author: PONDER, Judge.

text:
    Elroy BADON, Jr. v. Herbert KOPPENOL, Ophelia Koppenol, Nolan Motichek and Lillian Motichek.
    No. 82 CW 0711.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.

      Byard Edwards, Jr., Ponchatoula, for plaintiff.
    Bernard S. Smith, Covington, for defendants.
    Before PONDER, SAVOIE and ELLIS, JJ.
   PONDER, Judge.

On September 21, 1982, we issued an alternative writ ordering that the trial court grant a motion for summary judgment dismissing plaintiffs suit for defamation or show cause on or before October 5, 1982, why the writ should not be made peremptory. The trial court was ordered to notify this court and the Clerk of Court for St. Tammany Parish in writing of its election on or before that date. The Clerk of Court was ordered to transmit the record to us five days thereafter if the court elected the alternative.

To date we have not received that notification. Instead, on November 8, 1982, the Clerk of Court of St. Tammany Parish filed an incomplete record with us. We have not been favored with briefs by the court or by respondent. We assume, however, that the court has elected to require us to rule on the merits. The Clerk of Court on our request has supplemented the record.

We make the writ peremptory.

Plaintiff sued for damages alleging that Herbert Koppenol, Ophelia Koppenol, Nolan Motichek and Lillian Motichek caused complaints of incompetence and willful failure to perform his duties as a police officer of the Town of Madisonville. Defendants filed a motion for summary judgment supported by an affidavit that defendant, Herbert Koppenol, but not the others, had filed a complaint with the Mayor and Town Council, that a private hearing was held by the Mayor and Council and that Koppenol and the other defendants sincerely believe that they had sufficient reason and probable cause to complain.

The plaintiff did not file any counter affidavits. Without any reasons incorporated into the record, the court denied the motion for summary judgment.

It is difficult to imagine any case in which the elements of falsity and malice would be more patently absent. Plaintiff’s petition did allege that defendants’ testimony was false and malicious. The bases for this legal conclusion were not alleged either in the petition or otherwise.

Accordingly, the writ is made peremptory and it is now ordered that the Honorable John W. Greene vacate and recall his ruling of July 19, 1982, denying relators’ motion for summary judgment and grant relators’ motion for summary judgment of dismissal of plaintiff’s suit against relators.

WRIT MADE PEREMPTORY.


source: Caselaw Access Project

license: Public Domain

text:
    William BUTLER, Plaintiff, v. Herbert KOPPENOL, Ophelia Koppenol, Nolan Motichek, Lillian Motichek, Defendants.
    No. 82 CW 0717.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.

      Byard Edwards, Jr., Pontchatula, for plaintiff.
    Bernard S. Smith, Covington, for defendants.
    Before PONDER, SAVOIE and ELLIS, JJ.
   PONDER, Judge.

On September 21, 1982, we issued a writ ordering the trial court either to vacate and recall its ruling of July 19, 1982, denying relators’ motion for summary judgment and to grant judgment in favor of relators, or, in the alternative, the judge or the respondent to show cause by October 5,1982, why the writ should not be made peremptory. Despite an order to notify us and the Clerk of Court for St. Tammany Parish, we have received no notification. Despite an order to the Clerk of Court for St. Tammany Parish to send the record to us on or before the 5th day after notification by October 5, 1982, the Clerk filed the record with us on November 8, 1982. We assume therefore that the trial court elected the alternative and so notified the Clerk although such a notice was supposed to be in writing and should have been entered in the record.

Plaintiff filed suit for damages alleging that defendants caused plaintiff’s vehicle to leave the road and thereafter filed criminal charges against plaintiff. Defendants first filed some exceptions and then a motion for summary judgment of dismissal on the basis that Herbert Koppenol alone had filed the affidavit to institute charges against the plaintiff and that he had reasonable cause to believe that William Butler had breached the criminal laws.

The factual basis for this, both the original facts and the fact that Butler had voluntarily paid a judgment obtained against him on these facts, were related in an affidavit supporting the motion for summary judgment. Plaintiff did not file any affidavits or depositions in opposition to the motion but evidently relied on the allegations of his petition. The trial court denied the motion without reasons in the record.

We find manifest error. At least two of the elements of malicious prosecution are missing. It is difficult to imagine a case in which there was more probable cause or less apparent malice. See Johnson v. Pearce, 313 So.2d 812 (La.1975).

For these reasons, we make the writ peremptory and accordingly order that the Honorable John W. Greene recall and vacate his ruling of July 19, 1982, denying relators’ motion for summary judgment and grant judgment in favor of relators, Herbert Koppenol, Ophelia Koppenol, Nolan Motichek, and Lillian Motichek, dismissing plaintiff’s suit at his costs.

WRIT MADE PEREMPTORY.


text:
    STATE of Louisiana v. Rhebb RYBISKI.
    No. 82 KW 0812.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.
    Dixie C. Brown, Asst. Dist. Atty., Houma, for State of La.
    Keith M. Whipple, Houma, for defendant Rhebb Rybiski.
    Before PONDER, SAVOIE and ELLIS, JJ.
   PONDER, Judge.

On October 5,1982, we granted a writ of mandamus ordering the judge of the Thirty-Second Judicial District Court to transmit by October 15, 1982, the record in this case to us to the end that the validity of the questioned proceedings could be ascertained. We ordered the State of Louisiana, Harry Neill, Bobby Martin, Graham Neill, James Soudelier and Rhebb Rybiski, to show cause why the requested relief should not be granted. We further ordered that all proceedings against the relator be stayed and suspended, including the execution of the contempt sentence imposed upon him on October 5, 1982. The record was filed in our court on December 1, 1982. There have been no other filings in this case by anyone. We note from the record that despite our stay of our proceedings, the State of Louisiana through the Assistant District Attorney called for arraignment of the relator and that the Judge, over the objection of relator’s counsel, instructed counsel to enter a plea. The case was then set for trial on February 8, 1982 (sic).

Evidently, multiple charges against three of the defendants, a charge of alleged possession of a wild quadruped (deer) against another, and a charge of simple battery against relator, Rhebb Rybiski, an enforcement agent of the Department of Wildlife and Fisheries, arose from one set of circumstances. According to the minutes of court, a preliminary examination on all the charges, sixteen against all defendants including Rybiski, was set for and called on October 5, 1982. Rhebb Rybiski was called by the State as a witness. After giving his name and employment, he refused to answer the question:

“On June the 7th, 1982, were you in the company of another wildlife agent, Mr. Plaisance, on Highway 24?”

The refusal was based on the ground that any answer might tend to incriminate. Without further ado, the court announced:

“If you don’t answer this question I am going to put you in jail. I order you to answer this particular question.”

The relator advised the court he had a letter. Without inquiring as to what kind of letter, the court said:

“I don’t care what you’ve got. I am telling you to answer the question. It asked for you to be at a particular location.”

The judge refused to stay sentence for application for writs. We granted the application.

We are not advised of any explanation, and the record does not show any reason why there was such precipitancy in the adjudication of contempt. No opportunity was given the witness to explain why he thought the answer could incriminate. No explanation is given either in the record or otherwise why Rybiski was called as a witness by the State when he was himself a defendant present in court for a preliminary examination. The record does not disclose any reason why the State of Louisiana or the Court has found the matter so pressing that they have violated the spirit if not the letter of our stay order.

At any rate, the aura of the whole matter is such that we believe relator’s constitutional rights have been violated. We therefore order Cleveland J. Marcel, Sr., Judge Ad Hoc of the Thirty-Second Judicial District Court to recall and vacate his judgment of contempt and sentence pronounced on October 5, 1982. We further order the State of Louisiana through Dixie Brown, Assistant District Attorney, and the Honorable Cleveland J. Marcel, Sr., Judge Ad Hoc, to recall and vacate the arraignment and setting for trial of Case No. 128,228, State of Louisiana v. Rhebb Rybiski, and that they advise this court by formal notice within ten days that this has been done.

ORDER MADE PEREMPTORY.


text:
    Reginald F. ROBERTS, Jr. v. ST. JOSEPH ACADEMY SCHOOL BOARD.
    No. 82 CW 0837.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.
    Reginald F. Roberts, Jr., in pro. per.
    Peter T. Dazzio, Baton Rouge, for defendant.
    Before PONDER, SAVOIE and ELLIS, JJ.
   PONDER, Judge.

The timeliness of the appeal from City Court is the sole issue.

Trial on the merits was had in Baton Rouge City Court on April 13, 1982. Written reasons for judgment were rendered on June 2, 1982, and mailed to the plaintiff. Plaintiff filed a motion for a new trial on June 7, 1982. Judgment was signed June 14, 1982. The record contains a certificate that notice was mailed to the plaintiff on the same day. A hearing was held on the motion for a new trial on July 15,1982, and judgment denying the motion was rendered in the presence of plaintiff on the same day. Plaintiffs motion for appeal filed on July 29, 1982, was denied on August 4, 1982. Plaintiff’s second motion for appeal was filed on August 13, 1982 and denied on August 18, 1982.

Plaintiff applied to this court for supervisory writs. An alternative writ was granted ordering the trial court to grant plaintiff’s motion for appeal, or, in the alternative, the judge or the defendant to show cause why the writ should not be made peremptory. The court has elected the alternative.-

Under La.C.C.P. Art. 4917(A) and (B), plaintiff is entitled to personal or domiciliary service of the judgment because the case was taken under advisement and he was not represented by counsel. The other relevant article for notice would be La.C. C.P. Art. 1913, which only requires notice by mail. La.C.C.P. Art. 4901.

Plaintiff’s original petition requested the issuance of a temporary restraining order and rule nisi to show cause why a permanent injunction should not be issued, but no monetary damages. We find that plaintiff’s claim must fall within the cases involving damages of $3000.00 or less and he has never received the personal or domiciliary service provided by La.C.C.P. Art. 4917(B).

However, we must consider whether his motion for a new trial and the resulting judgment on that motion waived his right to notice of the judgment of trial on the merits.

La.C.C.P. Art. 5003(B) provides:

“Where an application for new trial is timely filed, however, the delay for appeal commences on the day after the motion is denied, or from service of notice of the order denying a new trial, when such notice is necessary.”

Plaintiffs motion for a new trial was filed before the final judgment was signed. When an application for a new trial is filed prematurely, it has no effect. Deville v. Babineaux, 396 So.2d 978 (La.App. 3rd Cir.1981). It therefore would not effect a waiver of service. Plaintiffs motions for appeal were timely.

For these reasons, we make the writ peremptory and accordingly order that the Honorable Byron Stringer recall and vacate his ruling of August 4,1982, denying plaintiffs motion for appeal and grant the motion in favor of plaintiff.

WRIT MADE PEREMPTORY.

      . Art. 4917. Notice of judgment
      A. Notice of judgment must be given when:
      (1) The defendant was not served personally and made no appearance in the proceeding;
      (2) The case has been taken under advisement; or
      (3) The case is not taken under advisement but the court does not sign a judgment at the time, and a party makes a request of record for notice.
      B. Where the party who is entitled to notice of judgment does not have counsel of record, the notice shall be served by a proper officer upon the party, either personally or at his domicile.

      . La.C.C.P. Art. 4917.

      . La.C.C.P. Art. 1913. Notice of judgment
      Notice of the signing of a default judgment against a defendant on whom citation was not served personally, and who filed no exceptions or answer, shall be served on the defendant by the sheriff, by either personal or domiciliary service.
      Except as otherwise provided by Article 3307, when a case has been taken under advisement by the court notice of the signing of a final judgment therein shall be mailed by the clerk of court of the parish where the case was tried to the counsel of record for each party, and to each party not represented by counsel.
      If, at the conclusion of a trial a case is not taken under advisement but the court does not sign a judgment at the time, a party may make a request of record for notice of the date when the judgment was signed; and when such a request is made, the clerk shall mail such notice to the party requesting it or to his counsel of record.
      The clerk shall file a certificate in the record showing the date on which, and the counsel and parties to whom, notice of the signing of the judgment was mailed.
      Except as otherwise provided in the first three paragraphs of this article, notice of the signing of a final judgment is not required.

      . La.C.C.P. Art. 4901. Cases involving more than three thousand dollars
      Except as provided for the appellate delay in appeals by Article 5003, the procedure in parish and city courts in cases where the amount in dispute exceeds three thousand dollars shall be the same as that provided by law for a civil case in the district court of the parish in which the parish or city court is situated.


author: COLE, Judge.

text:
    Bruce Allan PARKER v. Georgia Cole PARKER.
    No. 82 CM 0876.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.
    Richard E. Burton, Baton Rouge, for plaintiff-appellant Bruce A. Parker.
    Joseph B. Olinde, Jr., Baton Rouge, for defendant-appellant Georgia Cole Parker.
    Before LOTTINGER, COLE and CARTER, JJ.
   COLE, Judge.

The issue in this motion to dismiss is whether a judgment maintaining an exception to venue is appealable. We conclude under the facts of this case, the judgment is appealable.

Bruce Allan Parker and Georgia Cole Parker were separated by a judgment rendered in Bienville Parish in November 1980. Custody of the two minor children was awarded to Mrs. Parker. In October of 1981 the parties were divorced by a judgment rendered by The Family Court for East Baton Rouge Parish. (Mr. Parker had moved to Baton Rouge.) Child custody was again awarded to Mrs. Parker. In July of 1982 Mr. Parker filed a rule in East Baton Rouge Parish to have the child custody changed. In response, Mrs. Parker filed the declinatory exception raising the objection of improper venue which the court sustained. Mr. Parker has appealed the court’s ruling on the exception and Mrs. Parker has filed a motion to dismiss the appeal.

Appellee, Mrs. Parker, argues the ruling on the venue issue is not appealable because it is an interlocutory judgment, as opposed to a final judgment. Unless appellant shows a likelihood of irreparable harm, he has no right to appeal an interlocutory judgment. Code of Civ.P. art. 2083. Because we conclude the judgment has the effect of a final judgment, we need not address the issue of irreparable harm.

The posture of this case is somewhat peculiar. Although appellee, in her declinato-ry exception, prayed the exception be maintained and the motion (rule) be dismissed, the judgment simply maintained the exception without actually dismissing the rule or transferring the case to a court of proper venue. Nonetheless, it is clear if the exception was maintained, the court concluded the venue was improper, and the effect was to dismiss the child custody rule. In that sense, the judgment is final, i.e., determinative as to appellant’s right to have the custody determined by the East Baton Rouge Parish Family Court. His only option (if we did not allow him to appeal the judgment) would be to bring suit in Bien-ville Parish. However, the issue of his right to litigate the matter in East Baton Rouge would not be determined in that suit.

A judgment which dismisses a suit without prejudice is a final appealable judgment. This is true even when the judgment is one granting an exception of improper venue. Thibodeaux v. Hood Enterprises, Inc., 405 So.2d 1249 (La.App. 1st Cir.1981). In the present case the effect of the judgment was to dismiss the suit. A dismissal is a final, appealable judgment. Therefore, we deny the motion to dismiss the appeal.

MOTION DENIED.


author: CARTER, Judge.

text:
    SUCCESSION OF Virgil E. STAFFORD.
    No. 82 CM 0934.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.
    Nita R. Gorrell, Hammond, for appellee Virgil Stafford.
    Robert T. Garrity, Jr., Harahan, for appellant Janice Stafford Burns.
    Before LOTTINGER, COLE and CARTER, JJ.
   CARTER, Judge.

Appellee, Succession of Virgil Stafford, moves to dismiss the unlodged appeal of appellant, Janice Stafford Burns, for failure to pay the estimated court costs and fees timely.

The return date of the appeal was fixed for August 28, 1982. Pursuant to La.Code Civ.P. Art. 2125, the trial court granted an extension of the return date to September 28,1982, upon the motion of the clerk of the trial court. No further extension has been granted. Apparently, the estimated costs and filing fees have not been paid.

The proper forum for a resolution of this issue is in the trial court. La.Code Civ.P. Arts. 2088(9) and 2126; Murrhee v. Martin and McDonald’s Corporation, No. 82 CM 0322, (La.App. 1st Cir., June 11, 1982); Marcum v. Inter-Ocean Insurance Company, 402 So.2d 222 (La.App. 1st Cir.1981); Barre v. Barre, 389 So.2d 918 (La.App. 4th Cir.1980).

Therefore, the motion is denied at appel-lee’s costs.

MOTION DENIED.


author: LABORDE, Judge.

text:
    Frances RAY, Plaintiff-Appellant, v. ALEXANDRIA MALL, Through their insurer, ST. PAUL PROPERTY & LIABILITY INSURANCE, Defendant-Appellee.
    No. 82-426.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1982.
    Writ Granted Feb. 23, 1983.
    P. Spencer Torry, Alexandria, for plaintiff-appellant.
    Provosty, Sadler & deLaunay, Frederick Alexius, Alexandria, for defendant-appel-lee.
    Before DOMENGEAUX, FORET and LABORDE, JJ.
   LABORDE, Judge.

Plaintiff, Frances Ray, appeals the decision of the lower court sustaining defendant’s, Alexandria Mall Company, peremptory exception of prescription. We affirm. The sole issue presented on appeal is whether the lower court was correct in sustaining the exception and thereby dismissing Ray’s suit.

Frances Ray filed suit on February 4, 1982, alleging that on February 18, 1981, she slipped and fell inside the Alexandria Mall. Ray named the Alexandria Mall, a non-existent legal entity, as the sole defendant describing it as a “corporation organized under the laws of Louisiana”. On February 8, 1982, the general manager of the mall was served with the petition.

On February 24, 1982, a declinatory exception of insufficiency of service of process was filed by the Alexandria Mall Company. This exception alleged that the mall was owned by a partnership which had not been properly served pursuant to the Louisiana Code of Civil Procedure. This exception was sustained by the lower court.

On March 11, 1982, Ray amended her petition in order to name the Alexandria Mall Company as the proper defendant. On March 18, 1982, Alexandria Mall Company filed a peremptory exception of prescription based on the fact that it was not named as a defendant nor served within one year of the occurrence of the cause of action. The trial court sustained this exception finding that Ray’s cause of action had prescribed. Ray appeals this adverse ruling.

Ray contends that her first supplemental and amending petition filed on March 11, 1982, which named the proper defendant, should relate back to the filing of the original petition. If this is the case then prescription as to the Alexandria Mall Company is interrupted and the ruling of the lower court is incorrect.

We reject this contention as did the lower court. Ray’s original petition named a defendant that did not legally exist. The supplemental and amending petition which named the Alexandria Mall Company as the proper defendant, was not filed until after the prescriptive date. Under Louisiana law, an amending petition to correct a misnomer does not relate back to the filing of the original petition. Majesty v. Comet-Mercury-Ford Co. of Lorain, Mich., 296 So.2d 271 (La.1974); Hill v. Provozano, 377 So.2d 378 (La.App. 4th Cir.1979). Therefore, since Ray’s amending petition does not relate back to the filing of her original petition, prescription was not interrupted.

Ray’s second contention is that service of process on the general manager of the mall interrupted prescription as to the Alexandria Mall Company.

Where service of process is the legal act which interrupts the running of prescription, the proper person as designated by law must be served before service of process will interrupt the running of prescription. Conner v. Continental Southern Lines, Incorporated, 294 So.2d 485 (La.1974). The record shows that the general manager of the mall is not the person qualified to accept service for the partnership, Alexandria Mall Company. Service on a partnership is made by personal service on a partner. LSA-C.C.P. Article 1263. Since the proper person as designated by law was not timely served, prescription was not interrupted.

Therefore, since a suit was not timely filed against the Alexandria Mall Company and since proper service was not made upon the Alexandria Mall Company within the prescriptive period, Ray’s claim has prescribed.

For the foregoing reasons, the judgment of the lower court is affirmed and all costs are assessed to plaintiff, Frances Ray.

AFFIRMED.


author: CULPEPPER, Judge.

text:
    Joseph ALEXANDER, et al., Plaintiffs & Appellants, v. AMERICAN FOOD MANAGEMENT, INC., Defendant & Appellee.
    No. 82-430.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1982.

      Floyd J. Falcon, Jr., and Daniel L. Avant, Baton Rouge, for plaintiffs & appellants.
    Roy & Hattan, L. Lane Roy, Lafayette, for defendant & appellee.
    Before CULPEPPER, DOUCET and YELVERTON, JJ.
   CULPEPPER, Judge.

This is a suit by 62 employees of defendant, American Food Management, Inc., for past due wages consisting of paid vacation and other fringe benefits. Plaintiffs seek statutory penalties and attorney’s fees under LSA-R.S. 23:631 and 23:632. The trial court held that the employees were entitled to their vacation time and fringe benefits but that they were not entitled to statutory penalties and attorney’s fees. We affirm.

American Food Management, Inc. was under contract with the University of Southwestern Louisiana to provide food services on its campus in Lafayette, Louisiana from August, 1980 to August, 1981. In carrying out its contract with the university, American Food was responsible for the hiring and supervision of all necessary employees. Pursuant to this responsibility, American Food hired all 62 of the plaintiffs.

It is undisputed that all of the plaintiffs were hired for one semester’s work at a time. Each of the plaintiff employees was paid at an hourly rate. It is not clear from the record whether they were paid weekly or monthly. It is also undisputed that each of the employees was entitled to certain vacation time. If in fact the individual chose not to take vacation time, he or she was then entitled to be paid for unused vacation time.

The testimony both by representatives of American Food and the union which represented the 62 employees reveals that plaintiffs were in fact paid their vacation benefits at the termination of the fall semester. This dispute arises out of the payments of benefits for the spring semester. Despite demand by the union representative for the workers that payments be made with the last paycheck for the spring semester, the defendant company did not comply.

The plaintiffs completed work for the spring semester on May 13, 1981. Letters of demand were sent to the defendant company or its attorney on June 3 and June 30, 1981. Vacation benefit payments were mailed to the office in the university in which the individuals normally picked up their pay at different dates. For those employees who did not work the summer semester, their vacation benefit checks were mailed by the defendant on June 12, 1981. If the employees did work the summer semester, then their vacation checks were mailed July 10 and August 10. Although it is not clear from the record, it can be reasonably inferred that the payment mailed on July 10 was for the vacation benefits due for the spring semester and that on August 10 for that due for the summer semester. The record also reveals that 30 of the plaintiffs did work the summer semester. Suit in this matter was filed June 17, 1980.

The sole issue is whether these employees fall within the purview of LSA-R.S. 23:631 and 23:632 which provide in pertinent part as follows:

“§ 631. Discharge or resignation of employees; payment within three days after termination of employment
A. Upon the discharge or resignation of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, not later than three days following the date of discharge or resignation. Said payment shall be made at the place and in the manner which has been customary during the employment, except that payment may be made via United States mail to the laborer or other employee, provided postage has been prepaid and the envelope properly addressed with the employee’s or laborer’s current address as shown in the employer’s records.”
“§ 632. Liability of employer for failure to pay; attorneys’ fees
Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety days wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. Reasonable attorney fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after three days shall have elapsed from time of making the first demand following discharge or resignation. Amended by Acts 1964, No. 422, § 1; Acts 1977, No. 317, § 1.”

There is no dispute that the vacation benefits fall within the term “wages” as envisioned in the statute. The decisive issue is whether the plaintiffs were employed by the hour, day, week or month, for an indefinite time, and were discharged or resigned as required by the statute. The trial judge held they were not. We agree.

The Third Circuit has interpreted these statutes in the case of Benham v. Guilbeaux, 356 So.2d 1062 (La.App. 3rd Cir.1978), writ denied 358 So.2d 642, as being inapplicable to those employees who are employed for a specified period of time. Such employees, the case holds, are not employees “hired by the day, week or month” within the meaning of R.S. 23:631. The Benham case was a suit by a band member whose band had been hired by a local bar to play for three weeks at a weekly rate of pay.

This reasoning has been followed in all the other circuits as well. In the case of Dunn v. Bessie F. Hiern School, Inc., 209 So.2d 538 (La.App. 4th Cir.1968), LSA-R.S. 23:631 was held inapplicable to a school teacher who was hired for nine months but who was paid at a monthly rate for 12 months. As in the Benham case, the Fourth Circuit held that such a contract of hire was not employment “by the day, week or month” as contemplated by LSA-R.S. 23:631.

The Second Circuit reached an identical conclusion in Gatti v. Southern Research Company, Inc., 271 So.2d 376 (La.App. 2d Cir.1972). In that case the plaintiff was employed as an investigator for a detective company at the rate of $4 to $4.50 per hour. Although he was paid an hourly rate, the term of employment was the length of each case to which he was assigned. Payment was made to him on a regular basis by the 10th of the following month. The court determined that because his contract was for a specified period that he was not an employee within the meaning of LSA-R.S. 23:631.

The First Circuit dealt with the same issue in the case of Gros v. LeBlanc, 304 So.2d 49 (La.App. 1st Cir.1974). That case involved an oil field worker who was hired to fill in while another employee was ill. The employee who was ill was employed on a job by job basis and was paid by the hour until the job was completed at some uncertain time. The court held that this type of piece-work basis did not constitute employment within the meaning of LSA-R.S. 23:631, and therefore the plaintiff was not entitled to penalties and attorney’s fees in his suit to recover past due wages. The court cites the Gatti and Dunn cases, supra, as authority.

Thus, all circuits have uniformly held that where the contract of employment is for a specified period of time and not indefinitely, the employee does not fall within the purview of LSA-R.S. 23:631 and is therefore not entitled to penalties and attorney’s fees in a suit to recover past due wages.

The Supreme Court discusses the Gatti, Dunn and Gros cases in Mason v. Norton, 360 So.2d 178 (La.1978). The Mason case involved the issue of whether an employee who was paid by the hour fell within the statute. The Supreme Court held that such an employee did, even though the statute stated “day, week or month,” at the time. However, the court distinguishes the Gatti, Dunn and Gros cases and states that the results obtained in these cases are not erroneous even though the Court of Appeal had relied erroneously upon these cases as authority for its holding that the plaintiff in Mason was not entitled to penalties and attorney’s fees.

In the case at bar, the testimony was undisputed that the food service workers were employed on a semester by semester basis. They got off at Christmas vacations and all semester breaks and were not paid during these periods of time. Additionally, they were given the opportunity to sign up for the summer semester if they so desired. A representative of American Food Manager, Inc. stated that the employees could also be called out during the summer on a seniority basis if in fact additional help was needed. We find as a matter of fact that the employees were hired for a specified time on a semester by semester basis. Under the above cited jurisprudence, we hold as a matter of law that the 62 plaintiffs in this case were not employees within the meaning of LSA-R.S. 23:631 and are therefore not entitled to penalties and attorney’s fees under 23:632.

For the reasons assigned, the judgment of the trial court is affirmed. All costs of this appeal are assessed against the plaintiffs-appellants.

AFFIRMED.


author: DOUCET, Judge.

text:
    Marie Voorhies LEVY and Mrs. Florence Billeaud Voorhies, Plaintiffs-Appellants, v. Manning F. BILLEAUD, Liquidator of Comeaux Planting Co., Inc. and Broussard Plantation Inc. and Bayou Tortue Livestock Inc, Land Development-1980, d/b/a Comeaux Realty and Bayou Tortue Livestock Inc-Land Dev-1979, dba Broussard Realty, Defendants-Appellees.
    No. 82-432.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1982.

      McCollister, McCleary & Fazio, Rick J. Norman, Baton Rouge, for plaintiffs-appellants.
    David S. Foster, Lafayette, for defendants-appellees.
    Before CULPEPPER, DOUCET and YELVERTON, JJ.
   DOUCET, Judge.

Plaintiffs, Mrs. Marie Voorhies Levy and Mrs. Florence Billeaud Voorhies, minority shareholders of Comeaux Planting Co., Inc., filed a petition for writ of injunction against Manning F. Billeaud, defendant-liquidator of the corporation, seeking to enjoin him from transferring the corporate assets to a partnership in commendam pursuant to the plan of liquidation adopted by the majority of shareholders. After trial on the merits, the district judge held that the ninety-day peremptive period of LSA-R.S. 12:121, and R.S. 12:131 relative to dissenting shareholders’ rights, precluded plaintiffs’ actions. Plaintiffs appeal. For reasons hereinafter assigned, we affirm.

This suit arises out of the activities of several corporate entities: Comeaux Planting Co., Inc.; Bayou Tortue Livestock, Inc. & Land Development-1980 (d/b/a Comeaux Realty), hereinafter referred to as “Co-meaux”; and Broussard Plantation, Inc., and Bayou Tortue Livestock, Inc. Land Development-1979 (d/b/a Broussard Realty), hereinafter referred to as “Broussard”. Historically, Comeaux and Broussard were two of five privately-held family corporations engaged in the sugar cane growing and grinding business. Between 1976 and 1979 the companies suffered substantial financial losses due to the depressed price of sugar. In April of 1979, a stockholders’ meeting was held which resulted in a change of directorship and a mandate to evaluate the problems plaguing the corporations and solutions thereto. After evaluation, it was concluded that Comeaux and Broussard should terminate their sugar cane producing operations and, instead, develop their real estate holdings. The Board was advised by tax attorneys and certified public accountants that the best way to achieve this goal would be to transfer the real estate holdings to a partnership in com-mendam, then liquidate the corporations. On November 17,1979 a special meeting of the stockholders was called, pursuant to notice, to vote on the aforementioned proposal. At the meeting the shareholders voted by a 95% affirmative vote to approve the Plan of Liquidation whereby Comeaux and Broussard would transfer their assets to the partnership in commendam, then liquidate the corporation and distribute interests in the partnership to the shareholders. Subsequently, problems arose with the liquidation insofar as Broussard was concerned, therefore, pursuant to authority granted in the Plan of Liquidation the Board of Directors terminated the liquidation of said corporation. The liquidation of Comeaux was unaffected by the action. A special meeting of Comeaux shareholders was held on January 26, 1980, whereat the Plan of Liquidation, adopted prior thereto, was ratified. An Act of Exchange between Comeaux and Comeaux Realty was thereafter confected, dated January 30, 1980, whereby Comeaux transferred all its assets to Comeaux Realty.

Plaintiffs filed a Petition for a Writ of Mandamus seeking, inter alia, to enjoin Manning F. Billeaud, liquidator of defendant corporations, from implementing the Plan of Liquidation and have the assets distributed otherwise. Defendants filed an Exception of Unauthorized Use of Summary Procedure. The exception was sustained and suit dismissed June 16, 1980 by decree reserving “to the plaintiffs their right to bring such other actions as are provided by law in and under the appropriate proceedings therefor.” This court affirmed that ruling.

In August 1980, plaintiffs filed the present Petition for a Writ of Injunction seeking to require the liquidator to distribute the corporate assets to plaintiffs in the form of cash or securities. Defendants filed peremptory exceptions of prescription, based upon the 90-day peremptive period for challenging a voluntary transfer of corporate assets contained in LSA-R.S. 12:121 F, and no cause and/or right of action founded upon R.S. 12:121 and R.S. 12:131 relative to the rights of dissenting shareholders. The trial court overruled the exception of prescription, but sustained the exception of no cause and/or right of action. From that judgment, plaintiffs have perfected the present devolutive appeal.

The issues presented on appeal are: (1) whether petitioners’ cause of action is precluded by the 90-day peremptive period contained in LSA-R.S. 12:121 F; (2) whether the Plan of Liquidation was proper; (3) whether abandonment of the Broussard Plan of Liquidation was proper; and (4) whether the plaintiffs possess the right to dissent to the corporate action taken.

With respect to the issue of whether plaintiffs’ action is precluded by lapse of time, appellants contend that the three-year prescriptive period of R.S. 12:147 D is applicable to a shareholder’s attack on the transfer of corporate assets by a liquidator. We disagree. Although R.S. 12:147 D pertains to claims of “creditors” and “all persons believed to have valid and subsisting claims” against a corporation in liquidation, we find that it has no application to dissenting shareholders where the basis of complaint is not the liquidation, but rather the form of assets distributed. If the rule were as plaintiffs suggest, all liquidations would require three years before become final visa-vis shareholders.

Instead, we find the peremptive periods of R.S. 12:121 F governing transfer of corporate assets and dissenting shareholders’ rights to be applicable to an exchange prior to actual liquidation.

The Petition for Writ of Mandamus, wherein plaintiffs sought to set aside the conveyance dated January 30, 1980, was filed on April 16, 1980. We find that the corporate action purporting to authorize said conveyance, as contemplated by R.S. 12:121 F, occurred on January 26, 1980 when the shareholders ratified the Comeaux Plan of Liquidation previously adopted.

Although the trial judge in the original suit sustained defendants’ dilatory exception of unauthorized use of summary procedure, C.P. Art. 926, plaintiffs’ suit was, on June 16, 1980, dismissed without prejudice, C.P. Art. 933. The judgment of dismissal did not bar a subsequent suit, indeed, filing of the original suit interrupted all prescriptions affecting the cause of action therein sued upon. C.C. Arts. 3518, 3551; R.S. 12:121 F; R.S. 9:5801. We note that the trial judge did not specify a period, within which the defect could be cured by amendment of the pleadings to proceed via ordina-ria for a mandatory injunction, as required by C.P. Art. 933, nevertheless the judgment dismissing plaintiffs’ demands specifically reserved “to the plaintiffs their right to bring such other actions as are provided by law in and under the appropriate proceedings therefor.” Such other action was timely commenced in August of 1980.

In conclusion hereof, we find R.S. 12:147 D inapplicable and further find that the peremptive period set forth in R.S. 12:121 was interrupted by the filing of the original suit.

Concerning the liquidation plan, appellants contend that the distribution of assets, in the form of an interest in a partnership in commendam, constitutes a sale of a thing belonging to another and causes petitioners to become partners against their will, all in violation of the Civil Code.

We find no merit in the argument that the liquidators’ actions constitute sale of a thing of another. Codal articles such as C.C. Art. 2452, relied upon by appellants, have no application to the exchange of corporate property and corporate liquidation under the circumstances presented. Rather, such actions are controlled by the applicable provisions of the Louisiana Business Corporations Law.

Appellants maintain that the liquidation plan violates R.S. 12:145 inasmuch as it does not distribute the assets of the corporation in cash form to the shareholders and it requires a shareholder to become a partner in commendam in order to realize any interest in the real estate involved. R.S. 12:145 provides in pertinent part that “Except as may otherwise be provided by the shareholders ... the liquidator shall be vested with full authority ... (c) to sell and convey ... on such terms and conditions as to the liquidator shall seem best either for cash or for securities to be distributed to the shareholders.” (emphasis added) R.S. 12:145 F, as amended, provides that the net assets remaining after the payment of debts shall be paid to the shareholders according to their respective rights and preferences. The evidence indicates that the Comeaux corporation provided its own plan of liquidation, as authorized by R.S. 12:145 C, by 95% affirmative vote, to exchange all or substantially all of the assets of the corporation under the authority of R.S. 12:121 A. The liquidator complied with the mandate and there is no indication that his actions constituted a breach of his fiduciary duties. We find the plan of liquidation was proper. Inasmuch as the assets of Co-meaux are to be distributed to the shareholders pursuant to a proper plan of liquidation, provided by the shareholders, we need not address appellee’s contention that an interest in a partnership is commendam falls within the definition of “securities” under R.S. 12:145 C.

Similarly, we find that the abandonment of the Liquidation Plan for Broussard Plantation was proper. At a December 26, 1979 meeting, a majority of the Board concluded that qualification of the liquidation under the provisions of Section 333 of the Internal Revenue Code was in jeopardy and the liquidation plan should therefore be abandoned. Pursuant to R.S. 12:149 B a resolution was passed reserving unto the Board of Directors the right to abandon the plan unless 80% of the total voting stock of Broussard elects to liquidate pursuant to Section 333, or where a majority of the Board believes the qualification pursuant to Section 333 becomes unlikely. In accordance with R.S. 12:149 B and the aforesaid resolution the Plan of Liquidation was abandoned by the Board. The stockholders subsequently ratified the action of the Board at a special meeting held September 13, 1980. Certificates of the action authorizing the termination of the dissolution proceedings were signed in accordance with R.S. 12:149 B and duly filed. Although abandonment of the plan appears to have resulted in part due to plaintiffs’ opposition to the liquidation plan, sufficient evidence appears in the record to conclude that the action was proper pursuant to the aforementioned resolution and R.S. 12:149 B. Furthermore, the abandonment of the plan to transfer corporate assets was proper under the provisions of R.S. 12:121 C.

Defendants’ bifurcated exception of No Right and/or Cause of Action, sustained by the trial court, was premised upon R.S. 12:121 and 131. The former provision pertains to voluntary transfer of corporate assets and provides in relevant part that “Dissenting shareholders who comply with the procedural requirements of the Business Corporation Law of Louisiana will be entitled to receive payment of the fair cash value of their shares if the transaction to be considered is effected upon approval by less than eighty per cent of the corporation’s total voting power.” R.S. 12:121 B. The right of a shareholder to dissent from certain corporate action is granted by R.S. 12:131 and includes the right to dissent from an exchange of corporate assets unless the authorization has been given by 80% or more of the total voting power. In the present case the corporate action was taken prior to liquidation and was approved by approximately 95% of the total voting power. Thus, no right to dissent is available unto plaintiffs. Moreover, this is not an exchange or conveyance of assets in fraud of minority shareholders as contemplated by R.S. 12:121 D. Since the vote to liquidate the subject corporations was by more than 80% of the stockholders, plaintiffs have no right to protest the plan and the peremptory exception was properly sustained.

The judgment appealed from is affirmed at appellants’ cost.

AFFIRMED.

      . § 147. Claims against corporation in liquidation; peremption
      A. A corporation in liquidation may have the benefit of subsections C, D and E of this section by following the procedure set forth in subsection B of this section.
      B. After the proceeding for dissolution has taken effect, notice thereof shall be (1) given by registered or certified mail to all known creditors of, to all persons believed to have valid and subsisting claims (excluding prescribed and time-barred claims) against, and to all persons having unfulfilled contracts with, the corporation, and (2) published once a week for two successive weeks in a newspaper of general circulation in the parish in which the corporation’s registered office is located. Such notice shall call on the addressees to present their claims in writing and in detail, at a specified place and by a specified date, not less than six months after the notice was mailed. The giving and publication of such notice shall not be deemed an acknowledgement of the validity of any claim against the corporation, waiver of any defense or set-off to any such claim, interruption of prescription on, or tolling of any statute of limitation applicable to, any such claim, or revival of any claim which has been barred by any prescription, peremption or statute of limitations.
      C. If any addressee of such notice shall not present his claim or claims as prescribed in the notice, such of his claims as would be enforceable against the corporation except for the provisions of this subsection shall, unless suit has been entered thereon in a court of competent jurisdiction before the final date prescribed in the notice for presentation thereof, be perpetually and peremptorily barred, except to the extent, if any, that the court may allow them against any remaining undistributed assets of the corporation on a finding that the claimant had some valid excuse for his failure so to present his claim.
      D. All claims which would be enforceable by suit against the corporation except for the provisions of this subsection, on which suit has not been filed in a court of competent jurisdiction before the expiration of three years after the proceeding for dissolution takes effect (or, if the notice prescribed in subsection B of this section was not given and publication thereof commenced within one month after the proceeding takes effect, before the expiration of three years after the giving or completion of publication of the notice, whichever is later), shall be barred perpetually and peremptorily.
      E. The time limits provided in subsections C and D of this section shall not be subject to suspension on any ground, or to interruption except by timely presentation of the claim as to subsection C or timely suit as to subsection D.
      F. The provisions of subsections C and D of this section shall not preclude the enforcement at any time, without regard to whether a claim has been presented or a suit filed timely as prescribed in said subsections, of any valid and subsisting lien securing any claim against, or indebtedness of, the corporation.
      Acts 1968, No. 105, § 1.

      . F. An action or suit to enjoin or set aside a conveyance by a corporation, on the ground that there has not been compliance with the provisions of this section relating to the sale, lease, exchange or other disposition of all or substantially all of the assets of the corporation, must be brought within ninety days after the corporate action purporting to authorize such disposition was taken, and this time limit shall not be subject to suspension on any ground, nor to interruption except by timely suit.”

      . We note that no demand for the fair cash value of the shares was made, within twenty days of notice of action relative to exchange of assets, pursuant to R.S. 12:131 C.

      . B. At any time before the corporate existence ceases, a voluntary proceeding for dissolution may be terminated by such affirmative vote of the shareholders as was required to commence the proceeding, given at a special meeting called by the liquidator or the board of directors, the notice of which set forth consideration of termination of the proceeding as a purpose of the meeting. Certificates of such action shall be signed by the president or a vice-president and the secretary or an assistant secretary and acknowledged by one of the signing officers. One certificate shall be filed with the Secretary of State, who, after all fees and charges have been paid as required by law, shall file the same in his office and endorse thereon the date of filing thereof with him. One certificate shall be filed for record in the office of the recorder of mortgages of the parish in which the corporation’s registered office is located, and one certificate shall be filed with the court, if the dissolution is under the supervision of the court.

      . C. After such authorization by a vote of shareholders, the board of directors may nevertheless, in its discretion, abandon such sale, lease, exchange or other disposition of assets, subject to the rights of third parties under any contracts relating thereto, without action or approval by shareholders.

      . B. If the corporation is not insolvent, such authorization may be given only by the shareholders, by vote of two-thirds (or by such greater or lesser proportion, not less than a majority, as the articles may provide) of the voting power present. The notice of the meeting of shareholders at which such authorization is considered shall state such consideration as a purpose of the meeting, and shall also contain, if applicable the following statement: “Dissenting shareholders who comply with the procedural requirements of the Business Corporation Law of Louisiana will be entitled to receive payment of the fair cash value of their shares if the transaction to be considered is effected upon approval by less than eighty per cent of the corporation’s total voting power.” If the corporation is insolvent, such authorization may be given by vote of two-thirds of the entire board of directors.
      Amended by Acts 1970, No. 50, § 10, emerg. eff. June 18, 1970, at 5:05 P.M.

      . Subsection A of R.S. 12:131 states:
      A. Except as provided in subsection B of this section, if a corporation has, by vote of its shareholders, authorized a sale, lease or exchange of all of its assets, or has, by vote of its shareholders, become a party to a merger or consolidation, then, unless such authorization or action shall have been given or approved by at least eighty per cent of the total voting power, a shareholder who voted against such corporate action shall have the right to dissent. If a corporation has become a party to a merger pursuant to R.S. 12:112(11), the shareholders of any subsidiaries party to the merger shall have the right to dissent without regard to the proportion of the voting power which approved the merger and despite the fact that the merger was not approved by vote of the shareholders of any of the corporations involved.

      . We also note, related hereto, that voluntary proceedings for dissolution require only a majority vote pursuant to R.S. 12:142 and that only upon the application of shareholders holding a minimum of 25% of the total voting power may a court order the proceeding to be conducted under its supervision. Involuntary proceedings for dissolution require 20% of the entire outstanding shares pursuant to R.S. 12:143 B(1).


author: FORET, Judge.

text:
    Gaynell M. SMITH, Plaintiff-Appellant, v. Paul FUSILIER, et al., Defendants-Appellees.
    No. 82-433.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1982.

      Miguez & Leckband, Carl A. Leckband, Jr., Lake Charles, for plaintiff-appellant.
    Plauche, Smith & Nieset, James R. Nies-et, Lake Charles, for defendants-appellees.
    Before DOMENGEAUX, FORET and LABORDE, JJ.
   FORET, Judge.

This suit for damages was filed by plaintiff, Gaynell M. Smith, against defendants, Paul Fusilier and Gertrude Haggard Fusilier, as a result of an incident wherein plaintiff alleges that she injured her back while trying to lift Gertrude, Paul’s mother, out of bed. Plaintiff, at the time of the alleged incident, was employed by Paul to take care of his mother, who was an invalid and totally blind and deaf.

Subsequent to the filing of plaintiff’s petition, Paul and Gertrude were dismissed as defendants and plaintiff brought General Accident, Fire and Life Assurance Corporation into this action as Paul and Gertrude’s homeowners liability insurance carrier.

After trial, the lower court ruled that, considering the evidence, there was no actionable negligence on the part of defendants; further, that plaintiff was contributo-rily negligent.

From this adverse judgment, plaintiff has appealed.

ISSUE

This case may be decided by the resolution of the following issue:

Was the trial court clearly wrong in finding that there was no negligence on the part of the defendants?

DUTY OWED

Plaintiff contends that the sole and proximate cause of her injuries were the following alleged negligent acts and/or omissions of the defendants: failure to afford her with the proper equipment to assist her in lifting Gertrude, i.e., an automatic lift, and failure to maintain and furnish a safe working condition for petitioner. Plaintiff’s claim is based on the provisions of LSA-C.C. Articles 2315 and 2316.

The paramount question herein is, what was the nature of the duty owed to plaintiff by the defendants. LSA-R.S. 23:13, which provides the general statutory duty owed by an employer to an employee is inapplicable in this situation. It provides:

“R.S. 23:13 Employers’ duty as to safety
Every employer shall furnish employment which shall be reasonably safe for the employees therein. They shall furnish and use safety devices and safeguards, shall adopt and use methods and processes reasonably adequate to render such employment and the place of employment safe in accordance with the accepted and approved practice in such or similar industry or places of employment considering the normal hazard of such employment, and shall do every other thing reasonably necessary to protect the life, health, safety and welfare of such employees. Nothing in this Section shall apply to employment in private domestic service or to agricultural field occupations.” (emphasis ours.)

The trial court correctly noted that the above statute was passed by the Louisiana Legislature as Act # 30, § 6, of 1930. Interpreting this act, the Court, in Fontenot v. Raftery, 14 So.2d 77 (La.App.Orl.1943), held that, although the statute was inapplicable to private domestic service, it did not have the effect of abolishing all of the employer’s duty toward his domestic employee. The court stated:

“The laws and jurisprudence of this state do not require of an employer of domestic servants even as high a degree of care as is required of the employers of industrial servants, for although Act No. 30 of 1936, in Section 6, sets forth the statutory duty of the employer as to safety devices, safeguards and places of employment, that section specifically provides that it shall have no application ‘to employment in private domestic service.’ We do not believe that that statute effects the elimination of all duty on the part of domestic employers to furnish safe places to work, and we therefore held that though such a domestic employer must furnish to the servant a safe place in which to work, the said domestic employer is liable for failure in this regard only if it be shown that he is negligent.” (Emphasis ours.)

Although no specific mention is made as to the duty required, the case of Lee v. Moellenkamp, 106 So.2d 795 (La.App. 2 Cir.1958), although finding for defendant-employer and against plaintiff-employee, implicitly held that an employer should at least refrain from causing injury to his employee through his negligence.

Furthermore, the court, in the case of Fritz v. American Universal Insurance Company, 140 So.2d 901 (La.App. 4 Cir.1962), citing LSA-R.S. 23:13 above and Fontenot v. Raftery, supra, held:

“... The duty of a householder to a servant to maintain the premises in safe condition is not nearly as exacting as is the duty of a commercial industrial employer to the employee.... ”

The duty owed to a domestic employee by his or her employer, of whatever nature it is, is not dependent upon the employee’s classification as an employee or invitee or whatever term might be applicable. A resort to these inflexible and arbitrary classifications is unnecessary inasmuch as we feel the duty may change, according to the circumstances.

In the case of Lear v. United States Fire Insurance Company, 392 So.2d 786 (La.App. 3 Cir.1980), this Court held:

“Thus, in determining the duty owed by the landowner to the plaintiff, it is not necessary to classify plaintiff as an invitee, but rather it is appropriate to ascertain this duty by examining the particular facts before us. Shelton v. Aetna Casualty & Surety Company, supra [334 So.2d 406 (La.1976) ]; Vidrine v. Missouri Farm Association, supra [339 So.2d 877 (La.App.1976) ]. (Emphasis ours.)

Therefore, before we can ascertain the nature of the duty owed to plaintiff and whether or not there was a breach of this duty, we need to examine the facts before us.

Plaintiff, the domestic employee of defendants, was employed for the purpose of taking care of defendant’s mother, Gertrude. Gertrude is totally paralyzed, blind, and deaf. She is 4'11" tall and weighs approximately 145 pounds. Because Gertrude could not move, it was plaintiff’s responsibility to feed, bathe, and in general, see to all of her needs. Doing so necessitated lifting Gertrude from her bed between 15 and 18 times per day.

Plaintiff testified that she knew that a safe way in which to lift Gertrude out of her bed was through the use of a “lift” machine in which the patient would be placed, making it much easier for her removal and transport from the bed. She testified that she had asked Paul to get her one “a bunch of times” for at least a year prior to the accident, but that Paul had never purchased the device because, “He said he couldn’t afford it at that time”.

Defendant, Paul Fusilier, testified that before her alleged injury, he had had some discussion with plaintiff about securing a lifting device for her and that he had informed her that he would get her anything that she needed. He further testified that at one time, a few months before the accident, he, in fact, had a lifting device in the house available for her use, but that she said that it was difficult to hook up, took up too much time, and, “she would rather pick her up herself”. He testified that he gave up on the idea of using a lift because plaintiff did not want it. Paul stated that the $75 required to purchase the lift was not prohibitive and that he could have afforded it.

Because of the above facts and circumstances, we deny recovery because we find, as did the trial court, that plaintiff failed to prove that her injuries were the result of any negligence on the part of the defendants, that is, she has failed to prove that any negligent act or omission on the part of the defendants was the cause-in-fact of her injuries. Plaintiff has, in this case, failed to show that she probably would not have suffered the injuries complained of but for the defendants’ conduct, and she has therefore failed to carry her burden of proof relative to cause-in-fact. Shelton v. Aetna Casualty & Surety Co., 334 So.2d 406 (La.1976); Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972); Vidrine v. Missouri Farm Association, 339 So.2d 877 (La.App. 3 Cir.1976), writ denied, 342 So.2d 216 (La.1977).

Defendant observed that plaintiff needed the lift, offered it to her, and she refused it because, although it relieved her from the strain of lifting Gertrude, she felt that its use was inconvenient. The finding of the trial court is therefore correct.

For the above and foregoing reasons, the judgment of the trial court is affirmed.

Costs of this appeal are assessed against plaintiff-appellant.

AFFIRMED.


author: STOKER, Judge.

text:
    Huey TUTTLE, Plaintiff-Appellant, v. LOWREY CHEVROLET, INC., et al., Defendants-Appellees.
    No. 82-439.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1982.

      Whitehead & McCoy, Charles R. Whitehead, Jr., Natchitoches, for plaintiff-appellant.
    Skeels, Baker, Coleman & Strickland, Donald L. Baker, Shreveport, Lowther & Boone, William R. Boone, Many, for defendants-appellees.
    Before GUIDRY, CUTRER and STOKER, JJ.
   STOKER, Judge.

Plaintiff, Huey Tuttle, brought this suit for rescission of the sale to him of a used 1978 Chevrolet diesel truck by Lowrey Chevrolet, Inc., (Lowrey Chevrolet) in Many, Louisiana. Also named as a defendant is General Motors Corporation, the manufacturer of the truck. Tuttle appeals from the trial court’s judgment dismissing his suit. We reverse in part.

Tuttle purchased the truck from Lowrey Chevrolet on May 16,1980, at which time it had an odometer reading of 39,577 miles. A short time later, probably June 30, 1980, Tuttle brought the truck back to Lowrey Chevrolet with complaints that it was using an excessive amount of oil and was “missing”. At that time there were 41,608 miles on the odometer. Lowrey Chevrolet completely overhauled the engine at no cost to Tuttle and returned the truck to him on or about July 21, 1980.

Around the end of July or the beginning of August, Tuttle again brought the truck to Lowrey Chevrolet because he had acci-dently put contaminated fuel into it. This problem was corrected at Tuttle’s expense. At the time of this repair, the odometer had a reading of 41,860.

In October of 1980, Tuttle took the truck to Lowrey Motor Company, Inc. (Lowrey Motor) in Mansfield, Louisiana, complaining that it was running badly. (Lowrey Motor Company, Inc., and Lowrey Chevrolet, Inc. are separate legal entities and not connected in any way.) There were 45,659 miles on the odometer by this time. Lowrey Motor completely overhauled the engine finding a blown head gasket, some broken piston rings, and other problems. Although Low-rey Chevrolet had not been consulted before Tuttle took the truck to Lowrey Motor, it agreed to and did pay for the second overhaul of the engine.

Some time after Lowrey Motor returned the truck to Tuttle, the crank shaft broke. Apparently, the truck has not been driven or repaired since that time and is still in the possession of Lowrey Motor in a somewhat deteriorated condition.

No oral or written reasons for judgment are found in the record. The judgment indicates only that the plaintiff failed to prove his case by a preponderance of the evidence. We find that plaintiff did prove the existence of a defect which rendered the truck useless for the purpose for which it was purchased and reverse the judgment of the trial court.

Under LSA-C.C. art. 2520, Tuttle is entitled to the warranty against redhibitory vices unless it has been expressly waived. Such a waiver must be written in clear and unambiguous terms, it must be contained in the sale and chattel mortgage document, and it must either be brought to the attention of the buyer or explained to him. Prince v. Paretti Pontiac Company, Inc., 281 So.2d 112 (La.1973); Hendricks v. Horseless Carriage, Inc., 332 So.2d 892 (La.App. 2nd Cir.1976). It is the third requirement which is at question here.

Counsel for Lowrey Chevrolet urged at oral argument that parol evidence should not be admitted to alter the contents of a written contract. Counsel also urged that the sale contract contained a provision to the effect that no warranties, representations, promises or statements by the vendor were made unless they were incorporated in the contract or endorsed therein. We find some ambiguous language of this nature following the contract on the back page following the signatures and under the caption “ADDITIONAL TERMS”. It is not clear that plaintiff agreed to this language. Following the contract is a separate “DISCLAIMER OF WARRANTIES” which is signed by the parties. Under somewhat analogous circumstances in Webb v. Polk Chevrolet, Inc., 387 So.2d 1240 (La.App. 1st Cir.1980) the Court of Appeal for the First Circuit held it was error for the trial court to exclude parol evidence purporting to establish that plaintiff buyer neither read the disclaimer of warranty nor had it explained to him.

Under the circumstances explained below, and following the reasoning of the Webb case, we feel warranted in making an exception to the parol evidence rule here.

Tuttle’s testimony clearly indicates that he believed the waiver of warranty to mean that he would not be able to obtain a twelve-month warranty from General Motors because such a warranty was not offered for diesel engines. He testified that he was given a personal warranty from Lowrey Chevrolet’s head salesman for ninety days or 3,000 miles. We find persuasive corroboration for Tuttle’s statement in the testimony of Bert Sepulvado, a salesman involved in the transaction. He remembered that the head salesman had authorized a personal warranty, but could not recall the extent of the warranty. Regardless of the personal warranty question, Sepulvado was certain that he explained the waiver of warranty to Tuttle as he made it a practice to do so to every customer.

We are of the opinion that the alleged explanation of the waiver given along with an assurance that there would be a personal warranty on the car from Lowrey Chevrolet so qualified the waiver that it was rendered ineffective as to Lowrey Chevrolet. The giving of the personal warranty made the explanation ambiguous and therefore ineffective. Sepulvado admitted that the personal warranty given on behalf of Lowrey Chevrolet was part of the inducement to get Tuttle to buy the truck. From plaintiff’s own testimony his warranty waiver, if any was otherwise due, was effective only as to General Motors.

Having determined that the waiver of warranty was ineffective, we must now consider the issue of whether a defect existed in the truck which rendered it useless for its intended purposes. The standard of proof for proving such a defect existed has been set out by the Louisiana Supreme Court in Rey v. Cuccia, 298 So.2d 840 (La.1974). There the court stated:

“The buyer must prove that the defect existed before the sale was made to him. Article 2530. However, if he proves that the product purchased is not reasonably fit for its intended use, it is sufficient that he prove that the object is thus defective, without his being required to prove the exact or underlying cause for its malfunction.” (Citations omitted.)
“The buyer may prove the existence of redhibitory defects at the time of the sale not only by direct evidence of eyewitnesses, but also by circumstantial evidence giving rise to the reasonable inference that the defect existed at the time of the sale.” (Citations omitted.)

We believe that Tuttle has presented evidence sufficient to support his claim that a redhibitory defect existed in the truck and that the trial court was clearly wrong in failing to reach this result.

Within a period of six months, the truck underwent two complete overhauls. Each involved the replacement of rings, bearings, gaskets, and various other parts. Yet at the time of the second overhaul by Lowrey Motor, the truck had several broken rings and a blown head gasket. Shortly after the second overhaul, the crankshaft broke.

Much testimony was given regarding possible causes of the ring and crankshaft breakage, but none of the possibilities were conclusively proven. The evidence did not support an allegation of owner abuse nor was any particular part shown to be defective. Lowrey Chevrolet relies heavily on the proposition that the second overhaul by Lowrey Motor involved defective workmanship and caused the crankshaft to break. There was no evidence to support an allegation of defective workmanship by Lowrey Motor nor does this assertion explain why a second overhaul was needed at all.

Under the facts of this case, we think the only reasonable inference is that a defect existed in the truck at the time of sale rendering it unfit for its intended use. The exact cause of the truck’s continued breakdown is unidentifiable. Rey v. Cuccia, supra. Cf. Willis v. Ford Motor Co., 383 So.2d 136 (La.App. 3rd Cir.1980).

Regarding defendant General Motors, we believe the trial court’s judgment is correct. The truck was operated for 39,577 miles by prior owners without substantial repair. There is no evidence to show that a defect in design or manufacture existed from the time of manufacture.

There was some testimony at trial regarding the present deteriorated condition of the truck but no alternative demand for credit has been made. Although the date on which the truck was offered for return to Lowrey Chevrolet is not established, the matter of tender is not disputed. Circumstances indicate that most of the deterioration must have occurred after tender at which time the buyer had no duty to provide exceptional care for the truck. Hebert v. Claude Y. Woolfolk Corporation, 176 So.2d 814 (La.App. 3rd Cir.1965). We also note that the mileage for which Tuttle had use of the truck was not firmly established nor was there evidence of the value of that use. Since no affirmative defense was asserted regarding credit for Tuttle’s use of the truck or its deterioration we will not allow it. Waite v. Tomeny River Road Estates, Inc., 367 So.2d 70 (La.App. 4th Cir.1979), writ denied, 368 So.2d 136 (La.1979).

Plaintiff also seeks an award of attorney’s fees pursuant to LSA-C.C. article 2546 which provides:

“The seller, who knows the vice of the thing he sells and omits to declare it, besides the restitution of price and repayment of the expenses, including reasonable attorneys’ fees, is answerable to the buyer in damages.”

Although a manufacturer is presumed to know of an existing defect, a plaintiff must prove that a seller who is not the manufacturer knew of the defect at the time of sale. Lee v. Shaw, 402 So.2d 152 (La.App. 1st Cir.1981). We do not think the evidence in this case was sufficient to show that Lowrey Chevrolet knew of any existing defect when it sold the truck to Tuttle. The demand for attorneys’ fees is rejected.

In his original petition, plaintiff itemized his damages and included the sum of $7,770.82 to cover “the cash price, sales taxes, licenses, title, life insurance and finance charges.” The credit sale instrument reflected that plaintiff was given credit on the sale price in the amount of $740.02 consisting of a trade-in allowance of $540.02 and $200 as a cash down payment. The cash price was shown as $5,426.80. The balance after deducting $740.02 was shown as $4,686.78. Various fees and costs amounting to $497.09 brought the unpaid balance to $5,183.87. To this figure a finance charge of $1,846.93 was added. Therefore, we calculate the amount which plaintiff paid and for which plaintiff obligated himself to have been $7,770.82 (referred to in the credit sales instrument as “deferred payment price”). Itemized in its simplest form that figure is arrived at as follows:

Cash price (including $740.02 credit) $5,426.80
Various charges 497.09
Finance charge 1.846.93
$7,770.82

In his brief on appeal, plaintiff asked for $8,510.84 which is the sum of $7,770.82 and $740.02. The latter figure is the credit consisting of the trade-in allowance ($540.02) and the down payment ($200.00). As shown above, the $740.02 is included in the figure of $7,770.82. This is the amount plaintiff prayed for in his petition and the sum he is entitled to. While plaintiff may not have paid the credit portion of the price, there is no evidence in the record as to who holds the obligation to which plaintiff bound himself when he signed the instrument in question. Hence, we will award plaintiff $7,770.82.

For the foregoing reasons, the judgment of the trial court is affirmed in part, reversed in part and rendered. We recast the decree as follows:

IT IS NOW ORDERED, ADJUDGED AND DECREED that there be judgment in favor of plaintiff, Huey Tuttle, and against defendant, Lowrey Chevrolet, Inc., in the full sum of $7,770.82, together with legal interest from date of judicial demand until paid.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the judgment in favor of defendant, General Motors Corporation, and against plaintiff, Huey Tuttle, rejecting his demands against it is affirmed.

The costs of proceedings in the trial court and on appeal are assessed to Lowrey Chevrolet, Inc.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.


text:
    Ken Kerrell DUKE, Plaintiff-Appellant, v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY, Defendant-Appellee.
    No. 82-441.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1982.

      Gaharan & Wilson, Donald R. Wilson, Jena, for plaintiff-appellant.
    Ralph W. Stephenson, Jr., Asst. Gen. Counsel, Baton Rouge, for defendant-appel-lee.
    Before GUIDRY, CUTRER and STOKER, JJ.
   STOKER, Judge.

Plaintiff, Ken Duke, filed suit in district court seeking full reinstatement of his driving privileges, reduction of the suspension period from two years to one year, or issuance of a restricted drivers license. The defendant, the State through the Department of Public Safety, filed an answer and exception of no cause of action in the same pleading. At a hearing on defendant’s exception of no cause of action, evidence was admitted apparently without objection. The trial court maintained the exception and dismissed the suit at plaintiff’s costs. We affirm.

The present two year suspension of Duke’s driving privileges is based on his forfeiture of bond in Gonzales, Louisiana, on charges of driving while intoxicated and driving under suspension. The bond forfeiture occurred on April 7,1981, and the trial judge found that Duke had received actual notice of his suspension which became effective on June 12,1981. Duke did not seek review of the suspension in the district court within the 30 days provided for in LSA-R.S. 32:414(E), but filed this suit on May 5, 1982.

Plaintiff has abandoned his claim for a restricted license on appeal admitting that, because this is not his first suspension, he is not eligible under the provisions of LSA-R.S. 32:415.1. The remaining issues concern the legality of the bond forfeitures and the suspension itself.

Plaintiff states several grounds in support of his contentions that the bond forfeiture was illegal and an improper basis for the suspension. However, these assertions are not proper issues in this case as they are the equivalent of a collateral attack on a criminal proceeding in a civil case. This type of collateral attack is not permitted. Gardner v. State, Department of Public Safety, 198 So.2d 184 (La.App. 3rd Cir.1967).

Plaintiff attempts to distinguish the bond forfeiture from a guilty plea by pointing out that, unlike a guilty plea, a bond forfeiture cannot be used as an admission against interest in a civil proceeding. This contention ignores the fact that the legislature has specifically provided for the use of such a forfeiture in license revocation or suspension proceedings. LSA-R.S. 32:414 and related statutes. In addition, Duke claims to have received no notice of the hearing in Gonzales or of the bond forfeiture. If plaintiff actually did not receive proper notice and if this fact constituted ground for attack on the court’s action, the proper time to assert it would probably have been within the thirty-day period allowed for applying for a hearing in district court after a license suspension. No timely application was made. In any event, the trial court specifically found that Duke had actual notice of the bond forfeiture.

On appeal, Duke contends that the evidence of the bond forfeiture presented by defendant is not sufficient to support the license suspension. Assuming that such contention was correct it was not timely asserted within the period provided for by statute.

Crucial to this decision is the issue of whether Duke received notice of the suspension. He claims that he did not, and defendant claims that two notices were sent to the last address which had been provided. One notice was for the one year suspension for driving while intoxicated and the other was for the second year suspension for driving under revocation. In lieu of a transcript of testimony the trial court provided for the record a narrative of facts. The trial judge found, as he did with the bond forfeiture, that Duke had actual notice of the license suspension. He states in the narration of facts, “Concerning complaints of lack of notice, this court found that petitioner was sent notices at the address on his license and through his brother got actual notice of the forfeiture and of the suspension.” The written narrative of the facts by the trial judge is conclusive. LSA-C.C.P. art. 2131. The testimony adduced at trial was apparently sufficient to convince the judge that Duke had, in fact received notice. That finding will not be disturbed.

Duke also raises the argument that the procedure for suspension under LSA-R.S. 32:414 violates due process rights. However, this proceeding has been upheld in Price v. State, Department of Public Safety, 325 So.2d 759 (La.App. 1st Cir.1976). In that case, the court in commenting on 414 stated, “Due process requirements are met by the judicial review provided for in the foregoing statute.” In the case at bar, Duke had notice of the suspension and an opportunity for timely judicial review in the district court. He did not avail himself of that opportunity.

The judgment of the trial court is affirmed. The costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED.


text:
    Howard JACKSON, Plaintiff-Appellant, v. CITY OF ALEXANDRIA, et al., Defendants-Appellees.
    No. 82-444.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1982.
    Writ Denied Feb. 11, 1983.
    C.O. Brown, Alexandria, for plaintiff-appellant.
    Gist, Methvin, Hughes & Munsterman, H.B. Gist, III, Alexandria, for defendants-appellees.
    Before GUIDRY, CUTRER and STOKER, JJ.
   STOKER, Judge.

In this case the trial court rejected plaintiff Howard Jackson’s claim for workmen’s compensation and he appeals. While employed by the City of Alexandria in a city sanitation crew and during a garbage pick up Jackson claims he injured his ankle by striking it on a curbing. This accident occurred on October 12, 1981. Plaintiff sued the City of Alexandria and its workmen’s compensation carrier, the Home Indemnity Company.

Defendants admit that plaintiff was examined on October 12 and October 16, 1981, by Dr. Francis Brian at the Brian Clinic and that plaintiff then had an ankle sprain. Defendants deny that plaintiff sustained a compensable injury or disability as a result of the injury. According to the medical evidence there were no open or stab type wounds of the plaintiff’s foot at that time.

On October 19, 1981, plaintiff reported to the Brian Clinic and saw Dr. James P. David, a medical doctor engaged in family practice and general surgery. On October 19, Dr. David found plaintiff’s foot swollen with a burn wound to the dorsum (upper surface) of his foot from his toes to about the level of the ankle joint. There was no burn around the ankle or bottom of the foot. Plaintiff Jackson told Dr. David he had burned the foot in water in the tub. Dr. David regarded this explanation skeptically. He testified that if Jackson had sustained the burn he saw by immersing his foot in water hot enough to burn the top of his foot, the bottom of plaintiff’s foot would also have been burned. Plaintiff’s wound at this time consisted of second and third degree burns to the dorsum of the foot which required hospitalization for treatment including skin grafts. He was discharged on October 26.

Dr. David found that plaintiff’s burn was infected (staphyloccus infection) when he saw it on October 19, 1981, but he stated that such an infection was not a normal complication of a sprained ankle. Dr. David also stated with certainty that the wound appeared to be a burn with a secondary infection not a staphyloccus infection which looked like a burn.

On November 24,1981, plaintiff consulted Dr. David with a second degree burn on the plantar surface (bottom) of his foot and toes. This burn was not present at any of the times of Dr. David’s prior examinations. Dr. David testified that the only history plaintiff gave on November 24 “was that he had the foot exposed to the sun and that possibly he got burned in the sun”.

Plaintiff saw Dr. L.D. Perdue, an orthopedic specialist, in March of 1982 who made a diagnosis of osteoparosis of the foot. Dr. Perdue testified that the term osteoparosis means loss of calcium of the bones. This condition is caused by not using the body member containing the bone (in this case the foot and ankle) over a period of time. In some cases, for poorly understood reasons, the calcium loss results from a neuro-vascular reaction to injury. Dr. Perdue testified that plaintiff’s condition would clear up and he probably could return to his former job of working on a garbage truck. Dr. David corroborated Dr. Perdue’s testimony that nonuse of the foot during plaintiff’s hospitalization and inactivity following hospitalization could have caused the osteoparosis.

At trial plaintiff’s counsel attempted to show that when plaintiff struck his foot on the curbing he also dropped a bag of garbage on the foot and that something in the garbage caused plaintiff’s infection. A coworker testified there was no spillage of garbage at the time. The trial court found that plaintiff’s burns were unrelated to the accident which caused his sprained ankle. The trial court also found that plaintiff’s foot problems were the result of the burns and did not result from any injury sustained in his employment with the City of Alexandria. We are of the opinion that the trial court was correct in its finding.

We affirm the judgment of the trial court and assess the costs of this appeal to plaintiff-appellant.

AFFIRMED.


author: GUIDRY, Judge.

text:
    Mattie EBARB, Plaintiff-Appellee, v. INSURANCE COMPANY OF NORTH AMERICA, Defendant-Appellant.
    No. 82-445.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1982.

      Lunn, Irion, Switzer, Johnson & Salley, Frank M. Walker Jr., and Ronald E. Raney, Shreveport, for defendant-appellant.
    Thomas, Dunahoe & Gregory, Gerard F. Thomas, Jr., Natchitoches, for plaintiff-ap-pellee.
    Before GUIDRY, CUTRER and STOKER, JJ.
   GUIDRY, Judge.

Mattie Ebarb, widow of Eli Ebarb, Sr., brought this suit to recover workmen’s compensation death benefits. The trial court found that the injury Ebarb received on the job was causally related to his subsequent death, and awarded the plaintiff medical expenses, funeral expenses and weekly benefits. The trial court denied recovery of penalties and attorney’s fees. The defendants, Essex Corporation and Insurance Company of North America, appeal from the judgment urging that the trial court erred when it held that there was a causal relationship between Ebarb’s hand injury and his subsequent fatal heart attack. Plaintiff answered the appeal, alleging that the trial court erred in failing to award statutory penalties and attorney’s fees.

FACTS

On December 29,1980, Eli Ebarb, Sr. was employed as a rig operator by the Essex Corporation. In the course of his employment on that date, he received a severe crushing injury to his left hand. He was hospitalized at the Louisiana State University Medical Center in Shreveport, where he underwent surgery and other treatment for the hand injury. He remained hospitalized there until January 14, 1981, when he suffered a heart attack and died.

CAUSATION

The first issue we address is the correctness of the trial court’s determination that Ebarb’s heart attack was caused in part by the injury to his hand. On this issue, the court was presented with two conflicting medical opinions.

Dr. Joseph A. Thomas practices general medicine and surgery. He estimated that roughly thirty-five percent of his practice has to do with cardio-vascular disease. It was Dr. Thomas’ opinion that Ebarb suffered severe pain and was placed under a considerable amount of stress as a result of the injury to his hand, and that this pain and stress caused him to have a myocardial infarction (heart attack).

The defendants introduced the deposition of Dr. John H. Phillips, Chief of Cardiology at Tulane University School of Medicine. Dr. Phillips stated that he found no evidence in the record that indicated a causal relation between the hand injury and the heart attack. He noted that Ebarb had a history of heart disease, including a previous myocardial infarction. He had a previous diagnosis of Stokes-Adams attack in 1979. He had a paroxysmal atrial flutter fibrillation, atrial premature beats, and post atrial extra systolic SA inhibition, indicating sick sinus syndrome. Dr. Phillips stated that any one of these disorders could result in sudden, unexpected death without any identifiable preceding cause. When asked for his conclusion as to the presence or absence of a causal relation between the injury and the heart attack, Dr. Phillips stated:

“There’s no one in the world who could answer that with 100% confidence. There is no way of knowing it. Even if an autopsy had been performed, there would have been no way of knowing. It’s my feeling that statistically it’s much more probable, more likely than not that the injury was not related to his death.”

To resolve this conflict in medical testimony, it is helpful to review recent jurisprudence concerning the relation between job related stress and exertion and heart attacks. At the outset we observe that a worker’s pre-existing condition does not bar his recovery under our workmen’s compensation statute. Guidry v. Serigny, 378 So.2d 938 (La.1979); Guillory v. United States Fidelity and Guaranty, 420 So.2d 119 (La.1982). An employer takes the employee as he finds him. An abnormally susceptible worker is entitled to the same protection as a healthy worker. Allor v. Belden Corp., 393 So.2d 1233 (La.1981); Guillory, supra.

In Guidry v. Sline Industrial Painters, Inc., 418 So.2d 626 (La.1982), a widow brought suit for compensation benefits after her husband died from a heart attack suffered on the job. Guidry was a painter who suffered his fatal heart attack while taking a break during the course of a normal work day. The court in Guidry declined to hold that there exists a presumption that an on-the-job heart accident is caused by the employment. Rather, the Court held that the burden is on the plaintiff to prove by a preponderance of the evidence “that the work effort, stress, or strain in reasonable probability contributed in some degree to the accident”, (emphasis supplied). Turning then to the degree of connexity required, the court stated:

“For the heart accident to arise out of or be connected with the employment, the exertion stress or strain, acting upon the pre-existing disease, must be of a degree greater than that generated in everyday non-employment life15 (e.g., as compared to the more or less sedentary life of the average non-worker).
In other words if the activities in which the worker with a pre-existing heart disease is engaged, whether for his job usual and customary or not, entail exertion, stress or strain greater than would be involved in everyday non-employment life and he experiences a heart accident, he has made a prima facie showing that the accident arose out of or was connected with, the employment.” (footnotes omitted)

Guidry makes it clear, then, that 1) to be compensable, a heart accident must be causally related in part, however slight, to the employment, Guidry, supra, at p. 632; and, 2) the amount of stress or exertion required in order to establish causation need only be of a degree greater than that generated in every day non-employment life.

The record reveals that, following his hand injury, Ebarb suffered a great deal of physical pain and emotional upset. Members of his family testified that Ebarb constantly complained of pain, and that on their daily visits to him in the hospital, he was often driven to tears either by the physical pain or emotional upset. The treating physicians had determined that skin graft surgery was necessary. In addition to the skin graft surgery, Ebarb’s future with regard to the use of his hand and his ability to work was at best uncertain. The record clearly establishes that the amount of stress to which Ebarb was subjected prior to his heart attack was substantially greater than that generated in every day non-employment life.

The trial court found that the injury to Ebarb’s hand bore a causal relation to his fatal héart attack. In light of the factual circumstances of his death and the liberality of the more recent cases in finding causal links between stress and heart accidents, we find no manifest error in the trial court’s determination. His conclusion was supported by ample medical and other testimony, and was not clearly wrong.

PENALTIES AND ATTORNEY’S FEES

The trial court found that the defendant, Insurance Company of North America, did not act arbitrarily and capriciously in refusing to pay the claim. He found that there was a genuine issue of fact as to whether the death of Ebarb was caused in any way by his hand injury. Our careful review of the record reveals no clear error in the trial court’s resolution of this issue. The defendant was faced with a claim involving a sixty eight year old man with a history of heart disease whose heart attack occurred two weeks after the work injury. In light of those circumstances, and the fact that even the medical testimony was in conflict with regard to the issue of causation, we find that the trial judge’s refusal to grant statutory penalties and attorney’s fees was not clearly wrong.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs are assessed to defendants-appellants.

AFFIRMED.

      . In the instant case, we are concerned with stress caused by work-related injury. We can conceive of no logical reason why the principles applicable in cases involving job related stress should not apply with equal force to cases involving stress arising as a result of work-related injury.