text:
    Louis F. DiGIOVANNI, Appellant, v. Charles YOUNGBLOOD, Jeanette Youngblood, and Seraphin J. Manfredonia, Appellees.
    No. 81-2081.
    District Court of Appeal of Florida, Fourth District.
    Nov. 24, 1982.
    Richard A. Kupfer of Cone, Wagner, Nu-gent, Johnson, Hazouri & Roth, West Palm Beach, for appellant.
    David L. Gorman of Gorman & Horvath, North Palm Beach, for Appellee — Seraphin J. Manfredonia.
   PER CURIAM.

The record on appeal conclusively indicates that the appellee/defendant Manfre-donia failed to sustain his burden in the trial court by demonstrating a complete absence of genuine issues of material fact. Consequently, the summary judgment entered in this cause is reversed. See Unijax, Inc. v. Factory Insurance Association, 328 So.2d 448 (Fla. 1st DCA), cert. denied, 341 So.2d 1086 (Fla.1976).

REVERSED and REMANDED.

HURLEY and BERANEK, JJ., and GEIGER, DWIGHT L., Associate Judge, concur.


source: Caselaw Access Project

author: BLANCHE, Justice

license: Public Domain

text:
    UNITED GAS PIPE LINE COMPANY v. Charles S. BECNEL, et al. (Consolidated Cases).
    No. 82-C-2345.
    Supreme Court of Louisiana.
    Nov. 5, 1982.
    Dissenting Opinion Nov. 17, 1982.
   In re: United Gas Pipe Line Company, applying For Certiorari, or Writ of Review, to the Court of Appeal, Fifth Circuit, No. 5-16, consolidated with Nos. 5-17 through 5-21, St. James Parish, 417 So.2d 1198.

Denied. The result is correct.

DENNIS and BLANCHE, JJ., would grant the writ.

BLANCHE, J., dissents and assigns reasons.

BLANCHE, Justice

(dissenting from the denial of writs).

The defendants called only one witness as to the value of the servitude sought by United Gas and as to the potential damages caused to the subject tracts by the taking. This witness sought to assign a high value to the properties under the technique of “assemblage” by constructing a large industrial tract out of properties which were no more than rural or residential. To accept this witness’ testimony at face value would be unrealistic for the following reasons:

The proposed pipeline would cross 33 separate tracts owned by a total of 258 individuals. These tracts vary in width and length from as little as one-fourth arpent to more than 45 arpents. United Gas had obtained 27 of these 33 tracts by conventional agreement, but could not acquire the necessary rights across the six tracts involved in this litigation. Considered individually, none of the tracts could even remotely be considered for development as industrial property. Considering the magnitude of the effort it would take and the large number of individual agreements required to accomplish this “assemblage,” this testimony is simply too speculative to support a determination that the highest and best use of the properties is industrial. Under the facts of this case, the doctrine of “assemblage” is too impracticable to be applied.

For these reasons, I respectfully dissent from the failure to grant the writ.


author: LEMMON, Justice,

text:
    William D. OLIVER, Sr. v. Meridel Vincent OLIVER.
    No. 82-C-2420.
    Supreme Court of Louisiana.
    Nov. 12, 1982.
   In Re: Meridel Vincent Oliver, applying for Certiorari, or writ of review, to the Court of Appeal First Circuit Number 14,974, East Baton Rouge Parish.

Denied. 417 So.2d 1278.

DIXON, C.J., and CALOGERO and WATSON, JJ., would grant the writ.

LEMMON, Justice,

concurring in the denial.

The decision in Frederic v. Frederic, 302 So.2d 903 (La.1974) is not controlling and the Court of Appeal judgment awarding alimony marks the beginning date for payment of alimony. Nevertheless, substantial justice was done in this case.


author: BLANCHE, J.,

text:
    Larry FONTENOT v. CAGLE CHEVROLET, INC., and Great American Insurance Company.
    No. 82-C-2445.
    Supreme Court of Louisiana.
    Nov. 12, 1982.
   Re: Cagle Chevrolet, Inc., applying for Writ of Certiorari and or Review, Third Circuit Court of Appeal, No. 82109, Calca-sieu Parish.

Denied.

DENNIS, J., would grant the writ.

BLANCHE, J.,

would grant the writ, 417 So.2d 1338 because plaintiff was not injured in the course and scope of his employment with Cagle Chevrolet Inc. He was injured while working on a farm personally owned by Cagle Chevrolet management personnel.


text:
    Larry FONTENOT v. CAGLE CHEVROLET, INC., & Great American Insurance Company.
    No. 82-C-2463.
    Supreme Court of Louisiana.
    Nov. 12, 1982.
   In Re: Cagle Chevrolet, Inc., and Great American Insurance Company, applying for Certiorari or Writ of Review to the Court of Appeal Third Circuit, Number 82-109; the 14th Judicial District Court, Parish of Cal-casieu, Number 81-2513.

Denied.

DENNIS, J., would grant the writ.

BLANCHE, J.,

would grant the writ, 417 So.2d 1338, for the reasons assigned on 82-C-2445.


author: DENNIS, J.,

text:
    Ken SMILEY v. Kitty ADEN.
    No. 82-C-2523.
    Supreme Court of Louisiana.
    Nov. 19, 1982.
   In re: Ken Smiley, applying for Writs of Certiorari, Prohibition and Mandamus, the Court of Appeal, First Circuit, Parish of Baton Rouge, Number 82-CW-0735, 19th Judicial District Court, Parish of East Baton Rouge, Division “D” Number 251,532.

Granted. Judgment of the court of appeal is reversed and the judgment of the district court is reinstated.

DIXON, C.J., and CALOGERO, J., would .grant this writ and docket for argument.

DENNIS, J.,

would grant the writ, but is of the opinion that the court of appeal’s opinion and judgment should not be reversed on the basis of an ex parte application without affording both parties an equal opportunity to present written or oral arguments.


text:
    YELLOW RIBBON v. LOUISIANA HERITAGE CONSTRUCTION CO., INC., Frederick Kroenke, Jr., and Adolph M. Berger.
    No. 82-C-2529.
    Supreme Court of Louisiana.
    Nov. 19, 1982.
   In re: Louisiana Heritage Construction Co., Inc., et al., applying for Writ of Certio-rari or Review to the Court of Appeal First Circuit, No. 82CA0511; Parish of East Baton Rouge, Nineteenth Judicial District Court, No. 248,822.

Granted. Appeal reinstated. See CCP 561 and 2162 before amendments became effective September 10, 1982.

DIXON, C.J., is of the opinion an appeal cannot be dismissed unless there is sufficient evidence to conclude that the appeal has been abandoned.


text:
    Davy Keith SMITH, et al., v. OCHSNER FOUNDATION HOSPITAL, et al.
    No. 82-C-2503.
    Supreme Court of Louisiana.
    Nov. 19, 1982.
   In re: Ochsner Foundation Hospital, et al., applying for Certiorari, to the 24th Judicial District Court, Number 231-058; Fifth Circuit Court of Appeal, Number 82-C-96.

Denied.

Construing the ruling of the court of appeal as exercising its supervisory jurisdiction and denying the writ application, DIXON, C.J., and CALOGERO and BLANCHE, JJ., concur in the denial.


author: CALOGERO, J.,

text:
    STATE of Louisiana v. Keith DILLON and Kevin Dillon. STATE of Louisiana v. Kevin DILLON.
    No. 82-K-2583.
    Supreme Court of Louisiana.
    Nov. 19, 1982.
   Re: Keith Dillon and Kevin Dillon, applying for Writ of Certiorari and Review to the Fourth Circuit Court of Appeal, 419 So.2d 46; Criminal District Court, Parish of Orleans, Nos. 289-297 c/w 289-251.

Denied.

CALOGERO, J.,

would grant for two reasons. The legal issue here is very close. Furthermore relator was not advised that the Court of Appeal was contemplating a summary reversal of his favorable trial court ruling, without relator’s having an opportunity to brief and orally argue the case.


author: GUIDRY, Judge.

text:
    Paul G. SMITH et al., Plaintiffs-Appellees, v. W.A. MONCRIEF, et al., Defendants-Appellants.
    No. 82-156.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.
    Rehearing Denied Dec. 2, 1982.
    Writ Denied Feb. 4,1983.
    Seago, Patrick & Carmichael, John E. Seago, Baton Rouge, for defendants-appellants.
    Michael J. Johnson, Cottonport, for plaintiffs-appellees.
    Before CULPEPPER, GUIDRY and LA-BORDE, JJ.
   GUIDRY, Judge.

In this suit plaintiffs, David Allen Du-cote, Sr., (hereafter Ducote) and Paul G. Smith (hereafter Smith) seek to recover from defendants, Richard H. Friedberg, W.A. Moncrief, Sr., Elizabeth Moncrief, W.A. Moncrief, Jr., and Deborah Moncrief (hereafter Friedberg-Moncrief), the sum of $45,870.30, which sum is allegedly due plaintiffs under certain contractual stipulations set forth in acts of sale by Friedberg-Mon-crief to Ducote and Smith. Following institution of suit, L.J. Bonial Jr., Glenn Ducote and Raymond Plauche were joined as parties plaintiff.

FACTS

By deed dated May 13, 1977, Richard H. Friedberg, W.A. Moncrief, Sr., Elizabeth Moncrief, W.A. Moncrief, Jr., and Deborah Moncrief acquired from Roy 0. Martin Lumber Company, Inc. several large tracts of land situated in the Parishes of Avoyelles and St. Landry, Louisiana. In the act of transfer, Roy 0. Martin Lumber Company, Inc. (hereafter Martin) reserved unto itself all growing timber and timber products located on the said property together with the right to remove such timber and timber products during a time specified in an agreement styled “Cutting Period Agreement” simultaneously executed by the parties. The agreement between Friedberg-Moncrief and Martin, insofar as this litigation is concerned, provides in pertinent part as follows:

“H. Martin and Martin Industries agree that as the cutting and removal operation of timber and timber products from the property shown on Exhibit A are completed, that such lands as to which cutting and removal operations are completed, shall be released from the timber reservation and removal provisions hereof (except those relating to or affecting access or ingress and egress to other Exhibit A property). Upon the commencement of clearing or preparation for cultivation of the said lands upon which cutting and removal are complete, Fried-berg-Moncrief shall designate the location for exercise of rights of ingress and egress across the said lands, and except for such designated rights of passage, said lands shall be released from the access, ingress and egress rights provided herein. Martin and/or Martin Industries shall furnish written notice thereof upon completion of cutting and removal operations from each 160 acres completed. Martin and/or Martin Industries shall within ten (10) days of the receipt thereof, sign appropriate release documents, prepared by and at the expense of Friedberg-Moncrief, suitable for filing in the public records when called upon to do so.
I. Friedberg-Moncrief do hereby grant to Martin and Martin Industries, their successors and assigns, for the period of removal of timber and timber products from the property shown on Exhibit A, the rights of ingress and egress to and from the said property and over and upon the said lands therein described, as may be necessary in connection with the cutting and/or removal of timber and timber products. Martin and Martin Industries shall further have the right to build bridges and remove same, to make roads over the property, to store timber and timber products on the property, and to perform all other activities in connection with the preservation and removal of the timber which are consistent with good forestry and timber management practices prevailing in the industry. This grant is subject to paragraph H above.”

Subsequent to their acquisition of the aforementioned several tracts of land, Friedberg-Moncrief conveyed unto Ducote a 575.30 acre tract located in Section 17, T 2 S, R 6 E, in Avoyelles Parish, Louisiana, and unto Smith a 557.50 acre tract in Section 18, T 2 S, R 6 E, Avoyelles Parish, Louisiana. The purchasers in each of these sales acknowledged the existence of Martin’s timber rights on the property conveyed and agreed to accept the property subject to the terms and conditions of the timber contract between Martin and Friedberg-Moncrief. In the sales referred to, the vendors agreed to make certain payments to the vendees for the acreage conveyed so long as it remained encumbered by the timber contract in favor of Martin from and after certain stipulated dates. The portion of the Dueote sales agreement so providing reads as follows:

“Sellers agree to pay on a semi-annual basis unto purchaser interest calculated at nine (9%) per cent per annum on Four Hundred Fifty and No/100 ($450.00) Dollars per acre which sum shall be prorated on a daily basis for all acreage which remains encumbered by the timber contracts in favor of Roy 0. Martin after March 31, 1979. As the acreage is released from the timber contracts, the interest on that particular tract will be calculated on a daily basis, and sellers shall not be thereafter responsible to purchaser for interest thereon. Sellers agree that the tracts of land released from said timber contracts shall not be in less than forty (40) acre tracts. Purchaser shall be notified in writing of land being released from any timber contract and the interest charge paid by sellers shall cease on the released property upon the date notice to purchaser is received.”

Subsequent to Smith’s acquisition of the 557.30 acre tract, he conveyed the entirety thereof in divided portions to L.J. Bonial, Jr., Glenn Dueote, G.P. Smith and Raymond Plauche. In each of these sales the vendees acknowledged and agreed to all conditions and reservations contained in the act of sale from Friedberg-Moncrief to Smith. These latter sales contain no assignment by Smith to his vendees of his rights under the Friedberg-Moncrief sale to receive semi-annual payments during the period that the property sold was encumbered by the Martin timber contract.

Pursuant to the quoted stipulation contained in the aforesaid sales, Friedberg-Moncrief made semi-annual payments to Dueote and Smith on the entirety of the properties, Dueote having been paid through December 31, 1979 and Smith having been paid through June 30, 1980. Both Smith and Dueote concede that all payments due under the aforesaid agreement were made to them through the dates last specified; however, no payments were received by either after the specified dates. On August 25, 1980, Friedberg-Moncrief’s attorneys gave formal written notice by certified mail to Smith and Dueote advising that all lands conveyed to them by Fried-berg-Moncrief had been released from the timber cutting agreement encumbering such acreage. The formal notice referred to reads in pertinent part as follows:

“The above referenced land was encumbered by various timber reservations and cutting period agreements in favor of Royal (sic) Martin Industries, et al. This letter will serve to you as formal notice under the terms of the Act of Sale that said property has been released from the various timber cutting agreements encumbering this acreage. Thus, our responsibility to you for your interest in the future ceases immediately.”

Contrary to this formal notice the record clearly reflects that on August 25, 1980 the Dueote and Smith properties had not been released from the timber contract by Martin nor had Martin completed its timber removal operations on such properties. According to the record Martin completed its timber removal operations on the Dueote tract in early September, 1980 and its operations on the Smith tract, except for ten (10) acres, in early December, 1980. Further, there is no documentary evidence in the record confirming that Martin ever executed a formal release of its rights under the timber contract as to the Smith and Ducote tracts. John Munsterman, Martin’s forest manager, testified that a formal release of all of Martin’s rights under the timber contract was executed and delivered to Friedberg-Moncrief on November 16, 1981; however, such release was not made a part of the record in this case.

On February 2, 1981, Smith and Ducote instituted this suit against Friedberg-Mon-crief, defendants herein, seeking judgment in the amount of $45,870.30, said to be due them under contractual stipulations in the sales from Friedberg-Moncrief to Smith and Ducote. Friedberg-Moncrief filed answer generally denying the allegations of plaintiffs’ petition. In further answer Fried-berg-Moncrief urged that the property sold to Ducote and Smith had been cleared of all merchantable timber and under the terms of the timber contracts encumbering said land such lands had been automatically released therefrom when cleared. Defendants further averred that Smith and Ducote had been notified in writing of such release by certified letter dated August 25, 1980.

By motion and order dated July 31, 1981, L.J. Bonial, Raymond Plauche and Glenn Ducote were substituted as parties-plaintiff in lieu of Paul Smith. However, shortly thereafter, on August 18,1981, by means of a subsequent motion and order, Paul Smith was reinstated as a party-plaintiff in these proceedings. Upon the joinder of L.J. Bonial, Raymond Plauche and Glenn Ducote, as parties plaintiff, Friedberg-Moncrief filed an exception of no right or cause of action urging, in effect, that such parties were without right to institute suit against Friedberg-Moncrief as there existed no privity of contract between them.

The trial court, in written reasons for judgment, concluded that (a) the demands of Bonial, Plauche and Ducote against Friedberg-Moncrief should be dismissed for lack of contractual privity; and, (b) the right of David Ducote and Paul Smith to semi-annual payments under the contractual stipulation contained in the respective sales to them continued until such time as formal written releases of the Martin timber contract, insofar as it affected the Du-cote and Smith lands, were executed by Martin and recorded in the conveyance records of Avoyelles Parish, Louisiana. The trial court concluded that this was not done until November 16, 1981. Accordingly, the trial court calculated the amount due Du-cote and Smith as follows:

“Therefore, the defendants, Moncrief and Friedberg, owe David Ducote as follows:
$450.00
x 575.3 acres
$258,885.00
x 9%
$ 23,299.65 annually
$ 1,941.64 monthly
$ 63.83 per diem
Using the above computations, Ducote would be owed for 1145 days from Sept 28, 1978 through Nov 16, 1981 for the total sum of $78,085.35 less credit for payments previously made.
David Ducote testified that he was paid to date of Jan 1, 1980. The court assumes he was paid for 458 days or the sum of $29,234.14 leaving a balance due by defendants, Moncrief and Friedburg (sic), to David Ducote of $43,851.21.
The defendants, Moncrief and Fried-burg, (sic) owe Paul Smith as follows:
$450.00
x 557.3 acres
$250,785.00
x 9%
$ 22,570.65 annualy(sic)
$ 1,880.89 monthly
$ 61.84 per diem
Using the above computations, Smith would be owed for 1145 days from Sept 28, 1978 through Nov 16, 1981 for the total sum of $70,806.80 less credit for payments previously made.
Paul Smith testified that he was paid to date of July 1, 1980. The court assumes he was paid for 640 days or the sum of $39,577.60 leaving a balance due by defendants, Moncrief and Friedburg, (sic) to Paul Smith of $31,229.20....”

On January 5, 1982, the trial court signed a formal judgment dismissing the demands of Bonial, Glenn Ducote and Plauche but granting judgment against Friedberg-Mon-crief and in favor of David Ducote for the sum of $43,851.21- and in favor of Paul Smith for the sum of $31,229.20, both sums with interest from date of judicial demand until paid. Friedberg-Moncrief have appealed from this judgment. Plaintiffs have neither appealed nor answered the appeal of Friedberg-Moncrief, therefore, the judgment dismissing the demands of the plaintiffs, Glenn Ducote, Raymond Plauche and L.J. Bonial, is now final.

Appellants urge that the trial court erred in the following particulars: (1) in awarding judgment to Paul Smith, although by motion and order dated July 31, 1981 Bonial, Plauche and Ducote were substituted as parties plaintiff in his stead; (2) in concluding that plaintiffs were entitled to interest payments under the sales contracts until full releases in writing were secured from Martin; and, (3) in awarding judgment to plaintiffs in excess of the amount prayed for in their petition. We will discuss these assignments of error in the order set forth above.

We find no merit in appellants’ first assignment of error. Although by order dated July 31,1981 (Tr. pg. 17) Paul Smith was dismissed as a party plaintiff, by subsequent order dated August 18, 1981, long prior to trial (Tr. pg. 18), he was reinstated as a party plaintiff.

• Appellants next contend that the trial court erred in concluding that plaintiffs are entitled to interest payments under the sales contract until full releases in writing were secured from Martin. In this connection, appellants urge that the lands encumbered by the timber contract, according to its terms, were automatically released from the contract on the date said lands were denuded of merchantable timber by Martin. In this same vein, appellants argue that it was the intent of the parties to the sales contract that once the property conveyed by Friedberg-Moncrief to Ducote and Smith was susceptible of being cleared of stumps and prepared for cultivation no further interest payments were due under the contracts. In the alternative, appellants urge that no interest payments were due following the tender of formal written notice on August 25,1980, that the Ducote and Smith acreage had been released from the Martin timber contract. We find merit in none of these contentions.

Legal agreements have the effect of law upon the parties, and they are bound by their agreement regardless of any seemingly harsh consequences, provided the agreement is not contra bonos mores or in violation of some prohibitory law. Further, courts are bound to give legal effect to all contracts according to the true intent of the parties. Intent is to be determined by the words of the contract, when same are clear, explicit and lead to no absurd consequences. C.C. Articles 1901, 1945; Maloney v. Oak Builders, Inc., 235 So.2d 386 (La.1970); Texaco, Inc. v. Vermilion Parish School Board, 244 La. 408, 152 So.2d 541 (1963); Baker v. Life General Sec. Ins. Co., 405 So.2d 1162 (La.App. 1st Cir.1981); Saucier v. John-Clai Company, 408 So.2d 27 (La.App. 3rd Cir.1981); Van Dung v. Tel Ag Services, Inc., 407 So.2d 1339 (La.App. 3rd Cir.1981).

The release provisions in the timber contract are clear, concise, easily understood and lead to no absurd consequences. By the terms of the timber contract and the simultaneous “cutting agreement” Martin was allowed a specified period of time within which to remove all timber and timber products from the Friedberg-Moncrief properties. During the entire term for timber removal Friedberg-Moncrief granted to Martin the right of ingress and egress over all property, such right before and during timber removal being without restriction, however, subject to specific designation following completion of timber removal operations. As the timber removal operations were completed on each 160 acre block Martin was obligated to notify Friedberg-Mon-crief, whereupon the latter could prepare, at their own expense, written instruments suitable for filing in the public records releasing said 160 acres from the timber reservation and removal provisions of the contract and designating the location for Martin’s exercise of rights of ingress and egress over such released properties during the remainder of the term of the timber contract.

The release provisions of the contracts of sale from Friedberg-Moncrief to Ducote and Smith are likewise clear and precise. Friedberg-Moncrief were obligated for the stipulated interest payments so long as the acreage sold remained unreleased from and encumbered by the Martin timber contracts. These release provisions contemplated partial releases of not less than 40 acres and cessation of interest payment on the tracts released from the timber contract from the date purchaser received notice in writing of such release.

Although Martin completed its timber removal operations on the Ducote property in early September, 1980 and on the Smith property, except for 10 acres, by early December, 1980, Friedberg-Moncrief took no action whatever to secure a release of such properties from the timber reservation and removal provisions and to have designated with specificity Martin’s right of ingress and egress over such properties. Until such release and right-of-way designation was secured from Martin, the provisions of the contract between Martin and Friedberg-Moncrief were viable and subject to exercise over the Ducote and Smith properties. Although the merchantable timber had been removed, Martin’s right of ingress and egress over such properties was unrestricted.

The stipulation in the contracts of sale for interest payments require such payments on an acreage basis until the “acreage is released from the timber contracts”. The only release contemplated by this provision is that which Friedberg-Moncrief was entitled to demand and Martin obligated to deliver under paragraphs H and I of the timber contract. Ducote and Smith are entitled to interest payments under the explicit terms of the agreement until the release of their properties from the Martin timber contract.

There is no merit in appellants’ contention that the lands encumbered by the Martin timber contract were automatically released from the contract on the date said lands were denuded of merchantable timber. The express provisions of the contract belie this conclusion. Equally without merit is appellants’ contention that the parties intended by their contract that interest payments should cease once the lands had been cut over and were susceptible of being cleared of stumps and prepared for cultivation. Parole evidence bearing on intent is inadmissible where the intent of the parties can be ascertained by analysis of the contract provisions. White v. Rimmer & Garret, Inc., 340 So.2d 283 (La.1976). Even were parole evidence admissible the record falls far short of establishing that this was the intention of the parties. To the contrary, plaintiffs testified that it was their understanding that interest payments were due and owing until such time as the properties were fully released from the Martin contract. We also reject appellants’ alternate contention. Although defendants did formally notify plaintiffs on August 25, 1980, that their acreage had been released from the timber contract, this notice was without effect for being without foundation in fact. The record clearly reflects that Martin had not, on August 25, 1980, executed a release of the Ducote and Smith acreage from the timber contract. In fact the record contains no evidence of any release except for the testimony of John Mun-sterman that a release was executed by Martin on November 16, 1981. Further, on August 25, 1980 Martin had not completed its timber removal operations on either the Ducote or Smith tract and Martin continued to retain and actually use its rights of ingress and egress on the properties without restriction. For these reasons we attach no significance whatever to the written notice of August 25, 1980.

Appellants finally contend that the trial court erred in awarding plaintiffs judgment in excess of the amount prayed for in their petition. We find merit in this contention.

In their petition, plaintiffs alleged that defendants were indebted to them in the total sum of $45,870.30 and prayed for judgment in that amount. At trial, defendants timely objected to any evidence tending to show their indebtedness to plaintiffs for any amount in excess of that prayed for in their petition. Plaintiffs did not then seek leave of court to amend their pleadings. Evidence of defendants’ indebtedness to plaintiffs ih excess of that prayed for was admitted burdened with defendants’ objection. Under such circumstances, we conclude that the trial court erred in collectively awarding plaintiffs judgment for the total sum of $75,080.41. As we stated in Ehrhardt v. Cummins, 369 So.2d 213 (La.App. 3rd Cir.1979), writ denied, 369 So.2d 1366:

The general rule is that a litigant may not recover an amount greater than that for which he prayed in his petition. Friedman Iron and Supply Co. v. J.B. Beaird Co., Inc., 222 La. 627, 63 So.2d 144 (1952); Alumaglass Corp. v. Succession of Kendrick, 303 So.2d 911 (La.App. 1st Cir.1974); writs refused February 14, 1977. The only exception to this rule of which we are cognizant involves elements of special damages in situations when otherwise inadmissible evidence is admitted without objection and the pleadings are enlarged to that extent. LSA-C.C.P. Article 1154; Sterkx v. Gravity Drainage District No. 1 of Rapides Parish, 214 So.2d 552, (La.App. 3rd Cir.1968), writs refused November 15, 1968.

In conformity with this well established rule we will amend the trial court judgment so as to reduce the amount awarded to that prayed for by plaintiffs. We apportion the amount prayed for by the parties and to be awarded, i.e., $45,870.30, as follows:

We first calculate the amount due by Friedberg-Moncrief to the parties from date of last payment to each through the date suit was filed utilizing the per diem amounts set forth in the trial court’s written reasons, which we find to be correct.

David Allen Ducote Sr. - 398 days (5) $68.83 per day
(January 1, 1980 through
February 2,1981).$25,404.34
Paul G. Smith - 217 days @ $61.84 per day (July 1,
1980 through February 2,1981)_$13,419.28
Sub-Total $38,823.62

The balance of the amount prayed for, i.e., the sum of $7,046.68, we apportion among plaintiffs on a per diem basis and conclude that Ducote is entitled to receive the additional sum of $3,579.20 and Smith the additional sum of $3,467.48. Finally, we observe that the trial court judgment fails to cast defendants, Elizabeth Moncrief, Deborah Moncrief and W.A. Moncrief, Jr., in judgment. We will amend the judgment so as to correct this error. In sum, we amend the trial court judgment so as to award plaintiff, David Allen Ducote, Sr., judgment against W.A. Moncrief, Sr., Elizabeth Mon-crief, W.A. Moncrief, Jr., Deborah Moncrief and Richard Friedberg, in solido, in the sum of $28,983.54 (in lieu of the sum of $43,-851.21) together with legal interest on such sum from date of judicial demand until paid. We further amend the trial court judgment so as to award plaintiff, Paul G. Smith, judgment against W.A. Moncrief, Sr., Elizabeth Moncrief, W.A. Moncrief, Jr., Deborah Moncrief and Richard Friedberg, in solido, in the sum of $16,886.76 (in lieu of the sum of $31,229.20), together with legal interest on such sum from date of judicial demand until paid. In all other respects the judgment appealed from is affirmed. Costs of this appeal are to be apportioned Vfe to appellees and V2 to appellants.

AMENDED AND AFFIRMED.

      . The quoted stipulation from the Dueote sale is identical with that set forth in the Smith sale except for the stipulated date after which interest is calculated. The stipulated date in the Smith sale is December 31, 1978.

      . G.P. Smith is not a party to this suit.


author: JASPER E. JONES, Judge.

text:
    Avis HENSON, Plaintiff-Appellee, v. HANDEE CORPORATION and Aetna Life and Casualty, Defendants-Appellants.
    No. 14968.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 25, 1982.

      Goff & Goff by A. Kennon Goff, III, Ruston, for plaintiff-appellee.
    Theus, Grisham, Davis & Leigh by Charles H. Heck, Monroe, for defendants-appellants.
    Before MARVIN, JASPER E. JONES and FRED W. JONES, JJ.
   JASPER E. JONES, Judge.

This is a workers’ compensation action. The plaintiff is Avis Henson. The defendants are Handee Corporation and its compensation insurer, Aetna Life and Casualty Company. The defendants appeal a judgment against them, in solido, for total permanent disability benefits of $152.90 per week, medical expenses, penalties, interest, attorney’s fees of $3,500 and costs. We amend and affirm.

The appellants set out four assignments of error. They contend the trial judge erred in: (1) finding plaintiff to be disabled contrary to the opinion of her treating orthopedist; (2) finding plaintiff to be totally and permanently disabled; (3) awarding compensation benefits in excess of the statutory maximum; and (4) finding their termination of compensation benefits to have been arbitrary and capricious and awarding penalties and attorney’s fees.

THE FACTS

Mrs. Henson was employed by Handee as an assistant night manager of one of its convenience stores in Ruston, Louisiana. She testified that she was required to place in shelves, store rooms and refrigerated areas the merchandise sold by her employer. She stated that in connection with this stocking activity she often was required to lift cases of the merchandise. She stated that she was required to clean the store which included sweeping, mopping and emptying trash containers.

On April 16, 1980, plaintiff was engaged in putting up stock and was being assisted by her son. Upon lifting a case of motor oil plaintiff experienced back pain. Due to the pain plaintiff ceased stocking and remained behind the store counter for the duration of her shift.

Upon returning to work the following day, plaintiff attempted to assist another employee in stocking candy. Even though the items were light, plaintiff experienced back pain when bending to pick them up. Plaintiff restricted her activities for the remainder of her shift to waiting on customers and operating the cash register. Plaintiff’s husband came to the store and completed the stocking, swept and mopped the store.

Henson was off on April 18. When she returned to work on April 19 her husband came with her and remained for the entire shift to assist her because of her continuing back pain.

When her condition was unimproved the following day plaintiff went to the emergency room of the St. Francis Medical Center in Monroe for treatment. Upon returning to Ruston, plaintiff had her husband inform her employer that she would be unable to work that afternoon. Plaintiff has never returned to work.

When Ms. Jennie Lacobee, Aetna’s adjuster, learned of plaintiff’s injury she contacted plaintiff. From plaintiff Ms. Laco-bee learned that an orthopedist, Dr. George Belchic, had recently come to Ruston and at plaintiff’s request Ms. Lacobee arranged an appointment with Dr. Belchic to examine and treat plaintiff. Compensation payments were immediately begun.

Dr. Belchic first saw plaintiff on May 8, 1980. He diagnosed her condition as a severe myeloligamentous strain of the lumbar area. Belchic prescribed a muscle relaxant, an anti-depressant and an anti-inflammatory agent and directed plaintiff to return in one week.

Belchic next saw plaintiff on May 13, 1980. He found her condition much the same and prescribed a new anti-depressant and an additional anti-inflammatory agent.

Dr. Belchic saw plaintiff again on May 20. Her condition was found to be improved though she still experienced slight back discomfort and headaches.

Plaintiff was next seen by Dr. Belchic on May 27, 1980. He found her to be doing well with only minimal complaints. He suggested she continue her medication and released her to return to work without physical limitations on June l. Dr. Belchic so notified Aetna and the insurer terminated compensation benefits.

Plaintiff did not return to work because she felt she was unable to do so because of continuing back pain. The week following plaintiff’s release by Dr. Belchic, Ms. Laco-bee learned that plaintiff had not returned to work and contacted her and explained that compensation benefits could not be continued because the doctor found that she was able to return to work. When plaintiff indicated that she remained disabled and could not return to work, Ms. Lacobee made another appointment for her with Dr. Belchic.

Plaintiff missed that appointment and Ms. Lacobee again contacted her. Plaintiff expressed little interest in seeing Dr. Belchic again. Ms. Lacobee then offered to make plaintiff an appointment with another doctor of her choice. Plaintiff requested some time to think about it and was out of town when Lacobee called back two days later. Plaintiff did not try to contact Lacobee until after she had retained counsel, at which time Lacobee refused to accept a collect call from plaintiff’s husband.

On June 20, 1980, plaintiff saw Dr. Lem-oine Bleich, a general surgeon, for her back problem. Plaintiff had been treated by Dr. Bleich in the past for other health problems unrelated to her back. Before Dr. Belchic came to Ruston, Bleich handled many of the orthopedic problems in the community. Bleich has extensive experience in treating back ailments and an unusual interest in them as he has back pathology for which he had surgery.

In his initial examination of plaintiff, Dr. Bleich found tenderness in the lower back area and limited motion. Bleich concluded that appellee had a strained back (chronic low back or sacroiliac strain) and prescribed pain relievers, cortisone and nerve medication.

Dr. Bleich continued to see and treat plaintiff through the date of the trial, October 20, 1980. At trial, Dr. Bleich testified that plaintiff should avoid activities such as mopping, sweeping and stocking shelves and that she should seek lighter work if those activities were required in her present job. He opined that such activities would cause plaintiff substantial pain. He stated plaintiff’s disability had existed for six months at the time of the trial and he did not know if plaintiff would ever be able to return to work.

At the request of Ms. Lacobee, Dr. Belchic examined plaintiff on October 1 and October 3. He again concluded, contrary to Dr. Bleich, that plaintiff could return to work and saw nothing to indicate that she could not have done so at all times subsequent to June 1 when he initially released her to return to work.

ASSIGNMENTS # 1 and #2

Through their first assignment of error appellants complain of the trial judge’s finding, contrary to the testimony of Dr. Belchic, that appellee was disabled. Through the second assignment they contest the conclusion that the disability was total and permanent.

Appellants contend the conclusion that appellee is disabled is erroneous as the testimony of Dr. Belchic, an orthopedic specialist, is entitled to greater weight than that of Dr. Bleich, a general surgeon, as to this orthopedic problem.

While we are in accord with the general rule, relied on by appellants, that the testimony of a specialist in the appropriate field is more persuasive than that of a general practitioner, its application here does not mean that the trial judge was in error.

The general rule is applicable only when the testimony of the specialist is credible and of such nature as to carry greater weight or more convincing or more probable. Wild v. Continental Casualty Company, 234 So.2d 783 (La.App. 1st Cir.1970).

Here, though the testimony of Dr. Belchic is credible, it is no more convincing or probable than that of Dr. Bleich. Further, because of Dr. Bleich’s extensive experience, both personal and professional, with back problems, the testimony of Belchic is not of such a nature as to carry substantially greater weight.

Though, under the general rule, Belchic’s testimony should perhaps be slightly preferred, that preference does not require the testimony of Dr. Bleich be disregarded and •given no weight.

The issue of disability is to be determined by the totality of the evidence, including both lay and medical testimony. Augustine v. Courtney Const. Co., Etc., 405 So.2d 579 (La.App. 3d Cir.1981), writ denied 407 So.3d 735 (La.1981); Cf. Thompson v. Southern Cas. Ins. Co., 349 So.2d 990 (La. App. 2d Cir.1977).

Here the trial judge’s conclusion that the appellee is disabled is strongly supported by the testimony of Dr. Bleich, ap-pellee, her husband and her son. In light of the totality of the evidence the trial judge did not err in concluding, contrary to the testimony of Dr. Belchic, that appellee was disabled.

Appellants next contend that the trial judge erred in concluding that plaintiff was totally and permanently disabled.

The trial judge found that plaintiff was disabled by pain. Whether or not pain is so great as to be disabling is a question of fact. Augustine, supra; Williams v. Hudson East, 261 La. 959, 261 So.2d 629 (1972). A worker who cannot return to any gainful employment without suffering substantial pain is entitled to benefits for total disability. Wilson v. Ebasco Services, Inc., 393 So.2d 1248 (La.1981).

Upon a showing by a plaintiff that his physical condition, mental capacity, education, training, age or other factors combine to place him at a substantial disadvantage in the employment market, he has made out a prima facie case for classification in the “odd-lot” category; the burden then devolves on the employer or insurer to show that some form of suitable employment is regularly and continuously available to plaintiff. A disabled worker who falls within the “odd-lot” category is total permanently disabled within the contemplation of the workers’ compensation law. Dusang v. Henry C. Beck Builders, Inc., 389 So.2d 367 (La.1980); Oster v. Wetzel Printing, Inc., 390 So.2d 1318 (La.1980).

Plaintiff was forty-eight years old at the time of her injury. She had only a seventh grade education and no vocational or technical training. Her prior work experience was as a hospital aide, hospital sitter and a waitress.

Plaintiff’s education, training and experience qualify her only for work of which physical labor is a substantial component. The trial judge found plaintiff disabled from such work by her back pain. As that is a factual conclusion, we may not disturb that finding absent manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The trial judge’s conclusion that plaintiff suffers serious back pain is strongly supported by the record. Plaintiff testified as to the severe back pain she suffers. Both Dr. Belchic and Dr. Bleich testified that they believed appellee’s complaints of pain. Plaintiff’s husband and son testified that she endures substantial pain when merely bending, stooping or performing routine household tasks.

We find no error in the trial judge’s conclusion that plaintiff experiences substantial pain when performing physical tasks such as mopping, sweeping or bending over.

In an effort to rebut plaintiff’s prima facie showing of “odd-lot” status, appellants contend that work at Handee Mart is light duty work and available to plaintiff. This contention is based on the testimony of Ron Hebert, Handee's zone manager, and Elizabeth Ambrose, the manager of the Handee Mart at which plaintiff was injured.

Hebert and Ambrose paint a picture of a much less strenuous workplace than the one described by plaintiff. The trial judge concluded that the nature of employment at Handee Mart required that one frequently perform strenuous tasks. In reaching that conclusion the trial judge obviously rejected the testimony of Hebert and Ambrose and accepted that of plaintiff.

A factual determination by the trial judge based upon his evaluation of credibility cannot be disturbed absent manifest error. Canter v. Koehring Co., 283 So.2d 716 (La.1973); Hollis v. Travelers Ins. Co., 368 So.2d 154 (La.App. 3d Cir.1978). There was no manifest error in the trial judge’s conclusion as to the nature of employment at Handee Mart.

At the time of trial plaintiff had been disabled for over six months. There was no indication when, if ever, her back condition would improve sufficiently for her to return to work without substantial pain. A judgment for permanent total disability is appropriate when the claimant is totally disabled and the duration of that disability is indefinite. Walker v. Gaines P. Wilson & Son, Inc., 340 So.2d 985 (La.1976); Wilson v. Ebasco, supra.

The trial judge correctly found plaintiff to be permanently and totally disabled under LSA-R.S. 23:1221(2). These assignments of error are without merit.

ASSIGNMENT # 3

Through this assignment appellants attack the award of benefits in the amount of $152.90 per week, which is 66%% of plaintiff’s average weekly wage of $229.36, as in excess of the statutory maximum. We agree.

LSA-R.S. 23:1202(1) limits the maximum weekly benefit to “.. . sixty-six and two-thirds per centum of the average weekly wage paid in all employment subject to the Louisiana Employment Security Law...” The maximum applicable to this injury is $148.00 per week and the award will be reduced to that amount.

ASSIGNMENT # 4

Through their final assignment of error appellants attack the award of penalties and attorney’s fees.

When an insurer’s refusal to pay benefits is arbitrary, capricious or without probable cause the claimant may also recover penalties and attorney’s fees. LSA-R.S. 22:658. Whether a refusal to pay benefits is arbitrary, capricious, or without probable cause is a question of fact on which we may not disturb the trial judge’s findings absent manifest error. Scott v. Sears, Roebuck & Co., 406 So.2d 701 (La.App. 2d Cir.1981). We conclude that the trial judge was clearly wrong in finding Aetna’s conduct arbitrary and capricious and awarding penalties and attorney’s fees.

Aetna terminated benefits only after Dr. Belchic released plaintiff for work without restrictions. When plaintiff did not return to work Aetna’s adjuster, Ms. Lacobee, investigated to find out why. Ms. Lacobee scheduled plaintiff an appointment with Dr. Belchic when she learned that plaintiff felt she was unable to work because of pain. After plaintiff missed that appointment, Ms. Lacobee attempted to accommodate plaintiff by offering to schedule an appointment with another doctor of her choice. Plaintiff did not notify Ms. Lacobee of her choice and never tried to contact the adjuster until after she had obtained an attorney.

On August 13, Ms. Lacobee was first supplied with Dr. Bleich’s complete reports of his examinations and treatment of plaintiff on June 20 and July 1, wherein Dr. Bleich indicated that he was of the opinion that plaintiff could not go back to her employment with Handee Mart. Upon receipt of this information Ms. Lacobee made an appointment with Dr. Belchic for September 19 to re-examine plaintiff to determine if he continued to believe plaintiff was able to return to work. Plaintiff failed to keep this appointment because she did not receive proper notice because of a failure of communication between plaintiff and her attorney. On September 26, when Ms. La-cobee discovered plaintiff had not kept the September 19 appointment with Dr. Belchic, Ms. Lacobee made plaintiff another appointment with Dr. Belchic for October 1 and on this date, and on October 3, plaintiff was re-examined by Dr. Belchic. Following these examinations Dr. Belchic advised Ms. Lacobee in writing and verbally that he was of the opinion that plaintiff could return to work.

An insurer may rely on a report from the employee’s treating physician that employee is able to return to work. Breaux v. Marine Elec. & Reliance Ins. Co., 369 So.2d 196 (La.App. 3d Cir.1979), writ refused 371 So.2d 1344 (La.1979). An insurer is not arbitrary and capricious in discontinuing benefits on the strength of such a report. Braddy v. Triangle Timber, Inc., 353 So.2d 311 (La.App. 1st Cir.1977), writ refused 354 So.2d 1051 (La.1978); Thompson v. Southern Cas. Ins. Co., supra; Graziano v. Lallie Kemp Charity Hospital, 400 So.2d 1164 (La.App. 1st Cir.1981).

Here benefits were terminated only after plaintiff was released for work. The insurer promptly investigated plaintiff’s failure to return to work and sought to have her re-examined to discover the problem. However, plaintiff was completely uncooperative and stifled the insurer’s efforts to have her re-examined.

When the insurer received the medical reports of Dr. Bleich of his examination of plaintiff on June 20 and July 1 wherein he expressed the opinion plaintiff was disabled, the insurer did not ignore these reports and blindly rely upon the May 27 report of Dr. Belchic. On the contrary, the insurer immediately made plaintiff an appointment with Dr. Belchic in order to obtain a current evaluation of plaintiff’s condition by Dr. Belchic.

The insurer’s actions were reasonable and exemplary of the concern for claimants and insureds which LSA-R.S. 22:658 was designed to promote. The trial judge was clearly wrong in awarding penalties and attorney’s fees.

For the foregoing reasons the judgment of the district court is amended to reduce weekly benefit to $148.00 and eliminate the award of penalties and attorney’s fees.

As AMENDED the judgment is AFFIRMED. Costs on appeal are taxed equally between the plaintiff and defendants.

AMENDED and AFFIRMED.

      . It appears that plaintiffs son and husband occasionally assisted her with her work, though neither was employed nor paid by Handee.

      . Dr. Belchic testified that he felt plaintiff was able to return to work as of May 27 but he set the release date at June 1 because of her headaches and because he believed it a better policy not to release an employee to return to work in the middle of a work week.

      . Plaintiff testified that a hospital sitter sits with a patient in his room. The sitter tends to the patient and helps him turn over and performs other assistance to the patient.

      . Handee Corporation’s stores are called “Han-dee Mart(s).”

      . R.S. 23:1221(2)—“(2) For injury producing permanent total disability of an employee to engage in any gainful occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training, and experience, sixty-six and two-thirds per centum of wages during the period of such disability.”

      . The average weekly wage paid in all employment subject to La. Employment Security Law for any period may be obtained by contacting the State Department of Labor, Office of Employment Security.

      . The judgment awards penalties and attorney’s fees against the defendants, in solido. Even if the award of penalties and attorney’s fees was justified, it should have been made against the insurer alone. Wiley v. Southern Cas. Ins. Co., 380 So.2d 214 (La.App. 3d Cir.1980).

      . R.S. 22:658—All insurers issuing any type of contract other than those specified in R.S. 22:656 and 22:657 shall pay the amount of any claim due any insured including any employee under Chapter 10 of Title 23 of the Revised Statutes of 1950 within sixty days after receipt of satisfactory proofs of loss from the insured, employee or any party in interest. Failure to make such payment within sixty days after receipt of such proofs and demand therefor, when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of 12% damages on the total amount of the loss, payable to the insured, or to any of said employees, together with all reasonable attorney’s fees for the prosecution and collection of such loss, or in the event a partial payment or tender has been made, 12% of the difference between the amount paid or tendered and the amount found to be due and all reasonable attorney’s fees for the prosecution and collection of such amount. Provided, that all losses on policies covering automobiles, trucks, motor propelled vehicles and other property against fire and theft, the amount of the penalty in each of the above cases shall be 25% and all reasonable attorney’s fees.

      . However, the insurer may not ignore later contrary information and blindly rely upon an earlier report. West v. Belden, 396 So.2d 1004 (La.App. 3d Cir.1981), writ denied 401 So.2d 976 (La.1981).


author: MARVIN, Judge.

text:
    Betty T. BURGESS, Plaintiff-Appellee, v. CITY OF SHREVEPORT, et al., Defendants-Appellants.
    No. 14999.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 25, 1982.
    Blanchard, Walker, O’Quinn & Roberts, by Jerald L. Perlman and J. Jay Caraway, W. Glen Mangham, Asst. Dist. Atty., Shreveport, for Travelers Ins. & Caddo Parish Police Jury.
    Nelson, Hammons & Johnson by Sidney Nelson, Shreveport, for plaintiff-appellee.
    William J. Guste, Jr., Atty. Gen. by Charles E. Welsh, Shreveport, for State of La.
    Before PRICE, MARVIN and JASPER E. JONES, JJ.
   MARVIN, Judge.

In this action for personal injury damages arising out of an elderly voter’s fall in a polling place during a 1979 state election, the third party demands of the defendant police jury (who selected the polling place) against the state and against the Parish Board of Election Supervisors (who, with others, “supervised” the election) were dismissed on an exception of no cause of action.

The police jury appeals, contending that the state constitution and statutes impose a vicarious liability upon these defendants. We reverse and remand for trial.

The jury also argues that Act 790 of 1981, now LRS 9:2798, should be retroactively applicable as an interpretive, remedial law and as a codification of the existing law which would recognize the cause of action of the jury.

The plaintiff in the main action alleged that the Caddo Police Jury (a defendant) selected a fire station owned by the City of Shreveport (also a defendant) as a polling place under LRS 18:533, that the place was not well lighted, that no one warned her that the floor of the voting area was about six inches lower than the other areas of the station, and that she was injured when she fell. The original plaintiff was 86 years old and later succumbed from her alleged injuries and other plaintiffs were substituted. Plaintiff alleged that the city and the police jury were at fault generally in providing a polling place that was hazardous and in failing to provide adequate lighting, personnel, warnings and other reasonable precautions to protect against the hazard.

In its third party petition, the jury alleged that the state and the Parish Board of Election Supervisors were liable because they had the legal responsibility to conduct elections and failed to promulgate standards for polling places, to instruct voting commissioners about ensuring the safety of the polling place, to properly designate the voting area of the fire station, and that they should not have allowed the use of a polling place which they knew or should have known was defective without warnings and adequate precautions.

LRS 9:2798 does not definitively answer what cause of action a plaintiff may have had independent of and before enactment of the statute. The statute provides that the state assumes the liability which the owner of the polling place might have had to a voter, other than liability arising out of the owner’s intentional acts, omissions, or gross negligence. It provides that a plaintiff shall have no right of action against the owner for the responsibility assumed by the state, but shall have a cause of action and a right of action against the state.

Obviously, the intent and purpose of the statute is to encourage an owner to permit private property to be used as a polling place by granting the owner some immunity from actions for personal injury damage brought by persons who exercise their franchise. As to the liability deriving from the owner and assumed by the state, the statute is obviously substantive and should not be retroactively applied. CC Art. 8. See Fullilove v. U.S. Casualty Company of New York, 129 So.2d 816 (La.App.2d Cir.1961); Dripps v. Dripps, 366 So.2d 544 (La.1978).

The statute does not purport to address whether the state may be liable for its independent fault arising out of a circumstance where the owner could be at fault or vicariously liable, other than in the provision that the state does not assume the responsibility for the owner’s gross negligence or intentional acts or omissions.

The election statutes do not impose duties on the parish police jury other than to establish and publish the location of one polling place for each precinct. LRS 18:533 A, in part. This responsibility is apparently exclusive to the police jury and the statutes do not contemplate any consultation by, or approval by, the state or the Parish Board of Election Supervisors about the establishment or location of the polling place that is made by the police jury.

The statute expressly requires that the polling place be “suitable”, which in the context used, must mean reasonably accessible to the public, convenient, safe, and fit for the purpose for which it was selected, that is, for use as a polling place in an election. Certainly when all other factors of liability are present, the police jury may be found liable to a citizen who participates in the election process when it selects a polling place that is “defective” (CC 2317, 2322) or that exposes the citizen to an unreasonable risk of harm as is here alleged (CC Art. 2315).

Other officials and agencies such as the secretary of state, the commissioner of elections (formerly the custodian of voting machines), the parish board of election supervisors, the registrar of voters, and the clerk of court are directed to perform various duties relative to the preparation and installation of voting machines, to the equipping and preparing of the polling place, training and appointing the commissioners conducting the election, and tabulating and reporting the election results. See generally, La. Election Code, LRS Title 18.

Because the state and the parish board have no control over the selection of the polling place under the statutory scheme, should it follow that these entities can be found to have no responsibility or duty to the citizen who participates in the election? We think not, especially when we consider that all citizens of whatever circumstance or disability are encouraged to register to vote and to exercise their constitutional franchise.

Once the polling place is selected, the agencies and officials who are charged with the equipping and preparing of that place for the election and with the conducting of the election become custodians of that place at least on the day of the election. See Footnote 4.

Notwithstanding the negligence of a police jury in selecting a polling place, those who conduct an election, as custodians of the polling place, may be found liable to citizens who use the place for the purpose intended if the place is found “defective” and causes injury. CC 2317 as recently interpreted. See Malone, 42 La.L.R. cited in footnote 3. Moreover, a custodian should be found to owe a duty to warn those citizens who use the thing about the risks of harm that are inherent in the use of a thing. This calls into question the reasonableness of the acts or omissions of the custodian with respect to the particular plaintiff, traditionally the “negligence” of the custodian. CC 2315. See Malone, supra, 42 La.L.R. 979; Sullivan v. Gulf States Utilities Co., 382 So.2d 184 (La.App. 1st Cir.1980).

The factual allegations here made state a cause or causes of action against the state and the board which, if proved, may support a finding of liability to the voter which would legally benefit the third party petitioner police jury. This liability may arise out of the third party defendants’ custody of a defective thing or out of defendants’ failure of the duty to warn the particular plaintiff of the existence of the variance in floor level. The police jury should be allowed the opportunity to present evidence on the issues raised. Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La.1975).

At appellees’ cost, the judgment appealed is reversed, the exception of no cause of action to the third party petition of the police jury is hereby overruled, and the case is remanded for further proceedings.

REVERSED, RENDERED, AND REMANDED.

      . The constitution provides in part:
      “The secretary of state .. . shall be the chief election officer of the state ...” LSA-Const. Art. 4, § 7
      “The legislature ... shall provide ... for the conduct of all elections.” LSA-Const. Art. 11, § 1
      The statutes provide in part:
      “The parish board of election supervisors shall supervise ... the conduct of all elections held in the parish.” LRS 18:423, in part.
      “The governing authority of each parish shall establish one polling place for each precinct.” LRS 18:533 A, in part.

      . This statute reads:
      “A. Except as provided in Subsection B of this Section, the state of Louisiana hereby assumes responsibility and liability for any injury to a person or damage to property which occurs upon property used for a polling place during the time for which the property is used and for which the owner of the property would be liable except for the provisions of this Section. The person suffering such injury or damage shall have no right of action against the owner, but shall have a cause of action and a right of action against the state for such injury or damage.
      “B. The state does not assume any responsibility for, and shall not be liable under Subsection A for, any injury or damage caused by the gross negligence of the owner or by any acts or omissions to act by the owner which were intentionally designed to cause harm.”

      . We suppose that an owner could be grossly at fault in knowingly allowing the structure of his building to deteriorate and expose any occupant of the building to serious harm, that this structural deterioration might not be discoverable upon reasonably simple inspection, and that no one conducting the election process or selecting the building was warned by the owner of the risk. Superficially, and only superficially, was the building safe. See Malone, Ruminations on Liability for the Acts of Things, 42 La.L.R. 979, 994 (1982).

      . The secretary of state is the chief election officer and is responsible for the performance and non-performance of the duties of his office by his employees. § 421. He furnishes the election materials. § 423 F. The board is obligated to supervise the preparation for and the conduct of the election in its parish. § 423 B. One member of the board is appointed by the governor of the state § 423. The board appoints the election commissioners, who in turn are required to maintain order (§ 425 C) and who may summon and direct law enforcement officers at the polling place for this purpose. § 428.
      The state pays the costs of state elections from funds appropriated to the secretary of state and voting commissioner. These costs include the costs of publicizing the location of the polling places and the costs of renting, equipping, and preparing polling places. §§ 404, 435, 533 B(2), 533 D. In purely local elections, and not state elections, the costs are paid by the municipality or the parish body for whom the election is held. § 404.


author: PRICE, Judge.

text:
    Sam GARNER and Gretchen Garner, Plaintiffs-Appellants, v. Alice Bowes WADDILL, et al., Defendants-Appellees.
    No. 15001.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 25, 1982.

      Sedric E. Banks, Monroe, for plaintiffs-appellants.
    Pipes & Pipes by Richard H. Pipes, Monroe, J. Carl Parkerson, Dist. Atty., Monroe, for defendants-appellees.
    Before PRICE, FRED W. JONES and SEXTON, JJ.
   PRICE, Judge.

This is an action to have a road declared to be public pursuant to LSA-R.S. 48:491. Plaintiffs, Sam and Gretchen Garner, seek to have a passageway located in Ouachita Parish declared to be a public road. The named defendants are Alice Bowes Waddill, Adele Waddill Ransom and Elizabeth Wad-dill Russell, owners of the tract of land surrounding the road and the Ouachita Parish Police Jury. From a judgment in favor of defendants, plaintiffs appeal. We affirm the judgment of the trial court.

We adopt the following findings of fact of the trial court:

“Plaintiffs live at the end of a passageway leading to their residence from ‘Old Horseshoe Lake Road,’ a gravel road which is part of the Ouachita Parish system. They brought this action against the owners of the surrounding property and the Police Jury, seeking to have the passage declared a public road pursuant to R.S. 48:491. The Police Jury answered, disclaiming any interest in the outcome of the suit, that is, asserting no factual allegations, seeking no relief and putting the principal contenders on strict proof.

The whole property is a large tract formerly owned by W.J. Riley, lying between the Ouachita River on the west and the parish gravel road at the base of the levee on the east, with Horseshoe Lake on the south side. Many years ago, Mr. Riley built a camp less than a half mile west of the gravel road, and the disputed passage apparently originated as the roadway to the camp and through the fields toward the river. The tract was bought in 1956 by Dr. Waddill, husband and father of the individual defendants.

The Waddills lived in the camp house until the doctor’s death in 1963, and Mrs. Waddill remained there for a short time thereafter. Since the early 1950’s, Paul Ransom has leased and conducted farming and cattle operations on the whole tract. At one time there was at least one residence near a barn on the road, with a smaller house near the camp house. A number of the witnesses resided in one or another of those residences at pertinent times, although the house near the barn no longer exists.

On May 10, 1976, the Waddills sold a 2.35 acre tract around the camp house and small ‘tenant’ house to plaintiffs. The deed confers upon plaintiffs ‘the Right of Ingress and Egress over a Dirt Road across Mrs. Alice B. Waddill’s property’ but the sellers reserved ‘the right to relocate the route of ingress and egress above described.’ Plaintiffs have since resided in the camp house.

The road as it presently exists leaves Old Horseshoe Lake Road at a ‘gate’ between two tall pillars some 10 to 12 feet apart. This is the relic of an archway and metal and wire gate presumably constructed as the entrance to his camp by Mr. Riley. Leaving the gravel road, a driver would pass through the gate in a general westerly direction and move along the passage somewhat less than a half mile along the edge of Horseshoe Lake on the left to a point near the barn still in existence. There the road continues generally west into the fields toward the river on one ‘leg’ and turns nearly 90 degrees to the north on another ‘leg’ to the camp house. It has no horizontal ditches on either side, varies in width from 8 to 12 feet according to estimates, and is generally level with ground on both sides.”

At trial, numerous witnesses testified on behalf of the parties.

Testifying for plaintiffs was Mr. J.T. Lowery, a former Ouachita Parish Highway Department employee and motor grader operator. Mr. Lowery stated that the parish began regular maintenance of the road in the late fifties or early sixties when a parish employee moved onto the property and at the request of Dr. Waddill, although it had been graded before when Riley had owned the property. Lowery stated that he bladed the road and had applied four to six inches of pit gravel on the entire length of the road on two different occasions sometime approximately in the late sixties. Lowery stated he would request the gravel from either the engineer or the police juror, Mr. Wilhite. Lowery testified he had a regular schedule of maintenance and his rounds, including Sam Garner Road, would take about two to three weeks. Lowery testified that the road had been maintained regularly for fifteen or twenty years. Lowery stated he would grade the road upon the request of the school bus driver, Mrs. Margie Stewart.

Plaintiff, Sam R. Garner, testified that he had lived along the Sam Garner Road since May 5, 1976. Garner stated the road had been regularly maintained by the Ouachita Parish Police Jury since 1976 and he had seen parish equipment working on the road. Garner testified he had only witnessed blad-ing work with a grader but no gravel applications by the parish. Garner stated that the owners of the property had never performed personal maintenance on the road.

Mr. John W. Wilhite, a former Ouachita Parish Police Jury member, testified on behalf of the plaintiffs. Wilhite stated that the Sam Garner Road had been regularly maintained by the police jury and that he had personally instructed Lowery to blade the road “more than once.” Wilhite stated that although he could not testify as to seeing the parish crew actually working on the road, when he checked the road the blading had been done as he had instructed.

Also testifying for plaintiffs was Mrs. Margie Stewart, a school bus driver. Mrs. Stewart testified that for approximately twelve years she traveled the Sam Garner Road as a part of her school bus route when children were living on the property. Stewart stated that when the road needed maintenance, she would contact Lowery and the work would be done, although she never actually saw Lowery performing the work.

Mr. A.B. Spence, a director of public works with the Ouachita Parish Police Jury, testified on behalf of plaintiffs. Spence stated a computer was installed about 1976 and the police jury records reflected maintenance work on the Sam Garner Road from March 1977 to April 1979. The records indicated the following maintenance:

Blading — March 1977

Blading — March 24, 1977

Blading — July 25, 1977

Blading — February 16, 1978

Blading — March 10, 1978

Blading — March 17, 1978

Blading — April 3, 1978

Blading — April 19, 1978

Blading — May 1, 1978

Blading — May 16, 1978

Blading — June 9, 1978

Mowing — June 19, 1978

Blading — June 22,1978

Blading — August 16, 1978

Blading — August 22, 1978

Blading — August 29, 1978

Blading — March 2, 1979

Blading — March 14, 1979

Blading — April 5, 1979

Spence testified the records were compiled from daily work reports turned in by the particular operators and a supervisor checks the operator’s work on the following day. Spence stated he personally observed the road around April 5,1979 and it was not in good condition and did not appear to have been bladed. Spence testified a road sign had been placed on Sam Garner Road for approximately two days until its removal pursuant to Mr. Ransom’s request.

Gary Heath lived by the Sam Garner Road in 1980-81. Heath testified he had seen work being performed on the road about three or four times but could not identify the equipment or the operator.

Mr. Fred McMullen, an administrative aide with the police jury, testified on behalf of the plaintiffs. McMullen stated that the police jury had bladed the road for twelve or thirteen years, although he had only been present to observe the grading five or six times during that period.

Mrs. Alice Bowes Waddill, a defendant, testified she lived on the property from 1957 until 1964 and that the Sam Garner Road was used for farming purposes. Wad-dill stated she had no knowledge of parish gravel being furnished on the road nor had she requested parish maintenance of any kind. Waddill stated she had never seen maintenance being performed on the property.

Adele Waddill Ransom, a defendant and wife of Paul Ransom, testified she normally traveled the road every other day beginning in 1957 to visit her father until her father’s death in 1961 and visited with her mother quite often on the property until the end of 1963. Ransom stated she had never seen parish equipment on the road nor had any recollection of gravel applications to the passageway. Waddill stated her husband and Erwin Miller, a motor grader operator, had performed maintenance work on the property. Waddill testified that she had never been contacted by the police jury about working on the road.

Mr. George Gregory testified on behalf of the defendants and had traveled the road fairly frequently from 1973. Gregory stated that he had never seen public maintenance being done on the road and had personally maintained the road along with Ronald and Gerald Reeves. Gregory testified that the road did not appear to have been maintained at all.

Lacie Tolston, an employee of Paul Ransom, testified that he lived on the property in 1956 and 1957 and was frequently on the road from 1956 to present. During this time, Tolston testified he had never seen parish equipment on the road and that the road had been maintained by grading approximately four or five times a month by he and Mr. Ransom. Mr. Tolston stated he did not recall any gravel on the road.

Ronald Reeves, an employee of Paul Ransom, testifying on behalf of defendants, stated he first became familiar with the road in 1959 upon moving onto the Ransom property and that he had lived in that general area for the last twenty-two years. Reeves testified he was on the property frequently since 1959 and had never seen any parish equipment nor gravel applications on the roadway, only personal maintenance.

Mr. Gerald Reeves, testifying on behalf of defendants, stated he lived on the property from 1963 to 1974 and was on the road three or four times a day during that period. Reeves testified he had seen the parish perform work on the road once while he was living there and had observed a parish operator on the property on another occasion but he was not doing any work at that time. Mr. Reeves stated he had personally maintained the road often along with maintenance conducted by Erwin Miller and the gas company.

Mr. Vincent Jabbia, an employee of Tennessee Gas Pipeline Company, testified on behalf of the defendants. Mr. Jabbia stated he was first on the property in 1966 and is. on the property about six to eight times a year supervising pipelines. Jabbia stated his company had placed some pit gravel on the road in 1974 to repair damage caused by the gas company. Jabbia testified he had never seen parish personnel working on the road nor other applications of gravel.

Mr. Erwin Miller, a heavy equipment operator, testified on behalf of the defendants. Mr. Miller stated he was first on the road in the early fifties to do work for Dr. Waddill. Miller stated he worked on the road an average of two to four times a year • and had never seen any parish equipment or personnel. He testified that when he worked the road, there was no indication of other maintenance by a heavy grader nor any general application of gravel other than to fill pot holes.

Mr. Paul Ransom testified that he has farmed the property since 1953 and the road is used for farming purposes. Ransom stated he is on the property quite frequently and that the road is primarily maintained with farm equipment. Ransom testified there had been no gravel applied by the parish on the entire length of the road. Ransom stated although he had seen Lowery on the property, he had never seen Lowery performing work on the road. Ransom further testified that he had never seen parish equipment or personnel on the road during the period of 1977 through 1979. Mr. Ransom stated that when he observed a parish highway sign on the road, he immediately contacted the police jury and requested that it be removed.

The evidence established that the property was clearly posted as private and that the general public did not travel the road.

In his written reasons for judgment, the trial judge reviewed the testimony of all the witnesses. The court noted that plaintiffs had to rely primarily on the parish records and testimony of the parish grader operator to establish public maintenance under the statute as the testimony of the other witnesses was based upon their assumption that the parish was maintaining the road. The court further noted that many of the witnesses for the defense had employment or family connections to the defendants and these interests should be taken into account in assessing the weight and credibility of their testimony. However, the court stated that even if such factors were given the maximum emphasis, the defense evidence and testimony of the parish operator would remain irreconcilable. The court found that the testimony of the witnesses did not support the degree of maintenance described by the operator and computer records. The court concluded that while it was more probable than not that an occasional blading or smoothing of holes may have been performed by parish equipment and personnel, there had never been regular and frequent maintenance as required by the statute. Further, plaintiffs failed to prove that the defendants had acquiesced to or had necessary knowledge of any such parish work as required under Vaughn v. Williams, 345 So.2d 1195 (La.App.2d Cir.1977), writ denied 350 So.2d 896.

On appeal, the following issues are before this court:

(1) whether the trial court erred in not finding dedication in accordance with LSA-R.S. 48:491 or necessary knowledge of or acquiescence in parish work by the defendants;

(2) whether the trial court erred in its assessment and consideration of the testimony of the witnesses; and

(3) whether the trial court erred in its interpretation and application of Vaughn, supra, to the facts of the instant case.

LSA-R.S. 48:491 provides in pertinent part:

B. All roads or streets in this state which have been or hereafter are kept up, maintained, or worked for a period of three years by authority of a parish governing authority within its parish, or by authority of a municipal governing authority within its municipality, shall be public roads or streets, as the case may be, unless in the parish of Vermillion only such maintenance operations are conducted by authority of a parish or municipal governing authority pursuant to a written contract with the landowner which specifies that a private road or street shall not become a public road or street. Plaintiffs contend that the Sam Garner

Road was tacitly dedicated to the public as required under the statute.

It is well settled that an “. .. occasional ‘brushing up’ or token maintenance does not establish a tacit dedication. Jackson v. Town of Logansport, 322 So.2d 281 (La.App.2d Cir.1975) and authorities cited therein.” Vaughn, supra, at p. 1198. See also Boynton v. Bertrand, 309 So.2d 769 (La.App.3d Cir.1975); Rowe v. Harvey, 307 So.2d 103 (La.App. 1st Cir.1974), writ denied 310 So.2d 642; Chargois v. St. Julien, 280 So.2d 847 (La.App. 3d Cir.1973).

Although “[t]acit dedication does not result where active opposition is directly communicated by the landowner to the governing body ... protests not made directly to the governing body or made after the road has been maintained by the governing body for three years do not prevent a tacit dedication under the statute.” Vaughn, supra, at p. 1198, and numerous citations therein.

The requisite maintenance for tacit dedication is not ascertained by comparison to the degree of maintenance of similar roads in a particular ward but rather an examination of the degree of maintenance conducted on the particular road in dispute. The standard of requisite maintenance is uniform, rather than ward by ward.

Upon a review of the record in the instant case, this court finds that the evidence supports the finding of the trial court that the road had not been tacitly dedicated and the judgment of the trial court is not clearly wrong.

Plaintiffs’ witnesses, Stewart and Wil-hite, had never actually seen parish personnel or equipment working on the road but merely assumed that the parish was maintaining the road. Gary Heath had seen maintenance work conducted on the road several times but could not identify the equipment or operator and McMullen had only actually observed grading by the parish five or six times. The testimony of the witnesses as to the condition of the road simply does not support the degree of maintenance indicated by the computer records or the testimony of the parish grader operator, Lowery.

The testimony of defendants’ witnesses revealed that considerable private maintenance was performed on the road. Further, only one of the defendants’ witnesses, Ronald Reeves, had actually seen the parish maintaining the road even though the road was frequently traveled by these witnesses. The owners were not aware of any public maintenance over the years. In fact, when the parish placed a sign on the road, Ransom immediately contacted the police jury to have it removed.

We agree with the trial court that it is probable that the parish did occasional maintenance on the road but not to the degree or duration necessary for tacit dedication.

Plaintiffs argue that the trial court erred in its assessment and consideration of the testimony of Mr. Lowery as “mistaken or confused” and of the defendants’ witnesses’ testimony because of possible bias.

In his reasons for judgment the trial judge noted that the evidence amply supported the conclusion that the road had never been covered with gravel on two occasions as claimed by Lowery. Therefore, the court concluded that the grader operator was simply mistaken about the gravel applications either because Lowery’s memory was erroneous or because he had confused the disputed road with others in the vicinity. Also in reviewing the evidence, the trial judge noted the possibility of bias of several of the defendants’ witnesses.

The standard of review for this court is clear. The factual conclusions and assessment of credibility by the trier of fact are entitled to great weight. Further, where the testimony is conflicting “. .. 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.” Schiro v. Viola, 408 So.2d 408 (La.App. 1st Cir.1981), at p. 411. See also Rahm v. Exxon Corporation, 399 So.2d 676 (La.App. 1st Cir.1981) and Graff v. Graff, 407 So.2d 70 (La.App. 4th Cir.1981).

The record fully supports the decision of the trial court. The testimony of Mr. Lowery as to the maintenance of the road until his retirement in 1977 conflicts with the testimony of the defense witnesses, the majority of which never observed parish equipment or personnel maintaining the road. Further, the evidence as to the condition of the road is irreconcilable with Lowery’s testimony.

A number of the defendants’ witnesses had employment or family ties with the defendant which the court considered in weighing the evidence. However, defendants were necessarily restricted in possible witnesses as the road was generally closed to the public and most of these witnesses had either worked or lived in that area.

Plaintiffs argue that the trial court erred in its interpretation and application of Vaughn, supra. The plaintiffs contend the trial court seemed to hold that in order for LSA-R.S. 48:491 to apply, the plaintiffs must prove the landowner knew or acquiesced in the maintenance. Therefore, plaintiffs theorize that if such is a required element of proof then the landowner could effectively avoid application of the statute by simply a denial of knowledge of public maintenance. This argument is without merit.

In his written reasons for judgment, the trial judge noted that in order to save LSA-R.S. 48:491 from constitutional attack as a “taking” without due process and compensation, there must be evidence of intelligent acquiescence or knowledgeable in action on the part of the landowner. The court concluded that plaintiffs failed to prove sufficient maintenance as well as necessary knowledge of or acquiescence in any parish work by the defendants.

It is necessary that some type of knowledge or acquiescence requirement be read into the statute in order to protect the property rights of a landowner. Otherwise the parish could maintain a private road for three years, despite a landowner’s protests, so that it would become tacitly dedicated to the public.

The statute could not be thwarted simply by a landowner’s denial of knowledge of public maintenance. Rather, one would have to examine the totality of the evidence to ascertain whether there was sufficient maintenance and whether the landowner had knowledge of or acquiesced in such maintenance.

LSA-R.S. 48:491 sets forth a two-pronged burden of proof in order for a road to be deemed tacitly dedicated. First, it must be shown there has been sufficient maintenance. Secondly, it must be shown that the landowner had knowledge of or acquiesced in the public maintenance.

In the instant case, plaintiffs failed to prove that there had been the degree of maintenance by the parish necessary under the statute. Because plaintiffs failed to meet this burden of proof, the issue of whether defendants had knowledge of or acquiesced in any public maintenance is irrelevant.

For these reasons, the judgment of the trial court is AFFIRMED at appellants’ costs.

      . Referred to by some witnesses as the “Riley Camp Road,” by others as the “Sam Garner Road.” and by some as merely the “farm road.”

      . The husband of Adele Waddill Ransom, one of the individual defendants.


text:
    Peggy W. CAUSEY, Plaintiff-Appellee, v. Billy Jack MONROE, et al., Defendant-Appellant.
    No. 15002.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 25, 1982.
    Rehearing Denied Dec. 9, 1982.
    Writ Denied Feb. 4,1983.
    Lawrence K. McCollum, Shreveport, for plaintiff-appellee.
    Mayer, Smith & Roberts by Alex F. Smith, Jr., Shreveport, for defendant-appellant.
    Before PRICE, MARVIN and JASPER E. JONES, JJ.
   JASPER E. JONES, Judge.

This personal injury case was tried only on the issue of quantum. The district judge rendered judgment for plaintiff, Peggy W. Causey, in the amount of $185,935.79, for past and future pain and suffering, disability, emotional damage and special damages. The defendant, plaintiff’s uninsured motorist carrier, Continental Casualty Company, appeals. We affirm.

Continental sets out one assignment of error: that the trial judge erred in awarding grossly excessive damages. Continental contends that the award of general damages should be reduced from $180,000.00 to no more than $18,000.00.

In support of its assignment of error Continental makes two arguments: (1) that the award includes some damages not caused by the accident; and (2) that the award is grossly excessive in light of the injuries.

Mrs. Causey is a schoolteacher. She is very intelligent and was 43 at the time of the accident. Before the accident plaintiff was a happy person and a sports enthusiast who greatly enjoyed activities such as tennis, badminton, basketball, Ping-Pong and water skiing. The lives of plaintiff, her husband and their two sons were built around family sporting activities.

Plaintiff was an excellent housekeeper before the accident. She also did yard work, including mowing and gardening, around her home.

Plaintiff was injured in an auto accident on April 27, 1979. The accident occurred when the car in which plaintiff was a passenger attempted to avoid a head-on collision, left the road and struck a culvert and was then struck by the other vehicle.

In the accident plaintiff suffered a compression fracture of the 4th lumbar vertebra. At the time of the trial she was diagnosed as suffering from residual effects from the healed compression fracture, chronic myoligamentous back strain, cervical disc syndrome, cervical myositis, ulnar neuritis and depression. Due to these conditions plaintiff has a permanent disability of 25%.

Since the accident plaintiff has lived in constant pain. She cannot engage in sports. She cannot do any yard work and can perform only light housework. She is often depressed and frequently cries.

Continental argues that the award should not include damages associated with plaintiff’s cervical problem, which was not reported to her physician until September 30, 1980, because she has not sufficiently proved it was caused by the accident of April 27, 1979. Continental contends that there has not been adequate proof of causation in light of the long delay in reporting the problem to the doctor.

In his excellent written reasons for judgment the trial judge noted the long delay in reporting the cervical problem. However, he also noted that this was consistent with plaintiff’s stoic nature and specifically found that plaintiff’s cervical injuries were caused by the accident.

The trial judge’s findings of causation are factual conclusions which we may not disturb absent manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Smith v. State, Through Dept. of Transp., Etc., 412 So.2d 685 (La.App. 2d Cir.1982).

The trial judge’s conclusions as to causation are strongly supported by the testimony of plaintiff’s treating physician, Dr. William Bundrick, an orthopedist. Plaintiff testified she commenced having neck discomfort within a few days following the accident and this condition increased in frequency and intensity until September, 1980, when she could no longer endure the pain without obtaining medical treatment. Members of plaintiff’s family, her co-workers and friends all corroborated plaintiff’s testimony that she was having substantial neck discomfort long before she sought treatment for this condition in September of 1980. In view of this substantial evidence we find no error in the trial judge’s conclusion that the accident of April 27, 1979, caused plaintiff’s cervical injuries.

We now turn to Continental’s contention that the award is grossly excessive in light of the injuries. Continental argues that plaintiff’s injuries are not severe enough to warrant this award because of the relatively small number of doctor visits and drugs used in their treatment. Appellant further contends that because plaintiff returned to work ten days after the accident and thereafter missed work only for seven days while hospitalized for her neck injury in October, 1980, her injuries do not justify the award she received.

The trial judge found that “[Ejven at the trial of this case it was noted that plaintiff was not prone to exaggerate or overstate her complaints or symptoms.” Numerous witnesses, including Dr. Bundrick, described plaintiff as a person who does not complain. Included within the trial judge’s reasons for judgment were the following findings of fact: (A) “... that plaintiff has suffered pain at home and at school under conditions when others would have been in the hospital and would have been unable to report for work.” and (B) “Plaintiff now experiences pain on sitting, standing, bending and on any type of strenuous activity. She cannot do her normal and customary housework chores, because she is now only able to do light household activities and dusting. She cannot lift, cannot grocery shop and lift groceries or stand in line. Plaintiff has difficulty teaching because she cannot move around the classroom or bend over students or lift books, and she cannot stand for long periods or sit for long periods without pain. She suffers constant pain in the low back and shoulders in addition to her left hand and fingers. She has continued teaching only because she felt that it was financially necessary for her to do so.” These conclusions are strongly supported, if not compelled, by the record.

We attach no significance to plaintiff’s failure to make more visits to the doctor, nor that she did not have numerous extensive absenses from her work. It is apparent that this lady is a strong woman with unusual physical and mental tenacity and she was bravely attempting to get back to the business of living her life, as best she could, with her permanent, painful injuries.

We now consider whether the trial judge’s award for these particular injuries and their effect on this particular plaintiff represents a clear abuse of his much discretion. Reck v. Stevens, 373 So.2d 498 (La.1979). We conclude that the trial judge did not abuse his discretion.

Plaintiff was injured when the car in which she was a passenger struck a culvert and collided with another car. The force of the collision hurled her from the seat and caused her back to hit the dashboard with such force that it crushed the glove compartment. After the accident plaintiff was conscious and in extreme pain. She remained in the car for 45 minutes until an ambulance arrived.

Plaintiff was then taken to the emergency room of the Bossier General Hospital where her condition was diagnosed as only severe bruising. Plaintiff was given a prescription for pain medication and released. Plaintiff required assistance to get off the examining table at the hospital and into bed when she got home.

Plaintiff remained at home in bed for nine days following the accident. She could not take the prescribed pain medication because it contained codeine to which she is allergic. Instead, she took extra-strength Tylenol but got no noticeable relief from her constant pain.

Despite the pain plaintiff felt it was necessary for her to return to work as a teacher. After returning to school plaintiff continued to suffer severe pain and concluded that the initial diagnosis of her condition must have been incorrect. She then made an appointment to see Dr. Bundrick.

Plaintiff first saw Dr. Bundrick May 8, 1979. He examined plaintiff and found severe spasm in the muscles of her lower back. An x-ray revealed a compression fracture of the 4th lumbar vertebra. Dr. Bundrick also diagnosed plaintiff as having suffered an acute myoligamentous strain. He prescribed a lumbosacral corset, muscle relaxants and analgesics.

By August 24,1979, the compression fracture had healed but Dr. Bundrick diagnosed the myoligamentous strain as chronic. He felt that plaintiff suffered a permanent disability of 15% because of her back injury. Dr. Bundrick was of the opinion that plaintiff would suffer pain from prolonged sitting or standing and that she should avoid lifting, bending, stooping and strenuous activities.

On September 30,1980, plaintiff returned to Dr. Bundrick complaining of pain in the left side of her neck and extending down into her left arm. X-rays revealed a narrowing of the C5-6 disc space with early degenerative changes. Dr. Bundrick diagnosed a cervical disc syndrome and cervical myositis and treated plaintiff with injections of xylocaine and cortisone and gave plaintiff prescriptions for analgesics and muscle relaxants.

Due to increasing neck pain plaintiff was hospitalized from October 3 to October 10, 1980. While hospitalized plaintiff developed ulnar neuritis in her left arm. This condition causes pain in plaintiff’s left arm and hand and a clawing of the 4th and 5th fingers of her left hand.

Dr. Bundrick examined plaintiff on May 26, 1981. At that time he considered her various physical problems permanent. Due to their cumulative effect he considered plaintiff to have a 25% permanent disability. He opined she would permanently have pain and advised that she avoid lifting, bending, stooping and strenuous activities.

Plaintiff was also examined by Milton Rosenzweig, a clinical psychologist. He found her to be suffering from a mild to moderate elevation of anxiety and depression. He was of the opinion that plaintiff should seek counseling in order to avoid greater emotional problems.

Plaintiff presented testimony from several witnesses as to the changes in her personality. She was shown to have become sad and depressed since the accident. She frequently cries now. She has changed from being a leader and organizer of activities such as cookouts and shopping trips with friends, to being a reluctant, limited participant in such events.

The pain from her injuries prevents plaintiff from engaging in activities such as tennis, water skiing and other sports. Pain limits plaintiff to doing only light housework and she can no longer do yard work at all. Because of financial necessity plaintiff continues to teach school even though she frequently suffers pain in performing her necessary classroom duties.

The physical and emotional injuries suffered by this plaintiff would greatly damage anyone. However, they were particularly damaging to plaintiff because of her lifelong emphasis on sports and outdoor activities. As a result, these injuries have destroyed a very important element of plaintiff’s life.

In light of these injuries and their effect on this plaintiff there was no abuse of discretion by the trial judge in making this award. The judgment of the district court is affirmed at appellant’s costs.

AFFIRMED.

      . Q. “Would you say more likely than not, with her previous health being excellent, no problems with the neck, and no intervening injuries, that this [the accident of April 20, 1979] would be the cause of her neck problems?”
      A. “I would say more likely than not it would be, because this causes injury to the disc tissue.” Rec. p. 212.

      . Dr. Bundrick explained that ulnar neuritis is damage to or scarring of the ulnar nerve. Here it was caused by plaintiffs attempts to move without using her painful back by propping upon her elbows.