text:
    ROSE HILL BAPTIST CHURCH, Plaintiff-Appellee, v. Jake JONES, Jr., Defendant-Appellant.
    No. 82-389.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1982.
    Brent Gore, Ferriday, for defendant-appellant.
    Lyman S. Gore, Jr., Vidalia, for plaintiff-appellee.
    Before GUIDRY, CUTRER and STOKER, JJ.
   GUIDRY, Judge.

Rose Hill Baptist Church (hereafter the Church), an unincorporated religious association, filed this suit to enjoin Jake Jones, Jr. from acting as pastor of the Church. Jones filed an exception of lack of jurisdiction over subject matter. In this exception, he alleged that the matter was purely ecclesiastical and, as such, the First Amendment of the Constitution of the United States, as applied to the States through the Fourteenth Amendment, forbids the State District Court from engaging in the process of interpreting Church laws and practices. The trial court rendered judgment sustaining defendant’s exception of lack of jurisdiction and dismissed plaintiff’s suit. The Church appealed devolutively.

The only issue on appeal is whether a resolution of this controversy requires interference in matters of church doctrine, practice or administration so as to violate the protection guaranteed by the first amendment.

There was no evidence presented to the trial court. This matter was tried on the factual allegations of plaintiffs petition which are stated below.

The Church association is composed of a membership which averages 80 to 85 members. Each current member has one vote in carrying out the business of the Church. On January 10, 1981, by a vote of 46 members for, none against, Jones was removed as pastor. Jones was notified of his removal but he refused to discontinue acting as pastor and to surrender Church records and money. Plaintiff seeks a judgment enjoining Jones from acting as Church pastor, conducting any affairs of the Church or retaining any of the Church records and money.

The United States Constitution and the Louisiana Constitution, as interpreted by our courts, prohibit civil courts from interfering in the ecclesiastical matters of a religious group, i.e., matters concerning religious doctrine, policy or practice, which have constitutionally been left for the religious bodies themselves to decide. The Serbian Eastern Orthodox Diocese for the United States of America and Canada, et al v. Milivojevich, 426 U.S. 696, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976); Bourgeois v. Landrum, 396 So.2d 1275 (La.1981); Joiner v. Weeks, 383 So.2d 101 (La.App. 3rd Cir.1980), writ denied, 385 So.2d 257.

On the trial of the declinatory exception, evidence may be introduced to support any of the objections pleaded, when the grounds thereof do not appear from the petition. La.C.C.P. Art. 930. As aforestated, no evidence was taken at the hearing on the declinatory exception of lack of subject matter jurisdiction. The court was therefore restricted to the allegations of the petition, which for purposes of the exception must be accepted as true. State ex rel Brenner v. Noe, 186 La. 102, 171 So. 708 (1938); Morrison v. H.B. Mitchell Const Co., 369 So.2d 1102 (La.App. 1st Cir.1979); Succession of Jeffress, 403 So.2d 821 (La.App. 2d Cir.1981).

In his opinion, the trial judge stated:

“The plaintiff in this case seeks to have the court decide who will be pastor of the Church. The only record before the court at this time is the petition and its brief allegations of fact.
It is my opinion that plaintiff’s (sic) have failed to make out the requisite predicate or foundation for intervention by the court into the matter of selecting the pastor or chief minister of this Church.”

The plaintiffs petition does not put at issue the process of Mr. Jones’ dismissal nor does it ask the court to decide who is the pastor of Rose Hill Baptist Church. The petition alleges that Jones was removed as pastor of the Church and requests that the court decide whether an injunction is warranted.

Accepting the allegation of the petition that Jones was removed as pastor of the Church as true, the issue presented by the plaintiff’s petition is whether the Church is entitled to injunctive relief, against an ex-pastor, who continues to conduct the affairs of the Church and who refused to return Church funds and records. The underlying First Amendment principles which protect against entanglement of civil courts in question of religious doctrine, policy or practice are not offended by this judicial inquiry.

In the recent Louisiana Supreme Court decision of Fluker Community Church v. Hitchens, 419 So.2d 445 (La.1982), docket number 81-C-3286, the court stated:

“Refusal to adjudicate a dispute over property rights or contractual obligations, even when no interpretation or evaluation of ecclesiastical doctrine or practice is called for, but simply because the litigants are religious organizations, may deny a local church recourse to an impartial body to resolve a just claim....”

No interpretation or evaluation of ecclesiastical doctrine or practice is called for in plaintiff’s petition.

Accordingly, the judgment of the trial court sustaining the exception of lack of jurisdiction is reversed and the case is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.


source: Caselaw Access Project

author: STOKER, Judge.

license: Public Domain

text:
    Michael MANGO, Plaintiff-Appellee, v. STATE of Louisiana, Through DEPARTMENT OF PUBLIC SAFETY, Defendant-Appellant.
    No. 82-390.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1982.
    Wayne R. Crouch, Asst. Gen. Counsel, Baton Rouge, for defendant-appellant.
    John Skaggs, Leesville, for plaintiff-ap-pellee.
    Before GUIDRY, CUTRER and STOKER, JJ.
   STOKER, Judge.

The defendant, State of Louisiana, Department of Public Safety, appeals from a judgment granting plaintiff a restoration of his suspended driving privileges. Defendant filed a peremptory exception of failure to state a cause of action which, although not ruled on by the trial court, is reurged, along with other contentions, on appeal. We reverse.

Plaintiff’s action is based on LSA-R.S. 32:415.1A(1), which reads in pertinent part as follows:

“§ 415.1 Economic hardship appeal of driver’s license suspension
“A. (1) Upon suspension, revocation, or cancellation of a person’s drivers license for the first time only as provided for under R.S. 32:414(B), (C), (D), (E), and R.S. 32:415 said person after initial notice from the department shall have the right to file a petition in the district court of the parish in which the applicant is domiciled alleging that revocation of his driving privileges will deprive him or his family of the necessities of life or will prevent him from earning a livelihood. The district court is vested with jurisdiction to set the matter for contradictory hearing in open court upon ten days written notice to the department, and thereupon to determine whether the allegations of hardship have merit. Upon determination by the court that the lack of a license would deprive the person or his family of the necessities of life, the court may order that the person be granted by the department a restricted license to enable the person to continue to support his family.”

Defendant’s peremptory exception is based on the fact that plaintiff failed to allege in his petition that the suspension complained of is plaintiff’s first suspension, which is a requisite for the cause of action in the above statute. It is apparent from the trial record that plaintiff could not have truthfully alleged that this was his first suspension in view of his proven record of previous suspensions.

We find that the trial court erred in not granting defendant’s peremptory exception. Sibley v. Louisiana, Department of Public Safety, 385 So.2d 505 (La.App. 1st Cir.1980). Because of our ruling on the exception, appellant’s other arguments need not be considered.

For the reasons assigned, the judgment of the trial court is reversed and the petition for restoration of restricted driving privileges is dismissed. Costs of this appeal are assessed against appellee, Michael A. Mango.

REVERSED.


author: GUIDRY, Judge.

text:
    Jeanette Litteral THERIOT, et al., Plaintiffs-Appellees, v. Lonzo Hill LANIER and Margaret Richey Lanier, Defendants-Appellants.
    No. 82-398.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1982.
    Rehearing Denied Feb. 4, 1983.
    Writ Denied March 25,1983.
    Raleigh Newman, Lake Charles, for defendants-appellants.
    Stockwell, Sievert, Viccellio, Clements & Bradford, John S. Bradford, Lake Charles, for plaintiffs-appellees.
    J. Douglas Handley, Lake Charles, for defendant-appellee.
    Before GUIDRY, CUTRER and STOKER, JJ.
   GUIDRY, Judge.

This suit involves an affirmative defense of arson to a claim under a fire insurance policy. The policy in question was issued by State Farm Fire and Casualty Company (hereafter State Farm) to Mr. and Mrs. Lonzo Lanier, covering their residence at 905 11th Street, Lake Charles, Louisiana.

The property destroyed by fire was acquired by Mr. and Mrs. Lonzo Lanier from Jeanette Litteral Theriot and her children on March 2, 1978. Mrs. Theriot and her children were holders of a promissory note executed by the Laniers to secure payment of the credit portion of the purchase price. The note was secured by a vendor’s lien and mortgage on the above mentioned property. The Laniers were late on their May, 1980 payment. On May 6, 1980 Mrs. Theriot made a written demand for the entire balance due on the note. On May 27,1980, the Lanier home was damaged by fire. On May 28, 1980, Mrs. Theriot and her children foreclosed on their mortgage and then filed this suit against the Laniers to recover the deficiency. The Laniers filed a third party demand against State Farm seeking recovery under their policy of insurance and penalties and attorney’s fees for the insurer’s alleged arbitrary failure to timely pay the claim. State Farm answered alleging arson as a defense. Pico Finance Company of Lake Charles, Inc. (hereafter Pico) intervened seeking judgment against the Lani-ers for the balance due on a note which it held. This note was secured by a second mortgage on the property and Pico sought to recover from the insurance proceeds by preference the amount owed it. Prior to the taking of evidence, the Laniers stipulated judgment in favor of Mrs. Theriot and her children. On January 25,1982, the trial court rendered judgment in favor of the Theriots and Pico against the Laniers and dismissed the Laniers’ third party demand against State Farm. The Laniers appealed the judgment of the trial court rejecting their third party demand against State Farm.

The only issue presented on appeal is did the trial judge err in his factual determination that the defendant proved its defense of arson; and, if so, are the Laniers entitled to recover penalties and attorney’s fees from State Farm for its arbitrary failure to timely pay their claim.

The trial judge based his conclusion of arson on the following factual findings recited in his written reasons for judgment:

“There were two points of origin of the fire. One point of origin was the small room in which the water heater was located, and the other point of origin was in the kitchen, the room adjacent to the water heater closet, and more specifically, in the kitchen cabinet above the second shelf in the cabinet immediately under the stove. All experts agreed, and logic dictates, that two or more points of origin of a fire indicate the fire was intentionally set. This conclusion of two points of origin in supported by the evidence a) that a hole had been punched in the gas tubing under the stove; b) the burn pattern; and c) there was no communication between the two points of origin.
The conclusion that the fire was of incendiary origin is further supported by the evidence that it was a fast fire, indicating the use of an accelerant in the water heater closet. The fire burned vertically, with little lateral movement, also indicating a fast, accelerated fire. Additionally, there was a minimal amount of soot build-up on the windows, indicating a fast fire. Having reached the conclusion that the fire was incendiary in origin, it remains to be determined whether Lanier was responsible for the fire.
Mr. and Mrs. Lanier testified positively that both were absent at the time of the outbreak of the fire. They both testified that they left the house simultaneously in separate cars at approximately 8:00 A.M. the morning of the fire. The house is located on 11th Street, which runs east and west. They testified they proceeded in a westerly direction on 11th Street to Common Street, and then to a warehouse. Each denied returning to the home until later that afternoon, after the occurrence of the fire.
The testimony of Lanier in this regard is refuted by Morris Hickox. Hickox lives in the second house to the east of the Lanier home, approximately 75 yards away. On that morning, he was sitting in his back yard, with a clear view of Lanier’s house and driveway. He testified that at approximately 9:00 A.M., La-nier came from the rear of his house onto the driveway and got in his truck. He backed the truck out of the driveway and went east on 11th Street, not west, as Lanier had testified, passing in front of the Hickox home. As Lanier passed in front of Hickox’s house, Hickox saw smoke coming from the vent on top of the Lanier home. He told his wife to call the fire department. The fire department’s records show that she reported the fire at 9:06 A.M.
The court accepts as both truthful and accurate the testimony of Hickox. The testimony of Lanier cannot be reconciled with that of Hickox. Either Lanier did not leave the house with his wife but remained there after she left until 9:00, or if he did leave with her earlier, he returned later to the house. Lanier was present at the house at the outbreak of the fire. That fact, in and of itself, may not under other circumstances be conclusive evidence that he set the fire. But his denial of his presence and his recitation of a completely different set of facts than those given by Hickox, coupled with the fact that the fire was of incendiary origin, leads to the inescapable conclusion that he set the fire. He and no one else had the opportunity to set the fire. He had a financial motive in doing so, although it would appear from the evidence that he exercised poor judgment in choosing this means of relieving the financial pressure. The insurer has met its burden of producing evidence so convincing that it will sustain no other reasonable hypothesis but that plaintiff was responsible for the fire.”

Findings of fact by the trial judge, particularly those involving credibility of witnesses, will not be disturbed on appeal unless clearly wrong. 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). The standard of proof in cases involving an affirmative defense of arson was enunciated in Rist v. Commercial Union Ins. Co., 376 So.2d 113 (La.1979):

“By raising the affirmative defense of arson, the insurer has the burden of establishing, by convincing proof, that the fire was of incendiary origin and that plaintiff was responsible for it. An insurer need not prove its case beyond a reasonable doubt; it suffices that the evidence preponderates in favor of the defense. Sumrall v. Providence Washington Ins. Co., 221 La. 633, 60 So.2d 68 (1952). In addition, we stated in Sumrall:
Proof, of course, may be and invariably is entirely circumstantial. And, in these instances, a finding for defendant is warranted where the evidence is of such import that it will sustain no other reasonable hypothesis but that the claimant is responsible for the fire.... Accordingly, the questions presented in matters of this sort are answered by the particular facts of the controversy.” [cases omitted]

See also Bridges v. Reliance Ins. Co., 410 So.2d 1243 (La.App. 3rd Cir.1982).

Mr. Lanier contends that the trial judge erred in concluding that the fire was of incendiary origin. All of the experts who testified at trial agreed that more than one point of origin of a fire indicates that the fire was intentionally set. State Farm’s experts, Mr. Zwick, Mr. Smith and Chief Peet were of the definite opinion that there were two points of origin in this fire. One point of origin was located in the hot water heater closet; the other was located on the top shelf of a cabinet beneath the range top of the stove. These two areas shared a common wall and there was a gas pipe which traveled from the hot water heater through the wall to the bottom shelf of the cabinet and then into the upper shelf of the cabinet beneath the stove. The physical evidence indicates that there was no communication between the fires in the two areas. There was no burning in the interior of the wall between the two rooms.

Mr. Reynold, Mr. Lanier’s expert, was of the opinion that it was possible for heat caused by the fire on the water heater side to travel by way of convection or connection through the gas pipe and start a blaze in the top cabinet under the stove. This possibility is unsupported by the particular facts in this case. The paper on the pipe in the bottom shelf of the cabinet, which was closer to the water heater, was undamaged, indicating that the pipe in the top shelf of the cabinet, which was further away from the water heater, could not have been hot enough to ignite even paper in the top shelf of the cabinet. Accordingly, we conclude that the trial court’s finding that there was more than one point of origin of the fire, which is one factor indicating incendiary origin, is fully supported by the evidence.

There is also evidence which excludes all possible accidental causes of fire in each of the areas. The only normal heat source in the hot water heater cabinet was the water heater itself. Based on a lack of damage to the water heater controls and the burn pattern, which was lateral across the floor in that room, Mr. Zwick and Mr. Smith eliminated the water heater as a source of the fire. Both were of the opinion that the burn pattern in this area indicated the use of an accelerant or flammable liquid at floor level.

In the kitchen area, on the top shelf of the cabinet under the stove, Mr. Smith and Chief Peet found a portion of the gas pipe which had several holes in it. At the scene of the fire, the officials felt one of the holes was caused by a tool and sought an examination of the pipe. Officer Byrd, who qualified as an expert in tool mark analysis, was of the definite opinion that the hole in question was produced before or at least during the fire. Although he was unable to make a positive identification, he was of the opinion that the object which made the hole was similar in size and shape to the end of a screwdriver taken from the Lanier home by Mr. Smith. Mr. Smith, Mr. Zwick and Chief Peet were all of the opinion that the fire in the kitchen was set by igniting gas from the punctured gas line.

Furthermore, all experts agreed that there was more vertical movement than lateral movement of the fire and that there was a relatively small amount of soot on the windows evidencing a fast fire. Both Mr. Zwick and Mr. Smith indicated that the fire in the Lanier home was a fast or accelerated fire which is characteristic of an intentionally set fire as distinguished from an accidental fire which is usually slow.

All of these circumstances support the conclusion that the fire was of incendiary origin and exclude other reasonable hypotheses of an accidental origin. We therefore conclude that the trial judge was not clearly wrong in finding as a fact that the fire was intentionally set.

The Laniers also contend that the trial court erred in determining that Mr. Lanier was responsible for the fire. As the trial judge noted, the testimony of Mr. Lanier is in direct conflict and cannot be reconciled with the testimony of Mr. Hickox, which places Mr. Lanier at the house at the time the fire started. The trial judge accepted the testimony of Mr. Hickox as both truthful and accurate. He admits that Mr. Lanier’s presence at his house at the outbreak of the fire, in and of itself, is not conclusive evidence that he set the fire. He, nonetheless, ultimately concluded that Mr. Lanier was responsible for the fire, based on the following findings: that Mr. Lanier was the only person with the opportunity to set the fire; that he was experiencing financial difficulty at the time of the fire; that he denied his presence at his house at the outbreak of the fire; and, that he recited a completely different set of facts than those given by Mr. Hickox.

These are facts particularly involving the credibility of the witnesses. The trial judge heard and saw the witnesses, observed their demeanor and weighed their credibility. Mr. Hickox’s testimony was detailed, consistent and corroborated by circumstantial evidence. His testimony, which the trial judge accepted as true, was that he observed Mr. Lanier leaving the house moments before smoke was observed venting from the home. Having determined that the fire was intentionally set, these facts lead to the inescapable conclusion that Mr. Lanier was the only person with the opportunity to set the fire. We find no manifest error in the trial judge’s conclusion. The evidence that the fire was of incendiary origin and that Mr. Lanier started the fire is overwhelming and excludes every other reasonable hypothesis as to its origin.

For the above and foregoing reasons, the judgment of the trial court is affirmed. Costs of appeal are assessed against third party plaintiffs, Lonzo Hill Lanier and Margaret Richey Lanier.

AFFIRMED.


text:
    Mrs. Ella ROMERO, Plaintiff-Appellee, v. Francis RICHARD, Ernest Richard, Gilmore & Sons Contractor Inc., Aetna Insurance Company, Defendants-Appellants.
    No. 82-400.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1982.
    Paula Kobetz Woodruff, Lafayette, for defendants-appellants.
    Jeansonne, Briney, Balfour & Goudelocke (Craig W. Marks), Lafayette, for defendants-appellees.
    J.N. Prather, Jr., Lafayette, for plaintiff-appellee.
    Before GUIDRY, CUTRER and STOKER, JJ.
   GUIDRY, Judge.

The plaintiff, Mrs. Ella Romero, brought this suit to recover damages for personal injuries she received in two automobile accidents which occurred within a short period of time on September 2, 1980. Made defendants were Ernest and Francis Richard and their insurer, ABC Insurance Company, and Gilmore and Sons Construction Company, Inc. (hereafter Gilmore) and its insurer, XYZ Insurance Company. Ernest and Francis Richard filed an “answer and intervention and/or third party demand” seeking indemnity and/or contribution from Gilmore, and also claiming damages from Gilmore for their own personal injuries and property damage. Gilmore filed a peremptory exception of prescription as to the Richard’s claim for their own personal injuries and property damage. The trial court sustained the exception and the Richards appeal. The sole issue is whether the trial court was correct in determining that the Richards’ claim against Gilmore for their own damages was barred by the prescription of one year.

The facts pertinent to a disposition of the issue presented are not in dispute. On September 2, 1980, Mrs. Ella Romero was proceeding in a westerly direction on Butcher Switch Road in Lafayette. She encountered a muddy stretch of road, lost control of her car, and struck a culvert on the side of the road. At the time, a crew employed by the defendant, Gilmore, was engaged in installing culverts along the side of the road adjacent to the point of the accident. Mrs. Romero alleges that Gilmore was negligent in causing the mud to be present on the road and in failing to wash the mud off the road, and that its negligence was the cause of the accident.

Immediately following this accident, Mrs. Romero went to a neighbor’s home nearby to contact the appropriate authorities. A friend brought Mrs. Romero back to the scene of the accident in a pickup truck. While Mrs. Romero was a passenger in the truck, it was struck from the rear by a vehicle being driven by the defendant, Francis Richard, and owned by the defendant, Ernest Richard. Mrs. Romero contends that negligence on the part of Ernest and Francis Richard caused the second accident.

Mrs. Romero filed suit against the Richards and Gilmore on August 31, 1981. The Richards were served on September 3, 1981. Gilmore was served on September 14, 1981. On September 22, 1981, the “answer and intervention and/or third party demand” was filed on behalf of the Richards. The Richards assert that negligence on the part of Gilmore was the cause of accident in which they were involved. They seek indemnity and/or contribution for any damages they may be held to owe Mrs. Romero, and they also claim damages for personal injuries suffered by Francis Richard and damages to the car owned by Ernest Richard.

LSA-C.C.P. Art. 1067 provides:

“An incidental demand is not barred by prescription or peremption if it was not barred at the time the main demand was filed and is filed within ninety days of date of service of main demand or in the case of a third party defendant within ninety days from service of process of the third party demand.... ”

This article makes it clear that if the Richards’ claim against Gilmore for their own damages is an incidental demand, it has not prescribed, since it was not barred by prescription or peremption at the time the main demand was filed, and it was filed within ninety days of service of the main demand.

Intervention is an incidental demand. LSA-C.C.P. Art. 1031. Intervention is defined in LSA-C.C.P. Art. 1091, which provides:

“A third person having an interest therein may intervene in a pending action to enforce a right related to or connected with the object of the pending action against one or more of the parties thereto by:
(1) Joining with plaintiff in demanding the same or similar relief against the defendant;
(2) Uniting with defendant in resisting the plaintiff’s demand; or
(3) Opposing both plaintiff and defendant .... ”

Article 1091 has been given a broad interpretation by this court. In Bellow v. New York Fire and Marine Underwriters, Inc., 215 So.2d 350 (La.App. 3rd Cir.1968), the plaintiff, who was injured in an accident involving a bus on which she was a passenger, sued the driver of the bus and the driver of the other vehicle. The driver of the bus, Guillory, having already filed a third party demand against the other driver, Joseph, then filed a pleading styled “Supplemental and Amending Third Party Demand” against Joseph and his employer for Guillory’s own damages in the accident. This court held that the demand of the defendant against his co-defendant which arose out of the same accident was a “right related to or connected with the object of the pending action” and was therefore maintainable as an intervention.

We again interpreted Article 1091 broadly in Home Indemnity Co. v. Central La. Elec. Co., 384 So.2d 455 (La.App. 3rd Cir.1980). In that case, the Home Indemnity Company timely brought suit against CLE-CO to recover workmen’s compensation benefits it had paid to an injured worker, Pullard, on behalf of Servitron, Inc., the worker’s employer. The intervenor, Tol-mak, Inc., had paid $156,655.41 to Pullard in satisfaction of a judgment rendered against Tolmak in a federal tort suit in Texas. The payment of workmen’s compensation benefits by Home Indemnity and the tort judgment against Tolmak arose from the same injury to Pullard. Tolmak, who was not previously a party to the suit by Home Indemnity against CLECO, intervened to seek indemnity from CLECO for the amount it paid to Pullard. In upholding Tolmak’s right to intervene, we held that Article 1091 was broad enough to encompass Tolmak’s claim since Tolmak sought to “enforce a right related to or connected with the object of the pending action” by “joining with plaintiff in demanding the same or similar relief against the defendant”.

In accordance with the terms of Article 1091 and the broad interpretation we give it, we hold that the claim of Francis and Ernest Richard for personal injuries and property damage is a proper intervention. The accident on which their claim is based is already the subject of the present litigation. The theory on which their claim is based is identical to that on which Mrs. Romero relies in her claim against Gilmore. All of the factual matters relevant to the Richards’ claim are already part of the litigation. Suffice it to say that the Richards’ claim is one to “enforce a right related to or connected with the object of the pending action against one or more of the parties thereto” wherein the Richards intervene by “joining with the plaintiff in demanding the same or similar relief against the defendant”.

According to the clear terms of LSA-C. C.P. Art. 1067, supra, the claim of the Richards, being a proper intervention, was not prescribed when it was brought on September 22, 1981, since it was not barred at the time the main demand was filed and was brought within ninety days of service of the main demand. Thus, the trial judge erred in sustaining the exception of prescription.

We observe that our brethren of the Fourth Circuit reached a like result in Washington v. Goldate, 411 So.2d 1224 (La.App. 4th Cir.1982), a recent case presenting somewhat similar factual circumstances. In that case, Washington and Banks were traveling in a truck, owned by Cort furniture, that was struck by an automobile being driven by the defendant, Goldate. Washington was killed. His survivors and Banks timely filed suit against Goldate and her insurer. Although not a party to the suit up to that time, Cort filed a petition of intervention seeking recovery for property damages. The petition was filed well over a year subsequent to the accident. The court held that the claim of Cort was a proper intervention according to the broad interpretation of Article 1091, supra, and that the claim of Cort was not prescribed according to the terms of Article 1067.

Gilmore relies on our decision in Moraus v. State, through Dept. of Transp., 396 So.2d 596 (La.App. 3rd Cir.1981), where we held that the claim of an intervening party had prescribed. That case, however, is readily distinguishable from the present case. In Moraus, the intervenor, who was not previously a party to the suit, failed to file her claim within ninety days of service of either the main demand or the third party demands on any party in the suit. Her claim was therefore barred by the prescription of one year.

For the above and foregoing reasons, the judgment of the trial court is reversed and this matter is remanded for proceedings not inconsistent with the views expressed. All costs are assessed to defendants-appellees.

REVERSED AND REMANDED.

      . At the time the petition was filed, the plaintiff did not know which company or companies insured the defendants, therefore referring to them as the ABC and XYZ Insurance Companies.

      . Gilmore concedes in brief to this court that the third party demand for indemnity and/or contribution asserted against them by the Richards has not prescribed.


author: DOMENGEAUX, Judge.

text:
    Malinda Ann KING, Individually, and as Natural Tutrix of Her Minor Son, Michael A. KING, Plaintiff-Appellant, v. COMMERCIAL UNION INSURANCE COMPANY, Defendant-Appellee.
    No. 82-402.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1982.
    Writ Denied Feb. 23,1983.
    Reeves & Owens, Jack F. Owens, Jr., Harrisonburg, for plaintiff-appellant.
    Cecil Gill Smith, Jr., Natchez, Miss., Kos-telka, Swearingen & Street, Robert W. Kos-telka, Monroe, for defendant-appellee.
    Before DOMENGEAUX, FORET and LABORDE, JJ.
   DOMENGEAUX, Judge.

Plaintiff, Malinda Ann King, filed this tort action against Henry Wright, Jr., the Town of Jonesville, Louisiana, and Commercial Union Insurance Company, for injuries sustained by her minor son, Michael A. King, when he was hit by a truck on April 25, 1978. Subsequently, she amended her petition, dismissing Henry Wright, Jr. and the Town of Jonesville, Louisiana, and maintaining the suit against the insurance company as the liability insurer for the Town of Jonesville for damages totalling $600,000.00.

The case was tried before a jury. At the close of the plaintiff’s case the defendant moved for a directed verdict, which was granted by the trial judge. Subsequently, the plaintiff’s motion for a new trial was denied, whereby she appealed to this Court.

The facts involved in this dispute are very sketchy. Apparently, Michael King was playing in a ditch in front of his house when he decided to cross the street on his “big wheel” in order to talk to a friend. He was then struck by a vehicle which allegedly was being driven by Henry Wright, Jr. Subsequently, the boy was pulled out from underneath the truck by Mr. Wright and was driven by Wright and Mrs. King to Catahoula Hospital for treatment.

Plaintiff’s counsel attempted to prove how the accident occurred by calling as witnesses the plaintiff, her injured son, and one Jesse James Atkins. The plaintiff and Atkins both testified that they did not actually see the accident occur but arrived on the scene shortly thereafter. Michael King testified that he didn’t remember seeing a truck prior to being struck and injured. Mrs. King did state that a neighbor who lived across the street from her did see the accident but that individual was never called to testify during the plaintiff’s case.

Mr. Atkins averred that he saw the truck immediately before the accident and that it appeared to him to be travelling no faster than 10 miles per hour. However, he was unable to describe where the truck collided with the child since he did not see the accident occur. Atkins identified the truck as a “town truck”, one that was owned and operated by the Town of Jonesville. However, he couldn’t identify the driver of the vehicle at the time of the accident.

Towards the close of the plaintiff’s case, she attempted to call Henry Wright as a witness on cross-examination. The defendant objected to this, based on the fact that Wright was no longer a party-defendant in the action and could not be called on cross-examination unless the plaintiff could prove some hostility on the part of the witness. The trial judge sustained the defendant’s objection. The plaintiff then chose to rest her case rather than call Henry Wright on direct examination.

In the trial judge’s Per Curiam dated November 5, 1981, he states that the defendant’s motion for a directed verdict was granted because the court was of the opinion that the plaintiff had presented no evidence showing that Michael King’s injuries were caused by the fault or negligence of anyone, much less the defendant or anyone for whom it was responsible. The trial judge also seemed influenced by the fact that the plaintiff had not proven that Henry Wright was the driver of the truck, that the truck was owned by the Town of Jones-ville, and that Henry Wright was acting within the course and scope of his employment such that Commercial Union Insurance Company could be held liable.

Mrs. King appealed this judgment, arguing that the trial judge erred in granting defendant’s motion for a directed verdict. She alleges that the judge was mistaken in holding that no facts were presented upon which the jury could find the defendant liable. She also claims that the court erred in determining that there were no facts introduced which demonstrated a connexity between the driver of the truck and Commercial Union Insurance Company. On the contrary, she argues that despite the existence of such facts, that the insurance company must bear the burden of demonstrating that the driver of the truck was not covered by the insurance policy on the Town of Jonesville by proving such lack of coverage as an affirmative defense.

La.C.C.P. Article 1810(A) describes the motion for a directed verdict in a jury case:

“A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order of the court granting a motion for a directed verdict is effective without any assent of the jury.”

This Court cited the proper standard for applying La.C.C.P. Article 1810(A) in Campbell v. Mouton, 373 So.2d 237 (La.App. 3rd Cir.1979):

“On motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence—not just that evidence which supports the non-mover’s case—but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury.”

Professor Frank L. Maraist of the Louisiana State University Law Center suggests the process that should be employed in applying the Campbell standard in 40 La.Law Review 761 (1980), at page 772:

“In applying the standard, the judge’s thought process should proceed in this fashion: (1) what are the primary facts, i.e., the elements of plaintiff’s cause of action; (2) is there direct evidence to support each primary fact, i.e., the testimony of a witness with the opportunity for firsthand knowledge testifying as to the existence of such fact; or (3) is there testimony of witnesses, with the opportunity for firsthand knowledge, as to the existence of circumstances from which a reasonable mind could infer the primary facts? If there is direct evidence, or sufficient circumstantial evidence, as to each primary fact, the motion for directed verdict should be denied; if not, it should be granted.”

Plaintiff’s cause of action is based on negligence, thus she must establish “fault” on the part of the defendant’s alleged insured. Plaintiff must show that there is a duty owed by the defendant or by someone for whom the defendant is answerable to the plaintiff, that there was a breach of this duty, and that this breach of duty is the cause in fact of the damages suffered by the plaintiff. Williams v. Louisiana Machinery Company, Inc., 387 So.2d 8 (La.App. 3rd Cir.1980).

The jurisprudence of this State places a high degree of care upon a motorist who sees a child on or near the road and imposes upon him a duty to anticipate that the child, possessed of limited judgment, might be unable to appreciate impending danger, is likely to be inattentive, or might suddenly place himself in a position of peril. Buckley v. Exxon Corporation, 390 So.2d 512 (La.1980); Dufrene v. Dixie Auto Insurance Co., 373 So.2d 162 (La.1979).

However, in Keel v. Thompson, 392 So.2d 713 (La.App. 3rd Cir.1980), this Court stated:

“... the duty to exercise greater than ordinary care to avoid injury to a child arises only upon the motorist becoming aware of the child or under circumstances where he should have been aware of the child. In other words, unless the motorist knows or has reason to know that a child is in the vicinity of the street, his duty is to use ordinary care and caution in the operation of his vehicle.”

Thus, the degree of duty that the driver was bound to maintain in the present case depends upon whether or not he knew or should have known that a child was in the vicinity of the street. Based upon the small amount of evidence presented here, we are unable to determine whether or not the driver was obligated to use a high degree of care or simply ordinary care in the operation of the vehicle at issue.

But regardless of the degree of duty assigned to the driver, the plaintiff must provide direct or circumstantial evidence demonstrating that the driver breached his duty. We are of the opinion that no such evidence was introduced by the plaintiff. In absence of these facts, we feel that it would be unreasonable to attribute any fault to the driver of the truck, regardless of his identity.

The plaintiff argues that based simply on the circumstances of the accident, that the driver should be presumed to have been negligent. However, we are unable to agree with this proposition. Rather, we adhere to the standard applied by this Court in Keel, supra:

“While the law imposes a high degree of care upon a motorist operating a vehicle on streets and highways in the vicinity of small children, a driver is not the insurer of the safety of children playing near or along a street or highway. If a motorist is proceeding at a lawful and reasonable rate of speed, maintaining a proper lookout, and otherwise obeying the rules of the road, he will not be held liable for injuries to a child who suddenly darts or dashes into the path of his vehicle from a concealed position in such a way that an accident cannot be avoided. When a driver has employed all reasonable precautions to avoid an accident and a sudden act of a child creates an emergency rendering it impossible for the motorist to avoid striking the child, the accident is considered unavoidable and the motorist is not liable.”

We cannot determine what caused the accident to occur based upon the facts presented in the plaintiff’s case. Mr. Atkins did state that he didn’t recall seeing any parked cars in the vicinity of the accident after it had occurred. But he also testified that the truck was traveling at a slow rate of speed just prior to the accident, estimating that it was only going about 10 miles per hour. Atkins further averred that he didn’t know at what spot in the road the truck hit the boy. There is simply no way to conclude that the driver was at fault based upon this testimony.

The plaintiff had an opportunity to call the one witness that could have shed some light on the dispute, Henry Wright, during her case. The trial judge correctly upheld the defendant’s objection to the plaintiff’s attempt to call Mr. Wright under cross-examination since Wright was not a party to the litigation or a representative of a party. La.C.C.P. Article 1634. Had the plaintiff kept Wright as a party to the lawsuit, she would have retained the right to call him on cross-examination. However, she did not do this and thus cannot now be heard to complain of the Judge’s ruling in this respect.

In our opinion Mrs. King has failed to produce evidence opposing the motion for directed verdict of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions. Campbell, supra. Thus, we have no choice but to affirm the judgment of the trial court.

Since we have determined that the plaintiff has failed to introduce evidence necessary to overcome the defendant’s motion for a directed verdict, it is unnecessary for us to determine whether or not the driver of the truck would have been covered by the liability policy issued by the defendant to the Town of Jonesville.

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

All costs are assessed against the plaintiff, Malinda Ann King.

AFFIRMED.


author: CUTRER, Judge.

text:
    Earl PARQUETTE, Plaintiff-Appellee, v. ARCENEAUX MUSIC CENTER, INC., Defendant-Appellant.
    No. 82-403.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1982.
    Perrin, Landry & deLaunay, Warren A. Perrin, Lafayette, for defendant-appellant.
    Mouton, Roy, Carmouche & Bivens, H. Purvis Carmouche, Lafayette, for plaintiff-appellee.
    Before GUIDRY, CUTRER and STOKER, JJ.
   CUTRER, Judge.

This appeal emanates from Earl Par-quette’s suit against Arceneaux Music Center, Inc. (Arceneaux Music) for the amount due on a loan made to defendant by plaintiff. The trial court rendered judgment in favor of plaintiff and against the defendant for the sum of $12,500.00 plus interest at the rate of eighteen percent. Defendant appeals. We affirm.

Defendant is a corporation in the business of selling musical instruments and related equipment. The defendant is composed of three stockholders who are also its officers and board members. Plaintiff owns 420 shares of defendant’s stock, was the vice-president and a board member, and was employed by defendant in a sales capacity. Jack Arceneaux owns 490 shares of defendant’s stock, is president and a board member, and is employed as defendant’s manager. Finally, Julian Mouton owns 510 shares of defendant’s stock, is secretary-treasurer and a board member.

The corporation had a history of liquidity (available cash) problems. This history contributed to the events which led to this suit. Faced with a seasonal demand (early fall) for its merchandise, defendant found it necessary to purchase its inventory in late summer. In the summer of 1980; the defendant did not have the necessary cash on hand to make such a purchase. After considering various alternatives the three stockholders decided to secure personal loans from American Bank and Trust Company, Lafayette, Louisiana (American Bank) and to put those funds into the defendant corporation.

A dispute arose as to the characterization of the money plaintiff put into the defendant. Plaintiff maintained in the trial court that he. loaned the money to defendant with the understanding that defendant would pursue a Small Business Association (SBA) loan and his loan was to be paid within 120 days. The defendant contended that the funds each stockholder put into it were capital contributions and were not subject to repayment. The trial court held that the money that plaintiff placed into defendant corporation was a loan. The trial court further held that the time for the repayment of the loan had not been agreed upon; therefore, the loan was to be repaid within a reasonable time. The trial court concluded that a reasonable time (six months) had expired without payment and rendered judgment against defendant.

The issues on appeal are:

(1) Whether the trial court correctly found the sums transferred to defendant ($12,500.00) was a loan and not a capital contribution; and
(2) If the court finds that the trial court correctly found the money was a loan, whether the trial court correctly found that payment of same was due at the time suit was filed.

LOAN OR CAPITAL CONTRIBUTION

We have reviewed the record and conclude that the trial judge correctly determined that this was a loan to defendant by the plaintiff. Jack Arceneaux, president and general manager of defendant, admitted on cross examination that he considered the funds placed into the defendant as a loan. A few months after the loan was made to the defendant, Arceneaux reclassified the sums as capital contributions to enhance his financial statement. The trial judge, in his reasons for judgment, reasoned as follows, which properly disposed of this issue:

“The Court finds no support in law or fact for the argument that Mr. Parquette made a capital contribution. The testimony of Parquette and his witnesses was clear; at the time of the transaction all parties contemplated that it was a loan to be repaid with interest. The concept of a capital contribution appears to have occurred only after defendant’s accountant advised such an accounting procedure to improve defendant’s financial statement. Defendant has totally failed to show that Parquette ever acquiesced to a change in the status of his loan.”

Having determined that this was a loan by the plaintiff we now turn to the remaining issue.

WAS PAYMENT OF THE LOAN DUE WHEN SUIT WAS FILED?

The defendant contends on appeal that the loan was not to be repaid until other financing was obtained by defendant and, since such financing (SBA loan, or a loan from a lending institution) had not been obtained by the time plaintiff made his demand, the trial judge erred in holding that the repayment of the loan was due within a “reasonable time.”

The loan by plaintiff was made to defendant on October 30, 1980. Plaintiff had borrowed the $12,500.00 from a bank which note was due in 120 days. At the expiration of the 120 days, the defendant, through its president, Arceneaux, paid the interest due on the bank loan and plaintiff’s bank note was renewed for another 120 days. The second time the bank note came due, Arceneaux refused to pay the interest owed by plaintiff to the bank. The plaintiff paid the interest on his bank note and converted it to an installment note.

The plaintiff testified that shortly after he made the loan to defendant, Arceneaux obtained the power of attorney from one of the other stockholders, affording him a seventy percent voting stock to that of plaintiffs thirty percent. Following this, the business relationship between plaintiff and Arceneaux began to deteriorate. Plaintiff stated that he questioned some of the practices of Arceneaux in the management of the defendant. Arceneaux locked the corporate records in a filing cabinet and denied plaintiff any access to them. These events occurred in January and February 1981. Plaintiff resigned from his job with defendant in March 1981.

Arceneaux, the general manager and president of the defendant, admitted that the sums transferred to the corporation by plaintiff and the other two stockholders were loans to the defendant. He identified the deposit slips in evidence reflecting the deposit of these sums and a notation on each that the amount deposited was a loan to the corporation by the respective stockholders including plaintiff. He stated that the loans were to be repaid when the corporation obtained financing from a lending institution or from the Small Business Association. He stated that no time limit had been discussed. He admitted that no SBA application for a loan had been filed and also that no financing had been obtained from any lending institution by the time suit was filed in April 1980.

We point out these circumstances which reflect that it was intended by the parties that the loan would be paid within a reasonable time. The trial court was correct in ruling that a reasonable time (six months) had expired by the time suit was filed. The trial court cited LSA-C.C. art. 2050 as a basis for its ruling. This article provides as follows:

“When no term is fixed by the parties for the performance of the obligation, it may be executed immediately, unless, from the nature of the act, a term, either certain or uncertain, must be applied [implied]. Thus, an obligation to pay money, without any stipulation for time, may be enforced at the will of the obligee.”

This article has been interpreted in the case of Perrin v. Hellback, 296 So.2d 342, 344 (La.App. 4th Cir.1974), writ den., 300 So.2d 184 (La.1974), as follows:

“LSA-C.C. art. 2050 and the jurisprudence interpretative thereof (Guzzo v. Liggio, 224 La. SIS, 69 So.2d 357 (1953); Richard v. Foods and Services, Inc., 162 So.2d 213 (La.App. 1st Cir.1964); Holmes Brick & Salvage Co. v. Reo Construction, Inc., 253 So.2d 562 (La.App. 1st Cir. [1971]), state that where no time for performance is specified, * * * the inference will be supplied that the parties intended the obligation to be undertaken within a reasonable time. What constitutes a reasonable time must be determined by the circumstances of each case.” (Footnote omitted.)

We find that the trial court committed no manifest error in concluding that the defendant failed to perform its obligation within a reasonable time and payment of the loan to plaintiff was due when the suit was filed.

For these reasons the judgment of the trial court is affirmed. Costs of this appeal are assessed to defendant-appellant.

AFFIRMED.


text:
    David Lee RUTLEDGE, Plaintiff-Appellant, v. CRC HOLSTON, INC., Defendant-Appellee.
    No. 82-404.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1982.
    Writ Denied Feb. 23,1983.

      L. Paul Gianfala, Lafayette, for plaintiff-appellant.
    Andre J. Buisson, Jennings, for defendant-appellee.
    Before GUIDRY, CUTRER and STOKER, JJ.
   CUTRER, Judge.

David Lee Rutledge filed suit for monies allegedly due to him from his employer, CRC Holston, Inc.

Rutledge was employed by the defendant for a period beginning in August 1980 until his termination on September 29, 1981. Rutledge was employed as a “floorhand” assigned to a twenty-four hour rig, working four days on, four days off, twelve hours per day, earning $9.48 per hour regular pay and $14.32 per hour overtime, for a total of $133.12 per day.

When Rutledge was terminated he was paid a total of $538.87 representing regular and overtime pay. Subsequently, he made a demand on his employer for an additional $198.00 in “Black Magic” wages. “Black Magic” is an oil base mud additive used in oil well drilling when requested by customers of the defendant. In cases where “Black Magic” is used, the customer is billed at the rate of $1.00 per hour for each employee who works with this type of drilling mud. These funds, when collected, are known as “Black Magic” money and are paid to the employees who worked with the drilling mud. The defendant refused Rutledge’s demand for the $198.00 on the grounds that the money was payable to the employees when it was received from the customer, but then only if the employee was still employed by the defendant at the time the money was collected. At the time of Rutledge’s demand, the customer, Sun Gas Company, had not yet paid the defendant this extra money.

Rutledge brings this action under LSA-R.S. 23:631 et seq., which provide that upon discharge of an employee, it is the duty of the employer to pay all wages then due under the terms of employment, within three days of termination.

The issue is whether “Black Magic” payments are “wages” due under the employment contract, or merely bonus payments given to employees to reward them for working with “Black Magic,” described as an oily, messy and dirty process. Apparently, this mud is more disagreeable to work with than water base muds. The trial court found that the “Black Magic” payments were in fact bonus payments, not a part of plaintiff’s wages, and dismissed plaintiff’s suit. Plaintiff appeals. We affirm.

The statute under which this claim is brought, LSA-R.S. 23:631, provides that upon discharge of an employee, it is the duty of the employer to pay the amount “then due under the terms of employment” within three days of the discharge. Thus, any bonus payments not provided for in the contract of employment are not covered by LSA-R.S. 23:631.

In the present case, the policy of employment contains no provision calling for the payment of the “Black Magic” bonus. There is also no evidence that such payments was offered or bargained for as a condition of employment when Rutledge was hired.

The testimony of Mr. James Robert, president of CRC Holston, Inc., stated that “Black Magic” payments were treated like Christmas bonus payments. He explained that drilling muds which contain characteristics like those of “Black Magic” were difficult and disagreeable to handle. As a bonus for those employees who work with this type of mud, when a job was finished, the defendant would bill the customer for the extra $1.00 per hour for each employee working on the job. Robert stated that, at times, a customer would refuse to pay the additional charge on the ground that the handling of the mud was part of ordinary duties. Apparently, defendant did not pursue the customer’s refusal to pay the extra money. In that case, no “Black Magic” money was paid to the employees. Robert stated that the policy of the company was ■ to pay the bonus money to the employee if the customer paid same and also if the employee was still working for defendant when the payment was received from the customer. Rutledge was terminated for cause prior to receipt of the money by the company from its customer.

We find that the “Black Magic” payments were in fact bonus payments not provided for by the employment contract and thus not governed by the provisions of LSA-R.S. 23:631. The trial judge correctly disposed of the issue. As there is no liability on the part of the employer, the issue of penalties and attorney’s fees need not be addressed.

Plaintiff cites Pender v. Power Structures, Inc., 359 So.2d 1321 (La.App. 4th Cir.1978), as authority for the fact that a bonus must be considered an amount due under the terms of employment. This case is not applicable to the case at bar, as Pender dealt with an employment contract which specifically provided for the payment of a bonus.

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

AFFIRMED.

      . Introduced in evidence by the defendant is an instrument entitled “Personnel Policy.” This instrument sets forth, in detail, the employment practices of defendant. The provisions include the procedure for hiring, leaves of absence, insurance, retirement, vacations, safety award program, working hours and methods of wage payments.


text:
    Clarence GUIDRY and Maudrey L. Guidry, Plaintiffs-Appellees, v. Edwin D. RUBIN, Joshua J. Pitre and Patricia Dartez Guidry, Defendants-Appellants.
    No. 82-406.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1982.

      Marion Overton White, Opelousas, and Walter E. Keller, Jr., Lafayette, for defendants-appellants.
    Charles M. Thompson, Jr., of Thompson, Sellers & Bundick, Paul G. Moresi, Jr., Abbeville, for plaintiffs-appellees.
    Before: GUIDRY, CUTRER and STOKER, JJ.
   STOKER, Judge.

This suit is one for wrongful conversion of funds by the defendants. The defendants are two attorneys and their client. The attorneys are Edwin D. Rubin and Joshua J. Pitre, and their client is Patricia Dartez Guidry. The trial court granted judgment for the plaintiffs, Mr. and Mrs. Clarence Guidry, and awarded damages to them. The trial court held as follows: (1) the defendants failed to prove that the plaintiffs hired the defendant attorneys to represent them in a suit for the wrongful death of the plaintiffs’ son, (2) the appointment of Patricia Dartez Guidry as “personal representative” pursuant to the provisions of 46 U.S.C. § 761 et seq., Death on the High Seas Act, did not automatically cause her contract for her own representation by the defendant attorneys to become a contract binding on the plaintiffs who are also beneficiaries under the statute, and (3) the issue of quantum meruit, not having been raised either by the pleadings or by the admission without objection of evidence tending to prove quantum meruit, was not properly before the court.

The defendants appeal. We conclude that the trial court was correct in its findings of fact and application of law. We affirm.

FACTS

On May 24,1978, defendant Patricia Dar-tez Guidry, (Patricia), entered into a written contract with defendant attorney Edward D. Rubin, in which Mr. Rubin agreed to represent her in her claim for the wrongful death of her husband, Rudy James Gui-dry, who was the plaintiffs’ son. Patricia was also represented by Joshua J. Pitre, the other defendant attorney.

Rudy’s death being the result of an offshore accident, Mr. Rubin caused Patricia to be appointed as “personal representative” under the provisions of the Death on the High Seas Act (DOHSA). Under the provisions of DOHSA other petitioners were required to join in the suit of Patricia as the personal representative, and she had the duty to “maintain” the federal court suit for the benefit of all members of the class of persons named in the statute.

On or about May 22, 1978, the plaintiffs, Clarence and Maudrey L. Guidry, hired Paul G. Moresi, Jr., to represent them in connection with their claim for the death of their son. After writing two letters to Mr. Rubin, dated April 20, 1979, and August 23, 1979, demanding that Mr. Rubin institute legal proceedings on behalf of his clients, Mr. Moresi received a reply on November 30, 1979. In the reply letter Mr. Rubin informed Mr. Moresi that the petition in Patricia’s suit had been amended to include the plaintiffs. After a pre-trial conference on March 3, 1980, at which all parties and their counsel, including the plaintiffs and Mr. Moresi, were present, the claims were settled. The settlement agreement provided that plaintiffs were to receive $16,708.35 for the loss of their son.

The settlement funds were paid to Patricia as personal representative and were deposited in a bank account in Lafayette. When the funds consisting of the plaintiffs’ portion of the settlement were disbursed on August 19, 1980, Mr. Rubin informed Mr. Moresi that he was deducting $5,569.45 for his expenses and his attorney’s fees. The balance of the settlement amount, $8,866.81, was forwarded to the plaintiffs. Upon formal demand and refusal to pay the deducted amount, the plaintiffs filed this suit. At the time of the trial the funds in dispute were still on deposit in the Lafayette bank.

ISSUES

The issues raised by the defendants-appellants are:

1. Did the trial court err in finding the attorney-client contract between Mr. Rubin and Patricia was not binding on Clarence and Maudrey Guidry?

2. Did the trial court err in ruling that the issue of quantum meruit was not properly before the court?

3. If the defendants had no right of ownership in the disputed funds, did their retention of the money in a Lafayette Bank account constitute wrongful conversion?

4. If the defendants wrongfully converted the money, was there sufficient evidence of plaintiffs’ damages to allow the trial court to award damages?

Another issue raised by the defendants-appellants we will not consider. That issue is whether or not Mr. Moresi represented the plaintiffs in the federal suit by Patricia Dartez Guidry. This suit by the plaintiffs focuses on the issue of whether defendants have a valid claim to the funds retained. Therefore, the extent of representation of the plaintiffs by Mr. Moresi is irrelevant to this suit.

We will discuss and dispose of the issues numbered above under the various subheadings listed below.

THE ATTORNEY-CLIENT CONTRACT BETWEEN PATRICIA. AND MR. RUBIN WAS NOT BINDING ON THE PLAINTIFFS

The defendant attorneys contend that the plaintiffs were parties to the agreement in at least one of two ways:' first, that the plaintiffs consciously availed themselves of, concurred in, acquiesced in, and took part in a contract that was intended to include them; and second, that Patricia intended, and had the right, under federal and state law, or both, to make the plaintiffs part of the contract, regardless of their consent or lack of consent. We reject these contentions.

The trial court correctly found that plaintiffs did not acquiesce in the contract as a matter of fact. There is no objective evidence of any intent by plaintiffs to take part in the contract or become parties to it. Their names do not appear in the contract and they did not sign the contract.

There is no proof that the contract was ever even intended to include the plaintiffs. Mr. Rubin testified that the plaintiffs were not present at the time the contract was confected, that they did not talk to the plaintiffs about the contract, and that he did not show the contract to them or to Mr. Moresi, their attorney. Mr. Rubin did not obtain plaintiffs’ approval of the contract or their consent to it. There was no agreement for Mr. Rubin to act as plaintiffs’ lawyer.

Alternatively, defendants urge that Patricia’s contract under state or federal law bound the plaintiffs regardless of their lack of intent to be bound by it. We find no merit in this contention.

Section 761 of Title 46 of the United States Code reads as follows:

“§ 761. Right of action; where and by whom brought
Whenever the death of a person shall be caused by wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any State, or the District of Columbia, or the Territories or dependencies of the United States, the personal representative of the decedent may maintain a suit for damages in the district courts of the United States, in admiralty, for the exclusive benefit of the decedent’s wife, husband, parent, child, or dependent relative against the vessel, person, or corporation which would have been liable if death had not ensued.”
Mar. 30, 1920, c. Ill, § 1, 41 Stat. 537.

Defendants cite no federal jurisprudence for the proposition that the duty of the personal representative to “maintain” the suit grants her the right to hire counsel to exclusively represent those for whom the federal cause of action was created. The statute itself does not clearly speak to the issue. The word “maintain” does not mean to us the same thing as “represent” and does not indicate a statutorily created general agency relationship.

Having found that the determination of the extent of the attorney-representative relationship is not governed by federal law, we turn to state law.

The defendants contend that the case of Southern Shipbuilding Corp. v. Richardson, 363 So .2d 1329 (La.App. 4th Cir.1978), affirmed 372 So.2d 1188 (La.1979), requires that we reverse the trial court and dismiss plaintiffs’ action against them. This case held that a mother need not qualify as tutrix of her minor children in order to bind them to a reasonable contingency fee contract with an attorney. The rationale of the case was that a mother, the natural tutrix, can perform valid acts for her minors who are without capacity to act for themselves without qualifying as tutrix. The codal articles requiring the tutrix to qualify before acting on behalf of her children is for their protection, and could not be relied upon by the mother to defeat the attorneys’ claim for their contingency fee. The Supreme Court held that the only impediment to the binding nature a contract entered into before qualification as tutrix and obtaining court authorization “would be in the event the contract were to be unreasonable.”

In summary, the mother in Southern Shipbuilding Corporation v. Richardson, supra, was simply performing a legal duty owed by her to her minor children, who lacked capacity to act for themselves, arising from the nature of the parent-child relationship. This duty exists even when procedural requirements of tutorship have not been complied with.

The instant situation is not analogous. Unlike minors and others lacking legal capacity to act, the plaintiffs have the capacity to contract. Therefore, Patricia had no duty or right to act on their behalf under Louisiana Civil law.

ISSUE OF QUANTUM MERUIT IS NOT PROPERLY BEFORE THE COURT

In his written reasons, the trial judge stated that the issue of quantum meruit was not properly before the court. An examination of the pleadings reveals that prior to trial there was no reference, even remotely, to the amount and time defendants devoted to the plaintiffs’ portion of the settlement. Rather, the pleadings are strictly confined to the question of whether defendants had a contract with the plaintiffs. Code of Civil Procedure Article 1154 provides as follows:

“Art. 1154. Amendment to conform to evidence
“When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised by the pleading. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to so amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby, and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense on the merits. The court may grant a continuance to enable the objecting party to meet such evidence.”

The third sentence of the article provides for allowance of an amendment of the pleadings under certain circumstances. A party who wishes to introduce evidence not within the issues made by the pleadings must move that the'pleadings be amended before the issue-raising evidence can be admitted over objection. Marceaux v. Reese, 365 So.2d 504 (La.App. 3d Cir.1978); Wanda Petroleum Company v. Mac Drilling, Inc., 353 So.2d 474 (La.App. 3d Cir.1977); Bosworth v. New Orleans Federal Savings & Loan Association, 258 So.2d 191 (La.App. 4th Cir.1972); Webster v. Rushing, 316 So.2d 111 (La.1975) and Gar Real Estate & Insurance Agency v. Mitchell, 380 So.2d 108 (La.App. 1st Cir.1979).

DEFENDANTS’ ACTION WAS CONVERSION

Because the defendants had no right to the funds which they kept, their retention constituted a wrongful conversion. Conversion is defined as a distinct act of dominion wrongfully exerted over another’s property in denial of or inconsistent with the owner’s rights therein. Haymon v. Holliday, 405 So.2d 1304 (La.App. 3d Cir.1981), citing Lincecum v. Smith, 287 So.2d 625 (La.App. 3d Cir.1973), writ refused, 290 So.2d 904 (La.1974); LSA-C.C. art. 2315; Hamilton v. Travelers Indemnity Company, 248 So.2d 617 (La.App. 3d Cir.1971); Importsales, Inc. v. Lindeman, 231 La. 663, 92 So.2d 574 (1957).

Assuming that an attorney might properly deduct his fee from funds due a client with whom he has contracted which are derived from proceeds of a settlement or payment of a judgment, there was no such contractual authority with respect to the plaintiffs in this case. Plaintiffs’ settlement funds were paid to the personal representative, but there was no agreement that the plaintiffs should receive other than the full amount. After formal demand had been made on the defendants and they had refused to complete the payment, it was clear that the defendants did not intend to disburse the full amount of the funds due plaintiffs.

Although the funds were preserved in a bank account, the plaintiffs were nonetheless denied their ownership rights to the funds. The defendants might have disbursed the plaintiffs’ funds to them and sued for compensation for services rendered on the basis of either contract or quantum meruit. The claim in quantum meruit might have been asserted as an alternative claim. However, the question of quantum meruit is not before this court. Moreover, even if the defendant attorneys were to successfully establish a claim against the plaintiffs on the basis of quantum meruit in another proceeding, such would not establish a right to the particular funds now in dispute or to an amount other than a sum fixed through the exercise of discretion by a court.

Quantum meruit is a claim based on the value of services rendered and is properly determined by a tribunal. Self-help is generally frowned upon by our courts and is inimical to public order. Thus, the defendants cannot use the unadjudicated and unanticipated assertion of a quantum meruit theory of recovery, as a pretext for exercising control over funds they did not own.

DAMAGES WERE SUFFICIENTLY PROVEN

In addition to the return of the value of the thing converted, damages are recoverable in this type of case for inconvenience, aggravation, distress, mental shock, anguish, and humiliation. Banner Chevrolet, Inc. v. Kelt, 402 So.2d 747 (La. App. 4th Cir.1981); Deshotels v. Statewide Trailer Sales, 333 So.2d 259 (La.App. 1st Cir.1976); Hamilton v. Travelers Indemnity Co., 248 So.2d 617 (La.App. 3d Cir.1971); Bostwick v. Avis Rent-A-Car, 215 So.2d 854 (La.App. 1st Cir.1968); and Marcel v. Denton, 195 So.2d 163 (La.App. 1st Cir.1967).

The plaintiffs allege in their petition that they have suffered from embarrassment, humiliation, shock and mental anguish. Maudrey L. Guidry stated that she was shocked and angry when she learned that she and her husband did not receive the full amount of their recovery. Clarence stated that he “had a bad feeling”. Although the testimony of plaintiffs was not as articulate as might be desired, we believe that the trial court’s award of $500 each to Clarence and Maudrey L. Guidry as damages was within the trial court’s discretion.

The plaintiffs were deprived of the use and enjoyment of their settlement recovery for over two years. On March 3, 1980, the claim in the Patricia Dartez Gui-dry suit were settled. On August 19, 1980, after Mr. Moresi had demanded payment from the defendants, the settlement to the plaintiffs minus the disputed amount was disbursed to the plaintiffs. The trial of the case was January 9,1982, and the judgment for the plaintiffs was signed on April 1, 1982. We believe the award for damages over and above the amount of the funds withheld was clearly justified by the facts.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. The defendants are cast for the costs of this appeal.

AFFIRMED.


text:
    James HALL, et ux., Plaintiffs-Appellants, v. PARK DELL TERRACE PARTNERSHIP, et al., Defendants-Appellees.
    No. 82-408.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1982.
    Raleigh Newman, Lake Charles, for plaintiffs-appellants.

      Leithead, Scott, Boudreau, Myrick and Richard, Randall E. Roach, Plauche, Smith & Nieset, Jeffrey M. Cole, Lake Charles, for defendants-appellees.
    Before GUIDRY, CUTRER and STOKER, JJ.
   CUTRER, Judge.

This ease involves a suit by lessees, James and Brenda Hall, against their lessors, Charles L. and Jeanette Mathis (Mathis), and others, for damages suffered when the leased premises were burglarized and the lessee’s property was stolen. Mathis filed an exception of no cause of action which was sustained but plaintiffs were allowed ten days to amend. No amendment was filed. Plaintiffs appealed. We affirm.

Plaintiffs allege that Mathis constructed Park Dell Terrace in which plaintiffs’ jewelry store was located. Plaintiffs allege that the property was sold to the other defendants, James Daley, Kenneth Strauss and/or Realty Plus, Inc. (the date of sale is not set forth). Plaintiffs’ further petition sets forth the following allegations:

“4.
“At the time Petitioners went in to the jewelry store business in the above described location, they were unaware that the common walls of their business location was (sic) constructed of materials completely unsuitable to house and properly safeguard their jewelry store from someone gaining access through the flim-sey constructed common walls.
“5.
“At all times pertinent hereto, Petitioners had informed Defendants of the nature of the retail business and relied solely on the Defendants (sic) expertise as to the suitability of the rented premises for the purposes rented to wit, a jewelry store.
“6.
“At the time that Petitioners rented the above described premises, the premises appeared to be suitable for the purposes intended and the walls appeared to be solid walls.
“7.
“At all times pertinent hereto, Petitioners relied on the implied warranty of suitability by Defendants for the purposes intended.
“8.
“Petitioners allege that the Defendants are guilty of the following breaches, acts or omissions, to-wit:
a) Renting premises not suitable for the purposes intended;
b) Failure to warn or inform Petitioners that the premises were not suitable for the purposes intended by Petitioners;
c) Constructing the premises in such a way that the weaknesses of the construction and type of construction were not readily apparent to the average layman;
d) Constructing the premises in the cheapest possible manner using materials completely unsuited for the type of business conducted by Petitioners;
e) Failure to meet all building and code standards for construction of the premises;
f) Failure to properly police and inspect the empty adjoining premises to Petitioners (sic) place of business when they knew or should have known that the empty space provided a place of concealment for someone to gain access through the flimsy walls to Petitioners (sic) business establishment after hours when they knew or should have known that there is always a high risk of burglary in the jewelry store business. ”

Since this is an appeal from a judgment sustaining an exception of no cause of action, we shall consider the plaintiffs’ allegations of fact as set forth in their petition to ascertain the correctness of the trial court judgment.

A reading of the allegations of plaintiffs’ petition does not clearly set forth the legal basis for the alleged liability by Mathis. The allegations, we find, set forth two legal theories upon which the liability of Mathis may be claimed: (1) The allegation that Mathis breached a contractual warranty under the lease agreement by not providing premises that were suitable for use as a jewelry store as the walls were constructed of sheetroek through which the burglars were able to enter the store; or (2) that the premises contained a defective condition in the walls of the building and Mathis was thus liable as owner under the provisions of LSA-C.C. art. 2322. We shall determine whether the petition states a cause of action under either of these theories of liability.

IMPLIED WARRANTY OF LESSOR

The first issue is whether a lessor can be liable to his lessee for damages which result from criminal activity on the leased premises, perpetrated by unknown, unauthorized third parties.

Under Louisiana Law, every contract of lease, whether for movable or immovable property, contains an implied warranty that the leased property contains no defects and that the lessee may enjoy the entire leased property by use as it was intended. Equilease Corporation v. Hill, 290 So.2d 423 (La.App. 4th Cir.1974); LSA-C.C. art. 2695. However, that warranty does not extend to injury caused by third parties who claim no right to the leased premises. Robicheaux v. Roy, 352 So.2d 766 (La.App. 3rd Cir.1977), writ ref’d, 354 So.2d 207 (La.1978); LSA-C.C. art. 2703.

This court, in Robicheaux, addressed this point and held that the landlord was relieved of any duty to protect his tenant against a disturbance by persons who had no right to enter the premises. In Robi-cheaux, the plaintiff operated a jewelry store and gift shop in a building owned by one of the defendants. The store was burglarized by unknown persons.

In sustaining the lessor’s exception of no cause of action, this court held as follows:

“LSA-C.C. Article 2703 provides:
“The lessor is not bound to guarantee the lessee against disturbances caused by persons not claiming any right to the premises; but in that case the lessee has a right of action for damages sustained against the person occasioning such disturbance.”
“This article and cases interpreting it relieve the lessor of any duty to protect the lessee against disturbance by a third person with no right to enter the premises. See Gulf Coal & Coke Company v. Bingaman, 6 La.App. 107 (La.App.Orl.1927); Reynolds v. Egan, 123 La. 294, 48 So. 940 (1909); Keenan v. Flanigan, 157 La. 749, 103 So. 30 (La.1925); and 29 La.Law Review at pp. 113 and 114. Under these authorities, the present lessor is not liable for disturbance by the unknown burglars. ”

Under the ruling of Robicheaux, the plaintiffs’ petition states no cause of action against Mathis under the theory of implied warranty of a lessor.

LIABILITY UNDER LSA-C.C. ARTICLE 2322

LSA-C.C. art. 2322 provides as follows:

“The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice in its original construction.”

This article does not provide plaintiffs with any relief.

As we examine the allegations of the petition, we find that plaintiff states that Mathis sold the building to the remaining defendants. The petition does not state when the sale took place. Thus, it is not alleged that Mathis was the owner of the building at the time of the burglary. In the absence of an allegation of ownership by Mathis at the time of the burglary plaintiffs’ petition does not state a cause of action against Mathis under C.C. art. 2B22.

We hold that the trial court correctly sustained the exception of no cause of action filed by Mathis and dismissed the suit as to them.

For these reasons, the judgment of the trial court is affirmed. The suit is remanded to the district court for further proceedings in accordance with the law and the views expressed herein. Plaintiffs-appellants are to pay costs of this appeal.

AFFIRMED and REMANDED.

      . Mathis filed an exception of no cause of action and are the only defendants before us on appeal.

      . The trial court allowed plaintiffs ten days to amend their petition to state a cause of action. No amendment was filed. Under these circumstances we will not remand for the opportunity of plaintiffs to amend their petition to cure this defect.


author: CULPEPPER, Judge.

text:
    Dora CARTER, Plaintiff & Appellee, v. PITT GRILL, INC. and United States Fidelity & Guaranty Company, Defendants & Appellants.
    No. 82-409.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1982.

      McBride & Foret, Robert R. McBride, Lafayette, for defendants and appellants.
    John K. Hill, Jr., Lafayette, for plaintiff and appellee.
    Before CULPEPPER, DOUCET and YELVERTON, JJ.
   CULPEPPER, Judge.

This is a worker’s compensation suit instituted by Dora Carter against her employer, Pitt Grill, Inc., and its worker’s compensation insurer, United States Fidelity & Guaranty Company, seeking either permanent partial or permanent total disability benefits as a result of an accident which occurred on or about May 13th or 14th, 1977. From a trial court judgment holding the plaintiff partially disabled and awarding benefits, defendants appeal. Plaintiff answered the appeal, seeking benefits for total and permanent disability.

The issues are whether the trial court erred in finding (1) the plaintiff’s claim had not prescribed under LSA-R.S. 23:1209 and (2) the plaintiff’s disability is permanent and partial.

FACTS

The parties stipulated that plaintiff’s accident occurred during the course and scope of her employment at the Pitt Grill Restaurant in Morgan City. The evidence shows that on or about May 13th or 14th, 1977, Ms. Carter slipped and fell at work, striking her head against the counter before falling to the floor. She testified that she was stunned but not unconscious, and that she continued to work that day but she experienced dizziness, nausea, and double and/or triple vision. She went to work the next day as well, but by the middle of the second day after the accident was having such problems with her vision that she sought help from Dr. J.J. Murtagh, an optometrist in Morgan City. Dr. Murtagh referred her to a Lafayette neurologist, Dr. Goldware, who hospitalized her for a week. Both of these doctors diagnosed the cause of her condition as a concussion and told her there was nothing to do but wait for her symptoms to resolve themselves.

Ms. Carter received compensation benefits from the defendants for a period of six weeks, but payments were terminated after the payment for the week of June 27, 1977. She testified that she was unable to return to work at Pitt Grill because of the headaches and vision problems, and in the meantime she and her family moved to Lafayette.

In March, 1978, the claimant secured a position with the Howard Johnson Restaurant in Lafayette very similar in duties to the job with Pitt Grill. She was in charge of the kitchen and preparing food to be cooked, and was responsible for managing the staff and handling receipts. She also filled in as waitress, dishwasher, or cook whenever necessary. Ms. Carter testified that she became unable to perform the job at Howard Johnson when she began having to stay longer than the eight hours originally agreed upon and fill in when they were short-staffed.

During this time, she stated, she was having more trouble with headaches. Dr. Goldware therefore referred her to Dr. Snatic, a neurologist, who did not feel that she had any significant neurological disease. He was of the opinion that at least some of her symptoms were functional and referred her to Dr. Cole for a psychological evaluation. He also recommended referral to Dr. Norman Anseman for a nerve conduction study and for further physical therapy.

In addition to the job with Howard Johnson, Ms. Carter was later employed by a hospital and also by another restaurant. She stated she had to stop working at the restaurant in October, 1980.

She filed this suit in May, 1980, to which defendants entered a peremptory exception of prescription, which was referred to the merits of the case. After trial on the merits, the district court overruled the defendants’ plea of prescription, held that the plaintiff was permanently partially disabled as a result of the accident suffered while working at the Pitt Grill Restaurant and awarded benefits pursuant to LSA-R.S. 23:1221 and 23:1202, subject to a reduction by any wages actually earned by the claimant during this period. From this judgment, defendants have perfected this appeal.

PRESCRIPTION

LSA-R.S. 23:1209 provides in pertinent part:

“In case of personal injury (including death resulting therefrom) all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter or unless within one year after the accident proceedings have been begun as provided in Parts III and IV of this Chapter. Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in cases of partial disability this limitation shall not take effeet until three years from the time of making the last payment.”

The defendants argue that the trial court erred in applying the three-year prescriptive period as provided for cases of partial disability, and should have applied a period of one year from the date of the last payment. They maintain that the extent of disability for prescriptive purposes should be assessed according to plaintiff’s condition during the time in which payments were made. Therefore, they argue, since Ms. Carter received benefits calculated on the basis of total disability for the first six weeks after her accident, the prescriptive period should be one year from the date of the last payment.

The statute is not clear. Jurisprudence from the Courts of Appeal has thus far rejected defendant’s contention. The first case was Youngblood v. Belden Concrete Products, 349 So.2d 439 (La.App. 4th Cir.1977), writ denied 351 So.2d 177 (La.1977), where the court stated:

“The amendment to the statute is somewhat difficult to understand. If interpreted to mean that a plaintiff who alleges a case of partial disability with payments made therefor has three years in which to bring suit, while the plaintiff who alleges a case of total disability with payments made therefor has only one year in which to bring suit, the result seems absurd. The defendant in the case of alleged partial disability could invoke the prescription of one year if he could prove that plaintiff was totally and not partially disabled. A more reasonable interpretation can be found from a reading of the statute as a whole:
* * * * * *
“We interpret the statute to mean that where the parties agreed that the payments were being made for total disability the one year prescriptive period applies but in the absence of such agreement the payments are presumed to be for partial disability with the resulting application of a three year prescription. This seems more realistic in view of the fact that an injured workman normally makes a gradual recovery, i.e., he may be totally disabled at the inception of the period of disability but is only partially disabled just prior to discharge from medical care. Thus, in many cases the last compensation payments are in reality made for partial disability in the absence of an agreement to the contrary.”

We followed Youngblood in Miller v. Belden Corp., 386 So.2d 974 (La.App. 3rd Cir.1980), writ refused 389 So.2d 1126 (La.1980), and in Chapman v. Belden Corp., 414 So.2d 1283 (La.App. 3rd Cir.1982).

Since the record reveals no evidence of any agreement between the parties that the benefits paid were for total disability, the plaintiff’s suit was timely filed within the three-year period.

PARTIAL DISABILITY

The trial court found the plaintiff proved by a preponderance of the evidence that she continues to suffer pain as a result of the injury from her 1977 accident. He further concluded that she is permanently partially disabled and can obtain gainful employment, but only in another position.

The appellants contend that the evidence as a whole is insufficient to support the finding of permanent partial disability. This argument is based first on plaintiff’s history of headaches prior to the accident and, second, on her ability to secure various jobs between the time of her employment with Pitt Grill and the bringing of this suit.

While the plaintiff admits pre-existing severe headaches, she testified these occurred in 1969 and 1970 and were diagnosed as vascular headaches, which were effectively treated at the time and had not troubled her for some time before the accident. She further testified that the ones which have occurred since the accident are in a different portion of the head and are different in intensity and type of pain. The defendants showed no intervening causes of the neck, shoulder and headache pain suffered by the plaintiff since the 1977 accident.

A claimant’s disability is presumed to have resulted from an accident if before the accident he was in good health, but the symptoms of the disabling condition appear at the time of the accident and continue to manifest themselves afterward, if the medical evidence shows a reasonable possibility of a causal connection between the accident and the disability. Broussard v. Acadia Industries, Inc., 339 So.2d 48 (La.App. 3rd Cir.1976). Moreover, the factual findings of the trial court, particularly those which involve a determination of the credibility of witnesses, are entitled to great weight. They will not be disturbed unless found to be clearly wrong. Kraemer v. Louisiana Power & Light Company, 393 So.2d 346 (La.App. 1st Cir.1980); Broussard, supra. We feel, after careful consideration of the evidence, that the record furnishes a reasonable factual basis for the trial court’s finding that plaintiff’s headaches are a result of the accident which occurred in the course and scope of her employment.

The appellants further claim that plaintiff did not show that she is partially disabled because she was able to secure other employment after the accident. Ms. Carter admitted she held three different jobs subsequent to termination of her employment with Pitt Grill. However, she also testified her headaches prevented her from continuing in each of the jobs because they are such that she often has days when she cannot work. She did succeed in holding her last job for over a year, because in the beginning her work as a waitress at the Puddy Tat Restaurant was light and entailed minimum stress. It involved serving only at the counter and a few booths, and the flow of business was steady rather than heavy at particular times during the day. However, when this business moved into a new and larger place and began serving an increased volume of business, Ms. Carter found herself under the same stressful conditions which exacerbated her headache pain.

The record also shows objective medical evidence of significant muscle spasm in Ms. Carter’s neck and shoulders, which were the contributing factor to her headaches and also caused pain in and of itself.

If a worker cannot perform the same work that he did before his injury because it causes him substantial pain, but he has the mental capacity and physical capability to perform other jobs which are available, he should be considered partially disabled. Dusang v. Henry C. Beck Builders, Inc., 389 So.2d 367 (La.1980). The determination of the degree of pain is a factual question. It depends to a great extent on the trial court’s evaluation of the plaintiff’s credibility, because in the final analysis the plaintiff is the one capable of describing his pain. See Kraemer v. Louisiana Power & Light Company, supra. The trial judge was not clearly wrong.

TOTAL DISABILITY

The plaintiff contends by answer to the appeal that the trial court erred in failing to find she is totally and permanently disabled.

It was shown that plaintiff is capable of obtaining, gainful employment in other positions which entail less stress than the job she held with the defendant. She herself testified that her condition had improved since she began treatment by Dr. Anseman. There was additional evidence to show that her condition could be further improved by physical therapy, bio-feedback and relaxation techniques. Therefore, she will be able to hold a job involving little stress. For these reasons and those stated above, we conclude that the trial court was not clearly wrong in holding that plaintiff was not totally disabled.

For the reasons assigned, the judgment appealed is affirmed. All costs of appeal are assessed against defendants-appellants.

AFFIRMED.