text:
    BOARD OF JURY COMMISSIONERS, ORLEANS PARISH v. Sheryl B. GOINS.
    No. 82CA0125.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.

      Eavelyn T. Brooks, Asst. Atty. Gen., Dept, of Justice, New Orleans, for appellant.
    Lloyd N. Frischhertz, Seelig, Cosse & Frischhertz, New Orleans, for appellee.
    Robert R. Boland, Jr., Dept, of State Civil Service, Baton Rouge, for George Hamner, Director, Dept, of State Civil Service.
    Before LOTTINGER, COLE and CARTER, JJ.
   COLE, Judge.

The issue presented here is whether or not the Civil Service Commission erred in ruling the appointing authority failed to prove the employee, Sheryl Goins, orally resigned from her position as a clerk-typist II with the Orleans Parish Board of Jury Commissioners. Because we find the Commission did commit manifest error, we reverse.

At the hearing on the matter the testimony was conflicting. The Director of the Jury Commissioners, Mr. Earl Duplantier, testified he and Ms. Goins had become involved in an argument in his office on April 1,1980. At that time she allegedly told Mr. Duplantier “I quit.” He then asked the bookkeeper to figure up the amount of annual leave due Ms. Goins. He informed Ms. Goins she would be on annual leave until April 11, 1980, at which time her resignation would become effective. He asked her to submit a written letter of resignation. She returned to work on April 3rd and wrote a letter requesting she be transferred to another state agency. When she attempted to return to work on April 11th she was told by Mr. Duplantier she no longer was employed there and she must leave the premises.

Two office employees testified on behalf of the appointing authority. Ms. Elaine James stated her desk was located near Mr. Duplantier’s office. On the day in question she heard Ms. Goins and Mr. Duplantier arguing and heard Ms. Goins say, “Well, I'll just quit” or “I’ll have to quit.” Another employee, Ms. Emilda Indovina, also overheard the discussion. She too heard Ms. Goins say, “I quit” or “I’ll just have to quit.” Both witnesses admitted they could not remember the exact words spoken by Ms. Goins.

On the other hand, Ms. Goins testified she had not been in Mr. Duplantier’s office on April 1st nor had she had any discussion with him concerning an intention to quit her job. She stated she went to work on April 1st, 2nd and 3rd and on the 3rd wrote the letter requesting a transfer to another agency. She then took her annual leave (in order to search for another job) and returned on April 11th.

In its written opinion the Commission found as a fact the argument took place in Mr. Duplantier’s office on April 1st and that Ms. Goins made statements indicating an intent to quit her job in the future but not an intent to quit her job as of that day. It noted only Mr. Duplantier was certain Ms. Goins had said “I quit.” The other two witnesses were not positive as to the exact words she used and Ms. Goins denied any discussion of the matter. The Commission found the appointing authority had failed to prove Ms. Goins had submitted a verbal resignation. It found the appointing authority had attempted to verbally terminate the appellee when she returned to work on April 3rd which is a violation of Civil Service Rule 12.3. The Commission reinstated Ms. Goins to her former position, with back pay. The appointing authority appealed.

As an appellate court we are entitled to review the Commission’s decision as to both law and fact, but we must give great weight to the factual conclusions. Arnold v. New Orleans Police Department, 383 So.2d 810 (La.App. 4th Cir.1980) writ denied 1980. Generally, administrative boards have great discretion and their decisions will not be set aside in the absence of proof of abuse of such discretion. Flanagan v. Department of Civil Service of the City of New Orleans, 391 So.2d 958 (La.App. 4th Cir.1980).

In this case we find an abuse of discretion by the Commission concerning its factual conclusions. Further we have some difficulty in following the logic of the Commission in this respect. On the one hand, the Commission obviously believed the testimony of Mr. Duplantier and the two office workers as to the fact the argument took place. (It apparently rejected Ms. Goins testimony that no argument occurred and that she had never discussed this matter with Mr. Duplantier.) Yet, on the other hand, the Commission refused to accept the uncontradicted testimony of Mr. Duplantier as to what took place in that discussion. When questioned about the incident, Mr. Duplantier testified as follows:

“A. I was in one of the courts when somebody from the office called me and said they were having a little problem down there with Ms. Goins. I went to see what was going on. I called Ms. Goins and brought her to my office and we started to discuss her problems of somehow not being able to get along with anybody in the office. Ms. Goins got a little upset. She said ‘well, I guess if that’s the way you feel about it, I just as well quit.’ I said ‘Sheryl I’m not telling you what to do. You can do what you want to do.’ She said ‘I quit.’ With that, I told her I would get her records together, put her time together and let her know exactly how much time she had coming to her. I went downstairs, got her leave record, figured out the number of hours of leave she had left, brought it to the accountant, the accountant figured out the pay, submitted it to Ms. Goins, told her that we would pay her on the 11th, I think it was the 11th that it was. And that there ended that day as far as I remember.
Q. Ok, you say now that she did resign her position?
A. She said T quit.’
Q. So you are sure that she didn’t just threaten to resign in the future or say maybe she would and she would think about it?
A. Oh no. No ma’am. She said ‘if that’s the case, I just as well quit’ and that’s when I told her, I said ‘Ms. Goins, Sheryl, you do what you want to do. I am not telling you what to do.’ And she said ‘Well I quit.’
Q. And did you accept her resignation?
A. I most certainly did.”

We find no reason to reject this uncontro-verted testimony. Further, Mr. Duplantier’s testimony was fairly well corroborated by the two office employees who testified they had heard Ms. Goins say “I quit,” or “I’ll have to quit” or words to that effect. Mr. Duplantier’s testimony is supported further by the fact that Ms. Goins was then informed of her annual leave due and did not report to work the next day. When she returned on April 3rd she typed the letter requesting the transfer and was then asked to leave. This evidence, taken as a whole, proves more probably than not, Ms. Goins submitted her oral resignation to Mr. Du-plantier on April 1, 1980.

Oral resignations are allowed under Civil Service Rule 12.8(b). It becomes “an accomplished fact” when accepted by the appointing authority. Rule 12.8(b)l. The resignation may not be rescinded or withdrawn once it is accepted by the appointing authority. Rule 12.8(d)l. Although the appointing authority is required to request a written letter of resignation, the letter is not a prerequisite for the validity of the resignation. In cases where no letter is supplied the appointing authority is to explain in writing to the Director why no letter was provided. Rule 12.8(a). The record contains a “Personnel Action” sheet on which Mr. Duplantier stated that Ms. Goins had orally resigned and had returned to work on April 3rd but did not submit her written letter. We find this fulfills the requirements of Rule 12.8(a). Mr. Duplan-tier’s testimony indicates he indeed accepted Ms. Goins’ resignation. Therefore, the resignation is valid and we reverse the decision of the Commission. Appellee Sheryl Goins is to pay the costs of this appeal.

REVERSED.

      . Rule 12.3(a)!. requires the appointing authority to give the employee written reasons for the employee’s removal.

      . We do not attach much significance to the fact the employees could not say for sure which phrase Ms. Goins used. Either one expresses an immediate intention to cease employment when viewed within the circumstances.


source: Caselaw Access Project

author: COLE, Judge.

license: Public Domain

text:
    Ernest L. GARNER v. W.J. MILLER d/b/a Miller, Smith & Champagne, Inc.
    No. 82CA0128.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    Ernest L. Garner, pro se.
    John W. Perry, Jr., Baton Rouge, for defendant-appellee, W.J. Miller d/b/a Miller, Smith & Champagne, Inc.
    Before LOTTINGER, COLE and CARTER, JJ.
   COLE, Judge.

The issue in this personal injury case is whether or not the award of $1,500 for pain and suffering is so low as to be an abuse of the trial court’s discretion. We conclude it is not and therefore affirm.

This case involved a rear-end collision wherein a car being driven by defendant, W.J. Miller, collided with an automobile being driven by plaintiff, Ernest Garner. Plaintiff filed suit complaining of neck and back injuries. Medical evidence at- trial showed plaintiff was diagnosed initially as having a “mild strain to the lower back.” X-rays taken immediately after the accident showed signs of early degenerative disc disease which the medical experts stated develops gradually over a period of many years. The trial court awarded $1,500 for plaintiff’s pain and suffering and other sums (not an issue here) for medical expenses and property damage. Plaintiff appealed as to the general award.

In assessing damages much discretion is left to the trier of fact. Perniciaro v. Brinch, 384 So.2d 392 (La.1980); La.Civil Code art. 1934(3). Each personal injury case must be evaluated according to its own peculiar facts and circumstances in determining the amount of damages sustained. Profit v. Linn, 346 So.2d 253 (La.App. 1st Cir.1977); Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971). While we find the award in this case to be conservative, in light of the evidence presented at trial, it is not so low as to be an abuse of the court’s discretion. Therefore, we affirm the judgment of the trial court. Costs are to be paid by appellant.

AFFIRMED.


author: CARTER, Judge.

text:
    Winford LINDSAY, d/b/a Winford Lindsay Associates v. OPT, INC.
    No. 82 CA 0130.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    George K. Anding, Jr., Baton Rouge, for plaintiff-appellee Winford Lindsay d/b/a Winford Lindsay Associates.
    John E. Seago, Baton Rouge, for defendant-appellant Opt, Inc.
    Before LOTTINGER, COLE and CARTER, JJ.
   CARTER, Judge.

This appeal is of a summary judgment rendered in favor of plaintiff for the amount allegedly due him under a contract for architectural services. Appellant, Opt, Inc., assigns as error the conclusion of the trial court that there is no genuine issue as to material fact. We affirm.

On October 13,1978, a contract to provide architectual services was entered into between the plaintiff and William R. LeBlanc, the alleged agent of the defendant. Upon completion of all the services required of him under the contract, plaintiff commenced making demands for payment of his services as stipulated in the contract.

On January 21, 1980, plaintiff caused to be filed a petition alleging that the defendant was indebted unto him in the sum of $8,620.00, plus legal interest, representing the amount due under the contract.

An answer was filed by the defendant on March 28,1980 which denied the allegations of plaintiff’s petition. This answer also included an affirmative defense asserting that in signing the contract in question, William R. LeBlanc was acting beyond the scope of any authority which may have been granted to him by Opt, Inc.

In answers to interrogatories that were propounded by the plaintiff, defendant included a resolution dated December 8, 1977, by the Board of Directors of Opt, Inc. which granted unto William R. LeBlanc certain authority to act on behalf of the corporation. The defendant has admitted that this resolution was still effective when the contract in question was entered into.

Based upon the authority granted unto William R. LeBlanc in this resolution, the trial court determined that there was no genuine issue of material fact, and thus granted the plaintiff’s motion for summary judgment. We agree.

Summary judgment under La.C.C.P. arts. 966-969, although an extremely useful device for ending unnecessary litigation, must be used with caution. Thompson v. South Central Bell Tel. Co., 411 So.2d 26 (La.1982). It is essential that a motion for summary judgment be granted only when “the pleadings, depositions, and admissions, on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.C.C.P. art. 966; Dixie Campers, Inc. v. Vesely Co., 398 So.2d 1087 (La.1981); Chaisson v. Domingue, 372 So.2d 1225 (La.1979). If there is any doubt as to whether or not a genuine issue of material fact is present, the doubt must be resolved against the granting of a motion for summary judgment and in favor of trial on the merits to decide disputed facts. Chaisson v. Domingue, supra; Hughes v. Eagle Trucking Co., 340 So.2d 1067 (La.App. 1st Cir.1976); Hobbs v. Fireman’s Fund American Insurance Cos., 293 So.2d 608 (La.App. 3rd Cir.1974).

Where a genuine issue of material fact exists, summary judgment does not lie even though the trial court entertains grave doubt concerning respondent’s ability to establish disputed facts. Butler v. Travelers Insurance Co., 233 So.2d 271 (La.App. 1st Cir.1970).

Appellant’s complaint is not that the work was not done and not that the money is not owed by someone. Appellant contends that William R. LeBlanc exceeded his authority to act on behalf of Opt, Inc. This contention is directly contradicted by a certified copy of a resolution of the Board of Directors of Opt, Inc. dated December 8, 1977, and made a part of appellee’s motion for summary judgment. Said resolution in part provides as follows:

“WILLIAM R. LEBLANC, be and he is hereby authorized to sign notes, both secured and unsecured, or other instruments of indebtedness on behalf of this corporation, to borrow money, assume mortgages or other obligations, or otherwise incur obligations on behalf of this corporation on such terms and conditions as he may see fit, from such person, persons, firms, or corporations as he may see fit, ... (underlining by the court).”

Clearly, there is no genuine dispute as to material fact concerning the express authority of William R. LeBlanc to bind the defendant to this particular type of obligation.

For the foregoing reasons, the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.


text:
    Thomas P. NAQUIN v. TEXACO, INC.
    No. 82 CA 0133.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.

      James C. Walker, Jr., Houma, for plaintiff and appellee.
    Robert Henry Sarpy, Jr., New Orleans, for defendant and appellant.
    Before LOTTINGER, COLE and CARTER, JJ.
   CARTER, Judge.

This workmen’s compensation case is before us on appeal from a judgment finding appellee totally and permanently disabled and awarding penalties and attorney’s fees for arbitrary and capricious withholding of compensation benefits.

Appellee Naquin instituted suit against Texaco seeking benefits for total and permanent disability, medical expenses, statutory penalties and attorney’s fees. After trial on the merits and pursuant to written reasons, the trial judge rendered judgment in favor of plaintiff-appellee Naquin. From this judgment, appellant has perfected this appeal.

The basic issues presented on this appeal are:

(1) Whether appellee suffered an “accident” within the meaning of workmen’s compensation law, and if so, was he disabled as a result of the accident?
(2) Whether a credit should be allowed for compensation and expenses paid under the appellant’s Accident and Sick Benefits Plan?
(3) Whether penalties and attorney fees should be assessed?

Naquin, a 58 year old man with a ninth grade education, had been employed by Texaco since 1954. He began as a “camp man” and at the time of the alleged accident on June 7, 1979 had progressed to “second cook.” On this date, Naquin contends he injured his neck and back while attempting to remove his suitcase from the aluminum bin at the rear of the crew boat which had transported other employees from the Lake Barre camp to Cocodrie. Appellee testified at trial that upon bending down to remove his suitcase, he “ripped” his back causing a burning pain in the upper and lower regions of his spine. He also experienced severe pain in his chest. At the time, Naquin believed he was having a heart attack. This pain caused Naquin to drop his suitcase and stagger backwards. Two other Texaco employees on the crew boat questioned Naquin as to his well being and retrieved his suitcase.

Appellee’s wife was waiting at the dock and after being informed of the incident, she requested that he go to the hospital. At this time, appellee declined the hospital visit. He experienced considerable pain that night and the following morning consulted Dr. William Marmande. Naquin related to Marmande the pain in his neck and back, and particularly chest pain. However, no record was made of the history of the pain. Dr. Marmande performed a cardiogram, which was negative. He diagnosed appellee’s condition as muscle pain and prescribed a muscle relaxant. Dr. Mar-mande saw appellee again on June 13,1979, at which time he found no change in appel-lee’s condition, but the symptoms were better.

On June 14, 1979, appellee went on his next hitch to avoid a “lost time” accident. On this hitch, Naquin did not perform his usual duties as “second cook”, but did the bookwork duties of the head cook whom he was replacing. Naquin told Tillery, the Camp Barre first aid man, of injuring his back when attempting to remove his suit-ease from the crew boat bin after completing the June 1,1979 hitch. Tillery testified that appellee appeared to be in pain and was stooped over. Tillery advised appellee to “go in”, but he refused stating that there was no one to take over his duties as head cook.

Upon completing this hitch on June 22, 1979, Tillery advised Sterling Chaisson, ap-pellee’s immediate supervisor, that appellee was suffering from a back injury that he claimed occurred when he was in the process of removing his suitcase from the crew boat bin.

Between July and November of 1979, Na-quin consulted Dr. Anna Plauehe several times concerning dizziness that he had been experiencing since before the June accident, and the pain and numbness he had since the June accident. Dr. Plauehe testified that she found a “trigger area” at the base of Naquin’s skull which was consistent with his complaints of numbness in his right hand. Dr. Plauehe also testified that her treatment was limited to the vertigo complaints, as she was under the impression that Dr. Marmande was treating Naquin for the back injury.

Dr. Plauehe referred appellee to Dr. Anthony J. Herques, an ear, nose and throat specialist. Dr. Herques diagnosed Naquin’s dizziness as vertigo due to vascular problems. Dr. Herques testified that during the months between September 1979 and January 1980, he saw appellee six times. During a December visit, x-rays were taken which revealed mild cervical arthritis. He testified he did not believe that Naquin’s vertigo by itself was of a severe enough nature to prevent him from returning to work, but that he was not familiar with the remainder of appellee’s medical history which must be taken into consideration before making a definitive statement of Naquin’s ability to return to work.

On March 18,1980, Naquin saw Dr. Richard Landry, an orthopedic surgeon, on the referral of Dr. Plauehe. Dr. Landry took x-rays which showed a narrowing of the cervical 5-6 disc indicating a herniated cervical disc which was pressing on a nerve going into the arm and causing the numbness. Examination verified Naquin’s complaints of back pain by muscle spasms and limitation of motion in both neck and lumbar regions. On a subsequent visit, Dr. Landry prescribed a cervical collar and physical therapy. Appellee made several visits to Dr. Landry’s office between March and May of 1980, each time indicating that the cervical collar was helping his neck, but that he was still experiencing stiffness and pain when he rotated his neck.

Dr. Daniel Trahan performed an electro-myographic study of his neck, shoulder and arm on May 2, 1980, at the request of Dr. Guidry (an associate of Dr. Landry). The findings of this study corresponded to the narrowing of the cervical 5-6 disc and the neck pain complaints.

Dr. John D. Jackson, a neurosurgeon, first saw appellee on May 12, 1980, at which time his diagnosis was a bulging cervical 5-6 disc. This diagnosis was made after studying the March x-rays, the electromyo-graphic report, and the subjective complaints of pain.

On May 21, 1980, Naquin was admitted into Lakeside Hospital for a total myelo-gram which revealed a large defect at the cervical 5-6 level. On May 22, 1980, Dr. Jackson performed surgery to correct the ruptured disc by performing an anterior cervical fusion at the 5-6 level.

Between May 1980 and April 1981, appel-lee was seen by Jackson numerous times. Dr. Jackson felt appellee was progressing nicely, and as of April 2, 1981, he felt as though appellee could return to work as far as the anterior cervical fusion was concerned. However, Dr. Jackson clarified that his opinion as to appellee’s ability to return to work was limited to the disc surgery’s progress and its affected area, the neck and shoulders. Dr. Jackson stated that this opinion did not concern appellee’s continuous complaint of low back pain, for which he was not concerned because he thought Dr. Guidry was treating this problem.

Appellant contends that Naquin did not sustain his burden of proving an “accident” within the meaning of workmen’s compensation. Further, appellant contends that there were no objective symptoms of injury at the time of the alleged “accident”.

An “accident” is defined in LSA-R.S. 23:1021 as “an unexpected or unforeseen event happening suddenly or violently, with or without human fault, and producing at the time objective symptoms of injury.”

The employee in a workmen’s compensation proceeding has the burden of establishing the disability and its causal relation with the employment accident by a preponderance of the evidence. Prim v. City of Shreveport, 297 So.2d 421 (La.1974). Proof by a preponderance of evidence is sufficient when “the evidence taken as a whole, shows that the fact .. . sought to be proved is more probable than not.” Schouest v. J. Ray McDermott & Co., Inc., 411 So.2d 1042 (La.1982), quoting Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (La.1971).

To constitute an accident it is not necessary that the injury be the result of a violent trauma. An accident may be said to have occurred if a part of the body gives way suddenly while the employee is discharging his usual and customary duties.

In the instant case, the testimony reveals that appellee’s back “ripped” causing a burning pain in the upper and lower regions of his spine. This “ripping” occurred as he was removing his suitcase from the bin of the crew boat after it had docked.

It is undisputed that appellant provided the transportation via the crew boat to and from the Lake Barre camp, and thus, appellee falls within the exception to the general rule that employees going to and returning from work are not covered by the Workmen’s Compensation Act. The exception is an accident that happens while an employee is being transported to or from work by his employer is compensable under the Act if the transportation is furnished as an incident of the employment. W. Malone and H. Johnson, III., Worker’s Compensation § 170 in 13 Louisiana Civil Law Treatise (1980).

The objective symptoms are found in the testimony of the two employees on the crew boat at the time of the accident, Dupre and LeBoeuf. Both observed Na-quin staggering backwards and inquired as to his well being. Appellee’s wife related that he was in much pain the night after the incident, and that it was necessary for him to consult a doctor the following morning.

We find that the trial court was correct and supported by reasonably drawn conclusions from the evidence in finding that there was an “accident” within the meaning of the workmen’s compensation statute which arose out of and in the course of appellee’s employment.

Appellant contends that appellee is neither entitled to compensation under LSA-R.S. 23:1221(1)(2) for permanent and total disability, nor under LSA-R.S. 23:1221(3) for permanent partial disability.

In Oster v. Wetzel Printing, Inc., 390 So.2d 1318 (La.1980), the Supreme Court stated the following concerning permanent and total disability under the 1975 amendment to LSA-R.S. 23:1221(2):

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

Also, in Oster, the Supreme Court adopted the “Odd-lot” doctrine which is accepted in virtually every other jurisdiction in the country. To determine if the employee should be classified as an odd-lot worker, the Supreme Court in Oster enunciated the following test, at page 1323:

“In order to determine whether the plaintiff fits within this category of odd-lot workers, he must show that because of his physical impairment, mental capacity, education, training, age, availability of employment in his area, and any other relevant factor, that he ‘cannot perform the substantial and material parts of some gainful work or occupation with reasonable continuity.’ Reese v. Preston Marketing Assoc., 274 Minn. 150, 142 N.W.2d 721, 723 (1966). If the plaintiff is successful in showing a combination of factors indicating that the services which he is able to render are so limited in quality, quantity, or dependability that a market for his labor does not exist within which he can effectively compete, he has presented a prima facie case for classification in the odd-lot category. An offering of such proof by the plaintiff, therefore, satisfies his burden of proving that he should be awarded benefits for permanent and total disability. The defendant employer then has the onus of showing that there are jobs which are available to provide a steady income to the plaintiff or that will provide him with ‘a gainful occupation.’ It is fairer to place the burden on the defendant to show that there are steady jobs available to the plaintiff, after plaintiff has shown his odd-lot status, than to require the plaintiff to prove the universal negative of not being employable at any occupation. Brown v. Safeway Stores [82 N.M. 424], 483 P.2d 305, 308 (N.M.App.1971); Lyons v. Industrial Special Indem. Fund, 98 Idaho 403, 565 P.2d 1360, 1363 (1977); Larson, supra. § 57.61 at pp. 10-136-137.”

Appellee’s evidence shows that he was 54 years old at the time of the accident in June, 1979. He has no formal education beyond the ninth grade and his previous employment has been limited to manual labor. For the past 25 years he has worked as a cook. He still suffers from stiffness and limitation of motion in his right arm, in his neck (due to the fusion), and in his lower back. The limitation of motion in his neck and lower back makes driving difficult. Dr. Jackson testified that at least until April 2, 1981, Naquin was unable to continue his employment as cook, and that after this date he could return to work as far as his neck was concerned, but that the constant low back pain that he was experiencing might be disabling. Dr. Jackson refused to extend his diagnosis to appellee’s lower back since he was not treating him for this problem. Dr. Landry testified that when Naquin was under his care, he was disabled because of his cervical and lumbar problems. Dr. Herques testified that the vertigo, hearing loss and hypertension, coupled with circulatory problems of which ap-pellee was suffering, should also be taken into consideration in determining his ability to work. A letter dated March 17,1980, by the Division Supervisor and addressed to Naquin recognizes the disability of appellee due to his vertigo by acknowledging that his attempt to work as a cook could pose a degree of danger.

We conclude that Naquin established that he is at a substantial disadvantage in the competitive labor market. The preponderance of evidence supports the conclusion that he is incapable of performing the type of work he previously performed. The evidence further established that because of the limitation of motion in his arm, neck and back, the constant pain in his lower back, his lack of education, his advanced age, and his lack of training in any occupation other than those which are so limited in quality, dependability or quantity that a reasonable stable market for them does not exist, that he is totally and permanently disabled.

The evidence introduced by appellant fails to rebut a finding that Naquin is permanently totally disabled to engage in a gainful occupation for wages. The “job” offered by appellant is insufficient to rebut this finding. It is a job which appellee could not perform for the same reasons that he could not perform the duties of a cook. The job offered by appellant was that of a laborer at appellant’s warehouse in Houma. The job description given was that appel-lee’s duties would include washing the fleet of company cars, washing windows, etc. This type of work necessarily involves the lifting of heavy buckets of water, bending and stretching. These types of activities are those which are preventing Naquin from performing his duties as cook.

Appellant also offered the testimony of Dr. James T. Williams, who examined Na-quin on March 28, 1980 at appellant’s request, and who found appellee to have satisfactory range of motion in his lower back and found no evidence of nerve root compression. Regarding the conflicting opinions of the treating physicians and the physician who examined appellee for litigation purposes only, the Supreme Court in Schouest v. J. Ray McDermott & Co., Inc., supra, stated at page 1044:

“... Such diagnosis and the opinions of the treating physician and specialist to whom referred by the treating physician, are entitled to more weight than that of those doctors examining the plaintiff for consultation for litigation purposes.”

Furthermore, medical testimony “must be weighed in the light of other credible evidence of a non-medical character, such as a sequence of symptoms or events in order to judicially determine probability.” Vicknair v. Southern Farm Bureau Casualty Ins. Co., 292 So.2d 747 (La.App. 4th Cir.1974); writ denied, 296 So.2d 838 (La.1974).

Thus, we find that appellant’s evidence is insufficient to rebut Naquin’s showing that he can perform no services other than those which are so limited that a reasonably stable market for them does not exist. Accordingly, we hold that appellee is entitled to an award of total and permanent disability benefits.

LSA-R.S. 23:1201.2 provides for the assessment of penalties and attorney’s fees against an employer for failure to pay policy benefits within 60 days after receipt of proof of loss and demand for payment, when such failure is found to be arbitrary, capricious, or without probable cause.

Since this statutory provision is penal in nature, it is to be strictly construed and the stipulated sanctions should be imposed only in those instances in which the facts negate probable cause for nonpayment. Crawford v. A1 Smith P. & H. Service, Inc., 352 So.2d 669 (La.1977).

Before it can be determined whether or not the employer’s action in refusing to pay the claim was arbitrary, capricious, or without probable cause, it must be determined what information it used, or had available to it, to base its course of action.

Although Naquin had informed the company’s first aid man, Tillery, of his injury on his next and final hitch, he made no demand for compensation benefits until some ten months later when he sent appellant a written notice of his accident and resulting injury. The fact of this later formal notice must be viewed in light of the remaining facts and circumstances.

There is some conflicting testimony regarding whether or not Naquin’s supervisor and other company personnel were made aware of his condition prior to the time of the written notice in March, 1980. Mr. Tillery testified that he related the story of Naquin’s accident to Mr. Chaisson, Naquin’s supervisor, on the last day of the June 22, 1979 hitch. However, Mr. Chaisson testified that he does not remember such a conversation, but that it could have occurred. Mr. Chaisson stated that his first recollection of knowing of the suitcase accident and resulting injury was in May of 1980.

E.H. Charbula, Assistant Superintendent of employee relations for appellant, met Naquin on June 22,1979 to discuss company retirement plans. Mr. Charbula testified that during this visit, appellee discussed with him the pain he was having in his shoulder area, but he does not remember Naquin specifically mentioning the origin of his pain.

Based upon the fundamental rule of appellate review, that the trial judge’s factual determination will not be disturbed in the absence of manifest error, Crump v. Hartford Acc. & Indem. Co., 367 So.2d 300 (La.1979), this court finds that the trial court was not unreasonable in evaluating the credibility of the witnesses and in making inferences of fact when it found that informal oral notice of the accident had been given by appellee to his superiors within days after the accident.

Regarding the failure of appellant to pay compensation benefits upon demand in March of 1980, we find that the facts known to appellant at the time benefits were refused do not justify the denial. Relying upon a report from a physician whose examination was precipitated only upon appellant’s request, which found that Naquin was able to return to work, and making no effort to receive reports from appellee’s many treating physicians, does not justify refusal of compensation benefits. It is incumbent upon the employer to make a reasonable effort to ascertain the employee’s exact condition at the time which compensation benefits are demanded. In this case, appellant had available the file of its accident and sick benefits insurer, which included numerous medical bills that had been paid reflecting the existence of appellee’s neck and back problems. Appellant also failed to conduct an investigation of Na-quin’s complaint by interviewing his fellow workers who might have been present during the accident or who viewed the results of the accident.

Appellant made no reasonable effort to obtain the information that was available regarding Naquin’s accident and injury through its insurer and other employees. Appellant appeared satisfied simply to rely upon the report of a physician who examined appellee on one occasion. Thus, we find that the trial judge did not abuse his discretion in assessing penalties and attorney fees since appellant acted arbitrarily, capriciously, and without probable cause in declining to pay the compensation benefits. The trial court awarded $1500.00 attorney fees, and since the appellee did not answer the appeal requesting an increase, this amount will not be disturbed. Willis v. Ford Motor Co., 383 So.2d 136 (La.App. 3rd Cir.1980); Richard v. Standard Fittings, 379 So.2d 33 (La.App. 3rd Cir.1979).

We accept the decision of the trial court in its finding that only $5,377.70 of the numerous medical bills which were filed into evidence by appellee totalling $7,000.69, could be attributed to the neck and back injury. Appellant claims a credit for payments made to Naquin under their sick and accident benefits plan. With respect to these payments, if credit is to be afforded against workmen’s compensation payments, appellant must show that they were paid and received as compensation.

It is well established that sick leave payments are benefits which the employee has already earned by virtue of past services rendered and therefore may not be credited against compensation due. Kaupp v. City of New Orleans, 248 So.2d 99 (La.App. 4th Cir.1971); Guerrera v. City of New Orleans, 212 So.2d 223 (La.App. 4th Cir.1968); Hammond v. Sewerage & Water Board of New Orleans, 204 So.2d 699 (La.App. 4th Cir.1967); Chase v. Warren Petroleum Corporation, 168 So.2d 861 (La.App. 2nd Cir.1964). Further, in order for an employer to receive a credit against workmen’s compensation payments, the employer must show the amounts were paid as compensation and not as an insurance type payment for which the employee has been paying premiums during his employment. Gonzales v. Coastal Wire Warehouse, Inc., 328 So.2d 923 (La.App. 4th Cir.1976). This, appellant did not do. Accordingly, appellant is not entitled to a credit against compensation for payments made under their sick and accident benefits plan.

For the above reasons, the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.

      . LSA-R.S. 12:1221(1)(2) states:
      “Compensation shall be paid under this Chapter in accordance with the following schedule of payments:
      (1) For injury producing temporary total disability of an employee to engage in any gainful occupation for wages whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and wheter or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training and experience, sixty-six and two-thirds per centum of wages during the period of such disability.
      (2) For injury producing permanent total disability of an employee to engage in any gainful occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training, and experience, sixty-six and two-thirds per centum of wages during the period of such disability.”

      . LSA-R.S. 12:1221(3) states:
      “For injury producing partial disability of the employee to perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description for which he was fitted by education, training, and experience, sixty-six and two-thirds per centum of the difference between the wages the employee was earning at the time of the injury and any lesser wages which the injured employee actually earns in any week thereafter in any gainful occupation for wages, whether or not the same or similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training, and experience, during the period of disability, but not beyond a maximum of four hundred weeks for such partial disability resulting from injury occurring on and after September 1, 1975, and on or before August 31, 1976; and not beyond a maximum of four hundred twenty-five weeks for such partial disability resulting from injury occurring on and after September 1, 1976, and on or before August 31, 1977, and not beyond a maximum of four hundred fifty weeks for such partial disability resulting from injury occurring on and after September 1, 1977; provided further that for any week during which the employee is paid any compensation under this subdivision (3)the employer shall be entitled to a reduction of one full week of compensation against the maximum number of weeks for which compensation is payable under this subdivision (3) and for any week during which the employee is paid no compensation, because of the employee’s actual earnings during that week, the employer shall not be entitled to a reduction for that week against the maximum number of weeks for which compensation is payable under this subdivision (3), and in no event shall the total number of weeks of compensation for such partial disability under this subdivision (3) be increased beyond the maximum number of weeks stated in this subdivision (3).

      . Chase v. Warren Petroleum Corporation, 168 So.2d 861 (La.App. 2d Cir.1964); McGee v. State, Through Bd. of Commissioners, 355 So.2d 1079 (La.App. 4th Cir.1978).


author: WATKINS, Judge.

text:
    Sarah McKNEELY v. Bruce YOUNG, Curtis I. Roberson, The Home Insurance Company, and State Farm Insurance Company.
    No. 82 CA 0134.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    Alfred C. Williams, Baton Rouge, for Sarah McKneely.
    Charles A. Schutte, Jr., Tim A. Tullos, Baton Rouge, for State Farm Mut. Auto. Ins. Co.
    Joseph F. Keogh, Baton Rouge, for Home Ins. Co.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   WATKINS, Judge.

This is an action for personal injury brought by Sarah McKneely, who was driving a 1975 Chevrolet, against Curtis I. Roberson, the driver of an 18 wheeler truck with which Ms. McKneely collided, Bruce Young, the owner of the truck, The Home Insurance Company, the insurer which held in force a policy of liability insurance issued to Young covering the said truck, and the State Farm Mutual Automobile Insurance Company, Ms. McKneely’s uninsured/under-insured motorist insurer. State Farm filed an intervention stating that it had paid Sarah McKneely and Howard McKneely the sum of $1,599.00 under its policy, and was subrogated in that sum to the claim of Ms. McKneely against Young, Roberson and Home Insurance. The trial was held before a jury, which returned a verdict finding Ms. McKneely contributorily negligent, and the trial court rendered judgment for defendants dismissing Ms. McKneely’s claim. We affirm.

The collision took place in extremely foggy conditions shortly after 8:00 a.m. on April 12, 1980, on Scenic Highway north of Baton Rouge. At the point of the accident, Scenic Highway has one northbound and one southbound lane. Ms. McKneely was proceeding south when the truck driven by Roberson entered the highway from the west at a four-way intersection, apparently attempting to turn to his left onto Scenic Highway. Ms. McKneely testified that she did not see the truck until it was about 10 feet away because her view was obscured by the fog. According to Ms. McKneely she was proceeding south at approximately 20 mph although the speed limit was 45 mph, her reduced speed having been necessitated by the extremely dense fog. The intersection was controlled by a flashing yellow light facing traffic on Scenic Highway and a flashing red light and stop sign facing traffic on the intersecting road which the truck was leaving. The truck driver testified that he remained stopped at the stop sign and flashing light for two minutes before proceeding out onto Scenic Highway, onto which he was attempting to make a left (northward) turn. The testimony is in agreement that the McKneely vehicle struck the left rear wheels of the trailer attached to the truck in Ms. McKneely’s lane of travel.

The jury was properly charged on the duties of a driver approaching a flashing caution light, and a flashing red light and stop sign, respectively.

LSA-R.S. 32:234 controls the duties of a driver approaching a flashing red light and reads in pertinent part as follows:

“(1) FLASHING RED (STOP SIGNAL) — When a red lens is illuminated with rapid intermittent flashes, drivers of vehicles shall stop before entering the nearest cross-walk at an intersection or at a limit line when marked, or, if none, then before entering the intersection, and the right to proceed shall be subject to the rules applicable after making a stop at a stop sign.”

LSA-R.S. 32:123 B. concerns the duties of a driver encountering a stop sign:

“B. Except when directed to proceed by a police officer or traffic-control signal, every driver and operator of a vehicle approaching a stop intersection indicated by a stop sign shall stop before entering the cross walk on the near side at a clearly marked stop line, but if none, then at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway before entering the intersection. After having stopped, the driver shall yield the right of way to all vehicles which have entered the intersection from another highway or which are approaching so closely on said highway as to constitute an immediate hazard.”

Thus, Roberson, the truck driver, was guilty of negligence in failing to yield the right of way to the McKneely vehicle at the intersection.

However, under the pertinent portion of LSA-R.S. 32:234, a driver who approaches a flashing yellow light may proceed past the signal only with caution:

“(2) FLASHING YELLOW OR AMBER (CAUTION SIGNAL) — When a yellow lens is illuminated with rapid intermittent flashes, drivers of vehicles may proceed through or past such signal only with caution.”

We cannot find that the jury was clearly wrong in finding that Ms. McKneely was negligent, for the very obvious reason that she did not proceed with the required degree of caution. See Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Company, 283 So.2d 716 (La.1973). Ms. McKneely testified that she did not slow down from her steadily maintained speed of 20 mph as she approached the intersection. Yet, she drove down Scenic Highway past that intersection daily on the way to work and should have been aware that the intersection and caution light were there and acted accordingly, especially under the extremely foggy conditions. A motorist is required to operate his vehicle with an unusually high degree of care when he is proceeding in hazardous atmospheric conditions, such as fog. Little v. Mississippi Chemical Express, Inc., 285 So.2d 267 (La.App. 3d Cir.1973), writ refused 288 So.2d 357 (1974). Furthermore, Roberson estimated Ms. McKneely’s speed at 50 or 55 mph, although he admitted this was only an estimate. Ms. McKneely, the jury could reasonably find, was not driving with that degree of caution which atmospheric conditions, and the flashing yellow light marking the intersection, required.

Trooper Willard Carter, Louisiana State Police, who investigated the accident, testified at length at the trial. He interviewed only Roberson, the truck driver, as Ms. McKneely was on the way to the hospital when Trooper Carter reached the scene of the accident. His testimony may have been colored by the fact that he had interviewed only Roberson. Most of Trooper Carter’s testimony was based on hearsay and involved a statement of Trooper Carter’s opinion as to how the accident took place, although Trooper Carter was not qualified as an expert witness. Counsel for Ms. McKneely did not object to this testimony. In fact, he propounded some of the questions leading to the improper testimony. As counsel for Ms. McKneely failed to object, the testimony does not constitute a basis for setting aside the jury’s verdict or granting a new trial. It is true a plat of the supposed positions of the vehicles at the time of the accident, prepared by Trooper Carter, was improperly introduced in evidence over objection of counsel for plaintiff. The plat should have been excluded as the truck had been moved before Trooper Carter arrived on the scene of the accident, and, thus, the plat was based upon second hand knowledge and constituted opinion. However, the plat was merely corroborative of Trooper Carter’s hearsay and opinion testimony to which counsel for plaintiff failed to object. It is too late for counsel for plaintiff now to object to that testimony as indeed he does not on appeal.

Appellant contends that comparative negligence under LSA-C.C. art. 2323 should have been applied. However, Act No. 431 of 1979, which amended art. 2323 to introduce the concept of comparative negligence into Louisiana law, took effect on August 1, 1980. The accident sued upon occurred April 12, 1980; hence, comparative negligence does not apply.

The verdict of the jury not having been clearly wrong, the judgment of the trial court is affirmed, at appellant’s cost.

AFFIRMED.


author: EDWARDS, Judge.

text:
    Charles E. COLEMAN, Jr. v. LANDRY & TURNER, INC.
    No. 82-CA-0136.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.

      Dale H. Hayes, Leonard & Hayes, Morgan City, for plaintiff-appellant.
    Sidney A. Marchand, III, Talbot, Sotile & Carmouche, Donaldsonville, for defendant-appellee Landry & Turner, Inc.
    Risley C. Triche, Triche, Sternfels & Nail, Napoleonville, for third party defendant-appellant Castle Industries of Arkansas.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   EDWARDS, Judge.

Plaintiff, Charles E. Coleman, Jr., brought this action in redhibition against Landry & Turner, Inc., seeking rescission of the sale of a mobile home. From a judgment in his favor, awarding a reduction in price in the amount of $890.50, plaintiff appeals.

The following facts are revealed from an examination of the record. On October 29, 1977, plaintiff and his wife purchased a new mobile home from Landry & Turner, Inc. The home had been manufactured by Castle Industries of Arkansas, Inc. The purchase price of the home was $17,850.00. The Colemans paid $3,000.00 in cash as a down payment and financed the remainder. Shortly after the home was delivered and set up, the Colemans began to report a number of defects and deficiencies to Landry & Turner. On a number of occasions, Landry & Turner sent repairmen to the Coleman home, seeking to remedy these problems. The Colemans also contacted Castle Industries with regard to their problems and the manufacturer sent out its own repairman on a couple of occasions.

The various attempts at repair failed to satisfy the Colemans. On January 23, 1978, slightly less than three months after purchase of the mobile home, Charles Coleman filed suit against Landry & Turner. Coleman’s suit alleged that the following uncorrected problems with the mobile home rendered it useless for the purpose for which it was purchased:

“1. All three entrance doors to the mobile home are improperly sealed when closed and door frames are crooked.
2. In every room the ceiling is improperly joined with the walls; wind and cold air drafts pour into the home.
3. The flooring and carpet in the living room have mildewed due to rain damage and must be replaced; particle board and insulation under floor have been ruined.
4. Ceiling in living room and bed rooms [sic] damaged by unsightly and improper repair work.
5. The double windows in the kitchen and front bedroom are not air tight [sic] and cold air blows in.
6. Roof and outside walls of the trailer are loose and rattle in the wind; air drafts blow into the house through the bedroom closets, outlets and kitchen cabinets.
7. Various paneling and mouldings damaged by water leaks must be replaced and some mouldings are missing.
8. Wall in the hallway installed crooked.”

Coleman’s suit sought rescission of the sale, return of the down payment, reimbursement of all monthly installments paid, damages for mental anguish and attorney fees.

Landry & Turner answered plaintiff’s petition, denying the allegations contained therein. Additionally, Landry & Turner filed a third-party demand against Castle Industries, seeking reimbursement for any sums which it might be called upon to pay plaintiff, as well as the costs of defending against plaintiff’s suit. Subsequently, Castle Industries and Landry & Turner entered into a compromise agreement in which they agreed to share any liability and the costs of defending the suit on an equal basis. Castle Industries’ exception of res judicata, based on that compromise agreement, was sustained and the third-party demand was dismissed.

The trial court concluded that the defects shown to exist in the mobile home fell far short of supporting a rescission of the sale. The court concluded that a reduction in the purchase price was the appropriate remedy and rendered judgment in favor of plaintiff in the amount of $890.50. This judgment in plaintiff’s favor was rendered against both Landry & Turner and Castle Industries.

Although Castle Industries was not named as a defendant in plaintiff’s suit, it was erroneously cast in judgment along with Landry & Turner. All parties have joined in a motion submitted to this court to amend the judgment to omit any reference to Castle Industries. This motion will be granted and the judgment amended accordingly.

Plaintiff has appealed. He asserts that the trial court erred in awarding a reduction in the price rather than rescission. Plaintiff also contends that the trial court erred in accepting the testimony of defendant’s expert witness and in admitting into evidence certain photographs. Finally, plaintiff contends that the trial court erred in failing to award attorney fees.

RESCISSION OR REDUCTION?

The trial court concluded that the defects proven to exist would not support rescission of the sale. Plaintiff contends that the court erred in denying rescission.

Redhibitory actions are authorized by LSA-C.C. art. 2520, which provides:

“Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.”

A redhibitory defect sufficient to entitle the buyer to rescind the sale is a non-apparent defect existing in the item prior to the sale which renders the item useless or makes its use so inconvenient or imperfect that the buyer would not have purchased the item had he known of the defects. LSA-C.C. arts. 2520, 2521, 2530.

If the evidence in a redhibitory action establishes only a partial failure of consideration, a reduction in the price, rather than rescission of the sale, is appropriate. Wade v. McInnis-Peterson Chevrolet, Inc., 307 So.2d 798 (La.App. 1st Cir.1975); Wolfe v. Henderson Ford, Inc., 277 So.2d 215 (La.App. 3rd Cir.1973); Ingersoll v. Star Chrysler, Inc., 234 So.2d 85 (La.App. 4th Cir.), cert. denied, 256 La. 365, 236 So.2d 499 (La.1970). See also LSA-C.C. arts. 2541, 2543.

In the instant case, the trial judge did not abuse his discretion in finding that the defects were not sufficient for rescission. Cassey v. Arnaudville Industries, Inc., 393 So.2d 215 (La.App. 1st Cir.1980). There is no error in the conclusion that the only defects which plaintiff proved, loose moldings, crooked walls, leaky doors, scratched ceiling panels and cold air drafts, did not rise to the level of defects which require rescission. Compare Purvis v. Statewide Trailer Sales, Inc., 339 So.2d 403 (La.App. 1st Cir.1976); First National Bank of Ruston v. Miller, 329 So.2d 919 (La.App. 2nd Cir.1976), cert. denied 333 So.2d 243 (1976).

EXPERT TESTIMONY

The trial court based the amount of the reduction in price upon the repair estimates made by defendant’s expert witness in the field of mobile home repairs. Plaintiff contends that the trial court erred in accepting the defense witness as an expert and in basing the amount of recovery on the testimony of that witness.

Both plaintiff and defendant produced expert witnesses who were experienced in the field of mobile home repairs. Plaintiff’s witness, Gene Miller, testified by way of deposition with regard to an inspection he made of plaintiff’s trailer in early 1978, over two and one-half years prior to trial. At the time of his inspection, Miller prepared a list of forty-seven specific defects which he found to exist in the trailer. Miller’s testimony is replete with instances of his inability to remember the specifics of his examination. In nearly every instance, his account of what he saw was based solely on the list of defects which he had prepared. Additionally, Miller failed to distinguish between defects in the trailer which existed at the time of the sale and those which might have arisen later. Miller estimated the costs of repairing all forty-seven defects to be between $5,000.00 and $6,000.00. This estimate was not based on an item-by-item calculation, but was characterized by the witness as a “ball park figure.”

The defense also presented the testimony of an expert, Howard Miley. Miley's qualifications as an expert in the field of mobile home repairs were challenged by the plaintiff, but he was accepted as such by the trial court. Plaintiff contends that the trial court erred in doing so.

The record reveals that Miley has been in the business of setting up and repairing mobile homes since 1971. For about one and one-half years prior to trial, Miley had done little repair work, but concentrated on the towing and setting up of mobile homes. Miley testified that he was familiar with the price of material and labor involved in the repair of mobile homes. The trial court did not abuse its discretion in accepting Miley as an expert in the field of mobile home repairs. Ashley v. Nissan Motor Corp. in U.S.A., 321 So.2d 868 (La.App. 1st Cir.1975), cert. denied 323 So.2d 478 (1975). See also LSA-C.C.P. art. 192.

Howard Miley inspected the mobile home in question approximately one month before the trial. He testified with regard to the defects which he observed in the trailer and gave an estimate of the cost of repairing each item. Miley’s repair cost estimates formed the basis for the trial court’s judgment.

The trial judge disregarded the testimony of Miller, plaintiff’s expert, calling it “worthless.” He noted that Miller’s testimony was “replete with vagueness, admissions either that he did not remember the cause or condition of some items, and admissions that he did not know what caused certain problems.” Furthermore, the trial judge noted that Miller’s repair estimate was not substantiated by an itemized list. Under these circumstances, there is no error in the trial court’s decision to disregard Miller’s testimony and rely upon that of Miley.

ADMISSION OP PHOTOGRAPHS

The trial court admitted into evidence, over plaintiff’s objection, six photographs of the mobile home which were taken by Howard Miley during his inspection. Plaintiff contends that these photographs were erroneously admitted because they were taken nearly three years after purchase of the mobile home. Plaintiff relies upon Greeves v. S.H. Kress & Co., 198 So. 171 (Orl.App.1940). In Greeves the court held that photographs of a retail store floor, taken one year after plaintiff allegedly slipped and fell on that floor, were of no probative value because of the time lapse and thus inadmissible. The instant case is easily distinguished from Greeves, however. In Greeves, the building in which the floor was located was in the possession of the defendant (who sought to introduce the photographs) and could have been cleaned or modified in the intervening time. In the present case, however, the Colemans were in sole possession of the mobile home during the three-year period and there was no testimony to indicate that they had repaired or changed the condition of the mobile home so as to affect the defects.

Plaintiff also contends that an adequate foundation was not laid for the admission of the photographs. This argument is likewise without merit. Howard Miley testified that the pictures were taken by him and that they accurately represented what he saw. A proper foundation was laid and the photographs were properly admitted into evidence.

Furthermore, assuming, arguendo, that there was error in the admission of the photographs, plaintiff has failed to demonstrate that any prejudice resulted therefrom. In fact, the admission of the photographs actually aided plaintiff’s ease by documenting the existence of some of the defects.

ATTORNEY FEES

Plaintiff contends that the trial court erred in failing to award him attorney fees. The applicable law is found in LSA-C.C. art. 2545, which provides:

“The seller, who knows the vice of the thing he sells and omits to declare it, besides the restitution of price and repayment of the expenses, including reasonable attorneys’ fees, is answerable to the buyer in damages.”

The manufacturer of an item is presumed to know of the defects in a thing made by him. Rey v. Cuccia, 298 So.2d 840 (La.1974). In order to recover attorney fees against a seller who is not the manufacturer, however, the buyer must prove the seller’s knowledge of the defect at the time of the sale. There is no evidence in the record to indicate that Landry & Turner, Inc. was aware of the defects in the trailer prior to the sale. Therefore, the trial court was correct in not ordering the seller to pay attorney fees. Purvis v. Statewide Trailer Sales, supra; First National Bank of Ruston v. Miller, supra.

For the foregoing reasons, the judgment of the district court is amended to omit any reference therein to Castle Industries. The remainder of the district court’s judgment is affirmed. All costs of this appeal are assessed against plaintiff-appellant.

AFFIRMED.


author: LANIER, Judge.

text:
    Kim ROBINSON, et al v. William L. MILLER, et al.
    No. 82 CA 0140.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.

      Byard Edwards, Jr., and Johnny S. McGary, Ponchatoula, for plaintiff.
    Robert P. Hogan, Covington, for William L. Miller.
    David K. Balfour, Jerry L. Finley, Baton Rouge, for Dept, of Transp.
    Bernard J. Rice, III, Gretna, for John W. Ballard.
    Hugh Glenn, Jr., New Orleans, for Ragu-sa Bros.
    Before COVINGTON, LEAR and LANIER, JJ.
   LANIER, Judge.

This is a suit for damages in tort alleging wrongful death. As a sanction for failing to answer discovery interrogatories, the trial court allowed the plaintiffs to confirm a judgment by default against the Department of Transportation and Development of the State of Louisiana (State) for awards totaling $243,116.00. The State has perfected this suspensive appeal from that ruling and judgment.

I. FACTS

On August 7, 1980, Kim Robinson, individually and as natural tutrix of the minor children, Tammaka Robinson and Myneshia Robinson, filed suit against the State and other defendants alleging that Joe Eddy Washington, her common-law husband and the natural and acknowledged father of Tammaka Robinson and Myneshia Robinson, was killed on August 14, 1979, in an accident which occurred when a tractor-trailer truck owned by William L. Miller and operated by John W. Bellard collided with an automobile driven by Donald W. Haynes on a bridge over the Bonne Carre Spillway on U.S. Highway 61 in the Parish of St. Charles, Louisiana. This suit was docketed under # 59,972 of the Twenty-First Judicial District Court, Parish of Tan-gipahoa. On August 25, 1980, the plaintiffs-appellees propounded thirty-one interrogatories to the State. These interrogatories were filed in a companion case arising out of the above described accident (suit # 57,536). On August 29, 1980, the State filed objections to seven of the interrogatories propounded by the appellees in suit # 57,536. On September 19, 1980, the State filed an answer to the original petition in suit # 59,972 (the instant case) and also filed a third party demand.

On December 5, 1980, in suit # 57,536, the appellees filed a motion to compel the State to answer the interrogatories filed on August 25, 1980. A hearing was held on this motion to compel on January 9, 1981. It was then discovered that the interrogatories were filed in the wrong suit (# 57,536 instead of # 59,972). The trial judge ordered the clerk of court to file the interrogatories, the objections, and the motion to compel in the correct proceeding (# 59,-972). The trial court rendered judgment on rule ordering the State to answer the appel-lees’ interrogatories within ten days and cast the State for an attorney fee of $250.00. On January 14, 1981, the State filed a notice of its intention to apply to this court for supervisory writs to contest the judgment of the trial court on the motion to compel. The trial court granted a stay order relieving the State of its obligation to comply with the judgment “until such time as the Department has had an opportunity to apply for a supervisory writ to the First Circuit Court of Appeals and have that application accepted or rejected, or 45 days whichever is lesser.” The petition for supervisory writs was filed on February 5, 1981, and was rejected on February 18, 1981, because the application failed to comply with the Uniform Rules of the Courts of Appeal.

On March 23, 1981, appellees filed a rule to show cause why the State should not be held in contempt of court for failure to answer the discovery interrogatories pursuant to the judgment of January 14, 1981, and condemned to pay all costs and attorney fees. The State was served with this rule on March 25, 1981. By order signed April 13, 1981, the instant case (# 59,972) was consolidated with another companion case arising out of the same accident (# 59,610). On April 16, 1981, a hearing was held on the contempt rule filed by the appellees against the State on March 23, 1981. No one appeared at this hearing on behalf of the State. The trial court rendered judgment condemning the State to pay the sum of $500.00 in attorney fees and all costs. Apparently, as an additional sanction for failing to comply with the order compelling discovery, the trial court, on April 22, 1981, allowed the appellees to enter a written motion for judgment by default.

On May 18, 1981, the appellees filed a rule to show cause why they should not be allowed to take a default judgment against the State for continuously disobeying the orders of the court by failing to answer the interrogatories propounded to it on August 25, 1980. This rule was heard on June 1, 1981. At that time, John W. King appeared as counsel for the State and apologized to the court for failing to answer the interrogatories. He advised the court that the file on this case was originally assigned to David Balfour as counsel, but that Balfour left the State’s employ approximately three months previously. The cases under Balfour’s supervision were reassigned and the instant case went to King. He advised the court that the reason he was not present for the hearing on April 16, 1981, was because he was not familiar with the file nor personally aware of the court date. He acknowledged that it was his fault for not familiarizing himself with the file. King further advised that he would cooperate with the court and opposing counsel in the future. The trial judge took the matter under advisement. On June 26, 1981, the trial court granted “a default judgment” against the State “with permission to confirm said default judgment in accordance with law.”

On June 29, 1981, the State filed its answers to the thirty-one interrogatories in suit # 57,536. On August 3, 1981, the answers to the thirty-one interrogatories were filed in the instant case, # 59,972. These answers to interrogatories are signed by David K. Balfour and are acknowledged by an affidavit dated January 15, 1981.

On August 24, 1981, the State filed a motion to set aside the default judgment entered on June 26,1981. In its motion and attached memorandum, the State alleged that no confirmation of default could be entered because it had answered the original petition, that the procedure for obtaining a default against the State provided for in La.C.C.P. art. 1704 was not followed, and that answers had been filed to the interrogatories. On August 26,1981, the trial judge denied the motion to set aside the default which he considered “as a motion for rehearing on the rule.. . . ” On August 24, 1981, the State filed a written request for notice of trial pursuant to La.C.C.P. art. 1572.

On September 3, 1981, the trial court allowed the appellees to confirm the judgment by default against the State pursuant to La.C.C.P. art. 1702. The record does not reflect that notice of the hearing to confirm the default judgment was issued to the State and the State was not represented at this proceeding. In the amended judgment signed on September 15, 1981, the State was cast in judgment for $243,116.00 in damages, $1,227.50 in expert witness fees, and all costs.

II. WAS THE SANCTION IMPOSED APPROPRIATE?

In Allen v. Smith, 390 So.2d 1300, 1301 (La.1980) appears the following:

“Louisiana civil discovery rules authorize a party to take the deposition of another litigant upon oral deposition after giving reasonable notice in writing, Article 1438 of the Louisiana Code of Civil Procedure, to serve written interrogatories to be answered by another party, Article 1457, and to serve on another party a request to produce a tangible thing for inspection. Article 1461. When a party served with such a notice or request fails to attend a deposition, serve answers to interrogatories, or respond to a request for inspection, the court may on motion make such orders in regard to the failure as are just, including an order that the designated facts be taken as established, an order that the disobedient party be refused the right to support or oppose designated claims or defenses, an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment of default against the disobedient party, or an order assessing costs and attorney’s fees caused by the failure against the disobedient party and his attorney or both. La.C.C.P. arts. 1471, 1473.”

The ultimate sanction for a recalcitrant plaintiff who fails to comply with discovery orders is dismissal of the suit, and the ultimate sanction for such a defendant is the rendering of a “judgment of default”. The trial court has much discretion in selecting the appropriate sanction for failure to comply with discovery orders and a judgment granting a sanction will not be disturbed absent a clear showing of abuse. Smith v. Smith, 398 So.2d 549 (La.App. 1st Cir.1979), writ denied 399 So.2d 585 (La.1980); Folds v. Red Arrow Towbar Sales Company, 378 So.2d 1054 (La.App. 2nd Cir.1979); Viator v. Sonnier, 355 So.2d 1091 (La.App. 3rd Cir.1978); Duplechien v. McNabb, 260 So.2d 789 (La.App. 4th Cir.1972), writ denied 262 La. 132, 262 So.2d 395 (La.1972).

In discussing the appropriateness of the ultimate sanction of dismissal against a party plaintiff, the Louisiana Supreme Court in Allen v. Smith, supra, 390 So.2d 1301, observed as follows:

“The Louisiana rule empowering a court to impose these sanctions is identical to Federal Rule of Civil Procedure 37(b), (d). Accordingly, the jurisprudence interpreting and applying the federal rule may provide useful precepts in bringing La.C. C.P. art. 1473 into action in the present case.
“The United States Supreme Court held in Societe Internationale Pour Participations Industrielles v. Rogers, 357 U.S. 197, 212, 78 S.Ct. 1087, 1096, 2 L.Ed.2d 1255, 1267 (1958) that Rule 37
‘should not be construed to authorize dismissal of [a] complaint because of petitioner’s noncompliance with a pretrial production order when it has been established that a failure to comply has been due to inability, and not to wilfulness, bad faith, or any fault of petitioner.’
“While there have been amendments to the rule since the decision in Rogers, the high court has indicated that the changes will not affect the teachings of the quoted language from that decision. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976).
“Many of the federal courts of appeal have decided that the dismissal of a complaint with prejudice is such a drastic penalty for failure to make discovery that a district court should apply it only in extreme circumstances. E.g., Bonaventure v. Butler, 593 F.2d 625 (5th Cir.1979); Campbell v. Gerrans, 592 F.2d 1054 (9th Cir.1979); Israel Aircraft Industries, Ltd. v. Standard Precision, 559 F.2d 203 (2d Cir.1977); Kropp v. Ziebarth, 557 F.2d 142 (8th Cir.1977); Ali v. A & G Co., Inc., 542 F.2d 595 (2d Cir.1976); Thomas v. United States, 531 F.2d 746 (5th Cir.1976). Accord Butts v. Cummings, 360 So.2d 534 (La.App.2d Cir.1978).”

These same principles are applicable to the ultimate sanction of granting a judgment by default against a party defendant.

The record shows that answers to the interrogatories were prepared and signed by counsel for the State in January of 1981. Apparently, this attorney left the State’s employ and as a result of confusion in the reassignment of the case, answers to the interrogatories were not filed, nor was an appearance made at the hearing held in April of 1981. In June of 1981, the second attorney for the State appeared and apologized to the court for the delays and assured the court that the State would cooperate in the future. The State filed its answers to the interrogatories in August of 1981, prior to the confirmation of the default judgment. There is no evidence in the record to show that the appellees were prejudiced by the delay or dissatisfied with the answers. There is no evidence that the failure of the State to answer the interrogatories was willful or in bad faith. There is no evidence in the record to show that the officers responsible for the operations of the Department of Transportation and Development were personally at fault in failing to provide the information requested. All indications in the record are that the delays in answering the interrogatories were due to the inattention and/or confusion of the State’s attorneys. Under these particular facts, the ultimate sanction of confirmation of a substantial default judgment against the State, and thus the people of Louisiana, is not appropriate.

As indicated in Allen v. Smith, supra, 390 So.2d at 1302, when an attorney for a party fails to comply with discovery orders, such noncompliance cannot be excused. Offending counsel should at least be required to pay the reasonable expenses of discovery procedures necessary to compel compliance, including costs, expert witness fees and attorney fees in the trial and appellate courts. Accordingly, this case is remanded to the trial court for a hearing to determine and assess reasonable expenses against David K. Balfour and John W. King individually.

The failure of counsel for the State to comply with discovery orders by the trial court has resulted in substantial delays. Because of this, we believe that the appel-lees are entitled to a swift resolution of the merits of their case. Pursuant to the authority of La.C.C.P. art. 2164, we direct that the trial on the merits of this case commence not later than the sixtieth day after this judgment becomes final.

III. CONCLUSION

For the foregoing reasons, the “judgment of default” in favor of the appellees and against the State rendered in the trial court is vacated and set aside. This case is remanded to the trial court for a hearing against the attorneys for the State to determine and assess reasonable expenses caused by the discovery failures. It is further ordered that the trial on the merits of this case commence within sixty days of the date this judgment becomes final.

REVERSED IN PART, AMENDED IN PART AND REMANDED.

      . See La.C.C.P. art 1471 (formerly La.C.C.P. art. 1513). This judgment by default was not entered in the minutes of the court as required by La.C.C.P. art. 1701.

      . The trial court judgment did not express the costs in a dollar amount as required by La.R.S. 13:5112(A).

      . La.C.C.P. arts. 1701-1704 and 1843; Clark v. Clark, 358 So.2d 658 (La.App. 1st Cir.1978).

      . See Precision Motors, Inc. v. Beder, 273 So.2d 650 (La.App. 4th Cir.1972).


text:
    Joyce Inez WARREN v. J. Dalton WARREN.
    No. 82 CA 0141.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    Charles L. Collins, Marrero, for plaintiff-appellant.
    Rhett Ryland, Baton Rouge, for defendant-appellee.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   WATKINS, Judge.

In this proceeding, Dr. J. Dalton Warren proceeded by rule to obtain a reduction in the amount of alimony pendente lite payable to his wife, Joyce Inez Warren, from the sum of $1,044.76 per month to a lesser sum on the ground of change of circumstances. After trial on the rule, the trial court reduced alimony payments to $750.00 per month.

The record is incomplete. Nowhere is there to be found the original or a certified copy of the judgment initially fixing alimony pendente lite. Furthermore, Dr. Warren claimed he was forced to work in his profession of chiropractor for reduced hours because of an alleged heart condition. He had never seen a heart specialist, and the record contains only medical reports of two physicians, Dr. E.G. Thompson and Dr. M.A. DeJohn, both obviously prepared subsequent to trial on the rule, relating subjective symptoms, viz chest pains. The court at the conclusion of the trial on the rule directed that Dr. Warren undergo an examination by a heart specialist who visited Clinton, Louisiana, once each week. No copy of the report of the heart specialist is to be found in the record, and it is uncertain whether or not Dr. Warren ever underwent the examination. The trial court gave no reasons for judgment, and no explanation is given for the absence of a report or deposition of the heart specialist. Under the circumstances, we cannot be certain that a change in circumstances had occurred which necessitated a reduction of alimony. Furthermore, Mrs. Warren had incurable cancer which is not covered by medical or hospitalization insurance. We may reasonably assume treatment of this condition will entail great expense. As a transcript of the original proceedings to fix alimony is missing from the record, we cannot be certain whether or not Mrs. Warren’s condition constitutes a change in circumstances.

Counsel for appellee, Dr. Warren, relies upon the manifest error rule as enunciated in Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). As the record is incomplete, the manifest error rule is without application.

The judgment of the trial court is vacated and set aside, and the matter remanded for reconsideration after completion of the record as outlined herein, all costs to await final disposition of the matter.

REMANDED.


author: SHORTESS, Judge.

text:
    DIVISION OF ADMINISTRATION v. Brian POWERS.
    No. 82 CA 0143.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    Kevin P. Torres, Staff Atty. Div. of Admin., Baton Rouge, for appellant.
    Brian Powers, pro se.
    Robert R. Boland, Jr., Civ. Service Legal Counsel, Dept, of State Civ. Service, Baton Rouge, for George Hamner Director of Dept, of State Civ. Service.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   SHORTESS, Judge.

The Division of Administration (appellant) appeals from a decision of the Louisiana Civil Service Commission (Commission) reversing the three-day suspension of Brian Powers (appellee), a permanent employee, classified as an Automotive Mechanic II.

Appellee was suspended from his position on September 29, 1980. By letter dated October 8, 1980, he received written confirmation of his suspension. The letter was signed by Larry Dickinson, Executive Assistant Commissioner of the Division, and it explained the facts surrounding the suspension as follows:

“On the afternoon of September 25, 1980 at approximately 4:30 p.m., Mr. Clinton Thompson, Automotive Shop Superintendent II made the daily announcement to all bidders that the bidding area was closed. However one customer who was in the process of removing his vehicle from the lot, was working on the car to get it started with your assistance. Mr. Thompson stated that you asked him if you should make a customer move from the lot if he is in the process of removing the vehicle at the time that section is closing down. Mr. Thompson replied that a customer should be let out when he completes hooking up his vehicle or starting it. You have stated that Mr. Jewel Stevenson, Automotive Mechanic II, the acting supervisor, then told you that the customer had to be out by 4:30 P.M. Your reaction to Mr. Stevenson’s orders was to become involved in an unpleasant exchange of words with Mr. Stevenson. Mr. Stevenson later spoke to Mr. Thompson about you and claimed that during the exchange you were cursing him.
“Shortly thereafter, Mr. Thompson states that Ms. Vera McClain ran into his office to inform him of an argument between you and Mr. Stevenson. You then ran in stating that Mr. Stevenson had hit you. Mr. Thompson reported the matter to Mr. Collins. Then you and Mr. Stevenson were also called in and requested to give statements regarding the incident. Other employees were also questioned and at least two of them, Vera McClain and Lionel Smith overheard the argument.”

On October 15, 1980, appellee filed, in proper person, a notice of appeal which stated his version of the incident, and denied any misconduct. A public hearing was held before a referee on September 23, 1981, and the matter was thereafter referred to the Commission for its determination.

Its opinion, dated January 29, 1982, resolved the dispute in favor of appellee. The opinion states:

“The Commission finds that there was no just cause for appellant’s suspension. While there is no doubt that a verbal exchange took place, the exchange was prompted by profanity on Stevenson’s part. Appellant’s response of “I am, damn it” does not constitute fighting, the offense for which appellant was suspended. The Commission finds that appellant did not instigate the fight and did nothing to provoke it.”

From this decision, the Division has perfected this appeal, urging two assignments of error:

(1) that the Commission incorrectly redefined the “cause” for the suspension stated in the letter of October 8,1980; and
(2) that the record fails to support the Commission’s findings.

The first issue involves a determination of the “cause” for the suspension. The facts stated in the suspension letter of October 8, and quoted earlier in our opinion, concluded with the following language:

“Based on this incident, you have been suspended from duty and pay for a period of three (3) working days. Copies of your statement and that of Jewel Stevenson are attached as reference.
“Under no circumstances will fighting be tolerated. Any further incident of this nature will result in a longer suspension or dismissal from your position as Automotive Mechanic II.” [emphasis ours]

This language clearly supports the Commission’s finding that appellee was suspended for fighting. Even assuming the verbal exchange was part of the cause for the suspension, the Commission found appellee free from fault as to the entire incident. Appellant’s first assignment is without merit.

Secondly, appellant challenges the factual basis for the conclusions of the Commission. It is elementary that the appellant has the burden of proving error in the trial court’s decision. Hanley v. Hanley, 381 So.2d 963 (La.App. 4th Cir.1980); writ denied, 383 So.2d 783 (La.1980); Gau det v. Berry, 307 So.2d 767 (La.App. 1st Cir.1975); Brunet v. Theriot, 298 So.2d 158 (La.App. 1st Cir.1974). In Civil Service cases, the Commission stands in the position of a district court. In Bernard v. Louisiana H. & H. Resourc. Adm’n, 336 So.2d 55 (La. App. 1st Cir.1976), this court stated:

“In view of the shift in the burden of proof from the employee to the appointing authority made by the Constitution of 1974, and the granting thereby to this court of the authority to review the findings of fact of the Commission, it is essential that the transcript furnished this court contain the testimony on which the opinion below is based, or that the Commission and the parties comply with the provisions of Article 2130-2132 of the Code of Civil Procedure. Article 10, §§ 8, 12, Constitution of 1974.” 336 So.2d at 58.

The appellant must provide the reviewing court with a complete record, so a disposition of the errors raised can be made. Deliberto v. Deliberto, 400 So.2d 1096 (La.App. 1st Cir.1981); Delaneuville v. Duplessis, 385 So.2d 385 (La.App. 1st Cir.1980); Hanley, supra. Items of evidence or transcripts missing from the record will be presumed to support the findings of the lower court. Johnson v. Berry Bros. Gen. Contractors, 405 So.2d 1234 (La.App. 1st Cir.1981), writ denied, 410 So.2d 1135 (La.1982); Deliberto, supra; DeLaneuville, supra; United Pentecostal Church v. Interstate Surplus, 368 So.2d 1104 (La.App.2d Cir.1979), writ denied, 371 So.2d 621 (La.1979).

The record reveals that appellant filed a motion and order of appeal, and only requested the testimony of Phil Collins, Director of the Office of Property Control, and all exhibits of the appointing authority, to be incorporated into the transcript lodged with this court. However, these items formed only part of the proceedings heard before the referee. The Commission’s opinion indicates that the appellee called as his witness, James Comeaux, the customer he was assisting when the incident arose. His testimony is not in the record. We are unable to determine from the documents before us whether appellee or Stevenson testified. However, their testimony should likewise have been included. This partial record does not reveal any error in the Commission’s findings of fact. Appellant has failed in its duty to provide us with a complete record so a review of the factual determinations of the Commission could be made. Thus, we follow the presumption that the Commission’s conclusions are correct. DeLaneuville, supra.

Accordingly, we affirm the opinion of the Commission. Costs of this appeal, in the sum of $50.00, are assessed to appellant.

AFFIRMED.


text:
    Sheilah K. LOTT v. Euylas BURTON.
    No. 82 CA 0148.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.

      Floyd J. Falcon, Jr., Avant, Wall, Thomas, Riche & Falcon, Baton Rouge, for plaintiff-appellee.
    Michael J. Matthews, Gonzales, for defendant-appellant.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   SHORTESS, Judge.

On December 20, 1979, an incident occurred on the premises of Coupe’s Lounge in Ascension Parish between Euylas Burton (appellant) and Sheilah Lott (appellee). Appellant is a white male approximately five feet, eleven inches tall and weighing 195 to 200 pounds. Appellee is a white female approximately five feet, seven inches tall and weighing approximately 165 to 170 pounds. At the time of the incident, appellee was a barmaid at Coupe’s Lounge, and appellant was a patron. The facts surrounding the incident and its provocation are in dispute. In accordance with the provisions of La.C.C.P. Arts. 2130 and 2131, the parties entered into a joint stipulation of facts in lieu of a trial transcript. Both parties agree that defendant-appellant hit appellee once in the face in the parking lot outside of Coupe’s Lounge, and that she was taken to the emergency room of East Ascension General Hospital. The trial court rendered judgment against appellant for $5,797.31 ($3,500.00 in general damages and $2,297.31 in special damages).

Appellant’s sole specification of error is that:

“The Honorable Trial Court for the 23rd Judicial District Court committed manifest error in finding as a matter of law and fact that the conduct of defendant-appellant herein made him liable for injuries sustained by the plaintiff-appel-lee.”

A serious controversy exists between the parties as to what actually occurred. The case centered basically on the testimony and the credibility of the witnesses at trial. The crux of this appeal involves a factual dispute. Thus, the judgment of the trial court should be given great weight, and unless manifest error or abuse of discretion exists, that judgment should be affirmed. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). The trial court chose to believe the testimony of ap-pellee and her witnesses. We cannot say that it was clearly wrong in doing so.

In addition, the decision of the trial court as to quantum should not be disturbed on appeal unless there is an abuse of its “much discretion.” Reck v. Stevens, 373 So.2d 498 (La.1979).

The trial court obviously found that this altercation aggravated appellee’s back condition. We cannot say it was clearly wrong in so finding, and its award of damages was clearly within its discretion. The decision of the trial court is affirmed at appellant’s costs.

AFFIRMED.