text:
    Chassie L. MEDIOUS v. TRAPMAR, INC. and Travelers Insurance Company.
    No. 11989.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 7, 1981.
    Writ Denied Sept. 28, 1981.
    David H. Alfortish, Gretna, for plaintiff-appellee.
    Warren M. Simon, Jr., Metairie, for defendants-appellants.
    Before SAMUEL, GULOTTA and CHE-HARDY, JJ.
   SAMUEL, Judge.

Plaintiff filed this suit against his employer, Trapmar, Inc., and its workmen’s compensation carrier, American Employers Insurance Company, for total and permanent benefits and penalties and attorney’s fees. The claim is based upon a heart attack allegedly occurring within the course and scope of plaintiff’s employment.

Following trial, judgment was rendered in favor of plaintiff and against both defendants for weekly benefits based on permanent disability during the period he remains disabled, 12% penalties on all past due installments, and attorney’s fees of $6,000.

It is appellants’ position that plaintiff did not sustain a heart attack as a result of his employment.

In support of his claim, plaintiff introduced the testimony of the following lay witnesses: William Jackson, who operates a restaurant in the building where plaintiff is employed, Sam Gros and Beverly King, fellow workers, and Reverend Mother Mamie Edwards and Sam Henry, her son, who were visiting at his home when plaintiff suffered a heart attack.

Defendants called two lay witnesses, A. J. Delaune, a construction superintendent who was plaintiff’s boss, and Virgil Russell, an insurance adjuster.

Concerning the accident, plaintiff testified: On July 19, 1978 he reported to work and started to cut down a wall. He had shortness of breath and chest pains which got progressively worse. After lunch they cleaned up the “mess” from the wall. He wasn’t able to do much, but remained on the job the entire day. He told Mr. De-laune, his boss, but did not ask to be sent to a doctor because Delaune wouldn’t have sent him and he was unable to pay for a doctor himself. One time previously De-laune had recommended he see a veterinarian. Plaintiff also told Beverly King, a fellow worker who gives him a ride to and from work, about the chest pains on the way home.

After plaintiff showered and changed clothes at home Reverend Edwards and her son came to call. He spoke with them briefly and went to the kitchen for water, where he blacked out. When he regained consciousness they helped him to bed, and that night or the next day he was admitted to Flint Goodrich Hospital.

Delaune visited him on one occasion in the hospital, bringing his pay check. After his discharge he returned to Trapmar to tell them he was unable to work. Although Trapmar’s hospitalization insurer has paid his medical bills, plaintiff has never received any compensation from Trapmar or its compensation insurer.

Jackson testified plaintiff regularly ate lunch in his restaurant and he had seen him daily over a period of years. About IV2 to 2 weeks before the incident, plaintiff complained of chest pains and shortness of breath. He recommended plaintiff see a doctor.

Gros testified he worked with plaintiff on a daily basis and a few days before the incident plaintiff complained of shortness of breath and chest pains. King testified similarly and also stated on the way home that day plaintiff complained.

Generally, Reverend Edwards and her son confirmed plaintiff’s version of what happened at his home during the visit. She left about midnight and the son claims to have stayed all night, although plaintiff is confused as to whether they went to the hospital that night or the next morning.

Defendants’ lay witnesses testified as follows: Delaune does not remember plaintiff complaining of chest or heart pains on July 19, but admits plaintiff had been complaining of chest pains for a long time. He would have sent plaintiff to a doctor had he requested it. Plaintiff had complained within 3 or 4 weeks of his attack. This witness did recall jokingly recommending a veterinarian to plaintiff several years ago. He described plaintiff’s duties, explaining plaintiff was not expected to lift heavy things without assistance and the heaviest thing he would have to lift would be a door, which would weigh about 125 pounds, but he was never asked to pick it up himself.

Russell testified he had questioned plaintiff’s witness, Beverly King, shortly after the claim and King had denied plaintiff ever complained to him of feeling sick or of chest pains. (King had been excused earlier as a witness and was not available for rebuttal.)

Medical evidence was given by Dr. Joseph Allain, the treating physician, Dr. John Phillips, a specialist in internal medicine with a subspecialty in cardiovascular diseases, and Dr. Roger Dhuranadhar, a cardiologist, who testified on behalf of defendants.

Dr. Allain testified: He treated plaintiff on July 20, 1978 for shortness of breath of three weeks’ duration. Examination revealed plaintiff was in serious congestive heart failure. He had fluid in his lungs and atrial fibrillation. He was admitted to the hospital at that time and discharged on August 7, 1978. Plaintiff is still under his care. The doctor felt plaintiff should not return to work as a laborer. Allain stated the heart failure was secondary to hypertension and arteriosclerosis and usually occurs over an extended period of time. In plaintiff’s case, because of a history of shortness of breath the doctor concluded it had occurred over a period of weeks. He was of the opinion that the type of work performed by plaintiff contributed to his heart failure.

Dr. Phillips testified: He examined plaintiff on May 17,1979, after he had reviewed the hospital records and had taken a history. He diagnosed plaintiff’s condition as hypertensive cardiovascular disease with left ventricular hypertrophy with previous episodes of congestive heart failure and atrial fibrillation, angina pectoris (shortness of breath) chronic obstructive pulmonary disease with bronchial asthma, probably mild diabetes mellitus, previous hyperurice-mia, and neuropsychiatric disorder with chronic anxiety and hyperventilation. Dr. Phillips concluded physical exertion with underlying heart disease, hypertension and hypertensive cardiovascular disease and congestive heart failure would be deleterious to plaintiff’s health. He felt the congestive heart failure and angina pectoris were not caused by work-related activity but, with uncontrolled hypertension, plaintiff’s work-related activity would aggravate the underlying disease and lead to congestive heart failure and angina. He stated the activities of plaintiff’s job were a significant factor in his attack, and that plaintiff could not perform heavy laboring duties, but could be, for example, a ticket taker, dispatcher, or an elevator operator.

Dr. Dhurandhar testified: He first saw plaintiff in April, 1979, took a history and performed a complete physical examination. His findings were restricted to the heart. He found clinical evidence of slight left ventricular hypertrophy, and a soft third heart sound near the apex. Otherwise, the examination was unremarkable. He reviewed. the hospital records prior to the examination. An electrocardiogram taken at this time showed no prior evidence of a heart attack. This doctor stated he found no evidence of a heart attack in 1978 and that plaintiff probably had a rhythm disturbance with rapid heart rate exceeding ISO-MO beats per minute, which precipitated an attack of heart failure and necessitated hospital admission which was appropriately treated, causing plaintiff to make a good recovery. He was of the opinion plaintiff’s congestive heart failure was not work related, but was caused by inadequately treated high blood pressure associated with disturbances of heart failure. He felt plaintiff is not capable of performing heavy duties but can do light physical work, possibly as a security guard.

In its reasons for judgment, relying on Dr. Allain’s testimony, the court found the precipitating cause of the congestive heart failure was the laborious work plaintiff was doing on the day or days immediately prior thereto. From our examination of all of the medical evidence, we cannot say that finding is manifestly erroneous.

Concerning penalties and attorney’s fees, appellants contend they had no knowledge of plaintiff’s claim until suit was filed on December 12, 1978, and at plaintiff’s deposition on February 2, 1979 it was admitted by him that no medical reports had ever been furnished to his employer or its insurance carrier up to that time. The trial judge found that at least partial payments should have been made to plaintiff because from the date of the incident until Dr. Dhurandhar’s examination and report on April, 1979 the entire medical evidence was that plaintiff had a job connected disability and was unable to work.

The record does support the fact that he was visited in the hospital by his superior, so the employer did have knowledge of his illness almost from its inception, and plaintiff had complained to him of chest pains and shortness of breath. Accordingly, we conclude the trial judge properly awarded penalties and attorney’s fees.

Appellants alternatively contend the attorney’s fees awarded are excessive. We agree it is generous, but we do not feel the trial judge abused his “much discretion”. Thus, we will not disturb either award.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

      . Incorrectly named Travelers Insurance Company in the original petition.

      . The correctness of the amount is stipulated at $129.82 per week.

      .The hospital records indicated plaintiff was admitted the next morning.


source: Caselaw Access Project

author: BOUTALL, Judge.

license: Public Domain

text:
    Anna MEREDITH v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 11990.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 7, 1981.
    Rehearing Denied Sept. 17, 1981.
    Floyd F. Greene, New Orleans, for New Orleans Public Service, Inc., defendant-appellant.
    Robert Morías Schoenfeld, New Orleans, for Anna Meredith, plaintiff-appellee.
    Before BOUTALL, BARRY and KLEES, JJ.
   BOUTALL, Judge.

This appeal arises from a judgment of the trial court awarding $5,508.15 to the plaintiff for the injuries she sustained in a scuffle outside of a streetcar.

On April 24, 1978 at approximately 10:00 A.M. the plaintiff, Anna Meredith, was a passenger on board a streetcar operated by New Orleans Public Service, Inc. (hereinafter referred to as NOPSI) on St. Charles Avenue near Canal St. when she noticed a male passenger attempting to remove the contents of a purse belonging to a female passenger. Immediately, the plaintiff went to the front of the streetcar and informed the operator of this incident. Upon reaching the Canal Street carstop the male passenger exited the rear of the streetcar whereupon he was apprehended by a policeman from the New Orleans Police Department. Subsequently, the plaintiff alighted from the front of the streetcar and waited in this area at the request of a NOPSI representative. Thereafter the male passenger escaped the custody of the policeman and knocked Mrs. Meredith to the ground in fleeing from the scene. The plaintiff sustained personal injuries as a result of this scuffle and later filed suit against NOPSI seeking recovery of damages for these injuries. NOPSI answered alleging that the plaintiff was contributorily negligent. The trial court entered judgment in favor of Mrs. Meredith and against NOPSI in the amount of $5,508.15. From this judgment NOPSI has appealed suspensively.

On appeal the issue before us is whether NOPSI as a public carrier was negligent in failing to exercise the proper degree of care and precaution necessary to prevent an assault or other injuries upon passengers such as Mrs. Meredith who have been requested by the carrier to remain at the scene of criminal activity which took place aboard a motor vehicle operated by the carrier. No issue was raised by either party as to quantum.

The law applicable to this type of case is well settled. In Aime v. Hebert, 282 So.2d 566 (4th Cir. 1973) we stated:

“While not in the position of an insurer, a public carrier of passengers for hire is required to exercise the highest degree of vigilance, care and precaution for the safety of those it undertakes to transport and is liable for the slightest negligence. The mere showing of injury to a fare-paying passenger, and his failure to reach his destination safely, establishes a prima facie case of negligence. Such a carrier can be liable for an assault by one passenger on another passenger where there is reason for the carrier employee to anticipate the assault and a failure on his part to take such action as may be practicable under the circumstances to prevent the assault from being committed or to interfere with its execution.”

Also see: Imig v. New Orleans Public Service, 391 So.2d 72 (4th Cir. 1980).

The record before us indicates that a male passenger boarded the St. Charles Avenue streetcar at the intersection of So. Carrollton and Claiborne Avenues on April 24, 1978. The operator of this car testified that he was aware of the fact that this passenger had a reputation as a pick-pocket and further that this person had molested a woman on a streetcar some four days earlier on April 20, 1978. During the course of the trip from this intersection to Canal St. the operator kept an eye on the male passenger for the purpose of insuring the protection of the other passengers. No attempt was made by the operator to force this passenger from the streetcar because NOPSI had a policy of not taking any action until an incident occurred. Thereafter, Mrs. Meredith boarded the streetcar at the intersection of St. Charles Ave. and Cadiz St. on her way to work downtown. Apparently, one block from Canal St. the plaintiff observed the male passenger attempting to remove the contents of a purse belonging to a female passenger. Immediately, Mrs. Meredith informed the operator of this incident who promptly called out to a nearby policeman for assistance. Moments later when the streetcar stopped at Canal St. the male passenger exited the rear of the car into the waiting arms of the policeman. Mrs. Meredith alighted from the front of the streetcar whereupon a NOPSI official requested that she remain at the scene. The purpose for her stay is unclear as the plaintiff testified that she was requested by a NOPSI official to assist in identifying the criminal whereas one of the NOPSI representatives testified that the plaintiff was possibly asked to remain in order that her name and address could be taken for possible future investigation by NOPSI. Shortly thereafter, the male passenger broke loose from police custody and knocked the plaintiff to the ground as he fled from the scene. A NOPSI official helped Mrs. Meredith into the streetcar to see if she was injured. Later on she was taken to the emergency room of Touro Hospital for treatment of the injuries she sustained as a result of the fall. Two of the defendant’s witnesses testified that NOPSI had a policy of requesting witnesses to wait at the scene of an incident in order that a NOPSI representative could obtain the witness’s name and address in the event of possible future claims or investigations.

In consideration of the applicable law and the facts discussed above we find that NOPSI was negligent in failing to take the proper degree of care and caution necessary to prevent the injuries of the kind sustained by Mrs. Meredith. The evidence indicates that the plaintiff remained at the scene of the criminal activity at the request of NOP-SI and therefore, the latter owed a duty to protect the former from a scuffle of this kind. We believe that NOPSI could have prevented this injury and therefore satisfied its duty had they requested that the plaintiff remain on the streetcar for her protection. An incident of this type cannot be regarded as unforeseeable but should indeed have been anticipated by the operator and the other NOPSI officials at the scene.

In Waggenspack v. New Orleans Public Service, Inc., 297 So.2d 733 (4th Cir. 1974) we were faced with a set of circumstances somewhat similar to the matter before us. In that case several passengers aboard a fully loaded NOPSI bus began vandalizing the bus and created a disturbance. As a result the operator stopped the bus and requested assistance. By the time other NOPSI officials arrived on the scene approximately one half of the passengers had dispersed. The remaining passengers on board the bus, including the plaintiff, were given transfers and informed that they would have to catch another bus. The plaintiff and two of his fellow passengers in fearing for their safety from the crowd started to walk to another bus stop. While they were standing at another bus stop the plaintiff was struck over the head with a bottle by a member of a teenage gang. The plaintiff filed suit against NOPSI seeking damages for the personal injuries he sustained. This court held that NOPSI was liable for its failure to exercise the proper degree of care and caution owed to its fare paying passengers. The court stated:

“It is the Court’s belief that a reasonable degree of care would have dictated that the remaining passengers on the bus be allowed to remain on the disabled bus until such time as a relief bus arrived to take them to their destinations. Instead, before a relief bus was even summoned, the remaining passengers were banished to the very street to which the miscreants had fled under cover of darkness, for the uncertain purpose of boarding another bus if one became available.
* * * * * *
“... . Accordingly, the decision of Gerard Waggenspack and his companions to seek another bus stop appears to have been a prudent one under the circumstances and a decision that was forced upon them by the omission of the dispatcher to make a reasonable and prudent decision for the safety of those entrusted to his care.
“In the judgment of the Court the defendant did not exercise that highest degree of care which is owed to a fare paying passenger of a common carrier and which is a well established principle of law.”

Based on the foregoing we order that the judgment of the trial court be affirmed.

Affirmed.


author: BARRY, Judge.

text:
    Aggie Morris SEATON and Belinda Ellison v. Michael MARTIN, et al.
    No. 11992.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 7, 1981.

      Paul Brian Spurlock, New Orleans, for plaintiffs-appellants.
    Borrello & Huber, Steven L. Huber, Me-tairie, for defendants-appellees.
    Before BOUTALL, BARRY and KLEES, JJ.
   BARRY, Judge.

Plaintiffs appeal a judgment which dismissed their lawsuit based upon defendants’ peremptory exception of res judicata.

Plaintiffs originally sued for damages because of personal injuries resulting from an alleged attack by the defendants. Subsequently, plaintiffs’ attorney withdrew by written notice and new counsel was substituted. On the day of trial plaintiffs and their attorney failed to appear and their petition was dismissed. Five days later plaintiffs’ original attorney enrolled again and he filed a motion for a new trial, but the motion was summarily denied when plaintiffs and their attorney did not appear. Plaintiffs appealed and also filed a motion to remand: the remand was denied and the appeal dismissed. Seaton v. Martin, 376 So.2d 510 (La.App. 4th Cir. 1979).

Plaintiffs then filed a petition for nullity of the judgment which dismissed their lawsuit, alleging they did not receive notice of the trial. Defendants pleaded res judicata because the “... matter had been heard by the Fourth Circuit Court of Appeal and a final judgment therein was rendered.” The district court' maintained the exception and plaintiffs now appeal urging that their claim of ill practices has never been considered and their petition for nullity is unrelated to the prior appeal.

The essential elements of res judicata are found in LSA-C.C. Art. 2286 which provides:

“The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality.”

Our jurisprudence has consistently held that the requirements enumerated in the above article are stricti juris and each element must be present to sustain a plea of res judicata. Alexander v. Alexander, 196 So.2d 628 (La.App. 1st Cir. 1967).

. In the prior suit the cause of action was for damages, whereas the instant action alleging ill practices is to set aside the prior judgment. The issue of ill practices was not adjudicated in the prior litigation and if there were, in fact, ill practices then the original judgment would be void ab initio.

We feel it is clear that the petition for damages in Seaton v. Martin, supra, and the instant petition for nullity are different causes of action and res judicata is not applicable. Plaintiffs are entitled to proceed with their petition for nullity based upon ill practices and the district court judgment to the contrary was error.

Accordingly, the judgment of the district court sustaining the plea of res judicata is set aside and reversed and this matter is remanded for further proceedings consistent with the views expressed herein. Costs of this appeal are to be paid by the defendants and all other costs are to await a final determination on the merits.

REVERSED AND REMANDED.

      . C.C.P. Art. 2001. “The nullity of a final judgment may be demanded for vices of either form or substance, as provided in Articles 2002 through 2006.”
      C.C.P. Art. 2004. (in pertinent part) “A final judgment obtained by fraud or ill practices may be annulled.”


text:
    A. J. GRAFFAGNINO, et al. v. LIFESTYLES, INC., et al.
    No. 12014.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 7, 1981.
    Graffagnino, Perez & Roberts, A. Russell Roberts, Metairie, for plaintiffs/appellants.

      Gerald J. Martinez, Metairie, Parlongue & Riegel, Philip R. Riegel, Jr., New Orleans, for defendants/appellees.
    Before BOUTALL, BARRY and KLEES, JJ.
   BARRY, Judge.

The trial judge’s reasons for judgment present the factual background of this litigation and the basis for judgment which provides in pertinent part:

“This litigation began on August 22, 1974, when A. J. Graffagnino and Donald G. Perez, owners of the property at the corner of 8th Street and Causeway Boulevard in Metairie, filed a petition to enjoin the defendants, Lifestyles, Inc. and Murray P. Holmes, an officer of Lifestyles, from removing or disassembling a structure on the land. The defendants then answered, alleging that the structure is an “O’Dome”, a dome-like building on a wooden platform supported by pilings and hooked up to electrical and water connections. The defendant, Murray, later testified at trial that the former owner of the property, Leeand, Inc., had allowed Lifestyles to place this demonstration model of the type of building it sells in return for keeping the grass cut. The defendants further alleged that the building is designed to be portable and therefore movable and its ownership did not pass when ownership of the land passed to the plaintiffs on December 20, 1973. Defendants also alleged that Leeand had' agreed in its arrangement with Lifestyles that it would retain ownership of the O’Dome and the right to remove it at the end of the lease and had informed the plaintiffs of this agreement before plaintiffs had bought the property.
“The defendant also reconvened against the plaintiffs for damages to the structure, which is now destroyed, in the amount of $15,000.00. The defendants also third-partied the former owner, Le-eand and its president, Folse Roy, alleging that if the third party defendants had failed to notify the original plaintiffs, specifically the ownership of the structure separate from the land, then the third party defendants are liable to defendants for the amount of their recon-ventional demand.
“The original plaintiffs’ petition for an injunction has become moot since the building has subsequently been destroyed. The only issues now before this court concern the defendants’ demands.
“The written act of sale by which Le-eand conveyed the land to the plaintiffs on December 20,1973, describes the property conveyed as ‘Six certain lots of ground, together with all the buildings and improvements thereon ... ’. The property is described in the same manner in the mortgage and conveyance certificates.
“Art. 2276 of the La.Civil Code provides that ‘neither shall parol evidence be admitted against what is beyond what is contained in the acts nor on what may have been said before, or at the time of making them, or since.’ Other than in an action for reformation for mutual mistake, the sole exception to this general rule excluding parol evidence is that uncertain ties or ambiguities in the language may be clarified by parol evidence. Liberty Mutual Ins. Co. v. Ads, Inc., 357 So.2d 1360 (4th Cir. 1978). In this case the wording of the contract of sale between Leeand and the plaintiffs is clear and unambiguous. Ownership of all buildings and improvements transferred with the land. The terms of the verbal agreement between Leeand and Lifestyles cannot be introduced to vary the terms of the contract of sale.
“It is agreed by all parties that Lifestyles did own the O’Dome and did lease the land from Leeand in July of 1973. Nevertheless, this lease was not recorded and the plaintiffs were not parties to it, so the plaintiffs acquired the property and buildings and improvements thereon free of obligations of the unrecorded lease regardless of the plaintiffs’ actual knowledge of the situation. Art. 2276; McDuffie v. Walker, 125 La. 152, 51 So.2d 100 (La., P. 100); Benoit v. Acadia Fuel & Oil Distributors, Inc., 315 So.2d 842 (3rd Cir. 1975), writ refused, 320 So.2d 550 (La.1975); American Creosote Co., Inc. v. Springer, 257 La. 116, 241 So.2d 510 (La. 1970).”
* * * * * *
“Therefore, ownership of the O’Dome passed to the plaintiffs in the act of sale if it was a ‘building or improvement’, i. e., an immovable. The Court believes that it is an immovable, a ‘building or other construction’ according to La.C.C. Art. 464 (now C.C. Art. 463, as revised by acts of 1978, No. 728), and the jurisprudence of this state.
“In Ellis v. Dillon, 345 So.2d 1241 (1st Cir. 1977), the court held that a mobile home, sitting on its axle, hooked up to electrical wires and water pipes, was an immovable by nature. See the court’s reasoning, at P. 1243.
“In Bailey v. Kruithoff, 280 So.2d 262 (2nd Cir. 1975), the court held that a fence was immovable by nature because it was embedded in the ground and because, unlike a movable, it had no identity as a fence when moved; it had identity only when constructed. See the court’s reasoning, P. 264.
“While the O’Dome is designed to be portable, it is also designed to withstand storms and high winds. Therefore, when it is in use, it is designed to have a degree of permanency.
“The structure involved in this case was situated on a platform integrated into the ground with pilings. The structure remained so situated on the property for over a year in all kinds of weather, as the defendant, Holmes, testified that it was designed to do. It could be and was designed to be disassembled and transported easily, but it would lose its identity as a result. Furthermore, as the court held in Ellis v. Dillon, supra, the courts must determine what is a building or other construction qualifying as an immovable under Art. 464 (now Art. 463, revised by Acts 1978, No. 728) in light of the social needs of the time. The O’Dome is designed to be easily portable, yet it is intended to be used as a dwelling. When used as a dwelling it is integrated with the soil and stationary. It is a movable only when disassembled, i. e., not in use. The O’Dome on the plaintiff’s property was therefore an immovable and therefore ownership of it passed to the plaintiffs along with the land it occupied in the act of sale of December 20, 1973.
“Therefore, the court will dismiss Lifestyles’ demands against A. J. Graffag-nino and Donald G. Perez.
“The court is of the opinion that Le-eand, Inc. was well aware of the fact that it did not own the building when it sold the land. Therefore, the court will order Leeand, Inc. to pay to Lifestyles, Inc., $8,000.00 representing the value of the building. The court bases this recovery on the fact that Leeand, Inc. would be unjustly enriched if it was allowed to sell a building that was not their own and keep all the proceeds.”

We agree that plaintiffs’ petition for injunctive relief is moot and we fail to find abuse of discretion in the trial judge’s determination that the O’Dome structure was immovable. Further, Leeand’s lease with Lifestyles was not recorded and plaintiffs were not privy to the lease, therefore, title to the immovable structure was legally transferred to plaintiffs at the time of the sale with Leeand.

We have difficulty with the lower court’s holding that Leeand owes damages to Lifestyles because the O’Dome structure was transferred to plaintiffs when the sale was passed. The record shows that Leeand notified one of the plaintiffs in writing prior to the sale that Lifestyles owned the O’Dome structure, and it is abundantly clear that all parties to this litigation were aware that the O’Dome structure was owned by Lifestyles. Most importantly, Lifestyles was put on notice that Leeand was selling its property to the plaintiffs.

The act of sale included the standard verbage “..., together with all the buildings and improvements thereon, ...” and Leeand’s only fault, if it be considered a fault, was in not noticing this language in the sale nor noting or requesting that the O’Dome structure be specifically excluded in the sale. However, Lifestyles had knowledge that the sale was pending, certainly was aware that its lease with Leeand was not recorded, yet did nothing to protect its acknowledged ownership of the structure. Lifestyles’ apparent options included recordation of its written lease, or removal of the structure prior to the sale, or working out an agreement with the plaintiffs. We feel that Lifestyles’ failure to protect itself constituted negligence and was the proximate cause for its subsequent loss and conclude that the district court judgment to the contrary was manifest error.

Accordingly, the judgment of the district court awarding damages in favor of Lifestyles, Inc. is reversed and set aside and in all other respects the judgment is affirmed. Costs of this appeal are to be paid by Lifestyles, Inc.

REVERSED IN PART, AFFIRMED IN PART, AND RENDERED.


author: KLEES, Judge.

text:
    STAN WEBER & ASSOCIATES, INC., and Joyce Rubrecht, Wife of/and Roger A. Rubrecht v. Norma GOODLETT, Wife of/and James C. Goodlett.
    No. 12015.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 7, 1981.
    Harold E. Kytle, Kenner, for defendant-appellee.
    Stephen A. Fritch, Metairie, James J. O’Conner, New Orleans, for plaintiff-appellant.
    Before BOUTALL, BARRY and KLEES, JJ.
   KLEES, Judge.

On January 17, 1979, defendants, Mr. & Mrs. James Goodlet entered into a purchase agreement to acquire the home of Mr. & Mrs. Robert Rubrecht, located at 828 Sherrie Lynn Court in Gretna, Louisiana.

The agreement provided that the sale was conditioned upon the ability of the defendants obtaining financing in the amount of $51,200.00 at a rate of interest not to exceed 10% per annum, payable over a period of not less than 30 years. It further stated that should purchaser, seller or agent be unable to obtain the loan stipulated above within 30 days from the acceptance of the offer, the contract shall become null and void and the agent is authorized to return the purchaser’s deposit in full.

In addition, the purchase agreement provided for a deposit in the amount of $6,400.00 ($3,200.00 cash and a $3,200.00 demand note). The check for the deposit was returned dishonored on January 25, 1979 and again on February 15, 1979.

Petitioners, Mr. & Mrs. Robert Rubrecht and Stan Weber and Associates, Inc., filed suit seeking $6,400.00 for the deposit, $1,900.00 in agent’s commissions, attorney’s fees, costs and interest. The trial judge ruled in favor of the defendants dismissing the plaintiffs’ demands. From this judgment plaintiffs have appealed.

On appeal the issues before us are whether the defendants’ failure to provide a deposit constituted an express breach of the agreement, and whether the trial judge erred in finding the defendants made a good faith effort to obtain financing.

We will deal with the latter contention first. The record reveals that defendants made application at Fidelity Homestead Association on January 23, 1979, and on January 24,1979, were issued a letter by Fidelity Homestead Association approving their loan application subject to a CAB appraisal and verification of 1978 income for approval. This was accepted by the defendants. Later, on February 13, 1979, the homestead in a letter to defendants indicated that it had received data from defendant’s accountant, Mr. Charles R. Willingham, Jr., but that the amount stated was insufficient and the homestead indicated that it wanted verification of 1978 earnings. No verification was sent to the homestead.

Nonetheless, the trial judge considered ample, evidence which he believed to be a good faith effort on the part of the defendants to obtain financing. In summation he stated:

“The Court is convinced that defendant furnished the homestead all earning data he had available in February, 1979, but that this data did not satisfy the homestead to the extent that it would issue an unconditional commitment. On January 23, 1979 defendant did, in his application to Fidelity Homestead, indicate that his earnings were approximately $4,650.00 per month. This was not inconsistent with his uncontradicted testimony wherein he stated that he would have had this income had his accounts receivable paid as anticipated and as they became due. No fraud or misrepresentation is found on the part of the defendant.”

We find that the evidence supports the trial court’s conclusion of good faith and his ruling should not be disturbed.

Finally the plaintiffs contend that the failure of the defendants to provide the required deposit constituted an express breach of the agreement in and of itself entitling them to the deposit plus agent’s commission, attorney’s fees, and costs of litigation.

The trial court correctly found that the defendants failed to properly make the deposit as called for in the agreement to buy and sell, but would be entitled to reimbursement if it were made since the loan was not granted, “through no fault of his”.

This is in line with Richmond v. Krushevski, 243 La. 777, 147 So.2d 212 (1962). There the Supreme Court was faced with an analogous factual situation and after a careful evaluation of our civilian law held that the penalty to perform the principal obligation, i. e., the loss of the deposit, is a secondary obligation and when the principal obligation becomes null and void the secondary obligation also becomes null and void. LSA-C.C. 2117, 2118, 2125, 2123.

According to the terms of the agreement in this case, as in Richmond, supra, the principal obligation to purchase the property became null and void and ceased to exist when the loan could not be obtained in the time specified, and under the principles above set out, the secondary penal clause, i. e., the deposit, also became null and void, and ceased to exist and is unenforceable.

The issue of the attorney’s fees, commissions, and costs sought under the terms of the contract arising from failure of compliance with its terms was dealt with in Kansas v. Schaeffer, 299 So.2d 474 (La.App. 4th Cir. 1974). The Court specifically rejected these claims. The language of the Court was as follows:

“We reject all parties claims to attorney’s fees, commissions, and costs, sought under the terms of the contract arising from failure of compliance with its terms.” “This agreement by its very terms becomes null and void when there is no fulfillment of the suspensive condition. When a contract is null and void, it is as if the agreement was not written. The parties revert to their respective positions before they signed the agreement.” Garlete v. Rodriguez, 126 So.2d 182 (La.App. 4th Cir. 1961). “There can be no failure of compliance with an agreement that has become null and void, nor can any rights flow from such an agreement.” Richmond v. Krushevski, 243 La. 777, 147 So.2d 212 (1962).

For the foregoing reasons, the judgment of the district court is affirmed.

AFFIRMED.


author: SAMUEL, Judge.

text:
    BANNER CHEVROLET, INC. v. Harold G. KELT.
    No. 11489.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 8, 1981.
    Rehearing Denied Sept. 17, 1981.

      Deutsch, Kerrigan & Stiles, Robert E. Kerrigan, Jr. and Ethel H. Cohen, New Orleans, for plaintiff, defendant in recon-vention-appellant.
    Evangeline M. Vavrick, New Orleans, for defendant, plaintiff in reconvention-appel-lee.
    Before SAMUEL, REDMANN and BOU-TALL, JJ.
   SAMUEL, Judge.

Plaintiff filed this suit against Harold G. Kelt to recover $1,200, plus reasonable attorney’s fees, for the difference between the value of a trade-in allowance made to defendant on the purchase of a new truck and the actual value of the trade-in. It alleges defendant represented his vehicle, the trade-in, to be a 1975 Chevrolet pickup truck when in fact it was a 1974 model.

Defendant answered, denying the pertinent allegations of the petition, and reconvened for $10,000 in damages resulting from plaintiff’s alleged conversion of defendant’s tax and license fees and for the alleged inconvenience and lost business he experienced from not having a certificate of title, registration, or license plate.

After a trial on the merits, there was judgment in the amount of $3,500, in favor of defendant on his reconventional demand. Plaintiff’s suit was dismissed and it was ordered to furnish defendant title to the truck he had purchased and refund to him certain amounts collected as sales tax and license fees. Plaintiff has appealed. Defendant and plaintiff in reconvention has filed an answer to the appeal seeking an increase in the amount of damages awarded him.

On May 14, 1977, defendant visited plaintiff’s premises with the pickup truck he subsequently traded. He entered the new car showroom after parking the truck in front of plaintiff’s premises. The remaining facts are in dispute.

Defendant testified: He was engaged in the restaurant business, had an ice house, and was a horse breeder. He stopped at plaintiff’s place of business to talk to one of its sales managers, Cliff LeMaire. An offspring of a horse sold to defendant by Le-Maire was running that day at a race track near New Orleans. Defendant had done business with LeMaire, previously had purchased other vehicles from plaintiff through LeMaire, and had sent his daughter to Le-Maire to attempt to purchase an automobile. Prior to May 14, 1977 defendant’s relationship with plaintiff was most satisfactory. LeMaire offered to “make him a good deal”, instructed a salesman to show him trucks, and attempted to sell him one of the new trucks for $100 over cost.

Defendant further testified: He went with the salesman and selected three trucks which most appealed to him. In the process of negotiating the sale, plaintiff’s employees had to make an appraisal of defendant’s truck. That truck was driven to plaintiff’s used car department and plaintiff’s used car manager drove the vehicle for approximately 15 minutes. The used car manager and the salesman discussed the truck outside defendant’s presence. At no time did defendant restrict plaintiff’s access to the truck. At the new car showroom defendant selected a truck. The salesman did not tell him the value placed on his used truck by the used car manager, but only informed him what cash, in addition to the old truck, was necessary to purchase the new one.

Defendant insists he did not represent the old truck as a 1975 model, even though it was noted as such on plaintiff’s appraisal sheet. The only explanation he could offer for the 1975 designation was that he had previously purchased a 1975 truck from plaintiff, and traded it for the 1974 truck in question. Some mention was made about that 1975 truck by plaintiff’s employee while defendant was on its premises.

Defendant claimed he did not have the title to his truck when he visited plaintiff’s premises because at that time he did not intend to purchase a new vehicle. Nor did he have the entire purchase price on his person. He made a partial deposit for which a receipt was given. The next day he returned with the old truck, its title, and a check for the difference between the deposit and the cash needed to complete the transaction. He gave the title, which clearly stated the model year of the traded truck, to plaintiff’s salesman, who turned it over and requested defendant to sign it. Defendant complied, signed appropriate documents, and drove off in the new truck.

Two or three days later, defendant stated he received a telephone call from plaintiff informing him he owed approximately $1,200 because plaintiff’s employees erroneously had based their valuation of his trade-in on the assumption it was a 1975 Chevrolet when in fact it was a 1974 model. In due course defendant made demand on plaintiff to process his new truck title so he could obtain a license plate and safety inspection sticker. Defendant testified, and plaintiff does not dispute, that plaintiff would only process the title application upon defendant’s paying the $1,200 allegedly owed.

Defendant received traffic citations based on the absence of a title in Orleans, Jefferson, and St. Bernard Parishes. He also received a citation in Lake Charles, Louisiana, his son received a citation in New Orleans for improper registration, and defendant was obliged to attend court in connection with that ticket. Most, if not all, of the tickets were resolved in favor of defendant upon his presentation to the court of the facts surrounding plaintiff’s actions, but at least one citation was pending at the time of trial. Defendant testified he avoided some tickets by maintaining a file in the truck with documents showing his ownership and plaintiff’s refusal to obtain his title. Thus, defendant did not prove a specific pecuniary loss, but he did set forth inconvenience occasioned to him by plaintiff’s refusal to process his title.

Plaintiff’s witnesses testified defendant came into plaintiff’s establishment to purchase a new truck; he represented the truck he was driving to be a 1975 model; and this information was written on the evaluation sheet used to establish a trade-in value. LeMaire testified defendant did not come into the establishment to discuss horses or any personal matters, and there was testimony that the salesman who consummated the sale obtained approval from a sales manager other than LeMaire. These witnesses also testified the truck traded by defendant was identical in 1974 through 1975 models and the difference in model year could only be found from tracing the motor vehicle identification number through a set of books. These books admittedly were in plaintiff’s possession.

They further testified: They relied on defendant’s representation of the model year, and admitted they did not use the usual procedure of checking the identification number on the truck. Their bookkeeping department eventually discovered the error and notified the sales manager. Demand was made upon defendant for $1,200, and plaintiff offered to rescind the contract, but defendant refused to comply, and plaintiff instituted this proceeding.

Finally, plaintiff’s general manager explained title could not be processed because enough sales tax had not been paid. He explained the actual value of the trade-in caused the sales tax owed on the new vehicle to increase, and the amount actually paid to and held by plaintiff was the cause of the insufficiency.

After hearing the evidence, the trial judge determined as a fact that the parties had entered into a valid sale in which both sides gave their informed consent to the thing and the price both on the original sale and on the trade-in. He also concluded plaintiff was in bad faith in failing to give defendant his title to this new vehicle, which never had been registered in Louisiana, and to which plaintiff held the manufacturer’s certificate of origin. He vocally chastized plaintiff in open court for the exercise of self help when a legal remedy was available.

Plaintiff seeks a judgment of $1,200, plus reasonable attorney’s fees, on a quanti mi-noris theory. This relief is sought on the trade-in portion of the transaction, which upon close analysis partakes in part of the contract of exchange and in part of the contract of sale. However, we need not determine whether the trade-in portion was one of sale or exchange, since Civil Code Article 2667 provides that, with certain limited exceptions not present here, all provisions relative to the contract of sale apply to the contract of exchange. The relief of quanti minoris is found in that portion of the Civil Code pertaining to relief afforded a purchaser because of vices of the thing sold. Article 2541 of the Civil Code allows quanti minoris relief where there is a defect in the thing sold, and Civil Code Article 2542 allows quanti minoris relief where a thing is declared to possess a quality which it does not in fact possess.

Civil Code Article 2521, contained in the section in the Civil Code on redhibition, provides that apparent defects, such as the buyer might have discovered by simple inspection, do not give rise to redhibitory relief. That article reads:

“Apparent defects, that is, such as the buyer might have discovered by simple inspection, are not among the number of redhibitory vices.” LSA-C.C. Art. 2521.

The trial judge was of the opinion the “defect” presented by the difference in model years was one which was apparent by simple inspection, and we agree. In order to determine the correct model year, plaintiff’s representatives, skilled in valuation of used automobiles and trucks, simply had to ascertain the motor or identification number, and cross reference that number with a book admittedly in plaintiffs possession. To this extent the discrepancy between model years was readily apparent and would not give rise to redhibitory relief or to an action in quanti minoris under Article 2544 of the Civil Code.

There is more than substantial evidence in the record to justify the acceptance by the trial judge of defendant’s statement that he did not represent the vehicle as being a 1975 truck, particularly in view of the fact that, as admitted by all parties, he did not have the certificate of title on his person on the day the transaction was agreed upon. Equally important, defendant brought in the title on the day he picked up the truck, and the model year was clearly stated on its face. Given these facts, and in view of the credibility conclusion of the trial judge, we cannot hold defendant declared the vehicle to possess a quality which it did not possess and thus afford plaintiff quanti minoris relief. Consequently, we affirm the trial judge’s dismissal of plaintiff’s claim.

With regard to the reconventional demand, plaintiff argues that under the Supreme Court’s decision in Meador v. Toyota of Jefferson, Inc., damages for inconvenience, aggravation, distress, and mental anguish are recoverable in an action in tort but are not recoverable in contract unless the gratification of purely intellectual enjoyment is the principal object of the contract.

However, plaintiff’s refusal to obtain defendant’s title unless defendant paid the claimed deficiency was an exercise in self help. Louisiana law is clear that title to movables passes upon agreement as to the thing and the price. This rule applies to ownership of motor vehicles, even though Louisiana is a certificate of title state and merchantability of a motor vehicle depends upon proper registration and a certificate of title.. Thus, the moment plaintiff and defendant agreed upon the truck and the price, title passed to defendant without further formality. From that point forward, plaintiff’s action in withholding money paid to it for sales tax and licensing fees can only be viewed as a tor-tious conversion in an attempt to force compliance with plaintiff’s demands by use of self help.

The proposition was well stated in Bostwick v. Avis Rent-A-Car, as follows:

“.... Regardless of the rightness or the wrongness of the plaintiff’s conduct or of his action in failing to pay the rental, the defendants, nevertheless, did have a legal remedy, and it is a well-settled axiom that the Courts in this state frown upon ‘self-help’. There is no question but what the action of the defendants was an attempt to force the plaintiff to pay for the car. The jurisprudence of this state is now well settled that the conversion of the property of another is a tort, and that the invasion of private property can produce mental shock, anguish and humiliation. See LaFleur v. Sylvester, La.App., 135 So.2d 91; Nickens v. McGehee, La.App., 184 So.2d 271; Hayward v. Carraway, La.App., 180 So.2d 758.”

In Hamilton v. Travelers Indemnity Company. the court made the following announcements with regard to conversion:

“Conversion includes any act of dominion wrongfully asserted over the property of another in denial of or inconsistent with the owner’s rights therein. Importsales, Inc. v. Lindeman, 231 La. 663, 92 So.2d 574; Marcel v. Denton, La.App., 195 So.2d 163; Edwards v. Max Thieme Chevrolet Co., La.App., 191 So. 569. Defendant’s actions in removing plaintiff’s automobile from its place of storage and selling it to Cook’s Auto Salvage, while its ownership was still vested in plaintiff, are well within the above definition of conversion. We therefore concur in the trial court’s finding that there was a tor-tious conversion.”

The facts of the cited cases do not coincide with the facts of this case. Nevertheless, the legal principles are the same. Plaintiff’s remedy was through the courts and not through the ill-conceived scheme of withholding defendant’s title until, in effect, he was brought to his knees in submission. This situation is further reinforced by our finding on the merits of plaintiff’s main demand.

Nevertheless, punitive damages are not allowable in Louisiana and we are not able to accept the trial judge’s recommendation (not contained in the judgment) that damages would be increased if title has not been transferred by the time this appeal has been heard. We do conclude the trial judge’s award of $3,500 in damages to defendant on his reconventional demand was not unreasonable and was not beyond the discretion afforded him. The record reflects traffic citations in St. Bernard, Orleans, Jefferson, and Calcasieu Parishes were issued to defendant, defendant’s son was issued a traffic citation with the result that defendant himself had to take time from his business activities to attend court. Defendant was stopped by police on several occasions and obviously inconvenienced by having to talk his way out of traffic citations by displaying documentation to the potential arresting officer to explain the absence of a title and registration.

The parties concede the applicability of the following statement of law by this court:

“A plaintiff bears the burden of establishing each and every element of damages claimed. Cheramie v. Jones, 327 So.2d 601 (La.App. 4th Cir. 1976). Certainly it is true that when a party has suffered damages but cannot establish them with legal certainty, the courts have discretion to fix the amounts thereof. However, the latter rule has no application when the damages sought are easily proven, but such proof is not forthcoming. Cotton v. Needham, 253 So.2d 674 (La.App. 1st Cir. 1971).”

(Emphasis ours).

If plaintiff in reconvention were employed at a fixed salary it would be relatively easy for him to have established in monetary figures the amount of his lost income as a definite item of damages. However, he has been self-employed for some time, and the present situation has existed for a period in excess of three years. Consequently, even if he had produced his income tax returns prior to the date of the sale for comparison with income tax returns subsequent to the date of the sale, it is doubtful any more accurate proof of lost income would have been derived than from his testimony. The trial judge is afforded discretion to set the amount of damages when they cannot be established with legal certainty, and we therefore affirm the $3,500 award by the trial judge. We find that amount is neither excessive nor inadequate.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

      . The record is somewhat unclear with regard to the actual amount demanded and how plaintiff arrived at that amount. However, plaintiffs suit prays for $1,200, and we use that figure for the purposes of this opinion.

      .“The action for a reduction of price is subject to the same rules and to the same limitations as the redhibitory action.” LSA-C.C. Art. 2544.

      .La., 332 So.2d 433.

      .See LSA-C.C. Art. 2439.

      . Scott v. Continental Insurance Company, La.App., 259 So.2d 391; Transportation Equipment Co. v. Dabdoub, La.App., 69 So.2d 640.

      . La.App., 215 So.2d 854, 857.

      . La.App., 248 So.2d 617, 619.

      . Killebrew v. Abbott Laboratories, La., 359 So.2d 1275.

      . Plaintiffs actions in this case were clearly illegal under R.S. 32:705 which provides that no person shall sell a vehicle without delivery to the purchaser of a certificate of title in the name of the seller with such signed endorsement of sale and assignment as may be necessary to show title in the purchaser.

      . Dillon v. Rice, La.App., 375 So.2d 742, 745.

      . In pertinent part, the second paragraph of Civil Code Article 1934(3) reads:

        “In the assessment of damages under this rule, as well as in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury, ...” (Emphasis ours).


text:
    Succession of Allen Sneed JACKSON.
    No. 12012.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 8, 1981.

      Harry R. Cabral, Jr., Metairie, for Dorothy Gray Jackson, appellant.
    Barbara Ziv Greenbaum, New Orleans, for Elaine Jackson, appellee and appellant, on the merits.
    Law Offices of Guy W. Olano, Jr. by Joan B. Montero, Kenner, for Succession of Allen Sneed Jackson, appellee.
    Before BOUTALL, BARRY, and KLEES, JJ.
   BOUTALL, Judge.

This appeal arises from a judgment of the trial court which disposed of the proceeds of several life insurance policies and an annuity policy to various parties. The disposition of these items forms the bases of the appeal.

On November 21,1970, Allen Sneed Jackson married his second wife, Dorothy Gray Jackson. During this marriage Mr. Jackson acquired several life insurance policies and one annuity policy which are described in pertinent part as follows:

a) Boston Mutual Life Insurance Co. (hereinafter referred to as Boston Mutual) group term life insurance policy in the amount of $35,000;
b) John Hancock Mutual Life Insurance Co. (hereinafter referred to as John Hancock) group term life insurance policy in the amount of $25,000;
c) Commercial Union Life Insurance Co. (hereinafter referred to as Commercial Union) annuity contract in the amount of $9,284.35.

On November 23, 1976, Mr. Jackson filed a suit for a separation from bed and board which was granted on October 20, 1977, thereby terminating the community retroactive to the date of filing of the suit. During the course of these proceedings the trial court issued a preliminary injunction against both of the Jacksons ordering them not to dispose of the community property acquired by them. At the time of the judgment of separation, Dorothy Jackson was the named beneficiary on the three policies described above. On February 10, 1979, Allen Jackson obtained a Haitian divorce against Dorothy Jackson and on February 12, 1979, he married Elaine Mead Jackson. Mr. Jackson changed the beneficiary on the three policies above to Elaine Jackson. Thereafter, on September 25, 1979, Mr. Jackson died, at which time Elaine Jackson continued to be the named beneficiary.

On October 9, 1979 Dorothy Jackson filed a petition for a preliminary injunction seeking to restrain the insurance companies from disposing of the proceeds of the insurance policies enumerated above. Her request for a preliminary injunction was granted by the trial court but was later dissolved on grounds that it was improperly issued. Subsequently, the proceeds of the three policies were deposited into the registry of the trial court by the respective insurance companies via concursus proceedings for disbursement by the court to the proper parties. Those parties filing a claim to the proceeds include both Dorothy and Elaine Jackson and the children of the first marriage of the decedent.

The trial court awarded the proceeds of the two life insurance policies in favor of Elaine Jackson. Dorothy Jackson was awarded one half of the proceeds of the annuity policy which accrued during her marriage to the decedent, which amounted to $2724.55, and the remaining funds totall-ing over $6559.80 were awarded to the estate of the decedent. From this judgment both Dorothy and Elaine Jackson have appealed devolutively. The executor of the estate of Mr. Jackson answered the appeal seeking damages for frivolous appeal from Dorothy Jackson and seeking affirmation of the judgment of the trial court. Elaine Jackson answered the appeal filed by Dorothy Jackson seeking reversal of the trial court’s judgment regarding distribution of the proceeds of the annuity policy, together with damages and costs of trial from Dorothy Jackson, and damages for frivolous appeal.

On appeal the issues before us are as follows: 1) whether the community formerly existing between Dorothy and Allen Jackson has ownership of both the term life insurance policies acquired during the existence of the community as well as the proceeds of these policies; 2) whether the community formerly existing between Dorothy and Allen Jackson is entitled to restitution for the community funds used to pay the premiums on the two term life policies acquired during the existence of the community; 3) whether the annuity contract acquired during the existence of the community between Dorothy and Allen Jackson is a community asset and what is Dorothy’s interest in the proceeds; 4) whether Dorothy Jackson’s interest in the annuity contract was payable immediately upon the death of Allen Jackson or does it form part of the separate estate of Allen Jackson and is therefore subject to reduction by his forced heirs; 5) whether the injunction issued during the separation proceeding restraining both Dorothy and Allen Jackson from disposing of assets of the community was violated by the latter when he changed the beneficiaries on both of the term insurance policies and the annuity contract; 6) whether the trial court properly assessed the costs of this concursus proceeding; and 7) whether damages for frivolous appeal should be awarded?

We are aided in our resolution of these issues by the detailed and well-reasoned opinion of the trial judge with which we agree in the main.

I

Regarding the first issue before us, the jurisprudence draws a clear distinction between ownership of a life insurance policy as opposed to the ownership of the proceeds of such a policy. The ownership of a policy of life insurance, whether it is separate or community property, is determined by the marital status of the owner at the time the policy is issued. Equally well known is the rule that death benefits or proceeds of a life insurance policy with a named beneficiary other than the estate of the insured owner, do not form part of the owner’s estate either separate or community, but belong to the validly designated beneficiary. Consistent with these two different forms of ownership there are different benefits. The policy owner is entitled to the lifetime benefits payable under the insurance policy, that is, those exercisable by the owner pursuant to policy terms and provisions, during the lifetime of the owner. These benefits include: the right to cash surrender value, receive dividends, assign or pledge policy proceeds, borrow against the policy, name and change of beneficiary, and execute conversion rights. On the contrary, the owner of the death benefits or proceeds is entitled exclusively to the proceeds when the policy accrues at death. Another point to consider here is that the existence of the lifetime benefits for the policy owner differs when there is a term policy or a whole life policy. In the case of the term policy the lifetime benefits are limited, whereas, the entire package of benefits is generally available for the whole life policy. No distinction as to the existence of benefits is made for the owner of the death benefits or proceeds as the proceeds for either a whole life or a term life policy are payable when the policy accrues. Berry v. Metropolitan Life Insurance Company, 327 So.2d 521, 523 (La.App. 1st Cir. 1976); T. L. James and Co., Inc. v. Montgomery, 332 So.2d 834 (La.1975).

In the matter before us both of the term life insurance policies namely the Boston Life Policy and the John Hancock Life Policy, were acquired during the existence of the community between Dorothy and Allen Jackson. ' Therefore, ownership of these policies belongs to the community existing between them. As such the community was entitled to all of the lifetime benefits attributable to a term life policy which, upon accrual of the policy as has occurred here with the death of Allen Jackson, amounts to nothing. Regarding the proceeds of the two term life policies, Elaine Jackson was the named beneficiary at the time when the policies accrued upon the death of Allen Jackson. Therefore, she is the exclusive owner of these proceeds and is entitled to them. The claim made by Dorothy Jackson to these proceeds is denied.

II

With respect to the issue of restitution of community funds used for the payment of premiums on life insurance policies the jurisprudence draws a distinction between policies acquired prior to the existence of the marriage and those acquired during the marriage. For the former type they are the separate property of the spouse acquiring them and the community is entitled to restitution only when the cash value of the policy has increased during the community’s existence and then only for one-half the extent of the increase in value. For those policies acquired during marriage they are community property and the community is entitled to reimbursement according to the value that the policy had at the time of the dissolution of the community. In this case the term insurance policies never had a cash surrender value. Therefore, no accounting is due to the community for premiums paid. Connell v. Connell, 331 So.2d 4 (La.1976); T. L. James & Co., Inc. v. Montgomery, 332 So.2d 834 (La.1975).

Ill

In recent jurisprudence the Supreme Court has addressed the issue of whether annuity or pension rights acquired during the existence of the community are a community asset and whether the non-employed spouse is entitled to any of these rights and to what degree, if any. In T. L. James and Co., Inc. v. Montgomery, supra, the court stated:

“ ‘When acquired during the existence of a marriage, the right-to-share [in a retirement plan] is a community asset which, at the dissolution of the community, must be so classified — even though at the time acquired or at the time of dissolution of a community, the right has no marketable or redeemable cash value, and even though the contractual right to receive money or other benefits is due in the future and is contingent upon the happening of an event at an uncertain time.’ ” (332 So.2d 851)

Hence, an annuity contract acquired during the existence of the community is a community asset. In Sims v. Sims, 358 So.2d 919 (La.1978) the court indicated that the non-employed spouse was entitled to share in the proceeds of the annuity contract which had accrued during the community. The court stated:

“ * * * our courts have uniformly held that, at the dissolution of the community, the nonemployed spouse is entitled to judgment recognizing that spouse’s interest in proceeds from a retirement annuity, or profit-sharing plan or contract, if and when they become payable, with the spouse’s interest to be recognized as one-half of any payments to be made, insofar as they are attributable to the other spouse’s contributions or employment during the existence of the community.”

The formula to be used for determining the spouse’s interest in this community asset is as follows:

One final point for consideration here is that the non-employed spouse’s interest in the annuity contract or pension rights is not payable until the contract or rights become due. See Sims v. Sims, supra; Kennedy v. Kennedy, 391 So.2d 1193 (La.App. 4th Cir. 1980).

By applying the above principles of law to the matter before us we find that the Commercial Union annuity contract acquired during the existence of the community between Dorothy and Allen Jackson was a community asset. Dorothy Jackson as the non-employed spouse was entitled to Vz of the proceeds attributable to Allen Jackson’s contribution and employment during the existence of the community.

The annuity contract provides that upon the death of the annuitant, Mr. Jackson, prior to the maturity date Commercial Union will pay, “. . . the cash value of the policy at the date of death or the total amount of premiums paid under the policy if greater ...” Upon dissolution of the community, the cash surrender value of the policy was $4,177.20. Upon the death of Allen Jackson, the cash surrender value was $9,284.35. Apparently, the premiums paid by the decedent were less than the cash value and therefore, the figures indicated for cash value are those that are to be used in the formula previously indicated. The proper formula can be expressed as follows:

Accordingly, Dorothy Jackson’s Vz interest in the proceeds attributable to the community with Allen Jackson is $2,088.60.

The trial court reached a figure of $2,724.55 as the amount owed to Dorothy Jackson as her Vz interest in the pension proceeds attributable to the community. The court found this figure based on the following ratio:

These figures were reached by multiplying the monthly income from the annuity contract upon maturity times the number of months in which the community was in existence during the policy and the number of months in which Mr. Jackson lived after purchasing the policy. However, the policy clearly shows that the monthly income benefit is payable upon the maturity of the policy and that benefit is not applicable when the annuitant dies prior to the maturity date. Accordingly, the judgment is amended to declare Dorothy Jackson's interest to be $2088.60.

IV

Having determined the basis of Dorothy Jackson’s ownership, we consider the issue of its proper distribution. The trial court found that Dorothy Jackson is merely a creditor of the estate of Allen Jackson to the extent of her interest, stating that the entire annuity fund became an asset of the separate estate of Allen Jackson and it must be included in the descriptive list of the property of the decedent for the purpose of ascertaining the disposable and the forced portions. In making its decision the trial court relied upon the case of Jochum v. Estate of Favre, 313 So.2d 870 (La.App. 4th Cir. 1975). However, we find that the facts before us are distinguishable from those in Jochum v. Estate of Favre, supra, and for us to follow that ruling would be in violation of Sims v. Sims, supra. In the latter case the Supreme Court indicated that an annuity or retirement contract or plan acquired during the existence of the marriage was a community asset and further that upon dissolution of the community the non-employed spouse was entitled to a judgment recognizing that spouse’s interest in the proceeds from the annuity or retirement. Moreover, these proceeds are payable when they become due, that is, at the time of retirement or death. In Jochum v. Estate of Favre, supra, we indicated that the annuity contract acquired prior to the existence of the marriage was the separate property of the spouse acquiring it. Upon that spouse’s death the proceeds of the annuity formed part of the estate of the decedent and as such were included in the descriptive list of the property of the decedent.

In the matter before us the Commercial Union annuity contract was acquired during the existence of the community and therefore, it was a community asset subject to the claim by Dorothy Jackson for her interest as the non-employed spouse in the proceeds accruing during the existence of the community. Under the jurisprudence discussed above, her interest was payable immediately after the death of Allen Jackson as that is the date upon which the annuity proceeds became due. Accordingly, the decision of the trial court holding that Dorothy Jackson is only a creditor of the estate is in error and she is entitled to the immediate ownership of the proceeds described above.

V

The fifth issue before us involves the inter-relation of the rights under the various policies as discussed above with the effect of an injunction issued ancillary to the separation proceedings.

In each of the policies discussed above, the named owner, Allen Jackson, had the right to change his beneficiary. The beneficiary had been Dorothy Jackson and was later changed to Elaine Jackson prior to Allen’s death. At the time that Allen changed beneficiaries, there was in effect an injunction restraining and enjoining Allen from “ * * * * disposing of, alienating, mortgaging or encumbering any of the community estate.” A similar injunction was in effect against Dorothy. It is contended that the act of changing beneficiaries was in violation of the injunction and thus is null and void. The trial court held that the injunction was not violated insofar as the proceeds of the term life insurance policies were concerned, not being a community asset, and hence the change of beneficiary was effective. With respect to the change of beneficiary on the annuity contract, the trial court held that the injunction had been violated because the annuity contract was a community asset, and that the change of beneficiary was void, awarding Dorothy Jackson the amount indicated above, and the balance of the proceeds to the estate of Allen Jackson.

Considering first the term life insurance policies, Allen Jackson had the authority in those policies to change the beneficiaries. The proceeds of a term policy acquired during the existence of the community do not constitute a community asset, as discussed above, but instead belong to the validly designated beneficiary. Berry v. Metropolitan Life Insurance Company, supra. Not being a community asset, these proceeds did not come within the scope of the injunction protecting the community estate. Accordingly, the injunction was no bar to Allen Jackson’s policy right to change his beneficiary.

Now turning to a consideration of the annuity contract, we find a much more complex problem. Allen Jackson had a right under the policy to change his beneficiary. However, under our community property law, the jurisprudence is clear that an annuity agreement acquired during the existence of the community is a community asset, thereby entitling both spouses to an interest therein. T. L. James & Company, Inc. v. Montgomery, supra. The other spouse is entitled to share in the proceeds of the annuity contract in accordance with Sims v. Sims, supra. The proceeds of the annuity policy up to the time of dissolution of the community fall into the community estate, and thus within the scope of the injunction. The change in beneficiary is null and void as to that community asset, i.e., the cash value of the policy at the time of the dissolution of the community, $4,177.20.

We have already discussed above the nature of the interest of Dorothy Jackson and fixed her one-half interest at $2088.60. We reiterate that she acquires this not because she was then named beneficiary, but because she acquired ownership as partner in community in accordance with the Sims case. Similarly, it must necessarily follow that Allen Jackson acquired the other half interest as the other partner in community and that this amount, $2,088.60, must be awarded to his estate, his naming of a beneficiary being invalid to that extent.

At the same time, we point out that upon the dissolution of the community, the community does not continue to acquire ownership of the proceeds thereafter but these proceeds become the property of the spouse in whose name the contract is issued. Because these proceeds are not a part of the community estate, they do not come within the scope of the injunction, and we see no bar to the exercise of the policy right to change beneficiaries. To rule otherwise is to either require that the annuitant keep as a beneficiary his former wife (a result not desired by the annuitant, and a result granting her rights far in excess of the principles of Sims v. Sims), or to require that he leave his estate as a beneficiary in derogation of his policy right to afford benefits to someone of his choice.

Accordingly, as to that portion of the proceeds accruing after dissolution of the community, we find no violation of the injunction and we conclude that the trial judge was in error in allotting those proceeds to the estate of Allen Jackson. Instead, we find Elaine Jackson is entitled to an award of $5,107.15 as beneficiary under the policy.

YI

In her answer to the appeal, Elaine Jackson claims that she is entitled to receive her costs associated with the concur-sus proceeding. LSA-C.C.P. Art. 4659 provides:

“When money has been deposited into the registry of the court by the plaintiff,' neither he nor any other party shall be required to pay any of the costs of the proceeding as they accrue, but these shall be deducted from the money on deposit. The court may award the successful claimant judgment for the costs of the, proceeding which have been deducted from the money on deposit, or any portion thereof, against any other claimant who contested his right thereto, as in its judgment may be considered equitable.
“In all other instances, the court may render judgment for costs as it considers equitable.”

In considering this question the trial court assessed the costs of the proceedings against both Elaine and Dorothy Jackson. In doing so the court stated the following reasons:

“***** iphis Court concludes that, in light of the complexity surrounding this matter, neither Dorothy nor Elaine Jackson arbitrarily brought their claims for the proceeds of the said insurance and annuity policies. The fact that this Court has ruled in favor of Elaine in the insurance policy aspects of this matter and in favor of Dorothy in the annuity aspect evinces that equity occasions it to order costs to be borne by each litigant.”

Upon a review of the record we see no reason to disagree with the trial court’s holding or its reasons.

VII

The final issue for our consideration concerns a request by Elaine Jackson and the executor of the estate of Allen Sneed Jackson for damages for frivolous appeal. LSA-C.C.P. Art. 2164 provides that an appellate court may award damages for frivolous appeal. The jurisprudence interpreting this statute indicates that,

“Damages for frivolous appeal are not allowable unless it is obvious that the appeal was taken solely for the purpose of delay or that counsel is not sincere in view of the law which he advocates”

L. Frank & Co. v. Devillier’s Foodliner, 365 So.2d 501 (La.App. 4th Cir. 1978); Tullis v. Aertker, 352 So.2d 415 (La.App. 3rd Cir. 1977).

In the matter before us neither of the appeals by Dorothy and Elaine Jackson were for the purpose of delay or were insincere in view of the applicable law. Therefore the claims for frivolous appeal are denied.

For the reasons assigned, we affirm the judgment appealed from except insofar as it declares ownership of and distributes the proceeds of the Commercial Union Annuity policy, and as to that we amend the judgment to read as follows:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment rendered in favor of Dorothy G. Jackson and against Elaine Mead Jackson and the Estate of Allen Sneed Jackson, recognizing and decreeing Dorothy G. Jackson to be the owner of a one-half community interest in the Commercial Union Annuity proceeds, and thus entitled to the sum of $2,088.60 from the proceeds deposited in court;

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment rendered in favor of the Estate of Allen Sneed Jackson and against Dorothy G. Jackson and Elaine Mead Jackson, recognizing it to be the owner of a one-half community interest in the Commercial Union Annuity proceeds, and thus entitled to the sum of $2,088.60 from the proceeds deposited;

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment rendered in favor of Elaine Mead Jackson and against Dorothy G. Jackson and the Estate of Allen Sneed Jackson recognizing and decreeing Elaine Mead Jackson to be a beneficiary of a portion of the Commercial Union Annuity proceeds, and thus entitled to the sum of $5,107.15 from the proceeds deposited.

As thus amended, the judgment is affirmed, all costs of these appeals to be borne by the respective parties.

AMENDED AND AFFIRMED.

      .
      187.90 x 29 months = $5,449.10 187.90 x 63 months $11,837.70
      Note that the total benefit figure is more than the $9,284.35 deposited in Court.


text:
    Carl HALL v. H. B. ZACHARY COMPANY and Employers National Insurance Co.
    No. 11895.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 13, 1981.

      Lemle, Kelleher, Kohlmeyer & Matthews, Albert H. Hanemann, Jr., Richard K. Rath-bun, New Orleans, for H. B. Zachary Co. and Employers National Insurance Co., defendants-appellants.
    Roger J. Larue, Jr., Metairie, for Carl Hall, plaintiff-appellee.
    Before SAMUEL, REDMANN and BOU-TALL, JJ.
   BOUTALL, Judge.

This appeal arises from a judgment declaring the plaintiff to be totally and permanently disabled thereby entitling him to workman’s compensation benefits for the period of his disability.

On January 27, 1977, plaintiff, Carl Hall, sustained an injury to his back while in the course and scope of his employment as a reinforcement iron worker (rebar) foreman for H. B. Zachary Company. He was treated conservatively and was discharged to return to work. On June 3, 1977 while at home after returning from work, Hall suffered a severe, intense back pain while standing in an attempt to use the telephone, resulting in his immediate hospitalization and subsequent operation for an acute extruded disc. Since that time he suffers from residual disability and pain, which he contends is totally and permanently disabling. Compensation benefits were paid for some time, and then terminated. Hall’s subsequent suit produced a judgment of total and permanent disability, and the employer’s insurer, Employers National Insurance Company, has appealed suspensively.

On appeal the issues before us are: 1.) whether there is a causal relationship between Hall’s employment as a rebar foreman and his second incidence of back injury, and 2.) if this causal relationship exists what is the extent of plaintiff’s disability.

In his resolution of the issue of causation, the trial judge in his reasons for judgment made the following finding:

“The Court finds that the June 3,1977, injury was either an aggravation or reoc-currence of the accident of January 27, 1977 or that it was the result of another trauma which occurred on or about June 1, 1977. In either case, the injury was the result of stresses incurred by plaintiff while at work. The fact that the disc ruptured while Mr. Hall was at home, after work, is of no consequence. See Bolden v. Georgia Casualty & Surety Company, 363 So.2d 419, (La.1978). An accident does not necessarily have to arise out of a single traumatic incident, but can result from many small accidents resulting in an injury. Scanlan v. Bernard Lumber, Inc., 365 So.2d 39, ([La.App.] 4th Cir. 1978). There is a complete absence of proof of any intervening non-work related cause of his injury. See Williams v. Liberty Mutual, 327 So.2d 462, (La.App., 3rd Cir. 1976), and cases cited therein at Page 467. Therefore, this court finds, as a matter of fact and law, that plaintiff’s injury, for which he was treated by Doctor Hamsa, arose out of an ‘accident’ and was sustained in the course and scope of his employment with H. B. Zachary Company.”

We find no manifest error in this resolution. We note, as did the trial judge, that there is a conflict in medical opinion as to the cause of the disability between Dr. Stokes who could find no relationship between the accident of January 27, 1977 and the injury of June 3, 1977, and Dr. Hamsa, the treating physician, who felt that there was a likely relationship. The trial judge accepted the testimony of the treating physician over that of the physician who merely examined the patient on one occasion some two and one-half years post accident. Additionally, we point out that the opinion of Dr. Hamsa is supported by the opinion of Dr. Phillips who examined the patient some two years post accident and by the testimony of plaintiff and his wife that plaintiff had continued to suffer pain off and on from the time of the January accident.

Appellant argues to us that the trial judge erred in finding that the June 3rd injury was the result of another trauma which occurred on or about June 1, 1977. We have quoted from the trial judge’s findings because it is apparent that this was not his primary conclusion. That statement was apparently based upon Dr. Hamsa’s testimony that he recalled, in the emergency atmosphere of the operation, that he had been told that plaintiff had experienced episodes of pain while at work in the days prior to the June 3rd incident. Both Dr. Hamsa and Dr. Phillips explained that it was unusual for a massive herniated disc to occur when a person is simply standing. They felt that such an occurrence must be related to prior incidents which caused a weakening, and under the history given them, the January accident, followed by other episodes of pain, was the most likely cause.

The next issue for consideration is the extent of plaintiff’s disability. As a result of the occurrence of June 3rd, plaintiff was operated on for a massive herniated disc and a laminectomy was performed in that area. As a result of these events plaintiff has suffered permanent partial disability of the body as a whole, rated at 5% by Dr. Stokes, 10% by Dr. Phillips and 20% by Dr. Hamsa. These figures simply relate to all of the activities that a person may engage in, and are not directly related to his ability to do work. All of the doctors agree that a person in plaintiff’s condition could not engage in any occupation which involved frequent or prolonged stooping, bending, or lifting of heavy weights. At the same time, it should be noted that these prohibited activities are those activities which frequently occur in plaintiff’s work field, that is a reinforcement iron worker foreman. A foreman of this type does not simply supervise men, but he is engaged with his men constantly to insure that reinforcement rods, etc. are placed in proper position, and to some degree he does a portion of the same work in assisting his men to do the job in accordance with the plans and specifications.

The decision as to whether this man is partially, permanently disabled or totally permanently disabled is a rather difficult one. After his discharge from treatment by his doctor, plaintiff returned to work as a rebar foreman for other employers from March 18, 1978 through date of trial on January 30, 1980. The trial court found that plaintiff was required to return to work because of economic necessity and was only able to obtain the job through friends and acquaintances, and only able to perform his work with the assistance of fellow workers. The court further found that plaintiff was working in substantial pain such that he is permanently and totally disabled.

We refer to the case of Dusang v. Henry C. Beck Builders, Inc., 389 So.2d 367 (La.1980) which, except for the type of injuries suffered, is based upon a similar factual situation. We accept the facts as found by the trial judge, because, although there is contravailing evidence, we cannot say that he is manifestly erroneous in his findings. All of the doctors testified that with Mr. Hall’s back condition it would be expected that he would suffer pain when he engaged in prolonged or continual stooping, bending, lifting, etc. Both Hall and his wife testified that he suffers pain every day and has had to alter his living habits in order to accommodate the pain. Yet we must recognize the prior decisions of the Supreme Court and we note the remarkably similar factual situation explained in Dusang at page 372:

“[8] In this case, even though we agree with the trial court and the Court of Appeal that Mr. Dusang works in substantial pain, he is not totally disabled. Except for the six weeks following his termination at Beck, Mr. Dusang has worked steadily following his injury. The pain has not been so disabling as to require him to be hospitalized or to miss work. While his coworkers testified that they needed to help him with heavy lifting following the accident, his foreman at Beck testified that he never had to substitute any employee for Mr. Dusang because of his inability to do the work. Mr. Dusang has been able to find work as a welder out of the electrician’s hall, and there is no clear evidence that he will not be able to find work in the future. At the time of trial he was earning more than he earned before his accident; the partial disability status will protect him in the future.”

If the issue before us could be solved basically on the question of substantial pain alone, we would feel compelled to hold, as was held in Dusang, that the disability is only partial. Since the decision in that case, the Supreme Court has adopted the “odd-lot” principal in the case of Oster v. Wetzel Printing, Inc., 390 So.2d 1318 (La.1980). At page 1323 the court stated:

“ * * * Although any one sentence description of the doctrine necessarily tends to oversimplify it, some treatise writers have provided helpful starting points for understanding it as applied by the courts. Professor Johnson observes:
‘Simply stated, this doctrine is that a claimant may be considered totally disabled if, after his injury, he is considered an “odd-lot” in the competitive labor market, i. e., that he may be capable of holding various jobs from time to time, but that the kind of work he may perform is so limited in quality, dependability or quantity that a reasonably stable market for that work does not exist.’ Johnson supra, 39 La. L.Rev. at 889.
In his treatise on workers’ compensation, Larson says that the essence of the odd-lot doctrine, which has been accepted in virtually every jurisdiction, is
‘the probable dependability with which claimant can sell his services in a competitive labor market, undistorted by such factors as business booms, sympathy of a particular employer or friends, temporary good luck, or the super-human efforts of the claimant to rise above his crippling handicaps.’ Larson, supra, § 57.51, pp. 10-109 and 10-119.
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.’ ”

In his reasons for judgment the court related the following facts:

“According to expert testimony, the Dictionary of Occupational Titles, published by the U.S. Department of Labor, part of the physical demands of reinforcing steel foreman (i. e., an iron foreman or an iron working foreman) are that he be able to lift, carry, push and pull maximum weights up to twenty pounds with frequent lifting and carrying of weights up to ten pounds; that he be able to climb and balance; and most importantly, that he be able to stoop, kneel, crouch and crawl. The court finds that these activities are required in plaintiff’s job and have caused him substantial pain. The court also finds that the pain associated with his back injury has substantially hampered his normal daily routine and activities.
“Mr. Hall finished the eighth grade. He has had no other formal training of any type. He has been engaged in iron work, first as an iron workers’ helper, then as a reinforced iron worker, and then as a foreman for over twenty years. The court finds that he certainly cannot return to work as a reinforced iron worker’s helper or as an iron worker, since these require much too much physical activity. The court additionally finds that he has virtually no skills transferable into any type of job that he is physically capable of performing. Consequently, he is effectively precluded from competing in the labor market for any type of jobs that he is mentally capable of performing, because of his physical disability. The court also finds that he is effectively precluded from competing for jobs which he is physically capable of performing, because of the lack of educational or work experience in these fields. Although he might compete for a job as a ticket taker, an elevator operator, or something of that sort, these jobs are not realistically available.”

We cannot say that these findings are manifestly erroneous, and we conclude that they meet the requirements posed under the odd-lot doctrine. Accordingly, we affirm the finding of the trial court that plaintiff is permanently and totally disabled and entitled to workman’s compensation benefits.

The judgment is affirmed.

AFFIRMED.


text:
    Jack CHANEY v. Myrna C. Radetich, Wife of Jack CHANEY.
    No. 11646.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 21, 1981.
    Rehearing Denied Sept. 17, 1981.

      Leroy J. Falgout, Kenner, for plaintiff-appellant.
    Harry R. Cabral, Jr., Metairie, for defendant-appellee.
    Before SAMUEL, GULOTTA and CHE-HARDY, JJ.
   SAMUEL, Judge.

This is an appeal by the former husband from a judgment which dismissed his rule to reduce child support payments and, on the wife’s rule, awarded her $1,673.28, representing medical insurance premiums paid by her from September, 1977 to August, 1979.

The husband’s rule for reduction was based upon the alleged fact that the original award of $100 per week, granted on August 19, 1977, was for the total support of four children, and two of the children have reached the age of majority.

The husband testified he has since remarried and his expenses have increased substantially, although his income of $1,100 per month as a painting contractor has increased only slightly. As a result of a marriage contract entered into with his present wife, they do not have community property. The home he lives in is owned by his present wife and was so owned prior to their marriage. He makes up the difference in monthly living expenses by dipping into savings. He has not made medical insurance payments since 1977 because he contends the $100 per week award included all such expenses.

The former wife testified: Two of the children are still minors, a 17 year old daughter and a 13 year old son. Her expenses have increased since the award was granted. Her housing expenses have increased from $94 per month to $298 per month because she had to take first and second mortgages on the house to buy out her former husband’s interest; her food costs amount to $90-$120 per week; the tuition for her son at a private Catholic high school costs $1,150 per year; and her medical insurance costs $69.72 per month for the entire family (the cost for medical insurance would be the same regardless of the number of children covered). Thus, $100 per week is insufficient for support of the two minor children.

She further testified: The two adult children also live in the house, but they do not contribute to the household expenses because they are paying the cost of their college educations, for upkeep and insurance on automobiles necessary for transportation, and for their clothes. At the time of the original rule she worked part-time, earning $50 per week, but because of her increased expenses she now works full-time and earns $150 per week. Her husband has not reimbursed her for the children’s tuition or medical insurance since August 7, 1977.

In this court, appellant contends: (1) The award for child support should be reduced; (2) the award for past-due insurance premiums is incorrect and improper; and (3) alternatively, the matter has been compromised.

We do not agree with appellant’s first contention. While it is true the support of the minor children is the responsibility of both parents according to the children’s needs and the means of the parents to pay, it is clear the wife is carrying her burden. As the trial court found the $100 per week paid by the father was inadequate for the support of the children, a finding with which we do not disagree, we cannot say he abused his discretion in continuing support at this rate, even though two of the four children had reached majority.

We also do not agree with appellant’s second contention, which is based upon earlier judgments in this case. It is his position that a judgment rendered by the trial court on August 17, 1977 ordered him to pay past due premiums and was silent as to future premiums, and a supplemental judgment rendered on September 16, 1977, which ordered him to pay medical expenses and provided insurance coverage, was found invalid by the appellate court.

These matters were adjudicated by us in an unpublished opinion on December 7,1978 (No. 9588 of our docket) and discussed by us in detail. At the hearing of consolidated rules in the trial court the husband admitted his failure to pay tuition and to provide medical insurance after September 30,1975, and accordingly, the trial court awarded the wife the unpaid premiums made by her and any medical expenses incurred since November, 1975 which would have been covered by insurance had such coverage been provided.

It is immaterial that the August 17 judgment did not specify the husband was to provide medical insurance in the future. That judgment properly was concerned with past due obligations. The earlier judgment in the divorce decree ordering him to provide medical insurance was still in effect, and the wife’s rule, in essence, was only to make past due payments execu-tory.

As to the September 16, 1977 judgment, we found the award for medical expenses invalid because it was based upon cancelled checks and medical expenses attached to an ex parte supplemental judgment. Therefore, we remanded the case for evidence and decision in the trial court according to the following guidelines:

“Mr. Chaney is to pay: (1) all medical expenses incurred prior to May 1, 1976 which would have been covered by the medical insurance he failed to provide or which exceeded $50; and (2) all medical expenses incurred after May 1, 1976 which exceeded $50 and which were not covered by insurance.”

Lastly, plaintiff contends the matter was compromised and therefore he has no further liability. We do not agree with this contention. Following our appellate decision, and prior to remand, the wife proposed in writing that if the husband would pay her $1,732.83 “in full settlement of all claims stemming from the judgment of the Court of Appeals of December 7, 1978” she would forgive any claim for medical expenses for 1974, 1975 and 1976. Shortly thereafter, the husband sent a check for $1,624.83 “representing full settlement of the Judgment of the Court of Appeals No. 9588 regarding the various rules filed by Jack Chaney and his ex-wife Myrna.”

In our view, the “compromise” of the matter by forgiving medical expenses for 1974, 1975 and 1976 did not include the forgiving of future medical insurance or payments therefor, and was concerned only with actual medical expenses already incurred because of the husband’s failure to provide the insurance coverage required of him by the judgment of divorce. That requirement to pay for medical insurance subsequent to 1976 was not included in the settlement or “compromise”.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

      . The husband’s rule, filed May 10, 1979, was followed on July 2, 1979 by a rule by the wife for contempt, for tuition for the children, for an increase in child support, attorney’s fees, accumulated amounts due for medical insurance, and for medical expenses. The judgment dismissed her tuition claims and was silent as to her other claims [except for the insurance premiums]. She has not appealed.

      . He has $400.50 in savings, received $20,000 in connection with the purchase of the community home by his former wife, and doesn’t know if he or she have any saving certificates.

      . Savoie v. Curtis, La.App., 354 So.2d 705; Marcantel v. Marcantel, La.App., 342 So.2d 278; Foster v. Marshall, La.App., 341 So.2d 1354; Burks v. Burks, La.App., 293 So.2d 923.

      . As we noted in our December 7, 1978 unpublished opinion mentioned infra, “the limiting factor in the initial support award was the father’s means, rather than the children’s needs ..."

      . The husband had filed a rule to terminate alimony and child support and the wife filed a rule for tuition and medical insurance payments made by her when the husband failed to provide medical insurance, as ordered in the divorce judgment.

      . Itemized as follows: tuition, $1,002.50; medical insurance premiums, $424.93; interest from April, 1977 through March 1, 1979, $197.90; and court costs, $108.