author: CUTRER, Judge.

text:
    Betty BRUNEY, Individually and on behalf of her minor children, Plaintiff-Appellant, v. CITY OF LAKE CHARLES and Hartford Accident and Indemnity Company, Defendants-Appellees.
    No. 7581.
    Court of Appeal of Louisiana, Third Circuit.
    May 21, 1980.

      Baggett, McCall, Singleton, Ranier & Iey-oub, by Homer C. Singleton, Jr., Lake Charles, for plaintiff-appellant.
    Raggio, Cappel, Chozen & Berniard, Frederick L. Cappel, Lake Charles, for defendants-appellees.
    Before CULPEPPER, CUTRER and DOUCET, JJ.
   CUTRER, Judge.

This is a workmen’s compensation suit for death benefits filed on behalf of the widow and five children of the decedent, Gerald Bruney. The defendants are the City of Lake Charles (the employer) and Hartford Accident & Indemnity Company (the workmen’s compensation insurer). The plaintiff appeals the trial court judgment dismissing the suit. We affirm.

The undisputed facts are: Gerald Bruney was employed as a captain in the Lake Charles Fire Department for 18 years prior to his death on March 18, 1978. In January of 1978, Captain Bruney, during a routine physical examination, was diagnosed by Dr. George Anderson as having gallstones. Dr. Anderson referred Bruney to Dr. F. W. Bennerscheidt. After consulting with Dr. Bennerscheidt on January 81, 1978, Bruney elected to have surgery for the removal of the gallstones. The surgery was scheduled for February 6, 1978 in Lake Charles Memorial Hospital. Bruney was to be admitted on February 5, 1978.

On the evening of February 4,1978, Bru-ney’s last day of work, he and his crew responded to a fire at an abandoned residence in south Lake Charles shortly after 8:00 P.M. At the scene of the fire, Bruney and his crew undertook to protect an exposed residence near the burning house. After the blaze was out, Bruney entered the remains of the burned house to help extinguish any burning embers. There was testimony by firemen at the scene that there was some smoke, but that it was not a problem and masks were not worn. During the fire, Bruney complained of pain in his side and informed the district chief that he was going to go home after he returned to the station. Shortly after 11 o’clock, Bru-ney and his crew returned to their station and shortly thereafter, Bruney left to go home.

When Bruney returned home, he complained to his wife of abdominal pain and nausea. According to Mrs. Bruney, he was coughing and vomiting. He was restless the remainder of the night. The following afternoon, February 5th, Bruney was admitted to the hospital for the surgery. Routine X-rays taken of Bruney’s chest, according to Dr. Bennerscheidt, revealed no lung infiltration. The blood counts were within normal range.

Surgery was performed as scheduled on February 6,1978. During the course of the surgery, it was determined that a stone was lodged in the distal part of the common bile duct. The stone was removed during the surgery. Following surgery, Bruney developed serious complications, ultimately resulting in his death. The doctors who testified at trial were unanimous in the conclusion that the primary cause of death was massive gastrointestinal hemorrhage six weeks after surgery as a result of a stress ulcer. This type of ulcer develops from protracted serious sickness.

Other secondary causes of death included focal acute pancreatitis, associated along with pancreatic and duodenal abscesses following gall bladder surgery, bronchial pneumonia, congested lungs, pleural adhe-sions, enlarged liver and spleen, kidney failure, and aspiration of the blood in the tra-cheobronchial tree.

The trial judge found that the plaintiff did not meet its burden of proof in its attempt to show a causal connection between Bruney’s employment and his death.

The issues on appeal are: (1) Whether the trial judge erred in failing to find smoke inhalation contributed to the death of Gerald Bruney; and (2) whether the trial judge erred in finding that plaintiff failed to prove a causal connection between the lodging of a gallstone (leading to Bruney’s death) and Bruney’s work as a fireman.

In order to recover workmen’s compensation benefits the plaintiff must establish that the decedent received a personal injury by an accident arising out of and in the course of his employment. Parks v. Insurance Co. of North America, 340 So.2d 276 (La.1976). The claimant must show more than a possibility that the disability was caused by or aggravated by the employment. Quine v. Ideal Cement Co., 351 So.2d 1303 (La.App. 1st Cir. 1977), writ den., 353 So.2d 1035 (La.1978).

It is well established that the burden of proof in a workmen’s compensation claim is not relaxed. In Prim v. City of Shreveport, 297 So.2d 421 (La.1974), the Supreme Court stated:

“Although procedural rules are construed liberally in favor of workmen’s compensation claimants, the burden of proof, by a preponderance of the evidence, is not relaxed. Thus, the testimony as a whole must show that more probably than not an employment accident occurred and that it had a causal relation to the disability. If the testimony leaves the probabilities equally balanced, the plaintiff has failed to carry the burden of persuasion. Likewise, the plaintiff’s case must fail if the evidence shows only a possibility of a causative accident or leaves it to speculation or conjecture.” (Citations omitted:)

SMOKE INHALATION

All of the physicians who testified agreed that the primary cause of death was massive gastrointestinal hemorrhage. All agreed that among the secondary causes of death was Bruney’s pulmonary condition.

Plaintiff contends that Bruney’s inhalation of smoke on the evening of February 4, 1978 contributed to the development of his lung condition which was a secondary cause of death. Further, plaintiff contends that this inhalation was an “accident injury for purposes of workmen’s compensation benefits.”

In support of this position, the plaintiff points to the testimony of Dr. Dalmacio S. Paraguya. During Bruney’s post-operative illness, Dr. Paraguya was called in to assist in treating Bruney. He testified 'that Bru-ney had developed edema of the lungs. He also stated that there was infiltration for pneumonia present in the lungs. He stated that the edema was a result of a combination of things, including an enlarged heart and lung infiltrate. He stated that pan-creatitis would be a factor in developing lung complications. Dr. Paraguya testified that he later learned of Bruney’s history of smoke inhalation, which he felt could have played a role. He stated smoke inhalation damages the cilia in the bronchial tubes which help the lungs cleanse themselves. Smoke inhalation, combined with the effect of anesthesia on the lungs, could have made the lungs vulnerable to complications. Dr. Paraguya did not discuss the level of smoke inhalation necessary to damage the cilia.

There was testimony by firemen present at the February 4th fire that there was some smoke inhalation. All stated that the smoke at the fire was not significant, did not necessitate the wearing of masks, and did not present a problem to the firefighters. None of the firemen who testified could recall Bruney having any difficulty due to smoke inhalation.

We conclude that there was no manifest error in the trial court’s finding that the smoke inhalation, if any, did not contribute to Bruney’s death. Nothing more than a possibility has been shown that smoke inhalation could have contributed to Bruney’s death. Plaintiff must show more than a possibility to prove its case. Quine v. Ideal Cement Co., supra.

DISLODGED GALLSTONE

Plaintiff contends that Bruney’s activities during the fire of February 4th caused a gallstone to be dislodged from the gall bladder and to become impacted in the common bile duct.

Bruney complained of pain in his side while engaged in the firefighting episode on February 4th. Dr. Bennerscheidt testified the results of Bruney’s hospital admission chemistry profile indicated that the stone became impacted within 48 hours before the test. The testimony of the physicians also indicated that when a stone is impacted and obstructs the common bile duct, the onset of pain follows very shortly. Plaintiff argues this testimony supports its contention that since he first experienced pain during the firefighting, this activity caused the stone to move.

Dr. Bennerscheidt testified that it is conceivable that physical activity could cause a stone to become dislodged because the activity could add to the effect of gravity on the stone. Dr. Bennerscheidt stated that the most active factor in causing stones to become dislodged, however, is the presence of food in the gastrointestinal tract. Food acts as a stimulus causing the gall bladder to contract and the cystic duct to open. Further, he stated a stone could become dislodged during sleep. Dr. Bennerscheidt also stated that it is not possible with any degree of reasonable medical certainty to determine what caused the gallstone to become dislodged, and that a stone may be dislodged at anytime.

Dr. Robert E. Brierty testified that the only documented cause of dislodging of á stone, of which he was aware, is the presence of food in the gastrointestinal tract, causing the gall bladder to propel bile and the stone out of the gall bladder into the common bile duct.

The trial judge found that the plaintiff failed to prove that Bruney’s physical activity while fighting the fire caused the stone to move. We find no manifest error in this conclusion. The plaintiff has, at best, demonstrated only a possibility that the stone was dislodged during the firefighting because of physical activity. There is sufficient evidence to support the trial judge’s finding that there was no causal connection between Bruney’s death and his employment activity. As stated in Quine v. Ideal Cement Co., supra:

“. . the plaintiff must show more than a possibility that the disability was caused by or aggravated by the employment.”

The plaintiff has not shown it was more probable than not that the physical activity involved in firefighting caused the stone to move. Plaintiff has not, therefore, carried her burden of proof.

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

AFFIRMED.


source: Caselaw Access Project

author: DOMENGEAUX, Judge.

license: Public Domain

text:
    Joyce Ann JESSEN, Plaintiff-Appellee, v. Emile Benny JESSEN, Defendant-Appellant.
    No. 7583.
    Court of Appeal of Louisiana, Third Circuit.
    May 21, 1980.

      Hunt, Godwin, Painter & Roddy, Fred R. Godwin, Lake Charles, for defendant-appellant.
    Francis A. Dressier, Lake Charles, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and LABORDE, JJ.
   DOMENGEAUX, Judge.

Did the defendant-husband produce sufficient evidence to prove that his wife, the plaintiff, committed post-separation adultery? If he did then plaintiff is not entitled to post-divorce alimony. In the judgment of divorce, however, the trial court found the evidence of adultery to be insufficient, declared the wife to be free of fault, and awarded her $550.00 per month as post-divorce alimony. The husband appeals claiming that his wife is not entitled to alimony, because she committed adultery. Alternatively, he argues that an award of $550.00 per month violates La.C.C. Art. 160 because the amount exceeds one-third of his income. He also urges that the trial court erred in denying his motion for a new trial. We affirm.

The defendant, Benny Jessen, builds his case entirely on circumstantial evidence. Adultery may be proved by circumstantial evidence alone but this evidence must be so convincing that it excludes any other reasonable hypothesis but that of guilt of adultery. Helms v. Helms, 349 So.2d 441 (La. App. 3rd Cir. 1977); Dubois v. Falgout, 268 So.2d 70 (La.App. 3rd Cir. 1972).

Testimony establishes that plaintiff, Joyce Ann Jessen, and her alleged co-respondent, Douglas Jeffries, enjoyed a close and warm relationship. Plaintiff admitted that she occasionally stayed overnight at Mr. Jeffries’ home in Lake Charles when only she and Mr. Jeffries were there. These instances occurred, she testified, only when she had had too much to drink and could not drive home. At other times, she and her three daughters stayed overnight at Mr. Jeffries’. In fact, following her surgery for a hysterectomy on June 12, 1978, the plaintiff and her three daughters virtually lived at the Jeffries home about half the time, until the date of the trial in January of 1979.

Plaintiff also admitted that Mr. Jeffries stayed at her mobile home overnight on at least three occasions, although she uniformly denied adultery on these or any other occasions when she was with him alone.

Defense counsel contends that these numerous overnight stays alone with Douglas Jeffries should have been sufficient circumstantial evidence of adultery and cites Helms v. Helms, supra, as authority.

Defense counsel’s reliance on Helms v. Helms is misguided. There the defendant husband admitted to having spent two consecutive nights at the apartment of his alleged co-respondent. However, there was much more circumstantial evidence which supported the trial court’s finding that the defendant was guilty of adultery. Four witnesses testified that they maintained constant overnight surveillance of the apartment on the dates in question, noticed only the defendant and his girlfriend enter, saw the silhouetted couple undress in the master bedroom, get into bed together, and put the lights out. In our case, there are no dates, no witnesses, and no other evidence apart from the admission of Mrs. Jessen that she and Mr. Jeffries were occasionally alone at night.

The main portion of defendant’s case is structured around a four-night-five-day trip to New Orleans beginning on September 15, 1978, and ending September 19, 1978. As proof of adultery during this trip, the defendant relies on hotel records and inconsistencies in testimony between two of the plaintiff’s witnesses — the plaintiff herself and Ben Norris, Mr. Jeffries stepson.

The record of the Royal Orleans Hotel reveals the registration of “M/M Douglas Jeffires” in room 605, beginning September 15, 1978, and ending September 19, 1978. An advance deposit for the room was made by check from Jeffries Finance Company. The records further show that room service was obtained on several occasions and that numerous phone calls were made from the room during those dates.

Mrs. Jessen readily admits that she accompanied Mr. Jeffries on a trip to New Orleans at that time. According to her testimony, Mr. Jeffries registered her into the Royal Orleans Hotel but he never went up to the room himself. She further testified that originally, three persons — herself, Mr. Jeffries, and Honor Faith “Tootsie” Burton, a close friend of Mrs. Jessen — were to make the trip to New Orleans but that Mrs. Burton cancelled at the last minute, after the advance payment to the Royal Orleans Hotel had already been made. The original plan called for Mrs. Jessen and Mrs. Burton to occupy the room together at the Royal Orleans Hotel. Further, Benjamin Norris testified that his stepfather, Mr. Jef-fries, spent the nights of September 15, 16 and 17 (Friday, Saturday, and Sunday) at his apartment located in Metairie.

Defense counsel’s attempt to overwhelm the court with detailed hotel records does not obscure the fact that the records do not show that Mrs. Jessen and Mr. Jeffries were ever alone in the room. No witnesses were produced who could testify that the pair cohabited room 605 of the Royal Orleans on any of the nights, or days, in question.

Despite the inconsistencies in testimony, the trial court felt that the defendant simply did not discharge his heavy burden of proof and found that Mrs. Jessen was not guilty of adultery. We decline to upset this holding in the absence of more compelling evidence of adultery. This court made a similar holding in Dubois v. Falgout, supra. There, the wife produced strong evidence that her husband committed adultery. The trial court rejected that evidence, finding that it fell short of establishing the husband’s adultery. In affirming that determination this court quoted from Gilbert v. Heintz, 231 La. 535, 91 So.2d 784, 786 (1956), the following:

“The trial judge looks at the influences which surround our fellows, and then sounds their hearts by the plummets which he applies to his own. He is not under the same handicap as this Court, who reads a bare transcription of testimony. The trial judge, being a judge of original jurisdiction, tries, hears, and observes all that transpires in a courtroom, particularly those matters happening therein which are not susceptible of being taken down by the stenographer, such as the witnesses’ manners on the stand, and their course of conduct while giving their testimony. It is because of the knowledge of these facts that this Court has adopted the rule that the judgment of the district court on questions of fact should not be disturbed unless manifestly erroneous.”

For the quoted reasons, and because the burden of proof required to establish adultery is such a heavy one, the trial court’s holding in cases of adultery is seldom reversed.

We disagree with defense counsel’s argument that this case is that rare exception which requires a reversal of the trial court’s finding of fact in an adultery case. We cannot say with any degree of certainty that there is but one valid perception of human experience which leads inexorably to the conclusion, based on the evidence presented in this case, that an adulterous relationship occurred. Consequently, we affirm the trial court’s finding that Mrs. Jes-sen is free of fault and is entitled to alimony.

Defendant contends that the alimony award of $550.00 per month ($6,600.00 per year) exceeds one-third of his income. Such an award would violate La.C.C. Art. 160. However, little has been offered by defendant, on appeal, to show that defendant’s income was less than $1,650.00 per month or $19,800.00 per year (the lowest income of which $550.00 per month would be one-third). Defendant’s tax returns for the years 1976 and 1977 demonstrate that his business interests provided him with an income greatly in excess of $19,800.00 annually. Evidence further showed that Mr. Jessen’s gross income for 1978 approached $80,000.00. Even though he testified that his income was very uncertain for the future and that he was unemployed at the time of trial, we believe that the record amply supports the trial judge’s award of alimony and his decision in this regard will not be disturbed.

Defendant next urges that his motion for a new trial should have been granted for either of two reasons: (1) That La.C.C. Art. 160 is unconstitutional; (2) Newly discovered evidence placed Mrs. Jessen and Mr. Jeffries in room 605 of the Royal Orleans Hotel at the same time.

Defendant raised the issue of constitutionality for the first time in his motion for a new trial. He acknowledges that constitutional rights may be forfeited for failure to make a timely assertion of the right. See Johnson v. Welsh, 334 So.2d 395 (La.1976); Gauthreaux v. Gauthreaux, 377 So.2d 567 (La.App. 3rd Cir. 1979). He asserts that the U.S. Supreme Court case of Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979) which struck down an Alabama statute virtually identical to La. C.C. Article 160, excuses his dilatory pleading of the constitutionality issue. The Orr decision was decided March 5, 1979, after the decision of the trial court in this case on March 2, 1979. We do not consider this sufficient justification to reverse the trial court’s denial of a new trial, particularly since our own Supreme Court case of Lovell v. Lovell, 378 So.2d 418 (La.1979), which declared Article 160 unconstitutional, also declared that all judgments awarding alimony prior to the effective date of the amendment to Article 160 of the Louisiana Civil Code (June 29, 1979) remain unaffected by the decision in Lovell.

Defendant finally contends that his motion for a new trial on the basis of newly discovered evidence should have been granted. This new evidence, according to defendant’s brief, places Mrs. Jessen and Mr. Jeffries in room 605 of the Royal Orleans Hotel at the same time, which would tend to contradict Mrs. Jessen’s testimony that the two were never in the room at the same time. However, the witness bearing this new information, one of Mrs. Jessen’s (and Mr. Jessen’s) daughters, was known to the defendant at the time of trial and could have been subpoenaed. Defendant has failed to adequately show this Court that this evidence could not have been discovered with due diligence before or during trial. Hence, the denial of a motion for a new trial was proper. La.C.C.P. Article 1972(2); Alexandria Volkswagen, Inc. v. McNeal, 254 So.2d 484 (La.App. 3rd Cir. 1971).

For the above and foregoing reasons the judgment of the District Court is affirmed. All costs are assessed against the defendant-appellant, Benny Jessen.

AFFIRMED.

      . Mrs. Jessen had previously obtained a legal separation from her husband. In this case, she sued for divorce based on living separate and apart for one year following a legal separation. The trial court granted the divorce on that basis and awarded her alimony. One issue raised by the appeal is that the trial court erred in ordering defendant to pay one-half of the costs of the proceedings. That issue has not been argued and is presumed waived. Thus we do not consider it here.

      . Mr. Norris could not testify as to the whereabouts of his stepfather on Monday night because he (Mr. Norris) was in the hospital that night.


author: CULPEPPER, Judge.

text:
    Ostein J. DAUZAT, Plaintiff and Appellee, v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY, OFFICE OF MOTOR VEHICLES, Defendant and Appellant.
    No. 7584.
    Court of Appeal of Louisiana, Third Circuit.
    May 21, 1980.

      Robert L. Roshto, Baton Rouge, for defendant-appellant.
    Darrel Ryland, Marksville, for plaintiff-appellee.
    Before CULPEPPER, CUTRER and DOUCET, JJ.
   CULPEPPER, Judge.

This is a petition under LSA-R.S. 32:415.1 for a restricted driver’s license. The trial court ordered that plaintiff, Ostein J. Dauzat, be granted a restricted license and the defendant, Department of Public Safety, has appealed.

The sole issue in this case is whether or not the trial court can grant limited driving privileges under LSA-R.S. 32:415.1 to a person whose license has been suspended pursuant to LSA-R.S. 32:892.

The facts reveal that on October 5, 1973, a judgment was rendered against plaintiff Dauzat as a result of an automobile accident which occurred on May 16, 1973. The judgment awarded $1,593.13 to the four individuals who were negligently injured by the plaintiff. Plaintiff’s driver’s license was immediately suspended under LSA-R.S. 32:892, which provides:

“§ 892. Suspension for non-payment of judgment; exceptions
A. The commissioner, upon the receipt of a certified copy of a final judgment shall forthwith suspend the license and registration and any non-resident’s operating privilege of any person against whom such judgment was rendered, except as hereinafter otherwise provided in this Section and in R.S. 32:895.
B. If the judgment creditor consents in writing, in such form as the commissioner may prescribe, that the judgment debtor be allowed license and registration or non-resident’s operating privilege, the same may be allowed by the commissioner, in his discretion, for six months from the date of such consent and thereafter until such consent is revoked in writing, notwithstanding default in the payment of such judgment, or any installments thereof prescribed in R.S. 32:895 provided the judgment debtor furnished proof of financial responsibility. Acts 1952, No. 52 § 13.”

Plaintiff, who is 70 years old and has a total income of $312.00 per month to support himself and his wife, has never paid any amount on the judgment and has not driven since 1973. He testified he has applied for a restricted license because he and his wife are no longer able to walk the distance to their church, the doctor and the grocery.

Defendant contends the trial court erred as a matter of law in ordering the issuance of a restricted license to a driver suspended under the Safety Responsibility Law. We agree.

We agree with the holding in Hughes v. Department of Public Safety, 79 So.2d 129 (1st Cir. 1955). In that case, the court was called upon to consider the grounds of judicial review for license and vehicle registration suspensions under the Motor Vehicle Safety Responsibility Law. After a thorough discussion of social policy and legislative intent, the court stated:

“It is specifically set forth in the Act that the Department of Public Safety is to suspend the driver’s license of all operators involved in a motor accident who do not comply with the financial responsibility provisions without exception and without regard to legal liability. Although this may work a financial hardship on some motorists, the fundamental legislative purpose was to alleviate the financial hardship of those injured in an accident and the resultant social problem, and to forbid future access to the highways to the financially irresponsible drivers involved in an accident unless they complied with the Act. This is also the jurisprudence of other States with similar statutes, see Annotation, 35 A.L.R. 2d 1011.” (Emphasis supplied)

We recognize that the case before the court in Hughes involved a suspension under LSA-R.S. 39:872 while the case here concerns a suspension under 32:892. We find, however, that the rationale and holding in Hughes is applicable to all suspensions under 32:851, et seq. The legislature has not provided for restricted licenses for any reasons under the Safety Responsibility Law.

We also recognize that plaintiff seeks relief under the provisions of 32:415.1, which was enacted subsequent to the decision in Hughes. We find that the relief available under 32:415.1 is not applicable to suspensions under 32:851, et seq.

R.S. 32:415.1 provides:

“§ 415.1 Economic hardship appeal of driver’s license suspension
A. (1) Upon suspension, revocation or cancellation of a person’s drivers license for the first time only as provided for under R.S. 32:414(B), (C), (D), (E), and R.S. 32:415 said person after initial notice from the department shall have the right to file a petition in the district court of the parish in which the applicant is domiciled alleging that revocation of his driving privileges will deprive him or his family of the necessities of life or will prevent him from earning a livelihood. The district court is vested with jurisdiction to set the matter for contradictory hearing in open court upon ten days written notice to the department, and thereupon to determine whether the allegations of hardship have merit. Upon determination by the court that the lack of a license would deprive the person or his family of the necessities of life, the court may order that the person be granted by the department a restricted license to enable the person to continue to support his family. The restrictions of said license shall be determined by the court . . . .”

By its express provisions, R.S. 32:415.1 A(l) limits its application to certain listed types of suspensions. Suspensions under R.S. 32:851, et seq. are not listed. See also, Hendryx v. Department of Public Safety, 311 So.2d 547 (3rd Cir. 1975) and Spencer v. State of Louisiana, Department of Public Safety, 315 So.2d 912 (4th Cir. 1975).

Various means of relief from a suspension imposed for violation of the Safety Responsibility Law are provided in R.S. 32:892-899. Immediate compliance with any of the alternatives listed will afford plaintiff an adequate remedy without judicial interference.

For the reasons assigned, the judgment appealed is reversed and set aside. Judgment is now rendered in favor of defendant, rejecting plaintiff’s demands at his costs.

REVERSED AND RENDERED.


author: DOUCET, Judge.

text:
    Randy Paul WOODS, Plaintiff-Appellee, v. Dean Marie Simon WOODS, Defendant-Appellant.
    No. 7589.
    Court of Appeal of Louisiana, Third Circuit.
    May 21, 1980.

      Pivat & Regan, Thomas K. Regan, Crowley, for defendant-appellant.
    Jack Derrick Miller, Crowley, for plaintiff-appellee.
    Before CULPEPPER, CUTRER and DOUCET, JJ.
   DOUCET, Judge.

This is an appeal from a judgment on a rule granting the plaintiff-in-rule, Randy Paul Woods, a modification of his visiting privileges with his minor daughter. Woods and the defendant-in-rule, Dean Marie Woods, were divorced by a judgment of the district court rendered on October 26, 1978. Defendant was awarded the custody of the minor child of the marriage, Tasa Kay Woods, and plaintiff was ordered to pay $117.00 per month for her support. The judgment also awarded plaintiff the right to visit with the child every other Sunday between the hours of 9:00 A.M. and 5:00 P.M.

On August 24, 1979, plaintiff filed this motion, seeking an increase in the amount of time that he is allowed to spend with the child. Following a hearing, judgment was rendered in his favor, increasing the visitation periods to from 12:00 Noon Saturday until 5:30 P.M. Sunday, every other weekend until December 7, 1979, when the time was further increased to from 6:30 P.M. Friday until 5:30 P.M. Sunday, every other weekend. Defendant has appealed, asserting that the trial court erred in increasing the length of the visitation periods.

The paramount consideration in determining visitation rights is the welfare of the child. If an appellant fails to show that the provisions of the trial court’s award of visitation rights would be detrimental to the health and welfare of the child, the judgment will be affirmed. Johnson v. Johnson, 357 So.2d 69 (La.App. 4th Cir. 1978); Doherty v. Mertens, 326 So.2d 405 (La.App. 3rd Cir. 1976).

Defendant testified that plaintiff is not capable of caring for the child over the period of a weekend. However, we find nothing in the record to support her opinion. At the time of the hearing, the child was three years old and in good mental and physical health. Although plaintiff was recovering from the effects of a serious accident, which impaired his physical coordination and his speech, the evidence did not show that his disability was such that it would prevent him from caring for the child. Since the time of the accident, plaintiff has remarried, purchased a home, and has been employed on a regular basis.

Defendant also introduced the testimony of Dr. William Hawkins, a psychologist, who had examined and evaluated the child. Dr. Hawkins testified that a gradual establishment of a relationship between the child and plaintiff would be better for the child. However, his opinion was based largely on a history supplied by defendant. Defendant had informed him that plaintiff had taken no interest in the child for a period of a year. Plaintiff testified, however, that he had frequently tried to see the child and had been denied access to her by defendant and her second husband. Although it does appear that as of the date of the trial of this matter, the child did not fully understand that plaintiff was her natural father, we do not believe that that situation resulted from plaintiff’s lack of interest in establishing a relationship with the child.

Dr. Hawkins testified that learning to distinguish her natural father from her step-father would be in the child’s best interests. At the time of the hearing, defendant and her husband were not attempting to encourage a relationship between plaintiff and the child. Under those circumstances, we believe that the trial judge’s order increasing plaintiff’s visitation rights was clearly in the child’s best interests and not an abuse of his discretion.

For the reasons assigned, the judgment of the trial court is affirmed. All costs of this appeal are assessed against the defendant-appellant.

AFFIRMED.


author: GUIDRY, Judge.

text:
    EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN, Plaintiff-Appellant, v. RED SIMPSON, INC., Defendant-Appellee.
    No. 7593.
    Court of Appeal of Louisiana, Third Circuit.
    May 21, 1980.

      Favret, Favret, Demarest & Russo, Clarence F. Favret, Jr., New Orleans, for plaintiff-appellant.
    Gold, Little, Simon, Weems & Bruser, Linda Ashe and F. .A. Little, Jr., Alexandria, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and LABORDE, JJ.
   GUIDRY, Judge.

Plaintiff, Employers Mutual Liability Insurance Company of Wisconsin, brought this suit against defendant, Red Simpson, Inc., to collect for premiums which allegedly are due on policies of insurance. ' The petition was styled as a suit on open account and included a demand for attorney’s fees as provided in LSA-R.S. 9:2781. The trial court sustained the defendant’s exception of “No Right or Cause of Action” as to the claim for attorney’s fees and dismissed that portion of the plaintiff’s claim. From this judgment plaintiff has appealed. We reverse.

It should be noted at the outset that, properly speaking, there is no exception of “No Right or Cause of Action”. These are two separate and distinct exceptions which are frequently filed together because of confusion about their respective purposes.

The exception of “No Right of Action” calls into question whether the plaintiff has standing or interest under the law to bring suit. Broday v. Broaday, 360 So.2d 645 (La.App. 3rd Cir. 1978).

The exception of “No Cause of Action” is used to test the legal sufficiency of the petition. The issue on trial of an exception of no cause of action is whether the face of the petition presents a case which legally entitles the petitioner to the redress sought. Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La.1975).

It is clear that in the present case the exceptor does not question the plaintiff’s interest in the lawsuit, rather the exceptor questions whether the plaintiff is legally entitled to the redress sought, namely attorney’s fees. As such, it is the exception of “No Cause of Action” which is urged.

Appellant argues on appeal that the trial court erred in granting the defendant’s motion because, in effect, the exception was a partial no cause of action which is not provided for in our law. We agree. In Walker v. Western-Southern Life Ins. Co., 361 So.2d 892 (La.App. 2nd Cir. 1978), writ refused, the court said:

“Our Code of Civil Procedure does not provide for an exception of partial no cause of action. The effect of sustaining a peremptory exception is that the action shall be dismissed, not that part of the action be dismissed. La.C.C.P. Art. 934. . Defendant’s use of the exception of no cause of action to strike an element of claimed damages represents an improper use of the procedural vehicle and illustrates the problem of piecemeal litigation which can result from the misuse of provisions intended to streamline our civil procedure.”

According to our procedural law an exception of no cause of action should be overruled if any part of the petition can stand against the exception. International Harvester Credit Corp. v. McGill, 281 So.2d 795 (La.App. 3rd Cir. 1973) and cases cited therein.

The exception to this rule, which the defendant argues is applicable, is that when two separate and distinct causes of action are set forth in one petition, an exception may be valid and sustained as to one cause of action, but overruled as to the other. City of Natchitoches v. State, 221 So.2d 534 (La.App. 3rd Cir. 1969).

The distinction between the rule and its exception was well stated by Professor McMahon in 23 La.L.R. 378 at 385-386, and approvingly cited in International Harvester Credit Corp. v. McGill, supra:

“The distinction between the cumulation of two or more separate actions in the same suit and plural prayers for relief based on the same cause of action is procedurally important. An exception lies to dismiss one of two or more separate causes where the petition discloses no right or cause of action with respect thereto; but the exception does not lie if a single cause of action is asserted and the petition discloses a right to any of the plural relief demanded.”

It is clearly apparent that this is a situation which does not fit the rule’s exception. The plaintiff’s claim is not based on two separate causes of action. There is only one cause of action stated; the claim for proceeds due for insurance premiums with an accessory claim for attorney’s fees. This is a plural prayer for relief based on the same cause of action. This is apparent because the plaintiff could not bring a separate suit for attorney’s fees. Such a demand for statutory attorney’s fees must include a demand for recovery on the past due open account. It could not stand alone, therefore, it is accessory and part of the one cause of action.

Due to our decision we express no opinion on the merits of this issue, i. e., whether the arrangement between the parties is contractual or based on an open account.

For the above and foregoing reasons, the judgment of the trial court sustaining the defendant-appellee’s exception of “No Right or Cause of Action” is reversed and such exception is now overruled.' This matter is remanded to the trial court for further proceedings consistent with the views expressed herein. All costs of this appeal are taxed to the defendant-appellee. The assessment of costs at the trial level are to await the final determination of the cause.

REVERSED AND REMANDED.


text:
    Gene J. DAUZAT et ux., Plaintiffs-Appellees, v. AMCO UNDERWRITERS OF AUDUBON INSURANCE COMPANY, Defendant-Appellant.
    No. 7594.
    Court of Appeal of Louisiana, Third Circuit.
    May 21, 1980.

      Bolen & Erwin, Gregory S. Erwin, Alexandria, for defendant-appellant.
    Knoll & Knoll, Clark C. Roy, Marksville, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and LABORDE, JJ.
   DOMENGEAUX, Judge.

Plaintiffs, Gene Dauzat and his wife, filed suit seeking the recovery of penalties and attorney’s fees, as provided for under La. R.S. 22:658, for the alleged arbitrary and capricious failure of defendant, Amco Underwriters of Audubon Insurance Company, to timely pay the amount due plaintiffs under a fire insurance policy on the family home. Following trial, judgment was rendered in favor of plaintiffs assessing penalties of 25% on the total amount of the $16,000.00 claim, plus attorney’s fees in the amount of $750.00. Defendant perfected this appeal contending that the trial judge erred in awarding penalties and attorney’s fees under R.S. 22:658. Plaintiffs answered the appeal seeking an increase in the attorney’s fees awarded in the trial court to the sum of 33V3% of all amounts owed, as prayed for in the original petition.

The facts show that on March 2, 1979, plaintiffs’ home was totally destroyed by fire. At the time of the fire, plaintiffs’ home was covered by a policy of fire insurance issued by defendant providing coverage of $8,000.00 on the dwelling and $8,000.00 ■ on the contents. On March 5, 1979, the first business day after the fire, plaintiffs contacted their insurance agent and informed him that they wished to make a claim under their fire insurance policy for the loss of their home and contents. The investigation of plaintiffs’ claim was handled on behalf of defendant by the adjusting firm of Crawford and Company. On March 6, 1979, Craig McNeal, an adjuster employed by Crawford and Company, visited the scene of the fire to determine the amount of the loss. Mr. McNeal took several pictures. The photographs show that the residence and its contents were totally destroyed. After inspecting the site, Mr. McNeal furnished plaintiffs with forms to list the contents destroyed by the fire. On March 10, 1979, defendant received the list of contents prepared by plaintiffs. The value of the contents, after depreciation, totaled $5,841.92. The record reveals that on March 22, 1979, Mr. McNeal adjusted the value of the residence, prior to the fire, to be $10,943.87. On April 4, 1979, defendant received an amended list of contents which increased the total loss of contents to a sum in excess of the $8,000.00 insurance coverage. On April 10,1979, plaintiffs submitted a notarized proof of loss claim. However, because the form was incomplete, it was returned to plaintiffs. The completed form was returned on April 30, 1979. Plaintiffs’ attorney contacted Mr. McNeal on April 30, 1979, requesting that the insurance claim be settled. On May 8, 1979, plaintiffs’ attorney notified Mr. McNeal that suit would be instituted if plaintiffs’ claim was not paid within 10 days. On May 21, 1979, suit was filed. On May 31, 1979, defendant sent plaintiff a check for $16,000.00 the total amount of coverage under the policy.

The issues are:

1. Is defendant liable for penalties and attorney’s fees under La. R.S. 22:658? If so, on what amount are penalties to be assessed?

2. If defendant is liable, what percentage of penalties is due?

3. Attorney’s fees.

I.

LA. R.S. 22:658 provides:

“All insurers issuing any type of contract other than those specified in R.S. 22:656 and 22:657 shall pay the amount of any claim due any insured including any employee under Chapter 10 of Title 23 of the Revised Statutes of 1950 within sixty days after receipt of satisfactory proofs of loss from the insured, employee or any party in interest. Failure to make such payment within sixty days after receipt of such proofs and demand therefor, when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of 12% damages on the total amount of the loss, payable to the insured, or to any of said employees, together with all reasonable attorney’s fees for the prosecution and collection of such loss, or in the event a partial payment or tender has been made, 12% of the difference between the amount paid or tendered and the amount found to be due and all reasonable attorney’s fees for the prosecution and collection of such amount. Provided, that all losses on policies covering automobiles, trucks, motor propelled vehicles and other property against fire and theft, the amount of the penalty in each of the above cases shall be 25% and all reasonable attorney’s fees.”

In this case, defendant sent plaintiffs a check for $16,000.00, the full amount of insurance coverage, on May 31,1979. As of March 22,1979, defendant had received satisfactory proof that plaintiffs had sustained coverable losses totalling $13,841.32-$5,-841.32 in damages to contents and $8,000.00 in damages to the dwelling. Defendant failed to pay plaintiffs’ claim for this amount within 60 days of receipt of satisfactory proof of loss. However, defendant did not receive satisfactory proof of loss as to the additional $2,158.68 claimed for destroyed contents until April 4, 1979. Plaintiffs recovered full payment for the additional contents within 60 days of their submission of satisfactory proof. For these reasons we conclude that defendant’s payment to plaintiffs on May 30, 1979, was untimely, but only as to the sum of $13,-841.32.

Defendant contends that it did not act arbitrarily, capriciously, or without probable cause in delaying payment of plaintiffs’ claim because the fire was of suspicious origin and under investigation by the State Fire Marshal.

In Baghramain v. MFV Mutual Insurance Company, 315 So.2d 849 (La.App.3rd Cir. 1975), this court stated:

“To sustain the defense of arson, the insurer has the burden of proving by a preponderance of evidence that 1) the fire was of incendiary origin, and 2) plaintiff was responsible for it. Proof may be, and invariably is, by circumstantial evidence. When proof is circumstantial, the evidence must be so convincing that it will sustain no other reasonable hypothesis but that plaintiff was responsible for the fire.”

In the case at bar, the record reveals that the Fire Marshal conducted an investigation into the fire which destroyed plaintiffs’ residence. The Fire Marshal testified that he had received information, pri- or to the fire, that plaintiffs’ house was going to be destroyed. The Fire Marshal informed Mr. McNeal, the insurance adjuster, of this information during the adjuster’s investigation of the fire. However, at no time, prior to the expiration of the 60 day delay, did the insurer have sufficient information to conclude that the fire was of incendiary origin and absolutely no evidence to indicate that plaintiff was responsible for the fire. Defendant contends that it was not arbitrary in delaying payment because payment was made within 24 days of receipt of the Fire Marshal’s April 20, 1979, report indicating that the cause of the fire was unknown. However, in Artigue v. Louisiana Farm Bureau Mutual Insurance Company, 339 So.2d 880 (La.App.3rd Cir. 1976), this court stated that “. there is no law authorizing an insurer to deny a claim on the basis that the Fire Marshal has not closed his file.” Therefore, the insurer cannot defend the untimely payment on the basis that it was waiting for the final report of the Fire Marshal.

The trial court was correct in finding defendant’s untimely payment of this insurance claim to be without probable cause.

II.

Applying the penalty provision of La. R.S. 22:658, the able trial judge utilized the 25% figure. In so doing, we conclude that he erred. Our jurisprudence is consistent to the effect that 25% penalties against insurers are applicable only to fire and theft insurance on motor propelled vehicles and the like and not to fire insurance on buildings. The proper penalty where buildings are insured is 12% under the statute. G.U. Rybiski & Company v. Louisiana Coastal Underwriters of Audubon Insurance Company, 369 So.2d 1097 (La.App.1st Cir. 1979); Foster v. Western World Insurance Company, 339 So.2d 395 (La.App.1st Cir. 1976); Gagnard v. The Travelers Insurance Company, 380 So.2d 191 (La.App.3rd Cir. 1980); Witherwax v. Zurich Insurance Company, 315 So.2d 420 (La.App.3rd Cir. 1975); Welch v. New York Underwriters Insurance Company, 145 So.2d 376 (La. App.3rd Cir. 1962); Baghramain v. MFA Mutual Insurance Company, supra.

Accordingly, it will be necessary to amend the District Court judgment so as to assess 12% penalties on the amount of $13,-841.32.

III.

Plaintiffs were awarded the sum of $750.00 for attorney’s fees. They answered the appeal seeking an increase to the sum of 33Vs% of the amount owed, as prayed for in his original petition. In this regard, we find no abuse of discretion on the part of the trial judge, hence we will not disturb that award.

Accordingly, the judgment of the District Court is amended so as to order defendant to pay a penalty of 12% on the sum of $13,841.32. Otherwise, the judgment is affirmed.

Costs on appeal are assessed % to plaintiffs and lh to defendant.

AFFIRMED, AS AMENDED.


text:
    Bain D. SLACK and Joseph W. Greenwald, Plaintiffs-Second Appellant, v. James H. INGLEHART and Huey Ray Andrus, Defendants-First Appellant.
    No. 7604.
    Court of Appeal of Louisiana, Third Circuit.
    May 21, 1980.

      Camp, Carmouche, Palmer, Barsh & Hunter, A. J. Gray, III, Lake Charles, for defendants-appellants-appellees.
    McClain, Morgan & Greenwald, Joseph W. Greenwald, Lake Charles, for plaintiffs-appellees-appellants.
    Before CULPEPPER, CUTRER and DOUCET, JJ.

      . The correct spelling of this captioned name should be: “James H. Iglehart”.

   CUTRER, Judge.

Plaintiffs, Bain D. Slack and Joseph W. Greenwald, seek a reduction in the price of a commercial building purchased from defendants, James H. Iglehart and Huey Ray Andrus. Plaintiffs alleged as grounds for their demands that the roof of the building leaked, that the air conditioning and heating equipment failed to function properly and that the plumbing system failed. The trial judge awarded damages to the plaintiffs in the amount of $5,448.65. Defendants appealed seeking a reduction in the award. Plaintiffs appealed seeking an increase in the award.

The defendants were owners of a commercial office building which they had purchased in 1974. The offices were rented to several businesses. On October 11, 1977, plaintiffs and defendants entered into a buy and sell agreement. On December 12,1977, the sale of the property to the plaintiffs was consummated. The plaintiffs continued leasing the offices to various business occupants.

Plaintiffs allege that approximately one month after the purchase the roof began leaking and the sewer system began malfunctioning. Plaintiffs also allege that, at a later time, a problem developed with the air conditioning system. Demands were made by the plaintiffs for the defendants to remedy the problems. A controversy developed and the parties were unable to resolve the problems of repair or replacement arising out of the complaints. This suit followed. The trial court judgment of $5,448.65 consisted of $1,500.00 for the value of roof repairs, $3,387.00 for sewerage replacement costs, and $561.65 as reimbursement for an air conditioning unit purchased by the plaintiffs.

The issues presented by the appeals of plaintiffs and defendants are whether the trial judge erred in making the respective awards for roof repairs, sewerage replacement and cost of an air conditioning unit.

ROOF REPAIRS

Approximately one month after the purchase of the property, the plaintiffs began receiving complaints from tenants concerning leaks in the roof and sewerage malfunctions. On January 23, 1978, Greenwald wrote a letter to the defendants complaining of the roof and sewerage problems. In reply to this letter, Iglehart, on January 30, 1978, promised to repair the roof as soon as weather permitted. He also stated that he had asked co-defendant Andrus to remedy the sewerage situation as soon as possible.

Plaintiffs, however, had roof repairs made on January 25th and January 30th at a cost of $250.00. Defendants also made additional roof repairs on February 20, 1978. Following these repairs, the roof continued to leak. No other repairs were made.

Plaintiffs contend that the trial court erred in awarding $250.00 for the cost of repairs previously made by plaintiffs, plus an additional $1,250.00 for the estimated cost of further repairs. Plaintiffs contend that they are entitled to the replacement cost for the entire roof in the amount of $5,350.00.

Defendants contend that plaintiffs are not entitled to any estimated cost of further repairs. They further contend that plaintiffs are not entitled to the replacement cost of the roof because the warranty agreement of the parties contained in the buy and sell instrument excluded the replacement of the entire roof.

The agreement between the parties contained the following warranty agreement:

"Conditioned upon Purchasers obtaining suitable financing within SO days from date of acceptance, and the cooling and heating unit and system is in good condition, and the roof with all its components are in good condition and the property is zoned for commercial use. Vendor expressly warrants the coolinor and heat-ins' unit and system and the roof for a period of One (1) year from the date of final sale, in addition vendor will reimburse vendee for any water damage to the building discovered within One (1) year of the date of final sale. Vendor will make necessary repairs to damaged or broken items only. Example: Should the roof leak. Vendor will remedy same, but will not replace the entire roof.” (Emphasis ours.)

Jerome Korn, an experienced roofing contractor, testified that he had inspected the roof on two occasions. He inspected the roof in the Spring of 1978 and again in January of 1979. He testified that he would not recommend repair of the roof by patching same. He stated that he “could not guarantee” any repair work and for that reason recommended replacement of the entire roof which he estimated the cost as being $5,350.00. He also stated that he felt that the costs of repair would approach the cost of replacement. He did not give an estimate of the repair costs.

In his reasons for judgment the trial judge pointed out that the roof was 20 years old. He found that both parties had taken the roof condition into consideration when they entered into the purchase agreement. The trial judge concluded that the plaintiffs were not entitled to the cost of a new roof, but were entitled to the $250.00 previously paid for repairs plus an additional sum for repairs that were needed within the one year warranty period, for which he awarded $1,250.00.

We agree with the award of the trial judge. The agreement between the parties limited the warranty of the seller to only necessary repairs of roof occurring within one year. The parties are free to limit or diminish, by express agreement, the warranty imposed by law. See LSA-C.C. art. 2503. Based upon the testimony of the tenants as to the leaks that took place after repairs were made, the trial court concluded that the repairs needed within the one year warranty period to be $1,250.00. We find no error in this regard.

The plaintiff cites the case of Hunter v. Wilson, 355 So.2d 39 (La.App. 3rd Cir. 1978), as authority for his contention that he should get the cost of a new roof. The Hunter case is inapplicable. That case contained no express limitation of warranty as was contained herein. The law of implied warranty applied in Hunter and the plaintiff was awarded the price of a new roof.

We will affirm the trial court award herein for roof repairs.

SEWER PROBLEMS

Shortly after the purchase of the building plaintiffs received complaints of sewer failure. It was determined that this was due to the collapse beyond repair of the sewer pipes. The sewer pipes were of bituminous fiber pipes known as “Orangeburg” pipe. This pipe was installed when the building was constructed in 1957. After receiving the complaints of plaintiffs, defendants agreed to remedy the problem, but failed to do so. The sewer pipe was entirely replaced by the plaintiffs. The work was performed at plaintiffs’ request by Pistol’s Plumbing and Maintenance, Inc. This contractor also replaced water service and air conditioning drains and vents to meet the City Code requirements.

The amount charged for the plumbing work was $4,375.00. Since Donald Richard, owner of Pistol’s Plumbing and the only person able to specify the cost of the various items of work, was not available to testify, it was agreed by the parties that plaintiffs would be allowed to submit an itemized statement of the sewerage repairs without the necessity of his testimony.

By a letter dated February 20, 1979, the plaintiffs submitted Richard’s itemized statement to the trial judge. The statement reflected the cost to replace the sewer lines at $3,387.00. The cost to replace the water service was $360.00. The cost to install proper drains and vents for the air conditioning system was $628.00. In his written reasons, the trial judge awarded the $3,387.00 for the replacement of the sewer pipes.

Defendants contend that the trial judge erred in this award for several reasons.

First, defendants complain that the sewer did not contain a latent defect. They contend that since the sewer did not back up prior to or at the time of sale it was not a latent or hidden defect. This argument is without merit. It is quite clear that the sewer system failure occurred due to massive deterioration of inferior pipe which had been banned by the building code for 20 years. The Orangeburg pipe failed shortly after purchase and was clearly no longer able to serve its intended purpose. Collapsed, non-functioning sewer pipe is clearly a defect and constitutes a redhibito-ry vice. Weber v. Mathews, 367 So.2d 1326 (La.App. 4th Cir. 1979), (leaking gas and water lines were labeled redhibitory vices or defects.) From the evidence regarding the condition of the pipe, the trial court could reasonably infer that the defect leading to the collapse existed at the time of the sale. LSA-C.C. art. 2503.

Defendants further contend that the itemized statement submitted should not have been considered because, allegedly, their counsel did not have an opportunity to examine the document prior to its being filed. This contention is without merit.

Counsel for defendants agreed to the submission of the itemized statement by plaintiffs. Counsel for defendants further stated that he would have no objection to the submission of an itemized statement if it was accompanied by explanations of the various items. The statement was itemized with explanations.

Defendants further complain that the item was not officially filed in the record until August 24, 1979, the day after the written reasons were rendered. Defendants therefore take the position that the trial court erred in considering the statement.

The record reflects that the itemized statement was sent to the trial judge by letter of February 20, 1979, but was not filed in record until August 24,1979. While a trial judge may generally consider only evidence as produced and properly offered in evidence, and it may have technically been error to consider the itemized statement before it was officially filed with the clerk of court, we find that the error was harmless. Our review of the record indicates that the trial court judgment is correct, that justice has been done, and the error did not affect the merits. Naquin v. Maryland Casualty Company, 311 So.2d 48 (La.App. 3rd Cir. 1975), writ den., 313 So.2d 598 (La.1975). Had the itemization been filed first and then the decision handed down, the result would have been the same.

Plaintiffs complain that the trial judge erred in not awarding the amount required to replace the water system with proper sized pipe and at a proper distance from the sewer line. Plaintiffs also ask for the cost to install a drain and vents for the air conditioning system. Plaintiffs contend that the work done was necessary to meet the building standards set by the City of Lake Charles, therefore, they should be entitled to recover the cost of this work.

The plaintiffs failed to show that the water lines and air conditioning drains were defective and not suitable for their intended purpose. The trial court noted the system was operable. We agree that, although the system did not meet the requirements of the present city building code, it .was not unsuitable for its intended purpose.

AIR CONDITIONING

In its reasons for judgment on the air conditioning problem, the trial court stated as follows:

“After hearing testimony it is obvious to the Court that an air conditioning unit serving a tenant (Mr. Reed) failed and defendants conceded that it was their obligation to replacé it. The parties conferred on this problem and plaintiffs purchased a window unit which was installed by defendants. Plaintiffs are entitled to be reimbursed for the cost of such unit, which cost was $561.65."

The testimony of Iglehart reflects that the air conditioning problem was discussed by the parties and it was agreed that the defendants would replace the unit in Mr. Reed’s office. The trial court apparently accepted this testimony and awarded judgment for the replacement of the portion of the air conditioning system he found to be actually defective. The sum of $561.65 was so awarded. The trial judge thereby rejected the testimony pertaining to the plaintiffs’ claim for an entire, new air conditioning system. We find no error in this conclusion.

Defendants complain that the court erroneously allowed recovery for the cost of the air conditioner since it was not claimed as an item of special damages. Defendants’ counsel contends that no testimony appears in the record concerning the cost of the unit. We note that defendants’" counsel, in fact, on cross examination (Tr. 256) specifically questioned plaintiff Greenwald about the cost of the unit. The record reveals the following:

Mr. Gray: “Didn’t that cost $561.65?”
Mr. Greenwald: “That sounds about right, yeah. I don’t deny that. I don’t have the invoice. I sent my secretary for the invoice and she brings me back the maintenance contract.”
Mr. Gray: “That’s the amount you told me, though, $561.65 . . .”
Mr. Greenwald: “Yeah, that sounds right.”

The evidence was entered into the record without objection, thus enlarging the pleadings. American Steel Building Co. v. Brezner, 158 So.2d 623 (La.App. 3rd Cir. 1963).

Defendants further allege that the trial court erred in considering and allowing to be filed in evidence photostatic copies of bills of sale for two air conditioning units. It is contended that the copies were submitted after the case had been submitted for judgment, thus could not properly be considered. We agree that the evidence is not properly in the record since the court did not hold the record open to receive additional evidence on this point. However, such error was harmless as evidence was adduced by defendants’ counsel regarding the purchase price of the air conditioning unit. No prejudice then occurred to defendants’ case on the merits.

The plaintiffs ask for an additional award of $399.48 for a second air conditioning unit purchased. No evidence of this amount appears in the record except a photostatic copy which was untimely filed. It therefore cannot be considered.

For the assigned reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed one-half against the plaintiffs, Bain D. Slack and Joseph Green-wald, and one-half against defendants, James H. Iglehart, and Huey Ray Andrus.

AFFIRMED.

      . LSA-C.C. art. 2503 provides, in part, that:
      “The parties may, by particular agreement, add to the obligation of warranty, which results of right from the sale, or diminish its effect; they may even agree that the seller shall not be subject to any warranty.”


text:
    Fay Garner O. McMICKENS, Plaintiff-Appellee, v. Calvin J. McMICKENS, Defendant-Appellant.
    No. 7605.
    Court of Appeal of Louisiana, Third Circuit.
    May 21, 1980.
    Dodd, Barker, Avant, Wall & Thomas, Floyd J. Falcon, Jr., Baton Rouge, for defendant-appellant.
    Kennedy & Yeager, Ralph W. Kennedy, Alexandria, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and LABORDE, JJ.
   GUIDRY, Judge.

Defendant, Calvin J. McMickens, appeals from a judgment dated September 7, 1979 finding him in contempt for failure to pay child support and making executory $150.00 in past due child support. The judgment also awarded plaintiff, Fay Garner McMick-ens Morrill, $250.00 as attorney’s fees.

There is no evidence in the record as to service of the rule, pursuant to which the judgment was granted, on either defendant or his counsel. However, the court minutes reflect in pertinent part the following:

“Returns from the Sheriff of East Baton Rouge Parish showed the refusal of Mr. Falcon to accept service on the rule on behalf of his client . . . ”

Presumably neither counsel for defendant nor the defendant were present at the hearing on the rule which resulted in the judgment of which appellant complains. In this connection the minutes of court reflect in pertinent part the following:

“This matter set forth hearing on two rules. Mr. Floyd J. Falcon, forwarded a letter advising that his client would pass on the rule he had filed. Mr. Ralph Kennedy, counsel for plaintiff, Fay Garner O. McMickens, was present . . . ”

The letter referred to in the court minutes appears in the record as plaintiff’s exhibit 2 and reads as follows:

“Mr. Ralph W. Kennedy
Attorney at Law
P.O. Box 1369
Alexandria, Louisiana 71301
Re: Fay Garner O. McMickens
Morrill vs. Calvin J.
McMickens
Dear Mr. Kennedy:
I have instructed Mr. McMickens to make up any payment arrearages through the current time if any exist.
In connection with the rule scheduled for September 4, 1979, it appears that we have no dispute as to the facts and I would like to prepare a stipulation to be submitted to Judge McCain. Please advise if you are agreeable to this.
The stipulation would merely reflect that Trent McMickens is no longer in the physical custody of his mother and that the provisional custody has been judicially awarded to Calvin Randolph McMick-ens.
Very truly yours,
AVANT, WALL, THOMAS, RICHE & FALCON
s/ Floyd
Floyd J. Falcon, Jr.
FJFjr/nbc
cc: C. J. McMickens”

In brief to this court counsel for defendant seeks a reversal of the trial court judgment on the ground that the trial court lacked jurisdiction over the person of the defendant because he was not served with citation and in the alternative, if there was service, the service was improper under LSA-C.C.P. Article 1314.

We dismiss defendant’s appeal and do not reach or consider the merits of the issues raised by counsel for appellant in brief.

Insufficiency of citation is an objection which must be raised through the decli-natory exception and is waived if the defendant makes a general appearance. The declinatory exception must be pleaded prior to answer or judgment by default. LSA-C. C.P. Articles 925 and 928.

LSA-C.C.P. Article 2001 provides:

“The nullity of a final judgment may be demanded for vices of either form or substance, as provided in Articles 2002 through 2006.”

LSA-C.C.P. Article 2002 provides in pertinent part as follows:

“A final judgment shall be annulled if it is rendered: .
(2) Against a defendant who has not been served with process as required by law and who has not entered a general appearance . . . .”

The official comments to this article state in part:

“(d) The above article covers judgments rendered in cases where there was no citation at all, cases involving defective citation, and cases where the defendant did not effect a waiver of service and citation by making a general appearance

In light of the cited articles we conclude that appellant’s remedy, if he be aggrieved by the judgment rendered September 7,1979, is by way of a suit for nullity of judgment and not by appeal.

In Michigan Wisconsin Pipe Line Co. v. Sugarland Development Corporation, 221 So.2d 593 (La.App. 3rd Cir. 1969), writ refused 254 La. 469, 223 So.2d 872, we stated:

“. . . the alleged insufficiency of the citation or statutory notice (LSA-R.S. 19:5), not questioned by declinatory exception, cannot be questioned on appeal. LSA-C.C.P. Art. 925; Tenneco Inc. v. Earhart, La.App. 3d Cir., 220 So.2d 109 (1969); Michigan Wisconsin Pipe Line Co., La.App. 3d Cir., 217 So.2d 741.”

In Boyce Machinery Corporation v. Interstate Paving Corporation, 356 So.2d 505 (La.App. 1st Cir. 1977), the court refused to consider an appeal from a default judgment where the only issue raised concerned sufficiency of1 service of process on defendant and stated:

“Appellant ‘attacks the validity of the judgment based on the insufficiency of the service of process’. ... its remedy is by a suit to annul the default judgment and not by appeal. C.C.P. Arts. 925 and 928; Crescent Welding Supply Co. v. Harding, 197 So .2d 405 (La. App. 4th Cir. 1967) . . .”

Supportive of the conclusion which we reach is the case of Dicta Realty Associates v. Conrad, 230 So.2d 595 (La.App. 4th Cir. 1970) which holds to the effect that a motion for new trial, amounting to a declinato-ry exception of insufficiency of service of process made after granting of a default judgment, is without merit, the sole remedy being a suit to annul the judgment.

For the above and foregoing reasons we conclude that appellant’s appeal should be dismissed at his cost.

APPEAL DISMISSED.


author: SWIFT, Judge.

text:
    Beverly Sue MILLER, Plaintiff-Appellant, v. BELDEN CORPORATION, Defendant-Appellee.
    No. 7607.
    Court of Appeal of Louisiana, Third Circuit.
    May 21, 1980.

      H. James Lossin, Jonesville, for plaintiff-appellant.
    Gaharan & Wilson, Joseph Wilson and Paul Boudreaux, Jr., Jena, for defendant-appellee.
    Before FORET, SWIFT and STOKER, JJ.
   SWIFT, Judge.

Plaintiff, Beverly Sue Miller, appeals a judgment of the trial court sustaining a peremptory exception to her workmen’s compensation action. We reverse.

On February 14, 1977, while in the course and scope of her employment with defendant, Belden Corporation, plaintiff injured her back at a job site in Jena, Louisiana. The defendant was notified of the accident and paid workmen’s compensation benefits for seven weeks at the rate of 66%% of plaintiff’s wages, the first check being issued on March 8, 1977, and the last on May 4,1977. Although the Employer’s First Report of Injury reflects that she returned to work on February 16, 1977, Mrs. Miller’s work record and earnings thereafter do not appear in the record.

Suit was filed on June 27, 1979, alleging plaintiff .was totally and permanently disabled from the performance of her occupation, but that she did not know of her disability or the full extent of her injury until 1979. The defendant filed a peremptory exception of prescription and peremption on grounds that more than one year had passed from the date of the last payment of workmen’s compensation and more than two years had elapsed since the accident. The trial court sustained the exception, dismissing plaintiff’s suit.

This case primarily involves statutory interpretation. Prior to 1975 LSA-R.S. 23:1209 provided (in the absence of an agreement as to the compensation payments) for a one-year prescriptive period from the date of the accident or from the time of the last payment of benefits. However, by Act 583 of 1975 the legislature added the proviso, “that in cases of partial disability this limitation shall not take effect until three years from the time of making the last payment.” The statute also contained a peremptive period of two years from the date of the accident where the injury did not develop immediately.

It would seem that the compensation benefits were paid to plaintiff for temporary total disability. However, there does not appear to have been any agreement to this effect and it was not shown whether or not Mrs. Miller was actually earning wages when the payments were made to her. Consequently, as in Youngblood v. Belden Concrete Products, 349 So.2d 439 (La.App. 4 Cir. 1977), writ denied, 351 So.2d 177 (La. 1977), we cannot say with any certainty whether such benefits were paid for total or partial disability because the weekly amount would be the same if plaintiff was not earning wages at the time.

In Youngblood the Court of Appeal, Fourth Circuit, interpreted the three-year limitation as follows:

“[Wjhere the parties agreed that the payments were being made for total disability the one year prescriptive period applies but in the absence of such agreement the payments are presumed to be for partial disability with the resulting application of a three year prescription.”

While its decision in Wright v. Aetna Life & Cas. Co., 360 So.2d 235 (La.App. 1 Cir. 1978), seems to be in conflict, the First Circuit, in Batiste v. Hartford Ins. Co., 374 So.2d 133 (La.App. 1 Cir. 1979), recently espoused the rationale of the Youngblood case in regard to this question. However, such statement in the opinion was dictum as the court went on to say that it did not reach the issue of timeliness of the suit because the motion for a summary judgment was denied due to the existence of an issue of fact.

Just what the legislature intended the result to be under these circumstances is not clear. While we must confess some doubt on the subject, we believe it appropriate for us to follow Youngblood and conclude that the one year prescription in the statute is inapplicable. We do so because of the reasons expressed by the Fourth Circuit in the decision, the apparent approval of its rule by the Court of Appeal, First Circuit, and our duty to interpret the provisions of our workmen’s compensation statutes liberally in favor of the employee.

The defendant further contends that the plaintiff’s claim has been extinguished by the two year peremption of the statute.

LSA-R.S. 23:1209 also provides:

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

There clearly is a conflict between the two and the three years provisions of this section in “developing” injury cases. It has been suggested by authoritative treatise writers that the three years prescription should control, because it is the latest expression of legislative will and also because the jurisprudence clearly demonstrates a preference for making the longest period available to an employee in order to carry out the policy of the act. We agree and conclude that the two years peremption is not applicable in the present case.

There being no agreement between the parties that the compensation payments were made for total disability, the benefits are presumed to have been paid for partial disability and the plaintiff had three years from the last payment to bring her suit. Consequently, her claim is not barred by prescription or peremption.

For the above and foregoing reasons, the judgment of the trial court is reversed and the case is remanded for further proceedings. The costs of this appeal will be paid by the appellee. Assessment of other costs will await the outcome of the suit.

REVERSED AND REMANDED.

FORET, J., concurs in result.

      . Malone and Johnson, Worker’s Compensation Law and Practice, 2d Ed., 1980, Sec. 384, p. 252.


text:
    In re SUCCESSION of Ed KING, Probate Number 1096. Victoria King SADLER, Plaintiff-Appellant, v. Sylvester KING, Administrator, Defendant-Appellee.
    No. 7612.
    Court of Appeal of Louisiana, Third Circuit.
    May 21, 1980.

      Smith, Taliaferro, Seibert, Boothe & Pur-vis, V. Russell Purvis, Jr., Jonesville, for plaintiff-appellant.
    George F. Griffing, Jonesville, for defendant-appellee.
    Before CULPEPPER, CUTRER and DOUCET, JJ.
   CUTRER, Judge.

Victoria King Sadler filed a petition for the removal of Sylvester King as Administrator of the Succession of Ed King and an opposition to the private sale of succession immovables. After a hearing, the' trial judge dismissed the demands of plaintiff. Mrs. Sadler appealed.

Ed King died on March 11, 1979. King was survived by his wife, Pearl Cooper King, and a number of collateral relations. He was survived by no legitimate descendants. On August 6, 1979 Sylvester King, a brother of Ed King, was appointed as administrator to the succession. On August 13, 1979, the administrator filed a petition for private sale of immovables.

On August 29,1979, Mrs. Sadler filed her petition to remove the administrator and her opposition to the sale. A hearing was held September 11, 1979.

At trial it was shown that Mrs. Sadler was born on March 30, 1952. The certified copy of her birth certificate was introduced into evidence. The certificate reveals that Mrs. Sadler is the daughter of Willie Mae Hollins and the late Ed King. The trial court found also that Ed King publicly recognized Mrs. Sadler as his daughter.

The record further reveals that Ed King married Pearl Cooper King on January 4, 1941. Although Ed King and Mrs. King began living apart sometime after their marriage, the marriage was not dissolved until King died. Thus, at the time of Mrs. Sadler’s conception, birth and until the time of his death, Ed King was incapable of contracting marriage with Willie Mae Hol-lins.

At the hearing Mrs. Sadler’s counsel argued that Mrs. Sadler was the acknowledged illegitimate daughter of Ed King. It was further argued that LSA-C.C. art. 919 was unconstitutional and thus Mrs. Sadler was the sole heir of Ed King. Therefore, the administrator previously appointed was not qualified under Code of Civil Procedure art. 3097. (The record does not reflect that he is otherwise qualified as a creditor or nominee of the surviving spouse.) The trial court rejected Mrs. Sadler’s contention and dismissed her opposition.

On appeal, the single issue presented is “whether Civil Code Article 919 discriminates against persons based upon sex and birth and is therefore unconstitutional.”

LSA-C.C. art. 919 only affects those natural children who have been duly acknowledged. Before we reach the issue presented, we must determine whether Ed King, deceased, could have legally acknowledged Mrs. Sadler under the undisputed facts presented. Also, if Mrs. Sadler was unac-knowledgeable, we shall examine the effect thereof. To make these determinations, we refer to Civil Code articles 204 and 920.

LSA-C.C. art. 204 provides as follows:

“Such acknowledgment shall not be made in favor of children whose parents were incapable of contracting marriage at the time of conception; however, such acknowledgment may be made if the parents should contract a legal marriage with each other.”

LSA-C.C. art. 920 provides as follows:

“Bastards, adulterous or incestuous children shall not enjoy the right of inheriting the estates of their natural father or mother, in any of the cases above mentioned, the law allowing them nothing more than a mere alimony.”

The fact is undisputed that Ed King was married to Pearl Cooper King at the time of conception and birth of Mrs. Sadler. The record reflects that Ed King’s marriage to Pearl Cooper King continued up until his death on March 11, 1979. Under the provisions of Article 204, Mrs. Sa-dler could not be legally acknowledged by Ed King, thus she was barred from any inheritance from her father by Article 920. Since Mrs. Sadler was unacknowledgeable and does not come within the class of natural children referred to in LSA-C.C. art. 919, we do not reach the issue of the constitutionality of this article.

No attack was made on the constitutionality of Article 204 or Article 920 at the trial level, nor is the constitutionality of these articles discussed by either party in brief on appeal. It is well settled that the issue of constitutionality must be raised at the trial level before it will be considered by an appellate court. Johnson v. Welsh, 334 So.2d 395 (La.1976). Under these circumstances, we affirm the trial court judgment dismissing appellant’s demands.

For the reasons assigned, the judgment of the trial court is affirmed. Costs of this appeal are assessed to the plaintiff-appellant, Mrs. Victoria King Sadler.

AFFIRMED.

      . LSA-C.C.P. art. 3097 provides, in pertinent part, as follows:
      “No person may be appointed dative testamentary executor, provisional administrator, or administrator who is not the surviving spouse, heir, legatee, legal representative of an heir or legatee, or a creditor of the deceased, or the nominee of the surviving spouse, heir, legatee, or legal representative of an heir or legatee of the deceased.”

      . Prior to its amendment by Acts 1979, No. 607 (effective September 7, 1979), Civil Code art. 919 provided as follows:

        “Natural children are called to the inheritance of their natural father, who has duly acknowledeed them, when he has left no descendants nor ascendants, nor collateral relations, nor surviving wife, and to the exclusion only if the State.

        “In all other cases, they can only bring an action against their natural father or his heirs for alimony, the amount of which shall be determined, as is directed in the title: Of Father and Child.” (Emphasis added.)

      .Both Article 204 and Article 920 were repealed by Acts 1979, No. 607 (effective September 7, 1979).
      Since Ed King died prior to the effective date of Act 607, this Act can have no application in this case. Henry v. Jean, 238 La. 314, 115 So.2d 363 (1959).

      . LSA-C.C. art. 202 defines the word “bastards” as follows:

        “Illegitimate children . . . who have not been acknowledged . . ., or whose father and mother were incapable of contracting marriage at the time of conception . are contradistinguished by the appellation of bastards. ”

      . It is of interest to note, however, that Art. 919 was declared unconstitutional in the very recent case of Succession of Brown, 379 So.2d 1172 (La.App. 2nd Cir. 1980).


author: LABORDE, Judge.

text:
    Roger J. MATT et al., Plaintiffs-Appellees, v. James J. LAPEROUSE et al., Defendants-Appellants.
    No. 7625.
    Court of Appeal of Louisiana, Third Circuit.
    May 21, 1980.

      Leon J. Minvielle, III, New Iberia, for defendants-appellants.
    Dean M. Wattigny of Armen tor & Wat-tigny, New Iberia, for plaintiffs-appellees.
    Before DOMENGEAUX, GUIDRY and LABORDE, JJ.
   LABORDE, Judge.

This is the second visit to this court by the litigants in an action in redhibition brought by plaintiffs for reduction in the purchase price of a house sold to them by defendants. In the original suit, judgment was granted in favor of the plaintiffs. This court, Matt v. Laperouse, 371 So.2d 1284 (La.App.1979) reversed and remanded the case to the trial court. The trial court was directed to make a factual determination as to whether or not the plaintiffs had been informed of the existence of the defect (inadequate air-conditioning unit) by the defendants.

The essential facts are as follows: On October 18, 1976, defendant, James J. La-perouse, sold a house and lot in New Iberia, Louisiana to plaintiffs, Roger J. and Joan Perron Matt. The act of sale recited that it was made “with full warranty of title” and contained no warranty restrictions of any kind. At the time of the purchase, plaintiffs had been living in the house for approximately two months, beginning in August of that year. They continued to do so until some time in early 1977 and subsequently sold the home to Mr. and Mrs. Russell Romero.

As a result of complaints by the Romeros about the performance of the central air conditioning unit in the house, plaintiffs engaged Mr. Steven Morgan, accepted by the trial court as an expert in the field of residential air conditioning. Mr. Morgan found that the air conditioning system was too small to produce a satisfactory differential between the temperatures inside and outside the home, except when the outdoor summer temperatures were relatively mild. The air conditioning unit was, therefore, replaced at a cost to the Matts of $875.00.

Judgment was granted in favor of plaintiffs in the amount of $875.00 plus $200 attorneys fees and costs.

Following the remand by this court, the district court again found in favor of the plaintiffs. We quote from the court’s written reasons for judgment:

“This is a ease in redhibition. The Court previously gave judgment in favor of plaintiffs and against defendants. Judgment was awarded in an amount which was proven and which had been prayed for by plaintiffs.
In considering the matter, the Court did not consider certain testimony of the plaintiffs and defendants. This testimony was on the question of whether the defendants had declared to the plaintiffs that the air conditioning system was inadequate because of the fact that an addition had been made to the house since its original construction, LSA-C.C. Article 2522. The defendant, James J. Laper-ouse, stated that because the porch had been closed in and been made part of the interior of the house, that it had added space to be cooled. He further alleged that the original air conditioning unit would have to be supplemented by a window unit to adequately cool the house and that he had so advised the plaintiffs. The plaintiffs deny that the defendants made any such declaration to them whatsoever.
The Court did not consider these conflicting statements of plaintiffs and defendants. The Court felt that since the bill of sale conveying this property by the defendants to the plaintiffs was warranty deed without restriction, that parole evidence seeking to show limitations or a variance from the warranty deed was not admissible in evidence. The Court of Appeal reversed on the basis of Article 2522 of the Louisiana Civil Code which reads as follows:
‘The buyer cannot institute the redhibi-tory action, on account of the latent defects which the seller has declared to him before or at the time of the sale. Testimonial proof of this declaration may be received.’
The Court of Appeal held that the District Court should have considered the evidence and testimony of the parties and should have made a finding with respect to this evidence. The case was remanded for further proceedings in accordance with the Court of Appeal’s findings.
On joint motion of counsel for plaintiffs and defendants, the Court was requested to decide the matter on the basis of the evidence that was previously taken in case. The Court has done so. It is the Court’s judgment that the preponderance of the evidence is in favor of the plaintiffs, Mr. and Mrs. Roger Matt, and against the defendants, Mr. and Mrs. James J. Laperouse. A re-reading of the transcript and a consideration of all of the evidence convinces the Court. The Court finds that the defendants did not notify the plaintiffs prior to the sale that additional air conditioning would be necessary to cool the house.
Accordingly, there will be judgment in favor of plaintiffs and against the defendants as prayed for by plaintiffs.
Further there will be judgment in the amount of $200.00 as attorney’s fees for plaintiffs’ attorney and $50.00 as expert witness fees for Steve Morgan.
Costs of Court to be assessed to defendant.”

The standard of review in a factual dispute such as the one before us was explained in Canter v. Koehring, 283 So.2d 716 (La.1973):

“When there is evidence before the trier of facts which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.”

In Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), the Supreme Court defined manifestly erroneous as meaning clearly wrong.

Our review of the record does not reveal that the trial judge’s factual determination, that plaintiff had not been advised of the inadequate air conditioning system, was manifestly erroneous.

For the foregoing reasons, the judgment of the trial court is affirmed. All court costs are assessed to defendants-appellants.

AFFIRMED.


text:
    Sandra KELSO, Plaintiff-Appellant, v. HARTFORD ACCIDENT & INDEMNITY COMPANY, Defendant-Appellee.
    No. 7626.
    Court of Appeal of Louisiana, Third Circuit.
    May 21, 1980.
    Newman & Fazzio, A. J. Fazzio, Lake Charles, for plaintiff-appellant.
    Jones, Patín, Tete, Nolen & Hanchey, Bret L. Barham, Lake Charles, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and LABORDE, JJ.
   GUIDRY, Judge.

This is a workmen’s compensation suit. The trial court rendered judgment in favor of plaintiff finding her entitled to recover the maximum allowable amount of compensation benefits for a ten (10) day period; legal interest thereon from due date until paid; medical expenses in the sum of Seventy-Five ($75.00) Dollars; and, assessed all costs against defendant. The trial court denied penalties and attorney’s fees as prayed for by plaintiff. Plaintiff has taken this appeal and questions only that part of the trial court judgment which denied her penalties and attorney’s fees. Defendant has neither appealed nor answered the appeal of plaintiff.

We have carefully examined the record in this case and find that the trial court, in a well reasoned opinion, correctly disposed of all of the issues presented. Although, the only issue on appeal concerns correctness of the trial judge’s ruling on the issue of penalties and attorney’s fees, a reading of the entire opinion is necessary to a full understanding of his ruling on this issue. Accordingly, we take the liberty of quoting the trial court’s opinion in its entirety.

“Plaintiff, Sandra Kelso, seeks workmen’s compensation benefits for injuries allegedly received while working as a truck driver for Continental Oil Company. She and her husband began work March 1, 1978, for Continental as a team, driving a truck on long distance hauls. She testified that during the second trip she started experiencing slight pains in her abdomen and pelvic region. The pains became severe on the trip which ended on or about March 25, 1978. Following the conclusion of the trip, she went to a doctor. Her condition has been diagnosed as symptomatic pelvic relaxation.
The issues presented are: 1) Did plaintiff sustain an accident within the meaning of the compensation act; 2) Did plaintiff suffer an injury as a result of her alleged accident, and, if so, did the injury result in a disability; 3) What is the extent of plaintiff’s disability, if any; and 4) Is plaintiff entitled to recover penalties and attorney’s fees?
Pelvic relaxation is a condition which pre-existed her employment by Continental. This condition is one peculiar to women. Her treating physician, Dr. Michael Kudla, who specializes in obstetrics and gynecology, explained that this condition is seen in a number of women. It is a muscular condition, and exists when there is poor support of the uterus, when the supports are not firm enough to give good support, allowing the uterus to drop, causing pain. In most cases, such women are able to continue doing what they have previously been doing with perhaps some modifications in their activities. This condition can be rendered symptomatic with time as a natural occurrence. However, the condition can also be rendered symptomatic by certain activities, such as dancing, walking, running, jogging, and by being bounced about in a truck. He stated that it is within a reasonable medical probability that her condition was made symptomatic by her driving and riding in the truck while working for Continental. However, Dr. Kudla equivocated somewhat on this last opinion by stating that if she had been driving trucks for a long period of time, it could be coincidental with time that the condition became symptomatic, and that he would expect a new activity to cause the pain.
Mrs. Kelso had been driving trucks for approximately four years before her employment at Continental. She had experienced no pain whatsoever prior to her employment at Continental. There was considerable testimony concerning the nature of this particular truck to cause excessive or unusual bouncing and movement of one’s body within the truck. Considering these factors along with the medical testimony, the court feels that it is more probable than not that an accident occurred within the meaning of the compensation act.
The court further concludes that the plaintiff suffered an injury as a result of her accident, and that the injury resulted in a disability. The pain plaintiff experienced was disabling for at least some period of time. Dr. Kudla testified that upon his examination of her, he advised her not to drive trucks again for about seven days. He further testified that he would think the pain she experienced should subside within two weeks. She testified that she was off work for ten days and then went back to work driving local hauls in other trucks. She had no problems driving these trucks. However, after about one month, she attempted to make a longdistance trip with her husband in the original truck, and again began experiencing severe pain. She last worked on or about May 12, 1978, and on May 15, 1978, was advised by Dr. Kudla that she should not drive trucks which cause the pain.
.As to the extent of plaintiff’s disability, she is entitled to workmen’s compensation benefits for the ten days she was off work, commencing on or about March 25, 1978. There was no showing of disabling pain following the last date of her employment, or if one can assume that the pain was sufficient to be disabling for some period of time thereafter, there was no showing of the length of such period of, time. Counsel for plaintiff, during oral argument, acknowledged that while Mrs. Kelso may be permanently disabled, there is no causal connection between her present and future disability and the accident or injury received while working for Continental. Mrs. Kelso’s condition of pelvic relaxation is a permanent condition, but it was not caused by the accident. Furthermore, this condition was not made worse or aggravated by the accident. In other words, if Mrs. Kelso’s condition of pelvic relaxation is the cause of present disability, this disability would exist even if the accident had not occurred and she had not been caused pain while working for Continental. Finally, Mrs. Kelso has no complaints now that Dr. Kudla can relate to the pelvic condition. It is more likely that any complaints that she now has stem from a physical cause other than her pelvic condition.
The claim for penalties and attorney’s fees is denied. Defendant was confronted with a claim of a most unusual nature. The diagnosis by Dr. Kudla was reviewed by the Continental medical staff. There apparently is no medical basis for believing that pelvic relaxation is of traumatic origin or for not believing that the condition is a natural condition of many women and that pain therefrom can be of natural origin. There are no cases in which the courts have had occasion to consider the condition complained of by Mrs. Kelso from which the defendant could have obtained guidelines indicating its liability. The occurrence of an accident was questionable. After driving trucks for approximately four years, Mrs. Kelso’s complaint arose after working less than a month for Continental. No particular or unusual incident had occurred. The terminal manager drove the truck to attempt to determine if there was anything unusual about the way the truck rode, and although the court questions whether the testing was done under the same conditions as those under which Mrs. Kelso drove, his findings were negative, and were reported to the company. Under these circumstances, the court cannot say that the defendant was arbitrary and capricious in failing to pay compensation.
Judgment will be rendered in favor of the plaintiff and against the defendant for the maximum allowable amount of compensation benefits for the ten day period referred to hereinabove, with legal interest from the due date, and for medical expenses in the sum of $75.00. Costs to be paid by defendant. The expert witness fees of the doctors who testified will be fixed at $75.00 each and taxed as costs. ”

We find the trial court’s conclusion denying any award for penalties and attorney’s fees to be eminently correct. It is well settled that where there is a bona fide factual dispute as to the occurrence of an accident or that the employee’s disability was work-related the employer has probable cause to refuse to pay workman’s compensation benefits. Cole v. Sears Roebuck and Co., 337 So.2d 900 (La.App.3rd Cir. 1976); Crooks v. Belden Corporations, 334 So.2d 725 (La.App.3rd Cir. 1976); Thompson v. Natchitoches Parish Hospital Service District, 335 So.2d 81 (La.App.3rd Cir. 1976).

For the reasons assigned the judgment appealed from is affirmed at appellant’s cost.

AFFIRMED.