text:
    Wilton CARTER, Plaintiff-Appellant, v. MONTGOMERY WARD & CO., INC., Defendant-Appellee.
    No. 8714.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1982.

      Edward D. Rubin, Lafayette, for plaintiff-appellant.
    Davidson, Meaux, Sonnier & Roy, Richard C. Meaux and M. Candice Hattan, Lafayette, for defendant-appellee.
    Before GUIDRY, CUTRER and STOKER, JJ.
   STOKER, Judge.

This is a suit for workmen’s compensation. Plaintiff-appellant Wilton Carter injured his left ankle while changing a tire as an employee of defendant in its automotive repair shop. Plaintiff-appellant (Carter) alleged in his petition that he suffered “an injury to his leg and ankle.” However, as the case was tried it appears that Carter is seeking compensation benefits based on an injury to his left knee which he contends was sustained in the same accident which injured his ankle. There is no amendment to the pleadings alleging injury to the left' knee.

Carter alleged in his petition that although his employer (referred to herein as Montgomery Ward) provided medical treatment and care to him through its insurance program, defendant-appellee Montgomery Ward has failed and refused to pay weekly compensation benefits to which Carter is entitled. Apparently, appellant seeks compensation for total and permanent disability or at least temporary total disability under the Louisiana Workmen’s Compensation Law.

Defendant-appellee, Montgomery Ward, answered the petition denying that it had failed to pay medical and compensation benefits. On the contrary Montgomery Ward alleged it paid Carter $5,209.80 in compensation benefits and $1,366.74 in medical benefits. Without admitting that Carter was entitled to anything under the compensation law, Montgomery Ward alleged that, if Carter was entitled to benefits for a work connected injury, he was actually paid beyond the date of any disability he suffered, and Montgomery Ward prays that “it be reimbursed for all compensation paid to the plaintiff subsequent to the time he was well and capable of performing his usual and customary work.” In its answer the appellee addressed the issue of injury to Carter’s knee by alleging that Carter sustained a knee injury at his grandmother’s home months after his work-connected accident. Appellee further denies that Carter sustained a knee injury in the course and scope of employment.

ISSUES

As the case was tried, and as it comes to us on appeal, the issues are (1) whether plaintiff-appellant sustained a knee injury at the time he sustained his ankle injury on or about February 23,1980, which continues to disable him, and (2) if plaintiff-appellant did not sustain a knee injury on or about February 23, 1980, whether appellee paid Carter compensation beyond the disability incurred as a result of the ankle injury for which it is entitled to reimbursement.

TRIAL COURT ACTION

The trial court dismissed plaintiff’s demands and ruled further in favor of defendant granting judgment to the latter against Carter for reimbursement of medical expenses paid on Carter’s behalf after July 2, 1980, and for all compensation benefits paid to Carter from July 2, 1980, through December 13, 1980, amounting to $3,469.57. Plaintiff-appellant was taxed with costs.

DISCUSSION OF FACTS

The trial court handed down an excellent written summary of the facts and issues and well stated reasons for its judgment in this case. We agree with the trial court’s reasons for judgment insofar as they reject plaintiff-appellant’s demands for further compensation. We do not agree with the trial court’s holding that Montgomery Ward & Co., Inc., is entitled to reimbursement for payments made to plaintiff-appellant after July 2, 1980. On this point we reverse. The trial court’s reasons for judgment are set forth here in full, and with respect to. the first issue mentioned above we adopt them as our own.

“REASONS FOR JUDGMENT

“This is a suit brought by plaintiff, Wilton Carter, against defendant Montgomery Ward & Co., Inc., seeking the reinstitution of weekly workmen’s compensation benefits together with legal interest from due date until paid. Plaintiff also seeks penalties and reasonable attorney’s fees for the defendant’s alleged arbitrary and capricious refusal to pay. Defendant, Montgomery Ward, filed an answer denying that plaintiff was injured in the course and scope of his employment. Defendant further asserts that it nonetheless paid plaintiff workmen’s compensation benefits during plaintiff’s entire period of disability and long after he was cured. Defendant also prays that it be reimbursed for all compensation paid to plaintiff subsequent to the time that he was well and capable of performing his usual and customary work.

“Plaintiff asserts that he injured his ankle and knee while repairing a tire in the course and scope of his employment. Defendant avers that if in fact plaintiff did sustain an injury at work it was an injury to his ankle only and not to his knee.

“The issues to be decided by the Court are: (1) whether the plaintiff sustained an injury during the course and scope of his employment; and (2) the nature and extent of the plaintiff’s injury.

“The Court is satisfied that plaintiff has proven by the preponderance of the evidence that he injured his left ankle while changing a tire while on a service call in the course and scope of his employment on the evening of February 22, 1980.

“The Court, however, is not satisfied that plaintiff has carried his burden of proving that his knee injury was caused by or related to the same accident or the ankle injury.

“The evidence shows that the accident was reported by his supervisor to defendant on February 3, 1980, and that plaintiff was sent to our Lady of Lourdes Hospital for emergency room treatment. The record reveals that plaintiff complained only of his left ankle.

“On February 26, 1980, plaintiff was examined by Dr. Ray C. Boyer, a general practitioner, who found that plaintiff had a sprained left ankle. Plaintiff did not have any complaints about his knee at that time nor at any time during his next five visits to Dr. Boyer’s office.

“On March 28, 1980, Dr. Boyer, after examining plaintiff and seeing that he no longer had a limp, discharged plaintiff to return to work. (Dr. Boyer’s deposition, page 14, line 23). Although plaintiff still had some swelling about the ankle, Dr. Boyer had no reservations with regard to releasing him to go back to work.

“About a month later, on April 30, 1980, Dr. Boyer again saw the plaintiff, who at that time, for the first time, complained of the pain going from the ankle up into the knee. The doctor found no physical abnormality in the knee but did find that there was still minimal swelling in the ankle which, according to the physician, can persist for six to eight months. (Dr. Boyer’s deposition, page 16, line 10 et seq).

“Plaintiff was seen by Dr. Boyer three more times — May 14, May 21 and June 4— and at not one of these visits did plaintiff voice a complaint about problems or pain in his knee (Dr. Boyer’s deposition, page 22, line 20 and 21).

“On the May 14th visit, plaintiff’s ankle was still swollen and plaintiff indicated that he had some tenderness in the lateral mal-leolus or bony prominence on the outside of the ankle. Because of his continued complaints about his ankle, Dr. Boyer referred plaintiff to see Dr. Fred C. Webre, an or-thopaedic surgeon in Lafayette.

“On the May 21st visit, plaintiff stated that he could walk in the morning but limped in the afternoon (Dr. Boyer’s deposition, page 19, line 23 et seq). Dr. Boyer was of the opinion that this was not consistent, especially in light of his findings. Dr. Boyer opined that plaintiff should have been walking fine by this time (Dr. Boyer’s deposition, page 20, line 15 et seq).

“Plaintiff was examined by Dr. Boyer for the last time on June 4, 1980. Although plaintiff’s ankle was still somewhat swollen (which was normal), Dr. Boyer could find nothing significantly wrong and was of the opinion that plaintiff could and should return to work (Dr. Boyer’s deposition, page 22, line 11 et seq).

“Dr. Fred C. Webre first saw plaintiff on May 15, 1980, and at that time, plaintiff gave him a history that he had slipped and fallen, and had twisted his left ankle while changing a tire. Plaintiff related that he had been discharged by Dr. Boyer to return to work about six weeks post-accident and that he worked for two and a half weeks, limping all the time. At that time, plaintiff was complaining of the side of the left ankle, was using a cane, and gave no history of a knee injury (Dr. Webre’s deposition, page 7, lines 21 et seq). The doctor found soft tissues swelling on the front and side of the ankle, some limited motion of the ankle, and his diagnosis was that plaintiff had residuals of a straining injury to the ankle. (Dr. Webre’s deposition, page 8, lines 15 et seq).

“Dr. Webre again saw plaintiff on May 29, 1980. Although the swelling had gone down, plaintiff still complained of soreness on the side of the ankle. Plaintiff had no complaints about his knee. He was advised by Dr. Webre to increase his walking. (Dr. Webre’s deposition, page 8, lines 23, et seq).

“On June 11, 1980, plaintiff was again seen by Dr. Webre who found slight soft tissue swelling on the medial and lateral aspects of the ankle. X-rays showed no ligamentous laxity in the ankle. Plaintiff said he was walking more and he was advised to return to regular work shoes with thick socks and to increase his walking. Plaintiff had no complaints about his knee. (Webre’s deposition, page 9, lines 14, et seq).

“Plaintiff was again seen by Dr. Webre on July 2, 1980, and for the first time plaintiff complained that his left knee was giving him trouble. Plaintiff said that his left knee was bothering him more than his ankle and he stated that his ankle was “much better”. (Dr. Webre’s deposition, page 10, lines 25 et seq). Plaintiff had vague complaints about the knee giving away, but Dr. Webre found no effusion of the knee, no ligamentous instability, and no evidence of internal derangement, although X-rays did show a slight increase in bone density in the medial condyle. Dr. Webre was of the opinion that this increased density was the result of an old process of some type and he knew of no possibilities where this density would be traumatically induced. He thought that it may be a tumor, but whether malignant or benign, tumors are not caused by trauma. (Dr. Webre’s deposition, page 16, lines 4 et seq). Dr. Webre was of the opinion that the finding does not give the appearance of trauma, and if it is pathological, then he doesn’t think it is a traumatic thing but could be an abscess from childhood. At this time, Dr. Webre sent him to see Dr. J. Lee Leonard, another orthopaedic surgeon in the same building, for consultation and another opinion.

“Thus we see that the ankle on July 2, 1980, is ‘much better’. We also note that the first complaint to Dr. Webre of the knee is on July 2, 1980.

“Dr. Webre saw plaintiff again on February 27,1981, and at that time, plaintiff was working light duty but complained of pain in the front of the knee under the kneecap. Plaintiff was wearing a knee cage. There were no complaints about the ankle at that time. He had full motion in flexion and extension, and there was no effusion of the knee, alignment of the knee cap was good, retinaculum was free and there were arthroscopic scars about the knee. Both thighs were equal in measurement as well as the calves. Dr. Webre found no evidence or any specific muscle weakness, he also found the cruciate and collateral ligaments intact; he found no rotary instability of the knee; he found no indication of internal derangement.

“The Court concludes that plaintiff’s ankle was well sufficiently to return to his former duties as of July 2,1980. The Court also holds that workmen’s compensation benefits do not accrue to plaintiff after this date and further, that medical expenses incurred thereafter for the knee are not due to plaintiff by defendant.

“Dr. Leonard saw and treated plaintiff only for the alleged injury to his left knee. It is interesting to note that plaintiff, for the first time told a physician, Dr. Leonard, that his left knee, as well as his ankle, was twisted at the time of the accident. (Dr. Leonard’s deposition, page 5, line 6 et seq). Dr. Leonard first examined plaintiff on July 21, 1980, at which time plaintiff complained that his knee would give way on him and that he had popping in his knee but no locking. (Dr. Leonard’s deposition, page 5, line 12 and 13). The doctor found full flexion and extension, no effusion, no signs of instability, and he had a negative lock-man’s test and a negative pivot shift. (Dr. Leonard’s deposition, page 5, line 24 et seq). Further, plaintiff had no atrophy. Dr. Leonard continued to treat the patient until October 20, 1980, when he discharged him to return to work insofar as his alleged injury to the knee. It is significant that on August 19, 1980, Dr. Leonard performed an arthroscopic examination and found no internal pathology. Dr. Leonard stated that he never found any objective signs of injury and in his opinion his X-rays never showed anything that is pathologic on Mr. Carter. (Dr. Leonard’s deposition, page 13, lines 4 et seq).

“On March 10,1981, plaintiff sought consultation with Dr. J. Frazer Garr, an ortho-paedic surgeon of Opelousas, who saw plaintiff only for his left knee. It is interesting that plaintiff complained to Dr. Garr of periodic locking and giving away in the left knee. Plaintiff had denied his knee locking previously and the lockman’s tests conducted by Dr. Leonard were negative. Upon examination, Dr. Garr found no problems with the knee cap, no swelling or fluid in the knee, no really tender area anywhere, no ligamentous instability of the knee, full knee motion, and thigh measurements were within the normal limits. Dr. Garr did find X-ray evidence of a lesion in the lateral tibual plateau area. Dr. Garr (Dr. Garr’s deposition, page 17, lines 17 et seq) stated that it was his opinion that what he saw was a tumor, a cystic or even a tumorous process of cells growing. He further stated that he had not seen trauma or fractures act like this and that is why he was concerned about it. He also stated that his findings were not consistent with the history given by plaintiff (Dr. Garr’s deposition, page 21, lines 5 et seq) and he was also of the opinion that trauma, if any, at the time of the accident did not cause nor aggravate the tumor. (Dr. Garr’s deposition, page 23, lines 3 et seq.

“The Court finds that the alleged injury to the knee is not in anywise connected with the trauma sustained by plaintiff on February 22, 1980 while in the course and scope of his employment with Montgomery Ward & Co., Inc.

“The Court renders judgment in favor of defendant, Montgomery Ward & Co., Inc. and against plaintiff, Wilton Carter, dismissing his demands with full prejudice at his costs. The Court also renders judgment in favor of defendant Montgomery Ward & Co., Inc., and against plaintiff, Wilton Carter, for all medical expenses paid by Montgomery Ward & Co., Inc. after July 2, 1980 and for all workmen’s compensation benefits paid to plaintiff after July 2,1980. See CCP 862. All costs to be paid by plaintiff.

“The Court fixes the expert fees of the physicians as follows: Dr. J. Frazer Garr, $100.00; Dr. Fred C. Webre, $150.00; Dr. J. Lee Leonard, $200.00; and Dr. Ray C. Boyer, $100.00. The Court also assesses as costs the statement of court reporters’ fee in the taking of some of the depositions, that is, those statements introduced in evidence.”

APPELLANT’S ARGUMENT ON APPEAL

On behalf of appellant, his counsel stresses in brief and oral argument that in workmen’s compensation matters proof of disability following an accident may be sufficient to establish causal relationship to the accident where there was no disability before. Three points are made on appellant’s behalf:

1. By his own and lay testimony Carter contends he showed he had no knee problems prior to his accident but did have knee pain afterward.

2. Carter excuses or explains his failure to initially mention pain in his left knee in his first two examinations by Dr. Boyer by contending that, because he was on crutches, there was no weight bearing on the knee. As we understand the argument, Carter contends he felt that the knee was affected but did not mention it because he did not appreciate its seriousness until later when he got off the crutches.

3. Finally, Carter urges that the expert medical witnesses admit that he had a medical problem with his knee.

We are not impressed with appellant’s arguments. His arguments are largely disposed of because the medical experts appellant relies on are of the opinion the knee problem arises from a tumor not caused by trauma. Moreover, the trial court had before it evidence affecting the credibility of appellant and one of the lay witnesses which the trial court was justified in taking into account. We also find persuasive the fact that plaintiff-appellant’s petition filed on December 29, 1980, makes no mention whatsoever of an injury to the knee but only injury to his leg and ankle. In any event the trial court’s findings are entitled to be given much weight under our law, and since the findings and judgment of the trial court are not clearly wrong, the judgment must be affirmed. Arceneaux v. Domingue, 365 So.2d 1330, (La.1979).

For the foregoing reasons we affirm the trial court’s rejection of plaintiff-appellant’s claim for further compensation.

In our opinion the trial court erred in granting judgment to Montgomery Ward for medical expenses and workmen’s compensation paid after July 2, 1980. Carter’s condition was at all times well known to Montgomery Ward. It knew of Dr. Boyer’s finding on June 4, 1980, that Carter was able to return to work. All medical opinion rendered after that time confirmed the fact that Carter was not disabled from working insofar as his ankle was concerned. It was the finding of the trial court that any knee injury sustained by Carter was not work-connected, and we agree with that finding.

Payments made to Carter after July 2; 1980, were made voluntarily and with full knowledge of the facts. Recovery of payments not due are governed by the Louisiana Civil Code, articles 2301 et seq. However, rather than the specific articles of the code, we believe a jurisprudential rule to be more applicable. The rule was stated in a dissenting opinion in Whitehall Oil Company v. Boagni, 217 So.2d 707 (La.App. 3rd Cir. 1968) in which Judge Tate, then a member of the Court of Appeal, referred to “the general legal principle that, for the stability of society and of transactions, voluntary payments made with full knowledge of all the facts and not under duress may not subsequently be recovered, even though the amount so paid is not actually owed.” (Citations omitted)

The Supreme Court granted writs in Whitehall Oil Company v. Boagni, supra, but affirmed the majority holding. 229 So.2d 702 (La.1969). Nevertheless, the Supreme Court opinion contains a reference to the general principle stated by Judge Tate which appears to approve the enunciation. The Supreme Court held, however, that under the facts and circumstances of the Whitehall Oil Company case, the general principle was simply not applicable.

We deem this general rule to be applicable here and for that reason Montgomery Ward is not entitled to recover any amounts paid to plaintiff-appellant as medical benefits or workmen’s compensation. For the foregoing reasons the judgment of the trial court is reversed insofar as it renders judgment in favor of Montgomery Ward & Co., Inc. and against plaintiff, Wilton Carter, for all medical expenses and workmen’s compensation paid to Wilton Carter after July 2, 1980. The judgment of the trial court is affirmed insofar as it rejects plaintiff-appellant’s claim for further benefits under the workmen’s compensation law. The costs of the proceedings in the trial court are assessed equally between the parties. Costs of this appeal are assessed equally between appellant and appellee.

REVERSED IN PART AND AFFIRMED IN PART.


source: Caselaw Access Project

author: CULPEPPER, Judge.

license: Public Domain

text:
    Thomas H. SHORES, Plaintiff and Appellant, v. FIDELITY & CASUALTY COMPANY OF NEW YORK, et al., Defendants and Appellees.
    No. 8716.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1982.

      Owen J. Bradley and Michael R. Guidry, New Orleans, Sherman F. Raphael, J. D., New Orleans, for plaintiff-appellant.
    McGlinchey, Stafford & Mintz, J. Michael Johnson and Michael Sistrunk, New Orleans, Landry, Watkins & Bonin, Nan M. Landry, New Iberia, Joshua A. Tilton, R. Randall Roche, Baton Rouge, for defendants-appellees.
    Before CULPEPPER, SWIFT and DOU-CET, JJ.

      . The State of Louisiana is also a defendant, and the suit is still pending as to it.

   CULPEPPER, Judge.

Plaintiff sues his employer, several executive officers and fellow employees and the employer’s liability insurer, seeking damages in tort for injuries sustained in an automobile accident. These defendants filed an exception of no cause of action on the grounds that plaintiff’s exclusive remedy is against his employer for worker’s compensation. The trial judge sustained defendants’ exception and dismissed plaintiff’s suit as to these defendants. Plaintiff appeals.

Plaintiff alleges that he was an employee of defendant, LeBlanc Welding & Construction Company, that he was ordered by his supervisor to drive five co-employees in a company automobile to a job site, and that during this trip an automobile accident occurred in which he received serious injuries.

On appeal, plaintiff argues his original and amending petitions state a cause of action in tort for damages caused by the “intentional acts” of the defendant-employer and its executive officers and employees, since he alleges that the acts which caused the accident were committed by the defendants with the knowledge that injuries were substantially certain to follow. He further contends, in the alternative, that the petition states a cause of action for workmen’s compensation by alleging that the plaintiff was injured while in the course and scope of his employment.

It is well settled that the function of the peremptory exception of no cause of action is to test the legal sufficiency of the petition. As stated by the Louisiana Supreme Court in Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La.1975):

“The correctness of the well-pleaded allegations of fact is conceded, the issue is whether the face of the petition presents a case which legally entitles the mover to the redress sought. It is the sufficiency of the petition or motion in law which is put at issue by the exception. Rebman v. Reed, 286 So.2d 341 (La.1973); Louisiana State Board of Medical Examiners v. England, 252 La. 1000, 215 So.2d 640 (1968).”

LSA-R.S. 23:1032, as amended, precludes suits by an employee to recover for work-related injuries from an employer or fellow employee engaged at the time of injury in the normal course and scope of employment, unless his injury resulted from the co-worker’s intentional act. The statute provides in pertinent part:

“§ 1032. Exclusiveness of rights and remedies; employer’s liability to prosecution under other laws
The rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, or relations, against his employer, or any principal or any officer, director, stockholder, partner or employee of such employer or principal, for said injury, or compensable sickness or disease. For purposes of this Section, the word “principal” shall be defined as any person who undertakes to execute any work which is a part of his trade, business or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof.
Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.”

The Louisiana Supreme Court, in Bazley v. Tortorich, 397 So.2d 475 (La.1981), stated that the principal legislative aim of the amendment was to broaden the class of defendants to be granted immunity from tort suits by injured employees, so as to prohibit such suits against the employer’s executive officers and employees. The statute does provide, however, that the exclusive nature of the compensation remedy does not apply to “intentional acts.” The court concluded that because of the received meaning and acceptance of the statutory language and the object of the legislation, the words “intentional act” mean the same as “intentional tort” in reference to civil liability. The following test for intentional tort in the context of this statute was stated by the court:

“The meaning of intent in this context is that the defendant either desired to bring about the physical results of his act or believed they were substantially certain to follow from what he did.
ifc ifc ^ ¡}! !{! S{S
“Intent is not, however, limited to consequences which are desired. If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result.”

In Bazley, the plaintiff’s petition alleged that the defendant fellow employees intentionally committed certain acts which, if proven, would constitute negligence, such as failure to warn of danger, failure to keep a lookout, etc., arguing that since these acts were voluntary, they were intentional within the meaning of the statute. This argument was rejected in light of the court’s interpretation of the meaning of the statute, and it was held that the plaintiff’s petition failed to state a cause of action for lack of allegations that the defendant desired the consequences of his acts or believed such consequences were substantially certain to follow. The plaintiff here argues that his petition meets the Bazley test for alleging an intentional tort since he alleges certain acts and omissions were intentionally committed by the defendants with the knowledge that serious accidents and injuries were substantially certain to result therefrom.

The Louisiana Supreme Court stated in Delta Bank & Trust v. Lassiter, 383 So.2d 330 (La.1980):

“Although the correctness of the plaintiff’s well pleaded allegations of fact is assumed, the correctness of its conclusions of law is not conceded for purposes of a ruling on an exception of no cause of action. Breaux v. Laird, 223 La. 446, 65 So.2d 907 (1953); Trumbaturi v. Katz & Besthoff, 180 La. 915, 158 So. 16 (1934); Federal Land Bank of New Orleans v. Mulhern, 180 La. 627, 157 So. 370 (1934). “C.C.P. 891 provides that a petition “shall contain a short, clear, and concise statement of the object of the demand and of the material facts upon which the cause of action is based ...” From that language it is clear that a court when considering an exception of no cause of action must consider only the facts alleged by the plaintiff, and that a mere statement of a conclusion of law will not state a cause of action.”

Thus, the court may disregard allegations which are not facts but are mere conclusions of the pleader. Nugent v. Executive Officers of Harter Oil Company, 396 So.2d 537 (La.App. 3rd Cir. 1981); Lott v. Haley, 363 So.2d 1270 (La.App. 4th Cir. 1978), affirmed in pertinent part 370 So.2d 521 (La. 1979); McDonald v. Boh Bros. Construction Co., Inc., 397 So.2d 846 (La.App. 4th Cir. 1981).

Plaintiff’s petition contains the following pertinent allegations:

“Plaintiff avers that defendants caused his injuries by the following acts and omissions:
1. In intentionally failing to provide the plaintiff a safe place to work;
2. Intentionally overworking the plaintiff;
3. Intentionally requiring the plaintiff to carry unsealed gasoline cans in the vehicle;
4. Intentionally failing to inspect the vehicle for hazardous conditions;
5. Intentionally failing to maintain the vehicle in a safe condition.
Plaintiff further alleges that these and other intentional acts were committed by defendants with the knowledge that serious accidents and injuries were substantially certain to result from such acts and omissions.”

We find the final paragraph to be a conclusion of the pleader that the defendants believed serious accidents and injuries were substantially certain to follow. Accepting as true all of the allegations of fact as to the acts and omissions of the defendants, they do not constitute facts which show that defendants had knowledge that this plaintiff or any other employee assigned this job was substantially certain to be seriously injured in an accident as a result of the alleged acts and omissions. There are no specific facts pleaded to show how or why the defendants knew plaintiff’s injury was a substantial certainty, nor are any facts pleaded as to the knowledge of any defendant of unsafe conditions under which the plaintiff was working. See Nugent v. Executive Officers of Harter Oil Company, supra; Delta Bank & Trust Company v. Lassiter, supra. In the absence of allegations of the actual facts upon which this assertion is based, the plaintiff’s petition does not set forth a cause of action for intentional tort against the defendants-ap-pellees.

Plaintiff’s contention that the petition alternatively states a cause of action based on worker’s compensation is founded on the allegations that the plaintiff was employed by LeBlanc, was in the course and scope of his employment at the time of the accident, and that his injuries were sustained as a result of the accident.

We recognize that Louisiana has abandoned the theory of the case pleading and now follows a rule of liberal construction of our procedural laws to allow consideration of any cause of action or defense, even if not properly labeled or prayed for. Nevertheless, the pleadings, taken as a whole, must contain sufficient allegations to afford fair notice to the adverse party of the relief sought. See Greer v. Continental Casualty Company, 347 So.2d 70 (La.App. 2d Cir. 1977); Slay v. Smith, 368 So.2d 1144 (La.App. 3rd Cir. 1979).

LSA-R.S. 23:1311 provides, in pertinent part:

“The petition should set forth the names and residence of the parties and the facts relating to the employment at the time of the injury, the character and extent of the injury, the amount of the wages being received at the time of the accident, the knowledge of the employer or notice of the occurrence of the accident and injury and such other facts as may be necessary and proper for the information of the court, and to give the other party sufficient information to enable him to intelligently answer and defend the complaint; it should also state the matter or matters in dispute and the contention of the petitioner with reference thereto, including all facts which in this Chapter are made conditions under which compensation may be granted.”

The plaintiff’s petition lacks any allegation as to the amount of wages being received at the time of the accident, any knowledge of, or notice to, his employer of the accident and injuries, any failure or refusal by the employer to pay compensation, or any other matter in dispute with regard to compensation benefits. It merely alleges that the accident occurred while the petitioner was within the course and scope of his employment and as a result of the negligence of his fellow employees. It further contains no alternative prayer for workmen’s compensation. Plaintiff relies on Allen v. Yantis, 190 So. 236 (La.App. 1st Cir. 1939) and Lemieux v. Cousins, 154 La. 811, 98 So. 255 (1923) in support of his argument. However, in both of those cases, the plaintiff’s petition was amended to make it clear that a claim was being made against the defendant under the Workmen’s Compensation Statute, and both contained a prayer for the alternative remedies of damages or workmen’s compensation.

We find that the petition in the instant case fails to allege sufficient facts regarding a claim for workmen’s compensation so as to afford fair notice to the defendant that such a claim has been made. Therefore, the plaintiff’s petition fails to state a cause of action in workmen’s compensation because of the insufficiency of its allegations.

Plaintiff did not request permission of the trial judge to amend his petition so as to allege an alternative cause of action for workmen’s compensation. However, on appeal plaintiff requests in his brief a remand for this purpose.

LSA-C.C.P. Article 934 provides:

“Art. 934. Effect of sustaining peremptory exception
When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection cannot be so removed, or if plaintiff fails to comply with the order to amend, the action shall be dismissed.”

Clearly, plaintiff may be able to amend his petition to allege a cause of action for workmen’s compensation. Accordingly, we will remand to afford the plaintiff an opportunity to amend his petition in accordance with this opinion.

For the reasons assigned, the judgment appealed is affirmed as to dismissal of plaintiff’s demand in tort. However, the case is remanded to the trial court for the purpose of allowing the plaintiff a delay of 15 days after this judgment becomes final to amend his petition to allege a cause of action for workmen’s compensation, and if plaintiff fails to so amend his action shall be dismissed. All costs to date in the trial and appellate courts are assessed against the plaintiff.

AFFIRMED IN PART AND REMANDED.


author: SWIFT, Judge.

text:
    Anatole J. SERRETTE, Plaintiff-Appellee, v. Willie Dean HUVAL, et al., Defendants-Appellants.
    No. 8720.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1982.

      Shelton & Legendre, Thomas Robert Shelton and Thomas Porter, IV, Lafayette, for defendants-appellants.
    McHugh & Guidry, George W. McHugh, Jr., Martinville, for plaintiff-appellee.
    Before CULPEPPER, SWIFT and DOU-CET, JJ.
   SWIFT, Judge.

The plaintiff, Anatole Serrette, instituted this action against Willie Dean Huval, her husband, Elinore Huval, and David W. Hebert for $35,507 allegedly owed plaintiff by the defendants under a lease. A default judgment was confirmed against the defendants and Elinore Huval has appealed. We affirm.

On December 27, 1979, Anatole Serrette executed a two year lease of land and a building in favor of Willie Dean Huval and David Hebert. The lease refers to Willie Dean Huval as the wife of Elinore Huval. Under its provisions the lessees agreed to pay the plaintiff $1500 a month as rent during the first six months and $2400 a month thereafter. The lease also provided that the leased premises would be utilized as a restaurant and that the lessees were responsible for payment of all fire and comprehensive insurance premiums.

On May 1, 1981, the plaintiff filed a petition alleging the defendants had failed to pay the monthly rent and also the premium for insurance on the premises. No responsive pleadings were filed by defendants and a preliminary default was entered on June 26,1981. On July 2,1981, the default judgment was confirmed and signed. The testimony at the hearing was not reduced to writing and no note of evidence was made.

On this devolutive appeal Elinore Huval contends the trial court erred in awarding judgment in favor of the plaintiff against him for the payments allegedly due under the terms of the lease. He urges that under our civil code and jurisprudence the rentals and the insurance obligation were the separate debts of his wife and not debts of their community of acquets and gains. We disagree.

Former Article 131 of the Louisiana Civil Code, which was in effect when this lease was executed and the obligations thereof were incurred, provided:

“If the wife is a public merchant, she may, without being empowered by her husband, obligate herself in anything relating to her trade; and in such case, her husband is bound also, if there exists a community of property between them. “She is considered as a public merchant, if she carries on a separate trade, but not if she retails only the merchandise belonging to the commerce carried on by her husband.”

In King v. Dearman, 105 So.2d 293 (La. App. 1 Cir. 1958), the court was confronted with a similar factual situation. There two wives entered into a lease agreement to operate the premises as an ice cream parlor and for the sale of other foods to the public. The lessees failed to pay the rent under the terms of the lease and the lessor filed suit against the lessees and their husbands. The court held that the wives were public merchants in the dispensing of food and therefore under Article 131 the husbands also were liable for the rental and other obligations of the business under the lease. Also see Charles Lob’s Sons v. Karnofsky, 177 La. 229, 148 So. 34 (La.1933); and Wray Williams Display Co., etc. v. Finley, 391 So.2d 1253 (La.App. 1 Cir. 1980), writ refused, 396 So.2d 930 (La.1981).

As mentioned above, in the present case Elinore Huval’s wife entered into a lease agreement in order to operate a restaurant business. The plaintiff alleged that she failed to pay the rent when due and the insurance premium. On the basis of evidence admissible under the petition the trial court evidently determined that Mrs. Huval was a public merchant and that her husband was liable for the debts incurred in her business.

As this court stated in Landry v. Guillory, 344 So.2d 1138 (La.App. 3 Cir. 1977):

“To confirm a default judgment the plaintiff must establish a prima facie case proving his demand. LSA-C.C.P. art. 1702. The court minutes and the signed judgment indicate that such was done. “When having a default judgment confirmed, the plaintiff is not required to have the testimony reduced to writing or to have a note made of the evidence introduced, and on appeal, the defendant has the burden of overcoming the presumption that the judgment was rendered upon sufficient evidence and is correct. Francois v. Cloud, 149 So.2d 678 (La.App. 4 Cir. 1963); Baker Finance Co. v. Hines, 255 La. 971, 233 So.2d 902 (1970). Here, no transcript or note of the evidence is found in the record, and thus it is presumed that the judgment of the trial court was rendered upon sufficient evidence and is correct.”

There is no transcript of the testimony or a narrative of the facts in this record and we conclude the presumption that the judgment of the trial court was rendered correctly upon sufficient evidence has not been overcome by the appellant.

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

AFFIRMED.


author: DOMENGEAUX, Judge.

text:
    Donna GREEN, Plaintiff-Appellant, v. CITY OF ALEXANDRIA, et al., Defendants-Appellees.
    No. 8729.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1982.

      P. Spencer Torry, and Louis Berry, Alexandria, for plaintiff-appellant.
    Knight Doggett, Alexandria, for plaintiff-appellee.
    Gist, Methvin, Hughes & Munsterman, David A. Hughes, Alexandria, for defendant-appellee.
    Before DOMENGEAUX, FORET and LABORDE, JJ.
   DOMENGEAUX, Judge.

This case was consolidated for trial with that of Bobbie Norris Ashley v. City of Alexandria, et al, No. 8730, on the docket of this Court. The cases have remained consolidated on appeal, and, as the law and relevant facts are common to both, our opinion herein is equally applicable to each. Nevertheless, we render a separate judg Ashley v. City of Alexandria, et al, 413 So.2d 323 (La.App. 3rd Cir. 1982).

The appellants seek damages for injuries allegedly occasioned while riding a city bus owned and operated by defendant, City of Alexandria. Appellants allege in their petition that on or about September 18, 1979, they were paying passengers on Alexandria city bus number 95, driven by city bus employee Edward Carriker. They further allege that as the city bus approached the intersection of Texas Street and Monroe Street, which is controlled by a traffic signal, the bus driver, realizing that he could not safely make the light, slammed on his brakes. As a result, appellants contend that they were thrown backward and then forward in their seats, causing severe stomach and back injuries. The trial court held in favor of defendant rejecting all of appellants’ demands at their costs. We affirm.

It is fundamental law that a plaintiff must establish his case by a preponderance of evidence. Naquin v. Marquette Casualty Company, 244 La. 569, 153 So.2d 395 (1963).

The trial judge gave reasons for his judgment as follows:

“Without going into or reciting all of the facts of the case, try hard as it may, the court was unable to glean from the confusing and often contradictory evidence sufficient facts to warrant a finding that the city bus did not exercise the degree of care for the safety of passengers required by public carriers.
The plaintiffs simply did not sustain the burden of proof necessary for recovery. Therefore, the demands of all plaintiffs are rejected at their cost.
(See Johnson v. New Orleans Public Service, Inc., 293 So.2d 203 [La.App.]).”

Testimony of Orelier M. McClinton, Donna Green, Bobbie Norris Ashley, and Pamela Norris contains innumerable conflicts and inconsistencies. The record contains not only the trial testimony of these four individuals but also contains two depositions of Bobbie Norris Ashley, and the depositions of Donna Green and Orelier M. McClinton. By review of the testimony and depositions, it becomes apparent that the conflicts and discrepancies pertain to major and material aspects of appellants’ cases.

The most significant conflict involves the discrepancies relating to the location of the alleged accident. Appellants testify that the accident occurred while they and Orelier M. McClinton were on their way to K-Mart from downtown Alexandria to go shopping. Orelier M. McClinton, on the other hand, pled in her petition and stated in her deposition taken October 2,1980, that her injuries occurred as she was attempting to sit as the bus left K-Mart towards downtown when she and appellants were returning home from shopping. At trial Miss McClinton testified, after the appellants. She then claimed that she was hurt by the time she got to K-Mart, contrary to the allegations of her petition, and contrary to her October 2nd deposition.

Without going into details, we also find it particularly significant that Bobbie Norris Ashley and Pamela Norris changed their versions of the occurrences in question considerably from that which were given in their October 2, 1980 depositions to that which were given in their October 23, 1980 depositions. It is apparent either they were totally confused about the events which allegedly took place that day, or that they changed their story so not to totally conflict with the version previously given by Orelier M. McClinton in her October 2nd deposition.

Finally, although appellants testified with great finality about the buses taken by them that day and the drivers of those buses, their testimony was completely contradicted by the defendant. According to the defendant’s records, none of the buses allegedly taken by plaintiffs on the date of the accident were operating on said route. Furthermore, most of the drivers that appellants claimed drove them to and from the shopping center that day did not start working until some two or more hours after the alleged accident, and the records reflect that they were driving routes other than those taken by appellants.

Our law is well settled that where there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s determination, on review the appellate court should not disturb this finding unless it is clearly wrong or manifestly erroneous. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

It is evident that the trial judge was not impressed with the testimony of the plaintiffs. Our review of the record confirms this, consequently, we find no manifest error on the part of the trial judge, who found defendant free of any actionable negligence. Therefore the trial judge’s findings of fact in this case is affirmed.

For the above and foregoing reasons the judgment of the district court is affirmed. Appellate costs in these consolidated appeals are assessed one-half (Vz) to Donna Green, and one-half (V2) to Bobbie Norris Ashley.

AFFIRMED.

      . Bobbie Norris Ashley is plaintiff herein by suing on behalf of her minor child Pamela Norris.

      . Also made defendant in these cases is Alexander & Bolton Insurance Company, the insurer for defendant, City of Alexandria.

      . These cases were also consolidated for trial with civil suit number 112,686 of Rapides Parish, Louisiana, entitled Orelier M. McClinton v. The Home Insurance Co., which is not on appeal before this Court.

      . Ibid.


text:
    Bobbie Norris ASHLEY, Plaintiff-Appellant, v. CITY OF ALEXANDRIA, et al., Defendants-Appellees.
    No. 8730.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1982.

      P. Spencer Torry, and Louis Berry, Alexandria, for plaintiff-appellant.
    Knight Doggett, Alexandria, for plaintiff-appellee.^
    Gist, Methvin, Hughes & Munsterman, David A. Hughes, Alexandria, for defendant-appellee.
    Before DOMENGEAUX, FORET, and LABORDE, Judges.
   DOMENGEAUX, Judge.

For the reasons assigned in the case of Donna Green v. City of Alexandria, et al, 413 So.2d 321 (La.App. 3rd Cir. 1982), the judgment of the district court is affirmed. Appellate costs in these consolidated appeals are assessed one-half (V2) to Bobbie Norris Ashley, and one-half (V2) to Donna Green.

AFFIRMED.


author: DOUCET, Judge.

text:
    Eva Louise Toups WILLIAMS, Plaintiff-Appellant, v. Euda DELCAMBRE, et al., Defendant-Appellee.
    No. 8737.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1982.
    Patricia A. Thomas, Abbeville, for plaintiff-appellant.
    Domengeaux & Wright, Robert K. Tracy, Lafayette, for defendant-appellee.
    Before CULPEPPER, SWIFT, and DOU-CET, JJ.
   DOUCET, Judge.

Plaintiff alleges the defendant-sheriff’s indifference to her medical needs, while she was incarcerated, resulted in the spontaneous abortion of her child. From an adverse ruling, she appeals.

On Saturday, October 16, 1976, Eva Louise Toups Williams, plaintiff-appellant, was arrested by officers of the Vermilion Parish Sheriff’s Department on charges of theft and was subsequently booked and incarcerated in the parish jail. At the time of her arrest she was approximately three months pregnant. Prior to her arrest, October 4,1976, she had been hospitalized due to threatened loss of her child, however she was released shortly thereafter upon the condition she stay rested and return to her physician for frequent check-ups, one of which was scheduled for October 18, 1976.

Upon being booked plaintiff claims to have informed the deputy on duty, Gaylon Duhon, of her condition, however Duhon denied that she ever made a statement to this effect. She was then taken to a cell which she shared with another female prisoner who was soon to be released. According to the plaintiff the jail was cold and she was not issued a blanket.

The following day, October 17, 1976, plaintiff began experiencing abdominal pains which increased in severity throughout the next day. On the evening of October 18, 1976, Ms. Williams, alone in her cell, miscarried the child. When she cried out that she was having the child, the trustee, Melvin P. Plowden, related the message to the jailer on duty, Edward Mire, who in turn had an ambulance summoned, then went to Ms. Williams’ side to comfort her. Upon being taken to Abbeville General Hospital she was diagnosed as having spontaneously aborted the fetus.

Thereafter plaintiff instituted this action against the Vermilion Parish Sheriff, Euda Delcambre, individually and as Sheriff, jailer Edward Mire, the Vermilion Parish Police Jury , and defendants’ insurer, alleging that defendants’ failure to provide a cell suited for human habitation and denial of medical treatment resulted in the loss of her child by miscarriage. Additionally, plaintiff claimed she was not promptly released after charges had been dropped. The defendants denied that they had ever been informed of plaintiff’s pregnancy or the threats thereto. After trial on the merits, the trial judge granted judgment in favor of defendants and dismissed plaintiff’s demands.

On appeal, plaintiff assigns as error the trial court’s failure to recognize her cause of action under 42 U.S.C. § 1983, and in not awarding damages for violation of her civil rights under the Eighth Amendment to the United States Constitution and the 1974 Louisiana Constitution, Article I § 20.

Appellant contends that defendants’ denial of medical care constituted cruel and unusual punishment under the Eighth Amendment. In support thereof, she cites Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), rehearing denied 429 U.S. 1066, 97 S.Ct. 798, 50 L.Ed.2d 785 (1976) wherein it was stated:

“The amendment embodies broad and idealistic concepts of dignity, civilized standards, humanity and decency.... ’ (citation omitted) against which we must evaluate penal measures. Thus, we have held repugnant to the Eighth Amendment punishments which are incompatible with ‘the evolving standards of decency which mark the progress of a maturing society’, (citation omitted) or which ‘involve the unnecessary and wanton infliction of pain,’ (citation omitted)
These elementary principles establish the government’s obligation to provide medical care for those whom it is punishing by incarceration. An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met. In the worst cases, such a failure may actually produce physical ‘torture or a lingering death,’ (citation omitted) the evils of most immediate concern to the drafters of the Amendment. In less serious cases, denial of medical care may result in pain and suffering which no one suggests would serve any penological purpose.’ (citation omitted) The infliction of such unnecessary suffering is inconsistent with contemporary standards of decency as manifested in modern legislation codifying the common-law view that ‘it is but just that the public be required to care for the prisoner, who cannot by reason of the deprivation of his liberty, care for himself.’
We therefore conclude that deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain,’ (citations omitted) proscribed by the Eighth Amendment.”

The Eighth Amendment, and United States Supreme Court interpretations thereof, are, of course, applicable to the states. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972); State v. Stetson, 317 So.2d 172 (La.1975).

That plaintiff has stated a valid claim is beyond doubt. Deliberate indifference to serious medical needs of a prisoner, constitutes cruel and unusual punishment in violation of the Eighth Amendment and serves no penological purpose whatsoever. And it is undisputed that plaintiff suffered considerable pain, suffering, torment and agony in losing her child. Having elected to carry the child through term she was entitled to medical assistance in furtherance of her maternal goal. What is doubtful, however, is whether plaintiff established her claim.

The standard of appellate review in cases such as the present was set forth in Canter v. Koehring, 283 So.2d 716 (La.1973) as follows:

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

One of the few disinterested witnesses to testify was the trustee on duty, Melvin P. Plowden, who testified that plaintiff had told him of her pregnancy and doctor’s appointment, and although not requested, he related same to the jailer, Mire.

The record shows that the Sheriff had delegated his responsibilities to Plow-den. The agent’s breach thereof would render the Sheriff liable.. Slack v. Bishop, 444 F.Supp. 1161 (E.D.La.1973). However, the record before us is inconclusive as to any breach on the part of trustee Plowden, whose testimony was contradicted by that of jailer Mire. Mire testified that he was unaware of plaintiff’s condition until immediately prior to the miscarriage whereupon Plowden related plaintiff’s statement that she was losing her baby.

The record reveals testimony of numerous witnesses who stated they had not been informed of plaintiff’s pregnancy. John Barras, a deputy on duty on October 18, 1976 testified that plaintiff never called out to him for help or told him she was pregnant, nor did she request a doctor. Even Ms. Williams’ friend, Mr. Eddie Levine, who visited her at jail stated he was not aware of her pregnancy until she allegedly informed the jailer of same while being booked. The Sheriff testified that it was their policy not to incarcerate a pregnant woman, however plaintiff did not inform him of her condition, and due to her obesity, it was not apparent. Furthermore, none of Ms. Williams’ visitors requested assistance on her behalf. Indeed the record shows that she asked Mr. Levine to bring cigarettes — not blankets or medical aid.

In light of all of the evidence, we cannot say the result reached by the trial court was clearly wrong; therefore, consistent with Cantor, we affirm.

Admittedly, a different result might obtain had plaintiff’s incarceration, and therefore her liberty to obtain medical treatment, been unlawful, however there is no evidence that such was the case.

For the reasons assigned, the judgment of the district court is affirmed at appellant’s cost.

AFFIRMED.

      The police Jury was subsequently released.


text:
    George LLOYD, et al., Plaintiffs-Appellees, v. HUNT EXPLORATION, INC., Defendant-Appellant.
    No. 8744.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1982.
    Charles Seaman, Natchitoches, for defendant-appellant.
    Whitehead & McCoy, Charles R. Whitehead, Jr., Natchitoches, for plaintiffs-appel-lees.
    Before DOMENGEAUX, FORET, and LABORDE, JJ.
   DOMENGEAUX, Judge.

This is an appeal by defendant Hunt Exploration, Inc., from a default judgment taken against it in the Tenth Judicial District Court, Natchitoches Parish, Louisiana.

The plaintiffs-appellees, George Lloyd and his four major children, Alvin Lloyd, Willie Berry, Mary Gates, and Nancy Henry, sued for property damage resulting from defendant’s illegal trespass upon their land. Plaintiffs’ action was filed on July 15, 1981, and service was made on defendant’s designated agent for service of process, C. T. Corporation in New Orleans, on July 21, 1981. There being no answer or other responsive pleadings filed, a preliminary default was entered August 6, 1981. On August 11, 1981, the trial court confirmed the preliminary default and rendered judgment against the defendant for the total prayed for sum of Eight Thousand and no/100 ($8,000.00) Dollars. Defendant’s application for a new trial was denied. The defendant now appeals and suggests that the evidence offered and received by the trial court in the confirmation of the preliminary default failed to establish a pri-ma facie case as required by La.C.C.P. Arti-ele 1702, and therefore, the trial court erred in granting judgment in plaintiffs’ favor.

The evidence produced at the default judgment hearing reveals that the defendant’s seismographic crew went upon the property of the plaintiffs’ in Natchitoches Parish during the week of August 29, 1980, and occupied plaintiffs’ property for approximately one week while conducting seismic operations. The record also reflects that the defendant, without plaintiffs’ permission, drew water from a pond and detonated dynamite charges on plaintiffs’ property. Additionally, defendant tore down a fence on the property belonging to the plaintiffs, allowing plaintiffs’ livestock to escape, which were subsequently recovered. After the dynamite charges were exploded, plaintiffs noticed that one of their small stock ponds no longer holds water.

The only other evidence produced at trial to confirm the preliminary default was the testimony of J. E. Pierson. Mr. Pierson testified that he is familiar with the going rate for oil and gas leases on a per acre basis in the area. According to Mr. Pierson, the current rate for oil and gas leases runs about $100.00 per acre plus one-sixth (Ve) royalty interest. Mr. Pierson, however, did not express any opinion, one way or another, as to the amount of damage, if any, to plaintiffs’ land.

As aforementioned, after hearing the evidence the trial judge awarded plaintiffs the Eight Thousand and no/100 ($8,000.00) Dollars prayed for in their petition. Defendant moved for a new trial which was subsequently denied by the trial judge.

The motion for a new trial should have been granted because there was insufficient evidence to sustain the default judgment. Under La.C.C.P. Article 1702, “A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case.” Plaintiff assumes the burden of proving the essential allegations in his petition as fully as if they had been specifically denied. He must make his claim certain; to make it probable is not enough. Jones v. Ledet, 383 So.2d 1308 (La.App. 3rd Cir. 1980); Smith v. Doyle, 160 So.2d 791 (La.App. 3rd Cir. 1964).

There is evidence in the record to support the plaintiffs’ contention that defendant is liable to them under our law. However, the amount of damages was not established by any of the evidence produced at trial. No evidence was offered in an effort to establish the actual damages sustained by the plaintiff resulting from the trespass upon their land. As such, the evidence is insufficient to establish a prima facie case for a default judgment.

For the above and foregoing reasons the default judgment is reversed and annulled, and the case is remanded to the district court for proceedings consistent with this opinion. Costs of this appeal are assessed to plaintiffs; assessment of all other costs is to await final disposition of the case.

REVERSED AND REMANDED.

      . La.C.C. Art. 667; Schexneider v. United Geophysical Corp., 385 So.2d 533 (La.App. 3rd Cir. 1980); Roshong v. Travelers Insurance Company, 281 So.2d 785 (La.App. 3rd Cir. 1973).


author: CUTRER, Judge.

text:
    Gilbert J. GUILLORY, Plaintiff-Appellee, v. Joseph W. FONTENOT, Defendant-Appellant.
    No. 8747.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1982.

      Rozas, Manuel, Fontenot & McGee, Daniel J. McGee, Mamou, for defendant-appellant.
    Dan E. Melichar, Alexandria, for defendant-appellee.
    Charles F. Wagner, Pineville, Gold, Little, Simon, Weems & Bruser, F. A. Little, Jr., Alexandria, for plaintiff-appellee.
    Before GUIDRY, CUTRER and STOKER, JJ.
   CUTRER, Judge.

This appeal arises from the issuance of a permanent injunction by the trial court enjoining the sheriff from issuing or signing a sheriff’s deed or proces verbal in connection with property adjudicated by executory process.

The facts presented in this case are:

Gilbert Guillory was the owner of a certain 5.2 acre tract of land in Rapides Parish, Louisiana, known as Monroe’s Motel & Truck Stop. This property was sold by Gilbert to his brother, Carl Wayne Guillory, who, on June 5, 1973, executed an act of mortgage on the property in the amount of $60,000.00 in Gilbert’s favor. This mortgage secured a demand note in the same amount made payable to bearer which was also given to Gilbert.

During the intervening years, Carl could not pay the mortgage on the property; he was barely able to service the interest accruing on the debt. Carl then decided to sell the property to defendant, Joseph Wayne Fontenot. Fontenot assumed the debt owed by Carl to Gilbert. However, Gilbert, knowing of his brother’s inability to pay, novated the debt owed by him and placed Fontenot as the sole mortgagor responsible for payment of the debt. This sale and assumption by Fontenot occurred on March 3, 1978. The novation executed by the parties was confected and included within that instrument.

On September 28,1978, Fontenot, by cash sale and assumption of mortgage, sold two tracts of land, one of which was the one he purchased from Carl Guillory, to Texas Crude Production, Ltd. (Texas Crude), a partnership consisting of Francis B. “Chris” Freeman, Jr., David W. Beck and David H. McMullen. Freeman represented the partnership. Texas Crude assumed the mortgage held by Gilbert Guillory which at that time amounted to $67,500.00 in principal and $506.25 in interest.

On February 12, 1979, Texas Crude sold the tract in dispute to Jean way Investment Corporation (Jeanway), which was also represented by Freeman. The purchase price included the mortgage which Texas Crude had assumed from Fontenot.

Freeman failed to pay on the mortgage. Gilbert Guillory, in need of money, cosigned a loan at the Guaranty Bank of Mamou on Freeman’s behalf in the sum of $66,000.00 which they agreed would pay off the mortgage on the property. Gilbert pledged the mortgage he held on the property as security on the loan. The loan was perfected on June 15, 1979, with payment due September 15, 1979. The due date came and the loan remained unpaid. Gilbert contacted his attorney who contacted Freeman. Freeman extended the loan for thirty days by paying the accrued interest and attorney’s fees. Upon expiration of the extension, Gilbert foreclosed upon the mortgage by executory process. He filed suit against his primary mortgagor, Fontenot; a writ of seizure and sale issued and the property was subsequently adjudicated to Fontenot.

Before the sheriff filed the deed or proc-es verbal recognizing the sale of the property to Fontenot, Jeanway filed suit to have the adjudication set aside and declared null and void. This suit has been held in abeyance pending the resolution of the subsequently filed petition for injunctive relief.

On April 14, 1980, Jean way filed suit for a temporary restraining order, a preliminary injunction and also a permanent injunction prohibiting the sheriff from issuing a deed or proces verbal in the March 26, 1980 sale. The temporary restraining order was extended until a hearing on the preliminary injunction could be had. The hearing was first had in part on April 28, 1980 and concluded on March 16, 1981. An oral judgment was handed down on April 24, 1981, and signed May 6, 1981, which granted the preliminary injunction. On August 14,1981, the parties agreed that the testimony adduced on the hearing for the preliminary injunction would be sufficient for a ruling on the permanent injunction. The court adopted its reasons and ruling in the preliminary injunction, thus granting the permanent injunction. A judgment to that effect was signed August 17, 1981. Fontenot appealed.

Jeanway alleges numerous substantive defects which it claims renders the executo-ry process null and void. The existence of substantive defects in the executory proceedings, however, is not at issue on appeal. This was agreed to by counsel upon oral argument.

The issue on appeal is whether Jeanway is entitled to maintain this action to enjoin the sheriff from executing the deed or filing a proces verbal in connection with the property adjudicated to Fontenot by virtue of the executory proceedings.

The general rule governing defenses and procedural objections to an executory process are set forth in LSA-C.C.P. art. 2642 providing that such defenses or objections can only be asserted: (1) through an injunction to arrest the seizure and sale; or (2) by a suspensive appeal from the order directing the issuance of a writ of seizure and sale, or both.

By jurisprudential rule, however, an exception to the general rule of LSA-C.C.P. art. 2642 has been developed. In the case of Reed v. Meaux, 292 So.2d 557 (La.1974), the Supreme Court held that a sale through executory process can be attacked by means of a direct action, filed after the sale had been recorded by the sheriff, solely on the ground that there were substantive defects in the proceedings which strike at the foundation of the executory proceeding, provided that the property was adjudicated to and remains in the hands of the foreclosing creditor.

Subsequent to Reed, supra, LSA-R.S. 13:4112 was enacted. The pertinent part of the statute provides as follows:

“No action may be instituted to set aside or annul the judicial sale of immovable property by executory process by reason of any objection to form or procedure in the executory proceedings, or by reason of the lack of authentic evidence to support the order and seizure, where the sheriff executing the foreclosure has either filed the proces verbal of the sale or filed the sale for recordation in the conveyance records of the parish. ..

Counsel for Fontenot cites Reed, supra, contending that Jeanway cannot maintain the suit for injunctive relief since Fontenot was not the foreclosing creditor. Fontenot contends that the rule of Reed, supra, applies and that it is not affected by R.S. 13:4112. We disagree. We conclude that R.S. 13:4112 specifically authorizes the in-junctive procedure herein.

In Reed, supra, the suit was filed after the proces verbal and sale had been recorded. In the case at hand, the suit for injunc-tive relief was filed after the property was adjudicated to Fontenot by virtue of the executory proceedings, but before the sheriff had filed the proces verbal of the sale or had filed the sale to Fontenot in the conveyance records. Such a procedure is clearly authorized by R.S. 13:4112.

This statute prohibits an attack upon the validity of a judicial sale by executory process after the recordation of the proces verbal of the sale or the recordation of the sale by the sheriff. The statute does not limit the attack to those instances where the property is adjudicated to the foreclosing creditor. It follows, therefore, that an attack on the validity of the sale by executory process can be made under the statute even though the adjudication was not made to a foreclosing creditor, provided that such attack is made prior to the recordation of the proces verbal or the recordation of the sale. This suit, having been filed before the rec-ordation of the proces verbal or the recordation of the sale to Fontenot, is authorized by LSA-R.S. 13:4112.

There being no dispute that substantive defects existed in the executory process, the trial court properly rendered judgment granting the permanent injunction.

For these reasons, the judgment of the trial court shall be affirmed. The costs of this appeal are assessed to appellant, Joseph W. Fontenot.

AFFIRMED.

      . The suit for injunctive relief was filed in the suit for executory process and, thus, the titles and numbers of the two suits are the same.


text:
    Baxter THOMPSON, Plaintiff & Appellee, v. BUSINESS INSURANCE LIFE OF AMERICA, Defendant & Appellant.
    No. 8750.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1982.

      Conner, Martinez & Miles, Joseph P. Williams, Jr., Metairie, for defendant & appellant.
    Kennedy & Yeager, Ralph W. Kennedy, Alexandria, for plaintiff & appellee.
    Before CULPEPPER, SWIFT and DOU-CET, JJ.
   CULPEPPER, Judge.

Baxter Thompson sued Business Insurance Life of America for benefits under a hospitalization insurance policy. The benefits sought are for certain doctor and hospital bills incurred as a result of the injury and illness of Thompson’s infant daughter. During the pendency of the suit, plaintiff’s father, M. C. Thompson, was appointed legal tutor of the minor child. The grandfather was subsequently substituted as proper party plaintiff in the instant suit. From a judgment in favor of plaintiff, defendant has appealed.

The issues are: (1) Did the application for insurance misrepresent that the child was in good health, where she had a cast on a broken arm at the time? (2) Is coverage excluded by prior illness or injury (battered child syndrome) of the child? (3) Are penalties and attorney’s fees due under LSA-R.S. 22:657 or 22:658?

FACTS

On April 10,1979, plaintiff, M. C. Thompson, applied to defendant for a single family hospitalization insurance policy on behalf of his son, Baxter Thompson, his daughter-in-law, and his infant granddaughter, because his son was a full-time student at NSU. Baxter and his family had formerly been insured through an employer’s group insurance policy, but he had quit his job in order to attend school full time. Thus, the need for the subject policy procured by his father.

Mr. Thompson, who was vice-president of an insurance agency in Alexandria, procured the application through an agent employed by his firm and completed it in the presence of the agent, with the exception of questions regarding his daughter-in-law’s vital statistics and the signatures of the applicant and spouse. In answer to the question “Are you and all other family members now in good health and without physical or mental defects or deformities?”, Mr. Thompson responded “Yes.” Upon completion and signing of the application by the son and daughter-in-law, it was mailed to defendant along with a premium payment, and the policy was issued April 27, 1979.

Plaintiff’s infant granddaughter, Jennifer Lynn, was born February 19, 1979. On March 22, 1979, she was treated by Dr. Charles Cook for a fractured humerus. Her arm was placed in a cast, which was removed April 11,1979, the day after completion of the application in question. On May 8, 1979, subsequent to the issuance of the policy, Jennifer was admitted to Rapides General Hospital in Alexandria for treatment of further injuries, apparently due to child abuse. She was treated by Dr. John Patton, a neurosurgeon, and by Dr. Paul Davis, orthopedic surgeon, during this time and released on May 22, 1979.

The claims forms for these medical expenses were completed and submitted to defendant’s service office in Monroe on July 10, 1979. The defendant advised by letter dated September 28, 1979 that it denied coverage, and it returned the premium payments already made. The reason given for denial was that Jennifer’s state of health had been misrepresented on the application form, as she was being treated for the March injury when the application was submitted.

MISREPRESENTATIONS IN APPLICATION

Defendant-appellant argues the plaintiff materially misrepresented the state of Jennifer’s health on the application, since he knew at the time that she had recently sustained a fractured humerus at the age of two months and was still wearing a east for it. Plaintiff admitted at trial that he was aware of this. The defendant contends that this fact and the testimony of Dr. Wilhelmina Wise, the baby’s pediatrician, proved that Jennifer suffered from a condition known as “battered child syndrome”, and that she was therefore not “in good health and without physical or mental defects or deformities,” as represented by the plaintiff. The insurer relies on the provisions of LSA-R.S. 22:619 (B) as the basis for denying plaintiff’s right to recovery.

“B. In any application for life or health and accident insurance made in writing by the insured, all statements therein made by the insured shall, in the absence of fraud, be deemed representations and not warranties. The falsity of any such statement shall not bar the right to recovery under the contract unless such false statement was made with actual intent to deceive or unless it materially affected either the acceptance of the risk or the hazard assumed by the insurer.”

In Estate of Borer v. Louisiana Health Service & Indemnity Company, 398 So.2d 1124 (La.1981), our Supreme Court construed this statute:

“False statements by the insured in the application for insurance vitiate the contract if they were made with the actual intent to deceive, or if such statements ‘materially affected either the acceptance of risk or the hazard assumed by the insurer.’ ”

Thus, the insurer’s burden is to prove the falsity of the statements, and an intent to deceive or the materiality of the misstatement upon the insurer’s decision to assume the risk or hazard. Ryan v. Security Industrial Insurance Company, 386 So.2d 939 (La.App. 3rd Cir. 1980); Martin v. Security Industrial Insurance Company, 367 So.2d 420 (La.App. 2d Cir. 1979), writ refused 369 So.2d 1364 (La.1979).

We find, from the record before us, that the defendant-appellant has failed to meet this burden. The baby’s pediatrician, Dr. Wise, testified that during a check-up on April 10, she noted that the child, in addition to the previously treated fracture of the humerus, had minute bruises on the forearms and petechiae (tiny bloodblisters) on the eyelids (these are indicative of crying or vomiting a lot). The child was scheduled to have the cast removed the next day, and was otherwise apparently healthy, showing normal weight gain and seemingly receiving good care. Thus, defendant has failed to show that the baby was other than in good health on the date of the application, and it can hardly be said that a fracture, which was presumably healed by that time, constitutes a defect or deformity, considering that the cast was to be removed the next day.

Furthermore, even assuming the falsity of the statement, defendant failed to show intent to deceive or the materiality of the misstatement. The evidence shows that Dr. Wise, of all those treating and caring for the baby, was the only one who suspected anything amiss within the family unit. She also testified that she had very little evidence on which to base her suspicion. It was mostly a matter of intuition and experience with children and their abuse. Neither of the physicians who treated the baby’s broken arm had any suspicion of child abuse.

We recognize that strict proof of fraud is not required, and that intent to deceive is to be determined from the attending circumstances indicating knowledge of the falsity and recognition of the materiality of the false statement, or from circumstances which create a reasonable assumption that the materiality of the misrepresentation was recognized. Topps v. Universal Life Insurance Company, 396 So.2d 394 (La.App. 1st Cir. 1981); Watson v. Life Insurance Company of Louisiana, 335 So.2d 518 (La.App. 1st Cir. 1976).

Nevertheless, this record is devoid of any proof that the plaintiff detected, or may be assumed to have detected, anything untoward about his granddaughter’s over-all state of health. Nor has any evidence been adduced to show the materiality of the claimed misstatement, i.e., that had a truthful answer been given (that the child had sustained a broken arm which was almost healed by that time), the insurer would not have contracted or would have contracted only at a higher premium. LSA-C.C. Article 1847(2); Martin v. Security Industrial Insurance Company, supra.

Therefore, we find no clear error in the trial judge’s finding that there was no material misrepresentation sufficient to preclude coverage.

We move to a consideration of the defendant’s contention that the medical expenses claimed by the plaintiff are not covered by the policy because they are the result of a condition pre-existing the policy, the expenses arising therefrom being excluded from coverage by a clause in the policy. It claims the testimony of Dr. Wise shows the baby was suffering from “battered child syndrome,” a term apparently used by those with interest of the health and welfare of children, presumably to describe the collective problems and injuries of victims of child abuse. This is the condition — battered child syndrome — which the defendant argues existed prior to the effective date of the policy which resulted in the injury for which the instant medical expenses were incurred.

The “Pre-existing Conditions Limitations for Insured and Dependents” reads as follows:

“Limitations and Exclusions — This policy does not cover expenses in connection with any illness or injury sustained by a person, either an employee or an employee’s dependent, which is contracted or first manifests itself prior to insurance becoming effective under this policy.”

We are of the opinion that, under these particular facts and circumstances, battered child syndrome may not be characterized as a condition of the child in the context of an illness or injury sustained by an insured which was contracted or first manifested itself before the effective date of the policy. First, these injuries or illnesses were not caused by a condition of the child herself, but stem from a problem or condition of one or both parents. Furthermore, the fact is that the actual injuries from which the subject medical expenses arose were not contracted and did not manifest themselves until after the effective date of the policy. We therefore affirm the district court’s holding that the expenses being claimed for treatment for Jennifer’s injuries were not excluded by the prior illness or injury clause.

PENALTIES AND ATTORNEY’S FEES

The trial court assessed penalties and attorney’s fees against the defendant pursuant to LSA-R.S. 22:657(A) which provides:

“§ 657. Payments of claims; health and accident policies; penalties
A. All claims arising under the terms of health and accident contracts issued in this state, except as provided in Subsection B, shall be paid not more than thirty days from the date upon which written notice and proof of claim, in the form required by the terms of the policy, are furnished to the insurer unless just and reasonable grounds, such as would put a reasonable and prudent business man on his guard, exist. The insurer shall make payment at least every thirty days to the assured during that part of the period of his disability covered by the policy or contract of insurance during which the insured is entitled to such payments. Failure to comply with the provisions of this Section shall subject the insurer to a penalty payable to the insured of double the amount of the health and accident benefits due under the terms of the policy or contract during the period of delay, together with attorney’s fees to be determined by the court. The district court of the parish where the insured lives or has his domicile shall have jurisdiction to try such cases.”

It is the defendant’s contention that hospitalization policies, such as the one in this case, are not health and accident policies within the meaning of this statute, and therefore penalties should be assessed here only under LSA-R.S. 22:658, which applies to all policies other than those covered by LSA-R.S. 22:657.

The latest expression of the Louisiana Supreme Court with respect to the characterization of insurance contracts providing coverage solely for hospitalization and medical expenses is found in Rudloff v. Louisiana Health Services & Indemnity Company, 385 So.2d 767 (La.1980) wherein the court, on rehearing, specifically overruled its own holding in Tabb v. Louisiana Health Services & Indemnity Company, 361 So.2d 862 (La.1978). Tabb had held that hospitalization policies did not fall within the statutory definition of health and accident policies as defined in LSA-R.S. 22:657, and thus were to be classified as miscellaneous. In overruling that particular holding of Tabb, the court reasoned in Rudloff:

“In Tabb, a policy which provided benefits for hospital and medical care, was held not to be a health and accident policy because it did not insure against injury, disablement or death. However, under the statute “health and accident insurance” also encompasses “insurance against bodily injury ... and against disablement resulting from sickness and every insurance appertaining thereto.” The United States Supreme Court has held that health insurance is “an undertaking by one person for reasons satisfactory to him to indemnify another for losses caused by illness.” Haynes v. United States, 353 U.S. 81, 83, 77 S.Ct. 649, 650, 1 L.Ed.2d 671, 673 (1957). This policy which provides benefits for hospital and medical care, was intended to indemnify plaintiff for those expenses occasioned by her “sickness” and is therefore a health insurance policy. See Meyer, Life and Health Insurance Law, 19:3, p. 614 (1972). Since hospitalization policies are included within the definition of health and accident policies in Louisiana law, Blue Cross was required by LSA-R.S. 22:213.2 to offer coverage for mental disorders to its policyholders. To the extent that it conflicts with this holding, Tabb v. La. Health Services & Indem. Co., 361 So.2d 862 (La., 1978) is overruled.”

Defendant argues that the characterization in Rudloff should be limited to the Supreme Court’s determination that LSA-R.S. 22:213.2 is applicable to such policies, and suggests that the term “health and accident” takes on a different meaning in the context of the penalty provisions of R.S. 22:657 than the one ascribed to it in Rudloff. The cases cited by the defendant as the better reasoned decisions all simply followed the Tabb rule and were rendered before Rudloff. The court’s language in Rudloff was unequivocal when it stated that the definition of health and accident policies under Louisiana, law include hospitalization policies. Inasmuch as R.S. 22:657 is applicable to “all claims arising under the terms of health and accident contracts issued in this state,” we find, as we did in Lucito v. Louisiana Hospital Services, Inc., 392 So.2d 700 (La.App. 3rd Cir. 1980), that it is applicable to the claim in the instant suit.

This brings us to the defendant’s final contention: that the trial court erred in holding the defendant was unreasonable in its refusal to pay the claim. Clearly, the insurer is entitled to refuse payment if it has just and reasonable grounds, sufficient to put a reasonable prudent businessman on his guard. Whether or not the insurer’s reasons for refusal are just and reasonable grounds is a question of fact, to be determined from the individual facts and circumstances of each case. Lucito v. Louisiana Hospital Services, Inc., supra; Poche v. Louisiana Health Services & Indemnity Company, 391 So.2d 17 (La.App. 3rd Cir. 1980), writ denied 396 So.2d 885 (La. 1981).

We find that the trial court was not clearly wrong in finding the defendant unreasonable in its denial of the claim. The mere showing that Jennifer received an injury in March, and was in the last stages of routine treatment therefor when the application was submitted, does not alone constitute just and reasonable grounds to assume that the baby was not in good health and free of physical deformities. The trial court therefore acted properly in its assessment of penalties and attorney’s fees pursuant to LSA-R.S. 22:657.

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

AFFIRMED.