author: EDWARDS, Judge.

text:
    Lesley MECHE v. ARTHUR G. McKEE & COMPANY, INC. and General Accident Fire & Life Assurance Corporation.
    No. 14841.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.

      James W. Murray, Robert R. Rainer, Baton Rouge, for plaintiff-appellee Lesley Meche.
    James E. Moore, Baton Rouge, for third party defendant-appellee Universal Corp.
    John W. L. Swanner, Baton Rouge, for defendants-appellants Arthur G. McKee & Co., Inc. and General Ace. Fire & Life As-sur. Corp.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   EDWARDS, Judge.

Plaintiff, Lesley Meche, is a pipefitter who injured his right wrist on December 26, 1978, while working for the defendant, Arthur G. McKee & Company, Inc. (“McKee”). Meche was injured when a pipe wrench he was using slipped, causing him to fall and land on his right wrist and hand. Plaintiff was taken to a company doctor who referred him to an orthopedist, Dr. Jackson.

Dr. Jackson first saw Meche on December 28, 1978. His original diagnosis was that plaintiff had suffered an impacted fracture of the radius. Later, Dr. Jackson discovered that plaintiff had also suffered a chip fracture of the capitate, a bone located in the wrist. Dr. Jackson’s treatment of Meche’s wrist included applications of casts, physical therapy, cortisone shots, sympathetic nerve blocks and surgery. On November 26,1979, Dr. Jackson released plaintiff to return to work. At that time, plaintiff’s wrist had healed but he still complained of severe pain which Dr. Jackson had been unable to alleviate.

Meche returned to work in December of 1979. He had received workmen’s compensation benefits from General Accident Fire & Life Assurance Corporation (“General Accident”), McKee’s workmen’s compensation insurer, from the time of his injury. Those benefits were terminated December 24, 1979, when Meche returned to work.

After his return to work, Meche worked as a pipefitter for several different employers at several jobsites. These jobs were obtained through Meche’s local trade union. Meche testified that he was in constant pain while working on each of these jobs. Plaintiff also testified that the severe pain in his wrist and weakness in his hand and wrist prevented him from performing many tasks and from being able to use many of the tools of his trade. At all times after his return to work, Meche wore a cloth splint, prescribed by Dr. Jackson, on his right hand.

In the summer of 1980, Meche went to work for Universal Corporation at the Exxon plant in Baton Rouge. On August 26, 1980, while working for Universal, Meche “thumped” a pipe with his right hand in order to line it up with another pipe. This action temporarily caused the pain in his hand and wrist to intensify.

After that incident, Dr. Jackson had Meche fitted with a plastic laminate brace. This brace, which relieved plaintiff’s pain, completely immobilizes his right wrist, allowing movement only in his fingers. Plaintiff has been unemployed since being fitted with this new brace. His local union will not send him out on any jobs since the brace deprives him of full use of his right hand.

Meche filed suit against McKee and General Accident, seeking workmen’s compensation benefits for total and permanent disability. In their answer, defendants denied any liability to plaintiff for compensation benefits. Defendants also filed a third-party demand against Universal Corporation, alleging that any disability suffered by Meche was the result of the August 26, 1980, incident, which occurred while he was employed by Universal. McKee and General sought recovery from Universal for any amount which they might be held to owe plaintiff on the main demand. Trial on the main demand was severed from that of the third-party demand.

After trial on the main demand, the trial court rendered judgment in favor of Meche and against McKee and General Accident, decreeing plaintiff to be totally and permanently disabled as of December 24, 1979, and entitled to weekly compensation benefits of $141.00 per week from that date. Defendants were given a credit for all sums earned by plaintiff since that date. Defendants were further held liable for statutory penalties on all benefits due from August 28,1980. Finally, plaintiff was awarded attorney fees in the sum of $3,500.00.

Defendants’ motion for a new trial was denied. Plaintiff’s motion for a partial new trial, on the issue of a credit for wages earned by Meche since December 24, 1979, was granted. After argument on the partial new trial, the trial court issued its final judgment.

The trial court’s final judgment carried forth the same provisions as the earlier judgment, except that the portion giving defendants credit for all sums earned by plaintiff since December 24,1979, was omitted. Additionally, trial on the third-party demand having been completed in the interim, the court rendered judgment in favor of third-party defendant, Universal, and against third-party plaintiffs, McKee and General Accident, dismissing the third-party petition.

McKee and General Accident have sus-pensively appealed, making the following specifications of error:

1. The trial court erred in finding that Lesley Meche was totally and permanently disabled as a result of an injury sustained while working for McKee.
2. The trial court erred in failing to allow McKee and General Accident credit for the sums earned by Meche after December 24, 1979.
3. The trial court erred in dismissing the third party demand of McKee and General Accident against Universal Corporation.
4. The trial court erred in awarding Meche penalties and attorney’s fees.

Meche has answered that appeal, seeking an increase in attorney fees for representation on appeal. Each specification of error will be treated separately.

Meche’s Disability

Defendants do not contend that Meche is not totally and permanently disabled. They assert, however, that any disability suffered by Meche is not the result of the December 26, 1978, accident which occurred while Meche was working for McKee. Defendants note that Meche returned to work in December of 1979 and worked through August of 1980. They assert that any disability suffered by Meche is the result of the accident which occurred on August 26,1980, while he was working for Universal.

The trial court made a factual finding that plaintiff was totally and permanently disabled in November of 1979, when Dr. Jackson released him to return to work. The court found that Dr. Jackson allowed Meche to return to work as a form of therapy and in order to help plaintiff financially. Such a factual finding of disability is not to be disturbed on appeal in the absence of manifest error. Cadiere v. West Gibson Products Company, Inc., 364 So.2d 998 (La.1978); Aleman v. Lionel F. Favret Co., Inc., 349 So.2d 262 (La.1977); Canter v. Koehring Company, 283 So.2d 716 (La.1973).

A review of the record on appeal, far from revealing any manifest error, yields the conclusion that the evidence amply supports the trial court’s factual findings. In his letter to General Accident of November 26, 1979, Dr. Jackson advised that Meche was released to return to work but should expect “weakness and continued symptomatology.” Dr. Jackson testified, by way of deposition, that he knew that stiffness, pain and weakness in plaintiff’s wrist would prevent him from doing much pulling, twisting or lifting. Dr. Jackson admitted that plaintiff could not perform his regular job, but thought that the therapy of work might be beneficial. He also noted that returning to work would benefit Meche financially.

The evidence reveals that plaintiff’s return to work did not yield the expected therapeutic results. Plaintiff testified that he suffered from severe pains in his wrist and took pain pills constantly. He was unable to do the types of climbing, twisting and heavy lifting which his occupation required. Meche testified that he was unable to use a number of tools which a pipefitter is required to use. Several of plaintiff’s co-workers testified that plaintiff was unable to perform the tasks and use the tools required by his trade. They testified that it was necessary for his fellow workers to “carry” him on the job, that is, do those tasks which plaintiff would ordinarily have done himself. Dr. Jackson testified that it was his belief that plaintiff’s complaints of unendurable pain were genuine.

This evidence provides a reasonable basis for the trial court’s factual finding that plaintiff was totally and permanently disabled as a result of the accident which occurred on December 26,1978. Plaintiff is 48 years old and has a seventh-grade education. His only job training and experience is as a pipefitter. The plastic laminate brace which he is required to wear renders him unable to work at that trade. Without the brace, the substantial pain which plaintiff suffers, as a result of the December 26, 1978, accident, renders him totally and permanently disabled. See Richard v. Standard Fittings, 379 So.2d 33 (La.App. 3rd Cir. 1979).

Credit for Plaintiffs Earnings

As noted above, the trial court amended its original judgment and denied defendants any credit for wages paid to Meche after his return to work in December, 1979, until he left work in August, 1980. Defendants assert that they are entitled to a credit for those wages. .

The law with respect to an employer’s right to credit for wages is summarized in LeBlanc v. Mangel’s of Louisiana, Inc., 306 So.2d 422 (La.App. 3rd Cir. 1975), as follows:

“The basic test in Louisiana for determining whether wages are paid in lieu of compensation is whether the wages paid after the injury are actually earned. Lindsey v. Continental Casualty Company, 242 La. 694, 138 So.2d 543 (1962); Madison v. American Sugar Refining Company, 243 La. 408, 144 So.2d 377 (1962). This issue depends on the facts of each case. Madison v. American Sugar Refining Company, supra; Francis v. Kaiser Aluminum and Chemical Corporation, 225 So.2d 756 (La.App. 4th Cir., 1969); Daigle v. Liberty Mutual Insurance Company, 205 So.2d 507 (La.App. 3d Cir., 1968). No inference arises that wages were paid in lieu of compensation from the fact that the work performed after the accident was lighter or dissimilar from that done prior to the accident. Ledoux v. William T. Burton Company, 171 So.2d 795 (La.App. 3d Cir., 1965).” 306 So.2d at 426.

The trial court properly denied any credit for wages paid to plaintiff. The trial court found, and the evidence reveals, that plaintiff performed substantial work during his periods of employment. Although his disability prevented him from performing many of the tasks he ordinarily would have done, Meche was actually performing physical labor and earning his salary.

Defendants’ claim for a credit for the wages paid Meche is meritless for another reason. Meche was not employed by McKee from December, 1979 through August, 1980. During this time period plaintiff worked for several employers, having obtained the job through his local trade union. Even if this court were to accept the unlikely assertion that these subsequent employers gratuitously paid wages to Meche and received nothing in return, defendants would not be entitled to any credit for those sums. An employer or its insurer is only entitled to a credit for wages which the employer itself pays in lieu of compensation.

Third-Party Demand

McKee and General Accident contend that the trial court erred in denying their third-party demand against Universal. The third-party plaintiffs maintain that the August 26, 1980, incident, when plaintiff “thumped” a piece of pipe with his hand while employed by Universal, was an accident which caused plaintiff’s disability.

A right of contribution exists if an additional accident is suffered by an employee while working for a subsequent employer if that accident has a causal relationship with the employee’s disability. Lum v. Tri-State Insurance Company, 252 So.2d 157 (La.App. 2nd Cir. 1971); Landry v. Bituminous Casualty Company, 244 So.2d 105 (La.App. 3rd Cir. 1971). Third-party plaintiffs argue that the incident which occurred while Meche was working for Universal was an “accident” within the meaning of the workmen’s compensation statute and, therefore, they have a right of contribution from Universal.

It is not necessary for this court to determine whether the “hand thumping” incident constitutes an “accident” within the meaning of the compensation statute, or is merely a manifestation of the disability caused by Meche’s original accident. Assuming, arguendo, that the “hand thumping” incident was an “accident,” there is still no right of contribution. As noted above, for a right of contribution to exist there must be a causal relationship between the employee’s disability and the accident which occurs while working for the second employer. The trial court’s reasons for judgment indicate that the court found no causal relationship between plaintiff’s disability and the incident which occurred while he was working for Universal.

The trial court found that plaintiff was totally and permanently disabled at the time he returned to work in December, 1979, and that the “hand thumping” incident of August, 1980, was unrelated to that disability. There is no manifest error in that factual finding. Canter v. Koehring Company, supra. The evidence in the record supports the finding of no causal relationship between the “hand thumping” incident and plaintiff’s disability. Dr. Jackson, in a letter to counsel for Universal, stated his opinion as follows:

“Regarding Mr. Meche’s injury of August 28, 1980, it was my opinion at that time that he had merely aggravated a chronic condition. Because of the intensity of his pain, I recommended that he obtain a rigid wrist brace which would hopefully allow him to continue working. I learned from Mr. Meche later that the union steward on the job would not let him work with this brace on. I believe that it is safe to say that the reported injury of August 28, 1980 did not precipitate his becoming totally disabled for work, rather the rigid brace which was ordered was the principal cause. The fact that the brace was ordered at that particular time was perhaps more coincidental than anything else. I believe that Mr. Meche’s disability related to the original occupational injury and not the reported accident of the above date.”

There is no error in the denial of the third-party demand.

Penalties and Attorney Fees

The trial court found that defendants were justified in terminating compensation benefits as of December 24, 1979, when Meche returned to work. However, the court noted that defendants knew plaintiff was working in pain after that time and found that the refusal to reinstate compensation benefits was arbitrary and capricious. The court held that plaintiff was entitled to penalties from August 28, 1979, and to attorney fees in the amount of $3,500.00.

Defendants assert that the refusal to reinstate benefits was not arbitrary and capricious. They contend that their refusal was reasonable because Meche had aggravated his condition while working for Universal. This argument is closely related to defendants’ claim that the “hand thumping” incident, which occurred while plaintiff was working for Universal, was a contributing cause of plaintiff’s disability.

Even if the “hand thumping” incident had borne a causal relationship to plaintiff’s disability, defendants’ refusal to reinstate benefits would have been arbitrary and capricious. When two or more accidents, suffered while working for different employers, are contributing causes of disability, each employer is solidarily liable to the claimant for compensation benefits. Lachney v. Employers Com. Union Insurance Co., 337 So.2d 624 (La.App. 4th Cir. 1976). Thus, defendants’ belief that Universal might also be liable to plaintiff for compensation benefits did not relieve them of the same obligation. Rather than denying benefits, defendants should have paid them and then brought an action against Universal for the contribution to which they thought they were entitled.

There is no manifest error in the trial court’s finding that defendants’ refusal to reinstate benefits was arbitrary and capricious. The evidence reflects that defendants were aware that plaintiff was working with a great deal of pain. Dr. Jackson advised them by letter that the “hand thumping” incident at Universal was “a continuation of his pre-existing problem.” The trial court correctly awarded plaintiff penalties and attorney fees.

Plaintiff has answered defendants’ appeal, seeking an increase in attorney fees for representation on appeal. An additional award of $1,500.00 will adequately compensate plaintiff for the additional efforts on his behalf made necessary by the appeal.

For the foregoing reasons, the judgment of the district court is amended to increase the award of attorney fees to the sum of $5,000.00. As amended, the district court judgment is affirmed. All costs of these proceedings are to be paid by defendants-appellants.

AMENDED AND AFFIRMED.

      . The extract of the district court minutes reveals that at the trial of the third-party demand, after Universal introduced documentary evidence, all parties adopted the prior testimony presented on the main demand.


source: Caselaw Access Project

author: SHORTESS, Judge.

license: Public Domain

text:
    Mark J. LAMARTINIERE, et al. v. ALLSTATE INSURANCE CO., et al.
    No. 14843.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.

      Ron S. Macaluso, Hammond, for plaintiffs.
    Thomas F. Wade, Baton Rouge, for State of La., through office of State Fire Marshal or Dept, of Public Safety.
    Plauche F. Villere, Jr., and Donald En-senat, Asst. Atty. Gen., New Orleans, for Emerson G. Wilkerson and State of La.
    James F. Abadie, Baton Rouge, John J. Hainkel, Jr. and Michael K. Fitzpatrick, New Orleans, for Allstate Ins. Co. and Samuel A. Robertson.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   SHORTESS, Judge.

Mark J. Lamartiniere and Rita B. Lamar-tiniere (plaintiffs-appellants) brought this suit against the State of Louisiana, through its Office of State Fire Marshal and/or Department of Public Safety; and Emerson G. Wilkerson, individually and as an employee of the State Fire Marshal’s Office. Plaintiffs allege that defendants individually and in concert acted and conspired to deprive them of their State constitutional rights, generally and specifically to deprive them of certain benefits arising from a homeowner’s policy of insurance issued by Allstate Insurance Company. They also allege that as a result of defendants’ actions, they were arrested, prosecuted, and suffered a loss of income and other damages. They allege that their house was damaged by fire on November 27, 1977, and that the defendant Wilkerson, acting under color of law as an employee of the State Fire Marshal’s Office, conducted an illegal search and caused them to be falsely arrested and incarcerated, and prevented them from receiving the insurance benefits from their homeowner’s policy. Plaintiffs’ suit is styled as a petition for damages, breach of contract, penalties and attorney’s fees. The stated causes of action sound in intentional tort, negligence, and false arrest.

Plaintiffs also filed a complaint in the U. S. District Court for the Eastern District of Louisiana, alleging a violation of their civil rights under Title 42 of the U.S.Code, §§ 1983,1985 and 1986. The Federal Court dismissed plaintiffs’ suit after trial on June 18, 1980, holding that, “Not every search which is ultimately declared illegal by a court gives rise to a damage action under Section 1983 and the other civil rights statutes,” and, “There is no evidence of any conspiracy that would impose liability upon the defendant (Wilkerson) under Section 1985 or 1986.”

Armed with the Federal Court dismissal, the defendants filed an exception of res judicata and argued that the entire case had been tried in the U. S. District Court; and that the facts presented in the Federal suit were identical to the facts here. The trial court agreed, sustained the exception, and dismissed plaintiffs’ suit, prompting this appeal.

Article 2286 of the Civil Code provides: The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality.

In Mitchell v. Bertolla, 340 So.2d 287 (La.1976), the Supreme Court clarified any confusion over the language, “cause of action,” in C.C. Art. 2286, and said:

The cause is said to be the juridical or material fact which is the basis of the right claimed, or the defense pleaded. 2 Planiol, Traite Elementaire De Droit Civil, 34 (11 ed. 1939). Stated otherwise: “... Cause is the principle upon which a specific demand is grounded while cause of action embraces the cause and the demand, and is related to the party making the demand... Maloney, Preclusion Devices in Louisiana: Collateral Estoppel, supra, at 165, footnote 41. 340 So.2d at 291.

Appellants concede that the facts presented in the two suits are substantially the same but say that the trial court erred in failing to distinguish between the differences in the causes of action asserted. We find that the Federal suit was dismissed on the finding that the plaintiff had no remedy under 42 U.S.C. 1983, 1985 and 1986. The suit before us, however, is based upon a cause of action under the Louisiana Constitution and the laws of the State of Louisiana. The causes of action are completely different and the exception of res judicata should have been overruled.

Accordingly, the judgment of the trial court is reversed, and this case is remanded for proceedings consistent with this opinion. Costs of this exception are taxed to defendants-appellees.

REVERSED AND REMANDED.


author: LOTTINGER, Judge.

text:
    Louis DAVIS, Jr. and Alice Davis v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO.
    No. 14844.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.
    Robert D. Hornstein, St. Gabriel, for plaintiffs-appellees Louis Davis, Jr., and Alice Davis.

      Charles A. Schutte, Jr., George Mathews, Baton Rouge, for defendant-appellant State Farm Mut. Auto. Ins. Co.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   LOTTINGER, Judge.

This is a suit by Louis Davis, Jr. and his wife, Alice, against State Farm Mutual Automobile Insurance Co. (State Farm) to enforce coverage under an insurance contract issued by State Farm to the Davises. State Farm denied coverage, contending that the contract had been rescinded because of misrepresentation in the application. La.R.S. 22:619. From a trial court judgment finding no material misrepresentation, the defendant has appealed.

FACTS

Prior to May 16, 1980, Mr. Davis was seeking automobile insurance because a previous policy with another insurance company had been cancelled for nonpayment of premium. An appointment was set up between Mr. Davis and David Brian, a State Farm agent, to take place on May 16, 1980, at a Baton Rouge restaurant. Mr. Davis was interested in insuring two vehicles, a 1979 Buick Regal, and a 1978 Ford Van. As the two sat across the table from each other, Mr. Brian commenced filling in the application form by asking Mr. Davis the questions appearing thereon. General information was filled in, and Mr. Brian then asked the following questions:

“During the past 5 years, has the applicant, any household member, or any regular driver:
“a. Had license to drive or registration suspended, revoked or refused? Yes _No _
“b. Been the driver in any automobile accident or loss? Yes _ No _
“c. Been convicted (or forfeited bail) for traffic violations? Yes _No_”

Both Mr. Davis and Mr. Brian agree that the questions were read to Mr. Davis as they appeared on the application. Mr. Davis admitted that he answered “no” to sub-part “a.” However, Mr. Davis claims he answered “yes” to subpart “b” and advised Mr. Brian of one accident. The application shows a red light violation in March of 1980 and Mr. Davis contends he told Mr. Brian about two speeding tickets which were about two and one half to three years old. Mr. Davis does not contend he reported any violations concerning his wife. It appears that a second inquiry was made by Mr. Brian because of his concern that the previous insurance policy had been cancelled during its contracted term. It was at this second inquiry that Mr. Brian was reportedly told of the red light violation.

A check by State Farm with the Department of Motor Vehicles revealed the following violations:

Louis Davis—
1. March 1, 1980 — signs and signals;
2. May 14, 1978 — speeding;
3. May 19, 1977 — speeding;
4. March 4, 1978 — improper turn; and
5. December 20, 1978 — accident.
Alice Davis—
1. August 9, 1979 — signs and signals;
2. September 12, 1979 — speeding; and
3. March 5, 1980 — speeding.

The application was filled in on May 16, 1980, a Friday, received by State Farm on the 20th, a Tuesday, at which time it was returned because it lacked a “customization” report on the Ford Van. It was returned and received by State Farm a second time on the 29th at which time a motor vehicle report was ordered. The following day, May 30, a Friday, the initial decision to rescind the insurance policy was made because of the numerous traffic violations. This decision to rescind was reviewed by an underwriting supervisor on June 2, approved, and a rescission letter was sent out on June 4. Unfortunately, Mrs. Davis was involved in an accident on June 3, and same was reported to State Farm that day.

The Davises settled with the other party in the accident by paying the sum of $432.77. They have sued to recover this amount plus $1,223.29 for damages to their Buick Regal, as well as penalty and attorney fees.

SPECIFICATIONS OF ERROR

Defendant-appellant in appealing contends the trial judge erred:

(1) in excluding evidence offered by State Farm to show the misrepresentations made were material, and

(2) in applying a heavier burden of proof than the law requires to prove intent to deceive.

INTENT TO DECEIVE

The statute under which State Farm rescinded the insurance contract, and upon which it relies is La.R.S. 22:619 A which provides:

“Except as provided in Sub-section B of this Section and R.S. 22:692, no oral or written misrepresentation or warranty made in the negotiation of an insurance contract, by the insured or in his behalf, shall be deemed material or defeat or avoid the contract or prevent it attaching, unless the misrepresentation or warranty is made with the intent to deceive.”

To defeat coverage it is necessary to find an intent to deceive. The difficulty of proving intent to deceive is recognized by the courts, thus the courts look to the surrounding circumstances indicating the insured’s knowledge of the falsity of the representation made in the application and his recognition of the materiality of his misrepresentations, or from circumstances which create a reasonable assumption that the insured recognized the materiality. Cousin v. Page, 372 So.2d 1231 (La.1979).

When we review the facts as presented in the case sub judice, we are convinced that the trial judge was manifestly wrong in his decision.

The ever-increasing costs of automobile insurance has caused some insurance companies to conduct advertising campaigns explaining how a safe driving record can save a driver money when he shops for insurance. This advertising campaign has found its way into television, newspaper and radio. It is certainly hard to conceive that an automobile driver would not have been witness to such advertising and known that an accident-free or traffic violation-free driving record would save him money on his insurance. Here we are not dealing with a driver who for the first time is seeking to obtain insurance vis-a-vis the applicant in Cousin v. Page, supra. We must conclude that because of the previous insurance that Mr. Davis had, he had some experience in obtaining automobile insurance and the significance in answering all questions on the application truthfully.

The agent in question had only been working for State Farm for three weeks, but we fail to find any significance in this fact. Extensive training is conducted prior to the time that an individual is put out into the field as a State Farm agent. Mr. Brian certainly knew that a motor vehicle report would be ordered on the Davises, therefore it would be of no benefit to him to fail to insert the correct answers to those questions relating to traffic violations. It would be ridiculous to assume that an agent would spend time and effort in filling out an application and sending it in for approval when he knew full well that the applicant could not qualify for the insurance.

The applicant in this case is different from the applicant in Cousin v. Page, supra, in that here Mr. Davis knew of his own violations as well as those of his wife, and the questions asked applied very clearly not only to the applicant’s violations, but also to those of any household member. In the instant case Mr. Davis signed the application, whereas in Cousin the applicant did not. Because of the fact that he had had automobile insurance previously, he either knew or should have known of the importance of a driving record when seeking automobile insurance. The trial judge found as fact that both Mr. Davis and Mr. Brian were telling the truth. This we find to be manifestly in error. It is inconceivable to this court that someone who already has insurance, in applying for insurance with another company, can misunderstand the simple question: “During the past five years, has the applicant, any household member, or any regular driver: ... b. Been the driver in any automobile accident or loss? ... c. Been convicted (or forfeited bail) for traffic violations. ... ” To argue, contend or find that someone can misunderstand such questions begs the real question, that is, was the applicant telling the truth? It is further obvious to this court that of the two people sitting at the restaurant table filling out the application, the only one that did not realize that State Farm was going to run a motor vehicle report was the applicant, Mr. Davis. Therefore, we find a misrepresentation with intent to deceive, and find that Mr. Davis recognized the materiality of this misrepresentation.

The trial judge was of the opinion that the way to prove plaintiff knew the materiality of his driving record was to show that the previous policy had been cancelled, or a previous application had been denied, because of a driving record. In essence, the trial judge wants to give every deceiver one free bite at the insurance apple. That is not what the law provides, and that is not the only way to prove materiality.

MATERIALITY

The trial judge was also of the erroneous opinion that though the driving record of an applicant may be material to State Farm, it is'not necessarily material to the court. The significance of the materiality issue is that even if the information given by applicant was false, if the insurance company would have issued the policy anyway, then it is not material. It is abundantly clear in the case sub judice from the evidence submitted that had the State Farm agent known of the poor driving records of the Davises at the time of the application, he would have informed the Davises that he could not accept their application.

Therefore, for the above and foregoing reasons, the judgment of the trial court is reversed and there is now judgment in favor of defendants dismissing the plaintiffs’ suit, with plaintiffs to pay all costs both in this court and the trial court.

REVERSED AND RENDERED.

SHORTESS, J., concurs.

EDWARDS, J., concurs in the result only.

      . In his oral reasons for judgment the trial judge refused to accept that the plaintiffs or any person knows that driving records are important. He opined that the lawyers who litigate the cases, the underwriters and the agents know that they are important. It would certainly be a sad commentary on the advertising industry if, after having spent vast sums of money advertising the fact that safe driving records save insurance premium dollars, the insurance companies were only able to reach and inform certain lawyers, underwriters, and agents.


author: LEAR, Judge.

text:
    AUSTIN’S QUICK PRINT, INC. v. DEFERRED COMPENSATION CORPORATION OF LOUISIANA.
    No. 14849.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.

      Jim Austin, Baton Rouge, for plaintiff/appellee in pro. per.
    Daniel H. Taylor, Baton Rouge, for defendant/appellant.
    Before LEAR, CARTER and LANIER, JJ.
   LEAR, Judge.

Plaintiff, Austin Quick Print, Inc., brought this suit in Baton Rouge City Court to recover a sum allegedly due for services rendered to defendant, Deferred Compensation Corporation of Louisiana (DCCL), pursuant to an oral contract. Following the trial of this matter, judgment was rendered in favor of plaintiff and against defendant in the amount of $375.77, plus legal interest and court costs. From that judgment, defendant has devolutively appealed.

On March 13, 1981, Van, defendant’s employee, entered Austin’s Quick Print and placed an order with the shop’s owner, Jim Austin (Austin) for a number of copies of a form presented to Austin. This form was completely typewritten or printed, with the exception of three lines which were handwritten. Austin stated that he immediately noticed the handwritten portions of the form and asked Van, “Do you want us to print it like it is?”, to which she replied, “Yes, print it like it is.” He repeated the question to Van and received the same answer. According to Austin, Van also told him to darken up several of the handwritten letters, which were rather light, before printing the form. He stated that he used a ballpoint pen to do so in her presence. Austin further testified that items are duplicated in the exact form in which they are presented to him.

The order was completed several days later and picked up by Ms. Ann Bailey, an employee of defendant, who gave Austin a check in payment for this order. However, a stop payment order was subsequently placed on this check at the instruction of defendant’s president, Kenneth Womack. An attempt by Austin to work out some sort of arrangement with Womack was unsuccessful.

According to the testimony of Ms. Bailey, Womack was dissatisfied with the order due to the fact that the handwritten portions had been duplicated on the copies in that same form rather than having been first typeset and then printed. She stated that the forms were useless to defendant in this condition. Consequently, defendant subsequently had additional copies of this form printed by another company.

The sole issue is whether or not plaintiff fulfilled his obligation pursuant to the oral contract existing between the parties.

The evidence in the record adequately supports the judgment of the trial court. Austin testified that defendant’s employee, Van, told him that the form was to be printed exactly like it was. Additionally, he stated that Van pointed to several of the handwritten letters and told him to darken them before printing the form. Van did not testify at the trial nor is Austin’s testimony otherwise contradicted. Thus the rule that uncontradicted testimony should be generally accepted as true, except where obviously improbable, is applicable herein. Segall Company, Inc. v. Trahan, 290 So.2d 854 (La.1974); Hoover v. State, 393 So.2d 187 (La.App. 1st Cir. 1980).

There is no indication in the record that Austin’s testimony was obviously improbable or unreliable. Significantly, the trial judge specifically accepted Austin’s testimony with regard to Van’s statement that the form was to be printed exactly as it was presented. The trial judge obviously found Austin’s testimony to be credible. Such determinations by trial judges are entitled to great weight. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Rahm v. Exxon Corporation, 399 So.2d 676 (La.App. 1st Cir. 1981).

Accepting Austin’s testimony as true, as the record indicates it should be, it is clear that he complied with the instructions given to him by defendant’s employee, Van. The evidence makes it clear that she (Van) instructed him to print the form exactly as it was, handwritten portions and all. In fact, the evidence indicates that Van called Austin’s attention to certain handwritten portions, which had previously been “whited out” and then handwritten over. As to these “whited out” portions, Van requested that Austin darken these letters before printing, which he did with a ballpoint pen in Van’s presence.

From the evidence it is clear that plaintiff complied with Van’s instructions and fulfilled his obligations to defendant. The record indicates that, while there may have been a misunderstanding between defendant and its representative (Van), we find that there was no mutual error or mistake as between plaintiff and defendant, through its representative. Thus, defendant cannot now avoid its obligation under the contract on that basis.

Another argument advanced by defendant is that the contract should be invalidated on the basis that it made a unilateral error as to a substantial quality of the thing which formed the subject of the contract, i.e. that the handwritten portions would be typeset before being printed. Defendant claims this was the principal cause for making the contract.

While it is true that a contract may be invalidated for a unilateral error as to a substantial quality of the object of the contract, this rule is applicable only if the other party has been made aware of this principal motive for making the contract, or, if, from the nature and circumstances of the transaction it must be presumed that he knew. Griffin v. Seismic Services, Inc., 259 So.2d 923 (La.App. 1st Cir.), writ denied, 262 So.2d 38 (La.1972); Jefferson Truck Equipment Co. v. Guarisco Motor Co., 250 So.2d 211 (La.App. 1st Cir. 1971). In this instant case we find that Austin was not aware, nor should he have been aware, that defendant’s principal motive for making this contract was to obtain forms, which had to be completely typewritten; especially in light of our previous discussion of the evidence.

Our reading of the record as a whole reveals no manifest error, and the judgment of the trial court should therefore be affirmed. Canter v. Koehring Company, supra; Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

For the foregoing reasons, the judgment of the trial court is hereby affirmed. All costs, both at trial and on appeal, are to be paid by defendant-appellant, Deferred Compensation Corporation of Louisiana.

AFFIRMED.


author: LANIER, Judge.

text:
    Larry CHARPENTIER v. BOURG DRYDOCK & SERVICE CO., INC.
    No. 14854.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.
    Joseph J. Weigand, Jr., Houma, for plaintiff and appellant.
    S. Roger Wheaton, Jr., New Orleans, for defendant and appellee.
    Before LEAR, CARTER and LANIER, JJ.
   LANIER, Judge.

This is a suit for damages in tort which was filed on August 19,1977, claiming that Larry Charpentier was injured on the premises of Bourg Drydock & Service Co., Inc. in Terrebonne Parish on January 17, 1977, when he tripped on a piece of iron and twisted his knee. Answer was filed on September 23, 1977. The initial claim was for $55,500.00, but by two supplemental and amending petitions, the plaintiff increased his damage demands to $240,000.00 and, ultimately $945,000.00. This matter was tried and completed on August 14, 1979, and taken under advisement by the trial judge.

On May 14,1981, the trial judge rendered judgment in favor of the defendant and dismissed the plaintiff’s petition with written reasons. The trial judge held that the plaintiff’s testimony was unreliable and failed to establish that an accident occurred as alleged. In the alternative, the trial judge found that the plaintiff failed to prove the defendant was negligent by a preponderance of the evidence, and in the further alternative, held that if there was an accident as alleged by the plaintiff, that his claim was barred by his own contributory negligence. This devolutive appeal followed.

The version of what occurred given by the plaintiff at the trial is found at pages 70 and 71 of the transcript as follows:

“Q Tell the Judge what happened.
A Well, we was walking, and I was looking, you know, talking at him, I was looking down. They had a lot of, you know, plate of iron, angle iron .. I was walking, talking, and all of a sudden, my foot .. I pushed it sideways, you know. And I said a curse word.
Q Did you hit your foot on anything?
A A piece of iron.
Q Were you watching where you were going?
A Yeah, I was watching.
THE COURT: What is the name of this employee who invited you to have coffee? What was his name?
THE WITNESS: Glenn Pellegrin.
THE COURT: Who?
MR. WEIGAND: Glenn Pellegrin.
THE COURT: And earlier, I missed the date of your birth. Could you give me that right now?
THE WITNESS: October 10th, 1938. THE COURT: Thank you.
BY MR. WEIGAND:
Q Now, Mr. Charpentier, did you fall down?
A Uh, stepped myself up, stumbled there.
Q You stumbled there?
A Yeah.
Q You did not fall to the ground?
A No.
Q Where was Mr. Pellegrin?
A Aside of me.
Q Aside of you?
A Yeah.
Q And you said you said a swear word?
A (No response)
Q Did you say anything?
A I just said it to myself.
Q And then what happened?
A And then we keep on walking to the office.
Q Were there any men working in the area?
A Yeah, they have some men working. Barge and different things.
Q What time of day was it?
A At 10:30 in the morning.
Q Sit down now, Mr. Charpentier. Was it raining, or how was the weather that day?
A That day was pretty weather, it was cold. The night before, it had rained, you know, it took a north wind, you know.
Q A northerner?
A Yeah.
Q That was the day before?
A Yeah.”
(Emphasis added).

At pages 107 and 108 of the trial transcript, the plaintiff further described the incident as follows:

“Q You said a curse word. Did you mention anything to Mr. Pellegrin?
A I said, ‘It look like I hurt my knee, my leg, you know.’ And I said a curse word; I don’t if he hear me or not.
Q Did you say directly to him that it looks like your hurt your leg?
A No, I don’t know if he hear me.
Q I’m asking you, did you say it to him?
A Yeah.
Q Did he acknowledge it; did he say anything to you?
A He said, ‘Just keep on walking.’ He told me.
Q He told you to keep on walking?
A Yeah.
Q Did you talk to anyone else at Bourg Drydock that day?
A No.
Q But you had no further discussions about your leg?
A Yeah, I told him it was bothering me.
Q When was this?
A I came back from that office.
Q Where were you when you told him this the second time?
A Hum?
Q Where were you when you said this the second time?
A We was by the trailer.
Q Was there anyone present at that time?
A No.
Q Did you tell him that you’d like to report it to somebody?
A No. I thought it would go away.”
(Emphasis added).

The trial testimony of Glenn Pellegrin directly contradicts that of the plaintiff as evidenced by the following excerpt from page 137 of the transcript:

“Q Now, when you were walking with him in the shipyard, you say he was walking next to you or on the side of you?
A It was on the side of me, but it could have been slightly behind me.
Q Did you hear him curse at anytime when you were proceeding from the drydock to the office?
A No.
Q Did you hear him say anything?
A Not that I can recall.
Q Did he fall to the ground at anytime?
A I can’t say. I didn’t see him fall.
Q To your knowledge, you didn't see him fall?
A No, sir.”
(Emphasis added).

The testimony of the plaintiff at the trial is inconsistent with the testimony that he gave in his deposition taken on November 16, 1977. At page 17 of that deposition appears the following:

“Q Here let me retrace here. When you stumbled over the piece of iron, you say you didn't fall to the ground?
A No.
Q And did you continue to walk to the office?
A Yes.
Q Did you say anything about the incident to anyone?
A No.
Q Did you continue to work that day?
A I didn’t have any work. Just was waiting for the boat to pick it up, you know. No heavy stuff. Nothing like that.”
(Emphasis added).

Further, at pages 30 and 31 of the deposition of November 16, 1977, appears the following:

“Q What I’m asking, you say you stumbled at the site of the accident. Correct?
A Right.
Q Did you walk to the office?
A Yes.
Q Did you mention the stumble to anyone in the office?
A No.
Q Was it hurting when you were in the office?
A A little bit. Yes.
Q Did it — did the pain consistently grow over the three days?
A It was getting worse and worse.
Q You said there was a witness as to the accident. Is that correct?
A Yes.
Q Did you say anything to him at the time of the accident?
A I just said — I said like a cuss word. You know, I don’t know if he hear me or not, you know. When my leg, you know, it stay caught.
Q But previous to the site of the accident, were you walking with that witness?
A Yes.”
(Emphasis added).

At page 5 of the November 16,1977 deposition appears the following:

“Q Do you know what date the accident happened?
A Yes, sir.
Q Would you tell me that date?
A The date was January 17.
Q What year?
A 1977.
Q Do you know what time of day it happened?
A 10:30 in the morning.
Q Was it — how were the weather conditions?
A We had some thundershowers that day, you know.
Q Had it rained earlier?
A I don’t know about that.
Q Could you tell me in your own words what happened? Could you tell me what the — when the LADY RAMONA docked at Bourg Drydock?
A When?
Q When.
A Well, it was on a Monday. We came to drydock it was on a Monday.”
(Emphasis added).

Then at pages 12 and 13 of the deposition of November 16, 1977; appears the following:

“Q You noted that with an X. I’ll put a circle around it and indicate site of the accident. Would you tell me in your own words — describe the accident.
A You mean where it happened?
Q Yes.
A I was walking from the drydock and went to the office and I hit a piece of iron, you know. I stumbled myself. And I—
Q You stumbled. Did you fall down?
A No. I just, you know, it was just like, you know, not fall down completely. I didn't fall down.
Q So you caught your balance?
A That’s right.
Q Did you continue to walk after that?
A Yes.
Q Did you walk all the way to the office?
A Yes.
Q Did you — -when you stumbled, did you fell any pain?
A Yes. I feel some. That’s right.
Q Where did you feel it?
A Just like a — just like you’d be like— how you call that like. I know I don’t speak too much English. I believe they call that — I sprain my foot, you know. Just like — look at that. I sprain my foot.
Q So you felt a — the pain you felt was in your foot?
A Right.
Q Or was it somewhere else?
A I believe I sprain my foot. The first thing I said it was my foot, you know. I said. Maybe it was my leg, you know. I don’t know.”
(Emphasis added).

The first doctor that the plaintiff saw concerning this alleged incident was Dr. Sidney H. Warren, Jr. who examined the plaintiff on July 22,1977. In his deposition, dated May 15, 1978, at page 6, Dr. Warren recited the history given to him by the plaintiff as follows:

“A The individual came to see me and he said that in March of this year, the year being 1977, while apparently he was working, he had some problem with his — with a knee. And he stated that it apparently was a wet day and he must have — he just said he hurt his knee. And he told me that it was— that the knee was still painful at that time. He said he had some swelling, and he still basically was complaining of some pain.”
(Emphasis added).

The plaintiff next saw Dr. Peter H. Rhymes on July 28, 1977, and the history that he gave Dr. Rhymes is found at page 6 of the deposition of the doctor taken on November 29, 1978 as follows:

“Q Did he give you a history when you first saw him of what he thought caused the problem?
A He had said that on the 18th of January, some six months prior to that, he had caught his left foot under some iron. He fell and hurt his knee and since then, he’d had pain in his knee.”
(Emphasis added).

The plaintiff then consulted with Dr. Christopher E. Cenac on August 4, 1977, and the pertinent history which was given to Dr. Cenac is found at pages 111 and 125 of the trial transcript as follows:

“Q Doctor, to save time, would you please tell the Court and the attorneys in the Courtroom the first time you saw Mr. Charpentier, the history he gave you, the times you saw him, and the treatment you afforded to him?
A Mr. Charpentier was examined 8-4-77 for an injury sustained to his left knee on 1-17-77. History relates that he tripped on a piece of iron, falling and twisted his left knee.
Q Dr. Cenac, you keep using the word fall. Do you mean a fall to the ground, or a blow to the knee?
A Well, that’s the way it’s recorded in the history. It’s recorded that he tripped, then fell and during the course of falling■ twisted his knee. So, I presume he struck the ground.
Q Um, would the sumptoms that you observed at the time you began to treat the man be compatible with an injury that could have occurred, let’s say, later on in January of 1977? Could he have slipped and fell somewhere else and hurt his knee?
A Yes.
Q So when you say he fell in January of ’77, that’s based on a history that he gave you, and of course, nothing else?
A Correct.”
(Emphasis added).

At the trial, the plaintiff testified that he was walking with Glenn Pellegrin in the Bourg Drydock & Service Co. yard when he tripped on a piece of iron, stumbled, but did not fall, and twisted his knee; that the weather was pretty, but cold; that it had rained the night before; and that he said a curse word and told Glenn Pellegrin at the time and later on that day about the incident. This testimony is directly contradicted by Glenn Pellegrin who testified that he did not hear the plaintiff curse or see him fall or observe any incident on the day and time in question. The plaintiff’s trial testimony is inconsistent with that given in his deposition. In the deposition he denied reporting the incident to anyone and testified that there were thundershowers on the day in question, and that initially he thought he had sprained his foot, rather than his knee. On July 22, 1977, the plaintiff told Dr. Warren that he hurt his knee while working on a wet day in March of 1977. On July 28, 1977, he told Dr. Rhymes that he hurt his knee on January 18, 1977. On August 4, 1977, he told Dr. Cenac that he hurt his knee on January 17,1977. In his testimony at the trial and in his deposition, the plaintiff testified that he stumbled and twisted his knee, but at no time did he fall. The plaintiff told Drs. Warren, Rhymes and Ce-nac that he fell and hurt his knee.

The trial judge had an advantage that we do not have because he observed the appearance and demeanor of the witnesses at the trial. The trial judge considered their testimony and the depositions and determined that the plaintiff’s testimony was not worthy of belief, and thus failed to prove that an incident occurred as alleged. In view of the contradiction of the plaintiff by the testimony of Glenn Pellegrin and the impeachment of the plaintiff by his inconsistent statements given at trial, at deposition and to the three doctors, the trial judge was justified in reaching that conclusion. There is no ground for reversal of the trial judge’s decision. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

For the foregoing reasons, the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.


text:
    Paul SALVADOR, Jr. v. SLIDELL INDUSTRIES, INC., et al.
    No. 14857.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.

      Julian J. Rodrigue, Covington, for plaintiff-appellee.
    William R. Seay, Jr., Metairie, for defendants-appellants.
    Before LEAR, CARTER and LANIER, JJ.
   LANIER, Judge.

This is a workmen’s compensation suit, filed on April 3, 1980, seeking benefits for total and permanent disability, all unpaid medical bills and expenses and statutory penalties and attorney fees. An answer of general denial was filed on May 12, 1980. The trial of this matter was held and completed on March 26, 1981. Pursuant to written reasons dated March 31, 1981, the trial judge rendered judgment in favor of Salvador for total and permanent disability payments of $141.00 per week, $1,558.83 for unpaid medical bills and expenses, statutory penalties, a $5,000.00 attorney fee and all costs. This suspensive appeal followed.

I. FACTS

Prior to April 6, 1979, Paul P. Salvador, Jr. was a mechanic in the research and development department of Slidell Industries, Inc. (hereinafter referred to as Slidell) in Slidell, Louisiana. Salvador’s duties required him to be involved in the assembling, maintaining and repairing of various machines (primarily sewing machines) associated with Slidell’s manufacturing process, and to help in the design of labor saving devices. This work was primarily heavy manual labor. At all times pertinent to these proceedings, Liberty Mutual Insurance Company (hereinafter referred to as Liberty) was the workmen’s compensation insurer of Sli-dell.

On April 6, 1979, Salvador and a co-employee, Ted Lulei, were directed to go to New Orleans on company business and to pick up freight at the Red Ball Express Company on their return trip. The two workers proceeded to the Red Ball Express yard, but, due to a strike in progress, were required to unload the freight themselves and place it in the Slidell vehicle. During the course of this unloading operation, Salvador attempted to stop a box weighing over 200 pounds from falling out of the freight truck. He felt a snap and pain in his back. He complained immediately to Lulei. He reported the incident to Slidell when he returned to the Slidell factory. Because April 6, 1979, was a Friday, Salvador did not seek medical attention on that date, but decided to wait through the weekend to see what developed.

On April 9, 1979, Salvador went to work but was unable to do his usual duties because of pain in his back. Salvador made an appointment with Dr. Robert Weiss, Jr. who treated him from that date until June 1, 1979.

During the next three weeks, Salvador attempted to perform his duties with Slidell but was unable to do the heavy labor normally associated with his job. He only performed light duties and needed assistance from other employees. During the last week of April, 1975, Salvador’s employment was terminated by Slidell for “personality conflicts.” Prior to this time, Salvador had worked for Slidell for over five years with no absences from work.

On June 1, 1979, Dr. Weiss referred Salvador to Dr. Warren M. Barnes. Between June 1, 1979 and September 14, 1979, Dr. Barnes treated Salvador on nine occasions. He diagnosed Salvador’s condition as dorso-lumbar strain superimposed on gout and arthritis. Dr. Barnes referred Salvador to a Dr. Biundo and subsequently to Dr. William M. Pusateri. Dr. Pusateri examined and treated Salvador between November 21, 1979 and April 18, 1980. He diagnosed his condition as degenerative arthritic changes in the thoracic spine.

During the period of April 12, 1980 to December 12,1980, Salvador saw his family doctor, Frank J. Guidry, on eight occasions. Dr. Guidry diagnosed Salvador’s condition as acute back trauma precipitating chronic back pain.

After receiving a report from Dr. Barnes, dated September 25, 1979, Liberty terminated Salvador’s compensation benefit and medical payments. It was stipulated by the parties that during the period from May 2, 1979 through September 26, 1979, Liberty paid to Salvador compensation benefit payments at the rate of $141.00 per week for a total of $2,961.00. Liberty further paid medical expenses on behalf of Salvador in the sum of $501.00. It was further stipulated by the parties that as of the date of trial, Salvador had unpaid medical bills and expenses in the sum of $1,558.83. Salvador has not been gainfully employed since he was discharged by Slidell in April of 1979.

II. DISABILITY

The trial judge found that Salvador was totally and permanently disabled within the purview of La.R.S. 23:1221(2). The trial judge made the following observations in his written reasons for judgment:

“Medical testimony indicates that Mr. Salvador was the victim of substantial degenerative arthritic condition in his spine. It had been entirely asymtomatic prior to the accident. It is clear from the medical and lay testimony that the accident set fire to the pre-existing arthritic condition. Lay testimony indicates that the pain associated with Mr. Salvador’s lower back is more than substantial or appreciable. It is constant, great, and debilitating. The pain is concentrated at the base of the spine and down his hips. He cannot cross his legs or tie his shoes without lifting his legs with his arms. During the trial, Mr. Salvador exhibited to the Court the problems encountered in leg crossing manuevers, (sic) as well as tying his shoes. In addition to the complaints of Mr. Salvador while executing these manuevers, (sic) there was objective signs of pain associated therewith, as evidenced by the discoloration in his face. “Mr. Salvador, his wife, and daughter-in-law testified concerning his inability to assist in household duties, as well as his ever present complaints of pain and the need of assistance at certain times to do such nominal manuevers (sic) as getting out of a chair.
“This Court is clearly convinced that Mr. Salvador’s disability is related to the April 6, 1979, accident, which occurred during the course and scope of his employment. The Court is further convinced that this plaintiff, because of the ever present pain, will never be able to return to any type work.”

It is well settled in the law that a finding of substantial pain requires that an employee be held disabled. Whitaker v. Church’s Fried Chicken, Inc., 387 So.2d 1093 (La.1980) and the cases cited therein. The evidence of record substantiates the fact that Salvador is constantly in pain, even when not working. Drs. Barnes, Pusateri and Guidry are all in agreement that the accident of April 6, 1979 aggravated and triggered a pre-existing, asymtomatic arthritic condition in Salvador’s back. According to the testimony of Dr. Pusateri, some of the vertebrae in Salvador’s thoracic spine have calcified and fused together as a result of this condition. Drs. Barnes and Guidry were both of the opinion that Salvador cannot perform any work. Dr. Pusateri was of the opinion that Salvador was unable to do heavy manual labor, but perhaps could perform some sedentary duties associated with light work employment. Salvador testified that he has been unable to do any work whatsoever since he was released from Sli-dell, that he is unable to bend over, stand for a long period of time or sit for a long period of time without incurring pain in his spine. He cannot drive an automobile, except for short distances, and he has great difficulty in tying his own shoes. He cannot cross his legs without using his arms for assistance. His wife and daughter-in-law testified in support of these observations. The trial judge obviously accepted the testimony of Drs. Guidry and Barnes concerning Salvador’s total disability, and, obviously, accepted the testimony of Salvador, his wife and his daughter-in-law with reference to the amount of pain that he was suffering.

There is no error in these factual findings of the trial judge. Meeks v. State Farm Fire & Casualty Company, 402 So.2d 138 (La.App. 1st Cir. 1981).

III. STATUTORY PENALTIES

Liberty terminated Salvador’s benefit and medical compensation payments effective September 26, 1979, on the basis of the report of Dr. Barnes, dated September 25, 1979. In that report Dr. Barnes diagnosed Salvador’s condition as dorsolumbar strain superimposed on gout and arthritis. Dr. Barnes did not fill out the blanks applicable to ability to return to light duty or full duty. He indicated that Salvador was discharged on September 14, 1979 “To return as necessary.” He further indicated that Salvador “will continue to be followed by Dr. Biundo... ”. On the question of present condition, he referred Liberty to his previous correspondence and he described permanent disability as “NONE FROM OR-THOPAEDIC STANDPOINT.”

Almost one year later, by letter dated September 24, 1980, Liberty made the following inquiries of Dr. Barnes:

“In correspondence from your office dated September 25, 1979, I note that there was no permanent partial disability assigned to this injury from an Orthopedic standpoint. The diagnosis was noted as dorsolumbar strain superimposed on gout and arthristis (sic). In your opinion, is Mr. Salvadore (sic) still suffering from the injuries sustained on April 6, 1979? Particularly, is Mr. Salvadore’s (sic) preexisting condition of gout and arthristis (sic) the main factor preventing him from returning to work.
“Finally, would it be reasonable for me to conclude that the dorsolumbar strain has resolved and the patient recovered from the strain itself.”

Liberty received the following reply to this communication:

“11-1-80: Rod: The patient’s dorsolum-bar strain has resolved. Please check with Dr. Biundo regarding his other problems. Dr. Barnes has not seen him since 9-14-79.
S.”

If a compensation insurer is arbitrary and capricious in terminating compensation payments and benefits to a worker, it is liable for statutory penalties and attorney fees. La.R.S. 23:1201.2. After receiving the Barnes’ report of September 25, 1979, Liberty terminated compensation benefits without further inquiries. This report, however, is inconclusive concerning Salvador’s ability to work. The information concerning light duty and full duty are left blank. Although he was discharged, there is a notation that he is to return as necessary. The report advises that Salvador has been referred to Dr. Biundo for further treatment, and although the report rules out permanent disability from an orthopedic standpoint, it does not rule out temporary disability or permanent disability for reasons other than orthopedic.

It is well settled in the law that injured employees may not be cut off of compensation benefits on the basis of inconclusive medical reports. It is incumbent upon insurers to make reasonable efforts to ascertain the employees’ exact medical condition at the time compensation benefits are terminated. Wiley v. Southern Casualty Insurance Company, 380 So.2d 214 (La.App. 3rd Cir. 1980); Norris v. Southern Casualty Insurance Company, 342 So.2d 874 (La.App. 3rd Cir. 1977); Williams v. Liberty Mutual Insurance Company, 327 So.2d 462 (La.App. 3rd Cir. 1976); Horn v. Vancouver Plywood Company, 322 So.2d 816 (La.App. 3rd Cir. 1975). Clearly, Liberty had questions concerning Salvador’s condition or it would not have sent the letter of September 24, 1980. In his deposition, Dr. Barnes unequivocally testified that as of September 14, 1979, Mr. Salvador was unable to return to work. Had Liberty made a simple telephone call to Dr. Barnes, it could have obtained this information. Liberty made no attempt to contact Dr. Biundo or his successor, Dr. Pusateri. The reply dated November 1, 1980 received by Liberty does not absolve it in this case. Liberty was directed to contact Dr. Biundo with reference to Salvador’s other problems. Further, the reply is initialed “S.”, which is not Dr. Barnes. The trial judge determined as a matter of fact that under all of the circumstances of this case, Liberty was arbitrary and capricious in terminating compensation benefits to Salvador. This factual conclusion is supported by the evidence of record. There is no ground for reversal. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

IV. CONCLUSION

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

AFFIRMED.

      . Since the trial judge found as matters of fact that Salvador’s medical condition rendered him totally and permanently disabled and that he was constantly in debilitating pain, the facts of this case do not fall within the purview of the. “odd lot” worker situation. Calogero v. City of New Orleans, 397 So.2d 1252 (La.1980); Oster v. Wetzel, 390 So.2d 1318 (La.1980).


author: CARTER, Judge.

text:
    Mary McCASTLE, et al. v. ROLLINS ENVIRONMENTAL SERVICES OF LOUISIANA, INC.
    No. 14865.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.

      Stephen M. Irving, Dennis R. Whalen, Trial Atty., Baton Rouge, for plaintiffs-ap-pellees Mary McCastle, et al.
    Sera H. Russell, III, Baton Rouge, for defendant-appellant.
    Before LEAR, CARTER and LANIER, JJ.
   CARTER, Judge.

This is an appeal from an order of the district court issuing an injunction against Rollins Environmental Services (LA), Inc.

Plaintiffs, Mary McCastle, et al., alleged that on numerous specific dates Rollins had released into the atmosphere “stinking, obnoxious, nauseating, repugnant, burning chemical fumes and odors” which had been carried by the wind to plaintiffs’ residences causing them to become “ill, uncomfortable, and miserable with burning eyes, sore throats and upset stomachs.” Plaintiffs further alleged that unless restrained by the court, Rollins would continue to release these chemical fumes and odors which would cause irreparable injury to plaintiffs.

Rollins and plaintiffs agreed upon certain stipulations prior to trial. Included in the stipulations were affidavits from qualified experts in air quality and from area residents to the effect that odors emanating from the Rollins facility were of sufficient intensity to make the average person uncomfortable and to constitute a nuisance to those living and working in the area. Also included in the stipulations was the petition for intervention filed by the plaintiffs in an adjudicatory hearing before the Louisiana Environmental Control Commission and a copy of the settlement reached by the parties in that hearing which was approved by the Commission and pursuant to which the Commission entered a compliance order. Additional compliance orders issued by the Louisiana Environmental Control Commission were also included.

The defendant filed exceptions of prematurity and nonjoinder of a necessary party which were overruled. On July 2,1981, the court granted the preliminary injunction which enjoined Rollins from emitting nauseous odors from its landfarm operations conducted at its facility located on Scenic Highway in the Parish of East Baton Rouge, beyond the boundaries of its facilities, which result in plaintiffs, or any of them, becoming ill. The injunction also directed plaintiffs to notify Rollins in the event odors are emitted in violation of the injunction.

Rollins appeals, assigning the three following specifications of error:

I.

The trial court erred in granting injunc-tive relief to plaintiffs where the Legislature has created a regulatory body with exclusive jurisdiction and that body has acted on the issue before the court, within its regulatory jurisdictional grant.

II.

The trial court erred in denying defendant Rollins’s exception of prematurity based on plaintiffs’ failure to exhaust administrative remedies.

III.

The trial court erred in denying Rollins’s exception of failure to join a necessary party (the ECC).

SPECIFICATION OF ERROR NO. 1

Plaintiffs brought this suit under La.Civ. Code art. 667 and sought an injunction under La.Code Civ.P. art. 3601.

Rollins contends that the court’s authority to issue injunctive relief as requested by the plaintiffs has been preempted by the statutory authority creating the Environmental Control Commission (ECC). Rollins contends that the ECC was vested with exclusive jurisdiction in the areas of air quality, water quality, solid waste, nuclear waste and hazardous waste. Rollins further submits that the plaintiffs cannot bring this suit for equitable relief because Rollins is now operating under the specific orders of the ECC, and an injunction, such as is sought by plaintiffs, would usurp the regulatory functions of the ECC.

Rollins specifically points to La.R.S. 30:1074 of the Louisiana Environmental Affairs Act which deals with citizen suits.

La.R.S. 30:1074 reads as follows:

“§ 1074. Citizen suits
“(1) Except as provided in Subsection (2) of this Section, any person having an interest, which is or may be adversely affected, may commence a civil action on his own behalf against any person whom he alleges to be in violation of this Chapter or of the regulations promulgated hereunder. The action must be brought either in the district court in the parish in which the violation or alleged violation occurs or in the district court of the domicile of the alleged violator, and shall be afforded preferential hearing by the court.
“If, at the hearing on the order, it appears to the satisfaction of the court that a violation has occurred, or is occurring, the court may, in order to enforce the provisions of this Chapter, assess a civil penalty not to exceed ten thousand dollars for each day of the continued noncompliance and the court may, if appropriate, issue a temporary or permanent injunction.
“The court in issuing any final order in any action brought pursuant to this Section, may award costs of court including reasonable attorneys and expert witness fees to the prevailing party. The court may also award actual damages to the prevailing plaintiff. The judgment of the court at the hearing, or subsequently on a petition for fixing the penalty if the violation is a continuing one, shall fix the total amount of penalty due, which shall be collectible under the same procedures as now fixed by law for the collection of money judgments and shall be awarded to and collected by the state of Louisiana and deposited into the state treasury.
“(2) No action under this Part shall be commenced under Subsection (1) hereof:
“(a) Prior to thirty days after the plaintiff has given notice of the violation (i) to the assistant secretary and (ii) to any alleged violator.
“(b) If the assistant secretary or his legal counsel has commenced and is diligently prosecuting a civil or criminal action in a court of this state to require compliance with any standard, limitation, or order; however, in any such action any person having an interest which is or may be adversely affected may intervene as a matter of right.
“(c) If the alleged violator is operating under a variance granted by the commission or by an appropriate secretary and is in compliance with the terms of such variance.
“(d) Against any person while such person, with respect to the same violation is: (i) under any order pursuant to this chapter to enforce any provision of this Chapter, or (ii) a defendant in any civil suit brought under the provisions of R.S. 30:1073, or (iii) the subject of an action to assess and collect a civil penalty pursuant to R.S. 30:1073(E).
“(3) Provided, however, that nothing herein shall be construed to limit or deny any person’s right to injunctive or other extraordinary and ordinary relief under the Louisiana Civil Code or otherwise under Louisiana law, other than this Part. (Emphasis added.)
“(4) The enforcement, procedures, and remedies herein provided for shall be in addition to any such procedures and remedies authorized under the laws of this state.”

Rollins contends that if the Legislature had intended to allow all suits for injunc-tive relief by any party, it would not have included the language “other than this Part” within the statutory scheme allowing citizen suits. It seems obvious that the “Part” referred to in Subsection (3) is Part II of Chapter 11 of Title 30. Chapter 11 is entitled “Environmental Affairs” and includes the Louisiana Air Control Law, the Louisiana Water Control Law, the Louisiana Nuclear Energy and Radiation Control Law, the Louisiana Solid Waste Management and Resource Recovery Law, and the Hazardous Waste Control Law. Part II is entitled “Office of Environmental Affairs” and is the “Part” in which § 1074 (citizen suits) is located. Part II provides for the creation, the duties, the powers, and the structure of the Office of Environmental Affairs and the Environmental Control Commission. Authority is given to the Commission under this Part to grant all permits, licenses, registrations, variances and compliance schedules and to issue any orders necessary to effect the purpose of the Chapter including but not limited to cease and desist orders.

Subsection (3) begins with “Provided, however”, language which indicates a limitation to Subsection (2). That limitation is that Subsection (2) does not apply to suits brought under other Louisiana laws, but applies only to suits brought under this Part.

There is no provision in Chapter II (Environmental Affairs) which prohibits a suit for an injunction in this case. Section 1074 (citizens suits) regulates suits to enforce provisions of the Chapter and rules and regulations promulgated thereunder. Plaintiffs have not sued claiming a specific violation of the Chapter or of a rule or regulation thereunder. The plain language of subsection (3) makes it clear that subsection (2) does not deny any person the right to relief under any other Louisiana law. Subsection (4) (formerly § 1076) further explains that the enforcement, procedure, and remedies provided therein are additional to those presently authorized under Louisiana Law. Section 1074 gives authority and grounds to sue over and above whatever authority is available under various other Louisiana laws. The limitation found in subsection (2) applies only to suits brought under the specific grant of authority found in subsection (1) and applies only when a person is suing another whom he alleges to be in violation of this Chapter or of the regulations promulgated hereunder.

We find that plaintiffs brought this suit under La.Civ.Code art. 667 and that there is nothing in Chapter II (Environmental Affairs) to prevent them from doing so. Because of this finding, Rollins’s specification of .error No. 2 is without merit. Plaintiffs were not required to exhaust administrative remedies under the Louisiana Administrative Procedure Act. They are not appealing a decision of an administrative body. Neither does defendants’ specification of error No. 3 have merit. The cases cited by defendant involve suits attacking directly or collaterally an order of the Commissioner of Conservation and are controlled by La.R.S. 30:12 found in Chapter 1. There is no comparable provision applicable to the instant suit.

The trial court, after reviewing the various documents, stipulations, and exhibits, found that a preliminary injunction should issue to prevent Rollins from emitting odors which result in plaintiffs becoming ill. On appeal, plaintiffs have asked that the injunction be amended to include odors and fumes which make plaintiffs uncomfortable. The test of the right to an injunction against the maintenance of a nuisance is whether the alleged nuisance produces serious or material discomfort to persons of ordinary sensibilities in a normal state of health. Easterly v. Carr, 361 So.2d 279 (La.App. 1st Cir. 1978), Johnson v. Nora, 87 So.2d 757 (La.App. 2d Cir. 1956). We amend the judgment to conform to this standard and hold that Rollins is additionally enjoined from emitting odors which cause plaintiffs, or any of them, serious or material discomfort.

Plaintiffs have answered this appeal seeking attorney fees for a frivolous appeal. We find no basis for this claim and thus deny the attorney fees.

For the above reasons, the judgment of the trial court is affirmed as amended and appellant is assessed with all costs.

AMENDED AND AFFIRMED.

      . “Art. 667. Limitation on use of property
      “Although a proprietor may do with his estate whatever he pleases, still he can not make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him.”

      . “Art. 3601. Injunction, grounds for issuance; preliminary injunction; temporary restraining order
      “An injunction shall issue in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by law; provided, however, that no court shall have jurisdiction to issue, or cause to be issued, any temporary restraining order, preliminary injunction, or permanent injunction against any state department, board or agency, or any officer, administrator or head thereof, or any officer of the State of Louisiana in any suit involving the expenditure of public funds under any statute or law of this state to compel the expenditure of state funds when the director of such department, board or agency, or the governor shall certify that the expenditure of such funds would have the effect of creating a deficit in the funds of said agency or be in violation of the requirements placed upon the expenditure of such funds by the legislature.
      “During the pendency of an action for an injunction the court may issue a temporary restraining order, a preliminary injunction, or both, except in cases where prohibited, in accordance with the provisions of this Chapter.
      “Except as otherwise provided by law, an application for injunctive relief shall be by petition.”


author: ELLIS, Judge:

text:
    Rosemary BRUMFIELD v. H. Alva BRUMFIELD, III.
    No. 14866.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.
    L. D. Sledge, Michael A. Patterson, Baton Rouge, for plaintiff-appellant Rosemary Brumfield.
    Kenneth Rigby, Shreveport, John Dale Powers, Baton Rouge, for defendant-appel-lee H. Alva Brumfield, III.
    Before ELLIS, PONDER and SAVOIE, JJ.
   ELLIS, Judge:

This is a suit by Rosemary Meyers Brum-field against her husband, H. Alva Brum-field, III, in which she seeks to have declared null a marriage contract executed by them on December 19, 1968, the day before their marriage. Plaintiff also prayed for judgment declaring a community to have existed between her and her husband since December 20, 1968; that she be awarded damages for her legal expenses and for mental anguish, as well as punitive damages; that the property accumulated during the marriage be inventoried and appraised; and that defendant be enjoined from alienating or encumbering the said property.

To the petition, and the accompanying temporary restraining order, defendant filed a rule to dissolve the T.R.O. and for damages; an exception to the jurisdiction of the court over the subject matter; and exceptions of no right of action; no cause of action; prescription; and unauthorized use of summary process.

After a hearing on the exceptions, a judgment was rendered maintaining the exceptions of no cause of action and no right of action, and an alternative motion to strike, and dismissing the suit as to all of the relief demanded except for the demand for nullity of the marriage contract. A second judgment was signed maintaining the exception to the jurisdiction and dismissing the suit. Plaintiff has appealed from both judgments.

In this court, plaintiff claims that the trial court erred in signing a judgment sustaining the exceptions of no right and no cause of action when these exceptions had not been argued, and in maintaining the motion to strike relative to the prayer for recognition of the existence of a community and the prayer to enjoin plaintiff from alienating or encumbering property acquired during the existence of the community. It is further argued that the court erred in sustaining the exception to the jurisdiction over the subject matter and dismissing the suit.

At the hearing, it was stipulated that plaintiff and defendant were married but living separate and apart, and that no suit for a separation or divorce had been filed by either party. The minute entry relative to the hearing reads as follows:

“This matter came on for hearing on a rule nisi issued herein June 8, 1981, directed to defendant to show cause why a preliminary injunction should not issue herein and on dilatory, declinatory and peremptory exceptions, and an alternative motion to strike filed on behalf of defendant.
“The alternative motion to strike was argued by counsel and submitted to the Court. The motion was granted and maintained insofar as it pertains to Paragraphs C through K of plaintiffs prayer, and any allegations contained in the petition in support thereof.
“The declinatory exception of jurisdiction was argued by counsel. It was stipulated by and between counsel that at the present time there is no judgment of separation or divorce between plaintiff and defendant. The matter was submitted to the Court. For oral reasons assigned, the exception of jurisdiction was maintained, the plaintiff’s suit was dismissed at plaintiff’s costs.
“Judgments signed and filed.”

Turning first to the question of the jurisdiction of the trial court, we note that R.S. 13:1401 provides, in part, as follows:

“There is hereby established the family court for the parish of East Baton Rouge, which shall be a court of record with exclusive jurisdiction in the following proceedings:
“(7) All actions for divorce, separation from bed and board, annulment of marriages, establishment or disavowal of the paternity of children, alimony and support, custody and visitation of children, as well as of all matters incidental to any of the foregoing proceedings, including but not restricted to the issuance of conservatory writs for the protection of community property, the awarding of attorney fees to the wife in judgments of divorce and separation, the cumulation of and rendering executory of alimony, the issuance of writs of fieri facias and garnishment under judgments of the court for alimony and attorney fees, jurisdiction of which was vested in the Nineteenth Judicial District Court for the parish of East Baton Rouge prior to the establishment of the family court for the parish of East Baton Rouge. The Nineteenth Judicial District Court for the parish of East Baton Rouge however, shall retain jurisdiction of all proceedings involving liquidation and partition of the community after a judgment of divorce or separation from bed and board.”

The Family Court has exclusive jurisdiction of this case only if it is incidental to an action for divorce, separation from bed and board, annulment of marriage, establishment or disavowal of paternity, alimony, support, custody, or visitation of children. This case does not fall within any of those categories. It is possible that the rights asserted herein could be adjudicated without either party seeking a separation, divorce, or annulment of the marriage. The word “incidental” is defined in Black’s Law Dictionary as “depending upon or appertaining to something else as primary; .. . something incidental to the main purpose.” Clearly, this action can stand alone, without the necessity of the institution of any other action, and the rights of the parties under the marriage contract can be adjudicated without any attendant separation or divorce. We therefore hold that, under the facts of this case, the 19th Judicial District Court has jurisdiction of the subject matter of the dispute.

We recognize that the judgment sustaining the motion to strike is interlocutory and ordinarily non-appealable, but since the case is properly before us on the judgment of dismissal, we should consider all issues.

R.S. 9:291 provides as follows:

“Unless judicially separated, spouses may not sue each other except for causes of action arising out of a contract or the provisions of Title VI, Book III of the Civil Code; restitution of separate property; for divorce, separation from bed and board, and causes of action pertaining to the custody of a child or alimony for his support while the spouses are living separate and apart, although not judicially separated.”

Since the parties hereto have not been legally separated or divorced, the above article limits the scope of the action filed herein to matters arising out of a contract or the provisions of the Civil Code relative to matrimonial regimes, Arts. 2325 et seq. That part of the petition and the prayer for relief relating to the nullity of the marriage contract, and the declaration of the existence of a community of acquets and gains falls within the permissible categories of actions between spouses. That part of the suit which seeks damages, an inventory, an appraisal, and injunctive relief falls outside of those categories, and would be properly incident to a suit for separation or divorce.

Under Article 964 of the Code of Civil Procedure, a court, on motion of a party or on its own motion, may order stricken from any pleading any “insufficient demand”. No formal motion to strike was filed by either party, but the trial judge acted properly in striking all demands which fall outside the permissible limits of R.S. 9:291, supra. With respect to the prayer that there be a declaration that a community of acquets and gains exists between the parties, we are of the opinion that it should not have been stricken, and the judgment will be amended in that respect.

The trial judge erred in sustaining the exceptions of no right of action and no cause of action. Plaintiff has clearly alleged a cause of action for the nullity of a matrimonial contract, and has the capacity to bring such an action. It was error to sustain those exceptions as to only part of the allegations and relief sought in the petition. Cenac Towing Co. v. Cenac, 413 So.2d 1351 (La.App. 1st Cir. 1982).

The judgment of dismissal is therefore reversed and set aside, and the case remanded to the trial court for further proceedings in accordance with law. The judgment sustaining the peremptory exceptions of no cause of action and no right of action is reversed. The judgment sustaining the motion to strike is amended so as to apply to Paragraphs D-K of the prayer of the petition, and, as amended, it is affirmed. Defendant shall pay all costs of this appeal, with all other costs to await final disposition of the case on its merits.

REVERSED IN PART, AFFIRMED IN PART, AMENDED AND REMANDED.