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

text:
    S. J. MILLER, Plaintiff-Appellee, v. OLINKRAFT, INC., Defendant-Appellant.
    No. 14443.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 16, 1981.
    En Banc. Rehearing Granted Without Argument March 27, 1981.

      Shotwell, Brown & Sperry by Walter C. Dunn, Jr., Monroe, for defendant-appellant.
    Law Offices of John S. C. Massey by David G. Haynes, West Monroe, for plaintiff-appellee.
    Before HALL, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

Plaintiff employee filed suit on February 20, 1979 against defendant employer for workmen’s compensation benefits, penalties and attorney fees, for an occupational injury allegedly occurring in early 1977 or, alternatively, for the aggravation in January 1979 of a pre-existing condition. Defendant denied liability and filed an exception of no cause of action based upon a plea that the claim was barred by two years peremption.

The trial court overruled defendant’s exception of no cause of action and rendered judgment in favor of plaintiff, awarding workmen’s compensation benefits for partial disability resulting from a job related injury occurring in early 1977, but rejected the demand for penalties and attorney fees.

Defendant employer appealed, contending that the trial judge erred in (1) finding that plaintiff had proved the occurrence of an on-the-job accident in 1977 and (2) ruling that the running of the two year prescriptive period was interrupted by defendant’s actions which lulled plaintiff into believing that “he was being taken care of.”

Plaintiff answered the appeal, asserting that the trial judge committed error in not finding that the claimant was totally and permanently disabled.

Plaintiff, age 44, was employed at defendant’s paper manufacturing plant in West Monroe in 1971. His job assignment was that of waste paper baler, which involved the collection of defective paper bags from bag-making machines, baling those bags, and rolling them on dollies back to machines for recycling. Since the bales weighed between 900 and 950 pounds, plaintiff’s duties entailed strenuous physical activity over a period of several years.

Claim of 1977 Job-related Injury

Plaintiff testified that he was working for defendant on a night shift in January 1977 when, picking up waste paper out of a buggy, he felt a pain in his back of such intensity that he was forced to his knees. After the initial pain subsided, plaintiff went to the medical center maintained by defendant for its employees. An attendant put hot towels on plaintiff’s back and followed that with an electric pad. These measures relieved his pain and plaintiff returned to finish his shift. No fellow workers witnessed the incident nor did plaintiff make an accident report to his employer.

When his shift ended plaintiff went home, applied a heating pad to his back, and took some of the pain pills he had received at the medical center. He returned to work the next evening. Plaintiff stated that his back stopped hurting after two or three days but that, a week or so later, his left leg started hurting. Returning to the medical center, he received additional medication for the pain. The attendant advised plaintiff to consult his personal physician. After several visits, that physician, Dr. Ronald Woods, referred plaintiff to Dr. Myron Bailey, an orthopedic surgeon, who saw plaintiff on February 14, 1977. At Dr. Bailey’s recommendation plaintiff was hospitalized at the end of February 1977 and a myelo-gram performed, which revealed that plaintiff was suffering from a protruding lumbar disc. An operation for the removal of this disc was performed by Dr. Bailey on March 31, 1977.

Plaintiff testified that, upon learning of the results of the myelogram, he went to defendant’s personnel office to give notice of his physical condition and inability to work. On March 8, 1977 he completed an application for benefits under a group accident and sickness insurance policy which defendant carried with Prudential Insurance Company, which application contained a statement that the illness was not job related. Plaintiff’s explanation for this action was that he needed immediate financial relief and was informed by defendant’s personnel office worker that defendant’s opposition to paying workmen’s compensation would result in a delay of at least six months before he could receive any funds.

Plaintiff’s testimony concerning his injury while working for defendant in January 1977 was corroborated by the statement of his wife that plaintiff came home complaining about his back injury, describing to her how it had happened.

Dr. Ronald Woods, plaintiff’s family physician, testified by deposition that plaintiff consulted him with reference to his leg pain on January 18, January 22 and February 1, 1977. Dr. Woods prescribed medication to relieve the pain. Since there was no apparent improvement, plaintiff was referred to Dr. Bailey, a specialist.

Dr. Bailey, also testifying by deposition, related that he first saw plaintiff with reference to the complaint of pain in his left leg on February 14, and again on February 24, and February 27, 1977. Although he had been off from work for two weeks, the pain was continuing. For that reason a myelogram was deemed advisable. That test revealed a protruding 4th lumbar disc with some nerve root encroachment on the 5th lumbar disc. Dr. Bailey suggested that plaintiff remain off from work for several additional weeks. When the leg pain was not alleviated by bed rest and conservative treatment, surgery for removal of the problem disc was performed on March 31, 1977 and plaintiff was discharged from the hospital on April 6, 1977. He was not able to return to work with defendant until May 2, 1978.

Dr. Bailey conceded that plaintiff was unable to relate to him a specific precipitating cause of his ailment but did state that his work required considerable lifting and stooping. It was Dr. Bailey’s opinion that the abnormal disc “may very well and probably was due to trauma.”

La.R.S. 23:1031 provides that workmen’s compensation benefits are due employees who receive “personal injury by accident arising out of and in the course of his employment.” (emphasis added).

Although the statutory definition of “accident” is rather restrictive, our jurisprudence has given an extremely broad interpretation to the word, holding that strain or exertion can supply the necessary violence. Dortch v. Louisiana Central Lumber Co., 30 So.2d 792 (La.App. 2d Cir. 1947). Furthermore, “when the performance of the usual and customary duties of a workman causes or contribute to a physical breakdown, the statutory requirements for an accidental injury are present.” Ferguson v. HDE, Inc., 270 So.2d 867 (La.1972).

In this case the trial judge apparently accepted plaintiff’s testimony relating the onset of pain in his back while on the job in January 1977 and concerning his immediate visit to the medical center. It is undisputed that the claimant had been engaged in strenuous labor for several years prior to that time and that he was disabled by a protruding disc in 1977. Plaintiff’s wife told of his immediate report to her of the January 1977 back injury. There is also the fact that plaintiff consulted his family physician within a relatively short time after the occurrence. Therefore, there was ample evidence that the performance by plaintiff of his usual and customary duties either caused or contributed to the disc problem. This falls within the purview of “accident” as construed by our jurisprudence.

The thrust of defendant’s argument on this issue is that plaintiff impeached himself by reciting in his application for accident and sickness insurance that his illness was not job related. Although the trial judge did not specifically address this issue in his written opinion, we assume that he accepted the claimant’s explanation for his statement in the insurance application. The assessment of witness credibility is an important trial court function. We cannot say that the trial judge was wrong in his evaluation of the testimony in this case, nor did he manifestly err in concluding that plaintiff discharged his burden of proving an occupational accident in early 1977.

Applicability of Two Year Period of Prescription

La.R.S. 23:1209 provides generally that claims for workmen’s compensation benefits prescribed after the lapse of one year from the date of the accident, specifies certain exceptions, and then adds:

“. .. but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.”

Defendant argues that the alleged accident causing plaintiff’s back condition must have occurred prior to his visit to Dr. Woods on January 18, 1977. Since this suit was not filed until February 20, 1979, running of the two year prescriptive period barred plaintiff’s claim for benefits.

The trial judge found that plaintiff’s occupational accident occurred more than two years before this suit was filed. However, in overruling defendant’s exception based upon the plea of prescription, the trial judge stated that plaintiff was led by defendant to believe that he was “being taken care of” because of the disability payments received by plaintiff under defendant’s group accident and sickness policy with Prudential.

In the case of Landry v. Ferguson, 279 So.2d 185 (La.1973), the Louisiana Supreme Court held:

“An employer who lulls an injured employee into a false sense of security by promising to ‘take care’ of him cannot later interpose a plea of prescription to the plaintiff’s untimely suit for workmen’s compensation benefits. . . . ”

For this exception to defeat the plea of prescription, the claimant “must establish that words, actions or inaction on the part of the employer or insurer induced him to withhold suit until the time for prescription had passed.” Malone & Johnson, Workers' Compensation, Sec. 384, in 13 La.Civ.L. Treatise 261 (2d Ed.1980).

The court in Drane v. City of New Orleans, 328 So.2d 752 (La.App. 4th Cir. 1976), pointed out:

“A statement by the employer’s representative that the employee has no valid claim is entirely different from one that the employee will be taken care of [as in Landry v. Ferguson, La., 279 So.2d 185 (1973)], or one that compensation will be paid without suit. The latter statements to the employee indicate that the employer has recognized the claim, and an employee alleging late filing on account of such statements would assert a cause of action to estop the employer from pleading prescription.
“However, a statement by an employer’s representative that the employee has no valid claim is the equivalent of the employer’s denial of the claim. Such a statement would serve to notify the employee that he cannot rely on receiving compensation without suit and that he must seek legal advice or pursue his claim otherwise than through amicable settlement with the employer.”

On this point, plaintiff testified that, upon his visit to defendant’s personnel office in March 1977, he told the office worker that he had no money to pay bills and wanted to draw workmen’s compensation. He asserted that he was informed that “if I signed up for workmen’s compensation, Olin would fight it, and it would probably take six months from the lawsuit to get anything.” However, it was allegedly pointed out to him that he could start drawing disability benefits under the Prudential policy immediately. Therefore, because of his financial plight he chose the latter. Plaintiff conceded that, at the time, he understood the difference between the two types of benefits, i. e., workmen’s compensation benefits and accident and sickness insurance.

Although defendant’s personnel office worker denied making this statement to plaintiff, the trial judge obviously accepted plaintiff’s testimony as the more credible. Even so, we do not find that these words induced plaintiff to withhold suit for compensation benefits until the two year prescriptive period had elapsed. On the contrary, plaintiff was placed on notice that defendant would resist a claim for workmen’s compensation. Rather than lulling plaintiff into a false sense of security, this should have alerted him to the necessity of consulting an attorney for the purpose of taking legal action. Consequently, we conclude that the trial judge erred in overruling defendant’s exception of no cause of action; that the plea of prescription was valid and should have been sustained to bar the claim for workmen’s compensation based upon the 1977 accident.

Alternative Claim of Aggravation of Preexisting Condition in 1979

After his disc operation in March 1977, plaintiff remained under the care of Dr. Bailey until his discharge to return to work on May 2, 1978. Although at that time plaintiff still complained of recurrent leg pain, Dr. Bailey could find no objective basis for the complaint and recommended that plaintiff attempt to return to his former duties.

Plaintiff reported back to defendant for work, presenting the note from Dr. Bailey discharging him from medical treatment. He resumed his former duties on May 3, 1978 and continued his work as a waste baler until the latter part of January 1979 when his job was changed to that of a baler, which involved lifting bales of paper bags and placing them on pallets. Plaintiff testified that after working one night on this new job, his back and left leg started hurting him. As a result he was compelled to remain in bed for two days before returning to work. He worked two more nights and then, because of continuing pain, returned to Dr. Bailey for examination and treatment. Dr. Bailey saw plaintiff on February 2, 1979 and, on the basis of that examination gave plaintiff a note with instructions to defendant that plaintiff’s work should be restricted to light duties. Defendant’s response was that it had no light work for its employees. Therefore, plaintiff did not return to his employment with defendant after February 2, 1979, nor has he worked for anyone else, contending that he is unable to do any work involving lifting or stooping.

Dr. Bailey confirmed that he last examined plaintiff on February 2, 1979 and recommended that he perform light work only. Asked if heavy lifting and stooping could have aggravated plaintiff’s condition to the extent that he was unable to continue his work, Dr. Bailey replied in the affirmative.

Mrs. Miller corroborated her husband’s testimony that after working one shift on the new job plaintiff had to remain in bed two days because of his apparent pain and discomfort.

• It is well established that workmen’s compensation is payable when an occupational accident aggravates or accelerates a pre-existing condition and produces disability. Chism v. Kaiser Aluminum & Chemical Corporation, 332 So.2d 784 (La.1976); Johnson v. Travelers Ins. Co., 284 So.2d 888 (La.1973); Duncan v. R. J. Reynolds, Inc., 305 So.2d 707 (La.App. 4th Cir. 1974).

In the Chism case the doctor’s testimony was that plaintiff’s condition, though aggravated by his work over a period of time, was not caused by any specific incident. Addressing this issue, the court commented:

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

The claimant in Scanlan v. Bernard Lumber Co. Inc., 365 So.2d 39 (La.App. 4th Cir. 1978) underwent a laminectomy in 1974 and resumed his employment with the defendant as a superintendent in 1975. On May 1, 1976, because of a strike, plaintiff had to help run the mill by engaging in heavy manual labor. After several days of this labor he began to suffer from back pain which increased in severity until he was compelled to quit work on June 16, 1976. Noting that there was no evidence of a single traumatic event which precipitated the claimant’s condition, the court found that under our liberal interpretation of “accident” the plaintiff had sustained a series of minor accidents which cumulatively produced his disability injury.

In Hayes v. TAC Amusement Co., Inc., 349 So.2d 340 (La.App. 4th Cir. 1977), the defendant argued that the claimant’s knee condition was due to an accident in 1970 rather than a 1971 accident. Rejecting this contention the court stated:

“. . . plaintiff testified that he resumed all of his duties about three months after the first accident and continued with them until the second accident. This un-contradicted testimony provided a sufficient basis for the trial judge to conclude that plaintiff’s knee condition was at least aggravated by the second accident, and that his disability was the result of this aggravation entitling him to compensation.”

In our case the trial judge made no finding of fact on this question because of his determination that plaintiff was due workmen’s compensation benefits based on the 1977 accident. Consequently, we must decide, upon the basis of our examination of the record, whether the claimant has discharged his burden of proving the alleged 1979 aggravation of a pre-existing back condition by a preponderance of the evidence.

We find it significant that, after returning to work for defendant in May 1978, plaintiff was apparently able for a period of some nine months to perform the strenuous work involved in his job as a waste baler to defendant’s satisfaction. Plaintiff did not experience a recurrence of his former disabling pain until his job was changed to that of a baler which, although perhaps no more strenuous than his former work, undoubtedly involved considerable heavy lifting.

In its argument defendant emphasizes that plaintiff denied having suffered an “accident” after returning to work in May 1978. However, in his testimony plaintiff stated that he defined an “accident” as a single, traumatic event, as generally understood by the average layman who is not familiar with the liberal construction of this word under our Workmen’s Compensation jurisprudence. The facts giving rise to disability, and not the conclusion of the employee, determine whether an accident within the meaning of workmen’s compensation law has occurred.

The unrefuted evidence is that, because of activities involved in the performance of his new duties, plaintiff’s back began to hurt so intensely that he had to spend two days in bed. Further, for the first time since returning to his employment, plaintiff again visited Dr. Bailey for treatment.

Consequently, upon the basis of the record, we find that in January 1979, because of strenuous work connected with his employment, plaintiff suffered either an “accident” or a series of minor “accidents” which caused an aggravation of his previous back condition, producing disability. Therefore, he is entitled to workmen’s compensation benefits.

Extent of Disability

The trial judge determined that plaintiff was partially disabled rather than permanently totally disabled. The record shows that this conclusion was not clearly erroneous. However, under La.R.S. 23:1221(3), for injuries occurring after September 1, 1977, benefits are payable for a maximum period of 450 weeks. Therefore, the judgment will be amended to change the maximum period for payment of benefits from 425 weeks to 450 weeks.

Penalties and Attorney Fees

We agree with the trial judge’s determination that defendant’s refusal to pay workmen’s compensation benefits to plaintiff was not arbitrary or capricious. Therefore, plaintiff is not entitled to recover penalties and attorney fees.

Conclusion

For the reasons set forth, the second paragraph of the judgment of the trial court is amended and recast to read as follows:

IT IS ORDERED, ADJUDGED AND DECREED that S. J. Miller is partially permanently disabled and entitled to workmen’s compensation benefits, and that accordingly there should be judgment herein in favor of S. J. Miller and against Olin-kraft, Inc. for workmen’s compensation benefits payable beginning February 2, 1979, on a weekly basis computed as follows: Sixty-six and two-thirds per centum (66%%) of the difference between .the wages S. J. Miller was earning as of February 2, 1979, and any lesser wages which S. J. Miller actually has earned in any week or does earn in any future week, in any gainful occupation for wages, whether or not the same or a similar occupation as that in which S. J. Miller was customarily engaged when injured and whether or not an occupation for which S. J. Miller at the time of the injury was particularly fitted by reason of education, training and experience during the period of disability, but not more than a maximum of Ninety-five Dollars ($95.00) per week, together with seven percent (7%) per annum judicial interest on each past due installment from its due date until paid, and not beyond a maximum of four hundred fifty (450) weeks, provided that for any week during which S. J. Miller is paid any compensation Olinkraft, Inc. shall be entitled to a reduction of one full week of compensation against the maximum number of weeks for which compensation is payable under this judgment and for any week during which S. J. Miller is paid no compensation because of S. J. Miller’s actual earnings during that week, Olin-kraft, Inc. shall not be entitled to a reduction for that week against the maximum number of weeks for which compensation is payable under this judgment and in no event shall the total number of weeks of compensation payable under this judgment be increased beyond four hundred fifty (450) weeks.

As amended, the judgment is affirmed at appellant’s cost.

Before PRICE, HALL, MARVIN, JASPER E. JONES and FRED W. JONES, Jr., JJ.

ON REHEARING

PER CURIAM.

We granted a rehearing in this case solely to correct an error, called to our attention by plaintiff-applicant, in that portion of our opinion and judgment which stipulated that plaintiff’s maximum weekly workmen’s compensation benefits were $95.00. This figure applied to injuries occurring on or after September 1, 1976 and on or before August 31, 1977. However, we determined in this ease that the compensable injury occurred in January, 1979.

La.R.S. 23:1202(1) provides in pertinent part:

“... For injuries occurring ori or after September 1, 1977, the maximum weekly compensation to be paid under this Chapter shall be sixty-six and two-thirds per centum of the average weekly wage paid in all employment subject to the Louisiana Employment Security Law and the minimum compensation shall be not less than twenty per centum of such wage, said maximum and minimum to be computed to the nearest multiple of one dollar. ...
“For the purposes of this Chapter the average weekly wage in all employment subject to the Louisiana Employment Security Law shall be determined by the administrator of the division of employment security on or before August 1 each year as of the quarter ending on the immediately preceding March 31 of each year. The average weekly wage so determined shall be applicable for the full period during which compensation is payable when the date of occurrence of injury falls within the twelve month period commencing September 1 following the determination.”

The average weekly wage for employment subject to the Louisiana Employment Security Law in January 1979, as determined by the administrator of the Louisiana Division of Employment Security, was $210.88. Two-thirds of this figure, rounded to the nearest multiple of one dollar, is $141.00. Therefore, the maximum weekly workmen’s compensation benefit due plaintiff is $141.00 rather than $95.00.

For these reasons, we amend our original opinion and judgment in this case to change from $95.00 to $141.00 the maximum weekly workmen’s compensation benefits to which plaintiff is entitled. In all other respects the original opinion and judgment are reinstated.

      . As pointed out in Lester v. Rebel Crane & Service Co., et al, 393 So.2d 674 on the docket of the Supreme Court of Louisiana, rendered January 26, 1981, characterization of this two year period as peremptive is “an incorrect jurisprudential overlay on a statute with the title of ‘Prescription’.”

      . La.R.S. 23:1021(1) defines “accident” as “an unexpected or unforeseen event happening suddenly or violently, with or without human fault and producing at the time objective symptoms of an injury.”

      . After plaintiff filed this workmen’s compensation suit, Prudential Insurance Company instituted proceedings against him to recover $7,633.13 paid under its group accident and sickness policy. The two suits were consolidated for trial purposes. Subsequently, Prudential filed a motion for summary judgment which was sustained. Upon appeal we affirmed. See our docket No. 14,214, The Prudential Ins. Co. of America v. S. J. Miller, 388 So.2d 449 (La.App. 1980).


source: Caselaw Access Project

author: PRICE, Judge.

license: Public Domain

text:
    Jimmie David MORRISON, Plaintiff-Appellant, v. Sharon Freeman MORRISON, Defendant-Appellee. Sharon Freeman MORRISON, Plaintiff-Appellee, v. Jimmie David MORRISON, Defendant-Appellant.
    Nos. 14446, 14447.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 16, 1981.

      Guerriero & Anzalone by Joseph D. Guer-riero, Monroe, for plaintiff, defendant/appellant.
    Robert W. Levy, Ruston, for defendant, plaintiff/appellee.
    Before PRICE, MARVIN and FRED W. JONES, Jr., JJ.
   PRICE, Judge.

Appellant, Jimmie David Morrison, seeks reversal of a trial court judgment granting his wife, Sharon Freeman Morrison, a separation from bed and board based on appellant’s cruel treatment. Appellant contends that the trial court erred by failing to find the parties mutually at fault and awarding Mrs. Morrison custody of the two children of the marriage. We affirm.

Appellant and Mrs. Morrison sued each other for separation based on cruel treatment. The two cases were consolidated for purposes of trial. Appellant’s allegations of mental cruelty are based on certain apparently unfounded accusations made by Mrs. Morrison which were induced by her mental illness. Mrs. Morrison’s allegations of cruelty are primarily based on an episode occurring May 8, 1980, in which the couple engaged in an argument which culminated in the appellant tearing Mrs. Morrison’s clothes off and physically ejecting her from the house when she threatened to leave with the children.

Appellant contends that the trial court erred in two respects: (1) in finding that his wife was free from fault and (2) in giving preference to her in the custody determination despite her mental instability and a paucity of evidence concerning the home environment of Mrs. Morrison and the children.

The record discloses that Mrs. Morrison had a history of mental illness diagnosed as a type of paranoid psychosis. This disorder induced her beliefs that appellant and his family intended harm to her and her children. Mrs. Morrison had undergone psychological and psychiatric counseling and was at all times pertinent to this case taking prescription medication to control her feelings of anxiety. Appellant contends that his wife’s constant unfounded and bizarre accusations had a cumulative effect and constituted mental cruelty.

The trial judge concluded that under the circumstances the wife’s conduct was not sufficient to constitute an independent ground for separation which is a legal prerequisite for a finding of mutual fault. See e. g., Douglas v. Douglas, 385 So.2d 402 (La.App. 1st Cir. 1980), writ refused 386 So.2d 358 (La.1980). We agree with this finding. Under the circumstances, the actions of Mrs. Morrison, which may have constituted cruelty otherwise, are excused due to her mental condition. See Courville v. Courville, 363 So.2d 954 (La.App.3d Cir. 1978), writ refused 365 So.2d 243 (La.1978).

Appellant contends that the trial court committed manifest error in awarding Mrs. Morrison custody of the two children despite the medical history which evidenced her mental instability.

The record shows that Mrs. Morrison’s mental problems dated back approximately three years to the birth of her youngest child. She had experienced some paranoid delusions which led her to believe that her husband and his family were capable of and had an in fact committed various unusual and outlandish acts.

The trial court apparently placed great reliance on the testimony of the medical experts who had examined and treated Mrs. Morrison. Their consensus opinion was that Mrs. Morrison was capable of performing her duties as a mother. The prognosis was continued improvement as her illness was in remission. This expert testimony showed that the paranoid feelings of Mrs. Morrison were narrowly circumscribed to appellant and his family and did not affect her functioning in other areas.

Another factor considered by the trial judge was the fact that Mrs. Morrison had exercised the primary caretaking responsibilities for the children, since their birth. Since the parties factually separated, Mrs. Morrison and the children have resided next to Mrs. Morrison’s mother, a registered nurse available to assist in raising the children. Mrs. Morrison does not work and can be with the children on a full-time basis, whereas appellant works five days a week and would have to utilize the services of a babysitter.

That the trial judge, diligently applied the applicable law in this custody determination is evidenced by his statement that “the best interest of the children is what’s to be considered.” See Bordelon v. Bordelon, 390 So.2d 1325 (La.1980). The trial court’s written opinion shows that all the factors taken into consideration were examined in the light of the best interest of the children. The fact that some of these factors were once the basis for the “maternal preference” rule does not mean that consideration of such factors isn’t still necessary in order to fully evaluate the best interest of the children. See Lingenfelter v. Lingenfelter, 384 So.2d 523 (La.App.2d Cir. 1980).

Under the circumstances presented and in view of the great weight to be accorded the trial court’s determination in custody matters, we find no abuse of discretion.

The judgment appealed is affirmed at appellant’s costs.


text:
    Lee Roy COSBY, Plaintiff-Appellant, v. Thomas M. LOCKWOOD, Administrator of the Dept. of Employment Security, State of Louisiana and Internal Revenue Service Data, Defendants-Appellees.
    No. 14448.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 16, 1981.
    Tucker, Martin, Holder, Jeter & Jackson by Jeffrey P. Victory, Shreveport, for plaintiff-appellant.
    James A. McGraw, Baton Rouge, for defendants-appellees.

      Before PRICE, MARVIN and FRED W. JONES, Jr., JJ.
   PRICE, Judge.

Lee Roy Cosby appeals from a judgment affirming his disqualification for unemployment insurance benefits upon a finding that his decision to retire from the Internal Revenue Service does not constitute good cause for leaving one’s employment as required by La.R.S. 23:1601(1). We affirm.

In February 1979 appellant voluntarily retired from his job as an agent of the IRS at the age of 56 years and after working there for over 30 years. The reason appellant assigned for taking early retirement was because of job pressure and “the uncertainty of the future of the retirement system for those employed by the U.S. Government.” His application for unemployment compensation benefits was rejected. The appeals referee made a finding of fact that the “claimant voluntarily retired from his employment because of pressures of his job. His leaving was not recommended by a doctor and his decision was based on his own option.” The referee concluded that Cosby left his employment under disqualifying circumstances and that the determination issued by the agency was correct. This ruling was affirmed upon appeal to the district court.

The scope of judicial review is set forth in R.S. 23:1634 stating in part:

... In any proceeding under this Section the findings of the board of review as to the facts, if supported by sufficient evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law.. ..

The issue on this appeal is whether voluntary retirement because of job pressures constitute “good cause” for leaving one’s employment.

Appellant contends that his retirement from the IRS, although “voluntary” was due solely to extreme job pressures, and therefore was for good cause connected with his employment. The nature of the pressure described by Cosby allegedly began in 1977 after the Civil Service Reform Act was passed, providing that a manager of an IRS unit was to be evaluated upon the productivity of the unit he managed. Cosby contends that he “was scorned for not sacrificing quality” of work for expediency. He claims he became concerned that this procedure would lead to an inadvertent omission of vital information on a tax return that would leave him liable for punishment under the Internal Revenue Code. He alleges the pressure was making him nervous and began affecting his health.

We find there is sufficient evidence in the record to support the decision appealed. We note, as did the appeals referee, that although appellant claimed that the pressure of his job was affecting his health, he never sought treatment from a medical doctor and therefore his retirement was not recommended by a physician.

For the foregoing reasons the judgment of the district court is affirmed at appellant’s cost.


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

text:
    State of Louisiana, Plaintiff-Appellee, in the INTEREST OF John Alvin THOMAS, Defendant-Appellant.
    No. 14449.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 16, 1981.
    Writ Refused April 27, 1981.

      Norris & Placke by Allan L. Placke, West Monroe, for defendant-appellant.
    Johnny C. Parkerson, Dist. Atty., Lavalle B. Salomon, Asst. Dist. Atty., Monroe, for plaintiff-appellee.
    Before HALL, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

By petition filed in the Fourth Judicial District Court, sitting as Juvenile Court for Ouachita Parish, John Alvin Thomas was charged with committing forcible rape upon Douglas Evans on March 18, 1980 in violation of La.R.S. 14:43.1. Counsel appointed to represent the juvenile filed a motion for discovery, to which the State responded, and a motion for a preliminary examination. After the preliminary examination the court concluded that reasonable grounds existed for the continued detention of Thomas.

At the conclusion of an adjudicatory hearing, Thomas, age 15, was adjudicated a delinquent child “in that he did commit Forcible Rape in violation of R.S. 14:43.1.” Subsequently, a disposition hearing was held and Thomas was committed to the Louisiana Department of Corrections for a period not to exceed six years or his 21st birthday, with the sentence to run consecutive to any and all prior commitments.

The juvenile has appealed, contending that the trial court judgment should be reversed because (1) the codal article cited in the petition and the judgment defines sexual battery rather than forcible rape and (2) the evidence presented at the trial was insufficient to prove beyond a reasonable doubt that he committed the offense of forcible rape.

As the appellant correctly points out, as of the date of the offense charged in this case La.R.S. 14:43.1 defined the crime of sexual battery. Rather than presenting this issue to the trial court, appellant has raised it for the first time on appeal.

Article 48 of the Louisiana Code of Juvenile Procedure requires that the petition filed in a case of this nature cite the statute alleged to have been violated if an offense is the basis for filing the petition. However, Section B of this article stipulates that any defect in the citation of the statute shall be considered a defect of form.

In the case of State in the Interest of Charles Jordan, 348 So.2d 697 (La.App. 1st Cir. 1977), the appellant claimed that the petition was fatally defective because it failed to properly charge the crime of attempted murder. Rejecting this argument, the court commented:

“Assuming counsel’s claim of defectiveness of the charge to be well founded, such circumstances is a matter of no moment under the procedural posture of this case. This matter was fully tried on its merits without objection by counsel as to the sufficiency of the charge. It conclusively appears that counsel understood the charge was attempted murder and conducted his cross-examination of the State’s witnesses on this basis. Where an accused goes to trial on a defective information or indictment (in this juvenile proceeding a petition), and a full and fair trial on the merits is held without any surprises or prejudices to the accused, such defect may not be initially asserted on appeal.”

In this case there is no contention that counsel for the juvenile was under the impression that his client was charged with sexual battery rather than forcible rape, or that any confusion existed on this point. Furthermore, appellant does not argue that, because of the incorrect citation, he was not prepared to go to trial on the charge of forcible rape. Therefore, it was not shown that the State’s mistake in citing the incorrect codal article in connection with the charge of forcible rape resulted in any prejudice to the juvenile. Since the error was harmless, it does not constitute a ground for reversal of the trial court’s judgment.

The offense of forcible rape is defined by La.R.S. 14:42.1 as a rape committed:

“... where the anal or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.”

Article 73 of the Louisiana Code of Juvenile Procedure provides:

“If the petition requests that the child be adjudicated a delinquent, the State shall prove beyond a reasonable doubt that the child committed a delinquent act alleged in the petition.”

In juvenile proceedings the scope of review of this court extends to both law and fact. Article 5, Section 10, Louisiana Constitution of 1974; State in Interest of Batiste, 367 So.2d 784 (La.1979). Therefore, in considering appellant’s contention that the State did not prove his guilt beyond a reasonable doubt, our mandate is to examine the record to determine whether the trial judge was clearly wrong in his finding that the State had discharged this burden.

The record shows that on the date of the alleged offense both Thomas and Evans, age 15, were inmates of Louisiana Training Institute (LTI) in Monroe and were residents of the same cottage.

Evans testified that on the evening of the day in question he went downstairs to the first floor of his cottage to use the communal bathroom, clothed in a pair of shorts, T-shirt and bathrobe. While he was at the urinal Roosevelt King, Eugene Jones and Thomas entered the bathroom. Someone turned out the lights and grabbed Evans, pulling down his shorts. Evans stated that Thomas then proceeded to force him to have anal intercourse while Jones and King held him. He further asserted that he had told the three to leave him alone, but they refused and he could not get away because Thomas was holding him around his ribs. Evans said that he began crying during the act because Thomas was hurting him. Asked if he was frightened during the incident, Evans replied in the affirmative, explaining that “down at LTI, if you jump on one you have got to fight five or six more. You can’t fight but one at a time.”

According to Evans, Thomas and his friends fled the bathroom when someone shouted: “Here comes the man, you all bust it now.” Evans immediately informed Andrews, an employee of LTI, of the incident, and was taken to the emergency room at E. A. Conway Memorial Hospital for an examination on the rape complaint. The medical report, received in evidence in lieu of the examining physician’s testimony, recited that there were no scratches on the victim’s body and that a rectal swab for sperm was negative.

Keith Coleman, another LTI inmate, testified that he was present in the bathroom during the incident in question. He stated that Evans was followed into the bathroom by Jones who asked if they were “still going to have sex.” Thomas and King then entered and joined Jones in talking to Evans about “having sex.” Thomas proceeded to pull down Evans’ shorts, Evans pulled them back up and then let them drop. According to Coleman, Evans first refused to “have sex”, but then “went on and did it.” Coleman said that Thomas had anal intercourse with Evans. When Evans started crying, Coleman left the bathroom.

Thomas denied having anal intercourse with Evans, but admitted that he was in the bathroom during the time in question and saw Jones talking to Evans. He could not hear what they were discussing. He said that someone turned out the lights while this was happening.

In giving his reasons for the adjudication of delinquency, the trial judge stated:

“The court is convinced beyond a reasonable doubt that a sexual act occurred in the bathroom that night and beyond a reasonable doubt that John Thomas was the perpetrator of the act. The Court also is convinced beyond a reasonable doubt and believes as a matter of interpretation of law that the force or the threats or duress which the law requires for forcible rape does not necessarily have to be physical force or injury and certainly the circumstances with which the victim was confronted at that time constitute force.”

This determination by the trial judge involved a weighing of the credibility of the witnesses. Obviously he believed Evans and Coleman on the question of whether Thomas had anal intercourse with Evans, and disbelieved Thomas. On the critical issue of whether the intercourse was had without the lawful consent of the victim, the trial judge accepted Evans’ testimony.

In State v. LeBlanc, 213 La. 404, 34 So.2d 905 (1948) the Louisiana Supreme Court commented:

“In determining whether the guilt of a defendant in any case which is appealable to us from the juvenile court has been established, we have only the record as made up in the lower court and are deprived of the benefit of seeing the witnesses and observing their conduct and demeanor while testifying either for the State or for the defense, and of observing the manner in which they give their testimony. The trial judge sees, hears, and observes all this, and therefore is in a better position to determine the credibility of the witnesses and the weight to be given their testimony — all of which is denied us on appeal.
“For these reasons, when the oral testimony is conflicting, we must give weight to the trial judge’s findings on questions of fact and to his determination of the credibility of the witnesses and the weight to be given their testimony.”

Also see State In the Interest of Givens, 350 So.2d 295, 298 (La.App. 3rd Cir. 1977).

Here the victim was using the bathroom in his cottage when three of his fellow inmates, two of whom were larger than he, confronted him with a demand to “have sex.” In considering the victim’s perception of the futility of resistance, proper weight must be given to the fact of this institutional setting. It was not an instance in which the youth accosted could flee home to his parents. Conversely, Evans faced the prospect of having to continue associating with his accosters on a daily basis. He related that he had experienced prior problems with Thomas and Jones, who would come up behind him in the cottage dayroom and strike him on the back of the head.

On its surface the testimony of Coleman, the State’s witness, appeared to contradict that of Evans on the issue of consent. Coleman noted that Evans “did not fight or nothing” and “could have easily gotten away from Thomas.” However, Coleman did state that Evans initially refused to “have sex” with the three accosters; that while Thomas was performing the act “King and Jones were over there by Doug”; and that Evans started crying. In essence, Coleman was saying that, after first refusing, Evans appeared to assent to the act of intercourse. Whether this consent was lawful is, of course, beyond the purview of Coleman’s competence since he could not be expected to accurately evaluate the reasonableness of Evans’ perception of the danger of resisting.

If Thomas held Evans in order to have anal intercourse with him, as the vie-tim testified and as the trial judge chose to believe, this constituted the use of force as set forth in the codal article defining the offense of forcible rape. The presence of Thomas’ two friends, in close proximity, amounted, at least implicitly, to a threat of violence if the victim resisted.

After carefully reviewing this record, and according appropriate weight to the trial judge’s evaluation of the witnesses’ credibility, we do not find that the trial judge was clearly wrong in his determination that the State proved Thomas guilty beyond a reasonable doubt of the offense of forcible rape.

For these reasons, the judgment of the trial court is affirmed.

      . On the date of the alleged offense this article defined the crime of sexual battery, not forcible rape.

      . Prior to the passage of Act 239 of 1978, this article did in fact define the offense of forcible rape.


text:
    Elizabeth BUSH et al., Plaintiffs-Appellants, v. STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, Defendant-Appellee. Cora MOCK et al., Plaintiffs-Appellants, v. STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, Defendant-Appellee. Claude DRODDY et ux., Plaintiffs-Appellants, v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT et al., Defendants-Appellees.
    Nos. 14455 to 14457.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 16, 1981.
    Writs Refused April 27, 1981.

      Broussard, Bolton & Halcomb by Daniel E. Broussard, Jr., Alexandria, for plaintiffs-appellants, No. 14455.
    Craven & Scott by John W. Scott, Alexandria, for plaintiffs-appellants, No. 14456.
    D. G. Brunson, Jonesboro, for plaintiffs-appellants, No. 14457.
    Philip K. Jones, Marshall W. Wroten, Robert J. Jones and Doran & Kivett by William J. Doran, Jr., Baton Rouge, for defendants-appellees.
    Before PRICE, HALL and MARVIN, JJ.
   PRICE, Judge.

These are consolidated tort suits in which the primary issue presented on appeal by appellants is whether the defendant-appel-lee, Department of Transportation and Development, Office of Highways of the State of Louisiana, was guilty of fault which was a legal cause of the automobile accident resulting in the deaths of David Bush and Lloyd Mock and injuries to Mrs. Dolline Droddy. Secondary issues include the negligence of David Bush and the amount of damages awarded to Mrs. Droddy.

The accident occurred on U. S. Highway 167 in Winn Parish, Louisiana, approximately 3.4 miles north of Dodson on March 24, 1976, at approximately 12:45 p. m. A steady rain had fallen all day and it was raining at the time of the accident with some water accumulation on the road surface. Mrs. Droddy was driving north in the direction of her home in Wyatt on a return trip from Winnfield. Approaching Mrs. Droddy in the southbound lane was a 1972 Buick being driven by David Bush. The Bush vehicle suddenly spun to its left across the center line, striking the car driven by Mrs. Droddy. This collision resulted in the deaths of Bush and Mock, a passenger in the Bush vehicle, as well as the severe injuries sustained by Mrs. Droddy.

Mrs. Droddy, joined by her husband, brought suit against the estate of David Bush (who was uninsured) and the State of Louisiana through the Department of Transportation and Development, Office of Highways. (An original defendant, State Farm Mutual Automobile Insurance Company, was dismissed from the action.) The petition charged the highway department with negligence in failing to adequately maintain and repair the site in question which resulted in the formation of depressions and ruts in the highway which filled with water during a rain. The Droddys contend that these failures to maintain and repair resulted in a dangerous and defective condition which caused the injuries of which they complain. The Droddys’ petition alternatively alleged that their damages were caused by the combined negligence of the highway department and David Bush. The alleged negligence of Bush consisted of failing to maintain control, crossing the center line, operating his car in an unsafe manner under the circumstances, and failing to see what he should have seen or drive as he should have driven.

The highway department answered the petition denying any negligence and claiming that the accident was caused solely by the negligence of Bush and Mrs. Droddy. The department filed a third party petition against the estate of Bush for contribution in the event it- was cast for damages.

In a separate action Elizabeth Bush (widow of David Bush), appearing individually and as natural tutrix of seven minor children of the marriage between herself and decedent, joining with three other children of the marriage, brought suit against the highway department for the wrongful death of Bush allegedly caused by the negligence of the department. The department denied any negligence and alternatively contended that Bush was guilty of contributory negligence which was a bar to recovery.

In a third suit arising from this accident, Cora Mock (widow of the guest passenger in the Bush vehicle, Lloyd Mock) brought suit against the department in her own behalf and on behalf of one of her minor children seeking damages for the wrongful death of Lloyd Mock. Joining as parties-plaintiff in this suit were seven other children of the decedent, Lloyd Mock.

The department answered the Mock suit by denying liability and filing a third party demand against the Bush estate.

These three suits were consolidated for purposes of trial. After trial, the district court held that the sole cause of the accident was the negligence of Bush in operating his vehicle at a speed greater than was reasonable and prudent under the conditions existing at the time. Accordingly, judgment was rendered in favor of the highway department and against plaintiffs in all three cases rejecting their demands at plaintiffs’ costs. Judgment was rendered in favor of Mrs. Droddy and against the Bush estate in the amount of $75,000 as compensation for her pain and injuries and in favor of Mr. Droddy in the sum of $6,849.50 in medical expenses and property damage.

From this judgment appeals were perfected by Mr. and Mrs. Droddy, the Bush estate, and the Mock heirs. The central issue on appeal is the alleged fault and liability of the highway department. Appellants specify that the district court erred in failing to find that (1) a dangerous situation existed at the scene of the accident as a result of the condition of the highway; (2) this dangerous situation was a legal cause of the accident; (3) the highway department was negligent in failing to correct or warn motorists of the dangerous condition; or (4) the department is strictly liable for damages caused by the defective road which presented an unreasonable risk of injury to motorists.

U.S. Highway 167 had been resurfaced from Jonesboro south to the Jackson Parish line, and from Winnfield north to a point approximately two miles south of Dodson. The accident occurred on a section of the highway lying between the resurfaced areas which had not been resurfaced since 1960.

Rain had been falling all day and each lane of the highway near the scene of the accident contained depressions or ruts in which water had accumulated. Mrs. Drod-dy testified that she knew that the highway collected water in these ruts when it rained, and that a driver had to slow down and pay close attention. She stated that rain was still falling at the time of the accident. Mrs. Droddy testified she was going approximately 30 to 40 miles per hour immediately prior to the collision. Although she was knocked unconscious, she remembers seeing the Bush vehicle sliding sideways in its lane. Mrs. Droddy was watching her rearview mirror as she slowed down when the collision occurred.

Donnie Bonnette was traveling north behind Mrs. Droddy when the collision occurred. He testified that he had come to a stop in order to turn left as he watched the Bush vehicle “come over a little rise like deal and it looked like they just . .. the car took off and flew in front of the lady and collided.” Bonnette testified that he knew the Bush vehicle had hit the ruts filled with water because he could see water spray up on the windshield when they hit it. “It looked like all four wheels come off the ground and it just went over in the lady’s lane. There wasn’t nothing she could do but hit it.”

Bonnette testified that he also was aware that the road held rainwater in the ruts when it rained, and that it was raining at the time of the accident. He stated that the ruts were clearly visible on the road surface and the highway contained these water-filled ruts all the way back to the Jackson Parish line. Bonnette testified that he was aware of several prior unreported accidents in which cars had left the road because of the water in the ruts. He testified that Mrs. Droddy was driving approximately 35 to 40 miles per hour, and that Bush appeared to be driving too fast under the conditions because he “lost control.”

In an attempt to establish the speed of the Bush vehicle, both sides introduced experts in the fields of accident reconstruction and hydroplaning. Both Herman Warken-tin and Dr. Don Ivey agreed that the most important variables utilized in determining the speed at which a car would hydroplane were tire pressure, tire tread depth, depth of water on the road, and texture depth of the pavement. However, the methods used by these experts to determine these variables and the application of them in arriving at the speed of the Bush vehicle at the moment it hydroplaned differed markedly.

Mr. Warkentin assigned a figure of .018 inch for the texture depth of the pavement based on the type of pavement at the accident scene as derived from a publication, whereas Dr. Ivey actually made silicone putty measurements of the pavement along the road surface north of the crash site and at the spot where the cars came to rest following the collision. Dr. Ivey’s measurements revealed that the texture depth at the accident scene varied from .065 to .079 inches, or more than three times the texture depth figure used by Mr. Warkentin in arriving at the hydroplaning speed. This is significant because Dr. Ivey testified that the higher the texture depth, the faster a car has to be moving before it will hydroplane. Dr. Ivey utilized the lowest measured figure or .065 inches in his computation.

Both Mr. Warkentin and Dr. Ivey arrived at their figures for tire pressure and tire tread depth from published results of accident studies. However, Mr. Warkentin utilized 27 PSI as being the average tire pressure cited in the studies, whereas Dr. Ivey utilized 30 PSI as the most frequently observed tire pressure. Again, Mr. Warkentin used the average tire tread depth cited in the accident studies and Dr. Ivey used the most frequently observed.

Both experts utilized a cross sectional survey of the highway prepared by Richard Smith, civil engineer, in arriving at a figure for water depth. The survey showed that the depressions in the lane occupied by the Bush vehicle were as deep as .455 inches. Both Warkentin and Ivey made allowances for the fact that the depressions were slanted and tended to drain and traffic was continually splashing water out of the ruts. Warkentin assigned a depth of .25 inches and Ivey Vs inch to their respective computations of hydroplane speed. Warkentin calculated a minimum hydroplane speed of 48 miles per hour for the Bush vehicle. It was his opinion, however, that Bush was traveling between 45 and 50 miles per hour when his car began to hydroplane. Ivey’s opinion was that the minimum speed Bush would have been traveling in order to hydroplane at the accident scene was 59 miles per hour.

Both experts again differed in their approaches at determining the speed of the two cars at impact. Mr. Warkentin first approximated the amount of energy expended in the deformation of the two vehicles by utilizing a method which was originated to determine closing speed of vehicles and not energy absorption. Dr. Ivey testified that the method used by Mr. Warken-tin to determine energy absorption of the vehicles may have been “... the only way to go 20 years ago, but it is completely subjective and really based ... is based on the talent of the individual to imagine something happening. And the variation in that sort of a scheme is just incredible.” Dr. Ivey arrived at his figures for the energy expended during the collision by the application of coefficients derived from many vehicle tests which in his opinion “represented the latest technique in determining energy losses during collisions.”

Tuley Wells, highway maintenance superintendent for Winn Parish at the time of the accident, testified that the ruts or depressions in the highway were caused by the heavy trucks which used this particular stretch of road. Wells stated that his crews covered all roads in the parish and were aware of the depressions in this particular area of Highway 167. If the depressions became deep enough to warrant repair, Wells testified that his crews would place a “skin patch” over the rut. Wells stated that unless the depressions were approximately V2 inches deep, it was impractical to apply a patch because the patch itself would not adhere to the road surface unless it was %-l inch thick. Applying a patch to a depression less than V2 inches deep resulted in a patch creating a high spot in the road. As Wells stated, “I mean, sometimes you are in worse shape after you finish up than you was before you started, but you try.”

The following legal principles govern our resolution of this case:

. .. The law is settled that the Department of Highways is not responsible for every accident which may occur on the state highways, nor is it a guarantor of the safety of travelers thereon, or an insurer against all injury which may result from obstructions or defects in such highways.... Generally, it is the duty of the Highway Department to construct and maintain the highways in a condition reasonably safe for persons exercising ordinary care and reasonable prudence.... (citations omitted)
United States Fidelity and Guaranty Co. v. State, Department of Highways, 339 So.2d 780 (La.1976).
. .. However, reasonable care requires, and the Department does owe, a duty to the traveling public to erect barricades, signs and adequate markings to warn against extremely dangeroús, trap-like hazards, unusual obstructions, perilous conditions or defects in the road.. . . Whether the warning is required, reasonable, or adequate is determined by the place where the danger exists, the nature of the road and the general situation and circumstances surrounding it. All of these factors, together with the kind and speed of vehicles, are to be taken into consideration to determine whether the Department has discharged its duty.. . . (citations omitted)
Vervik v. State, Department of Highways, 302 So.2d 895 (La.1974).
There is no fixed rule for determining what is a dangerous defect in a public way; the facts and surrounding circumstances of each particular case control. The test usually applied, however, requires an answer to the question: Was the public way maintained in a reasonably safe condition for persons exercising ordinary care and prudence? ... (citations omitted)
Pickens v. St. Tammany Parish Police Jury, 323 So.2d 430 (La.1975).

The plaintiffs’ evidence falls short of establishing the existence of a dangerous defect in Highway 167 at the scene of the accident. Rain collecting in depressions on an old highway is not an unusual situation. There is no evidence of any particular unusual defect or depression in the highway at the scene of the accident other than the same type of ruts and depressions found on this particular stretch from the Jackson Parish line north of the accident scene to an area some distance south of the site. Bush had already traveled a considerable distance south of the Jackson Parish line over the highway containing these ruts and must be deemed to have noticed that which was plainly visible to other motorists.

The trial judge accepted the opinion of Dr. Ivey that Bush was-traveling at least 59 miles per hour at the moment he lost control as his car began to hydroplane. Although the two expert witnesses differed in their opinion as to the speed of the Bush vehicle, the trial judge accepted that of Ivey as being entitled to greater weight because of his training, experience, studies, and research. The record adequately supports this evaluation of the expert testimony by the trial judge. The trial judge receives expert testimony and assigns the weight to it he feels it deserves based on such factors as the qualification and experience of the witness. See e. g. Gleason v. City of Shreveport, 393 So.2d 827 (La. App.2d Cir.1981).

the most likely inference to be drawn from the evidence is that the accident resulted from Bush’s failure to maintain control due to his driving too fast under the conditions prevailing at the scene of the accident and not from any defect or dangerous condition of the highway. Although the road surface was not perfect, it was capable of being negotiated during a heavy rain by persons prudently taking the necessary precautions. The testimony relating to prior accidents along the highway does not lend credence to the theory that the roadbed was defective because the location and cause of these accidents was not clearly established.

We conclude that the plaintiffs have failed to establish the existence of a dangerous condition or defect at the scene of the accident, or that any condition found in the road surface was a cause in fact of the accident. Consequently, there was no warning sign required and the absence of such warnings cannot be a legal cause of the accident. Cf. Petree v. Crowe, 272 So.2d 399 (La.App.2d Cir.1973), writ refused 274 So.2d 709 (La.1973). Accordingly, we affirm the trial court’s holding absolving the department of highways of liability based on negligence.

The appellants contend that the department should be held liable even if no breach of duty is established. This contention is based on La.C.C.Art. 2317 which imposes liability without a showing of negligence on those who have a thing in their custody which causes damage to another.

Having concluded that the roadbed was not dangerous to motorists exercising ordinary care and prudence, it follows that there was not a defect presenting an unreasonable risk of injury to those motorists. Therefore, we hold that La.C.C.Art. 2317 is not a basis for imposing liability on the highway department in this case.

The Bush and Mock appellants contend that the trial court erred in finding that David Bush was negligent in the operation of his vehicle.

La.R.S. 32:64 provides:

A. No person shall drive a vehicle on the highway within this state at a speed greater than is reasonable and prudent under the conditions and potential hazards then existing, having due regard for the traffic on, and the surface and width of, the highway, and the condition of the weather, and in no event at a speed in excess of the maximum speeds established by this Chapter or regulation of the department made pursuant thereto....

The record supports the trial court’s conclusion that Bush was operating his car in a negligent manner. Mrs. Droddy and Mr. Bonnette both saw the ruts filled with water and slowed their speed accordingly. Regardless of the exact speed of the Bush vehicle when it began to hydroplane, the trial judge correctly held that the speed was greater than was reasonable and prudent under the circumstances. A motorist is under a duty to avoid such occurrences and maintain control by keeping a lookout for possible hazards that are plainly visible to those exercising ordinary care and observation. Sinitiere v. Lavergne, 391 So.2d 821 (La.1980). We are in accord with the trial court’s conclusion that David Bush was negligent.

The last issue for our consideration concerns the damages awarded Mrs. Drod-dy. She contends that the damages awarded were inadequate. The trial judge summarized her damages as follows:

... Mrs. Droddy sustained severe, painful and permanent injuries in the accident. She received cerebral concussion with hematoma about both eyes; bruising of the anterior chest wall and abdomen, hematoma of the anterior wall, headache and lacerations and abrasions of the left forearm and both knees. As a result, she had retrograde amnesia and was unable to remember anything for some days after the accident. The headaches continued for almost one year, her thinking was “fuzzy” and she was unable to keep her mind on anything. She was still on prescribed medication and suffering from mental lapses on the day of the trial. She was forced to drop out of trade school, unable to perform household duties and suffered much anxiety from her memory lapses. Personality changes resulted.

The trial judge awarded Mrs. Droddy $75,000 as general damages for her injuries. This award is within the range of discretion which is vested in the trial court and we will not disturb that award. See Reck v. Stevens, 373 So.2d 498 (La.1979).

For the reasons herein assigned, the judgment appealed is affirmed in all respects. The costs of this appeal are to be assessed equally to all appellants.


author: MARVIN, Judge.

text:
    In re Larry E. WATTS Applying for Adoption.
    No. 14458.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 16, 1981.
    En Banc. Rehearing Denied March 27, 1981.

      Larry S. Butler, Shreveport, for petitioner-appellant.
    Beard, Arceneaux & Sutherland by Roy L. Beard, Shreveport, for respondent-appel-lee.
    Before PRICE, HALL and MARVIN, JJ.
   MARVIN, Judge.

When the non-resident natural father opposed the adoption of his children by their step-father, the juvenile court denied the step-father’s petition to adopt. The stepfather appeals, contending that the consent of the natural father is not necessary under L.R.S. 9:422.1. We affirm.

The natural parents of the proposed adoptive children were residents of Alabama during their marriage. She married the step-father in Alabama shortly after the divorce in 1976 in which proceedings she was awarded custody and the father was ordered to pay $200 per month child support. In August 1978 the step-father moved with the mother and the children from Alabama to Shreveport and petitioned for adoption in 1979. The move to Shreveport was precipitated at least in part by a dispute between the mother and the father over the father’s visitation rights in Alabama.

About two months after the move to Shreveport, the natural father was granted a judgment by the Alabama court terminating its prior support award and changing custody of the children from the mother to the father. This judgment was signed October 31, 1978.

In 1979 the natural father sued the mother in the district court of Caddo Parish seeking to obtain physical as well as legal custody of his children and alternatively seeking specific visitation privileges. On October 17, 1979, the district court granted custody of the children to the mother and fixed specific visitation privileges for the father. On that same date the step-father filed his petition for adoption which was eventually denied by judgment of the juvenile court on July 2, 1980.

The step-father contends that the 1978 Alabama judgment changing custody from the mother to the father and terminating child support may be legally ignored and not given full faith and credit because the Alabama court did not then have jurisdiction. He asserts that the only Alabama judgment entitled to full faith and credit is the 1976 judgment which granted his wife custody and ordered the father to pay child support. He contends that the step-father’s consent to the adoption is not necessary because his wife had been granted custody by a court of competent jurisdiction (§ 9:422.1(1)) and because the non-resident father failed to pay any child support for the one year period, October 15, 1978, to October 16, 1979 (§ 9:422.1(3)). The stepfather contends that under these circumstances the consent of the father is not necessary and is dispensed with by the express provisions of § 9:422.1. The step-father additionally argues that the father’s failure to pay child support was not due to reasons beyond the father’s control. In re Ackenhausen, 154 So.2d 380 (La.1963).

Our review of Alabama cases convinces us that the Alabama court had jurisdiction concerning the custody and welfare of these children when the 1978 judgment was rendered because that jurisdiction attached in the divorce proceedings in 1976 and continued at least through the date of the 1978 modification. This concept of continuing jurisdiction was recognized by Alabama courts in ex parte State ex rel McLaughlin, 250 Ala. 579, 35 So.2d 507 (1948); Little v. Little, 249 Ala. 144, 30 So.2d 386 (1947); Lassiter v. Wilson, 207 Ala. 669, 93 So. 598 (1922); Leigh v. Aiken, 54 Ala.App. 620, 311 So.2d 444 (1975); Fridge v. Fridge, Ala.Civ.App., 331 So.2d 737 (1976); Rickman v. Rickman, 266 Ala. 371, 96 So.2d 674 (1957).

Louisiana courts have likewise recognized that Alabama has continuing jurisdiction in cases such as this. See Legé v. Legé, 228 So.2d 202 (La.App. 3d Cir. 1969) and cases cited therein. The mother in Legó was permitted, however, to proceed in Louisiana to regain legal custody of her children as did the mother in these proceedings. See also Imperial v. Hardy, 302 So.2d 5 (La. 1974); Defatta v. Defatta, 352 So.2d 287 (La.App. 2d Cir. 1977).

In any event, it is beyond question that the Alabama court had authority to modify its own decree as to support owed by the father who was a resident of Alabama at all times. This record shows that the Alabama court noted in its judgment that the mother had received the 1978 petition and citation and that personal service had been made in accord with Alabama law as evidenced by her signature on the certified mail receipt. The mother admitted receiving and signing for such notice. We also observe that the father offered, and the mother declined, to accept two bank money orders totaling $400 as child support when the Caddo District Court gave her custody in its 1979 judgment. Under these circumstances, it cannot be said that the father “has failed to support” the children for the one year period as § 422.1(3) requires.

The juvenile court correctly determined that the consent of the father was necessary. At appellant’s cost, judgment is

AFFIRMED.

      . “If the spouse of the petitioner is the legitimate parent of the child or if the petitioner is the grandparent or grandparents of the child, then the consent of the other legitimate parent is not necessary if the first and second or the first and third conditions exist:
      “(1) The spouse of the petitioner or the grandparent or grandparents or the mother or the father have been granted custody of the child by a court of competent jurisdiction and
      “(2) The other legitimate parent has refused or failed to comply with a court order of support for a period of one year or
      “(3) The other legitimate parent is a nonresident of this state and has failed to support the child for a period of one year after judgment awarding custody to the mother or father or grandparent or grandparents.”


text:
    Roy EDMISTON, Plaintiff-Appellee, v. Belve L. BARNES, Defendant-Appellant.
    No. 14459.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 16, 1981.

      Thomas & Burchett by Dewey E. Bur-chett, Jr., Bossier City, for defendant-appellant.
    Lunn, Irion, Switzer, Johnson & Salley by Harry A. Johnson, Jr., Shreveport, for plaintiff-appellee.
    Before PRICE, HALL and MARVIN, JJ.
   PRICE, Judge.

Defendant, Belve Barnes, appeals from a judgment recognizing that plaintiff, Roy Edmiston, is the owner of a servitude of passage (covering a 20 X 90 foot parcel) across land owned by defendant and permanently enjoining defendant from obstructing plaintiff’s exercise of this right. For the reasons assigned the judgment of the district court is affirmed.

In 1976 plaintiff purchased from defendant two lots located in Barnes Addition, a subdivision bordering Cypress Lake in Bossier Parish. Within the next six months plaintiff built a brick home for his family residence. From the time of purchase until early 1979, plaintiff had unrestricted access to the lake through a 20 X 90 foot strip of land which lies between the end of Barnes Drive, a public street running adjacent to plaintiff’s lots, and the water line of Cypress Lake. A concrete boat launch had been constructed by defendant at this location under a permit from the Cypress-Black Bayou Recreation and Water Conservation District. Defendant represented to this authority that the launch was for private use of himself and owners of lots in his subdivision. Defendant had a lock affixed to a barrier across the end of Barnes Drive for the purpose of preventing the general public from obtaining access to the lake via this route. Plaintiff, as well as other lot owners in the subdivision, was provided with a key to that lock. In 1979, however, defendant changed the lock and refused to furnish plaintiff with a key to the new lock. Plaintiff instituted this action claiming damages and seeking an injunction against defendant to protect the right of passage he once enjoyed. In addition plaintiff sought damages based on the allegation that defendant represented to him that certain restrictive covenants existed on the lots when in fact there were no such restrictions. That issue, however, is not a concern on this appeal.

In this suit plaintiff alleged that at the time he purchased the lots, defendant verbally represented to him that the 20 X 90 foot parcel of land was excluded from the public dedication of Barnes Drive to provide the owners of lots in the subdivision a convenient private access to Cypress Lake. Plaintiff testified that having access to the lake was one of the principal reasons for his decision to purchase in this subdivision. Plaintiff contends this interference with his enjoyment and use of the access to the lake caused him inconvenience, embarrassment, and humiliation for which he seeks damages.

During the trial of the merits, defendant, while on cross-examination, admitted that he was informed by Edmiston that the only reason he was interested in purchasing the lots was to be on the lake, and that he showed Edmiston the strip of frontage in question and told him that was what the tract was for. He further admitted he told Edmiston he intended to build a launch for all of the lot owners to use.

The trial court found this admission, as corroborated by other parol testimony, to be sufficient to create a servitude of passage in favor of plaintiff since delivery had been accomplished by plaintiff having been permitted to use the facility for almost two years. In the absence of a written agreement to establish title to the servitude, the court relied upon La.C.C. Arts. 2275 and 743 which provide:

Art. 2275. Every transfer of immovable property must be in writing; but if a verbal sale, or other disposition of such property, be made, it shall be good against the vendor, as well as against the vendee, who confesses it when interrogated on oath, provided actual delivery has been made of the immovable property thus sold.
Art. 743. Servitudes are established by all acts by which property can be transferred, and as they are not susceptible of real delivery, the use which the owner of the estate to whom the servitude is granted, makes of this right, supplies the place of delivery.
The substantive provisions are now provided for in C.C. Article 722:
Predial servitudes are established by all acts by which immovables may be transferred. Delivery of the act of transfer or use of the right by the owner of the dominant estate constitutes tradition.

Defendant’s principal complaint on appeal is that the trial court erred in finding his testimony under cross-examination was sufficient proof that a servitude had been created. He contends he denied agreeing to grant such a right in answer to interrogatories, and that under Louisiana law such a denial is conclusive and parol evidence may not be permitted to contradict this denial.

It is true that the general rule is “that when an alleged vendee under a verbal sale propounds interrogatories to his vendor who answers and denies the sale, such denial is conclusive and final and may not be traversed or contradicted.” Perry v. Perry, 122 So.2d 829 (La.App. 1st Cir. 1960); Rubenstein v. Files, 146 La. 727, 84 So. 33 (1920); Cernich v. Cernich, 210 La. 421, 27 So.2d 266 (1946). However, a close review of the interrogatories propounded and the answers given shows no clear denial on the part of defendant that he had agreed to grant plaintiff a right of use of the launching area if he purchased a lot.

We therefore find the holding in the cited cases is inapplicable to the circumstances presented here. Furthermore, we do not believe the rule established in these cases was intended to preclude the court from consideration of subsequent testimony given by the alleged vendor which indicates his prior denial in answer to interrogatories was either in error or was untrue.

Defendant contends that in no event was his testimony, which admitted discussions with plaintiff of his use of the disputed tract, sufficient to create a servitude, and that the trial court was in error in so holding.

Admittedly the testimony is this regard is very brief. However, we find that a fair evaluation of the discussion which defendant admits having with plaintiff leads to the conclusion that defendant represented to plaintiff that if he bought a lot or lots he would have the use of the passageway defendant was providing for lot owners into the lake. Under the circumstances we find the trial court was not in error in concluding this was sufficient to establish a verbal agreement creating a servitude of passage.

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

      . Although the evidence is scant on the reason why this dispute arose, there is an inference that plaintiff was allowing others who were not landowners in the subdivision to use the launch facility, which practice was offensive to defendant. The judgment of the district court does not define the parameters of this personal servitude, and we are not called upon to do so on this review.


text:
    William G. MORRIS et ux., Plaintiffs-Appellants, v. DELUXE CHECK PRINTERS, INC., Defendant-Appellee.
    No. 14460.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 16, 1981.

      Weinstein & Moak by Nelson A. Moak, Shreveport, for plaintiffs-appellants.
    Russell 0. Brabham, Shreveport, for defendant-appellee.
    Before PRICE, HALL and MARVIN, JJ.
   PRICE, Judge.

Plaintiffs appeal a judgment of the district court which sustained defendant’s motion for partial summary judgment and disallowed certain items of damages prayed for by plaintiffs in a redhibition suit. The issue for our determination is whether a printer of personal checks may be held liable to the purchaser for nonpecuniary damages incurred as a result of the printer’s breach of warranty against redhibition. We amend and affirm for the reasons assigned.

The allegations in plaintiffs’ petition may be summarized briefly as follows: Mr. and Mrs. William G. Morris, plaintiffs herein, have maintained a personal checking account for many years with the Jonesboro State Bank in Jonesboro, Louisiana. In connection with this account, the plaintiffs used checks printed by the defendant, DeLuxe Check Printers, Inc. When the plaintiffs’ available supply of checks began to run low they ordered a new supply by using a reorder form supplied by defendant. After receiving the new supply of checks, plaintiffs began receiving telephone calls from various merchants complaining of checks being returned unpaid. Subsequent inquiry disclosed that the routing symbol was incorrectly printed on the checks which prevented them from being presented to the drawee bank for payment and resulted in the return of the checks to the payee as unpaid items. Plaintiffs were required on numerous occasions to pick up the returned checks and pay cash. Upon discovery of the error in printing, plaintiffs notified defendant and requested that they be compensated for the damages allegedly incurred because of this defect. Defendant declined this request but offered to write letters of explanation to various banks and creditors. This suit followed.

Plaintiffs allege that the incorrect printing of the routing symbols constituted a latent defect rendering the checks useless for their intended purpose. Plaintiffs further allege that defendant, as manufacturer of the checks, breached the implied warranty against redhibitory defects in bad faith since it was deemed to know of the vices in the checks it printed. Because of such bad faith violation of the warranty against red-hibition, plaintiffs contend they are entitled to restitution of the price of the checks, expenses occasioned by the breach including attorney fees, and damages. (The codal articles dictating the rules relative to redhi-bition are found in Section 3 of Chapter 6 of Book III of the Louisiana Civil Code, Arts. 2520 et seq.)

Plaintiffs’ itemized list of damages totaling $24,992.00 included amounts for inconvenience, aggravation, mental distress, damage to credit rating, and embarrassment.

Defendant answered by denying any breach of warranty and specifically alleging that any defects were apparent to plaintiffs upon inspection, and thus did not constitute a redhibitory vice. Subsequent to the initiation of discovery proceedings, defendant filed a motion for partial summary judgment seeking to have disallowed plaintiffs’ prayer for attorney fees and the specific items of damages delineated in the preceding paragraph. Defendant contends that it was not in bad faith (a prerequisite to damages in a redhibition suit), and that plaintiffs, as a matter of law, were not entitled to “nonpecuniary” damages in a suit in redhibition or contract.

The district court rejected defendant’s motion only as it pertained to attorney fees (these being specifically provided by La.C.C. Art. 2545) and otherwise sustained the motion dismissing plaintiffs’ requested relief for inconvenience, aggravation, mental distress, damage to credit rating, and embarrassment. It is from this partial summary judgment that plaintiffs appeal.

Plaintiffs contend the trial court erred in granting the partial summary judgment and that the nonpecuniary damages which were disallowed are properly recoverable under the circumstances of this case. Plaintiffs contend that the object of their contract with defendant was “the gratification of some intellectual enjoyment ... or other legal gratification” as these words are used in La.C.C. Art. 1934(3).. According to this article and the jurisprudence interpreting it, breach of a contract with such an object obliges the breaching party to compensate the other party for his non-pecuniary losses incurred as a result of the breach. This is an exception to the general rule which states that the measure of damages for breach of a contract where the object of the contract is anything but the payment of money is the amount of the loss the creditor has sustained and the profit from which he has been deprived. La.C.C. Art. 1934.

Defendant on the contrary disputes that any gratification of intellectual enjoyment was involved here. Defendant contends that the purpose of utilizing checks is simply to avoid the necessity of carrying around large sums of money. Therefore, defendant contends that the principal object of the contract between plaintiffs and defendant was physical gratification. The breach of a contract with such an object does not require the breaching obligor to respond in nonpecuniary damages.

The basic rule concerning the measure of damages for breach of contract is found in the Civil Code wherein Art. 1934 provides in pertinent part:

Where the object of the contract is anything but the payment of money, the damages due to the creditor for its breach are the amount of the loss he has sustained, and the profit of which he has been deprived, under the following exceptions and modifications:
(1) When the debtor has been guilty of no fraud or bad faith, he is liable only for such damages as were contemplated, or may reasonably be supposed to have entered into the contemplation of the parties at the time of the contract. By bad faith in this and the next rule, is not meant the mere breach of faith in not complying with the contract, but a designed breach of it from some motive of interest or ill will.
(2) When the inexecution of the contract has proceeded from fraud or bad faith, the debtor shall not only be liable to such damages as were, or might have been foreseen at the time of making the contract, but also to such as are the immediate and direct consequence of the breach of that contract; but even when there is fraud, the damages can not exceed this.
(3) Although the general rule is, that damages are the amount of the loss the creditor has sustained, or of the gain of which he has been deprived, yet there are cases in which damages may be assessed without calculating altogether on the pecuniary loss, or the privation of pecuniary gain to the party. Where the contract has for its object the gratification of some intellectual enjoyment, whether in religion, morality or taste, or some convenience or other legal gratification, although these are not appreciated in money by the parties, yet damages are due for their breach; a contract for religious or charitable foundation, a promise of marriage, or an engagement for a work of some of the fine arts, are objects and examples of this rule.
* * * * * *

This article has been interpreted by the Supreme Court as follows:

... Where an object, or the exclusive object, of a contract, is physical gratification (or anything other than intellectual gratification) nonpecuniary damages as a consequence of nonfulfillment of that object are not recoverable.
On the other hand, where a principal or exclusive object of a contract is intellectual enjoyment, nonpecuniary damages resulting from the nonfulfillment of that intellectual object are recoverable. Damages in this event are recoverable for the loss of such intellectual enjoyment as well as for mental distress, aggravation, and inconvenience resulting from such loss, or denial of intellectual enjoyment.
Meador v. Toyota of Jefferson, Inc., 332 So.2d 433 (La.1976).

Plaintiffs acknowledge that the desire to avail themselves of the physical convenience and utility of the checks was an object of their contract with defendant. However, they contend that the principal object of the contract was intellectual in nature. Plaintiffs had utilized checks ordered through the Jonesboro State Bank for over 25 years. Plaintiffs contend that aside from an interest in utilizing the checks printed by defendant for the transaction of daily business, their primary interest was the continuance of their relationship nurtured over a 25-year period with Jonesboro State Bank. Plaintiffs contend that the reason they did not transfer their business to another bank when their checks began coming back unpaid was because of their desire to maintain this long established relationship. Plaintiffs contend that the interest in maintaining this relationship and the credit standing attendant to it was intellectual in nature and formed a principal object of the contract within the meaning of La.C.C. Art. 1934(3) and the Meador case.

We cannot agree with these contentions. Although the maintenance of a 25-year banking relationship is undoubtedly a desirable objective, we can simply perceive no relationship between check printing or usage and intellectual gratification as contemplated by Art. 1934(3). Although not an exclusive listing, Art. 1934(3) lists as examples of such gratification a contract for a religious or charitable foundation, a promise of marriage, or an engagement for a work of some of the fine arts. Such contracts are markedly different in nature from the purchase of printed checks.

Plaintiffs make an alternative argument by focusing on the words “where the contract has for its object the gratification of some intellectual enjoyment ... or some convenience or other legal gratification” in Art. 1934(3). Plaintiffs contend this phrase provides an additional basis for recovery of nonpecuniary damages even if the object of the contract is not some intellectual gratification or convenience as defined in Meador. Since a primary use of the checks purchased from defendant was to satisfy legal and financial obligations, plaintiffs contend that the object of their contract with defendant was a “legal gratification” entitling them to recover nonpecuniary damages pursuant to Art. 1934(3).

This argument is without merit. The Supreme Court in Meador surveyed the source provisions of the present Art. 1934(3) in an attempt to interpret the phrase which contains the disjunctive or immediately before “some convenience or other legal gratification.” The court concluded that due to a mistranslation of the original French source provision in the Louisiana Civil Code of 1825, a correct interpretation of Art. 1934(3) results in the conclusion that intellectual enjoyment is a necessary contractual object before nonpecuniary damages are available.

Having concluded that the contract between the parties in this case did not have as a principal object intellectual enjoyment, we hold that plaintiffs are not entitled to seek recovery of nonpecuniary damages under Art. 1934(3). For this reason the portion of the district court judgment disallowing plaintiffs’ request for damages in compensation for inconvenience, aggravation, mental distress, and embarrassment is affirmed.

Plaintiffs allege that one of the results of their checks being repeatedly returned unpaid was the placing of their name on “bad check lists” which damaged their spotless credit reputation accumulated over a 25-year period.

Assuming that defendant was in good faith (in the sense that no fraudulent intent is alleged) plaintiffs would be entitled to recover damages which were contemplated or may reasonably be supposed to have entered into the contemplation of the parties at the time of the contract. La.C.C. Art. 1934(1). Under the facts of the present case, it should have been reasonably foreseen that plaintiffs would not have detected an error in the routing symbols or number printed on the check (as opposed to the account number) and that checks issued by plaintiff would be returned to the payee as unpaid items for this reason alone. It would also be reasonably foreseeable that such a circumstance would cause damage to the credit rating of the customer. Such an injury if proven is not purely conjectural and is susceptible of measurement. Additionally, the ease of association of the alleged defect in the checks with the resulting injury to plaintiffs’ credit rating leads us to the conclusion that under the circumstances present in this case, plaintiffs are entitled to seek recovery for damage to their credit rating.

For the foregoing reasons the judgment appealed insofar as it dismissed plaintiffs’ demands for damages for inconvenience, aggravation, mental distress, and embarrassment is affirmed; the judgment insofar as it dismissed plaintiffs’ claims for damages to their credit rating is reversed; and the case is remanded for further proceedings not inconsistent with the views expressed herein and in accordance with law.

Assessment of costs are to await the final determination of this cause,

      . A partial summary judgment granting all or part of the relief for which the movant has prayed is a final appealable judgment'. La.C. C.P. Arts. 966, 968, 2083. See National Safe Corporation v. Benedict & Myrick, Inc., 367 So.2d 871 (La.App. 1st Cir. 1978).