author: LOTTINGER, Judge.

text:
    Mrs. Anne Ochsner LOVELL, Individually and as the Natural Tutrix of her Minor Children v. EARL GRISSMER COMPANY, INC., Cotter & Co., Southdowns Hardware & Paint Company and United States Fidelity & Guaranty Company.
    No. 82 CA 0006.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.

      Michael Patterson, Baton Rouge, for plaintiff-appellant Mrs. Anne Ochsner Lo-vell, Individually and as Natural Tutrix of her minor children.
    Stephen R. Wilson, Joseph F. Keogh, Baton Rouge, for defendants-appellees Britt-Tech Corp., Home Ins. Co. and Fireman’s Fund Ins. Co.
    John A. Bivins, Lafayette, for defendants-appellants Earl Grissmer Co., Cotter & Co., American Mut. Ins. Co. and Pluto Corp.
    William N. Faller, Baton Rouge, for defendant-appellee Commercial Union Ins. Co.
    Richard D. Chappuis, Jr., Lafayette, for third party in the main demand defendant-appellee (third party plaintiff herein) Harbor Ins. Co.
    Roy A. Mongrue, Jr., Paul H. Spaht, Baton Rouge, for defendant-appellee Continental Cas. Co.
    Before LOTTINGER, COLE and CARTER, JJ.
   LOTTINGER, Judge.

This is a wrongful death action in products liability resulting from the electrocution death of Lawrence L. Lovell, Jr. His surviving spouse, Anne Ochsner Lovell, individually and on behalf of her minor children, Lawrence L. Lovell, III and Keith Ochsner Lovell, filed suit against the manufacturers, distributors, and lessor of an electrically-powered, high-pressure water sprayer known as the “Blue Lustre Dirt Buster” (hereinafter “Dirt Buster.”) Mr. Lovell died from an electrical shock received while using the Dirt Buster to clean the outside walls of his Baton Rouge residence. After a jury trial, judgment was rendered in favor of the only remaining defendants, Britt-Tech Corporation (the manufacturer of the machine) and its insurers. Plaintiff has appealed devolutively.

FACTS

The accident causing Mr. Lovell’s death occurred on October 1, 1977. Mr. Lovell had rented the Dirt Buster to clean discolorations on the bricks of his home caused by an overgrowth of vines. In using the machine, Mr. Lovell attached an extension cord, which he ran through a window in the den in the front of the house. This extension cord was plugged into a three-pronged receptacle in the den and connected outside the house to the twelve-foot power service cord of the machine. Mr. Lovell removed his shoes and socks and began spraying the walls, causing many large puddles of water to accumulate. Unbeknownst to Mr. Lo-vell, the three-pronged electric receptacle in the den was not grounded, since the ground wire was not connected at the receptacle. At about 10:45 a.m., while spraying the walls, Mr. Lovell received an electric shock which caused cardiac arrest. The coroner for East Baton Rouge Parish could not testify definitively that the electric shock had come directly from the Dirt Buster; however, Mr. Lovell’s left foot and leg were in contact with the machine when he was electrocuted.

The Dirt Buster contained a label which in part stated the following:

“SAFETY PRECAUTION”.
“To prevent possible personal injury, do not direct spray from the wand toward any part of the body. Use only cleaning chemicals approved by the manufacturer for use in this machine. NEVER USE FLAMMABLE SOLUTIONS. If using an extension cord, make sure connection between washer cord to extension cord is waterproof. (See your dealer for proper extension cord.) Always use an extension cord and receptacle that is grounded.”

TRIAL COURT

Plaintiff alleged negligence in the design and manufacture of the Dirt Buster, and also alleged the defendants’ strict liability, 1.e., that the machine contained a defect which occasioned an unreasonable risk of harm. The defendants pled the affirmative defenses of contributory negligence and assumption of the risk.

After a lengthy trial, the jury answered special interrogatories as follows:

NEGLIGENCE

1. Was the injury which the plaintiff suffered in fact caused by the conduct of the defendant, Britt-Tech Corporation?

Yes_ No_X

2. Was the conduct of the defendant Britt Tech Corporation below the standard applicable to its conduct?

Yes_ No_X

3. Was the injury which the plaintiffs suffered in fact caused by the conduct of Southdowns Hardware, either independently or in conjunction with the named defendant?

Yes_ No_X

4. Did the plaintiffs suffer actual damage?

Yes X No_

5. Was Lawrence Lowrey Lovell, Jr. con-tributorily negligent?

Yes X No_

6. Did Lawrence Lowrey Lovell, Jr. assume the risk of the injury suffered?

Yes X No_

STRICT LIABILITY

1. Was the Blue Lustre Dirt Buster manufactured by Britt-Tech Corp. unreasonably dangerous in normal use at the time of its manufacture?

Yes_ No_X

2. Was the damage to plaintiffs, if any, actually caused by the Blue Lustre Dirt Buster?

Yes_ No_X

3. Did Lawrence Lowrey Lovell, Jr. assume the risk of the injury suffered?

Yes X No_

DAMAGES

1. In the event that damages are due to Anne Oschner Lovell, in what amount do you find she is entitled?

$ 0

2. In the event that damages are due to Keith Oschner Lovell and Lawrence Lowrey Lovell, III, in what amount do you find they are entitled?

$ 0

SPECIFICATIONS OF ERROR

Plaintiff-appellant, Anne Ochsner Lovell, assigns the following specifications of error:

I.

The jury erred in finding the Blue Lustre Dirt Buster was not unreasonably dangerous in normal use.

II.

The jury erred in finding the damage to plaintiffs was not caused by the Blue Lus-tre Dirt Buster.

III.

The jury erred in finding that Lawrence Lovell, Jr. assumed the risk of his death.

IV.

The trial court erred, in a pretrial eviden-tiary ruling, by refusing to allow the introduction into evidence of proof of post-accident modifications to the Blue Lustre Dirt Buster.

SPECIFICATION OF ERROR 4

Plaintiff-appellant argues that the trial court erred in failing to admit evidence of post-accident modifications in the Dirt Buster. The modifications dealt with the length of the power service cord and the nature of the warning label. The evidence was presented in a stipulated proffer.

We are of the opinion that such evidence was properly excluded. See Givens v. De Soto Bldg. Co., 156 La. 377, 100 So. 534 (1924); Esta v. Dover Corporation, 385 So.2d 439 (La.App. 1st Cir.1980); writ den. 392 So.2d 690 (La.1980); Hadrick v. Diaz, 302 So.2d 345 (La.App. 1st Cir.1974). The rationale given formerly for this position was that as a matter of public policy, a defendant should not be punished for his attempt to repair or take precautions, and that same should be encouraged. Plaintiff maintains that this argument is ho longer tenable, in that in today’s business world, a manufacturer will not hesitate to make modifications and thereby prevent multiple future lawsuits, even though in so doing, he may lose one or two lawsuits pending by admitting his product was defective.

However, we are not convinced that subsequent repairs or modifications are necessarily probative that the prior product was defective. See Hadrick, supra. It is equally plausible that attempts to repair or modify represent a manufacturer’s attempt to render totally innocuous a product which already occasions no unreasonable risk of harm. Additionally, such evidence is unduly prejudicial, especially in a trial by civil jury. Inasmuch as the prejudicial effect of this type of evidence outweighs greatly its probative value, we find that attempts to repair or modify subsequent to an occurrence have no legal relevance, and evidence of same were properly excluded by the trial judge.

SPECIFICATION OF ERROR 1

Plaintiff-appellant alleged both the negligence and strict liability of the manufacturer, Britt-Tech Corporation. However, the Louisiana Supreme Court in Kent v. Gulf States Utilities, Company, 418 So.2d 493 (La.1982), recently noted that strict liability merely relieves a plaintiff from having to prove the defendant’s actual or constructive knowledge of the unreasonable risk of harm which his conduct or the thing in his custody occasions; otherwise, the determination of liability is the same. Under Rey v. Cuccia, 298 So.2d 840 (La.1974); and Weber v. Fidelity & Casualty Insurance Company of New York, 259 La. 599, 250 So.2d 754 (1971), a manufacturer is presumed to know of the vices in his product, regardless of actual knowledge. Thus, under Weber, the plaintiff in a products liability suit must prove only that the product was defective, i.e., unreasonably dangerous to normal use; that the product was in normal use at the time the injury occurred; that the product’s defect caused his injury; and that the injury might reasonably have been anticipated by the manufacturer. The primary focus is on the product itself and whether it is unreasonably dangerous to normal use. Hunt v. City Stores, Inc., 387 So.2d 585 (La.1980); Weber, supra. In determining whether a risk of harm is unreasonable, the probability and magnitude of the risk are to be balanced against the utility of the thing. Hunt, supra.

The electrocution death of Mr. Lovell readily illustrates the severe magnitude of the risk involved. Also, the Dirt Buster was primarily a labor-saving device; thus, its utility value is relatively low. The most important factor in determining reasonability of the risk involved in using the Dirt Buster is that of probability.

Expert testimony at trial was uniformly to the effect that Mr. Lovell’s death was produced by a combination of two factors: 1) Heavy exposure to water of the connection between the power service cord and the extension cord, and 2) an ungrounded electric receptacle. By allowing water to thoroughly penetrate the connection between the power cord and extension cord, electric current running from the receptacle to the machine found a path of conduction from the “hot” wire in the cords onto the ground wire. Because the electric receptacle used by Mr. Lovell was not grounded, the current which moved into the ground wire flowed into the metal frame of the Dirt Buster, which became energized, and undoubtedly was the means of Mr. Lovell’s electrocution. Experts for both parties agreed that had either of the two above conditions been alleviated, the accident would not have occurred.

Plaintiff argues that by using a twelve-foot power cord, Britt-Tech made use of an extension cord almost mandatory, and plaintiff’s experts testified that totally waterproofing the connection between the power cord and the extension cord was not possible for a consumer to accomplish. Inasmuch as all uses of the Dirt Buster entailed the presence of water and moisture, the plaintiff claims that the relatively short length of the power service cord was a defect in design. We disagree. Defense experts testified (and experts of plaintiff admitted on cross-examination) that regardless of the length of a power cord, it was foreseeable that a consumer would use an extension cord. Longer power cords tend to be subjected to more wear and tear during use, and the longer cords have a greater tendency to crack or buckle. The twelve-foot cord on the Dirt Buster was a direct carry-over from earlier models designed for industrial use, and due consideration was given to installing a longer cord. We find no defect in design, since a different length cord would not have significantly reduced the usage of extension cords.

Additionally, the use of an extension cord was not inherently dangerous. Only when the connection between the extension cord and the power cord was thoroughly wetted did a hazard exist, and then only if the power source was not grounded. Dr. Leonard Adams, professor of electrical engineering at L.S.U., tested the Dirt Buster and testified that he was unable to produce a charge in the machine even when spraying directly on the connection; only when the connection was allowed to lay in a puddle of water was the machine energized, in the absence of grounding. Dr. Adams’ report, which he read into the record, stated that the probability of electric shock while using the Dirt Buster was extremely low, and he found the machine to be thoroughly safe in its normal usage.

Moreover, the safety warnings on the machine specifically instructed users to waterproof the connection between the power cord and extension cord if same was utilized, and to always use a grounded receptacle. Plaintiff argues that these warnings were inadequate and rendered the machine unreasonably dangerous. Plaintiff’s experts testified that the connection could not be totally waterproofed. Jerry Hock-muth, a representative of Britt-Tech, testified that the word “waterproof,” although technically inaccurate, was used to show the user the dire need to prevent water from reaching the connection. He testified this could be accomplished by taping the connection or elevating it to prevent its lying in a puddle. Plaintiff points out that the warning label says nothing about taping or elevating the connection, and is therefore inadequate.

We disagree. The duty of a manufacturer to warn extends to those dangers inherent in the product which are outside the knowledge of an ordinary user. Hebert v. Brazzel, 403 So.2d 1242 (La.1981). Manufacturers need not warn of dangers of improper usages which are obvious, or which should be known by the ordinary user. American Insurance Company v. Duo Fast Dixie, Inc., 367 So.2d 415 (La.App. 4th Cir.1979); Tri-State Insurance Company of Tulsa, Oklahoma v. Fidelity & Casualty Insurance Co. of N. Y, 364 So.2d 657 (La.App. 2nd Cir.1978); writ denied 365 So.2d 248 (La.1978). We find that it is common knowledge that electricity and water are dangerous in combination, and that water readily conducts electricity. We therefore agree with Dr. Adams’ report which stated, “It would require a series of several violations of commonly known good practice in the use of household electricity to create a hazard with the Blue Lustre Equipment.”

We find that the warning given on the Dirt Buster was sufficient to alert the user to the hazard involved in allowing moisture into the connection between cords. Taping or elevating the connection are remedies which are obvious even to a casual consumer, and the warning was not made inadequate by the exclusion of specific methods of preventing water from reaching the connection.

Plaintiff also argues that it was foreseeable that a consumer would plug the machine into the ungrounded receptacle, and presented expert testimony that the majority of household electric receptacles are not grounded. Thus, plaintiff argues, the use of a grounding system in the machine is a defect in design which might have been eliminated by using double insulation. However, representatives of the manufacturer testified that double insulation (in lieu of grounding) was attempted in designing the machine but was not accomplished successfully, and that a grounding system was both technically and economically the only feasible method of preventing shocks to the user.

Furthermore, the safety precaution on the machine státedr explicitly that a grounded receptacle was necessary. This warning plaintiff alleges is inadequate, since it was foreseeable that a user would plug the machine into an ungrounded receptacle. While a manufacturer might warn more explicitly of the dangers of plugging the machine into a two-pronged ungrounded receptacle (and of using an adapter or tampering with the male end of the plug in so doing), the manufacturer (as well as the user) is justified in assuming that if the machine is plugged into a three-pronged receptacle, same will be grounded. Thus, while it is foreseeable (as a general proposition) that an ungrounded receptacle might be used, it is not foreseeable that such usage will be caused by an electrician’s failure to connect the ground wire in the receptacle. It is impossible for a manufacturer to anticipate that what appears to be a grounded receptacle in the home of a consumer is in fact ungrounded because the receptacle ground wire is unattached, and we do not hold defendant to such a duty to anticipate and warn. Plaintiff argues that because a lay person does not know how to check a receptacle to make sure it is grounded, the warning is inadequate. We note only that the instructions apparently required by plaintiff would be impossibly long and overly technical, and thus would be impractical if not ignored altogether. Expert testimony at trial indicated that succinct warnings are the most effective, and we hold the warning on the machine as to grounded receptacles was sufficient under the circumstances.

When viewed with respect to common household knowledge of the dangerous properties of water and electricity, the warnings on the Dirt Buster were adequate to warn the user of the obvious hazard involved in improper usages of an extension cord and an ungrounded receptacle. Had the safety precautions been followed, the accident would in all probability not have occurred. The jury found that the Dirt Buster did not present an unreasonable risk of harm in its normal usage. We find no error by the jury in this regard. Although the accident which occurred was arguably within the realm of foreseeability, the likelihood of the occurrence was extremely low.

SPECIFICATION OF ERROR 2

Plaintiff-appellant argues that the jury committed manifest error in finding that Mr. Lovell’s electrocution was not caused by the Dirt Buster. Plaintiff asserts that had Mr. Lovell not been using the machine, it is obvious that he would not have been electrocuted.

We are convinced, however, that the jury’s finding merely indicates their perception of the distinction between cause-in-fact and legal cause. Although the electric shock received by the deceased was causally related to his use of the Dirt Buster, the jury finding reflects their opinion that the death of Mr. Lovell was not actually caused by any unreasonably dangerous condition of the machine; but rather the failure of the electrician to properly ground the receptacle. We agree.

SPECIFICATION OF ERROR 3

We have already decided that there is no liability on the part of the defendant, however, conceding for the sake of argument that the Dirt Buster created an unreasonable risk of injury to others and was the legal cause of Mr. Lovell’s death, plaintiff still cannot recover because Mr. Lovell assumed the risk and/or was contributorily negligent.

The jury found that Mr. Lovell assumed the risk of injury and was contributorily negligent. Plaintiff argues that the jury was manifestly erroneous in its finding as to assumption of risk. She contends that the deceased did not voluntarily expose himself to a danger which he fully understood and appreciated, citing Dorry v. La-Fleur, 399 So.2d 559 (La.1981).

Because of the demise of Mr. Lovell, it is impossible to determine whether he actually understood and fully appreciated the risk of electric shock. However, we note that in Dorry, supra, the Supreme Court distinguished between what a plaintiff should have known and what he must have known. Fact witnesses testified at trial that the connection between the power cord and the extension cord lay in an area of sidewalk where the volume of water resembled a puddle. Not far away, Mr. Lovell stood barefooted in a wet area. We are of the opinion that under these circumstances Mr. Lovell must have appreciated the risk which he was voluntarily undertaking, as a matter of common knowledge.

Even assuming arguendo that Mr. Lovell did not assume the risk, the question remains whether contributory negligence is a bar to plaintiff’s recovery, since same was found by the jury. In Dorry, supra, the Supreme Court stated that contributory negligence can be a bar to strict liability under certain circumstances, provided that defendant’s activity is not ultra-hazardous and no income is derived from defendant’s conduct or the thing in his care which caused plaintiff damage. This would seem to exclude the instant case, since the manufacture of the Dirt Buster produced income to defendant Britt-Tech. However, we question the viability of the distinctions drawn in Dorry in light of the pronouncements made recently in Kent, supra, that strict liability merely frees the plaintiff from proving actual or constructive knowledge of the risk by the defendant. Inasmuch as a defendant’s liability in strict liability cases is measured (in light of his presumed knowledge of the risk) in terms of traditional notions of blameworthiness, Kent, supra, so should the determination of “victim fault” be measured. After presuming the defendant’s knowledge, liability under strict liability is determined by the same inquiry as in negligence cases, i.e., the “reasonable man” standard. A finding of contributory negligence involves identical inquiry, Smolinski v. Taulli, 276 So.2d 286 (La.1973). We are therefore of the opinion that the “victim fault” defense to strict liability first enunciated in Loescher v. Parr, 324 So.2d 441, 449 (La.1975) is but a euphemism for the traditional affirmative defenses of assumption of risk and contributory negligence. Thus, if the plaintiff actually knows or should have known of the risk, and fails to act reasonably in response, his recovery should be barred regardless of whether the defendant’s fault is in negligence or strict liability. Certainly, contributory negligence of the victim should bar his recovery in a situation where the defendant’s knowledge is merely presumed, if it does so when the defendant actually or constructively knows of the risk, see Sullivan v. Gulf States Utilities, 382 So.2d 184, 189-190 (La.App. 1st Cir.1980) writ ref. 384 So.2d 447 (La.1980). The tenets of Kent drawn to their logical conclusion compel us to find that contributory negligence is a form of “victim fault,” despite the tenuous policy distinctions drawn in Dorry, supra.

We further uphold the jury’s finding that Mr. Lovell was contributorily negligent. The record reflects no attempt whatsoever by Mr. Lovell to comply with safety precautions printed on the Dirt Buster. As a result, the connection between the power cord and the extension cord was allowed to be unprotected in what amounted to a puddle of water. This was certainly a cause-in-fact of the accident, as testified to by all experts at trial. Expert testimony at trial also indicated that Mr. Lovell’s standing barefooted in a nearby wet area greatly increased the possibility of a fatal electric shock, since the tennis shoes which he removed prior to spraying might have prevented the conduction of electric current through his body into the earth. We therefore find that Mr. Lovell did not conduct himself as would a reasonably prudent person under similar circumstances, Smolinski, supra, and therefore plaintiff cannot recover, due to the “victim fault” of the deceased.

DEGREE

Therefore, for the above and foregoing reasons, judgment of the trial court in favor of Britt-Tech Corporation, dismissing plaintiff’s suit at her costs, is hereby affirmed. All costs of this appeal are assessed to plaintiff-appellant, Anne Ochsner Lovell.

AFFIRMED.

      . The Dirt Buster was manufactured by Britt-Tech Corporation, but was labeled and marketed as the product of Earl Grissmer Company, Inc. Made parties defendant in the suit were Earl Grissmer Company, Inc.; American Mutual Liability Insurance Company, an insurer of Earl Grissmer Company; Harbor Insurance Company, an insurer of Earl Grissmer Company; Cotter & Company, a distributor of the Dirt Buster; Westbrook Associates, Inc., a distributor of the machine; Pluto Corporation, manufacturer of the liquid detergent used in the machine; Commercial Union Insurance Company, primary insurer of Pluto Corporation; Continental Casualty Company, excess insurer of Pluto Corporation; Southdowns Hardware & Paint Company, which leased the machine to the decedent; United States Fidelity & Guaranty Company, insurer of Southdowns Hardware; Britt-Tech Corporation, manufacturer of the Dirt Buster; Home Insurance Company, primary insurer of Britt-Tech; and Fireman’s Fund Insurance Company, excess insurer of Britt-Tech. Cotter & Company, Westbrook Associates, Inc.; and Pluto Corporation (and its insurers) were dismissed without prejudice on motion of plaintiff prior to trial. Southdowns Hardware and its insurer settled with plaintiff prior to trial. Earl Grissmer Company and its insurers settled with plaintiff during the course of trial.

      . Earl Grissmer Company, Inc. and American Mutual Liability Insurance Company also filed a devolutive appeal; however, no briefs, motions, or other pleadings have been filed in this court in connection therewith.

      . Earl Grissmer Company, American Mutual Liability Company, Harbor Insurance Company, Cotter & Company, and Pluto Corporation filed third party demands against Britt-Tech Corporation and Home Insurance Company, seeking tort indemnity and/or contribution. The third-party claimants also alleged that Britt-Tech and its insurer should provide a defense for third-party plaintiffs. The third-party demands were dismissed with the principal demand, and are not at issue on appeal.

      . This holding has continued viability notwithstanding the onset of comparative negligence in Louisiana tort law. Under La.Civ.Code art. 2323 (as amended by Acts 1979, No. 431, § 1), comparative negligence shall apply, “[w]hen contributory negligence is applicable to a claim for damages [.]” Thus, following Dorry, comparative negligence would apply in some strict liability cases but not in others. Inasmuch as comparative negligence is a doctrine intended to ameliorate some of the inequities in the present system of tort law, a failure to apply the doctrine across the board in strict liability cases would be enigmatic.


source: Caselaw Access Project

author: PONDER, Judge.

license: Public Domain

text:
    Robert B. TODD, Charles Frank Haynes, and A.B. Stevens v. STATE of Louisiana, Through the DEPARTMENT OF NATURAL RESOURCES of the State of Louisiana.
    No. 82 CA 0011.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    Robert 0. Butler, Jr., and Stephen P. Dart, St. Franeisville, for plaintiffs-appel-lees.

      David Kimmel and H. Glen Kent, Jr., Baton Rouge, for defendant-appellant.
    Before PONDER, SAVOIE and ELLIS, JJ.
   PONDER, Judge.

Defendant, the State of Louisiana, appealed a judgment maintaining plaintiffs' possessory action, giving defendant an opportunity to file a petitory action and dismissing defendant’s reconventional posses-sory action.

The issues are: 1) availability of a posses-sory action against the State, 2) conversion of a possessory action to a petitory action by evidence of the nature of the property (accretion or an abandoned navigable river bed), and 3) the sufficiency of proof of corporeal possession by plaintiff and defendant.

We affirm.

The property is located in the north and northeast portion of Turnbull Island, between the 1845-47 meander line of the Mississippi River and the present thalweg of Old River, known as Sugar Mill Chute.

Plaintiffs, Robert Todd and Charles Haynes, Jr., acquired the property from plaintiff, A.B. Stevens, who retained the timber rights. Plaintiffs allege that their ancestors in title took possession of the property through various acts of corporeal possession, and that the State disturbed their possession by the halting of timber operations. The State reconvened asserting possession of the disputed tract as the former bed and bottom of the Mississippi River. Its exceptions of no cause or right of action and an exception relating to sovereign immunity were referred to the merits. The question of sovereign immunity became moot when legislative permission to sue was obtained.

The court, after trial, overruled all exceptions and found that plaintiffs possessed the disputed tract through their acts on the tract itself and on adjoining property. These acts included cutting timber, providing for timber management, execution of hunting leases ■ and causing fences to be built and maintained. Defendant’s recon-ventional possessory action was dismissed.

The defendant first argues that possesso-ry actions against the State are prohibited. The argument seems to be that the land in question was formerly the bed of the Mississippi River and thus public property, title to which cannot be gained by prescription; that therefore, the land cannot be possessed sufficiently to justify a possessory action. The question has presented a problem for the courts. As late as the case of Parkway Development Corporation v. City of Shreveport, 342 So.2d 151 (La.1977), the Supreme Court recognized the question and held that when the object of the possessory action was possession of a real right in the land that had been granted by the governmental body and not the land itself, the possessory action could be maintained.

However, this court said in St. Mary Parish Land Co. v. State Mineral Board, 167 So.2d 509 (La.App. 1st Cir.1964), writ denied, 246 La. 908, 168 So.2d 821 (1964):

“One may actually possess property belonging to the State but cannot divest the State of title regardless of the kind or duration of such possession.”

The defendant asserts the disputed land is the old bed of the Mississippi River. The plaintiffs are asserting the disputed land is accretion. The resolution of that issue decides title. That defense by the defendant is more properly asserted in a petitory action, not in the possessory action before us. St. Mary Parish Land Co. v. State Mineral Board, supra. The exception of no cause of action was properly denied.

Defendant next argues that plaintiffs cannot maintain civil possession of accretion in the former bed of a navigable river, by corporeal possession of an adjacent tract; and if they can, evidence that the land was formed by accretion converts the possessory action into a petitory action. However, the plaintiff has not cumulated the possessory and petitory actions, pled the petitory action in the alternative or instituted a petitory action. La.Code of Civil Procedure Art. 3657. Plaintiffs’ introduction of evidence as to the formation of the property by accretion related to the extent and length of possession by the plaintiffs. La. Code of Civil Procedure Art. 3661.

We agree that plaintiffs possessed by their acts on the disputed tract itself. We, therefore, do not reach the question of civil possession of accretion by actions on an adjoining riparian tract only.

Defendant next argues that the State maintained possession of the disputed tract through corporeal possession of portions of the old river bed. However, we agree with the finding that plaintiffs have sufficiently proven that they possessed the property for one year prior to the disturbance, through the following acts: cutting of timber from 1957 to 1962, negotiating a hunting lease requiring the construction of a fence, cutting of timber in the 1930’s and the 1950’s, establishing a timber management program, conducting timber-cruises, execution of grazing leases, and the sale of a portion of the land to the U.S. Government in which the State was not made a party to the condemnation.

Once the plaintiffs are found to have possession, that possession continues until another forcibly expels them or they permit the property to be usurped and held for more than one year. La.Civil Code Art. 3449; Liner v. Louisiana Land & Exploration Company, 319 So.2d 766 (La.1975). Seasonal hunting by the public on the disputed tract was inadequate to establish corporeal possession in the State or to usurp plaintiffs’ possession. Norton v. Addie, 337 So.2d 432 (La.1976). Plaintiffs filed this possessory action in response to the one time that the State halted timber operations on the disputed tract. The camp-site leases granted by the State were outside of the disputed tract. Defendant has not shown that plaintiffs have been expelled, or have acquiesced in a usurpation.

For these reasons, the judgment of the trial court is affirmed and costs in the amount of $534.52 are assessed to the defendant.

AFFIRMED.

      . La.Code of Civil Procedure Art. 3657:
      The plaintiff may not cumulate the petitory and the possessory actions in the same suit or plead them in the alternative, and when he does so he waives the possessory action. If the plaintiff brings the possessory action, and without dismissing it and prior to judgment therein institutes the petitory action, the possessory action is abated.
      When, except as provided in Article 3661(1)-(3), the defendant in a possessory action asserts title in himself, in the alternative or otherwise, he thereby converts the suit into a petito-ry action, and judicially confesses the possession of the plaintiff in the possessory action.
      If, before executory judgment in a possessory action, the defendant therein institutes a petito-ry action in a separate suit against the plaintiff in the possessory action, the plaintiff in the petitory action judicially confesses the possession of the defendant therein.

      . La.Code of Civil Procedure Art. 3661:
      In the possessory action, the ownership or title of the parties to the immovable property or real right therein is not at issue.
      No evidence of ownership or title to the immovable property or real right therein shall be admitted except to prove:
      (1) The possession thereof by a party as owner;
      (2) The extent of the possession thereof by a party; or
      (3) The length of time in which a party and his ancestors in title have had possession thereof.

      . La.Civil Code Art. 3449:
      A possessor of an estate loses the possession against his consent:
      1. When another expels him from it, whether by force in driving him away, or by usurping possession during his absence, and preventing him from re-entering.
      2. When the possessor of an estate allows it to be usurped and held for a year, without, during that time, having done any act of possession, or interfered with the usurper’s possession.


author: ELLIS, Judge:

text:
    In the Matter of the SUCCESSION OF John Everett OVERTON, Sr.
    No. 82-CA-0018.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    Gary M. O’Neill, Baton Rouge, for plaintiffs-appellants.
    Ralph M. Kelton, Baton Rouge, for defendant-appellee.
    Before PONDER, SAVOIE and ELLIS, JJ.
   ELLIS, Judge:

On June 8, 1955, John E. Overton, Sr. transferred 39.72 acres of land to B.L. Over-ton, one of his children. On June 12, 1960, John E. Overton, Sr., died intestate, leaving his widow, Katie Leona Goff Overton and five children: Evelyn, Aurelia, Mary Clarissa, B.L., and Samuel E. Overton. Two other children, Matilda and John E. Overton, Jr., had predeceased him without issue.

This proceeding was filed on June 17, 1960, alleging the above facts, and further alleging that the sale to B.L. Overton was a donation in disguise, and that the property should be returned to the mass of the estate.

No action was taken in the matter until November 12, 1971, when a motion to set the case for trial was filed. An answer was filed by B.L. Overton on January 11, 1972, and on the same day, the case was tried. The minute entry reflects that “... the attorneys were ordered to file a brief, and the Court continued the case.” Apparently no briefs were filed, and no decision was rendered.

On February 10,1981, a motion to fix for pre-trial conference was filed and the conference set for March 24, 1981. Defendant’s attorney withdrew on that date, and a status conference was set for May 19, 1981. Thereafter, the trial judge recused himself, new counsel was enrolled for defendant, a judge was appointed to hear the case, interrogatories and a supplemental petition were filed on behalf of plaintiffs, a pre-trial conference was held and finally, on August 27, 1981, the case was tried.

The trial judge rendered judgment from the bench in favor of defendant, dismissing plaintiffs’ suit, and plaintiffs have appealed.

Article 561 of the Code of Civil Procedure provides:

“An action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of five years. This provision shall be operative without formal order, but on ex parte motion of any party or other interested person, the trial court shall enter a formal order of dismissal as of the date of its abandonment.
“An appeal is abandoned when the parties fail to take any step in its prosecution or disposition for the period provided in the rules of the appellate court, not to be less than one year.”

It is clear that this case was abandoned five years after it was filed, in 1965. No action had been taken by that time, nor for six years thereafter. Since the abandonment took place automatically after five years, the suit was then, and has been, subject to dismissal since that time. The fact that the case has been tried twice since its abandonment is of no moment. In Melancon v. Continental Casualty Company, 307 So.2d 308 (La.1975), in footnote 2 at p. 312, the court stated:

“Several decisions appear to find that any plea by a defendant to the merits of a case, even if filed after the five-year period has run, constitutes a waiver of the defendant’s right to seek a dismissal of the action on grounds of abandonment. E.g., State ex rel. Shields v. Southport Petroleum Corp., 230 La. 199, 88 So.2d 25 (1956); Continental Supply Co. v. Fisher Oil Co., 156 La. 101, 100 So. 64 (1924) (plea of abandonment coupled with plea to merits). In view of the theoretical and historical background of article 3519, the re-enactment of its second and third paragraphs as article 561 of the Code of Civil Procedure, and the legislative intent of the re-enactment as evidenced by the comments appended thereto, these decisions are an incorrect application of the waiver exception to the rule on abandonment of actions. It can be assumed that they were legislatively overruled by the adoption of article 561 in the Code of Civil Procedure, which incorporated the waiver exception only to the extent that a formal step taken by a defendant in his defense interrupts the five-year abandonment period and commences it running anew. Clearly, under the present version of article 561, formal action taken by the defendant after the expiration of five years’ inactivity will not preclude a later plea of abandonment by him.”

Since the suit has been abandoned, it is hereby dismissed, as of June 17, 1965, the date of its abandonment, at plaintiffs’ cost.

DISMISSED.


text:
    LIVINGSTON PARISH SCHOOL BOARD Through Supervisor of Child Welfare and Attendance v. Harold David LOFTON and Wanda Nichols Lofton.
    No. 82 CA 0019.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.

      J. Donald Cascio, Denham Springs, for appellant.
    Wanda Nichols Lofton and Harold David Lofton, pro se.
    Before PONDER, SAVOIE and ELLIS, JJ.
   PONDER, Judge.

Plaintiff appealed the dismissal of its suit to enforce the school compulsory attendance law.

The issue is the propriety of the procedure employed. We dismiss the appeal.

The Livingston Parish School Board, through its Supervisor of Child Welfare and Attendance, filed suit against Harold David Lofton and Wanda Nichols Lofton, parents of Davina Lofton, seeking a monetary judgment under LSA-R.S. 17:221, which reads in pertinent part:

“A. Every parent, tutor, or other person residing within the state of Louisiana, having control or charge of any child between the ages of .seven and fifteen, both inclusive, i.e., from the seventh to the sixteenth birthday, shall send such child to a public or private day school provided that any child below the age of seven who legally enrolls in school shall also be subject to ‘the provisions of this Subpart. Every parent, tutor, or other person responsible for sending a child to a public or private day school under provisions of this Subpart shall also assure the attendance of such child in regularly assigned classes during regular school hours established by the school board.
“Whoever violates the provisions of this Subsection or any other provisions of this subpart shall be fined not more than fifteen dollars. Each day the violation continues shall constitute a separate offense.
“Visiting teachers or supervisors of child welfare and attendance, with the approval of the parish or city superintendents of schools, shall file proceedings in court to enforce the provisions of this Subpart.”

Defendants testified that they kept their daughter, who was within the age limit of the statute, out of school during the entire 1980-81 school year and that their religious beliefs prevented Davina’s return to school. Defendants did not claim any exemption from compulsory attendance and stated that Davina was not enrolled in any approved home study program as permitted under LSA-R.S. 17:236. Defendants further stipulated to the allegations of the petition that at the time of the filing of the suit, Davina had not been in school for 127 days.

The trial judge gave oral reasons in rendering judgment in favor of defendants. Essentially these reasons were that he believed a monetary judgment against the defendants would not entice or persuade them to send their child to school; that the 1980 act providing for home study programs diminished the effect of the statute; that a compromise was still possible whereby a home study program satisfactory to all parties could be formulated and approved and that, as a last resort, the child could be taken from her parents. He noted that a petition had been filed in the juvenile docket of the court and that a public defender had been appointed to represent the child.

The intention of the legislature in enacting LSA-R.S. 17:221 was to obtain the compulsory attendance at school of all children between the ages of seven and fifteen except those specifically declared to be exempt. State v. Pettifield, 210 La. 609, 27 So.2d 424 (1946). The terms of the statute are mandatory. LSA-R.S. 1:3. The penalty provision of this section, which states that a violator “shall be fined,” limits the discretion of the trial judge and mandates the imposition of a fine “not more than fifteen dollars” for each violation.

A review of the record establishes a clear and continuing violation of Section 221.

Nevertheless, we dismiss the appeal.

The statute, we hold, contemplates two methods of enforcement. The first is through criminal proceedings as contained in the second paragraph. The second is through civil proceedings with court orders and contempt proceedings as contemplated in paragraph three.

The first is clearly penal in nature, is to be conducted in the name of the state and is to be conducted by the district attorney. A provision for imprisonment was eliminated only as late as the 1976 amendment to the statute.

We believe that plaintiff has pursued the wrong remedy.

We therefore dismiss the appeal at appellant’s costs.

APPEAL DISMISSED.

      . The exemptions are found in LSA-R.S. 17:226 which provides:
      The following classes of children provided for in this Sub-part shall be exempted from the provisions of this Sub-part:
      (1) Children mentally, physically, or emotionally incapacitated to perform school duties, and children unable to profit from further school experience, such exemptions to be certified in writing by a psychiatrist, psychologist, recognized evaluation center or clinic, or other professionally qualified person or agency designated by the parish or city school board;
      (2) Children living outside the boundaries of a city, town, or municipality, more than two and one-half miles from a school of suitable grade where adequate free transportation is not furnished by the school board, and children living more than one and one-half miles from a transfer route providing transportation furnished by the parish or city school board to a school of suitable grade;
      (3) Children temporarily excused from school, as follows:
      (a) Children who are personally ill and whose attendance in school would endanger their own health or that of their classmates, each parish and city school board being hereby authorized to adopt and promulgate or publish such resolutions as may seem wise and proper regarding the requirement of a certifícate of a physician licensed to practice in the State of Louisiana in substantiation of the absence of children under this authorization of temporary absence;
      (b) Children in whose families there is serious illness which would reasonably necessitate the absence from school if in the judgment of the visiting teacher, or supervisor of child welfare and attendance, such absence is justified, or if the illness is substantiated in writing by a physician licensed to practice in the state;
      (c) Children in whose immediate family a death has occurred, such absence not to exceed one week because of and at the time of such death; and
      (d) Children whose religious faith requires absence for the observance of special and recognized holidays of the child’s own faith.
      Children will not be excused from school to work in any job, including agriculture and domestic service, at any time, even in their own homes or for their own parents or tutors.

      . LSA-R.S. 17:236, as amended by Acts 1980, No. 828 § 1, added the following language: “Solely for purposes of compulsory attendance in a nonpublic school, a child who participates in a home study program approved by the Board of Elementary and Secondary Education shall be considered in attendance at a day school; a home study program shall be approved if it offers a sustained curriculum of a quality at least equal to that offered by public schools at the same grade level.”


author: SAVOIE, Judge.

text:
    Mary Cunningham HALVORSEN v. GROENDYKE TRANSPORT, INC., et al.
    No. 82 CA 0020.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    Pete Lewis, New Orleans, for plaintiff-appellant.
    Claude D. Vasser, Metairie, for defendant-appellee.
    Before PONDER, SAVOIE and ELLIS, JJ.
   SAVOIE, Judge.

Plaintiff-appellant’s tort claim was dismissed on a peremptory exception on prescription. She appeals.

The issue presented is whether a suit for personal injuries incurred by a third-party driver filed in Federal District Court within one year of the accident, interrupts prescription of appellant’s claim against the same defendants. Appellant sued for property damage resulting from the same accident but filed in state district court more than one year after the accident.

Appellant’s suit arose out of a January 24, 1978 accident. The third-party driver filed suit in Federal District Court against the above-captioned defendants within one year after the accident. Appellant filed suit in state district court for damages to her vehicle on January 25,1979. A peremptory exception of prescription was filed by appellees. Appellant urged that the institution of suit in Federal District Court interrupted prescription in state district court. The trial court sustained appellee’s exception, dismissing appellant’s suit. We affirm.

L.S.A.-R.S. 9:5801 provides that:

“All prescriptions affecting the cause of action therein sued upon are interrupted as to all defendants, ..., by the commencement of a civil action in court of competent jurisdiction and in the proper venue. .. . ” (Emphasis added).

We first determine whether the suit filed in Federal District Court is the cause of action therein sued upon in the state district court. The Third Circuit, when presented with a similar situation, found the claims for property damage to the insured’s vehicle and personal injuries to a passenger to be two distinct causes of action. Liberty Mutual Insurance Company v. Brawner, 353 So.2d 487 (La.App. 3rd Cir.1977). Here, the third-party driver’s cause of action was based on a physical injury she sustained; appellant’s, on the damage to her vehicle. Therefore, as appellant’s cause of action was not the cause of action sued upon in the Federal District Court, her cause of action was not interrupted. We next determine whether her claim has prescribed.

It is well settled in Louisiana that a plaintiff’s cause of action in tort prescribes by one year. L.S.A.-C.C. 3536. As appellant filed suit more than one year after the accident, her cause of action has prescribed.

Appellant cites Allstate Insurance Company v. Theriot, 376 So.2d 950 (La.1979), as standing for the proposition that once a defendant is put on notice, prescription is interrupted as to all subsequent claims arising out of the same accident. Theriot deals with an intervention in a workmen’s compensation case. In the instant case, appellant has not intervened in the suit filed in Federal District Court. Therefore, Theriot is inapplicable.

For the foregoing reasons, judgment of the trial court is affirmed. Costs of this appeal are to be borne by appellant.

AFFIRMED.


text:
    INTERNATIONAL EXPORT PACKERS OF LOUISIANA, INC. v. STATE of Louisiana, Edwin Edwards, Governor, and Shirley McNamara, Secretary, Department of Revenue and Taxation.
    No. 82-CA-0021.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    Charles B. Johnson, and John J. Weiler, Richard Scholnick, Danny G. Shaw, New Orleans, for plaintiff-appellee International Export Packers of Louisiana, Inc.
    James W. Murray, Baton Rouge, for defendant-appellant Shirley McNamara, Secretary of the Dept, of Revenue and Taxation, State of La.
    Before PONDER, SAVOIE and ELLIS, JJ.
   ELLIS, Judge:

This suit was originally filed by International Export Packers of Louisiana, Inc., against the State of Louisiana and the Department of Revenue and Taxation seeking a sales and use tax exemption certificate. The State answered and reconvened for sales and use taxes allegedly due by plaintiff. Plaintiff’s main demand was dismissed, and the case was later tried on the reeonventional demand. Judgment was rendered dismissing the reeonventional demand in part, and the State has appealed.

The case was tried on a stipulation of facts which states, in part:

“3. IEP has been in the business of providing export packing services since 1959 and provided similar services during the period from January 1, 1974, through December 31, 1978.
“4. IEP maintains a plant located at what is known as the Nashville Avenue Wharf Complex, which contains approximately 40,000 square feet of improvements situated on approximately 4 acres of land, and has been situated at this location since 1974.
“5. These export packing services carried on by IEP consist principally of boxing and crating equipment and/or materials owned by third parties delivered to IEP for shipment outside the United States. These items for shipment are received by IEP at its plant where its packing activities take place and from there are drayed to the wharf area for shipment.
“6. All of the equipment and/or material delivered to IEP for packing are for shipment outside the United States.
“7. Because of the various shapes, sizes and weights of the items to be packed for shipment, it is generally necessary for the crates to be custom built and in these instances the crates are built only after the equipment and/or materials have arrived. In some instances, when it is known that the equipment and/or materials can be packed in standard size boxes or crates, these boxes or crates are produced prior to the date of arrival of such items.”

All goods packed by International are shipped directly to the foreign buyer of the goods. Payment is ultimately made by the foreign buyer. The question presented by this appeal is whether sales and use tax should be paid on materials purchased to be incorporated in the packing cases manufactured by plaintiff.

Article 1, § 10, paragraph 2 of the Constitution of the United States, provides:

“No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Control of the Congress.”

In accordance with the above constitutional requirement, the legislature of this state has adopted R.S. 47:305(5) which provides:

“It is not the intention of this Chapter to levy a tax upon articles of tangible personal property imported into this state, or produced or manufactured in this state, for export; nor is it the intention of this Chapter to levy a tax on bona fide interstate commerce. It is, however, the intention of this Chapter to levy a tax on the sale at retail, the use, the consumption, the distribution, and the storage to be used or consumed in this state, of tangible personal property after it has come to rest in this state and has become a part of the mass of property in this state.”
R.S. 47:305.10 provides:
“There shall be no sales tax due upon the sale at retail of tangible personal property purchased within Louisiana for use exclusively beyond the territorial limits of Louisiana. If tangible personal property purchased tax free under the provisions of this Section is later brought into Louisiana for use herein the property shall be subject to the Louisiana use tax as of the time it is brought into the state for use herein, subject to the credit provided in R.S. 47:303(A).
“If the first use of tangible personal property purchased in Louisiana for use beyond the territorial limits of the state occurs in a state which imposes a sales or use tax, the exemption provided herein shall apply only if:
“1. The purchaser is properly registered for sales and use tax purposes in the state of use and regularly reports and pays sales and use tax in such other state; and “2. The state in which the first use occurs grants on a reciprocal basis a similar exemption on purchases within that state for use in Louisiana; and
“3. The purchaser obtains from the Collector of Revenue of Louisiana a certificate authorizing him to make the nontaxable purchases authorized under this Section.
“The Collector of Revenue shall promulgate regulations for the implementation of this Section.”

The stipulation makes it clear that all of the packing cases built by International are, in fact, exported to other countries. They are therefore manufactured in this state for export, and for use beyond the territorial limits of Louisiana. Under the terms of R.S. 47:305(5) and 47:305.10 no sales tax is due on the materials purchased to be used in the manufacture of the packing cases.

Since defendant does not assign as error any other ruling of the court below, the judgment appealed from is affirmed. Costs of $411.35 are assessed against the defendant.

AFFIRMED.


text:
    David J. PUGLISI v. SAIA MOTOR FREIGHT LINES, and Transport Insurance Company.
    No. 82 CA 0023.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    Joseph G. Kopfler, Houma, for plaintiff and appellee.
    James L. Donovan, Metairie, for defendant and appellant.

      Before PONDER, SAVOIE and ELLIS, JJ.
   SAVOIE, Judge.

This is an appeal of a workmen’s compensation award to plaintiff-appellant.

Appellant asserts the trial court erred in: (1) overruling defendant’s plea of prescription, (2) awarding workmen’s compensation benefits to appellee for 450 weeks, and (3) awarding an expert witness fee of $350.00. In answer to this appeal, appellee has requested additional attorney’s fees and damages for frivolous appeal.

We remand this matter to the trial court for a proper determination of workmen’s compensation due and affirm the trial court in all other respects.

Plaintiff-appellee filed suit alleging appellant refused to pay workmen’s compensation benefits for an injury allegedly sustained on June 26, 1979, while employed by appellant. Appellee alleges he hurt his back while unloading heavy rolls of linoleum. Referred to the company physician, Dr. Allen Ellender, for an examination, ap-pellee was informed his pain was caused by a congenital defect. Due to continual pain, appellee subsequently consulted an orthopedic surgeon over one year after the date of his injury. Appellee’s pain was diagnosed as resulting from the congenital defect triggered by a traumatic event. Appellee made demand upon appellant for workmen’s compensation benefits on March 18, 1981, and filed suit on April 2, 1981.

We agree the issue of prescription was not properly before the trial court, such issue being pled only in brief and orally at trial. However, appellant subsequently filed a written motion pleading prescription. Therefore, we must now address that issue.

L.S.A.-R.S. 23:1209 states:

“... Also, where the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until the expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.”

The “development of injury rule”, premised in L.S.A.-R.S. 23:1209, has been jurispru-dentially interpreted by Bolden v. Georgia Casualty and Surety Company, 363 So.2d 419 (La.1978); and Wallace v. Remington Rand, Inc., 229 La. 651, 86 So.2d 522 (1956), rehearing denied, March 26, 1956. Barker v. Aetna Casualty & Surety Company, 380 So.2d 178 (La.App. 1st Cir.1979), writ denied, 383 So.2d 25 (La.1980).

Our Supreme Court in Wallace, supra, at p. 526, stated:

“Development, as applied to a compensa-ble injury, signifies something more than occurrence and pain. It connotes the time when disability to perform work becomes manifest either to the injured employee or his employer.” Barker, supra.

And as explained in Bolden, supra, at p. 422, the Court stated:

“The underlying rationale of the Wallace rule is that an employee who becomes disabled after the prescriptive year (but within two years after the accident) will not be penalized by the loss of his compensation rights, unless he fails to bring suit to enforce them within one year after it is manifest, rather than conjectural, that he has a compensable claim.” (Emphasis added). Barker, supra.

Under our Supreme Court’s rationale in the aforementioned cases, a two-prong test has been established. First, the plaintiff must show when the injury was manifest. Second, a compensable claim must be manifest rather than conjectural. The issue here is whether it was manifest rather than conjectural that appellee had a compensable claim. The record is clear and uncontested as to both prongs of the test.

Appellee’s injury was manifest when informed by Dr. Ellender he would be unable to lift heavy objects as required by his job. This was substantiated when appellee was informed by appellant that he was fired for such inability to lift heavy objects. Thus, appellee has met the test’s first prong.

When informed by the company physician that his injury was congenital, not traumatic, appellee was not on notice of a compensable claim. Only after learning that his injury was traumatically caused, was a compensable claim manifest to appel-lee. Thus, the tolling of prescription should run from that date (i.e. December, 1980). Therefore, appellee’s claim has not prescribed.

It is well settled in Louisiana that the trial court has much discretion in determining the amount and length of workmen’s compensation benefits to be awarded. Bourgeois v. South Central Bell Telephone Company, 407 So.2d 1245 (La.App. 4th Cir.1981); Campbell v. Baker, Culpepper & Brunson, 382 So.2d 1046 (La.App. 2nd Cir.1980), writ denied, 385 So.2d 793 (La.1980). However, the trial court incorrectly computed appellee’s award.

L.S.A.-R.S. 23:1221(3) states:

“For injury producing partial disability of the employee to perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description for which he was fitted by education, training, and experience, sixty-six and two-thirds per centum of the difference between the wages the employee was earning at the time of the injury and any lesser wages which the injured employee actually earns in any week thereafter in any gainful occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured .... ” (Emphasis added).

The record reflects appellee continued employment at odd jobs from the time of his injury until commencement of trial. Failing to consider those wages, the trial court erroneously computed the benefits due ap-pellee. This issue is remanded to the trial court for a proper determination of compensation due appellee based upon L.S.A.R.S. 23:1221(3).

The trial court’s award of expert witness fees should not be reversed unless it is clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

As to appellee’s answer, we hold that in light of our ruling herein, the appeal was not frivolous. Additionally, we find the attorney’s fees awarded by the trial court are adequate. Therefore, no additional increase is warranted.

For the foregoing reasoná, this matter is remanded to the trial court for a proper determination of workmen’s compensation due under L.S.A.-R.S. 23:1221(3). In all other respects, judgment of the trial court is affirmed. Costs of this appeal are to be borne by appellant.

AFFIRMED IN PART AND REMANDED IN PART.


text:
    Kathy GREEN and Carpet Brokers Distributors, Inc. v. LUXURY AUTO RENTALS, LTD.
    No. 82-CA-0036.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.

      George Kim Johnson, Baton Rouge, for plaintiffs-appellants.
    William N. Faller, William Cleveland, Baton Rouge, for the defendant.
    Before PONDER, SAVOIE and ELLIS, JJ.
   ELLIS, Judge:

This is a suit for damages arising out of an alleged automobile lease agreement between plaintiffs Kathy Green and Carpet Brokers Distributors, Inc. and defendant Luxury Auto Rental, Ltd., a limited partnership domiciled in Atlanta, Georgia. To the petition, defendant filed declinatory exceptions to the sufficiency of service and to the jurisdiction in personam over defendant. After a hearing, the exceptions were maintained, and plaintiffs’ suit was dismissed. They have appealed.

At the hearing, Ms. Green testified as follows:

“Well, I saw an ad in the newspaper that I looked at at the public library for a Mercedes Benz leased out of Atlanta and I telephoned the company there and after several phone conversations, and I gave them the credit application over the phone and that sort of thing, they told me to come to Atlanta to put my deposit on the car and look at it. So I drove to Atlanta and took care of that and they told me the car would be ready in four or five days. I had asked for a couple of changes of equipment on the car. So about two weeks later, they called me and said the car was ready, to come get it. So I flew up to pick up the car and it was not ready so they told me I could drive it back to Baton Rouge and they would fly in Monday with the paperwork and the contracts to sign and that I could arrange for the equipment to be put on it in Baton Rouge. They — after about three and a half weeks — still hadn’t come in with the contracts to be signed so after I contacted Mr. Johnson, he arranged with them for the terms for them to take the car back. They were to sign a release and return a portion of my deposit and they did not do that. They sent someone to pick up the car and he refused to identify himself and took the keys and took the car. So we had a warrant for his arrest on theft of the vehicle and the following Monday, I believe, Mr. Johnson was in contact with the leasing company and these charges were dropped when they — when we discovered the car had been returned to them.”

She further testified that the advertisement was in an Atlanta newspaper, that she signed the purchase agreement in Atlanta, and took delivery of the vehicle in Atlanta.

In this suit, plaintiffs are seeking the return of the deposit, travel expenses to and from Atlanta, and damages for injury to reputation and credit rating, and seek jurisdiction over defendant under the “Long Arm” statute, R.S. 13:3201 et seq.

R.S. 13:3201 provides:

“A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from the nonresident’s:
“(a) transacting any business in this state;
“(b) contracting to supply services or things in this state;
“(c) causing injury or damage by an offense or quasi offense committed through an act or omission in this state;
“(d) Causing injury or damage in this state by an offense or quasi offense committed through an act or omission outside of this state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this state; “(e) Having an interest in, using or possessing a real right or immovable property in this state; or
“(f) Non-support of a child or spouse or a former spouse domiciled in this state to whom an obligation of support is owed and with whom the non-resident formerly resided in this state.
“(g) Parentage and support of a child who was conceived by the nonresident while he resided in or was in this state.”

Plaintiffs argue that the evidence in this case shows that the defendant has transacted business in Louisiana, contracted to supply a thing in Louisiana, and committed an offense or quasi offense in Louisiana. Defendant successfully argued in the trial court that there had not been sufficient contact between it and the State of Louisiana to justify the exercise of personal jurisdiction over it in this state.

In the recent case of Soileau v. Evangeline Farmer’s Co-op, 386 So.2d 179 (La.App. 3rd Cir.1980), the court restated the proper interpretation of R.S. 13:3201:

“It is well settled that the legislative intent in enacting this statute was to extend personal jurisdiction of Louisiana courts over non-residents to the full limits of due process, i.e., to any non-resident who has ‘minimum contacts’ with this state. Drilling Engineering, Inc. v. Independent Indonesian American Pet. Co., 283 So.2d 687 (La.1973), and Aucoin v. Hanson, 207 So.2d 834 (La.App. 3rd Cir. 1968). This jurisprudence requires a liberal interpretation of LSA-R.S. 13:3201 in favor of finding jurisdiction. Adcock v. Surety Research & Inv. Corp., 344 So.2d 969 (La.1977); Latham v. Ryan, 373 So.2d 242 (La.App. 3rd Cir.1979).
“The finding of jurisdiction over non-residents involves an evaluation of the factual circumstances of the case in light of federal constitutional principles. In order for the proper exercise of jurisdiction in personam over a non-resident there must be sufficient minimum contacts between the non-resident defendant and the forum state to satisfy due process and ‘traditional notions of fair play and substantial justice’ as required by Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977); International Shoe Company v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); and McGee v. International Life Insurance Company, 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957). Whether or not a particular defendant has sufficient minimum contacts with a state is to be determined from the facts and circumstances peculiar to each case. Drilling Engineering, Inc. v. Independent Indonesian American Pet. Co., 283 So.2d 687 (La.1973).”

In this case, the record reveals that defendant is a Georgia limited partnership. All of its negotiations with plaintiffs were by telephone, or in Atlanta. Ms. Green picked up the car in Atlanta, and the only document executed was executed in Atlanta. The only contacts with Louisiana were the use of the vehicle in Louisiana, and the fact that a representative of defendant picked up the car in Louisiana. There is no indication in the record that defendant has ever before leased a vehicle for use in Louisiana.

Certainly, the circumstances of this case do not lead to a conclusion that defendant transacted any business in Louisiana, within the meaning of the statute. Nor can we agree with plaintiffs’ contention that an offense or quasi offense was committed when defendant’s representative picked up the car in Louisiana. It does appear that defendant furnished a vehicle to be used in Louisiana. However, we do not believe that, under the circumstances of this case, this isolated transaction constitutes sufficient minimum contacts between the defendant and Louisiana to satisfy due process and traditional notions of fair play and substantial justice. We therefore hold that Louisiana courts cannot exercise personal jurisdiction over defendant.

We further note that service of process and citation was made on defendant through the Secretary of State of Louisiana, which does not satisfy the requirements of R.S. 13:3204. The exception to the sufficiency of service was also properly maintained.

The judgment appealed from is therefore affirmed, at plaintiffs’ cost.

AFFIRMED.


text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. Willard C. ALLEN.
    No. 82 CA 0039.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.

      Johnie E. Branch, Jr., Bernard L. Malone, Jr., Baton Rouge, for plaintiff-appellant.
    J. Donald Cascio, Denham Springs, for defendant.
    Before PONDER, SAVOIE and ELLIS, JJ.
   PONDER, Judge.

Plaintiff, State of Louisiana, through the Department of Highways (now the Department of Transportation and Development), appealed from the judgment awarding severance damages and attorney’s fees.

The issues on appeal are the amounts of severance damages and the attorney’s fees.

We amend and affirm.

Under the provisions of LSA-R.S. 48:441, the quick-taking statute, plaintiff expropriated in 1976 two parcels of land from Willard C. Allen, the defendant, and deposited $5,448.00 in the registry of the court as just compensation. This was computed as $3,698.00 as the value of the land and improvements taken and $1,750.00 as severance damages to the remaining property. At trial, the parties stipulated to the value of $3,698.00. After trial, the court awarded $10,000.00 but said nothing of credit for the deposit of $1,750.00. It also awarded plaintiff a $3,300.00 judgment against the defendant, evidently intending to allow against the $10,000.00 awarded, a credit for the rental value of the remaining property between the taking in 1976 and its sale in 1979. The court awarded attorney’s fees in the amount of $2,150.00.

The argument as to severance damages involved a commercial building known as the Cool Shop. Prior to the taking, the Cool Shop was between twenty-seven and twenty-eight feet from the highway and parking was available in front of the building as well as on the sides. The service area faced the street. After the taking, the front of the building was two feet from the right-of-way and approximately thirteen and one-half feet from the actual driving surface of the highway. Parking in front was no longer possible.

Plaintiff offered the testimony of two expert witnesses on the amount of severance damages. L.J. Roy testified that the cost of reproduction of the building at the time of the taking was $7,052.00. He believed the building suffered a ten percent loss of marketability after the taking. He believed the building could still be used in the same manner.

J.B. Pugh testified that it would be necessary to relocate the service area of the building from the front to the side. It was his opinion that a buyer would pay $1,750.00 less for the building after the expropriation.

Defendant stated that the way the roof was constructed made it difficult and costly to move the service area. He continued to use the building after the taking and rented it for over a year to Leslie Allen and was paid $100.00 a month plus expenses.

Defendant stated that he wanted a purchase price of $23,000.00, but knew that the building would have to be relocated away from the road because of the service area problems and the noise from truck traffic. Defendant sold the property for $13,000.00.

The purchaser testified that he would have paid $23,000.00 for the Cool Shop if there had been no taking. Because of the expropriation, it became necessary to remodel the building, but its construction made remodeling impractical. The purchaser tore down the building and built a larger pne behind the former location.

The trial judge rendered oral reasons for judgment. He stated that although he did not in any way question the integrity of the expert fee appraisers, it was necessary to take into consideration the fact that they did a great deal of work for the Louisiana Department of Transportation. He also asserted he was better informed as to building valuations, the costs of construction, the costs of established construction, and the going prices over the last ten years in Livingston Parish.

The measure of severance damage is found in La.R.S. 48:453(B) which provides:

“The measure of damages, if any, to the defendant’s remaining property is determined on a basis of immediately before and immediately after the taking, taking into consideration the effects of the completion of the project in the manner proposed or planned.”

The burden of proving severance damages rests on the landowner. There is no fixed or artificial formula, however, by which such damages must be proved. State, Through Department of Highways v. Wilson, 372 So.2d 632 (La.App. 1st Cir.1979).

The only testimony controverting the opinion of plaintiff’s experts was that given by the owner that he wanted and would have expected to get $23,000.00 for the property, and by the purchaser that he would have given $23,000.00 for the property before the taking. The owner of property is not disqualified in expressing his opinion simply because of the fact of ownership if he knows of comparable sales. Southern Natural Gas Company v. Sutton, 406 So.2d 669 (La.App. 2nd Cir.1981), writ denied, 412 So.2d 86 (La.1982).

But the qualifications of defendant’s witnesses as to value and the bases for their judgments are not shown. We believe the trial court committed manifest error in relying, to the exclusion of qualified experts, on the subjective testimony of the owner and the purchaser as to their opinions in 1979 of the loss sustained by Willard C. Allen in 1976, without giving the bases of those opinions, and on the judge’s private knowledge of construction costs and values.

We therefore believe that the only proof as to the amount of severance damages is that of $1,750.00.

Because this award was the amount of the deposit, there can be no award of attorney’s fees.

For the above reasons, the just compensation owed the defendant by the plaintiff is $5,448.00, being the same amount deposited and withdrawn from the registry of the court. The trial court’s award of attorney’s fees is set aside. All costs are to be borne by the defendant.

AMENDED AND AFFIRMED.

      . LSA-R.S. 48:453(E) provides:
      Reasonable attorney fees may be awarded by the court if the amount of the compensation deposited in the registry of the court is less than the amount of compensation awarded in the judgment. Such attorney fees in no event shall exceed 25% of the difference between the award and the amount deposited in the registry of the court.

      . Because the State deposited in court the true value of the land taken and all severance damages due the owner, it is not liable for the owner’s cost. State, Through Department of Highways v. Henderson Properties, Inc., 264 So.2d 348 (La.App. 1st Cir.1972), application not considered, 262 La. 1161, 266 So.2d 445 (1972).


text:
    Gloria H. STEWART v. Robert H. STEWART.
    No. 82 CA 0042.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.

      William J. Staser, Baton Rouge, for plaintiff-appellee Gloria H. Stewart.
    Phil E. Miley, Baton Rouge, for defendant-appellant Robert H. Stewart.
    Before PONDER, SAVOIE and ELLIS, JJ.
   PONDER, Judge.

Defendant,' Robert Stewart, appealed a judgment granting plaintiff, Gloria H. Stewart, a divorce on the ground of adultery and dismissing his reconventional demand for a divorce or separation.

The issue on appeal is the sufficiency of the proof of adultery.

We affirm.

Plaintiff filed suit seeking a divorce due to the defendant’s alleged adultery. The defendant reconvened on the same ground and, alternatively, on abandonment. The trial judge granted plaintiff’s divorce, finding that there was adequate proof of defendant’s adultery and dismissed defendant’s reconventional demand.

Plaintiff introduced the testimony of a private investigator who saw the defendant make two brief evening visits to a named woman’s home. The testimony of a friend of both parties was that the defendant had been reached by telephone in the out-of-state motel room of the same woman. The witness further testified that the defendant admitted having had an affair with the woman.

Defendant testified that the woman had accompanied him on a trip, but that she did not stay with him. He further stated that he had only a business relationship with her. He denied telling anyone that he was having an affair.

Circumstantial proof of adultery requires production of evidence which fairly and necessarily justifies and supports the conclusion that adultery was committed. The degree of proof of adultery by circumstantial evidence is similar to proof of guilt in a criminal proceeding in that the evidence must establish the guilt of the party accused to the exclusion of any other reasonable hypothesis. Breaux v. Breaux, 323 So.2d 486 (La.App. 1st Cir.1975).

The trial judge’s determinations of fact are entitled to great weight on appeal and will not be disturbed unless manifest error is shown. Morris v. Morris, 336 So.2d 254 (La.App. 1st Cir.1976). Where there is conflict in testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review. Canter v. Koehring Company, 283 So.2d 716 (La.1973), rehearing denied, Oct. 26, 1973.

The trial judge evidently placed great weight in the credibility of the friend and his testimony that the defendant admitted having an affair. We cannot say that the trial court committed manifest error.

Defendant’s evidence, attempting to show plaintiff’s adultery, consisted only of the testimony of a private investigator who saw a man visit plaintiff’s residence on several occasions. Defendant has not carried his burden.

In light of these findings, we need not reach defendant’s alternative demand for a separation.

For the above reasons, the trial court’s decision is affirmed with costs assessed to the defendant.

AFFIRMED.


text:
    Mary Derouen Bone CHERAMIE v. Bohna BONE, Jr.
    No. 82 CA 0044.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    William F. Dodd, Houma, for plaintiff and appellee.
    Bohna Bone, Jr., Houma, for defendant and appellant in pro per.
    Before PONDER, SAVOIE and ELLIS, JJ.
   ELLIS, Judge:

This is a suit to partition by licitation the property belonging to the community which formerly existed between plaintiff Mary Derouen Bone Cheramie and defendant Bohna Bone, Jr. The petition alleges that the parties are the owners of an undivided one-half interest each in certain property listed in an inventory and appraisal made by a notary public pursuant to a court order issued in another suit between the parties hereto. Defendant has filed a number of pleadings in the record, most of which are irrelevant to this case, but which we assume constitute an opposition to the partition.

At the hearing no testimony or other evidence was offered by either party. Plaintiff’s counsel related to the court a history of the litigation between the parties hereto. Defendant, who was present in court in proper person, was asked by the court why he objected to a partition in kind. His only response was that he thought the law was wrong.

Judgment was rendered, ordering the partition of the community property by lici-tation, from which judgment defendant has appealed. In this court he raises two specifications of error: first, that the court erred in rendering judgment with no evidence on which to base its opinion; and second, that the court erred in ordering the sale of 48 shares of stock of which 24 shares already stood in the name of each party.

Article 2369.1 of the Civil Code provides:
“When the spouses are unable to agree on a partition of the community, either spouse may obtain a judgment decreeing a partition of the community in kind by allocation of assets and liabilities of equal net value to each spouse. If the community or any part thereof cannot be conveniently divided, the court shall order partition by licitation.”

In this record there is absolutely no showing that the property is not susceptible of being divided in kind. In fact, there was no evidence offered as to the nature of the property, of its value, or of the debts of the community. We gather from the record that, in a previous partition suit, an inventory of the property had been taken, but the proceedings in that suit were not offered in evidence.

Under the circumstances, we have no alternative but to remand the ease for the taking of evidence as to the nature and extent of the community property, its value, the liabilities of the community and the susceptibility of the property to partition in kind.

The judgment appealed from is therefore reversed and the case remanded to the trial court for further proceedings. All costs of this appeal shall be paid by plaintiff. All other costs shall await final determination of the case on its merits.

REVERSED AND REMANDED.


text:
    Herman COTTON v. Eugenia HOLDEN.
    No. 82 CA 0045.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.

      Cleveland J. Marcel, Jr., Houma, for plaintiff and appellant.
    Michael P. Pellegrin, Houma, for defendant and appellee.
    Before PONDER, SAVOIE and ELLIS, JJ.
   PONDER, Judge.

Plaintiff, Herman Cotton, appealed the dismissal of a rule to obtain the custody of his illegitimate child. Defendant, Eugenia Holden, answered the appeal, seeking an increase in child support.

The issue is the best interest of the child.

We affirm.

Plaintiff and defendant lived in open concubinage in the home of plaintiff’s parents. Defendant gave birth to their daughter on October 24, 1980, and moved out of the house several months later, taking the baby with her. Plaintiff’s initial suit to obtain custody of his daughter was dismissed.

Several reunions and separations occurred between the parties until July, 1981, when defendant left the daughter with her sister, Barbara Maybeau, who was staying with friends, while she went to Alexandria to find a job and a place to stay for herself and her child. When the baby developed a severe rash, Barbara Maybeau called upon plaintiff to provide the needed care.

Plaintiff brought the baby to his parents’ home where she received medical attention. Plaintiff and his family cared for the baby until the trial court dismissed his rule for a change in custody and awarded the defendant $150.00 per month in child support.

The criterion in determining custody is the best interest of the child, whether legitimate or illegitimate. Neal v. White, 362 So.2d 1148 (2nd Cir.1978), writ denied 365 So.2d 243 (La.1978).

The test for proper appellate review of child custody is to give great weight to the determination of the trial court and to overturn that determination only when there is a clear abuse of discretion. Billiot v. Billiot, 415 So.2d 552 (1st Cir.1982).

The evidence on whether defendant properly clothed her child, kept her clean, used drugs in front of her, went out excessively, whipped the child needlessly and used her welfare money to provide for the child’s needs is contradictory. Defendant lived in at least five different places during the year prior to the hearing, including the home of plaintiff’s parents, defendant’s father’s home, defendant’s sister’s home, the home of a friend and the back of a bar. She has been unable to hold a job in the past for more than two to three months.

In the week prior to the hearing, defendant had obtained a job at a nursing home but had not yet begun to work. A friend had offered defendant and the baby a place to stay and her aunt had volunteered to help babysit.

Defendant testified that the plaintiff had once struck her and pulled a gun on her. There was some testimony, contradicted, that plaintiff was living in open concubinage with the defendant’s sister in the home of his parents.

The trial court, with all this evidence before it, decided to allow the mother to retain custody. Simply because either choice is undesirable with no advantage either way, we affirm. We do this, while quoting from the recent case of Bagents v. Bagents, 419 So.2d 460 (La.1982):

“In performing its function of deciding custody cases, the trial court is vested with a vast amount of discretion. On appellate review, great deference must be accorded to the decision of the trial court, not only because of that court’s better capacity to evaluate witnesses, but also because of the proper allocation of trial and appellate functions between the respective courts. Canter v. Koehring Co., 283 So.2d 716 (La.1973).
The decision reached by the trial court in this case is not necessarily the decision that the individual judges of this court would have reached. Nevertheless, this court’s function is not to substitute its collective decision for that of the trial court, but to review the decision for error of law. We cannot say in this case that the trial court erred as a matter of law in deciding that a change of custody was in the child’s best interest.”

Defendant answered the appeal and asked for an increase of the amount of child support from one hundred fifty dollars per month to three hundred dollars per month. We find no abuse of the trial court’s wide discretion.

For these reasons, the judgment of the trial court is affirmed. Costs are to be paid by the appellant.

AFFIRMED.


text:
    SAFECO INSURANCE COMPANY OF AMERICA v. Lesley PALERMO.
    No. 82 CA 0049.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.

      Carolyn Pratt Perry, Franklin, Moore & Walsh, Baton Rouge, for plaintiff-appellant.
    Robert J. Vandaworker, Taylor, Porter, Brooks & Phillips, Baton Rouge, for defendant-appellee.
    Before PONDER, SAVOIE and ELLIS, JJ.
   ELLIS, Judge:

This suit arises out of an automobile accident, between an automobile owned by Victor Glaviano and operated by Nick Glavi-ano, and an automobile owned by Peter Palermo and operated by Lesley Palermo. The accident happened when the Glaviano vehicle stalled on State Highway No. 1, and was subsequently struck from the rear by the Palermo vehicle.

After the accident, Southern Farm Bureau Casualty Insurance Company, Palermo’s collision insurer, paid $3,662.01 in collision damages and $660.28 in medical payments under its policy. Thereafter, Southern Farm sued Victor and Nick Glaviano and Safeco Insurance of America, their liability insurer, as subrogee of its insured, to recover the amounts paid under the Palermo policy. Neither Peter nor Lesley Palermo were parties to that suit. After trial on the merits, judgment was rendered in favor of Southern Farm and against Victor and Nick Glaviano and Safeco for $4,322.29. Safeco paid the judgment as liability insurer of the Glavianos.

Thereafter, this suit was filed against Lesley Palermo, alleging that his negligence in failing to see the Glaviano vehicle was a contributing cause of the accident and that he was therefore liable for contribution of half of the amount paid to satisfy the judgment, under Article 2103 of the Civil Code.

To the petition, Mr. Palermo filed peremptory exceptions of no right of action, no cause of action, res judicata and law of the case, alleging all of the foregoing circumstances. After a hearing, the exceptions were maintained by the trial judge, and the suit dismissed. From the judgment of dismissal, Safeco has appealed.

The allegations of the petition, which must be accepted as true for the exception of no cause of action;- clearly set forth a cause of action in contribution under Article 2103 of the Civil Code against Lesley Palermo. No question is raised as to the capacity of plaintiff or his interest in the matter. The peremptory exceptions of no cause of action and no right of action are without merit.

The peremptory exception of res judicata is based on the judgment rendered in the first case. Under Article 2286 of the Civil Code, three elements must appear if the exception of res judicata is to be maintained: identity of parties, identity of cause and identity of the thing demanded. Mitchell v. Bertolla, 340 So.2d 287 (La.1976). Lesley Palermo was not a party to the first suit, so that there is no identity of parties. The cause of action in this case is one in contribution, while the first case sounded in tort. There is therefore no identity of cause. The exception is without merit.

Defendant further claims that the issue of the liability of Safeco has already been litigated, and cannot be tried a second time, citing Nash v. Western Cas. & Sur. Co., 406 So.2d 176 (La.1981). However, the issue of Lesley Palermo’s liability to Safeco in contribution has not been litigated, and plaintiff is entitled to do so.

The last peremptory exception is that Safeco’s liability having been established in the first suit, it is now the law of the case. This exception is likewise without merit. The law of the case rule applies only to issues decided earlier in the same proceeding involving the same parties. Miller v. East Ascension Telephone Company, Inc., 331 So.2d 182 (La.App. 1st Cir.1976); Keller v. Thompson, 134 So.2d 395 (La.App. 3rd Cir.1961), cert. denied, Jan. 15, 1962. The ruling sought to be asserted in this case was made in a separate proceeding involving other parties.

Since we have found defendant’s exceptions to be without merit, the judgment appealed from is reversed, the exceptions are overruled, and the case remanded to the trial court for further proceedings, according to law. Defendant is given 15 days from the date this judgment becomes final to file his answer. Defendant shall pay the costs of this appeal. All other costs shall await final determination hereof on the merits.

REVERSED AND REMANDED.


author: EDWARDS, Judge.

text:
    Vera Lydia SCHNEIDER, Individually and as the Natural Tutrix of Her Minor Child, Sandra Christel SCHNEIDER v. Dorman STRAHAN, d/b/a Strahan Painting Company and Employers Insurance of Wausau.
    No. 82 CA 0051.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    James Gleason, III, Mandeville, for plaintiff, appellant.
    Louis M. Kiefer, Jr., Metairie, for defendant, appellee.
    Before EDWARDS, - WATKINS and SHORTESS, JJ.
   EDWARDS, Judge.

This is a suit for workmen’s compensation death benefits filed by Verá Schneider, individually and on behalf of her minor daughter, Sandra, for the death of her husband, Horst Schneider. Plaintiff’s suit named as defendants Dorman Strahan, d/b/a Strahan Painting Company, and Strahan’s workmen’s compensation insurer, Employers Insurance of Wausau. From a judgment in favor of defendants, plaintiff appeals.

The following facts are revealed from a reading of the record. Horst Schneider was employed as a painting foreman by Stra-han. In April of 1977, he and a crew were assigned to a job painting the Sears building in the Hammond Square Shopping Center. Schneider’s job, which involved some strenuous physical exertion, was conducted in an unairconditioned environment, both inside and outside of the building. Additionally, there was pressure on Schneider to keep his crew’s work on schedule.

On Saturday, June 18, 1977, while eating breakfast at his home in Mandeville, Schneider began to experience shortness of breath and severe chest pains. He was taken to Highland Park Hospital in Coving-ton where he was admitted to the intensive care unit. At that time, Schneider was diagnosed as having arteriosclerosis and diabetes. He had no previous history of heart trouble. He was released from the hospital some time after lunch on June 24,1977 and was instructed by his doctor to limit his activity and not to return to work.

Contrary to those instructions, Schneider had his wife drive him to the jobsite upon leaving the hospital. He stayed there a couple of hours and was driven home. The next morning, over his wife’s objections, he charged the battery in his automobile and drove to the jobsite in Hammond. Once more, he stayed there for a couple of hours and then returned home. In the early morning hours of Monday, June 27, 1977, Schneider again suffered chest pains and shortness of breath and was readmitted to the hospital. He died later that morning of an acute myocardial infarction brought about by extensive arteriosclerosis.

The trial court denied compensation death benefits, holding that the death was not work related. The court noted that the medical correlation between plaintiff’s death and his job duties was no greater than the connection with his non-job activities. In written reasons for judgment, the trial judge emphasized that the deceased first suffered symptoms of heart trouble while at home on a Saturday morning and that the second onset of symptoms also occurred at home, shortly after midnight. Finally, the court noted that there was never an occurrence of any on-the-job symptoms. Plaintiff has appealed, contending that the court erred in denying compensation death benefits.

In order to recover death benefits under the Louisiana Workmen’s Compensation Act, plaintiff had the burden of establishing that her husband received a personal injury by accident arising out of and in the course of his employment. LSA-R.S. 23:1031. Plaintiff met the requirement of showing that the decedent suffered an accident and injury within the meaning of the workmen’s compensation laws. LSA-R.S. 23:1021(1) and (6). It is well-settled in Louisiana jurisprudence that a heart attack, such as a myocardial infarction, is “injury by accident.” Roussel v. Colonial Sugars Company, 318 So.2d 37 (La.1975); Bertrand v. Coal Operators Casualty Company, 253 La. 1115, 221 So.2d 816 (1969). The only remaining issue for determination is whether plaintiff established the required causal connection between her husband’s fatal heart attack and his employment.

As discussed above, the trial court found that there was no such causal connection. On appellate review the trial court’s factual findings on the question of work causation are entitled to great weight and should not be reversed unless clearly wrong. Crump v. Hartford Accident & Indemnity Company, 367 So.2d 300 (La.1979); Roussel v. Colonial Sugars Company, supra; Prim v. City of Shreveport, 297 So.2d 421 (La.1974). After a thorough review of the record, we find no such grounds for reversal in the instant case.

Schneider’s first symptoms of heart problems (shortness of breath and chest pains) appeared on a Saturday morning, while he was at home. Following that incident, Schneider was hospitalized until Friday, June 24, 1977. On the day of his release from the hospital and the next day, Horst Schneider went to the jobsite for a couple of hours. His second, and final, onset of chest pains and shortness of breath occurred at home in the early morning hours of Monday, June 27. Schneider had last been to the jobsite on the previous Saturday. Plaintiff failed to present any evidence that Horst Schneider had ever experienced any on-the-job incident which could be pointed to as the cause of his heart attack or which created problems which led to his subsequent death off the job. See, e.g., Barnes v. City of New Orleans, 322 So.2d 821 (La.App. 4th Cir.1975), cert. denied 325 So.2d 584 (1976); Fields v. Sperry Rand Corporation, 343 So.2d 339 (La.App. 2nd Cir.), cert. denied 345 So.2d 902, 903 (1977).

Plaintiff introduced evidence of an incident which occurred on the job on the Wednesday prior to Horst Schneider’s first attack of chest pains and shortness of breath. On that day, Schneider attempted to support one end of a ladder above his head while a fellow employee climbed up the ladder to do some painting. The employee was on the ladder only a couple of seconds when Schneider told him to come down because he could not hold him any longer. Another of Schneider’s co-workers described him as looking red in the face and “flustered” after this incident. Schneider continued to work that day and the following Thursday and Friday. The first instance of shortness of breath and chest pains occurred the following Saturday. As the trial court noted, the incident at work was not assigned any particular significance by the treating physician, Dr. Joseph Millet, and there was no evidence of any sympto-matology in the two and one-half days which Schneider worked following this incident.

If the decedent’s heart attack had occurred at work or had followed closely upon some identifiable beginning at work, plaintiff would be entitled to recovery. Absent any such on-the-job incident, however, we are unable to say that the trial judge’s conclusion that work causation was not shown is clearly wrong. Soileau v. Chet and Kenny’s Auto Parts, Inc., 337 So.2d 604 (La.App. 4th Cir.1976), cert. denied 340 So.3d 994 (1977).

Plaintiff makes much of the evidence of the stressful and strenuous nature of Horst Schneider’s job as well as the hot temperatures in which he worked. Dr. Millet testified that these job factors contributed to the occurrence of the myocardial infarction which killed Schneider. However, he also testified that other factors, unrelated to Schneider’s employment, also contributed to the fatal heart attack. These factors included stress from an argument which Schneider had with his wife and his actions in charging the battery on his automobile and driving himself from Mandeville to Hammond and back on the Saturday prior to his fatal heart attack.

In summation, we are unable to say that the trial court’s finding of lack of work causation is clearly wrong. The following language from Prim v. City of Shreveport, 297 So.2d 421 (La.1974), embodies the reasons for our affirmance of the trial court’s judgment.

“Although procedural rules are construed liberally in favor of workmen’s compensation claimants, the burden of proof, by a preponderance of the evidence, is not relaxed. Thus, the testimony as a whole must show that more probably than not an employment accident occurred and that it had a causal relation to the disability. If the testimony leaves the probabilities equally balanced, the plaintiff has failed to carry the burden of persuasion. Likewise, the plaintiff’s case must fail if the evidence shows only a possibility of a causative accident or leaves it to speculation or conjecture.” 297 So.2d at 422.

For the foregoing reasons, the judgment of the district court is affirmed. All costs of these proceedings, both trial and appellate, are cast against plaintiff-appellant.

AFFIRMED.