author: WATKINS, Judge.

text:
    Glynn BEARD v. ASSUMPTION PARISH POLICE JURY, et al.
    No. 14630.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.
    Rehearing Denied May 25, 1982.
    Gordon Hackman, Boutte, for plaintiff-appellant.
    Robert D. Morvant, Thibodaux, for Assumption Parish Police Jury-appellee.
    Before COVINGTON, COLE and WATKINS, JJ.
   WATKINS, Judge.

' This is a suit combining two causes of action, not in the alternative, brought by Glynn Beard against the Assumption Parish Police Jury and its workmen’s compensation, liability and uninsured motorist insurer, United States Fidelity and Guaranty Company (USF&G). Beard in his suit sought to hold defendants liable for workmen’s compensation and for damages in tort. Upon motion for summary judgment filed by defendants, the trial court dismissed with prejudice plaintiff’s cause of action for damages in tort. The trial court also sustained exceptions of no cause and/or right of action and improper cumulation of actions filed by defendants. The trial court was incorrect in its sustaining of the exceptions. However, we hold the trial court acted properly in granting the motion for summary judgment.

Glynn Beard’s petition alleges that plaintiff Beard, while employed by the Assumption Parish Police Jury, was thrown from a motor vehicle driven by another employee of the Police Jury through the negligence of the driver, and as a result sustained injury. In an amended petition, petitioner suggests that the driver of the vehicle from which Beard was thrown was an uninsured motorist, causing the Policy Jury and its uninsured motorist insurer, USF&G, to be liable in tort. Plaintiff also seeks total and permanent disability in workmen’s compensation.

Under LSA-R.S. 23:1032, workmen’s compensation is an exclusive remedy of an employee, precluding tort liability of the worker’s employer or fellow employees for acts of fellow employees. Furthermore, this tort immunity of the employer and hence of the employer’s liability insurer cannot be circumvented by contending that the co-employee driver of vehicles in which the injured plaintiff was a passenger was an uninsured motorist within the contemplation of LSA-R.S. 22:1406 D. See Gray v. Margot, Inc., 408 So.2d 436 (La.App. 1st Cir. 1981), which held a fellow employee driving a motor vehicle is not insured as an uninsured motorist under the injured employee’s uninsured motorist policy for the reason that the employee himself is free from liability because of the Workmen’s Compensation Act. Hence, the uninsured motorist insurer of the injured employee is not liable. Similarly, there can be no liability of the Assumption Parish Police Jury, the employer, or of USF&G, its liability and uninsured motorist insurer, because the employee who drove the vehicle is not liable, plaintiff’s exclusive remedy lying in workmen’s compensation.

Thus, it is clear Beard has no claim for damages in tort. However, defendants do not at the present time place at issue Beard’s pursuing his claim in workmen’s compensation.

The issue is thus presented of whether or not a partial summary judgment may be granted under the facts of the present case.

LSA-C.C.P. art. 1915 reads as follows:

Partial Judgment

“A final judgment may be rendered and signed by the court, even though it may not grant the successful party all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court:
(1) Dismisses the suit as to less than all of the plaintiffs, defendants, third party plaintiffs, third party defendants, or in-terveners;
(2) Grants a motion for judgment on the pleadings, as provided by Articles 965, 968, and 969;
(3) Grants a motion for summary judgment, as provided by Articles 966 through 969; or
(4) Renders judgment on either the principal or incidental demand, when the two have been tried separately, as provided by Article 1038.
If an appeal is taken from such a judgment, the trial court nevertheless shall retain jurisdiction to adjudicate the remaining issues in the case.”
LSA-C.C.P. art. 966 reads as follows: Motion for summary judgment; procedure
“The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed. The plaintiff’s motion may be made at any time after the answer has been filed. The defendant’s motion may be made at any time.
The motion for summary judgment shall be served at least ten days before the time specified for the hearing. The adverse party may serve opposing affidavits prior to the day of the hearing. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.”

It is apparent from a reading of these two articles, as well as a series of cases in which partial summary judgment in favor of plaintiff was set aside because the summary judgment failed to grant “all or part of the relief for which he has prayed” [see most recently Dryades Savings and Loan Association v. Lassiter, 400 So.2d 894 (La. 1981) ], that art. 1915 is not a blanket grant of the right of the courts to grant partial summary judgment, but, rather, that summary judgment may be granted only in those cases in which partial summary judgment is permitted by art. 966.

However, the present case is one of the cases in which partial summary judgment is permitted. First, we note that this state has a policy in favor of partial summary judgment, enunciated in LSA-C.C.P. art. 1915 and by this court in City of Baton Rouge v. Cannon, 376 So.2d 994 (La.App. 1st Cir. 1979), in a concursus proceeding in which summary judgment was sought by one of several claimant-defendants, that it is desirable to reduce the number of issues to be tried by the granting of partial summary judgment.

More importantly, LSA-C.C.P. art. 966 states that a defendant may seek a summary judgment granting part of the relief for which he has prayed. The relief prayed for obviously does not refer to the relief prayed for by reconventional demand, as that is taken care of by the phrase “or any incidental action” but rather means any relief sought by defendant as defendant, more often, dismissal of plaintiff’s suit in whole or in part with prejudice. Here, part of plaintiff’s suit, the cause of action in tort, was dismissed by summary judgment with prejudice. That relief was prayed for by defendants. Hence, partial summary judgment was properly granted. It is only when an issue is decided by partial summary judgment that does not grant part of the relief prayed for but rather something less (e.g. determination that uninsured motorist coverage existed without determining fault or rendering judgment as to ultimate liability as in Smith v. Hanover Insurance Company, 363 So.2d 719 (La.App. 2d Cir. 1978)). that partial summary judgment is improper. In the present case partial summary judgment was correctly granted.

Hence, the judgment of the trial court is affirmed insofar as it granted summary judgment dismissing plaintiff’s tort claim, all costs to be borne by plaintiff.

AFFIRMED.


source: Caselaw Access Project

author: ELLIS, Judge:

license: Public Domain

text:
    W. E. GROVES v. ROSEMOUND IMPROVEMENT ASSOCIATION, INC., et al.
    No. 14636.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.
    Rehearing Denied May 25, 1982.

      Eugene R. Groves, Baton Rouge, for plaintiff-appellee W. E. Groves.
    M. Aubrey McCleary, Rolfe H. McCollis-ter, Baton Rouge, for defendant-appellant, Rosemound Improvement Ass’n, Inc., and Lloyd L. Lindsey, Jr.
    Before ELLIS, PONDER and SAVOIE, JJ.
   ELLIS, Judge:

In this suit plaintiff W. E. Groves seeks, by mandamus, to compel Rosemound Improvement Association, Inc. and Lloyd L. Lindsey, Jr., its president, to recognize his right to vote 220 shares of stock with 220 votes at shareholders’ meetings. The defense is that plaintiff transferred all of his ownership interest in Rosemound to Mr. Lindsey and Ruth Rhodes Lindsey by act of exchange dated March 30, 1977.

After trial, judgment was rendered making the writ of mandamus peremptory and recognizing plaintiff’s right to vote 220 shares of stock with 220 votes at any stockholders’ meeting of Rosemound. From this judgment defendants have appealed.

In reaching his conclusion the trial judge found that, since the stock held by Mr. Groves had never been transferred out of his name on the books of the corporation, he was the registered owner thereof and entitled to vote. The trial judge relied on the Uniform Stock Transfer Act, as amended by Title 10 of the Revised Statutes.

We have reviewed the entire record, including some evidence which was excluded by the trial judge, but which is in the record by way of proffer. We find that Rose-mound Improvement Association, Inc. was organized as a non-profit corporation on July 29,1960. Its purpose is to promote the orderly development of Rosemound subdivision and recreation area. Article IX of its charter provides:

“Membership shall be open generally to prospective land and home owners upon their approval by the membership committee, and also to their families. Membership in this association shall be based upon the purchase of one share of stock and the payment of such dues and assessments as may be fixed by the Board of Directors. Stock certificates herein shall not be transferable except back to the corporation. Each shareholder shall be entitled to one vote at all membership meetings which said vote may be in person or by written proxy.”

After a number of years, there was a disagreement between Mr. Groves and Mr. Lindsey and, in an effort to settle their differences, they executed an act of exchange on March 30, 1977, which contained a number of undertakings on the part of both parties. One of the provisions of the agreement reads as follows:

“14. Gladys Rhodes Groves and William E. Groves do further transfer, convey and deliver unto Lloyd L. Lindsey and Ruth Rhodes Lindsey all of their ownership in Rosemound Improvement Association, Inc., represented by the following stock certificates.”

No specific stock certificates are described in the act, nor were any certificates endorsed or delivered by Mr. Groves at the time of its execution. It is undisputed that, after the execution of the act of exchange, both parties became dissatisfied, and all of the provisions and conditions thereof have not been fulfilled by either party. The validity of the agreement is presently being litigated in another court, and it appears that other suits have been filed.

Under the circumstances, we find that the trial judge properly resolved the issue. The record is not sufficient to enable the court to make a determination as to ownership. The agreement to transfer stock to Mr. Lindsey flies in the face of the charter provision above quoted, which permits the transfer of stock only back to the corporation. The provisions of R.S. 12:601 and R.S. 10:8-301 et seq. are designed to delineate the circumstances under which ownership of stock may be acquired and the rights of such ownership may be exercised. It is clear that the registered owner of stock is considered as the owner thereof for all corporate purposes, including the right to vote the stock.

However, we find the trial court erred in permitting Mr. Groves one vote for each share of stock. The above quoted charter provision states that each shareholder shall be entitled to one vote at all membership meetings. R.S. 12:232 A provides, in part, as follows:

“Unless otherwise provided in the articles or by-laws, every member of a corporation shall be entitled to one vote, or if a shareholding member, one vote for each share standing in his name on the books of the corporation; ...”

R.S. 12:210 E provides, in part:

“Except as otherwise provided by law or by the articles or by-laws, each share shall entitle the holder to one vote. . . . ”

It is clear that the articles of incorporation prevail over the above provisions. We do not believe that the fact that there is language on the reverse of the stock certificates which states that voting is by shares can prevail over the explicit provisions of the articles of incorporation. The positive language of R.S. 12:210 E and 232 A, supra, controls.

The judgment appealed from is therefore affirmed insofar as it orders the defendants to permit Mr. Groves to vote at membership meetings, but reversed insofar as it permits him to have one vote for each share of stock, and there will be judgment herein making the writ of mandamus peremptory recognizing the right of W. E. Groves to vote one vote at any membership or shareholders’ meeting of Rosemound Improvement Association, Inc. All costs shall be equally shared by the parties hereto.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.


author: COLE, Judge.

text:
    E. R. ROSHTO v. Gary J. HEBERT and Joyce S. Hebert, d/b/a the Iberville South. Alfred ROSHTO v. Gary J. HEBERT and Joyce S. Hebert, d/b/a the Iberville South. Carlysle ROSHTO v. Gary J. HEBERT and Joyce S. Hebert, d/b/a the Iberville South.
    Nos. 14639, 14640 and 14641.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.
    Rehearing Denied May 25, 1982.

      Robert L. Kleinpeter, Baton Rouge, for plaintiffs-appellants E. R. Roshto, Alfred Roshto and Carlysle Roshto.
    Houston C. Gascon, III, Plaquemine, for defendants-appellees Gary J. Hebert and Joyce S. Hebert d/b/a the Iberville South.
    Before COVINGTON, COLE and WATKINS, JJ.
   COLE, Judge.

The issue presented is whether or not defendants, who reprinted an article concerning plaintiffs’ criminal convictions which occurred twenty-five years before, are liable for the invasion of plaintiffs’ privacy. We conclude defendants are liable and therefore we reverse the judgment of the trial court.

The respective plaintiffs, E. R. Roshto, Alfred Roshto and Carlysle Roshto (herein referred to as the Roshto brothers), were charged and convicted of cattle theft in Iberville Parish in 1952. Each served one year in the penitentiary, one year of probation and was granted a full pardon. The brothers then married, raised families, and have been law-abiding citizens to this day. In 1973 The Iberville South, a local newspaper published in Plaquemine, printed a “Page From Our Past” which consisted of the front page of the newspaper dated April 4, 1952. This page contained an article concerning the trial of the Roshto brothers for cattle theft. Embarrassed by this disclosure, E. R. Roshto, in behalf of all three brothers, went to the newspaper’s office to see the manager. An employee advised the manager was not in but the editor was in and would see him. After waiting a few minutes, he spoke with a man who identified himself as the editor. Mr. Roshto requested no other articles about the cattle theft be published. This person then assured him if any other articles on the subject were reprinted, the Roshto name would be blocked out.

On August 30, 1977, The Iberville South reprinted another “Page From Our Past” which included an article showing the Rosh-to brothers had lost their appeal and had been sentenced to prison. The Roshto name had not been blocked out. The brothers then each filed a suit for invasion of privacy, based upon the second of the two articles, and the three suits were consolidated for trial.

A trial was held wherein each brother testified and admitted the substance of the articles was true and accurate. E. R. Rosh-to testified concerning his conversation with the “editor” of the paper and told of the assurance the Roshto name would not appear again. Defendant, Gary J. Hebert, stated he was the only editor and had never talked to Mr. Roshto nor had any of his employees told him of Mr. Roshto’s request.

In brief oral reasons the trial court stated plaintiff could not prevail because all parties admitted the truth of the articles and truth was an absolute defense. As plaintiffs-appellants point out in their brief, the petition asserts a cause of action for invasion of privacy rather than for defamation. While truth is an absolute defense to suits for defamation, it is not a defense in an action for invasion of privacy.

The right of privacy is discussed at length by William L. Prosser in his treatise, Law of Torts, 4th edition (1971). He notes there are four circumstances which give rise to an action for the invasion of privacy. These are:

1. The defendant appropriates the name or likeness of the plaintiff for the defendant’s own benefit.
2. The defendant intrudes upon the plaintiff’s physical solitude.
3. The defendant publicizes private information about the plaintiff.
4. The defendant publicizes information which puts plaintiff in a false light in the public eye.

The third category is the one that concerns us here.

We note the issue presented is res nova in this state. There are only a limited number of cases dealing with causes of action based on invasion of privacy and even fewer that involve the public disclosure of private facts.

Defendant relies heavily on the case of Jaubert v. Crowley Post-Signal, Inc., 375 So.2d 1386 (La.1979), which holds a plaintiff cannot recover when a newspaper publishes something that is available for public view. In Jaubert, the newspaper published a picture of plaintiffs’ home with a caption reading, “One of Crowley’s stately homes, a bit weatherworn and unkempt, stands in the shadow of a spreading oak.” The house was not identified as to address or owner. The Supreme Court refused to allow plaintiffs to recover on the theory of public disclosure of private facts. The court stated there was no right of privacy to things in the public view and the only question for the court was “whether the photograph and words of description depicted a matter which was actually within the plaintiffs’ protected zone of privacy.” The court stated:

“It is clear from the record that the Jauberts’ home was plainly visible from the public street, and that passersby were presented with a view of the property which was identical to that published by the defendant. Therefore, plaintiffs had no right to privacy, regarding the house and its condition. . . . ”

Although the facts in Jaubert and in the instant case make the two easily distinguishable, we can agree with the reasoning put forth in Jaubert. The court concluded the home and its condition were not within plaintiffs’ “protected zone of privacy” because the home was on public display and plainly visible to all those who passed by. We use this reasoning to conclude the Roshto brothers’ criminal histories were indeed within their “protected zone of privacy” because although the convictions were matters of public record, they were twenty-five years old and not generally known to the current population of the community. Certainly any curious neighbor could have sought out the criminal records of Iberville Parish and thereby obtained this same information. However, the likelihood that anyone would do so is virtually nil and it cannot be said the records were on public display and plainly visible to all who passed by. The fact the convictions were of public record is no justification for defendants “spreading the word” to the entire community twenty-five years later without some independent reason to do so. A convicted, pardoned and rehabilitated person is entitled to assume the “case is closed” once a reasonable period of time has passed and he is involved in no other illegal activities. This information, regardless of its existence on the public records, becomes private information by virtue of the passage of time and the lack of further criminal activity.

Further, we do not feel constrained to deny recovery, as did the Jaubert court, due to the extreme difference in the effects of the two publications. While the caption in the Jaubert case may have offended the Jauberts because of its rather uncomplimentary description of their home, this can hardly be said to have the same effect as the publication of an individual’s past criminal record. The former may be annoying whereas the latter is extremely damaging to one’s reputation and standing in the community. This difference is highlighted in the case of Carlysle Hebert by his decision to relocate his family away from the locale of the publication.

In Norris v. King, 355 So.2d 21 (La.App. 3d Cir. 1978), U.S. cert denied 439 U.S. 995, 99 S.Ct. 596, 58 L.Ed.2d 669, U.S. rehearing denied 439 U.S. 1122, 99 S.Ct. 1035, 59 L.Ed.2d 83, the court allowed the plaintiff to recover for the publication of his criminal conviction. Plaintiff robbed defendant’s washateria, was apprehended, tried and convicted. In the course of the robbery plaintiff’s photograph was taken by a hidden camera and defendant later posted the picture on the bulletin board in the wash-ateria. The picture was accompanied by humorous captions stating plaintiff had been “caught in the act” and “Michael now has a police record” and so on. Plaintiff was identified by name and address. He sued for invasion of privacy and the court noted although the facts published were true, plaintiff’s privacy had indeed been invaded. The court cited Briscoe v. Reader’s Digest Association, 93 Cal.Rptr. 866, 483 P.2d 34 (Cal.1971), rehearing denied 1971, and quoted from that opinion as follows:

“ ‘One of the premises of the rehabilitative process is that the rehabilitated offender can rejoin that great bulk of the community from which he has been ostracized for his anti-social acts. In return for becoming a “new man” he is allowed to melt into the shadows of obscurity.’ ”

In Briscoe plaintiff had hijacked a truck in 1956 but immediately thereafter reformed and “assumed a place in respectable society.” In 1967 defendant published an article entitled “The Big Business of Hijacking” which mentioned plaintiff and described his hijacking job. Plaintiff’s eleven year old daughter and several friends learned of the incident through the article. They thereafter scorned and abandoned him. Plaintiff claimed the public disclosure of private facts humiliated him and subjected him to ridicule and contempt. His main argument was although the subject of the article may have been newsworthy, the use of his name was not. The California Supreme Court agreed.

The court discussed the difference in reporting current criminal activities as opposed to criminal activities that occurred years before. It noted society has a general interest as to who has recently committed a crime and how the crime was committed for this information may encourage unknown witnesses to come forth and friends of the victim to give aid. The court stated there may be an educational value in reporting the facts of past crimes, but noted there is no legitimate purpose in reporting the names of the actors.

“However, identification of the actor in reports of long past crimes usually serves little independent public purpose. Once legal proceedings have terminated, and a suspect or offender has been released, identification of the individual will not usually aid the administration of justice.”

The court spoke of the tension between the idea of a free press and the protection of an individual’s privacy.

“In a nation built upon the free dissemination of ideas, it is always difficult to declare that something may not be published. But the great general interest in an unfettered press may at times be outweighed by other great societal interests. As a people we have come to recognize that one of these societal interests is that of protecting an individual’s right to privacy. The right to know and the right to have others not know are, simplistically considered, irreconcilable. But the rights guaranteed by the First Amendment do not require total abrogation of the right to privacy. The goals sought by each may be achieved with a minimum of intrusion upon the other.”

The Briscoe court discussed the matter in great detail and then set forth a four part test to be used by the lower court upon remand. In determining whether the plaintiff should prevail the court said:

“We do not hold today that plaintiff must prevail in his action. It is for the trier bf fact to determine (1) whether plaintiff had become a rehabilitated member of society, (2) whether identifying him as a former criminal would be highly offensive and injurious to the reasonable man, (3) whether defendant published this information with a reckless disregard for its offensiveness, and (4) whether any independent justification for printing plaintiff’s identity existed.”

Using these four factors as a test, we conclude plaintiffs’ privacy was indeed invaded. First, the record established all three plaintiffs had been law-abiding citizens since their indiscretion in 1952. Each raised families, collectively having twenty-six direct descendants (fourteen children and twelve grandchildren). There is no doubt they had become rehabilitated members of society. Second, it is obvious the identification of the Roshto brothers as criminals would be offensive and injurious to the reasonable man. The incident was twenty-one years old at the time of the first publication and twenty-five years old at the time of the second one. As Carlysle Roshto testified, the subsequent generation didn’t know anything about the incident. The brothers status changed from anonymous law-abiding citizens to former criminals because of this publication. This would certainly be injurious to any reasonable person and it was injurious to the Roshto brothers as demonstrated by their testimony which clearly depicts the agony suffered by them.

The third factor is a matter requiring some discussion. Mr. E. R. Roshto stated emphatically he communicated his request concerning the prohibition of further identification to some person at the newspaper. No one disputed this claim although Mr. Hebert denied he personally was ever informed of such a request. Under these circumstances, the newspaper must be held to have received the request. Yet, another article on the same subject was printed five years later. We conclude the second publication, if not the first, was with reckless disregard for the offensiveness of the article. Even without the Roshtos’ request common sense dictates it would offend a local citizen to have his neighbors reminded of his criminal act committed a quarter of a century in the past.

Finally, we find no independent justification for printing plaintiffs’ identities. Mr. Hebert testified the reason he printed the “Page From Our Past” was because of the community’s historical interest. While this is a valid reason for reprinting the front page as a whole, there can be little historical interest in the identification of these plaintiffs. They have not remained in the criminal world so that their beginnings were of interest to people today. They had long been private citizens and we find no independent justification for the reprinting of the article concerning their past crimes. Whatever remote historical interest may exist concerning these particular convictions is far outweighed by plaintiffs’ interest in maintaining their privacy and status as respected citizens of the community. See Lambert v. Dow Chemical Company, 215 So.2d 673 (La.App. 1st Cir. 1968). Therefore, using the factors set forth in Briscoe, we conclude plaintiffs should be allowed to recover.

The Restatement Second of Torts discusses suits for invasion of privacy in § 652D.

“One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that
(a) would be highly offensive to a reasonable person, and
(b) is not of legitimate concern to the public.”

We have discussed adequately the offensive nature of this publication as well as the fact that the identity of the Roshto brothers as criminals was of no legitimate concern to the public some twenty-five years after the crime was committed. Moreover, the lapse of time between the actual crime and the reprinting of the articles is of utmost importance to our decision in this case. This aspect of invasion of privacy suits is discussed in comment “k” of the Restatement as follows:

“k. Lapse of time. The fact that there has been a lapse of time, even of considerable length, since the event that has made the plaintiff a public figure, does not of itself defeat the authority to give him publicity or to renew publicity when it has formerly been given. Past events and activities may still be of legitimate interest to the public, and a narrative reviving recollection of what has happened even many years ago may be both interesting and valuable for purposes of information and education. Such a lapse of time is, however, a factor to be considered, with other facts, in determining whether the publicity goes to unreasonable lengths in revealing facts about one who has resumed the private, lawful and unexciting life led by the great bulk of the community. This may be true, for example, when there is a disclosure of the present name and identity of a reformed criminal and his new life is utterly ruined by a revelation of a past that he has put behind him. Again the question is to be determined upon the basis of community standards and mores. Although lapse of time may not impair the authority to give publicity to a public record, the pointing out of the present location and identity of the individual raises a quite different problem.” (Emphasis added.)

We have no difficulty in concluding the lapse of time in the present case makes the publicity unreasonable in revealing sensational facts about the three brothers who had resumed a very mundane life in the community.

We are aware of the United States Supreme Court decision of Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975), in which the father of a rape victim sued a television station for broadcasting the name of his daughter. In Cox, the Supreme Court reversed the state court’s award to the plaintiff for invasion of privacy because the name of the victim was a matter of public record.

The plaintiff in the Cox case was not the person whose name was published but the father of the victim, suing for his own invasion of privacy. In the present case the plaintiffs are the persons whose names were published and therefore their right of privacy was obviously more directly affected.

The major distinction however is the fact the publication in Cox was of a current nature, i.e., the rape victim’s name was published in connection with the trial of the suspect. The item was fresh and newsworthy. The entire community was no doubt interested in learning the unfortunate victim’s name. The publication in the present case, twenty-five years old, had absolutely no value as a newsworthy item. We think the difference is important and we do not consider ourselves to be governed by the Cox holding.

In conclusion, we reject defendants’ argument that because the criminal convictions are of public record the media is absolutely free to bring up the matter at any time and for any reason. To so hold would mean that regardless of the passage of time and a complete rehabilitation, persons once convicted or accused of crimes must be subject to constant anxiety that the matter may resurface at the whim of a newspaper publisher or a television newscast director. While ever respectful of the broad reach of the First Amendment we conclude each case must be determined according to its own facts and the interests of the press must be balanced against the individual’s interests of privacy. Our holding is limited to the narrow facts of this case, i.e., we hold that when humiliating and injurious facts are published about an ordinary citizen who has not been in the public eye for many years and these facts have no value' as newsworthy items, the person has a right to recover for the invasion of his privacy. We so hold in recognition of the vast power of the media and the devastating results that can occur when it is given an unfettered license to splatter details of an individual’s private life throughout its pages or across its airwaves.

An award of $35,000 for each plaintiff is an adequate redress for the injuries sustained.

Accordingly, the judgments of the trial court are reversed and we render judgment in each of the consolidated cases as follows:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment in Docket Number 14,639 (Number 22,630 on the docket of the 18th Judicial District Court), in favor of the plaintiff, E. R. Rosh-to, and against defendants, Gary J. Hebert, Joyce S. Hebert and The South Publishing Company, Inc., in solido, for the sum of $35,000, together with legal interest thereon from date of judicial demand until paid, and for all costs of court.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment in Docket Number 14,640 (Number 22,631 on the docket of the 18th Judicial District Court), in favor of the plaintiff, Alfred Roshto, and against defendants, Gary J. Hebert, Joyce S. Hebert and The South Publishing Company, Inc., in solido, for the sum of $35,000, together with legal interest thereon from date of judicial demand until paid, and for all costs of court.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment in Docket Number 14,641 (Number 22,632 on the docket of the 18th Judicial District Court), in favor of the plaintiff, Carlysle Roshto, and against defendants, Gary J. Hebert, Joyce S. Hebert and The South Publishing Company, Inc., in solido, for the sum of $35,000, together with legal interest thereon from date of judicial demand until paid, and for all costs of court.

All costs incurred on appeal in each of these consolidated cases are taxed against defendants, Gary J. Hebert, Joyce S. Hebert and The South Publishing Company, Inc., in solido.

REVERSED AND RENDERED.

      . Mr. Hebert testified he has printed a “Page From Our Past” almost once a week since 1973.

      . Established as defendant entities by the pleadings were: Gary James Hebert and Joyce 5. Hebert, publishers and editors of The Iber-ville South; and, The South Publishing Company, Inc., owner of The Iberville South. The Heberts are also stockholders in the corporate entity.

      . The issue on appeal was whether plaintiff had stated a cause of action for invasion of privacy. The merits of the case were not considered by this court but were to be determined by the lower court upon remand.

      . We note malicious intent on the part of the defendant is not a necessary element in a case involving invasion of privacy. See Tooley v. Canal Motors, Inc., 296 So.2d 453 (La.App. 4th Cir. 1974).

      . Plaintiffs had sued in reliance on a state statute which made it ¿ misdemeanor for a person to publish the name of a rape victim. The state trial court said the statute gave plaintiff a civil cause of action. The state supreme court rejected this but concluded the complaint stated a cause of action for common-law invasion of privacy. On rehearing the state supreme court said the statute created a state policy that a rape victim’s name was not a matter of public concern. The United States Supreme Court said the statute violated the First and Fourteenth Amendments.

      . Cf. Art. 1, § 5 of The Louisiana Constitution of 1974, entitled “Right to Privacy,” which provides in pertinent part: “Every person shall be secure in his person .. . against unreasonable . . . invasions of privacy.” See also, Jaubert, supra, at p. 1387, footnote 2.


text:
    Hezzie and Lottie BAHAM, D/B/A H & L Furniture Company v. Carl SPEED, et al.
    No. 14678.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.
    Rehearing Denied May 25, 1982.
    Byard Edwards, Jr., Ponchatoula, for plaintiff.
    Rodney C. Cashe, Hammond, for Carl Speed.
    Ernest L. O’Bannon, New Orleans, for Unionamerican.
    Ira J. Middleberg, Metairie, and Trudy Ann Black, Gretna, for A & R Capital.
    Gene J. Bordelon, in pro. per.
    Before ELLIS, PONDER and SAVOIE, JJ.
   ELLIS, Judge:

Plaintiffs Hezzie and Lottie Baham, doing business as H & L Furniture Company and as Baham’s Used Cars, wanted to secure insurance on their two businesses. They got in- touch with Carl O. Speed, an insurance agent. Mr. Speed was unable to obtain the insurance through the companies he represented but offered to obtain the insurance through another broker. Mr. Speed then called Gene J. Bordelon of B & B Brokerage, asked if he could place the insurance, and was told it could be placed.

The total premium for coverage on both businesses was $6,125.00. Of this amount, plaintiffs paid $1,507.50 in cash to “Carl Speed Ins.”, and the remainder of the premium, $4,617.50, was financed through A & R Capital Corp. for a finance charge of $393.43, making a total due by plaintiffs to A & R of $5,010.93, which was payable in nine monthly installments of $556.77. The premium finance agreement between the Bahams and A & R was executed on December 1, 1978, and on December 13, 1978, the sum of $4,617.50 was paid by A & R to B & B Brokerage.

A policy of insurance, dated December 1, 1978, but effective as of October 26, 1978, covering H & L Furniture Store against fire, extended coverage, vandalism and malicious mischief, was issued by Unionameri-ca Reinsurance Company, for a total premium of $2,772.63. No insurance policy covering the used car business was ever obtained by Mr. Bordelon, despite Speed’s testimony that Bordelon had assured him that he had obtained a policy for the used car business.

This suit was filed by plaintiffs for the return of all premiums paid and for mental anguish. After all pleadings had been filed, and some parties dismissed, the defendants at the trial were Mr. Speed, Mr. Bordelon and A & R Capital Corporation. Mr. Speed third partied Bordelon and A & R for indemnity or contribution. Mr. Bordelon filed an answer in proper person to the main demand, but made no appearance at the trial. A & R filed, at the trial, peremptory exceptions of no cause of action and no right of action, which were referred to the merits.

After trial on the merits, judgment was rendered in favor of plaintiffs and against all three defendants, in solido, for $2,772.63 with interest from date of judicial demand. Both the reasons for judgment and the judgment itself were silent as to the third party demands made by Mr. Speed. From the judgment, Mr. Speed has appealed sus-pensively and A & R has appealed devolu-tively.

In this court A & R assigns as error the failure of the trial court to sustain its exception of no cause of action, and the finding of liability on its part. Mr. Speed neither appeared nor filed a brief, so that his appeal will be dismissed by the court, ex proprio motu, under Rule VII, Sec. 5(b) of the Uniform Rules of the Courts of Appeal.

The supplemental petition, by which A & R was brought into the case as a defendant, contains the following allegations of fact:

“Commencing January 3, 1979, defendant A & R Capital Corporation was paid monthly payments in the amount of Five Hundred Sixty-One and 77/ioo ($561.77) Dollars for premiums on the insurance contracts set out in this litigation. A & R Capital Corporation received Forty-Four Hundred Fifty-Four and 16/ioo ($4,454.16) Dollars, none of which has been refunded to plaintiffs.”

Based on the above, and on the allegations of the original petition, which states that no policy of insurance covering the used ear business was received, plaintiffs alleged the liability of A & R in solido with the other defendants.

The above amounts to a claim that plaintiffs ordered an insurance policy, paid the premiums to A & R, and never received the policy. These allegations, if true, would render A & R liable to plaintiffs. It is of no moment that the ultimate finding of liability on the part of A & R is based upon an entirely different set of facts. The exception of no cause of action is without merit.

During the trial of the case, plaintiffs introduced, without objection, the premium finance agreement between them and A & R. This agreement contained the following provision:

“NOTICE: Any holder of this consumer credit contract is subject to all claims and defenses which the debtor could assert against the seller of goods or services obtained pursuant hereto or with the proceeds hereof. Recovery hereunder by the debtor shall not exceed amounts paid by the debtor hereunder.”

Since it is clear from the record that A & R played no part in the transaction except to finance a part of the premiums, and had no connection with the issuance of insurance, there is no basis for liability on its part other than the language above quoted. The trial judge found that the quoted provision meant exactly what it said, and that plaintiffs could exercise their claim (for the return of the premium paid for insurance not delivered) against A & R.

A & R argues that, since the transaction in this case is a commercial rather than consumer transaction,' the above clause should have no effect, since under federal law it is required only in consumer transactions. However, in Jefferson Bank & Trust Co. v. Stamatiou, 384 So.2d 388 (La.1980), the Supreme Court held that, when the above preservation of defenses clause is included in a commercial credit contract, even though inadvertently, the clause would be given effect. We find the Jefferson Bank case applicable and controlling in this case. It is immaterial that the Federal Trade Commission did not intend the preservation of defenses clause to apply to commercial transactions.

A & R’s final assignment of error is that the “trial court erred in holding A & R Capital in solido liable with Speed and Bor-delon as such holding places A & R Capital in the posture of a guarantor of the agent’s fiduciary obligation to plaintiff, rather than as a mere lender of money, and this holding is contrary to the weight of the law and the evidence.” As we pointed out above, there is no legal basis for liability on-the part of A & R other than the preservation of defenses clause in the contract, and no implication otherwise should be drawn from this opinion.

The judgment appealed from is, accordingly, affirmed. A & R shall pay all costs of this appeal.

AFFIRMED.


text:
    In the Matter of the SUCCESSION OF Ernest L. CHANEY, Sr.
    No. 14688.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.
    Rehearing Denied May 25, 1982.

      Robert E. Kleinpeter, Baton Rouge, for plaintiff-appellant Ernest L. Chaney, Jr.
    Mary Olive Pierson, Baton Rouge, for defendant-appellee Willis I. Chaney, Sr. and Edith Chaney Hudson.
    Before COVINGTON, COLE and WATKINS, JJ.
   COLE, Judge.

The issues presented here are whether or not defendants have proven the facts upon which plaintiff’s disinherison was based, and if so, whether or not plaintiff has proven the testator forgave him.

The facts are as follows. Ernest L. Chaney, Sr., (herein referred to as the testator) died on February 14, 1980, and left a statutory will wherein he disinherited his son, Ernest L. Chaney, Jr. (herein referred to as plaintiff). He stated in the will the disin-herison was based upon La. Civil Code art. 1621(1) and (2) which reads as follows:

“The just causes for which parents may disinherit their children are ten in number, to-wit:
1. If the child has raised his or her hand to strike the parent, or if he or she has actually struck the parent; but a mere threat is not sufficient.
2. If the child has been guilty, towards a parent, of cruelty, of a crime or grievous injury.”

The will, dated September 21, 1979, executed before a notary and two witnesses, left Visth of the estate to Gail Chaney (a granddaughter) and the remainder to his other children, Willis I. Chaney, Sr., and Edith Chaney Hudson. The will read in pertinent part as follows:

“On numerous occasions over the previous years, Ernest L. Chaney, Jr. has cursed me, ordered me from his home and struck me requiring that law enforcement officers be called. More specifically and on February 13 and 14 of 1977, Ernest L. Chaney, Jr. cursed me, ordered me from his home in Mississippi and told me he did not desire to care for me any longer and would prefer if I went back to Baton Rouge. In addition to this, on the 20th day of July, 1979, Ernest L. Chaney, Jr. and his sons cursed and struck me, causing injuries to me, for no reason whatsoever; also during the lifetime of my deceased wife and his mother, Ernest L. Chaney, Jr. was guilty of cruelty toward her, struck her on many occasions and cursed her violently. Ernest L. Chaney, Jr. has been guilty of all of this cruelty on numerous occasions inspite of my efforts and the efforts of my deceased wife to be kind to him, provide him with all of the necessities of life and provide him with guidance in raising his family. It is my desire that he be disinherited from my estate and deprived of his forced legitime.”

The will was probated by the district court. Plaintiff, Ernest Chaney, Jr., then filed suit to have his legitime enforced and named as defendants Willis Chaney, Sr., (individually and as the executor of the Estate of Ernest L. Chaney, Sr.), and Edith Chaney Hudson. Prior to trial the parties stipulated to certain facts such as the date of the testator’s death, the identity of the heirs, and most importantly, the testator “had the legal mental capacity to execute the will” dated September 21, 1979. Evidence presented at trial related mainly to the alleged striking incident of July 20, 1979. After hearing the evidence the trial court rendered judgment in favor of the defendants and upheld the validity of the disinherison portion of the will. Plaintiff then filed this appeal.

In written reasons for judgment the trial court noted under Civil Code art. 1624 the testator must state in his will the reasons for the disinherison and the other heirs must prove the facts on which the disinheri-son is founded. Therefore, the defendants have the burden of proving Ernest Chaney, Jr. either struck the testator or was guilty of other acts of cruelty. Once either allegation is proven the disinherited heir bears the burden of proving forgiveness or reconciliation so as to revoke the disinherison. Otherwise the disinherison will be upheld.

Plaintiff complains of four errors committed by the trial court. First, plaintiff contends because the testator listed several reasons for the disinherison, the other heirs must prove the facts to support each and every reason in order to uphold the disinherison provisions. This argument is totally without merit. La. Civil Code art. 1621, cited above, provides ten causes for which parents may disinherit their children. The testator singled out two causes and then recited facts to support both. Proof of either one of the causes is sufficient.

We agree with defendants-appellees this case is no different from a tort action wherein the plaintiff alleges several acts of defendant’s negligence have caused his injuries. If plaintiff can prove any one of the acts alleged he has sustained his burden of proof. Similarly, a plaintiff in a suit for separation from bed and board might allege several grounds under La. Civil Code art. 138. The plaintiff will prevail if he or she is able to prove any one of the grounds alleged. A plaintiff who out of abundance of caution urges multiple grounds is not penalized by having to prove each and every one of them.

The trial court concluded the heirs had proven by a preponderance of the evidence plaintiff struck his father on July 20, 1979, and proof of this act was sufficient to uphold the disinherison provisions. We agree.

Second, plaintiff contends the trial court erred in granting greater weight to the testimony of the defendants and their witnesses rather than the testimony of the plaintiff and his witnesses. The following facts were established at trial and are largely undisputed. The testator, age 89, had been residing alternatively at the home of each of his three children, spending approximately two weeks with each. At the time of this incident the testator was residing with plaintiff at his home in Mississippi. On the night of July 19, 1979, plaintiff awakened and discovered the testator had left the house. Plaintiff’s two sons got a flashlight, searched the area and found the testator lying on the ground in the back yard, about six feet from a barbed wire fence. Plaintiff called Willis at approximately 1:00 A.M. and shortly thereafter plaintiff, his wife and son Wade delivered the testator to Willis’ house in Baton Rouge.

There was conflicting testimony as to the nature of the phone conversation. Myra Chaney, Willis’ wife, stated she answered the phone and could hear “papa” (the testator) in the background saying he wanted Willis to come get him. Willis testified plaintiff called and said he couldn’t put up with the testator any longer and was going to bring him to Baton Rouge. Plaintiff testified he called Willis only at the testator’s request although when Willis was reached the testator refused to talk to him. Plaintiff stated he then told Willis it would be best if the testator came to Willis’ house that night.

Testimony also conflicted as to the circumstances surrounding his arrival at Willis’ house. Willis and his family testified there was much yelling and commotion by the testator and the plaintiff, and the testator said he had been beaten up by plaintiff and his sons. Plaintiff and his wife both denied any ruckus occurred and knew nothing of the testator’s accusations that he had been beaten up.

Of primary importance is the testimony concerning the testator’s physical condition when he arrived at Willis’ house. Willis stated his father had a black eye, was bruised and his nose, arms and legs were “skinned up.” Blood was coming through his shirt. Myra Chaney, Willis’ wife, stated the testator’s face was bloody, his left eye was black and he had a skinned spot on his head. She said his shirt and pants were stained with blood that seemed to have been coming from his upper right arm and his lower right leg.

Willis Chaney, Jr., Willis’ son, testified his grandfather (the testator) was bruised a little bit and had blood on his pants. Willis’ twelve year old granddaughter, Cherry Barton, was visiting at her grandfather’s house the night of the incident. She did not leave her bedroom that night but saw her great grandfather the next morning. She described him as having a black eye, a cut on his leg and bruises on his arms.

Ms. Helen Pope, administrator of the Golden Age Nursing Home, was called by the defendants to testify concerning certain nursing home records. The records were admitted under La.R.S. 13:3714 which is an exception to the hearsay rule. Ms. Pope read from the records a notation made by a nurse who examined the testator upon his admission to the nursing home on July 20, 1979. The record reads as follows:

Admitted white male, age eighty-eight, to Room 417A. Ambulatory with cane. Alert, cheerful. Diagnosis: ASHD, diabetic, senility, peripheral vascular disease, multiple abrasions and bruises noted over body, small laceration right hand, abrasion right lower arm, left upper arm bruised, left eye and nose bruised, small abrasion on bridge of nose, left side of middle back bruised, abrasions on right shin and left shin, pedal edema below the knee, dark purple and hard. Skin very dry, especially right leg and ankle. Left hand one finger one-half amputated. Hearing aid, right ear. Dentures, top and bottom plates. To dining room for lunch, appetite good. Pocket knife removed from patient’s possession, will give to family. Dr. Bergeron notified of patient’s admittance. New orders.

Dr. Cecil Bergeron treated the testator (at the nursing home) about ten days later and he testified his notes showed he found several abrasions on the testator’s body, including his arm and his face, all in the healing stage. He noted the testator also had leg ulcers which were not a result of trauma.

Plaintiff and his two sons testified and denied striking the testator. Their description of the testator’s physical condition was quite different from that of the defense witnesses. Plaintiff stated the testator had abrasions but no black eye, no cut on the nose and was not bleeding. He stated his father had “skinned himself up,” possibly on the steps of plaintiff’s house or when he fell in the yard. Plaintiff’s wife, Billie Chaney, stated she saw no abrasions on the testator’s face nor did she see any blood. Elvin Wade Chaney, plaintiff’s son, testified he found his grandfather lying in the yard on the specified night. He said he had no new marks or injuries at all and had no marks on his face. Clarence Chaney, plaintiff’s other son, testified he saw no injuries on his grandfather’s face but did notice some scratches on his hand.

We note there were several minor inconsistencies in the testimony of witnesses for each side. Willis and his wife testified they took the testator to Dr. Jere Melilli the next day and Dr. Melilli examined the testator and recommended he enter the nursing home. Dr. Melilli stated he did not recall seeing the testator that day but did remember talking with family members and providing forms necessary for his admittance to the nursing home. An inconsistency in the testimony of plaintiff’s witnesses arose when plaintiff testified his son Wade had spent several nights with the testator at the hospital. Wade stated he had visited his grandfather only once in the hospital and had never spent the night.

The trial court noted other inconsistencies in plaintiff’s and his witnesses’ testimony, concerning the physical description of the testator on the night in question and concerning the frequency of visits made by the plaintiff and his wife. The trial court then stated, “Considering these differences, this court feels more weight should be placed upon the testimony coming from the executor and his witnesses.” The court then concluded the defendants had shown by a legal certainty that decedent was struck by plaintiff on July 20, 1979, and therefore the disinherison provisions were valid and should be upheld.

We agree with appellant’s contention there is no direct evidence establishing plaintiff struck the testator. But as the trial court noted, citing Morales v. Houston Fire and Cas. Co., Inc., 342 So.2d 1248 (La. App. 4th Cir. 1977), writ refused 1977, causation can be proved by circumstantial rather than direct evidence. The Morales court stated, at page 1250:

“The ultimate question is the preponderance of all evidence. Proof, whether by direct or circumstantial evidence, is sufficient to constitute a preponderance when the proof, taken as a whole, shows that the fact or causation sought to be proved is more probable than not.”

After reviewing the record we agree the circumstantial evidence, taken as a whole, showed more probably than not the plaintiff struck the decedent. It is well established that as an appellate court, we are limited in our assessment of credibility of witnesses. Where evidence is conflicting we should not disturb the trial court’s reasonable evaluation of one set of witnesses as credible and its consequent rejection of testimony of the opposing set of witnesses; nor should we disturb the trial court’s reasonable factual inferences drawn from testimony found by it to be credible. Billiot v. Bourg, 338 So.2d 1148 (La.1976).

We regret we are limited to the “cold record” in this aspect. But it is logical we defer to the judgment of the trial court, unless manifest error is noted, because the trial court is in the position to assess the demeanor and the attitudes of the witnesses, first hand. This first hand observation means the trial court is well equipped to make the difficult decision as to which witnesses are speaking truthfully.

Plaintiff’s third assignment of error is that even if the evidence proved he struck his father, his father forgave him so the disinherison provision has no effect. Successions of Lissa, 198 La. 129, 3 So.2d 534 (1941), established that when the evidence shows the testator has forgiven the disinherited heir, the disinherison provisions of the will are null. Plaintiff stated he visited his father in the hospital after his second surgery and later at the nursing home. On the occasions when the testator was alert he seemed glad to see plaintiff and inquired about a crop he had helped plant. Plaintiff admitted he had not seen or inquired about his father from the time the testator was admitted into the nursing home in July until the time of his second operation, which was sometime after October 18,1979. He stated Willis had promised to notify him of his father’s condition but he learned of the second surgery only because a distant relative so informed him. When asked why he didn’t make the inquires himself (rather than wait to be informed) he said he had wanted to avoid any controversy about the way his father was “raising sand the morning I took him down there.” The court refused to deem this limited contact to mean the testator had forgiven the plaintiff, based partially on the evidence showing the testator had been semicomatose on many occasions after his surgery.

We find no manifest error in the conclusions of the trial court. The evidence offered by plaintiff does not establish his father forgave him for the striking. The jurisprudence does not set forth guidelines for determining when forgiveness has been established, therefore we have no “definition” as to what constitutes forgiveness. Yet we feel quite comfortable in saying there must be some affirmative action by the testator to show he has in fact forgiven the disinherited child. A merely passive action such as the testator allowing his son to visit him in a nursing home is not an act showing forgiveness. The record establishes the testator’s mental and physical condition declined seriously after the second surgery and although we are not denying he had lucid intervals, we feel his general ill health would permit him to do little more than accept his son as a visitor.

Finally, plaintiff contends the court erred in rejecting plaintiff’s claim for his legitime because the record shows “the testator had insufficient control over his functions from July 1979 such that no credibility should be given to any statements made by the testator concerning reasons for his son’s disinheritance.” We reject this argument because the parties stipulated the testator had the mental capacity to execute the will on the date of execution.

For these reasons, the judgment of the trial court is affirmed'. Appellant is to pay all costs.

AFFIRMED.

      . Although the will alleges another act of cruelty which occurred in 1977 the testimony concerning this incident is irrelevant. We so conclude because the record indicates the testator donated real estate to plaintiff in May of 1979. This act of donation represents forgiveness for any acts occurring prior to that date.

      . Plaintiff and Willis both testified they had planned to have the testator admitted into a nursing home on July 20 and were going to meet at Willis’ house in order to do so.

      .The testator was admitted to Dixon Memorial hospital on October 18, 1979, for an appendectomy. He improved somewhat after the surgery but several days later required another operation to repair the stitches and to treat infection. He was discharged and returned to the nursing home but reentered the hospital on November 8, 1979, January 6, 1980 and February 9, 1980. He died there on February 14, 1980.

      . Willis testified his father had instructed him not to inform plaintiff of his failing health because the testator did not want to see plaintiff.

      . Successions of Lissa, supra, discusses forgiveness but the facts of that case show the testator and the disinherited child maintained a close and loving relationship for years before the disputed will was executed.


author: COVINGTON, Judge.

text:
    MITCHELL ENGINEERING COMPANY, DIVISION OF THE CECO CORPORATION v. RONALD A. GOUX, INC.
    No. 14689.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.
    Rehearing Denied May 25, 1982.
    John L. Hantel, New Orleans, for plaintiff, appellee.
    Wendell E. Tanner, Slidell, for defendant, appellant.
    Before COVINGTON, COLE and WATKINS, JJ.
   COVINGTON, Judge.

This is a suspensive appeal by the defendant, Ronald A. Goux, Inc., from a judgment signed on December 22, 1980, in favor of the plaintiff, Mitchell Engineering Company, Division of the CECO Corporation, in the amount of $28,993.00, with legal interest and costs. We affirm.

This suit arises out of an alleged breach of contract by Goux for failure to accept delivery of and to pay for three metal buildings and accessories which Mitchell fabricated for Goux pursuant to the subject contract. Based on the alleged breach of contract, Mitchell sued Goux for damages in the amount of $48,457.50, plus attorney’s fees, interest and costs. Goux generally denied the allegations of plaintiff’s petition, and affirmatively defended on the grounds “that the contract referred to by the plaintiff herein was not entered into by defendant herein, in that plaintiff or plaintiff’s representative knew or should have known that upon the date that the proposal was signed by Branch A. Goux, it was not the intention of Branch A. Goux to bind Ronald A. Goux, Inc. to the contract and in fact, no deposit was made on the proposal and Branch A. Goux is not an officer or an authorized representative of Ronald A. Goux, Inc.” Further, defendant answered “that the representative of plaintiff, Robert Byeofski, was aware of the fact that Branch A. Goux could not bind defendant herein and was so informed by Branch A. Goux on the date such proposal was signed by Branch A. Goux.”

After hearing all of the testimony, considering all of the evidence introduced, and listening to the arguments of counsel, the trial judge found in favor of the plaintiff, assigning the following oral reasons for his judgment:

“Although there is some evidence, in this case to indicate otherwise, the Court finds that the preponderance of the evidence which showed the existence of a contract between the plaintiff and defendant in this case. Some of the reasons for these findings are as follows:
“Ronald Goux, sole owner of the defendant company, in trying to get the price down on one job, asked the plaintiff’s representative to include another job in his proposal. Although he requested defendant’s representative to separate the proposals in two parts when he received it, after it was separated by the plaintiff’s representative, he signed one of them almost immediately and indicated to the salesman that he would sign the other one later.
“After repeated attempts on the part of the plaintiff’s representative to get the second contract signed, it was finally signed by Ronald Goux’s father, who represented to the plaintiff’s representative that he had just talked to the plaintiff and while standing or sitting in Ronald A. Goux’s office, the so-called headquarters of Ronald A. Goux, Incorporated, Ronald Goux’s father had been held out as having some authority to the plaintiff’s representative, in his introduction, he admits that he probably introduced himself to the plaintiff’s representative and said, ‘He is my construction superintendent on this job,’ and was apparently quite often seen on the job by the plaintiff’s representative.
“Branch Goux, the person who signed the contract, Ronald A. Goux’s father, would have the Court believe that he told his son about signing that contract, holding a price on some steel. That he told his son about it the next day, yet, the son, Ronald A. Goux, would have this Court believe that his father had absolutely no authority, whatsoever, and perhaps he didn’t, but what is important here, is what the plaintiff justifiably believed and he would have this Court believe that he had no authority, whatsoever, to sign the contract, so, I believe he told him about it the next day and then Ronald A. Goux, did absolutely nothing, in any way to contact Mitchell Company, after finding out his father had signed the contract, to make sure that the situation was, as he alleges to be today.
“Now, you have to have an intent to enter in a contract, if you want to hold the price of steel. Insofar as the intent is concerned, Branch Goux intended to hold the price of steel and couldn’t very well bind the company, the plaintiff’s company in here, without some fashion intending to bind it himself.
“Those are the factors which indicate authority on the part of Branch Goux to sign the contract. Over and above that, this Court finds there was ratification, by silence, on the part of Ronald A. Goux, Incorporated, through its representative, Ronald A. Goux, in remaining silent upon the receipt of three pieces of correspondence from Mitchell Incorporated- — • Mitchell Engineering Company, I am sorry, and the defendant contends that this should not be considered a ratification of the contract signed by his father, on behalf of his corporation because he had never sent a ten percent deposit. And that is a troublesome matter for the Court to rule on at first, however, when you look at the contract, this is certainly a clause that is in favor of the plaintiff corporation herein and is something that is waiverable on their part, although, it may be an argument in Ronald A. Goux, Inc.’s favor against ratification. This Court does not find it sufficient to find no ratification of Ronald A. Goux, Incorporated, through its sole owner, Ronald A. Goux.
“Having found that, there is a contract either properly, one that the plaintiff corporation could rely on and sue for damages or one that was ratified; either approach you take to it, having found that there is a contract, the Court further finds that Mitchell Engineering Company was damaged, as a result of a breach of that contract.
“The Court finds that the plaintiff corporation made legitimate attempts' to try to mitigate their damages, insofar as its proposal for actual damages that should be assessed here today.
“The Court finds that the losses testified to by the cost accountant and the company are essentially correct and that is, there would be damages in the amount of $31,418.00, except the Court finds in cross examination by Mr. Tanner, that certain modifications, should be made to that figure. I will not award the inventory carrying or whatever that item is.
“The $31,418.00 should be reduced as follows: The first item listed under restock cost, $90.00, repainting, should be deducted from that figure, that I previously mentioned because the representative of the plaintiff company has indicated to the Court that they would repaint it, when they sold it and that repainting job would be charged to the next customer.
“The Court makes the same finding with regard to the restock cost items shown as fifteen hundred eighty-four dollars, for the same reason.
“And the cost of $437.00, listed immediately below it, for the same reason. There would be no need to purchase paint at this time. You would purchase the paint when you repaint it and sell it to the next purchaser.
“The Court further finds that the plaintiff’s representative has indicated that engineering costs, with respect to the small building, which is the one, 40 foot by 75 foot by 16 foot Mitchell metal building mentioned near the end of the contract between the parties; plaintiff’s representative indicated they would suffer no loss as a result of that and the engineering cost for that building would be passed on to the next purchaser and the proper pro-ration in accordance with sound cost analysis, as far as this Court is concerned, would be $314.00.
“With respect to an adjustment of sales commission, the Court does not find anything should be done with respect to it and in its presentation to the Court, the plaintiff’s representative has not asked for margin of profit but only an overhead item, which this Court will not adjust. “Accordingly, I find that the defendant corporation is liable to the plaintiff corporation in the sum of $28,993.00, plus legal interest from date of judicial demand and all costs of this proceeding.”

In this ease, the trial judge heard and observed the nine witnesses who testified. As set out above, his factual findings and conclusions favor the plaintiff. There is ample evidence in the record to support these factual findings and conclusions, and there is no basis in the record for us to disturb them. See Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Appellant specifies three errors in his brief:

“1. THE TRIAL COURT COMMITTED CLEAR AND MANIFEST ERROR in finding that Branch Goux was either by representation or actual authorization a representative of appellant.
“2. THE TRIAL COURT COMMITTED CLEAR AND MANIFEST ERROR in finding that a valid contract was entered into between appellee and Branch Goux for and on behalf of appellant.
“3. THE TRIAL COURT COMMITTED CLEAR AND MANIFEST ERROR in finding that a contract was effected through silence on the part of the appellant, Ronald A. Goux, Inc.”

The trial court found that the facts and circumstances of the instant case showed that Branch Goux had authority to sign on behalf of the defendant, so that a binding contract was effected between Goux and Mitchell. The testimony of Mitchell’s district sales manager (sales representative), Robert Bycofski, shows that he and Ronald Goux, the president of the defendant corporation, initially discussed the sale of metal buildings for the Slidell job, which is the subject of this lawsuit, in conjunction with the Mandeville job. The price and object were agreed upon. Then Ronald Goux made a proposal for a package deal of the two jobs in one contract, which was acceptable to Mitchell; however, at Goux’s request, the two jobs would have to be billed to two different corporations or entities.

Pursuant to this agreement, Ronald Goux executed the contract for the Mandeville job on behalf of another corporate entity. At that time, he indicated that the Slidell job contract would be with Ronald A. Goux, Inc., defendant herein, and that the actual signing would take place at a scheduled time within the next few days. The scheduled date was not met, but Ronald Goux phoned to arrange a meeting with Bycofski at his office in Mandeville. Although what actually took place at the Mandeville meeting on August 1, 1977, is disputed, it appears that Ronald Goux’s father, Branch Goux, representing himself as authorized agent for his son appearing on behalf of Ronald A. Goux, Inc., signed the Slidell job contract as “Ronald A. Goux, Inc. Ronald A. Goux by Branch A. Goux.”

An agency may be created expressly by a written agreement between the parties; it can also be created verbally Bellard v. Mowata Rice Drier, Inc., 400 So.2d 731 (La.App. 3 Cir. 1981). It may also be created by implication. It is created by implication when, from the nature of the principal’s business and the position of the agent within that business, the agent is deemed to have permission from the principal to undertake certain acts which are reasonably related to the agent’s position and which are reasonable and necessary concomitants of the agent’s express authorization. Implied authority connotes permission from the principal for the agent to act, though that permission is not expressly set forth orally or in writing. Busby v. Walker, 84 So.2d 304 (La.App. 2 Cir. 1955), writ denied, Feb. 23, 1956. Southwest Motor Leasing, Inc. v. Matthews Lumber Company of Mansfield, Inc., 325 So.2d 870 (La. App. 2 Cir. 1976). We find, as did the trial court, that there was a binding contract between the parties for the Slidell job.

Prevoius to the signing of the contract, Ronald Goux had agreed with Mitchell on the Mandeville and Slidell jobs. See Benglis Sash & Door Co. v. Leonards, 387 So.2d 1171 (La.1980). It was at Ronald Goux’s request and for his accommodation that two separate contract forms were to be used in order that Ronald Goux could use different entities for the two projects. Moreover, these facts and circumstances constitute such apparent authority for Branch Goux to sign on behalf of appellant, that it is es-topped from denying his authority and is bound by its contract with Mitchell. Cast-Crete Corporation v. West Baro Corporation, 339 So.2d 413 (La.App. 1 Cir. 1976), writ denied, 341 So.2d 900 (La.1977); Dart Distributors, Inc. v. Foti Enterprises, Inc., 271 So.2d 705 (La.App. 1 Cir. 1972).

On this question, Goux contends that Branch Goux’s signature was limited to holding the price of steel. The evidence does not support this contention. Bycofski testified that Branch Goux signed on behalf of Ronald Goux without indicating any conditions or limitations upon his execution of the contract. The contract itself and the circumstances at the time of its execution corroborate Bycofski’s testimony.

Further, after the execution of the contract, neither Ronald Goux nor Branch Goux indicated any limitations, reservations or restrictions to the execution of the contract on their part. On the contrary, their actions were such as to lead a reasonable person to believe that the contract was to be given full effect as written.

In addition, appellant argues that there was no contract, because it had no use for such metal buildings at the time of execution of the contract. That is of no moment. Nevertheless, the record does not support such contention. It appears that appellant merely sought a delay in delivery of the building, because it was seeking a new site on which to locate the building since the original site had been used for other commercial purposes.

A further argument by appellant that there was no contract between the parties is that Goux never paid a “down payment” which the contract required. The required down payment was merely one of the provisions of the contract, not a suspensive condition to the making of the contract. Furthermore, as pointed out by the trial judge in his reasons for judgment, the down payment requirement was a clause in favor of or for the protection of Mitchell, which it could waive if it so desired. Both Bycofski and Bobby Flemming, Mitchell’s credit manager, testified that Mitchell waived the down payment in this instance. As explained by Flemming, Mitchell had already received a 10% down payment on a related project from Goux so that as a “standard” customer, Goux was not required to actually put up such down payment on the Slidell job.

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

AFFIRMED.


text:
    Charles NASSAUER, et al. v. MARINE OFFSHORE CATERING COMPANY, INC.
    No. 14697.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.
    Rehearing Denied May 25, 1982.

      Jeff Hughes, Lafayette, for plaintiffs and appellants.
    Richard Mire, Houma, for defendant and appellee.
    Before COVINGTON, COLE and WATKINS, JJ.
   COVINGTON, Judge.

This is a suit by Charles Nassauer and Huey Stafford, employees of defendant, Mariné Offshore Catering Company, Inc., to recover unpaid wages, travel time, penalties and attorney’s fees pursuant to LSA-R.S. 23:631 and 632. On the trial of this suit, the judge awarded Nassauer $51.47 and Stafford the sum of $31.00 for past due wages. The court denied plaintiffs travel time, penalty wages and attorney’s fees. From this judgment, the plaintiffs have appealed, and the defendant, seeking reversal, has answered the appeal. We amend, and as amended, affirm.

The trial court found that there was no agreement between the employer and the employees (as the defendant contended) that the employer was to pay a whole day’s pay to an employee on the day he reported, regardless of the hours worked, and was not to pay for any hours worked on the last day, the day they were replaced by another crew, regardless of the hours worked. Rather, the court held that employees such as Nassauer and Stafford, were to be paid for the actual hours worked on the first day and the last day of the work period. The trial court further found that there was an agreement between the parties that the employees were not to be paid travel time unless transportation to the rig where they worked was by boat; in this case, it was by helicopter. The court denied penalty wages and attorney’s fees, without direct comment, and failed to make mention of such awards in the judgment.

The record establishes that Nassauer worked as a galley hand at a wage of $2.90 per hour for a 40-hour week, with $4.35 per hour for overtime. The employer guaranteed Nassauer a 12-hour daily pay regardless of the number of hours actually worked. Stafford worked as a steward or cook at a wage of $4.00 per hour for a 40-hour week, with $6.00 per hour for overtime. Stafford was guaranteed a 13-hour daily pay regardless of hours he actually worked. They were to be paid for any additional hours actually worked, as verified by their superintendent. Travel time was to be paid only under certain conditions.

It is the defendant’s contention that the employees were not owed any additional wages. It argues that the plaintiffs were fully paid for all days and hours which they worked in accordance with their contractual arrangement with the catering company, under which the work crews worked on the offshore rig in hitches of seven days on and seven days off. The employer states that its policy was to pay a whole day’s pay for the first day on, without taking into account the number of hours actually worked, and to pay nothing for the last day or “eighth day,” even if the employee actually put in working-hours that day.

The present wage dispute centers upon the plaintiffs’ claims that they actually worked 15 hours on the first day of the disputed hitch, and 15 hours on the “eighth day” of the hitch. Nassauer claims that he was underpaid 25 hours, and Stafford claims that he was underpaid 171/2 hours. The record supports the claims of the plaintiffs. The time sheet signed by the supervisor shows that on the first day and “eighth day” they were credited with 19 hours each day (including 4 hours travel time for each day). Accordingly, we agree with the trial court that the employees were entitled to be “paid for actual hours worked both days.” We also agree with the trial court that certain overtime payments were due Nassauer.

However, we disagree with the trial court’s disallowance of pay for travel time. We feel that plaintiffs are entitled to travel time as indicated on their timesheet; hence, an additional 4 hours each of overtime for the first day worked, and an additional 4 hours each of regular time for the “eighth day” worked, is to be awarded to plaintiffs. This travel time pay amounts to an additional $29.00 for Nassauer and $40.00 for Stafford.

Testimony at the trial indicates travel time from the rig back to Grand Isle was more than two hours. This is corroborated by the testimony by deposition of Larry Hutchins, their foreman or job supervisor, who noted that a trip by boat from the rig to Intracoastal City took about 15 or 16 hours. In addition, Hutchins stated his basis for fixing the 4 hours of travel time, and further indicated it was normal procedure for employees to be paid for travel time. The mode of transportation, by boat or helicopter, is not the controlling factor.

In order for the employer to be liable for penalty wages, it must have been motivated by bad faith or must be found to have acted in an arbitrary or unreasonable manner. Berteau v. Wiener Corporation, 362 So.2d 806 (La.App. 4 Cir. 1978), writ denied, 365 So.2d 242 (La.1978). We feel that the employer’s actions were neither motivated by bad faith nor did it act in an arbitrary or unreasonable manner under the circumstances of this case. There was a bona fide dispute concerning hours actually worked by the employees. Our jurisprudence is settled that an employer may present equitable defenses to the imposition of penalty wages. Lazauskas v. Louisiana Offshore Caterers, Inc., 371 So.2d 1183 (La. App. 1 Cir. 1979), writ denied, 373 So.2d 510 (La.1979). We find that the present facts do not warrant the imposition of penalties. We agree with the trial court on the question of penalty wages.

Reasonable attorney’s fees are to be awarded in the event of a well-founded suit for any unpaid wages whatsoever, even if penalty wages are not due. Soday v. Mall Snacks, Inc., 374 So.2d 138 (La.App. 1 Cir. 1979). The trial court erred in denying the plaintiffs reasonable attorney’s fees. We find that under the circumstances of this case, the attorney for the employees did work in connection with these two claims sufficient to entitle him to a fee of $750.00, which is to be taxed as costs to be paid by the employer. Carriere v. Pee Wee’s Equipment Company, 364 So.2d 555 (La.1978).

For the reasons assigned, we affirm the awards of unpaid wages and the denial of penalty wages, but we amend the judgment so as to hold the defendant additionally liable for travel time as set out above, thereby increasing the award to Nassauer to $80.47 and the award to Stafford to $71.00. We also amend to award $750.00 attorney’s fees, which we tax as costs, and cast the defendant for all costs.

AMENDED AND AFFIRMED.


text:
    Ruby CROCKETT v. ST. PAUL INSURANCE COMPANY, et al.
    No. 14724.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.
    Rehearing Denied May 25, 1982.
    Hobart O. Pardue, Jr., Springfield, for plaintiff.
    Denis Paul Juge, New Orleans, for defendants.
    Before COVINGTON, COLE and WATKINS, JJ.
   COVINGTON, Judge.

The plaintiff, Ruby Crockett, brought this suit seeking workers’ compensation benefits for an accident which allegedly occurred on November 20, 1978. Named as defendants are the plaintiff’s employer, Seventh Ward General Hospital, and its workers’ compensation insurer, St. Paul Insurance Company. After trial on the merits, the court rendered judgment in favor of the plaintiff and against the defendants, in solido, for weekly compensation in the amount of $120.00 per week beginning November 20, 1978, during the period of her disability. The judgment further ordered that all accrued amounts, with interest, be paid in a lump sum. The defendants were ordered to pay all medical expenses, expert witness fees and costs of the litigation. The plaintiff was denied penalties and attorney’s fees. The defendants have perfected this appeal. We affirm.

The primary issue on this appeal is whether the evidence supports the trial court’s finding that the plaintiff was totally and permanently disabled as a result of her injury. The record shows that at the time, of her injury, she had been employed by Seventh Ward General Hospital for a period of about 19 years, and was receiving wages at the rate of $4.10 per hour for an eight hour day as a respiratory technician. On November 20, 1978, she injured her back while turning a patient. She stated that “something popped in my back and hurt my back.” She saw Dr. Merlin Allen about 30 minutes after the incident, and the doctor prescribed medication. She also reported the injury to her supervisor and turned in an incident report. Dr. Allen verified that he had seen the plaintiff and prescribed medication for her on that occasion. He has continuously treated her thereafter.

Although experiencing pain, Mrs. Crockett continued to work at the hospital. Dr. Allen testified that she “worked with pain.” The plaintiff stated: “I could work as long as I took pain medicine.” The record shows that she has experienced substantial pain as a result of her accident which prevents her from engaging in further employment.

Concerning his initial examination, Dr. Allen testified as follows:

“It was obvious and still is that Mrs. Crockett did have some type of traumatic injury to the back and in lifting the way she said she had received this injury to her back.”

Dr. Allen prescribed soma compound which is a muscle relaxant, and advised her to seek physical therapy and ultrasound treatment in the hospital.

Dr. Allen next saw Mrs. Crockett in his office on November 29, 1978. He testified regarding that visit:

“The day I did see her here in the office and made an examination she had what I described as a very simple lumbarsacral muscle spasm and now this may be simple to us but it is very painful to the patient. And she was not able to really stand very well and she certainly was having difficulty.
“. .. So the visit of November 29th was to reinforce the fact she needed conservative medical management which included muscle relaxers, ultrasound in the hospital and heat and at this time I put her on a new drug which is Nalfon, which is a drug we use for inflammation, it’s kind of anti-arthritic and also I gave her a prescription for Empracet which is a pain relieving medication that has codeine in it. And I told her that I would see her in the hospital and if she needed to come back to the office because everyday between November 29th, 1978 and' really October 10th, 1979 I just don’t know how many times I would see her in the hall and kind of perform a halfway physical examination and give her medications on refill.”

Dr. Allen then saw Mrs. Crockett in his office on October 10, 1979. He gave his findings:

“This time she was very, very tender in the back of the L-4 region and at this time I really felt as though that we were dealing with a possible disc.”

Dr. Allen again saw Mrs. Crockett on October 31,1979, and related her complaints as follows:

“. . . she stated she was really having a terrific amount of problems with her back, as a matter of fact the medication for pain that I was giving her, the Em-pracet was not really holding pain and she needed something stronger. It was at this time I felt as though that we needed to certainly consider the fact that she could see an orthopedic surgeon or even a neurosurgeon because anytime you start taking Percodan for back pain you move up the ladder and we needed to do something different.”

She again saw Dr. Allen on December 12, 1979, and his report indicated that she was still experiencing pain, although some improvement was noted. He saw her on February 13, 1980, and prescribed stronger medication for the back inflammation.

Dr. Allen continued to treat Mrs. Crockett, and made the following notation concerning her visit of March 31, 1980:

“She stated she wasn’t able to work without pain and she could hardly do her housework, certainly could not do any lifting. . . Physical examination of the back revealed just almost the same thing it did each time, she had tenderness in the lumbarsacral area which is around L-4, 5-SI.”

Dr. Allen expressed his opinion concerning Mrs. Crockett’s condition:

"... I really believe in my professional opinion she does have some type of early disc problem.”

Dr. Allen corroborates plaintiff’s testimony about her trying to obtain work and her inability to do so. His testimony in this regard is as follows:

“The last visit I saw her was March 31st, 1980 she was trying to work as a sitter with old people. And this is when she told me she was unable to pull on old people or to lift. That’s true and usual, you know. This was the only employment as far as I know that she had.”

Dr. Allen testified, regarding Mrs. Crockett’s pain, as follows:

“Q. When you first saw her on November 29th, 1978 you have prescribed Nalfon and some pain pills?
A. Yes, some are compound and Em-pracet No. 3. She had the Empra-cet No. 3 in the hospital because I had given that prescription earlier. These were two new refills.
Q. You gave her pain pills because she was in pain?
A. Yes.
Q. She complained of pain?
A. Yes.
Q. And the pain would be compatible with your objective clinical findings?
A. Yes.
Q. I think you noted lumbarsacral muscle spasms?
A. Yes, that’s what she has.
Q. Which was objective clinical findings that represent pain?
A. That is correct.
Q. And so I take it she continued to work at the hospital during this time?
A. She did, she was a very faithful, noble person, she worked with pain. I don’t know whenever she quit work.
Q. When she was working she was ’ working in pain?
A. Yes, I would say yes. She would have to have been taking the medicines she’s on.
Q. I know pain can only be determined in the mind of the one suffering it, would you say she was working in substantial pain?
A. I think that if you base it like mild, moderate or severe, it would be moderate.
Q. If she did have a ruptured disc or nerve root compression, whatever was causing it, that can cause moderate to substantial pain? .
A. Oh, yes.
Q. Is it a type of pain that could affect her working ability?
A. Yes, sir.” (Emphasis added.)

Dr. Herbert Plauche, an orthopedic surgeon, examined Mrs. Crockett on December 18, 1979. His examination elicited positive objective clinical findings which corroborated the findings of Dr. Allen, of muscle spasms in the back. Dr. Plauche found a moderate degree of muscle spasm in the lumbarsacral area and restriction of motion in all planes due to active muscle splinting. There were complaints of pain in the low back during the straight leg-raising test. Dr. Plauche further testified that he could not definitely rule out the possibility of a lumbar disc at L-4, L-5 level without a myleogram.

After considering the plaintiff’s testimony and that of the medical experts, the trial judge concluded that the injury was job-related, and “that plaintiff would be unable to engage in any type of gainful employment without experiencing substantial pain and therefore, plaintiff is totally and permanently disabled.” See Whitaker v. Church’s Fried Chicken, Inc., 387 So.2d 1093 (La.1980); Schriner v. Riverside Companies, Inc., 378 So.2d 1035 (La.App. 2 Cir. 1979), writ denied, 380 So.2d 1368 (La.1980).

Mrs. Crockett was examined by Susan Smith, an occupational therapist, on behalf of plaintiff’s counsel. Her opinion regarding Mrs. Crockett was that Mrs. Crockett would not be able to perform any job in the competitive job market. The occupational therapist stated:

“Q. Do you feel that based upon her limited functional capacity, if she would be able to meet the functional demands in any other job in the competitive labor market?
A. She is in her late — early-—late career years, early fifties. She has not done any type of work except for service work and unskilled work. So does not have, except for her respiratory therapy technician work a great number of transferable skills at this time. She cannot sit nor stand in' a functional position to work and cannot engage in physically active work. So she would not be able to meet the physical demands of any job in the competitive labor market.
Q. This is due to her significantly limited functional capacities?
A. Yes, and her endurance.”

Jennifer Staley, a rehabilitation counsel- or, examined Mrs. Crockett on behalf of the defendants. She testified in her deposition:

“Q. Now, did you observe the duties of a respiratory technician?
A. Yes, I have it.
Q. What was your evaluation as to Ms. Crockett’s ability to perform these particular tests?
A. Of the technician, the respiratory technician?
Q. Yes.
A. Well, I don’t believe she would be able to return to that. In observing that job, a lot of times the technician is not doing anything strenuous, but then in a crisis situation, in an emergency they may have to, for instance, run to get some equipment. They may have to stoop or lift a patient. So, I just don’t think that would be the best thing for her.”

Under the “odd lot” test as announced in Oster v. Wetzel Printing, Inc., 390 So.2d 1318 (La.1980), an injured employee is entitled to total, permanent disability compensation if he is not able to perform any services other than those which are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist, so that he falls into the “odd lot” category, unless the employer or insurer establishes that reasonably suitable work is regularly available to the employee. See also LSA-R.S. 23:1221(2); Lattin v. HICA Corporation, 395 So.2d 690 (La.1981). We find Dusang v. Henry C. Beck Builders, Inc., 389 So.2d 367 (La.1980), relied upon by appellants, factually distinguishable in that in Dusang a skilled worker was still able to perform a skilled craft, while in the present case there is no evidence that Mrs. Crockett could do any work other than work categorized as of the “odd lot” variety, if indeed she could do that type of work. In addition, the “odd lot” category had not yet been clearly defined by our Supreme Court at the time of the Dusang decision, as was later done in the Oster case. See 389 So.2d at 371.

The record does not reveal that the defendants have shown that some kind of reasonably suitable work is regularly available to the plaintiff. The most that can be said for the defendants’ expert testimony in this area is that it suggests that the plaintiff could perform light, sedentary jobs, such as a sitting service, which is obviously of the “odd lot” variety. Applying the Oster rule to the present case, we conclude that Mrs. Crockett falls in the “odd lot” category. See Lemoine v. Marksville Industries, Inc., 391 So.2d 528 (La.App. 3 Cir. 1980), writ denied, 396 So.2d 1325 (La.1981).

The “odd lot” doctrine, as expressed in Oster, entitles an employee to compensation for total disability when, as a result of a job-related injury, he is disabled from performing any suitable work for which a reasonably dependable market exists. See Calogero v. City of New Orleans, 397 So.2d 1252 (La.1980).

Appellants also contend that, in the event the plaintiff is entitled to benefits, they should not begin until she left her employment (or was discharged therefrom) on September 5, 1979. We disagree. Hartsell v. Hooker Chemical Corporation, 288 So.2d 417 (La.App. 4 Cir. 1973), writ denied, 292 So.2d 243 (La.1974). Since Mrs. Crockett was required to work in pain, the commencement date for her benefits should properly be November 20, 1978, because that was the date of the onset of her pain and, thus, her disability.

Next, appellants contend that the trial court was in error in awarding legal interest on each weekly payment from the due date of each until paid rather than legal interest from date of judicial demand which, they allege, is the proper method of interest computation. There is no merit to this contention. In workmen’s compensation proceedings, interest on weekly benefits are properly awarded from the date due. Rachal v. Highlands Insurance Company, 355 So.2d 1355 (La.App. 3 Cir. 1978).

Finally, appellants argue that the trial court erred in awarding the plaintiff payment of past medical expenses. Although the trial court could have been more definite, we find no error. The defendants are responsible for the payment of medical expenses incurred in connection with the job-related injury. There was no prejudice to defendants by the wording of the judgment in the instant case relating to such payment. LSA-R.S. 23:1203; Andersen v. Eagle Asbestos Company, 355 So.2d 1082 (La.App. 4 Cir. 1978); see also Wilson v. Ebasco Services, Inc., 393 So.2d 1248 (La.1981).

For the reasons assigned, we affirm the judgment appealed at the appellants’ costs.

AFFIRMED.

      . The insurer is called “St. Paul Insurance Company” in the petition and in the judgment; however, its pleadings show that its proper name is “St. Paul Fire & Marine Insurance Company.”

      . The trial court observed that the only evidence of the job-related injury was the testimony of the plaintiff. The court below accepted Mrs. Crockett’s testimony as establishing this element since the testimony was not contradicted and there were no circumstances casting suspicion on the reliability of the plaintiffs testimony. See West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979).

      . Although Dr. Roger Blitz, the defendants’ expert, concluded that there were no objective indications of an orthopedic pathology, the trial court was justified in giving greater weight to the testimony and opinion of Dr. Merlin Allen. Generally, the testimony of the claimant’s treating physician is afforded greater weight than that of an examining physician or specialist who examines the claimant merely for purposes of evaluation for a particular litigation. Gowers v. Gour, 350 So.2d 935 (La.App. 2 Cir. 1977), writ denied, 352 So.2d 1046 (La.1977).

      . In Lattin v. HICA Corporation, 395 So.2d 690, at 693 (La.1981), the Supreme Court stated: “Under the odd lot doctrine, a claimant is considered totally disabled if his injury makes him an odd lot in the labor market, that is, one capable of obtaining employment periodically but one whose services are so limited in quality, dependability or quantity that a reasonably stable market for his services does not exist. An odd lot claimant need not be absolutely helpless to qualify for total disability. If the claimant can prove that his physical condition, mental capacity, education, training age or other factors combine to place him at a substantial disadvantage in the competitive labor market, he has made out a prima facie case for classification in the odd lot category. This satisfies his burden of proving that he should be awarded benefits for permanent and total disability. The employer or insurer must then show that some form of gainful occupation is regularly and continuously available to the employee within reasonable proximity to the employee’s residence.
      “The odd lot doctrine is also applicable to substantial pain cases because a worker who, due to his injury, can function only with substantial pain or with the help of fellow workers may not be considered a particularly desirable employee. Thus, if a claimant’s pain appreciably limits the types of work available to him and greatly diminishes his ability to compete in the labor market, he can be treated as an odd lot worker and be awarded total disability, unless there is proof that jobs are realistically available to him. On the other hand, if a worker cannot perform the same work that he did before his injury because it causes him substantial pain, but he has the mental capacity to perform other jobs which are available, he should be considered partially disabled.”