author: LEMMON, Justice. BLANCHE, Justice MARCUS, Justice WATSON, Justice,

text:
    STATE of Louisiana v. Blake HARVESTON.
    No. 67045.
    Supreme Court of Louisiana.
    Oct. 6, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Don C. Burns, Dist. Atty., for plaintiff-appellee.
    William J. Perkins, Monroe, Howard N. Nugent, Jr., Alexandria, for defendant-appellant.
   LEMMON, Justice.

The principal issue in this appeal is the sufficiency of the evidence presented to support the conviction of possession of marijuana with intent to distribute.

The police obtained a warrant to search a store operated by defendant and the surrounding buildings and property. In executing the warrant, the police found and seized the following items: the remains of ten marijuana cigarettes, found in an ashtray in the kitchen; three packages of cigarette rolling papers, found on the kitchen table and in a file cabinet in the store; one set of balance scales, found in a storeroom; and a band-aid box containing marijuana seed, found in a bedroom window. They also found a wrecked automobile in an unfenced section of the property twenty yards behind the store, and when they unlocked the trunk with keys found in the ignition switch, they found marijuana seeds on the trunk floor and a burlap “Tastee-Tator” sack that contained gleanings of marijuana.

After defendant was arrested and charged with possession, the police searched his wooden leg and found two bags of marijuana, estimated to contain a total of three ounces with an overall value of about $120.00. The charge was then changed to possession with intent to distribute.

Defense counsel did not file a pretrial motion to suppress, but did object unsuccessfully at the bench trial to the introduction of the burlap sack and scales. In announcing the judgment at the completion of the evidence, the trial court stated that the marijuana seized was “not a large quantity”, but the burlap sack and scales convinced him defendant was guilty of more than simple possession.

Intent may be inferred from the facts and circumstances of a particular case. R.S. 15:445. The quantity of marijuana was not shown to be inconsistent with personal use only and did not of itself establish a reasonable inference that the marijuana seized was intended for distribution. State v. House, 325 So.2d 222 (La. 1975).

Under some circumstances the scales arguably might have raised some inference of an intent to distribute marijuana. These scales, however, were found in a building used as a grocery store, and there was no evidence introduced to contradict the use of these scales in the operation of the store or to indicate that this type of scale was customarily used to measure marijuana. In fact there was no evidence that the scales were in a working condition at the time of the .seizure.

As to the burlap sack, the wrecked car was accessible to anyone in the area of the store that was open to the public, and no evidence was introduced to establish that the car even belonged to defendant.

The record, therefore, is seriously deficient on the question of defendant’s intent to distribute marijuana. There was no direct evidence that defendant ever attempted to distribute marijuana, and the marijuana he possessed was not in a form or amount usually associated with distribution to others. Furthermore, while intent to distribute may be proved by circumstantial evidence, such intent may not reasonably be inferred where the items seized and the circumstances shown are consistent with conduct not involving distribution of marijuana. Upon review of the entire record we conclude that no rational trier of fact would have found proof of guilt beyond a reasonable doubt of every element of the crime of possession of marijuana with intent to distribute. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We accordingly set aside the conviction of this particular offense.

But the overall evidence does conclusively support the existence of every element of the crime of possession of marijuana, and the trial court implicitly found defendant guilty of that lesser and included offense. C.Cr.P. art. 814(A)(46). We therefore must decide whether to discharge defendant without any punishment or to remand the case for sentencing for the crime of which the trial court implicitly found the defendant guilty on sufficient evidence.

There is arguable merit in the view that discharging a defendant under these circumstances will discourage overcharging by the prosecution when the evidence only warrants a lesser charge. However, the fact remains that this defendant was found guilty of the lesser charge (and conviction on that charge would have been affirmed). Therefore, rather than set free without any punishment a criminal who has been proved by the prosecution and found by the trial court to be guilty beyond a reasonable doubt of the crime of possession of marijuana, we simply set aside the conviction of the insufficiently proved crime of possession of marijuana with intent to distribute and remand the case for sentencing for the proved crime of possession of marijuana. State v. Byrd, 385 So.2d 248 (La. 1980).

Accordingly, the conviction and sentence, are set aside and the case is remanded to the trial court to enter a judgment of guilty of possession of marijuana and to sentence defendant accordingly.

CONVICTION AND SENTENCE SET ASIDE, REMANDED WITH INSTRUCTIONS.

BLANCHE, J., dissents and concurs for reasons assigned.

MARCUS and WATSON, JJ., dissent and assign reasons.

BLANCHE, Justice

(concurring in part; dissenting in part).

I concur in the reversal of the conviction but dissent with regard to the remand to the trial court with instructions to enter a judgment of conviction as to a lesser included offense for reasons assigned by Justice Watson in State v. Byrd, 385 So.2d 248 (La. 1980).

MARCUS, Justice

(dissenting).

I agree that there is no evidence of the crime for which defendant was charged and convicted, that is, possession with intent to distribute. Therefore, he should be discharged. I respectfully dissent.

WATSON, Justice,

dissenting.

Although the majority is correct that there is no evidence of the intent to distribute element in this case, I disagree with the remand. See dissent in State v. Byrd, 385 So.2d 248 (La., 1980). The defendant should be discharged.


source: Caselaw Access Project

author: MARCUS, Justice.

license: Public Domain

text:
    Betty Jean SIMPSON v. S. S. KRESGE COMPANY.
    No. 67214.
    Supreme Court of Louisiana.
    Oct. 6, 1980.

      Donald R. Miller, Shreveport, for plaintiff-applicant.
    Richard H. Switzer, Lunn, Irion, Switzer, Johnson & Salley, Shreveport, for defendants-respondents.
   MARCUS, Justice.

Plaintiff, Betty Jean Simpson, instituted suit for workmen’s compensation benefits against her employer, S. S. Kresge Company, d/b/a K-Mart Discount Store # 3019, for an injury producing permanent total disability or, alternatively, partial disability. Her alleged disability resulted from an injury to her back caused by an accident arising out of and in the course of her employment as department head of the domestics section with defendant company. Plaintiff also sought penalties and attorney fees.

The trial judge rendered judgment in favor of plaintiff finding her to be partially disabled. In his reasons for judgment, he stated: “The court does conclude that the plaintiff is partially and permanently disabled after having considered the medical and lay testimonies. There is a partial and permanent disability to the body as a whole in the amount of 15%.” The judgment ordered defendant to pay compensation for 425 weeks, commencing May 26, 1977, at the rate of $74.67 per week, subject to a credit for compensation previously paid, together with legal interest on each weekly installment from date due until paid. Defendant was also ordered to pay all medical expenses due under the compensation law, subject to a credit for the amount already paid. The trial judge rejected plaintiff’s claim for penalties and attorney fees. All costs were assessed against defendant. Defendant appealed. Plaintiff neither appealed nor answered the appeal. The court of appeal reversed. On plaintiff’s application, we granted certiorari to review the correctness of this judgment.

The record reflects that plaintiff, Betty Jean Simpson, a twenty-eight year old wife and mother, was originally employed by K-Mart Discount Store in the cafeteria and was transferred to the domestics section where curtains, curtain rods, hardware, towels, sheets, etc., are displayed and sold. She worked first as a sales person and was later promoted to department head where her duties included supervising sales personnel in her department and working primarily in the curtains section, stocking and pricing curtains and rods. The job required frequent bending, stooping and lifting.

On May 26, 1977, plaintiff was required to lift and remove to the stockroom a number of blinds. She worked the remainder of the day but on returning to work two days later, was forced to leave work with pain in her back and reported to the emergency room of a local hospital for medical attention. She had no prior history of back problems. Plaintiff was ultimately diagnosed as having a bulging disc in the area of L4-5 and underwent surgery in the form of a decompression laminectomy on July 30, 1977. Dr. Don H. Burt, the orthopedic surgeon who had performed the surgery, treated plaintiff until December 1, 1977, when he discharged her as able to return to work; however, he instructed her not to do work requiring repeated forward bending and lifting of objects that would weigh in excess of 30 to 40 pounds.

Plaintiff did not return to work, but continued to see Dr. Burt and other physicians complaining of pain in her back. She has contended since that time, and contends here, that she is disabled because of pain which prevents her from working. In support of her testimony, she offered the testimony of her husband, mother and father to the same effect. The medical testimony consisted of the depositions of Dr. Burt and of Dr. Baer I. Rambach, an orthopedic surgeon who examined plaintiff on one occasion on August 29, 1978. Dr. Rambach did not take X rays of plaintiff’s back during his examination as plaintiff was in the latter stages of pregnancy at the time. Dr. Burt assigned plaintiff a partial permanent disability of 15 per cent of the body as a whole. Dr. Rambach assigned a 10 per cent disability and also testified that this would not prevent her from returning to work.

In order to recover benefits under the Louisiana Workmen’s Compensation Law, an employee must establish that he received a personal injury by accident arising out of and in the course of his employment. Disability is compensable only if it results from a work-related accident. La. R.S. 23:1031; Gorbach v. Prager, Inc., 310 So.2d 604 (La.1975); Prim v. City of Shreveport, 297 So.2d 421 (La.1974). It was stipulated that plaintiff’s injury was work-related. Hence, the sole issue presented for our review is whether the court of appeal erred in reversing the finding of the trial judge that plaintiff was “partially and permanently disabled.”

An injured employee is deemed partially disabled when he is unable to perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description for which he was fitted by education, training, and experience. La.R.S. 23:1221(3). In each case, it is the totality of the evidence, medical and lay, which must be examined by the court in making its determination of whether to grant an award for disability. Crawford v. Al Smith P & H Service, Inc., 352 So.2d 669 (La. 1977); Tantillo v. Liberty Mutual Insurance Company, 315 So.2d 743 (La.1975). In the final analysis, it is the judge’s responsibility in a workmen’s compensation case to determine if and to what extent a plaintiff suffers a disabling injury which is compensa-ble. Tantillo v. Liberty Mutual Insurance Company, supra. Moreover, on appellate review, a finding of fact by the trial court should not be disturbed unless it is clearly wrong. Arceneaux v. Domingue, 365 So.3d 1330 (La.1978).

In the case before us, plaintiff established that a work-related injury to her back required surgery in the form of a decompression laminectomy. This resulted in a 10 to 15 per cent permanent disability to her body as a whole. While Dr. Burt, orthopedist who performed the surgery, discharged plaintiff as being able to return to work on December 1, 1977, some four months after surgery, he instructed her not to do work requiring repeated forward bending and lifting of objects that weighed in excess of 30 to 40 pounds. The evidence is unrefuted that plaintiff’s job required frequent bending, stooping and lifting. Dr. Rambach’s single examination of plaintiff on August 29, 1978, was limited by the fact that plaintiff was in the latter stages of pregnancy at the time. Plaintiff’s subjective complaints of pain preventing her from performing the duties of her employment are substantiated by the objective medical findings of 10 to 15 per cent disability to her body as a whole. Her testimony is further corroborated by the lay testimony. Under the circumstances, we are unable to say that the trial judge was clearly wrong in his determination that plaintiff was “partially and permanently disabled.” To the contrary, we consider that the record fully supports his conclusion. Accordingly, we must reverse the judgment of the court of appeal and reinstate that of the trial judge.

DECREE

For the reasons assigned, the judgment of the' court of appeal is reversed. The judgment of the district court is reinstated and made the judgment of this court. All costs are assessed against the defendant.

      . Not relevant here was an intervention by plaintiff’s former attorney based on a claim for attorney fees under a contract with plaintiff. Judgment ordered attorney fees allowed by law apportioned two-thirds to plaintiff’s present attorney and one-third to her former attorney (intervenor).

      . 379 So.2d 1161 (La.App.2d Cir. 1980).

      . 384 So.2d 798 (La. 1980).

      . Plaintiff was also referred to Dr. Bennett H. Young, orthopedic surgeon, on April 6, 1978, for an examination. However, because of her advanced stage of pregnancy, he stated in his report that: “Further diagnostic treatment is deferred until X rays can be done after she delivers her pregnancy.”


author: LEMMON, Justice.

text:
    STATE of Louisiana v. Dale GUILLOT.
    No. 67232.
    Supreme Court of Louisiana.
    Oct. 6, 1980.
    Michael J. Johnson, Cottonport, John R. Contois, Marksville, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Eddie Knoll, Dist. Atty., Cliffe E. Laborde, III, Asst. Dist. Atty., for plaintiff-respondent.
   LEMMON, Justice.

The determinative issue in this matter is whether the prosecution presented sufficient evidence to sustain defendant’s conviction of criminal neglect of his two minor children in violation of R.S. 14:74.

On August 20, 1979 defendant left his wife and two daughters after fifteen years of marriage. Five months later Mrs. Guil-lot filed a complaint charging defendant with intentionally failing to support his children who were in necessitous circumstances.

I.

After defendant left them, Mrs. Guillot and the children continued to live on the family farm. She withdrew $1,277 from a joint bank account and also harvested a standing soybean crop, which she sold for $20,000. With the proceeds of that crop sale and the sale of some cattle, she paid off the $27,000 mortgage on the farm.

Mrs. Guillot never asked her estranged husband for support, nor did she apply for food stamps. In November, 1979 she bought an AC three-wheeler recreational vehicle at a cost of $850 for herself and the children. When asked if she and her children were destitute, she replied that “they managed”. She further admitted owning about 25 other cattle which she could sell if she needed cash.

According to Mrs. Guillot, her father provided considerable support by helping her harvest the soybean crop and by giving cattle to the children. Her father testified he gave defendant and his daughter their house and lot when they were married in 1964 and made gifts of cattle to the grandchildren, but made no donations of cattle from August, 1979 to the date of the trial.

On January 8, 1980, approximately two weeks before these charges were filed, defendant gave his wife $331.00, which he had inherited from his mother’s succession.

II.

In order for a conviction to stand, the evidence, when viewed in a light most favorable to the prosecution, must be sufficient to convince a reasonable trier of fact of the defendant’s guilt beyond a reasonable doubt of every element of the crime. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). To convict a husband or father of the offense of criminal neglect of family, the prosecution must prove more than the defendant’s breach of his civil obligation imposed by C.C. art. 119 and 227 to support his wife and minor children. The state must prove beyond a reasonable doubt that the wife or minor children were in “destitute or necessitous circumstances”. R.S. 14:74.

Since the evidence presented concerning the resources available to Mrs. Guillot and the children for support belies, the conclusion that their circumstances were “destitute or necessitous”, this record does not contain proof beyond a reasonable doubt of this element of the offense. The fact that Mrs. Guillot’s hard work and the generosity of the grandparent kept the children out of necessitous circumstances, while pertinent in the pending civil litigation, does not establish the requisite proof of necessitous circumstances in a criminal trial. Moreover, another element of the offense is the defendant’s “financial means to provide support”, and the prosecution produced no evidence whatsoever of this element.

Accordingly, the conviction and sentence are reversed, and the case is remanded with instructions to grant a judgment of acquittal.

REVERSED.


author: WATSON, Justice. LEMMON, Justice,

text:
    STATE of Louisiana v. William JACKSON.
    No. 67405.
    Supreme Court of Louisiana.
    Oct. 6, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Thomas Chester, Asst. Dist. Atty., for plaintiff-relator.
    Thomas Mull, Orleans Indigent Defender Program, New Orleans, for defendant-respondent. •
   WATSON, Justice.

Defendant, William Jackson, was convicted by a jury of attempted crime against nature on May 26, 1976. At a multiple offender hearing, represented by counsel, Jackson admitted to being the same William Jackson who was convicted of felonies in 1969, 1972, and 1973. As a fourth offender, Jackson was sentenced to twenty years at hard labor.

Defendant filed a motion for correction of an illegal sentence, alleging that the court which accepted his guilty plea on December 22, 1969, did not comply with the requirements of Boykin v. Alabama, 395 U.S 238, 89 S.Ct. 1709. 23 L.Ed.2d 274 (1969). The trial court treated the motion as an application for a writ of habeas corpus, and ordered a hearing. At the eviden-tiary hearing, the State failed to show that the prior pleas had been obtained in compliance with Boykin. The multiple bill was quashed, and the sentence vacated. Defendant was resentenced to two and one-half years at hard labor. A writ of certio-rari was granted to the State.

Defendant was represented by counsel at the multiple offender hearing. Since no objection was made to consideration of the prior pleas, the issue of Boykin compliance when those pleas were made was waived. State v. Jefferson, 379 So.2d 1389 (La., 1980); State v. Holden, 375 So.2d 1372 (La., 1979). The trial court erred in requiring the State to prove that Boykin was followed when the previous pleas were entered.

For the foregoing reasons, the sentence is vacated, and the matter is remanded for resentencing.

REVERSED AND REMANDED.

DIXON, C. J., dissents.

LEMMON, J., concurs and assigns reasons.

LEMMON, Justice,

concurring.

The contemporaneous objection rule of C.Cr.P. art. 841 is, by its terms, basically a pre-verdict device, and I am disinclined to apply it in a multiple offender hearing. Nevertheless, the prosecution fulfilled its burden at the original hearing by proving that the convictions had been obtained, after defendant had failed to call the validity of the convictions into question. Because of this failure, defendant is now relegated to post-conviction relief, at which he will have the burden of proving the invalidity of the convictions because of the absence of counsel or the lack of required Boykinization.


author: DIXON, Chief Justice.

text:
    STATE of Louisiana v. Henry F. DAVIS.
    No. 67668.
    Supreme Court of Louisiana.
    Oct. 6, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Joseph W. Browning, Asst. Dist. Atty., for plaintiff-relator.
    William Noland, New Orleans, for defendant-respondent.
   DIXON, Chief Justice.

On application of the state, writs were granted to review the district judge’s pretrial ruling denying the state’s request to introduce evidence of other crimes to prove that the defendant committed the offense in this case. The trial judge seemed to base his ruling on the belief that evidence of other criminal acts is inadmissible except in prosecutions for crimes requiring proof of specific intent.

This court has previously sanctioned the use of other crimes evidence to prove identity of the perpetrator through use of system. See State v. Moore, 278 So.2d 781 (La. 1972). The threshold requirement for admissibility is that the instant crime and the other offenses constitute “signature crimes.” This requirement is satisfied if the “modus operandi of the [other] offenses is so peculiarly distinctive that one must logically say that they are the work of the same person, i. e., they are ‘signature crimes.’ ” State v. Mitchell, 356 So.2d 974, 979 (La. 1978). See State v. Dickinson, 370 So.2d 557 (La. 1979); State v. Lewis, 358 So.2d 1285 (La. 1978); State v. Gaines, 340 So.2d 1294 (La. 1976). The similarity of the instant crime to the other offenses sought to be introduced is not disputed.

Defendant Henry Davis is charged with aggravated battery. He is alleged to have shot his victim in the right hip with a pellet gun as she and a friend were walking past his car in the vicinity of the girls’ high school. The instant crime and the other offenses are alleged in the state’s brief to have the following facts in common:

“. .. the defendant drove the same car and cruised about looking for his victims. The defendant used the same unusual weapon, a pellet gun. The three other victims and the girl in the instant case are school girls victimized while in the area of their schools. Each of the injured victims was wounded in the same area, their right hips. . . . ”

Here, a finding that the crimes are “signature crimes” is not, by itself, determinative of admissibility, for it is also necessary that the other offenses be relevant to a real issue, such as identity.

In oral argument before this court defense counsel has contended that identity will be an issue in every case except where defendant admits doing the act but denies the existence of the requisite criminal intent. This contention overlooks the fact that this court has required that “the ‘matter in issue’ must be real and genuine, and not one which the prosecution conceives to be at issue merely because of the plea of not guilty.” State v. Moore, supra, at 785, on rehearing. In State v. Jackson, 367 So.2d 353, 355 (La. 1979), this court disallowed the use of other crimes evidence to prove identity because the victim had identified the defendant “without reservation” and the defendant had “adduced no evidence seriously contesting this identification testimony.” See also State v. Herman, 358 So.2d 1282 (La. 1978); State v. Frentz, 354 So.2d 1007 (La. 1978); State v. Clark, 338 So.2d 690 (La. 1976).

One of the guidelines enunciated by this court in State v. Prieur, 277 So.2d 126, 130 (La. 1973), is that:

“Prerequisite to the admissibility of the evidence is a showing by the State that the evidence of other crimes is not merely repetitive and cumulative, is not a subterfuge for depicting the defendant’s bad character or his propensity for bad behavior, and that it serves the actual purpose for which it is offered.”

See State v. Showers, 359 So.2d 104 (La. 1978); State v. Nelson, 357 So.2d 1100 (La. 1978); State v. Ledet, 345 So.2d 474 (La. 1977).

If the identity of the perpetrator of the offense in this case is a real. issue, the evidence that this defendant committed the other “signature” offenses would be relevant to prove that he is the offender in this case.

Because of the trial court’s ruling at the hearing previously held in the instant case, the state was not allowed to demonstrate the admissibility of the other crimes evidence. For the foregoing reasons, the ruling of the trial court is vacated, and the case remanded for a new hearing not inconsistent with this opinion to determine: (1) Is identity of the offender a real issue? and (2) Is there clear and convincing evidence that defendant committed the other offenses?

Reversed and remanded.

      . Defense counsel argued before us that the other crimes evidence, if admitted, would be “too probative” and therefore “too prejudicial.” In a sense, all relevant evidence is prejudicial, because, in order to be relevant, that evidence must either tend to show or to negative the commission of the crime. R.S. 15:441. See also McCormick on Evidence, § 185, at 439 n.31 (Cleary ed. 1972). The higher the probative value of the evidence, the more likely that that evidence will prejudice the jury against the defendant’s presumed innocence. When other crimes evidence is admitted to prove identity, the jury will likely infer from defendant’s involvement in the other crimes that he is the perpetrator in the instant case. This is the intended inference and the purpose for which the evidence is introduced. The probative value of the other crimes evidence is determined in part by the similarities of the offenses and in part by the strength of the identification evidence implicating defendant as the perpetrator of the other offenses. These factors, which bear upon weight, have been elevated to requirements of admissibility in order to safeguard the defendant’s right to a fair trial. Thus, in order to be admissible, the other offenses must constitute “signature crimes” and the evidence of identity must be clear and convincing. The greater the similarities and the stronger the identification evidence, the higher the probative value of the other crimes evidence, and the more likely that the jury will draw the desired inference. This ordinarily means that the jury will be prejudiced against the defendant’s presumption of innocence. Undue prejudice means that the jury’s tendency to disbelieve defendant’s innocence is based not on the probative value of the other crimes evidence, but on the heinous or inflammatory nature of the other crimes evidence. Exclusion of relevant evidence because of undue prejudice is a determination that “the emotions of the jury will be excited to irrational behavior, and that this risk is disproportionate to the probative value of the offered evidence.” Trautman, Logical or Legal Relevancy-A Conflict in Theory, 5 Vand.L.Rev. 385, 410 (1952). See generally Comment, Other Crimes Evidence at Trial: Of Balancing and Other Matters, 70 Yale L.J. 763 (1961). Evidence of other crimes by the defendant should not be admitted, even if probative, if the other crimes evidence would likely inflame or arouse the jurors, or create such an attitude in their minds, that they probably could not accord the defendant a fair determination of his guilt, believing that, if he had committed the other crimes, he should be punished (again) regardless of his guilt of the offense for which he is on trial.


text:
    STATE of Louisiana v. Gregory DANIELS.
    No. 80-K-2269.
    Supreme Court of Louisiana.
    Oct. 9, 1980.
   In Re: Gregory Daniels, applying for writs of certiorari, mandamus, prohibition, and stay order, Parish of Orleans, Number 275-425.

Writ granted.

The legislature by Act 537 of 1980 has amended articles 844, 845 and 919 of the Code of Criminal Procedure to provide mandatory time limits for the setting of the return day, the written designation of assignments of error, the furnishing of the transcript, and the filing of the assignments of error.

The Order of Appeal dated September 23, 1980 in this case violates these mandatory time limits, in that the time fixed for filing the assignments of error was five days (plus a weekend) from the date of the notice of appeal, instead of “not later than five days prior to the return date.” (C.Cr.P. 844).

The return day and deadline for filing the assignments of error in the above captioned order are hereby vacated, and the district court is ordered to adhere to the following timetable:

The return day is set for December 8, 1980, sixty days from the date of this order;

The defendant shall designate in writing the portion of the record to be lodged by October 14, five days from the date of this order;

The transcript of the portion of the record designated by defendant shall be furnished to him by November 24,1980, fifteen days prior to the return day; and

The assignments of error shall be filed by December 3, 1980, five days prior to the return day.


author: LOTTINGER, Judge.

text:
    Lucille DIXON v. RUBY’S, INC. et al.
    No. 13481.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 4, 1980.

      Alex W. Wall, Baton Rouge, for plaintiff-appellant, Lucille Dixon.
    Ben Louis Day, Baton Rouge, for defendants-appellees, Ruby’s, Inc., Aetna Cas. & Sur. Co.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   LOTTINGER, Judge.

This is a workmen’s compensation suit. The plaintiff appeals from a trial court judgment denying compensation.

There is no question that the plaintiff, Lucille Dixon, suffered a work related accident when she slipped and fell while working as a cook at Ruby’s, Inc. Likewise, there is no question that the plaintiff is presently disabled from pursuing gainful employment. The sole issue on appeal is whether the plaintiff’s disability is causally related to the accident she suffered while working at Ruby’s.

The plaintiff had just begun her morning shift on November 11, 1977, when she slipped and fell on the concrete floor in Ruby’s kitchen. The plaintiff was helped from the floor by several of her co-workers, one of whom testified that the plaintiff was in shock and pain. The plaintiff completed her work shift, which lasted until 2:00 that afternoon, but called in sick for the evening shift. She checked herself into the emergency room of Baton Rouge General Hospital, where she was treated for injuries to her back, right elbow and left leg.

On November 12, 1977-the day after the aecident-the plaintiff visited Dr. A. K. Fleet, who diagnosed her problems as a severe lumbosacral strain and severe contusion of the buttocks, right elbow and left leg. She was treated by Dr. Fleet through January of 1978, when she was referred to Dr. Steven Wilson, an orthopedic surgeon. Dr. Wilson treated the plaintiff during the six month period between January 27, 1978 and July 27, 1978, but this doctor made no notations on his medical reports of a disabling knee injury. In fact, Dr. Wilson found that the plaintiff had a good range of motion in all of the joints, and he told her that she could return to work. As a result of Dr. Wilson’s examinations and reports, Aetna Casualty and Surety Company discontinued compensation payments on August 18, 1978.

The plaintiff first saw Dr. F. C. McMains, an orthopedic surgeon, on October 31, 1978, Dr. McMains diagnosed a disabling contrac-ture of the left knee, and he testified that Mrs. Dixon’s complaints and his physical findings were consistent with the type of fall suffered by the plaintiff. He testified' that absent any intervening trauma, the physical disability suffered by Mrs. Dixon was in all probability related to the slip and fall accident. However, when confronted with Dr. Wilson’s reports which made no indication of any knee injury, Dr. McMains agreed with defense counsel that there may be some reasonable question as to whether the plaintiff’s knee problem resulted from the accident or from some other intervening cause.

Dr. McMains also testified that Mrs. Dixon more likely than not would have favored her left leg or kept it in a flexed position from the time of the fall if she had suffered the knee injury at that time. While x-rays taken on Mrs. Dixon’s leg did not show any evidence of an arthritic problem, Dr. McMains agreed with defense counsel that the best diagnostic tool for detecting arthritis is an arthroscopy, which had not been performed. None of the plaintiff’s coworkers who testified at trial could recall the plaintiff complaining of pain in her left leg, although the plaintiff did complain of some pain in other parts of her body.

The trial court found that the plaintiff failed to prove by a preponderance of the evidence that her disability resulted from a work related accident. He therefore denied compensation benefits, but allowed $247.00 in past medical costs. He assessed expert witness costs of $50.00 for Dr. Fleet and $75.00 for Dr. McMains against the plaintiff.

The plaintiff argues strenuously on appeal that a well settled presumption in our workmen’s compensation law should apply to this case. On numerous occasions, our Supreme Court has held that a claimant’s disability is presumed to have resulted from an accident if the injured person was in good health before the accident and the symptoms of the disabling condition appear after the accident and manifest themselves continuously afterwards, providing there is a reasonable possibility of causal connection between the accident and the disabling condition. Lindsey v. H. A. Lott, Inc., 387 So.2d 1091 (La.1980); Haughton v. Fireman’s Fund American Ins. Companies, 355 So.2d 927 (La.1978); Lucas v. Insurance Company of North America, 342 So.2d 591 (La.1977).

The unrebutted evidence in the case at bar shows that the plaintiff was in good health prior to the work related accident and that disabling knee and back pain appeared immediately after the accident. The fact that the plaintiff’s co-workers do not recall her mentioning specifically an injury to her left leg is not necessarily controlling in this case. We do not find it unusual that the plaintiff did not discuss in great detail every part of her body that was injured as a result of the fall on the day of her accident. The fact that she was treated for left knee pain in the emergency room at Baton Rouge General Hospital and for left knee pain by Dr. Fleet on the day following the accident is sufficient in our minds to support the conclusion that a disabling condition of the left knee appeared immediately after the accident.

More troublesome, however, is the requirement that the symptoms of the disabling condition must manifest themselves continuously after the accident. As noted above, Dr. Wilson, the second physician who treated Mrs. Dixon some 2V2 months after the accident, did not detect any problem with Mrs. Dixon’s left knee for the entire six month period during which he treated her. He found, instead, good range of motion in all the plaintiff’s joints, and he commented in a January 8,1979, letter to Aetna that “it would seem hard to relate the difficulty with her left knee to her accident in 1977.” On the other hand, two other doctors testified that there was a reasonable possibility of causal connection between the accident and the disabling condition, though one of them admitted that the possibility of causal connection would be diminished if the findings of Dr. Wilson were true.

Under the circumstances of this case, we find that plaintiff’s proof, buttressed by the well established presumption in our law, preponderates in favor of her receiving workmen’s compensation benefits. There is no question that Mrs. Dixon was injured on the job and suffered a left knee injury as a result of her fall. While the left knee injury may not have continuously manifested itself during the six month period Mrs. Dixon was treated by Dr. Wilson, other injuries associated with her fall continuously manifested themselves during the treatment by Dr. Wilson, and the evidence shows that the left knee injury more likely than not resulted from the fall in this case. Additionally, there was no evidence whatsoever to show that any intervening incident caused the knee problems Mrs. Dixon presently suffers. We must therefore reverse the trial court’s decision denying compensation. According to Dr. McMains, plaintiff’s inability to straighten her knee renders her disabled from performing her usual job activities. The doctor was of the opinion that this condition is permanent. Necessarily, then, Mrs. Dixon is declared totally permanently disabled. We will remand this case for the purpose of fixing the amount of the compensation award, subject to any credit.

Therefore, for the above and foregoing reasons, the judgment of the trial court is reversed, and judgment is rendered in favor of plaintiff, Lucille Dixon, declaring her totally and permanently disabled. This case is remanded for further proceedings consistent with the views expressed herein. Defendant-appellee is to pay all costs.

REVERSED, RENDERED IN PART AND REMANDED.


author: SAMUEL, Judge.

text:
    Margaret Norman, wife of/and John H. MUSSER, IV v. MERCY ACADEMY, Sister Mary Henry, and the Religious Sisters of Mercy.
    No. 11041.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 9, 1980.
    Baldwin & Haspel, John A. Hollister, Me-tairie, and Monica T. Surprenant, New Orleans, for plaintiffs-appellees.
    Henican, James & Cleveland, C. Ellis Henican, Jr., New Orleans, for defendants-appellants.
    Before SAMUEL, REDMANN and SAR-TAIN, JJ.
   SAMUEL, Judge.

Plaintiffs, a teacher and her husband, instituted this suit for a temporary restraining order, a preliminary injunction, and a permanent injunction (the suit seeks only injunctive relief) against Mercy Academy, its principal, and the Religious Sisters of Mercy to prevent defendants from hiring a teacher to fill the position held by Mrs. Musser, the plaintiff wife.

Following trial there was judgment in favor of plaintiffs, permanently prohibiting the defendants from hiring or attempting to hire any replacement for Mrs. Musser, ordering her reinstatement, and directing the parties to submit to binding arbitration. Defendants have suspensively appealed from that judgment.

Mrs. Musser, a secondary school English teacher, signed a contract of employment with Mercy Academy, represented by its principal, Sister Mary Henry, for the school year beginning August 22,1979 at an annual salary of $9,750.

The contract did not specify the specific subject or subjects or the number of classes to be taught, but listed the duties as follows:

“DUTIES. The Teacher shall perform all duties and services of a teacher faithfully and satisfactorily at such time, place and under such conditions as may be prescribed by the Principal of said school.”
The contract also provided:
“In the event that the Teacher is unable to perform all or substantially all of his/her duties under this agreement because of reasons of health, either physical or mental, or for any other reason, this agreement will be, ipso facto, null and void ...”

Shortly before the fall term opened, the principal called Mrs. Musser to tell her she would be expected to teach five English classes because one of the other English teachers had resigned and the remaining teachers would each absorb one extra class.

Mrs. Musser had been scheduled to teach four classes, but this was a matter of schedule and not contract. After talking the matter over with her husband, she decided she could not do her best with such a workload, and so informed the principal. The principal, who did not consider the workload excessive, or the teacher poorly remunerated in view of the fact that she was to receive a $2,000 increase over her previous year’s salary, felt that if Mrs. Musser could not perform the duties assigned, the school would have to look for another teacher. Mrs. Musser refused the five class assignment, and the academy sought a replacement. This injunctive suit followed.

Although appellants make several contentions which have merit, we prefer to base our decision on the procedural matter of injunctive relief, and therefore find it unnecessary to discuss those contentions.

As provided in pertinent part by Code of Civil Procedure Article 3601:

“An injunction shall issue in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by law;”

Thus, irreparable injury for which an injunction will lie is that for which an injured party cannot be compensated in money damages, or for which damages cannot be measured by a pecuniary standard; absent a showing of irreparable injury injunction is an inappropriate remedy.

The question presented is whether plaintiffs will suffer irreparable injury, loss or damage in the absence of injunctive relief. We are satisfied they will not. In the event defendants have breached their contract with Mrs. Musser, plaintiffs have an adequate remedy to recover loss of salary and any other damages without the injunc-tive relief sought by them; those damages can be compensated in money and can be measured by a pecuniary standard. They are not entitled to injunctive relief.

For the reasons assigned, the judgment appealed from is reversed, and it is now ordered that the injunction herein issued be cancelled and dissolved and that plaintiffs’ suit be dismissed. All costs in both courts are to be paid by plaintiffs.

REVERSED.

      . Service on the Religious Sisters of Mercy was not made at the request of plaintiffs, and that defendant does not appear elsewhere in this suit.

      . Although not a part of the judgment, in his Reasons for Judgment the judge stated that, if in the future the parties should terminate their relationship, the academy would provide “a reasonable recommendation to Mrs. Musser attesting to her abilities and loyalties as a sincere, dedicated and conscientious teacher”.

      . For example, appellants contend: It was error for the trial court to grant a permanent injunction on a hearing for a preliminary injunction; the only injunction which could have been issued was a preliminary injunction which requires a bond, and no bond was set or furnished; the contractual provision requiring arbitration was restricted to dismissal for professional incompetence, and there is no question of incompetence here.

        . Greenberg v. DeSalvo, 254 La. 1019, 229 So.2d 83; Pennington v. Drews, 209 La. 1, 24 So.2d 156; Wood v. Gibson Construction Company, La.App., 313 So.2d 898; Danzie v. Ruthland, La.App., 232 So.2d 303; McBride v. Duckworth, La.App., 232 So.2d 122.


text:
    Melvin Bertney COULON v. Patsy Berry COULON, his wife.
    No. 11238.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 9, 1980.
    Glenn E. Diaz, Chalmette, for plaintiff-appellee.
    Mary Beoubay Petruccelli, Arabi, for defendant-appellant.
    Before SAMUEL, BOUTALL and BARRY, JJ.
   SAMUEL, Judge.

This rule to decrease payments for the support of two children was brought by the father against his former wife. The wife then brought a rule to increase.

The original award of $65 per week was set in 1973 when the children were 15 and 10 years old, respectively. The father continued to pay this sum until the older child graduated from college at age 21. The mother concedes the father is no longer required to support that child. Her rule is based upon the fact that the needs of her daughter, now age 16, have increased, as has the father’s ability to pay.

Following trial the rule to increase was dismissed, and judgment was rendered in favor of the father reducing the award to $55 per week. The mother has appealed.

The obligation to support one’s children is imposed by Civil Code Article 227 which provides:

“Fathers and mothers, by the very act of marrying, contract together the obligation of supporting, maintaining, and educating their children.” LSA-C.C. Art. 227.

The support due is further explained by Civil Code Articles 230 and 231, as follows:

“By alimony we understand what is necessary for the nourishment, lodging and support of the person who claims it.
It includes the education, when the person to whom the alimony is due, is a minor.” LSA-C.C. Art. 230.
“Alimony shall be granted in proportion to the wants of the person requiring it, and the circumstances of those who are to pay it.” LSA-C.C. Art. 231.

At the present time the mother earns $500 per month or $6,000 per year and has interest income of $1,200 per year, a home with no mortgage, a paid for automobile, and $8,000 in savings. She finds it necessary to withdraw money from savings to pay her automobile insurance when it becomes due.

She itemized her joint expenses as $1,000.74 per month and that attributable to the child as $476 per month. With her net salary of $414.60, plus $281 child support plus $100 interest ($1,200 per year), she has approximately $795.60 to meet her monthly expenses.

On the other hand, the husband earns $23,700 per year, his present wife earns $12,500 per year, and they have interest income of $2,281 per year. He saves $75 every two weeks in the credit union. Thus, the total income of his second community from all sources is $38,481 per year.

It is the father’s position that the needs of the child do not exceed $110 per month, of which he is obligated to pay one-half, and the mother has a reciprocal obligation to pay the other one-half, so that the $55 award actually is more than he should be required to pay.

While the mother admits she has an obligation along with the father to support her minor daughter, she urges that she cannot contribute equally because of the disparity of their respective incomes. The jurisprudence supports that position. As stated in Fellows v. Fellows, La.App., 267 So.2d 572:

“... we will establish a parity of obligations between the husband and the wife reasonably in accord with their respective financial abilities.” (Emphasis ours).

This court has previously held that the income of a second wife is to be considered in determining the husband’s obligation, to support children of his first marriage.

Appellant itemized the monthly expenses of the child as follows:

Food and Groceries . $162.50
Electricity and Gas. 37.50
Water. 3.00
Telephone. 6.50
Medical (Doctor) . 5.00
(Dentist). 5.00
Insurance (Automobile). 15.00
(House). 15.00
(Flood). 1.00
Home Maintenance . 25.00
Auto Maintenance .••. 12.50
Automobile Operation, Gas . 30.00
Haircuts. 3.00
School Expenses (Lunches). 13.00
(Books and Supplies). 5.00
Clothing (New). 40.00
Personal Items (Cosmetics) . 5.00
Recreation (Skating, etc.) . 28.00
Allowance. 30.00
Gifts and others. 5.00
Miscellaneous. 5.00
Vacation (Every two years). 25.00
Total . $476.00

We are impressed with the reasonableness of this itemization, particularly in view of the fact that the daughter is a 16 year old teenager whose expenses normally would increase substantially from her needs as a 10 year old, when the support was originally set in 1973.

Considering the needs of the child, the totality of the circumstances of the parties, their respective abilities to contribute to the support of the child, and the mutuality of the obligation to support, we feel the judgment directing the father to pay $55 per week is inadequate.

The mother’s income is substantially less than that of the father and we recognize that she is also contributing an important intangible, i.e., the full responsibility for the child on a daily basis while the father has the child for only one weekend per month. The mother is also providing shelter for the child, for which she asks only minimal recompense for home maintenance and insurance.

We are of the opinion that the award should be increased from the sum of $55 per week to the sum of $80 per week.

For the reasons assigned, the judgment appealed from is affirmed in part, amended in part, and reversed in part. Accordingly, it now ordered that the defendant in rule, Melvin Bertney Coulon, be condemned to pay to plaintiff in rule, Patsy Berry Coulon, Eighty ($80.00) dollars per week for the support and maintenance of the minor, Linda Kay Coulon. It is further ordered that the rule to decrease filed by Melvin Bertney Coulon be dismissed. In all other respects, the judgment is affirmed.

AFFIRMED IN PART; AMENDED IN PART; REVERSED IN PART.

      . When the award was set in 1973 the mother earned $4,000 per year and the father earned $14,000.

      . See also Marcus v. Burnett, La., 282 So.2d 122; LeBouef v. LeBouef, La.App., 325 So.2d 290.

        . Marcus v. Burnett, supra, note 2; Fazzio v. Kreiger, 226 La. 511, 76 So.2d 713; Finley v. Finley, La.App., 305 So.2d 654; Vaughn v. Vaughn, La.App., 286 So.2d 416.


text:
    Spencer G. WALL v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 11345.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 9, 1980.
    Rehearing Denied Oct. 16, 1980.
    Writ Refused Dec. 5, 1980.

      Wilfred H. Boudreaux and Kermit Frym-ire, New Orleans, for plaintiff-appellee.
    James Maher, III, New Orleans, for defendant-appellant.
    Before SAMUEL, REDMANN and SCHOTT, JJ.
   SAMUEL, Judge.

The sole issue before us is the quantum of a jury award for damages resulting from a rear end collision. Plaintiff was awarded $2,000 for personal injuries and $96,000 for past and future loss of income. Both litigants have appealed. While not questioning the award for loss of wages, plaintiff contends the award for personal injuries is inadequate. Defendant does not contest the award for personal injuries, but contends the award for loss of income is excessive.

The Injury

Testimony pertinent to personal injuries was given by plaintiff, his wife, and the following medical experts: Dr. Philip Rabi-to, plaintiff’s family physician, Dr. Stuart Phillips, an orthopedic surgeon, who testified on behalf of plaintiff, and Drs. Harold Stokes and G. Gernon Brown, orthopedic surgeons who testified on behalf of defendant.

Plaintiff, who was 55 at the time of trial, testified: On May 10, 1976, while stopped for a light on South Claiborne Avenue near the Poydras off ramp in the City of New Orleans, his vehicle was struck from behind by a defendant bus. His head snapped back and his face was turned up to the roof of the car. He was stunned and felt pain in the neck from the base of the skull to the shoulders, upper back and right arm. He went from the scene to a hospital emergency room, where x-rays were taken. He was advised to consult his personal physician. That afternoon he saw Dr. Rabito who treated him. The therapy helped and he improved under the doctor’s care. He was out of work from the date of the accident until some time the following month.

In the middle of August he had a flareup. He did not return to Dr. Rabito but went to Dr. Phillips, a surgeon recommended by his attorney. Dr. Phillips treated him thereafter.

Plaintiff’s principal employment was with the Community Improvement Agency, for whom he makes construction inspections of residential property and evaluations and recommendations for repairs. In addition to his principal job he is a self-employed construction contractor on evenings and weekends.

At the time of trial he complained of stiffness in his neck, right arm and shoulder. He was discharged from the Community Improvement job but the discharge was not related to the accident. He had appealed the decision to the Civil Service Commission, which upheld the agency, and the matter is now on appeal in the courts. Plaintiff would like to return to his job with the agency and feels he could manage the work, but he could not do full time construction work. He has not sought other employment, awaiting the outcome of his suit for reinstatement.

Mrs. Wall testified that after the accident her husband seemed to be in constant pain and is restless at night. He goes to work but comes home in distress, uses traction regularly and rests frequently.

Dr. Rabito testified he saw plaintiff on the date of the accident, took a history and performed an examination based on plaintiff’s complaints of soreness in the upper and lower cervical and dorsal areas. Muscle tenderness and spasm were found. The doctor concluded plaintiff had a cervical strain. Treatment consisted of analgesic compound, muscle relaxants, moist heat applications. He was seen again May 14, 21, 28, and was discharged on May 28. He had received ten ultrasound and wet pack treatments. The doctor concluded plaintiff had received maximum benefits from treatment and would continue to improve. There was no evidence of a nerve or disc injury and residual impairment was not anticipated.

The next physician to see plaintiff was Dr. Stokes, defendant’s orthopedic specialist, who examined him on August 3, 1976. Plaintiff stated he was much improved but still had soreness in the neck, back and right shoulder. He denied numbness or tingling in the arms and legs. No muscle spasm was noted and there was normal range of motion with no apparent discomfort. At this time there was no evidence of a serious disorder or clinical evidence of nerve root compression or irritation; the patient was back at work and his symptoms were subsiding. The doctor concluded plaintiff may have sustained a cervical and dorsal spine strain as a result of the accident.

Plaintiff was next seen by Dr. Stuart Phillips, who testified: He first saw plaintiff on October 19, 1976 (five months after the accident). He took a history and performed a routine orthopedic examination. At that time plaintiff complained of low level pain in his neck, radiating into his right arm. The doctor associated this with paresthesia, i. e., if a nerve is injured numbness and tingling are noted. Plaintiff stated his symptoms were worse with activity and better with rest. The doctor considered this important because it is typical of a ruptured disc, which he felt plaintiff had. No muscle spasm or muscle weakness was noted, but there was a decrease in the right tricep reflexes as compared to the left. X-rays of the cervical spine taken at this time showed a straightening of the cervical curve.

The doctor diagnosed plaintiff’s injuries resulting from the accident as an injury to the nerve between the sixth and seventh cervical vertebrae. The symptoms are common (intermittent pain, worse with activity, radiating to the arm, and pain associated with numbness and tingling) in a patient with an irritated nerve in the neck from a ruptured disc. He concluded Dr. Rábito had treated the patient properly because the symptoms were low grade and were not exacerbated when he was seen.

Plaintiff was next seen by Dr. Phillips on November 16, at which time he was placed on cervical traction at home. When seen on December 4, plaintiff was almost well. However, he returned January 14, 1977 with complaints of pain radiating into his arm, but no neck complaints. Increased activity was recommended. On February 25, plaintiff had a normal examination and complained of only occasional symptoms. He was ordered to discontinue traction and increase his activities.

On March 25, following the discontinuation of traction, plaintiff’s symptoms returned. The doctor noted spasm and limitation of the neck along with absent reflex. Plaintiff stated he had good and bad days, which is compatible with a ruptured disc.

On November 22, 1978 plaintiff returned to be checked. He said he experienced intermittent pain in his neck and right shoulder. Some spasm and limitation were noted. The doctor concluded plaintiff could learn to live with the problem and therefore did not advise surgery. Initially he was of the opinion plaintiff had a sprain while under Dr. Rabito’s care, but instead of healing, it progressed to a disc injury. The difference in symptoms between a cervical sprain and a ruptured disc is determined by the presence or absence of evidence of nerve injury. The fact that plaintiff had pain running into his arm indicated the pain was due to an irritated nerve in his back.

Dr. Phillips testified if he had seen plaintiff on only one occasion he might have made a diagnosis of sprain, but he was able to see him on a continuing basis, and thus concluded plaintiff had a ruptured disc.

When last seen May 3, 1979 plaintiff still had intermittent symptoms and pain radiating into his right arm. The doctor measured plaintiff’s arms and found the right arm smaller than the left arm, which is distinctly abnormal for working people. He had spasm, limited motion of the neck and muscle atrophy in his arm. Atrophy is caused by disuse. When something hurts we don’t use it, or if it is paralyzed we can’t use it.

The long term treatment is continued use of traction. Plaintiff could return to work but not on a continuous basis because his pains are intermittent and relieved by rest. The doctor stated plaintiff could work as a housing inspector. However, if he has to move his neck to look up for long periods and be active his symptoms will recur and at that point the best treatment is traction and rest. If plaintiff works as a paperhanger, carpenter and painter on a 40 hour per week basis he will have pain intermittently. He has learned to live with it and surgery is a real risk the doctor usually reserves for patients who are in greater distress.

Dr. Gernon Brown examined plaintiff on two occasions, January 26,1977 and May 17, 1979. Plaintiff complained of intermittent trouble with his neck and a history of pain in the upper right extremity. X-rays were requested, but the patient refused so the doctor reviewed the prior x-rays taken by Dr. Phillips. He found no fracture or dislocation, or objective evidence of any injury, but based upon the history the doctor concluded plaintiff had sustained strain in the cervical spine. There was no clinical evidence of a herniated intervertebral disc, or evidence of a preexisting condition and the doctor felt plaintiff could perform his former duties. He was under the impression plaintiff was working at the time of this examination.

On May 17,1979 plaintiff still complained of trouble with his neck, tingling in the right hand, numbness in the big toe and back problems. The doctor concluded plaintiff could do any work he had previously done including carpentry and paperhanging.

Thus, with the exception of Dr. Phillips, all of the other doctors concluded plaintiff sustained a cervical and dorsal strain related to the accident but of brief duration.

Loss of Income

At the time of the accident plaintiff was employed by the Community Improvement Agency as an inspector. His duties involved making construction inspections of residential property and evaluations and recommendations for repairs. He uses measuring devices, flashlights and ice picks to make a complete inspection from the roof down or the ground up. Following such inspections he returns to his office and makes a written report on a room to room basis, including recommendations and cost analysis. His earnings from this job amounted to $11,830.29 in 1975 and $12,-095.64 in 1976 (the year of the accident), and from January 1 through April 15, 1977, when he was laid off for reasons unconnected with this accident, he earned $4,065.37.

In addition to his principal job plaintiff was a self-employed contractor on evenings and weekends. In 1975 he earned a profit of $943 from self-employment, $1,044 in 1976, $1,479 in 1977 and $1,050 in 1978.

Plaintiff was dismissed from Community Improvement on April 15, 1977 for unsatisfactory service relative to failure to keep appointments, absence without approved leave, and unsatisfactory service on March 31, 1976 and March 30, 1977. (The specific charges for the unsatisfactory ratings were detailed in both instances.)

We note in 1975 (preceding this accident) his employer indicated plaintiff’s assignments were not completed timely, his work was careless, he had a negative attitude toward his supervisor and project officer, he failed to follow orders, failed to properly document his time out of the office, and failed to keep appointments with clients.

Dr. Seymour Goodman, an economist, testified relative to loss of wages. He assigned plaintiff a 10.7 year work-life expectancy. He stated past wage loss from date of injury to date of trial, after allowing for taxes, would be $24,609 and that future loss of wages, after discounting and allowing for deduction for taxes, would be $70,637.54.

The computation of future lost wages was based upon the difference between the minimum wage and plaintiff’s wages with Community Improvement after applying the inflation rate to the CIA wage, and predicted increases in the minimum wage rate, applying the income tax rates to these projected differences and reducing that figure to present value.

The jury apparently accepted the figure of $70,637.54 for future loss of wages, adding that to past loss of wages of $24,609, which gave a total of $95,246.54. It rounded this figure to $96,000, which they awarded for loss of wages.

Conclusion

The two jury awards are difficult to understand. It could have believed plaintiff had a ruptured cervical disc, as found by Dr. Phillips, especially in view of the fact that Dr. Phillips was the treating physician and a specialist in the same field as were defendant’s medical witnesses. This could account for the $96,000 award for loss of income since that doctor concluded plaintiff would have intermittent, but low grade, pain in active employment. However, if Dr. Phillips’ testimony is accepted, the $2,000 award for pain and suffering is manifestly inadequate. On the other hand, if the jury believed plaintiff had sustained only a minor cervical sprain, as testified by the defendant’s doctors, the $2,000 award for pain and suffering would be adequate and the $96,000 award for loss of income would be manifestly excessive.

We find merit in the contentions of both parties. In our view, and we feel this requires no further discussion, the award for pain and suffering is manifestly inadequate. And, because of the fact that the plaintiff himself testified he is presently able to perform the work in which he was engaged at the time of the accident, with which his treating physician, Dr. Phillips, agrees, and the fact that he can also perform his prior contracting business, a large part of which he subcontracted to others, we conclude the award for loss of income is manifestly excessive. However, within the limits of our permissible review under the guidelines set by the Supreme Court of Louisiana, the total amount of $98,000 is neither excessive nor inadequate. Accordingly, we affirm.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

      . The judgment also awarded plaintiff $350 property damage and $800 medical expenses.

      . He had several unsatisfactory ratings prior to the accident.

      . However, plaintiff was not off work the entire time from the date of accident to date of trial.

      . See Reck v. Stevens, La., 373 So.2d 498; Lomenick v. Schoeffler, 250 La. 959, 200 So.2d 127; Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149.

      . See Harris v. D'Antoni, La.App., 355 So.2d 1049.


author: BOUTALL, Judge.

text:
    Robert Louis BOOKER v. AVONDALE SHIPYARDS, INC.
    No. 11486.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 9, 1980.

      Law Office of Bendana & Carlton, Orlando G. Bendana, Wayne H. Carlton, Jr., New Orleans, for plaintiff-appellee.
    Fritz Windhorst, Gretna, Delbert G. Talley, New Orleans, for Avondale Shipyards, Inc., defendant-appellant.
    Before BOUTALL and BARRY, JJ., and SARTAIN, Assigned Judge.
   BOUTALL, Judge.

In this Workman’s Compensation suit defendant-employer appeals from a judgment finding plaintiff-employee is totally and permanently disabled, contending the law was improperly applied. We affirm.

Robert L. Booker was injured in an accident on June 17, 1971, while employed by the defendant Avondale Shipyards, Inc. as a painter’s helper. At the time of the accident plaintiff was climbing the side of a ship in order to assist in sandblasting operations. As a result of the premature opening of an air pressure valve by another employee, plaintiff fell 37 feet onto some scrap metal. He suffered facial injuries and severe damage to his left foot.

His initial total disability was apparent and defendant began paying compensation at the maximum rate of $49.00 per week from June 18, 1971 until February 6, 1979. At this time the defendant stopped paying compensation benefits because it learned that the plaintiff was working as a truck driver. Booker then filed this suit to recover workman’s compensation benefits from the date of stoppage to the statutory limits for a total permanent disability.

Under the Workman’s Compensation Law as it existed at the time of the accident, R.S. 23:1221(2) defined total permanent disability as “disability to do work of any reasonable character.” However, as the trial judge noted, the Statute had been judicially interpreted to mean that the worker is totally disabled if he is unable to perform work of the same or similar description that he is accustomed to perform. Futrell v. Hartford Accident and Indemnity Company, 276 So.2d 271 (La.1973); Lindsey v. Continental Casualty Company, 242 La. 694, 138 So.2d 543 (La.1962). The courts had further modified the meaning of the statutory definition by making a distinction between skilled workers and common laborers. Booker’s employment is that of a common laborer. The test applied to a common laborer is that he is “considered as totally and permanently disabled within the meaning of the compensation statute if the injury has substantially decreased his ability to compete with able-bodied workers in a flexible general labor market.” Walker v. Gaines v. Wilson & Son, Inc., 340 So.2d 985 (La.1976); Ball v. American Marine Corporation, 245 La. 515, 159 So.2d 183 (La.1964).

The appellant contends that the proper test is that a manual laborer is not totally disabled if he can return to any gainful employment; that this employee had returned to truck driving, an occupation he had pursued prior to employment at Avon-dale, and hence that plaintiff could no longer be considered totally and permanently disabled.

In his resolution of the case, the trial judge summarized the evidence and announced his findings of fact as follows:

“The treating physician, Dr. Lynn Reid Hamilton, did not testify at the trial: However, his deposition was introduced into evidence. Dr. Hamilton treated plaintiff and saw him periodically from June 16,1971 to March 26,1979. Defendant received a copy of the doctor’s reports after each visit.
“According to the doctor’s deposition, as of March 26, 1976, plaintiff was not capable of doing heavy work and he could not do anything involving heavy lifting prolonged walking or standing, bending, stooping, or straining.
“Furthermore, plaintiff’s wife testified that plaintiff has to soak his foot each night because his foot swells up and that he often stumbles and falls.
“The evidence reflects that defendant stopped paying compensation benefits on February 6, 1979 when it learned that plaintiff was working as a truck driver for Deaton Trucking Co. However, the deposition of Dr. Hamilton shows that plaintiff’s medical condition had not changed appreciably at the time the benefits were terminated.
“This Court believes that plaintiff is totally and permanently disabled within the meaning of the Louisiana Workmen’s Compensation Law.
“Plaintiff testified that he is now driving a truck three days a week in order to support his family. However, both plaintiff and his wife testified that he still suffers pain in his left foot and that it swells up each day, requiring nightly soaking. Furthermore, Dr. Hamilton indicated that plaintiff does have a substantially deformed foot with substantial limitation of motion and that plaintiff’s complaints of pain would not be inconsistent with his findings.”

Our examination of the record convinces us that the trial judge is correct. The facts of this case are more than sufficient to fit plaintiff into the category of total and permanent disability as defined above. Additionally, the facts of this case prove that plaintiff is driving a truck only by suffering substantial pain in order to support his wife and eight children. Our courts have consistently held that an injured workman may be deemed totally disabled within the meaning of the compensation statute if, although he returns to work and performs the ordinary duties of the same occupation or similar occupation in which he was previously engaged, he does so only with substantial pain. Williams v. Hudson East, 261 La. 959, 261 So.2d 629 (1972); Reed v. Calcasieu Paper Co., 233 La. 747, 98 So.2d 175 (1957). Whether pain is substantial enough to be disabling is an issue to be decided by the trier of fact on the basis of the preponderance of the medical and lay evidence. Lucas v. Insurance Co. of North America, 342 So.2d 591 (La. 1977); Williams v. Hudson East, supra. The record proves that this plaintiff suffers from substantial, disabling pain, and he is adjudged totally and permanently disabled.

The only other issue in the case is plaintiff’s entitlement to penalties and attorney’s fees for stoppage of his compensation benefits. The trial court concluded that the termination of benefits was not arbitrary, capricious and without probable cause within the meaning of L.S.A.-R.S. 22:658 and consequently denied plaintiff’s request for penalties and attorney’s fees. We agree.

Although plaintiff was severely limited in his ability to do manual work of any reasonable character over the initial years of his injury, he had improved slowly to the point where the treating physician felt that he could do light work. The degree of pain that a person such as this plaintiff may suffer in using his leg is difficult to fix precisely by objective evidence, and may vary considerably from person to person. These two facts, coupled with the fact that plaintiff was operating a truck making runs between New Orleans and Birmingham and New Orleans and other southern cities, form a sufficient basis to support the trial judge’s finding, and we affirm.

The judgment appealed is affirmed at appellant’s cost.

AFFIRMED.


text:
    Hubert A. FABACHER et al. v. HAMMOND DAIRY COMPANY, INC., et al.
    No. 11562.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 19, 1980.

      Klein & Rouse, Henry L. Klein, New Orleans, for relators.
    Gordon K. Konrad, Metairie, for respondents.
    Before SAMUEL, GULOTTA and GARRISON, JJ.
   SAMUEL, Judge.

Hubert A. Fabacher, Guerre I. Fabacher, Hubert Fabacher, Jr., the Hubert Fabacher, Jr. Trust, and the Guerre I. Fabacher Trust, seek to foreclose by executory process on a collateral mortgage on immovable property in St. Charles Parish, Louisiana. The mortgage had been given in pledge by Hammond Dairy Company, Inc. to secure a hand note by the other defendant, Vicon, Inc. Both the collateral mortgage note and the hand note are dated January 3, 1977 and each is in the original amount of $350,000. The basis for plaintiffs’ suit was Vicon’s default by alleged untimely payment of an installment due on December 3, 1979 under the hand note.

Defendants were not notified of the order directing the issuance of the writ of seizure and sale until after the delay allowed by law for suspensive appeals from such orders. On February 1, 1980 defendants filed a petition for an injunction to arrest the seizure and sale and a reconventional demand seeking $50,000 damages for wrongful seizure. In connection therewith, the trial court issued a temporary restraining order prohibiting the sheriff “from proceeding with the sale of the property ...” and ordering a February 29, 1980 trial on defendants’ request for a preliminary injunction.

On plaintiffs’ motion the trial court continued the hearing on the preliminary injunction to March 10, 1980, and extended the temporary restraining order to that date. On March 7, 1980 plaintiffs filed a general denial to defendants’ petition for injunctive relief. .

The injunction proceeding was tried on March 10,1980, and judgment was rendered on March 11, 1980, refusing to grant the preliminary injunction. On the same day the trial judge granted defendants a sus-pensive appeal and ordered all further proceedings stayed until the appeal had been decided.

On March 11, defendants learned the sheriff planned to proceed with the sale of the property pursuant to the writ of seizure and sale on the next day, March 12. On the morning of March 12, the trial judge denied as “Moot” defendants’ request for an order to cancel the sale of the property on the ground that the sheriff acted illegally by advertising and appraising the property because he was forbidden from so acting by the temporary restraining order issued February 1,1980. On the morning of March 12, plaintiffs filed a motion to dissolve the order of March 11, which granted defendants a suspensive appeal and stay order, and the trial judge set that matter for hearing on the same day. He then rendered judgment revoking the order of suspensive appeal and ordering the sheriff to proceed with the sale of the property on that day.

On the morning of March 12, defendants also filed an application to this court for supervisory writs, and this court ordered the proposed sheriff’s sale cancelled and further proceedings stayed. The record was lodged in this court for defendants’ devolutive appeal shortly thereafter, and we ordered simultaneous argument of the writ and the appeal.

By motion to dismiss, plaintiffs challenge the jurisdiction of this court. They point out this court’s supervisory jurisdiction is limited to matters over which it has appellate jurisdiction, and argue this court has no appellate jurisdiction to hear an appeal from a judgment refusing a preliminary injunction. They further argue there is no right to appeal a judgment denying a preliminary injunction to arrest executory process of a writ of seizure and sale unless a suspensive appeal is taken in limine under C.C.P. Art. 2642.

Article 5, Section 10, of the Constitution of 1974 provides in part that a court of appeal has appellate jurisdiction of all “civil matters decided within its circuit ...” and “... supervisory jurisdiction over cases in which an appeal would lie to it.” Moreover, Civil Procedure Article 3612 provides in pertinent part as follows:

“An appeal may be taken as a matter of right from an order or judgment relating to a preliminary or final injunction, but such an order or judgment shall not be suspended during the pendency of an appeal unless the court in its discretion so orders.
An appeal from an order or judgment relating to a preliminary injunction must be taken and a bond furnished within fifteen days from the date of the order or judgment. The court in its discretion may stay further proceedings until the appeal has been decided.”

This article allows an appeal of right from a judgment “relating to” a preliminary injunction, and it does not restrict appeals only to judgments which grant injunctive relief. It has been held that a judgment denying a preliminary injunction is one “relating to” it within the meaning of Article 3612 so as to allow an appeal of right from such a denial.

The gist of plaintiffs’ argument is that this court has no jurisdiction to hear appeals from denials of preliminary injunctions attempting to stay execution of a writ of seizure and sale, and it has no constitutional authority under Article 5, Section 10, to exercise supervisory jurisdiction over such cases. In support of this argument, plaintiffs cite two lines of cases. The first line stands for the authority that a suspen-sive appeal under Article 3612, even if accompanied by a stay order, only suspends or stays the injunction proceeding during the pendency of the appeal but has no effect whatever on the executory process proceeding. The rationale of these cases is that the stay of the executory proceeding under Article 3612 would allow a suspensive appeal after the time therefor has passed, and would defeat the purposes of executory process. The other line of cases originate from a time when a suspensive appeal from a preliminary injunction was forbidden by law, the courts felt compelled not to exercise supervisory jurisdiction over cases involving such appeals, and it was either stipulated or apparent from the record that a devolutive appeal would be mooted by the sale of the property.

As stated above, Article 3612 of the Code of Civil Procedure provides for, and gives this court jurisdiction over, appeals taken of right from orders or judgments “relating to” preliminary or final injunctions, and the jurisprudence has determined that a judgment denying a preliminary injunction is appealable of right under that article. We conclude, therefore, that injunction proceedings are appealable to this court if decided within our geographical jurisdiction, and consequently we have supervisory jurisdiction over such cases.

The common element of the two lines of cases cited by plaintiffs is the assumption that by the time an appeal is decided by this court, the writ of seizure and sale will have been executed and the matter thereby rendered moot. Such a situation is not now before us, primarily because it appears from the face of the record the sheriff proceeded to advertise and appraise the property in violation of the trial court’s temporary restraining order. This showing alone would justify the exercise of this court’s supervisory jurisdiction. Moreover, plaintiffs do not refer to Utah-Louisiana Invest. Co. v. International Dev., Inc., a companion to a case with an identical name cited by them in support of their argument that this court lacks jurisdiction. In the first Utah-Louisiana case, the court issued a stay order under its supervisory jurisdiction to prevent the sale of property because the appeal on its merits was close to argument, and because the equities of the situation called for a stay order to prevent irreparable injury. The court granted this stay order under its supervisory jurisdiction in the face of an argument based on Hibernia National Bank of New Orleans v. Mary, also urged in the present case by plaintiffs. We thus hold plaintiffs’ argument disputing this court’s supervisory jurisdiction is without merit under the facts of this case.

Plaintiffs also argue that unless a suspensive appeal is taken in limine under Article 2642 this court has no jurisdiction over any appeal from a denial of a preliminary injunction to arrest seizure and sale. This argument also is without merit.

Code of Civil Procedure Article 2642 provides a defendant in executory process may appeal suspensively, may seek injunctive relief, or may pursue both procedural avenues. Article 2752, contained in Chapter 5, “Injunction to Arrest Seizure and Sale”, expressly incorporates into injunctions in defense of executory process the general rules for appeals in injunction proceedings contained in Article 3612.

As stated above, Article 3612 allows appeals from denials of preliminary injunctions, and by incorporating Article 3612 into the special provisions for arresting writs of seizure and sale, the drafters of the Code of Civil Procedure intended to provide for appeals from such denials whether or not the defendants suspensively appealed in limine under Article 2642. Hence, this court has express jurisdiction to hear at least devolu-tive appeals in such matters, and it likewise has the constitutional authority to exercise its supervisory jurisdiction over them.

This conclusion is not res nova. As early as 1931, in American National Bank v. Bauman, the Supreme Court held that former R.S. 13:4062 through R.S. 13:4071, regulating interlocutory injunctive orders, were applicable to injunctive proceedings to arrest seizure and sale in executory process.

On the merits, we hold the trial court committed error by ordering issuance of the writ of seizure and sale.

First, plaintiffs did not offer sufficient authentic evidence to establish their right to use executory process. Such process will not lie in the absence of authentic evidence supporting every link in the chain of evidence necessary to prove a plaintiff’s right to use executory process, no matter can be entertained by the court in pais, and the requirement of authentic evidence is relaxed only to the extent specifically provided by law. Authentic evidence is the very foundation of the action. Such evidence is required for executory process not only to establish (1) the mortgage or privilege on the property sought to be seized and sold, and (2) the amount of the indebtedness sought to be enforced, but also (3) the right of the creditor to enforce the mortgage or privilege by executory process.

While for the purpose of executory process the collateral mortgage note is the “instrument evidencing the obligation secured by the mortgage,” the collateral mortgage note is the security that is pledged to secure another note, usually a hand note, and such hand note is the true debt.

Specifically, Code of Civil Procedure Article 2635 provides as follows:

“The plaintiff shall submit with his petition the authentic evidence necessary to prove his right to use executory process to enforce the mortgage or privilege. These exhibits shall include authentic evidence of:
(1) The note, bond, or other instrument evidencing the obligation secured by the mortgage or privilege;
(2) The authentic act of mortgage or privilege importing a confession of judgment; and
(3) Any judgment, judicial letters, order of court, or authentic act necessary to complete the proof of plaintiff’s right to use executory process.
This requirement of authentic evidence is relaxed only in those cases, and to the extent, provided by law.” (Emphasis added).

The jurisprudence has established proof of the existence of a debt is a necessary link in the chain of evidence. A corollary to this concept is that the existence of a matured and demandable debt is also a link in the chain of necessary evidence to justify executory process.

The hand note given in connection with the collateral mortgage and collateral mortgage note in the present case contains the following provision:

“In the event the maker fails to pay any installment when due, the holder hereof at its option may upon ten days written notice to the maker, hereby declare all installments immediately due and payable.”

This paragraph in the hand note is not an ordinary grace period which expires by the mere passage of time. It requires affirmative action by the holder of the note after failure to timely pay, and the right to accelerate unpaid installments does not arise until this action is taken.

The record contains no authentic evidence that plaintiffs complied with this condition prior to filing suit. Article 2635, above, clearly provides the requirement of authentic evidence is relaxed only as provided by law. Article 2637, Code of Civil Procedure, provides those instances in which evidence need not be authentic. It allows proof “. . . of the breach or occurrence of a condition of the act of mortgage or privilege maturing the obligation ....” by verified petition or affidavit. The condition in the hand note allowing acceleration only after ten days written notice to the maker is not “the breach or occurrence of a condition of the act of mortgage or privilege .. . . ” On the contrary, it is a condition of the note which must be met by the holder as a prerequisite to maturing the installment debt and which the holder must prove by appropriate evidence to establish his right to seek executory process. Since there is no relaxation of the requirement for authentic evidence to establish ten days written notice of maturing, a note authentic evidence of compliance with this condition was mandatory. Plaintiffs’ mere allegation in their verified petition that “plaintiffs exercised their option to mature and make payable the entire remaining principal balance ...” was insufficient without authentic evidence of the notice required by the quoted portion of the hand note.

The hand note’s provision, calling for proof of action by the holder, is analogous to the situation in which a note payable to a named mortgagee is transferred to a third person who in turn institutes execu-tory process to enforce a mortgage securing the note. In such a situation, the transfer and endorsement of the mortgage note to the plaintiff must be evidenced by an authentic act, and the act or a certified copy thereof, must be annexed to the petition to prove plaintiffs’ right to bring executory process.

A second reason why executory process was inappropriate in the present case is plaintiffs’ failure to present to the court a properly certified copy of the corporate resolution authorizing the execution of the collateral mortgage.

Code of Civil Procedure Article 2636 establishes evidence which is deemed authentic for the purpose of executory process. Paragraph (4) of that article reads:

“A copy of a resolution of the board of directors, or other governing board of a corporation, authorizing the execution of a mortgage on its property, certified in accordance with the provisions of R.S. 13:4103.”

Revised Statute 13:4103 in turn provides in part as follows:

“This copy of the resolution shall be certified by either the notary before whom the act was passed, or by the custodian of notarial archives for the parish of Orleans, if the mortgage has been recorded in Orleans Parish, or by the clerk of the district court of any other parish in which the mortgage has been recorded.”

The copy of the corporate resolution attached to the collateral mortgage was not itself certified in any manner. The trial judge decided it was properly certified because the notary certified as “a true copy” the mortgage to which the resolution was attached. We disagree with that conclusion. As we have said, authentic evidence is required to support every link in the chain of evidence necessary for executo-ry process. The corporate resolution by necessity preceded the mortgage and was a separate and distinct link in the chain of evidence. Article 2636 and R.S. 13:4103 are mandatory in their terminology and clearly require the resolution to be certified separately. It cannot attain status of authentic evidence by attachment to another document deemed authentic.

We consequently conclude that the trial judge committed error by ordering the mortgaged property seized by executory process. He further committed error by failing to grant defendants’ prayer for a preliminary injunction.

For the foregoing reasons, the judgment herein is reversed, and it is now ordered that there be judgment in favor of the original defendants and plaintiffs in injunction, Hammond Dairy Company, Inc., and Vicon, Inc., and against the original plaintiffs and defendants in injunction, Hubert A. Fabacher, Guerre I. Fabacher, Hubert Fabacher, Jr., the Hubert Fabacher, Jr. Trust, and the Guerre I. Fabacher Trust, issuing a preliminary injunction restraining and enjoining said original plaintiffs and defendants in injunction and the sheriff of the Parish of St. Charles from proceeding with the sale of the property sought to be foreclosed by this executory process. The matter is remanded to the district court for further proceedings in accordance with law and with the views expressed herein. The original plaintiffs and defendants in injunction are to pay all costs in this court. All other costs are to await a final determination.

REVERSED AND REMANDED.

      . At the time of the execution of the document, Hammond Dairy Company, Inc. was a wholly owned subsidiary of Vicon, Inc. The record indicates the two corporations subsequently merged, with Vicon the survivor.

      . See LSA-C.C.P. Art. 2642.

      . See State Ex Rel. Guste v. City of New Orleans, La., 363 So.2d 678; Ritchey v. Desser, La.App., 199 So.2d 427.

      . Tri South Mortg. investors v. Rozands, La. App., 354 So.2d 669; Utah-Louisiana Invest. Co. v. International Dev., Inc., La.App., 262 So.2d 553; Hibernia National Bank of New Orleans v. Mary, La.App., 167 So.2d 200.

      . Riccabona v. Kearny, 164 La. 844, 114 So. 707; State v. Morgan, La.App., 130 So.2d 868. Plaintiffs also cite Clark v. Town of Mandeviiie, La.App., 100 So.2d 317, based on statutory prohibition of dispensable appeals from denial of liquor licenses.

      . See text accompanying note 3, supra.

      . La.App., 262 So.2d 551.

      . See note 6, supra.

      . La.App., 167 So.2d 200.

      . See note 4, supra.

      . 173 La. 336, 137 So. 54.

      . See Comment (a) to Article 2752, Code of Civil Procedure.

      . Reed v. Meaux, La., 292 So.2d 557; American Budget Plan, Inc. v. Small, La.App., 229 So.2d 190.

      .See Reed v. Meaux, supra, note 13.

      . Cameron Brown South, Inc. v. East Glen Oaks, Inc., La.App., 341 So.2d 450.

      . Baton Rouge Bank & Trust Company v. Subco, Inc., La.App., 306 So.2d 312.

      . American Budget Plan, Inc. v. Small, supra, note 13.

      . See also American Budget Plan, Inc. v. Small, supra, note 13.

      . See LSA C.C.P. Art. 2637.

      . See, for example, Miller , Lyon & Co. v. Cappel, 36 La.Ann. 264. See also Comments to Article 2636, Code of Civil Procedure.

      . See American Budget Plan, Inc. v. Small, supra, note 13.

      . We do not decide the issue raised by the defendants challenging the authentic nature of the copy of the collateral mortgage attached to the petition. It was certified as “a true copy” by the notary who passed it. C.C. Art. 2268 provides notaries may certify copies of original acts passed before them when they are the “. . . depositaries of such originals.” This article appears to be a carryover from the time when Orleans Parish notaries were obliged by law to be depositories of their acts. It is possible plaintiff is correct in asserting only the clerk of court in St. Charles Parish was the proper officer to certify the mortgage. However, plaintiffs argue a notary is the “depository” of the original mortgage so long as it is in his physical possession, and he may make certified copies of it until the original document is recorded with the clerk or so long as he possesses a multiple original. No evidence of this nature was offered at the trial of the preliminary injunction, and the documentary evidence in the record is insufficient for a definitive decision.


text:
    Joyce LANDRY, wife of/and Ernest Landry, Individually and on behalf of their Minor Son, Ronnie Landry v. Arletta BRANDY, Warren Watson, Krauss Company, Ltd. and Sports Wheels.
    No. 10738.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 19, 1980.

      Bendana & Carlton, Orlando G. Bendana and Wayne H. Carlton, Jr., New Orleans, for plaintiffs-appellants.
    Sessions, Fishman, Rosenson, Snellings & Boisfontaine, James Ryan, III, New Orleans, for State Farm Mut. Auto. Ins. Co., defendant-appellee.
    Joseph M. Neilson, New Orleans, for Ar-ietta Brady and Warren Watson, defendants-appellees.
    Before SAMUEL, BOUTALL and GARRISON, JJ.
   SAMUEL, Judge.

Plaintiffs, husband and wife, individually and on behalf of their minor son, filed this suit for injuries resulting from an accident which occurred on November 2, 1978 between a bicycle operated by the minor and an automobile owned by Ms. Arietta Brady (the name is misspelled “Brandy” in the petition and in the title of the case) and driven by Warren Watson.

Brady and Watson answered in the form of a general denial and filed a third party demand against State Farm Mutual Automobile Insurance Company, as the automobile liability insurer of Brady, for damages and attorney’s fees for failure to defend the suit. Plaintiffs also named State Farm a defendant based on the automobile liability policy issued to Brady.

State Farm then filed a motion for summary judgment contending the policy had been cancelled for nonpayment of premium. The motion was granted and there was judgment in favor of State Farm dismissing both plaintiffs’ petition and the third party demand of Brady and Watson. Plaintiffs have appealed. Neither Brady nor Watson has appealed.

These facts are not in dispute: In 1978, prior to the accident, Ms. Brady purchased an automobile liability policy from State Farm Mutual Automobile Insurance Company. It was financed by Louisiana Credit Services, Inc. On September 7, 1978 she signed the following power of attorney in favor of Louisiana Credit:

“This is to inform you that Louisiana Credit Services, Inc. financed the premium for this Assigned Risk Policy. I hereby irrevocably appoint Louisiana Credit Services, Inc. or its Assigns my lawful Attorney-in-Fact to deliver to you my original policy or lost policy release for cancellation of this financed policy or to request cancellation for non-payment of premium in the event of my default in premium payment to Louisiana Credit Services, Inc. and to collect all return premiums due to me, including returns on endorsements and further empower them to sign any necessary written instruments including endorsement of return premium checks. I hereby ratify any and all acts that my attorney may do or perform hereunder.”

An installment due on October 10, 1978 was not paid timely, and on October 13, 1978 Louisiana Credit mailed a notice to Brady containing the following: “INSURANCE IS SUBJECT TO CANCELLATION IP PAYMENT IS NOT RECEIVED WITHIN 10 DAYS OF THIS NOTICE.” The cancellation date specified on this form was October 20, 1978.

On October 23, 1978, after payment was not made, Louisiana Credit notified State Farm it requested cancellation of the policy immediately, due to nonpayment of premium. Thereafter, on November 10, 1978 State Farm notified Ms. Brady her policy was cancelled effective October 20, 1978.

In addition to the above documents, all of which were introduced in support of State Farm’s motion, mover further relied on the affidavit of Damon Doussat, President of Louisiana Credit, attesting to the authenticity of the documents and stating no premiums were paid by Brady prior to the effective date of cancellation, and that Louisiana Credit had received all refunds due in connection with the cancellation.

An affidavit of Ms. Brady was introduced in opposition to the motion. The affidavit states she had complied with the contract, having paid all premiums prior to the date of the accident. In the record are cancelled. checks payable to Louisiana Credit. Both are dated October 28, 1978. One, in the sum of $51.91 and payable to Louisiana Credit Services, Inc., was negotiated on November 1, 1978. The other, payable to State Farm in the sum of $13.50, was negotiated on November 3, 1978.

As provided in part by Code of Civil Procedure Article 966: “The [summary] 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.” Summary judgment is not a substitute for trial on the merits and cannot be rendered in the absence of a clear showing that there is no genuine issue as to material fact and that the mover therefor is entitled to judgment as a matter of law.

Here, as has been pointed out, the State Farm documents state the policy in suit was cancelled for nonpayment of premiums by State Farm on November 10, 1978 (subsequent to the November 2, 1978 accident) but effective October 20, 1978 (prior to the occurrence of the accident). On the other hand, the plaintiff affidavit states all premiums were paid prior to the accident. The cancelled checks in the record indicate one was negotiated by deposit in a Louisiana Services account on November 1, 1978 (one day before the accident) and the other was negotiated by deposit in a State Farm account on November 3, 1978 (one day after the accident). Thus, there are genuine issues as to material facts.

Nor is State Farm entitled to judgment as a matter of law; the negotiating of the two October 28,1978 Brady checks certainly calls for clarification, and, without some further evidence justifying such a conclusion, we cannot hold as valid the effective cancellation of the policy some three weeks prior to the time the insured was notified thereof.

For the reasons assigned, only insofar as it applied to plaintiffs-appellants, the summary judgment appealed from is annulled and set aside and the matter is remanded to the district court for trial on the merits. All costs in this court are to be paid by defendant — appellee, State Farm Mutual Automobile Insurance Company.

JUDGMENT ANNULLED AND SET ASIDE; MATTER REMANDED FOR TRIAL ON THE MERITS.

      . LeBlanc v. Landry, La.App., 371 So.2d 1276; Simmons v. City of Lake Charles, La.App., 368 So.2d 1167; Prine v. Kinchen, La.App., 341 So.2d 1149; Laufer v. Touro Infirmary, La. App., 334 So.2d 541; Keen v. Pel State Oil Co., Inc., La.App., 332 So.2d 286; George & George, Ltd. v. Bennett, La.App., 329 So.2d 793; Ferina v. Howard, La.App., 285 So.2d 805; Metoyer v. Aetna Insurance Company, La.App., 278 So.2d 847; Glass v. Vista Shores Club, La.App., 221 So.2d 304; Joiner v. Lenee, La.App., 213 So.2d 136; Lake Charles Harbor & Terminal Dist. v. Farquhar, La.App., 196 So.2d 847; Roy & Roy v. Riddle, La.App., 187 So.2d 492; Acadia-Vermillion Rice Irrigating Co. v. Broussard, La. App., 185 So.2d 908.