * * *”

In the present case, however, although Dr. Segura testified his records reflected he had released Skinner for full duty as of November 1,1977, the employer’s note, sent by the physician’s office to Bag-gett, indicated the plaintiff was still restricted as to lifting, and, therefore, should have been considered partially disabled by the defendant. Since the company terminated Skinner’s compensation without reliance on a medical report, we hold this action was arbitrary and capricious on its part, rendering it liable for the penalties and attorney fees imposed by the trial court.

We do not, however, agree with the plaintiff’s argument that his attorney fees should be increased for services on appeal, for the reason that he has asked for additional relief which this court has denied. As articulated by the court in Conlay v. Houston General Ins. Co., 370 So.2d 196, 201 (La.App. 3d Cir. 1979):

“Plaintiff also requests additional attorney’s fees for the legal services required on appeal. An increase in attorney’s fees for services on appeal is usually awarded when the defendant appeals and obtains no relief on appeal, and the plaintiff requests it in accordance with proper appellate procedure. The basis for awarding additional attorney’s fees is that the litigant successful at the trial level must incur additional expenses, which otherwise would not have been incurred, in order to protect his rights on appeal. Horn v. Vancouver Plywood Corporation, 322 So.2d 816 (La.App. 3rd Cir. 1975). In this case, plaintiff is not only protecting his rights relative to defendant’s appeal, but is also seeking additional relief denied at the trial level and denied on appeal, viz., a declaration of total disability. Under these circumstances, we find that additional attorney’s fees for services rendered on appeal are not warranted.”

Regarding the denial of an award for medical bills of Dr. Dabezies, this court finds that the trial court acted within its discretion.

For the reasons assigned the judgment of the district court is affirmed in all respects.

Affirmed.