author: CHEHARDY, Judge.

text:
    April HILLIARD v. LOUISIANA HEALTH SERVICE AND INDEMNITY COMPANY, d/b/a Louisiana Blue Cross.
    No. 12269.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1982.
    Rehearing Denied April 16, 1982.

      Reynolds, Nelson & Theriot, Charles W. Nelson, Jr., New Orleans, for plaintiff-appellant.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Matthew A. Wellman, New Orleans, for defendant-appellee.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   CHEHARDY, Judge.

Plaintiff, April Hilliard, appeals a district court decision in favor of defendant, Louisiana Health Service and Indemnity Company, doing business as Louisiana Blue Cross, and against the plaintiff, dismissing her suit at her costs.

This matter was heard in the trial court after being submitted on the following stipulations filed into the record:

“I.
At all times material and pertinent to the controversy before the Court, plaintiff, April Hilliard (Hilliard), was employed by the Jefferson Parish School Board.
“II.
Sometime in November 1977, Hilliard received in the mail a description of the group medical plan of defendant, Louisiana Health Service and Indemnity Company, d/b/a Louisiana Blue Cross (Blue Cross), for the employees of the Jefferson Parish School Board, together with an application for coverage pursuant to that plan. * * *
“III.
Hilliard executed the application and mailed it to Blue Cross on or about November 17, 1977. Subsequently, Blue Cross informed Hilliard that it had lost a portion of Hilliard’s application, and requested her to reapply and send the first month’s premium in the amount of $26.55 for the month of December, 1977, which Hilliard did.
“IV.
Blue Cross sent notice to Hilliard informing her that the effective date of the policy was December 1, 1977.
“V.
Blue Cross is Hilliard’s insurer through its group medical insurance contract written for the Jefferson Parish School Board, Contract No. 433987461, Group No. 59078.
“VI.
In December, 1977, plaintiff received a two page brochure entitled ‘Blue Cross Maximum Hospital Expense Plan Type M-25, 40-40, Jefferson Parish School Board Personnel — Group No. 2303,’ * * *. This brochure lists no exclusions from policy coverage.
“VII.
In January, 1978, Hilliard contracted influenza which resulted in tonsillitis. Plaintiff’s tonsillitis reappeared in February, 1978 at which time her doctor advised that she have her tonsils removed. Hilliard had experienced and had been aware of medical problems in connection with her tonsils since approximately 1972.
“VIII.
If called to the stand, Hilliard would testify that in March of 1978, Hilliard called Blue Cross’ New Orleans office to determine whether the Blue Cross policy at issue would cover a proposed tonsillectomy. She gave the person answering the telephone her name and policy number and requested that they inform her of whether or not the Blue Cross policy would cover the tonsillectomy. Hilliard did not inform the Blue Cross employee of the effective date of the policy, nor was she asked. Hilliard did not inform the Blue Cross employee that she had a history of colds and probably tonsillitis, nor was she asked. After a brief pause, defendant’s representative returned to the telephone and informed Hilliard that a tonsillectomy would be covered by the policy. Defendant, Blue Cross, objects to the admissibility of this testimony on grounds that it is in violation of the parol evidence rule.
“XII. [sic]
Hilliard did not inform the Blue Cross employee referred to in Paragraph XI, above, that her tonsillitis constituted a pre-existing condition, because Hilliard did not know that her tonsillitis constituted a pre-existing condition and that preexisting conditions are excluded from coverage under the policy for 180 days after the effective date of the policy. Defendant, Blue Cross, objects to the admissibility of this testimony on grounds that it is in violation of the parol evidence rule.
“XIII.
Blue Cross employees are not authorized by Blue Cross to enlarge individual coverage of Blue Cross policies issued by Blue Cross pursuant to group plans, although Hilliard was not aware of that at the time of her conversations.
“XIV.
On or about March 20, 1978, Hilliard underwent a tonsillectomy.
“XV.
The specialist which Hilliard consulted in connection with and who performed the tonsillectomy was Norma L. Kearby, who together with Hilliard’s general practitioner, Edmond Mickal, submitted proof of claim forms to Blue Cross, and, subsequently, on Blue Cross’ request submitted a discharge summary form and patient history form pertaining to Hilli-ard; the discharge summary form, annexed hereto as Exhibit No. 4 provides, in pertinent part:
‘25 year old female who has history of recurrent tonsillitis was admitted for surgery as described above .... ’
[T]he patient history form, annexed hereto as Exhibit No. 5 provides, in pertinent part:
‘Tonsillitis every month or two in past year.’
“XVI.
On or about April 10, 1978, Hilliard received a copy of the booklet entitled ‘A Group Plan Designated for Jefferson Parish School Board by Blue Cross of Louisiana,’ a copy of which is attached hereto as Exhibit No. 2. This booklet (Exhibit 2) on page 2 under the heading entitled ‘Waiting Periods’ provides a waiting period for coverage of 180 days on pre-exist-ing conditions. On page 16 of this booklet (Exhibit No. 2) under the heading entitled ‘Major Medical Exclusions and Limitations’, it incorporates the exclusions and limitations of the basic contract between the Jefferson Parish School Board and Blue Cross.
“XVII.
Hilliard has never seen a copy of the basic contract, a copy of which is attached hereto as Exhibit No. 8. Article XII of the basic contract, (Exhibit No. 3) entitled ‘Exclusions and Limitations’, Section A(8), excludes from coverage any pre-existing condition until an individual subscriber has been a member for 2 years.
“XVIII.
. Blue Cross denied plaintiff’s claims as having been incurred within 180 days of the effective date of the policy to remedy a pre-existing condition; this denial took place on or about May 11, 1978.
“XIX.
Plaintiff incurred medical expenses of $821 in connection with her tonsillectomy including $300 paid to the Brown McHar-dy Clinic and $521 paid to East Jefferson Hospital.
"xx.
Hilliard was charged $80 for a semi-private room for one night at East Jefferson Hospital; the schedule of payment set out in Exhibit No. 1, Exhibit No. 2 ‘hospital benefits’ at page 2 and Exhibit No. 3, group amendment, effective January 1, 1975, provides no more than $40 per day.
“XXI.
The policy issued by Blue Cross and subject to the instant controversy does not cover and provide insurance against bodily injury, disablement, or death by accident. The policy only provided benefits for hospital and medical care.”

In his written reasons for judgment the district court judge stated:

“This Court has concluded that Hilliard voluntarily entered into a contractual agreement with Louisiana Health Service and Indemnity Company d/b/a Louisiana Blue Cross (hereinafter referred to as ‘Blue Cross’) at a time in which she was suffering from a preexisting tonsil condition dating back to 1972. A review of the documents attached to the stipulations reveals that the treatment of the said preexisting condition would not be covered under the insurance policy designed for the Jefferson Parish School Board for the first one hundred eighty (180) days of coverage (Exhibit 2, p. 2).
“The law is clear that the parol evidence rule does not prevent proof of a subsequent verbal agreement modifying a prior written agreement if the agreement by law must not be reduced to writing. Torrey v. Simon-Torrey, Inc., 284 So.2d 130 (La.App. 3 Cir. 1973); LSA-C.C. Art. 2276. Modification of insurance contracts are not valid unless reduced to writing and made a part of the policy. LSA-R.S. 22:628. Therefore, this Court concludes that any verbal agreement, if any, extending coverage to Hilli-ard’s pre-existing tonsillitis condition, without being reduced to writing, must be excluded from evidence. Furthermore, this Court concludes that, in light of R.S. 22:1161 and R.S. 22:1175, no misrepresentation of coverage was made by the Blue Cross employee because the said employee had no authority to act as an agent for Blue Cross.
“The Court concludes then that the petition of Hilliard lacks merit and should be dismissed at her cost.”

This court agrees with the defendant that oral statements cannot be used to alter the terms of a written insurance policy. LSA-R.S. 22:628 and Rolling v. Miller, 233 So.2d 723 (La.App. 4th Cir. 1970). However, the plaintiff also argues that she has sustained damages resulting from negligent misrepresentation based on the insurer’s failure through its employee, to adequately describe to her, as its insured, the coverage offered by its policy. In discussing negligent misrepresentation, the court said in Devore v. Hobart Mfg. Co., 367 So.2d 836 (La.1979), that LSA-C.C. arts. 2315 and 2316 afford a broad ambit of protection for persons damaged by intentional and negligent acts of others, sufficient to encompass a course of action for negligent misrepresentation. The court also explained that for a plaintiff to prevail under that theory the law requires the existence of a legal duty on the part of the defendant to supply correct information and there must also be inquiry as to whether there was an affirmative duty to insure that the information given was correct.

In the present case, at the time of making the phone call to the defendant’s employee, the plaintiff had never been given any written documents showing exclusions and accordingly did not know of any exclusions contained in her policy nor had she been apprised of any waiting period for pre-existing conditions. In view of this, the defendant certainly had the obligation through its employee to inquire into these aspects of plaintiff’s condition before informing her, without reservation, that the subject policy would cover her tonsillectomy. The employee in question, moreover, must be considered a servant of the defendant, defined as such “when, in the eyes of the community, he would be regarded as a part of the employer’s own working staff * * Prosser, Law of Torts, Chap. 12, § 70, p. 460 (1971). Also, once it is determined that a man at work is a servant, the master becomes subject to vicarious liability for the employee’s torts, Law of Torts, supra.

Although the district court judge cites LSA-R.S. 22:1161 and LSA-R.S. 22:1175 in denying the plaintiff recovery under the theory of negligent misrepresentation, a review of these statutes reveals that the former simply defines an insurance agent and the latter prohibits persons from representing themselves as insurance agents in absence of conformance with applicable provisions in the law. This court holds, therefore, that the application of these statutes to the present case was erroneous due to the fact that the subject employee of the defendant was not acting in the capacity of an insurance agent but was simply dispensing information on behalf of her employer.

For the reasons assigned, therefore, the district court decision is reversed and it is hereby ordered that judgment is rendered in favor of the plaintiff and against the defendant in the amount of $781, together with interest from date of judicial demand until paid. The defendant is to pay all costs of the proceedings.

REVERSED AND RENDERED.


source: Caselaw Access Project

license: Public Domain

text:
    LAFITTE SASH & DOOR CO., INC. v. ROBERT BROS. HOMES, INC., and Robert J. Neider.
    No. 12314.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1982.
    Rehearing Denied April 16, 1982.

      Satterlee, Mestayer & Freeman, Henry F. Mestayer, Robin B. Cheatham, New Orleans, for plaintiff-appellee.
    Levenson & Bonin, Leonard L. Levenson, New Orleans, for defendants-appellants.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   CHEHARDY, Judge.

Defendants, Robert Bros. Homes, Inc., and Robert J. Neider, appeal a parish court judgment rendered by default in favor of plaintiff, Lafitte Sash & Door Co., Inc. (Lafitte), and against the defendants in the sum of $2,283.59 with interest thereon at the rate of l‘/¿% per month from date of judicial demand until paid, plus 25% of all said sums as attorney fees, and for all costs of the proceedings.

Defendants argue on appeal that the record is void of any competent evidence to sustain the parish court’s judgment; that the trial court erred in granting a default judgment based on the affidavit of the plaintiff’s attorney, rather than an officer or employee of the corporation; that there was no itemized account, as required by law; and that no proof of signature was offered on the alleged personal guaranty and agreement to pay interest and attorney fees.

The transcript in the present case reveals that in this suit on an open account, with a personal guaranty, at the time of the hearing, attorney for the plaintiff introduced the “entire record” into evidence. The record, in addition to the petition and the affidavit of the plaintiff’s attorney, also included the affidavit of Peter P. Weg-mann, Jr., president of Lafitte, stating that he is familiar with the books and business of that company and that the attached account was just and correct within the knowledge of affiant, that the items thereon were sold to the defendant at its request and that credit has been given duly for all payments and just and lawful offsets to which said account is entitled. The record also contains a copy of the accounts receivable ledger in the name of “Robert Brothers Homes, Inc.,” and invoices evidencing sales to that defendant.

Additionally, in the record is also an agreement signed by defendant Robert Neider obligating him to a delinquency charge of llh% monthly interest, attorney ■fees (in the event of the necessity of collection), and court costs and giving his personal guarantee to indebtedness.

LSA-C.C.P. art. 1702 states:

“A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. If no answer is filed timely, this confirmation may be made after two days, exclusive of holidays, from the entry of the judgment of default.
“When the sum due is on an open account, promissory note or other negotiable instrument, an affidavit of the correctness thereof shall be prima facie proof. When the demand is based upon a promissory note or other negotiable instrument, no proof of any signature thereon shall be required.”

LSA-C.C.P. art. 4916 also provides:

“A. If the defendant fails to answer timely, or if he fails to appear at the trial, and the plaintiff proves his case, a final judgment in favor of plaintiff may be rendered. No prior default is necessary. “B. The plaintiff may obtain a final judgment only by producing relevant and competent evidence which establishes a prima facie case. When the suit is for a sum due on an open account, promissory note, negotiable instrument or other conventional obligation, prima facie proof may be submitted by affidavit. When the demand is based upon a promissory note or other negotiable instrument, no proof of any signature thereon shall be required.”

The applicable law in regard to a judgment of this type was analyzed in Premier Brands, Inc. v. Martiny, 377 So.2d 864 (La.App. 4th Cir. 1979), wherein the only evidence offered at the hearing was an affidavit by plaintiff’s attorney (stating he was familiar with the account sued on and that the amount shown thereon was justly due and owing in full), the pleadings, an invoice and a copy of the personal guarantee. The court stated therein at 865:

“Assuming the petition states a cause of action against Lloyd 0. Martiny, Jr., it is clear the only basis for such liability is the personal guarantee allegedly executed by him. However, the law is clear that a default judgment may not be taken on a non-negotiable instrument without due proof being made regarding the defendant’s signature. Article 1702 of the Code of Civil Procedure provides:
‘A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. If no answer is filed timely, this confirmation may be made after two days, exclusive of holidays, from the entry of the judgment of default.
When the sum due is on an open account, promissory note or other negotiable instrument, an affidavit of the correctness thereof shall be prima facie proof. When the demand is based upon a promissory note or other negotiable instrument, no proof of any signature thereon shall be required.’ LSA-C.C.P. Art. 1702.
“This article explicitly provides a plaintiff must make a prima facie case to obtain a default judgment. The jurisprudence has added that evidence offered in support of a judgment by default must prove the essential allegations of the petition to the same extent required if those allegations had been specifically denied.
“In the present case defendant’s liability cannot be based on his alleged personal guarantee. The above quoted Article 1702 provides an affidavit asserting the liability of a defendant on an open account or on a negotiable instrument is prima facie proof and dispenses with proof of signatures on such notes and other negotiable instruments. Proof in support of a default judgment by such means is thus restricted to open accounts and negotiable instruments. However, a personal guarantee is a contract similar to that of suretyship; it is neither a negotiable instrument nor an open account; and the signature thereon must be proved. Since Article 1702 restricts pri-ma facie proof by affidavit to the limited instances mentioned therein, a defendant’s liability on other type contracts cannot be made by affidavit under this article. As the plaintiff in this case has failed to prove appellant’s signature on the personal guarantee, it has failed to make out a prima facie case against him and the judgment appealed from cannot stand.”

In the present case this court can find no error in the parish court’s granting of a default judgment against the defendant corporation based on the affidavit of the president of the plaintiff corporation along with substantiating ledger sheets and invoices. LSA-C.C.P. arts. 1702 and 4916.

Neither can we find merit in defendants’ argument, citing Rainey v. Riley, 388 So.2d 110 (La.App. 1st Cir. 1980), that the records of the plaintiff company evidencing the indebtedness of the defendant Robert Bros. Homes, Inc., should be considered hearsay and, therefore, were not admissible. These records were, in fact, competently identified by the affidavit of Wegmann and introduced into the evidence along with that affidavit at the time of the hearing when the attorney for the plaintiff offered the entire record.

However, we must hold the trial court did err in granting judgment against the defendant Neider personally and in granting the plaintiff interest and attorney fees, due to the fact that the signature of that defendant on the personal guarantee, which is neither a negotiable instrument nor an open account, was not proven. LSA-C.C.P. arts. 1702 and 4916; Premier Brands, Inc. v. Martiny, supra.

For the reasons assigned, therefore, that part of the parish court judgment rendered against defendant Robert Neider personally is vacated; additionally, that part of the judgment ordering the defendants to pay interest at the rate of IV2% per month from the date of judicial demand plus 25% of the sums for which they were cast as attorney fees is also vacated. That part of the parish court judgment in favor of the plaintiff and against the defendant Robert Bros. Homes, Inc., in the sum of $2,283.59 is affirmed, with interest from date of judicial demand until paid, and this defendant is to pay all costs of these proceedings.

VACATED IN PART AND AFFIRMED IN PART.


text:
    Phil John MARTIN v. H. B. ZACHRY COMPANY, et al.
    No. 5-108.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1982.
    Rehearing Denied April 16, 1982.

      Gordon Hackman, Boutte, for plaintiff-appellant.
    Lemle, Kelleher, Kohlmeyer & Matthews, Darryl J. Foster, New Orleans, for defendants-appellees.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   CHEHARDY, Judge.

Plaintiff, Phil John Martin, appeals a district court judgment in favor of the defendants, H. B. Zachry Company (Zachry) and Employers National Insurance Company, and against the plaintiff, dismissing his suit for workmen’s compensation benefits at his costs.

The plaintiff was injured on September 24, 1975 during the course and scope of his employment with Zachry. At that time he was working as an electrician, making $8.60 an hour. He testified on that date he tripped while carrying a load and twisted to prevent himself from falling. He was subsequently brought by ambulance to the office of Dr. Walter Brent.

Dr. Brent, stipulated to as an expert in orthopedic surgery, testified by deposition. He said on the date of injury Martin exhibited a spasm in the lumbar spine and suffered pain in his back area on attempting to stand erect. He felt the patient had a very acute back spasm and admitted him to a hospital.

While the plaintiff was hospitalized, Dr. Brent stated that a myelogram was performed which he and the attending radiologist interpreted as normal, and he said there were no signs of nerve root compression from the disc. He testified that if Martin had suffered a ruptured disc as a result of the September, 1975 accident he would have expected a positive myelogram and that this type of test is 80 percent accurate.

After discharge from the hospital, Dr. Brent saw the patient on a number of occasions in his office and, although he still complained of some pain, Martin stated it was better and then became worse. The physician placed him on additional medications and hot tub soaks and said there were no objective findings to substantiate his complaints of pain. He further testified that he could not account for Martin’s continued subjective complaints, felt there was no further need for orthopedic treatment, and discharged the patient on January 7, 1976. He said as of that date he felt the plaintiff could return to work with no restrictions and added that if a patient such as Martin had been operated on some two years after the subject accident for a ruptured disc, he would feel it had been caused by something other than the 1975 work-related injury.

Dr. John Jackson, stipulated to by the parties as an expert in neurosurgery, testified by deposition that Martin was referred to him by Dr. Brent for a neurologic examination, the results of which were completely normal. He said he also interpreted the myelogram previously done on Martin as normal, but to rule out a “bulging disc,” he recommended the plaintiff undergo a disco-gram, done by Dr. Jackson personally, the results of which were also normal.

Dr. Jackson explained that the percentage of reliability of a discogram is approximately 98 percent, whereas myelograms are 80 percent accurate. He stated that he again saw Martin in May of 1976 and felt at that time his complaints were on a muscle basis with a lot of psychological overlay. He also stated that any number of everyday activities can account for a ruptured disc. Dr. Jackson said, “Trauma, if its going to cause a ruptured disc, should show up within a few weeks or a few months after the injury.” And he added he was “certain” the plaintiff did not have a ruptured disc when he saw him in December of 1975, several months after the accident.

The plaintiff was seen two years after the accident by Dr. Courtney L. Russo, an orthopedic surgeon. Dr. Russo testified by deposition that he first treated the plaintiff nonoperatively with bed rest, traction, heat, sedation and, when Martin failed to respond to treatment, he performed a second myelo-gram, which he interpreted as abnormal. He said he operated on the patient, doing a lumbar laminectomy with discectomy in order to remove a ruptured disc.

Dr. Russo had no explanation when asked why the other physicians who previously treated Martin found no pathology related to the plaintiff’s symptoms. He said he found no extraordinary emotional overlay in this patient and that he would discourage Martin from returning to lifting heavy objects because of the chance of repeated rupture at the same level or at different levels and the slight weakening of the spine as a result of the operation. However, he said the plaintiff may bend, climb, stoop, and use heavy equipment with his hands, but not with his back. When asked if it were more probable than not that the disc removed in 1977 was related to the accident which occurred in September of 1975, the physician said he could not say “one way or the other.” Dr. Russo said that when he last saw the plaintiff on April 10, 1979 he had a 5- to 10-percent whole body physical impairment and that this was the same rating he would give to anyone who has had a lumbar laminectomy with intermittent discomfort and stiffness with a negative neurological examination.

After the patient was discharged by Dr. Brent, he was treated by Dr. Frank Mooring, a chiropractor, who testified he administered treatment consisting of chiropractic adjustment and mechanical manipulation, diathermy and muscle stimulation.

The plaintiff testified at trial that since the date of the accident he is no longer able to carry out the functions of lifting, bending, and climbing that he previously performed in connection with his employment. He said that since the date his compensation payments were stopped in January of 1976 he has worked for his father doing light duty.

Malcolm Martin, the plaintiff’s father, testified that he lived next door to his son, who he said never complained of leg or back pains prior to the September, 1975 accident. He also said the plaintiff worked for him in a limited capacity doing paper work, working up estimates and bids, writing bills and giving technical advice to other employees. He said after the operation his son’s complaints decreased and he now works for him but does no climbing or lifting of heavy objects, nor does he stay in a stooped position for any length of time. During the three years the plaintiff has worked for him, the elder Martin said on seven or eight occasions he has had to stay home for as many as two or three days at a time. He said on those occasions when he was not able to do anything he was still paid his regular salary. He also admitted on cross-examination that he paid his son 13 hours per week of overtime.

At trial the report of another neurosurgeon, Dr. Richard W. Levy, to whom plaintiff was referred by his attorney, was also introduced, and it stated that the physician could not find evidence of a ruptured disc.

In his reasons for judgment, the district court judge noted that he must rely on the preponderance of medical opinion that no causal connection exists between the “incidents,” referring to the disc problem in September, 1977 and the accident sustained by the plaintiff in 1975.

Plaintiff argues on appeal that he should be declared totally and permanently disabled since he has established a prima facie case that because of his physical impairment he can perform no services other than those which are so limited in quality, dependability or quantity that a reasonably stable market for them does not exist. In support of this contention, the plaintiff cites Calogero v. City of New Orleans, 397 So.2d 1252 (La.1980), wherein the court also stated that the above “odd lot” doctrine can also be applied if a worker’s pain appreciably limits types of work available to him and greatly diminishes his ability to compete in the labor market.

The plaintiff also cites the case of Lindsey v. H. A. Lott, Inc., 387 So.2d 1091, 1092 (La.1980), wherein the court stated:

“As in any other civil suit the plaintiff in a workmen’s compensation action has the burden of establishing his disability and the causal relation between it and the accident by a preponderance of the evidence. This court has held, however, that a claimant’s disability is presumed to have resulted from an accident if, before the accident, the injured person was in good health, the symptoms of the disabling condition appearing after the accident and manifesting themselves continuously afterwards, providing there is a reasonable possibility of causal connection between the accident and the disabling condition. Lucas v. Insurance Company of North America, 342 So.2d 591 (La.1977); Gradney v. Vancouver Plywood Co., 299 So.2d 347 (La.1974); Johnson v. Travelers Insurance Co., 284 So.2d 888 (La.1973).”

In the Lindsey case, the court reversed the appellate court and the trial court and remanded the case to the trial court after it determined that the plaintiff had met his burden of proving by a preponderance of the evidence that his disabling condition was caused by the accident he suffered while in the employ of the defendant. However, in Lindsey the court noted, in so concluding, that: “[t]he medical testimony was clearly to the effect that the accident was at least a reasonably possible cause of the condition for which the plaintiff was diagnosed.” 387 So.2d at 1092-1093.

In the present case, conversely, all the medical testimony, with the exception of that of Dr. Russo, was uncontradicted that the ruptured disc diagnosed and operated on two years after the plaintiff’s employment accident was not caused by that accident. Even Dr. Russo, moreover, could only testify that, in regard to the causal connection between the accident and the ruptured disc, he could not say one way or another if it was more probable than not. This court, therefore, although following the dictates of the Lindsey case, must agree with the trial court that the medical testimony in the present case has disproven the reasonable possibility of a causal connection between the accident and the disabling condition, the ruptured disc, in spite of testimony that the plaintiff was in good health before the accident and has complained of pain continuously since the date of that occurrence.

This court, moreover, is bound to the following scope of review, in a case such as the present one, articulated in Crump v. Hartford Acc. & Indem. Co., 367 So.2d 300 (La.1979), at 301-302:

“On appellate review, the trial court’s factual findings of work-connected disability are entitled to great weight. They should not be disturbed where there is evidence before the trier of fact which, upon the latter’s reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s findings, unless clearly wrong. The reviewing court should not disturb reasonable evaluations of credibility and reasonable inferences of fact by the trial court, even though the reviewing court is of the opinion that other evaluations and inferences are as reasonable.
“See: Cadiere v. West Gibson Products Company, 364 So.2d 998 (La.1978); Aleman v. Lionel F. Favret Co., Inc., 349 So.2d 262 (La.1977); Gradney v. Vancouver Plywood Co., Inc., 299 So.2d 347 (La. 1974). See also Canter v. Koehring, 283 So.2d 716 (La.1973).
“As noted by these decisions, the reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.”

As explained above, there is ample evidence in the record to sustain the district judge’s conclusion that the disability the plaintiff suffered immediately prior to his operation (ruptured disc) and impairment he suffered subsequent to that procedure were not causally related to his employment accident.

For the reasons assigned, therefore, the trial court judgment dismissing the plaintiff’s suit at his costs is affirmed.

AFFIRMED.


author: CIACCIO, Judge.

text:
    Armond J. EITMANN v. M. G. WEST.
    No. 12571.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1982.
    Rehearing Denied April 16, 1982.
    Ferdinand J. Kleppner of Grisbaum & Kleppner, Metairie, for plaintiff-appellee.
    James H. Drury of Drury, Lozes & Curry, New Orleans, for defendant-appellant; Catherine Maureen Blackburn, New Orleans, of counsel.
    Before REDMANN, SCHOTT and CIAC-CIO, JJ.
   CIACCIO, Judge.

This is an appeal from a judgment of the Civil District Court which awarded damages to the plaintiff for injuries he sustained as a result of certain alleged intentional tortious actions of a fellow employee. We reverse that decision.

Plaintiff, Armond J. Eitmann, filed an action for damages against defendant, M. G. West, his former supervisor at New Orleans Public Service, Inc. The suit was based upon the supervisor’s alleged willful refusal to allow the plaintiff to take required medication and treatment during working hours for a prior back injury that plaintiff had not completely recovered from on the date he was instructed to resume full time but modified duty.

The trial judge rendered judgment in favor of the plaintiff in the amount of five thousand dollars ($5,000), from which judgment the defendant filed this appeal.

The facts as disclosed by the record are as follows: The plaintiff was employed as a lineman for New Orleans Public Service, Inc. (NOPSI). His duties required him to install crossarms on utility poles, set poles, run cross wires, and connect wiring to the insulators on the crossarms and onto the poles. He was injured on February 17,1976 while attempting to lift several spans of aluminum wire to be installed onto a utility pole, at which time he experienced severe pains in his back and legs. He was treated by the company physician, Dr. Charles Peterson, who diagnosed his injuries as muscle sprain. Dr. Peterson prescribed analgestic medications and the application of local heat. Dr. Peterson subsequently referred plaintiff for examination and treatment by Dr. Harold M. Stokes, an orthopedic specialist.

Dr. Stokes examined the plaintiff on March 10, 1976, found no evidence of nerve root compression or irritation in the lumbar region, expressed his approval of the conservative treatment involving analgesic medications and the application of local heat and expressed the opinion that, as plaintiff’s symptoms subsided, he could be returned to his regular work at Dr. Peterson’s discretion.

Dr. Stokes’ written report dated March 10, 1976 was mailed to Dr. Charles W. Peterson, Jr. at his NOPSI medical office. No copy of this report or of the numerous medical reports of other doctors introduced in the record indicate that any copies were mailed to the defendant. On direct examination, defendant testified that he never received copies of any medical reports as they were either forwarded directly to the company physician or to the claims department.

Despite treatment, plaintiff’s complaints persisted. On August 20, 1976 Dr. Peterson referred plaintiff to the offices of Dr. A. Correa and Dr. R. C. Llewellyn, neurosurgeons, for additional examination and/or treatment. Dr. Correa rendered a report on September 13, 1976, addressed to Dr. Peterson at NOPSI’s office, reaffirming that plaintiff was probably suffering from a cervical and lumbo-sacral sprain with the low back giving him the most discomfort. He recommended that plaintiff be hospitalized for an initial trial of conservative treatment to include physical therapy and pelvic traction and further indicated that the plaintiff might require a myelogram to rule out the possibility of disc herniation if he did not respond to this conservative treatment. A subsequent myelogram disclosed that plaintiff was suffering from a double ruptured disc.

Dr. Llewellyn operated on the plaintiff on September 10, 1976 and performed a discec-tomy of L — 4 and L-5 to repair the disc ruptures. Dr. Llewellyn became the treating physician for plaintiff subsequent to the operation and routinely rendered medical reports addressed to Dr. Peterson, to plaintiff and to Dr. Louis Oms, a personal physician apparently selected by plaintiff. The exhibits indicate that copies of some of the reports were sent to Mr. T. K. Schimpf, an employee in the claims department of NOP-SI, but none of the copies were forwarded to defendant.

From January 27, 1977 through May 20, 1977 upon the instructions of Dr. Llewellyn, the plaintiff returned to a modified job assignment. He was instructed not to squat, climb, or lift. He was encouraged by his surgeon to walk, sit, and drive. He was told to use moist heat and rest periods after work, while at home, and during the day if the work schedule permitted it.

On May 4,1977 the NOPSI claims department sent the plaintiff to be reexamined by the orthopedist, Dr. Harold Stokes. In a report dated May 5,1977 addressed to NOP-SI, attention T. K. Schimpf, Dr. Stokes stated, “It is my opinion that this patient should not be doing any work which requires any bending, stooping or heavy lifting. I believe he can be doing sedentary work or work which involves alternating sitting, standing or walking.”

In a postscript to his report Dr. Stokes advised NOPSI that plaintiff wanted copies of the medical report sent to him and to Dr. Llewellyn, and that he had advised plaintiff to contact Mr. Schimpf at NOPSI for the copies as it was against the policy of Dr. Stokes to release reports directly to patients.

On May 17th Dr. Stokes sent a letter to Mr. Schimpf confirming a telephone conversation of May 16th wherein he stated that plaintiff “can be doing eight hours of work daily provided he conform to the restrictions specified in my letter of May 5,1977.” The restrictions in the report of May 5th have been previously cited herein. Neither the report of May 5th nor the letter of May 17th made any reference to medication or the necessity for plaintiff to take hot soaks during work hours.

No other addressees appear on the report and letter other than Mr. Schimpf. Mr. Schimpf did not testify at the trial, although he was subpoenaed, and it was stipulated that his absence was due to his being hospitalized at the time of the trial.

On May 20, 1977, the plaintiff was instructed by Dr. Peterson to return to an eight hour work day of modified duty, and Dr. Peterson signed a work authorization form which was required by NOPSI in order for plaintiff to be assigned to full time work status. The plaintiff complained to Mr. Schimpf of the NOPSI claims department that the form made no provision for him to take medication during his eight hour work day or to take hot soaks during the work day.

On this day, the plaintiff was sent by the claims department to the office of the defendant. In conversation with the defendant, the plaintiff objected to being sent back to work for an eight hour day without allowance being made for him to take his hot baths and plaintiff also claims he discussed the omission of mention of his need for medication but defendant denies discussing same. The defendant consulted tel-ephonically with Dr. Peterson and was advised that the plaintiff could take his hot soaks after work. The plaintiff was then instructed to report to work. Defendant testified that at this time he did not know the plaintiff was taking medicine. He denied that he had threatened to fire the plaintiff or that he became angry with the plaintiff.

The plaintiff worked four eight hour days without incident. He took his medication and hot soaks after work. On the fifth day, May 26, 1977, plaintiff, while driving a llA ton truck, struck several bad spots in the street causing plaintiff to be jolted about in the truck. This produced back pains and a jumping feeling in plaintiff’s legs. Plaintiff drove his truck to the main office of NOPSI and sought out Dr. Peterson although plaintiff did not have an appointment to see him. Plaintiff described his present symptoms and complaints and protested his inability to take medication during working hours. Accordingly, Dr. Peterson immediately wrote a new work slip for plaintiff authorizing the plaintiff to take medication while on modified duty. Dr. Peterson’s remarks on the work slip were: “Modified duty — eight hours per day. Should not be driving. Can take medication while working.” This work slip, (Exhibit D-3), and the earlier one, (Exhibit D-2), is a form called “Disposition of Industrial Injury” from the medical department of NOPSI and both were addressed to Mr. L. C. Ramon, Jr. of the NOPSI claims department.

Mr. Eitmann returned with the new form to see Mr. West in his office. While in the office he collapsed and was taken by police emergency unit to Baptist Hospital. He was transferred to Montelepre Hospital where he remained for nine days. While in the hospital he was given medicine, compresses, back rubs and therapy. The plaintiff was released to convalesce at home on June 3, 1977. His condition was diagnosed as severe back spasm with secondary hyperventilation which resulted from extreme pain and agitation. While at home the plaintiff was given pain pills, muscle relaxants and hot baths.

The defendant-appellant argues that his actions did not constitute an “intentional act” within the legal sense in which that term is utilized, as an exception to the exclusive remedy rule of the Louisiana Workmen’s Compensation statute. LSA-R.S. 23:1032. The appellant further argues that the district court judgment is not supported by the facts.

Under the Louisiana Workmen’s Compensation Statute an employee is entitled to compensation for an accident or illness arising out of and in the course of his employment. LSA-R.S. 23:1031 et seq. An “accident” is defined as “an unexpected or unforeseen event happening suddenly or violently, with or without fault and producing at the time objective symptoms of an injury”. LSA-R.S. 23:1021(1). The rationale’ behind the existence of the Workmen’s Compensation provisions is a compromise between the employer and employee. The employer gives up the immunity against liability which he otherwise would enjoy in all cases where he was without fault; in exchange, the employee loses his right of full damages for his injury and accepts instead a limited sum by way of compensation. Malone, Louisiana Workmen’s Compensation, Sec. 361 (1951); Courtney v. BASF Wyandotte Corp., 385 So.2d 391 (La. App. 1st Cir. 1980), writ den., 386 So.2d 359 (1980). The exclusive remedy provision of the Louisiana Compensation Act prevents the employee from seeking recovery in tort for an injury sustained in the course and scope of his employment, which injury was negligently caused by his co-employee or employer. L.S.A.-R.S. 23:1032. Bazley v. Tortorich, 397 So.2d 475 (La.1981); Pflieger v. Haws, 180 So.2d 892 (La.App. 1st Cir. 1964), writ den., 248 La. 908, 182 So.2d 661.

There are two exceptions to the rule that compensation is the employee’s exclusive remedy against a fellow worker or employer, that is: (1) those injuries occasioned by the intentional acts of a fellow worker or employer and (2) those injuries which occur outside the course and scope of the employment. Intentional Act: Bazley v. Tortorich, supra; Guidry v. Aetna Casualty & Surety Company, 359 So.2d 637 (La.App. 1st Cir. 1978), writ den., 362 So.2d 578; Course and Scope: Waggoner v. Kellog-Moore Oil Co., Inc., 375 So.2d 197 (La.App. 2nd Cir. 1979).

An “intentional act” within the meaning of the Louisiana workmen’s compensation laws has been construed to mean the same as an “intentional tort” in reference to civil liability. LSA-R.S. 23:1031 et seq. Bazley v. Tortorich, supra at p. 480.

The Louisiana Supreme Court has defined the test for determining “intent”:

The meaning of “intent” is that the person who acts either (1) consciously desires the physical result of his act, whatever the likelihood of that result happening from his conduct; or (2) knows that that result is substantially certain to follow from his conduct, whatever his desire may be as to that result. Bazley v. Tortorich, supra at p. 481. Restatement of Torts 2d (1965); W. Prosser, Law of Torts 4 ed. at pp. 31-32 (1971).

The meaning of “intentional act” within the framework of the Louisiana compensation statutes exclusive remedy rule has been found, by the Supreme Court, to fit a disjunctive criteria. The Supreme Court explained:

“The meaning of intent in this context is that the defendant either desired to bring about the physical results of his act or believed they were substantially certain to follow from what he did.” ... (Emphasis supplied). “Intent is not, however, limited to consequences which are desired. If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result. Restatement (Second) of Torts, 8A, Comment; Prosser, supra, 8)” Bazley v. Tortorich, supra at p. 482.

An “act” as used in this context means “an external manifestation of the actor’s will which produces consequences.” Bazley v. Tortorich, supra at p. 481.

A review of the record in this matter convinces this Court that there is absolutely no evidence to show that the defendant’s actions towards the plaintiff were motivated by a conscious desire to cause injury to plaintiff, nor does plaintiff’s petition contain any allegations that his co-employee desired to produce the consequences of his acts or believed that injury to the plaintiff was substantially certain to follow his acts. Nor did plaintiff at any time during direct or cross examination assert that the defendant desired to injure him or that defendant knew that injury to plaintiff was substantially certain to result from the orders given by defendant.

There is no dispute that the plaintiff was reexamined by an orthopedist, Dr. Harold Stokes, and interviewed by Dr. Charles Peterson. There is, likewise, no dispute that the defendant had received Dr. Peterson’s report which directed the plaintiff to return to an eight hour work day of modified duty and that he had checked with Dr. Peterson by telephone to verify the doctor’s findings regarding plaintiff’s condition on the day that the plaintiff was instructed to return to full time duty. This Court concludes that the defendant was relying upon these expert medical opinions, albeit erroneous, when he directed the plaintiff to return to work, without making provision for him to take his medicine and hot soaks during the work day.

Apparently, the claims department of NOPSI felt that plaintiff was exaggerating his condition and had monitored his activities prior to the reexamination by Dr. Stokes. Plaintiff had been observed working on the repairs of a mini-bike at his home and assisting in moving furniture and boxes into a new house. West had some knowledge of this. Although defendant may have concluded that plaintiff was exaggerating his symptoms, defendant took no action to order plaintiff to return to full duty until he received the written authorization from Dr. Peterson dated May 20, 1977 (defendant’s Exhibit 2) which specifically authorized plaintiff to “Return to modified duty — eight hours per day. No lifting or straining.” This report contained no information as to medication or the,need for plaintiff to be allowed to take hot soaks during working hours and Dr. Peterson gave no further instructions to defendant regarding these two matters when defendant called Dr. Peterson regarding same on May 20, 1977. Defendant testified that company procedures prohibit the taking of medication under circumstances where the effects of the medication might be dangerous to the safety of the employee or his co-workers, thus, the rule requiring specific medical authorization for the taking of medication while driving a vehicle or performing other hazardous duty. Assuming, arguendo, that defendant exercised poor judgment in making no further inquiry of Dr. Llewellyn or any other physician, such action would be negligence covered by the Workmen’s Compensation Law and would not expose defendant to tort liability.

The reasoning and conclusions of the lower court, that the defendant committed an “intentional act” are erroneous. The lower court did not have the benefit of the lucid Supreme Court opinion in Bazley v. Tortorich, supra, when it decided the instant case.

In its reasons for judgment, the trial court set forth its theory of liability:

However, the evidence indicates that Mr. West did indeed have personal knowledge of the plaintiff’s condition, but that he elected to force plaintiff back to work under conditions which could reasonably be expected to produce injury. (Emphasis supplied) Reasons for Judgment, P. 4.

The test for determining liability is not whether the defendant acted with a “reasonable expectation”, but rather whether he acted with a “substantial certainty”, or with a conscious desire for the results. In this case, the trial court erroneously applied the criteria for determining liability which results from negligence.

The evidence does not support a finding that this defendant consciously desired the physical results of his actions, nor does it support a finding that the defendant knew that the results were substantially certain to follow from his actions.

The trial court erred in its conclusions that the defendant’s actions constituted an intentional act and in awarding damages to the plaintiff.

The judgment of the Civil District Court for the Parish of Orleans is therefore reversed. Judgment is hereby entered in favor of the defendant, M. G. West, and against the plaintiff, Armond J. Eitmann. Costs are to be levied against the plaintiff-appellee.

REVERSED.


author: WILLIAMS, Judge.

text:
    Carroll Keifner, wife of/and Reed W. HOLMES v. TRADIGRAIN, INC.
    No. 12548.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1982.
    Rehearing Denied April 16, 1982.
    Writ Denied May 28, 1982.

      Alonzo T. Stanga, III, Metairie, for plaintiff-appellee.
    Sidney W. Provensal, Jr., New Orleans, for defendant-appellant.
    Before GULOTTA, BYRNES and WILLIAMS, JJ.
   WILLIAMS, Judge.

Plaintiff Carroll Keifner Holmes filed suit against defendant Tradigrain, Inc. to recover wages owed to her and additional penalties and attorneys’ fees as provided by La.R.S. 23:631-32. After a trial on the merits, judgment was entered in favor of the plaintiff awarding her $1,288.63 for past due wages and attorneys’ fees.

On January 3rd, 1980 the plaintiff was hired by the defendant and reported to work on January 21. She was unable to complete allowance certificate forms for federal and state withholding tax [hereinafter referred to as “forms”] at that time because the company did not have any on hand. After only a few days at work, the plaintiff became dissatisfied, and on January 29,1980, informed her supervisor that it was her last day on the job. She introduced a woman to her supervisor as a possible applicant for her position, and did not report to work on the following day.

As of February 4, 1980, the plaintiff had not received any money for the time that she had worked and called Tradigrain to ask for her paycheck. She was told that the forms, ordered on January 21, had been received and would be forwarded to her for signing. On February 12, the defendant received a demand letter from the plaintiff requesting payment of her back wages. On February 13, Tradigrain received a completed but unsigned state form in the mail from the plaintiff. The federal form was not received by the defendant. The state form was returned to the plaintiff for her to sign. On March 4, the defendant was served with the plaintiff’s petition. On the following day, counsel for the defendant wrote a letter to the plaintiff explaining the reason for the delay in paying her and enclosing a check in the amount of $184.51 for her wages.

La.R.S. 23:631 provides that an employer must pay an employee any amount due under the terms of employment within three (3) days of the employee’s resignation or discharge. If the amount due the employee is in dispute, the employer has an obligation to pay the undisputed portion of the amount.

If an employer fails to comply with the requirements of La.R.S. 23:631, the employee may recover the lesser of either: (1) ninety (90) days’ wages at the employee’s daily rate of pay, or (2) full wages from the time demand for payment was made until the employee is paid or else his wages are tendered to him. In addition to penalty wages, an employee may also recover reasonable attorneys’ fees. La.R.S. 23:632. Because this statute is penal in nature, it is to be construed strictly. Seal v. Marco’s, Inc., 343 So.2d 749 (La.App. 3d Cir. 1977).

Plaintiff was under a duty to complete the forms so that the defendant could pay her the amount actually due her. I.R.C. § 3402(f)(2). Her apparent failure to do so, however, does not obviate the defendant’s duty to pay her. Furthermore, the defendant was under an obligation to provide the plaintiff with a form, which was not done. Id. Notwithstanding the plaintiff’s failure to complete the forms, defendant could have paid her by withholding taxes from her as if she had chosen no exemptions. This is the procedure outlined in the Treasury Regulations. Treas.Reg. § 31.3402(f)(2)-l. Furthermore, the Louisiana State Withholding Certificate provides on its face that the employer will withhold state income tax from the wages without exemption if the employee fails to complete this form.

Defendant argues that it was acting in good faith in not paying the plaintiff and that the plaintiff herself was in bad faith in misleading Tradigrain by telling them that she would fill out the withholding forms and mail them back to the company.

In Pace v. Parker Drilling Co. & Subsidiaries, 382 So.2d 988 (La.App. 1st Cir. 1980), the court discussed the question of an employer’s good faith in not issuing an employee’s paycheck within the statutory period. If there is a good faith question as to whether the employer actually owes the wages or where there is an offset to the wages owed, failure to pay will not result in an assessment of penalty wages. When an employer acts arbitrarily, sets out “procedural pitfalls” for the employee, or simply is negligent in failing to pay past due wages, the employer will be subject to payment of penalty wages. Id. at 991, and cases cited therein. See also McCaskili v. Deviney Constr. Co., 323 So.2d 178 (La.App. 3d Cir. 1975).

The evidence presented at trial supports the finding that the defendant was negligent and acted arbitrarily in not paying the plaintiff once she made demand for payment on February 4, 1980. Although Jack Neyens, the plaintiff’s supervisor, testified that the plaintiff would have received her paycheck on February 4, 1981, if she had come in to the office and filled out the forms at that time, the plaintiff herself did not testify that she was told anything other than the need for the forms to be completed. The woman at Tradigrain with whom plaintiff spoke on that date did not testify at trial. Mrs. Holmes testified that she had attempted to speak to Neyens oh February 4, and was told that Neyens would return her call. When Neyens did not call her back, plaintiff attempted to reach him again on the next day and was put on hold for six (6) minutes after which time she hung up. On February 6, she again called Tradigrain and was told that Neyens was in conference. At that time, she testified that she told the person with whom she was speaking that if nothing were going to happen she would have to consult a lawyer.

Defendant claims that plaintiff “waived” her right to have her wages paid according to law by agreeing to complete the withholding forms thereby indicating her willingness to accept payment only after she completed the forms. The testimony of Mrs. Holmes clearly is not reconcilable with this assertion. No one actually a party to the February 4 telephone conversation between Mrs. Holmes and Tradigrain, other than plaintiff, testified at trial. Plaintiff did not testify that she was told that she would be paid only after completing the forms and that she had acquiesced to this demand at that time. Furthermore, Mrs. Holmes’ actions and her repeated telephone calls to Tradigrain could not reasonably have been construed as consistent with a waiver of her right to prompt payment of wages.

Tradigrain was under a duty to pay the money due to the plaintiff and could have done so despite her failure to complete the required forms. For that reason, the trial judge’s determination of damages, including penalties from the date of demand, February 4, 1980, and attorneys’ fees is correct. Furthermore, plaintiff has requested attorneys’ fees for this appeal, and they shall be granted in the amount of $350.00.

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein, in favor of the plaintiff and against the defendant Tradigrain, Inc. in the sum of $1,288.63. The judgment shall carry legal interest from date of judicial demand until paid.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of the plaintiff and against defendant in the sum of $350.00 for attorneys’ fees for this appeal.

AMENDED AND AFFIRMED.

      . Defendant had sent plaintiff her wages after the suit was filed.

      . Furthermore, the defendant was under a duty to pay that amount of wages not in dispute. La.R.S. 23:631. The only dispute between Mrs. Holmes and Tradigrain was the amount of taxes to be withheld. The defendant could have paid the plaintiff, withholding the maximum amount possible, and later determined the exact amount. In fact, this was the eventual result.


author: REDMANN, Judge.

text:
    Frank M. LOPEZ v. SID ODEN AND COMPANY et al.
    No. 12779.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 24, 1982.
    Rehearing Denied April 16, 1982.

    Law Office of Bendana & Carlton, Orlando G. Bendana, Wayne H. Carlton, Jr., New Orleans, for plaintiff-appellant.
    Donovan & Lawler, Robert C. Stern, Me-tairie, for defendants-appellees.
    Before REDMANN, SCHOTT and KLEES, JJ.

       Schott, J., was of the opinion the rehearing should be granted.

   REDMANN, Judge.

Plaintiff appeals from a judgment that denied him workers’ compensation benefits for total and permanent disability and limited his recovery to benefits for 35% disability of a hand. Because the record establishes, and the trial judge himself observed, that plaintiff can not work except in pain we deem substantial, we amend to grant total and permanent disability benefits.

Plaintiff’s left hand injury from an electric table saw left him with disability of the index finger of 50%, of the long finger 100%, and of the ring and little fingers 80% each, and an overall disability of the hand of 35%. The index, middle and ring fingers are partly amputated, and plaintiff suffers from pain in those fingers and up his arm upon forceful contact. This pain is explained by the medical evidence as attributable to neuromas, a frequent result of amputation. Plaintiff can pinch but cannot firmly grasp or hold heavy objects such as sheets of plywood or other large lumber. His testimony, consistent with the medical evidence, is that he cannot at all perform the heavy-work carpentry he always did; he can do trim work but only very slowly, because, for example, he cannot hold a handful of nails with his left hand, and he cannot hammer with his left hand if he uses his right for the nails. Most important, in our view, is plaintiff’s testimony, corroborated by the doctors to the extent above noted, that he can only work in substantial pain caused by contact of the neuromas with any hard surface. Plaintiff has an 11th grade education and no skill other than carpentry.

The trial judge conceded plaintiff’s pain:

I think the man’s hurting. The neuro-ma is no doubt giving him some pain. I mean, even the doctor can see, but that’s the basis for his 35 percent disability. That’s what he said.

The special schedule payments under La. R.S. 23:1221(4), such as awarded by the judgment, are for loss of a member or loss of its function and are not intended otherwise to compensate a worker. The supreme court has observed, Dusang v. Henry C. Beck Bldrs. Inc., 389 So.2d 367, 372 (La.1980), that if plaintiff’s

pain appreciably limits the types of work available to him and greatly diminishes his ability to compete in the labor market, he [can] be treated as an “odd lot” worker and be awarded total disability status, unless there is proof that jobs are realistically available to him.

And there is no point in remanding here to allow defendants to show employment opportunities as in Oster v. Wetzel Printing Inc., 390 So.2d 1318 (La.1980). Rather, as in Wilson v. Ebasco Svcs. Inc., 393 So.2d 1248 (La.1981), because this is a case in which plaintiff’s pain prevents his stable employment in the only kind of work for which he is presently fit, there must be an award for total and permanent disability that leaves open to defendant the right to seek modification under La.R.S. 32:1331 of that judgment should circumstances change. Because plaintiff intends to pursue a college-level training program leading towards the architect’s or contractor’s part of construction work, there is hope that plaintiff may soon become employable. But at this time he is not and unless he is able to educate himself for other work he will not be.

The judgment appealed from is amended to award plaintiff benefits for permanent and total disability, subject to future modification in accordance with R.S. 32:1331, and in all other respects it is affirmed.


author: PONDER, Judge.

text:
    THARPE AND BROOKS, INC. v. ARNOTT CORPORATION, et al.
    No. 14031.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.
    Rehearing Denied April 13, 1982.

      A. Morgan Brian, Jr., New Orleans, for plaintiff-appellant.
    Judith Atkinson Chevalier, Baton Rouge, for Davidson Sash & Door.
    Bernard S. Smith, Covington, for defendants-appellants-intervenors.
    Tom W. Thornhill, Slidell, for Dossman, Keller, St. Tammany Elec.
    Patrick J. Berrigan, Slidell, for Radcliff Materials & Slidell Refrig.
    J. Patrick Beauchamp, Metairie, for Can-cienne.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   PONDER, Judge.

This case is before us on remand from the Supreme Court “to reconsider the mathematical error in Neumiller’s claim” on a writ granted in part to Tharpe and Brooks, Inc. La., 410 So.2d 1145.

We have carefully gone over the evidence and the computations of this claim and are unable to agree that there is any mathematical error.

Neumiller had filed a lien for $11,980.00. In testimony,' however, he stated that his claim was for $11,280.00. We therefore adopted the lower figure even though the trial court had used the higher figure. From this we deducted the disallowed claims of $700.00 for truck rental, $780.00 for materials and $400.00 for wages paid to a third person, leaving a balance of $9,400.00, to which we added $12.00 for the filing of the lien.

Evidently, the confusion has been caused by the fact that there are two $700.00 figures involved in the computation, the $700.00 difference between the lien affidavit and Neumiller’s testimony and the $700.00 truck rental. To accept the argument of Tharpe and Brooks, Inc., would add a third $700.00 item.

We intended to amend the trial court’s judgment in this respect only to take the lower figure testified by Neumiller. We did not intend to deduct the unexplained additional $700.00 urged by applicant. We did not intend to deduct the disallowed items again after the trial court had deducted them already.

Upon reconsideration of the “mathematical error”, we find no mathematical error and therefore affirm the judgment as already rendered.

AFFIRMED.


author: CHIASSON, Judge.

text:
    J. Al AMISS, Sheriff of East Baton Rouge Parish v. W. W. DUMAS, et al.
    No. 14497.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.
    Rehearing Denied April 13, 1982.

      Conrad S. Adkins, William H. Cooper, Baton Rouge, for plaintiff-appellant J. A1 Amiss, Sheriff of East Baton Rouge Parish.
    Frank J. Gremillion, Asst. Parish Atty., Walter G. Monsour, Jr., Parish Atty., Baton Rouge, for defendants-appellees W. W. Dumas, Mayor-President; The City-Parish Council: Edgar L. Watts, Johnny Dykes, William T. Winnfield, Rev. T. J. Jemison, Stanley Gross, Dr. C. P. “Tony” Currier, Earl Day, Jewel Newman, Earl Harrison, George Dabbs, Michael Robique, Pearl George, Howard Marcellus, Carl Crane; City of Baton Rouge and Parish of East Baton Rouge.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   CHIASSON, Judge.

This action was instituted by Sheriff J. A1 Amiss, plaintiff-appellant, seeking a declaratory judgment defining the duties and obligations of his office and that of the City-Parish Council of East Baton Rouge Parish concerning the operation of the East Baton Rouge Parish Prison. Made defendants are the Mayor-President and the members of the City-Parish Council, defendants-appellees, for the City of Baton Rouge and the Parish of East Baton Rouge.

In his petition, Sheriff Amiss states that the suit of Alfred Flowers, et al v. C. Paul Phelps, et al is presently pending before the United States District Court for the Middle District of Louisiana and that the object of the federal action is the operation of the East Baton Rouge Parish Prison at Ryan Airport including the upgrading of the conditions there existing. Sheriff Amiss alleges that the parties herein have attempted to amicably define the extent of their respective responsibilities and duties with regard to the operation, maintenance, and upgrading of the existing conditions at the Parish Prison, but have been unable to do so.

The petitioner prayed that since the federal action directly affects the responsibilities and duties of the parties and as the parties are unable to define the extent of their respective responsibilities, there exists a real and actual controversy concerning the interpretation of the relevant statutes.

The defendants, in their answer, admit that there is a serious controversy existing between the plaintiff and the defendants as to the interpretation of the statutes referred to in the plaintiff’s petition and submit that under La.R.S. 33:4715, the defendants are only to provide the structure, or physical plant, of the jail; that under the provision of La.R.S. 33:1432(1), the defendants are required only to pay to the plaintiff the sum of $3.50 per day for each prisoner in the parish jail and that from this fund, the plaintiff is required to provide all food, eating utensils, all appliances for the preparation of food, and all such items as it may be necessary to keep the prisoners in the parish prison; that the defendants are not responsible for the maintenance of the prison since they do not “operate” the parish jail under the provision of La.R.S. 15:702; and that under the provisions of La.R.S. 15:703, the defendants are required, in connection with the attendance of prisoners who are sick, to pay only the salary of the attending physician.

The district court ruled that:

“. .. (I)n connection with the operation and maintenance of the East Baton Rouge Parish Prison, the Parish of East Baton Rouge is obligated under relevant Louisiana statutes to provide the prison structure, the furniture, fixtures, major equipment and appliances to the Parish Prison, and must provide repairs and alterations to these items. The Sheriff of East Baton Rouge Parish is required to provide the supplies necessary for cleaning and routine daily maintenance.
“. . . that the Parish of East Baton Rouge must provide a physician at the Parish Prison and must pay his salary; however, the sheriff is responsible for the provision of all accessory medical personnel, and must furnish the necessary medicines.
“. .. that the Sheriff of East Baton Rouge is required to provide those items necessary to prepare food for the prison inmates, and must provide those inmates with clothing. The Parish of East Baton Rouge must provide the major appliances such as stoves, refrigerators, washers and dryers.”

It is this judgment which Sheriff Amiss appeals contending that the trial court erred: in finding that the Sheriff is financially responsible for providing supplies necessary for cleaning and routine daily maintenance and for furnishing clothing to the prisoners; in requiring the Sheriff to furnish all accessory medical personnel and only requiring the Parish of East Baton Rouge to provide a physician; and in not requiring the Parish of East Baton Rouge to supply all appliances and equipment necessary to operate the kitchen at the East Baton Rouge Parish Prison.

Defendants-appellees have not filed an answer to this appeal, have not appealed the ruling of the district court and have not favored us with a brief as to their legal contentions.

Pursuant to an order of this court, the Louisiana Sheriff’s Association, Inc. has filed an a micas curiae brief in support of the position taken by Sheriff Amiss.

Because the assignments of error and the laws pertaining thereto are so interrelated, we will treat them together rather than separately.

The responsibility for providing a jail in each parish rests with the police jury of that parish, or, as in the case of East Baton Rouge, the City-Parish Council. La. R.S. 33:4715, in pertinent part, provides:

“The police jury of each parish shall provide ... a good and sufficient jail .... ”

Other statutes relevant to the issues presented herein read, in relevant parts, as follows:

La.R.S. 15:702:
“The governing authority of each parish shall be responsible for the physical maintenance of all parish jails and prisons. In those parishes in which the governing authority operates the parish jail the governing authority shall pass all bylaws and regulations they may deem expedient for the police and good government of the jails and prisons being operated by the parish governing authority.”
La.R.S. 15:703:
“The governing authority of each parish shall appoint annually a physician who shall attend the prisoners whenever they are sick. His salary shall be fixed by the governing authority.”
La.R.S. 15:704:
“Each sheriff shall be the keeper of the public jail of his parish, and shall by all lawful means preserve the peace and apprehend all disturbers thereof, and other public offenders.”
La.R.S. 15:705:
“The sheriffs or jail keepers shall supply each prisoner daily with wholesome food sufficient in quantity for the proper maintenance of life. They shall provide the prisoners with clothing suited to and sufficient for the season.”
La.R.S. 15:757:
“The keeper, or manager, shall enforce cleanliness among the prisoners and compel them to bathe their persons when entering the jail and at least once a week while confined therein. The keeper or manager shall furnish soap and individual towels and clean clothing when the prisoner is not able to provide the wearing apparel, especially underclothing, at the expense of the municipality, parish or state.”
La.R.S. 33:1432:
“The compensation, fees, and costs allowed sheriffs, the parish of Orleans excepted, for all services in criminal matters, shall be the following:
(1) For keeping and feeding of prisoners in jail not less than three dollars and fifty cents per diem for each prisoner. Any surplus funds remaining at the end of the fiscal year shall be returned to the parish governing authority.”
La.R.S. 15:566:
“A. The Department of Corrections shall pay the sum of eighteen dollars and twenty-five cents per day to the sheriff of each parish, or to the governing authority of those parishes in which said authority operates the parish jail, for feeding and maintaining each prisoner who has been convicted of a crime and sentenced to imprisonment at a state penitentiary, who is held in the parish jail without bail, pending an appeal... . ”

Though La.R.S. 15:705 requires that the sheriffs “provide the prisoners with clothing suited to and sufficient for the season”, La.R.S. 15:757 expressly mandates that the clothing, soap and individual towels shall be “at the expense of the municipality, parish or state.” The trial judge clearly erred in his ruling that the sheriff was responsible for the expense of the prisoners’ clothing.

The general scheme which we gather from a reading of all of the statutes is that the City-Parish is responsible for the expenses of establishing, maintaining and operating the jail and for all the expenses of feeding, clothing, and providing medical treatment to the prisoners while the sheriff has the duty of operating the jail and seeing to it that the prisoners are properly cared for, fed and clothed.

These statutes, in effect, establish that prisoners incarcerated in the parish jail, either awaiting trial or serving parish sentences, are wards of the parish and the sheriff is simply the warden (“keeper”) of the parish jail.

While it is true that La.R.S. 15:705 requires that the sheriff feed each prisoner, La.R.S. 33:1432 fixes compensation to be paid to the sheriff by the parish governing authority for the feeding of the prisoners. The compensation paid to the sheriff covers only the cost of the food consumed by the prisoners. By the very act of fixing compensation to be paid to the sheriffs by the governing authority, the statute, in effect, recognizes that the ultimate responsibility for the expenses associated with feeding the prisoners rests with the governing authority and not with the sheriffs. We find no provision in any law which mandates that any of the duties required to be performed by the sheriffs are to be at their expense. There certainly would be no need for compensating the sheriffs for performance of these duties if they were to be at their expense in the first instance.

La.R.S. 15:702 places the responsibility for the physical maintenance of all parish jails and prisons upon the governing authority of each parish. No distinction is made therein between major and minor repairs, major and minor appliances, the general responsibility of the parish governing authority to maintain the prison and the supplies necessary for daily routine maintenance. This statute, along with La.R.S. 33:4715, which requires that the governing authority provide a “good and sufficient jail”, mandates that the parish governing authority is responsible for establishing and maintaining the parish prison which includes all equipment and supplies necessary for the establishment and proper maintenance of the jail.

For these reasons, we find that the trial court erred in holding the Sheriff of East Baton Rouge financially responsible for supplies necessary for cleaning and routine daily maintenance; for all accessory medical personnel and for those items (minor appliances and utensils) necessary to prepare food for the prison inmates.

Though not cited to us by any of the parties, we find that La.R.S. 15:304, if not dispositive of the issues, certainly lends credence to the conclusion we have reached herein.

Said statute reads, in part, as follows: “All expenses incurred in the different parishes of the state or in the city of New Orleans by the arrest, confinement, maintenance and prosecution of persons accused or convicted of crimes, their removal to prison, the pay of witnesses, jurors and all expenses whatever attending criminal proceedings shall be paid by the respective parishes in which the offense charged may have been committed or by the city of New Orleans, as the case may be. The expenses shall be paid by the parish treasurer or by the city of New Orleans after an account of the expenses shall be duly certified to be correct by the presiding judge and the clerk of court. The fees, salaries and expenses to be paid shall be fixed and regulated by the parish or city authority unless otherwise provided by law; ...

For the reasons assigned, we reverse the judgment of the trial court as to those issues presented by the appellant and render judgment herein declaring that in connection with the operation and maintenance of the East Baton Rouge Parish Prison at Ryan Airport, it is the financial responsibility of the City-Parish Council of the City of Baton Rouge and the Parish of East Baton Rouge to pay all the expenses for supplies necessary for cleaning and routine daily maintenance, for all accessory medical personnel, for those items (minor appliances and utensils) necessary to prepare food for the prison inmates and for clothing, in addition to the other financial responsibilities imposed upon the governing authority by the judgment of the trial court.

REVERSED AND RENDERED.

      . Sheriff Amiss’s petition states:
      “Plaintiff, as Sheriff of the Parish of East Baton Rouge, as chief law enforcement officer of the Parish, is statutorily charged, pursuant to LSA-R.S. 15:704 with the responsibility of being the keeper of the public jail of the Parish and is charged, pursuant to LSA-R.S. 15:705 with the feeding and clothing of the prisoners.
      “The defendants, as the Parish governing authority, are statutorily charged, pursuant to LSA-R.S. 33:4715 with providing a good and sufficient jail.
      “In addition to the above referred to statutes, there are other statutes imposing specific responsibilities upon the parties to this action, those statutes include but are not limited to LSA-R.S. 33:1432, LSA-R.S. 15:702, and LSA-R.S. 15:703.”


text:
    Oscar ALLEMAN, et al. v. Steven JOFFRION, et al.
    No. 14530.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.
    Rehearing Denied April 13, 1982.

      Ralph Tureau, Gonzales, for appellant Oscar Alleman.
    Thomas Guzzetta, Thibodaux, for appellant Edgar Alleman.
    Steven Joffrion, Donaldsonville, in pro. per. and for appellee Newton Landry.
    L. Phillip Canova, Jr., Plaquemine, for appellee Harry Guillot.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   PONDER, Judge.

Plaintiffs brought a possessory action against defendants based on defendants’ recordation of a deed. Defendants reconvened asserting a disturbance of their possession by the plaintiffs and sought an injunction. The trial judge ruled in favor of plaintiffs in reconvention and granted the injunction. Plaintiffs appealed.

The issues are failure to consider evidence in a related suit, refusal to consolidate the two suits and proof of possession in appellants and appellees.

After this court in Guillot v. Alleman, 303 So.2d 272 (La.App. 1st Cir. 1974), writs denied 303 So.2d 749 (La.1974), held that Guil-lot was the owner of an undivided eight-ninths (%) interest in the property and Edward Alleman, the father of plaintiffs in the present action, was the owner of an undivided one-ninth (Vh) interest, Guillot filed a partition suit and bid on the property at the partition sale. He then sold the disputed tract to the defendants, Joffrion and Landry.

The latter had the land surveyed and laid out in lots. Shortly thereafter, the survey stakes disappeared. Joffrion and Landry, suspecting the Allemans, filed suit for damages from the trespass. This suit had been tried but not transcribed before the trial of the instant case.

Plaintiff, Edgar Alleman, filed a posses-sory action against defendants, in September of 1979, alleging that recordation of the act of sale to the defendants dated August 31, 1978 and amended February 16, 1979, constituted a disturbance in law. Oscar Alleman, Edgar’s brother, filed a petition of intervention alleging he possessed along with Edgar Alleman. In August of 1980, the defendants filed a reconventional demand alleging their possession had been disturbed.

Appellants contend that the trial court erred in failing to consider the evidence introduced in the prior trespass action brought by Joffrion and Landry against the Allemans. They contend that attorneys in the trespass suit stipulated that the evidence would be applicable to the present case. However, that record was never introduced into evidence. The proper method by which a record of a prior proceeding is made part of a current case is outlined in LSA-R.S. 13:3723. This procedure was not followed.

Records of other proceedings are admissible in evidence in a subsequent suit, but there must be some motion or request to that effect by the party desiring the former record to be admitted; the court will not take judicial notice of the record. Spencer v. Crain, 61 So.2d 613 (La.App. 1st Cir. 1952). We find no error.

Appellants urge that the trial court erred in not consolidating the possessory and trespass actions. However, the language granting the court the power to consolidate is discretionary in nature. La.C.C. P.Art. 1561. We find no abuse.

Appellants contend that the court was in error in finding that Joffrion and Landry had possession and were entitled to an injunction. They assert that occasional visits by Joffrion and Landry were insufficient to constitute possession, that the actions of a survey crew in surveying the line between the instant property and that admittedly belonging to the Allemans were insufficient to put the latter on notice of an adverse claim and that the court’s finding that the crew was on the property on 15 days was based on patently false testimony. The court’s finding that the Allemans knew of the stakes, even though they denied any knowledge of the disappearance, was based upon testimony of at least one of the plaintiffs that he saw the survey party only when the fence, evidently of a catch pen, was destroyed. The court’s finding that there were more than occasional visits was based upon evidence that both Landry and Joffrion, in addition to having the property surveyed, made numerous trips to the property, some with prospective .purchasers of the lots. There was testimony of numerous trips of the survey crew to survey the western line and the lay out of the lots. The court’s finding, too, that all this action could not have occurred without the plaintiff’s knowledge is based upon testimony of witnesses which it found credible. Factual conclusions of the trial court, particularly where the credibility of witnesses is involved should not be disturbed on appellate review except upon a finding of manifest error. Montgomery v. Breaux, 338 So.2d 314 (La.App. 3rd Cir. 1976), writ denied 341 So.2d 410 (La.1977). We find no error.

On the issues of proof of possession by themselves, plaintiffs first complain that the court erred in considering testimony of activity only after the acquisition by Jof-frion and Landry. However, once the trial judge found that plaintiffs in reconvention had proven the requisites of maintaining a possessory action, there was no need for him to consider acts that occurred prior to their acquisition. Also, there was some question whether the Allemans were possessing for themselves as owners prior to their father’s death in 1978.

They complain further that the court erred in finding that their grazing of livestock on the property and their having the grass cut and more grass planted was not sufficient to prove possession in themselves. There was evidence, which evidently the court believed, that the cattle could roam to, on and from the unenclosed property at will. The court was correct in finding that grazing cattle on an unenclosed tract of land is not alone sufficient to prove possession. Mustiful v. Galaspy, 340 So.2d 659 (La.App. 2nd Cir. 1976). Furthermore, Joffrion and Landry testified they did not find this to be an assertion of adverse possession because they did not know who owned the cattle and were receiving the benefit of decreased grass and weeds.

The court agreed that the “chopping” or plowing of the grounds was an act of adverse possession which disturbed the possession of Joffrion and Landry leading to the timely reconventional demand by them.

We find no error.

For these reasons, the judgment of the trial court is affirmed with costs assessed to the appellant.

AFFIRMED.

      . LSA-R.S. 13:3723:
      “Whenever, during the trial of any suit or process, whether civil or criminal, before any of the district courts, either party may desire to offer in evidence any record, paper, or document belonging to the files or records of the district court of the parish in which the trial is proceeding, the presiding judge at the request of such party shall direct the clerk of the district court to produce such record, document, or paper, in order that it may be used in evidence. The clerk in any such case shall not have to make a copy of any such record, document, or paper, unless the case in which it is offered is appealed, in which case the transcript of appeal shall be made up from the papers themselves.”

      . La.C.C.P.Art. 1561:
      “When two or more separate suits involving a common issue of law or fact are pending in the same court, the court, at any time prior to trial, may order the consolidation of the suits for trial or may order a joint trial of any of the common issues.”


author: COLE, Judge.

text:
    George D. HAYNES, d/b/a Geo-Je’s Apparel and North River Insurance Company v. AETNA CASUALTY & SURETY COMPANY and Miller’s Mutual of Texas.
    No. 14551.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.
    Rehearing Denied April 13, 1982.
    Eugene R. Groves, Baton Rouge, for plaintiffs-appellants George D. Haynes, d/b/a Geo-Je’s Apparel and North River Ins. Co.
    Paul Marks, Jr., Baton Rouge, for defendants & third party defendants-appellees Aetna Cas. & Sur. Co. and Standard Fire Ins. Co.
    George M. Pierson, Baton Rouge, for third party defendant-appellee Lee Allen Haynes.
    Richard W. Langford, Baton Rouge, for plaintiff-appellee, Wayne Hair Salon.
    Daniel J. Dziuba and Charles W. Franklin, Baton Rouge, for defendant & third party defendant-appellee Miller’s Mut. Fire Ins. Co. of Texas.

      Before COVINGTON, COLE and WATKINS, JJ.
   COLE, Judge.

The facts giving rise to this litigation are as follows: Plaintiff-appellant George Haynes owns a women’s clothing store known as Geo-Je’s Apparel. Mr. Haynes leases space in the Alamo Plaza Shopping Center which at one time was owned by H & R Mini-Mall, Inc. George’s brother, Lee Allen Haynes, owned a clothing store (Lee Allen’s Fashions For Men) located in the same building. On October 13, 1976, a fire started in Lee Allen’s store and the smoke spread to Geo-Je’s. The interior of Lee Allen’s was destroyed totally and the merchandise in Geo-Je’s was damaged severely by the smoke.

Several suits were filed and consolidated for trial. George Haynes and his insurer, The North River Insurance Company, sued The Miller’s Mutual Fire Insurance Company of Texas (the insurer of H & R Mini-Mall, Inc.) and The Standard Fire Insurance Company (the insurer of Lee Allen’s Fashions For Men). After a lengthy trial the court concluded the building owned by H & R Mini-Mall, Inc. was defective in that the fire walls did not extend to the underside of the roof, as required by the city building code. This defect allowed the smoke to spread to Geo-Je’s through the attic of the building. Therefore judgment was rendered in favor of George Haynes and against Miller’s for $92,229.03 and in favor of North River and against Miller’s for $60,-495.21, the amount Miller’s paid to George Haynes under its policy. The judgment dismissed George Haynes’ claim against Standard and he has appealed this dismissal only. Plaintiff’s insurer, North River, is not a party to this appeal.

Appellant contends the court erred in not finding Standard liable for the damage sustained and in setting the quantum.

After carefully studying the record we are convinced there was no manifest error in the trial court’s refusal to hold Standard liable. In oral reasons, the court stated:

“In regard to the (sic) Lee Allen Haynes and Standard, all of the testimony indicates that this fire began by arson, that there were cans of cleaning fluid, holes were punched in it and the fluid was thrown on the floor. All those who testified, the Baton Rouge Fire Department and other people, clearly,, indicated that there was no evidence in this case that Mr. Lee Allen Haynes was responsible for this.
“As I stated in the opening remarks that I have made, there have been innu-endoes and suggestions that Mr. Haynes or others possibly could have started this fire, and this Court does not find so because that is merely speculation. The plaintiff did not prove his case by a preponderance of the evidence against Standard.” (Emphasis added.)

We agree with this conclusion. The evidence indicates strongly the fire was started deliberately, although it is unknown who started it. Marvin Castello, the fire investigator for the Baton Rouge Fire Department, was accepted as an expert by the court. He testified the burn pattern indicated the fire started in the fitting room where cans of aerosol cleaning fluid were found. The bottoms of the cans had been punctured by a sharp instrument. Mr. Cas-tello stated unequivocally that in his opinion someone had intentionally started the fire although he had no evidence to indicate who was responsible for the act.

Several other witnesses testified they had no information linking Lee Allen Haynes with the fire nor did they have evidence to implicate any particular third person as the arsonist. As the liability insurer of Lee Allen Haynes, Standard cannot be held Hable unless it is proven the insured or someone for whom he is responsible (such as an employee) was the cause of the fire.

Appellant does not contend he has proven his case against Standard by a preponderance of the evidence but argues he has raised a presumption that Lee Allen Haynes or an employee was responsible for the fire. He bases this presumption on the hearsay testimony of Mr. Castello which indicated that after Mr. Haynes and his employees left the store at 6:05 p. m. the evening of the fire, someone entered the store at 6:15 p. m. This information was obtained from records subpoenaed from Alford Safe and Lock Company but not offered into the record as exhibits. Mr. Cas-tello testified he had examined the records and they indicated the person entering the store at 6:15 knew how to operate the burglar alarm system because the alarm was properly turned off and then reset when this individual left the store. The records from Alford show the alarm, indicating there was a fire, went off at 6:23 p. m.

Appellant argues this presumption is sufficient to shift the burden to the defendant insurer to prove its insured (or anyone for whom its insured is responsible) did not start the fire and puts forth four reasons why the burden of proof should be shifted. First, he contends La.Civ.Code art. 667 is applicable and under that article Lee Allen Haynes, as a tenant, is strictly liable for the damage caused by the fire originating in his store. The article reads as follows:

“Although a proprietor may do with his estate whatever he pleases, still he can not make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him.”

We find this article, and the cases cited by appellant, to be completely inapplicable to the present case. The language of the article indicates the owner (or in this case the lessee) of the property is performing an intentional act, i.e., he is “making a work.” In the present case it cannot possibly be said Lee Allen Haynes was involved in an intentional activity on his property. The cases cited in the brief all deal with intentional activities by the owner rather than acts done by third persons.

We agree with the defendant-appellee that the case of Terre Haute Plantation, Inc. v. Louisiana & A. Ry. Co., 210 So.2d 566 (La.App. 4th Cir. 1968) is quite on point. In that case a fire of unknown origin started on defendant’s property and spread to plaintiff’s cane field. The court rejected plaintiff’s argument that article 667 was applicable and stated as follows:

“The short answer to plaintiff’s contention is that this article has application only where the proprietor is carrying on some activity on his property which causes damage to his neighbor. The article has no application to the circumstances of this case. To hold otherwise would cast liability on every landowner on whose property a fire is commenced and spread to neighboring lands even though the cause or origin of the fire was due to the act of trespassers, vandals, lightening or unknown sources not attributable to any conduct or activity on the part of the landowner.”

We agree completely with this reasoning and therefore decline to apply the “strict liability” of art. 667 to the present case.

Second, appellant argues Standard should be held strictly liable on the basis of La.Civ.Code art. 2317. We find this article equally inapplicable to the case at hand. What is the “thing” in Lee Allen Haynes’ custody? Certainly he had custody of the building but the building did not cause the harm. Obviously the fire caused a great deal of damage but can it be seriously argued the fire was in his custody? We think not. The jurisprudence has applied this article to situations where a person has custody of a “defective thing.” However, we refuse to stretch the meaning of the term so far as to state that a burning store is now a “defective thing.” The article simply does not apply to the facts of this case.

Third, appellant contends the doctrine of res ipsa loquitur should apply to shift the burden onto the defendant. Res ipsa is appropriate when the facts of the case suggest the negligence of the defendant as the most plausible explanation of the accident. Boudreaux v. American Ins. Co., 262 La. 721, 264 So.2d 621 (1972). Since the evidence in this case suggests strongly the fire was caused by the deliberate act of some unidentified third person rather than by the defendant’s insured, the doctrine has no application here.

Finally, appellant cites the case of Keller v. Kelly, 378 So.2d 1006 (La.App. 4th Cir. 1979), writ refused 1980, for the proposition that when the tenant can show he did not start the fire, the owner will be responsible. A reading of the case makes it easily distinguishable from the present one. The case was a wrongful death action of a tenant in a motel-apartment. Contrary to the present case, in which the cause of fire was found to be arson, the evidence did not indicate where or how the fire began. A further distinction is that in Keller the evidence established the fire started either as a fault of the owner or as a fault of the other tenants. In the present case the evidence indicates the fire was the deliberate act of a third person, and not the fault of Lee Allen Haynes. Even if we were to consider the hearsay testimony concerning the alarm system, we cannot conclude this creates a presumption Lee Allen Haynes or his employees were responsible for the fire. We have carefully examined the record and conclude that regardless of this testimony the identity of the arsonist is still a matter of pure speculation. We refuse to hold Standard responsible without more evidence to implicate the insured, Lee Allen Haynes. We see no reason to deviate from the traditional rule that plaintiff must prove his case by a preponderance of the evidence. He has not done so in this case and therefore we affirm the judgment of the trial court. Because we have decided Standard has no liability we need not reach the issue of quantum.

For these reasons, the judgment of the trial court is affirmed. Appellant is to pay all costs.

AFFIRMED.

      . Suit was originally filed against The Aetna Casualty & Surety Company under the mistaken belief that Aetna was Lee Allen’s insurer. The petition was amended to correct this error.

      . Those who so testified were Charles Zachariah, insurance adjustor with Southern Adjustment Service; John Pritchett, senior claims representative for Standard; Stafford Rogers, an owner of H & H Mini-Mall; and George Haynes.

      . The article reads in part as follows: “We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody.”

      . See Loescher v. Parr, 324 So.2d 441 (La.1975), rehearing denied 1976; and Marquez v. City Stores Co., 371 So.2d 810 (La.1979).

      . Appellant argues the same reasoning should apply to hold the tenant (rather than the owner) liable.

      . Having held the burden of proof did not shift to appellee, we find no relevancy in plaintiffs argument that the failure of appellee to call Adolpho Gonzales, a store employee who had a key to the premises, created an adverse presumption. Even if this rule of evidence is otherwise applicable, which we do not so hold, appellee was under no constraint to go forward with affirmative evidence upon the failure of plaintiff to prove his case. Thus, there is no underlying basis for the presumption to arise.