text:
    Debra Mooney, Wife of/and George L. BORTNICK v. FRENCH MARKET HOMESTEAD and Orkin Pest Control.
    No. 5-44.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 8, 1982.
    Pierre F. Gaudin, Gretna, for plaintiff-ap-pellee.
    John H. Hammel, Jr., New Orleans, for defendant-appellee French Market Homestead.
    Nathan T. Gisclair, Jr., Montgomery, Barnett, Brown & Read, New Orleans, for defendant-appellant Orkin Pest Control.
    William J. Waguespack, III, Legier, McEnerny, Waguespack, Kuhner, Scoggin & Strong, New Orleans, for defendant-ap-pellee Lillian Roth, wife of/and Thomas Edkins, Jr.
    Before CHEHARDY, KLIEBERT and CURRAULT, JJ.
   CURRAULT, Judge.

On August 25, 1977, plaintiffs purchased a residence located at 848 Morningside Drive, Jefferson Parish, from Mr. and Mrs. Thomas I. Edkins. Pursuant to the terms of the purchase agreement, Mr. Edkins contracted with Orkin Pest Control Company to perform a presale termite inspection report. The inspection took place on August 16, 1977. A certificate was issued to Mr. Edkins and delivered to the petitioners at the act of sale on August 25, 1977.

Approximately seven months after the sale, extensive termite infestation and damage was discovered by the plaintiffs. Additional inspections were performed by Orkin and other pest control companies, all of which reported extensive termite damage. In July, 1978, plaintiffs filed suit in redhibition against French Market Homestead and for damages against Orkin Pest Control Company. The previous owners, Mr. and Mrs. Edkins, were joined as defendants by supplemental petition dated and filed January, 1980.

French Market Homestead was dismissed prior to trial pursuant to an exception filed alleging they were not the true vendor. The Edkins were dismissed as the result of an exception of prescription filed by them as they were added as defendants more than one year from the date of the sale. The trial judge ruled that an action in redhibition must be commenced within one year from the sale in accordance with Civil Code Article 2534.

However, after trial on the merits, the court did find negligence on the part of Orkin and awarded damages to plaintiffs in the amount of $9,446.06.

The figure of $9,446.06 represents the costs of repairs made on plaintiff’s home as a result of the undiscovered presence of termites at the time of the sale. It is from this judgment that Orkin now appeals.

The trial court, by ruling in plaintiff’s favor, found that termite damage was discovered by the plaintiff approximately two to three weeks after the sale when Mr. Bortnick remodeled the garage. This discovery by the plaintiff, combined with proximity to the pre-sale inspection created, in the trial judge’s mind, an inference that active infestation existed at the time the termite certificate was issued and that the inspection was negligently performed resulting in damages to the plaintiff. These conclusions by the trial court were reached upon the testimony of mainly lay witnesses.

Plaintiff’s only expert witness was Paul Speth, a qualified building cost estimator and remodeling contractor. Mr. Speth was called to give an estimate of the cost of repair to the plaintiff’s house. Mr. Speth also testified, over opposing counsel’s objections, that the termite damage he found after tearing out Sheetrock appeared to be “old”, although he testified he really could not pinpoint how old. It is additionally observed from the record that Mr. Speth’s first visit to the Bortnick’s home was not until March 15, 1979, two years after the original Orkin inspection and nine months after the filing of the original suit. We believe it is equally important to note Mr. Speth has no formal training or any other qualifications concerning the habits, patterns, and life cycles of subterranean termites, and was neither submitted nor recognized as an expert in that field.

Plaintiffs offered no expert testimony whatsoever on any issue directly relating to the alleged liability of Orkin. We think this is peculiar under the circumstances since plaintiffs’ home had been inspected and treated by Terminix, and in addition to Orkin had also been inspected and proposed for treatment by Miller The Killer and James Pest Control. Yet no expert testimony from any of these sources who had first-hand information and knowledge about this property and its infestation and damage was produced by plaintiffs.

The plaintiffs offered no evidence, opinion or testimony whatsoever concerning the proper standards and/or methodology of conducting a pre-sale termite inspection in the Metropolitan New Orleans or Southeast Louisiana area; nor any evidence, opinion or conclusion that the inspection which was in fact conducted by Orkin was in any way improper, negligent, faulty or lacking in any respect; nor any evidence, opinion or testimony concerning the size of the termite colony, the extent of damage or that the infestation and/or damage existed at the time of the pre-sale inspection by Orkin; nor any evidence, opinion, or testimony approximating the time that the infestation and damages began; nor any evidence, opinion or testimony that, if such infestation and/or damage had existed at that time, it existed in such a way or to such an extent that it could or should have been visible and noticeable in a carefully and properly conducted inspection. The only testimony offered by plaintiffs that is in any way remotely connected with any such threshold issues was from plaintiffs’ building cost estimator Speth.

The testimony elicited by defendant showed that both the August 16, 1977 inspection and the second inspection done some seven months later were done by the same Orkin employee who testified in detail about his usual method of making an inspection on this type of house, that it was followed in both inspections that he made, and that he had no trouble whatsoever finding ample evidence of infestation and damage on the second inspection in contrast to the first where no such evidence was visible or noticeable. He further testified that he works on a commission sales basis and that he is careful to inspect homes for termites and/or damages because it may result in a treatment sale for him. Plaintiff Mrs. Bortnick, who was present only at the second inspection, testified that this inspection was “very thorough” and described it at length. She also testified that his inspection was more thorough and detailed than any of the other three inspections she had made and that no other inspection revealed more than that made by the Orkin representative. Similarly, defendant Thomas Edkins testified that he was present during the entire pre-sale inspection, he estimated that the inspection took 30 to 45 minutes, and he described how the inspection was conducted including digging in spots around the exterior perimeter, use of a probe or pick in certain of the inside areas, and checking exposed wood framing in the garage area, all without incident or indication of infestation or damage.

Finally, Ed Faircloth testified as an expert with a broad range of both educational and on-the-job background, knowledge and experience in the termite and pest control field. He stated that a standard inspection of a slab home of this type would take approximately twenty minutes or so and he identified those visible signs of past or present termite activity that an inspector seeks out during his inspection. He stated that subterranean termite activity in the Metropolitan New Orleans/Southeast Louisiana area is at an almost dormant stage in mid-August (during the time of the pre-sale inspection) whereas it is at its peak from January through April (the second inspection was done March 29). Most significantly, he also testified that while it was theoretically possible that termites could have been active in the structure at the time of the pre-sale inspection, it was also very possible and entirely likely that the damage of which plaintiffs complain could have been caused after the inspection and sale. He gave no opinion as to the visibility of any such infestation or damage at the time of the pre-sale inspection other than his previous observation that activity at that time of the year in this area is at a near dormant stage.

The written reasons for judgment is void of any discussion or analysis whatsoever of the facts or testimony. Judgment is rendered against Orkin with the simple observation that, “Orkin’s negligence in their issuance of the certificate is obvious. ... ” We disagree and find it difficult to discover such obvious negligence.

In Jordan v. Travelers Insurance Company, 257 So.2d 995, 245 So.2d 151, 155 (La.1971), Justice Tate summarized the several judicial formulations of burden of proof in civil cases and concluded:

In Louisiana tort eases, 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 ease 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.

It is clear that, after a review of the evidence submitted by plaintiffs, and of all of the evidence in the case, that plaintiffs have not borne their burden of proving that it is more probable than not that infestation and/or damage actually existed at the time of the pre-sale inspection, that it was of such a nature, location and extent that it was visible upon inspection by a trained termite inspector, or that there was anything at all improper, lacking or inaccurate in the inspection which Orkin did conduct or the report which it rendered.

For the reasons assigned, the judgment appealed from is reversed and judgment is hereby rendered in favor of defendant and against plaintiffs, rejecting plaintiffs’ demands at their costs.

REVERSED.


source: Caselaw Access Project

author: CURRAULT, Judge.

license: Public Domain

text:
    Mary WYMAN v. WEST JEFFERSON GENERAL HOSPITAL and Firemans Fund Insurance Companies.
    No. 5-259.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 8, 1982.
    Richard A. Weigand, Weigand & Siegrist, New Orleans, for plaintiff-appellant.
    James L. Donovan, Donovan & Lawler, Metairie, for defendants-appellees.
    Before CHEHARDY, KLIEBERT and CURRAULT, JJ.
   CURRAULT, Judge.

Plaintiff, Mary Wyman, was hired on December 31, 1978, to work in the linen room at West Jefferson General Hospital. She alleges in her suit that on March 5, 1980, during the course and scope of her employment, she slipped and fell backwards and that as a result of the fall she sustained injuries which caused her to be totally incapacitated to perform work for which she is reasonably suited. Subsequently, plaintiff amended her petition to allege that on some unspecified date prior to March 5, 1980, she injured her stomach muscles while performing her duties of lifting heavy linen.

This matter came to trial on September 21, 1981, and was taken under advisement by the court. Judgment was rendered on September 24, 1981, in favor of the defendants, West Jefferson General Hospital and Firemans Fund Insurance Company. It is from this judgment plaintiff now appeals.

As in other civil actions, the plaintiff in a workmen’s compensation proceeding must establish causation by a preponderance of the evidence. Thus the testimony, as a whole, must show that more probably than not the employment accident caused the disability. Gradney v. Vancouver Plywood Co., Inc., 299 So.2d 347 (La.1974); Jordan v. Travelers, 245 So.2d 151 (La.1971).

Here the record reflects that on March 3, 1980, two days prior to the accident complained of, the employee, outside the course and scope of her employment had fallen while running to catch a bus. This injury caused her to visit the emergency room of West Jefferson Hospital on March 4, 1980, complaining of a sore hip. It was on the following day, March 5, 1980, that plaintiff asserts she slipped and fell at work. However, this fall was not witnessed by any other employees and was not reported. On March 6, plaintiff did report to Dr. Schiro complaining of a tingling in the foot area and some backache. The doctor took a history from the plaintiff but his notes failed to indicate any discussion of a slip and fall. Dr. Schiro diagnosed scoliosis, curvature of the spine, and recommended her to Dr. Fleming, an orthopedist.

Dr. Fleming saw the plaintiff on March 11, 1980. The doctor testified the plaintiff stated she had been having difficulty with her back over a period of several years. She had noticed some increased discomfort in the right lower back and right buttock with radiation into the right thigh and calf. At that time she denied any trauma. She related she worked in the housekeeping department of West Jefferson General Hospital. She had not been lifting anything extremely heavy to her knowledge. Dr. Fleming noticed plaintiff had a three-quarter inch leg length discrepancy and diagnosed scoliosis as observed by Dr. Schiro. On a subsequent visit he learned plaintiff was diabetic and that she had clonus, a condition indicative of nerve irritation, and recommended hospitalization for further diagnosis. Although Dr. Fleming stated it was conceivable that a fall could have caused Ms. Wyman’s back problems, it was his impression that her back difficulties were chronic in nature.

Despite opportunity, the plaintiff did not notify the personnel department of West Jefferson General Hospital of her injury. Mr. Lynn Pickard, Personnel Manager of West Jefferson General Hospital, spoke several times with the plaintiff following her termination from the hospital and it was several weeks thereafter that he heard the first information regarding a possible accident.

Although the plaintiff testified her supervisor, Ms. Wilson, observed the fall and laughed at her, Ms. Wilson testified she saw no fall. The plaintiff asserted she also informed Mrs. Montelepre of her fall, but Mrs. Montelepre denied any such discussion.

The existence of the two hernias in December of 1980, some nine months after her discharge from West Jefferson General Hospital merits consideration. Dr. Schiro could only note that it was most probable that the hernias formed between October of 1979 and December of 1980. No exact causation was given by the doctor, only that hiatal hernias occurred generally in persons having a history of being overweight, having multiple children, having chronic lung disease and a chronic cough on heavy lifting. Plaintiff’s own testimony did not reflect that she found her job strenuous. Nor in outlining her duties with the housekeeping department did she note that she did any heavy lifting. Further, according to Dr. Fleming’s testimony, the plaintiff told the doctor she had no knowledge of lifting anything heavy.

On the question of causation, the finding of the trial judge must be given great weight. In Canter v. Koehring Company, 283 So.2d 716 (La.1973), the Supreme Court stated:

The reviewing court must give great weight to factual conclusions of the trier of fact; where there are conflicts in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review.

From our review of the record, we discern no adequate reason to disturb the trial judge’s finding of fact. The judgment appealed is accordingly affirmed.

AFFIRMED.


author: KLIEBERT, Judge.

text:
    Barbara Sandridge, Wife of/and Roger SANDRIDGE v. Mr. and Mrs. John SUNSERI.
    No. 5-36.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 8, 1982.
    Gerald J. Martinez, Metairie, for plaintiffs-appellants.
    Harvey J. Green, Metairie, for defendants-appellees.
    Before CHEHARDY, KLIEBERT and CURRAULT, JJ.
   KLIEBERT, Judge.

This is an appeal from a suit for damages brought by Mr. and Mrs. Roger Sandridge, plaintiffs, against their neighbors, Mr. and Mrs. John Sunseri. Plaintiffs’ suit was grounded in a contention defendant, Mrs. Sunseri, caused damage to their lawn by throwing grease thereon.

Mrs. Sunseri and Mr. Sandridge were the only witnesses to appear and testify. Mr. Sandridge had obtained a photograph of Mrs. Sunseri holding a frying pan in her hand and standing on her carport next to his property. He testified that he took the photograph when he saw Mrs. Sunseri emptying the contents of the frying pan onto his lawn. From its smell and feel, he believed the contents of the frying pan to be grease. According to Mr. Sandridge’s testimony, there were burned spots on his lawn which he believed were caused by the grease thrown by Mrs. Sunseri. Mrs. Sun-seri admitted emptying the contents of the frying pan onto the lawn, but contended that the same was soapy water rather than grease. Also introduced into evidence were several soil sample reports from the L.S.U. Laboratory indicating that the soil should grow St. Augustine grass very well and if it did not, it was probably due to insect or disease. There was also evidence introduced that the neighbors had been feuding for some time over a common sewerage service.

The trial judge dismissed the plaintiffs’ action because plaintiffs failed to carry the burden of proof by showing that the burned spots on the lawn were caused by the defendants.

After a careful review of the record, we find, as did the trial judge, that the plaintiffs have failed to show that the substance thrown onto the lawn by Mrs. Sun-seri was the cause in fact of the brown or burnt spots on the lawn. Although Mr. Sandridge testified that he believed from its feel and smell that the substance emptied from the pan was grease, the only other witness, Mrs. Sunseri, remained steadfast in her position it was soapy water. Under the standard of appellate review set by the Supreme Court in Canter v. Koehr-ing, 283 So.2d 716 (La.1973), where there is a reasonable evaluation of credibility, we should not disturb the trial judge’s conclusion because he, looking at live witnesses, as opposed to our looking at a cold record, is in a better position to evaluate the credibility of the witness.

Accordingly, the judgment of the lower court is affirmed. All costs of appeal to be borne by the appellant.

AFFIRMED.


author: BOUTALL, Judge.

text:
    James GRAVOIS v. HELICOPTER CHARTER, LTD. (Two cases)
    Nos. 5-30, 5-31.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 8, 1982.
    Gerald J. Gallinghouse of Porteous, Tole-dano, Hainkel & Johnson, New Orleans, for Helicopter Charter, Inc., & Helicopter Charter, Ltd., defendants-appellees.
    Leonard H. Rubenstein, New Orleans, for James Gravois, plaintiff-appellant.
    Before BOUTALL, DUFRESNE, and GRISBAUM, JJ.
   BOUTALL, Judge.

This appeal is taken from a judgment maintaining peremptory exceptions of no cause of action based upon the premise that the plaintiff is a limited partner suing his partnership and his general partner on two promissory notes signed by them. Based upon certain factual representations, the court held that the limited partnership should have sued for the dissolution and accounting of the partnership before bringing suit directly against the partner and partnership on the promissory notes. We reverse because the evidence on which the trial judge relied was beyond the scope of the exception of no cause of action.

James Gravois filed two suits on two promissory notes which he alleged to be in default. One suit was against Helicopter Charter, Ltd., on a promissory note for $20,000.00, and the second was against Helicopter Charter, Inc., on a note for $10,-000.00. Each suit contains the usual allegations that plaintiff is the holder and owner of the note, described the note, alleges facts that the note is in default and that no payments have been made, ending with the usual prayer for principal, interest and attorney’s fees. There is nothing in either petition or the attached notes that would indicate any relationship between plaintiff and defendant other than a simple payor-payee relationship.

To these petitions the defendants answered and filed reeonventional demands alleging among other things in the answer that the plaintiff was a partner with Helicopter Charter, Inc., in the partnership of Helicopter Charter, Ltd., and that the money advanced was a contribution to and/or an investment in the partnership for the purpose of obtaining an investment tax credit and other benefits. The reeonventional demand asserts that Gravois is responsible for expenses incurred and loses sustained and imposed upon the partnership, asks for the adjudication of the relations between the parties and prays for imposition of liability upon Gravois for the loses sustained, etc.

Sometime later Gravois filed motions for summary judgment in each case with affidavits of support of his position, and the defendants responded with counter affidavits. On August 26, 1980, the trial judge held a hearing on the motion for summary judgment and dismissed plaintiff’s motion for summary judgment on September 11, 1980. Although plaintiff presents to this court an issue that the motion for summary judgment was erroneously denied, we do not consider this issue for two obvious reasons. The first is that Code of Civil Procedure Article 968 does not permit an appeal from a court’s refusal to render summary judgment. The second is that plaintiff did not even file any timely appeal from the judgment of September 16, 1980.

The appeal that was taken is from a judgment of January 19, 1981, in which judgment was granted in favor of defendants Helicopter Charter, Inc., and Helicopter Charter, Ltd., against plaintiff Gravois maintaining the defendants’ exceptions of no cause of action and dismissing plaintiff’s suits at his costs, but without prejudice. That judgment apparently came about after a hearing was set on the merits, and prior to taking up the merits, the trial judge took up the exceptions that the defendants had filed. Despite appellant’s statements in brief that he is unaware of the basis for dismissal of his suit, the record contains a clear judgment as noted, together with detailed and well articulated reasons. On this appeal, appellant asserts that the exceptions should not have been maintained dismissing the suit and that the trial judge erroneously maintained that neither a corporation nor a limited partnership may be sued by an owner or holder of a note when the note is in default. Appellant’s brief does not directly address the reason for the judgment relied upon by the trial judge, from which reasons we quote in pertinent part:

“Before the Court today is Defendants’ exception of no cause of action. Defendants contend that neither of them may be sued by Plaintiff in light of their partnership-relationships.
A partner may not sue a co-partner on a demand growing out of partnership transactions, but must sue for the settlement of the partnership. Ingersoll Corp. v. Rogers, [217 La. 79], 46 So.2d 45 (La.1950).
It has been held that the rule that one partner cannot sue a co-partner or the partnership during or pending liquidation of the partnership is applicable to partnerships in commendam. LSA-C.C. Art. 2839; Salsul Company v. Kohlmeyer, et a1, 325 So.2d 858 ([La.App.] 4th Cir. 1976).”

On this appeal we do not examine the correctness of the trial judge’s conclusions, because we are faced with a procedural issue which causes us to pretermit that assignment of error. For that proposition to be valid, there must be some showing of the partnership relation between the parties. The reasons for judgment and the record before us make it plain that the trial judge considered pleadings, affidavits and documents beyond plaintiff’s petition, and these sources of information may not be considered on an exception of no cause of action. As we have noted, the petition in each case is a simple suit on a promissory note and there is no mention of partners or partnerships in those petitions. That information comes from the defendants’ answers and reconventional demands as well as the affidavits and documents produced on the motion for summary judgment.

We refer to the case of Hero Lands Company v. Texaco, Inc., La., 310 So.2d 93 in which the Supreme Court of Louisiana stated at page 96:

“(1, 2) The function of the peremptory exception of no cause of action is to test the legal sufficiency of the petition. The correctness of the well-pleaded allegations of fact is conceded, the issue is whether the face of the petition presents a case which legally entitles the mover to the redress sought. It is the sufficiency of the petition or motion in law which is put at issue by the exception. Rebman v. Reed, 286 So.2d 341 (La.1973); Louisiana State Board of Medical Examiners v. England, 252 La. 1000, 215 So.2d 640 (1968).”

See also Gooding v. St. John the Baptist Police Jury, et al., 342 So.2d 1289 (La.App. 4th Cir. 1977), wherein this court held that defendants’ fact allegations which may constitute a valid defense cannot be considered on the trial of the exception of no cause of action.

We hold that the allegations of plaintiff’s petition in each case are sufficient to constitute a cause of action and accordingly the exceptions should not have been maintained. Accordingly, the judgment appealed from is reversed and defendants’ exception of no cause of action is dismissed in each case. The costs of this appeal shall be assessed by the trial court upon the conclusion of each case.

REVERSED.

      . The legal name in the articles of partnership is Helicopter Charter Limited, but the note is signed by, and suit is brought against, the partnership as Helicopter Charter, Ltd.


author: SAMUEL, Judge.

text:
    Mark A. BARNES v. UNITED SERVICES AUTOMOBILE ASSOCIATION, et al.
    No. 5-26.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 8, 1982.

      Schafer & Schafer, Gary M. Heilman, New Orleans, for defendants-appellants, United Services Automobile Ass’n.
    Malcolm B. Robinson, Jr., Metairie, for defendant-appellant, Regal Premium Finance, Inc.
    Before SAMUEL and GAUDIN, JJ., and MELVYN J. PEREZ, J. Pro Tern.
   SAMUEL, Judge.

Plaintiff instituted this suit for breach of contract against United Services Automobile Association, his automobile liability insurer, for $3,300, plus penalties and attorney’s fees for its alleged failure to pay a claim when the automobile was destroyed by fire. Defendant answered claiming the loss was sustained after plaintiff’s policy was cancelled for non-payment of premium.

Thereafter, by supplemental and amended petition, plaintiff named Mike P. Galjour Insurance Agency and Regal Premium Finance, Inc. as additional defendants, averring the policy had been purchased through the Galjour agency and financed by Regal. These defendants answered in the form of a general denial and filed exceptions of prescription.

Following trial, judgment was rendered in favor of plaintiff and against the insurer and the finance corporation, United Services and Regal, in solido, in the sum of $3,200, together with attorney’s fees of $1,000, plus interest and costs. The demand against Galjour was dismissed as was the plea of prescription. The two defendants cast have appealed suspensively.

The pertinent facts are not in dispute: Plaintiff procured a policy of automobile liability insurance from Mike P. Galjour Insurance Agency. The policy, effective February 20, 1978, was issued by United Services Automobile Association, and financed through Regal Premium Finance Company. Regal paid the insurer and plaintiff obligated himself to make monthly payments to Regal. The finance agreement authorized the creditor, Regal, to cancel the policy in the event plaintiff did not pay the monthly premium installments when due.

Shortly after purchasing the policy, plaintiff decided to add comprehensive and collision coverage thereto. He paid the full premium ($321) for these additional coverages directly to United Services Automobile Association which added these provisions to the policy. Regal had no knowledge of this additional coverage, nor did it have any knowledge of the payment of premiums therefor.

Plaintiff failed to pay his July premium installment to Regal and on July 24, 1978 Regal sent notice of impending cancellation to plaintiff, Galjour and United Services Automobile Association, requesting payment by August 7, 1978 under penalty of cancellation. No further payments were made. Thereafter, on September 7, 1978, Regal requested the insurer to cancel plaintiff’s policy for non-payment of premiums. Upon receipt of this request the insurer cancelled the policy effective August 7, 1978, and confirmed the cancellation to plaintiff, Galjour and Regal. In October, 1978 plaintiff’s automobile was destroyed by fire and he made a claim against the insurer, which was denied, resulting in this suit.

In his reasons for judgment the trial court concluded Regal and United Services Automobile Association had no authority to cancel the policy insofar as comprehensive and collision was concerned because the premium for those coverages had been paid in full.

In this court appellants contend the trial court erred in: (1) ruling the policy was wrongfully cancelled; alternatively, (2) awarding attorney’s fees; and, in the further alternative, (3) failing to maintain the pleas of prescription.

Relative to appellants’ first contention, to reiterate, as originally issued in February, the one policy in suit provided coverage for bodily injury only. In June, 1978, collision and comprehensive coverage were added to the existing policy. Regal was not notified of this addition, and its loan agreement was in no way affected by it.

The contract between Regal and plaintiff contains the following language:

“TERMS AND CONDITIONS OF FINANCING AND ASSIGNMENT
At the request of the assured below named, we have agreed to finance the payment of the premium on the policy below described and have obtained from assured and/or the policy writing agent an agreement which includes an assignment to us of all return premiums upon the policy and an assignment of any claim for loss (should such loss deplete or reduce the unearned premium) to the extent necessary to pay to us in full all sums due us by the assured. The assured agreed that a default In the payment of any sum or an assignment of the policy without our written consent shall constitute a request by the assured for cancellation of the policy.” (Emphasis ours).

Plaintiff knew, or should have known, that failure to pay any portion of the premium would render the entire policy subject to cancellation. In the absence of cancellation, the insurer continued to provide not only comprehensive and collision coverage, but also liability coverage.

We know of no law, and have been cited to none, which would permit a party to pay for only one portion of a policy without cancelling other portions he did not wish to retain, and to make his election after he had sustained a loss. This, in essence, is what plaintiff was attempting to do when he made a claim under the comprehensive portion of the policy, while that portion of the policy referrable to bodily injury remained unpaid.

By his own admission, plaintiff failed to make any payments under the policy after July, 1978, he received the ten day notice prior to cancellation, and he also received the cancellation notice itself thereafter.

In Armstead v. Aetna Casualty & Surety Co., La.App., 322 So.2d 299, the court determined that an insured could properly assign the right to cancel his policy to a third party under certain terms and conditions, and that such assignment was not violative of the public policy of this state. At page 301 of its published opinion the Armstead court stated:

“LSA-R.S. 22:637 provides in part as follows:
‘A. Cancellation by the insured of any policy which by its terms is cancellable at the insured’s option or of any binder based on such policy may be effected by written notice thereof to the insurer and surrender of the policy or binder for cancellation prior to or on the effective date of such cancellation. In event the policy or binder has been lost or destroyed and cannot be so surrendered, the insurer may in lieu of such surrender accept and in good faith rely upon the insured’s written statement setting forth the fact of such loss or destruction.
‘B. Following such cancellation the insurer shall pay to the insured or to the person entitled thereto as shown by the insurer’s records, any unearned portion of any premium paid on the policy as computed on the customary short rate or as otherwise specified in the policy. If no premium has been paid on the policy, the insured shall be liable to the insurer for premium for the period during which the policy was in force. * # * t
Clearly, this statute contemplates the cancellation by an insured of his own policy prior to expiration of its term. Whether the insurer is paid in full is immaterial. We conclude that this right may be assigned by the insured to a third party and we perceive of no reason why such an assignment would be against public policy. See: Saskatchewan Gov’t Ins. Office v. Padgett, 245 F.2d 48 (5th Cir. 1957). See also 115 A.L.R. 1212, 1213, and authorities cited therein.
In the instant case the insured contractually authorized cancellation by Louisiana National Bank of this policy in the event of non-payment of the premium and, upon being paid by the agency after demand, the bank assigned that right of cancellation to the agent, who was legally and conventionally subrogated thereto, (c. f., Nagem Electric Co. v. Aetna Ins. Co., 195 So. 76, (La.App. 1st Cir. 1940).
The insured was properly notified of the impending cancellation and candidly testified on deposition that, at that time, he had no money with which to pay the last installment. He thereafter cashed the unearned premium check.
LSA-R.S. 22:636.1, subd. A(6) and subd. B(l) contain these terms:
‘A. As used in this chapter:
(6) “Nonpayment of premium” means failure of the named insured to discharge when due any of his obligations in connection with the payment of premiums on a policy, or any installment of such premium, whether the premium is payable directly to the insurer or its agent or indirectly under any premium finance pian or extension of credit. (Emphasis added)
‘B. A notice of cancellation of a policy shall be effective only if it is based on one or more of the following reasons:
(1) Nonpayment of premidm; . .. ’
Thus, policy cancellations for non-payment of premium ‘under any premium finance plan or extension of credit’ are sanctioned by the laws of this state and are obviously not contrary to public policy.”

In the instant case the insured contractually authorized cancellation by' Regal of this policy in the event of non-payment of premium. The policy purchased by plaintiff was properly cancelled because of the insured’s failure to pay the premium according to the terms of that agreement.

Because of our determination on the first assignment of error, we find it unnecessary to discuss the other contentions.

For the reasons assigned, the judgment appealed from is reversed, and it is now ordered that there be judgment in favor of defendants-appellants, Regal Premium Finance, Inc., and United Services Automobile Association, and against plaintiff, dismissing his suit against them. All costs in both courts are to be paid by plaintiff, Mark A. Barnes.

REVERSED.


text:
    Tianna M. HARMON v. John Thomas HARMON, III.
    No. 5-276.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 8, 1982.
    Bussoff & Waldrup, Bettyanne L. Bus-soff, New Orleans, for plaintiff-appellant.
    Garland R. Rolling and Michael Baham, Metairie, for defendant-appellee.
    Before SAMUEL, GAUDIN and MEL-VYN J. PEREZ, J. pro tern.
   SAMUEL, Judge.

This is an appeal from a judgment on a rule for alimony pendente lite and child support. The matter was heard November 16, 1981, and at the conclusion of the trial the court orally stated from the bench, in pertinent part:

“.. . . it is the judgment of this court that Mr. Harmon pay to his wife all of the medical bills sustained by her and the son and that he pay also $250.00 per week. . . .
Now, let me tell you something else. You are still responsible for all community obligations under the law.”

Counsel for the wife, plaintiff in rule, thereafter prepared and submitted a judgment which was signed by the trial court on November 20, 1981. That signed judgment reads:

“IT IS ORDERED, ADJUDGED AND DECREED, that John Thomas Harmon pay Tianna M. Harmon $250.00 per week child support for the minor child.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED, that John Thomas Harmon continue to pay any community debts now in existence.”

Thereafter, the husband filed an ex parte motion titled “MOTION TO CORRECT CLERICAL ERROR IN JUDGMENT.” The motion stated the judgment orally rendered on November 16, 1981 was to the effect that the $250 per week was for the support of both the wife and the child and that community debts were still obligations of the community.

On December 1, 1981, without a hearing, the judge then signed the corrected judgment then moved for, which was attached to the defendant’s ex parte motion, changing the first decretal paragraph of the November 20, 1981 judgment to read:

“IT IS ORDERED, ADJUDGED AND DECREED, that John T. Hannon, III, pay unto Tianna M. Harmon the amount of $250.00 per week for support of Tianna M. Harmon and the minor child of the marriage, John T. Harmon, IV.”

The wife has suspensively appealed. In this court she contends the errors complained of are not clerical errors but errors of substance which cannot be corrected ex parte.

We agree the error complained of addresses itself to the substance. Further, it is only the written, signed judgment which is on appeal; what the trial judge said when he orally rendered judgment from the bench is immaterial here.

For the reasons assigned, the judgment appealed from is annulled and set aside and the matter is remanded to the trial court for further proceedings in accordance with law and with the views herein expressed.

JUDGMENT ANNULLED; MATTER REMANDED.

      . LSA-C.C.P. Art. 1951; Hebert v. Hebert, La. App., 351 So.2d 1199.

      . Hebert v. Hebert, supra, note 1.


author: PRICE, Judge.

text:
    Arnold JORDAN, Individually, and as the Administrator of the Estate of the Minor, Ellen Jo Jordan, Plaintiff-Appellant, v. EMPLOYERS COMMERCIAL UNION INSURANCE COMPANY, et al., Defendants-Appellees.
    No. 14899.
    Court of Appeal of Louisiana, Second Circuit.
    June 15, 1982.

      Sanders & Castete, Ltd. by Martin S. Sanders, Jr., Winnfield, for plaintiff-appellant.
    Watson, Murchison, Crews, Arthur & Corkern by William P. Crews, Jr., Natchi-toches, for defendants-appellees Employers Commercial Union Ins. Co. and Minnette Smith.
    Gahagan & Gahagan by Russell E. Gaha-gan, Natchitoches, for defendant-appellee Minnette Bradley Smith.
    Before PRICE, MARVIN and FRED W. JONES, Jr., JJ.
   PRICE, Judge.

This action arises out of an automobile accident in which Ellen Jo Jordan was injured while a guest passenger in a vehicle driven by Debra Fontenot. Defendants are Minnette Smith, the mother of Miss Fontenot, and Employers Commercial Union Insurance Company, Mrs. Smith’s liability insurer. The trial court denied recovery for the injuries sustained by Miss Jordan on the finding that she had assumed the risk of Miss Fontenot’s negligence since she knew Miss Fontenot was under the influence of alcoholic beverages and marijuana which caused her to have the accident. We reverse the judgment insofar as it rejects plaintiff’s demands for personal injuries and affirm the trial court’s denial of the claim for additional medical expenses under the medical payments provision of the insurance policy.

The facts giving rise to the accident and resulting injury to Miss Jordan are as follows: On October 1, 1977, at approximately 7:30 p. m., Miss Jordan and Miss Fontenot made plans to leave their respective homes in Winnfield, pick up Reginald Amos, and drive to Natchitoches to meet Kerry La-Caze. Prior to picking up Amos, the two girls purchased a bottle of wine (one-fifth gallon) and an eight-pack of seven-ounce bottles of Miller beer. The girls drank the bottle of wine prior to arriving in Natchi-toches. LaCaze was located at approximately 9:00 p. m. and the two couples drove to a liquor store where LaCaze purchased another carton of seven-ounce bottles of beer. The group of four drove around for several hours drinking beer. Around midnight they decided to visit a party being held at a mobile home on Cane River approximately five miles south of Natchitoch-es. There were alcoholic beverages and marijuana available at the party. There is no evidence that Miss Fontenot consumed any beverages at the party. She testified she did participate in smoking one “joint” of marijuana. The evidence is conflicting on whether Miss Jordan, who was not in the room where the marijuana was being used, was aware that Miss Fontenot had participated in this activity.

A short time before the accident Miss Fontenot started to leave the party alone in her automobile. As she was unfamiliar with the roads in the area, she became lost and returned. She was then joined by Miss Jordan, Amos, and LaCaze for the return trip through Natchitoches and on to Winn-field.

Just prior to 4:00 a. m., as they approached a sharp curve on Louisiana Highway 494, Miss Fontenot lost control of the vehicle, left the road, and struck a tree. As a result of this accident, Miss Jordan suffered personal injuries for which she seeks recovery in this action.

There is no question that the accident was caused by the negligence of Miss Fon-tenot. The issue is whether the trial court was correct in finding Miss Jordan had assumed the risk of injury by voluntarily riding with her.

The trial court in its reasons for judgment found the defendants had met the burden of proof required of them in asserting such an affirmative defense under the principles set forth in Prestenbach v. Sentry Ins. Co., 340 So.2d 1331 (La.1976).

The majority opinion in Prestenbach reviewed the rules of law pertinent to this issue as follows:

The law is well settled that a guest passenger riding with a driver who has been drinking excessively assumes the risk of injuries received in an accident caused in whole or in part by the driver’s negligence, if the alcohol-induced impairment of the driver’s ability is a substantial contributory cause of the driver’s negligence and if the guest passenger knows or should have known of the driver’s condition and nevertheless voluntarily rides with him. Marcotte v. Travelers Ins. Co., 258 La. 989, 249 So.2d 105 (1971); Jones v. Continental Casualty Co., 246 La. 921, 169 So.2d 50 (1964).
As with other affirmative defenses, the defendant who pleads contributory negligence or assumption of the risk bears the burden of proving it. La.C.Civ.P. Art. 1005; McInnis v. Firemen’s Fund Insurance Company, 322 So.2d 155 (La.1975); Marcotte v. Travelers Ins. Co., cited above. In the present case, this means that, to defeat recovery for damages caused by the driver’s undoubted negligence, the defendant must prove by a preponderance of the evidence that: (1) the driver was intoxicated; (2) his intoxication was a cause of the accident; and (3) the plaintiffs’ decedent knew or should have known of the driver’s condition....

The evidence shows the total amount of alcoholic beverages purchased on the night of the accident by the four occupants of the Fontenot automobile was one-fifth bottle of wine and 16 seven-ounce bottles of Miller beer. The evidence also shows the two girls drank the wine in approximate equal portions between 7:00 and 9:00 p. m. The evidence is not clear on the specific amount of beer each person drank. The testimony shows, however, that all four consumed a portion during the approximate three-hour period that the group rode around prior to going to the party on Cane River.

Whether either girl drank any other intoxicants at the party in the early morning hours is not clearly shown by the evidence. There is evidence that Miss Fontenot did participate in the smoking of one “joint” of marijuana along with the other persons present at the party. The evidence shows Miss Jordan was not in the trailer at this time and did not see the marijuana being used. However, there is testimony that Miss Fontenot informed Miss Jordan of her marijuana smoking shortly before they left the party.

Taking the evidence as a whole, we do not find that it is sufficient to meet the standards set forth in Prestenbach to sustain the affirmative defense of assumption of the risk.

It would be difficult to judge the degree of intoxication solely on the limited quantity of alcoholic beverages proven to have been consumed over this extended period of time (approximately eight hours) without a blood alcohol test. Although such a test was administered, the result of same was not introduced into evidence. Secondly, there is not a preponderance of the evidence showing Miss Jordan knew or should have known Miss Fontenot was intoxicated to an extent to impair her driving ability on this date.

The conflicting testimony suggests that Miss Jordan and LaCaze had offered to drive when the group prepared to leave the party. The trial court concluded that such an offer had been made, and that the reason for it was because Miss Fontenot was obviously intoxicated by the marijuana and alcohol she had consumed. However, we find that this evidence does not warrant such a conclusion of intoxication. The testimony is vague and does not indicate any reason why an offer to drive was made.

There is no evidence that Miss Fontenot had any of the symptoms of obvious intoxication, such as staggering, impaired speech, or irrational conduct. Other than the excessive speed of the vehicle just prior to the accident, there is no evidence showing that Miss Fontenot was operating her vehicle in a hazardous or reckless manner. Nor is there any evidence that she had driven at an unreasonably high rate of speed earlier in the evening enroute to the party.

The facts of the instant case are very similar to those in Prestenbach. There the deceased guest passenger had been drinking and partying with the driver of the automobile for approximately six hours prior to the fatal accident.

In rejecting the defense of assumption of the risk the Supreme Court observed:

However, for purposes of a knowing assumption of risk, we impute knowledge to a plaintiff, not because he was in a position to make certain observations, but only when he actually makes those observations and, from them, should reasonably have known that a risk was involved.
In the instant case, all testimony adduced at trial indicates that Blanco did not appear intoxicated. The defendants have presented no evidence that would indicate that Prestenbach had knowledge of the driver’s intoxicated condition or that, from his personal observations of the driver’s prior activities and condition, he should reasonably have known of this condition.

The evidence to support the affirmative defense in the instant case is no more convincing than that offered in Prestenbach. We therefore find the trial court erred in finding that Miss Jordan had assumed the risk of injury by riding with Miss Fontenot.

As a result of the accident, Miss Jordan suffered a fracture of the superior ramus of the pelvis, a head laceration, and a cerebral concussion. She was hospitalized for three days at Winnfield General Hospital for treatment of her injuries. Miss Jordan’s movement was restricted for approximately six weeks after the accident. Dr. Mosely, the family physician, was of the opinion that she had fully recovered from her injuries after about three months.

Other evidence shows that immediately after her discharge from Winnfield General Hospital, Miss Jordan was hospitalized for six days at Brentwood Hospital for treatment of emotional problems. While Dr. Mosley speculated that the trauma of the accident could have contributed to her emotional upset, there is evidence that Miss Jordan’s emotional problems predated the accident.

It was also established that Miss Jordan has suffered from various gynecological disorders since the accident. However, Dr. Easterly, a gynecologist who has treated Miss Jordan, was of the opinion this problem was not the result of the automobile accident.

In light of the various injuries suffered by Miss Jordan which are causally connected to the accident, we find that an award for general damages in the amount of $6,000 would be sufficient compensation.

Concerning the claim of Arnold Jordan for payment of medical expenses under the insurance policy, our review of the record does not conclusively establish that all of the medical expenses were incurred as a result of the automobile accident. The record does establish, however, that Employers Commercial Union Insurance Company has previously paid approximately $1,906 under its medical payments coverage.

From the record before us we can find no error in the conclusion that all of the medical expenses incurred as a result of the accident have been paid by the insurer.

For the foregoing reasons, the judgment insofar as it denies Ellen Jo Jordan recovery for her personal injuries is reversed. Judgment is hereby rendered in favor of Ellen Jo Jordan, against Minnette Smith and Employers Commercial Union Insurance Company, in solido, in the amount of $6,000, together with legal interest from date of judicial demand. The judgment denying the demands of Arnold Jordan for medical expenses is hereby affirmed. All costs of these proceedings, including this appeal, are assessed to defendant.

      . At the time of the accident, both Miss Jordan and Miss Fontenot were minors. This action was originally filed by Arnold Jordan, individually and as administrator of the estate of his minor daughter, for damages suffered by his daughter and to recover those medical expenses incurred in her treatment. Miss Jordan subsequently came of age and the pleadings were amended to make her a party plaintiff.


author: FRED W. JONES, Jr., Judge.

text:
    Phillip LaCAZE et ux., Plaintiffs-Appellants, v. L. R. COLLIER, M. D., Defendant-Appellee.
    No. 14900.
    Court of Appeal of Louisiana, Second Circuit.
    June 15, 1982.

      Kennedy & Yeager by Charles J. Yeager, and Ralph W. Kennedy, Alexandria, for plaintiffs-appellants.
    Provosty, Sadler & deLaunay by Frederick B. Alexius, Alexandria, for defendant-appellee.
    Before PRICE, MARVIN and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

Plaintiffs, husband and wife, appeal a judgment rejecting their claim for damages in a medical malpractice action against the defendant physician, asserting several specifications of trial court error which raise the following substantial issues:

(1) Did the defendant physician fail to secure plaintiff wife’s informed consent to the surgery in question because he did not advise her of all known risks — specifically the risks of vesico-vaginal fistula?
(2) Was the defendant physician negligent in failing to discover that plaintiff wife had a serious pre-operative infection and in failing to delay surgery until that infection could be properly treated in order to reduce the risk of a secondary wound infection?

Finding no manifest error in the trial judge’s determination that the defendant physician secured the informed consent of plaintiff wife prior to surgery and agreeing with the trial judge that plaintiffs failed to prove by a preponderance of the evidence that the defendant physician was negligent in his medical treatment of plaintiff wife, we affirm.

Context Facts

In November 1972, plaintiff wife, Mrs. Doretha LaCaze, consulted Dr. L. R. Collier, defendant physician, a general surgeon practicing in Winnfield, complaining of pain in the lower abdomen and giving a history of chronic pelvic discomfort. Dr. Collier, whose practice involved considerable gynecological surgery, found that Mrs. LaCaze was suffering from a chronic pelvic inflammatory disease (P.I.D.). The physician prescribed antibiotic therapy and recommended a hysterectomy.

Between the initial visit in 1972 and May 10, 1977, Dr. Collier saw Mrs. LaCaze on about fifteen different occasions. On each of these examinations he noted that his patient continued to suffer from P.I.D. and the physician routinely repeated his recommendation that she undergo a hysterectomy. On May 10,1977, Dr. Collier gave Mrs. LaCaze a complete physical examination. He found that her uterus had increased in size and concluded that, in addition to P.I.D., she was also afflicted with either endometriosis (disease of internal menstruation) or uterine fibroids.

On June 11, 1977 Mrs. LaCaze became ill at her place of employment and fainted. That night she telephoned Dr. Collier and requested that he schedule her for a hysterectomy. Dr. Collier made the necessary arrangements for this surgery and Mrs. La-Caze was admitted to the Winnfield hospital on June 13, 1977. Upon admission, Mrs. LaCaze signed two separate forms consenting to the contemplated surgical procedure. Standard pre-operative tests indicated no abnormal physical condition. Dr. Collier, who had not examined Mrs. Collier after May 10, 1977, performed the hysterectomy on June 14, 1977.

During the course of the operation, Dr. Collier noted that his patient’s uterus exuded a foul, coliform odor, indicating the existence of an active, severe infectious condition. Out of some 1500 hysterectomies he had performed, Dr. Collier could recall detecting an odor of this nature in only three or four. It was also discovered that Mrs. LaCaze’s uterus was enlarged because of fibroids, but she did not have endometriosis.

During her post-operative stay in the hospital Mrs. LaCaze developed a secondary wound infection which was cleared up by Dr. Collier’s treatment. Mrs. LaCaze also started experiencing difficulty controlling her urine flow, stating that it was “oozing from me and I didn’t know what was causing it.” She was discharged from the hospital on July 15, 1977.

In July 1977 Mrs. LaCaze returned to Dr. Collier for two post-operative examinations, complaining on each occasion of urinary problems and, specifically, of incontinence. On the second visit Dr. Collier became concerned that his patient might be suffering from a vesico-vaginal fistula, and decided to arrange for her examination by a urologist. However, before he could do so, Mrs. LaCaze on her own initiative consulted Dr. E. C. St. Martin, a Shreveport urologist. Dr. St. Martin diagnosed the problem as a vesico-vaginal fistula and on August 23, 1977 performed surgery which corrected the condition.

At the trial on the merits, Dr. Collier conceded that Mrs. LaCaze developed the vesico-vaginal fistula as a result of the surgery he performed on June 14,1977. However, plaintiffs do not contend that this constituted negligence on the physician’s part.

Informed Consent

Appellants argue that, under the mandatory terms of R.S. 40:1299.40 (Louisiana Uniform Consent Law), there can be no legal consent to surgery when the physician does does not warn the patient of the known risk of the loss of function of an organ. Consequently, they contend, here there was no legal consent given by Mrs. LaCaze because Dr. Collier did not warn her of the known risk of a vesico-vaginal fistula which would result in the loss of function of her bladder.

It is well established in our jurisprudence that the consent of a patient, express or implied, is required prior to a surgical procedure, and a surgeon who operates without such consent is liable in damages (even though not negligent in performing the surgery), except in case of an emergency requiring immediate surgery for preservation of life or health under circumstances in which it is impractical to obtain the consent of the patient or someone authorized to assume that responsibility. The patient’s consent must be an informed one, i.e., the physician has a duty to disclose all known information material to a patient’s intelligent decision to undergo a particular operation or therapeutic procedure. That information should include a description and explanation of the proposed diagnostic, therapeutic or surgical procedure contemplated, the material risks involved and any alternatives available. Babin v. St. Paul Fire & Marine Ins. Co., 385 So.2d 849 (La. App. 1st Cir. 1980); Steele v. St. Paul Fire & Marine Ins. Co., 371 So.2d 843 (La.App. 3rd Cir. 1979); Percle v. St. Paul Fire & Marine Ins. Co., 349 So.2d 1289 (La.App. 1st Cir. 1977).

It appears from our examination that the Uniform Consent Law upon which appellants rely deals primarily with eviden-tiary matters relating to written consents and, only incidentally, elaborates upon the jurisprudential rules governing informed consent by reciting specific “known risks.” The statute does not purport to broaden the case law to extend the scope of required warning to all conceivable risks incidental to surgery — a rule which would be patently unrealistic and unworkable.

Pretermitting consideration of whether an “abnormal communication” between the bladder and the vagina results in loss of function of an organ (the bladder) within the meaning of the Uniform Consent Law, we simply conclude that, in order to obtain Mrs. LaCaze’s informed consent to the proposed hysterectomy, Dr. Collier was obliged under our law to warn her of all material risks. The factual question, resolved adversely to appellants by the trial judge, is whether there is a material risk of a vesico-vaginal fistula occurring incidental to a hysterectomy.

Dr. Vincent, an Alexandria obstretician and gynecologist, explained how these fistu-lae occur during a hysterectomy, as follows:

“I think there are basically three reasons why fistulae do result. One is direct injury at the time of surgery secondary to a scalpel, clamp, etc. which is — or which would be unrecognized at that time. Secondly, you might have the inadvertent placement of a suture through the bladder connecting it to the vaginal cuff. And third would be the result of what we call a vascular necrosis where a certain particular area of the bladder would be devascularized or deprived of its blood supply, resulting in fistulae formation.
“A fistula forms primarily in all three ways because the area of the bladder itself is either directly left open or develops an opening due to necrosis of the tissue, and the bladder adheres and connects itself to the vagina.”

He estimated that the rate of occurrence for vesico-vaginal fistulae is two or three per every thousand hysterectomies. Dr. Bowers, another Alexandria gynecologist, placed the rate at between three and five per thousand hysterectomies. Dr. Collier termed the risk as “very minor” in a total abdominal hysterectomy, occurring one or two per thousand hysterectomies. Appellants made no attempt to refute this testimony relating to the risk of a vesico-vaginal fistula in the performance of a hysterectomy.

Considering this evidence, the trial judge was not clearly wrong in his factual finding that the risk of a vesico-vaginal fistula was not a material one in the performance of a hysterectomy. Consequently, Dr. Collier was not obligated to warn her of that risk and the failure to do so did not negate the existence of an informed consent to surgery. As the trial judge pointed out in his excellent, written opinion:

“There was no surgery without the lawful consent of plaintiff. According to her testimony, Dr. Collier recommended that a hysterectomy be performed on all 16 of her visits to him. They discussed the surgical procedures fully during that time and all material risks related thereto. Dr. Collier warned her there was a risk of problems and complications with all surgery. He told her that wound and cuff infections were the most common problem, that vaginal drainage for some time after surgery, bloody vaginal discharge for a shorter period after surgery, chest complications, illeus or bowel distention, blood clots and urinary infections also might occur. During the discussions prior to surgery, plaintiff asked about the effect of surgery on sex relations and requested that one ovary be saved, if possible. She was fully informed of all material risks and gave her consent to the surgery.”

Since Dr. Collier secured the informed consent of Mrs. LaCaze prior to surgery, he was not negligent in this respect. This determination obviates the necessity of our discussing the question of causation, i.e., whether Mrs. LaCaze would have consented to surgery if she had been warned of the risk of a vesico-vaginal fistula. See Zeno v. Lincoln General Hospital, 404 So.2d 1337 (La.App.2d Cir. 1981).

Alleged Negligence in Failure to Detect Extensive Pre-operative Infection

La.R.S. 9:2794 details the burden of proof which must be discharged by a plaintiff in a malpractice action based on the alleged negligence of a physician.

The question here is whether appellants proved by a preponderance of the evidence that Dr. Collier failed to use reasonable medical care and diligence because he did not examine Mrs. LaCaze upon her admission to the hospital for surgery, detect the presence of the extensive pelvic infection and delay surgery until that condition could be treated.

In dealing with this question, the trial judge stated:

“Could defendant have discovered the degree of active infection prior to surgery by a physical examination of plaintiff? That is the essential question posed by plaintiff’s argument. There is no evidence that he could have. Here we have a doctor who had been treating Mrs. La-Caze regularly for several years. He had seen her 3 times in 1977 prior to surgery. On May 10, 1977, she had an extensive physical examination as well as a pelvic examination. Upon her entrance into the hospital and prior to surgery, laboratory studies were done on defendant’s orders. Urinalysis, hematology, BUN and electrolytes revealed nothing to indicate the presence of serious, extensive infections.
“Dr. Vincent, a specialist in obstetrics and gynecology, was the only expert witness who was asked about the failure to physically examine plaintiff prior to surgery and he did not consider that improper under the circumstances of the present case.
“Therefore, I conclude that plaintiff has failed to establish by a preponderance of the evidence that defendant failed to use reasonable care and diligence along with his best judgment in diagnosing any pelvic infection Mrs. LaCaze may have had prior to surgery.”

Dr. Vincent explained that, if he had been acquainted with the patient’s state of health over a period of four or five years (as was Dr. Collier), he would have no concern about performing the operation on June 14 without another physical examination after May 10, since he would not anticipate any major change during that period which would contraindicate the planned surgical procedure.

Appellants offered no evidence tending to show that reasonable medical care and diligence required Dr. Collier to give Mrs. La-Caze another physical examination, following that of May 10, after her admission to the hospital for the hysterectomy, or that such an examination (despite the extensive negative laboratory tests) would have revealed the presence of the widespread pelvic infection. Consequently, we agree with the trial judge that appellants failed to discharge their burden of proving that Dr. Collier was guilty of medical malpractice in this respect.

Decree

For the reasons set forth, we affirm the judgment of the district court, at appellants’ cost.

      . Defined by medical witnesses as an abnormal communication between two cavities — here, the bladder and vagina.

      . This statute provides:
      A.Notwithstanding any other law to the contrary, written consent to medical treatment means a consent in writing to any medical or surgical procedure or course of procedures which (a) sets forth in general terms the nature and purpose of the procedure or procedures, together with the known risks, if any, of death, brain damage, quadriplegia, paraplegia, the loss or loss of function of any organ or limb, of disfiguring scars associated with such procedure or procedures, (b) acknowledges that such disclosure of information has been made and that all questions asked about the procedure or procedures have been answered in a satisfactory manner, and (c) is signed by the patient for whom the procedure is to be performed, or if the patient for any reason lacks legal capacity to consent by a person who has legal authority to consent on behalf of such patient in such circumstances. Such consent shall be presumed to be valid and effective, in the absence of proof that execution of the consent was induced by misrepresentation of material facts.
      B. Except as provided in Subsection A of this Section, no evidence shall be admissible to modify or limit the authorization for performance of the procedure or procedures set forth in such written consent.
      C. Where consent to medical treatment from a patient, or from a person authorized by law to consent to medical treatment for such patient, is secured other than in accordance with Subsection A above, the explanation to the patient or to the person consenting for such patient shall include the matters set forth in Paragraph (a) of Subsection A above, and an opportunity shall be afforded for asking questions concerning the procedures to be performed which shall be answered in a satisfactory manner. Such consent shall be valid and effective and is subject to proof according to the rules of evidence in ordinary cases.

      . A. In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261 et seq., or a dentist licensed under R.S. 37:751 et seq., the plaintiff shall have the burden of proving:
      (1)The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians or dentists licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians or dentists within the involved medical specialty.
      (2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill, and
      (3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.


text:
    James ROGERS, Plaintiff-Appellant, v. Douglas BROWN, M. D. et al., Defendants-Appellees.
    No. 14901.
    Court of Appeal of Louisiana, Second Circuit.
    June 15, 1982.
    Rehearing Denied July 23, 1982.

      Paul Henry Kidd, Monroe, for plaintiff-appellant.
    Hayes, Harkey, Smith & Cascio by Haynes L. Harkey, Jr. and Thomas M. Hayes, III, Monroe, for defendants-appel-lees.
    ■ Before HALL, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

Pursuant to a jury verdict, judgment was rendered rejecting plaintiff’s claim for damages based upon alleged medical malpractice against an orthopedic surgeon, his employer medical corporation, and their malpractice insurer. Plaintiff appeals the judgment, posing the following substantial issues:

(1) Did the trial judge commit reversible error in refusing to charge the jury on the doctrine of “untoward event” and the doctrine of res ipsa loquitur?
(2) Was the defendant orthopedic surgeon negligent in his medical treatment of plaintiff?
(3) Did the defendant orthopedic surgeon operate without first obtaining plaintiff’s informed consent to the surgical procedure?

For the reasons hereinafter set forth, we affirm the judgment of the district court. Factual Context

In August 1977, the plaintiff, James Rogers, 42 year old tractor mechanic, fell from a tractor and injured his left knee. During the second week in September 1977, plaintiff consulted his family physician, Dr. George Edwards, Delhi general practitioner, complaining of pain in the injured knee. Diagnosing the ailment as a possible torn ligament, Dr. Edwards referred plaintiff to Dr. Alfons Altenberg, a Monroe orthopedic surgeon, who had performed orthopedic surgery upon plaintiff several years prior thereto.

Dr. Altenberg saw plaintiff on September 23,1977 and, after an examination, concluded that he was suffering from a sprain of the medial collateral ligament and injected the left knee with hydrocortisone. Dr. Al-tenberg saw plaintiff again on October 11, 1977 and recommended that he try an anti-inflammatory medicine for relief of the discomfort in his knee. Plaintiff returned to Dr. Altenberg on October 31, 1977, still complaining of persistent pain in the left knee. Dr. Altenberg again gave him an injection of hydrocortisone in the affected knee.

During the time he was undergoing the specialized treatment by Dr. Altenberg, plaintiff remained under the general care of Dr. Edwards, returning to his family physician for treatment on several occasions in September, October and November, 1977. Finally, after seeing plaintiff on December 9, 1977, and learning that Dr. Altenberg’s ministrations did not appear to be alleviating his complaints with reference to the injured knee, Dr. Edwards decided that a second orthopedic opinion would be advisable. Consequently, he arranged for plaintiff to be examined by the defendant physician, Dr. Douglas Brown, a Monroe orthopedic surgeon, employed by the medical corporation, Drs. Cannon, Ledbetter, Cline and Bailey.

Dr. Brown first saw plaintiff on January 24,1978. After taking a history and learning of plaintiff’s treatment by Drs. Edwards and Altenberg, Dr. Brown examined plaintiff, noting in the muscle behind the left knee a fullness which indicated the possible presence of a mass or cyst. Dr. Brown concluded that the latter might be irritating the nerve in that area of the left knee.

Plaintiff communicated to Dr. Brown a sense of urgency about resolving his knee problem, stating that it was substantially interfering with his ability to work. In view of this, Dr. Brown scheduled special orthopedic tests for the following day. After their completion, results of the tests were found to be within a normal range. An orthogram revealed no abnormality in the knee joint and the nerve conduction test result proved to be at the lower end of normal range.

After reviewing the test results on January 25, 1978, Dr. Brown continued in his conviction that something was pressing on the peroneal nerve lying behind plaintiff’s left knee. The doctor theorized that there might be some kind of growth or mass in the muscle behind that particular nerve. Consequently, after discussing these possibilities with plaintiff, Dr. Brown scheduled surgery to explore the peroneal nerve and tendon running alongside it for February 2, 1978 at Glenwood Hospital in West Monroe.

During the course of that surgical procedure, Dr. Brown found a tight band of tissue overlying the peroneal nerve and observed that the nerve was flattened in the affected area. He then examined the muscle lying in back of the left knee but found no mass, cyst or tumor impinging on the peroneal nerve. Concluding that plaintiff’s problem was due to compression of the per-oneal nerve by the band of tissue, Dr. Brown performed an internal neurolysis. This consisted of puncturing the outer coating of the peroneal nerve with a small syringe needle and slowly injecting a saline solution into the nerve to break up any tissue inside it and restore the nerve to its normal shape. The operation was completed by washing out the wound with an antibiotic solution and closing it up.

During the postoperative recovery, plaintiff discovered that he was unable to lift his left foot. Dr. Brown initially attributed this “drop foot” to a temporary paralysis of the peroneal nerve, a not uncommon occurrence following surgery of this nature. However, when the nerve palsy and “drop foot” continued through May 1978, Dr. Brown referred plaintiff for examination to Dr. David Kline, New Orleans neurosurgeon and head of the Department of Neurosurgery at L.S.U. Medical School in New Orleans.

Dr. Kline first saw plaintiff on July 18, 1978. After a physical examination and review of tests, Dr. Kline concluded that plaintiff was suffering from a complete peroneal nerve palsy, causing the “drop foot”. He recommended an operation for the purpose of examining the affected nerve and, possibly, for performing a nerve graft.

Dr. Kline operated on plaintiff on August 17, 1978. He found that the peroneal nerve in the left knee area was in continuity (not severed) and, although injured, was in the process of regenerating itself. He noted the presence of some scar tissue around the nerve. Determining that a graft was unnecessary because “Mother Nature was doing its job,” Dr. Kline simply manipulated and freed up the peroneal nerve.

After his release from the hospital, plaintiff was seen by Dr. Kline from time to time until December 1980. He observed that plaintiff was experiencing gradual improvement and, on the occasion of his last examination, that plaintiff’s left knee had returned to 60% of normal.

Res Ipsa Loquitur

Plaintiff argues that the trial judge committed reversible error in refusing to charge the jury that his proof of the occurrence of an “untoward event” (peroneal nerve palsy resulting in “drop foot”) during the operation by Dr. Brown created a presumption of negligence which defendants were obligated to rebut. He further contends that, since the circumstantial evidence suggested the negligence of Dr. Brown as the most plausible explanation of the peroneal nerve damage, the trial judge also erred in refusing to charge the jury as to the doctrine of res ipsa loquitur.

Although the court in Gage v. St Paul Fire & Marine Ins. Co., 282 So.2d 147 (La. App.1973) purported to draw a distinction between the doctrine of “untoward event” and that of res ipsa loquitur, we can discern no practical difference between the two and conclude that the former falls under the rubric of the latter. Therefore, our discussion of this issue deals with the applicability of res ipsa loquitur.

La.R.S. 9:2794(A) prescribes the burden of proof which must be discharged by a plaintiff in a malpractice action based on the alleged negligence of a physician. However, Section C of the statute provides:

“In medical malpractice actions the jury shall be instructed that the plaintiff has the burden of proving, by a preponderance of the evidence, the negligence of the physician or dentist. The jury shall be further instructed that injury alone does not raise a presumption of the physician’s or dentist’s negligence. The provisions of this Section shall not apply to situations where the doctrine of res ipsa loquitur is found by the court to be applicable.” (Emphasis added)

The critical question here is whether the trial judge should have found the doctrine of res ipsa loquitur applicable and so instructed the jury.

The doctrine of res ipsa loquitur becomes applicable when the circumstances surrounding the incident in question (here the operation and resulting nerve impairment) are of such an unusual character as to justify, in the absence of other evidence bearing on the subject, the inference that the injury was due to the negligence of the person (here the orthopedic surgeon performing the operation) having control of the thing involved in the injury. In essence, this inference of negligence may be drawn because all of the circumstances surrounding the injury are of such a character that, unless an explanation can be given, the only fair and reasonable conclusion is that the injury was due to some breach of the defendant’s (physician’s) duty. See Larkin v. State Farm Mutual Automobile Ins. Co., 233 La. 544, 97 So.2d 389 (1957); White v. McCool, 395 So.2d 774 (La.1981).

In reality, the doctrine of res ipsa loquitur is simply another formulation of plaintiff’s burden in a tort action to prove that, more probably than not, his injury was caused by defendant’s negligence. However, before charging the jury on the propriety of drawing this inference of negligence from the circumstances, it is the function of the trial judge in a medical malpractice case to decide the applicability of the doctrine by addressing these threshold questions: (1) Did the injury occur while plaintiff’s body was in the exclusive custody of the defendant physician and (2) was the injury one that does not ordinarily occur in the absence of negligence, i.e., in this case was Dr. Brown’s negligence the most plausible explanation of plaintiff’s peroneal nerve damage?

Since the answer to (1) was obviously in the affirmative, we assume that the trial judge refused to instruct the jury on the doctrine of res ipsa loquitur because he answered (2) in the negative. We find that the record amply supports this determination. It was generally agreed by the medical witnesses that Dr. Brown’s manipulation during the operation of the previously injured peroneal nerve probably contributed to the nerve paralysis and resulting “drop foot.” However, as pointed out by Dr. Kline, it would have been impossible for Dr. Brown to perform an operation of this nature without manipulating the peroneal nerve to free it up. In fact, Dr. Kline manipulated that nerve during the course of his operation. He found no evidence that Dr. Brown had severed the nerve.

Dr. George Wharton, orthopedic surgeon practicing in Dallas, Texas, asked what might cause a peroneal nerve paralysis in a carefully conducted operation, replied: “The possibility of interruption of blood supply is the most likely direct cause.” He further explained:

“From the standpoint of why some patient might rarely, but occasionally, get into trouble after having had their nerve dissected up, it is my opinion—the explanation of that would be that some of these small vessels were already blocked off by arteriosclerotic disease, by a previous injury which had caused a really severe stretch in that area or by some other kind of a problem which we don’t really have any way to predict or to diagnose in advance. As a result, when these several segments in the center, and no one can clearly give you an estimation—there might be a hundred segments in a hundred little tiny blood vessels in a three inch segment, but when some of these little segments in the middle were disrupted there just happen to be enough blockage from, as I say, hypertensive ar-teriosclerotic disease or some other process to have blocked this enough to where it was impossible for the blood supply to keep on giving the nutrition necessary for that nerve to function.”

Asked to explain the nerve paralysis, Dr. Altenberg postulated:

“... the possibilities are (1) that you have a very hypersensitive nerve, one that has had a circulatory nerve embarrassment of some unknown cause so that any minimal trauma or injury such as an operation might be just enough to tip the balance where the nerve would not function for a while.
“The operation itself assumes a certain amount of manipulation. So you cannot operate on the tissue without manipulating it and if you manipulate it, that might be just enough to make a functional nerve not function.”

The record is devoid of any evidence that, based upon the circumstances of the operation in question and the nerve palsy which resulted, the negligence of Dr. Brown was the most plausible explanation for the nerve damage. As noted, all pertinent evidence was to the contrary. Consequently, we do not find that the trial judge erred in refusing to give the requested jury instructions. However, as explained hereinafter, even if the trial judge erred in this respect, it did not constitute reversible error. Alleged Negligence of Dr. Brown

Plaintiff contends that Dr. Brown was negligent in (1) rushing him into surgery without first employing conservative treatment and (2) in manipulating the pero-neal nerve (through internal neurolysis) during surgery.

As we have previously explained, in this medical malpractice action the pertinent statute places upon plaintiff the burden of proving the degree of care ordinarily practiced by orthopedic surgeons; that Dr. Brown either lacked this skill or failed to use it in the operation on plaintiff; and that plaintiff’s nerve was damaged as a result of that failure.

On this question plaintiff presented the testimony of Dr. Edward Eyring, an orthopedic surgeon practicing in Knoxville, Tennessee, who stated that Dr. Brown’s medical treatment of plaintiff fell below the standard of care ordinarily practiced by orthopedists — particularly in his failure to treat plaintiff conservatively for a reasonable period of time prior to surgery. However, asked specifically if the operation by Dr. Brown was justified, this witness replied:

“I can’t ansv/er that a straight yes or no. If he had done all of these other things then I wouldn’t have any great, huge problem with it. I think to take a man straight to surgery out of your office when your tests are negative, your EMG is negative, when your arthrogram is negative and do the surgery after really never having observed him, I don’t think that that’s correct. You know, I’m not saying that under no circumstances would I ever explore a peroneal nerve for a guy that had this kind of pain.”

As to the propriety of doing internal neu-rolysis, Dr. Eyring commented: “I believe that if the orthopedist is trained and knows what he’s doing he ought to be able to do it.”

Dr. Wharton testified that internal neu-rolysis was the proper surgical procedure when the operating surgeon found that a peroneal nerve was flattened due to external pressure. Dr. Wharton further concluded that the examination, diagnosis and medical treatment given to plaintiff by Dr. Brown complied with the standard of care expected of orthopedic surgeons confronted by similar circumstances.

Dr. Kline explained that an internal neu-rolysis is justified when “there’s a partial injury to the nerve and I knew that some of it could be spared, as opposed to that which needs to be resected.” Dr. Kline observed nothing during the course of his surgery that indicated any improper surgical procedure by Dr. Brown. He stated:

“The fact that some manipulation of the nerve took place and contributed to the foot drop does not mean that the original operation was carelessly and negligently performed.”

Dr. Altenberg also failed to detect any negligence on the part of Dr. Brown in his treatment of plaintiff, noting that upon the basis of the symptoms and findings “the operation would then be certainly justified.”

A medical review panel on two separate occasions reviewed the evidence surrounding Dr. Brown’s treatment of plaintiff and each time concluded that Dr. Brown did not fail to meet the applicable standard of care in his handling of plaintiff’s case.

In the absence of manifest error an appellate court must not disturb the finding of the jury which has evidence before it furnishing a reasonable factual basis for its verdict, based upon its evaluation of witness credibility. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Co., 283 So.2d 716 (La.1973).

Here, the jury answered “no” to the following written interrogatory: “Do you find from a preponderance of the evidence that Dr. Douglas Brown was negligent in any aspect of his medical treatment of James Roy Rogers?”

Based upon our examination of the record, we cannot say that the jury was clearly in error in this finding, particularly in view of the evidence summarized above, which included the account of plaintiff undergoing several months of conservative treatment, to no avail, by two other physicians prior to his examination by Dr. Brown.

Furthermore, even if the trial judge erred in refusing to charge the jury as to the doctrine of res ipsa loquitur, our independent review of the record [as authorized by law, see Gonzales v. Xerox Corp., 320 So.2d 163 (La.1975) ] leads us to the conclusion that defendants, through the recited evidence, effectively rebutted any inference that the negligence of Dr. Brown was the most plausible explanation for the nerve damage suffered by plaintiff.

Alleged Lack of Informed Consent

Plaintiff asserts that Dr. Brown was also negligent in performing the surgical procedure upon plaintiff without first securing his informed consent and that the jury erred in failing to so hold. Although this was not expressly covered in the jury’s answer to the quoted interrogatory, for the purpose of our discussion of this issue we assume that the jury at least impliedly made the finding alleged by plaintiff.

Specifically, plaintiff contends that the written consent form in question was not completed before he signed it. He further claims that Dr. Brown informed him the surgery would be for a torn muscle, with no mention of an operation on the peroneal nerve.

It is well established in our jurisprudence that the consent of a patient, express or implied, is required prior to a surgical procedure, and a surgeon who operates without such consent is liable in damages (even though not negligent in performing the surgery), except in case of an emergency requiring immediate surgery for preservation of life or health under circumstances in which it is impractical to obtain the consent of the patient or someone authorized to assume that responsibility. The patient’s consent must be an informed one, i.e., the physician has a duty to disclose all known information material to a patient’s intelligent decision to undergo a particular operation or therapeutic procedure. That information should include a description and explanation of the proposed diagnostic, therapeutic or surgical procedure contemplated, the material risks involved and any alternatives available. Babin v. St. Paul Fire & Marine Ins. Co., 385 So.2d 849 (La. App. 1st Cir. 1980); Steele v. St. Paul Fire & Marine Ins. Co., 371 So.2d 843 (La.App. 3rd Cir. 1979); Percle v. St. Paul Fire & Marine Ins. Co., 349 So.2d 1289 (La.App. 1st Cir. 1977).

Dr. Brown testified that the consent form involved in this case was filled out when the plaintiff came to his office for his pre-operative examination; that the nurse completed a portion of the form and the physician completed the remainder; that he explained to plaintiff the general nature of the contemplated surgery — nerve exploration and search for a pressure-causing mass, and that among the possible risks and complications posited was nerve paralysis; that the completed form was then folded and handed to plaintiff to take to the hospital.

The nurse, Louise Ramsey, explained the customary procedure employed in completing these forms; stated that she was always in the room when the doctor made his explanation; and identified her handwriting together with that of Dr. Brown. She denied that the form was incomplete when it was signed by plaintiff.

Under the circumstances, considering that resolution of this question involved a matter of assessing witness credibility, we cannot say that the jury was clearly wrong in finding that plaintiff’s informed consent was secured before Dr. Brown performed the surgery.

Decree

For the reasons set forth, we affirm the judgment of the district court, at appellant’s cost.

      . The trial judge had charged the jury that where an “untoward event” occurred during an operation, the surgeon was required to show that it was not caused by his negligence. The appellant argued that this was a res ipsa loqui-tur charge. The appellate court disagreed, explaining that res ipsa loquitur does not apply where there is direct evidence of the cause of the injury, but that the doctrine of “untoward event” does apply in such case.

      . A. In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261 et seq., or a dentist licensed under R.S. 37:751 et seq., the plaintiff shall have the burden of proving:
      (1)The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians or dentists licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians or dentists within the involved medical specialty.
      (2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill, and
      (3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.


author: HALL, Judge.

text:
    William Glenn HONLEY, Plaintiff-Appellee, v. Sally Elkins HONLEY, Defendant-Appellant.
    No. 14903.
    Court of Appeal of Louisiana, Second Circuit.
    June 15, 1982.
    Booth, Lockard, Politz & LeSage by Nyle A. Politz, Shreveport, for defendant-appellant.
    J. Stacey Freeman, Bossier City, for plaintiff-appellee.
    Before HALL, JASPER E. JONES, and FRED W. JONES, Jr., JJ.
   HALL, Judge.

The trial court granted the plaintiff husband a divorce on the grounds that the parties had lived separate and apart for more than one year. The defendant wife’s reconventional demand for permanent alimony was rejected on the basis that the parties were mutually at fault in causing the dissolution of the marriage and, consequently, the defendant failed to establish her freedom from fault thus precluding an award of permanent alimony. Defendant appeals from that part of the judgment rejecting her reconventional demand. We reverse and remand.

The parties were married in 1960 in Shreveport, Louisiana, and three children were born of the marriage, two of whom are still minors. The parties separated in October 1979 when defendant left home with the children after a violent argument in which plaintiff began yelling and cursing at her, shoved her across a kitchen cabinet and threatened to break her arms.

The evidence discloses that plaintiff had a very bad temper and frequently started arguments and cursed defendant and the children. Defendant often responded by arguing and cursing the plaintiff. The evidence also discloses that on some occasions, it was defendant who started the arguments. As the trial judge found, the couple had a stormy relationship and their continuous arguing and bickering over a long period of time revealed their incompatibility.

LSA-C.C. Art. 160 requires freedom from fault on the part of the claimant spouse as a prerequisite to an award of alimony after divorce. The word “fault” as used in that article “contemplates conduct or substantial acts of commission or omission by the wife violative of her marital duties and responsibilities.” Pearce v. Pearce, 348 So.2d 75 (La.1977). A spouse should not be deprived of alimony after divorce simply because he or she was not totally blameless in the marital discord. Pearce, supra, and cases cited therein. Further, the court in Adams v. Adams, 389 So.2d 381 (La.1980), concluded that “fault” for purposes of permanent alimony preclusion is only such conduct on the part of one spouse which would entitle the other spouse to a separation or divorce under LSA-C.C. Arts. 138 and 139.

The evidence in this case establishes that, for the most part, defendant’s actions were a response to the actions of plaintiff. In Vail v. Vail, 390 So.2d 978 (La.App.2d Cir. 1980), this court held that a justifiable, reasonable response by one spouse to the other spouse’s initial fault which renders further marital relations insupportable does not constitute fault within the meaning of LSA-C.C. Art. 160 precluding an award of permanent alimony. See also Oliver v. Oliver, 393 So.2d 192 (La.App. 1st Cir. 1980).

Furthermore, while the trial court was correct in finding that the parties were incompatible and had fought and argued continuously over a long period of time, it was clearly wrong in finding that defendant’s conduct was of such a nature that, taken alone, it would have warranted a separation in favor of the plaintiff. “Under existing Louisiana law and jurisprudence, a continued pattern of mental harassment, nagging and griping by one spouse directed to the other can constitute cruel treatment, but mutual incompatibility, fussing and bickering cannot.” Loyd v. Loyd, 336 So.2d 912 (La.App.2d Cir. 1976). Defendant’s conduct, therefore, would not independently constitute grounds for a separation under LSA-C.C. Art. 138 and, consequently, does not constitute fault within the meaning of LSA-C.C. Art. 160. The defendant adequately established her freedom from fault in causing the dissolution of the marriage and, accordingly, she is entitled to an award of permanent alimony.

There being insufficient evidence in the record regarding the defendant’s needs and the plaintiff’s means, we must remand this matter to the trial court for determination of the amount of permanent alimony which should be awarded to the defendant.

For the reasons assigned the judgment of the district court rejecting defendant’s re-conventional demand for permanent alimony is reversed and set aside. This matter is remanded to the district court for a determination of the amount of permanent alimony which should be awarded to the defendant.

Reversed and remanded.