text:
    Howard LATIOLAIS, Plaintiff-Appellant, v. ASHY ENTERPRISES, INC., Defendant-Appellee.
    No. 82-170.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.

      Morrow & Morrow, J. Michael Morrow, Opelousas, for plaintiff-appellant.
    Guillory, McGee, Mayeux & Fontenot, A. Frank McGee, Eunice, for defendant-appel-lee.
    Before DOMENGEAUX, DOUCET and YELVERTON, JJ.
   YELVERTON, Judge.

In this workers compensation ease, Howard Latiolais seeks maximum benefits under LSA-R.S. 23:1221(2), based on the claim that his injury has put him in the odd lot category. The trial court concluded that the worker had not “made out a case under either the substantial pain or the odd lot doctrine”. From the dismissal of his suit, plaintiff appeals. We affirm.

Plaintiff was a motor vehicle mechanic in Eunice, Louisiana, for 33 years prior to his accident on April 15, 1978. For the last 26 of those years he worked for the same employer, Ashy Enterprises, Inc., the defendant, doing the same job. His job was general mechanical maintenance and repairs of his employer’s trucks.

On April 15, 1978, he fell off a bumper and suffered a spinal fracture of the lower third distal tibia and fibula (the lower bones) of the right leg. The treating physician, Dr. LaFleur of Eunice, a general surgeon, saw him the next day and hospitalized him for ten days. Due to the nature of the fracture, no open reduction or internal fixation was required. Treatment consisted of fitting with a long leg cast. At the time of the initial examination, it was discovered that plaintiff also had a peroneal nerve weakness, resulting from a compression or contusion of the motor nerve, a condition which often accompanies combined fractures of the lower leg bones. This nerve weakness manifested itself by plaintiff’s difficulty in moving his right great toe and right foot up.

A month and a half after the injury the long leg cast was replaced with a short cast which plaintiff wore for three months. Nerve testing was performed on November 17, 1978, and this showed that the damaged peroneal nerve was regenerating. Examination on April 10, 1979 revealed that the leg fractures had healed. The plaintiff still had some nerve weakness restricting his ability to dorsiflex his right foot. The plaintiff was noted to continue to have atrophic changes to the skin and muscles of the right lower leg. This condition was also improving. After this examination on April 10, 1979 Dr. LaFleur released Latio-lais to return to his previous employment with a 25% partial disability of the right foot. The doctor felt that this partial disability would not impair the plaintiffs ability to perform the work he had been doing.

Although medically released to return to work on April 10, 1979, plaintiff did not in fact return to his old job. The record does not reveal why, but the testimony was that he was neither asked to nor did he seek to return. There is some evidence he subsequently did vehicle repair work for pay for neighbors and friends. He also drew Social Security benefits. He also continued to draw maximum weekly workers compensation benefits of $139 a week from his former employer, Ashy.

On August 1, 1980 plaintiff went back to work but for a different employer, West End Radiator & Repair Shop of Eunice. A few days after plaintiff went back to work, defendant Ashy Enterprises, which was still paying the maximum rate of weekly benefits, offered to settle the workers compensation claim for $4,000, an offer which plaintiff indicated he would accept. Defendant then discontinued the payment of weekly benefits. Before the compromise could be completed, plaintiff changed his mind. Ashy then resumed the payment of weekly benefits, but at a reduced rate of $39 a week.

Plaintiff continued to work for West End Radiator & Repair Shop for eight months, quitting on April 4, 1981. At that job he was paid by the week at the rate of $107.60. Plaintiff performed much the same type of work he was doing for his employer when he was injured, that is, general repair work on vehicles. From time to time it was necessary for him to lift and carry radiators. According to his employer on this job, plaintiff did his work without noticeable difficulty. He quit unexpectedly. Plaintiff explained at trial that his reason for quitting was that his leg was bothering him and that he was tired due to his age. He felt he could no longer work full time. He was also having pain in his hip and ankle, taking aspirin frequently. He stated that he had lost considerable time at West End on account of his condition, once for two weeks straight. He felt that he could work three days a week, but his West End employer needed a man full time and was unable to accommodate him on a part time basis, so he quit entirely. His boss at West End during this eight month job, Gerald Fonten-ot, testified that he had no record and could not recall anything about plaintiff missing any significant time, but plaintiff did complain of having trouble with his leg “once in a while”.

Dr. LaFleur, the treating physician, last examined the plaintiff on January 23,1981, some two and a half years after the accident and ten months before trial. This examination took place while plaintiff was working for West End Radiator & Repair. At that time plaintiff complained that he “walked like a duck”. The doctor observed that plaintiff still had some lack of sensation over the dorsum of his foot and some difficulty with elevation of the right great toe. Latiolais indicated that he had improved ambulation and strength of his leg. The doctor observed that plaintiffs range of motion had improved, that the atrophy of the right leg had improved from three-quarters inch to one-fourth inch, and that he was ambulating well without assistance of ankle brace or support. He felt that the neurological defect in the foot would continue to improve and that the previous 25% partial disability to the foot could be reduced to 15%. Dr. LaFleur also stated that at the January 1981 examination plaintiff denied any pain and that the alternating hypersensitivity and insensitivity plaintiff was experiencing in his right forefoot indicated that the sensory nerve was returning to function. The plaintiff still had some swelling of the foot which could have caused discomfort. The doctor said that plaintiff could perform mechanic work on trucks and that he had only a ten percent partial disability of the body as a whole, and 20% total lower right extremity disability after January 23, 1981. There is nothing in Dr. LaFleur’s deposition (taken for trial purposes) or his attached letter reports that would indicate the doctor was aware, at the time of his examination on January 23, 1981, that Latiolais was then working full time for West End Radiator & Repair Shop as a mechanic.

Latiolais saw only one other doctor, and that was eight days before trial, on November 5, 1981, which was some three and a half years after the accident. This was Dr. Buller of Opelousas, another general surgeon. On this examination plaintiff stated that his right leg felt weak, but he denied any problems with swelling or severe pain. He did complain of loss of coordination. Dr. Buller observed that plaintiff walked with a widened gait and was unable to squat on the right side. There was also numbness on the dorsum of the right foot and an absent right ankle reflex. Dr. Bul-ler’s deposition was taken on November 9, 1981, just five days after the examination, for trial purposes. On direct examination it was his summation that total rehabilitation would be impossible because of plaintiff’s age. He also felt that the leg injury could cause plaintiff enough difficulty to make him unable to perform even less strenuous work than he had done prior to the accident. His reading of X rays of the leg around the fracture site and X rays of the foot revealed osteoporosis of the disuse type, meaning that this was objective evidence that the plaintiff was favoring, or not using his right leg in a normal way. It was his opinion that plaintiff would probably never return to work. Dr. Buller admitted that he was at a disadvantage in evaluating plaintiff’s condition because he had not followed plaintiff through the course of treatment.

It is apparent from a reading of Dr. Buller’s testimony that at the time of the examination on November 5, 1981, the doctor was not made aware of the fact that plaintiff had worked for approximately eight months since his injury for West End Radiator & Repair Shop in Eunice, doing basically the same type of work that he had done for his former employer, the work of a mechanic. When the doctor was cross-examined hypothetically concerning a successful return to work, the doctor stated that his opinion as to disability would be different if it was a fact that plaintiff had returned to substantially the same employment for several months.

Latiolais was 64 years old at the time of the accident. He is deaf in one ear and blind in one eye, the loss of the eye having occurred in the 1950s. The record does not reflect his education. His work experience is limited to that of a mechanic. His own testimony is conflicting as to whether he has sought employment since the accident other than at West End Radiator & Repair Shop. Once he said he had never tried to get work and on another occasion he said he had sought employment unsuccessfully. The evidence preponderates heavily against a finding of substantial pain. Plaintiff denied substantial pain to both doctors. His complaints were limited to weakness in the leg, and tiring, which he attributed in part to his age. About the only evidence of any degree of pain is the testimony of his wife who said that her husband was not a complainer, but she knew he was hurting because at home he took aspirin, sat on pillows and sometimes slept on the couch with his foot elevated.

This case went to trial with all issues stipulated except the single issue of whether plaintiff was totally and permanently disabled. Plaintiff attempted to make out a case based on the odd lot doctrine, emphasizing the factors of substantial pain and age. The trial judge concluded that plaintiff had not made out a case for classification into the odd lot category. In his written reasons for judgment, the trial court considered the credibility of the witnesses, as well as plaintiff’s post-accident work history.

Beginning with the case of Oster v. Wetzel Printing, Inc., 390 So.2d 1318 (La.1980) the Supreme Court of Louisiana has allowed workers to obtain total permanent disability awards if they can establish that they belong to the odd lot classification. A definition of an odd lot worker is one who, though capable of doing some type work periodically, is so limited in what he can do that a reasonably stable market for his work does not exist. A claimant need not be absolutely helpless to qualify for total disability status. If he can prove that his injury and resulting physical condition, together with his mental capacity, his education, training, age, substantial pain, or other factors combine to place him at a substantial disadvantage in the competitive labor market, he has made out a prima facie case for classification in the odd lot category. Dusang v. Henry C. Beck Builders, Inc., 389 So.2d 367 (La.1980); Augustine v. Courtney Construction Co., Inc., 405 So.2d 579 (La.App. 3 Cir.1981).

The determination of whether a plaintiff fits the odd lot classification is a fact question. Lemoine v. Marksville Industries, Inc., 391 So.2d 528 (La.App. 3 Cir. 1980). Factual determinations by a trial judge when based on his evaluation of credibility cannot be disturbed on review absent manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). This standard of review is applicable to workers compensation cases. Hollis v. Travelers Insurance Company, 368 So.2d 154 (La.App. 3 Cir. 1978).

After a careful review of the record, and a consideration of all of the factors apparent therein relative to a determination of whether plaintiff fits into the category of odd lot workers, we cannot say that the trial judge was clearly wrong in finding that plaintiff failed to make out a prima facie case and is therefore not permanently and totally disabled.

For the foregoing reasons, the judgment appealed from is affirmed. The costs of this appeal are assessed to appellant.

AFFIRMED.


source: Caselaw Access Project

author: DOUCET, Judge.

license: Public Domain

text:
    Clifton JACK, Plaintiff-Appellant, v. ADRIATIC INS. CO., Defendant-Appellee.
    No. 82-171.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.
    Preston N. Aucoin, Ville Platte, for plaintiff-appellant.
    A. L. Carbonette, Baton Rouge, for defendant-appellee.
    Before DOMENGEAUX, DOUCET and YELVERTON, JJ.
   DOUCET, Judge.

Appellee-defendant denied its insured coverage for a collision, relying on the contract’s “valid drivers license” exclusion. Suit followed whereupon judgment was rendered in defendant’s favor. Plaintiff appeals. We perceive no ambiguity in the clause in question and, accordingly, affirm.

Clifton Jack, plaintiff-appellant, initiated this suit against Adriatic Insurance Company, appellee, seeking benefits pursuant to the parties’ contract of collision insurance, due to damage to his truck incurred while his wife was driving in a parking lot. In addition to property damages plaintiff sought recovery of statutory penalties and attorney’s fees.

The facts surrounding the case are undisputed. The accident occurred on May 10, 1981, when plaintiff’s wife, Mary W. Jack, hit a parked, unoccupied car in a parking lot adjacent to a store in Evangeline Parish, Louisiana. It was stipulated that Mrs. Jack did not possess a Louisiana Driver’s License at the time of the accident. She was not listed as an insured under the policy in question.

The trial judge dismissed plaintiff’s suit. From that judgment plaintiff has perfected the present appeal maintaining that the policy is ambiguous and thus must be construed to afford coverage.

Adriatic attempts to escape coverage by virtue of “Exclusion (i)” which states:

“Loss to the automobile which occurs while it is being operated by any person who does not possess a valid driver’s license at the time of loss.”

Appellant claims the term “operated” in the aforementioned clause is ambiguous and questions whether such a term would extend to a stationary vehicle wherein the occupant is merely listening to the radio. We need not respond to such a hypothetical question as the evidence discloses the vehicle was being driven by Mrs. Jack. We consider “operate” to include driving and believe persons of ordinary intelligence would reach the same conclusion. As applied, “operate” is not ambiguous.

It is also said that the term “valid driver’s license” is ambiguous. The record reveals no license, valid or otherwise, in the driver’s possession or otherwise, current or expired, from Louisiana or elsewhere. None.

Although the contract appears to be one of adhesion, we find no grounds to spare plaintiff of the terms to which he has bound himself. Policies of insurance are contracts between the parties, and as such they are the law between them, unless contrary to statutory law or public policy. Fontenot v. New York Life Insurance Company, 357 So.2d 1185 (La.App.3rd Cir.1978); writ denied 359 So.2d 622 (La.1978). The exclusion complained of violates neither express law nor public policy. The requirement arguably bears some relationship to risk. We discern no ambiguity in the term “valid driver’s license”, as applied to the facts herein. Furthermore, application of the exclusion clause to the case at bar leads to no absurd results, rather the result is that “bargained” for.

For the reasons set forth hereinabove, the judgment is affirmed at appellant’s cost.

AFFIRMED.


author: DOMENGEAUX, Judge.

text:
    Camelia VIDRINE, et al., Plaintiffs-Appellants, v. HELENA CHEMICAL COMPANY, et al., Defendants, The State of Louisiana, Through the Department of Transportation and Development, Defendant-Appellee.
    No. 82-174.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.

      Pucheu, Soileau & Coreil, C. Brent Cored, Ville Platte, Raleigh Newman, Lake Charles, Tate, Tate & Tate, Paul C. Tate, Mamou, for plaintiffs-appellants.
    Ronald R. Thompson, Baton Rouge, Bolen & Erwin, James A. Bolen, Jr., Alexandria, for defendant-appellee.
    Before DOMENGEAUX, DOUCET and YELVERTON, JJ.
   DOMENGEAUX, Judge.

This is an appeal from a tort suit which resulted from a tragic and heartrending episode whereby two vehicles collided, causing the death of two brothers and critically injuring a third person. Plaintiffs in this suit are Camelia Vidrine, Interdict, through her curator, Donald Reed; Early Vidrine, Camelia’s husband; Anna Lou Bal-fa, wife of the deceased, Rodney P. Balfa; Rodney’s surviving children, Tony Pierre Balfa, Patricia Ann Balfa, and Marie Angela Balfa, (minor, through her tutor, Anna Lou Balfa); Mary Euna Balfa, wife of the deceased Will Balfa; and Will’s surviving children, Mary Jane Cormier and James Davis Balfa. The sole remaining defendant in this suit is the State of Louisiana, through the Department of Transportation and Development (State). Trial was held on November 25, 1981, after which the district judge held in favor of the defendant State dismissing plaintiffs’ claims against it. Our review of the record constrains us to affirm the judgment of the district court.

The substantial issue at trial as well as on appeal is whether the Louisiana Department of Transportation and Development was negligent, and was that negligence a proximate cause of the accident.

The trial judge in a written opinion made the following findings of fact which in pertinent part we adopt as our own:

“On or about Feb. 6, 1979, David Morgan Brewer (Brewer), an employee of Brewer-Ninestadt Lumber Company, was driving in a southerly direction on U.S. Highway 71, in Avoyelles Parish about a quarter of a mile north of Bunkie and was attempting a left turn onto the driveway of Helena Chemical Company. At the same time Will Balfa (Balfa) was driving in a northerly direction on U.S. Highway 71, in Avoyelles Parish, about a quarter of a mile north of Bunkie. Passengers in the Balfa Vehicle were Rodney P. Balfa and Camelia Vidrine. A southbound vehicle driven by Richard Williams (Williams) approached the halted Brewer vehicle, went out of control after it had descended from an overpass, and collided with the Balfa vehicle. Will Balfa and Rodney Balfa have died as a result of the accident. Camelia Vidrine was severely injured. The collision occurred on U.S. Highway 71, approximately in front of the Helena Chemical plant some 400 feet south of the south foot of the overpass located about a quarter of a mile north of Bunkie, in the northbound lane of traffic.”

At the time of the accident it was either raining or had just stopped raining.

On appeal plaintiffs contend that the trial court erred in:

(1) allowing the State’s project engineer to testify to the posted speed limits on the date of the accident, contrary to the State’s allegations stated in pre-trial discovery; and

(2) holding that plaintiffs failed to prove by a preponderance of the evidence that the State was negligent in improperly constructing, maintaining, signing, designing, supervising, and inspecting the overpass and surrounding area.

Plaintiffs aver that the overpass was improperly signed and therefore defective because the posted speed limit at the time of the accident was 55 miles per hour. Norman Ficklin, a consulting traffic engineer who was called by the plaintiffs as an expert witness, testified that the overpass should be posted at a maximum speed of 45 miles per hour in order to insure its safety. At trial the district judge allowed defendant’s project engineer to testify that the posted speed limit on this particular strip of highway was 45 miles per hour rather than 50 miles per hour as stated in defendant’s Answers to Interrogatories. Upon review of the record, we find that if the trial court did err, such error was harmless.

Prior to trial plaintiff settled with the owner of the Williams vehicle and assumed the defense of a third party action filed against them. The uncontradicted testimony of Mr. Williams is that he thought the speed limit going over the overpass was 45 miles per hour, and that he was only going 40 to 45 miles per hour just prior to hitting his brakes and losing control of his vehicle. Even assuming arguendo that the posted speed limit was 55 miles per hour, it seems obvious to us that this assumed fact would be irrelevant. Mr. Williams was only traveling 40 to 45 miles per hour, so even if the overpass and its surrounding area was improperly signed at 55 miles per hour, that fact did not proximately cause the accident, since Williams was traveling within the speed recommended by Mr. Ficklin. Williams v. Trawick, 393 So.2d 909 (La.App. 4th Cir.1981).

In his written opinion the district court judge concluded that the plaintiff failed to prove by a preponderance of the evidence that the defendant State was negligent in the construction, maintenance, signing, supervision and inspection of the overpass and surrounding area, and that said negligence was a proximate cause of the accident.

A trial court’s conclusion of fact and evaluation of credibility of witnesses must be given great weight by an appellate court and should not be disturbed in the absence of manifest error.

In Rossiter v. Aetna Casualty & Surety Company, 255 So.2d 103 (La.App. 2nd Cir. 1971), the court addressed the issue of proximate cause, which must be considered in the analysis of any tort ease, as follows:

“... To the contrary, the rule is well established in our jurisprudence that such negligence, or any negligence, is not actionable unless it constitutes a proximate cause of the injury upon which the action is based.
A proximate cause is generally defined as any cause which, in natural and continuous sequence, unbroken by any efficient, intervening cause, produces the result complained of and without which the result would not have occurred, and from which it ought to have been foreseen or reasonably anticipated by a person of ordinary prudence in the exercise of ordinary care that the injury complained of, or some similar injury, would result therefrom as a natural and probable sequence.
Thus, wrongful conduct, to constitute actionable negligence, must be a cause-in-fact of harm to another and constitute a substantial factor in bringing about that harm.
A determination of the question of proximate cause in a tort action is dependent largely upon the facts and circumstances of each individual case.... ” (Citations omitted).

In this case the record supports the trial court’s conclusions that the State was free of any negligence, design or otherwise, which proximately caused the accident. According to those who witnessed this tragic accident, it appeared that as Williams descended the south ramp of the overpass he applied his brakes and skidded into plaintiff’s lane of travel. Although Williams stated that before skidding to his left his front right tire ran off of the road onto the shoulder, the other witnesses, testified that it did not. Plaintiff’s own expert, Mr. Fick-lin, testified that in his opinion the overpass could be safely negotiated at 55 miles per hour, and according to Mr. Ficklin, if a vehicle was traveling at 45 miles per hour installation of other warning signs would probably not be necessary. The record is void of any other evidence tending to show any defect in the overpass which was a cause-in-fact of the accident. In fact, the evidence preponderates in favor of a finding that the accident resulted solely from the failure of Mr. Williams to maintain control of his vehicle as he descended the overpass.

For the above and foregoing reasons the judgment of the district court is affirmed at appellants’ costs.

AFFIRMED.

      . Before trial plaintiffs settled with Richard Williams (the driver of the other vehicle, Bol-lick Distributors, Inc., Williams’ employer), and the Employer’s Fire Insurance Company (Bol-lick’s insurer), for a total sum of $372,000.00. Additionally, several other co-defendants had been dismissed by the trial judge prior to trial.

      . This was a bifurcated trial in which only the issue of liability was decided.


author: FORET, Judge. STOKER, Judge,

text:
    Randolph H. STANFIELD, Through his Curatrix, Essia L. SMITH, Plaintiff-Appellant, v. INSURANCE COMPANY OF NORTH AMERICA, Defendant-Appellee.
    No. 82-175.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.
    Writ Denied Dec. 20, 1982.

      Antoon, Dalrymple & Beck, Robert L. Beck, Jr., Alexandria, for plaintiff-appellant.
    Provosty, Sadler & deLaunay, Albin A. Provosty, III, Alexandria, Claude W. Book-ter, Jr., Asst. U.S. Atty., Shreveport, for defendant-appellee.
    Before FORET, CUTRER and STOKER, JJ.
   FORET, Judge.

Randolph H. Stanfield, Jr. (Plaintiff) brought this workmen’s compensation action through his duly appointed curatrix, Essia L. Smith, against Insurance Company of North America, the workmen’s compensation insurer of plaintiff’s former employer, Stanfield Janitorial Service (Stanfield).

The United States of America intervened in this action seeking to recover the sum of $146,914.30, which it allegedly furnished to plaintiff as medical care through the Veterans Administration.

Trial of the main demand and intervention resulted in judgments dismissing both plaintiff’s action against defendant and the intervention. Plaintiff appeals.

FACTS

There is no dispute concerning the fact that plaintiff is totally and permanently disabled as a result of personal injuries suffered in a motorcycle-automobile collision, which occurred in Alexandria, on May 11, 1979, at approximately 12:45 P.M. At that time, plaintiff was employed in a supervisory capacity by Stanfield. It was stipulated that plaintiff was an hourly wage employee earning $4.10 per hour for a 40-hour work week, or $164.00 per week. It was also stipulated that defendant provided workmen’s compensation insurance coverage for Stanfield at this time. Plaintiff instituted this action when defendant refused to pay any workmen’s compensation benefits to him.

The sole issue at trial and on appeal is whether plaintiff’s accident arose out of or in the course of his employment.

PLAINTIFF’S BURDEN OF PROOF

Plaintiff contends that the trial court committed manifest error in finding that he had failed to prove that he had received personal injury by accident arising out of and in the course of his employment. He argues that the trial court placed a higher burden of proof on him, than by a preponderance of the evidence, regarding this issue. He further argues that he did prove, by a preponderance of the evidence, that his accident was work-related.

The plaintiff-employee in a workmen’s compensation action, in order to successfully maintain a claim for disability benefits, must prove, by a preponderance of the evidence: that he received personal injury by accident arising out of and in the course of his employment; that he is disabled; and, that his disability resulted from injuries sustained in the work-related accident. See Laughlm v. City of Crowley, 411 So.2d 708 (La.App. 3 Cir.1982), and authorities cited therein.

LSA-R.S. 23:1031 provides that compensation shall be allowed for accidental injury “arising out of and in the course of” the claimant’s employment. Under the jurisprudence interpreting this statute, it has been held that the terms “arising out of” and “in the course of” are not synonymous but, nevertheless, must be considered together. To “arise out of” the employment, the accident must be the result of some risk to which the employee is subjected in the course of his employment and to which he would not have been subjected had he not been so employed. Time, place and circumstance must determine this. An accident occurs during the course of the employment when it occurs during the time of the employment and at a place contemplated by it. See Laughlin v. City of Crowley, supra, and authorities cited therein.

We find no merit to plaintiff’s argument that the trial court placed a higher burden of proof on him than by a preponderance of the evidence. Plaintiff notes the following language found in the trial court’s written reasons for judgment:

“Since this accident occurred in the manner in which it did, several miles from the work site, it would be normally presumed that the plaintiff was not necessarily within the scope of his employment, and in such case, would have a substantial burden of proof to establish that the accident was, in fact, job related.”

However, the trial court went on to state that:

“In this particular case, the Court is strickened (sic) with the inability of the plaintiff to speak or to communicate, and would be inclined to give plaintiff any reasonable benefit of a doubt. However, the evidence submitted on behalf of the plaintiff, when viewed in the face of all of the facts and circumstances before the court, simply does not convince the court that this accident arose out of plaintiff’s employment, and that plaintiff simply did not sustain the burden of proof required in a workmen’s compensation case.”

It appears that the trial court may have erroneously placed a higher burden of proof on plaintiff, than that set out in the above mentioned jurisprudence. In any event, the record clearly supports a finding that plaintiff failed to prove his case by a preponderance of the evidence.

As to plaintiff’s contention that he proved his ease by a preponderance of the evidence, the record reveals the following regarding this issue. Randolph Stanfield, Sr., plaintiff’s father and the owner of Stanfield Janitorial Service, testified that plaintiff’s only duty was to supervise employees of the firm that were working at England Air Force Base. Plaintiff was to arrive at the base around 9:00 A.M. to check on any complaints received prior to that time regarding services provided by the firm. The contract between Stanfield and the U.S. Government provided that such complaints had to be corrected by 2:00 P.M. However, the firm was not responsible for correcting complaints that day, which were received after 9:00 A.M. After checking to see if there were any complaints, plaintiff would then spend approximately two to three hours supervising employees in the various buildings located there. He would leave and return around 5:00 P.M. to supervise those employees working the evening shift.

Stanfield, Sr. and Andrew Andries, the Contract Monitor for service contracts concerning the base, both testified that they did not see plaintiff at the base on the day the accident occurred. Stanfield, Sr. stated that he looked for plaintiff that morning prior to going to the base to sign the complaint checklist. He then returned to Alexandria to look for plaintiff again, but was unable to find him.

At the time, plaintiff was living at his mother’s house and had been furnished a truck by the firm for use in connection with the firm’s business. He had been instructed to use the truck whenever he was working. Both times that Stanfield, Sr. passed by plaintiff’s mother’s house looking for him, the truck was there, but either plaintiff’s personal automobile or his motorcycle was gone. Stanfield, Sr. heard nothing from plaintiff until he was informed of the accident around 1:00 P.M.

Donald Stanfield, plaintiff’s brother, testified that he too did not see plaintiff at the base on the day the accident occurred. However, he did see plaintiff around 12:30 P.M. or 1:00 P.M. that day, when plaintiff arrived at his house on his motorcycle. Plaintiff stayed a short while and then left. Donald stated that plaintiff told him that he was leaving to “.. . get something for the base ... ”, and that they would go to the base as soon as he returned. When plaintiff failed to return, Donald left for the base and learned on the way that his brother had been in an accident. Donald’s testimony as to what plaintiff told him before leaving his house is virtually the only evidence in the record indicating that plaintiff was engaged in his employer’s business when the accident occurred.

Roosevelt Williams was called as a witness by defendant for impeachment purposes. Donald had testified that he had not gone to his mother’s home on the day the accident occurred. However, Williams testified that he saw both Donald and plaintiff at their mother’s house around noon on that day and talked to them. He testified that while he did not see them leave, he heard their motorcycles start and then pass by his house. A short while later, an unidentified woman came to his house and told him of the accident.

It is obvious that the trial court’s finding in this case is based upon its own credibility evaluations of the witnesses presented. It is our opinion that the trial court’s finding, that plaintiff failed to prove that he received personal injury by accident arising out of and in the course of his employment, is not clearly wrong.

For the above and foregoing reasons, the judgment of the trial court is affirmed.

All costs of this appeal are assessed against plaintiff-appellant.

AFFIRMED.

STOKER, J., concurs and assigns written reasons.

STOKER, Judge,

concurring.

I concur in the majority opinion in this case. Counsel for plaintiff vigorously attacks the credibility of the witness Roosevelt Williams whose testimony would indicate that the plaintiff was at his mother’s house at noon and that the accident happened as he was leaving his mother’s house. On behalf of plaintiff it is contended with plausibility that the plaintiff was injured on his motorcycle going to his mother’s house. If in fact the plaintiff was en route to his mother’s house, it would make no difference in the result in this case.

In going to his mother’s house to get something for the base as his brother states he put it, the plaintiff was much in the position of an employee who is traveling to work and is therefore not considered to be in the course and scope of his employment while traveling. Stevens v. Justiss-Mears Oil Co., 312 So.2d 293 (La.1979) and Castille v. Sibille, 342 So.2d 279 (La.App. 3rd Cir. 1977). See Malone and Johnson, Louisiana Civil Law Treatise, Volume 13, Worker’s Compensation Law and Practice, Section 168.

The nature of plaintiff’s work was such that while he was not on the Air Base proper or definitely traveling to it or from it, his status was not clear. While he was within the Alexandria area after performing his duties at the base, he could move in and out of the course and scope of his employment. There is no suggestion that while in Alexandria he was at all times in the course and scope of his employment. Inasmuch as the plaintiff was dressed in cut-off pants and riding his motorcycle, there is a presumption that he was about his private affairs at the time he spoke to his brother, Donald. Plaintiff emphasizes that the van provided to him for travel at work was at his mother’s home along with keys and various papers relating to the England Air Force Base job. Assuming that plaintiff left his brother’s house on Detroit Street to go to his mother’s house to pick up these items, his trip there to obtain these items is analogous to a person traveling to his work.

      . As a result of injuries suffered in the accident, plaintiff has been rendered a quadraplegic and is currently in a semi-comatose state.


author: STOKER, Judge.

text:
    Danny Joe LONG, Plaintiff and Defendant-in-Rule-Appellant, v. Frank HARRIS, et ux., Defendants and Plaintiffs-in-Rule-Appellees.
    No. 82-184.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.

      Bethard & Davis, Walter E. Derroh, Jr., Coushatta, for defendant-appellant.
    Monty Doggett, Natchitoches, for plaintiffs-appellees.
    . Before FORET, CUTRER and STOKER, JJ.
   STOKER, Judge.

This is a child custody case in which custody was awarded to the maternal grandparents rather than the natural father of a three-year-old child. We reverse.

Brandy Harris is the illegitimate child of Theresa Harris and Danny Long, plaintiff-appellant. After Theresa’s death in May of 1980, Brandy continued to live with her maternal grandparents, Frank and Maudie Harris. Up until the time of litigation, it appears that although Danny paid no support for Brandy, he did visit and keep in touch with her. Apparently, neither Theresa nor her parents made demand for support from Danny.

Danny sought and obtained legal custody of Brandy on June 23, 1981, with broad visitation rights being granted to the Har-rises. After obtaining custody, Danny purchased many clothes for Brandy and secured hospitalization and burial insurance for her. He has paid her medical bills and continues to contribute to his parents’ household expenses for himself and Brandy.

The Harrises were ordered in the June judgment to transfer social security benefits received by them for Brandy to the Bank of Coushatta to set up an account to be used for her college education. The court minutes indicate that Danny was told to legitimate the child, but this provision was not included in the final judgment. In any event, he did execute an act of legitimation on September 4, 1981, a little more than two months after the judgment and three months before the present litigation.

On December 1,1981, Danny filed a Rule to Show Cause why the Harrises had not yet transferred the money to the Bank of Coushatta as directed in the June 23 judgment. The Harrises responded by bringing a Rule for Change of Child Custody, Child Support, Contempt and Attorneys’ Fees. The charge of contempt was based on a belief that Danny had not yet legitimated Brandy, a belief that was incorrect. The grounds alleged for the change of custody were:

1. Danny is absent most of the time offshore;
2. Danny had no fixed place of residence;
3. Danny neglected Brandy’s health and medical needs; and
4. Danny is morally unfit.

Apparently the charges of neglect have been abandoned as all parties admit that Brandy is as well-cared for in the Long home as in the Harris home. The charge of moral unfitness was not relied on by the judge in his reasons for judgment and is basically unsupported by the record. The most damaging testimony about Danny was that he occasionally spends the night with his fiancee at a motel and sometimes goes to a bar. The Harrises testified that they had seen Danny drunk but not in Brandy’s presence and not since he has had her in his custody. Danny’s fiancee frequently stays with his sister, Dawn, who will not allow them to stay together at her home. Danny gave this as his main reason for occasionally staying at motels.

After a hearing on December 22, 1981, the trial judge decided to return custody of Brandy to the Harrises. The basis for the decision was that Danny is unfit because he had not assumed the primary responsibility for raising his daughter and he does not have a permanent residence. The trial court took the position that those with custody of Brandy would have custody and control of the social security benefits also and did not pass on Danny’s Rule to Show Cause regarding these benefits. The failure of the trial court to rule on this matter is not assigned as error and, in the brief filed in his behalf, Danny states he “is not interested in correction of that error, so long as the social security payments ultimately inure to the benefit of his daughter.” Therefore, the issue is not before us in this appeal.

Danny has always lived with his parents, Earl and Sadie Long, and he took Brandy there with him when he obtained custody. He works offshore, 28 days on and 14 off. It is not completely clear from the court’s reasons for judgment, but it appears that this work schedule highly influenced the decision. During the day when Danny is working, Brandy stays with Dawn Man-shack, Danny’s sister, because the Longs both work. Dawn’s home is within walking distance of the Longs’ home. The Harrises work also, but there was no evidence as to who kept Brandy during the day while they had custody. All parties agree that the Harrises, the Longs, and Dawn have homes more than adequate for Brandy’s needs. Therefore, the sole issue before us is whether Danny is a fit father, as this was the trial court’s basis for granting custody to the Harrises.

The determinative rule governing custody disputes between parents and non-parents is set out in Wood v. Beard, 290 So.2d 675 (La.1974). This case recognizes the paramount right of a parent to have custody of his child unless he is unfit, incapable of providing a home, or has forfeited parental rights. There are numerous cases applying the rule of Wood each with a different fact situation. In the majority of cases the conflict is resolved in favor of the parent.

As pointed out by the court in Wood v. Beard, supra, the burden of proving a parent unfit is very heavy. It is our opinion that the trial court misapplied the standard set out in Wood in finding that Danny had been proved unfit.

One of the factors heavily relied on by the trial court is that Danny has not established a separate residence. Parents are not required to establish a separate residence for the child. They need only show that they are capable of providing a home. This court in Tolar v. Cunningham, 368 So.2d 1188 (La.App. 3rd Cir.1979), writ denied, 369 So.2d 710 (La.1979), found a mother was capable of providing a home for her child even though she required the assistance of her parents. Her parents were willing to provide that assistance. This seems to be Danny’s position at the present time.

Another factor considered by the trial court is that Danny intended to marry Brandy’s mother but did not, and now intends to marry someone else but “hasn’t got around to it.” Danny had no legal obligation to marry Brandy’s mother or anyone else, and his failure to do so should not be used to brand him unfit. Deville v. LaGrange, 379 So.2d 37 (La.App. 3rd Cir.1980), affirmed 388 So.2d 696 (La.1980).

The major remaining factor against Danny is that he is away for long periods at work. While this may not be an ideal situation for a child, Danny should not be punished for having a job with inconvenient work times nor is this sufficient to find him unfit. He is using his income from that job to provide Brandy with all her needs and has demonstrated that she is well-taken care of in his absence.

For the foregoing reasons the December 28, 1981, judgment of the trial court is reversed.

IT IS NOW ORDERED, ADJUDGED AND DECREED that the judgment of the trial court rendered June 2, 1981, and signed June 28, 1981, which granted the care, custody and control of Brandy Wy-nette to Danny Joe Long, be and it is hereby reinstated.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Frank Harris and Maude Harris shall have and enjoy the same visitation privileges which were granted to them in the judgment rendered June 2, 1981, and signed June 23, 1981.

The costs of this appeal are to be paid by defendants and plaintiffs-in-rule-appellees, Frank and Maude Harris.

REVERSED AND RENDERED.


author: FORET, Judge.

text:
    Kenneth A. GREMILLION and Laura Moreau Gremillion, Plaintiffs-Appellants, v. TOWN OF COTTONPORT, Defendant-Appellee.
    No. 82-186.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.
    William J. Bennett, Marksville, for plaintiffs-appellants.
    David E. Chatelain, Moreauville, for defendant-appellee.
    Before FORET, CUTRER and STOKER, JJ.
   FORET, Judge.

Kenneth Gremillion and his wife, Laura Gremillion, (plaintiffs) appeal from a judgment of the trial court sustaining a peremptory exception of res judicata filed by defendant, the Town of Cottonport. We reverse.

The sole issue is whether the trial court committed manifest error in sustaining defendant’s peremptory exception of res judi-cata.

FACTS

Plaintiffs, on December 16, 1981, filed a “PETITION FOR DAMAGES” alleging that they were the victims of illegal discrimination by defendant, i.e., defendant had refused to allow them to tap into its sewerage system, while allowing other persons in similar situations to do so. In essence, plaintiffs requested defendant to extend sewerage service to property owned by them, which is located outside of defendant’s corporate limits. Defendant refused to do so. However, plaintiffs alleged that an investigation showed that certain individuals, who also owned property located outside of defendant’s corporate limits, have been allowed by defendant to tap into its sewerage system. Plaintiffs alleged that this constituted illegal discrimination by defendant against them, entitling them to recover damages caused by said discrimination.

Defendant filed peremptory exceptions of no cause of action and res judicata. The trial court referred the exception of no cause of action to trial on the merits and, after hearing, sustained the exception of res judicata and dismissed plaintiffs’ suit with prejudice. No further mention was made of the exception of no cause of action. Because of the views expressed below, we need not, at this point, concern ourselves with the exception of no cause of action.

PEREMPTORY EXCEPTION OF RES JUDICATA

The basis for this exception was an earlier action brought by plaintiffs against defendant in which plaintiffs had sought to recover damages from defendant alleging that defendant had placed a sewer line across property owned by them without their permission. Plaintiffs also sought in-junctive relief in the form of a permanent injunction prohibiting defendant from maintaining the sewer line in its present location. That action was terminated when the trial court maintained a peremptory exception of prescription filed by defendant. Apparently, no appeal was taken from that judgment and it is now final.

In response to plaintiffs’ present action against it, defendant filed an exception of res judicata alleging that the issues herein had already been litigated in plaintiffs’ earlier action against it. The trial court agreed and sustained the exception.

Welch v. Crown Zellerbach Corp., 359 So.2d 154 (La.1978), held, on page 156, that:

“As a result of our civilian heritage, res judicata under Louisiana law is perceived to be much narrower in scope than its counterpart in common law jurisdictions. See 51 Tul.L.Rev. 611 (1977); Maloney, Preclusion Devices in Louisiana; Collateral Estoppel, 35 La.L.Rev. 158 (1974). Louisiana legislative authority for res ju-dicata establishes a presumption of correctness and precludes relitigation of the object of the judgment only when there is (1) an identity of the parties, (2) an identity of “cause” and (3) an identity of the thing demanded. C.C. 2285-2287, 3556(31); Mitchell v. Bertolla, 340 So.2d 287 (La.1976); Sliman v. McBee, 311 So.2d 248 (La.1975); Scurlock Oil Co. v. Getty Oil Co., 294 So.2d 810 (La.1974). The absence of any of these identities is fatal to a plea of res judicata.”

Plaintiffs admit that there exists an identity of the parties and an identity of the thing demanded in their two actions brought against defendant. However, they argue that there is no identity of “cause” in these two actions and defendant’s exception of res judicata should have been overruled on this basis.

The essential elements of the exception of res judicata are established by LSA-C.C. Article 2286, which provides:

“Art. 2286. Res judicata, essential elements
Art. 2286. The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality.”
(emphasis ours.)

With respect to the requirement of LSA-C.C. Article 2286 that “the demand must be founded on the same cause of- action”, Mitchell v. Bertolla, 340 So.2d 287 (La.1976), held, on pages 291 and 292 that:

“It is generally accepted that “cause of action” is a mistranslation. Procedure, XXIX La.L.Rev. 269, 282, footnote 65; Sliman v. McBee, supra, footnotes 11 and 12. Although the difference is often noted, it has not before now been necessary to decide whether the phrase “cause of .action” means the same as at common law. As previously noted, plaintiff’s earlier suits to set aside the option and the present suit to set it aside, although brought on different “grounds,” constitute the same cause of action.
The cause is said to be the juridical or material fact which is the basis of the right claimed, or the defense pleaded. 2 Plañid, Traite Elementaire De Droit Civil, 34 (11 ed. 1939). Stated otherwise:
“... Cause is the principle upon which a specific demand is grounded while cause of action embraces the cause and the demand, and is related to the party making the demand. ... ” Maloney, Preclusion Devices in Louisiana: Collateral Estoppel, supra, at 165, footnote 41.
Cause in Louisiana may be likened to the “grounds” described by Freeman:
“... There is an obvious distinction between grounds of action and cause of action; a single cause of action may be based upon several grounds, in which event, whether actually litigated or not, they are all merged in the judgment which bars a new action on the same cause of action on a different ground....” Freeman, Law of Judgments, § 681, 1437-38.
Plaintiff’s earlier suit sought to nullify the contract for nonpayment of rent and for lesion beyond moiety. Those were the juridical facts upon which she based her claim, and with which she defended the suit for specific performance. Each was a “cause” of the earlier suit. The cause of the instant suit is fraud, lack of consideration, and others.
We hold that the words “cause of action” in C.C. 2286 are to be interpreted to mean “cause,” and we will look to civilian doctrine, if need be, to explain the meaning of “cause.” ”
(emphasis ours.)

Mitchell went on to hold that the exception of res judicata filed therein should have been overruled as there was no identity of “cause” in the different actions brought by the plaintiff thereto.

The “cause” of plaintiffs’ first action against defendant was their right to use their property free from interference by defendant, who had laid a sewerage line across it. The “cause” of plaintiffs’ present action against defendant is defendant’s alleged illegal discrimination against them. We find no identity of “cause” in these two actions.

It is our opinion that the trial court committed manifest error in sustaining defendant’s peremptory exception of res judicata.

DECREE

For the above and foregoing reasons, the judgment of the trial court sustaining defendant’s peremptory exception of res judi-cata is reversed. That exception is overruled and the case is remanded to the trial court for further proceedings in accordance with law.

All costs of this appeal are assessed against defendant-appellee. The assessment of costs in the trial court are to await a final determination of this matter.

REVERSED AND REMANDED.


text:
    George T. TWEEDEL, et ux., Plaintiffs-Appellees, v. Elrick BRASSEAUX, et al., Defendants-Appellants.
    No. 82-187.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.
    Sandoz, Sandoz & Schiff, Lawrence B. Sandoz, Jr., Opelousas, for defendants-appellants.
    Malcolm Brasseaux, Church Point, for plaintiffs-appellees.
    Stephen D. Baker, Lafayette, for interve-nors-appellees.
    Before FORET, CUTRER and STOKER, JJ.
   STOKER, Judge.

This is an action by plaintiffs to rescind several acts of donation inter vivos on the ground that they intended to give the property by last will and testament rather than by donation. The trial court ruled in favor of the plaintiffs and rescinded the donations. Defendants have appealed.

Petitioners’ initial petition was grounded on the allegation that they were deceived and misled into believing that the various acts of donation presented to them were wills and did not represent their true intentions. By an amending petition the plaintiffs alleged that the acts were not valid as donations inasmuch as they were not in proper and legal form to effect donations. The trial court found for the plaintiffs on both points. We do not reach the question of validity of form as we agree that the parties intended to execute a will or wills rather than make donations inter vivos.

The property involved is immovable property in Louisiana lying partly in St. Landry Parish and partly in Acadia Parish. This necessitated two sets of instruments. The property is described -in footnote one below.

The plaintiffs are George T. Tweedel and his wife Lillian Fontenot Tweedel. One of the defendants, Hester Tweedel Brasseaux, is the niece of Mr. Tweedel. The other defendants are the husband of Hester, El-rick Brasseaux, and their children, Charles, Charlene and Larry Dale.

Mr. Tweedel advised his niece that he and his wife desired to leave the property to her at their death. The Tweedels lived in China, Texas, and the Brasseauxs lived in Louisiana. Apparently, Mr. Tweedel left it up to Mrs. Brasseaux to engage an attorney to prepare the legal instruments for the contemplated wills. She engaged an Opelousas law firm consisting of Mr. A. Veazey Pavy and Mr. Albert J. Boudreaux. At the time of trial, Mr. Pavy was deceased but Mr. Boudreaux testified. The Tweedels were not represented by counsel of their own during the confection and execution of the documents.

Instead of preparing a last will and testament for each of the plaintiffs Mr. Bou-dreaux prepared acts of donations inter vi-vos to be executed in Louisiana by the defendants and in Texas by the plaintiffs. Besides Mrs. Hester Tweedel Brasseaux, her husband and three children were listed as donees. Three separate donations were prepared, each to convey a one-third undivided interest in the property. Double sets were prepared to facilitate recording in the two parishes in which the land was located. On the face of the documents one set, conveying a one-third interest, was signed by defendants in Louisiana in St. Landry Parish on December 30,1977, and by the plaintiffs on the same day in Jefferson County, Texas. These two instruments were recorded in St. Landry and Acadia Parishes on the same date.

A second set of donations, conveying an additional one-third interest in the property, purport to have been signed by the plaintiffs in Texas on January 2, 1978, and by the defendants in Louisiana on January 3, 1978. The recordations were made on January 3 and 4, 1978. The remaining one-third interest purports to have been conveyed in an act of donation signed by the plaintiffs in Texas on January 6, 1979, and by the plaintiffs in Louisiana on January 8, 1979. The recordations were made on January 8 and 9, 1979.

The explanation given at trial by the defendants for conveying one-third interests in the property in three separate years was the assumption that gift or inheritance taxes could be avoided in this manner. It is not at all clear who suggested this procedure. Mr. Boudreaux’s testimony does not provide an answer to this question. See especially Mr. Boudreaux’s testimony at Tr. 215 and 216-218. It is also not certain that either Mr. Pavy or Mr. Boudreaux ever explained to the Tweedels the legal effect of the documents prepared, particularly that the donations, if accepted, effected an immediate transfer of the interests contrary to the effect of a bequest in a will or donation mortis causa. The donations contain language purporting to constitute a donation by the defendants back to plaintiffs of a “lifetime usufruct” of the fractional interest affected by each donation. Mr. Boudreaux testified that he thought his partner, Mr. Pavy, called Mr. Tweedel by phone. It is clear that Mr. Boudreaux is not certain of this fact. Tr. 202 and 203. In any event, Mr. Boudreaux does not know what was said by either Pavy or Tweedel in the event a conversation was held. Mr. Tweedel denies he was advised of the nature and effect of the documents brought to him by his niece.

Appellants contended that Mr. Tweedel should be deemed to have read and understood the documents. They note that Mr. Tweedel admitted that he had approximately one million dollars on deposit in various banks. Appellants suggest that Mr. Twee-del could not have amassed such a fortune without possessing exceptional business acumen and judgment. Mr. Tweedel may possess these abilities, but mere possession of wealth does not necessarily prove it. Moreover, Mr. Tweedel was elderly at the time and his eyesight was quite poor. In any event, without expert legal advice, we doubt that a reasonably competent business person could have appreciated the legal effect of the documents in question. The fact that the donation purports to have been effected in three phases (over three years) would not have necessarily alerted the Tweedels to the fact that their intentions were not being carried out. Likewise, it did not in fact impress the Brasseauxs for they thought they received no present interest. All the Brasseauxs thought was accomplished was that the gifts were irrevocable and the three phase approach saved gift or inheritance taxes.

Mrs. Brasseaux candidly admits that her uncle, Mr. Tweedel, instructed her to prepare wills. Furthermore, Mrs. Brasseaux was of the clear impression that the instruments did constitute wills. In addition it was her understanding that title to the property would not pass to her and her family until the death of Mr. and Mrs. Tweedel. In fact, when La Belle Petroleum, Inc. sought a mineral lease from defendants, they first refused to grant a mineral lease on the property under the belief that they did not yet own it because the Tweedels were still alive. Later they were persuaded to grant a mineral lease to La Belle Petroleum, Inc. At some time after the final donation the Tweedels attempted to sell some of the land in question and were advised that they no longer had clear title to the property.

The testimony of the other defendants is somewhat different from that of Mrs. Bras-seaux. While they maintain that donations rather than wills were intended, it is clear that they did not know the difference between the two kinds of legal acts. ■ The only distinction they could make was that a donation could not be revoked but that a will could be revoked. Each believed they would have no right or interest in the property as long as the Tweedels were alive.

The Texas witnesses to the documents and notary testified but their testimony was not particularly persuasive on the issue of intention. Considering all the testimony and evidence, we conclude that the trial court was not clearly wrong in its conclusion that neither plaintiffs nor defendants intended to make donations inter vivos. Therefore, even if the donations were in proper form and validly executed, it is our opinion that the transactions should be rescinded under Articles 1881 and 1882 of the Louisiana Civil Code. These articles provide:

“Art. 1881. Engagements made through error, violence, fraud or menace, are not absolutely null, but are voidable by the parties, who have contracted under the influence of such error, fraud, violence or menace, or by the representatives of such parties.”
“Art. 1882. They may be avoided either by exception to suits brought on such contracts, or by an action brought for that purpose.”

Plaintiffs have convincingly shown that they signed the contract through error and there is ample evidence upon which the trial court could conclude that the defendants acted in error. It appears to us that the error was mutual insofar as the principal object of the contract was concerned. We base our opinion entirely on error and not on fraud or intent to deceive. Article 1881 mentions error as one of the causes for rescission of a contract. Moreover, under Articles 1841 through 1845 of the Louisiana Civil Code the acts of donations may be deemed void to begin with.

For the foregoing reasons the judgment in favor of plaintiffs against defendants is affirmed. The costs of this appeal are assessed to defendants-appellants.

AFFIRMED.

      . The property involved in this case is described as follows:
      “A certain tract of land with all buildings and improvements thereon, situated in part in the Parish of St. Landry and in part in the Parish of Acadia and lying on the east side of Bayou Plaquemine containing one hundred twenty-six (126) acres, more or less, and bounded, now or formerly, as follows: North by land of Placide and Gustave Thibodeaux; South by Anaclet and Theogene Richard; East by Theodule Richard and West by Bayou Plaquemine.”


author: CUTRER, Judge.

text:
    Norice MAGNON, et ux., Plaintiffs-Appellees, v. Francis LORMAND, et al., Defendants-Appellants.
    No. 82-190.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.

      Miller, Miller & Craton, Michael B. Miller, Crowley, for defendants-appellants.
    Edwards, Stefanski & Barousse, Steven Stefanski, Crowley, for plaintiffs-appellees.
    Before FORET, CUTRER and STOKER, JJ.
   CUTRER, Judge.

This appeal arises as a result of a judgment of the City Court of Crowley, which granted a preliminary injunction enjoining the defendants and their minor children from disturbing plaintiffs’ privacy by cursing them, littering and damaging their property.

Plaintiffs, Norice and Helen Magnon, lived in Kings’ Addition Subdivision of Crowley, Louisiana, where they had resided for ten years. The defendants, Francis Lormand and Joyce Trahan, also lived in the immediate neighborhood. Lormand had three minor children ranging from fifteen to seventeen years old. Mrs. Trahan had one minor child, age fifteen.

Plaintiffs filed suit against Francis Lor-mand and Joyce Trahan alleging that for an extended period of time the minor children had committed various acts of harassment and trespass against plaintiffs. Plaintiffs sought damages in the amount of $3,000.00 and a preliminary injunction to enjoin the defendants from allowing their children to engage in the harassment and trespass activities. Defendants reconvened for damages.

After a hearing on the preliminary injunction, the city court rendered judgment enjoining defendants and their minor children “[fjrom destroying, littering or in any way interfering with the full enjoyment by the plaintiffs of their property; and from having any contact with the plaintiffs whatsoever.” The judgment made no requirement for the furnishing of a bond to secure the issuance of the preliminary injunction. Defendants appeal. We remand.

The substantial issues on appeal are: (1) Whether the evidence supports the trial court’s granting of a preliminary injunction; and (2) if the injunctive relief was properly granted, whether a security bond should have been required by the trial court.

GRANTING OF PRELIMINARY INJUNCTION

As to the first issue, plaintiffs testified that they were acquainted with these minor children and that, for an extended period of time, these children had thrown litter into their yard, destroyed some plants in their yard, cursed plaintiffs, discharged fireworks onto plaintiffs’ property and other acts which interfered with the full enjoyment of their property. The plaintiffs, due to these problems, called the police on several occasions in order to alleviate the problem.

Defendants each testified that they had not seen these activities.

The trial judge felt that the evidence justified the granting of the injunc-tive relief. We cannot say that he was clearly wrong in doing so.

NECESSITY OF SECURITY BOND

LSA-C.C.P. art. 3610, in regard to the issuance of a preliminary injunction or temporary restraining order, provides:

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

The meaning of the statutory provision is clear. Unless security is expressly dispensed with by law, no valid preliminary injunction shall issue without security being furnished in an amount to be fixed by the court. The purpose of the security, as the article explicitly states, is to indemnify any person who is wrongfully restrained or enjoined for any losses or damages incurred.

Our perusal of the jurisprudence confirms the dictates of art. .3610. We have found no statutory or jurisprudential exceptions which have exempted this type of injunction from the security requirements. The requirements of art. 3610 apply in this suit to enjoin defendants’ children from harassing and interfering with plaintiffs’ privacy and enjoyment of their property as it has in suits to enjoin labor disputes, Payne & Keller, Etc. v. Am. Fed., Etc., 393 So.2d 141 (La.App. 4th Cir.1980); tenants enjoining the landlord from interfering with its rights of occupancy under a lease, Lenfants Caterers v. Firemen’s Charitable, 386 So.2d 1053 (La.App. 4th Cir.1980); and suits to prohibit the transfer and encumbering of corporate stock, Montelepre, Inc. v. Pfister, 355 So.2d 654 (La.App. 4th Cir.1978).

While we agree with the trial court’s granting of the preliminary injunction, we shall remand to allow plaintiffs an opportunity to meet the requirement of a security bond and for trial on the merits.

For the reasons assigned, we remand this suit to the trial court for trial on the merits and with directions that security be furnished by the plaintiffs within the delay and in an amount to be determined by the trial court. Plaintiffs-appellees are to pay costs of this appeal.

REMANDED.


text:
    WALTER LAFARGUE REAL ESTATE, INC., Plaintiff and Appellee, v. Francis J. RAINES, Defendant and Appellant.
    No. 82-191.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.

      Bolen & Erwin, Charles Munsterman and Gregory S. Erwin, Alexandria, for defendant-appellant.
    Ford & Nugent, William Ford, Alexandria, for plaintiff-appellee.
    Before DOMENGEAUX, DOUCET and YELVERTON, JJ.
   DOUCET, Judge.

This is a suit on a construction contract wherein the issue presented is the quality of the contractor’s work.

On October 30, 1981, Walter Lafargue Real Estate, Inc., Plaintiff, entered into a written agreement with Francis J. Raines, Defendant, to construct a four on 12 pitch hip roof on top of the existing flat roof at the Raines residence. The contract provided that all work was “to be completed in a workmanlike manner according to standard practices,” and that payment was due in full, the sum of Four Thousand Three Hundred Three and 00/100 ($4,303.00), upon completion of the job. Construction followed. When Plaintiff considered the work completed, request for payment was made. Defendant resisted, insisting that the work had not been completed in a workmanlike manner.

Thereafter Plaintiff brought suit seeking the contract price, interest and attorney’s fees. Defendant reconvened, claiming the defects entitled him to a credit of Five Thousand Three Hundred Seventy-nine and 00/100 ($5,379.00) Dollars.

After trial on the merits, the trial court rendered judgment in favor of the Plaintiff and against the Defendant in the amount of the contract price, less ten (10%) per cent (representing the cost of needed repairs), plus interest at eighteen (18%) per cent from February 18,1981 until paid, together with twenty-five (25%) per cent attorney’s fees on interest and principal. Costs of the trial court proceedings were divided as follows: Ninety (90%) per cent to be paid by Defendant and ten (10%) per cent to be paid by Plaintiff. The reconventional demand of Defendant, Plaintiff-in-reconvention was dismissed. From that judgment Francis J. Raines appeals. Plaintiff-Appellee has answered the appeal seeking an increase in the judgment to the full contract price, plus interest and attorney’s fees, with all costs cast against the Defendant.

The sole issue on appeal is whether the trial court erred in finding that Walter Lafargue Real Estate, Inc., substantially performed the construction work contracted for.

It is implied in every building contract that the work of the builder will be performed in a good workmanlike manner, free from any defect either in material or workmanship. LSA-C.C. Article 2769; Neel v. O’Quinn, 313 So.2d 286 (La.App. 3rd Cir., 1975), writ denied 319 So.2d 440 (La.1975). Nevertheless, when a contractor has substantially performed a building contract, even though certain defects are present, he is entitled to recover the contract price and the owner is relegated to having the price reduced by the amount necessary to perfect or complete the work properly. LSA-C.C. Article 2769; Airco Refrigeration Service, Inc. v. Fink, 242 La. 73, 134 So.2d 880 (1961); Neel v. O’Quinn, supra. Thus the aforementioned article constitutes an exception to the general rule applicable to commutative contracts that no payment is due in the absence of total performance; the building contract may be enforced although the work has been substantially but not entirely performed. Whether or not there has been substantial performance, such as would allow enforcement of the contract, is a question of fact. For reasons to follow, we find that the Plaintiff’s breach did not excuse Defendant from performing.

Among the factors to be considered in determining whether substantial performance exists are the utility to the owner of the work performed, the extent of the defect or non-performance, the degree to which the purpose of the contract is defeated, and the ease of correction. The purpose of the roof was, obviously, to shelter the dwelling from the weather and to enhance the home’s appearance. The evidence indicates the defects are primarily cosmetic, although some pose the potential for leakage.

The first witness at the trial was Walter Lafargue, President and sole shareholder of Plaintiff corporation, who was accepted by the trial court as an expert witness in building construction and roofing. He testified that the roof was completed substantially in a good workmanship manner in accordance with accepted business practice.

Called as expert witnesses by Defendant were Mr. Roger Piper, a contractor; and Mr. Jerry Neal, an architect. Mr. Piper, who is primarily engaged in remodeling, admitted he had no Louisiana Contractor’s License and lacked experience in roofing. Nevertheless he provided Defendant with an estimate for repairing the defects, the cost of which exceeded the contract price and involved removing the roof installed by Plaintiff and replacing it. However there is no evidence in the record that the defects were such that replacement would be required.

Mr. Neal testified that the installation of the shingles on the roof were done quite poorly with the exposed lap of the shingles varying both in row per row and from surface to surface. Other complaints included a loose metal flashing around the edge of the roof, a torn roof shingle which should have been cut, cracked ridge shingles and a roof vent which was not placed in a sealant or mastic bed. Furthermore, Neal noted that the new roof structure lacked adequate anchoring to the existing residence. His examination of the structure revealed only “one sixteen penny nail toe-nailed through each of the new roof trusses connecting it to the 2X4 member placed edge down on the existing flat roof.” In his opinion, the new roof structure, if not attached to the house well enough, could be displaced by a strong wind and he found no evidence that would suggest that it was attached properly. However, Mr. Neal was not aware of any specific building standards in this regard and stated that the roof “may well be attached in some manner.”

Also testifying at trial was Mr. Vernon Rabalais who was the foreman of Walter Lafargue Real Estate, Inc., in charge of the Raines’ roofing job. Mr. Rabalais testified that the new roof and trusses supporting it were properly anchored to the existing structure; nevertheless, additional anchoring, if desired, would require minimal effort. He further testified that the ridge vent was installed according to manufacturer’s recommendations. Mr. Rabalais did, however, admit that the flashing was nailed through and that some ridges were crooked and some shingles were cracked. In his opinion, these defects were not discernable from the ground, did not impair the roof’s functionability, and could be readily repaired at nominal cost.

Mr. Elmore M. Norman, a building and remodeling contractor, also testified on behalf of Plaintiff, Defendant-in-reconvention. Mrs. Raines had called upon Mr. Norman to inspect the job after completion. Mr. Norman found that the job was completed in a substantial and workmanlike manner and needed only minor repairs, aesthetic in nature, which could easily be done.

Mr. Peter C. Meyers, Jr., was accepted by the trial court as an expert in the building construction industry. Mr. Meyers, who inspected the Raines’ roof, also testified that the job was substantially completed in a workmanlike manner, compatible with the quality of the existing structure, with some minor exceptions.

Our review of the record convinces us that the trial judge’s factual finding of substantial performance is without manifest error. The foregoing facts indicate that the trial court considered the more credible witnesses to be the ones who categorized the defects as cosmetic. Similarly, we find the trial judge’s reduction of the purchase price, by an amount reasonably necessary to correct said defects, to be within his “much discretion.” LSA-C.C. Article 1934. The same can be said of the allocation of court costs. LSA-C.C. Article 1920. The photographs introduced into evidence speak for themselves; the slovenly workmanship detracts from the appearance of the house. Hence, Appellee’s answer praying for an increase in the award is denied.

Accordingly, the judgment appealed is affirmed at Appellant's cost.

AFFIRMED.

      .Raines’ reconventional demand specified the following defects:
      1. The installation of the new shingles on both the existing mansard portion of the roof and the new “hip” portion of the roof, was done in a totally unworkmanlike manner.
      2. The exposed lap of the shingles varied both in row per row on any surface of the roofs surface, and considerably from surface to surface.
      3. There are spaces in shingle rows in which shingles are installed in two layers creating wider edge lines in the surrounding shingles for no discernable reason.
      4. The “hip” or comer ridge portions of the mansard section of the roof have numerous cracked cap shingles.
      5. The “hip” ridges are not straight, nor are the individual cap shingles well cut or trimmed.
      6. The top ridge of the new “hip” roof has cap shingles only on the two extreme ends, and the shingles in this particular portion appear to have been torn, rather than cut, and some shingles have been also through nailed with nails covered with sealant.
      7. The ridge vent was not installed in a sealant or mastic bed which is considered good practice.

        8. The flashing at the junction of the “hip” roof and mansard roof was found to be through nailed at the bottom, which, petitioner is informed, is a very unsatisfactory condition since it destroys the waterproof integrity of the flashing.
      9. The nails of the condition mentioned above can be pulled out by hand, and upon doing so the row of shingles immediately below the flashing, will slide out of place since only the nails through the flashing are holding the shingles in place.
      10. The nails in the exposed portion of the flashing extend only into the row of shingles below, and not into any wood decking, thus providing no holding power.
      11.There is a total lack of adequate anchoring of the new pre-fabricated roof trusses to the existing residence. In fact, there is only one sixteen penny nail toe-nailed through each end of the new roof trusses connecting it to 2 X 4 members placed edge down on the existing flat roof. The said 2X4 member has no visible attachment to the existing residence, and petitioner-in-reconvention has been informed by an architect that the lack of proper attachment of the new roof to the existing residence makes it very likely that in the event of a strong wind storm the new roof would be blown off of the residence.


text:
    John O. STEVENS, Plaintiff-Appellee, v. MATLACK, INC., Defendant-Appellant.
    No. 82-193.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.
    Camp, Carmouche, Palmer, Barsh & Hunter, Randall Fuerst, Lake Charles, for defendant-appellant.
    Gray, Clemons & Spruel, Alcide J. Gray, Lake Charles, for plaintiff-appellee.
    Before FORET, CUTRER and STOKER, JJ.
   FORET, Judge.

John 0. Stevens (plaintiff) brought this workmen’s compensation action against Matlack, Inc., his employer.

The trial court rendered judgment finding plaintiff to be permanently partially disabled, awarding him weekly benefits, for 450 weeks, medical expenses, statutory penalties, and attorney’s fees of $1,000.

Defendant appeals from the trial court’s judgment and raises the following issues:

(1) Was there an unexpected or unforeseen “accident” which happened suddenly and arose out of and in the course of plaintiff’s employment; and
(2) Was defendant’s failure to pay plaintiff compensation benefits arbitrary, capricious and without probable cause?

FACTS

There is no dispute concerning the fact that plaintiff is disabled as a result of a heart attack suffered on March 26, 1981. On that date, plaintiff was employed by defendant as a truck driver and was on call. He was summoned to report to work and did so around noon. He checked out a tractor-trailer truck at defendant’s Lake Charles terminal and was sent to Sulphur to pick up a load of water to haul to a construction site. Plaintiff arrived at the Sul-phur Water Company around 2:00 P.M. and waited a short time, while another truck was being loaded. He then pulled his truck up to the loading dock, and he and another worker prepared it for loading. Plaintiff climbed on top of the trailer to watch as it was being filled so that he could signal the other worker to shut the water off when necessary. While on top of the trailer, plaintiff began to suffer chest pains and climbed down to get a drink of water. The chest pains grew worse and he requested to be taken to a hospital. He was taken to the West Calcasieu-Cameron Hospital and admitted.

Plaintiff was examined by Dr. Luther McEachern, a cardiologist, who diagnosed plaintiff’s malady as an acute inferior myocardial infarction (a moderately-severe heart attack). Plaintiff spent nine days in the hospital, being discharged on April 3, 1981. He was again hospitalized at St. Patrick’s Hospital in Lake Charles on May 19, 1981, where he underwent certain surgical procedures to determine the extent of damage done to the heart muscle and the condition of the blood vessels supplying that organ. He was discharged after two days and has required no further hospitalization. Plaintiff is currently being maintained on medication and his condition is being monitored regularly. He has worked at certain jobs for short periods of time since his heart attack.

Plaintiff instituted this action after defendant refused to pay him any compensation benefits. Defendant maintains the position that plaintiff has not suffered a com-pensable injury.

PLAINTIFF’S DISABILITY AND CAUSATION

LSA-R.S. 23:1031 provides, in pertinent part, that:

“§ 1031. Employees’ right of action; joint employers, extent of liability
If an employee not otherwise eliminated from the benefits of this Chapter, receives personal injury by accident arising out of and in the course of his employment, his employer shall pay compensation in the amounts, on the conditions, and to the person or persons hereinafter designated.”

Defendant contends that the trial court committed manifest error in finding that plaintiff had suffered personal injury by accident arising out of and in the course of his employment.

Under the jurisprudence interpreting LSA-R.S. 23:1031, it has been held that the terms “arising out of” and “in the course of” are not synonymous but, nevertheless, must be considered together. To “arise out of” the employment, the accident must be the result of some risk to which the employee is subjected in the course of his employment and to which he would not have been subjected had he not been so employed. Time, place and circumstance must determine this.

It is defendant’s position that plaintiff has failed to prove that his heart attack resulted from some risk to which he was subjected in the course of his employment by the nature of his employment. It points to the evidence showing that plaintiff has been diagnosed as suffering from arterio-sclerotic coronary artery disease and hypertension. It further points to the existence of certain risk factors associated with plaintiff’s state of health prior to the heart attack, i.e., heavy smoking, obesity, and a high cholesterol level. Defendant argues that plaintiff’s heart attack resulted from his pre-existing heart disease and the associated risk factors, rather than any risk associated with his employment.

The issue of causation where a worker suffering from a pre-existing heart disease experiences a heart attack on the job has been a particularly troublesome one for the courts. However, in Guidry v. Sline Industrial Painters, Inc., 418 So.2d 626 (La.1982), the Louisiana Supreme Court had occasion to confront this issue in a case with facts and circumstances similar to those sub judi-ce . Decedent in Guidry suffered an acute myocardial infarction secondary to arterio-sclerotic heart disease minutes after pausing for a smoke break while at work. Gui-dry, after noting that myocardial infractions have been found to satisfy the statutory requirements of bodily injury by accident, stated that:

“The more difficult question is whether the heart attack must be the consequence of some increased job-associated risk; in that sense, whether it can be said to arise out of the employment.”

Guidry undertook an exhaustive review of the prior jurisprudence related to this issue, and then held that:

“This burden of plaintiff’s is to show by a preponderance of the evidence that the work effort, stress or strain in reasonable probability contributed in some degree to the heart attack. Anything less and it can hardly be said that the accident arose out of the employment or that the employment in any measure contributed to the accident.”
“If the physical exertion, stress, or strain on the job, and preceding the infarction, is no more than the worker would likely have experienced in a non-work situation, the attack may be the result of the natural progression of the pre-existing disease rather than the result of the employment activity.”

Guidry then set forth the following rules:

“For the heart accident to arise out of or be connected with the employment, the exertion stress or strain, acting upon the pre-existing disease, must be of a degree greater than that generated in everyday non-employment life (e.g., as compared to the more or less sedentary life of the average non-worker).”
“In other words if the activities in which the worker with a pre-existing heart disease is engaged, whether for his job usual and customary or not, entail exertion, stress or strain greater than would be involved in everyday non-employment life and he experiences a heart accident, he has made a prima facie showing that the accident arose out of or was connected with, the employment.”
“However, simply being at work on the job is not enough, since at the time of and for an appreciable period before the accident such worker (i.e., with a pre-existing heart disease) may not have been engaged in his usual stressful activities, or his usual work may have been of a sedentary nature, or may have involved no physical stress or exertion beyond that generated in everyday non-employment life. In either of these latter cases, it is difficult to say that the accident arose out of the worker’s employment rather than that the accident arose out of or was prompted simply by the pre-existing heart disease.”

In the present action, plaintiff was a 35-year-old male suffering from a pre-exist-ing heart disease. He had driven a tractor-trailer truck from Lake Charles to Sulphur, prepared it for loading, and then climbed on top of the trailer. Shortly thereafter, he suffered a heart attack. We find that these activities involve stress, exertion, and strain greater than that generated in everyday non-employment life, and greater than that generated in the more or less sedentary life of the average non-worker.

Dr. McEachern testified that persons with plaintiff’s condition must be able to pace themselves in order to reduce the risk of heart attacks. The evidence showed that, prior to suffering his heart attack, plaintiff’s employment with defendant often required him to work long and irregular hours. After suffering his heart attack, Dr. McEachern advised plaintiff to terminate his employment with defendant because he was unable to control the hours he would work. Thus, there is some medical evidence in the record establishing causation between plaintiff’s employment and his heart attack, and of course, his subsequent disability. See Hammond v. Fidelity & Casualty Company of New York, supra.

It is our opinion that plaintiff has proved, by a preponderance of the evidence, that his heart attack (the accident) arose out of his employment with defendant.

Defendant also argues that plaintiff failed to prove that he suffered the heart attack in the course of his employment. It points to conflicting evidence showing that plaintiff may have suffered some chest pains and shortness of breath (both of which can be symptoms of an impending heart attack) before the date on which he suffered the heart attack, and on the morning of that date before reporting to work.

An accident occurs during the course of employment when it occurs during the time of employment and at a place contemplated by it. The uncontradicted evidence clearly shows that plaintiff experienced chest pains while loading defendant’s truck, and that these pains became quite severe once he climbed down from the trailer. Dr. McEachern’s medical reports note that plaintiff was admitted to the hospital with

“... chief complaint of sudden onset of severe precardial substernal chest tightness and pain radiating to the left shoulder and down the left arm.”

The report further states that,

“The pain did not respond to Nitrates and required Morphine for improvement although it was not fully relieved.”

Plaintiff was then hospitalized for some nine days, where it was confirmed that he had suffered a heart attack. There is clearly no merit to any argument that plaintiff’s heart attack occurred at any other time than while he was loading defendant’s truck.

The trial court correctly found that plaintiff had suffered bodily injury by accident arising out of and in the course of his employment with defendant.

PENALTIES AND ATTORNEY’S FEES

Defendant contends that the trial court committed manifest error in finding that its refusal to pay plaintiff disability benefits and medical expenses was arbitrary, capricious, and without probable cause, entitling plaintiff to an award for penalties and attorney’s fees. We agree.

The evidence presented in this ease shows the existence of very close legal and factual questions as to whether the work-related stress was extraordinary or any greater than that of everyday life, and whether this stress contributed to plaintiff’s heart attack. These serious questions could only be resolved by trial. Defendant’s failure to pay benefits within sixty days under these circumstances was not arbitrary, capricious, or without probable cause. See Guidry v. Sline Industrial Painters, Inc., supra; McDonald v. International Paper Company, 406 So.2d 582 (La.1981); Hammond v. Fidelity & Casualty Co. of New York, supra.

DECREE

For the above and foregoing reasons, the judgment of the trial court awarding plaintiff disability benefits and medical expenses is affirmed. That portion of the trial court’s judgment awarding plaintiff penalties and attorney’s fees is reversed.

Costs of this appeal are assessed against plaintiff and defendant, equally.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

      . See Laughlin v. City of Crowley, 411 So.2d 708 (La.App. 3 Cir.1982), and authorities cited therein.

      . Ibid.

      . For the latest expression of the Louisiana Supreme Court on this issue of causation, when the injured worker is suffering from a pre-existing disease, see Hammond v. Fidelity & Casualty Co. of New York, 419 So.2d 829 (La.1982). Hammond involved a worker suffering from a pre-existing cancer, which disease may have been made manifest by injuries suffered by the worker in a work-related accident. Hammond noted that a distinction must be made between the “medical” meaning of cause and the “legal” meaning of cause. “Medical” cause refers to the etiology or origin of a particular disease, while “legal” cause refers to whether the particular incident in question contributed to the plaintiff’s disability by making manifest, symptoms previously unnoticed. “Causation is not necessarily and exclusively a medical conclusion. It is usually the ultimate fact to be found by the court, based on all the credible evidence.” See Haughton v. Fireman’s Fund American Insurance Companies, 355 So.2d 927 (La.1978).

      . See Laughlin v. City of Crowley, supra, and authorities cited therein.


text:
    Don E. ST. ROMAIN, Plaintiff-Appellant, v. ADMINISTRATOR, OFFICE OF EMPLOYMENT SECURITY, DEPARTMENT OF LABOR and Town of Iowa, Defendants-Appellees.
    No. 82-198.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.

      Gray, Clemons & Spruel, James Spruel, Jr., Lake Charles, for plaintiff-appellant.
    Willie D. Maynor, Baton Rouge, for defendants-appellees.
    Before FORET, CUTRER and STOKER, JJ.
   FORET, Judge.

Don E. St. Romain (plaintiff) brought this action seeking judicial review of the denial of unemployment compensation benefits to him. Named defendants are: The Town of Iowa, plaintiff’s former employer; and the Administrator of the Office of Employment Security, Department of Labor of the State of Louisiana.

The trial court, after reviewing the evidence, concluded that the finding by the Louisiana Board of Review for the Office of Employment Security (the Board) that plaintiff left his job without good cause connected to his work was not supported by the evidence and that the action should be remanded for the taking of additional evidence.

Plaintiff appeals and raises the following issue:

Whether the trial court abused its discretion by
(1) not reversing the ruling of the Board and
(2) by remanding this matter for the taking of additional evidence.

Neither the Town of Iowa nor the Office of Employment Security appealed or answered plaintiff’s appeal. We affirm.

FACTS

Plaintiff quit his job as Assistant Maintenance Supervisor for the Town of Iowa in July of 1980. He applied for unemployment compensation during the latter part of that month. Plaintiff was found unqualified to receive such benefits by the Office of Employment Security, Louisiana Department of Labor (the agency). Plaintiff then sought review of the agency’s determination before an appeals referee of the Appeals Tribunal for the Office of Employment Security. A hearing was held before the appeals referee, who affirmed the agency’s determination. Plaintiff then appealed the decision of the appeals referee to the Board, which reviewed the records in the case and decided that plaintiff’s appeal should be denied. Plaintiff sought judicial review in the trial court.

TRIAL COURT’S ACTION AND PLAINTIFF’S CLAIM

Plaintiff contends that the trial court abused its discretion in this matter in two instances. First, by refusing to reverse the ruling of the Board which upheld the decisions of the agency and the appeals referee, and, second, by remanding this matter to the Board for the taking of additional evidence.

The evidence shows that plaintiff was disqualified for benefits under the provisions of LSA-R.S. 23:1601(1), which provides, in pertinent part:

“§ 1601. Disqualification for benefits
An individual shall be disqualified for benefits:
(1) If the administrator finds that he has left his employment from a base period or subsequent employer without good cause connected with his employment.

LSA-R.S. 23:1634 provides, in pertinent part, the following regarding the scope of judicial review in matters such as this:

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

The record shows that the trial court found that:

“The only testimony considered appears to be that of the claimant personally. That testimony alone is uncontradicted; however, it lends itself to varying interpretations. The finding by the board that claimant left job without good cause connected to the work is not supported by the evidence and therefore should be remanded for the taking of additional evidence.”

Lee v. Brown, 148 So.2d 321 (La.App. 3 Cir.1962), held as follows regarding the discretionary power given the trial court to remand a case to the Board under the provisions of LSA-R.S. 23:1634:

“In the light of these legal principles and in the context of the statutory enactment, therefore, we agree with the Administrator’s contention that the employee is entitled to unemployment compensation when the employer does not prove the alleged disqualification with sufficient evidence at the hearing, just as in criminal proceedings the accused is entitled to an acquittal when insufficient evidence of guilt is produced at his trial. We further agree that in neither instance is a remand the appropriate or the statutorily-contemplated disposition of the insufficiently proven charge.
We are thus in accord with the Administrator’s contentions urged in his brief that it is “inconsistent with the entire Employment Security Act to arbitrarily hold that a case may be remanded without placing some restrictions on this right to remand”, and that “a remand should be permitted only in those instances where the parties have made a reasonable effort to carry their burdens, but, in spite of this reasonable effort, the court feels that it is not possible to make a determination which would do justice to all parties based on the evidence contained in the record.1 A remand should not be permitted where the parties have not made this reasonable effort to carry the burden imposed by law.”
Although we are in accord with the Administrator’s contentions that the court’s power to remand is subject to such restrictions, we nevertheless do not find in the present instance any abuse of the court’s otherwise discretionary power to remand.”

Our review of the record indicates that there probably was sufficient evidence to support the findings of the Board as to the facts, i.e., that plaintiff voluntarily left his employment with defendant, the Town of Iowa, to accept another job with better pay, better working conditions, etc. However, neither of these defendants appealed from the trial court’s judgment, nor did they answer plaintiff’s appeal. Thus, it would be improper for this Court to reverse the trial court’s judgment and render judgment in favor of defendants.

A judgment cannot be changed in favor of an appellee who has neither appealed, nor answered his adversary’s appeal. LSA-C.C.P. Article 2133; Arrow Construction Co., Inc. v. American Employers Insurance Co., 273 So.2d 582 (La.App. 1 Cir.1973); Boswell v. Roy O. Martin Lumber Company, Inc., 363 So.2d 506 (La.1978); Williams v. City of Baton Rouge, 214 So.2d 138 (La.1968).

For the above and foregoing reasons, the judgment of the trial court is affirmed.

All costs of this appeal are assessed against plaintiff-appellant.

AFFIRMED.