author: SWIFT, Judge.

text:
    M. Beach DAVIS, Plaintiff-Appellant, v. Sandra Cushing COLVIN, Defendant-Appellee.
    No. 8641.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1982.
    Alfred F. Boustany, II, Lafayette, for plai ntif f-appellant.

      Diana Sorola, Lafayette, for defendant-appellee.
    Before GUIDRY, SWIFT and STOKER, JJ.
   SWIFT, Judge.

The plaintiff, M. Beach Davis, filed this suit on October 8, 1980, against the defendant, Sandra Cushing Colvin, on an open account. The defendant filed a peremptory exception of prescription. It was sustained and the suit was dismissed. The plaintiff has appealed.

The petition alleges that the defendant is indebted to the plaintiff in the sum of $656.60, being the unpaid balance on an open account. Copies of invoices for the sales and charges were attached to the petition. They reveal that the defendant purchased certain furniture and appliances from the plaintiff in Wellsboro, Pennsylvania, during the period from January, 1973 to May, 1975. The last payment or credit made on the account was on August 31, 1975. Apparently, both parties were residing in Pennsylvania at the time of the purchases. The defendant now lives in Lafayette, Louisiana.

By agreement the exception was submitted for a decision on the basis of the documents filed in the record and written memoranda. The trial court determined that the applicable law was the Pennsylvania four year prescriptive statute and that such prescription had run without suspension or interruption.

The plaintiff argues that the trial court erred in applying Pennsylvania law and in failing to find that the prescriptive period had been interrupted by the defendant’s departure from Pennsylvania.

Generally, prescription is a procedural matter and it is governed by the laws of the forum. Gierling v. Garner, 284 So.2d 664 (La.App. 3 Cir. 1973). Louisiana Civil Code Article 3532 in pertinent part provides:

“The prescription provided by the laws of this state applies to an obligation arising under the laws of another jurisdiction which is sought to be enforced in this state.”

In Gierling this court was confronted with a similar factual situation. The defendant, a resident of Indiana, had executed a promissory note in that state in favor of the plaintiff. Suit was filed in Louisiana and the defendant filed a peremptory exception of prescription, contending that Louisiana law was applicable to the issues of prescription. The court so held, relying on La.C.C. Article 3532.

The trial court therefore erred in applying Pennsylvania rather than Louisiana law to the issues of prescription in the instant case. However, the result would be the same under the laws of either state.

In Louisiana the prescriptive period for a suit on an open account is three years. La.C.C. Article 3538.

As stated, the record establishes that the last purchase on the account occurred in May, 1975, and that the last payment or credit given by the defendant was on August 31, 1975. This suit was not instituted until October, 1980. Thus, over five years elapsed before suit was filed and the action is barred by prescription.

The appellant argues, however, that prescription was suspended when the defendant departed Pennsylvania without informing the plaintiff of her new residence. He contends that the doctrine of contra non valentem agere non currit is applicable in this situation, because the plaintiff was unable to bring this action until he had located the defendant. We disagree.

The common law doctrine of contra non valentem agere non currit, which means that prescription does not run against a person who could not bring his suit, has been applied in certain limited situations by our Louisiana courts. Nathan v. Carter, 372 So.2d 560 (La.1979). In that case the court said:

“This equitable doctrine has been applied to cases wherein defendant has concealed the fact of the offense or has committed acts (including concealment, fraud, misrepresentation, or other ‘ill practices’) which tend to hinder, impede, or prevent the plaintiff from asserting his cause of action, as long as plaintiff’s delay of his own negligence.... [T]he doctrine of contra non valentem is, in part, but an application of the long-established principle of law that one should not be able to take advantage of his own wrongful act[Authorities omitted. Emphasis added.]

This doctrine is applicable when a defendant abandons his place of residence for the purpose of avoiding the pursuit of his creditors. Martin v. Jennings, 10 La. Ann. 553 (La.1855); and Boyle v. Mann, 4 La.Ann. 170 (La.1849). However, the evidence must establish at least an inference of a dishonest purpose in the departure of the debtor from his residence for the doctrine to be applied. See McMasters v. Mather, 4 La.Ann. 418 (La.1849); and Blossman v. Mather, 5 La.Ann. 335 (La.1850).

In the present case the plaintiff made no showing that the defendant left the state of Pennsylvania for the purpose of avoiding her creditors. Without allegations or evidence inferring a dishonest purpose in the debtor’s departure, this equitable doctrine is inapplicable. No other reason for suspension or interruption of the applicable prescription being shown, the district court properly sustained the plea of prescription and dismissed the suit.

For the reasons assigned, the judgment of the trial court is affirmed. All court costs are hereby assessed against the plaintiff-appellant.

AFFIRMED.

      . Actually, the petition does not allege that the defendant was ever a resident of Pennsylvania or when she left that state. The defendant’s memorandum states, however, that both parties were residents of Pennsylvania when the transaction took place.


source: Caselaw Access Project

author: STOKER, Judge.

license: Public Domain

text:
    Dallas P. GUILLORY, et al., Plaintiffs-Appellants, v. CALCASIEU PARISH POLICE JURY, Defendant-Appellee.
    No. 8648.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1982.

      Hunt, Godwin, Painter & Roddy, John S. Hood, Lake Charles, for plaintiffs-appellants.
    Gregory W. Belfour, Lake Charles, for defendant-appellee.
    Before GUIDRY, SWIFT and STOKER, JJ.
   STOKER, Judge.

This is a suit by Dallas P. Guillory and Harry Guillory against the Calcasieu Parish Police Jury for breach of a contract of lease of land located in Calcasieu Parish for use as a waste disposal area. The primary issue in the case is whether the Calcasieu Parish Police Jury (Police Jury) was bound by a provision contained in Paragraph 4 of the contract which required the Police Jury to fill the land to the level of the Old Town Road road bed with at least two feet of dirt above the trash.

The contract was entered into on April 4, 1974. Rent was paid for a certain period and the leased area was used to some extent. The petition alleges that the defendant Police Jury discontinued its operation of the fill area prior to April 1, 1976, and failed to pay the annual rent due on April 3, 1977. Plaintiffs claim damages in the amount of $638,880.00. The trial court rejected plaintiffs’ demands and they have appealed.

The evidence reveals and the trial court apparently found that the lease contract was initially drafted in the Police Jury’s administrative office. Plaintiffs’ attorney prepared the controversial Paragraph 4 of the contract and plaintiffs requested its inclusion. This was apparently done without the knowledge of the Police Jury. There is also some confusion resulting from the fact that the lease contract may have been signed at a later date than that indicated on the contract.

On April 3, 1974, the Police Jury approved the bare proposition to lease approximately seventeen acres from Lake Charles Auto Salvage at $20.00 per acre “for use at the Highway 171 dump”. The trial court found that nothing was done toward execution of a written lease or payment of rental until early April 1976. Although the lease is dated April 4, 1974, the trial court found the lease was probably executed on April 6, 1976, and a check for the rental for three years amounting to $720.00 was issued by the Parish Treasurer on that date. Nevertheless, the lease was signed on behalf of the Police Jury by Mr. Gene Whittier who had been president of the Police Jury in 1974 although he was not president on April 6, 1976.

Plaintiff-appellants have set forth the following contentions in support of the validity and binding nature of Paragraph 4 of the contract of lease and as grounds for reversal of the trial court:

1. Judicial Confession. Plaintiffs’ petition alleged the existence of the contract and its obligations. The defendant answered the petition and admitted the allegations concerning the contract; plaintiffs contend defendant is therefore bound under LSA-C.C. art. 2291 through judicial confession. Plaintiffs also contend the trial court erred in later permitting the Police Jury to amend the answer to set the terms of the contract at issue.

2. Defendant Drafted the Contract. Plaintiffs contend that the entire contract was drafted by the Police Jury and therefore any ambiguities in the contract should be construed against it.

3. Estoppel Against Public Bodies. Plaintiffs contend that estoppel runs against public bodies. Plaintiffs further contend that the Police Jury led them to believe that the contract signed would be adhered to.

4. Acceptance of Benefits by the Police Jury. For a certain period the Police Jury accepted the benefits of the lease contract and used the land. Hence, plaintiffs contend defendant may not thereafter void and default on the contract.

5. Admissibility of Parol Evidence. Plaintiffs urge that the trial court erred in admitting evidence to vary and contradict the terms of the contract.

6. Apparent Authority. Plaintiffs invoke this doctrine to support the validity of the contract on the ground that the Police Jury official who signed it and the Parish Administrative Office personnel who prepared the contract had apparent authority to act for the defendant.

7. Payment of Rental as Estoppel. Plaintiffs contend that by paying the annual rental of $240.00 per year for the first three years of the life of the contract, the defendant was then estopped from repudiating the contract.

8. Failure of Notice of Cancellation. The contract provided that either party might cancel the lease on sixty days written notice. The Police Jury never gave the proper notice for cancellation of the contract.

9. Best Evidence Rule. The lease contract is the best evidence of its provisions.

10. Damages. Primarily plaintiffs seek to have the Police Jury ordered to resume operations at the waste disposal site. In the alternative, if such an order is not granted, the plaintiffs seek damages.

TRIAL COURT’S REASONS FOR JUDGMENT

The trial court gave full, well reasoned reasons for its judgment. After carefully considering the facts as disclosed by the record and the arguments of counsel, we consider that the trial court was correct in its findings of fact, and we adopt its reasons for judgment as our own. We set forth those reasons in full:

“On September 27, 1976 the Calcasieu Parish operated trash and waste disposal site on U. S. Highway 171, north of the City of Lake Charles was closed. The landowners, Dallas P. Guillory and Harry Guillory have filed this lawsuit seeking $733,120.00 in damages, together with interest and costs, as a result of the closure. Plaintiffs allege they entered into a written lease with the defendant, the Calcasieu Parish Police Jury and because of a breach of the lease, plaintiffs have been damaged.
“From the evidence it is clear that sometime in 1970 the Police Jury started a trash and garbage dump on old U. S. Highway 171 without written authority of the landowners but with their oral consent. The site was low swampland subject to overflow. The plaintiffs acquired adjacent lands and on a neighboring tract conducted a used auto parts and salvage business. Plaintiffs operated this business under the trade name of Lake Charles Auto Salvage, Inc. although no such entity had ever been created.
“On May 25, 1974 the Road and Bridge Committee recommended to the Police Jury ‘that it be approved to lease approximately seventeen (17) acres of land from Lake Charles Auto Salvage, at $20.00 per month for use at the Highway 171 dump.’ This recommendation was approved by the Police Jury on April 3,1974. Nothing more was done regarding execution of a written lease or payment of the rental until early April of 1976. At that time Mr. Dallas P. Guillory secured a typed copy of the property description from his attorney and brought it to Mr. Arthur Darnstead, Jr. who at that time was administrative assistant to the Parish Administrator and Engineer. Mr. Darn-stead then prepared a written lease agreement. Mr. Guillory took a copy thereof to his attorney. His attorney reviewed the lease and drafted an additional provision which became Paragraph 4 of the executed lease. Mr. Guillory then brought the papers back to Mr. Darn-stead who caused the instrument to be re-typed so as to include the additional provision as Paragraph 4. The lease was then signed by Mr. Guillory as a representative of Lake Charles Auto Salvage, Inc. Although the date of execution was written into the lease as April 4,1974, the actual date upon which Mr. Guillory signed was probably April 6, 1976. It was on that date that, pursuant to a memorandum addressed to the Parish Treasurer (P-32), a check (P-33) was issued to Lake Charles Auto Salvage, Inc. for three (3) years rental amounting to $720.00. Mr. Fred Godwin was Police Jury President in 1976 but the written lease agreement signed that year and dated in 1974 was executed by Mr. Gene Whittier who had been Police Jury President in 1974.
“Several fires occurred at the dump site in the summer of 1976 requiring much equipment and expense to control. Under pressure and criticism of several environmental agencies, the jury padlocked the site on September 27, 1976 although the then current lease term did not expire until April of 1977.
“When this suit was originally answered by defendant’s attorney, its’ answer to plaintiffs’ allegations No. 6 read:
‘Defendant admits the allegations of Paragraph 6 of plaintiffs’ petition.’

“Subsequently a new District Attorney was elected for Calcasieu Parish and the Court permitted the new legal representative of the Police Jury to amend its answer to read:

‘Defendant denies the allegations of Paragraph 6 of plaintiffs’ First Supplemental and Amending Petition and further affirmatively pleads error, mistake, estoppel, illegality, and want of and lack of authority on the part of the persons who allegedly executed and/or prepared the instrument referred to in said paragraph.’
“Plaintiffs’ argue that such amendment was improper and defendant is bound by their original answer. This argument is without merit. Plaintiff has shown no prejudice by the amendment. Had some prejudice been shown the Court would have granted a continuance of the trial date.
“Defendant argues that this suit should be dismissed because the lessor was a non-existent corporation. Since no articles of incorporation had been entered into between plaintiffs, they should not be allowed to pursue this matter. This argument is also without merit. Plaintiffs’ lack of corporate status is not available to defendant to defeat the claim on the merits. Painting Systems, Inc. v. Popkins, 376 So.2d 584 (La.App. 4th Cir. 1979).
“The crux of this entire matter is whether there is a binding contract between the parties or not. It is basic law that before there can be a binding contract it is essential that there be consent of both parties. The minutes of the Police Jury reflect that it only intended to lease approximately seventeen (17) acres at a monthly rental of $20.00. Never was it discussed or contemplated that such an insignificant lease may require the jury to expend hundreds of thousands of dollars in damages for failure to comply with the lease. Mr. Darnstead testified he did not read the provision which Mr. Guillory brought back from his attorney and which later became Paragraph 4 of the lease. Apparently no one in the parish government was ever aware of the provision until the dump was closed and plaintiffs began to make inquiries.”

The trial court then adopted as its own certain portions of the defendant’s argument which we paraphrase as follows. Plaintiffs have not proved that the consent to the terms of P-25 by the Calcasieu Parish Police Jury was ever given. To the contrary, it has been affirmatively shown that the only approval ever given by the Jury was as follows:

“That it be approved to lease approximately 17 acres of land from Lake Charles Auto Salvage at $20.00 per month for use at the Highway 171 Dump.”

There was therefore no authority and no consent for any officer or employee to agree to fill the “Guillory site” to the level of Old Town Road. Individuals cannot bind the Police Jury absent its consent or authority. It is “Well established that an individual member of the Police Jury cannot bind the Jury as a governing body by his acts.” Starnes v. Police Jury of Rapides Parish, 27 So.2d 134 (La.App. 2nd Cir. 1946). See also, Condran v. City of New Orleans, 43 La.Ann. 1202, 9 So. 31 (1891). Even the President of a Police Jury is unable to legally execute any contract departing from the terms of a resolution adopted by the Jury. Burk v. Livingston Parish Police Jury, 207 La. 533, 21 So.2d 719 (1945) “No officer of a Police Jury can legally bind, or stand in judgment for the corporation without special authorization.” Lane v. E. J. Deas Co., 12 La.App. 382, 125 So. 514 (2nd Cir. 1929).

The plaintiffs, in their brief, assert that the Police Jury is estopped from denying the validity of the contract. In applying the doctrine of estoppel, it must be kept in mind that estoppels are not favored in law because they bar the normal assertions of rights. Abbeville Lumber Company v. Richard, 350 So.2d 1292 (La.App.3rd Cir. 1977). Three of the elements of estop-pel required before the court can invoke the doctrine are

(1) a representation by conduct or word;
(2) justifiable reliance; and
(3) a change of position to one’s detriment because of the reliance. Wilkinson v. Wilkinson, 323 So.2d 120, 126 (La.1975) and cases cited therein.

The plaintiffs, however, incorrectly apply the law to the facts at hand. Even assuming that the first two elements are present, the plaintiffs do not prove the third element which is a party justifiably relying on such and who has changed his position to his detriment as a result of such reliance, Wilkinson, supra.

The trial court concluded its reasons for judgment as follows:

“Plaintiffs’ argument of estoppel is without merit.
“Plaintiffs also argue that the custom and policy of the Police Jury in allowing the administrator’s office to draft contracts between the Police Jury and third parties grant to the Parish Administrator and his assistants the apparent authority to effectually obligate and bind the Jury to the terms of the contract. The doctrine is not applicable to public bodies. Starnes v. Police Jury of Rapides Parish, [supra].
“For the foregoing reasons this Court finds that Paragraph 4 of the lease is unenforceable. Therefore, it is unnecessary to consider the element of damages.”

As noted above the plaintiffs rely on the parol evidence rule and urge that the trial court erred in admitting parol evidence to vary and contradict the terms of the written contract. It is our view that the rule is not applicable. In this case defendant offered parol evidence to show that the contract was unauthorized and its purported consent was not in fact given. It is clear that parol evidence is not admissible as a general rule to explain, contradict, vary, add to, or subtract from the terms of a written contract. Here, however, the Police Jury is seeking to avoid the lease contract altogether rather than change, add, or subtract from it. We think this is a distinguishable situation; but, in any event, the defense that the Police Jury did not agree or consent to the contract would represent an exception to the parol evidence rule. See Pugh, Louisiana Evidence Law, 1978 Supplement, at page 687 and Tobin v. Louisiana State Board of Education, 319 So.2d 823 (La.App.1st Cir. 1975).

There are certain fallacies in plaintiffs’ arguments which merit further discussion and emphasis.. Plaintiffs refer in their brief to the case of Daspit v. City of Alexandria, 342 So.2d 683 (La.App.3rd Cir. 1977) in which the owner of property used as a landfill attempted unsuccessfully to rely on estoppel to hold the City of Alexandria to an unauthorized contract signed by the city’s mayor. In Daspit the city council had not authorized the contract, and the council members other than the mayor were not informed of its existence. Plaintiffs argue that what was missing in Daspit is present here because the Police Jury authorized the lease of plaintiffs’ land for a landfill. This argument assumes too much.

A proper understanding of the facts of this case must take note of the fact that the sole action of the police jury was to approve the general proposition that seventeen acres of plaintiffs’ land be leased for a specific price for three years. There is no proof in the record that the proposed lease containing Paragraph 4 drafted by plaintiffs or their attorney was ever brought to the Police Jury’s attention or that the Police Jury approved the terms of the lease. It was one thing for the Police Jury to approve the general proposition of leasing but quite another thing for the Police Jury to be legally bound to the written lease as confected.

For the Police Jury to have become bound contractually, it would have been necessary that the final contract of lease as drafted be submitted to the jury for consideration and for it to have adopted an appropriate resolution approving the terms of the lease and authorizing the execution of the lease on behalf of the Police Jury by its representative.

In like manner for the Police Jury to be held under equitable estoppel it would have been necessary that the members of the Police Jury become aware of the specific terms of the written lease to which plaintiffs seek to hold the Police Jury. Plaintiffs cite the case of Rogers v. First Sewerage District of the City of Lake Charles, 171 So.2d 820 (La.App.3rd Cir. 1965), writ denied, 247 La. 716, 174 So.2d 130 (La.1965), for the proposition that estoppel is applicable to municipalities under certain circumstances if the act or conduct relied on to create estoppel is within the corporate power of the municipality. However, as plaintiffs concede in Rogers the members of the sewerage board had full knowledge of the occurrence in question. Here, however, there is no proof that any members of the Police Jury, other than the member who signed it, were aware of the provisions inserted in the contract.

It should be emphasized that the provisions of Paragraph 4 of the contract went beyond the terms of the resolution which was adopted by the Police Jury. The resolution adopted specified a consideration in money which was eventually paid. It is clear, nevertheless, that what plaintiffs hoped to reap from the contract was the filling of their low land to a level that would make it usable and consequently more valuable. Despite plaintiffs’ hopes and expectations, the Police Jury was not bound to fill the land either under contract or because of equitable estoppel. The general proposition of leasing actually approved by the Police Jury included the payment of a consideration for use of the plaintiffs’ land for waste disposal. The consideration was $240.00 per year. Assuming that there were no price deficiencies based on this amount, a lease on these terms would not have obligated the Police Jury to place any fill at all on plaintiffs’ land so long as it paid the rent.

As we understand plaintiffs’ position, it is that filling their low land up to the level of Old Town Road was the real consideration for their leasing the land to the Police Jury. As pointed out above, the Police Jury never committed itself to such an obligation, and there is no proof in the record that its members were aware that plaintiffs leased their land on the assumption that filling was a consideration.

Among the arguments urged by plaintiffs is the assertion that they purchased the property in question on the representation by the Police Jury that if they did so the Police Jury would fill it with waste to the level indicated. It is our understanding that the action of the Police Jury approving the general proposition of leasing plaintiffs’ land took place at a time when plaintiffs already owned the land. In any event, there is no evidence that the Police Jury induced plaintiffs to acquire the land by a promise to fill it.

In oral argument able counsel for plaintiffs cited the case of Marceaux v. Town of Lake Arthur, 392 So.2d 783 (La.App.3rd Cir. 1980) in connection with plaintiffs’ argument concerning unjust enrichment. We do not consider that the case is in any way apropos. In any event, however, our appreciation of this issue is that such enrichment as Calcasieu Parish may have reaped was paid for. Whether the price paid bore a proper relationship to the privilege of dumping waste material on plaintiffs’ land has not been raised. Plaintiffs simply take the position that the major consideration was the dumping of sufficient fill to bring the level of the land up to the level of Old Town Road. This, as pointed out, was not agreed to by the defendant.

Alternatively plaintiffs seek damages to compensate them for the condition in which their land was left. Again our answer is that the Police Jury paid a price for use of the land, and there is nothing in the record nor any legal considerations which required the defendant to leave the land in any particular condition.

For the foregoing reasons the judgment of the trial court is affirmed. The costs of this appeal are assessed to plaintiffs.

AFFIRMED.

      . Plaintiffs allege they are a partnership and in the past have done business as Lake Charles Auto Salvage, Inc. They further allege, however, that no such corporation has ever been registered with the State of Louisiana.

      . Plaintiffs allege in the alternative that if the court should order the defendant Police Jury to complete the fill, plaintiffs nevertheless are entitled to engineering fees of $4,000.00 and attorney fees in the amount of $90,000.00 arising from the breach and the rent due April 3, 1977, in the amount of $240.00.

      . Plaintiffs’ third supplemental and amended petition sets forth the damages as $688,880.00. In the alternative, plaintiffs’ demand is for $94,-240.00 to cover attorney and engineering fees and rent due April 3, 1977.

      . Paragraph 4 of the lease provides:
      “Lessee shall apply or add fill dirt on compacted trash as it reaches road level, specifically naming Old Town Road as the elevation point. Upon leaving leased premises all levels shall be filled and brought up to the level of roadbed. Lessee shall have at least two feet of fill dirt above trash between upper level of trash and roadbed. Upon leaving premises Lessee shall leave said premises in a level and uniform condition throughout and normal drainage necessary to sufficiently drain said property and to maintain draining of such."


text:
    William STRACENER, Plaintiff-Appellant, v. UNITED STATES FIDELITY & GUARANTY COMPANY, Defendant-Appellee.
    No. 8649.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1982.
    Writ Granted April 27, 1982.
    Baggett, McCall, Singleton & Ranier, William B. Baggett, Lake Charles, for plaintiff-appellant.
    Raggio, Cappel, Chozen & Berniard, Richard B. Cappel, Lake Charles, for defendant-appellee.
    Before GUIDRY, SWIFT and STOKER, JJ.
   SWIFT, Judge.

This is a worker’s compensation case filed by the plaintiff, William G. Stracener, against United States Fidelity & Guaranty Company, the insurer of plain riff’s employer, Nichols Construction Company. Mr. Stracener appeals from a judgment which awarded him compensation benefits for 150 weeks for the loss of a hand under LSA-R.S. 23:1221(4)(e), with penalties and an attorney’s fee.

On February 4, 1980, the plaintiff was aiding in the installation of tubes in a refinery heater when his right thumb was caught between a tube and its support, traumatically amputating the distal phalanx portion of the thumb. The accident also resulted in considerable loss of skin and nail of his thumb. Surgery involving the partial removal of the proximal phalanx of the right thumb and a skin graft was performed on February 4.

At the time of the accident plaintiff was employed by Nichols Construction Company as a boilermaker foreman at the Cities Service plant in Calcasieu Parish. He has been a boilermaker for 39 years and worked exclusively as a boilermaker foreman for the four years preceding the accident. Stracener returned to his position with Nichols on February 12, 1980, and worked as a boilermaker foreman to date of the trial except for brief intervals unrelated to his injury. The plaintiff’s doctor rated his disability as 38 percent of the hand and 75 percent of the thumb.

All medical bills and compensation totaling approximately $7400.00 ($148 per week for 50 weeks) were paid by the defendant before the trial. However, no compensation benefits were paid to the plaintiff until October 13, 1980, after suit had been filed. Weekly benefits were terminated on January 19, 1981, following payment for the 50th week.

The trial court, after finding a “significant loss of the function” of plaintiff’s hand, awarded compensation for the total loss of a hand under LSA-R.S. 23:1221(4)(e), plus the statutory penalties and a $1000.00 attorney’s fee.

The plaintiff argues on appeal that the trial court erred in failing to award 450 weeks for permanent partial disability under LSA-R.S. 23:1221(3) and that the attorney’s fee is inadequate.

The defendant answered the appeal, seeking a reduction of the award to the loss of a thumb under LSA-R.S. 23:1221(4)(a). Alternatively, the defendant contends the court erred in awarding maximum benefits for the total loss of a hand under LSA-R.S. 23:1221(4)(e) instead of a proportionate sum as mandated by subsection (4)(o) thereof dealing with the permanent partial loss of a member.

We will first consider whether the plaintiff is partially disabled within the meaning of LSA-R.S. 23:1221(3). That provision states in part:

“(3) For injury producing partial disability of the employee to perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description for which he was fitted by education, training, and experience, sixty-six and two-thirds per centum of the difference between the wages the employee was earning at the time of the injury and any lesser wages which the injured employee actually earns in any week thereafter in any gainful occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training, and experience, during the period of disability, but not beyond ... a maximum of four hundred fifty weeks for such partial disability resulting from injury occurring on and after September 1, 1977; provided further that for any week during which the employee is paid any compensation under this subdivision (3) the employer shall be entitled to a reduction of one full week of compensation against the maximum number of weeks for which compensation is payable under this subdivision (3) and for any week during which the employee is paid no compensation, because of the employee’s actual earnings during that week, the employer shall not be entitled to a reduction for that week against the maximum number of weeks for which compensation is payable under this subdivision (3), and in no event shall the total number of weeks of compensation for such partial disability under this subdivision (3) be increased beyond the maximum number of weeks stated in this subdivision (3).” [Emphasis added.]

Plaintiff argues that under this statute an employee is considered partially disabled if either he is unable to perform the duties in which he was customarily engaged when injured or he is unable to perform duties of the same or similar character for which he was fitted by education, training and experience. He does not deny that he can perform the duties of a boilermaker foreman which are supervisory in nature, but contends that he cannot do many of the tasks of a boilermaker journeyman which include climbing and working with tools. Stracener’s testimony in this regard was supported by the business manager of his union and also to some extent by the attending physician. The union agent said, however, that a foreman only works with his tools if there are no more than six men on the job. The record contains no evidence that the plaintiff has ever had to use tools in his position as a foreman. Because of his seniority and work experience plaintiff will be sent out by the union to fill the position of boilermaker foreman as long as such positions are available. Although there is an abundance of this work at present, there are indications it may decrease in the future because of worsening economic conditions.

LSA-R.S. 23:1221(3) was interpreted by this court in McElhaney v. Belden Corporation, 376 So.2d 539, 544 (La.App. 3 Cir. 1979), as follows:

“We are convinced by the evidence that plaintiff’s situation falls squarely within the definition of ‘partial disability’ as the legislature has defined it in LSA-R.S. 23:1221(3), as amended by Act 583 of 1975. Under the clear wording of the amended statute, if an employee is prevented from returning to his former employment or work of a similar character but is not prevented from engaging in gainful activity at some job, he is considered partially disabled. See Rachal v. Highlands Insurance Company, 355 So.2d 1355 (La.App. 3rd Cir. 1978); and LeBlanc v. Commercial Union Assurance Company, 349 So.2d 1283 (La.App. 1st Cir. 1977).” [Emphasis added.]

In the instant case, plaintiff returned to his former employment as a boilermaker foreman on February 12, 1980, eight days after the accident, and there is no indication that the partial loss of the function of his hand or thumb hindered the performance of his duties in any way. When this employment terminated on October 7, 1980, Mr. Stracener was able to secure another job as boilermaker foreman on October 14, 1980, and he worked exclusively as a foreman from that date until the. trial. Thus, plaintiff’s injuries have not prevented him from returning to work of the same or similar character as he was doing when injured.

In a rather similar case, Chipman v. Insurance Co. of North America, 389 So.2d 432 (La.App. 4 Cir. 1980), involving finger amputations of an experienced operator of a coil line machine, the court said:

“This employee, however, is 57 years old with a third grade education, whose exclusive working experience has been in the operation of machinery and vehicles. These factors raise the question of total or partial disability, aside from pain, because of the possibility that such an employee might become an odd-lot, and might be unable to compete, in the general labor market. See §§ 276, 279, Malone-Johnson. We resolve this issue against the employee and find him not totally or partially disabled within the meaning of the law, principally because he has been employed for almost three years now in the same gainful occupation as he was before the accident. Ashworth v. Elton Pickering, Inc., 361 So.2d 940 (La.App. 3d Cir. 1978), writs denied, is inapposite. See discussion in § 279, Malone-Johnson.”

The fact that the plaintiff may not be able to perform all the duties of a boilermaker journeyman, should the occasion ever arise for him to do so, is of no great significance in this instance, because he had exclusively worked as a foreman for four years prior to the accident and he has continued to do so for more than a year thereafter. In view of the remoteness of the possibility that Mr. Stracener will ever have to perform the tasks of a journeyman in his occupational future, we cannot say that the trial court was manifestly in error in not finding that he is partially disabled within the meaning of LSA-R.S. 23:1221(3).

Also, we do not believe that it erred in awarding benefits for loss of a hand instead of for loss of a thumb.

If the evidence fails to relate the injury to the hand as a whole in any manner other than that the thumb or finger forms a component part of the hand, then the court must limit the remedy to the loss of a thumb or finger. Nash v. Knoblock, 381 So.2d 404 (La.1980). However if the injury can be related to the whole hand rather than restricted to a finger, compensation is awarded for the disability of the hand. See Ellis v. Bemis Bro. Bag Company, 146 So.2d 667 (La.App. 4 Cir. 1962).

In Bemis a roller fell across the worker’s right hand injuring the tip of the index finger and his knuckle. At trial the judge observed the plaintiff was unable to properly close his hand. The medical testimony related the injury to his whole hand rather than restricting the injury to his finger and the compensation award was based on the scheduled benefit for disability to the hand.

In the present case the physician testified that the scars extended past the two phalanges of the thumb to inside of the webbing of the hand and that damage to the nerves extended into the hand. Further testimony established limitation of the first metacarpal of the hand due to the surgery and on occasions some pain radiates into the hand. Considering this evidence, we find no manifest error in the judge’s finding that the plaintiff’s injuries and resulting disability were related to the hand as a whole rather than just the thumb.

We are convinced, however, that the award for total loss of use of the hand was clearly wrong.

While the plaintiff’s injuries did extend slightly into the hand, there has been no actual loss of any part thereof except the distal and part of the proximal phalanges of his right thumb. The preponderance of evidence is to the effect that such loss will hinder plaintiff’s use of tools considerably, but there is no medical testimony or other evidence to substantiate a virtual 100% loss of the function or use of his hand. The only testimony as to a specific loss thereof was that of Dr. Phillips, who estimated that such loss of function amounted to 38% of the hand.

LSA-R.S. 23:1221(4)(o) states:

“In all cases involving a permanent partial loss of the use or function of the members mentioned hereinabove, compensation shall bear such proportion to the amounts named herein for the total loss of such members as the disability to such members bears to the total loss of the member, provided that in no case shall compensation for an injury to a member exceed the compensation payable for the loss of such member.”

Therefore the proper award in this case under the statute is 38% of 66%% of plaintiff’s weekly wages of $550.00, or $139.34 per week for 150 weeks, subject to a credit for the weekly compensation previously paid.

The facts of this case are clearly distinguishable from those before the supreme court in Naquin v. Uniroyal, Inc., No. 81-C-1081, rendered September 28, 1981, 405 So.2d 525 (La.1981). Mr. Naquin had been employed by Uniroyal at its plant for about 24 years. During the six years preceding his accident he was an operations control coordinator whose duties were principally supervisory in nature. Several weeks after sustaining a shoulder injury the plaintiff returned to his former job at the same salary and he was able to carry out most of his duties. However, because of a permanent disability of his arm, Naquin was unable to perform some acts of manual labor which were incidental to his supervisory job that he had done previously. These physical tasks “were expected by his employer and important to the effective performance of his work as a supervisor of other workers.” Because the plaintiff could no longer perform the employment duties in which he was customarily engaged when injured, the supreme court determined that he was entitled to benefits for partial disability.

In the present case there is no indication that the plaintiff’s disability has affected the performance of his duties as a boilermaker foreman in any way. Nor was it established that he will ever have to do the manual tasks a journeyman boilermaker, for which he is handicapped to some extent. Consequently, his compensation award is based on LSA-R.S. 23:1221(4)(o).

Under our jurisprudence the trial court is afforded great discretion in setting the amounts awarded for attorney’s fees. Jones v. Brown & Root, Inc., 379 So.2d 872 (La.App. 4 Cir. 1980); and Carter v. Roy O. Martin Industries, Inc., 336 So.2d 1002 (La.App. 3 Cir. 1976).

The trial in the present case lasted less than a day, only four witnesses having testified. Under the circumstances, while we think the amount awarded was low, we cannot say that there was such an abuse of discretion by the trial court as to warrant our amending his judgment in this respect. See Dufrene v. St. Charles Parish Police Jury, 371 So.2d 378 (La.App. 4 Cir. 1979); and Simon v. Commercial Union Assurance Company, 389 So.2d 1367 (La.App. 3 Cir. 1980).

For the foregoing reasons, the judgment of the district court is amended to reduce the weekly compensation benefits awarded from $148.00 to $139.34 per week for 150 weeks, subject to credits for the amounts heretofore paid. Otherwise, it is affirmed. The costs of this appeal are assessed to the plai ntif f-appellant.

AMENDED AND AFFIRMED.


author: GUIDRY, Judge. STOKER, Judge,

text:
    Mrs. Olga Clay CASTILLE, Plaintiff-Appellant, v. Michael MELANCON, Defendant-Appellee.
    No. 8658.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1982.

      Come & Block, Gerald J. Block, Lafayette, for plaintiff-appellant.
    DeJean, DeJean & DeJean, Robert F. De-Jean, Jr., Opelousas, for defendant-appellee.
    Before GUIDRY, SWIFT and STOKER, JJ.
   GUIDRY, Judge.

This is a suit for damages. Plaintiff, Mrs. Olga Clay Castille, instituted this action against the defendant, Michael Melan-con, to recover damages for injuries and the wrongful death of her son, Donald Joseph Clay (hereafter Joe Clay) which resulted from an attack by defendant’s doberman pinscher upon plaintiff’s decedent. Mrs. Castille contends that Melancon committed an intentional tort when, without provocation, he ordered his dog to attack Joe Clay resulting in injury to Clay which ultimately resulted in his death several hours later. In the alternative, plaintiff contends that the decedent’s injuries and death resulted from the gross negligence of Melancon in failing to maintain control of his domesticated animal.

Prior to trial, plaintiff filed a motion to compel discovery based upon defendant’s failure to answer interrogatories propounded by plaintiff’s counsel. On July 17, 1979, a judgment was entered by the district court which ordered the defendant to disclose the names of all witnesses to the facts and surrounding circumstances of the alleged tortious occurrence. Defendant complied with this order but failed to list Becky Hebert and Bernard Ortego as potential witnesses.

The case was tried to a jury* which concluded that (1) the defendant did not intentionally harm the decedent; (2) defendant’s domesticated animal did cause harm to Joe Clay; and, (3) the plaintiff is entitled to an award of damages in the sum of $10,000.00. A judgment consistent with the jury’s verdict was signed on February 17, 1981. Thereafter, the plaintiff took this appeal. The defendant has neither appealed the judgment nor answered plaintiff’s appeal.

The record discloses that on December 31, 1977, plaintiff’s decedent, Joe Clay, a fifty year old, minimally retarded man, was “attacked” by defendant’s doberman pinscher. The testimony is in conflict as to the exact manner in which Clay was injured. However, the record clearly reflects that as Clay was attempting to cross Highway 182 in Sunset, Louisiana, defendant’s dog jumped and knocked Clay down in the middle of the highway. Shortly thereafter, Melancon regained control of his animal, and Clay walked to a nearby service station where he remained until the plaintiff picked him up and drove him home. Witnesses testified that following the attack, Clay was extremely pale and appeared frightened and nervous. Mrs. Castille stated that Clay had always had an extreme fear of dogs. Subsequently, Clay was examined and treated by his family physician, Dr. John Fruge. Dr. Fruge stated that Clay sustained a superficial scratch to his lower right leg as a result of the incident. Fruge testified that he cleaned the wound, applied a simple dressing, and administered two tetanus injections in treating the minor injury. Dr. Fruge stated that although the decedent appeared to be somewhat upset and agitated at the time of treatment, it was his opinion that Clay’s emotional condition did not require the administration of a sedative. After receiving medical attention, plaintiff and Clay returned home. Mrs. Castille testified that she, her husband, and Clay ate dinner at about 5:00 p.m. after which Clay retired to his room for the evening. At 2:30 a.m. on January 1, 1978, plaintiff discovered thgt her son had died at some time during the night.

In addition to Dr. Fruge’s testimony, two other medical expert witnesses testified at trial, Dr. Ronald N. Padgett and Dr. David G. Baker. Dr. Padgett, a pathologist, conducted Clay’s autopsy. He testified that the cause of Clay’s death was occlusion of the left anterior coronary artery. Padgett stated that the occlusion of the artery resulted partially from a thrombus (blood clot) and partially from an advanced stage of arteriosclerosis or hardening of the arteries, a disease commonly associated with the aging process. Dr. Padgett stated that any event which increases the heart’s need for more oxygen could precipitate a heart attack in an individual suffering from occlusion of the heart’s vessels. For example, Dr. Padgett stated that a frightful occurrence, any form of exercise, even simply walking down a street, could result in an increased need for oxygen to the heart. Padgett also indicated that a thrombus, such as that experienced by Clay, does not occur immediately, but rather, may develop over a period of time. Dr. David G. Baker, a cardiologist, testified at trial that, after reviewing the decedent’s autopsy report and death certificate and being informed of the dog attack on Clay the afternoon prior to his heart attack, it was his opinion to a medical certainty that Clay’s heart attack resulted from the agitation and fright experienced by the decedent following the aforesaid attack.

In brief, plaintiff assigns the following errors:

(1) The jury erred in concluding that the defendant did not intentionally harm plaintiff’s decedent.
(2) The trial judge erred in permitting the testimony of Becky Hebert and Bernard Ortego to be introduced at trial despite the alleged failure of defense counsel to disclose the names of the aforesaid witnesses pursuant to an order compelling discovery.
(3) The jury erred in awarding only $10,-000.00 in damages to plaintiff.

Plaintiff contends that the jury erred in concluding that the defendant did not commit an intentional tort by allegedly “sicc-ing” his doberman pinscher dog on the decedent.

The defendant testified that prior to the incident, he and Clay had been drinking and socializing together at a local bar until such time as Melancon decided to go to his vehicle to obtain some money. As Melancon exited the bar, he passed Clay, who was standing at the door. Melancon stated that he unlocked his vehicle and pushed back the seat in order to get to the cash box he had placed in the backseat. As he did so, his doberman pinscher jumped out of the backseat where the dog had been confined for several hours. Melancon ordered the animal to get back in the vehicle, but the dog did not obey. Melancon stated that he then proceeded to obtain the money from the backseat of his vehicle when he heard someone call his name. When he looked up, he observed his dog jumping on the decedent as Clay attempted to cross the main street of Sunset. Melancon stated that he then immediately retrieved his animal.

Manual Garza, a dog training expert, testified that he examined the defendant’s dog on three different occasions. Garza stated that after such examinations, he concluded that defendant’s doberman pinscher was not trained to attack and was nothing more than a playful puppy. Garza testified that a dog trained to attack on command has the ability to inflict severe gashes, deep puncture wounds, and break bones. As previously indicated, the decedent suffered only a superficial scratch on his lower leg as a result of the alleged attack.

Plaintiff’s witness, Marilyn Hossley, presented the only testimony indicating that the defendant intentionally harmed plaintiff’s decedent by ordering his dog to attack Clay. Mrs. Hossley stated that she was standing at the doorway of her service station located nearby when she observed the defendant exiting the lounge. Hossley testified that apparently the defendant was teasing Clay by wearing his hat and refusing to give it back. After Clay retrieved his hat, he proceeded to walk toward her service station. Meanwhile, Mrs. Hossley stated, the defendant had opened the door to his vehicle, let his dog out, and ordered the dog to “Get him.” Hossley testified that the dog thereafter “attacked” plaintiff’s decedent.

After hearing all of the testimony presented at trial, the jury concluded that the defendant did not intentionally harm plaintiff’s decedent. In so concluding, the jury was presumably influenced by the distance between Hossley and the defendant at the time Hossley allegedly heard the defendant order his dog to “Get him”, as well as the similarity in sound of the words “Get him” and “Get in”, especially at such a distance. The jury’s conclusion as to the non-intentional nature of the defendant’s acts is a finding of fact. As such, the jury’s conclusion may not be disturbed on appeal absent a finding of clear error. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, writ granted, 359 So.2d 1303 (La.1978), 365 So.2d 1330 (La.1978), on remand, 370 So.2d 1262 (La.App. 3rd Cir. 1979); Bertrand v. Aetna Casualty and Surety Company, 306 So.2d 343 (La.App. 3rd Cir. 1975). After reviewing the testimony and evidence presented at trial we conclude that the jury did not commit clear error in concluding that the defendant was not guilty of committing an intentional tort.

Plaintiff alleges that the trial court erred in admitting the testimony of Becky Hebert and Bernard Ortego despite the alleged failure of defense counsel to disclose the names of the aforesaid witnesses pursuant to an order compelling discovery.

LSA-C.C.P. Article 1471 provides in pertinent part:

“If a party or an officer, director, or managing agent of a party or a person designated under Articles 1442 or 1448 to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under Article 1469 or Article 1464, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
* * *c * * *
(2) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence.” (Emphasis ours)

The clear language of the statute above set forth indicates that the imposition of any sanctions for the failure of a party to comply with an order compelling discovery is discretionary on the part of the trial court. In Viator v. Sonnier, 355 So.2d 1091 (La.App. 3rd Cir. 1978), our court stated in regard to LSA-C.C.P. Article 1471:

“The above article provides various sanctions that may be imposed by the trial judge for the failure to obey a discovery order. These sanctions should not be incorporated in the order. These sanctions are discretionary and may be imposed by the court if the order is disobeyed without justification.”

The decision to permit the introduction of testimony by Hebert and Ortego was clearly within the discretion of the trial court. We discern no error on the part of the trial court in permitting the introduction of testimony by the aforesaid witnesses.

The final issue on appeal is whether or not the jury’s award of damages in the sum of $10,000.00 is so inadequate as to constitute a clear abuse of that body’s wide discretion.

After evaluating the evidence and testimony presented at trial, the jury returned a general verdict which stated that although the defendant did not intentionally harm Joe Clay, he caused “harm” to Clay by failing to maintain control of his dog. The jury’s verdict failed to specify what type of harm was caused by defendant.

If we were to presume that the jury concluded that the harm caused by Melan-con consisted only of the superficial scratch sustained by Clay and the extreme fright experienced by plaintiff’s decedent as a result of his encounter with defendant’s dog, we might conclude that the award of $10,-000.00 is excessive. However, as stated previously, Melancon has neither appealed from that judgment nor answered plaintiff’s appeal requesting modification of the jury’s award, therefore, such award may not be reduced. See Tri-State Insurance Company v. Mason, 369 So.2d 220 (La.App. 3rd Cir. 1979); LSA-C.C.P. Art. 2133. In light of the sum of damages awarded, the jury must have concluded that Clay’s encounter with defendant’s dog contributed to Clay’s death several hours following the alleged attack. Therefore, we consider the issue of quantum in light of a factual finding that there existed causal connexity between the disputed incident and the ultimate death of plaintiff’s decedent.

In considering the propriety of the jury’s award in this case, we are guided by certain legal principles governing appellate review of damage awards. It is well settled that before an appellate court may disturb an award made by a jury, an abuse of discretion by the trier of fact must be clearly reflected by the record. See Reggans v. Aetna Casualty & Surety Company, 308 So.2d 898 (La.App. 2nd Cir. 1974), writ refused, 310 So.2d 642 and 310 So.2d 646 (La.1975). As stated by this court in Fowler v. Western Union Telegraph Company, 357 So.2d 1305 (La.App. 3rd Cir. 1978),

“The phrase ‘abuse of discretion’ is at best an elusive term that is subject to varying interpretations. We note that in Coco [v. Winston Industries, La., 341 So.2d 332] supra, the Supreme Court stated that a determination as to whether or not an abuse of discretion exists is a ‘judgment call’.”

The jury awarded $10,000.00 to plaintiff for the wrongful death of her son, Joe Clay. Plaintiff contends that this award is grossly inadequate and refers this court to other awards for wrongful death in support of her contention. We agree that such award is low, however, we conclude that under the particular circumstances of this case, the award cannot be considered below the lowest amount the trier of fact could reasonably have awarded.

Plaintiff’s decedent, Joe Clay, was fifty years old at the time of his death. Clay was considered minimally retarded and was never gainfully employed. He resided with his mother and stepfather in Sunset, Louisiana, where he spent the majority of his time visiting local business places and socializing with various townspeople. Medical testimony received at trial revealed that Clay suffered from arteriosclerosis, possessed a history of high blood pressure, and was undergoing treatment for severe emotional problems. Treatment of Clay’s mental condition included the administration of strong psychotrophic drugs. We note that Clay’s undiagnosed heart condition predisposed him to a heart attack which could occur without warning at any time.

Additionally, the record reflects that the defendant’s ability to pay an award of damages is greatly limited. Melancon testified that he works as a carpenter’s helper, but due to the present litigation, he was, at the time of trial, unemployed. In addition, defendant stated that he does not own a car, possess any real estate, or have any money in the bank. Our courts have held that a defendant’s ability to pay is a factor to be considered in awarding damages. Barrett v. State Farm Mutual Automobile Insurance Company, 236 So.2d 900 (La.App. 3rd Cir. 1970); Rollins v. New York Fire and Marine Underwriter's Inc., 225 So.2d 663 (La.App. 3rd Cir. 1969), writ refused, 254 La. 855, 227 So.2d 595 (1969). Clearly, Me-lancon’s ability to pay is limited, and presumably, the jury properly considered this in deciding the issue of quantum of damages. As aforestated, although we consider that the jury’s award borders on the low side of the spectrum, we conclude that under the circumstances, the jury’s award is not lower than the lowest amount that could be awarded under the present facts, and thus, is not a clear abuse of the wide discretion afforded juries in determining damage awards.

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

AFFIRMED.

STOKER, J., concurs and assigns written reasons.

STOKER, Judge,

concurring.

I agree with the majority opinion but have some reservations concerning the reasons given for affirming the amount of damages awarded. I concur in the affirmance of the award on the ground that the defendant was unable to pay more than the award.

      . Witnesses testified that prior to the alleged attack, Clay had been drinking and dancing at one of the local bars.

      . Presumably, the plaintiff sought a finding to this effect because of the well-established rule that a debt for injury by the debtor to the person or property of another which is proved to be intentional on the part of the debtor is considered a “nondischargeable debt” under the laws regulating actions in bankruptcy. See 9A Am.Jur.2d § 804.


author: GUIDRY, Judge.

text:
    Mazie Ann Guice ALEXANDER, Plaintiff-Appellant, v. Royce R. ALEXANDER, Defendant-Appellee.
    No. 8426.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1982.
    William D. Hall, Shreveport, for plaintiff-appellant.
    Meadows & Meadows, William M. Meadows, Jr., Homer, for defendant-appellee.
    Before GUIDRY, SWIFT and STOKER, JJ.
   GUIDRY, Judge.

In this case plaintiff seeks recognition as owner of a percentage of defendant’s military retirement pay. As a basis for her claim plaintiff alleges that defendant’s eligibility for such pay was earned during the existence of their marriage and thus the retirement pay forms part of the community of acquets and gains formerly existing between them. Defendant filed an exception of no cause of action which was sustained by the trial court. Plaintiff appeals. We affirm.

It is now settled that federal law precludes a division of military retirement benefits pursuant to state community property laws. McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981); Dedon v. Dedon, 404 So.2d 904 (La.1981); Norsworthy v. Norsworthy, 397 So.2d 796 (La.1981); Evans v. Wells, 408 So.2d 5, docket number 8408 (La.App. 3rd Cir. 1981).

For the above and foregoing reasons the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.