author: NORRIS, Judge.

text:
    Arnetta POLAND, Plaintiff-Appellant, v. AMERICAN MUTUAL INSURANCE COMPANY, Defendants-Appellees.
    No. 14760.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 25, 1982.

      Smith & Bowers by Glen H. Smith, Shreveport, for plaintiff-appellant.
    Mayer, Smith & Roberts, Shreveport, for defendants-appellees.
    Before HALL, SEXTON and NORRIS, JJ.
   NORRIS, Judge.

In this workmen’s compensation suit, Ar-netta Poland, who was paid disability benefits from November 24, 1977, until September 7, 1979, when it was determined by three orthopedists that he could return to work, appeals a judgment rejecting his demands for total and permanent disability benefits contending that he is unable to work because of pain and other related difficulties.

Plaintiff was injured during the course and scope of his employment with BC&S Wood Company as a result of an accident involving a chain saw resulting in the amputation of three toes, including the great toe of his right foot and a soft tissue injury to his right knee. Defendant, American Mutual Insurance Company, was the workmen’s compensation carrier for BC&S at the time of plaintiff’s injury and paid plaintiff benefits in the amount of $12,025 based on 100 per cent loss of each of the three toes or a 20 per cent permanent partial impairment and loss of physical function of the right foot and a five to seven per cent disability to the right knee.

The trial court found that plaintiff was able to return to work and awarded benefits of $12,025 based on the schedule loss of the three toes and the injury to the knee. It is apparent from the Trial Court’s Reasons for Judgment that it based its conclusions that plaintiff could return to work solely on the testimony of three orthopedists, discounting the testimony of a podiatrist and four lay witnesses who testified on behalf of plaintiff.

The record reflects that plaintiff, a 44 year old woodcutter of limited educational background, while at work on November 24, 1977, injured his right foot and knee as a result of the accident with the chain saw. He was first treated by Drs. Willis and Rush who performed the amputations and thereafter referred him to Dr. Austin W. Gleason, an orthopedic surgeon in Shreveport, who initially saw plaintiff on June 21, 1978. Dr. Gleason confirmed plaintiff’s injury and recommended that he obtain a work boot or shoe with a moulding to partially replace the amputated members. Dr. Gleason noted that plaintiff complained of pain on each visit and testified that a person with this type of injury will possibly tend to favor the dismembered part of the body which may result in pain, discomfort, or strain as well as the possible development of neuromas and tenderness, both permanent conditions. Dr. Gleason further noted complaints of trouble with the lower back for which plaintiff was treated by his associate, Dr. Lewis C. Jones. Dr. Jones noted in his office notes that plaintiff had reported numb aching pain down the outside of the lower right extremity and felt this problem was caused by degenerative disc disease at the L-5 level. Dr. Gleason testified that it was possible that a degenerative disc disease could be aggravated by this type of foot injury. Dr. Gleason also noted plaintiff’s complaints of his knee giving way with the bearing of weight and of his being unable to stand on his foot for any length of time because of pain in his toes. He noted that the soft tissue injury to the right knee caused scarring which could result in permanent weakness of the knee because of a weakened muscle. His testimony was further that the type of injuries which plaintiff suffered would affect him in his occupation since he would lose some power and agility while walking on uneven ground and in performing almost any activity that requires power in his foot. This witness last saw plaintiff on September 18, 1978, when he discharged him. It was Dr. Gleason’s impression that plaintiff could return to work with the specially designed work boot.

Dr. Clinton G. McAlister, another orthopedic surgeon in Bossier City, saw plaintiff between September 13,1978, and November 8, 1978. He too noted plaintiff’s complaints of pain and stated that his examination results were consistent with the complaints of plaintiff regarding persistent pain, inability to stand or walk without difficulty, numbness and the weakness in his leg. At the time he saw plaintiff he stated he would expect these complaints to subside, but that it was possible plaintiff could still have them further admitting that the dismemberment of that portion of the foot would cause some degree of difficulty in plaintiff’s ability to work and walk. He confirmed the degenerative disc disease and admitted it was possible that plaintiff’s injury could place certain strain and stress on other parts of the body because of overcompensation attributable to the foot injury. Dr. McAlister encouraged plaintiff to increase his activities; and noted that after plaintiff had attempted to return to work unsuccessfully, he felt that plaintiff was difficult to rehabilitate. Medically, he saw no reason why plaintiff could not be rehabilitated and agreed with Dr. Gleason that plaintiff could return to work from a purely objective standpoint.

Plaintiff was referred to Dr. Baer I. Rambach by American Mutual for evaluation on January 18,1979, which was his only contact with plaintiff. He noted plaintiff’s injuries and assigned to him a 100 per cent loss of each of the three amputated toes resulting in a 20 per cent permanent partial impairment and loss of physical function of the right foot and a five to seven per cent disability to the right knee. He thought that plaintiff’s complaints were overexag-gerated and that if plaintiff were motivated to return to work he should be able to do so even though he may be experiencing some discomfort.

Dr. Howard L. Chapman, a podiatrist who treated plaintiff from July 2, 1979, through the time of the trial, maintained throughout his testimony that plaintiff was disabled and totally incapable of doing physical work that requires the use of his right foot either in standing or walking because he has no balance in that foot. He constructed and fitted plaintiff with an arch support. It was also stated by Dr. Chapman that the pain in the leg or back would be attributable to the abnormal positioning of the foot. He testified to plaintiff’s extreme sensitivity at the tip of the great toe. He considered amputation neu-roma a diagnostic possibility and recommended consultation with a neurosurgeon which had not occurred at the time of his deposition.

It should be noted that the trial court had no opportunity to observe any of the medical witnesses because Drs. Gleason, McAlis-ter, and Chapman’s testimony from an earlier Federal court trial was introduced into evidence. Dr. Chapman’s deposition of September 2, 1980, and the medical report of Dr. Rambach were the only other medical evidence presented.

Plaintiff sought at trial to corroborate his complaints of persistent pain which rendered him unable to work by offering his own testimony and the testimony of two fellow workers as well as of his wife. In summary, each witness’ testimony tended to corroborate the assertions of plaintiff that he was in constant pain and could not physically work at his former job or as a manual laborer for a construction company even with the use of a specially fitted shoe device. Each of the witnesses who had observed plaintiff in his two attempts to return to work testified that he was in pain, had difficulty walking and could not complete a full day’s work without sitting down to rest. Plaintiff’s wife testified to his suffering pain and his inability to engage in physical activities around the home. All of the lay testimony was to the effect that plaintiff was a good worker prior to the accident but that post accident he worked slower and had less stamina. None of these lay witnesses, except plaintiff, were cross examined by defendant nor did defendant present any witnesses at trial to refute the lay testimony.

The deposition of Sam Pullig filed into evidence revealed that he is Secretary of BC&S Wood Company and that plaintiff was employed by his company when injured on the job. He further testified that the company has no job available for plaintiff that would not require physical labor.

In order for a claimant under the Louisiana Workmen’s Compensation law to prevail, he must first establish that his injury occurred as a result of an accident arising out of and in the course of his employment. Compensable disability only results from a work related accident. La.R.S. 23:1031; Simpson v. S. S. Kresge Co., 389 So.2d 65 (La.1980). In the instant situation, there is no question but that the plaintiff’s injury is work-related.

Therefore, the primary issue to be determined is whether or not the trial court erred in failing to find plaintiff totally and completely disabled within the meaning of La.R.S. 23:1221 and the applicable jurisprudence interpretating its intent.

It is a well settled principle of law that factual findings of the trial judge will not be disturbed in the absence of evidence of manifest error. Arceneaux v. Dominque, 365 So.2d 1330 (La.1979). Since the trial judge is in the best position to determine the credibility of the witnesses, his fact findings are entitled to great weight. Martin v. Coral Gables Academy and Institute of Reading, Inc., 369 So.2d 255 (La.App. 4th Cir. 1979) writ denied, 371 So.2d 1344 (La.1979). Thus, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on appeal. Moss v. Security National Insurance Co., 350 So.2d 247, (La.App. 3rd Cir. 1977) writ denied, 352 So.2d 239 (1977). However, an appellate court is not required by the manifest error principle to affirm a trier of fact’s refusal to aceept as credible, uncontradicted testimony or greatly preponderant objectively corroborated testimony where the record indicates that there was no sound reason for the rejection and where the finding was reached by overlooking applicable legal principles. West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979).

The plaintiff asserts that the trial court erred in failing to find him permanently and totally disabled and alternatively that the trial court erred in its failure to apply the odd lot doctrine to plaintiff’s case.

In Oster v. Wetzel Printing, Inc., 390 So.2d 1318 (La.1980), the Supreme Court held that the odd lot doctrine should be utilized by the courts as the guiding concept in determining whether an injured employee is “unable to engage in any gainful occupation for wages,” and is thus permanently and totally disabled. La.R.S. 23:1221(2).

Amplifying further its mandate in Oster, the court in Turner v. American Mutual Insurance Co., 390 So.2d 1330, 1331 (La.1980), stated:

Under the odd-lot test as announced in Oster v. Wetzel Printing, Inc., supra, an injured employee is entitled to total, permanent disability compensation if he can perform no services other than those which are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist. This determination is made after scrutiny of the evidence of the worker’s physical impairment as well as his mental capacity, education, and training. If the worker establishes that he falls into the odd-lot category, he is entitled to total, permanent disability compensation unless the employer or his insurer is able to show that some form of suitable work is regularly and continuously available to the employee within reasonable proximity to the worker’s residence.

In Turner, the Supreme Court reversed the lower courts’ holdings that the plaintiff, a mentally retarded woodcutter whose right foot had been crushed in a work related accident was not permanently disabled. In that case, plaintiff’s benefits were terminated when his physician notified the employer’s insurer that he could resume work on a trial basis. Finding that the trial court and the court of appeal had not attempted to decide the case in accordance with the odd lot doctrine and noting that neither court had focused on the question of whether plaintiff, considering both his physical and mental limitations, can successfully obtain and hold regular employment in actual jobs available to him within reasonable proximity to his residence, the court remanded the case to determine if a suitable job existed. In that case, the court found that plaintiff’s evidence had made a prima facie case for his classification in the odd lot category.

Following Turner, the Supreme Court again addressed in Lattin v. HICA Corp., 395 So.2d 690, 693 (La.1981), the applicability of the odd lot doctrine to a workmen’s compensation claimant who suffered an injury to his right foot. Noting that the odd lot doctrine applies to a worker who cannot return to any gainful employment without suffering substantial pain, the court further addressed the applicability of this doctrine stating:

Under the odd lot doctrine, a claimant is considered totally disabled if his injury makes him an odd lot jn the labor market, that is, one capable of obtaining employment periodically but one whose services are so limited in quality, dependability or quantity that a reasonable stable market for his services does riot exist. An odd lot claimant need not be absolutely helpless to qualify for total! disability. If the claimant can prove that his physical condition, mental capacity, education, training age or other factors combine to place him at a substantial disadvantage in the competitive labor m'arket, he has made out a prima facie caste for classification in the odd lot category. This satisfies his burden of proving i that he should be awarded benefits for permanent and total disability. The employer or insurer must then show that some form of gainful occupation is regularly and continuously available to the employee within reasonable proximity to the employee's residence.
The odd lot doctrine is also applicable to substantial pain cases because a worker who, due to his , injury, can function only with substantial pain or with the help of fellow workers may not be considered a particularly desirable employee. Thus, if a claimant’s | pain appreciably limits the types of work available to him and greatly diminishes his ability to compete in the labor market,; he can be treated as an odd lot worker and be awarded total disability, unless there is proof that jobs are realistically available to him. On the other hand, if a wterker cannot perform the same work that he did before his injury because it causes him substantial pain, but he has the mental capacity to perform other jobs which are available, he should be considered partially disabled.

Thereafter, the case was remanded to the district court to allow both parties to present additional evidence in light of the newly adopted standards.

In the instant case, plaintiff testified that he had pain in his foot, leg and back when inactive, which increases upon exertion, standing or walking. He testified that his two attempts at working were unsuccessful because of pain as well as lack of balance and stamina. He also testified that his attempts to work after the accident required the help of fellow workers. This evidence was corroborated by the testimony of his fellow workers, wife and Dr. Chapman. Although all three orthopedists believed plaintiff could return to work provided he wore a special boot or shoe, they had not seen plaintiff in nearly two years prior to trial. All found objective medical indications that could support his claim of pain and disability at time of trial. Thus, plaintiff’s complaints at time of trial stand virtually uncontradicted.

We consider the evidence clearly establishes a prima facie case for his classification in the odd lot category as plaintiff’s pain and disability appreciably limit the types of work available to him and greatly diminish his ability to compete in the labor market. Under the odd lot doctrine standards adopted by the Supreme Court in Oster, Turner, and Lattin, supra, which we note were not available when this matter was tried, the defendant should be given the opportunity to reduce the award of plaintiff’s total and permanent disability to permanent and partial disability by presenting evidence that some form of gainful occupation is regularly and continuously available to plaintiff within a reasonable proximity to his residence. Accordingly, the judgment of the trial court must be set aside and the case remanded to allow both parties to present additional evidence in light of the newly adopted standards.

Our ruling requiring remand pretermits the need for discussion of penalties and attorneys fees.

For the above reasons, the judgment of the district court is set aside and the case remanded for further proceedings consistent with this opinion.


source: Caselaw Access Project

author: SEXTON, Judge.

license: Public Domain

text:
    Jessie Edward JAMES, Sr., Plaintiff-Appellee, v. Debra Young JAMES (Travis), Defendant-Appellant.
    No. 14762.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 25, 1982.

      Blaylock & Perkins by Charles R. Blay-lock, Monroe, for defendant-appellant.
    Paul B. Wilkins, Columbia, for plaintiff-appellee.
    Before MARVIN, SEXTON and NORRIS, JJ.
   SEXTON, Judge.

Debra James Travis appeals a trial court judgment on a rule for change of custody filed by her former husband Jessie Edward James, Sr. The trial court removed custody of 4 year old Eddie James from the mother and awarded custody to the father. We find that the trial judge did not abuse his discretion in rendering the decision to grant the change of custody and affirm the judgment.

On October 12, 1979, a judgment of divorce was rendered dissolving the marriage between plaintiff and defendant. The divorce was uncontested and custody of the two year old child, Eddie, was awarded to the mother. On January 31, 1980, plaintiff remarried. He established a home for his wife, Sherry, and her two children in the country near his place of employment. At the time of the hearing on the rule for change of custody, plaintiff and his wife were still married and residing in the same location. Plaintiff is employed as a heavy equipment operator by his father. Plaintiff’s wife is unemployed and remains at home to take care of the children.

In May of 1980 defendant married Mr. Buddy Travis. The union was short-lived, ending in a voluntary separation four months later. At the time of the hearing, defendant had neither obtained a divorce nor had the couple reconciled. Defendant testified that she had changed residences about four times in the year prior to plaintiff’s filing of the rule for change of custody. She stated these moves were caused either by her short-term marriage and resulting separation, or her efforts to obtain a better home. She further stated that at the time of the hearing, she and the child were living in a two bedroom house that they shared with another divorced woman and her two children.

At the time the rule for change of custody was filed, the defendant was employed as a waitress in a lounge in Monroe, Louisiana, from 4:30 p. m. until midnight. Each afternoon during the course of her employment at the lounge, the defendant left the child at the home of her parents until she could come for him the next morning. The grandparents both worked, therefore during the afternoon hours the child was supervised by his teenage aunts or uncles that were present in the home. In the evenings he was supervised by his grandparents until the defendant retrieved him each morning. The defendant would then take him home and care for him until she had to leave for work in the afternoon. Since the defendant had no means of transportation, male friends and co-workers frequently drove her home after work and would sometimes stay at the defendant’s home until the early morning hours. The defendant testified that although married to Mr. Travis she did have sexual relationships with other men, at least one of whom was also married at the time. However, none of the sexual activity occurred while the child was present in the home. The defendant’s sexual activities were not notorious and were not subject to common knowledge.

The plaintiff was unable to locate his child and the defendant for over five months. However, subsequent to locating them and obtaining the child for visitation, the plaintiff declined to return the child at the agreed time. He then filed this rule for a change of custody on April 16, 1981.

The defendant relies upon the recent case of Manley v. Manley, 389 So.2d 454 (La.App. 2d Cir. 1980), in which this court found that the trial judge abused his discretion in removing a 3V2 year old child from the custody of its mother without a showing that the mother was providing an unwholesome atmosphere for the child, or that the child was exposed to an immoral relationship, or that the child was being detrimentally affected, or that the mother had neglected the child.

In Manley the evidence indicated that the child was well cared for. Further, the only implication of sexual impropriety was that the mother had a steady boyfriend who came to the home frequently, but did not stay overnight. There was no evidence that this relationship was having a detrimental affect on the child physically or emotionally.

In this case there is sexual activity with several men away from the child, a short-lived marriage, frequent moves, the work as a cocktail waitress and the repeated leaving of the child with teenage relatives between the time the mother departed and the grandparents returned from work. Certainly no one of these factors would be sufficient to warrant a change in custody. However, taken together they do show a definite instability.

Additionally, it was shown that the child’s teeth had been allowed to remain in a decaying condition for several months, and that the child was suffering from impetigo and chicken pox when he was taken by the father. Furthermore, the defendant and the child were residing with another divorcee and her two children in crowded circumstances.

All these factors, taken together, constitute sufficient evidence to support the conclusion that the mother’s instability is detrimental to the child. We agree that, when compared with the conditions under which the father is living, a change is in the best interest of the child. LSA-Art. 157 C.C. Compare Manley, supra, with Bankston v. Bankston, 355 So.2d 58 (La.App. 2d Cir. 1978). Each custody controversy must be determined in the light of its own facts. Languirand v. Languirand, 350 So.2d 973 (La.App. 2d Cir. 1977). In the absence of a showing of clear abuse of discretion by the trial court in custody matters, the trial court’s determination will be upheld on appeal. See Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971), Cleeton v. Cleeton, 383 So.2d 1231 (La.1980), Johnston v. McCullough, 401 So.2d 509 (La.App. 2d Cir. 1981).

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

Affirmed.


author: PRICE, Judge. MARVIN, Judge,

text:
    Abner Glyn NALE, Plaintiff-Appellee, v. Beverly Diane Brown NALE, Defendant-Appellant.
    No. 14739.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 25, 1982.

      Robert W. Levy, Ruston, for defendant-appellant.
    Joseph A. Cusimano, Jr., Farmerville, for plaintiff-appellee.
    Before PRICE, HALL and MARVIN, JJ.
   PRICE, Judge.

Plaintiff, Abner Glyn Nale, obtained a separation a mensa et thoro from defendant, Beverly Diane Nale, on the grounds of abandonment and was awarded custody of their six-year-old daughter. Defendant appeals that portion of the judgment awarding custody of the child to plaintiff. We reverse.

Plaintiff and defendant were married in Arkansas on November 1, 1970, and thereafter established a matrimonial domicile in Truxno, a small community near Farmer-ville, Louisiana. Their only child, Bonnie, was born on July 28, 1975.

As a result of a period of marital discord, in May of 1980, defendant and Bonnie moved to an apartment in Farmerville. The parties made a subsequent attempt at reconciliation when plaintiff moved into the apartment with defendant and the child. On June 5, 1980, after a period of days, plaintiff was ordered to leave the apartment. This suit was instituted in August of 1980.

In written reasons for judgment, the trial court correctly noted that a legal presumption in favor of the mother no longer exists in child custody cases. However, it was the court’s opinion that defendant’s gender was the only favorable factor in her bid to gain custody of Bonnie. While finding the evidence did not establish adultery on defendant’s part, the court stated she made a “practice” of entertaining men late at night in her home. The court further found there was a substantial risk that defendant’s conduct, which the court considered to be in conflict with society’s standards, would adversely affect Bonnie as she grew older.

The court also found defendant had engaged in certain erratic behavior which was likely to cause serious emotional disturbance to Bonnie. The court believed defendant’s actions in making nocturnal visits to her recently deceased sister’s grave, together with an incident where defendant shot at plaintiff, evidenced emotional instability on defendant’s part. Considering these factors, the court held the best interests of the child would be served by awarding custody to plaintiff.

In child custody matters, the decision of the trial court is given great weight and will not be overturned upon appellate review in the absence of a clear showing of abuse of discretion. Cleeton v. Cleeton, 383 So.2d 1231 (La.1980); Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971). In the instant case we hold the trial court abused its discretion by placing undue weight on evidence unfavorable to defendant while not considering those factors which support an award of custody to the defendant.

A large portion of the testimony adduced at trial concerned defendant’s relationships with certain males. The trial court found, and we agree, that the evidence does not establish any sort of sexual misconduct on defendant’s part. In fact, the record documents only three, possibly four innocuous visits to defendant’s home by her male friends. However, the trial court felt defendant’s behavior was somehow improper and that Bonnie suffered by this activity.

In assessing if a parent’s sexual lifestyle is cause for denying custody, the courts have consistently held the ultimate determination must be whether the behavior was damaging to the child. This determination involves several factors:

(1) Is the child aware of the illicit relationship?
(2) Has sex play occurred in the presence of the child?
(3) Was the sexual misconduct notorious, bringing embarrassment to the child?
(4) What effect has this conduct had on the family home life?

Monsour v. Monsour, 347 So.2d 203 (La.1977); Fulco v. Fulco, supra; Howes v. Howes, 388 So.2d 1182 (La.App. 4th Cir. 1980), writ denied 393 So.2d 738 (La.); Coltharp v. Coltharp, 368 So.2d 793 (La.App. 2d Cir. 1979), writ denied 370 So.2d 578 (La.).

In the instant case no sexual misconduct has been proven and there is absolutely no proof that Bonnie has suffered by her mother’s actions. By all accounts, Bonnie is a well-adjusted, happy, and intelligent child. Any speculation as to the future ill effects which could be caused by the mother’s innocent behavior is thus not supported by the record. Therefore, we find the trial court erred in concluding that the mother’s behavior in this respect could adversely affect Bonnie.

Concerning defendant’s emotional stability, it was established that prior to the couple’s physical separation, defendant often visited her dead sister’s grave at night. Evidence was also adduced that after the separation, in Bonnie’s presence, plaintiff and defendant were involved in an altercation which resulted in defendant shooting at plaintiff.

Defendant was very close to her sister, who died of cancer. Considering that defendant has also undergone treatment for cancer, it is understandable that as part of the normal grieving process defendant would visit her sister’s gravesite. The testimony indicates that prior to trial of this matter, defendant’s visits to the cemetery had substantially decreased. In fact, the record is devoid of evidence showing that defendant has even visited the cemetery since the physical separation from her husband.

The shooting incident is a more serious matter. While there is some dispute as to the cause and reasons for the altercation, it is uncontroverted defendant fired a shotgun blast that hit near plaintiff after the parties had engaged in an argument. Both parties testified to their belief that defendant could have shot plaintiff if that had been her desire. The record indicates that defendant does not have violent propensities and has never directed any physical violence toward plaintiff or Bonnie before this incident. Considering the circumstances and the strong emotions of the parties, we do not believe that one isolated incident is evidence of emotional instability on defendant’s part. In any event, there is no evidence that defendant’s actions have caused the child harm.

While the trial court was correct in its determination that the maternal preference rule no longer exists, we find the court abused its discretion in failing to consider other factors in defendant’s favor. It is uncontradicted that defendant has been a good mother to Bonnie. Under oath, both plaintiff and the child’s paternal grandmother admitted that defendant has taken good care of Bonnie and is generally a good mother. Furthermore, since the child’s birth, defendant has been mainly responsible for raising Bonnie and providing for her physical and emotional needs. Bonnie has been under the care and custody of defendant from the time of the physical separation of the parties up until this litigation. The record indicates Bonnie has progressed under her mother’s care.

In determining the best interest of children, one of the factors to be considered is the desire to “continue them in the care of the parent who, in a normal situation, has provided the degree of continuous care and affection which creates such a close bond that it would be harmful to the children to alter that relationship. . . . ” Brackman v. Brackman, 322 So.2d 314 (La.App.2d Cir. 1975). Thus, the trial court erred in not considering the close natural bond that exists between defendant and Bonnie, a child of tender years. See Hegan v. Hegan, 367 So.2d 147 (La.App. 2d Cir. 1979).

Furthermore, as this court stated in Thornton v. Thornton, 377 So.2d 417 (La.App. 2d Cir. 1979):

. .. [I]t is often, in many if not most family circumstances, in the best interest of young children to be cared for by their mother. This nonmaterial concept remains a factor to be considered, along with many others, and will often compete with more materialistic factors that favor the father. It is correct, however, that this concept does not create a preference or presumption in favor of the mother that must be overcome by proof of the mother’s unfitness or incapability.

See also Burch v. Burch, 398 So.2d 84 (La.App. 3d Cir. 1981); Deese v. Deese, 387 So.2d 671 (La.App. 3d Cir. 1980), writ denied 393 So.2d 740 (La.); Dickey v. Dickey, 383 So.2d 808 (La.App. 1st Cir. 1980).

Bonnie is now of school age. At the time of this litigation she was attending a school located only two blocks from her mother’s apartment in Farmerville. The record shows Bonnie was doing very well in school. If Bonnie were to move to Truxno, she would still attend the same school, but would then have to travel approximately 13 miles each way. This factor also has bearing on the best interest of Bonnie.

Plaintiff is a building contractor who recently has worked only sporadically due to the poor economic conditions in the housing industry. Defendant has stable employment with Preaus Motor Company in Farmerville. The instant case does not present a situation where one parent is obviously unfit. On the contrary, the record indicates that either parent could adequately provide for the physical and mental well-being of Bonnie. However, the facts show that defendant was primarily responsible for raising the child from birth. The child has progressed while under the care of her mother. Further, the stability factor weighs heavily in favor of defendant since she has been the parent most intimately involved with raising the child and has had actual custody of Bonnie since the physical separation. The only factor weighing against the mother is the evidence of the shooting incident. In light of all the factors to be considered, we find the trial judge abused his discretion in granting custody to plaintiff instead of defendant.

For the above and foregoing reasons, the judgment of the district court as it pertains to the custody proceedings is reversed and set aside. It is ordered, adjudged, and decreed that there be judgment in favor of Beverly Diane Nale granting her custody of the child, Bonnie Nale. It is further ordered, adjudged, and decreed that this ease be remanded to the district court for trial and determination of the issues of child support and visitation rights. Costs of these proceedings are assessed to plaintiff.

MARVIN, Judge,

concurring:

This day we have rendered opinions in two appeals of child custody disputes, James v. James, 409 So.2d 1297 (La.App. 2d Cir. 1982), and Nale v. Nale, 409 So.2d 1299 (La.App. 2d Cir. 1982). James discusses and distinguishes our recent child custody case of Manley v. Manley, 389 So.2d 454 (La.App. 2d Cir. 1980). I was on the appellate panel in these three cases, each of which involved the custody of a child under seven years of age.

In James, we affirmed a judgment removing custody of a four-year-old from the mother to the father. In Manley, we reversed a judgment removing custody of a three and one-half-year-old from the mother to the father. In Nale, we are reversing a judgment that removed custody of a six-year-old from the mother to the father. In each case, the trial court applied the best interest standard.

This court has consistently recognized that each custody controversy must be decided in the light of its own peculiar facts and that, in the absence of a showing of a clear abuse of discretion by the trial judge in resolving custody disputes, the appellate court will uphold the trial court’s determination. See Johnston v. McCullough, 401 So.2d 509 (La.App. 2d Cir. 1981), as well as the cases here referred to. In Manley, we also recognized that custody, which has once been awarded to one parent who is providing a reasonably stable and secure environment for the child, should not be changed unless there are good and substantial reasons to justify the change. In Manley, we said:

“The fact that the mother has a steady boyfriend who frequents her home is not sufficient reason to justify a change in custody in the absence of proof that the mother’s relationship with the boyfriend is having a detrimental effect on the child.” 389 So.2d at p. 456.

In James we observed that all of the factors in that case, “taken together, . . . support the conclusion that the mother’s instability is detrimental to the child.” 409 So.2d 1299 at p. 1297.

The instant case presents some, but perhaps not preponderating, evidence that Mrs. Nale has demonstrated instability (the shooting incident, etc., discussed in the majority opinion) but nonetheless, in no way does this evidence suggest that these incidents were detrimental to the child. I also observe that this “some evidence” does not compel the conclusion that the child should be removed from her mother because she “could” be affected by her mother’s receiving male visitors in the future. “Permanent” custody may be changed upon a showing of changed circumstances which affect the child.

I respectfully concur in the result.


text:
    AETNA BUSINESS CREDIT CORPORATION, Plaintiff-Appellant, v. LOUISIANA MACHINERY COMPANY, INC., Defendant-Appellee.
    No. 14763.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 25, 1982.
    Johnston, Thornton, Dawson & Hunter, by James Thornton and Neil Dixon, Shreveport, for plaintiff-appellant.
    Madison, Garrett, Brandon, Hamaker & Tugwell by David I. Garrett, Monroe, for defendant-appellee.
    Before JASPER E. JONES, SEXTON and NORRIS, JJ.
   SEXTON, Judge.

Aetna Business Credit appeals a trial court judgment sustaining the defendant’s motion for summary judgment, thereby upholding the defendant’s vendor’s privilege. We affirm.

The facts of the case are not in dispute. In March 1979, Irving Leasing Corporation owned two drilling rigs and accessory equipment including a Gardner Denver PY-7 Triplex Pump. To finance the purchase of this equipment, Irving Leasing Corporation borrowed from Aetna Business Credit Corporation and then secured the loan with a chattel mortgage on all the equipment. The chattel mortgage was duly recorded.

Irving Leasing Corporation, which is in the business of leasing drilling equipment, leased the rigs along with various equipment including the Gardner Denver pump to Ram Drilling Company, a Louisiana corporation engaged in the drilling of oil wells. Some eight months later, while drilling a well in De Soto Parish, Ram entered into an agreement on November 20, 1979, with the defendant for the purchase of a Model D353 Caterpillar engine to be used to power the Gardner Denver pump. This engine was a replacement for the engine contained on the pump at the time of lease. The new engine was mounted on the drilling platform upon which the pump was also mounted. The engine was then connected to the pump by a specially built drive device which Ram had fabricated for this purpose.

Ram’s financial condition worsened and on February 6, 1980, the Caterpillar engine was repossessed by the defendant due to Ram’s inability to pay. Ram acquiesced in the repossession.

After the defendant had repossessed the Caterpillar engine, the plaintiff filed suit against Irving and foreclosed on the two rigs and equipment including the Gardner Denver pump.

Plaintiff subsequently purchased this equipment at public auction. Plaintiff then filed this suit, claiming that the Caterpillar engine had, by the law of accession, become attached to the pump and/or rig in such a manner as to become the property of Irving Leasing Corporation and thus subject to the chattel mortgage executed by Irving. If not, then defendant’s vendor’s privilege is valid.

The trial court in considering defendant’s motion for summary judgment described the “attachment” or “connection” of the Caterpillar engine and Gardner Denver pump as follows:

“. . . the engine was attached to its own I-beam skid by eight bolts; and the skid was in turn bolted to a flat metal floor, upon which the pump was also affixed. This whole assembly of equipment, at the time of repossession, was sitting on the ground next to the drilling rig. Two rubber hoses supplied fuel to the engine. The drive assembly used consisted of two concentric drums; one was a small drum bolted to the flywheel of the engine and the other was a larger drum attached to the pump. The smaller drum fit inside the larger one without making any physical contact. Power from the engine was transferred to the pump when an ‘air clutch’ or innertube was inflated between the two drums. Only when this device was inflated could the power from the engine be transferred to the pump by transferring motion from the small drum to the large drum. To remove the engine required only the disconnection of the two fuel lines, removal of the bolts from the skid and disconnection of the small concentric drum from the engine flywheel.”

The trial judge found that defendant was easily able to remove the engine without damage to the pump, the drive device, or the engine itself. The trial court held that, “a complete piece of machinery such as this engine does not become merged with a pump simply by being mounted upon the same rack, or connected to a drive device of the type used here.”

Plaintiff-appellant relies upon Roberts v. Williams, 99 So.2d 392 (La.App.2d Cir. 1957); McVay v. McVay, 318 So.2d 660 (La.App.3d Cir. 1975); Guaranty Bank and Trust Company v. Hoggins, 347 So.2d 919 (La.App.3d Cir. 1977) and General Motors Acceptance Corporation v. Madden, 331 So.2d 882 (La.App.2d Cir. 1976). These are all “automobile cases” in which the owner of an automobile authorized the replacement of parts necessary for the continued functioning of the vehicle. These parts included an engine, universal joints, and tires. These cases are prior to the reorganization of law in this area, but as the redactor’s comments note, no change was made in the law of accession between movables. In each case it was found that when the parts were bolted on or otherwise affixed to the vehicle the parts became incorporated into the vehicle, and the law of accession was held to apply. In other words, the parts ceased to have an individual identity, but rather became part of the greater whole.

In this case Ram was only a lessee of the rig and pump. It was the owner of the engine, indicating an intent on Ram’s part that any “attachment” of the Caterpillar engine and the Gardner Denver pump was temporary, lasting only as long as the lease was in effect.

The general principle of accession is defined in LSA — C.C. Art. 482:

“The ownership of a thing includes by accession the ownership of everything that it produces or is united with it, either naturally or artificially, in accordance with the following provisions.” (Emphasis added).

LSA-C.C. Art. 510 carries forward this concept of a union in defining accession between movables:

“When two corporeal movables are united to form a whole, and one of them is an accessory of the other, the whole belongs to the owner of the principal thing...” (Emphasis added).

Therefore ownership of movables by accession requires a permanent union between the things which, of course, must be determined on the facts of each case.

Automobile parts are designed to become united with an automobile. Thus there is a distinct difference between the replacement of universal joints and automobile engines and this case. Also, in McVay, supra, “the tire case”, although the tires could be easily removed, they were united with the automobile as an accessory in a permanent sense. See LSA-C.C. Art. 508.

In this case the attachment of this engine by the drive device and the fuel hose connections are of such a nature that each machine retains its separate identity. The requirement that movables must be “united to form a whole” requires something more permanent than the easily removable drive device which connected this pump and engine. We view the union here as temporary and tenuous rather than permanent.

We agree with the trial court’s finding that due to the various uses of the engine, its characteristics, and the ease of disconnection it remained a distinct piece of machinery so that the law of accession does not apply. Therefore, plaintiff’s chattel mortgage is inapplicable to the engine, and the defendant’s vendor’s privilege is valid.

For the reasons assigned, the trial court judgment is affirmed at plaintiff-appellant’s costs.

Affirmed.

      . Act No. 180 of 1979 and the comments to LSA-C.C. Arts. 477 et seq.


text:
    Anne Marie Braswell VINING, Plaintiff-Appellant, v. STATE FARM LIFE INSURANCE COMPANY, Defendant-Appellee.
    No. 14768.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 25, 1982.
    Writ Denied March 19, 1982.

      C. S. Sentell, Jr., Minden, for plaintiff-appellant.
    Kitchens, Benton, Kitchens & Pearce by Marshall R. Pearce, Minden, for defendant-appellee.
    Before FRED W. JONES, Jr., SEXTON and NORRIS, JJ.
   NORRIS, Judge.

From a judgment rejecting her demand as named beneficiary to the proceeds of a life insurance policy insuring the life of her deceased former husband, plaintiff appeals. We reverse.

Joe Ned Braswell, Jr. died in an automobile accident on November 16, 1978. During his lifetime, the deceased acquired from defendant, State Farm Insurance Company, two life insurance policies, both being $10,-000 face value five year renewable term policies with accidental death benefit coverage. Plaintiff, Anne Vining, from whom deceased was divorced in September of 1978, was named beneficiary on both policies. The first policy, No. 2473-942, was issued effective March 2, 1972, and defendant paid in compliance with its terms on January 30, 1979. The second policy, No. 2883-227, issued effective November 14, 1973, is made the subject of this suit because of defendant’s refusal to pay benefits contending its lapse for non-payment of premiums. Premiums were computed on this policy on an annual basic rate of $62.70 for the first five years and the policy could be renewed thereafter in accordance with its terms of renewal on its anniversary date.

The policy allows for payment of premiums on an annual, bi-annual, quarterly, or monthly basis and allows a thirty-one day grace period from the due date of any premium payment during which the policy remains in effect. Further provision is made for the payment of credits to avoid lapse wherein dividend credits shall be applied toward the payment of any premium unpaid at the end of any grace period. A pro rata premium payment from credits is provided for by the policy when the credits available are insufficient to make a complete payment. A grace period is allowed for the payment of such unpaid balance.

Evidence adduced through written stipulations and testimony shows that the deceased obviously chose to pay premiums on a monthly basis. The evidence shows his last payment was made August 7, 1978, which was for the August 14th premium and continued coverage until September 14, 1978. When no payment was received for the September 14, 1978, monthly premium, in accordance with the “Credits to Avoid Lapse” provision of the policy, defendant applied all of the remaining accumulated dividend credits on the policy of $3.45 as a partial premium payment which extended coverage from September 14, 1978 to October 2, 1978. It is the contention of defendant that the grace period expired thirty-one days thereafter on November 2,1978, thereby lapsing the coverage afforded under this policy prior to the death of Braswell on November 16, 1978. It is admitted by both parties that the policy was in full force and effect on October 2, 1978, excluding the grace period.

Thus, the sole issue presented is whether the policy in question had lapsed for non payment of premiums or whether it was in force on November 16, 1978, by any means.

Plaintiff urges several theories in support of her contention that the policy was in force on the date of Braswell’s death, which basically are as follows:

(1) the policy had earned additional dividends as of December 31, 1977 in the amount of $7.40 and these dividends should have been applied by defendant to keep the policy in force;
(2) the legal principle of “compensation” operated to keep the policy in force because there were accumulated on the first policy dividends in the amount of $9.16 which by operation of law were applied to the premiums due on subject policy; and
(3) La.R.S. 22:177 is applicable to the instant case and defendant’s failure to prove compliance therewith prevented forfeiture or lapse of the policy prior to Braswell’s death.

We choose to address these contentions in reverse order, and finding merit in plaintiff’s third contention, pretermit consideration of those remaining because to do so would be superfluous.

La.R.S. 22:177 provides as follows:

“No life insurer shall within one year after default in payment of any premium, installment, loan or interest, declare forfeited or lapsed any policy issued or renewed, and not issued upon the payment of monthly or weekly premiums or for a term of one year or less, for nonpayment when due of any premium, installment, loan or interest, or any portion thereof required by the terms of the policy to be paid, unless a written or printed notice stating:
(1) The amount of such premium, installment, loan or interest, or portion thereof due on such policy; and
(2) The place where it shall be paid and the person to whom the same is payable, shall have been duly addressed and mailed to the person whose life is insured or the assignee of the policy if notice of the assignment has been given to the insurer, at the last known post office address of such insured or assignee, postage prepaid by the insurer or any person appointed by it to collect such payment, at least fifteen and not more than forty-five days prior to the date when the same is payable. No policy shall in any case be forfeited
or declared forfeited or lapsed until the expiration of thirty days after the mailing of such notice. Any payment demanded by such notice and made within the time limit shall be taken to be full compliance with the requirements of the policy in respect to the time of such payment.
The affidavit of any officer, clerk or agent of the insurer or of anyone authorized to mail such notice that the notice required by this section has been duly addressed and mailed by the insurer issuing such policy, shall be presumptive evidence that such notice has been duly given. No action shall be maintained to recover under a forfeited policy, unless the same is instituted within'two years from the day upon which default was made in paying the premium, installment, interest or portion thereof for which it is claimed that forfeiture ensued. This Section shall not apply to group insurance policies.”

The above statute is a forfeiture statute, and thus must be strictly construed. Lester v. Aetna Life Insurance Company, 295 F.Supp. 1208 (W.D., La.1970), affirmed 433 F.2d 884 (5th Cir. 1970). Boring v. Louisiana State Insurance Company, 154 La. 549, 97 So. 856 (1923). Its purpose is to protect the insured against losing his policy through mere neglect to pay the premium, and also to give him a fair chance to meet the payments when due. Lester, supra; Boring, supra.

By the provisions obvious on the face of the policy in question, including but not limited to the fact that premiums and dividends were computed on an annual basis, bolstered by the testimony of defendant’s witness that the policy in question is a term policy for more than one year, we conclude that the instant policy is protected under the provisions of La.R.S. 22:177. For convincing authority on this point see Francis v. Universal Life Insurance Company, 223 So.2d 188 (La.App. 3rd Cir. 1969), and Guillot v. Atlas Life Insurance Company, Inc., 245 So.2d 788 (La.App. 4th Cir. 1971), writ refused 247 So.2d 394 (1971).

A review of the evidence presented at trial leads us to conclude that the policy neither lapsed nor was forfeited because defendant failed to prove by competent evidence compliance with the written notice requirements of La.R.S. 22:177.

Defendant sought to prove compliance with this requirement through the testimony of its employee, Tom Hardee, service superintendent for its regional office in Monroe, Louisiana, coupled with reference to exhibits D-2 and Joint Exhibit A. Plaintiff timely objected to the admission of this evidence for the purpose of proving the required notice as being double hearsay. A review of Mr. Hardee’s testimony clearly shows that he was only testifying as to what he concluded from other sources that a computer in another state usually and customarily did, or what the computer, from some mechanical data source not introduced into evidence told him it did. Clearly this is hearsay and not the best evidence of what actually transpired. The blank exhibit D—2 does nothing to bolster the quality of the evidence as to this particular insured. From the evidence presented, we are not convinced that the defendant has proved by a preponderance of competent evidence that a properly completed notice was in fact properly addressed and timely mailed to Braswell.

Joint Exhibit A, identified as an exact copied “trail listing” in chronological order of the computer’s register of every transaction that occurred regarding the subject policy, is not admissible as an exception to the hearsay rule under the “business records doctrine”, although there is no question but that computer printouts are admissible in evidence in this state when the proper foundation is laid for their admission.

In State v. Hodgeson, 305 So.2d 421 (La.1974), the Supreme Court was confronted with this question and admitted computer print-outs adopting the Nebraska and Mississippi test for admissibility:

“The Nebraska result was followed in King v. State ex rel. Murdock Acceptance Corp., 222 So.2d 393 (Miss.1969), where the Mississippi Supreme Court adopted the following rules for the admission of computer records and print-outs:
‘. we hold that print-out sheets of business records stored on electronic computing equipment are admissable in evidence if relevant and material, without the necessity of identifying, locating, and producing as witnesses the individuals who made the entries in the regular course of business if it is shown (1) that the electronic computing equipment is recognized as standard equipment, (2) the entries are made in the regular course of business at or reasonably near the time of the happening of the event recorded, and (3) the foundation testimony satisfies the court that the sources of information, method and time of preparation were such as to indicate its trustworthiness and justify its admission. (222 So.2d 398).’
In adopting these rules as our own, we also note with approval Judge Ely’s concurrence in United States v. DeGeorgia, 420 F.2d 889 (9th Cir. 1969), in which he stated:
‘. . . If a machine is to testify against an accused, the courts must, at the very least, be satisfied with all reasonable certainty that both the machine and those who supply its information have performed their functions with utmost accuracy. Therefore, it is essential that the trial court be convinced of the trustworthiness of the particular records before admitting them into evidence. And it should be convinced by proof presented by the party seeking to introduce the evidence rather than receiving the evidence upon the basis of an inadequate foundation and placing the burden upon the objector to demonstrate its weakness. (420 F.2d 895-896).’ (305 So.2d 428) (Emphasis added)”

In King v. State ex rel., supra, cited in State v. Hodgeson, supra, computer sheets were admitted into evidence only after the following foundation was laid:

“These computer sheets were admitted into evidence after extensive testimony by W. M. Spiller, Assistant Treasurer and Accounting Manager of Murdock, who is in charge of the data processing department at the home office, and under whose supervision the computerized accounting records are maintained. The following is the substance of his testimony. A centralized system of accounting is kept at the home office by use of a Burroughs B-280 computer, standard equipment and recognized as an efficient and accurate machine. All records are maintained by this computer on magnetic tape. The information is fed into the machine by competent and experienced operators. At the beginning of each transaction it is given a number and the essential information is key punched on a card. The card is then verified by another operator. If the card is not punched correctly it will not go through the verifying machine. The card is then fed into the computer and the information is recorded on magnetic tape. This is Mur-dock’s permanent record of the customer’s account. The machine also performs other functions not necessary to relate. As payments are made at branch offices each payment is recorded on receipt blocks and these, together with a travel card for each account involved, are sent to the home office where verification is made by the machine. The payment information from receipt block and the travel card is then fed into the computer and recorded on the customer’s account. The branch office could reconstruct the account from copies of cash receipt blocks and other records kept in the branch offices. The records sent from branch offices from which the information is taken to feed into the machine are kept for a period of time, then microfilmed and the original destroyed. The company considers the information recorded by the computer on magnetic tape as the permanent records of the history of customer accounts. The information is received by the home office daily and processed and fed into the machine in the ordinary course of business.” (222 So.2d 396, 397).

However, in the instant case defendant did not attempt to offer computer print-outs or anything else actually prepared by the computer related to this insured. What happened in the instant case was exactly what Judge Ely in United States v. DeGeorgia, supra, was warning against, i.e., a machine was used to testify against the deceased insured without any effort being made to establish its accuracy or trustworthiness, and without any effort being made to produce the machine’s product. The record is void of testimony that State Farm’s computing equipment located in Bloomington, Illinois, is recognized as standard equipment, that the entries made on Joint Exhibit A were made in the regular course of business at or reasonably near the time of the happening of the event recorded, and there is a total lack of foundation testimony by anyone under whose supervision the computerized records are prepared and maintained in Illinois from which the court can satisfy itself that the sources of information, method and time of preparation were such as to indicate its trustworthiness and justify its admission. Therefore, Joint Exhibit A is inadmissible for any purpose other than that stipulated to. It does not qualify as a computer record and is not an exception to the hearsay rule as any other type of business record because the following foundation is required as a pre-requisite to the admissibility of ordinary business records:

“(1) The showing that persons concerned with recording the information are unavailable for testimony, or production of such persons would be a needless burden.
(2) The first collected record available to or usable by the court is introduced.
(3) The records are identified at the trial by one familiar with the bookkeeping procedure.
(4) The evidence seems reliable after considering such factors as: contem-poraneousness of the entry with the occurrence or fact recorded; firsthand knowledge of the entrant; existence of a business or professional duty to record or report the facts in the regular course of business; completeness and honest appearance of the books; and absence of fraud in making the entries or in destroying the supporting memoranda.” See Newspaper Production Company v. Perry, 404 So.2d 1331, 1333 (La.App. 2nd Cir. 1981).

The “trail copy” of the computer records is not the first collected record available to or useable by the court, and there was no showing by defendant that persons concerned with recording the information were unavailable for testimony or that production of such persons would be a needless burden. Furthermore, the records were not identified at the trial by anyone proven to be familiar with the company’s bookkeeping procedure, and there was no showing that this “trail copy” was prepared in the regular course of defendant’s business. Finally, there were no factors presented to the court to form a sufficient foundation for the determination of reliability.

It is clear and undisputed that the law requires that where the insurer defends on the grounds that the policy has lapsed or been forfeited, it carries the burden of establishing facts which will relieve or limit liability. See I. C. Realty, Inc. v. Clifton Conduit Company, Division of General Cable Corporation et al, 291 So.2d 422 (La. App. 4th Cir. 1974).

In summation, our conclusion is inescapable. By its terms, the policy in question fell under the provisions of La.R.S. 22:177; thus, notice was required. The evidence offered to prove such notice was clearly inadmissible hearsay in that defendant’s computer records are inadmissible in the instant ease because a proper foundation was not laid to establish their trustworthiness and accuracy. It logically follows that Hardee’s testimony about what the computer customarily did or what its records told him it did is likewise hearsay. There being no competent evidence proving that defendant sent the required notice, under the provisions of the applicable statute the defendant is therefore estopped by law from declaring the life insurance policy forfeited or lapsed for a period of one year after default in payment of the September 14, 1978, premium and the October 2, 1978 partial premium. See Boring v. Louisiana State Insurance Co., supra. The policy was therefore in force on November 16, 1978, when Braswell was accidentally killed.

Plaintiff seeks in addition to the recovery of the proceeds of the policy penalties and attorneys fees under La.R.S. 22:656. It has generally been held that where the insurer refuses in good faith or with just cause to pay claims under a life policy, the beneficiary is not entitled to the eight percent penalty provided for in the statute. Willis v. Willis, et al, 287 So.2d 642, (La.App. 3rd Cir. 1973); Siracusa v. Prudential Insurance Company of America, 211 La. 1066, 31 So.2d 213 (1947); Hammond v. National Life and Accident Insurance Company, 243 So.2d 902 (La.App. 3rd Cir. 1971). In this case, it cannot be said that the insurer lacked good faith or just cause in contesting the claim.

Plaintiff is further not entitled to recover attorneys fees. Attorneys fees for the prosecution of a suit are allowable only when specifically authorized by law and there is no authority for granting such fees here under La.R.S. 22:656 or any other law. Willis v. Willis, et al supra; Brown v. Continental Casualty Co., 161 La. 229, 108 So. 464 (1926); Mataya v. Delta Life Insurance Co., 71 So.2d 139 (La.App. Orl.Cir. 1954); Grigsby v. First National Life Insurance Co., 7 So.2d 742 (La.App. 2nd Cir. 1947).

The judgment of the lower court is accordingly reversed and judgment is rendered in favor of plaintiff for the sum of $20,000 with legal interest from date of judicial demand until paid and for all costs of this suit, less the balance of the premium due for October 2, 1978 and the premium due November 14, 1978. Costs of this appeal are assessed against defendant.

      . This is policy No. 2473-942 discussed prior.

      . Mr. Hardee testified at length about what defendant’s computer customarily did regarding sending out various notices, entering payments and searching for and entering dividend credits to policies for unpaid premiums. He stated that State Farm had a highly automated computer in Bloomington, Illinois, that automatically prepares and mails premium due notices to all its hundreds of thousands of policyholders in the United States. He further testified there were in the Monroe regional office “transaction registers” of every transaction on every policy serviced by that office. However, he did not explain exactly what the “transaction register” was and how it operated. No effort was made to produce the “transaction register” regarding the subject policy. Instead he testified that exhibit A was prepared by his assistant Tim Steele from the “transaction register”. In connection with his testimony about what this computer, located in another state, customarily did, defendant offered into evidence exhibits D-l, D-2, D-4, and D-5 as examples of the type notices completed and mailed by the computer. D-l and D-2 were simply blank forms while D—4 and D-5 were reproduced copies of filled out forms involving insureds other than the deceased. There was no attempt to introduce into evidence carbon copies or reproduced copies of any notices allegedly sent to the deceased.
      It surfaced at trial that the blank exhibits had been mailed to Hardee by an attorney in Bloomington, Illinois some two or three weeks prior to trial in contemplation of trial.
      Joint exhibit A was stipulated to by the parties as being a type written statement provided by one Tim Steele, defendant’s assistant service superintendent in Monroe, Louisiana, which could be offered as prima facie evidence of the facts contained therein concerning the dates of premiums paid and/or received; the dates and amounts of dividends and interest due, paid or credited; the amounts of dividends applied toward any premium due and any other similar facts concerning payments or dividends due and received, the dates of same, and the sources of same. Admittedly, the information of this exhibit pertained to the policy in question. It was prepared by Steele and mailed to counsel for plaintiff in connection with this litigation.
      After examining exhibit D-2, we are of the opinion that should like notices have been properly filled out and timely mailed to the deceased at least fifteen and not more than forty-five days prior to the due dates of the September 14, 1978 and October 2, 1978 premium payments, it would comply with the notice requirements of R.S. 22:177. The blank exhibit is a printed form and has a space for the amount of the premium or portion thereof due to be inserted. On the reverse side it states that the premium is to be paid at the company’s regional office or at its home office in Bloomington, Illinois.

      . Ironically, even if exhibit A had been admissible to attempt to prove the required 22:177 notice it fails to do so on its face. There was no entry contained thereon whatsoever of any premium due notice being sent to deceased prior to the September 14 or October 2, 1978 premium and partial premium due dates. Obviously, Mr. Hardee was either not correct in his testimony that exhibit A was an exact copied trail listing in chronological order of the computer’s register of every transaction that occured regarding the policy in question, or the computer failed to send the notice, or Mr. Steele failed to correctly transcribe the information contained within the so-called “transaction register”.


author: DOUCET, Judge.

text:
    Felix DUPRE, Plaintiff-Appellee, v. LAND RESOURCES, INC., et al., Defendants-Appellants.
    No. 8835.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1982.

      Edwards, Stefanski & Barousse, Russell L. Zaunbrecher, Crowley, for plaintiff-ap-pellee.
    Clanton & Johnson, John Johnson, Eunice, for defendants-appellants.
    Before GUIDRY, CUTRER and DOU-CET, JJ.
   DOUCET, Judge.

MOTION TO DISMISS

The plaintiff-Appellee, Felix Dupre, moves to dismiss the appeal of the defendant-appellant, Land Resources, Inc., on the grounds that the transcript was not lodged on the return date as set by the trial court nor was any extension applied for by the appellant thus making the appeal untimely.

We dismiss the defendant-appellant’s appeal.

Plaintiff-Appellee, Felix Dupre, filed suit on June 2, 1976 against defendant-appellant, Land Resources, Inc., for damages resulting from drilling operations. Judgment was signed in favor of plaintiff-appellee on March 3, 1981. Notice of judgment was mailed to all counsel of record on March 10, 1981. Defendant-appellant filed this appeal on April 29, 1981, with the return date set for June 26,1981. On May 25, 1981, the attorney for defendant-appellant wrote a letter to the Clerk of Court directing him to discontinue the preparation of the appeal as the suit was going to be settled.

On August 20, 1981, defendant-appellant filed a motion and order requesting that a new return date be set as he now wished to continue with the appeal. The order was granted setting a new return date to this court on October 13, 1981. The record was finally lodged with this court on December 14, 1981. On December 14, 1981, plaintiff-appellee filed this motion to dismiss this appeal as untimely.

The appeal must be dismissed for appellant’s failure to have the transcript lodged before the return date. Though appeals are favored in law, under LSA-C.C.P. art. 2161 a motion to dismiss an appeal shall be granted if the irregularity, error or defect in perfecting the appeal is imputable to the appellant. Appellant in effect abandoned his appeal when he directed the clerk to discontinue the preparation of the appeal. Because of this action by appellant the transcript was not lodged on the return date as originally fixed by the trial court, nor was a timely extension applied for. One cannot renew his appeal after he has abandoned the same. The failure of the clerk to have the record lodged on or before the return date is clearly due to the fault of the appellant.

Furthermore, the action of the trial court extending the return date to October 13, 1981, was without effect. There is no authority in law for a retroactive extension of a return date by the trial court. Louisiana Power & Light Company v. Lasseigne, 255 La. 579, 232 So.2d 278 (1970).

For these reasons, the appeal is dismissed at the cost of defendant-appellant.

APPEAL DISMISSED.


author: REDMANN, Judge.

text:
    Donna LONDON v. Helen BELL et al.
    No. 13073.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1982.
    John J. Jackson, III, New Orleans, for appellee.
    Melvin W. Mathes, Jr., New Orleans, for appellants.
    Before REDMANN, GARRISON and WILLIAMS, JJ.
   REDMANN, Judge.

The December 15 judgment refusing new trial recites that the application was taken under advisement on December 11 (rather than orally refused), and thus December 15 is the day from which appeal time runs. See Pepitone v. State Farm Mut. Auto. Ins. Co., 365 So.2d 1195 (La.App. 4 Cir. 1979).

That the order of appeal was not signed until the 31st day does not by itself defeat the suspensive appeal, Traigle v. Gulf Coast Alum. Corp., 399 So.2d 183 (La.1981) (reversing 391 So.2d 1290), although failure to file the suspensive appeal bond within 30 days may do so. See Home Ins. Co. v. Southern Specialty S. Co., 222 So.2d 649 (La.App. 4 Cir. 1969); but see Peters v. Life General Sec. Ins. Co., 393 So.2d 1286 (La. App. 1 Cir. 1980), writ refused 392 So.2d 1054 (and Justice Lemmon’s concurrence in refusal, id.).

Accordingly the motion to dismiss does not establish cause to dismiss this appeal as suspensive.

MOTION DENIED.


author: LABORDE, Judge.

text:
    Martha LAWRENCE, Individually and as Administratrix of the Estate of her Minor Son, Bruce Lawrence, Plaintiff-Appellee, v. GRANT PARISH SCHOOL BOARD, et al., Defendants-Appellants.
    No. 8594.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 10, 1982.
    Writ Denied April 15, 1982.

      Trimble and Associates, Lon P. Wilson, Bolen & Erwin, John B. Honeycutt, Jr., Alexandria, for defendants-appellants.
    Chris J. Roy, Alexandria, for plaintiff-ap-pellee. •
    Before DOMENGEAUX, DOUCET and LABORDE, JJ.
   LABORDE, Judge.

This is a suit for damages against the Grant Parish School Board (School Board) and two of its employees: Reed Perriloux (principal of Dry Prong High School) and Bernard Harrison (school teacher and welding shop instructor of Dry Prong High School). The damages arise from an accident involving student, Bruce Lawrence who severely cut his hand on an electric power saw during welding class at Dry Prong High School. His mother, Martha Lawrence, instituted this suit individually and as administratrix of her minor son’s estate.

The negligence of Mr. Perriloux and Mr. Harrison was tried to a jury. The jury determined that Mr. Perriloux was not negligent but could not reach a determination as to Mr. Harrison.

The negligence of the School Board was tried to the judge who held the School Board liable for its own negligence and vicariously liable for the negligence of its employees; Mr. Perriloux and Mr. Harrison. The judge also held that Bruce Lawrence was free from fault after concluding that he was neither contributorily negligent nor had he assumed the risk. Accordingly, the trial court rendered judgment in plaintiffs’ favor against the School Board awarding Martha Lawrence $1,053.24 individually and $70,000.00 as administratrix of the estate of her minor son. The School Board appealed. We affirm.

The issues raised on appeal concern whether the trial court erred: in holding the School Board liable for both its own acts of negligence and for the negligent acts of its employees; in holding that Bruce Lawrence was not contributorily negligent; in holding that Bruce Lawrence had not assumed the risk; in awarding excessive damages; and in not allowing the School Board a jury trial.

FACTS

The evidence presented at trial discloses the following facts. Bruce Lawrence was a student at Dry Prong High School. At the time of the accident young Lawrence, age 14, was attending an agriculture class wherein the students were learning welding. The classroom was situated in a building containing numerous welding booths. Also contained in the building was power equipment. This equipment had been stored in this building for a period of time prior to the accident under the authority of the Grant Parish School Board. A power saw was stored in the back of the building easily accessible to any of the students. The evidence presented in court established that the saw was used periodically by Mr. Harrison and other students. Immediately prior to this accident, the saw had been used by another student in Bruce’s class. At the time of the accident the saw had an extension cord attached to it which was plugged into the wall socket. The blade of the saw had been cranked up, but the safety guard had not been reinstalled. The testimony established that the safety guard was not on the saw when it was stored by the School Board. Mr. Harrison and other students testified that at the beginning of the two six-weeks class sessions, the students were told not to use the power equipment. Additionally, at the beginning of the class session the students were given a list of rules, over 200 in number, regarding the use of equipment in the class.

This accident occurred while Bruce Lawrence was using the power saw during the class period. He was attempting to cut a piece of wood when either the wood jumped up, or he cut through the wood, causing his hand to come into contact with the saw blade. The blade severed the index finger of his right hand at the proximal phalange and further caused damage to his fingers, hand and thumb resulting in several surgical operations.

The evidence also established that Bernard Harrison, the instructor of the class, was outside the class at the time of the accident. As to what Mr. Harrison was doing outside the class the evidence is disputed. However, it is clear that he was outside the class at the time of the accident, and also that he frequently left the class at other times.

FAULT OF THE SCHOOL BOARD

The fault of the School Board can be predicated either on its own acts or failure to act, Civil Code Articles 2315 and 2316, or under the doctrine of respondeat superior from the acts of its employees, article 2320, Nash v. Rapides Parish School Board, 188 So.2d 508 (La.App. 3rd Cir. 1966).

Negligence Liability of the School Board

We begin with a discussion of the School Board’s liability predicated either on its own acts or failure to act.

The acts of the School Board were that of storing the power saw in the agriculture class room where 13-15 year old students attended classes, in an operative condition and without any protective safety guard or warning signs.

As stated in Capers v. Orleans Parish School Board, 365 So.2d 23, 24 (La.App. 4th Cir. 1978):

“Tort liability is based on the existence of a duty and the breach thereof which causes damage. The standard of care for school teachers and administrators is that of a reasonable person in such a position acting under similar circumstances. Reasonable care includes protecting against unreasonable risk of injury from dangerous or hazardous objects in the school building and on the grounds.” (emphasis supplied)

The law is well settled that in order for a school board to be liable it must have had actual knowledge or constructive knowledge of a condition unreasonably dangerous to the children under its supervision. Ardoin v. Evangeline Parish School Board, 376 So.2d 372 (La.App. 3rd Cir. 1979). The school board had actual knowledge of the existence of the saw — it ordered its storage. The record shows that it knew of the dangerous condition in which the saw was stored. It knew young children were present in this class daily, and, therefore, owed a duty to exercise a greater degree of care towards these students. Prier v. Horace Mann Insurance Company, 351 So.2d 265 (La.App. 3rd Cir. 1977); writs refused, 352 So.2d 1042 (1977). Despite the duty, the saw was stored with a blade, without a safety guard, in an operative condition in a classroom in which students were attending. These actions by the School Board constituted a breach of its duty to the minor which was a cause of his injury.

We agree the School Board might have prevented this accident by either properly storing the saw outside of the contact of the students, removing the saw blade, or installing a locking mechanism to keep the machine from being turned on without a key, or placing a barricade around the power saw. A rope with a keep out sign would have been the least it should have provided. It failed to exercise any of these duties, thus becoming liable for the injuries sustained by Bruce Lawrence through its own negligence.

The School Board’s argument that it was free from negligence lacks merit.

Respondeat Superior Liability of the School Board

We next consider whether the record supports the trial judge’s conclusion that the School Board is also liable under the doctrine of respondeat superior.

Bernard Harrison was Bruce’s teacher. He taught an agriculture class which was learning how to use welding equipment. The class involved two six weeks sessions in which the first two weeks of the class were spent in a classroom wherein the students were given numerous rules and instructed on the use of the welding equipment. As a prerequisite to entering the shop and using the welding equipment the students were required to copy certain rules pertaining to the welding equipment and then sign them. The students were told not to use the power saw and were never instructed in its use.

At the time of the accident, Bernard Harrison was not present in the classroom. He testified that he frequently left the shop area while the welding machines were in use. He would often leave to get scrap metal or to try and catch students outside smoking. When he would leave the shop there was no other teacher present. The students were left alone, unsupervised, with welding equipment in use, and power equipment present.

The record shows that Bernard Harrison was aware the power saw had been used. In fact he had used it himself on several occasions. Bernard Harrison stated that the saw was unplugged, with the blade lowered, and that an extension cord was needed to plug the cord into a socket. However, when Bruce Lawrence sustained his injury, he simply had to flip a switch to turn on the saw. Another student had used the saw prior to the plaintiff’s using it — all the while Bernard Harrison was outside the classroom.

The acts of Bernard Harrison were clearly a legal cause of the accident. Had he been present in the classroom the accident probably would not have happened.

Bernard Harrison as a teacher owed a duty to the minor to supervise him at all times during the class period due to the presence of inherently dangerous equipment. Bernard Harrison breached this duty when he left the shop area leaving the students unsupervised. He knew a power saw was present in the classroom. He further knew that it had been used from time to time. He also knew that the safety guard was not on the saw. He testified that he did not know the blade on the power saw had been positioned ready for use or that an extension cord was already attached and plugged in. He should have observed this. These acts and his failure to act to protect the minor constitute fault on behalf of Harrison causing injury to Bruce.

Principal Reed Perriloux was also aware that the saw had been stored in the welding shop. He knew that it was in a working condition. He further knew or should have known that 13 and 14 year old children were apt to use the saw. As principal of the school he owed a duty to the students to see that the saw was stored either in a safe manner, or stored in a place or barricaded whereby students could not get hurt. He failed to discharge this duty.

There are many things defendants could have done to protect Bruce and other students, some of which were mentioned previously. The cost of these protective measures is negligible and there is no excuse for the inactions of the defendants. The School Board’s argument that the trial court erred in holding it vicariously liable lacks merit.

FAULT OF BRUCE LAWRENCE

The School Board contends that plaintiffs should be barred from recovery because Bruce was contributorily negligent or he had assumed the risk.

Contributory Negligence

In support of its contention that Bruce was contributorily negligent, the School Board relies heavily on the fact that Bruce was specifically instructed not to use the power equipment.

A 14 year old boy is certainly capable of contributory negligence. However, the application of the doctrine is not a mechanical rule which can be applied to determine the capability of a child to observe and avoid danger.

“. . . A child is not held to the same degree of care as an adult. Rather, the test is whether the particular child, considering his age, background, and inherent intelligence, indulged in the gross disregard of his own safety in face of known, understood, and perceived danger.” (citations omitted) Simmons v. Beauregard Parish School Board, 315 So.2d 883, 888 (La.App. 3rd Cir. 1975), writ refused, 320 So.2d 207 (1975).

Bruce Lawrence was a 14 year old who had never before operated a power saw, and was never instructed in the operation of one. The school did not instruct the pupils why they were not to use the power equipment. Pupils are told not to use a lot of equipment of the school, as the athletic equipment and other things. They could not use the simple tools without checking them out of an adjoining room. The prohibition did not carry the reason that they could be injured because they were not trained to use the power equipment. The record supports that Bruce was told not to use the power saw, however we agree with the lower court that mere instructions alone to a 14 year old not to use a power saw, which is easily accessible and can be turned on by simply flipping a switch, are insufficient to categorize the plaintiff’s conduct as contributory negligence. Bruce Lawrence’s only wrong was to use a saw he was told not to use. This simple disobedience does not constitute contributory negligence. The duty of the School Board encompassed acts such as those of Bruce Lawrence and his classmate. It is foreseeable that kids will do things they are told not to do. The School Board owed a duty to all the students not to store a dangerous power saw in an area that was easily accessible to the students. Prier v. Horace Mann Insurance Company, supra. The School Board knew or should have known that someone would attempt to use the saw as the plaintiff did.

Assumption of Risk

The School Board’s defense of assumption of risk is easily disposed of. Since Bruce Lawrence had never before used a power saw nor was he instructed in its use, it cannot be said that he assumed any known risk by his actions.

“. . . The defense of assumption of risk is in fact quite narrowly confined and restricted by two requirements: first, that plaintiff must know and understand the risk he is incurring, and second, that his choice to incur it must be entirely free and voluntary. Langlois v. Allied Chemical Corporation, 249 So.2d 133 (La.1971); Pollard v. Roberts, 306 So.2d 801 (La.App.2d Cir. 1975).

We agree with the lower court, and the record supports, that Bruce was not guilty of any fault sufficient to bar his recovery.

QUANTUM

The School Board contends that the general damages awarded plaintiff are excessive and asks this court to reduce them.

LSA-C.C. art. 1934(3) provides that in the assessment of general damages “much discretion” must be left to the trier of fact. Reck v. Stevens, 373 So.2d 498 (La.1979).

The Louisiana Supreme Court, in Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976) stated on page 335:

“We do reemphasize, however, that before a Court of Appeal can disturb an award made by a trial court that the record must clearly reveal that the trier of fact abused its discretion in making its award. Anderson v. Welding Testing Laboratory, Inc. [304 So.2d 351 (La.1974)], supra; Bitoun v. Landry [302 So.2d 278 (La.1974)], supra; Fox v. State Farm Mutual Automobile Ins. Co. [288 So.2d 42 (La.1973)] supra; Walker v. Champion [288 So.2d 44 (La.1973)], supra. Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court. Bitoun v. Landry, supra; Spillers v. Montgomery Ward & Company, Inc., supra. It is never appropriate for a Court of Appeal, having found that the trial court has abused its discretion, simply to decide what it considers an appropriate award on the basis of the evidence.”

The School Board cites a number of cases in its brief which it contends show an abuse of the trial court’s “much discretion”. Although the cases cited concern actions brought by plaintiffs with injuries somewhat similar to those suffered by Bruce in this case, the initial inquiry must always be directed at whether the trial court’s award for the particular injuries and their effects upon this particular injured person is a clear abuse of the trier of fact’s “much discretion”, LSA-C.C. art. 1934(3) and Reck v. Stevens, supra.

The evidence shows that after the accident, it was between one and two hours before Bruce was taken to the hospital. He testified that he experienced severe pain during this period. Bruce’s index finger was completely severed and had to be picked up from the floor and taken to the hospital. The saw blade made deep cuts into Bruce’s thumb, fingers and hand. Plaintiff was a fourteen year old child at the time of the accident. For the rest of his life, Bruce will have a permanent disfigurement and impairment of his right hand. His thumb is pinned and thus restricts his motion. According to the findings of Dr. Ray Beurlot, an orthopaedic who examined Bruce, Bruce has a 50% disability of his right hand. The record shows that Bruce is right-handed.

Bruce’s SRA test scores were introduced into evidence. They indicate that he is well below the intelligence norm of others his age, a factor considered and relied upon by the lower court in concluding that Bruce suffered a diminished earning capacity.

Based on the above, we find no clear abuse of the trial court’s “much discretion” in awarding $70,000.00 in general damages.

THE SCHOOL BOARD’S RIGHT TO A JURY TRIAL

The School Board contends that the trial court erred by not allowing it a jury trial as requested.

LSA-R.S. 13:5105 states:

“No suit against the state or a state agency or political subdivision shall be tried by jury.”

The Louisiana Supreme Court had the opportunity to review this article in the very recent case of Descant v. Rapides Parish Police Jury, 409 So.2d 1226 (La.1982), rendered January, 1982. The Supreme Court held that the language of LSA-R.S. 13:5105 clearly prohibits a jury trial where such an entity as described in the statute is involved. The School Board is such an entity. Hence, we find no error in the trial court’s denial of its request for a jury trial.

For the above reasons, the judgment appealed from is affirmed. Costs in the amount of $3,797.80 are assessed against defendant-appellant, Grant Parish School Board, as provided by law.

AFFIRMED.

DOMENGEAUX and DOUCET, JJ., concur in the result.

      . The trial judge signed a judgment absolving Mr. Perriloux of any fault and further declared a mistrial as to the fault of Mr. Harrison.

      . It has repeatedly been held that the fact that each student is not personally supervised every moment of each school day does not constitute fault on the part of the School Board or its employees. Partin v. Vernon Parish School Board, 343 So.2d 417 (La.App. 3rd Cir. 1977). However, we are faced here with a failure not only to properly supervise, but to even be present, when students are engaged in the use of dangerous equipment.


text:
    Stephen L. BAGGETT v. Helen Purvis BAGGETT.
    No. 53284.
    Supreme Court of Mississippi.
    Feb. 10, 1982.
    Harry L. Kelley, Jackson, for appellant.
    Arnold D. Dyre, Jackson, for appellee.
   Appeal from Chancery Court, Rankin County; Billy Bridges, Chancellor.

Before PATTERSON, C. J., and BROOM and DAN M. LEE, JJ.

AFFIRMED IN PART; REVERSED IN PART; DECREE MODIFIED.

SMITH and SUGG, P. JJ., and WALKER, ROY NOBLE LEE, BOWLING and HAWKINS, JJ., concur.


text:
    Percy C. TAYLOR v. STATE of Mississippi.
    No. 53209.
    Supreme Court of Mississippi.
    Feb. 10, 1982.
    Jim Waide, West Point, for appellant.
    Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
   Appeal from Circuit Court, Choctaw County; Niles McNeel, Judge.

Before SMITH, P. J., and ROY NOBLE LEE and BOWLING, JJ.

AFFIRMED.


text:
    Carl STRONG v. STATE of Mississippi.
    No. 53339.
    Supreme Court of Mississippi.
    Feb. 17, 1982.
    William Dean Stark, Starkville, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Oktibbeha County; Harvey S. Buck, Judge.

Before BROOM, BOWLING and DAN M. LEE, JJ.

AFFIRMED.


author: SMITH, Presiding Justice,

text:
    Albert DRUNGO v. STATE of Mississippi.
    No. 53291.
    Supreme Court of Mississippi.
    Feb. 17, 1982.

      Burdine & Austin, Curtis H. Austin, Columbus, for appellant.
    Bill Allain, Atty. Gen. by Amy D. Whit-ten, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
    Before SMITH, P. J., and ROY NOBLE LEE and BOWLING, JJ.
   SMITH, Presiding Justice,

for the Court:

Albert Drungo was indicted for aggravated assault upon Robert Harris. He was tried in the Circuit Court of Lowndes County, convicted, and sentenced to serve a term of fifteen years confinement with the Mississippi Department of Corrections.

Drungo appeals, assigning for reversal two grounds:

(1) The verdict was against the overwhelming weight of the evidence.

Harris, his wife and another couple, Marshall Prowell and Linda Strickland, attended the Unicorn Club to celebrate the birthday of Linda Strickland. While Harris was dancing with his wife, Drungo sought to “cut in” and dance with her. Harris refused. Words passed between Drungo and Harris and Drungo went outside and obtained some cartridges for his pistol from his automobile. When Drungo returned, Harris had gone back to his table. At this time, Drungo shot Harris in the eye, blinding him in that eye. At the time Harris had no weapon and did not have a bottle in his hand. Drungo’s defense was self-defense. He testified that when he shot Harris, which he admits having done, the latter had a bottle in his hand and he, Drungo, thought Harris was going to throw it at him.

The evidence as to what occurred was in dispute, and it was the province of the jury to resolve the fact issues, and the evidence was ample to support a finding by the jury that Drungo shot Harris when the latter was unarmed, and Drungo was in neither real nor apparent danger at his hands.

In Murphree v. State, 228 So.2d 599, 601 (Miss.1969), cert. denied, 397 U.S. 1068, 90 S.Ct. 1509, 25 L.Ed.2d 690 (1970), this Court noted:

Appellant contends that the trial court erred in refusing to grant the appellant a peremptory instruction and in overruling a motion for a new trial. The motions were properly overruled because the evidence was conflicting and the jury is the sole judge of the credibility of witnesses and the weight and worth of their testimony. This wise rule applies with equal force to the State’s witnesses as to the appellant’s witnesses, including the appellant. We have repeatedly held that jurors may accept the testimony of some witnesses and refuse that of others, and that they may accept in part and reject in part the evidence on behalf of the State and on behalf of the accused. McLelland v. State, 204 So.2d 158 (Miss.1967); Cobb v. State, 235 Miss. 57, 108 So.2d 719 (1959); Ivey v. State, 206 Miss. 734, 40 So.2d 609 (1949); Hill v. State, 199 Miss. 254, 24 So.2d 737 (1946). It is not for this Court to pass upon the credibility of witnesses, and where the evidence justifies the verdict it must be accepted as having been found worthy of belief. McLelland v. State, supra; Matthews v. State, 243 Miss. 568, 139 So.2d 386 (1962); Scott v. State, 185 Miss. 454, 188 So. 546 (1939).

There is no merit in the contention that the verdict of guilty was against the overwhelming weight of the evidence.

(2) The court erred in denying appellant’s instruction of self-defense.

Drungo requested a rather lengthy and discoursive instruction on the law of self-defense which the trial court declined to grant. In addition to confusing ambiguities in the proffered instruction, the court’s action in refusing to grant it was justified by the fact that a proper instruction on self-defense was given to the jury. The self-defense instruction, granted by the court at the request of the state, clearly set forth the law on the subject and complied with the requirements stated by this Court in Coleman v. State, Miss., 22 So.2d 410 (1945):

Appellant complains that the following instruction was granted to the State: ‘The Court instructs the jury for the State that to make an assault with a deadly weapon justifiable on the ground of self defense, the danger to the defendant must be either actual, present and urgent, or the defendant must have reasonable grounds to apprehend a design on the part of the assaulted party to kill her or to do her some great bodily harm, and in addition to this that there was imminent danger of such design being accomplished, and hence mere fear, apprehension, or belief, however sincerely entertained by one person that another designs to take her life, or to do her some great bodily harm, will not justify the former in so assaulting or shooting the latter party. A party may have a lively apprehension that her life is in danger and believe the grounds of her apprehension just and reasonable, and yet she acts at her peril, she is not the final judge, the jury may determine the reasonableness of the grounds upon which she acted.’ This instruction has been approved in the criminal jurisprudence of this State ever since Wesley v. State, 37 Miss. 327, 75 Am.Dec. 62, and as late as Ransom et al. v. State, 149 Miss. 262, 115 So. 208. This instruction, with identical language, was approved in the latest case dealing with it, Callas v. State, 151 Miss. 617, 118 So. 447. The Court committed no error in granting this instruction for the State.

Drungo was not prejudiced by the failure to grant a second instruction on the subject. There is no merit in this assignment.

No prejudicial error having occurred in Drungo’s trial and the verdict having been amply supported by the evidence the judgment and sentence are affirmed.

AFFIRMED.

PATTERSON, C. J., SUGG, P. J., and WALKER, BROOM, ROY NOBLE LEE, BOWLING, HAWKINS and DAN M. LEE, JJ., concur.