author: LABORDE, Judge.

text:
    Belinda LEGE et al., Plaintiffs-Appellees, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al., Defendants-Appellants.
    No. 7720.
    Court of Appeal of Louisiana, Third Circuit.
    June 25, 1980.
    Writ Refused Oct. 6, 1980.

      Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Edward C. Abell, Jr., Lafayette, for defendants-appellants.
    Theall & Fontana, Gary E. Theall, Abbe-ville, for plaintiffs-appellees.
    McBride & Brewster, Robert R. McBride, Lafayette, for defendant-appellee.
    Before GUIDRY, DOUCET and LA-BORDE, JJ.
   LABORDE, Judge.

Appellant, Allstate Insurance Company, appeals from a judgment casting it for costs of a jury trial wherein no award was ultimately rendered against Allstate.

Appellant was the uninsured motorist insurer of plaintiff who was injured in an automobile accident. Plaintiff sued the driver of the other car, his liability insurer and her uninsured-motorist insurer. At the first trial of this suit, the judge directed a verdict for plaintiff on the issue of liability and allowed the issue of quantum to be given to the jury. The jury was unable to render a verdict on quantum and a mistrial was declared. Before the second trial, the Supreme court decided Niemann v. Travelers Insurance Co., 368 So.2d 1003 (La.1979), which invalidated the “consent to settle clause” of the uninsured motorist policy. Plaintiff settled with the driver and his insurer for its $25,000.00 policy limits the day prior to the second trial. Following settlement, suit was dismissed with prejudice against the driver of the offending automobile and his insurer, State Farm, and all costs incurred for the first trial were paid by State Farm. In the settlement agreement and in the judgment of dismissal appellee’s rights against Allstate were reserved. At the second trial, the judge ruled that he would tell the jury about both policies, but not about the settlement. The jury returned a verdict of $10,000.00. This being less than the $25,000.00 policy limits of the liability insurer, plaintiff’s suit against Allstate was dismissed with prejudice. The judge, in assessing costs, recognized that the liability insurer’s settlement included paying all court costs up to the time of the second trial. He then assessed the costs of the second trial to appellant.

Appellee moved to dismiss the appeal urging that appellant failed to timely pay all costs incurred in the trial court pursuant to the judgment appealed from. We first consider appellee’s motion to dismiss.

MOTION TO DISMISS

Appellee’s motion to dismiss this appeal is denied.

The judgment of the trial court ordering Allstate Insurance Company to pay costs of the second trial is the only issue on appeal. Appellant posted an appropriate suspensive appeal bond to secure payment of such costs if its appeal is unsuccessful.

The costs required to be timely paid in order to perfect an appeal are those set out in LSA-C.C.P. Article 2126 and include only the cost of preparing the record on appeal and the filing fee in the court of appeal. Appellant has paid these costs according to the certificate of the Clerk of Court. (Tr. 82). Therefore, the motion to dismiss is denied. Succession of Cavallino, 336 So.2d 909 (La.App. 1st Cir. 1979).

THE MERITS

Appellant admits in its brief that the assessment of costs is a discretionary matter for the trial judge but asserts that, under the particular facts, the trial court abused its discretion.

Appellant directs our attention to Gholar et al. v. Security Insurance Co. et al., 366 So.2d 1015 (La.App. 1st Cir. 1978). The court there reversed the trial court and relieved the defendant from paying costs where he was not found negligent and had not prolonged the trial. The court held that:

“C.C.P. Art. 1920 gives the court discretion to assess costs but limits this discretion. The general rule is that the party cast in judgment should pay all costs of the trial. Custom Builders & Supply Inc. v. Revels, 310 So.2d 862 (La.App. 3rd Cir. 1975).”

In Custom Builders, we amended the judgment to assess one-half of the court costs to defendants who, although in part successful in their defense of plaintiff’s demand, withheld payments which they knew were owed. We said therein:

“Custom Builders next contends the trial court erred in assessing all court costs to them. We agree. The general rule is that the party cast in judgment shall pay all costs of the trial. Clark v. Clark, 192 So.2d 594 (La.App. 3 Cir. 1966); Mire v. Hawkins, 177 So.2d 795 (La.App. 3 Cir. 1965).
While the trial court has much discretion in assessing costs (LSA-C.C.P. art. 1920), appellate courts are obliged to review this ruling and to assess costs which it considers equitable (LSA-C.C.P. art. 2164).”

We based our decision in Clark and Mire on Comment (b) to LSA-C.C.P. 1920, which states:

“(b) In Louisiana, it has been held that when there is a reconventional demand and both parties are cast, each must pay the costs occasioned by the demand of the other; and if the testimony has borne on both demands, the costs thereof will be divided. Hunter Canal Co. v. Robertson’s Heirs, 113 La. 833, 37 So. 771 (1940). Also, when there are two distinct claims and demands, there is only one suit, and the rule is that if a plaintiff wins any part of his suit he is entitled to costs. Hart v. Polizzotto, 168 La. 356, 122 So. 64 (1929). When plaintiff asks for a judgment against defendants in solido, and the court condemns one defendant and the other is condemned on the call in warranty, the defendant condemned is liable for the costs, even though plaintiff does not receive a judgment entirely in accordance with his prayer. Derouen v. LeBleu, 18 So.2d 207 (La.App.1944).

On one hand we have appellant urging that we follow the jurisprudential rule and cast the party in judgment, i. e., plaintiff, with all costs. Plaintiff on the other hand urges that the second paragraph of Article 1920 gives the trial court discretion to fix costs as it may consider equitable.

Appellant urges that “it is a clear abuse of discretion for the court to assess the costs of this jury trial against Allstate Insurance Company . . which trial Allstate won.”

Appellee argues that “it is certainly nobody’s fault that the first jury hung and required a second trial. It was certainly not the fault of plaintiff. It was an unfortunate occurrence for all parties concerned. The trial judge, in balancing all of the facts of which he had knowledge, decided that the most equitable thing to do was to assess costs of the second trial to Allstate Insurance Company.”

We addressed this issue in the recent case of Gatheright v. State Farm Mut. Auto. Ins. Co., 352 So.2d 428 (La.App. 3rd Cir. 1977). In the Gatheright case, the trial judge cast plaintiffs with all costs of court when the plaintiffs had been unsuccessful in an attempt to recover damages from their uninsured motorist carrier. In affirming the trial court, we stated at page 433:

“It appears to us that the trial judge assessed all costs against Mr. and Mrs. Gatheright ‘as plaintiffs’ rather than as ‘defendants in reconvention’. If Ms. Gou-deau had not reconvened for her property damages and this was simply a suit by the Gatherights against State Farm under the uninsured motorist provision of its policy, then surely they could not be heard to complain, once they lost their suit against State Farm, and were cast for costs. . . . ” (Emphasis supplied.)

We have carefully reviewed the record before us and cannot find any reasonable or equitable basis for casting appellant with costs.

We find that the trial court abused its discretion when it assessed all costs to defendants and we have determined that it is fair and equitable for all costs to be assessed to plaintiff-appellee. See LSA-C. C.P. Article 2164.

Appellee’s answer to the appeal seeking damages for a frivolous appeal merits no consideration in view of our decision of this day.

Appellee further asks that we review the transcript of the first trial and award damages in excess of $25,000.00. Since the record of the first trial was not introduced into evidence at the second trial, and is not before us, we do not reach this issue.

For the foregoing reasons, the judgment of the trial court is reversed insofar as it taxes costs of court to defendant-appellant, and all costs of court at the trial level are taxed to plaintiff-appellee. The judgment of the trial court is otherwise affirmed.

All costs of appeal are taxed to plaintiff-appellee.

REVERSED IN PART, AFFIRMED IN PART, AND RENDERED.


source: Caselaw Access Project

author: SCHOTT, Judge.

license: Public Domain

text:
    Benjamin G. LANG v. Dr. Ian J. REYNOLDS et al.
    No. 11366.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 28, 1980.
    Jacques F. Bezou, Garon, Brener & McNeely, New Orleans, for plaintiff-appellant.
    Harold A. Thomas, Adams & Reese, New Orleans, for defendants-appellees.
    Before SAMUEL, REDMANN and SCHOTT, JJ.
   SCHOTT, Judge.

This case is before us on a rule, ex pro-prio motu, to show cause why the appeal should not be dismissed. The following chronology is pertinent:

October 18,1979 Jury verdict for appellees
November 14,1979 Petition for appeal by appellant
February 29,1980 Record lodged in this Court
March 24,1980 Judgment signed by trial court

LSA C.C.P. Art. 1911 as amended by Act 618 of 1979, provides as follows:

“Except as otherwise provided by law, every final judgment shall be signed by the Judge. For the purpose of an appeal as provided in Article 2083, no appeal may be taken from a final judgment until the requirement of this Article has been fulfilled.”

Under the plain wording of this statute this appeal is vulnerable to dismissal because there was no final judgment signed by the judge at the time the appeal was taken.

However, under the circumstances of this case no useful purpose would be served by dismissing the appeal. Since a judgment was signed by the trial court on March 24, 1980, plaintiff-appellant has sixty days from that date in which to perfect a devolu-tive appeal. The record has already been completed and was lodged in this court, so that the only effect of a dismissal would be to require plaintiff to go back to the trial court, obtain another order of appeal and re-lodge the record in this court with attendant duplication of filing fees in both courts. Such a procedure would be of no benefit to appellees and under these circumstances would not serve the interests of justice. Our interpretation of the article under the circumstances of this case is consistent with Art. 5051’s mandate that the articles be construed liberally and with due regard for the fact that rules of procedure implement the substantive law and are not an end in themselves.

We are not confronted with the situation where a judgment might be signed after an appeal is taken and a motion to dismiss that appeal is entertained at a time beyond the deadline for taking the appeal, nor do we decide such a case.

Accordingly, we deem our rule to show cause as satisfied and consider the present appeal as valid.

RULE TO SHOW CAUSE SATISFIED.

      . Richard v. Gettys, 329 So.2d 475 (La.App. 4th Cir. 1976) was decided prior to the passage of Act 618 of 1979.


author: GUIDRY, Judge.

text:
    Catherine Lee DOVE, Plaintiff-Appellee, v. Ronald Wayne DOVE, Defendant-Appellant.
    No. 7721.
    Court of Appeal of Louisiana, Third Circuit.
    June 2, 1980.

      Whitaker & Doggett, John B. Whitaker, Natchitoches, for defendant-appellant.
    Gahagan & Gahagan, Fred S. Gahagan, Natchitoches, for plaintiff-appellee.
    Before GUIDRY, DOUCET and LA-BORDE, JJ.
   GUIDRY, Judge.

Incidental to and arising from a suit for separation from bed and board, the defendant, Ronald Wayne Dove, was found to be in contempt of court and was sentenced to serve six months in the parish jail. From this judgment defendant has appealed. The trial court issued an order staying execution of sentence pending defendant’s appeal.

On November 2, 1979, plaintiff-appellee, Catherine Lee Dove, filed a petition for legal separation and obtained a temporary restraining order directed to defendant, enjoining him from molesting, harming or harassing plaintiff in any way. After being served with the petition and temporary restraining order on November 4, 1979, defendant went to the residence of plaintiff and administered a beating to plaintiff which resulted in her hospitalization. By first supplemental and amending petition filed November 16, 1979 plaintiff alleged the beating incident of November 4,1979 as additional support of her petition for legal separation. The trial court ordered the temporary restraining order extended until such time as a rule to show cause could be heard on the issuance of a preliminary injunction, as well as issuing a rule to show cause why defendant should not be held in contempt for the violation of the temporary restraining order issued on November 2, 1979. These rules were heard on December 4, 1979. Judgment was rendered that date holding defendant in contempt of court. Defendant was fined $100.00 and given a 3-day suspended jail sentence. Additionally the trial court converted the temporary restraining order into a preliminary injunction. Defendant did not appeal from the judgment rendered and signed on December 4, 1979.

On January 10,1980, plaintiff took a preliminary default judgment against defendant. On January 15, 1980 judgment was rendered and signed granting plaintiff a separation from bed and board and making permanent the preliminary injunction which prohibited defendant, Ronald Wayne Dove, “from harming, molesting, harassing, or disturbing plaintiff or the children in any manner”. On the same date plaintiff filed a contempt rule against defendant for his failure to pay child support and for his continued harassment of plaintiff by constantly phoning her place of employment and driving by her residence late at night honking the horn. Said rule was set for hearing on January 29, 1980. On January 23, 1980, plaintiff filed an amendment to the rule alleging that despite the permanent injunction against defendant, he continued to harass her, and specifically, that on January 21, 1980, defendant went to plaintiff’s place of employment and verbally harassed her in a loud voice, threw a bank statement at her, and pushed a clock and adding machine off plaintiff’s desk onto the floor. The hearing on the rule was held on January 30, 1980. At the hearing plaintiff and two witnesses on her behalf testified to the truth of the allegations of abuse and harassment which occurred following the initial contempt judgment of December 4, 1979. Defendant in his testimony, admitted the allegations to be true.

The foregoing facts illustrate a sad but common problem in many such domestic suits. The unfortunate frequency of violent or abusive acts by one spouse against the other petitioning spouse in a separation or divorce proceeding prompted the legislature to enact LSA-R.S. 9:306 by Acts 1979, No. 643, § 1, which went into effect September 7, 1979, and provides as follows:

“Following the filing of a petition for separation or divorce, either spouse may petition for, and a court may grant, an injunction, without bond, to prohibit the other spouse from physically or sexually abusing the petitioning spouse.”

This recently enacted statute provides specifically for the court’s equitable relief of injunction, in addition to existing legal remedies, to protect a spouse’s personal right to be free from physical or sexual harm, coercion, or intimidation while pursuing an action for separation or divorce.

As we understand appellant’s brief, he points to no error in the injunction proceedings or in the procedure followed by the trial court in adjudicating him guilty of contempt on January 30, 1980. The main trust of his appeal appears to center around his argument that the sentence imposed for his violation of the court’s injunction is excessive and thus violative of La.Const. of 1974 Art. 1, Section 20.

In State v. Sepulvado, 367 So.2d 762 (La. 1979) our Supreme Court concluded that under the Louisiana Constitution of 1974 excessiveness of a sentence imposed in a criminal matter is a question of law which is reviewable under the appellate jurisdiction of the Supreme Court. LSA-Constitution Article 1, Sec. 20; Article 5, Section 5(C).

The question as to whether or not a jail sentence imposed under LSA-R.S. 13:4611 upon a person adjudged guilty of contempt is reviewable for excessiveness is res nova. However, applying the rationale employed in Sepulvado, supra, we conclude that a sentence imposed under LSA-R.S. 13:4611 is reviewable ( for excessiveness, however, jurisdiction to review such sentence vests either in the Court of Appeal or the Supreme Court dependent upon whether the matter appealable is criminal or civil in nature. Under LSA-Constitution Article 5 the right of review in criminal matters is exclusively vested in the Supreme Court. Under the constitution the Court of Appeal are vested with appellate jurisdiction of all civil matters and matters appealed from family and juvenile courts, except criminal prosecutions of persons other than juveniles. LSA-Const. Article 5, Section 10.

The above being considered if the matter for review in the instant case is criminal in nature exclusive jurisdiction to review such matter lies with the Supreme Court. On the other hand if the matter under consideration is civil in nature this Court is vested with jurisdiction to consider same. Stated another way jurisdiction to review is dependent upon whether the trial court in the instant proceeding imposed a civil or criminal sanction at the contempt hearing. This precise issue was brought into focus in the recent case of State v. Austin, 374 So.2d 1252 (La.1979) albeit under a different factual context. In that case the court considered whether or not a contempt judgment rendered in a civil proceeding for non-payment of child support involved the imposition of a criminal sanction which might give rise to a double jeopardy bar to a subsequent prosecution of the father for criminal neglect of family under LSA-R.S. 14:74. We find the analysis and conclusions reached in that decision to be dispositive of the jurisdiction issue presented in this case. In State v. Austin, supra, the court stated:

“The merit of the defense position turns initially on whether the trial court imposed a civil or criminal sanction at the contempt hearing. Distinguishing between the two penalties is not an easy task. As pointed out by the Court in Louisiana State Board of Medical Examiners v. Bates, 258 La. 1049, 249 So.2d 127, 181 (1971), . . the similarity between criminal and civil contempt is striking. . . . (T)hey are almost identical, being governed by the same procedure and by penalties which are not too disparate.’
The United States Supreme Court has focused on the purpose of the contempt penalty imposed, rather than the character of the underlying proceeding, in distinguishing between the two kinds of contempt. In Shillitani v. United States, 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966) defendants called before a grand jury investigating narcotics offenses re fused to testify, notwithstanding a grant of immunity. The trial court found them in contempt and sentenced them to two years’ imprisonment, stipulating that they could win release by testifying. Defendants challenged the sentence on grounds the contempt proceeding had neither been initiated by indictment, nor tried to a jury. Despite the criminal nature of the proceedings, the United States Supreme Court denominated their refusal to testify a civil contempt, one which was therefore not governed by principles of criminal law. The Court announced ‘The test may be stated as: what does the court primarily seek to accomplish by imposing sentence?’ It concluded that while defendants ‘. were ordered imprisoned for a definite period, their sentences were clearly intended to operate in a prospective manner — to coerce, rather than punish. As such, they relate to civil contempt.' The Court explained its result: ‘. . . the act of disobedience consisted solely “in refusing to do what had been ordered” . not “in doing what had been prohibited.” And the judgments imposed conditional imprisonment for the obvious purpose of compelling the witnesses to obey. . . . When the petitioners carry “the keys of their prison in their own pockets” . . . the action is essentially a civil remedy designed for the benefit of other parties and has quite properly been exercised for centuries to secure compliance with judicial decrees. . . In short, if the petitioners had chosen to obey the order they would not have faced jail.’
Applying the analysis of the United States Supreme Court, contempts punished under R.S. 13:4611(A)(4) may be either criminal (punitive) or civil (coercive), depending upon the purpose of the convicting court. The judgment of contempt reveals that the sentence imposed was suspended upon the condition that relator pay past due child support and medical bills in the sum of $809 and $100 attorney’s fees, all of which sums were paid. Therefore the intent of the court was clearly to compel obedience of its child support judgment, not to punish for defiance of the court’s order. Thus, the contempt sentence was distinctly civil in nature and relator’s double jeopardy arguments are unavailing.”

Applying the analysis of our Supreme Court in State v. Austin, supra, and that of the U.S. Supreme Court in Shillitani v. United States, supra, we conclude that the six month jail sentence imposed upon defendant in the instant suit was punitive, i. e., a criminal sanction for the violation of the court’s injunctive orders and thus review of this sentence is within the exclusive jurisdiction of the Louisiana Supreme Court. The best evidence as to the punitive nature of the trial court’s intendment in imposing the six month sentence is contained in the trial court’s reasons for judgment, which state in part as follows:

. . But your actions in calling your wife and harassing your wife and beating your wife and going to her place of employment and creating a disturbance, in my opinion constitutes an intentional contempt of this court. You’re not being contemptuous of Peyton Cunningham, Jr. as an individual. You are being contemptuous of an Order of the Tenth Judicial District Court. You have been a police officer since sometime in 1972 and you of all people should know that if everybody behaves themselves and everybody did not break the law, we wouldn’t need courts; we wouldn't need policemen; we wouldn’t need jails. But, because people don’t behave themselves, we have to have police, we have to have jails; we have to have courts. For you to intentionally disobey the orders of the court shows clearly and forcefully your contempt of the court orders which were served upon you. Revised Statute Title 13, Section 4611 sets forth penalties which are allowed for contempt of court. The last paragraph was amended sometime in 1978 or ’79 where the legislature put some teeth in that law. And for disobeying a Temporary Restraining Order or a Preliminary or a Permanent In junction, the maximum sentence could be a fine of five hundred dollars and six months in the Parish Jail. I cannot tolerate your disobedience of the court All you had to do was leave your wife alone. You have chosen to disobey the law and now you have to pay a price . . .”

It is obvious from the record and from the trial court’s reasons that the sentence imposed was not intended to operate in a prospective manner nor was the sentence imposed for the purpose of compelling defendant’s compliance with the previously issued injunction. Rather, clearly the sentence was imposed because defendant did what the court’s order prohibited and he was being punished for his non-compliance with that order. Under such circumstances the sanction imposed is clearly a criminal sanction the review of which for excessiveness lies within the exclusive jurisdiction of the Louisiana Supreme Court.

For the above and foregoing reasons we conclude that this Court has no jurisdiction to consider this appeal and same will be dismissed at appellant’s costs.

APPEAL DISMISSED.

      . Although the rule for contempt was fixed for hearing on January 29, 1980 the matter was tried on January 30, 1980. Presumably the parties to the rule agreed to a one day continu-anee as according to the court’s minutes the matter was tried without objection on the 30th of January, 1980 with both parties and their counsel present.


author: GUIDRY, Judge.' LABORDE, Justice,

text:
    Janis LANHAM et al., Plaintiffs-Appellants, v. WOODWARD, WIGHT & COMPANY, LTD., et al., Defendants-Appellees.
    No. 7654.
    Court of Appeal of Louisiana, Third Circuit.
    June 25, 1980.
    Writ Refused Sept. 26, 1980.

      Craven & Scott, Samuel H. Craven, Alexandria, for plaintiffs-appellants.
    Gold, Little, Simon, Weems & Bruser, John F. Simon, Alexandria, for defendants-appellees.
    Before GUIDRY, DOUCET and LA-BORDE, JJ.
   GUIDRY, Judge.'

In this suit, as a result of a non-fatal automobile accident between Janis Lanham and an employee of defendant, Woodward, Wight & Company, Ltd., plaintiffs, the husband and minor children of Janis Lanham, seek to recover damages for the following injuries and losses as alleged in paragraph 13 of plaintiffs’ petition:

“1. Loss of affection, care, love and guidance of Janis Lanham.$100,000.00
2. Future loss of affection, care, love and guidance of Janis Lanham.$100,000.00
3. Shock, mental anxiety and distress .$100,000.00”

These are the only items of damage which are sought on behalf of the minor children of Janis Lanham. However, in addition to the damages set forth in paragraph 13, the husband, John H. Lanham, additionally asserts his right in paragraph 12 of the petition to recover for the following alleged damages and losses:

“1. Past medical expenses and other special damages .... $ 70,000.00
2. Property damage . 6,800.00
3. Related costs, fees, expenses (including child care) . 75,100.00
4. Future medical expenses and other special damages (this estimate is subject to adjustment) . 1,300,000.00
5. Loss of earnings (past) .... 12,000.00
6. Loss of future earnings ... 350,000.00”

"Defendants filed a pleading styled “Motion to Strike and Exceptions of No Cause of Action and No Right of Action” (sometimes hereafter referred to as defendants’ pleading) seeking dismissal of this action insofar as the demands set forth in paragraph 13 are concerned. After a hearing the trial court sustained defendants’ “Motion to Strike and Exceptions of No Cause and No Right of Action” regarding the plaintiffs’ claim for these damages. Accordingly on November 19, 1979 the trial court rendered judgment reading in pertinent part as follows:

“IT IS ORDERED, ADJUDGED AND DECREED that the Motion to Strike and Exceptions of No Cause of Action and No Right of Action are hereby sustained, and there is judgment herein striking Paragraph 13, and all other allegations that specifically concern the type of damages sought in paragraph 13, from the petition in the above numbered and entitled cause, and dismissing the suit of John H. Lanham on behalf of his minor children, Deana Louise Lanham, Darlene Loraine Lanham and Donya Ann Lanham.”

Plaintiffs bring this appeal from the trial court’s decision. We affirm.

At the outset we observe that the judgment appealed from appears to reflect that it was the intention of the trial judge to sustain all objections set forth in defendants’ pleading as to both the demand of the children and that of Mr. Lanham, individually. If this construction be placed upon the judgment in question the trial court judgment is in error. The proper procedural device to bring into question the right of the children to recover for the losses and damages alleged in paragraph 13 is the exception of no cause of action. This exception is used to test the legal sufficiency of the petition; the sole issue on trial thereof being whether the face of the petition presents a case which legally entitles the petitioner to the redress sought. Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La.1975). However, insofar as John Lanham, individually, is concerned the exception of no cause of action is improper because as to him the exception would be a partial no cause of action which is not provided for in our law. Walker v. Western-Southern Life Ins. Co., 361 So.2d 892 (La.App. 2nd Cir. 1978), writ refused; Employers Mutual Liability Insurance Company of Wisconsin v. Red Simpson, Inc., 386 So.2d 961 (La.App. 3rd Cir. 1980). The proper procedural vehicle to question the sufficiency of the demand of John Lan-ham, individually, for the damages alleged in paragraph 13 is the motion to strike, LSA-C.C.P. Article 964, which motion was made in defendants’ pleading. We therefore construe the judgment signed on November 19, 1979 to mean that the trial court sustained defendants' motion to strike with regard to John Lanham’s individual claim asserted in paragraph 13 and sustained the exception of no cause of action as to the claim asserted by John Lanham on behalf of the minor children. We construe the trial court’s judgment thusly in order to give procedural efficacy to a result which we perceive to be correct.

Our construction of the trial court judgment raises yet another procedural question, that is, the appealability of the judgment sustaining the motion to strike against John Lanham, individually. As regards John Lanham, the judgment sustaining the defendants’ motion to strike is but an interlocutory judgment from which an appeal is unavailable absent a showing of irreparable injury. LSA-C.C.P. Articles 1841, 2083. See also Matte v. Continental Casualty Company, 185 So.2d 842 (La.App. 3rd Cir. 1966). However, since the issues involved on the appeal from the judgment by John Lanham on behalf of his children, which is a final judgment from which an appeal lies, are similar to those of the interlocutory judgment as it affects John Lan-ham individually, we pretermit the issue of irreparable injury, and will entertain the appeal by John Lanham in his individual capacity for the purpose of efficient judicial administration.

For purpose of this appeal we accept the pleaded facts as true and susceptible of proof. The following facts are alleged. On March 31, 1979, Janis Lanham was operating her vehicle on a four-lane highway in Rapides Parish in a southerly direction. She was involved in a collision with a vehicle driven by Phillip Sims, an employee of defendant, Woodward, Wight & Company, Ltd. The latter is insured by defendant, United States Fidelity & Guaranty Company.

Janis Lanham was neither killed in the accident nor has she since died. Neither her husband, John H. Lanham, nor her minor children were in the accident nor near the scene of the accident.

The sole issue before us is whether the husband and children of Janis Lanham may maintain a cause of action for their loss of affection, care, loss and guidance of Janis Lanham or for their shock, mental anxiety and distress resulting from the injuring of Janis Lanham.

We recently addressed this issue in McFarland v. Cathy, 349 So.2d 486 (La.App. 3rd Cir. 1977). In that case we faced a fact situation similar to the one presently before us. The children and wife of Booker T. McFarland asserted a claim for their damages resulting from an accident which left Mr. McFarland a quadriplegic. Citing a long line of jurisprudence, we made the following observation:

“The established rule in this State is that, except in death cases, one person may not recover damages for mental pain and anguish suffered by him merely as a result of physical injuries sustained by another person.”

In Bourque v. American Mutual Liability Ins. Co., 345 So.2d 237 (La.App. 3rd Cir. 1977), we also faced the issue of whether or not one spouse could claim damages for mental anguish and loss of consortium because of physical injuries sustained by her husband. In denying recovery we approvingly quoted from our brothers of the First Circuit who in McKey v. Dow Chemical Co., Inc., 295 So.2d 516 (La.App. 1st Cir. 1974) said:

“Traditionally and historically our jurisprudence has consistently declined to allow recovery to one party for mental pain and anguish resulting from mere personal injury to another.”
“The rationale of this premise is the avoidance of opening a field of litigation which will flood the courts with actions in which practical justice cannot be meted out to both plaintiff and defendant alike. Another basic premise of the rule is that, under such circumstances, there is no breach of a legal duty toward the party claiming damages.”
“We hold that these considerations dictate the rule that a party to a contract has no claim under our law to recover damages from a tort-feasor predicated upon the negligent injury to a third party which results in the injured party being rendered incapable of performing contractual obligations.”

We recognize that a growing number of jurisdictions allow a recovery for loss of consortium. According to Rodriguez v. Bethlehem Steel Corporation, 12 Cal.3d 382, 115 Cal.Rptr. 765, 525 P.2d 669 (1974), the California decision which held that such a claim would be recognized in that state, thirty-one jurisdictions do recognize such a remedy. See also F. F. Stone, Louisiana Tort Doctrine: Emotional Distress Occasioned by Another’s Peril, 48 Tulane L.Rev. 782 (1974), for an excellent discussion of this area and a criticism of Louisiana’s no recovery position.

Despite the fact that our position appears to be a minority view and open to criticism, we believe it is the preferable position based on the public policy considerations discussed in McKey v. Dow Chemical Co., Inc., supra. It is a determination that the claimant is not within the ambit of the risk invaded by the tort-feasor’s conduct and hence the defendant owed no duty to him. Further, considering the body of jurisprudence beginning with our Supreme Court’s decision in Black v. Carrollton Railroad Company, 10 La.Ann. 33 (La.1855), to date, wherein the established rule is to deny such recovery as the plaintiffs seek in the instant suit, we are of the opinion that any change in this established rule, if there is to be a change, should be instituted by our legislature.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are taxed to plaintiffs-appellants.

AFFIRMED.

LABORDE, Justice,

dissenting.

I respectfully dissent. The majority relies upon a long line of jurisprudence to deny the existence of a cause of áction as asserted by appellants. In two recent eases cited by the majority, McFarland v. Cathy, 349 So.2d 486 (La.App. 3rd Cir. 1977) and Bourque v. American Mutual Liability Ins. Co., 345 So.2d 237 (La.App. 3rd Cir. 1977), the court quoted approvingly from McKey v. Dow Chemical Co., Inc., 295 So.2d 516 (La.App. 1st Cir. 1974). The First Circuit, in McKey, summarized the rationale of the jurisprudence, saying:

It suffices to state it is based in part on the practicality of justice which protects a tort-feasor from the unreasonable demands of myriads of claimants who sustain no personal injury as a result of the tort. The rationale of this premise is the avoidance of opening a field of litigation which will flood the courts with actions in which practical justice cannot be meted out to both plaintiff and defendant alike. Another basic premise of the rule is that, under such circumstances, there is no breach of a legal duty toward the party claiming damages.

The First Circuit explained thoroughly the arguments against recovery in Holland v. St. Paul Mercury Ins. Co., 135 So.2d 145 (La.App. 1st Cir. 1961). The points are:

1. Practicality of administering justice where numerous unreasonable demands are made by witnesses to the tort who are not directly affected, and where determining the damages in reasonable cases would be difficult.
2. Lack of a legal duty owed to plaintiff by defendant.
3. Common law rule imposing liability for physical consequences but not for the responses of a person to sights and sounds.

The court therein agreed with the statement in 18 A.L.R.2d 239, Anno. Damages § 7 that the true explanation is the evolution of the common law rule referred to above. The court then proceeds to refute this point as well as the first two points. See Holland v. St. Paul Mercury Ins. Co., supra at p. 155.

The only issue to be addressed under their analysis is the existence of a legal duty owed by defendant to plaintiffs rather than to the injured person. I believe there is a duty. I see no distinction in the duty of defendant’s employee to operate the truck so as not to harm plaintiffs by killing Mrs. Lanham and the duty of the defendant not to harm plaintiffs by injuring Mrs. Lanham.

The conduct of defendant’s employee clearly caused plaintiffs’ damages. The risk and harm encountered here is within the scope of the statutory duties involved herein just as much as the risk and harm of physical injury. I see no policy considerations which would imply that the risk of loss here should be borne by plaintiff instead of defendant. See Louisiana Civil Law Treatise Vol. 12, Tort Doctrine § 272 by Ferdinand F. Stone and cases cited therein.

The majority argues that Black v. Carrollton Railroad Company, 10 La.Ann. 33,25 L.R.A. 28 (La.1855), is controlling and denies recovery. I disagree. First, factually Black involved damages for anxiety and shock whereas this case involves those elements as well as loss of love, affection and guidance, and the psychological impact on young children of seeing their mother a virtual vegetable. Second, the court in Black considered damages for anxiety and shock to be exemplary or punitive damages and therefore not allowable under Louisiana law. The court later said, “But it is now well settled that damages for mental anguish or suffering are actual rather than exemplary or punitary.” McGee v. Yazoo & M. V. R. Co., 19 So.2d 21, 206 La. 121 (La.1944) citing Bourg v. Brownell-Drews Lumber Co., 45 So. 972, 120 La. 1009 (La. 1908) and Byrne & Co. v. Gardner & Co., 33 La.Ann. 6 (La.1881). Therefore the rationale, if not the holding, in Black has been impliedly overruled. Third, the majority opinion was signed by only two justices out of five. Therefore, we are not bound by the decision. Chaney v. Travelers Insurance Company, 249 So.2d 181, 259 La. 1 (1971).

Civil Code Art. 2315 provides for this cause of action. I see no alternative interpretation of the first paragraph.

Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.

The second and third paragraphs clearly are operative only “on the death of the obligee” or “if the injured person dies.” The language in the third paragraph that “(t)he survivors in whose favor this right of action survives may also recover the damages which they sustained through the wrongful death of the deceased” does not create a new cause of action over and above any cause of action created by the first paragraph, but instead provides both for the damages sustained by the deceased and by the survivors. See Louisiana Civil Law Treatise Vol. 12, Tort Doctrine § 171 by Ferdinand F. Stone.

Therefore, I would reverse the trial court and remand this case so that plaintiffs could present evidence as to whether or not they had suffered any damages and to what extent.

I respectfully dissent.


author: DOMENGEAUX, Judge.

text:
    Joseph THIBODEAUX, Individually and on Behalf of his Minor Son, Joseph Bryan Thibodeaux, Plaintiff-Appellee, v. HULIN MARBLE & GRANITE WORKS, INC., et al., Defendants-Appellants.
    No. 7655.
    Court of Appeal of Louisiana, Third Circuit.
    June 25, 1980.

      Haik & Broussard, Richard T. Haik, New Iberia, for defendants-appellants.
    McBride & Brewster, Glynn Rozas, Lafayette, for defendant in reconvention-appel-lee.
    John Rixie Mouton, Lafayette, for inter-venor-appellee.
    Before DOMENGEAUX, FORET and CUTRER, JJ.
   DOMENGEAUX, Judge.

This is a tort action for damages resulting from an automobile accident between a 1977 Oldsmobile owned by Joseph Thibo-deaux and being driven by his minor son, Joseph Bryan Thibodeaux, and a 1974 Ford pick-up truck owned by Hulin Marble & Granite Works, Inc., (Hulin), and being driven by its employee, William Gachassin.

Joseph Thibodeaux, for himself and his minor son, filed suit against Hulin and Ga-chassin. Defendants answered and reconvened, and Motors Insurance Corporation, the collision insurer of the Thibodeaux vehicle intervened against defendants seeking recovery of the sum of $3,943.51, the amount paid Thibodeaux for vehicle collision damages.

Following trial, judgment was rendered in favor of plaintiff for the sum of $12,-295.59. Intervenor was awarded the sum of $3,943.51. Defendants’ reconventional demand was rejected. Defendants have appealed the district court judgment.

The facts show that on June 14, 1978, plaintiff’s minor son, Joseph Bryan Thibo-deaux, was proceeding in the 1977 Oldsmobile in a southerly direction on Highway 182, near the city of Lafayette. At the same time, defendant Gachassin was proceeding in a northerly direction in the 1974 pick-up truck on the same highway. The accident occurred when Gachassin attempted a left turn and was struck in the rear passenger side by the Thibodeaux automobile.

Defendants (plaintiffs in reconvention) make four assignments of error contending that the trial judge erred:

(1) in failing to find that Joseph Bryan Thibodeaux had the “last clear chance” to avoid the accident;

(2) in failing to find Joseph Bryan Thibo-deaux contributorily negligent;

(3) in refusing to accept expert testimony as to the speed of the Thibodeaux automobile; and

(4) in making an excessive award for general damages.

LAST CLEAR CHANCE

Defendants contend that the trial judge erred in rejecting their reconventional demand because Joseph Bryan Thibo-deaux had the “last clear chance” to avoid the accident.

The trial judge found as a fact that the cause of the accident was defendant Ga-chassin’s negotiating a left hand turn into a private driveway without ascertaining that it was safe to do so. In order for the doctrine of “last clear chance” to apply, plaintiffs in reconvention had to prove that the Thibodeaux youth discovered Gachas-sin’s danger and could have reasonably avoided the accident. Price v. Watts, 215 So.2d 187 (La.App. 3rd Cir. 1968). Thibodeaux testified that he hit his brakes when Gachassin turned in front of him but was unable to avoid the collision. Our examination of the record does not suggest error on the part of the trial judge in her finding that young Thibodeaux did not have the last clear chance to avoid the accident. There is ample evidence in the record to support the proposition that “last clear chance” is not applicable in this case.

CONTRIBUTORY NEGLIGENCE

Defendants contend, in the alternative, that assuming Gachassin was negligent in turning left, young Thibodeaux was contributorily negligent in driving at an excessive rate of speed.

The Thibodeaux youth testified that he was traveling at approximately 55 miles per hour prior to the accident. The posted speed limit was 55 miles per hour. The trial judge, in finding for plaintiff, apparently accepted the testimony of Thibodeaux as credible.

In support of their contention that Thibo-deaux was traveling at an excessive rate of speed, defendants offered the testimony of Dr. Stephen Killingsworth. Doctor Kill-ingsworth, a mechanical engineer, testified that assuming the Thibodeaux vehicle had left skid marks of 174 feet, it would have been traveling at a speed between 64 and 72 miles per hour.

However, the investigating officer, Gill Arceneaux, testified that the length of the skid marks left by the Thibodeaux vehicle were approximately 40 paces long. He estimated the length of each pace to be 2.5 feet. The skid marks, according to the officer’s measurements, would be approximately 100 feet in length. Since Doctor Kill-ingsworth computed the speed of the vehicle on the basis of skid marks 174 feet in length, the trial judge did not err in rejecting his testimony as to the speed of the Thibodeaux vehicle. An examination of the record does not reveal that the trial judge was manifestly erroneous in failing to find Thibodeaux contributorily negligent. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

GENERAL DAMAGES

Defendants contend that the $12,-000.00 award for general damages sustained by Joseph Bryan Thibodeaux is excessive.

Civil Code Article 1934(3) provides that, in the assessment of general damages, “much discretion must be left to the judge or jury”.

In Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977), the court stated:

“We do reemphasize, however, that before a Court of Appeal can disturb an award made by a trial court that the record must clearly reveal that the trier of fact abused its discretion in making its award. Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court. It is never appropriate for a Court of Appeal, having found that the trial court has abused its discretion, simply to decide what it considers an appropriate award on the basis of the evidence.” [Citations omitted]

In Reck v. Stevens, 373 So.2d 498 (La.1979), the court stated:

“Before a trial court award may be questioned as inadequate or excessive, the reviewing court must look first, not to prior awards, but to the individual circumstances of the present case.”

The court went on to add:

“Thus, the initial inquiry must always be directed at whether the trier court’s award for the particular injuries and their effects upon this particular injured person is, a clear abuse of the trier of fact’s ‘much discretion,’ ... in the award of damages. It is only after articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review, for articulated reason, be considered either excessive, or insufficient. Only after such determination of abuse has been reached, is a resort to prior awards appropriate under Coco for purposes of then determining what would be an appropriate award for the present case.” [Citations omitted]

In this case, the record reveals that a substantial impact resulted from the collision, and young Thibodeaux was thrown into the windshield.

On June 14,1978, the day of the accident, plaintiff was examined by Dr. C. Barrett Alldredge. Doctor Alldredge found swelling and bruising of the face, a prominent hump on top of plaintiff’s nose, and a deviated septum causing airway problems. X-rays revealed a nasal fracture which caused the septal deviation. Doctor Alldredge testified that a surgical reconstruction would be required to straighten plaintiff’s nose and correct the septal deviation.

Plaintiff was examined by Dr. Joseph Burley on June 15, 1978, three days after the accident. Plaintiff complained of pain in his neck, chest and nose. Doctor Burley found tenderness in the neck and upper chest area. Doctor Burley prescribed analgesics to relieve the pain. Plaintiff was discharged on June 20,1978, by Doctor Bur-ley.

Plaintiff testified that as a result of the accident he suffered injuries to his nose, neck, shoulder, knee and back. Plaintiff has difficulty breathing through one side of his nose because of the deviated septum. Plaintiff has had recurring headaches since the accident. Plaintiff also testified that he continues to suffer pain in his neck and back on occasions. As a result of the nasal fracture, it will be necessary for plaintiff to undergo an operation to reconstruct his nose.

An examination of the particular facts of this case does not reveal that the trial judge abused her “much discretion” in awarding $12,000.00 in general damages.

For the above and foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed against defendants-appellants.

AFFIRMED.


author: DOUCET, Judge.

text:
    Ira M. TATE et al., Plaintiffs-Appellants, v. SOUTH CENTRAL BELL TELEPHONE CO., Defendant-Appellee.
    No. 7656.
    Court of Appeal of Louisiana, Third Circuit.
    June 25, 1980.

      C. Kenneth Deshotel, Opelousas, for plaintiffs-appellants.
    Dubuisson, Brinkhaus & Duazat, Edward B. Dubuisson, Opelousas, for defendant-ap-pellee.
    Before GUIDRY, DOUCET and LA-BORDE, JJ.
   DOUCET, Judge.

This is a suit for injunctive relief and damages arising out of an alleged trespass. Plaintiffs, Ira M. Tate and Shirley Richard Tate, alleged in their petition that defendant, South Central Bell Telephone Company, had buried a telephone cable on their property without having obtained their permission to do so. They also alleged that in the process, defendants had damaged a fence and some trees on their property. The trial judge found that a servitude had been established, which gave defendant the right to bury the cable. Judgment was rendered in favor of plaintiffs and against defendant in the amount of $500 for the damage to the fence and trees. The other relief prayed for was denied. Plaintiffs appeal.

The issues on appeal are: (1) whether the trial judge erred in finding that a servitude had been established, and (2) whether the damages that he awarded were adequate.

The record shows that on May 20, 1977, plaintiffs purchased a tract of land in St. Landry Parish from Gulf Land Investment Company, Inc. The property description in the act of sale recited that the property was sold “as per plat of survey by Paul H. Fontenot” and that the plat was attached to a previous act of sale that was recorded in the mortgage and conveyance records. The trial court concluded on the basis of the plat and the testimony of the surveyor who had prepared it, that a servitude had been granted in the area of plaintiffs’ property where the cable had been buried and that it had been indicated on the plat by a dashed line.

The trial court’s conclusion that a servitude was indicated on the plat referred to in the act of sale is well supported by the evidence. However, nonapparent servi-tudes, like the one in question, may only be acquired by title. LSA-C.C. Art. 739. The act of sale recites that the lot purchased by plaintiffs is subject to a ten foot utility easement on the front of the lot immediately adjoining the road right of way. Plaintiffs do not dispute the fact that this reservation created a servitude by title. See McGuffy v. Weil, 240 La. 758, 125 So.2d 154 (1960); Richard v. Broussard, 378 So.2d 959 (La.App. 3rd Cir. 1979). However, they argue that since the act of sale does not mention an easement on the rear of the property, a servitude does not exist there.

Since the act of sale does not declare that there is an easement on the rear of the property, but the surveyor’s plat referred to in the property description indicates that . there is one, there is a discrepancy between the two. It is well-settled that in the case of such a discrepancy, the plat controls. Werk v. Leland University, 155 La. 971, 99 So. 716 (1924); O’Reilly v. Poche, 162 So.2d 787 (La.App. 4th Cir. 1964), and the cases cited therein.

We conclude that by selling the lot to plaintiffs “as per” the surveyor’s plat, a servitude was created, which the vendor, the developer of the subdivision in which the lot is located, could enforce. The evidence shows that defendant laid the cable after contacting the vendor, Gulf Land Investment Company, Inc. and obtaining from it a copy of the plat referred to in plaintiffs’ deed. Under those circumstances, defendant’s actions did not constitute a trespass for which it is liable to plaintiffs.

However, as the trial judge correctly held, defendant is liable to plaintiffs for the damage it did to their fence and trees. It is clear from the evidence that that damage was minimal. We believe that the $500 awarded by the trial judge is sufficient to compensate them for their loss.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs are assessed against the plaintiffs.

AFFIRMED.


text:
    Harold Edgar RICHARD, Plaintiff-Appellant, v. Shirley Guidroz RICHARD, Defendant-Appellee.
    No. 7661.
    Court of Appeal of Louisiana, Third Circuit.
    June 25, 1980.

      John Rixie Mouton, Lafayette, for plaintiff-appellant.
    Joseph J. Piccione, Lafayette, for defendant-appellee.
    Before GUIDRY, DOUCET and LA-BORDE, JJ.
   LABORDE, Judge.

Harold Richard, plaintiff-in-rule, appeals from a judgment of the District Court rejecting his demand for custody of his minor child, Linda Christine, and awarding his former wife child support in the sum of $500 per month.

On April 12, 1976 a judgment of divorce was rendered terminating the marriage of Harold Richard and Shirley Richard. Custody of the eight minor children of the marriage was awarded to Shirley Richard. Harold Richard was ordered to pay the sum of $684.27 as child support.

On April 27th, 1979, appellant filed a motion directing his former wife to show cause why custody of the minor children should not be granted to him. In the alternative, plaintiff-in-rule requested custody of the four youngest children and a reduction in child support.

Defendant-in-rule, Shirley Richard, answered the rule and filed a reconventional demand requesting an increase in child support. The demand also requested that past due child support in the sum of $1,613.91 be made executory.

Following a trial, judgment was rendered in which custody of Mary Katherine Richard was granted to appellant. The judgment also made executory the sum of $368.54 as past due child support. Child support was reduced to $500 per month.

Harold Richard brings this appeal from the judgment rendered below. Appellant makes two assignments of error. He contends that the trial judge erred:

1) in failing to award him custody of Linda Christine Richard, and
2) in failing to provide that the $500 per month of child support included appellant’s monthly payment of $184.27 on the family home’s mortgage.

Defendant has not appealed nor answered the appeal and therefore, the judgment transferring custody of Mary Katherine Richard to appellant will remain undisturbed.

CUSTODY

Civil Code Art. 157, as amended, provides, in pertinent part,

“In all cases of changes of custody after an original award, permanent custody of the child . . . shall be granted to the husband or the wife, in accordance with the best interest of the child or children, without any preference being given on the basis of the sex of the parent.”

Appellant contends that the trial judge erred in failing to award him custody of the child because she had been living with appellant for 11 months prior to the custody trial. Although previous custody is a factor, it is not the controlling factor in determining which parent should be granted custody of a child.

In Bordelon v. Bordelon, 381 So.2d 871, 875 (La.App. 3rd Cir. 1980), we stated:

“even though there is no longer a rigid and inflexible double burden, prior custody is still a factor to be considered. Maintaining stability of environment . continues to be a factor in determining the best interests of the child.”

In the present case, the fact that Linda Christine (age 10 at trial) lived 11 months with appellant prior to trial is only one factor in determining the best interest of the child.

Appellant contends that granting custody to Mrs. Richard is detrimental to Linda Chirstine’s welfare. Appellant points to past incidents of marijuana use in his ex-wife’s home as an improper influence on the child. Testimony of appellant’s older children, David (17 at trial), Pam (16 at trial), and Mary Katherine (14 at trial) establishes that marijuana was used at Mrs. Richard’s residence. Mary Katherine testified that in the year preceding the trial, on several occasions after Mrs. Richard left for work, friends of the older children would visit. During these visits, marijuana was smoked. Mrs. Richard’s brother, Keith Gui-droz, lived at the residence and supplied marijuana to the older children on occasion.

Although the presence of marijuana use was an improper influence on the young children, the record reveals that Mrs. Richard took immediate steps to correct the problem when she discovered marijuana in her home. She immediately contacted appellant and informed him of the problem. She required her brother to move out of her residence. At the time of the trial, a friend, Mrs. Patin, had moved in with Mrs. Richard. Mrs. Patin testified that she supervised the children when Mrs. Richard worked at night.

An examination of the record reveals that both parents are concerned, devoted, and loving parents. Mrs. Richard is employed and capable of providing a good home for her children. Mr. Richard has remarried and is also capable of providing a good home for Linda Christine. His wife testified that she has great affection for his children. The trial judge obviously concluded that granting custody of Linda Christine to Mrs. Richard was in the best interest of the child. The trial judge’s decision is entitled to great weight. An examination of the record reveals no clear error in the trial judge’s decision.

CHILD SUPPORT

In the judgment of divorce defendant was ordered to pay . the sum of $684.27 as child support. Following rendition of this judgment the parties admittedly considered and treated the child support payment of $684.27 as including defendant’s monthly obligation of $184.27 on the family home mortgage. This is made clear in a property settlement agreement which antedated the judgment of divorce and which specified as follows:

“It is understood and agreed that appear-er, Harold Edgar Richard, will continue to pay the said mortgage note on the family home described as (a) above herein conveyed to Shirley Guidroz in addition to the $500.00 child support which he has been ordered to pay by the Court . ."

(Emphasis supplied)

Accordingly, appellant contends that the trial judge erred in failing to state in the judgment that the child support award, reduced to the sum of $500.00 monthly, includes the sum of $184.27, the amount of the monthly payment on the family home mortgage. Appellant argues that if this alleged omission is allowed to stand his obligation for child support has not been reduced because he will still be required to make the monthly mortgage payment and this payment coupled with his monthly child support obligation amounts to the sum of $684.27.

We agree that if the judgment of the trial court remains undisturbed this result will follow. However, our examination of the record reveals that this is the result which the trial judge clearly intended for in an application for new trial appellant made these same arguments to the trial judge, all to no avail.

It must be noted that appellant’s obligation to pay $184.27 to the Lafayette Building Association arose from the terms of his mortgage contract with that association executed many years before. Appellant further agreed to make these monthly payments when he entered into the community property settlement agreement with appel-lee on February 16, 1976. The obligation under these agreements is separate and apart from appellant’s obligation for monthly support payments.

The above being considered, our sole remaining inquiry must be whether the trial judge abused his much discretion in fixing the monthly child support award at $500.00. We have carefully reviewed the entire record. In view of the evidence, the increased needs of the growing children, the father’s ability to pay, and the current cost of living, we cannot hold that the trial court abused its much discretion in fixing the support payments at $500.00 per month. It is our opinion that the judgment of the trial court is clearly correct.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of these proceedings are taxed to plaintiff-appellant.

AFFIRMED


text:
    Annie L. BOLTON, Individually, and as Administratrix of her Minor Child, Ravis R. Bolton, Plaintiff-Appellant, v. MFA MUTUAL INSURANCE COMPANY et al., Defendants-Appellees.
    No. 7666.
    Court of Appeal of Louisiana, Third Circuit.
    June 25, 1980.
    Evans, Bradley & Wallace, David L. Wallace, DeRidder, for plaintiff-appellant.
    Gold, Little, Simon, Weems & Bruser, Eugene J. Sues, Alexandria, for defendants-appellees.
    Before GUIDRY, DOUCET and LA-BORDE, JJ.
   DOUCET, Judge.

Annie L. Bolton brought this suit to recover damages that she and her minor son, Ravis R. Bolton, sustained in an automobile accident. Defendants, Mark and Marie Lacour, were dismissed from the suit after their insurer, MFA Mutual Insurance Company, admitted liability. After a trial limited to the issue of quantum, the district court rendered judgment in favor of plaintiff, individually in the sum of $1,750.00 for general damages, plus $615.45 for special damages. Judgment was also rendered in favor of plaintiff, as administratrix of the estate of her minor son, in the sum of $2,750.00 for general damages. Plaintiff appealed, seeking an increase in the amount of the damages awarded. Defendant answered the appeal, seeking a decrease. We affirm.

The record shows that on December 20, 1977, plaintiff was driving her 1977 Ford station wagon in a southerly direction on U.S. Highway 71 in Alexandria, Louisiana. Her son, Ravis, was riding in the rear of the car. As she approached a yield sign at the intersection of Bolton Avenue and Highway 71, her automobile was struck from the rear by an automobile driven by Marie Lacour. As a result of the collision, Ravis was thrown against the rear of the station wagon.

Immediately after the accident, plaintiff and her son went to a hospital in DeRidder, Louisiana. X-rays were taken, which were found to be negative. The child was described as being lethargic and disoriented, although he was not rendered unconscious in the accident. Three days later, plaintiff and her son went to the Ft. Polk Army Hospital, where they received treatment as military dependents. The hospital reports indicate that plaintiff complained of soreness in her neck, back, right leg, and right knee. The child complained of severe headaches, and according to plaintiff, he was not as active as he was prior to the accident.

During the course of her treatment at the army hospital, plaintiff received eleven physical therapy treatments, which were prescribed for her right leg and knee. When she was last treated at the hospital in July of 1978, seven months after the accident, she still complained of pain and weakness in her right knee.

On September 14, 1978, plaintiff and her son were examined by Dr. Heinz K. Faludi, a neurologist practicing in Shreveport, Louisiana. Dr. Faludi’s findings after examining plaintiff were essentially negative. The tests that he performed on her knee revealed no derangement. There was no redness, and the knee could be moved through full range of motion. Dr. Faludi concluded that plaintiff may have suffered a contusion on her right knee. However, the general physical and neurological examinations were within normal range.

Dr. Faludi’s report of his examination of the child indicates that he was still complaining of headaches and pain in his neck, back and leg. At the conclusion of his report, Dr. Faludi made the following observations:

“ . . .At the present time, the patient still has some tenderness over the posterolateral neck musculature in the midcervical region on the right side which probably is a residual from the cervical sprain. No evidence of spinal cord, nerve root, or peripheral nerve involvement is found. There was also no evidence of a herniated cervical or lumbar disc found. No evidence of persistent intracranial pathology was found. Essentially this patient’s symptoms at this time are only mild and mostly referable to the right posterior neck. Should the patient be bothered by it Hydrocollator steam packs could be tried together with medicines such as Tylenol, etc. One may expect that this patient’s symptoms will gradually diminish and eventually disappear in a period of one to two months. No permanent disability is anticipated.”

On July 18, 1979, plaintiff was examined by Dr. Norman P. Morin, an orthopedic surgeon practicing in Lake Charles, Louisiana. At the conclusion of his orthopedic consultation report, Dr. Morin stated the following:

“It is the writer’s opinion based on the history, physical examination, and x-rays of July 2, 1979, that: (1) this patient has completely recovered with no evidence of any neck, back, or right knee disability which could have resulted from the injury sustained December 20, 1977: (2) the above mentioned early degenerative changes existed prior to this injury; (3) there has been no aggravation; (4) she presently experiences the same relative ease and comfort experienced prior to this injury.”

Plaintiff claims that because of her injuries, she was unable to drive or do housework for a considerable time after the accident. She estimated that she had spent approximately $1,000.00 on taxi fares and $1,864.00 for household help. The trial judge apparently found that her disability was not as prolonged as she claimed, since he only allowed $194.20 for transportation expenses and $180.00 for household help. Plaintiff contends that he erred in not awarding the full amount sought. Defendant argues that recovery of those expenses should have been denied entirely, because plaintiff failed to prove their necessity. After examining the record, including the medical evidence summarized above, we find no error in the trial court’s award. Although it is clear that any disability that plaintiff suffered was of brief duration, we cannot say that the trial judge was clearly wrong in finding that her injuries were such that she was unable to drive or do housework for a short period of time after the accident.

The positions of the parties are the same with respect to the general damages that were awarded. Plaintiff argues that they are inadequate, and defendant argues that they are excessive. Civil Code Article 1934 provides that in the assessment of general damages, “ . . . much discretion must be left to the judge or jury . . . .” In Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977), our Supreme Court stated:

“We do reemphasize, however that before a Court of Appeal can disturb an award made by a trial court that the record must clearly reveal that the trier of fact abused its discretion in making its award.” (citations omitted)

The principles expressed in Coco were recently reaffirmed in Reck v. Stevens, 373 So.2d 498 (La.1979).

Our review of the evidence has not shown that the trial judge abused his discretion in this case by awarding either excessive or insufficient general damages. We will therefore not disturb those awards.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are taxed to the plaintiff-appellant.

AFFIRMED.


author: LABORDE, Judge. STOKER, Judge, GUIDRY, Judge,

text:
    Richard DEASON et al., Plaintiffs-Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee.
    No. 7667.
    Court of Appeal of Louisiana, Third Circuit.
    June 25, 1980.
    Watson, Murchison, Crews, Arthur & Corkern, R. Raymond Arthur, Natchitoches, for plaintiffs-appellants.

      Gist, Methvin, Hughes & Munsterman, DeWitt T. Methvin, Jr., Alexandria, for defendant-appellee.
   LABORDE, Judge.

Plaintiffs seek damages in connection with an automobile accident which occurred on March 22, 1979 in Natchitoches, Louisiana. In their petition, plaintiffs seek recovery for the death of their unborn child, who was stillborn three (3) days subsequent to the accident. At the time of the accident the mother was 8V2 months pregnant. The report of the pathologist (according to paragraph 15 of plaintiffs’ petition) indicated the child’s death was attributable to respiratory distress, intrauterine secondary to trauma to placenta with widespread hemorrhage as a consequence of the mother being thrown against the steering wheel of her car.

Defendant filed an exception of no cause of action on the ground that Louisiana law does not allow recovery for the death of the unborn child.

The trial judge signed a judgment on November 14, 1979, sustaining defendant’s exception and dismissed all claims of plaintiffs for the wrongful death and survival actions for the death of the unborn child. From this judgment plaintiffs have appealed.

The issue presented on this appeal is extremely narrow — may the parents of a stillborn child maintain an action for the wrongful death of that child?

Our answer is yes. We believe that Article 2315 of the Civil Code is broad enough to permit an action for the wrongful death of the stillborn child by the parents.

Louisiana Civil Code Article 2315 provides:

Art. 2315. Liability for acts causing damage; survival of action. Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.
The right to recover damages to property caused by an offense or quasi offense is a property right which, on the death of the obligee, is inherited by his legal, instituted, or irregular heirs, subject to the community rights of the surviving spouse.
The right to recover all other damages caused by an offense or quasi offense, if the injured person dies, shall survive for a period of one year from the death of the deceased in favor of: (1) the surviving spouse and child or children of the deceased, or either such spouse or such child or children; (2) the surviving father and mother of the deceased, or either of them, if he left no spouse or child surviving; and (3) the surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving. The survivors in whose favor this right of action survives may also recover the damages which they sustained through the wrongful death of the deceased. A right to recover damages under the provisions of this paragraph is a property right which, on the death of the survivor in whose favor the right of action survived, is inherited by his legal, instituted, or irregular heirs, whether suit has been instituted thereon by the survivor or not.
As used in this article, the words “child”, “brother”, “sister”, “father”, and “mother” include a child, brother, sister, father, and mother, by adoption, respectively. (Amended by Acts 1884, No. 71; Acts 1908, No. 120, § 1; Acts 1918, No. 159, § 1; Acts 1932, No. 159, § 1; Acts 1948, No. 333, § 1; Acts 1960, No. 30, § 1.)

We believe this has long been the law in Louisiana. The first reported case dealing with the rights of the unborn child was Cooper v. Blanck, 39 So.2d 352 (La.App.Orl. 1923).

Judge Westerfield discussed the rights of the unborn child. We quote from page 360, to-wit:

“We think it manifest that injury to a child at this period is in contemplation of law, injury to a living child, for which the child if it survives its birth, may maintain an action under Article 2315 of our Code, and if the child be killed at this period, before its birth, we see no reason why its parents cannot maintain an action for the death of their child.”

On the same day the court decided Cooper v. Blanck, supra, it rendered a decision in suit # 9048, entitled Mrs. Pauline Johnson v. Southern New Orleans Light & Traction Co. In that unreported case, the court wrote:

“The argument of the defendant is that the infant before it is born is not a child, not a human being, that it is only a thing, a part of the anatomy of the mother, as are her organs. We cannot accept that theory. We believe that the infant is a child from the moment of conception, although life may be in a state of suspended animation, the subject of love, affection and hope and that the injury or killing of it in its mother’s womb is covered by the Statute of 1884 (Wrongful Death) and gives its bereaved parents a right of action against the guilty parties for their grief and mental anguish.”

Again in the case of Valence v. Louisiana Power and Light Company, 50 So.2d 847 (Orleans Appeal 1951), the court speaks of the right of the unborn child. On page 849, the court stated:

“We cannot be persuaded that, under no circumstances, should there be awarded damages to the parents of the unborn child if such fetus, while in its mother’s womb, has been so injured that it cannot be born alive. We are certain that the redactors of our . code had no such purpose in mind in enacting Article 28.
There can be no doubt at all that there could be recovery for a result of an accident which might cause sterility, or which might otherwise prevent parents from having children. If, as the result of actionable negligence, a husband or a wife should be so injured that either, in the future could not expect to produce children, surely, this would be taken into consideration as an item of damage. It necessarily follows, we think, that when parents are actually expecting the arrival of a child, and they are deprived of the fruition of that great expectation by the actionable negligence of someone else, they may recover from the tortfeasor as an item of damage for that particular loss.”

In conclusion the court stated in the Valence case at page 850 that:

“And that is our conclusion here — that as a matter of law, there may be recovery by the parents where there is actionable negligence which causes such injury to a viable fetus as to prevent its being born alive, but that there must be strict proof that the actionable negligence was the cause of the unfortunate occurrence.”

See also, 24 Tulane Law Review 435; 6 Loyola Law Review 157, 12 Louisiana Law Review 519; and 20 Louisiana Law Review 810.

Our brothers on the First Circuit have recently held in favor of the rights of the unborn child. See Danos v. St. Pierre, 383 So.2d 1019 (La.App. 1st Cir. 1980) and Diefenderfer v. Louisiana Farm Bureau Mutual Insurance Company, 383 So.2d 1032 (La. App. 1st Cir. 1980). The case of Ezell v. Morrison, 380 So.2d 664 (La.App. 4th Cir. 1980) is also on point and grants relief to the parents as sought in this case.

We are not unaware of the authorities urged by appellee. Appellee relies on Louisiana Civil Code Articles 28 and 29 which provides as follows:

“Art. 28. Children born dead are considered as if they had never been born or conceived.”
“Art. 29. Children in the mother’s womb are considered, in whatever relates to themselves, as if they were already born; thus the inheritances which devolve to them before their birth, and which may belong to them, are kept for them, and curators are assigned to take care of their estates for their benefit.”

In addition to Article 28 the trial court relied upon the case of Wascom v. American Indemnity Corporation, 348 So.2d 128, (La. App. 1st Cir. 1977) which decision is based on the case of Youman v. McConnell, 7 La.App. 315, and Article 28 of the Louisiana Civil Code. The Wascom case held that a wrongful death action cannot be maintained for the death of an unborn child.

On appeal appellee urges the same argument as before the trial court. We cannot see any merit in appellee’s claim. The Was-com case, upon which they rely, was clearly reversed by the First Circuit by the recent decisions of Danos and Diefenderfer, supra.

Concerning the application of Article 28 to the present case we agree fully with Professor Stone when he answers that same argument at page 95 of Louisiana Civil Law Treatise, Tort Doctrine, Vol. 12, (1977), as follows:

“In the Valence case such strict proof was not forthcoming. The defendant in that case had urged article 28 of the Civil Code as determinative of the matter where it provides that “Children born dead are considered as if they had never been born or conceived.” The court answered that “we are certain that the redactors of our Code had no such purpose in mind in enacting article 28.” It should be pointed out that article 28 was adopted in 1825 at a time when there was no action for wrongful death and its reference was to the problem in successions. Hence it can be argued that in 1884 when the Code was amended to provide an action for wrongful death, this constituted an amendment of article 28 to remove the new action from the restriction of the earlier article.”

Accordingly, the judgment appealed from is reversed and set aside. The exception of no right of action filed by defendants is overruled and the case is remanded to the trial court for further proceedings. Costs of this appeal are taxed against defendant.

REVERSED AND REMANDED.

STOKER, J., concurs and assigns written reasons.

DOMENGEAUX and DOUCET, JJ., concur in the reasons of the majority opinion, and for the additional reasons assigned in the concurring opinion of STOKER, J.

GUIDRY, J., dissents and assigns written reasons.

CUTRER and SWIFT, JJ., dissent for reasons given by GUIDRY, J.

CULPEPPER, J., dissents for the reasons stated by GUIDRY, J., and for the reason the legislature should decide whether to change Civil Code Article 28 in a comprehensible statute dealing with inheritance, survival action, abortion and all related problems.

STOKER, Judge,

concurring.

It seems to me that, on the surface, Articles 28 and 29 of the Louisiana Civil Code appear to be inconsistent. When the two articles are harmonized, the harmonization provides the answer to the question at issue in this case. The result is that there is no impediment or prohibition against prospective parents recovering under Article 2315 of the Civil Code for the tortiously caused death of their unborn child.

When Articles 28 and 29 are considered in pari materia the logical meaning of the articles should be determined by the following analysis. Article 28 simply makes provision for avoiding absurd or illogical consequences relating to inheritance and successions. Articles 953 through 963 bear this out. The point is that Article 29 states that “[cjhildren in the mother’s womb are considered, in whatever relates to themselves, as if they were already born . . .” (Emphasis supplied). The remaining portion of the Article makes it clear that considering children in their mother’s womb is purely provisional in effect. The provisional nature of the pronouncement is elaborated on in Articles 953 of the Civil Code and the articles which follow. The pronouncement simply means that when a fetus comes into being through conception it is provisionally treated as a child. Therefore children in útero inherit provided they are ultimately born alive. In the meanwhile their estates are to be looked after by curators. However, if a child carried in the womb is born dead, then the provision made for it by Article 29 is cancelled out by Article 28, and the child “born dead is considered as if [it] had never been born or conceived”. This is made clear by Articles 953-957.

From the foregoing it may be seen that the focus and thrust of Articles 28 and 29 is directed to the rights of the children, as stated in Article 29, “in whatever relates to themselves.” Clearly the articles were drafted and adopted with the rights of inheritance of unborn children in mind despite the fact that Articles 28 and 29 appear as general articles in Book I of the Civil Code relating to persons. This concept is reinforced by the fact that Articles 953-963, which are so obviously elaborations of Articles 28 and 29, appear in Book III of the Civil Code relating to the different modes of acquiring the ownership of things including successions.

The foregoing analysis leads me to the conclusion that Article 28 of the Civil Code is not to be taken literally, but is merely a legal provision designed to close out the provisional rights of unborn children set forth in Article 29 in the event the child should be born dead. Certainly it is factually untrue to say that a fetus which comes into being through conception, and lives through a certain period of gestation, and then is born dead, was never conceived and never bom. It was conceived, it lived for a time and was born although born dead. By this we must assume that it was actually dead in the mother’s womb. Under Article 956 if the child lives “but an instant” after birth even if “extracted by force from its mother’s womb,” then Article 28 does not apply.

Because of my views stated above, I am of the opinion that Article 28 of the Louisiana Civil Code has nothing whatsoever to do with wrongful death actions under Article 2315. Possibly Article 28 might have been stated differently had actions for wrongful death existed at the time the article was in the process of confection. However, the point is immaterial as Article 28 should not be deemed pertinent to wrongful death actions. Inasmuch as Article 28 does not bear upon the subject, the courts are free to construe the rights of parents for the wrongful death of unborn children without reference to the provisions of Article 28.

To determine if an unborn child is a “child” within the meaning of Article 2315 which speaks of “persons”, I would resolve the matter on what I consider to be a reasonable basis. Judge Lottinger of the Court of Appeal for the First Circuit has pointed out in considering the issue with which we are concerned that Louisiana Statutes contain more than fifty definitions of the word “persons”, and the Civil Code definition found in Article 3556 is a mere gender provision stating that the word applies to men and women or either. Danos v. St. Pierre, 383 So.2d 1019 (La.App. 1st Cir. 1980), docket number 12,755 for the Court of Appeal, First Circuit, handed down January 21, 1980. Although a child in the womb which dies by the wrongful act of another never sees the light of day and is never gazed upon by its mother and father, it was a child to them, nevertheless. No one will say the mother and father do not suffer a loss.

For the foregoing reasons, I concur in the holding that plaintiffs in the case have a cause of action that the judgment of the trial court should be reversed and the case be remanded to the trial court for further proceedings.

GUIDRY, Judge,

dissenting.

In my opinion LSA-C.C. Article 28 which provides:

"Children born dead are considered as if they had never been born or conceived”,

is not restricted to matters of inheritance but rather is to be generally applied in construing the provisions of other articles of the civil code. When LSA-C.C. Article 2315 is construed in pari materia with C.C. Article 28, it is clear that a wrongful death or survival action cannot be maintained for the death of a child never born alive. This legal principle was re-affirmed in Wascom v. American Indemnity Corporation et al., 348 So.2d 128 (La.App. 1st Cir. 1977), writs refused, 350 So.2d 1224 (La.1977). Our Supreme Court denied writs in Wascom with only one Justice dissenting. 350 So.2d 1224 (La.1977). Although ordinarily a writ denial by the Supreme Court is not to be relied upon as persuasive authority for correctness of the legal principle or principles enunciated in the Court of Appeal opinion I believe that the Wascom case is an exception to that general rule.

In Wascom the salient issue was whether under our law surviving parents could maintain an action for the wrongful death of a child never born alive. In that case the Court of Appeal majority stated categorically:

"The law is clear that a wrongful death action can not be maintained for the death of a child never born alive . . ”

(citations omitted)

Certainly upon writ application if the Supreme Court felt this legal conclusion erroneous the writ would not have been denied.

I, like the majority of our Supreme Court, believe that decision to be correct. As stated by Judge Covington in his dissent in Danos v. St. Pierre, 383 So.2d 1019 (La.App. 1st Cir. 1980):

“In the 1977 Wascom1 decision, cited in the majority opinion, we echoed the sentiment of the trial court that when tortious conduct deprives expectant parents of a child they should have the right to recover. But, we also cited the words of the learned trial Judge Burrell J. Carter: ‘However, this Court does not make the law.’
Neither should appellate courts do so. A judicial decision should not be ‘the law,’ but rather a learned interpretation of what is ‘the law.’ The majority has reached a desired result through the use of a theory of, perhaps, what the law ought to be. However, the law is as it has been enacted by the duly constituted and representative legislative branch of our government.
Sociological decisions may be necessary when the bases of civilian methodology are nebulous. That circumstance does not exist here. A thinly veiled resort to equity is not authorized when the law is clear, C.C. art. 21, no matter how laudable the result. ” (footnote omitted)

For these reasons I respectfully dissent.

      . Comment, Survival of Actions in Article 2315 of the Louisiana Civil Code: The Victim’s Action and the Wrongful Death Action, 43 Tul.L. Rev. 330 (1969).


text:
    Allen MOREAU, Plaintiff-Appellee, v. HOUSTON GENERAL INSURANCE COMPANY, Defendant-Appellant.
    No. 7682.
    Court of Appeal of Louisiana, Third Circuit.
    June 25, 1980.

      Allen, Gooch & Bourgeois, Keith M. Borne, Lafayette, for defendant-appellant.
    Pucheu & Pucheu, Jacque B. Pucheu, Eunice, for plaintiff-appellee.
    Before GUIDRY, DOUCET ánd LA-BORDE, JJ.
   LABORDE, Judge.

Plaintiff, Allen Moreau, instituted this action against the Houston General Insurance Company, who is the workmen’s compensation insurer of his employer, Francis Myers, seeking to recover compensation benefits, penalties and attorney’s fees. The trial court held that the defendant was liable to the plaintiff for workmen’s compensation benefits, penalties and attorney’s fees. From that adverse judgment, the defendant brings this appeal. The plaintiff answers the appeal seeking an increase in attorney’s fees to cover the cost of defending this appeal. We affirm.

The facts reveal that on October 2, 1978, the plaintiff sustained a heart attack during his employment hours with Francis Myers, his employer. The plaintiff alleges that the attack was brought about by the duties he performed for his employer. It is also alleged that he has been completely disabled since the accident on October 2, 1978. The trial court determined that the plaintiff did sustain a heart attack in the course and scope of his employment and was entitled to compensation benefits at the rate of $90.50 per week. In addition, the trial court concluded that defendant, Houston General, was arbitrary and capricious in refusing to commence the payment of compensation benefits. As a result of this arbitrary and capricious failure the trial court awarded 12% penalties in addition to $5,000.00 attorney’s fees.

The defendant, Houston General Insurance Company, urges upon this court that the trial court committed three errors. The first specification of error is that the trial court was clearly wrong in concluding that the heart attack sustained by the plaintiff was causally related to his employment. The second allegation of error was that the trial court was manifestly wrong in concluding that defendant, Houston General Insurance Company, was arbitrary and capricious in its failure to pay benefits. The third error alleged is that the trial court was clearly wrong in awarding the plaintiff $5,000.00 in attorney’s fees.

CAUSAL RELATIONSHIP BETWEEN HEART ATTACK AND EMPLOYMENT

The record reveals that the plaintiff, aged 55, has been employed as a farm laborer or oil field laborer all of his life. For the past five years he has been employed by the defendant, a farmer, helping to harvest the rice crops and doing general work with farm machinery. For the three months pri- or to the heart attack the plaintiff had worked helping to harvest the rice crop. At the time of the accident, the plaintiff’s duties included driving a truck to pick up rice, driving it to the dryer and helping shovel the rice at the mill. Specifically, the plaintiff felt the heart attack while he was shoveling the rice, leveling the load on his truck to avoid spillage in the delivery to the mill.

After the attack took place, the plaintiff went to his residence where his wife gave him some Tylenol. Shortly thereafter, he was taken to see Dr. Sylvan Manuel in Eunice, Louisiana. The plaintiff explained to Dr. Manuel that he had severe chest pains which radiated down both arms.- He further told Dr. Manuel that he was performing manual labor at the time the pain commenced. Dr. Manuel gave the plaintiff some pain medicine and then sent him home telling him to rest in bed.

Two days later the plaintiff was hospitalized in Moosa Memorial Hospital in Eunice. At that time a diagnosis of myocardial infarction was made. The plaintiff was administered oxygen and the customary treatment for heart attacks. He remained hospitalized for approximately ten days. At the conclusion of the hospital stay, he returned home but continued under the treatment of Dr. Manuel. He was ordered to continue his bed rest.

On December 7, 1978, the defendant had the plaintiff examined by Dr. Mounir Mnayer, a cardiologist. Dr. Mnayer diagnosed the plaintiff’s illness as a myocardial infarction. An EKG revealed “a scar of the heart attack which affected the bottom part of the heart.”

The plaintiff continued under Dr. Manuel’s care but because of continued chest pains was hospitalized a second time at Moosa Memorial Hospital on January 2, 1979. On January 4th, 1979, the defendant had the plaintiff transferred to Lafayette General Hospital in order to be treated by the employer’s physician, Dr. Mounir Mnayer. Dr. Mnayer testified that as a result of an angiogram he determined that of the three arteries leading to the heart one had a 75 percent blockage, a second was between 50 and 75 percent blocked and the third artery was normal but the branch coming from it was completely blocked.

Both Dr. Mnayer and Dr. Manuel testified that the work which the plaintiff was performing at the time of the accident precipitated or aggravated a heart attack. They both concluded that the plaintiff was unable to perform any type of manual labor, and therefore, was totally and permanently disabled.

The defendant argues that the trial court was clearly wrong in determining that the causal relationship between the employment and the heart attack was sufficiently proven. Defendant’s position is based on the description of the occurrence of the heart attack initially given by the plaintiff to the adjuster, Mr. Don Faul, who interviewed the plaintiff shortly after he sustained the attack. Mr. Faul testified that Mr. Moreau stated that he began to experience his chest pains while driving the rice truck from the field to the rice dryer. He further stated that the plaintiff did not tell him that he had been doing any type of work other than the mere driving of the truck at the time he began to experience the pain in his chest. Regarding this alleged contradiction, we refer to the written reasons of the trial court, which are well supported by the record as a whole. The trial judge stated:

“The adjuster claims to understand French but to only speak it a little. The court did not test the adjuster but it is apparent that the plaintiff speaks little English, and the adjuster very little French; that to even reasonable (sic) communicate with the plaintiff, the adjuster had to use the plaintiff’s wife as an interpreter. The court believes though plaintiff only gave a general description of his particular employment that day and did not intend a specific pinpoint description of the particular act that caused his disability.”

It matters not that at the exact time plaintiff first began to experience chest pains he was simply driving a truck if it be shown by a preponderance of the evidence that his injury was precipitated by his usual and customary employment duties. Our Supreme Court in Roussel v. Colonial Sugars Co., 318 So.2d 37 (La. 1975) stated:

“However, it is well settled that benefits are due in compensation cases involving heart conditions resulting in disability or death, whether or not the condition is pre-existing, when the accidental injury is caused or precipitated by the usual and customary actions, exertions and other factors directly connected with the employment. Hence, it is of no significance that the heart attack could have occurred at another time and place if, in fact, the accidental injury occurred on the job. Further, it is not necessary that the accident resulting in disability or death be caused by extraordinary activities of the employee, or that said activities be the exclusive cause of the accidental injury. As previously stated, it is only necessary that the death or disability resulting from the accidental injury be caused or precipitated by the usual and customary actions, exertions and other factors directly connected with the employment, (citations omitted.)” (Emphasis supplied.)

The question of whether there is a causal relationship between the disability and the employment is a question of fact, not law. Roussel v. Colonial Sugars Co., supra.

It is well settled that, regarding a factual determination, the trial court should not be reversed unless the trial court was clearly wrong from an examination of the record as a whole. Arceneaux v. Domingue, 365 So.2d 1330 (La. 1978). Our review of the record as a whole, and particularly the medical testimony, reveals ample support for the trial court’s factual conclusions. Causal connection was clearly established by a preponderance of the evidence.

PENALTIES AND ATTORNEY’S FEES

The issue of whether the refusal to pay compensation benefits was arbitrary and capricious is a factual determination which must be determined upon the merits of each case. The defendant contends that there was a bona fide dispute as to whether the heart attack was causally related to the plaintiff’s employment. Our reading of the record does not establish a genuine factual issue. There is no real conflict in the evidence. The purpose of the penalty provision of the workmen’s compensation statute is to discourage an attitude of indifference to the injured employee’s condition. Poindexter v. South Coast Corporation, 204 So.2d 615 (La. App. 4th Cir., 1967). The record fully supports the trial court’s determination that the defendant was arbitrary in refusing to pay the claim. We affirm the casting of the statutory penalties and attorney’s fees against the defendant.

ARE THE ATTORNEY’S FEES EXCESSIVE?

The defendant further argues that the trial court erred in awarding attorney’s fees in the amount of $5,000.00 and suggests a reduction therein. In Fontenot v. Town of Kinder, 377 So.2d 554 (La. App. 3rd Cir., 1979) we recently stated:

“The trial court assessed $5000 against Zurich as an award for plaintiff’s attorney’s fees. Counsel for Zurich argues that the award is excessive because the amount of time spent by and the degree of skill required of plaintiff’s counsel to prosecute this case was minimal. While such factors may be considered by the trial court when fixing attorney’s fees, they do not limit the exercise of the judge’s discretion. When attorney’s fees are awarded as a result of arbitrary nonpayment of benefits such an award is deemed to be a penalty and the value of the attorney’s fees need not be proven. Trahan v. Rockwood Insurance Company, 284 So.2d 659 (La. App. 3rd Cir., 1973).”

We do not believe that the trial court abused its discretion in awarding $5,000.00 as attorney’s fees. Similar awards have been affirmed by courts of appeal in this state. See discussion and citations in Fontenot v.. Town of Kinder, supra.

The plaintiff answered the defendant’s appeal and asked for an additional $1,000.00 in attorney’s fees to cover the cost of defending this appeal. We deny an award of additional attorney’s fees. We feel that the amount of $5,000.00 is ample remuneration for the legal services rendered at trial and on this appeal. See Fontenot v. Town of Kinder, supra.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are taxed against the defendant-appellant.

AFFIRMED.

GUIDRY, J., concurs in the result.