author: SCHOTT, Judge.

text:
    Santiago Roberto ANGELI v. PELLERIN MILNOR CORPORATION and the XYZ Insurance Company.
    No. 11335.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1980.

      Warren M. Simon, Jr., Metairie, for defendants-appellants.
    Romualdo Gonzales, Murray, Murray, Ellis, Braden & Landry, New Orleans, for plaintiff-appellee.
    Before SAMUEL, REDMANN and SCHOTT, JJ.
   SCHOTT, Judge.

This appeal is from a judgment awarding plaintiff workmen’s compensation benefits for total and permanent disability resulting from a hernia sustained by plaintiff in January, 1975. Appellants are the employer and its insurer.

The case was previously before another panel of this court on an exception of prescription filed by defendants. In the original opinion the court maintained the exception on the basis that the filing of the suit on February 19, 1976, was too late because plaintiff was advised by a pediatrician on February 15, 1975, that he had a hernia. On rehearing, the court annulled the original decision and remanded the case to the trial court for further evidence including the testimony of the pediatrician. Angeli v. Pellerin Milnor Corp., 358 So.2d 318 (La. App. 4th Cir. 1978). After a trial on remand the trial court overruled the exception of prescription and the case is now before us on both the prescription issue and the original judgment awarding plaintiff benefits for total and permanent disability.

On the prescription issue defendants first question the procedure followed by the trial court in rendering a judgment on the exception. They interpret language in our previous opinion “that it would be appropriate ... to remand to the trial court for presentation of evidence on the plea of prescription ” (Emphasis added) to mean that the trial judge was to compile a record but render no judgment on the exception.

This argument overlooks the last sentence of our previous opinion wherein we remanded the matter “for a trial on the exception” which obviously calls for an adjudication. Furthermore, the trial on remand consisted of the testimony of Dr. Pe-droza which was critical to a determination of the issue and the evaluation of his credibility was essential to a decision. Obviously, this was the function of the trial court and not of this court.

Defendants’ principal argument on the prescription issue is that plaintiff was advised on February 15,1975, by Dr. Pedro-za that he had a hernia, bringing the case squarely within the holding of Points v. D. H. Holmes Co., 260 So.2d 362 (La.App. 4th Cir. 1972). At one point during his cross-examination plaintiff testified that Dr. Pedroza talked to him on February 15:

“He told me he saw I had a hernia, and he told me that he wad going to send me to another doctor, a specialist doctor.”

However, Dr. Pedroza testified unequivocally that he did not diagnose a hernia, that the inguinal rings were open which caused him to consider a possibility of a hernia, and that he referred plaintiff to Dr. Fernandez for a definitive diagnosis. He specifically denied telling plaintiff that he had a hernia although he may have told him that a hernia was possible.

We are confronted with a clear cut determination based on credibility. The trial judge was impressed with plaintiff’s language difficulty (he is from Honduras and prefers Spanish) and his erroneous report of what Dr. Pedroza told him is explained by the language problem. Since plaintiff was not advised by Dr. Fernandez until February 27, 1975, his suit filed on February 19, 1976, was not barred by prescription and the Points case is inapplicable.

On the merits of the case, defendants contend first that plaintiff did not prove that the injury was incurred during the course and scope of his employment. On this issue the trial judge made these findings: Plaintiff’s duties required him to pick up machine housings weighing 70 to 80 pounds and to assist their movement along a conveyor; in early 1975 plaintiff felt pain in his groin area while pushing a machine; while no one could provide the exact date of injury, the employer’s first report of work injury indicates January 22 to 24, 1975, as the date.

The trial judge referred to the testimony of Dr. Fernandez that the hernia’s onset was a gradual thing, probably over a period of weeks or months while it developed and concluded that the accident was within the course and scope of plaintiff’s employment. Since this factual conclusion is supported by the evidence and the reasonable inference that plaintiff probably injured himself while performing this heavy work, such conclusion will not be disturbed by this court.

Defendants next contend that plaintiff was not totally and permanently disabled within the meaning of the compensation statute as it existed in 1975. Dr. Fernandez recommended that plaintiff not return to the heavy work he was doing but be restricted to light work instead. He discussed the poor quality of plaintiff’s muscle tissues and stated that plaintiff was highly vulnerable to reinjury. Furthermore, the trial judge specifically found that plaintiff suffered substantial pain in trying to work as plaintiff testified. The inability of an employee to perform the same duties as he performed prior to his injury except in substantial pain rendered him disabled under the former compensation law.

Finally, defendants contend that plaintiff was disqualified from benefits by his failure to report the accident promptly and seek medical treatment in accordance with R.S. 23:1221(4)(q). In Graver v. Zeeman Enterprises, Inc., 362 So.2d 1228 (La. App. 4th Cir. 1978), we held that an employee who sought medical attention almost ten weeks after the date of the injury was not precluded from recovery because it was reasonable that plaintiff did not realize he had the hernia even though he had pain and discomfort in his groin. Similarly, plaintiff is the instant case testified that he experienced many aches and pains after a day’s work but he had no specific pain in his groin until he spoke to Dr. Pedroza. He testified that he had previously noticed some swelling but no pain in the groin. The record does not show that plaintiff knew or should have known he had a hernia on January 24,1975, or earlier. It is significant that even after Dr. Fernandez diagnosed the hernia a company physician examined plaintiff and did not diagnose a hernia. Thus, it would be unreasonable to require plaintiff to report a hernia injury and seek medical attention within thirty days after January 24 when the hernia could not be clearly diagnosed by a physician much less by himself.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    Brian JACKSON v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 11363.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1980.
    Floyd F. Greene, New Orleans, for defendant-appellant.
    Mayer Finkelstein, New Orleans, for plaintiff-appellee.
    Before SAMUEL, REDMANN and SCHOTT, JJ.
   SCHOTT, Judge.

In this workmen’s compensation case plaintiff sought benefits for total and permanent disability arising out of an accident on the job on April 8,1974. The trial court awarded plaintiff benefits for total disability for a period of 13 weeks at $65 per week beginning June 14, 1974, and ending September 14, 1974. Defendant has appealed, contending that the evidence does not support the judgment and alternatively that compensation benefits should have been terminated on July 14. The issue is whether the record as constituted warrants a reversal or modification of the judgment.

The only evidence in the record is the testimony of plaintiff. Following the accident he was taken to the hospital for a week, and upon his release was treated by Dr. Peterson, the company physician, until June 14, 1974, when he was discharged and certified as able to return to work. He was paid full compensation benefits from the date of the accident until June 14. Because he was still having pain and was unable to work he consulted Dr. Fisher by whom he was treated and discharged on July 14, with the advice that if he had further difficulty he should return to the doctor. He never returned. Asked whether he continued to have trouble with his thigh after being discharged by Dr. Fisher he testified that he didn’t have any trouble until he went into the service because he hadn’t engaged in any strenuous activity, but once in the service he started having trouble with his leg. Furthermore, he was treated by physicians in the Air Force and was restricted in his activities so as to avoid prolonged walking, standing or climbing. He testified that his “medical profile” was adjusted to show that he had these restrictions in his activities.

Defendant bases its argument on the absence of anything in the record to support a cut-off date of September 14. Although the record does not disclose the significance of that date defendant’s counsel advised in oral argument that this was the date of plaintiff’s entering the Air Force. The problem with defendant’s argument is that the record lodged in this court does not include some eight plaintiff’s exhibits that were offered at the beginning of the trial. Those exhibits include reports of Dr. Fisher who had died before the trial, reports by Drs. Grunsten, Stokes and Peterson, X-ray reports from Dr. Herd, drugstore bill and a certified copy of plaintiff’s medical report and profile from the Department of Air Force, consisting of 28 pages dated February 16, 1976. The trial judge had the benefit of these exhibits and the Air Force profile in particular. We must assume that this Air Force profile corroborated plaintiff’s testimony of continuing disability after July 14 and provided the trial judge with a basis for granting of benefits until September 14.

The burden is on appellant to demonstrate error in the record. Without these exhibits, and particularly the Air Force report, we must presume that they supported the trial judge and will affirm the judgment on the basis of defendant-appellant’s failure to demonstrate error.

Finally, defendant did admit that he had applied for unemployment compensation benefits in his application after being discharged by Dr. Fisher and represented that he was physically able to work. We do not agree with defendant that this necessarily precludes plaintiff from obtaining workmen’s compensation benefits for the disputed period. The evidence of the application must be considered along with all the other evidence but it does not in itself preclude plaintiff from recovering benefits at the time he was applying for the unemployment compensation benefits.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.


author: REDMANN, Judge.

text:
    STATE of Louisiana In the Interest of Terri THACKER.
    No. 11371.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1980.

      William C. Credo, III, Asst. Dist. Atty., Parish of Jefferson, Gretna, for State of Louisiana.
    George Troxell, 24th Judicial Dist. Indigent Defender Bd., New Orleans, for. Terri Thacker.
    Jack E. Hoffstadt, New Orleans, for Mr. and Mrs. Henry Lee.
    Before SAMUEL, REDMANN- and SCHOTT, JJ.
   REDMANN, Judge.

Juvenile Terri Thacker, now 16 years old, was adjudicated delinquent on the ground that she committed a simple battery. Five days before the expiration of her six-month commitment to the Department of Corrections, she was released on parole. She was thereafter charged with parole violation because she ran away from the home of her grandparents, to whom she had been released.

The record solidly justifies concern for the juvenile’s wellbeing. That concern expressly motivated the trial judge to order her committed for up to a year, and it is from that disposition that she now appeals. The problem with that best-intended disposition is that La.C.J.P. 89B disallows commitment “for a period exceeding the maximum term of imprisonment for the offense forming the basis for the adjudication.” The maximum imprisonment for simple battery is six months, R.S. 14:35, and the maximum imprisonment for parole violation is the remainder of the original sentence, R.S. 15:574.9E.

The State’s argument that R.S. 15:574.13 makes § 574.9 inapplicable to juveniles misses the point. We do not apply § 574.9 to release the juvenile as if she were an adult; we apply art. 89B to release her because § 574.9 would release an adult and art. 89B prohibits holding a juvenile longer than an adult could be held for the same offense.

Accordingly, on the charge of parole violation under our circumstances, insofar as the commitment exceeded five days it must be set aside and reduced to five days.

The evident need for society’s intervention to help this juvenile must be fulfilled, if at all, on some basis other than this petition based on parole violation as a runaway.

The disposition is amended by reducing commitment to five days, and the juvenile is ordered discharged forthwith, as soon as possible after this judgment is handed down.


author: SAMUEL, Judge.

text:
    Curtis RAYMOND v. Sharon ZERINGUE et al.
    No. 11615.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1980.
    Writ Refused Sept. 19, 1980.
    Gordon Hackman, Boutte, for relator.
    Before SAMUEL, REDMANN and SCHOTT, JJ.
   SAMUEL, Judge.

This matter is before us on our grant of certiorari to review the trial court’s refusal to consider the application of plaintiff-relator to proceed in forma pauperis.

Plaintiff’s suit seeks recovery of damages allegedly resulting from a vehicular collision. He attached to his petition affidavits (his own and that of a third person) of his poverty and inability to pay court costs in advance, or as they accrue, or to furnish security therefor. Based solely on the fact that plaintiff had not complied with Rule XVIII of the Twenty-Third Judicial District Court, the trial judge refused to consider the question of whether plaintiff was entitled to litigate in forma pauperis. The issue before us is whether that court rule is in conflict with legislation regulating the institution of suits in forma pauperis.

Rule. XVIII of the Twenty-Third Judicial District Court reads as follows:

“Before ordering the filing of a suit in forma pauperis the petitioner, his attorney, and two affiants shall appear and satisfy the Court of the litigants’ right to proceed in this manner.”

Pertinent to the issue before us is Code of Civil Procedure Article 5183, which reads:

“A person who wishes to exercise the privilege granted in this Chapter shall apply to the court for permission to do so in his first pleading, or in an ex parte written motion if requested later, to which he shall annex:
“(1) His affidavit that he is unable to pay the costs of court in advance, or as they accrue, or to furnish security therefor, because of his poverty and lack of' means; and
“(2) The affidavit of a third person other than his attorney that he knows the applicant, knows his financial condition, and believes that he is unable to pay the costs of court in advance, or as they accrue, or to furnish security therefor.
“When the application and supporting affidavits are presented to the court, it shall inquire into the facts, and if satisfied that the applicant is entitled to the privilege granted in this Chapter, it shall render an order permitting the applicant to litigate, or to continue the litigation of, the action or proceeding without paying the costs in advance, or as they accrue, or furnishing security therefor.”

We note the last paragraph of the above-quoted Article 5183 provides the court “shall” inquire into the facts, and if satisfied the applicant is entitled to proceed in forma pauperis, shall render an order permitting the same. The court is not only permitted, it has the mandatory duty, to inquire into the facts and it can do so to any reasonable degree in any case. Accordingly, with the exception of the requirement of two affiants in addition to the petitioner (Article 5183 requires only the affidavit of the petitioner and one other person), there may be merit in the argument that by an appropriate rule the court validly can impose upon itself the burden of making a full inquiry into every application for permission to proceed in forma pauperis. However, we must and do follow the holding of the Supreme Court in Futch v. Coumes, which disallows requiring routine personal appearances prior to granting permission to proceed in forma pauperis.

Futch was concerned with a court rule which required an appearance by the applicant, his attorney, and the affiant (who attested to the applicant’s poverty) before the Clerk of Court to execute the required affidavits. The rule also authorized the clerk to inquire as to the financial condition of the litigant and, if satisfied the party was entitled to proceed in forma pauperis, to sign an order permitting such procedure. The majority opinion in Futch makes it clear that it was not the requirement that the application be initially presented to the clerk rather than to a judge, nor the fact that the clerk made the preliminary determination to grant the application on the basis of his inquiry, that invalidated the rule. It was on the basis of the following quoted statement (at page 1124) that the Futch court, in effect, held the rule invalid:

“To require a litigant routinely to appear personally at a mini-hearing at the courthouse, before being permitted to exercise his statutory privilege, is inconsistent with this statutory scheme.”

In the case now before us the court rule specifically requires the appearance which, the Futch court concluded, made the rule invalid in that case.

For the reasons assigned, we hold Rule XVIII of the Twenty-Third Judicial District Court is invalid and order the respondent judge to consider and act upon relator’s application to proceed in forma pauperis.

COURT RULE HELD INVALID

      . C.C.P. art. 193 permits the adoption of court rules “which are not contrary to the rules provided by law.”

      . La., 347 So.2d 1121.


text:
    LENFANTS CATERERS, INC. v. FIREMEN’S CHARITABLE AND BENEVOLENT ASSOCIATION OF NEW ORLEANS.
    No. 11662.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 2, 1980.

      Max Nathan, Jr., Michael Braunstein, Peter S. Title, New Orleans, for relator.
    Joseph W. Nelkin, Gregory J. Avery, New Orleans, for respondent.
    Before SAMUEL, REDMANN and SCHOTT, JJ.
   SAMUEL, Judge.

We grant the defendant-relator’s application for writs.

Relator is the owner of certain immovable property in New Orleans, bearing Municipal No. 5236 Canal Boulevard, which it leased to the respondent for a term of five years ending March 31, 1980. Under the terms of the lease respondent had a right to renew for another five year term, but the lease requested that notice of intention to renew be sent to the lessor not less than six months before the expiration of the primary term. Respondent attempted to exercise its right to renew but, contending the notice of intention to renew was not given timely, relator sent two notices to vacate, one on February 13, 1980 and the other on March 7, 1980 stating the lease would expire, or had expired, on March 31, 1980 because it had not been properly renewed.

Thereafter, on March 14, 1980, contending it had properly exercised its right to renew, respondent filed this suit in the Civil District Court for the Parish of Orleans, seeking to restrain and enjoin relator “from interfering with the rights of Lenfants to occupy the premises.”

Following trial of a rule to show cause, this judgment was rendered:

“IT IS ORDERED, ADJUDGED AND DECREED that a preliminary injunction issue herein enjoining the Fireman’s Charitable & Benevolent Association of New Orleans, its agents, and employees from precluding Lefants Caterers, Inc., from the free exercise of its rights under the lease, including the renewal of the lease for five years, commencing April 1, 1980 pursuant to the terms of the lease.’’ (Emphasis ours)

The trial court did not fix an amount of security to be furnished and the injunction was issued without bond.

In this court relator makes the following contentions: (1) a preliminary injunction may not issue without bond in this case; (2) the injunction in this case is overbroad; and (3) a lessor cannot validly be enjoined from exercising his right to file summary proceedings against his tenant for possession of the leased premises at the expiration, or contended expiration, of the lease. We agree with all three of these contentions.

Code of Civil Procedure Article 3610 is controlling as to the first contention. That article reads:

“A temporary restraining order or preliminary injunction shall not issue unless the applicant furnishes security in the amount fixed by the court, except where security is dispensed with by law. The security shall indemnify the person wrongfully restrained or enjoined for the payment of costs incurred and damages sustained.” (Emphasis ours)

We have not been cited to any law dispensing with security under the facts of this case, and we know of none. Accordingly, the preliminary injunction here complained of is invalid because it was issued without bond.

Relative to the second contention, in pertinent part Code of Civil Procedure Article 3605 provides:

“An order granting either a preliminary or a final injunction or a temporary restraining order shall describe in reasonable detail, and not by mere reference to the petition or other documents, the act or acts sought to be restrained.” (Emphasis ours)

The judgment in the instant case fails to comply with that requirement. It does not describe in reasonable detail the act or acts sought to be enjoined and it is invalid for that reason.

The Supreme Court case of Schumert-Warfield-Buja, Inc. v. Buie, et al., is in point as to the third contention. In that case, as here, upon receiving notice to vacate the leased premises, the lessee obtained an injunction enjoining the lessor from instituting eviction proceedings. The trial court later dissolved that injunction and the lessee appealed. The court affirmed the judgment dissolving the injunction and held the appeal was “manifestly frivolous”, stating:

“As plaintiff does not pretend to have had reason to apprehend, or to have in fact apprehended, that eviction would be attempted in any other manner than by judicial proceedings, the injunction was aimed solely at the latter. It was granted inadvertently, for nothing is better settled than that injunction will not lie to prevent the bringing of a suit, and was accordingly promptly dissolved.” (Citations omitted)

Here, as in Schumert-Warfield-Buja, there is no suggestion that eviction would be attempted in any manner other than by lawful proceedings under Code of Civil Procedure Article 4701, et seq. The only controversy appears to be whether or not the lease in suit had been validly renewed. This is an issue which can and should be tried in the eviction proceeding itself. Respondent cannot prevent the filing of a lawful eviction suit by means of an injunction.

For the reasons assigned, the judgment complained of is annulled and set aside and respondent’s suit is dismissed at its costs in both courts.

JUDGMENT ANNULLED AND SET ASIDE AND SUIT DISMISSED.

      . Montelepre, Inc. v. Pfister, La.App., 355 So.2d 654.

      . See Wright v. Department of Highways, La. App., 359 So.2d 635.

      . 148 La. 726, 87 So. 726; see also Levee Const. Co. v. Equitable Casualty & Surety Co., 173 La. 648, 138 So. 431; Kuhn v. Breard, 151 La. 546,

      .LSA-C.C.P. Art. 927 specifically states either the trial or appellate court, on its own motion, may notice the failure to disclose a cause or right of action.


text:
    Leonard DUNCAN v. Ella BRENNAN et al.
    No. 11344.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 3, 1980.
    92 So. 52; and Muller v. Landry, La.App., 170 So.2d 922.

      Steven M. Koenig, Heisler, Wysocki & Delaup, New Orleans, for plaintiff.
    Geoffrey H. Longenecker, Wegmann & Longenecker, New Orleans, for Ella Brennan and Adelaide L. Brennan.
    Thomas M. Nosewicz, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for Travelers Ins. Co.
    Before SAMUEL, REDMANN and SCHOTT, JJ.
   REDMANN, Judge.

A petition alleging that through defendant’s negligence petitioner was injured while working for defendant states some cause of action, although not both a cause of action for tort damages and a cause of action for workers’ compensation. The judgment maintaining the employers’ exception of no cause of action is therefore reversed.

The judgment maintaining the alleged compensation insurer’s exception of no cause of action to defendants’ third-party petition is affirmed. The third-party petition alleged insurance against “any and all workers’ compensation liability,” but there can be none here, Blache v. Maryland Cas. Co., La.App. 4 Cir. 1973, 283 So.2d 319, because plaintiff is a domestic employee. And, while it is true that insurance policies often oblige the insurer to provide a defense, whether the claim is well founded or not, the third-party petition here does not allege any contractual provision that, for example, the insurer will defend “any and all” suits for workers’ compensation brought against defendants, in respect to either their business operations or their home. The petition therefore does not state a cause of action even for the cost of defense, and defendants do not suggest any desire to amend their third-party petition to allege such a contractual undertaking.

Reversed as to main demand; affirmed as to third party demand.


author: STOKER, Judge.

text:
    Eileen Y. JACOMET, Plaintiff-Appellant, v. ST. LANDRY PARISH SCHOOL BOARD and Administrator, Office of Employment Security of the Department of Labor, Defendants-Appellees.
    No. 7699.
    Court of Appeal of Louisiana, Third Circuit.
    July 18, 1980.
    Rehearing Denied Aug. 27, 1980.

      Jo Ann Nixon, Lafayette, for plaintiff-appellant.
    Young & Burson, I. J. Burson, Jr., Eunice, James A. McGraw, Baton Rouge, for defendants-appellees.
    Before CULPEPPER, SWIFT and STOKER, JJ.
   STOKER, Judge.

The claimant, Eillen Y. Jacomet, appeals from a judgment of the District Court which affirmed a decision of the Board of Review of the Division of Employment Security, Department of Labor, State of Louisiana, wherein the claimant was denied unemployment compensation benefits on the ground that she had been discharged for misconduct connected with her employment. The employer, the St. Landry Parish School Board, opposes plaintiff’s claim for these benefits.

The record shows that on May 5, 1978, plaintiff was discharged from her employment by the St. Landry Parish School Board. She filed a claim for unemployment compensation benefits on May 21, but she was disqualified by the Office of Employment Security upon a finding by the latter that she had been discharged for misconduct connected with her employment. The grounds for disqualification found by the Office of Employment Security were that Miss Jacomet had been discharged for failure to perform assigned duties after being reprimanded. She appealed this initial determination which was affirmed by the Appeals Referee. The Appeals Referee’s decision was appealed to the Louisiana Board of Review which affirmed the Tribunal’s determination.

She subsequently filed the instant suit for judicial review. The Administrator of the Office of Employment Security filed an answer and return and prayed that the decision of the Board of Review be reversed. The St. Landry Parish School Board answered, denying all of plaintiff’s allegations.

The matter was heard on October 26, 1978. The Administrator waived his appearance, and the attorney for the St. Landry Parish School Board failed to appear. Counsel for plaintiff presented his argument, and the trial court took the matter under advisement. Judgment was subsequently rendered on December 1, 1978, affirming the Louisiana Board of Review’s decision.

Apparently poor relations existed between the claimant and her immediate supervisor, Director of Auxiliary Services of the St. Landry Parish School Board, Mr. Clifford Lemelle. We consider only the charge against Ms. Jacomet that she failed to ask for assignment of work for a period of at least three days. Eliminating all irrelevant testimony and evidence, as well as hearsay or other incompetent evidence, we agree with the Trial Judge that there is sufficient evidence to support the findings of fact of the Board of Review.

Mr. Clifford Lemelle’s testimony before the Appeals Referee consists in part of the following:

“ * * Td like to go back now to the idea of — the weeks that led to this — the 1st of May to be exact. I had been on a conference the entire week prior to this. When I returned to my office on the Monday, Ms. Jacomet came in to see me that Monday morning and asked me if I had some work to do. Well, after having just returned, I said to her, let me get the 'work organized and I will get back with you later on the work. Come and see me, and I will then have my work organized. This was a Monday. Ms. Jacomet reported to work every day that week. However, she did not come back to see me until Friday. She was at the office. If she had reported to other departments to find work — I noticed that she was talking with — in other departments. I’d like to make this comment that on — I’m not sure of the dates. It could’ve been — in fact, I have it right here. Yes. On that Monday afternoon, May 1, one of the secretaries in the area, the pool where Ms. Jacomet was stationed, reported to one of the supervisors that the loud speaker in the PA system was loud and she had almost every school in the system to call. She could not carry on the business over the telephone that loud. She asked Ms. Jacomet to lower the speaker. Ms. Ja-comet either verbally said no or ignored the request. The same secretary who made this request asked one of the nearby supervisors to ask Ms. Jacomet to lower the speaker. Ms. Jacomet — the supervisor then came to me. When I walked into the area where the secretaries are located, Ms. Jacomet immediately asked me what’s the problem. I said what’s the problem! She made a statement to this effect. There is no problem. What do you want? There is no problem. I said no you’re right. There is no problem. I immediately lowered the speaker. All right. That was the Monday. Whether or not this had anything to do with her not reporting to me the rest of the week, I don’t know, but I know she did not report to me the rest of the week until the Friday, and the reason she came the Friday was because there was some type of confrontation going on Friday. Don’t know what it was, but I know that was the first time during that week other than the Monday morning that she had come back to me to find out. I did have work for her to do. I said that to her on a Friday morning when she came to me. I said yes Yvonne I do have some work. In fact, I had work the whole week, and I’ve asked other secretaries to have to do my work. Now, that was the week of the — when she was dismissed that Friday, which was May 5. Now, there were other — during the year — other incidents of some confrontation that went on between Ms. Jacomet and some of the other secretaries at the office. In addition to that, there were several occasions where she was found at her desk to be reading magazines when there was work and a request by other supervisors to assist the other secretaries, which she did not do.”

Ms. Jacomet gave testimony denying Mr. Lemelle’s accusations and placing matters in a decidedly different light from that of Mr. Lemelle. Nevertheless, the determination of credibility is ordinarily a matter for the administrative agency, not for the court on judicial review. The courts, however, do have the ultimate duty, in such review of administrative findings, to determine whether sufficient evidence supports the administrative findings. Lee v. Brown, 148 So.2d 321 (La.App.3rd Cir., 1962); Vandike v. Brown, 139 So.2d 803 (La.App.3rd Cir., 1962) and Turner v. Brown, 134 So.2d 384 (La.App.3rd Cir., 1961).

The Appeals Referee’s opinion (Tr. 63) contains the following:

“From the evidence and facts presented in this ease, it is concluded that the claimant was discharged from her employment due to her failure to ask for her work assignments, which she was required to do. The facts indicate that the claimant failed to check with her supervisor for three days to see if he had any work for (sic) to perform. The facts further show that the claimant had problems getting along with her co-workers, even though they had been counselled and their cooperation had been requested. Under the circumstances, it is determined that the claimant’s separation from the employment was under disqualifying conditions and the disqualification as assessed by the Agency was warranted.
IT IS ORDERED that the determination of the Agency disqualifying the claimant for benefits effective May 19, 1978, be affirmed.”

As stated above the decision was affirmed by the Louisiana Board of Review for the Office of Employment Security. (Tr. 78)

The standard of judicial review of unemployment compensation cases is established in LSA-R.S. 23:1634. The First Circuit expounded on that statute in Dorsey v. Administrator, Louisiana Department of Employment Security, 353 So.2d 363 (La. App.1st Cir., 1977), writ refused 355 So.2d 549 (La. 1978) as follows:

“Judicial review in questions such as this is limited to questions of law unless the evidence is insufficient to support the findings of fact of the administrative agency or the evidence shows that a fraud has been perpetrated.”

This well established principle had been stated many times before; for example, the Third Circuit in Lee v. Brown, 148 So.2d 321 (La.App.3rd Cir., 1962) stated that on review by courts of unemployment compensation awards, findings of fact by the review board are conclusive if supported by sufficient evidence.

In the present case the Office of Employment Security determined petitioner was discharged for: “ . . . failure to perform assigned duties even after being reprimanded, which is misconduct connected with the work.”

We agree with the opinion of the trial judge as stated in his Reasons for Judgment:

“The Court observes that the record in this case and the investigation made leaves a great deal to be desired, in questioning and reporting in connection with a claim.
This Court cannot say the administrative units did not have sufficient facts upon which to base a legal decision.”

There was testimony at the Appeals Tribunal of several problems that Ms. Jacomet might have been causing in the office. But these instances were not responsive to the charge asserted as ground for her termination, which was failure to perform assigned duties even after being reprimanded.

This charge of failure to perform her duties is very broad, but a review of the record shows testimony of her superiors sufficient to provide the necessary evidence for the factual determination that plaintiff was guilty of misconduct connected with her employment in the form of failure to perform her duties.

For the reasons herein assigned the judgment appealed from is affirmed. All costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED.

      . In quoting this testimony we do not wish to imply that it is all relevant or competent. We quote it as representative of the narrow relevant reason (failure to report for assignment of work) given for the dismissal.

      . LSA-R.S. 23:1634 provides in pertinent part: “In any proceeding under this Section the findings of the board of review as to the facts, if supported by sufficient evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law. No additional evidence shall be received by the court, but the court may order additional evidence to be taken before the board of review, and the board of review may, after hearing such additional evidence, modify its findings of fact or conclusions, and file such additional or modified findings and conclusions, together with a transcript of the additional record, with the court.”


author: FORET, Judge.

text:
    Riley T. KELLY, Plaintiff-Appellee, v. INTERNATIONAL UNION OPERATING ENGINEERS and Continental Insurance Company, Defendants-Appellants.
    No. 7697.
    Court of Appeal of Louisiana, Third Circuit.
    July 22, 1980.

      Bolen & Erwin, James A. Bolen, Jr., Alexandria, for defendants-appellants.
    John P. Navarre, Oakdale, for plaintiff - appellee.
    Before FORET, STOKER and LA-BORDE, JJ.
   FORET, Judge.

This is a workmen’s compensation case. Riley T. Kelly was injured in an automobile accident on October 13, 1977. At the time of the accident, Kelly was in the course and scope of his employment with International Union Operating Engineers (hereinafter International) as an assistant business agent. Plaintiff was paid compensation benefits until on or about October 1, 1978, at which time Continental Insurance Company (hereinafter Continental), the compensation carrier of International, ceased payment of the benefits. Kelly then brought the instant suit. The trial court held in favor of plaintiff and against defendants, finding plaintiff permanently partially disabled, and awarding him:

(1) $130.00 per week during the period of disability, commencing October 13, 1977, but not to exceed 500 weeks;
(2) legal interest on past due installments;
(3) medical expenses incurred as a result of the injuries sustained;
(4) dismissing plaintiff’s claim for penalties and attorney’s fees, and
(5) rejecting plaintiff’s claim for loss of teeth.

Defendants have appealed, alleging that the judgment of the trial court finding plaintiff permanently partially disabled, and awarding him $130.00 a week for the period of disability is manifestly erroneous.

The only issue presented on appeal is whether or not the finding of the trial court is clearly wrong.

It was stipulated between counsel for all parties that plaintiff was in the course and scope of his employment at the time he was injured and that the compensation rate is $130.00 per week.

Under LSA-R.S. 23:1221(3), an injured workman is partially disabled if, because of his injury, he cannot return to his former employment but can perform gainful employment in another position. Kilbourne v. Armstrong, 351 So.2d 802 (La.App. 1 Cir. 1977); LeBlanc v. Commercial Union Assurance Company, 349 So.2d 1283 (La. App. 1 Cir. 1977), writ denied, 351 So.2d 174 (La.1977). A worker is also partially disabled where he would experience substantial pain when working in his former occupation, but where he could work in other types of jobs without experiencing such pain. McBroom v. Argonaut Insurance Company, 370 So.2d 212 (La.App. 3 Cir. 1979), writ denied, 371 So.2d 1342 (La.1979); Conlay v. Houston General Insurance Company, 370 So.2d 196 (La.App. 3 Cir. 1979); writ granted 371 So.2d 618 (La.1979).

It is well settled that an injured worker who suffers substantial pain in performing his former job or who cannot engage in any gainful employment without incurring substantial pain is disabled, either totally or partially. Phillips v. Dresser Engineering Company, 351 So.2d 304 (La.App. 3 Cir. 1977), writ denied, 353 So.2d 1048 (La.1978); Rachal v. Highlands Insurance Company, 355 So.2d 1355 (La.App. 3 Cir. 1978), writ denied, 358 So.2d 645 (La.1978); Whitaker v. Church’s Fried Chicken, Inc., 387 So.2d 1093 (La.1980).

We note at the outset that physical inability to return to work and inability to return to work due to substantial pain are questions of fact. The determination of fact made by a trial court will not be disturbed when there is evidence before the court, which evidence, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s findings, unless those findings are clearly wrong. Crump v. Hartford Accident and Indemnity Company, 367 So.2d 300 (La.1979). In this regard, we stated in Conlay v. Houston General Insurance Company, supra, at page 200:

“. . . The trial court’s favored position in seeing and hearing live witnesses is especially important when the factual determination involves a concept as subjective as pain. Colorful inflections and subtle nuances given to spoken and physical expressions describing the degree of pain simply do not come out in the black and white transcription of testimony contained in the appellate record.”

We now address the specific evidence presented in this case.

Riley Kelly’s job as assistant business agent required him to drive extensively throughout the state. The record shows that he had to travel between 5,000 and 6,000 miles per month. He was not required to perform any other physical labor. On the other hand, the job he had prior to becoming assistant business agent, that of operating engineer, involved the use and operation of heavy equipment and required considerable physical work. The record further shows that the position of assistant business agent is no longer available to plaintiff.

MEDICAL EVIDENCE

Plaintiff was first seen by a general practitioner, Dr. George Mowad, at Oakdale General Hospital on the day of the accident, October 13,1977. X-rays were taken which revealed no fractures or other abnormalities. Kelly was treated with hot packs, whirlpool baths, steroids and cortisone. He remained in the hospital until October 17, 1977, at which time he was discharged. Dr. Mowad saw the plaintiff again on October 18, October 20, October 24, October 27, October 28, and October 31, of 1977. On each of these occasions, he was administered medcosonolator treatments (a combination of ultrasonic sound and electrical stimulation). Kelly was not seen by Dr. Mowad during 1978, but was examined by him on April 11, 1979. He was given one treatment and told to return if he had any more problems.

Plaintiff was referred to Dr. William Akins, an orthopedic specialist, by Dr. Mowad and was first seen by Dr. Akins on February 11, 1978. Dr. Akins found no evidence of nerve or disc damage. He determined that Kelly had a straining injury involving the muscles and ligaments of the neck which could be described as a cervical strain. Dr. Akins recommended a series of exercises and traction to the neck, to be instituted on a homebound basis. Dr. Akins next saw plaintiff on April 19,1978. There was no significant improvement in plaintiff’s condition at that time. Plaintiff was experiencing numbness in his left index and long finger and some pain when the neck was rotated. A cervical myelogram was recommended but was never performed as plaintiff did not keep his appointment. Dr. Akins also found that plaintiff had a degenerative disc condition at the C5-C6 level, which condition pre-existed the accident. Dr. Akins was of the opinion that the plaintiff would accomplish his present job with pain and discomfort but could not return to his previous position as an operating engineer.

Kelly was also examined by Dr. Douglas Gamburg, an orthopedic surgeon, on April 24,1979, at the request of Continental. Dr. Gamburg found no subjective weakness or numbness in either the lower or upper extremities. Vertebral alignment was diagnosed as being normal. All disc space heights were well maintained. There was no evidence of nerve root dysfunction in the cervical or lumbar region.

Both Dr. Gamburg and Dr. Akins were of the opinion that Kelly could return to work as business agent but would experience pain, sometimes mild and sometimes substantial. This pain would be aggravated by driving or riding long distances. Both doctors agreed that Kelly could not return to his former duties as an operating engineer without a good deal of difficulty and substantial pain.

After careful consideration of the evidence presented, including both medical and lay testimony, we fail to find error on the part of the trial court in finding the plaintiff permanently, partially disabled.

At oral argument, counsel for defendants pointed out to the Court that since this accident occurred on October 13, 1977, which is obviously after September 1, 1977, that according to the provisions of LSA-R.S. 23:1221(3) the maximum period for award of compensation benefits for partial, permanent disability is 450 weeks. Consequently, defendant urged that the trial court erred when it awarded benefits for 500 weeks. We agree, and the trial court judgment will be amended accordingly.

Plaintiff alleges that the trial court erred in not awarding him benefits for loss of five teeth. No evidence was adduced at trial concerning this item of damage. Plaintiff sought to introduce evidence after the trial regarding his loss of teeth. The trial court disallowed the evidence but reserved unto plaintiff the right to bring another action for benefits relative to this injury. According to plaintiff’s brief, the record had been held open for the taking of additional medical evidence in the form of depositions. It was at this juncture that plaintiff sought to introduce the evidence regarding his loss of teeth.

The holding open of a record for a note of evidence and the submission of evidence after trial is largely within the discretion of the trial court. Smith v. V. V. Sharpe Company, Inc., 379 So.2d 1216 (La. App. 3 Cir. 1980), writ denied 381 So.2d 1233 (La.1980); Fontenot v. American Fidelity Fire Insurance Company, 386 So.2d 165 (La.App. 3 Cir. 1980). We find no abuse of discretion on the part of the trial court in pretermitting this issue.

Plaintiffs final contention deals with the trial court’s denial of his request for penalties and attorney’s fees. Defendant, Continental, ceased paying compensation benefits to plaintiff on or about October 1, 1978. Plaintiff in brief argues that he is entitled to penalties and attorney’s fees because defendant was arbitrary and capricious in stopping the payments. Plaintiff, however, has not appealed this part of the trial court’s judgment nor has he answered the defendants’ appeal. The judgment is therefore final as to the issue of penalties and attorney’s fees, and the claim for same will be dismissed.

IT IS ORDERED, ADJUDGED AND DECREED that the trial court judgment be recast to the extent that the weekly benefits awarded to the plaintiff shall be 450 weeks rather than 500 weeks. In all other respects, the trial court judgment is affirmed.

For the reasons assigned above, the judgment of the trial court is amended, and as amended, is affirmed, at appellants’ costs.

AMENDED AND AFFIRMED.


author: GUIDRY, Judge.

text:
    Mary Lee LOVELL, Plaintiff-Plaintiff-in-Rule-Appellee, v. Arthur Gordon LOVELL, Defendant-Defendant-in-Rule-Appellant.
    No. 7688.
    Court of Appeal of Louisiana, Third Circuit.
    July 30, 1980.

      Richard E. Chaudoir, Alexandria, for defendant-appellant.
    Vincent Hazleton, Alexandria, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   GUIDRY, Judge.

Plaintiff, Mary Lee Lovell, brought this action against her former husband, Arthur Gordon Lovell, seeking post-divorce alimony under LSA-C.C. Article 160. Plaintiff’s petition for alimony was filed on August 22, 1979. After a hearing on the merits on November 19,1979, the trial judge fixed the alimony at $410.00 per month in a judgment dated November 28, 1979. From this judgment defendant appeals. We affirm.

The instant appeal is not related to earlier litigation between the parties which culminated with the Supreme Court decision in Lovell v. Lovell, 378 So.2d 418 (La. 1979). In the latter suit, instituted as a rule to increase alimony, the trial court terminated plaintiff’s alimony in a judgment rendered June 1, 1979 and signed July 2, 1979 on the ground that alimony under the existing Article 160 was violative of the fourteenth amendment in light of Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979). On appeal, the Supreme Court held that LSA-C.C. Article 160, prior to its amendment by Act 72 of 1979, was unconstitutional. However, in so holding the court con-eluded that its decision would not be retroactive and that all judgments awarding alimony prior to the effective date of the amendment (June 29, 1979) would be unaffected by the decision. In its decree, rendered December 13, 1979, the Supreme Court reversed the trial court’s judgment terminating plaintiff’s alimony and reinstated plaintiff’s award of $350.00 per month which she had been receiving prior to judgment on the rule and remanded the case for further proceedings. The instant ■suit for alimony was instituted after the effective date of LSA-C.C. Article 160, as amended, and during the pendency of the appeal to the Supreme Court on plaintiff’s rule to increase alimony. For procedural clarity, we note that the judgment appealed from is not from the trial on remand, but on plaintiff’s petition for alimony filed August 22, 1979.

Appellant contends that the evidence in the record does not support plaintiff’s position that she was free from fault in the dissolution of the marriage and therefore entitled to permanent alimony. While the underlying principle of defendant’s contention is true, i. e., the burden, in part, of the spouse seeking alimony is to show freedom from fault, see LSA-C.C. Article 160, supra, and Bowman v. Bowman, 355 So.2d 564 (La.App.3rd Cir. 1978), writ denied, 358 So.2d 641 (La. 1978); said contention under the facts of the instant case is without merit.

The defendant makes no allegation of post-separation fault. The issue of fault, having once been determined in favor of Mrs. Lovell, cannot now be relitigated. See Fulmer v. Fulmer, 301 So.2d 622 (La. 1974) and Moon v. Moon, 345 So.2d 168 (La. App.3rd Cir. 1977). The instant rule for alimony is directly related to the previous suits in which the parties were judicially separated and divorced wherein plaintiff was found to be free from fault. Although defendant contends there was no evidence introduced at the trial on the rule concerning these previous judgments, the previous suits were heard before the same trial judge that sat in the instant proceeding. It is axiomatic that a trial judge is free to take judicial notice of his own actions in a previous suit, in which he decided the fault issue in favor of one spouse, for the purpose of ruling on a related petition concerning the same parties when one spouse is seeking alimony under LSA-C.C. Article 160. See Chrysler Credit Corp. v. Henry, 221 So.2d 529 (La.App.4th Cir. 1969). We conclude the trial court made no error in this regard.

Defendant further contends that plaintiff is capable of earning a living for herself without support from him in the form of permanent alimony.

The record shows that plaintiff is sixty years old, received a ninth grade education, and has had minimal unskilled work experience. Medical testimony adduced at trial reflects that plaintiff is further restricted as to employable activity due to physical and mental infirmities. We find the record amply supports the determination of the trial court that Mrs. Lovell is not employable and we conclude the trial court was correct in so holding.

Appellant’s final contention is that the trial court erred in setting the alimony at $410.00 per month. We find this contention to be without merit. As we stated in Labeuve v. Labeuve, 352 So.2d 749 (La. App.3rd Cir. 1977):

“It is axiomatic that the trial court has great discretion in fixing the amount of alimony. The award will not be disturbed on appeal in the absence of a clear showing of an abuse of discretion. ” (citations omitted)

Our careful review of the record convinces us that there was no abuse of discretion by the trial court in fixing permanent alimony at $410.00 per month and we will not disturb such award.

For the above and foregoing reasons, the judgment appealed from is affirmed at defendant-appellant’s cost.

AFFIRMED.

      . LSA-C.C. Article 160, as amended by La. Acts 1979, No. 72, effective June, 1979, provides as follows:
      “When a spouse has not been at fault and has not sufficient means for support, the court may allow that spouse, out of the property and earnings of the other spouse, alimony which shall not exceed one-third of his or her income. Alimony shall not be denied on the ground that one spouse obtained a valid divorce from the other spouse in a court of another state or country which had no jurisdiction over the person of the claimant spouse. In determining the entitlement and amount of alimony after divorce, the court shall consider the income, means, and assets of the spouses; the liquidity of such assets; the financial obligations of the spouses, including their earning capacity; the effect of custody of children of the marriage upon the spouse’s earning capacity; the time necessary for the recipient to acquire appropriate education, training, or employment; the health and age of the parties and their obligations to support or care for dependent children; any other circumstances that the court deems relevant.
      In determining whether the claimant spouse is entitled to alimony, the court shall consider his or her earning capability, in light of all other circumstances.
      This alimony shall be revoked if it becomes unnecessary and terminates if the spouse to whom it has been awarded remarries.”


author: DOMENGEAUX, Judge.

text:
    Maxine M. RIEDEL et al., Plaintiffs-Appellants, v. The Succession of Mrs. Bessie Massey SHARP, Defendant-Appellee.
    No. 7708.
    Court of Appeal of Louisiana, Third Circuit.
    July 30, 1980.
    Gahagan & Gahagan, Russell E. Gahagan, Natchitoches, for plaintiffs-appellants.
    Whitehead & McCoy, Charles R. Whitehead, Jr., Natchitoches, for defendant-ap-pellee.
    Before DOMENGEAUX, GUIDRY, and CUTRER, Judges.
   DOMENGEAUX, Judge.

The heirs of the decedent, Mrs. Bessie Massey Sharp, brought this suit to annul the probate of the decedent’s statutory will. The trial court denied the petition to annul the testament and the plaintiffs bring this appeal. The defendant, executrix, answered the appeal seeking damages for a frivolous appeal. We affirm the decision of the trial court.

The facts in this case are succinctly stated by the trial judge:

“On March 27, 1963, Mrs. Bessie Massey Sharp executed a statutory will prepared and notarized by Joseph P. Henry, Jr. of Natchitoches in the presence of Mr. Henry’s wife, Juanita B. Henry, and Mr. Henry’s secretary, Eva Martin. Mrs. Sharp died on June 29, 1979 and the will was probated on August 23, 1979.
On August 28, 1979, three heirs of the decedent filed a petition seeking to annul the last will and testament. At the trial of this matter on October 18, 1979, Mr. Henry, Mrs. Henry and Mrs. Eva Martin Williams all testified as to their conduct in the preparation and execution of the will.
Their testimony was corroborated by Laddie Gay Howell, a nephew, who testified that he brought his aunt to Natchi-toches in 1963 and to the office of Mr. Henry where the will was prepared.”

According to La.C.C.P. Article 2932, the proponents of Mrs. Sharp’s will had the burden of proving its validity since the action of nullity was instituted within three months of the date of probate. In an effort to sustain that burden, the testament’s proponents called as witnesses the notary, Mr. Joseph M. Henry, Jr., and the two women who signed Mrs. Sharp’s will as witnesses, Mrs. Juanita Henry and Miss Eva Martin (now Mrs. Eva Martin Williams).

All three testified that they recognized their signatures. Mr. Henry recognized all the signatures including that of the decedent, Mrs. Sharp. The testament’s two witnesses also recognized the signature of Mr. Henry, the notary, and further testified that they definitely would not have signed as witnesses if they had not seen Mrs. Sharp sign the will. However, they remembered very little else about the signing of the will.

The trial judge was satisfied that the will was valid. He said:

“While Mrs. Henry and Mrs. Williams could not recollect in detail the will itself, they testified as to the manner in which Mr. Henry prepared all wills and the manner in which they witnessed any official documents, and the Court is satisfied that the will was executed properly and that there are no defects in the will.”

Plaintiffs argue that the trial court erred in its holding that the will was valid because only the notary testified that the testatrix signed in his presence. We find no merit to plaintiffs’ argument that the witnesses to a will must have an independent recollection of all the facts surrounding the execution of the will.

• It would be a ridiculously high burden upon the notary and witnesses if the validity of Mrs. Sharp’s will depended on their specific recollections of the events on that day sixteen and a half years earlier. We find that the evidence amply supports the finding that the will was executed properly. Therefore, we affirm the trial court’s denial of the petition to annul the testament..

The defendant (executrix) has answered this appeal seeking damages on the grounds that this appeal was frivolously filed without any legal merit.

In a recent case, Moity v. Busch, 368 So.2d 1134 (La.App. 3rd Cir. 1979) we quoted the following rule from Jackson v. East Baton Rouge Parish School Board, 348 So.2d 739 (La.App. 1st Cir. 1977):

“. . . Article 2164 of the Code-of Civil Procedure authorizes a claim for damages for frivolous appeal, but its provisions are penal in nature and must be strictly construed. Appeals are favored, and the imposition of penalties for a frivolous appeal will not be granted unless they are clearly due. Damages for frivolous appeal will not lie unless it manifestly appears that the appeal was taken solely for delay or that appealing counsel does not seriously believe in the position he advocates, even though the appeal lacks serious merit.” (Citations omitted).

Although the appellants’ argument is without merit, we cannot say that it manifestly appears that the appeal was taken solely for delay or that counsel does not seriously believe in the position advocated.

For the above and foregoing reasons the judgment of the trial court is affirmed. All costs of this appeal are taxed to the plaintiffs-appellants.

AFFIRMED.

      . For formal requirements of the statutory will, see La.R.S. 9:2442.

      . La.C.C.P. Art. 2932 states:
      “The plaintiff in an action to annul a probated testament has the burden of proving the invalidity thereof, unless the action was instituted within three months of the date the testament was probated. In the latter event, the defendants have the burden of proving the authenticity of the testament, and its compliance with all of the formal requirements of the law.”


text:
    Francis Paul TARPLEY, Plaintiff-Appellee, v. CONSOLIDATED AMERICAN LIFE INSURANCE COMPANY et al., Defendants-Appellants.
    No. 7736.
    Court of Appeal of Louisiana, Third Circuit.
    July 30, 1980.

      Jimmie C. Peters, Jena, for defendants-appellants.
    Kramer & Laird, James M. Buck, Alexandria, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   DOMENGEAUX, Judge.

Two life insurance policies with an aggregate face value of $15,000.00 provided that the issuer of the policies would pay one-half the face amount thereof ($7,500.00) if the insured became totally and permanently disabled. Three issues confront us: (1) Did the insured prove his disability was total and permanent? (2) If so, was the insurer arbitrary and capricious in refusing to pay the insured’s claim? (3) Did the trial court err in imposing the 100% penalty provided in La.R.S. 22:657 rather than the 12% penalty provided in 22:658?

Plaintiff, Francis Paul Tarpley, suffered a back injury on April 4, 1978, when he and a fellow worker attempted to lift a heavy pipe. At the time, Mr. Tarpley was employed as a maintenance man by the La-Salle Parish School Board.

Following his injury, plaintiff was initially treated by a chiropractor whose care produced no results. He was next seen by a Doctor Turnley, who x-rayed plaintiff and diagnosed his injury as back strain compounded by arthritis and a bad disc. Then, on May 19, 1978, Mr. Tarpley first saw Dr. John T. Weiss, an orthopaedist, who thereafter treated plaintiff approximately once a month until he last examined Mr. Tarpley on February 15, 1979. At that time Doctor Weiss recommended that plaintiff retire from his maintenance job with the School Board for reasons explained later.

At the time of his injury, Mr. Tarpley owned two life insurance policies issued by the Woodmen of the World Life Insurance Society, Inc., the defendants. On March 2, 1979, plaintiff made application for total and permanent disability benefits under the policy. This request was denied by W. 0. W. on April 2, 1979. Plaintiff then filed suit on May 25, 1979, and a non-jury trial was conducted on September 28, 1979. For reasons orally assigned, the trial court rendered judgment in favor of Mr. Tarpley and against Woodmen of the World Life Insurance Society in the amount of 50% of the face value of the two policies issued to Mr. Tarpley with credit for $8,054.48 already paid. The court further found the penalty provisions of La.R.S. 22:657 applied to both policies and the Society was condemned to pay penalties of 100% of the amount due, or $4,445.52. Attorney’s fees of $1,750.00 were also awarded, with W. O. W. being liable for %rds of that amount, or $1,441.32. The court further assessed %rds of the court costs to Woodmen of the World. From that judgment the Society has taken this appeal.

TOTAL AND PERMANENT DISABILITY

The trial court found that Mr. Tarp-ley was totally and permanently disabled due to the injury which occurred on April 4, 1978. The evidence contained in the record supports this factual determination.

In the ten month period following the injury, plaintiff’s condition remained substantially unchanged. The back pain persisted and Mr. Tarpley could not engage in any strenuous activities. During this time, plaintiff, then 55 years old, seemed eager to return to work and felt he could work without much problem as long as he did not do heavy lifting or tractor driving.

Doctor Weiss acceded to Mr. Tarpley’s wishes and permitted him to return to his job on a light work basis on October 12, 1978. However, the School Board would not allow plaintiff to return to work on this basis. The School Board advised him that he could return to work only when he was allowed to do regular work activities. On November 27, 1978, Mr. Tarpley was allowed to resume his regular work activities provided that he wear a corset for support. The School Board would not accept Mr. Tarpley on this basis either, and refused to let him return to work.'

Finally, Doctor Weiss allowed plaintiff to resume full work activities as of January 22, 1979, but he advised Mr. Tarpley to wear a corset without the knowledge of the School Board. About two weeks later, plaintiff notified Doctor Weiss that he could not perform his duties even with the support because he had experienced discomfort in his back while attempting to do some lifting.

On February 15, 1979, Doctor Weiss advised plaintiff to retire. This recommendation was made for two reasons: (1) Mr. Tarpley was unable to do his work even when he wore a corset, and (2) Doctor Weiss felt plaintiff’s condition was static and would not improve.

W. O. W. does not dispute the fact that Mr. Tarpley experiences serious pain in his back when engaging in strenuous activities. However, the defendant argues that the evidence conclusively establishes that the plaintiff, by virtue of his previous training and experience, is not unemployable and thus is not totally disabled. The cornerstone of the defendant’s argument is a letter written by Doctor Weiss dated March 27, 1979 (over a month after Doctor Weiss advised plaintiff to retire), which states:

“I feel Mr. Tarpley is capable of doing light work that would not require any significant bending or lifting, and walking that was not continuous and prolonged but only intermittent.”

Together with Doctor Weiss’ letter, defendant relies on plaintiff’s testimony that he once worked as a clerk in a hardware store to presumably conclude that plaintiff is employable as a clerk.

We find no merit to defendant’s argument. The record reveals that Mr. Tarpley is a 56 year old man who has primarily been engaged in heavy manual labor since he dropped out of school in the 8th grade. At that time, in 1938 or 1939, he enlisted in the Civil Conservation Corps to paint pine trees, deaden timber, and do other conservation work. During World War II, he worked in a warehouse at Camp Livingston and delivered heavy cases of supplies to the PX. After the war he did “pulp wooding” and later he operated a power saw cutting pulp wood. He was also hired as a truck driver to haul the wood.

The employment that defendant relies heavily upon occurred more than thirty years ago in 1946 or 1947. Even this job required Mr. Tarpley to stoop or bend and left heavy objects because he was not only a clerk — he also delivered cement, roofing, and other heavy objects to job sites.

Plaintiff began working for the School Board in the 1950s doing maintenance work. His jobs included painting, roofing, plumbing, carpentry work, burying shorelines, digging them up and unstopping them, and general manual labor. This is the only work he had engaged in for the last 25 to 30 years until his back injury forced his retirement in 4979.

We believe plaintiff has established his disability to be total and permanent despite Doctor Weiss’ opinion that he could perform light work. The likelihood of Mr. Tarpley ever again becoming gainfully employed in a position requiring only light work is remote when factors such as his age, his back problem, and his work history are considered. Defendant’s belief that plaintiff’s education and experience establishes em-ployability as a clerk is sheer speculation wholly unsupported by the record. We therefore affirm the trial court’s finding on this issue.

PENALTIES AND ATTORNEY’S FEES

Defendant contends that the trial court erred in awarding penalties and attorney’s fees. Alternatively, defendant argues that the provisions of La.R.S. 22:658 should apply rather than the provisions of 22:657. We will dispose of the former contention first.

On March 14, 1979, Woodmen of the World received an extensive report detailing Doctor Weiss’ treatment of Mr. Tarpley from May 19, 1978, when the plaintiff first saw Doctor Weiss, through February 15, 1979 (the last visit) when retirement was advised. In the report, the defendant was also informed of the reasons why plaintiff was advised to retire. W. O. W. knew plaintiff’s disabling condition would not improve. Nevertheless, defendant further inquired of Doctor Weiss whether Mr. Tarp-ley was able to perform employment tasks for which he was qualified by training or experience if such tasks did not include heavy lifting or riding a tractor. On March 29, 1979, defendant received Doctor Weiss’ answer stating that Mr. Tarpley could return to light work which required no significant bending, lifting, or walking. On the basis of this letter from Doctor Weiss, the defendant rejected Mr. Tarpley’s claim on April 2, 1979. Woodmen of the World suggests that Doctor Weiss’ letter constituted reasonable grounds for refusing to honor plaintiff’s claim. We disagree.

Defendant was not justified in relying upon Doctor Weiss’ opinion that plaintiff could return to light work. The Society had earlier been put on notice by Doctor Weiss’ medical report that plaintiff could not work, even with support, that his condition would not improve, and that he had been advised by Doctor Weiss to retire from the only job he had performed for 25 years. After receiving Doctor Weiss’ “light work” opinion, defendant should have investigated further to determine whether Mr. Tarpley’s training and experience did, in fact, qualify him to perform any light work duties. Although Doctor Weiss probably knew best which physical limitations were created by plaintiff’s disability, his role as a treating physician hardly qualified him to decide which employment tasks Mr. Tarpley could perform by reason of his training and experience. That information should have come from more knowledgeable sources, such as Mr. Tarpley himself or his former employers. Defendant’s failure to elicit this information from the appropriate sources before denying Mr. Tarpley’s claim was unreasonable. Therefore, plaintiff is entitled to recover attorney’s fees and penalties. Without explanation, the trial court held that the policies were governed by 22:657 and awarded to plaintiff as a penalty 100% of the principal amount owed. We think plaintiff is entitled only to the 12% penalty provided by 22:658.

The applicability of R.S. 22:657 is limited, by its own language, to “ . . [a]ll claims arising under the terms of health and accident contracts . . . ” Mr. Tarpley’s claim arises under the terms of two life insurance contracts which contained provisions for benefits payable to the insured in the event of total and permanent disability.

La.R.S. 22:6, which defines and classifies insurance, distinguishes life insurance from health and accident insurance in the following manner:

“(1) Life. Insurance on human lives and insurance appertaining thereto or connected therewith. For the purposes of this Code the transacting of life insurance includes the granting of annuities or survivorship benefits; additional benefits in the event of death by accident; additional benefits in event of the total and permanent disability of the insured; and optional modes of settlement of proceeds.
(2) Health and accident. Insurance against bodily injury, disablement or death by accident and against disablement resulting from sickness and’ every insurance appertaining thereto.” (Emphasis added)

According to the plain language of the above statute, Mr. Tarpley’s claim arises under life insurance contracts notwithstanding the fact that payment is due under disability clauses in the contracts.

La.R.S. 22:658 and its 12% penalty provision applies to “ . . . any type of contract other than those specified in R.S. 22:656 and 22:657 ...” Neither 22:656 (which applies only to death claims) nor 22:657 (relative to health and accident policies) pertains to claims arising under life insurance contracts. Therefore, the provisions of 22:658 apply.

Our conclusion is dictated by the Supreme Court case of Johnson v. State Farm Mutual Automobile Insurance Company, 342 So.2d 664 (La.1977). There, plaintiff was totally disabled as a result of an automobile accident. He sued for recovery of benefits under total disability provisions of an automobile insurance policy issued to him by defendant. The trial judge found that defendant’s failure to pay plaintiff’s claim under the policy subjected it to a penalty of double the amount of benefits due, as provided by La.R.S. 22:657. In holding that 22:658 should apply rather than 657, the Supreme Court used the following rationale:

“La.R.S. 22:6 classifies and defines insurance as follows:
(2) Health and accident. Insurance against bodily injury, disablement or death by accident and against disablement resulting from sickness and every insurance appertaining thereto.
(3) Vehicle. Insurance against loss or damage to any land vehicle or aircraft or any draft or riding animal or to property while contained therein or thereon or being loaded or unloaded therein or therefrom, and against any loss or liability resulting from or incident to ownership, maintenance, or use of any such vehicle or aircraft or animal.
Insurance against accidental death or accidental injury to individuals including the named insured while in, entering, alighting from, adjusting, repairing, cranking, or caused by being struck by a vehicle, aircraft, or draft or riding animal, if such insurance is issued as part of insurance on the vehicle, aircraft, or draft or riding animal, shall be deemed to be vehicle insurance. [Emphasis added]
Plaintiff’s claim is based on insurance coverage against accidental injury resulting from an automobile accident. The insurance was issued to plaintiff as part of an automobile insurance policy. Under the clear language of the above quoted provisions, we conclude that the policy involved in the present suit is not health and accident insurance under La.R.S 22:657 but, rather vehicle insurance under La.R.S. 22:658. Therefore, the penalty provisions of this latter statute are applicable here. Defendant insurer is subject thereunder to a penalty, in addition to the amount due, of 12% damages on the amount due, together with reasonable attorney fees.” (Emphasis added)

The language of R.S. 22:6(1), which includes within the definition of life insurance “additional benefits in event of the total and permanent disability of the insured” is every bit as clear as the language of 22:6(3) relied upon by the Supreme Court in Johnson to avoid imposing 100% penalties of 22:657. Johnson’s rationale mandates the same result here.

Accordingly, the judgment of the District Court will be amended to provide for penalties of 12% rather than penalties of 100% on the principal sum due.

DECREE

For the above and foregoing reasons the judgment of the District Court is amended to reduce from 100% to 12% the amount of penalty owed on the outstanding principal balance of $4,445.52. In all other respects the judgment is affirmed. Costs are assessed against Woodmen of the World Insurance Society, the defendant.

AFFIRMED, AS AMENDED.

      . Originally, plaintiff also sued Consolidated American Life Insurance Company. Following trial, that suit was settled and a signed judgment dismissed plaintiff’s suit against Consolidated. Therefore, Consolidated is no longer a party to these proceedings.

      . Following W. O. W.’s rejection of his claim, Mr. Tarpley requested and received from W.- O. W. the cash surrender value of the two policies. This amount-$3,054.48-is the amount W. O. W. has received credit for paying.


text:
    Sandy CARTER, Plaintiff-Appellant, v. AMERICAN MUTUAL LIABILITY INSURANCE COMPANY et al., Defendants-Appellees.
    No. 7738.
    Court of Appeal of Louisiana, Third Circuit.
    July 30, 1980.

      Führer & Flournoy, George A. Flournoy, Alexandria, for plaintiff-appellant.
    Stafford, Stewart & Potter, Russell L. Potter, Alexandria, for defendants-appel-lees.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   GUIDRY, Judge.

In this suit the trial court found plaintiff to be entitled to temporary total disability workmen’s compensation payments for a period of eight (8) weeks. Her claim for penalties and attorney’s fees was denied. Plaintiff has appealed and complains only of the trial court’s refusal to award penalties and attorney’s fees. Defendants have not appealed nor have they answered the appeal of plaintiff.

The facts are not disputed. On February 16,1979, during the course and scope of her employment with the Harrisonburg Nursing Home (hereafter, Harrisonburg), plaintiff sustained a work related accidental injury diagnosed by her treating physician, Dr. William C. Coney, as an acute lumbo-sacral strain. The accident was promptly reported to the employer. Plaintiff was first seen by Dr. Coney on the date of injury and thereafter treated conservatively. She was next seen for examination and treatment on March 1, 1979. In his deposition Dr. Coney described the results of the March 1, 1979 examination as follows:

“My findings were that her previous complaint had completely — that there was complete resolution to my opinion of her previous complaints. She had no positive findings at that time. I thought she was doing quite well and at that time I re leased her to return to work the following Monday.” (Dep. pgs. 6 and 7)

Plaintiff did not resume her work on March 5, 1979, the Monday following March 1st, and has not since worked for Harrisonburg

Defendant, American Mutual Liability Insurance Company (hereafter American), was the workmen’s compensation insurer of plaintiff’s employer on February 16, 1979.

By letters addressed to Harrisonburg, dated March 23, and March 27, 1979, plaintiff demanded payment of compensation benefits and reimbursement for medical and travel expenses. These letters together with the employer’s first report of injury were forwarded to American and presumably received on or about April 30,1979. On May 1, 1979, after receipt of the above, American contacted both the nursing home and Dr. Coney’s office, and was advised by a nurse in Dr. Coney’s office that plaintiff had been released to return to work as of March 1, 1980. On May 17, 1979 plaintiff filed the instant suit. On May 18, 1979, American received a medical report from Dr. Coney’s office confirming that plaintiff had suffered a lumbosacral strain on February 16, 1979 but was “discharged as cured” on March 1,1979 with the ability to resume her normal work. However, the space provided for on the form requesting the date on which normal work could be resumed was left blank. On the basis of the above American paid plaintiff workmen’s compensation benefits for the period from February 23, 1979 through February 28, 1979. Reimbursement of all medical and travel expenses was made to plaintiff on or about June 4, 1979, over sixty days following the demands of March 23 and 27, 1979.

On June 21, 1979, Dr. Coney signed a memorandum which reads in its entirety as follows:

“Re: Sandy Carter
The patient was in my office on 8/01/79, doing well. Released to return to work Monday. ”

This memorandum was forwarded to American. The record does not reflect the date when this memo was received by American however, it is made clear that it was received long prior to the trial of this matter which was held November 16, 1979. In addition to the above, the record reflects that, at the instance of American, Dr. Coney was deposed on October 10,1979, and in response to questions concerning on what date he advised plaintiff to resume her normal work he consistently stated the Monday following March 1, 1979. March 1, 1979 was a Thursday with the following Monday being March 5, 1979.

On appeal plaintiff urges that the trial judge erred in failing to find that defendants were arbitrary and capricious in failing to pay medical and travel expenses within sixty days after receipt of satisfactory proofs of loss from the employee (LSA-R.S. 22:658); and, in failing to timely pay workmen’s compensation benefits for the period of disability, about which there was no dispute.

We find no merit in the contention that defendants failure to timely pay plaintiff her medical and travel expenses was arbitrary, capricious, or without probable cause. Appellant sought recovery of travel expenses at the rate of $1.00 per mile. American considered such a travel expense to be excessive and unreasonable and requested verification of the expense from plaintiff’s counsel which was never received. As to the medical expenses, although defendants received certain medical bills on March 27, 1979 for services allegedly rendered to plaintiff, defendants did not receive any medical report substantiating the bills until May 18,1979. Shortly following receipt of this report, i. e., on June 4, 1979, all medical bills and the travel expenses were paid. Under such circumstances we conclude that the delay in payment of these expenses was not arbitrary or without probable cause.

Appellant’s alternate claim, i. e., that defendants failure to timely pay total workmen’s compensation benefits, for the period of disability about which there was no dispute was arbitrary, capricious and without probable cause, presents a more serious issue.

It is undisputed that after receipt of the initial medical report from Dr. Coney on May 18,1979, American paid plaintiff workmen’s compensation benefits for the period from February 23 to February 28, 1979 (6 days @ $11.05). This payment was made during the statutory delay. It is likewise undisputed that this was the only benefit payment made by American prior to trial.

In support of her alternate claim plaintiff-appellant urges that she was not released by her treating physician to return to her normal work until the Monday following March 1, 1979, and therefore she was clearly entitled to timely payment of compensation benefits for an additional four days beyond February 28, 1979, i. e., March 1 through March 4,1979. Appellant asserts that the failure of defendants to pay these additional benefits was arbitrary and without probable cause.

In answer to this contention American urges that it was justified in making no further payments beyond February 28, 1979 because Dr. Coney’s medical report clearly recited that plaintiff had been “discharged as cured” on March 1, 1979. Further, American urges that following receipt of such report the contents thereof were verified as correct in a telephone conversation had with one of Dr. Coney’s employees.

We examine the opposing contentions of the parties, the record and the conclusion of the learned trial judge in light of the following legal principles which are well settled.

A trial court’s conclusion with regard to the assessment of penalties and attorney’s fees under LSA-R.S. 22:658 is partially a factual determination which should not be disturbed absent a finding that it is manifestly in error. Cullivan v. Fish Engineering and Construction Company Inc. et al., 354 So.2d 597 (La.App. 3rd Cir. 1977).

The penalty provisions of LSA-R.S. 22:658 are stricti juris and are imposed in only those instances where the facts show that the insurer’s failure to timely pay insurance benefits is arbitrary, capricious, or without probable cause. Guillory v. Travelers Insurance Company, 294 So.2d 215 (La.1974).

When an insurer’s termination of compensation is based upon competent medical evidence, the action is not arbitrary and capricious. Levine v. Liberty Mutual Insurance Company, 305 So.2d 665 (La.App. 3rd Cir. 1974); Crawford v. Al Smith Plumbing & Heating Service, Inc., 352 So.2d 669 (La.1977).

In determining the period for which benefits are due an injured claimant under the Workmen’s Compensation Act there is a significant difference between the date when a physician discharges an injured claimant from active care and the date when the physician advises an injured claimant to return to work. Bush v. Insurance Company of North America, 185 So.2d 328 (La.App. 4th Cir.1966); Horn v. Vancouver Plywood Company et al., 322 So.2d 816 (La.App. 3rd Cir. 1975).

If, subsequent to an initial optimistic report, an insurer receives medical information showing disability at a subsequent date, the insurer may not blindly rely upon the earlier report and solely on its basis avoid penalties for arbitrary nonpayment of compensation benefits indisputably due a disabled workman. Walker v. Gaines P. Wilson & Son, Inc., 340 So.2d 985 (La.1976).

Our examination of this record in light of these settled principles prompts us to conclude that the defendants were arbitrary and acted without probable cause in failing to timely pay plaintiff the benefits indisputably due her for the period March 1, 1979 through March 4, 1979, and the trial court clearly erred when it failed to so hold.

Although defendants may have had some initial justification in terminating compensation benefits as of February 28, 1979, the record shows that long prior to the trial of this matter defendants were clearly informed of all relevant facts and specifically that the actual discharge of plaintiff for resumption of work was not until March 5, 1979.

The above being considered we conclude that plaintiff is entitled to an award of 12% penalties on the sum of $44.20 and reasonable attorney’s fees for the prosecution and collection of such amount. Although the trial court, after hearing on the merits, concluded that plaintiff was entitled to workmen’s compensation benefits for a total of eight weeks, we award penalties only for the four day period for which benefits were unquestionably due and which remained unpaid. Considering Dr. Coney’s report of May 18, 1979 as supplemented by his memorandum of June 21, 1979, it cannot be said that American acted arbitrarily in failing to pay compensation benefits beyond March 4, 1979.

In connection with the award of attorney’s fees we observe that although the amount of unpaid compensation against which penalties are assessed is small and was perhaps considered insignificant by American nonetheless plaintiff is entitled to an award of attorney’s fees. See Dobbins v. Liberty Mutual Insurance Company, 280 So.2d 582 (La.App. 3rd Cir. 1973). Under the circumstances of this case we determine that an attorney’s fee in the sum of $1250.00 is reasonable for services both at the trial level and on appeal.

For the above and foregoing reasons we reverse that portion of the trial court judgment which dismissed plaintiff’s claims for penalties and attorney’s fees and render judgment in favor of plaintiff, Sandy Carter, and against defendants, American Mutual Liability Insurance Company and Har-risonburg Nursing Home, in solido, for 12% penalties on the sum of $44.20 and $1250.00 in attorney’s fees, with legal interest on such sums from date of judicial demand until paid. In all other respects the judgment appealed from is affirmed. All costs of this appeal shall be borne by appellees.

REVERSED IN PART; AFFIRMED IN PART; and, RENDERED.

DOMENGEAUX, J., concurs in the result.

      . There is no dispute as to plaintiff’s rate of compensation or that at the time of initial payment by American she was not entitled to payment for the week beginning February 16, 1979 and ending February 22, 1979. LSA-R.S. 23:1224.
      Additionally, although the record does not reflect the exact date on which this payment of compensation was made plaintiff concedes that it was received within sixty days of her first demand for payment.

      . At trial the parties stipulated that the daily compensation due plaintiff was the sum of $11.05.


author: CUTRER, Judge.

text:
    Fred WANNAGE, Plaintiff-Appellant, v. EMPLOYER’S INSURANCE OF WAUSAU et al., Defendants-Appellees.
    No. 7740.
    Court of Appeal of Louisiana, Third Circuit.
    July 30, 1980.

      Baggett, McCall, Singleton, Ranier & Iey-oub, Homer C. Singleton, Jr., Lake Charles, for plaintiff-appellant.
    Mouton, Roy, Carmouche, Bivens & Hill, Harmon F. Roy, Andrus & Preis, Edwin G. Preis, Jr., Lafayette, for defendants-appel-lees.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.

      . The correct spelling is “Employers.”

   CUTRER, Judge.

This is a suit for damages due to personal injuries by Fred Wannage against Employers Insurance of Wausau (Employers) alleged to be the insurer of certain employees who were executive officers of Conalco, Inc. Plaintiff has appealed the trial court granting Employers’ motion for summary judgment. We affirm.

Plaintiff alleges that he was injured in a work-related accident on June 22, 1975 while employed at Conalco at its plant near Lake Charles, Louisiana. Plaintiff brought this action against Employers alleging that it was the general liability insurer of Conal-co, its executive officers, directors, stockholders and employers. The plaintiff alleged that certain named executive officers, directors, stockholders and/or employees failed in their duties to the plaintiff resulting in plaintiff’s injuries.

Employers filed a motion for summary judgment on the basis that it provided no coverage of the persons alleged to be executive officers in plaintiff’s petition.

The policy of insurance appearing in the record contains the following endorsement:

“It is agreed thát the ‘persons insured’ provision is amended as follows :
1. Subdivision (C) is replaced by the following :
(C) If the named insured is designated in the declarations as other than an individual, partnership or joint venture, the organization so designated and
(I) Any director or stockholder thereof while acting within the scope of his duties as such; and
(II) Any executive officer of the named insured while acting within the scope of his employment for the named insured.
The term ‘executive officer’ means any person holdiner any of the officer positions created by the charter or bylaws of the named insured.” (Emphasis added.)

By affidavit, Employers showed that none of the individuals named as executive officers in the suit were officers occupying positions created by the charter or bylaws of the corporation, nor were they stockholders or directors.

Plaintiff, in his brief, concedes:

“ . . . that no individual named in the corporation’s charter or by-laws would have had personal knowledge or responsibility necessary as a foundation for liability.”

The trial judge granted the motion for summary judgment on the basis that the policy, as endorsed, did not provide coverage for the persons named as executive officers in plaintiff’s petition.

The sole issue on appeal is whether the policy does provide such coverage.

Plaintiff argues that the trial court erred. Plaintiff contends that because the charter and bylaws were not physically attached to the policy, the endorsement limiting “executive officers” to those officers in positions created by the charter or bylaws is to be ignored. Plaintiff argues therefore that the jurisprudential definition of “executive officer” is to be applied. Plaintiff argues that under the jurisprudential criteria, there would be coverage for the supervisory employees involved in the accident. In support of his argument, plaintiff cites LSA-R.S. 22:628 and Spain v. Travelers Insurance, 332 So.2d 827 (La.1976).

LSA-R.S. 22:628, prior to subsequent amendments (in 1976, 1977 and 1979), provided, in pertinent part, that:

“No agreement in conflict with, modifying, or extending the coverage of any contract of insurance shall be valid unless it is in writing and physically made a part of the policy . . . .”

In Spain, the policy issued by the excess liability insurer, Interstate Fire & Casualty Company, contained a clause, incorporating into its policy by reference the immediate underlying policy (primary). Such policy was not attached to the excess policy. The court observed as follows:

“The plain meaning of the statute [LSA-R.S. 22:628] seems to render invalid any agreement modifying the coverage of an insurance contract unless it is somehow physically made a part of the policy. This section of the Insurance Code appears to have the same purpose as many other sections which require that, in order to have effect, applications, by-laws, or other instruments must be made a part of the policy by attachment, endorsement or some other method.” (Emphasis added.)

Plaintiff argues that since the bylaws and charter were not physically attached to the policy any attempt to define “executive officers” in a manner different from prior judicial interpretation of the terms is invalid. Mere incorporation by reference does not meet the requirements by LSA-R.S. 22:628.

In reaching its decision, the trial court relied on a recent case of Richards v. Farmers Export Co., 377 So.2d 859 (La.App. 4th Cir. 1979), writ den., 380 So.2d 69 (La.1980). In Richards, the court was faced with a policy endorsement containing the identical language before this court. The court in Richards distinguished Spain, stating:

“ . . . The charter and bylaws of Farmers Export Company do not constitute an ‘agreement in conflict with, modifying, or extending the coverage.’ They are purely definitional in identifying who is an executive officer under the policy and were not required by R.S. 22:628 to be attached to the policy for this purpose."

Plaintiff concedes that the issue in Richards and in this case are identical. Plaintiff, however, points out that this court should not reach the same result as our brethren in the Fourth Circuit. Plaintiff contends that the court in Richards erred and that the principles of Spain should be applied.

We agree with the reasoning and result in Richards. The charter and bylaws do not modify coverage of the policy, but simply identify who is an executive officer under the policy definition of executive officers. We find that such a result does not conflict in any way with the legislative policy expressed in LSA-R.S. 22:628 as interpreted in Spain.

In Spain, the court carefully reviewed the history and purpose of LSA-R.S. 22:628. The court concluded that:

“ . . . The object of the statute is to assure full notification to the insured of all relevant provisions of his insurance contract." (Emphasis added.)

In the present case, the reference in the definition of executive officer is to documents which belong to, are under the control of, and in the possession of the named insured. There can be no question that the insured has full notification of all relevant provisions of his insurance contract since the documents referred to are its own documents and not instruments of the insurer or a third party.

We therefore conclude that no coverage was provided under the policy in question to persons who are not occupying positions created by the insured’s charter or bylaws. Plaintiff concedes that none of the persons who would have personal knowledge and responsibility necessary as a foundation for liability occupied positions created by the charter or bylaws of Conalco. The trial court therefore properly dismissed plaintiff’s suit as to Employers.

For the reasons assigned, the judgment of the trial court is affirmed. Costs of this appeal are taxed to the plaintiff-appellant.

AFFIRMED.