author: WILLIAMS, Judge.

text:
    MINTZ & MINTZ REALTY COMPANY, INC. v. Marlin W. STURM v. WAGUESPACK, PRATT, INC.
    No. 12744.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 8, 1982.
    Rehearings Denied Oct. 6, 1982.

      Max Zelden, Zelden & Zelden, New Orleans, for plaintiff-defendant in reconvention-appellee.
    Santo A. Dileo, New Orleans, for defendant-plaintiff in reconvention-appellant.
    Steven K. Faulkner, Jr., Morphy, Faulkner, Simpson, & Dimaria, Metairie, for third-party defendant-appellee.
    Before GARRISON, CIACCIO and WILLIAMS, JJ.
   WILLIAMS, Judge.

This is an appeal from a decision by the district court awarding the plaintiff Mintz & Mintz Realty Co. $5,720.00 in an action in quanti minoris. The defendant also recovered $343.20 from Waguespack-Pratt as a partial return of a real estate commission.

On October 15, 1979, Marlin W. Sturm sold a house located at 1933-35 Milan Street, New Orleans, Louisiana, to the plaintiff. The house had been listed with Waguespack-Pratt, Inc. for $112,000.00. The agent handling the house for Wagues-pack-Pratt was Dorian Bennett. On August 3,1979, the defendant and the plaintiff entered into a purchase agreement for the property. The purchase price of the house was to be $100,000.00. The purchase agreement stated that the property was to be sold in an “as is” condition. The act of sale passed on October 15, 1979, did not contain any reference to the “as is” provision in the purchase agreement.

Shortly after the act of sale, the plaintiff sent a carpenter to the house to fix a window frame. The carpenter alerted the plaintiff to the possibility of problems with the foundation of the house. The plaintiff then sent Herman Abry, an expert in the area of foundations, who inspected the house and the foundation. Abry informed the plaintiff that a new foundation was necessary, as well as replacement of the sills and leveling of the house. The plaintiff had this work done and then sued the defendant for a reduction in the purchase price based upon the charges it had incurred in replacing the foundation and the sills and in leveling the house. The defendant filed a reconventional demand against the plaintiff and a third-party demand against Waguespack-Pratt and its agent Dorian Bennett. The trial court awarded a dimunition in the purchase price for the costs of the new foundation and the sills, but refused to award damages for leveling the house because it was not necessary for the replacement of the piers. The court dismissed the defendant’s demands against the plaintiff and Dorian Bennett and awarded the defendant $343.20 from Wag-uespack-Pratt, Inc. representing 6% (the commission percentage) of the amount that the purchase price of the house was reduced.

SILLS

The plaintiff received $1,920.00 for the replacement of the defective sill. The sill is that portion of the house which rests upon the piers and upon which the remainder of the structure sits. The defendant stated that he was aware that the front right portion of the sill had deteriorated and that he had informed Dorian Bennett, real estate agent for Waguespack-Pratt, of the condition of the sill. Mr. Bennett testified that he had been told about the deteriorated sill by Sturm and that he [Bennett] in turn had informed Mr. William Mintz, president of Mintz & Mintz Realty Co., about the sill. Mintz denied any knowledge of the deteriorated sill.

Dorian Bennett was an agent for Wag-uespack-Pratt. He had been referred to the plaintiff by its attorney. Bennett had worked with the plaintiff prior to the negotiations for the sale of the defendant’s house. The defendant previously had listed his house with another realty company, but had been unable to sell the property. Bennett had known Sturm personally and persuaded the defendant to list the house with him. He testified that he was thinking of the possibility of selling the house to the plaintiff when he spoke with the defendant about listing the house. Bennett’s actions were always motivated by his service for the plaintiff. His representation of the defendant as his listing agent simply was a device through which he could further the plaintiff’s interests.

Sturm testified that he told Bennett about the rotted sill. Bennett testified unequivocally that he had been informed of the sill. According to the record, therefore, the only disagreement is between the plaintiff and Bennett.

A real estate broker or salesman (agent) is not considered to be an agent within the purview of the mandate provisions contained in Article 2985 et seq. of the Louisiana Civil Code. E.g. Leggio v. Realty Mart, Inc., 303 So.2d 920 (La.App. 1st Cir. 1974). Knowledge of the defective sill, therefore, cannot be imputed to the plaintiff simply because its real estate agent was aware of the problem. Because there was some evidence at trial that the plaintiff had not been informed of the condition of the sill (the testimony of Willie Mintz to that effect), then the determination by the court below that the plaintiff was unaware of this defect was not manifestly erroneous.

Although Bennett was not an “agent” of the plaintiff or the defendant under the mandate provisions, he, nevertheless, owed a duty to disclose any material defects of which he was aware to the buyer. In Guidry v. Barras, 368 So.2d 1129 (La.App.3d Cir. 1979), the court held that a real estate agent has a duty to relay accurate information about the property he is selling. Although the court based its decision on La.R.S. 37:1447 (repealed in 1978), that was omitted from the 1978 revision of the Louisiana Real Estate License Law, it is clear that the duty still exists. See La.R.S. 37:1455 A(32) (A real estate license may be revoked or suspended for licensee’s “[f]ai-lure to disclose to a buyer, a known material defect regarding the condition of the real estate of which a broker or salesman has knowledge.”) Cf. Kearney v. Maloney, 296 So.2d 865 (La.App. 4th Cir. 1974) (on rehearing). The trial court’s decision that the plaintiff was unaware of the defect and Bennett’s testimony make it clear that Bennett failed to disclose a material defect in abrogation of his duty to so do. The defendant, therefore should be allowed to recover that amount paid to the plaintiff for repair of the sill from Bennett and Wagues-pack-Pratt.

Although the defendant was aware that only a portion of the sill had deteriorated, he told Bennett that it would cost $1,000.00 to have the sill repaired. Anyone purchasing the house having knowledge that a portion of the sill was deteriorated to such an extent reasonably should have anticipated that the entire sill was damaged. Bennett and Waguespack-Pratt, therefore, are liable for the sill replacement.

FOUNDATION

When the plaintiff purchased the Milan Street house, there were several apparent defects in the structure of the property: (1) the front steps had pulled away from the house; (2) there were visible cracks in the stucco on the exterior of the house; and (3) the floors in the interior of the house were uneven. The piers located on one side of the house showed some damage as they were cracked and had pulled away from the house. There were a number of bushes surrounding that side of the house, and because of this growth representatives of the plaintiff did not look at the piers. Testimony indicated that there were no trees in that area.

Evidence adduced at trial showed that in the area where the house was located some sinking of houses due to settling of the ground does not necessarily mean that there has been any damage to the foundations. When, however, as in the instant case, there are a number of obvious problems present that are indicative, although not conclusive, of foundation damage, reasonably prudent buyers should be aware that such a problem may very well exist. The plaintiff called Herman Abry as an expert witness in the field of foundations. The following exchange occurred between counsel for the defendant and Abry:

“Q: Assuming you have cracks in the stucco, that you have these dips in the floors that you observed upon walking into the house and the fact that there is separation of these steps from the house, would that not indicate to the lay person that there is a problem with the house?” “A: I would think that a person looking at that house could possibly see enough symptoms that they would have a problem.”

Tr. at 110-11.

We find that the plaintiff should have been aware that a structural foundation problem existed prior to the act of sale. While one of the “symptoms” may not have been sufficient to apprise the plaintiff of the existence of a problem, the defects considered in their entirety should have been a warning.

Also, the condition of the piers served as an additional signal that there was a problem with the foundation. The bushes surrounding the house were apparently dense, but not impenetrable. A prudent purchaser surely would have attempted to look at the exposed portion of the foundation and would have done so regardless of the foliage.

Our holding is not inapposite to those cases that hold that a purchaser is not required to climb on a roof to inspect it prior to sale. See, e.g. Russell v. Bartlett, 139 So.2d 770, 726 (La.App. 4th Cir. 1961). The inspection of a roof, as noted in Russell, supra, is a somewhat hazardous procedure. Parting foliage, albeit dense foliage, in order to inspect a house’s foundation is not, under normal circumstances, a dangerous undertaking. A representative of the plaintiff should have inspected the piers, and knowledge of the results of the inspection should be imputed to the plaintiff.

The plaintiff could have discovered that there was a problem with the foundation of the house by simple inspection and its failure to do so precludes the plaintiff from recovering in quanti minoris. La.C.C. art. 2521; see generally Magee Motors, Inc. v. Guerdon Ind., Inc., 328 So.2d 761 (La.App. 1st Cir. 1976).

Based upon the evidence contained in the record, including the testimony of Herman Abry and the photographs of the property, we find that the conclusion reached by the trial court, that the defect in the foundation was latent, is manifestly erroneous.

REAL ESTATE COMMISSION

The trial court awarded the defendant $343.20, to be paid by Waguespack-Pratt. This amount represented 6% of the reduction in the purchase price.

Because we have determined that the purchase price should not have been reduced for the cost of the new foundation and that the defendant will be entitled to receive the cost of sill replacement from Dorian Bennett and Waguespack-Pratt, this award of $343.20 should be reversed.

IT IS ORDERED, ADJUDGED AND DECREED that the judgment of the trial court awarding the plaintiff $1,920.00 for the replacement of the defective sill is AFFIRMED. The $3,800.00 awarded to the plaintiff for the defective foundation is REVERSED. The judgment awarding the defendant $343.20 is REVERSED.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment in favor of Marlin Sturm on his third party demand against Dorian Bennett and Waguespack-Pratt in the amount of $1,920.00.

AFFIRMED AND AMENDED IN PART REVERSED IN PART.

      . Furthermore, we note that Bennett testified that Mr. Mintz was upset when he learned that the sill was defective.

      . We note that Mintz & Mintz Realty Co. was operated by William and David Mintz (father and son) who had purchased from fifteen to twenty properties previously, and apparently had some expertise in the area of real estate investment.


source: Caselaw Access Project

author: CHEHARDY, Judge.

license: Public Domain

text:
    Albert G. SWEENEY v. STATE FARM MUTUAL INSURANCE COMPANY and Verdie L. Stelljes.
    No. 5-82.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 30, 1982.

      Jerry J. Blouin, and Bruno & Bruno, Frank S. Bruno, New Orleans, for plaintiff-appellant.
    Sessions, Fishman, Rosenson, Boisfon-taine & Nathan, Jack M. Alltmont and James Ryan, III, New Orleans, for defendants-appellees.
    Before CHEHARDY, KLIEBERT and CURRAULT, JJ.
   CHEHARDY, Judge.

In this appeal by the plaintiff, Albert G. Sweeney, from a judgment in his favor awarding him damages, the only issue is quantum. Finding no clear abuse of discretion, we affirm.

Sweeney sued Verdie L. Stelljes and her insurer, State Farm Mutual Automobile Insurance Company, for injuries resulting from a collision between his motorcycle and Stelljes’ automobile on January 8,1979. He suffered a displaced comminuted fracture of the left clavicle, requiring surgical repair through open reduction and internal fixation by means of wire, a pin, and a bone graft from his hip. He was hospitalized for ten days, followed by a two-month recuperation period.

After trial on the merits, a jury awarded Sweeney $12,500. Upon plaintiff’s motion for new trial or in the alternative for addi-tur, the trial judge granted additur with acquiescence of the defendants, increasing the award to $17,500. Dissatisfied with the amount of the increase, plaintiff appealed.

Sweeney contends this amount is grossly inadequate and that it barely covers his special damages, much less compensates him for his pain and suffering. The verdict would indeed be far too low if the jury found plaintiff’s special damages to be what he claimed. We believe, however, the jury must have discounted several items of plaintiff’s claimed damages, and lowered his award accordingly. Since the judge increased the award by only $5,000, he must have had similar doubts.

Because the verdict was not itemized, we can only guess how much of it was for plaintiff’s special damages and how much for his pain and suffering. Plaintiff itemizes his special damages as follows:

Medical Expenses:
Hospitalization - Hotel Dieu $ 2,361.75
East Jefferson Emergency Room Treatment 159.55
East Jefferson Emergency Medical Services (Ambulance) 68.00
New Orleans Radiology Group 25.00
Medical Bill -■ Dr. Gessner 1,410.00
Prescription Bilis 126.00
Lost Wages:
Wages lost from date of accident, January 8, 1979 through March 14, 1979 (360 hours @ $7.75 per hour) 2,790.00
Wages lost from April 9,1979 to July 1,1979 (480 hours @ $7.75 per hour) 3,720.00
Wages lost from July 1,1979 to date of trial (411 hours @ $10 per hour) 4,110.00
Loss of Use of Motorcycle (For six months @ $3 per day) 540.00
Total: $15,310.30

Of the special damages, the medical bills are not disputed; these total $4,150.30. The amount of lost wages, however, is arguable. No doubt it was in this area the jury found plaintiff to have suffered far less damage than he claimed. Because the evidence on this point must be reduced essentially to a credibility question, we conclude the jury and the judge did not believe the plaintiff’s testimony as to the extent of his lost work time or the reasons why he lost time.

Sweeney testified he was a heavy equipment operator working with backhoes and bulldozers. The job requires manipulating levers to run the machines and changing their buckets when necessary, work which involves use of the shoulder. At the time of the accident he was employed by Cala-mia Construction Company. When Sweeney was ready to return to work following the accident, Calamia had no work available for him and so he was hired by Audubon Construction Company. He worked for Audubon from March 13, 1979 to April 9,1979, and testified he quit at that time because his shoulder bothered him too much. He did not return to work again until July 1, 1979, when Calamia had an opening for him. He was still working for Calamia at the time of trial, but testified that his shoulder still hurt and he had to have a co-worker help him when something heavy had to be done. When he could not work because of his condition, he would stay home.

Carl Calamia, Sweeney’s employer, testified Sweeney had been on restricted duty since he returned to work for Calamia. Ca-lamia said there were a lot of times when Sweeney would not come to work because of complaints about his shoulder, but Cala-mia could not specify which of the missed days shown on his payroll records were due to the injury. He admitted he was going only on Sweeney’s word as to his disability at these times. (Calamia did state that Sweeney is a very good operator and a regular worker, and he was willing to bear with him until he could work at full strength.)

While Sweeney claims on appeal that all the lost time shown on his work record prior to trial was due to his shoulder injury, there was evidence to indicate that sometimes he may have lost time simply because of job conditions. It was also brought out that plaintiff suffered a knee injury in September 1980 while working on his truck. He went to the hospital emergency room for treatment of the knee, but he did not inform Calamia of it.

Significantly, Sweeney’s treating physician, Dr. Ralph Gessner, testified that he saw the plaintiff on April 6, 1979 (three days before Sweeney quit Audubon), and recorded “no complaints of pain and was continuing to work on that date.” Dr. Gessner also testified he saw plaintiff on May 8, 1979 and recorded “no complaints of pain and was continuing to work on that date.” (This was in the middle of the period when plaintiff claims he was unable to work because of pain.)

In addition, the defendants impeached Sweeney’s testimony several times by pointing out inconsistencies between his trial testimony and testimony in a pretrial deposition. The defense also brought up discrepancies between Sweeney’s testimony compared to that of other witnesses.

Sweeney’s loss of wages from the date of accident (January 8, 1979) through his return to work at Audubon (March 14, 1979) is clearly established by the evidence as being attributable to the accident. This amounts to $2,790.

From April 9, 1979, when he stopped working for Audubon, to July 1, 1979, when he began working for Calamia again, Sweeney claims to have missed 480 hours of work, amounting to $3,720 in lost wages. Considering the evidence in the record, we surmise the jury and the judge either did not believe he was unable to work, or else believed he was working but lied to them about it. Accordingly, they must have refused to award him damages for this time. Considering the credibility determinations involved, we find no manifest error in such a conclusion. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

Similarly, plaintiff claims to have lost 411 hours of work from July 1, 1979 to the date of trial (November 3, 1980), comprising $4,110 in lost wages. Apparently he did not establish this loss to the satisfaction of the jury and the judge. Again, we cannot find this determination to be clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Finally, the plaintiff also claims he is owed damages for loss of use of his motorcycle for the six months it took to repair it. (He repaired it himself, but stated he had difficulty finding parts for it because it is a 1959 model.) His testimony, however, establishes that he had alternative transportation available during this time. Accordingly, he was not conclusively entitled to an award for loss of use.

We conclude, therefore, the jury and the judge likely allowed plaintiff special damages of $4,150.30 in medical bills and $2,790 in lost wages. Subtracting this from the award as increased by the additur leaves $10,560.70 in general damages. We concede this is at the low end of the spectrum for the injury suffered by the plaintiff, considering his 15% residual disability and development of mild traumatic arthritis. Nonetheless, we cannot say it constitutes a clear abuse of the wide discretion afforded the trier of fact under LSA-C.C. art. 1934, as interpreted by our Supreme Court in Reck v. Stevens, 373 So.2d 498 (La.1979); Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976), and other cases.

For the foregoing reasons, the judgment is affirmed.

AFFIRMED.


author: KLIEBERT, Judge.

text:
    Russell N. BOYETT v. Dawn Trahant INGRAM.
    No. 5-84.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 30, 1982.
    R. Augustin, New Orleans, for plaintiff-appellant.
    Wiley J. Beevers, Metairie, for defendant-appellee.

      Before CHEHARDY, KLIEBERT and CURRAULT, JJ.
   KLIEBERT, Judge.

Dawn Trahant Ingram, defendant, brought this suspensive appeal of a judgment holding her indebted to Russell N. Boyett, plaintiff, for a loan of $5,000.00. The judgment also dismissed her reconven-tional demand for $50,000.00 for mental anguish and distress allegedly caused by the plaintiff’s unlawful deprivation of the possession of her minor children. We affirm the trial court.

According to the plaintiff’s testimony, he loaned defendant $5,000.00 arid paid $1,719.92 for lumber delivered to the defendant for use in the repair of her trailer. In support of his testimony, plaintiff submitted in evidence a check for $5,000.00 drawn on the plaintiff’s bank made payable to the defendant and marked on the front of the check as “loan for repairs”. Additionally, submitted in evidence is a check made out to a lumber company for $1,719.92 marked “trailer repairs” and a check made out to him by the defendant in the amount of $1,719.92 marked “lumber”. Defendant’s bank refused to make payment on the latter check because defendant had closed her account. The defendant admitted she had physically written the $5,000.00 check given to her by the plaintiff and was the one who wrote at the request of the plaintiff “loan for repairs” on the check. She claims, however, that the $5,000.00 was given to her as a gift. Although the defendant admitted giving to plaintiff her check for $1,719.92 in payment of lumber purchased by him for her account, she contended the lumber was never delivered, therefore, she closed her account at the bank before the check was presented for payment. Several witnesses testified on behalf of the defendant, but gave conflicting versions as to the reasons for the $5,000.00 check or whether the plaintiff had delivered the lumber to the defendant.

The trial judge found as a fact that plaintiff had loaned the $5,000.00 to defendant but had failed to carry the burden of showing the lumber was in fact delivered to the defendant. We cannot say the trial judge committed manifest error in those rulings. The plaintiff’s testimony was supported by documentary evidence. Although the defendant’s testimony was in part supported by the testimony of other witnesses, the overall testimony of those witnesses and that of the defendant was in serious conflict. The trial judge accepted the plaintiff’s version of the events over those of the defendant. Since he had the opportunity to view the live witnesses, while we can only examine a cold record, he was in a better position to make the credibility call than we are. In absence of manifest error, there is no basis for us as a reviewing court to reverse the trial court’s judgment. Canter v. Koehring, 283 So.2d 716 (La.1973).

In support of her reconventional demand the defendant testified that she voluntarily let her three minor children go to Hammond to visit with the plaintiff and Larry Ingram, the second husband of defendant and the half-brother of the plaintiff. According to her testimony, when she went to Hammond to retrieve the children, plaintiff refused to let her have the youngest child who was there at the time or the two older children who were then in school because Ingram had a court order granting custody of the children to him. The two youngest children were issue of defendant’s marriage to Larry Ingram while the oldest child was the issue of defendant’s first marriage to August Gobert. Her attorney argues that the plaintiff’s depriving her of possession of her children, particularly the child born of her marriage to Gobert, was an unlawful act which caused her extreme mental anguish resulting in her having to be hospitalized and receive treatment at the state mental hospital in Mandeville.

The trial judge concluded the defendant failed to show any causation between the actions of the plaintiff and her present mental health and accordingly dismissed her reconventional demand. After a careful review of the record, we do not find one scintilla of evidence to establish a causation between plaintiff’s action and the alleged injury.

For the above stated reasons, the judgment of the trial court is affirmed. All costs of appeal to be borne by the defendant.

AFFIRMED.


author: CULPEPPER, Judge.

text:
    Theodore ELLIS, Plaintiff & Appellant, v. RAPIDES PARISH SCHOOL BOARD and Hartford Casualty Insurance Company, Defendants & Appellees.
    No. 82-34.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 31, 1982.

      Broussard, Bolton & Halcomb, Frank R. Bolton, Jr., Alexandria, for plaintiff-appellant.
    Gist, Methvin, Hughes & Munsterman, David A. Hughes, Alexandria, for defendant-appellee.
    Before CULPEPPER, FORET and STOKER, JJ.
   CULPEPPER, Judge.

This is a workmen’s compensation case. Plaintiff seeks benefits for total and permanent disability and statutory penalties and attorney’s fees. From a judgment dismissing his suit, plaintiff appeals.

The issues are: (1) Was plaintiff disabled beyond February 2, 1979, the date compensation payments were terminated? (2) Is plaintiff entitled to penalties and attorney’s fees?

FACTS

It was stipulated at trial that the plaintiff, Mr. Ellis, suffered an accident within the course and scope of his employment as a janitor with the Rapides Parish School Board. Hartford Accident & Indemnity Company, as insurer of the School Board, paid compensation benefits from August 15, 1978, the date of the accident, through February 2, 1979, and paid all medical and travel expenses for that period of time.

The accident occurred while Mr. Ellis was engaged in arc-welding, standing atop a metal extension ladder. He received an electrical shock and fell, catching his right leg in the extension ladder rope. The rope broke the fall somewhat, causing the plaintiff to hang upside down for a short period of time until extricated by fellow workers.

Initial treatment was rendered to the plaintiff at the Rapides General Hospital emergency room. A week later, he went to see a general practitioner, Dr. Grover Bahm, who saw him three times and referred him to Dr. Douglas Gamburg, an orthopedic surgeon. Plaintiff’s complaints were of lower back pain, numbness of the right leg, and mild or dull headaches.

The plaintiff was further referred to a neurosurgeon, Dr. Babson Fresh, who saw him on three occasions. The last examination by Dr. Fresh took place on January 19, 1979, at which time Dr. Fresh recommended that plaintiff return to work in a week or two. The defendant Hartford thereafter discontinued Mr. Ellis’ compensation benefits effective February 2, 1979.

After his discharge by Dr. Fresh, the plaintiff then saw Dr. Austin Gleason, an orthopedic surgeon in Shreveport. In July, 1979, Dr. Gleason, in consultation with a neurosurgeon, Dr. Don Smith, performed a battery of tests on the plaintiff, including a myelogram and a bone scan, all of which were negative.

Dr. Gleason then referred plaintiff to Dr. Christopher Burda, a rheumatologist. Dr. Burda examined the plaintiff three times, last seeing him on November 28, 1979. From January through December, 1980, the plaintiff was treated for his complaints by Dr. Robert Ourso, Jr., employed by the Rap-ides Parish Police Jury, to provide medical services for the inmates of the Rapides Parish jail. Plaintiff was incarcerated there and later pled guilty on a charge of second degree murder. Dr. Ourso testified that he saw Mr. Ellis approximately six times during this period and treated him symptomatically, but did not examine him.

The trial court held in written reasons that the lay testimony and limited findings of Dr. Burda were far outweighed by the findings of the other doctors.

DISABILITY

The first issue before us is whether the trial court erred in finding that the plaintiff was not entitled to benefits for disability-

The appellant’s basic complaint appears to be that the trial court gave insufficient consideration to the testimony given by Dr. Burda and Dr. Ourso.

Dr. Burda is a rheumatologist, specializing in the treatment of arthritis and related illnesses. The plaintiff was referred to him to rule out the possibility of an arthritic condition in his back. There was no indication of any type of arthritis. All of the clinical examinations performed were negative in result except for a finding of limitation of motion of the lumbar spine. This conclusion was based on the complaint of pain in the straight leg raising test. Dr. Burda stated that his guess would be that Mr. Ellis could return to his previous job in six to twelve months from his last visit on November 28, 1979, and he further stated that he felt the plaintiff had a five to ten per cent partial permanent disability.

Dr. Robert J. Ourso, Jr. is a psychiatrist at Central State Hospital. He treated the plaintiff, however, in his separate capacity as general staff physician for the inmates of the Rapides Parish jail, where plaintiff was incarcerated. Dr. Ourso testified that he saw the plaintiff approximately six times in 1980, and his complaints were always consistent. However, he also testified that he did not really examine the plaintiff, but merely listened to his complaints and treated him symptomatically, prescribing muscle relaxants. He had no direct knowledge of plaintiff’s difficulties, if any, in doing the work assigned to him, and his opinion as to plaintiff’s disability was based strictly on the plaintiff’s subjective complaints.

The lay testimony of plaintiff’s wife and two inmates of the Rapides Parish jail was offered to establish that the plaintiff’s complaints were consistent with pain and discomfort in his lower back.

On the other hand, also introduced into evidence were the depositions of two orthopedic surgeons, Dr. Douglas L. Gamburg and Dr. Austin W. Gleason, and a neurosurgeon, Dr. C. Babson Fresh, and the report of another neurosurgeon, Dr. Don Smith. None of these doctors was able to find any objective or clinical evidence of any accident-related disability after February 2, 1979. They all concurred in diagnosing the plaintiff’s injury as musculoligamentous strain, and were of the opinion the plaintiff had no residual disability which would prevent him from returning to work as a janitor. Drs. Gleason and Smith worked together in consultation to perform a complete workup of tests on the plaintiff, but all results were negative, and there was no objective evidence of any continuing disability. They felt the plaintiff’s continued complaints were more likely the results of muscular tension, and, after ruling out a ruptured disc, found that plaintiff could return to gainful employment.

It should be noted that the straight leg raising test, on which Dr. Burda based his opinion, yielded negative results with all of these doctors. Dr. Gleason testified that the plaintiff’s straight leg raising was positive when performed with the patient lying down, but negative when he was sitting up. He further testified that the results should be consistent in both positions, and' when they are not, it tends to mean the patient may be faking or have a psychological overlay. While Dr. Burda stated that it was his normal practice to perform the test in both positions, his notes did not indicate whether or not he did so. The evidence is clear that Dr. Burda was the only physician to find anything clinically wrong with the plaintiff, and this was based primarily on plaintiff’s subjective reactions to the straight leg raising test.

While we recognize that in compensation cases the law is to be liberally construed in favor of the employee, the plaintiff in a compensation suit is required to prove the facts by a preponderance of the evidence and with the same legal certainty as required in any other civil case. Guillory v. New Amsterdam Casualty Company, 244 La. 225, 152 So.2d 1 (1963). The question here is whether the plaintiff has borne that burden of proof. Essentially, he argues that the trial court erred in failing to give sufficient weight to the testimony of Dr. Ourso and Dr. Burda, and to the lay testimony presented by plaintiff at trial.

Some general evidentiary guidelines were stated by the Louisiana Supreme Court in Tantillo v. Liberty Mutual Insurance Company, 315 So.2d 743 (La.1975):

“It is generally true that medical testimony which is not in conflict cannot be overcome by lay testimony. Nevertheless, in every case it is the totality of the evidence, medical and lay, which must be examined by the court in making its determination of whether to grant an award for disability. Great weight, almost to the point of exclusion of other evidence, is given to uncontradicted medical evidence which is directed toward a complex scientific question. However, in all cases, it is the judge’s function to determine the weight which is to be accorded the medical testimony as well as the ¡ay testimony. Lay testimony has great probative value in establishing certain facts, such as the existence and location of pain and the actual ability or inability of a claimant to perform certain physical functions or to pursue his regular employment. See Larson, supra, at § 79.53. We conclude that lay evidence must be weighed with consideration for the medical fact to be established, of the conclusiveness and validity of the medical evidence and the materiality, relevance and reliability of the particular lay evidence, according to its focus, foundation and its source.”

(Emphasis supplied)

The trial court considered the lay testimony, but he did not think it deserved sufficient weight to overcome the medical testimony that plaintiff was not disabled after February 2, 1979.

With regard to the medical testimony, as a general rule the treating physician’s testimony should be given more weight than that of the doctor who examines plaintiff for purposes of diagnosis only. Another general rule is that the testimony of a specialist is entitled to more weight than that of the general practitioner when the subject at issue is in his particular field. Guillory v. INA, 401 So.2d 612 (La.App. 3rd Cir. 1981); Porter v. Augenstein Construction Company, 280 So.2d 861 (La.App. 3rd Cir. 1973).

In light of these rules, it was not unreasonable for the trial court in this case to afford more weight to the testimony of the orthopedists and neurosurgeons attending the plaintiff, since they deal routinely with back injuries, than to the testimony of Dr. Burda, a rheumatologist who examined the plaintiff for purposes of diagnosis only, and a psychiatrist, Dr. Ourso. See also Graziano v. Lallie Kemp Charity Hospital, 400 So.2d 1164 (La.App. 1st Cir. 1981).

Whether a plaintiff’s pain is substantial enough to render him disabled is a question of fact to be determined by the trier of fact. Such a determination of fact will not be disturbed on appeal when there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for such finding, unless such findings are clearly wrong. Crump v. Hartford Accident & Indemnity Company, 367 So.2d 300 (La.1979); Kraemer v. Louisiana Power & Light Company, 393 So.2d 346 (La.App. 1st Cir. 1980).

After a careful consideration of all the evidence contained in the record, we conclude that the trial court’s finding of no disability is not clearly wrong.

PENALTIES AND ATTORNEY’S FEES

In light of the trial court’s conclusion that Mr. Ellis was not disabled subsequent to February 2, 1979, the defendant, Hartford Accident & Indemnity Company, did not arbitrarily and capriciously terminate benefits. The adjuster handling the case testified that benefits were terminated as of this date due to receipt of the report by Dr. Fresh dated January 19, 1979 discharging the plaintiff from further active care and recommending that he return to work in the next one to two weeks. Dr. Fresh’s opinion was confirmed in July of 1979 by Drs. Gleason and Smith, who, finding no basis for the plaintiff’s complaints, found plaintiff able to return to work. Hartford was justified in terminating benefits as of February 2, 1979 and was not arbitrary in' refusing to reinstate payments on the basis of the later reports by Dr. Burda and Dr. Ourso.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the plaintiff-appellant.

AFFIRMED.


author: STOKER, Judge.

text:
    Wilber S. HOYT, Plaintiff-Appellee-Appellant, v. HI-LO OIL COMPANY, Defendant-Appellant-Appellee.
    No. 82-125.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 31, 1982.
    Rehearing Denied Oct. 11, 1982.

      Cabes, Tracy & Perret, Henry C. Perret, Jr., Lafayette, for defendant-appellant-ap-pellee.
    DeJean, DeJean & DeJean, Broderick De-Jean, Opelousas, Broadhurst, Brook, Mang-ham, Hardy & Reed, Ted W. Hoyt, Lafayette, for plaintiff-appellee-appellant.
    Before CULPEPPER, FORET and STOKER, JJ.
   STOKER, Judge.

This case involves an action for breach of contract. The primary and underlying issue is whether the appellant oil distributor owes appellee commissions on sales of gasoline from convenience store locations secured by appellee. Wilber Hoyt (Hoyt), an expert in the construction and site location of “convenience” stores contracted with Hi-Lo Oil Company (Hi-Lo) to obtain sites at convenience stores for the sales of Hi-Lo gasoline. Hoyt received a fraction of a cent commission for each gallon of gasoline sold at locations he obtained for Hi-Lo. Three contracts containing the agreement between the parties were drawn up and signed on February 26,1968. This arrangement worked well until October 1970 when Hi-Lo stopped paying commissions. After unsuccessful attempts to have the commissions reinstated, Hoyt filed suit on July 29, 1978, against Hi-Lo seeking a judgment for past due commissions, specific performance for future commissions and attorney’s fees. In a supplemental petition, Hoyt asked for legal interest on the accounts past due to be assessed “at the rate in effect under law at the time of said contract” from March 12, 1971, the date on which Hi-Lo was allegedly put in default. The trial judge awarded to Hoyt $43,284.03 which represents the amount of commissions past due with interest at five percent through June 29, 1978. The trial court also awarded legal interest on the sum of $43,284.03 from date of judicial demand until paid.

Hi-Lo appeals, contending that the trial court erred in failing to find Hoyt’s cause of action had prescribed and in misinterpreting the contract between the parties to find that Hi-Lo had breached the contract. Hi-Lo also contends that Hoyt failed to prove all of the damages on which his award was based and that Hoyt is entitled to only five percent interest from date of judicial demand since this was the legal interest rate at the time of the contract was confected. These issues will be discussed in the order presented.

PRESCRIPTION

Hi-Lo contends that the trial court erred in not sustaining its exception of prescription. Hi-Lo argues that Hoyt’s commissions are annuities and therefore any of Hoyt’s claims which were due more than three years previous to filing of suit have prescribed under LSA-C.C. art. 3538 which includes actions on annuities. A contract of annuity is defined in LSA-C.C. art. 2793 as “. . . that by which one party delivers to another a sum of money, and agrees not to reclaim it so long as the receiver pays the rent agreed upon.” Hoyt paid no money to Hi-Lo from which he claims an annuity is owed. Therefore, the general prescriptive period of ten years for personal actions under LSA-C.C. art. 3544 is applicable to this cause of action. Contractual obligations prescribe in ten years from the date they arise. See Scobee v. Lewis, 264 So.2d 704 (La.App. 1st Cir. 1972), application denied, 262 La. 1179, 266 So.2d 451 (La.1972). Hi-Lo’s first assignment of error has no merit.

INTERPRETATION OF THE CONTRACTS

Hi-Lo urges that the trial court erred in not finding that the contracts between Hi-Lo and Hoyt were confected by Hoyt and that, therefore, any ambiguities in the contracts should be construed against Hoyt. We find ample evidence in the record to support the trial court’s finding that the parties negotiated the contract together. However, we need not consider this issue further as we find that the contracts are not ambiguous. Therefore, we need not rely on any rule of interpretation applicable to ambiguous contracts.

On the basis of an oral agreement between the parties, Hoyt obtained sites for the sale of Hi-Lo gasoline at the Chester Food Store in Scott, Louisiana, and the Louisiana stores in the Phil-A-Sac and Shop-Rite chains. This agreement was reduced to writing in three separate contracts. Hoyt was to receive one fourth of a cent per gallon of gas sold at the Chester Food Store and one-fifth of a cent per gallon of gas sold at the Phil-A-Sac and Shop-Rite stores. The contracts have identical terms except for the rate of the commissions. Each provided as follows:

“There will be no commission paid during the time gas is priced below 26 cents. This commission is paid for the efforts put forth by Wilber S. Hoyt obtaining and promoting this business for Hi-Lo Oil Company. The commission will be paid as long as Wilber S. Hoyt assist (sic) in the promoting and operation of Hi-Lo Oil Company other than the normal services on equipment and monthly reading of the meters.”

Hi-Lo claims that its cessation of commission payments in October of 1970 was justified under the contract because at that time “the margin fell below normal”. The “margin” again reached the “normal level” in 1971, Hi-Lo argues, but the commissions to Hoyt were not resumed at that time because Hoyt had breached the obligation by failing to “... assist in the promoting and operation of [the] Hi-Lo Oil Company ... ”.

Hi-Lo claims that the agreement between the parties was that Hoyt would be paid commissions only as long as Hi-Lo received a normal profit margin from the sales of gasoline at the locations secured by Hoyt. Yet the contract includes no mention of a normal profit margin and only states that there will be no commission paid when gas is priced below 26 cents. The intent of the parties to a contract is to be determined by the words of the contract when these are clear and explicit and lead to no absurb consequences. LSA-C.C. art. 1945. Evidence adduced at trial indicated that at no time relevant to this case did the retail price of gas drop below 26 cents per gallon and no evidence was produced to the contrary. Therefore, we find that the trial court was not clearly wrong in its finding that the price of gas did not go below the minimum stated in the contract and that Hi-Lo was not justified in refusing to pay Hoyt the commissions under the contract on the ground that the profit margin dropped.

BREACH OF CONTRACT OBLIGATION TO PROMOTE

Hi-Lo also contends that Hoyt breached his obligation to “promote” the operation of its company and that therefore Hi-Lo was justified in refusing to pay commissions for this reason. Hi-Lo claims that Hoyt became employed by other concerns during the term of his active employment with Hi-Lo, and that he secured locations for these other concerns for their convenience stores with gas pumps. In some cases these competing convenience stores were located across the street from Hi-Lo’s outlets.

However, as pointed out in the trial court’s reasons for judgment, Hi-Lo was aware that its contract with Hoyt was not exclusive and that Hoyt was a freelancer even when he worked for a particular company. Furthermore, Hi-Lo did not rely on Hoyt’s services as its exclusive source of promotion in the Louisiana area in question. Hi-Lo employed two men, one a former employee of Hoyt, to secure locations for the company in Louisiana on the strength of the initial operations set up by Hoyt in the state. Also, Hi-Lo was aware of Hoyt’s employment experience with other firms at the time the contract was confected.

The trial court stated:

“After listening to the testimony of the parties, the court is convinced that [the ‘promotion’ clause] was interpreted by both parties as a continuing effort by Plaintiff, to secure locations and to act as a consultant to Defendant. It must be realized that outside of merchandise promotion, advertising, and keeping goodwill with the operator, there was little that Plaintiff could do in ‘promotion’ except to keep presenting Hi-Lo’s proposition for sale of gas to prospective convenience store operations.”

The trial court found further that Hoyt promoted several locations for Hi-Lo and suggested advertising approaches and sales promotional schemes to Hi-Lo before the contract dispute arose. We find ample support in the record for these findings of fact. Furthermore, Hi-Lo did not ask Hoyt to perform any promotional activity in connection with his contract. Under these circumstances, the trial court was not clearly wrong in concluding that Hoyt fulfilled his obligation to assist in the promotion of Hi-Lo Oil Company in the manner which was contemplated by the parties.

DAMAGES

The only issue raised as to the correctness of the amount of the trial judge’s award to Hoyt is Hi-Lo’s contention that the gallonage reports necessary to establish the claim for damages were not introduced into evidence for three locations: the Shop-Rite in Jennings, Louisiana, the Phil-A-Sac in Ville Platte, Louisiana, and the Phil-A-Sac No. 37 in Alexandria, Louisiana.

The trial court based its award on detailed calculations in a report prepared by the CPA firm of Postlethwaite, Netterville, Evans and Major, dated September 4, 1981, which the court requested at trial. This report was not submitted as trial evidence but was later filed in the record under instructions from the trial judge included in his reasons for judgment. (Tr. 265-266). Through their counsel the parties later filed in the record a post-trial stipulation with reference to the CPA report of September 4,1981. The report contained the gallonage reports for various locations which Hoyt claims he secured for Hi-Lo, including the three disputed locations named above.

The post-trial stipulation (filed in the trial court November 6,1981) reads as follows:

“POST TRIAL STIPULATIONS
“NOW INTO COURT, through undersigned counsel, come WILBER S. HOYT AND HI-LO OIL COMPANY, plaintiff and defendant respectively in the above entitled and numbered cause, who have agreed and stipulated to the following:
1.
“That the summary of gallonage, and commissions contained on the final page of the report prepared by Brian J. Stagg, C.P.A. of the firm of Postlethwaite, Net-terville, Evans and Major dated September 4,1981 is an accurate detailed calculation made in conformity with the Reasons for Judgment issued by the Honorable Isom J. Guillory, Jr. on the 12th day of August, 1981.
2.
“That the summary of interest due through June 29, 1978 contained in the third column of the summary referred to in paragraph 1 above is the correct amount of interest due up to and through June 29, 1978 under the detailed calculation prepared in conformity with the Reasons for Judgment.
3.
“That in the calculations set forth in paragraph 1, credit was given to defendant, Hi-Lo Oil Company, for all amounts paid to Wilber Hoyt as directed in the Reasons for Judgment.”

Therefore, we do not find any merit in Hi-Lo’s claim that the proof of Hoyt’s claim relative to the three disputed locations was not submitted into evidence.

INTEREST

Hi-Lo seeks to limit the interest on any judgment awarded to Hoyt to five percent, the legal rate of interest at the time of execution of the contract, under the authority of LSA-C.C. art. 1940. Article 1940 reads as follows:

“In cases where no conventional interest is stipulated, the legal interest, at the time of contract was made, shall be recovered, although the rate may have been subsequently changed by law.”

Based on the CPA report of September 4, 1981, the judgment awarded Hoyt the sum of $43,284.03 “plus legal interest from date of judicial demand until paid and for all costs of these proceedings.” The figure of $43,284.03 appears to have been made up of the commissions due of $35,378.78 based on the total gallonage sold plus interest at five percent per annum through June 29, 1978, (the date suit was filed). The interest was shown as a total amount of $7,905.25. Therefore, the basis amount awarded consisted of:

Commissions due $35,378.78
Interest at the rate of 5% 7.905.25
Amount of Judgment $43,284.03

The accuracy of the CPA computation through June 29, 1978, has not been challenged. As shown in the tabulations of the CPA report it was calculated at five per cent per annum.

Page 1 of appellant’s brief contains Specification of Error, Number V which reads as follows:

V. THE TRIAL COURT ERRED IN AWARDING “LEGAL INTEREST FROM DATE OF JUDICIAL DEMAND UNTIL PAID” WITHOUT DEFINING LEGAL INTEREST.

Appellant is concerned that legal interest from date of judicial demand will be computed at the interest rates higher than five percent as provided in LSA-C.C. art. 2924 for judicial interest. Indeed, the CPA calculations appear to reflect such thinking. The last two columns of the summary sheet show interest after judicial demand accrued at seven percent to September 12,1980, and thereafter at ten percent to September 12, 1981. Therefore, we interpret the appellant’s Specification Number V as a request that we construe the words of the trial court’s judgment referring to “legal interest from date of judicial demand” as meaning five percent per annum rather than the higher rates provided in LSA-C.C. art. 2924 by the various amendments to that article enacted in recent years.

In a supplemental brief filed subsequent to oral argument, plaintiff Hoyt asserts the opposing view. Hoyt takes the position that under the judgment, interest on the judgment should accrue at the rates as specified in the amended version of LSA-C.C. art. 2924.

The conflicting contentions present an interesting question of law. However, we do not reach this question because plaintiff’s petition limits his demand to five percent per annum. The post-trial stipulation does not affect the question. It does not alter plaintiff’s pleadings.

The plaintiff’s supplemental and amending petition clearly limited his demand for interest both before and after judicial demand to five percent. The substance of plaintiff’s supplemental and amending petition reads:

"I.

“By adding Paragraph 12 to petition to read as follows:

12.

“Plaintiff placed Defendant in default by letter of March 9, 1971 to John Harvi-son which was received by said John Har-vison and is therefore, entitled to legal interest on all amounts due as they accrued from March 12, 1971 at the rate in effect under law at time of said contract.

“WHEREFORE, PETITIONER, reiterating the prayer of his original petition as set forth at length herein, prays that his original petition be supplemented and amended in the above particulars that, after due proceedings had, there be judgment rendered herein in favor of Petitioner and against the Defendant as originally prayed for and for legal interest as described above.” (Emphasis supplied.)

For the foregoing reasons we are of the opinion that the judgment of the trial court should be affirmed but amended for the purpose of clarity to provide that the judgment of $43,284.03 bear interest at the rate of five percent per annum (instead of legal interest) from judicial demand until paid together with the costs of these proceedings. The trial court’s judgment is amended accordingly and affirmed as amended.

The costs of this appeal are assessed to defendant-appellant.

AMENDED AND AFFIRMED ' AS AMENDED.


author: KLEES, Judge.

text:
    John W. CARPENTER v. Bonnie Bagert CARPENTER.
    No. 13050.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1982.

      Chris M. Evans, Matthew H. Greenbaum, Fawer & Greenbaum, New Orleans, for plaintiff-appellee.
    Bruce G. Reed, J. D., Reed & Reed, New Orleans, for defendant-appellant.
    Before SCHOTT, KLEES and LOBRA-NO, JJ.
   KLEES, Judge.

Defendant-appellant (Mrs. Carpenter) appeals from three separate orders rendered in the Civil District Court for the Parish of Orleans. Pursuant to litigation in the District Court for the County of Tulsa, Oklahoma, that Court on April 4, 1979 rendered a money judgment in favor of the plaintiff-appellee (Mr. Carpenter) and against Mrs. Carpenter consisting of $14,215.21 in attorney’s fees and expenses. Thereafter, on March 18, 1980 Mr. Carpenter applied for and received a Writ of Attachment against certain immovable property owned by Mrs. Carpenter in Orleans Parish. That money judgment was recognized by the Civil District Court for Orleans Parish on June 30, 1981.

Mrs. Carpenter filed a motion to dissolve said Writ and, following a hearing on this matter, the District Court rendered a judgment on March 13, 1981 denying Mrs. Carpenter’s motion. Mrs. Carpenter then filed a motion for a new trial on the merits of the March 13, 1981 judgment, but the motion was denied on May 20, 1981. This appeal follows suggesting to this Court that the District Court’s orders of March 13, 1981, May 20, 1981 and June 30, 1981 respectively, be overturned.

FACTS

The facts of this case are undisputed. On April 6, 1968, Mr. & Mrs. Carpenter were married in New Orleans, Louisiana, and one child was born of that marriage, Elizabeth. On April 26, 1977, Mr. & Mrs. Carpenter were divorced in the state of New Jersey, and Mrs. Carpenter was awarded custody of Elizabeth.

On July 21, 1978, Mr. Carpenter, now living and working in Oklahoma, applied to the District Court for Tulsa County for the temporary custody of his minor child. Mrs. Carpenter consented to this application and signed the Court’s order awarding the care and custody of Elizabeth to Mr. Carpenter for the period running from July 15,1978 to June 15, 1979.

However, on November 11, 1978, Mrs. Carpenter took her daughter from the playground of her school in Tulsa, Oklahoma and returned with Elizabeth to New Orleans. As a result of this, Mr. Carpenter filed a Writ of Habeas Corpus in Orleans Parish seeking the return of his minor child. On January 3, 1979, the Trial Court ordered that the Oklahoma custody modification of July 21, 1978 be recognized and that Mrs. Carpenter return Elizabeth to the father.

On March 19, 1979, Mr. Carpenter filed a motion in the District Court of Tulsa County seeking to modify the July 21,1978 order of that court. He applied for a contempt citation against Mrs. Carpenter and he also sought the permanent care and custody of Elizabeth. Mrs. Carpenter was personally served by a private process server appointed by the Oklahoma District Court, and on April 4, 1979, the court modified the New Jersey divorce decree and its own previous order of July 21, 1978. The court gave permanent custody of Elizabeth to Mr. Carpenter and also awarded a money judgment of $12,040.21 to Mr. Carpenter for the expenses and attorney fees he incurred seeking to enforce his custody rights.

On March 18, 1980, Mr. Carpenter filed a petition in the Civil District Court for Orleans Parish seeking to have the foreign money judgment recognized by the Court. He also sought a Writ of Attachment to protect his interest in the judgment, and the Writ was granted by the court. Mrs. Carpenter then moved to dissolve the attachment, but on March 13, 1981, her motion to. dissolve the writ was denied. She then filed a motion for a new trial, and this motion was denied on May 20, 1981.

Finally, Mrs. Carpenter filed a peremptory exception to Mr. Carpenter’s petition to have the Oklahoma money judgment made executory alleging that the foreign court lacked personal jurisdiction over her. This exception was denied by the trial court on June 30, 1981.

Mrs. Carpenter now appeals three separate orders rendered by the Civil District Court for the Parish of Orleans. First, she appeals from the March 13, 1981 order which denied her motion to dissolve the writ of attachment. Secondly, she appeals from the May 20,1981 denial of her motion for a new trial. Finally, she appeals the June 30, 1981 judgment which denied her peremptory exception challenging the personal jurisdiction of the Oklahoma court to render a money judgment against her.

MOTION TO DISSOLVE THE WRIT OF ATTACHMENT

A judgment dissolving a writ of attachment has been held to be an appealable interlocutory judgment. Pittman v. Lilly, 197 La. 233, 1 So.2d 88 (1941) and cases cited therein. However, an order denying a motion to dissolve a writ of attachment cannot be appealed prior to a disposition on the merits of the ease.

There is an exception to the basic rule stated above. If the motion to dissolve the attachment is accompanied by an incidental demand for damages for wrongful issuance of the writ, then even an order denying the motion is appealable. Stahlman Lumber Co. v. Ferrill, 320 So.2d 331 (La.App. 3rd Cir. 1975), Smith v. Utility and Maintenance Contractors of America, Inc., 301 So.2d 906 (La.App. 2nd Cir. 1974). In this case Mrs. Carpenter sought only the dissolution of the writ of attachment and did not ask for damages.

Accordingly, we find the trial court’s denial of the motion to dissolve the writ of attachment an interlocutory decree which does not cause irreparable injury and dismiss this portion of the appeal.

MOTION FOR A NEW TRIAL

The Motion for a New Trial was predicated upon the trial court’s denial of Mrs. Carpenter’s motion to dissolve the writ of attachment. As we have found the judgment denying the motion is not appealable, then the motion for a new trial becomes moot. Accordingly, we dismiss this portion of the appeal.

OKLAHOMA MONEY JUDGMENT

It is well settled that in a suit for recognition of a foreign judgment, the only issue of the foreign proceeding which a Louisiana court may concern itself with is the question of domicile and jurisdiction over the parties and issues. Biri v. Biri, 192 So.2d 862 (La.App. 4th Cir. 1966). Thus, the issue of jurisdiction of the foreign court goes to the merits of the suit for recognition in Louisiana. Handling of the matter by exception is therefore, in the technical sense, improper. Rice v. Kliebert, 330 So.2d 374 (La.App. 4th Cir. 1976). A similar issue was presented in Broday v. Broday, 360 So.2d 645 (La.App. 3rd Cir. 1978). In Bro-day the issue of jurisdiction of a California court was raised by an exception of “No Right of Action”; there the court noted at pg. 648:

“Lack of jurisdiction of the California court to render the judgment against the defendant is a defense to the merits of this suit filed by the plaintiff under LSA -C.C.P. Art. 2541 to have the California judgment recognized and made the judgment of the Louisiana court. Such a defense should be raised by answer to plaintiff’s petition and should be tried on the merits. The record in the present case shows that after the exception of ‘No Right of Action’ was tried the defendant did file an answer in which he reurged his defense that the California court lacked jurisdiction.”

As sufficient testimony was adduced at the hearing on the exception to allow the Appellate court to treat the evidence introduced as evidence on the merits they found it unnecessary to remand for another trial on the merits.

In the instant case, no answer has been filed asserting the defense to the merits that the Oklahoma Court lacked jurisdiction, and no substantive evidence has been introduced. Thus we can not, as in Broday, supra, treat defendant's exceptions as an answer, but both parties should be allowed to present evidence on the jurisdiction question.

There is an additional procedural problem concerning the recognition of the Oklahoma money judgment. La.-C.C.P. Art. 2541 requires that the recognition by a Louisiana Court of a foreign judgment be decreed via ordinary proceedings. The exception in the District Court was handled in a summary manner.

The case of Le Jeune v. Le Jeune, 310 So.2d 655 (La.App. 1st Cir. 1975) supports a strict construction of the above cited article. It states at pg. 656:

“This recognition [of a foreign judgment] must be sought through ordinary proceedings and finalized by a judgment of the court. Any proceeding which circumvents this procedure is fatally defective.”

Mr. Carpenter contends that Mrs. Carpenter was given an opportunity to fully litigate the issue of jurisdiction. To support this contention, he relies heavily on Allenberg Cotton Company, Inc. v. Stacy, 384 So.2d 514 (La.App. 2nd Cir. 1980). However, the Ailenberg case can be distinguished from the one at bar. In Ailenberg, the defendant raised the issue of jurisdiction in the foreign court (emphasis added) and was afforded an opportunity by that court to litigate the issue. Here, the defendant did not raise the issue of jurisdiction in the foreign (Oklahoma) court. Mrs. Carpenter never did file an exception in the Tulsa County District Court objecting to the jurisdiction and the matter has never been properly litigated.

We must therefore remand this matter to the trial court with instructions that Mrs. Carpenter be allowed to answer this petition and proceed to trial on the merits.

Accordingly, for the reasons expressed herein:

1) The appeal from the judgment of March 13, 1981 denying the motion to dissolve is hereby dismissed.

2) The appeal from the judgment of May 20, 1981 denying the motion for new trial is hereby dismissed.

3) The judgment of June 30, 1981 denying the peremptory exception of jurisdiction and recognizing the judgment of the Court of Tulsa County Oklahoma No. JFCS78-067 rendered May 15, 1979 is reversed and this matter is hereby remanded to the trial court to permit appellant — Mrs. Carpenter to answer this petition and proceed to trial on the merits.

Costs to await final disposition in this matter.

DISMISSED IN PART, REVERSED IN PART AND REMANDED.


author: GULOTTA, Judge.

text:
    Liselotte Schroth Wife of Natchez J. MORICE, Jr. v. Natchez J. MORICE, Jr.
    No. C 0125.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 23, 1982.
    Writ Denied Oct. 4, 1982.
    Robert G. Creely, Gretna, for defendant-relator.
    Richard J. McGinity, New Orleans, for plaintiff-respondent.
    Guy Wootan, Court-Appointed Notary, New Orleans, in pro. per.
    Irvin F. Dymond and William L. Crull, New Orleans, for respondents.
    Before GULOTTA, KLEES and WILLIAMS, JJ.
   GULOTTA, Judge.

In this writ application, the relator-husband complains that the trial judge erroneously issued an ex-parte order designating the effective date for termination of the community as the date of the filing of a second supplemental and amended petition for divorce (July 28, 1980), rather than the date of the earlier filed petition for separation from bed and board (July 27, 1979). Specifically, relator claims: 1) the notary was not the proper party to move the court for the determination of the effective date; 2) a contradictory hearing should have been held by the trial judge before making a determination; and 3) the trial judge erroneously designated the effective date of termination as the date when the divorce petition was filed.

Based on the representations made in the writ application, we stayed further proceedings in the trial court pending consideration of the writ. We afforded opportunity to the respondent-wife and the notary to file a response, and ordered that the matter be further considered on oral argument.

In argument, relator contends that, absent a contradictory hearing, the trial court was denied the opportunity of considering evidence necessary to make a determination of the legal issue i.e., the effective date of the termination of the community. Relator asserts that in a contradictory hearing facts could have been developed concerning the wife’s pre-separation fault and an agreement to allow a divorce petition to be filed before a final determination of fault and alimony. According to relator, since he was deprived of the opportunity to elicit this evidence, an inequitable determination has been made to his prejudice without considering all factors concerning the dispute. Based on this argument, relator seeks an order from this court remanding the matter for the purpose of allowing the introduction of evidence bearing on the substantive issue of termination.

We find no merit to relator’s argument. We are confronted with a purely legal question requiring consideration of the original petition for separation from bed and board based on cruelty filed by the wife in July, 1979, and the second supplemental and amending petition seeking a divorce based on one year voluntary separation filed in July, 1980. Factual questions of unnecessary delays, continuances, and agreements between the parties regarding a suit for divorce are equitable matters irrelevant to the determination of the clear legal issue. Under the circumstances, we conclude that a remand to allow a contradictory evidentiary hearing would be vain and useless and would not serve judicial economy.

Turning now to the central legal issue, we find no error in the trial court’s holding that the effective date of termination of community was the date of the filing of the divorce petition. LSA-C.C.P. Art. 1153 states that when the action asserted in the amended petition arises out of the conduct, transaction or occurrence set forth in the original pleading the amendment relates back to the date of the filing of the original pleading. The original suit for separation filed by the wife in the instant case was based on grounds of mental cruelty. The supplemental and amended petition is separate and distinct from the cause of action asserted in the original petition. Furthermore, the basis of the claim for divorce, i.e. living separate and apart for one year, did not exist at the time of the filing of the suit for separation.

Our brothers on the First Circuit were confronted with the same issue in Pepe v. Drouant, 311 So.2d 582 (La.App. 1st Cir. 1975). They concluded in Pepe that the supplemental and amended petition asserted a “different cause of action” from the original that had not occurred at the time of the filing of the original petition. Accordingly, the amending petition did not relate back to the filing of the original petition. See also Duncan v. Duncan, 359 So.2d 1310 (La.App. 1st Cir. 1978). We are in agreement with the conclusion reached by the First Circuit in Pepe and Duncan. Accordingly we find no error in the ruling of the trial judge.

Consistent with the foregoing, the Stay Order issued by this court on September 16, 1982 is recalled and set aside. The application for supervisory writs is denied. •

STAY ORDER RECALLED AND SET ASIDE.

WRITS DENIED.


author: DAN M. LEE, Justice,

text:
    CITY OF KOSCIUSKO and United States Fidelity & Guaranty Company v. Ernest M. GRAHAM.
    No. 53655.
    Supreme Court of Mississippi.
    Sept. 8, 1982.
    Rehearing Denied Oct. 13, 1982.

      Thornton, Guyton, Dorrill & Pettit, John D. Guyton, Kosciusko, for appellants.
    Crawley & Ford, Michael H. Steele, Kosciusko, for appellee.
    Before WALKER, HAWKINS and DAN M. LEE, JJ.
   DAN M. LEE, Justice,

for the Court:

This is an appeal from the Circuit Court of Attala County which affirmed an order of the Workmen’s Compensation Commission whereby the City of Kosciusko, Mississippi, and its carrier United States Fidelity & Guaranty Company, defendants/appellants, were ordered to pay unto Mrs. Mary F. Graham, wife of Ernest Graham, claimant/appellee, compensation for nursing services provided Ernest Graham for a period of eight hours per day, seven days a week, beginning July 8, 1964, and ending February 23, 1972. The hourly rate for such services was to be determined by the Federal Minimum Wage laws excluding any periods during which Ernest Graham was actually hospitalized. We affirm.

This is the second appearance of this case on appeal. In Graham v. City of Kosciusko, 339 So.2d 60 (Miss.1976), this Court upheld an order of the Circuit Court of Attala County which provided that Mrs. Graham be paid $2.25 per hour for four hours nursing service a day from and after February 23, 1972, to March 26, 1975, excluding any time during such period in which claimant was actually hospitalized. However, the cause was reversed and remanded to the Workmen’s Compensation Commission so that claimant could file an amended petition to put in issue payment for nursing services rendered by his wife to him in the home from July 8, 1964, to February 23, 1972, with the employer/carrier being allowed to file an amended answer thereto raising all defense they desired to make, which is the subject matter of the present appeal.

On July 8, 1964, claimant suffered an industrial accident while working as an electrical lineman for the City of Kosciusko. He was left a paraplegic, paralyzed from the waist down. As a result of his injuries, claimant was awarded $12,500 in workmen’s compensation benefits which were paid at the rate of $35 per week for 357 weeks. In addition to his workmen’s compensation benefits and medical expenses, claimant received his regular salary from the City of Kosciusko from July 8, 1964, until December 1967, which totaled $19,658.81.

Following his discharge from the hospital on October 3, 1964, claimant returned home where his wife, Mary Graham, attended to his needs. Due to his paralysis, claimant had no function in his urinary or intestinal tracts. Therefore, claimant had to be catheterized as well as given enemas to induce the natural bodily functions he had lost as a result of his accident. Claimant also had to be given his medication, propped up, bathed, and turned frequently to prevent skin irritations. Claimant also required frequent cleanings from bladder spills and enemas as did his clothing and bed linens. Claimant’s wife performed all these functions in addition to her household activities. Both claimant and his wife asserted she spent between fourteen and fifteen hours each day rendering these services.

Dr. Charles Neill, the neurosurgeon who treated claimant, testified claimant required nursing services for a period of eight hours a day from July 8, 1964, through February 22, 1972. There was no medical testimony to the contrary.

The administrative judge found that claimant required nursing services eight hours each day from July 8, 1964, through February 23, 1972. The rate of payment for such services was to be determined by the prevailing Federal Minimum Wage for that period. The full commission and the Circuit Court of Attala County affirmed the decision of the administrative judge.

I. Did claimant make a request from appellants for nursing services within the meaning of Mississippi Code Annotated section 71-3-15(1) (1972)?

Section 71-3-15(1) provides:

(1) The employer shall furnish such medical, surgical, and other attendance or treatment, nurse and hospital service, medicine, crutches, artificial members, and other apparatus for such period as the nature of the injury or the process of recovery may require. If the employer fails to provide the same after request by the injured employee, such injured employee may do so at the expense of the employer. The employee shall not be entitled to recover any amount expended by him for such treatment or services, except in emergency cases, unless he shall have requested the employer to furnish the same and the employer shall have refused or neglected to do so, or unless the nature of the injury required such treatment and services and the employer or his superintendent or foreman, having knowledge of such injury, shall have neglected to provide the same. Nor shall any claim for medical or surgical treatment be valid and enforceable, as against such employer, unless within twenty (20) days following the first treatment the physician giving such treatment furnish to the employer and the commission a report of such injury and treatment, on a form prescribed by the commission. The commission may, however, excuse the failure to furnish such report within twenty (20) days when it finds it to be in the interest of justice to do so, and may, upon application by a party in interest, make an award for the reasonable value of such medical or surgical treatment so obtained by the employee. If at any time during such period the employee unreasonably refuses to submit to medical or surgical treatment, the commission shall, by order, suspend the payment of further compensation during such time as such refusal continues, and no compensation shall be paid at any time during the period of such suspension.

The undisputed testimony of claimant and his wife established that within a month following his discharge from the hospital (October 3,1964), Jack Bailey, a representative of U.S.F. & G., visited in their home for the purpose of investigating claimant’s accident. Claimant and his wife discussed with Bailey claimant’s condition requiring the use of catheters and enemas. Claimant asked if his wife could be paid for the services she rendered him in connection with his accident. Bailey replied that U.S.F. & G. would not pay for a nurse except when claimant was hospitalized.

In Babcock & Wilcox Co. v. Smith, 379 So.2d 538 (Miss.1980), the identical factual situation was before this Court. The Court stated:

As for the appellant’s argument that the appellee failed to satisfy the request requirement of Mississippi Code Annotated section 71-3-15(1) (1972), we need only point to the insurer’s 1971 letter responding negatively to the appellee’s request, and to the administrative law judge’s responses to interrogatories concerning the appellee’s preservation of his rights at the time of the hearing on the petition requesting modification of the home. This evidence, we think, establishes beyond cavil the appellee’s compliance with the request requirement. (379 So.2d at 540)

The evidence adduced by claimant and his wife was uncontradicted. Claimant’s injuries and the services performed by his wife were described to Mr. Bailey. Claimant also requested payments for services his wife performed in connection with his accident. This evidence was sufficient to establish claimant’s request to furnish the services rendered. Moreover, the carrier, through its agent, was amply aware of the nature of claimant’s injury and that such required the kind of treatment and services rendered by the wife. There is no merit in this argument.

II. Was claimant’s claim for medical services barred by laches or estoppel, the one and two-year statutes of limitations provided by the Mississippi Workmen’s Compensation Act, or the three-year statute and six-year general statute of limitations?

The only two limitation periods provided for by the Workmen’s Compensation Act are the two-year statute of limitations [§ 71-3-35(1) MCA (1972)] and the one-year statute of limitations [§ 71-3-53 MCA (1972)]. Section 71-3-35(1) provides:

(1) No claim for compensation shall be maintained unless, within thirty (30) days after the occurrence of the injury, actual notice was received by the employer or by an officer, manager, or designated representative of an employer. If no representative has been designated by posters placed in one or more conspicuous places, then notice received by any superior shall be sufficient. Absence of notice shall not bar recovery if it is found that the employer had knowledge of the injury and was not prejudiced by the employee’s failure to give notice. Regardless of whether notice was received, if no payment of compensation (other than medical treatment or burial expense) is made and no application for benefits filed with the commission within two years from the date of the injury or death, the right to compensation therefor shall be barred.

This statute of limitations has no application to the case at bar because compensation benefits were paid unto claimant. See Yazoo Mfg. Co. v. Schaffer, 254 Miss. 35, 179 So.2d 784 (1965).

Section 71-3-53 provides:

Upon its own initiative or upon the application of any party in interest on the ground of a change in conditions or because of a mistake in a determination of fact, the commission may, at any time prior to one (1) year after date of the last payment of compensation, whether or not a compensation order has been issued, or at any time prior to one (1) year after the rejection of a claim, review a compensation case, issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation, or award compensation. Such new order shall not affect any compensation previously paid, except that an award increasing the compensation rate may be made effective from the date of the injury; and if any part of the compensation due or to become due is unpaid, an award decreasing the compensation rate may be made effective from the date of the injury, and any payment made prior thereto in excess of such decreased rate shall be deducted from any unpaid compensation in such manner and by such method as may be determined by the commission.

The parties stipulated that appellant paid medical expenses up to and including the month when claimant petitioned to be furnished nursing services. The payment of these expenses constituted a payment of compensation for the purpose of tolling the one-year statute of limitations. See Graeber Bros., Inc. v. Taylor, 237 Miss. 691, 115 So.2d 735 (1959), sugg. of error overruled 237 Miss. 702, 117 So.2d 469 (1960); and Cox v. International Harvester Co., 221 So.2d 924 (Miss.1969). Claimant’s petition in the present case was not barred by any statute of limitations applicable to workmen’s compensation claims.

The defenses of laches, the three-year statute of limitations and the six-year general statute of limitations have no application to the case at bar.

III. Was appellant entitled to credit for payment of claimant’s salary made after claimant’s injury?

In addition to the workmen’s compensation benefits and medical benefits received by claimant, the City of Kosciusko continued paying claimant his salary following the accident through December of 1967. These payments totaled $19,658.81. Appellants now contend they are entitled to a credit for this amount. There was no evidence adduced as to why these payments were made.

Where the payment of wages is intended to be in lieu of compensation, credit for the wages is allowed. George S. Taylor Construction Co. v. Harlow, 269 So.2d 337 (Miss.1972). One exception to this rule is where it affirmatively appears that the payment by the employer was a donation. Koestler’s Bakery, Inc. v. Boland, 299 So.2d 205 (Miss.1974). The second exception occurs where the salary paid was not in lieu of compensation but money the claimant was entitled to receive based on his past service. Staple Cotton Serv. Ass’n v. Russell, 399 So.2d 224 (Miss.1981), and Pet, Inc., Dairy Division v. Roberson, 329 So.2d 516 (Miss.1976).

A careful review of the record in the instant case leads us to the conclusion that the wages paid by appellant to claimant from July 8, 1964, to December of 1967 were not intended to be in lieu of compensation for which appellants were entitled to a credit. We reach this conclusion for several reasons. Appellant paid claimant his full salary with full knowledge that claimant had received workmen’s compensation benefits for his injury. Appellant was fully aware of the extent of claimant’s injury which prohibited him from any future employment to which he was suited. Finally, appellant made no claim for a credit for these wages until the present suit was brought. Based on these reasons, we believe the wages paid to claimant from July 8,1964, until December of 1967 were benevolent in nature and not made in lieu of compensation.

IV. Was the award of the commission excessive?

In Graham v. City of Kosciusko, supra, we stated:

A full hearing should be afforded both sides. Required nursing services should be separated from general household duties and work that a wife ordinarily performs in and about the home in looking after and caring for her husband and children. There should be testimony from doctors as to how many hours per day would be required for special nursing services for the claimant from July 8, 1964, to February 23, 1972. (339 So.2d at 65)

The only medical evidence adduced came from Dr. Neill who opined that claimant required eight hours per day of nursing services during the period involved. . Claimant and his wife asserted she spent fourteen to fifteen hours per day rendering nursing services to her husband. The fact that claimant’s wife performed non-technical tasks is of no consequence as stated in Babcock & Wilcox Co. v. Smith, supra:

We also think insignificant the fact that the assistance requested involves essentially non-technical tasks resembling those performed by orderlies or licensed practical nurses in hospitals. (379 So.2d at 540)

The only evidence adduced as to the rate of pay received by a licensed practical nurse came from Victoria Lee Niles, Assistant Administrator of the Montfort Jones Hospital, and Louis B. Mclnnis, the manager of the local office of the Mississippi State Employment Service. Niles testified that nurses aides began receiving minimum wage in 1967 or 1968 while licensed practical nurses received the following hourly rates in the specified years: 1964—$1.03; 1965—$1.03; 1966—$1.13; 1967-^1.44; 1968—$1.73; 1969—$1.88; 1970—$2.03; 1971—$2.18; and 1972—$2.30. According to Mr. Mclnnis, licensed practical nurses were paid minimum wages in 1964. The commission ordered that appellant pay claimant the prevailing federal minimum wage for eight hours a day from July 8, 1964, through February 23, 1972, excluding any periods for which claimant was confined to a hospital. A review of the record clearly reveals there was substantial evidence to support the award made by the commission and affirmed by the circuit court.

Based on the foregoing reasons, this cause is affirmed.

AFFIRMED.

PATTERSON, C. J., SUGG and WALKER, P. JJ., and BROOM, ROY NOBLE LEE, BOWLING, HAWKINS, and PRATHER, JJ., concur.