text:
    Elnora TOPPS v. UNIVERSAL LIFE INSURANCE COMPANY.
    No. 14004.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1981.
    Robert W. Stratton, Baker, counsel for plaintiff-appellant, Elnora Topps.
    Robert C. Williams, Baton Rougé, for ap-pellee Universal Life Ins. Co.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   COVINGTON, Judge.

In this matter Elnora Topps, the widow of Louis Topps and the named beneficiary under the insurance policy in question, sued the insurer, Universal Life Insurance Company, to recover the proceeds of a policy of life insurance on the life of her husband issued by the insurer. From a judgment in favor of the defendant, plaintiff appeals. We affirm.

The insured, Louis Topps, applied for life insurance with Universal on May 9,1977, at the age of 36 years. He died on February 8, 1979. The application for insurance was taken by an agent of the insurance company, Rosalie Bailey. • The application, which was made a part of the policy, contains a number of questions, all of which were asked of the insured by the agent. One of the questions specifically asks if the insured has ever had or been treated for high blood pressure. The answer was given as “no.” The application also specifically asks if the applicant had ever had or been treated for a number of stated ailments, e. g., “kidney or bladder disease.” He answered “no” to each of them. In addition, the application contains a “catch all” question: “Have you consulted a physician within the last five years for any condition not stated above?” Again, the answer was “no.” Subsequently, the insured’s medical records revealed that he had been suffering from high blood pressure for a number of years and was, at the time of the application, under a doctor’s care. The records further revealed that Mr. Topps had received extensive treatment for the disease and he was classified as “severe hypertensive.” The records indicate that Mr. Topps was well aware that he was suffering from high blood pressure, having made regular and frequent visits to doctors for the condition, having been hospitalized for the condition, and having been placed on a “no salt” and restricted diet. His treating physician testified that Mr. Topps was aware of his condition.

Universal Life Insurance Company relies upon LSA-R.S. 22:619(B) for its defense to the plaintiff’s claim for the proceeds in question.

LSA-R.S. 22:619(B) provides:

“B. In any application for life or health and accident insurance made in writing by the insured, all statements therein made by the insured shall, in the absence of fraud, be deemed representations and not warranties. The falsity of any such statement shall not bar the right to recovery under the contract unless such false statement was made with actual intent to deceive or unless it materially affected either the acceptance of the risk or the hazard assumed by the insurer.”

In the recent case of Watson v. Life Insurance Company of Louisiana, 335 So.2d 518 (La.App. 1 Cir. 1976), this Court set forth the criteria necessary for successful assertion by an insurer of a defense under LSA-R.S. 22:619(B):

“In order for the insurer to successfully urge LSA-R.S. 22:619(B) as a defense to recovery of the proceeds by the plaintiff-appellant, it must be proved that material misrepresentations were made fraudulently or with intent to deceive the insurer and that the misrepresentations materially affected the risk assumed by the insurer. Gay v. United Benefit Life Insurance Company, 233 La. 226, 96 So.2d 497 (1957); Reed v. American Casualty Company of Reading Pennsylvania, 317 So.2d 648 (La.App. 1st Cir. 1975), writ refused, 320 So.2d 914 (1975); Parfait v. Minnesota Mutual Life Insurance Company, 311 So.2d 558 (La.App. 4th Cir. 1975), writ refused 313 So.2d 847 (1975); Knight v. Jefferson Standard Life Insurance Company, 205 So.2d 485 (La.App. 1st Cir. 1967). Thus, the burden of proof is on the insurer to prove, in addition to the falsity of the statement made, the following two elements: (1) materiality and (2) intent to deceive. Stoma v. Prudential Insurance Company of America, 281 So.2d 871 (La.App. 3rd Cir. 1973).”

The record establishes clearly that the insured’s statements concerning “high blood pressure” and not having consulted a doctor in the past five years were false. The trial judge observed in his oral reasons for judgment that Mr. .Topps knew he had high blood pressure (hypertension); that the insured told his treating physician that he was being treated for this condition at the hospital and showed the doctor the medicine he was taking. The trial judge also noted that the statement that the insured had not seen a doctor in the last five years was false: “In fact, he had just seen Dr. Lucas on May 3, 1977, having seen him on three occasions prior to May; those being the twenty-sixth of April, twenty-first of April and the nineteenth of April, 1979.[] ”

The trial judge found that the misrepresentations made by Mr. Topps were material in affecting the insurer’s decision to enter into the insurance contract; they materially affected the acceptance of the risk or hazard assumed by the insurer.

The decedent’s misrepresentations kept the application from being screened by the company, as reflected by the testimony of William Frederick, manager of the insurer’s Baton Rouge office:

“Q. ... you indicated that you screen the application to see if there are any questions on the application indicating that the person has any medical condition?
A. Medical condition and to see if all questions were answered, because every one — every question must be answered.
Q. Assuming that you get an answer that a person has had a medical condition, what then happens?
A. The first thing, the application will go to the home office where there is an underwriting department and a doctor who also screens applications.
Q. The condition hypertension, high blood pressure ... on the application; if an individual answers yes, I’ve had high blood pressure, would your company issue him a policy?
A. No, not unless — not without further investigation.
Q. And what would be the nature of that further investigation?
A. We would send out an independent investigator, plus a form to be sent to the doctor to find out exactly how .high the pressure was and was it controllable or just what.
Q. If the individual indicated that he had been hospitalized or under a doctor’s care for any other condition other than those listed on the document, would the same steps hold true?
A. The same steps would hold true.... ”

Mr. Frederick testified that if a “yes” had been checked on the high blood pressure column, it would have been necessary for the underwriting department to check to determine whether they would still issue the policy.

In considering the testimony of Mr. Frederick, the trial judge remarked:

“The underwriting department was not given an opportunity to check on this because of the negative answer. The court feels and finds that the negative answer did constitute an item that would materially affect the acceptance of the risk by the insurer.”

In the case of Parfait v. Minnesota Mutual Life Insurance Company, 311 So.2d 558, 560 (La.App. 4 Cir. 1975), writ refused, 313 So.2d 847 (La.1975), the Court said:

“Intent to deceive may involve either knowledge of falsity of the statement and its materiality to the risk or circumstances in which an insured must have known the statement to be material to the risk. Strict proof of fraud is not required. Murphy v. Continental Casualty Company, 269 So.2d 507 (La.App. 1 Cir. 1972).”

In determining whether the statements of the insured in his application were made with the intent to deceive, we are guided by the opinion.in Watson v. Life Insurance Company of Louisiana, supra at 521:

“Strict proof of fraud is not required to show the applicant’s intent to deceive, because of the inherent difficulties of proving one’s intent. The intent to deceive must be determined from the attending circumstances which indicate the insured’s knowledge of the falsity of the representations made in the application and his recognition of the materiality thereof, or from circumstances which create a reasonable assumption that the insured recognized the materiality of the misrepresentations. Reed v. American Casualty Company of Reading, Pennsylvania, supra; Parfait v. Minnesota Mutual Life Insurance Company, supra; Murphy v. Continental Casualty Company, 269 So.2d 507 (La.App. 1st Cir. 1972).”

As evidenced by the medical records, the testimony of Dr. J. S. Lucas and of the decedent’s wife, the decedent was well-aware of his high blood pressure condition. The trial judge stated:

“Obviously, from the testimony, Mr. Topps knew that he had been to the hospital in 1975, suffering from severe high blood pressure; severe to the extent that he was there in January of ’75, February of ’75, March of ’75; he went one time in February of ’75; informed that he had missed thirty days of work because of high blood pressure. Mr. Topps knew that he was suffering from high blood pressure on the nineteenth of April, 1977; he visited Dr. Lucas and told Dr. Lucas he had been treated for high blood pressure or hypertension at Earl K. Long Hospital. And was told his blood pressure was 260 over 202.
“The court finds that Mr. Topps, in answering negatively to the question that he had never had high blood pressure, intended to deceive Universal Life Insurance Company so that they would issue the policy of insurance.”

The application for life insurance shows that all questions concerning previous treatment for diseases, including hypertension, were answered in the negative. On the trial it was clearly established that the decedent was under constant treatment for high blood pressure, and that both he and his wife were aware of his condition when the application was made. It is clear that the statements were false, were material to the risk assumed by Universal, and were made with intent to deceive the insurer. See Johnson v. Occidental Life Insurance Company of California, 368 So.2d 1032 (La. 1979).

For the reasons assigned, the judgment of the District Court is affirmed at the appellant’s costs.

AFFIRMED.

      . This is obviously an error; it should read 1977, in conformity with the testimony of Dr. Lucas.


source: Caselaw Access Project

author: COLE, Judge.

license: Public Domain

text:
    STARMOUNT # 1 v. Dan KLEIN and Earl Klein.
    No. 13967.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1981.

      Victor A. Sachse, III, Charles W. Lamar, III, Baton Rouge, for plaintiff-appellee, Starmount No. 1.
    Ralph M. Kelton, Baton Rouge, for defendants-appellants, Dan Klein and Earl Klein.
    Before ELLIS, COLE and WATKINS, JJ.
   COLE, Judge.

The issue in this possessory action is whether or not either party is entitled to damages. Because we find no manifest error in the trial court’s denial of damages, we affirm.

The facts of the case reveal a mutuality of errors by the parties. Dan Klein leased approximately 300 acres of land in East Baton Rouge Parish from Josef Sternberg, president of the plaintiff corporation. The lease began in 1963 and was maintained, either verbally or in writing, until the spring of 1978. In 1969 defendant Dan Klein purchased a one acre tract, described as lot # 1, Rolling Acres subdivision, which was adjacent to the southeastern comer of plaintiff’s property. Defendant used this land to stable his horses and lived on plaintiff’s adjacent property.

When the lease ended in 1978 Dan Klein vacated most of the 300 acre tract but through his son Errol (referred to as “Earl” throughout the record) continued to possess a fenced area in the southeastern corner. The area contained stables and a mobile home. Plaintiff was unaware Klein had purchased the one acre tract and assumed that the entire area occupied by Klein belonged to Starmount. Klein ignored plaintiff’s request to vacate and an eviction suit was instituted but was later dismissed. Starmount then filed a possessory action and in the course of the litigation it was revealed that Klein was the record owner of a one acre tract but had in fact constructed the fence so that he was physically possessing about two acres of Starmount’s land beyond his property line. The parties agreed to a survey, the boundary matter was amicably settled and a new fence was constructed along the property line.

Rather than dismissing the possessory action, Starmount opted to continue the litigation in order to obtain a judgment establishing its rights to the disputed land. The Kleins filed a reconventional demand seeking damages for mental anguish. Judgment was rendered in Starmount’s favor and both parties were denied damages. Neither party appeals the judgment as regarding the ownership or possession of the land. Both parties have appealed on the question of damages only.

Starmount argues it is entitled to a total of $1,465.00 in damages for lost rent, expenses in clearing the abandoned property and the cost of the survey. La.Code Civ.P. art. 3662 allows a successful plaintiff in a possessory action to be awarded damages. The trial court denied the award, noting at least part of Starmount’s claim (for the one acre lot owned by Klein) was unjustified and could have been avoided by an examination of the public records.

We find no merit in Starmount’s argument that they are not affected by the public records doctrine. They argue that the public recordation of Klein’s ownership of lot # 1, Rolling Acres, affects only those third persons who are dealing with that particular lot. Starmount claims they were not asserting rights to lot # 1, Rolling Acres but only to the land owned by Star-mount, therefore they are not charged with the knowledge of Klein’s ownership of lot # 1. This argument misrepresents the facts. It is true that the legal description of the property claimed in the possessory action refers only to that property owned by Starmount. Nonetheless, there is evidence in the record showing Starmount was claiming the land owned by Klein. Offered as an exhibit was a letter written by Star-mount to Klein, asserting that Starmount owned the land on which the stables were located. The record shows the stables were located on lot # 1, Rolling Acres. Testimony at trial confirmed that when the suit was initiated Starmount believed the entire tract possessed by Klein was owned by Starmount. Therefore, Starmount was in fact asserting rights to lot # 1, Rolling Acres. An examination of the public records would have revealed to Starmount that the “stable area” was indeed owned by Klein. They would then have proceeded with their possessory action, but with the specific purpose of claiming the right to possess the portion of the tract that rightfully belonged to Starmount, rather than the entire tract.

We find the trial court’s denial of damages to be justified. Any damages suffered by Starmount are not so much the result of Klein’s wrongful possession as the result of Starmount’s lack of knowledge as to the location of the boundary. An examination of the public records would have revealed Starmount was mistaken as to its belief concerning the extent of Klein’s wrongful possession and the matter could likely have been remedied without taking legal action.

Defendants argue they are entitled to damages for mental anguish, humiliation, embarrassment and for attorney’s fees. It is now well settled that attorney’s fees are allowed only when provided by contract or law. Simmons v. Hernandez, 287 So.2d 637 (La.App. 3d Cir. 1973), writ denied 1974. Hutchinson v. A. L. Bufkin Corporation, 265 So.2d 635 (La.App. 2d Cir. 1972). Defendants argue attorney’s fees are included in “damages” under La.Code Civ.P. art. 3662. We disagree. Attorney’s fees were correctly denied.

As regards the claim for damages for mental anguish and embarrassment we find the trial court was correct in denying an award. The Kleins can hardly claim to have been humiliated by the suit for eviction or the possessory action when in fact they were possessing approximately two acres of land belonging to Starmount. It is true that they rightfully possessed one acre of the land and may have suffered some anxiety when they believed the suit was an attempt to remove them from the entire premises. Nonetheless, the majority of the land was being wrongfully possessed and we agree with the trial court it would be inequitable to allow damages in this situation.

In conclusion, neither party is entitled to damages because both parties were mistaken as to the extent of their properties. Starmount was overreaching in its attempt to regain possession of the entire tract, and the Kleins were overreaching in possessing two acres beyond their boundary. Both parties were at fault; neither party is entitled to damages.

For the foregoing reasons, the judgment of the trial court is affirmed. Costs on appeal are to be paid one-half by plaintiff and one-half by defendants.

AFFIRMED.


author: WATKINS, Judge.

text:
    Edward T. URSIN, II, et al., v. INSURANCE GUARANTY ASSOCIATION.
    No. 13971.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1981.
    Writ Granted May 1,1981.
    Calvin E. Hardin, Jr., Sera H. Russell, III, Baton Rouge, for plaintiff-appellee, Edward T. Ursin, II et al.
    Charles A. Schutte, Jr., Baton, Rouge, for defendant-appellant, Ins. Guaranty Assn.

      Before ELLIS, COLE and WATKINS, JJ.
   WATKINS, Judge.

This appeal is taken by the Louisiana Insurance Guaranty Association (LIGA) from a judgment in favor of National Indemnity Company and against it in the sum of $5,000.00. We reverse in part.

The matter was tried on motions for summary judgment on behalf of plaintiffs (Edward T. Ursin, II, and National Indemnity) and defendant (LIGA) and decided on a stipulation of facts submitted by both plaintiffs and defendant. The facts as stipulated may be briefly summarized as follows:

On June 6,1975, a 1969 Volkswagen automobile driven by Edward T. Ursin, II was involved in an automobile accident with a vehicle driven by Rosalie Picolo, wife of Arthur Picolo, at the intersection of Veterans Memorial Boulevard and Edenborne Avenue in Jefferson Parish. Mrs. Picolo required medical treatment for injuries sustained therefrom. On March 24, 1976, Arthur Picolo and Rosalie Picolo filed suit against Edward T. Ursin and Manchester Insurance and Indemnity Company in the 24th Judicial District Court for Jefferson Parish. Edward T. Ursin, II was given as the correct name of defendant Ursin by amended petition.

The Volkswagen was insured by Manchester up to $5,000 per person and by National Indemnity Company in excess of $5,000 up to $95,000 per person. After suit was filed, Manchester’s financial position became such that it was unable to provide a defense for Mr. Ursin. Mr. Ursin was compelled to hire a lawyer, for whose expenses LIGA admits it was obligated to pay, less a $100.00 statutory deductible. The amount thus due Ursin was included in the judgment from which this appeal is taken, but is not a subject of the appeal.

On March 23, 1977, Mr. and Mrs. Picolo compromised their claim for $75,000, and their suit was dismissed with prejudice. The National Indemnity Company paid $75,000 to effect the settlement. Five thousand dollars ($5,000) of this amount was paid by National Indemnity on behalf of Mr. Ursin pursuant to an agreement executed by Mr. Ursin and National Indemnity Company (which was attached as an exhibit to the joint stipulation) whereby Ursin assigned his rights against Manchester to National Indemnity Company. Manchester became insolvent and National Indemnity Company filed the present action against LIGA (which was established to provide a mechanism for payment of “covered claims” and to protect against the insolvency of an insurer) to compel it to assume that claim as a “covered claim” under LSA-R.S. 22:1375-1394.

LIGA contends that the claim is not a covered claim as that term is defined in the Revised Statutes of this state. We are compelled to agree.

The pertinent definition, which is definition (3) under LSA-R.S. 22:1379, is as follows:

“ ‘Covered claim’ means an unpaid claim, including one for unearned premiums, which arises out of and is within the coverage and not in excess of the applicable limits of an insurance policy to which this Part applies issued by an insurer, if such insurer becomes an insolvent insurer after September 1, 1970 and (a) the claimant or insured is a resident of this state at the time of the insured event; or (b) the property from which the claim arises is permanently located in this state. ‘Covered claim’ shall not include any amount due any reinsurer, insurer, insurance pool, or underwriting association, as subrogation recoveries or otherwise.”

Thus, a claim does not fall within the statutory definition if it is an amount due any “insurer” as “subrogation recoveries or otherwise.”

The present claim comes very close to being a subrogation in favor of a third person who pays the debt of another as that form of subrogation is found in LSA-C.C. art. 2160(1). However, the agreement is characterized by National Indemnity Company and Ursin in their written agreement as an assignment, and is thus not a subrogation expressed by the parties, which expression the cited portion of the Codal article requires for a subrogation to fall under C.C. art. 2160(1).

The language of the agreement between National Indemnity Company and Ursin that provides for an assignment of Ursin’s claim against Manchester is as follows:

“NOW THEREFORE, in consideration of the payment by National Indemnity Company for itself and for and on behalf of Edward T. Ursin, II of the first $5,000.00 of the total settlement of $75,-000.00, I, Edward T. Ursin, II do hereby sell, assign, transfer, set over and deliver unto National Indemnity Company any and all claims which I have or may have against Manchester Insurance & Indemnity Company under that certain policy of primary liability insurance issued to Manchester Insurance & Indemnity Company up to the sum of $5,000.00, and I authorize National Indemnity Company, acting in its own name or in my name, but for its benefit, to assert a claim therefor against Manchester Insurance & Indemnity Company, or any other person, firm, organization, insurance fund, or agency who may be liable therefor, whether by litigation or otherwise, and I do hereby agree to execute any and all documents and papers which may be necessary now or in the future to prosecute said claim, and to pay over and deliver to National Indemnity Company any and all funds or payments received or to be received by me in connection therewith, up to the sum of the first $5,000.00 recovered.”

The question then becomes one of whether the assignment, not being a subrogation, falls within the “or otherwise” phrase of the statutory definition of “covered claims.” If it does, the claim is not a “covered claim.”

In Black’s Law Dictionary (4th Ed.) “otherwise” is defined as follows:

“In a different manner; in another way, or in other ways. Safe Deposit & Trust Co. of Baltimore v. New York Life Ins. Co., D.C., Md., 14 F.Supp. 721, 726.”

The general usage of the word “otherwise” in the English language is similar. Webster’s New World Dictionary defines “otherwise” as follows:

“1. in another manner; differently: as, she believed otherwise. 2. in all other points or respects: as, he is otherwise intelligent. 3. in other circumstances. .

Clearly, the assignment falls within the phrase “or otherwise” because even if the assigned claim is not payable as a subrogation recovery (because it is a claim acquired by assignment), then it is payable “in a different manner”, i. e., by assignment. The statute as read under the certain meaning of the English language is unequivocal; “otherwise” clearly includes a claim or recovery arising from assignment.

It could be argued, conceivably, that “insurer” as used in the definition of “covered claim” means only an insurer acting in the role of insurer, and that National Indemnity Company received no premium to require it to pay the $5,000 which it put up to cover the claim against Manchester. However, it is quite apparent that National Indemnity Company entered into the assignment solely to avoid the risk of being held for a greater amount (up to the stated policy limit) if it permitted the Picolo suit to proceed to judgment. Thus, it acted in entering into the assignment agreement in its role as an insurer, because, if it had not been an insurer, it would not have entered into the assignment agreement. This rather obvious fact is further established by one of the paragraphs in the preamble to the assignment agreement, from which we quote:

“WHEREAS, it is in the interest of Edward T. Ursin, II, National Indemnity Company and Manchester Insurance & Indemnity Company that the claims of Rosalie and Arthur Picolo be settled in order to avoid additional costs of litigation, the uncertainties of litigation, and the possibility of a judgment for sums in excess of the insurance available to Edward T. Ursin, II... ”

Although we recognize that the statute which established the LIGA is to be liberally construed to protect against insolvent insurers (see LSA-R.S. 22:1378; Louisiana Insurance Guaranty Assn. v. Gugliei-mo, 276 So.2d 720 (La.App. 1st Cir. 1973), writ refused 279 So.2d 690 (1973)), we cannot construe the statute to include as a “covered claim” a claim that is unequivocally excluded by the clear language of that statute.

The policy behind the statutory exclusion might be questioned. A third person not an insurer would beyond any question be entitled to the $5,000 if it, rather than National Indemnity Company, had been assigned Ur-sin’s claim. A further criticism of the policy behind the exclusionary language in the statute is found in the following paragraph in the trial court’s reasons for judgment, under which it reached a result contrary to our interpretation of the statute:

“It really boils down to an interpretation of the statutes, presumably words and otherwise. I cannot see any prohibition against the insurance company paying the amount that is owed by an insolvent insurance company becoming assigned to that claim and then being able to present that claim against Insurance Guaranty Association. Certainly it would allow an excessive (sic) carrier to negotiate and taken an assignment — would certainly benefit settlements. To require Insurance Guaranty Association to participate before there can be a settlement could and honestly in this instance would have postponed a settlement.”

Certainly there are reasons not lacking in wisdom to urge that the statute be amended to remove or modify the exclusionary language. On the other hand, we are aware of the possibility that the legislature may have had sound reasons for desiring precisely the result which we have reached under this factual situation, that is, finding no coverage. In any event, establishment of legislative policy is a matter that addresses itself to the legislature, not to the courts. We cannot interpret the statute beyond its clear and unambiguous language.

We reverse that portion of the judgment of the trial court rendered in favor of National Indemnity Company, and dismiss its action, and affirm that portion of the judgment rendered in favor of Edward T. Ursin, II which portion of the judgment LIGA concedes should not be altered. All costs shall be paid by National Indemnity Company.

AFFIRMED IN PART, REVERSED IN PART.


author: COLE, Judge:

text:
    Juanita Bateman BLONDEAU v. Michael BLONDEAU.
    No. 13972.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1981.

      Gerard Kiefer, Baton Rouge, for plaintiff-appellee, Juanita Bateman Blondeau.
    Steve Marks, Baton Rouge, for defendant-appellant, Michael Blondeau.
    Before ELLIS, COLE and WATKINS, JJ.
   COLE, Judge:

This issue in this case is whether the prior alimony and child support award should be increased, decreased or allowed to remain as previously set.

Appellee Juanita Bateman Blondeau and appellant Michael Blondeau were legally separated by judgment of the trial court in May of 1979. Appellant was ordered to pay a total of $2,000 per month, $400 per month for each of the four minor children and $400 per month alimony pendente lite. In June of 1979 the parties entered into a settlement agreement in the state of Georgia, whereby appellant agreed to continue to pay the same amount of alimony and child support. The document specifically provided he would pay such child support “until each said child reaches age 18, leaves the family home, dies, or becomes self-supporting, said amount ending thereby.” The Georgia court granted a final judgment of divorce in July of 1979. The settlement agreement was made a part of the court’s decree. No jurisdictional challenges have been made.

Each party subsequently filed a Rule Nisi in the court below. Appellant sought to have the support and alimony payments reduced; appellee sought to have them raised. The trial court noted the matter was to be considered as a redetermination of La.Civ.Code art. 160 alimony, rather than an initial determination. It stated the applicable standard for altering alimony and support payments was whether or not there had been a change of circumstances for either party.

Appellant argued there had been a change in Mrs. Blondeau’s circumstances because she was capable of earning an income but refused to do so. The court noted she had the same earning capacity at the time the amount of the alimony was set in the original agreement, therefore there had been no change.

Judgment was rendered ordering appellant to continue to pay a total of $2,000 per month as alimony and child support. The court recognized that one of the four children had become a major, therefore, by the terms of the agreement, payments to that child were no longer due. However, instead of reducing the amount owed by $400 a month, the court simply redistributed the total $2,000, granting $500 to each of the three minor children and $500 to appellee.

It is well established that in order to modify a judgment or consent decree awarding alimony and child support, the party seeking to modify the award must show there has been a change in circumstances of one of the spouses. La.Civ.Code art. 160; Sonfield v. Deluca, 385 So.2d 232 (La.1980); Ducote v. Ducote, 339 So.2d 835 (La.1976), rehearing denied 1976; Loyacano v. Loyacano, 358 So.2d 304 (La.1978), vacated on other grounds, 440 U.S. 952, 99 S.Ct. 1488, 59 L.Ed.2d 766 (1979); Crum v. Crum, 330 So.2d 925 (La.App. 1st Cir. 1976). The trial court noted, and we thoroughly agree, appellant’s obligation to make the support payments for the child who is now a major was terminated by the language of the agreement which was incorporated into and became a part of the Georgia divorce decree. Although this could be characterized as a change of circumstances justifying modification by $400 a month, we need not even reach that issue because the agreement clearly states the payments would end when the child reached majority. Therefore, by the terms of the Georgia decree, at the time of the trial of the Rule Nisi, appellant was obligated to pay $400 per month for each of the three minor children and $400 per month alimony, a total of $1,600 a month. Without giving reasons, the trial court increased the amount due each child to $500 a month and raised the alimony to $500 per month, as previously discussed.

The testimony taken at the hearing on the rule in June of 1980 shows Mrs. Blondeau did not even contend there had been a change in circumstances since July of 1979 when the amount of alimony and child support was originally set. Although there was undoubtedly a cost of living increase in the interim year, this alone is not sufficient cause for an increase in the alimony and support payments because any cost of living increase affects both parties. Ducote, supra; Fakouri v. Perkins, 322 So.2d 401 (La.App. 3d Cir. 1975); Gennaro v. Gennaro, 306 So.2d 756 (La.App. 4th Cir. 1975), writ denied 1975. The Ducote court observed that the rate of inflation fluctuates every month so that it would be impossible for a court to arrive at an accurate figure to reflect this factor. There is simply no evidence in the record indicating Mrs. Blondeau’s financial needs have increased substantially. The court erred in granting an increase without the requisite showing of change in circumstances, therefore we amend the judgment of the trial court as to the amount of the payment.

We also find Mr. Blondeau did not demonstrate a change in circumstances to justify reduction of his payments. His emphasis upon the amendment to Article 160 of the Civil Code (Act 72 of 1979, effective June 29, 1979), requiring the court to consider the earning capability of the claimant spouse, overlooks the stated guideline that it is to be done “in light of all other circumstances.” Under the provisions of Article 160, the trial court must consider the totality of the circumstances affecting the parties. Many factors are set forth by Article 160. Notably, the court must consider the effect of custody of children upon the spouse’s earning capacity. In this instance the trial court apparently considered the totality of the circumstances and we do not find the result to be an abuse of discretion.

The record indicates Mr. Blondeau earned approximately $75,000 in the year 1979. His estimated salary for 1980 was approximately $80,000. It is true Mr. Blon-deau has remarried and now supports a wife and three minor children. The recent jurisprudence has recognized that additional expenses resulting from the husband’s remarriage are a factor to be considered in determining whether the alimony should be reduced. Sonfield, supra; Powell v. Powell, 344 So.2d 453 (La.App. 2d Cir. 1977). But the fact of remarriage in this case, standing alone, does not negate Mr. Blondeau’s obligation to support his children and his ex-wife. Considering Mr. Blondeau’s substantial salary, we do not find any change in circumstances which justifies reducing the amount of money paid to his children and ex-wife.

For the foregoing reasons we amend the judgment of the trial court to the extent appellant is ordered to pay appellee the sum of $1,600 per month alimony and child support, allocating $400 per month for each of the three minor children and $400 per month for petitioner, payable in semimonthly installments of $380 each. In all other respects the judgment is affirmed.

The litigants are each to pay one half of the costs of these proceedings.

AMENDED IN PART; AFFIRMED IN PART.

      . The Blondeaus have five children. One was a major at the time of the separation judgment.


text:
    Esther Brumm LEAVITT v. ST. TAMMANY PARISH HOSPITAL and Insurance Company of North America.
    No. 13975.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1981.

      James J. Gleason, Mandeville, for plaintiff-appellee.
    Lawrence J. Centola, Jr., New Orleans, for defendant-appellant.
    Before ELLIS, COLE and WATKINS, JJ.
   COLE, Judge.

The issue in this case is whether or not plaintiffs-appellees proved defendant-appellant’s negligence by a preponderance of the evidence. Because we find no manifest error, we affirm the judgment in appellees’ favor.

Esther Brumm Leavitt, age 57, was admitted into St. Tammy Parish Hospital on February 10, 1975, suffering from severe congestive heart failure and diabetes. Because she was weak and taking several drugs which could affect her mental clarity she was instructed to call for assistance if she needed to get out of the bed. On February 14, 1975, Mrs. Leavitt fell while attempting to get in or out of her bed without assistance. She complained immediately of back pain and an x-ray revealed a slight compression fracture of “L-l,” the first lumbar vertebra. She filed suit against the hospital and its insurer, Insurance Company of North America. In her petition she alleged she activated the light indicator button to summon a nurse to help her walk to the bathroom. She stated she waited for at least fifteen minutes and got no response. Because she needed to use the bathroom immediately she proceeded to get out of the bed on her own. The petition further alleged she walked to the bathroom unassisted and slipped when she was returning to her bed. Mrs. Leavitt was discharged from the hospital on March 2,1975 but her heart condition made it necessary for her to be hospitalized or in a nursing home on and off until her death in December 1975. Mrs. Leavitt died before trial and her heirs were instituted as proper party plaintiffs.

Appellant argues there was insufficient evidence at trial to prove the hospital’s negligence. We disagree. The evidence would probably be stronger if Mrs. Leavitt had not died prior to trial. She would have been able to testify as to the facts surrounding the accident, such as how long she waited for assistance, thus shedding light on the hospital’s negligence in failing to respond promptly. However, even without her testimony we find there is sufficient evidence in the record to establish the hospital breached the standard of care owed by a hospital to a patient in Mrs. Leavitt’s condition.

There is ample evidence in the record indicating Mrs. Leavitt did in fact fall. William McDade, a hospital orderly, testified he happened to walk past Mrs. Leav-itt’s room and observed her “half on the floor, half on the bed.” He stated Mrs. Leavitt appeared to be in “severe pain” as he helped her onto the bed. Offered as an exhibit were nurse’s notes which reflected that Mrs. Leavitt had fallen. Dr. Gerald Keller, Mrs. Leavitt’s attending physician, testified an x-ray taken the day after the fall revealed a slight compression fracture of the first lumbar vertebra where none had appeared in any prior x-rays. Indeed, there seems to be little question that appel-lee proved she fell. The hospital, of course, is not liable simply because Mrs. Leavitt fell while a patient there. There must be proof of the hospital’s negligence, i. e., a breach of a duty, in order to hold the hospital liable.

Dr. Keller testified Mrs. Leavitt had been given several drugs which would affect her sensorium. This was why she was ordered not to get out of bed without assistance. Her husband, Leaton Leavitt, testified he had visited her the night before the accident and found her to be heavily sedated and disoriented. The evidence indicates Mrs. Leavitt was an obese woman, age 57, suffering from quite debilitating heart trouble and diabetes. Considering her condition and the known effect of the drugs she was taking, the hospital owed a duty to respond promptly to Mrs. Leavitt’s calls for help. The record shows the hospital breached this duty by having less than adequate staff on hand and in failing to at least verbally answer the assistance light to inquire what Mrs. Leavitt needed. If the hospital was not adequately staffed to give prompt assistance to patients requiring help in getting out of bed, other measures, such as putting up the bed rails, should have been taken to avoid the risk of such patients injuring themselves when attempting to walk unassisted.

In short, the hospital staff knew Mrs. Leavitt was very ill, knew she was taking drugs that affected her mental condition, knew she was to be helped out of bed, knew (or should have known) her assistance light was on and knew the bathroom was in the hall, quite a distance from her bed. In spite of this knowledge, they failed to take adequate measures to avoid this very foreseeable accident. We find this was a breach of the duty of reasonable care owed to Mrs. Leavitt.

We find no evidence of Mrs. Leavitt being contributorily negligent. The record clearly indicates the woman was very ill and under sedation. Mr. McDade testified there was urine on the floor when he found Mrs. Leavitt attempting to get in or out of her bed. This indicates she was getting out of the bed without help only because she needed to use the bathroom immediately. It would certainly be unfair to say that a sick patient, who asks for help from the hospital staff and is at least temporarily ignored, is contributorily negligent for attempting to walk to the bathroom when the need arises.

Appellant argues that appellees’ failure to call a certain witness, Gloria Graham, creates a presumption that Mrs. Graham’s testimony would have been unfavorable to appellee. The record indicates Mrs. Graham was present in the hospital room visiting another patient at the time of the accident. Appellant’s insurance company obtained a statement from Mrs. Graham shortly after the accident. Appellees requested a copy of the statement but was denied this information because appellant claimed it was a “work product” prepared for litigation and as such was not discoverable under La.Code Civ.P. art. 1424. Appel-lees then sought to obtain the statement under a subpoena duces tecum. Appellant complied on the day of the trial by provid*-ing a dictabelt containing the statement. However, because the parties were not able to locate a machine that would play the dictabelt, the witness was not able to refresh her memory. Appellees, mindful of the passage of five years since the accident, declined to put Mrs. Graham on the stand, believing she would not be able to shed any light on the incident. Considering the circumstances we feel there should be no presumption against appellee for her failure to call the witness. We note that appellant’s compliance with the subpoena duces tecum was not as responsive as it could have been. A tape that cannot be played has little value to anyone.

Appellant argues the court erred in awarding $7,500.00 for pain and suffering because there was no expert medical testimony on this issue. It is true Dr. Keller did not testify as to how this fracture affected Mrs. Leavitt. Evidence indicating she suffered after the fall consisted of the testimony of the orderly who said she looked like she was in severe pain, and testimony of her husband, Leaton Leavitt. Mr. Leavitt stated Mrs. Leavitt had never complained of back pain before the fall but complained continuously of discomfort afterwards. He said it was necessary for him to move her body into different positions in the bed to relieve the pain. A neighbor constructed a “donut” device to alleviate the pain when Mrs. Leavitt was sitting or lying down.' We find this evidence sufficient to establish that Mrs. Leavitt experienced pain from the back injury.

Appellant is incorrect in asserting that this element of damages must be proven by medical testimony. To the contrary, it is usually the family and friends of the plaintiff who are the most aware of any discomfort experienced. Lay testimony is always admissible to prove that which the witness knows about and is legally capable of testifying. Arthur v. McConnell, 386 So.2d 499 (La.App.2d Cir. 1973); Smith v. Andrepont, 378 So.2d 479 (La.App. 1st Cir. 1979, writ refused 1980).

We find the award of $7,500.00 to be within the discretionary range allowed the trial court.

For the foregoing reasons, we affirm the judgment of the trial court. Appellant is to pay all costs of these proceedings.

AFFIRMED.

      . The sensorium is the part of the brain which receives and interprets sensory stimuli. It is often used to designate the condition of a patient’s consciousness or mental clarity.


text:
    Scott LORRAINE v. Dorothy Ellen LORRAINE.
    No. 14064.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1981.
    Alan S. Fishbein, Baton Rouge, for plaintiff-appellant, Scott Lorraine.
    Lawrence A. Durant, Baton Rouge, for defendant-appellee, Dorothy Ellen Lorraine.
    Before ELLIS, COLE and WATKINS, JJ.
   COLE, Judge:

This appeal was fixed for argument and all attorneys of record were notified. At the time scheduled for argument, the appellant was not present or represented, nor had any brief been filed on behalf of appellant, nor had any motion been filed for continuance.

On authority of Rule VII, Section 5(b), this Court, EX PROPRIO MOTU, considers this appeal as abandoned; therefore, it is ordered that this appeal be dismissed with prejudice.

APPEAL DISMISSED.


author: ELLIS, Judge:

text:
    Webb J. POLITE et al. v. Reuben M. NEWMAN et al.
    No. 14202.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1981.
    Writ Refused May 1,1981.

      Charles S. McCowan, Jr., Baton Rouge, for plaintiff-appellant, Webb J. Polite and Narcille Drouin Polite.
    Kenneth J. Berke, New Orleans, for defendant-appellee, Reuben M. Newman, Clo-tile White Newman, and ICO, Inc.
    Before ELLIS, COLE and WATKINS, JJ.
   ELLIS, Judge:

ON RULE TO SHOW CAUSE

This is a possessory action in which plaintiffs allege their possession was disturbed by a mineral lease of their property granted by defendant Reuben M. Newman to defendant ICO, Inc. Final judgment was signed on July 16, 1980, recognizing and maintaining the possession of plaintiffs to the subject property, and ordering the Clerk of Court to cancel a mineral lease of the property made by defendant, as lessor, “in the event that Newman and ICO do not assert title to the property by proper suit within thirty days of the date this judgment becomes executory.” On September 8, 1980, plaintiffs took a devolutive appeal from the said judgment. This court, sua spon te, has ordered plaintiff to show cause why the appeal should not be dismissed because not timely obtained.

Article 3662 of the Code of Civil Procedure provides as follows:

“A judgment rendered for the plaintiff in a possessory action shall:
“(1) Recognize his right to the possession of the immovable property or real right, and restore him to possession thereof if he has been evicted, or maintain him in possession thereof if the disturbance has not been an eviction;
“(2) Order the defendant to assert his adverse claim of ownership of the immovable property or real right in a petitory action to be filed within a delay to be fixed by the court not to exceed sixty days after the date the judgment becomes executory, or be precluded thereafter from asserting the ownership thereof, if the plaintiff has prayed for such relief; and
“(3) Award him the damages to which he is entitled and which he has prayed for.
“A suspensive appeal from the judgment rendered in a possessory action may be taken within the delay provided in Article 2123, and a devolutive appeal may be taken from such judgment only within thirty days of the applicable date provided in Article 2087(l)-(3).”

It seems clear that the delays for taking a devolutive appeal from a judgment in a possessory action had expired when plaintiffs appealed in this case. However, they argue that they have not appealed the judgment insofar as it recognizes their possession, but have appealed only from that part of the judgment ordering the cancellation of the mineral lease, which, it is argued, is separate and distinct from the possessory action.

The argument is without merit. The court can restore plaintiffs to the possession of their property only by removing the disturbance complained of. That part of the judgment ordering the lease cancelled is therefore a necessary part of the judgment in the possessory action, and subject to the appeal delay specified in Article 3662, supra.

The appeal is therefore dismissed, at plaintiffs’ cost.

APPEAL DISMISSED.


author: REDMANN, Judge.

text:
    Deon Licciardi GONZALES et al. v. Charles H. KILGORE et al.
    No. 11176.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 4, 1981.
    Darleen M. Jacobs, New Orleans, for plaintiffs.
    John G. Gomila, Jr., Jones, Walker, Waech-ter, Poitevent, Carrere & Denegre, New Orleans, for C. R. Lambert, Walter Mar-chand, Lenwood Vaspra, and The Travelers Ins. Co.
    Before REDMANN, SCHOTT and SAR-TAIN, JJ.
   REDMANN, Judge.

Plaintiffs’ decedent was fatally injured by inhaling toxic combustion products from a fire at work. The basis of this action for damages against his co-employees is, appellants’ brief says,

“negligence ... in failing to vent the hydrocarbons to a safe location; in allowing the acid circulating pump to leak; in allowing the atmospheric tanks to be used for the storage of a flammable and/or combustible liquid at a temperature at or about its boiling point and in failing to provide workers with safety masks.
“Petitioners allege in Paragraph VI of their petition that the aforementioned allegations of negligence were intentional and/or willful and alternatively existed for a period of at least three years before the accident of March 14, 1978.”

On defendants’ motion for summary judgment, however, plaintiffs did not suggest any facts from which it might reasonably be inferred that defendants’ negligence was indeed “intentional and/or willful.” In order to escape the exclusiveness of workers’ compensation plaintiffs must show that defendants’ tort was an “intentional act,” La.R.S. 23:1032, meaning “intentional tort,” Bazley v. Tortorieh, La.1981, 397 So.2d 475, 480, to establish which it is necessary to show “that the co-employee ... desired the consequences of his acts or omissions or that he believed the consequences were substantially certain to result from them,” id. at 482.

Plaintiffs in this case made no response at the time of the motion for summary judgment to indicate, as required by La.C. C.P. 966, that they had either undisputed facts, or a genuine factual dispute or even some disability to present essential facts, from which to argue that defendants had committed an intentional tort and therefore defendants were not entitled to judgment as a matter of law. The motion for summary judgment was therefore properly granted.

We note that Bazley, affirming a dismissal on exception of no cause of action, “affirmed and remanded.” Bazley did not explain the remanding, but Bazley differed from this case in that this case is one on summary judgment rather than, exception; and, while judgment maintaining an exception often allows leave to amend to remove the grounds of the objection, La.C.C.P. 932-934, summary judgments “are final judgments ... with the same effect as if a trial had been had upon evidence regularly adduced,” C.C.P. 968.

Affirmed.


text:
    Audrey L. BETZ, wife of/and Walter F. Flato v. REYNAUD CONSTRUCTION CO., INC.
    No. 11244.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 4, 1981.

      Jerald L. Album, Mmahat, Gagliano, Duffy & Giordano, Metairie, for plaintiffs-ap-pellees.
    J. B. Kiefer, Graham, Kiefer & Arce-neaux, New Orleans, for defendants-appellants.
    Before REDMANN, SCHOTT and GARRISON, JJ.
   REDMANN, Judge.

The builder-seller of a home appeals from a judgment in favor of the purchasers for $2,150 for repairing pre-existing fire damage ($1,650) and certain other items ($500), for $500 “for inconvenience, deprivations and embarrassment,” for $750 attorney fees, and for expert fees. The seller concedes that the fire damage award was within the trial judge’s authority but by this appeal disputes all other items. Plaintiffs’ answer to the appeal seeks increase in attorney fees for both trial and appeal and interest prior to judicial demand.

We amend to eliminate the $500 award for inconvenience and we add $350 attorney fees for the appeal but otherwise affirm.

We do, however, award interest from trial court judgment rather than judicial demand because the costs on which quantum was fixed were costs as of trial time rather than as of judicial demand and all evidence is that costs increased at least 15% meanwhile. And we do award to the buyers attorney fees for the appeal.

Although the builder does not dispute the award for repairing the fire damage, we discuss it because of the dispute over attorney fees. Before plaintiffs saw the house, fire damage caused by vandals had been largely repaired. Some attic rafters and plywood, however, although smoke-stained or even lightly charred, were not replaced because their damage did not affect their structural strength, they were not visible from inside or outside the house, and the cost of replacing them seemed unjustifiable to the builder. (Even the court’s own expert, a builder of homes costing $200,000 to $500,000, would not replace a scorched ceiling joist because to do so would require reconstructing and repainting the entire room below it.) It was a wholly reasonable decision by the builder, and it could be said that these rafters, in an invisible area, so slightly scorched that they remained structurally sound, do not constitute a “defect” any more than a dirty rafter would. Nevertheless the unavoidably implied representation upon the sale of a house as newly-constructed is that it is constructed of all new and undamaged materials. Thus the builder who, howsoever reasonably, elects to retain damaged materials, after the house suffers some casualty during its building, has the obligation to reveal that fact to the buyer in order to avoid misrepresenting the quality of the house and consequent liability to redhibition or reduction in price under La.C.C. 2547:

A declaration made by the seller, that the thing sold possesses some quality which he knows it does not possess, comes within the definition of fraud, and ought to be judged according to the rules laid down on the subject, under the title: Of Conventional Obligations.
It may, according to the circumstances, give rise to the redhibition, or to a reduction of price, and to damages, including reasonable attorneys’ fees, in favor of the buyer.

(See also arts. 2520 and 2542.)

In fairness to defendant we note that its president instructed its sales agent to inform buyers of the fire, and we repeat that the house was not defective, either in structure or in appearance. But we must conclude that, through failure to communicate the fact of the unrepaired fire damage to the purchasers, defendant represented the house as all-new and all-undamaged. That incorrect representation supports plaintiffs’ demand for a reduction in.price and for attorney fees.

Defendant’s principal argument against attorney fees is that plaintiffs refused to allow defendant to make the repairs and were so unreasonable in their demands that settlement was impossible. But defendant did not offer, or offer to pay for, the replacement-type repair the trial court correctly concluded should be made. And, while plaintiffs’ demands may have been overstated, defendant did not show that its offer should have been accepted by plaintiffs (because the equal of the court’s award), thus saving plaintiffs the litigation expense. The same reasoning applies to the expert fees actually fixed by the trial judge (although a litigant is not entitled to the expert fees chargeable to any unsuccessful portion of its claim).

The $500 included in the trial judge’s calculation for other items in addition to the conceded fire damages is an amount between the two experts’ figures. Defendant complains that a medium-priced house should not be judged by the exacting standards of workmanship of a very-high-priced house. We can agree with that principle, but it does not prevent an award for repairing a wall that is “severely out of alignment” or “severely buckled” (as one expert reported) even if the price of the house would require tolerance of slight nonalignment or buckling. Similarly the drain spouts, improperly aimed so that water could splash against the brick veneer, cannot be refused relocation on the ground that the house is not an expensive one. The same is true of the cracked driveway, the fire-damaged closet shelf and the too-short toeboard for the bath vanity.

Finally, we agree with defendant’s argument that $500 “for inconvenience, deprivation and embarrassment” is prohibited by Ostrowe v. Darensbourg, La.1980, 377 So.2d 1201. The measure of price reduction for defects or absence of declared qualities coincides with the cost of repair or of providing the declared qualities. See Lemonier v. Coco, 1959, 237 La. 760, 112 So.2d 436. We could agree that a knowledgeable purchaser would not have agreed to reduce the price by only the cost of repair, but we believe that the cases discussed in Lemonier limit recovery to actual cost.

Amended to eliminate $500 of principal award and to make interest on that award run from July 3,1979, and to increase attorney fees by $350; costs of this appeal to be equally divided.


text:
    Bobby J. NUNEZ v. Gladys NUNEZ, wife of/and Kenneth C. Nunez.
    No. 11262.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 4, 1981.
    James W. Brodtmann, Tonry & Mum-phrey, Chalmette, for plaintiff-appellant.
    Anthony A. Fernandez, Jr., Chalmette, for defendants-appellees.
    Before REDMANN, SCHOTT and GARRISON, JJ.
   REDMANN, Judge.

Plaintiff vendor and defendant purchasers (plaintiff’s brother-in-law and sister) agree that the $14,000 cash price recited in the deed plaintiff seeks to rescind (for nonpayment of price) was not paid, and that the cash price that was to be paid was $6,000 (or $6,500).

Defendants tell, however, an inherently improbable, though not impossible, story: some time before the deed was signed by the parties at different times at the notary’s office, they borrowed $6,000 in cash from one Joseph Lloyd Kanner and paid that $6,000 in cash to plaintiff without getting a receipt. (Defendants no longer argue the parol evidence rule.)

The trial judge first declared that the burden of proof was on plaintiff, and that (as we understand the transcript) defendants would not bear the usual burden of proof of one alleging payment because defendants’ pleading was a general denial. “The question is whether or not [plaintiff] was ever paid,” the trial judge continued, “It is not clear .... [T]he testimony of the two [defendants] counteracts the testimony of [plaintiff] and thus the court holds that [plaintiff] has failed in his burden of proof :... ”

We rule that, once the purchasers conceded that the receipt in their deed was untrue and invalid (and that the deed did not reflect the true price) and that they did not pay any of the price at the time of the cash deed’s execution, it became the purchasers’ burden to show that they had, nevertheless, paid the price in fact agreed upon. La.C.C. 1900 provides:

If the cause expressed in the consideration should be one that does not exist, yet the contract cannot be invalidated, if the party can show the existence of a true and sufficient consideration.

That article is interpreted as obliging the party who seeks to sustain the sale to show the existence of the true consideration; Barnes v. McCartney, La.App. 2 Cir., 1925, 3 La.App. 145. Thus it would be error to dismiss plaintiff’s suit because the evidence does not clearly establish whether or not payment was made. Perhaps the trial judge could have made a decision based on his credibility evaluation, but he did not do so. Indeed, he expressed doubt by indicating he would have found the evidence “conclusive if the defendants had Mr. Lloyd Kanner in court.”

We agree with the trial judge’s observation that Kanner’s testimony is extremely pertinent, and rather than simply reverse on the burden of proof issue, we therefore set aside and remand for the purpose of allowing the defendants (and plaintiff) to present that and any other evidence on payment of the price.

Set aside; remanded.


author: GARRISON, Judge.

text:
    Travis Drennen BOZEMAN v. FRUIN-COLNON CONSTRUCTION CO. and U. S. F. & G.
    No. 10291.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 5, 1981.
    Laborde & Lewis, Pete Lewis, New Orleans, for plaintiff-appellant.
    Montgomery, Barnett, Brown & Read, Wood Brown, New Orleans, for defendants-appellees.
    Before SAMUEL, GULOTTA, and GARRISON, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court dismissing plaintiff’s workmen’s compensation action to recover for injuries sustained by him on August 25, 1975. As the cause of action arose prior to the September 1,1975 effective date of the 1975 amendments, this case is governed by the “old” compensation law.

The parties stipulated that plaintiff was injured in the course and scope of his employment, that plaintiff fell from a beam landing on his left hand and arm, and that after treatment plaintiff had a 20% permanent partial disability.

Prior to trial defendant paid to plaintiff $5,167.18. Plaintiff claimed that should he be found permanently partially disabled, then he was entitled to benefits for “loss of a hand” under R.S. 23:1221(4)(e). Plaintiff argued that the total amount owed was $6,957.00, so that defendant owed to plaintiff $1,789.82 at the time of trial. Six months after judgment was rendered, defendant sent a check for $1,342.98 to plaintiff. Defendant stated that a previous error had been made in computation.

On appeal, plaintiff claims that he is still owed $446.84 and that penalties and attorney’s fees should be assessed against defendant on the grounds that defendant arbitrarily refused to pay plaintiff. Additionally, plaintiff argues that the trial court erred in failing to find him permanently and totally disabled.

We agree with plaintiff that he is due the amount of $446.84. We cannot conclude, however, that he is entitled to penalties and attorney fees inasmuch as he offered no proof that defendant’s refusal was arbitrary. Indeed, there is no arbitrary refusal, but rather a clerical error occurred which defendant voluntarily sought to correct. Defendant does not contest that plaintiff had partial permanent disability.

Turning to the last specification of error we cannot conclude that Mr. Bozeman was totally and permanently disabled by the accident in question. Defendant contended that a shoulder injury suffered by plaintiff was not the result of the accident at issue. We agree.

Both medical experts, Dr. Ruel and Dr. Adatto refused to attribute the shoulder injury to the accident at issue. Dr. Ruel refused to relate the injury on the grounds that there were no shoulder complaints until some 8 months after the accident and that the period of time was too remote from the date of the accident. Likewise, Dr. Addatto testified that it was impossible to pinpoint the origin of the shoulder injury arid that most probably the shoulder problem was a pre-existing condition. While there is some testimony to the contrary, we cannot conclude that the trial judge was manifestly erroneous in his assessment of credibility. Canter v. Koehring Co., 283 So.2d 716 (1973).

For the reasons discussed the judgment below is reversed and we render judgment as follows:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of the plaintiff, TRAVIS DREN-NEN BOZEMAN, and against the defendants, FRUIN-COLNON CONSTRUCTION CO. and UNITED STATES FIDELITY & GUARANTY CO., in the amount of FOUR HUNDRED FORTY-SIX AND 84/100 ($446.84) DOLLARS, plus legal interest from the date of judicial demand.

REVERSED AND RENDERED.

      . Average Earnings: 356.80 X 65% = 231.92
      231.92 X 20% = 46.38
      46.38 X 150 = $6,957.00
      $6,957.00 - 5,167 = $1,789.82
      $1,789.82 - 1,342.98 = $446.84


author: SARTAIN, Judge.

text:
    John DANE, Jr. v. DOUCET BROTHERS CONSTRUCTION COMPANY, INC. and Tomeny Construction Company, Inc.
    No. 11387.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 10, 1981.

      Roy L. Price, Metairie, for plaintiff-ap-pellee.
    Dalton, Gillen & Roniger, Samuel S. Dalton, Jefferson, for defendant-appellee.
    Faris, Ellis, Cutrone, Gilmore & Lauten-schlaeger, H. S. H. Verlander, Jr., New Orleans, Anthony W. Wambsgans, Metairie, for defendant-appellant, William M. Justice, Jr., Clerk of Court.
    Before SAMUEL, BARRY and SAR-TAIN, JJ.
   SARTAIN, Judge.

This litigation involves the liability of a Clerk of Court for damages arising out of the failure of his office to show a prior recorded notice of lis pendens on a mortgage certificate. Other issues pertain to third party demands of the Clerk and the vendor of the property and quantum. From a judgment casting the Clerk and the vendor in solido, the Clerk appeals. We amend as to quantum and affirm.

In January of 1976 Doucet Brothers Construction Company, Inc. (Doucet) instituted a suit against Tomeny Construction Company, Inc. (Tomeny) for specific performance of a purported option to purchase four lots in Harahan Oaks Subdivision, Jefferson Parish. In connection with this suit Doucet filed the subject notice of lis pendens. Dou-cet was ultimately found to be unsuccessful in its demands.

During the pendency of the above litigation and in March, 1976, Tomeny conveyed three of the lots to plaintiff, John Dane, Jr. The act of sale was with full warranty and made no mention of the notice of lis pen-dens.

Dane financed the purchase of these lots by granting a first mortgage thereon to a local bank. In connection with the mortgage he obtained mortgage certificates covering each lot from defendant William M. Justice, Jr., Clerk of Court and Recorder of Mortgages for the Parish of Jefferson. Through an error and/or oversight the mortgage certificates failed to reflect the prior recorded notice of lis pendens.

Dane, a speculative home builder, commenced construction on one of the lots when a representative of Doucet advised him of its pending suit for specific performance and the notice of lis pendens. Dane immediately discontinued work on the home site. Efforts to resolve the controversy between Doucet and Tomeny proved unsuccessful. Dane then brought suit against the Clerk (Justice) and Doucet to erase and cancel from the mortgage records the notice of lis pendens. Judgment decreeing the lis pendens cancelled became final on the same date as judgment in the aforementioned suit for specific performance became final.

In the meantime Dane brought the present action (July 20, 1976) against Dou-cet and Tomeny, Doucet on the grounds that it had no legal basis for filing the notice of lis pendens, and Tomeny on the grounds that it sold him the lots by warranty deed with full knowledge of the existence of the notices. Dane subsequently amended his petition to include Justice as a defendant for his failure to disclose the notice on the mortgage certificate. Justice, while denying any liability on plaintiff’s main demand, filed third party demands against Doucet and Tomeny on the same grounds as urged by Dane in his original petition. Tomeny made a third party demand against Doucet for the same reason, i. e., that it had no legal basis to file the notice of lis pendens. The trial judge, for written reasons assigned, granted judgment in favor of plaintiff, Dane, against Justice (Clerk) and Tomeny (vendor) in solido and dismissed these defendants’ third party demands. Justice alone has appealed. Tome-ny has neither appealed nor answered Justice’s appeal.

This court in a recent decision had occasion to review the jurisprudence and codal provisions relative to the duty and liability of the recorder of mortgages. Hardie v. Justice, 353 So.2d 384 (La.App. 4th Cir. 1978). There we stated at p. 385:

“The pertinent duty and liability of recorders of mortgages are stated in C.C. arts. 3393 and 3394:
‘These officers shall record on their register the acts which are presented to them, in the order of their date, and without leaving any intervals or blank space between them; and they are bound also to deliver to all persons who may demand them, a certificate of the mortgages, privileges or donations, which they may have thus recorded; if there be none, their certificate shall declare that fact.’ C.C. art. 3393. (Emphasis supplied)
‘The register of mortgages and the parish recorders performing the same duty, are answerable for injury resulting:
‘2. From omitting to mention in their certificates one or several acts existing on their registers, unless in this latter case the error proceeds from a want of exactness in the description, which can not be imputed to them.
‘Each register of mortgages and/or parish recorder shall obtain and maintain in effect at all times liability insurance to cover any such errors and omissions which may occur in his office. * * * ’ C.C. art. 3394. (Emphasis supplied)”

See Fisher v. Levy, 180 La. 195, 156 So. 220 (1934); Chester Hoover Construction Co. v. Thornburg, 311 So.2d 542 (La.App. 3rd Cir. 1975); C.C. art. 3394.

The Clerk attempts to avoid liability on the grounds that primary responsibility should fall on Tomeny for selling the lots to plaintiff with full knowledge of the existence of the recorded notices of lis pen-dens. This contention begs the question. One of the obvious purposes of the duty imposed on the recorder of mortgages is to protect innocent purchasers from acquiring property that is subject to prior recorded liens, encumbrances, or other charges that affect the merchantability of the subject property. We therefore conclude, as did the trial judge, that the failure of the Clerk to note the notice of lis pendens on the certificate was, along with the action of Tomeny in selling the lots to plaintiff, a cause in fact of the damages sustained by plaintiff.

The trial judge rejected the third party demands of both the Clerk and Tomeny. Only the Clerk’s claim is subject to review because of Tomeny’s failure to appeal. As stated above, this claim is against Doucet and is based on the contention that Doucet’s filing of the notices of lis pendens was without legal justification.

The purpose of notice of lis pen-dens is to give effective notice to third persons of the pendency of litigation affecting title to real property. The notice of lis pendens is not concerned with the merits of the litigation which prompted its recordation. C.C.P. art. 3751; L.E.C., Inc. v. Collins, 332 So.2d 565 (La.App. 1st Cir. 1976).

In determining whether damages are allowed for the filing of notice of lis pendens the courts have required a showing that such were filed with malice and without probable cause. Hurwitz v. Lotz, 172 La. 27, 133 So. 351 (1931); New Orleans Land Company v. Slattery, 145 La. 256, 82 So. 215, 216 (1919). In the latter citation the court stated:

“A plaintiff who has reason to believe that he has a good cause of action is not rendered liable in damages to the person sued by the finding of the court that the plaintiff had not a good cause of action. Henry v. Dufilho, 14 La. 48. An action for damages for slander of title, like a suit for damages for malicious prosecution, cannot be maintained if the act complained of was done without malice and was founded upon probable cause or was prompted by reasonable belief in a just cause of action.”

The record in this suit is totally devoid of any evidence that the notice of lis pendens filed by Doucet was done with malice or without probable cause.

On the question of quantum plaintiff was awarded the sum of $6,570.18. Of this amount the sum of $1,500.00 was awarded for attorney’s fees in connection with the suit to cancel the notice of lis pendens from the mortgage records and the sum of $5,070.18 was awarded for interest expense incurred by plaintiff during the period of time the lots were subject to the notice and title thereto was not merchantable. The two items will be treated separately because we find the award for attorney’s fees improper.

It is the well settled jurisprudence of this state that as a general rule attorney’s fees are not allowed except where authorized by statute or agreed to by contract. Maloney v. Oak Builders, Inc., 235 So.2d 386 (La.1970); Succession of Cutrer v. Curtis, 341 So.2d 1209 (La.App. 1st Cir. 1977); writ refused, 343 So.2d 201 (La. 1977); Wesner: Attorney’s Fees as an Element of Damages in Louisiana, 34 Tul.L. Rev. 146 (1959); and Lloyd v. Merit Loan Company of Shreveport, Inc., 253 So.2d 117 (La.App. 2nd Cir. 1971); writ refused 254 So.2d 462 (La.1971).

The plaintiff here relies on this court’s holding in Lacour v. Merchants Trust and Savings Bank, 153 So.2d 599 (La. App. 4th Cir. 1963); writ refused, 244 La. 1004, 156 So.2d 56 (1963). There the defendant bank was held liable, inter alia, for attorney’s fees for the handling of a mandamus proceeding to cancel a mortgage note which the bank had lost and to this extent it does appear that the case represents an exception to the above stated jurisprudence. However, it is not our purpose here to discuss the merits of Lacour as we find the facts upon which it is based distinguishable from those in the matter now before us. Further, we do not find that Lacour stands for the broad proposition that in each instance where a mandamus proceeding is invoked to cancel a recorded instrument that all parties directly or indirectly involved are potentially responsible for attorney’s fees. Lacour involved the cancellation of a lost mortgage note. In the present matter the notice of lis pendens was filed incidental to a good faith action brought to seek specific performance of an option to purchase the property involved. Under these circumstances the general rule applicable to the assessment of attorney’s fees as an element of damages should prevail and should not have been awarded. Inasmuch as Tomeny did not appeal, the judgment will be amended to delete this item of damages only as it pertains to Justice, the Clerk of Court.

The remaining item of damages ($5,070.18) represents interest on the mortgage and taxes paid on the property for the period of time (27 months) that the same was burdened with the notice of lis pendens and title thereto was not merchantable.

Justice contends that Dane suffered no damage during the pendency of the prior litigation for the reason that during the interim period the lots enhanced in value in amounts in excess of the damages sought. He offered testimony to the effect that after the notices were cancelled Dane constructed a residence on one of the lots and had sold it at a price reflecting the enhanced value.

Dane testified that it was his intention to commence construction on the lots as soon as possible and that the existence of notices prevented him from doing so. Fortunately, he owned other lots in the subdivision and was able to continue in business. His line of credit “was tied up in property over which I had no opportunity to proceed” and during which time he was forced to pay the interest and taxes. He could neither build on the lots nor sell them. While the particular lots that were subject to the notices did increase in value, he was forced to dispose of other lots that he could have just as well retained. Under these circumstances we find the measure of damages employed herein reasonable.

For these reasons the judgment of the district court relative to the award for damages is amended to read as follows:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of John Dane, Jr., against the defendants, William Justice, Jr., Clerk of Court and Tomeny Construction Company, Inc., in the full and true sum of FIVE THOUSAND SEVENTY DOLLARS AND 18/100 ($5,070.18) together with all costs of these proceedings and legal interest thereon from date of judicial demand until paid.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of John Dane, Jr., and against the defendant, Tomeny Construction, Inc., in the full and true sum of ONE THOUSAND FIVE HUNDRED AND NO/100 DOLLARS ($1,500.00) together with legal interest thereon from date of judicial demand until paid.

In all other respects the judgment is affirmed. All costs in both courts are assessed against the defendants, William Justice, Jr. and Tomeny Construction Company, Inc.

AMENDED AND AFFIRMED.

      . Trial Docket No. 183-625.

      . Doucet Brothers Construction Company v. Tomeny Construction Company, Inc., 359 So.2d 712 (La.App. 4th Cir. 1978); writ refused, June 30, 1978.

      . Trial Docket No. 183-986.

      . Dane v. Justice, et al., 359 So.2d 714 (La.App. 4th Cir. 1978).

      . Without admitting liability, the defendants stipulated to the sums of $4,116.00 interest and taxes in the amount of $951.47. The discrepancy between the total of these sums ($5,067.47) and the amount of the judgment ($5,070.18) was not raised.


author: GARRISON, Judge. REDMANN, Judge,

text:
    LEASING SERVICES, INC. v. T & J SERVICES.
    No. 11411.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 10, 1981.
    Rehearing Denied April 20, 1981.

      Fishbein & Comeaux, Walter L. Co-meaux, Baton Rouge, for plaintiff and appellant.
    Bronfin, Heller, Feldman & Steinberg, Bernard H. Berins and Alan E. Krinzman, New Orleans, for intervenor and appellee.
    Before REDMANN, GULOTTA and GARRISON, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court, finding that certain contracts entered into by plaintiff and defendant constituted “a financing agreement” rather than a sale and a lease. The court found as well that the intervenor’s collateral chattel mortgage primed the interests of any other party in the object at issue, a “Michigan Loader”. From that judgment, plaintiff appeals.

On June 6, 1978, T & J Services, Inc., (hereinafter “T & J”) entered into an agreement with Leasing Services, Inc., (hereinafter “Leasing Services”), whereby T & J agreed to lease from Leasing Services “(1) Michigan Loader, Model 55 CMA, Serial No. 416C397” for a period of three years for the price of $1,323.00 monthly. J. L. Romano, the President of T & J, also signed as a surety for the lessee.

On June 8, 1978, plaintiff and defendant entered into an agreement reading as follows:

“Seller T & J Services Inc. of P.O. Box 341 Hahnville, Louisiana, in consideration of Thirty-Five Thousand and No/100— ($35,000.00) — dollars, receipt whereof is hereby acknowledged; does hereby sell, assign, transfer, and set over to Buyer, Leasing Services, Inc. of 619 Jefferson Highway, Baton Rouge, Louisiana, the following described property, to-wit: ‘(1) Michigan Loader, Model 55 CMA, Serial No. 416C397.’

A check issued on June 6, 1978 to T & J by Leasing Services, in the amount of $35,-000.00, was deposited into the account of T & J on June 9, 1978 and cleared through Leasing Services’ account on June 13, 1978. A corporate resolution authorizing J. L. Romano “to sell to Leasing Services, Inc.. ..

(1) Michigan Loader Model 55CMA Serial No. 416C397” and “to sign and execute a Bill of Sale and any other necessary related documents ...”

was issued on June 5, 1978.

On December 15, 1978 T & J entered into a collateral chattel mortgage with the American Bank in Luling, Louisiana for the sum of $800,000.00. The exhibit to the mortgage contained a list of chattels so bound, including “Michigan Frontend Loader, Model 36FC, Serial No. 416C397.”

On September 4, 1979, Leasing Services sued T & J on the lease contract for the remainder of the term, obtaining a default judgment against Romano as surety, for the balance due. On December 11, 1979, Leasing Services filed a rule to show cause why the Michigan Loader should not be surrendered to it. On December 19, 1979 American Bank intervened, seeking to prevent Leasing Services from gaining possession of the loader.

At trial, an oral exception of no cause or right of action was made by intervenor on the basis of the default judgment against Romano. As counsel for T & J pointed out, the prior judgment had been taken against Romano as surety. The district court rendered judgment dismissing the exception and denying Leasing Services’ rule to obtain possession of the loader, finding not a lease and sale, but a mere “financing arrangement.” From that judgment, Leasing Services appeals.

In his reasons for judgment, the judge placed considerable emphasis upon the obligations shouldered by T & J:

“From the testimony presented, mainly that of Joseph Romano, President of T & J Services, that T & J did not divest itself of ownership, insurance was paid by T & J as were all maintenance, repairs and taxes. He further testified that he felt he would keep equipment at the expiration of the lease...”

The trial court also looked to the following factors as also stated in the court’s written reasons for judgment:

“T & J Services owned the loader prior to the arrangements with plaintiff in June 1978. Also, the dates on the instruments offered as Exhibits indicate that the ‘lease agreement’ was dated June 8, 1978, two (2) days later. Another interesting fact is the stamp placed on the ‘lease’ in the lower left hand corner — ‘This loan is for business or commercial purposes’.
The court is of the opinion that this so-called ‘sale and lease-back’ between Leasing Services Inc. and T & J Services was really a financing arrangement disguised as a ‘sale and lease’ which would give the plaintiff some possible vendor’s privilege, however, this agreement was not recorded, thus the collateral chattel mortgage of the American Bank primes any interest Leasing Services may have.
In reviewing the entire transaction,
1.) the payment of $12,628 over the value of the loader
2.) the acceleration of all rental payments in the event of any default.
3.) the fact that T & J had and maintained the equipment with all incidents of ownership (repairs, taxes, insurance, etc.)
4.) the personal endorsement of Joseph Romano on the purported lease.

This court can only believe that the transaction was really not a “sale and lease”, but a financing arrangement between Leasing Services and T & J, which was not recorded; thus, plaintiff, Leasing Services, Inc. has no right for possession of the Michigan Loader.”

We agree with the conclusion of the trial judge that neither Leasing Services nor T & J intended that a transfer of ownership occur. We also agree with the conclusion of the trial judge that inasmuch as there was no intent to transfer ownership, no sale existed. Finally, we find, as did the trial judge, that the transaction constituted a financing agreement or loan. We further agree with the conclusion of the trial court that the loan was an attempt to provide unwarranted privileges, which are not allowed. We conclude that the loan is unsecured and thus primed by the collateral chattel mortgage of the American Bank.

For the reasons discussed, the judgment of the district court is affirmed.

AFFIRMED.

REDMANN, J., concurs with written reasons which are attached hereto.

REDMANN, Judge,

concurring.

The sale of a movable without delivery of possession is ordinarily not effective against third persons; La.C.C. 2247, 1922, 1923. See also 2478 and 2480, possibly allowing effectiveness but placing the burden of proof of “the reality of the sale” upon the persons seeking to uphold it.

The record establishes that this was intended as a loan transaction, in which the lender spurned the appropriate Louisiana security device of chattel mortgage and attempted instead to become the temporary “owner” of the thing and to lease it back to the original owner until the loan with interest was repaid. Thus the lender did not establish the reality of the sale. The majority’s conclusion is therefore correct but its uncritical recital of the notions that a cash sale and lease-back could produce a vendor’s privilege and that a vendor’s privilege on a movable must be recorded to affect third persons is doubly insupportable.


author: BOUTALL, Judge.

text:
    Inez FERNANDEZ, wife of/and Roy Fernandez v. Dorothy MEYERS.
    No. 11446.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 10, 1981.
    Ronald A. Welcker and Edward S. Bopp, Arabi, for plaintiffs-appellants.
    Anthony A. Fernandez, Jr., Chalmette, for defendant-appellee.
    Before BOUTALL, SCHOTT and CHE-HARDY, JJ.
   BOUTALL, Judge.

This is an appeal by a plaintiff from an award of damages resulting from a battery, complaining that the award is insufficient.

As we view this case the basic issues between the parties are based upon credibility. At trial there was a direct conflict between the parties, one testifying that a battery took place and the other testifying that nothing more than a discussion took place. The trial judge obviously resolved this issue in favor of plaintiff, Inez Fernandez, by rendering judgment in her favor. We agree.

The facts show that Dorothy Meyers saw Inez Fernandez in a restaurant talking to Meyers’ fiance and mistook her for a rival known to her only as “Rose”. Accordingly Meyers waited outside the restaurant until Mrs. Fernandez emerged and then set upon her striking her about the shoulder and arm and kicking her in the right knee. As a result of this unprovoked attack, plaintiff sought treatment at the emergency room of St. Bernard General Hospital for her injuries. She continued her treatment under the care of Dr. Emile Bertucci. She was suffering from pain in the right shoulder, in the left arm, and the right knee. The doctor gave the following diagnosis regarding the plaintiff’s injuries. “Contusions to the posterior aspect of the right shoulder with subcutaneous hemorrhage, a contusion to the left arm with subcutaneous hemorrhage approximately four inches below the elbow, and a contusion of the lateral aspect of the right knee and also over the right patella.” He noted the swelling and accumulation of fluid in the area of the right knee, and limitation of motion there.

The trial court awarded $182.00 in medical bills and $650.00 in general damages for the injury, pain and suffering. Plaintiffs contest the general damage award as inadequate. The trial judge did not give any reasons for judgment so we are not able to tell with certainty upon what basis he reached that amount. During the trial, following objection to testimony concerning the ability of defendant to respond in judgment, the court ruled that such evidence was pertinent stating: “I think it is pertinent without any insurance company and if there is going to be a judgment against Mrs. Meyers I think it would be beneficial to the court to know what she has or doesn’t have because if she doesn’t have much the court can’t assess damages it would ordinarily assess.” Although the trial court is granted much discretion in awarding general damages under Civil Code Article 1934(3), in view of the injuries sustained and the defendant’s financial condition, we conclude that this award is an abuse of that discretion, caused by too stringent an application of the ability to pay rule. See for example Lawrence v. Hartsuck, 383 So.2d 453 (La.App. 4th Cir. 1980). The injuries here are not nearly as severe as those in Lawrence, but in each case we do have a defendant who committed a deliberate battery, and we have injuries which will persist over a long period of time.

The evidence reveals that the shoulder and arm injuries cleared up within two weeks without incident, but the knee injury was more severe and required treatments both by medication and physical therapy. The physical therapy continued until August 25, 1975 and the medication was continued until October 13,1975, at which time the doctor discharged her from treatment. He noted that there was still tenderness over the intrapatella ligament and that she had reached maximum improvement even though she was still somewhat symptomatic. He felt that she could continue to have pain and discomfort over that area for a considerable time in the future and that the exacerbation of pain was quite common with this type of injury. He gave her instructions as to how to care for such reoc-currences at home.

It was not until April 18, 1979 that Mrs. Fernandez returned to the doctor relating that she was still having problems with her right knee. She was unable to kneel for any length of time because the pressure caused pain and discomfort, and additionally motions such as stepping down from a curb or up from a curb caused a snapping sensation over the lateral aspect of the knee. The doctor attributed this snapping sensation to the ligament slipping over the edge of the knee joint, resulting from scar tissue in the ligament as a result of her injury. He noted that even though she had recently bumped her knee and some discoloration was present at the time of this examination, that the injuries reported above were due entirely to the original blow she received at the hands of Mrs. Meyers. The doctor noted that it was not unusual for such symptoms to persist over a long period of time but that it was consistent with the injuries she received and the symptoms would persist from time to time in the future. He again gave Mrs. Fernandez instructions how she could treat her knee at home when further pain occurred.

We are of the opinion that the award made by the trial judge was manifestly inadequate to compensate for these injuries which left a permanent residual problem. We find that this occurred as a result of an extreme application of the principle of inability to pay and results in effecting a gross injustice toward plaintiff. See Lacaze v. Horton, 100 So.2d 252 (La.App. 2d Cir. 1958). The defendant should not be relieved of her obligation of just compensation for injuries occurring as a result of the deliberate battery upon plaintiff.

We are mindful of the principles which regulate and limit the appellate court in its assessment of damages, requiring us to set damages at the lowest amount we find to be adequate. Accordingly, we fix damages at the sum of $2500.00.

For the foregoing reasons, we increase the award for general damages from the amount of $650.00 to the sum of $2500.00 and as thus amended we affirm the judgment. Cost of this appeal to be paid by appellee.

AMENDED AND AFFIRMED.