text:
    Brenda Ann LANGLINAIS, Plaintiff-Appellant, v. Richard GUILLOTTE et al., Defendants-Appellees.
    No. 8067.
    Court of Appeal of Louisiana, Third Circuit.
    April 15, 1981.
    Rehearing Denied May 28, 1981.
    William R. Collins, New Iberia, for plaintiff-appellant.
    Theall & Fontana, Anthony J. Fontana, Jr., Abbeville, Roy & Forrest, Alex A. Lo-presto, III, New Iberia, for defendants-ap-pellees.
    Before CULPEPPER, FORET and STOKER, JJ.
   STOKER, Judge.

This ease poses a question of prescription in a tort action. Plaintiff-appellant, Brenda Ann Langlinais, was injured in a vehicle accident on February 22, 1977. In her suit she alleges her vehicle was struck from the rear by a vehicle owned and driven by Richard Guillotte. In fact it was Richard Guillotte’s daughter, Catherine Guillotte, a minor, who was driving the vehicle which struck plaintiff’s vehicle and caused plaintiff’s injuries and damages. Richard Guil-lotte was not a passenger in the vehicle driven by his daughter. His only connection with the affair was that he was owner of the vehicle driven by his daughter.

The original suit filed February 17, 1978, was against Richard Guillotte for his alleged negligence and against his liability insurer, State Farm Mutual Automobile Insurance Company. To the original petition Richard Guillotte and State Farm filed an answer denying the allegations of the petition except to admit the existence of a liability insurance policy issued by State Farm to Richard Guillotte. On May 27, 1980, plaintiff-appellant amended her suit to allege the true facts, that is, that Catherine Guillotte was the driver. In this supplemental and amended suit plaintiff-appellant alleged that Richard Guillotte “also be made a defendant ... in his capacity as administrator of the estate of his minor child, Katherine [sic] Guillotte.”

Richard Guillotte filed an exception of prescription to the supplemental and amending petition. The trial court sustained the exception of prescription and dismissed the action.

Brenda Ann Langlinais appeals the dismissal of her action on the basis of the prescription pleaded. We think the trial court was correct and affirm the dismissal. Trahan v. Liberty Mutual Insurance Company, 314 So.2d 350 (La.1975) and Sizeler v. Employers’ Liability Assurance Corp., 102 So.2d 326 (La.App.Orl.1958).

Plaintiff-appellant advances certain arguments to support the contention that the supplemental and amending petition relates back to the date of the filing of the original petition under LSA-C.C.P. art. 1153. The discussion in the cases cited above make it clear that this argument is without merit. Plaintiff also relies on certain jurisprudence which holds that service of a suit on parties “closely related” to the true defendant is sufficient to interrupt prescription, particularly Lunkin v. Triangle Farms, Inc., 208 La. 538, 23 So.2d 209 (La.1945) and Stewart v. Maloney Trucking and Storage, Inc., 147 So.2d 62 (La.App. 4th Cir. 1962). These cases are not applicable because we are not dealing here with deceptively similar names or entities. Rather, we have a situation in which plaintiff alleged a cause of action against the father and not the daughter.

Plaintiff-appellant also urges that we follow the lead of Foster v. Hampton, 381 So.2d 789 (La.1980) which specifically overruled Cox v. Shreveport Packing Company, 213 La. 53, 34 So.2d 373 (1948). Cox held that suit against an employee did not interrupt prescription against the employer. Now under Foster v. Hampton, the reverse is true. We do not have analogous facts. In Foster the original petition correctly alleged that the employee negligently caused plaintiff’s injuries in driving a vehicle which struck plaintiff’s motorcycle. Later the employer was made a defendant and the employer, the State of Louisiana, urged prescription as a defense. The Louisiana Supreme Court discarded the Cox principle and held that suit against the employee interrupted prescription which might have run in favor of the employer. The original petition in Foster alleged a cause of action against the employee. In the case before us the original suit set forth a cause of action against the father for his alleged direct negligence, not a cause of action based on the daughter’s negligence.

For the foregoing reasons assigned the judgment of the trial court is affirmed. The costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED.

FORET, J., dissents with written reasons.

FORET, Judge,

dissenting.

I respectfully dissent.

In my opinion, prescription was interrupted. It is difficult to visualize a case where the parties are more “closely related”. Here we have the same plaintiff, the same defendant, Richard Guillotte; the same automobile, the Guillotte vehicle; the same defendant liability insurer, State Farm Automobile Insurance Company; the same date of accident, in fact the very same accident. I would overrule the exception of prescription.

      . On November 7, 1979, State Farm Mutual Automobile Insurance deposited its policy limits with interest into the registry of court. It prayed in the motion praying that the deposit be allowed that plaintiff be allowed to withdraw the funds and that such withdrawal be in full satisfaction of State Farm’s obligation to pay under the policy and that State Farm be dismissed from the suit. In this motion State Farm admitted that Richard Guillotte was the driver of the insured automobile at the time of the accident.

      . Defendant-appellee, Richard Guillotte, also filed a motion for summary judgment and exceptions of no cause of action and res judicata. The trial court overruled the exceptions and denied the motion for summary judgment. In the brief filed on behalf of Richard Guillotte arguments are addressed to the failure of the trial court to grant him these forms of relief. We do not consider these issues as we do not find that Richard Guillotte appealed separately on these issues or answered the appeal to bring them up.


source: Caselaw Access Project

author: DOUCET, Judge.

license: Public Domain

text:
    Robert L. ALLEN, Plaintiff-Appellant, v. Herbert SUMRALL, Administrator, Louisiana Office of Employment Security et al., Defendants-Appellees.
    No. 8069.
    Court of Appeal of Louisiana, Third Circuit.
    April 15, 1981.
    Neblett, Weeks & Neblett, David H. McCroskey, Alexandria, for plaintiff-appellant.
    James D. Caldwell, Baton Rouge, for defendants-appellees.
    Before DOMENGEAUX, CUTRER and DOUCET, JJ.
   DOUCET, Judge.

The Board of Review for the Department of Labor, Office of Employment Security, denied plaintiff’s claim for unemployment compensation benefits because plaintiff was discharged for misconduct connected with his employment. LSA-R.S. 23:1601(2). Plaintiff filed suit in district court for judicial review of the administrative tribunal’s decision. LSA-R.S. 23:1634. The trial court upheld the administrative tribunal’s denial of unemployment compensation benefits and dismissed plaintiff’s claim. Plaintiff appeals. We affirm.

Upon denial of an appeal by the board, the decision of the appeals referee is deemed to be the decision of the board. LSA-R.S. 23:1630. The trial court accepted the findings of fact as stated by the appeals referee:

“The claimant had worked for the named employer for about three years as an Attendant I for the rate of pay of $618.00 per month. He was scheduled to work from 10:00 PM to 6:00 AM, five days per week, Sunday through Thursday. The claimant was discharged from his job by Mr. Coates Stuckey, Superintendent, by letter, giving his reason for the discharge as, one of which, sleeping on job. The claimant had been observed on September 13, 1979, at approximately 2:30 AM, on Cottage 402, by Mr. W. Sib-ley, Cottage Life Supervisor I, Mrs. Effie Bryant, Behavioral Shaping Supervisor II, and Mrs. Melba Dyess, Resident Training Specialist III. The claimant was observed sitting in a chair with his back to the door and the lights out, in a room and appeared to be asleep. Mr. Sibley had stood at the door for approximately one minute before anyone in the room made a sound, at which time, one of the other workers in the room stated that she heard a noise and at this time Mr. Sibley turned the lights on. The claimant had been given a suspension, once before for sleeping on the job. Mr. Sibley stated that he could not see if the claimant had his eyes shut or not but after speaking to the other party, the claimant raised up and turned his head around to see who was there. Mrs. Payton, co-worker and Charge Attendant and also Mrs. Wiggins, Attendant I and co-worker, were suspended at [sic] this was their first offense. It is against rules and regulations to be sitting in a room with the lights out where they cannot see the patient and someone must be on duty where the patients are at all times. Mrs. Payton stated that she had just come back from putting clothes in a dryer, and at this time went with Mr. Sibley to see if there were clothes in the dryer and when they returned the lights were out again. The claimant was called in and talked to about the discrepancy and at this time Mr. Sibley took Mrs. Payton’s and Mrs. Wiggins’ statements. Mr. Sibley stated at the time he was taking Mrs. Payton’s statement, she indicated to him the claimant was sleeping but since then has changed her statement and this is the only discrepancy in what happened. The claimant stated he did have his back to the door and was looking out the window but was not asleep but was down in the chair and looked over his shoulder when he heard the other parties talking. The claimant had been suspended for the same type charge once before and as this was his second offense, he was discharged. The claimant stated he knew that someone had to be where they could observe the patients at all times and that the lights were not to be out in the room.”

The plaintiff assigns as error: (1) the granting of a continuance by the appeals referee; (2) the failure of the appeals referee to limit his decision of disqualification to the specific acts set forth in the agency’s initial determination of disqualification; and, (3) the failure of the appeals referee to apply the proper standard of law in reaching his decision.

The trial court’s scope of review is limited by LSA-R.S. 23:1634:

“ * * * In any proceeding under this Section the findings of the board of review as to the facts, if supported by sufficient evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law. * * * ”

A review of the record shows that the facts found by the appeals referee are sufficient to support the conclusion that plaintiff was sleeping on the job. Thus, this court’s only consideration is the questions of law raised by the plaintiff.

First, plaintiff contends the appeals referee violated the rules of the board by ordering a continuance on his own motion without a written request on the part of the employer. The appeals referee continued the hearing from November 7, 1979, until November 15,1979, upon his own motion, to give the plaintiff an opportunity to confront the witnesses against him. Plaintiff agreed to the continuance. Plaintiff’s brief fails to point out which rule of the board is violated by the continuance. In support of his contention, plaintiff cites Sustan Garments, Inc. v. Administrator of the Division of E. S., 211 So.2d 715 (La.App. 2nd Cir. 1968) in which the court affirmed the board’s dismissal of an appeal where the employer, after requesting a rescheduling of the hearing until a later date, failed to appear at the new hearing date or present any mitigating factors to excuse its absence. Here, the employer’s representative appeared at both hearings. The appeals referee did not act improperly in ordering a continuance.

Second, plaintiff contends that the appeals referee’s decision violated the requirements of notice and a fair hearing by considering other actions of the plaintiff outside of the specific acts set forth in the agency’s initial determination of disqualification. See Immel v. Brown, 143 So.2d 156 (La.App. 3rd Cir. 1962).

The agency disqualified plaintiff for misconduct connected with his employment upon learning that plaintiff was discharged from his job for sleeping on duty.

The appeals referee’s decision states:

“Prom the evidence and facts presented, it is concluded that it is not clear whether the claimant was actually asleep, or not, but he was in a room with the lights out with his back to the door, looking out the window and could not observe the patients he was hired to watch. It is further concluded there were other duties the claimant could have been performing and that he also did not observe the party who walked up to the door of the room where he was, with the lights out, and did not know they were standing at the door. It is further concluded that as this was the claimant’s second offense of the same type, and he was discharged for this, his discharge was due to his own misconduct connected with the employment and under disqualifying conditions.”

At the hearing, plaintiff was represented by a union official and produced two witnesses on his behalf. The hearing was limited to an inquiry into the events on the evening in question. Plaintiff contends that the appeals referee’s decision is based upon other events disclosed at the hearing rather than a finding that plaintiff was sleeping on duty.

Plaintiff’s contention is not supported by a reading of the appeals referee’s decision. The first and third sentences quoted above show that the appeals referee concluded that plaintiff was sleeping on duty. The other events mentioned by the appeals referee simply support his conclusion.

Finally, plaintiff contends that the appeals referee failed to apply the proper standard of law in reaching his decision, since sleeping on duty is not a wanton, willful or negligent disregard of the employer’s interests. Plaintiff relies upon Pilgrim Manor Nursing Home, Inc. v. Gerace, 337 So.2d 660 (La.App. 3rd Cir. 1976), in which this court stated:

“[3] Misconduct under LSA-R.S. 23:1601(2) has been defined by the jurisprudence as an act of willful or wanton disregard of the employer’s interest; a deliberate violation of the employer’s rules; a disregard of the standards of behavior which the employer has the right to expect of his employee; or, negligence in such degree or recurrence as to manifest culpability, wrongful interest, or evil design, or show an intentional and substantial disregard of the employer’s interest or of the employee’s duties and obligations to the employer. Heard v. Doyal 259 So.2d 412 (La.App. 2nd Cir. 1972); Horns v. Brown 243 La. 936, 148 So.2d 607 (1963); Payne v. Antoine’s Restaurant 217 So.2d 514 (La.App. 4th Cir. 1969); Rankin v. Doyal 223 So.2d 214 (La.App. 2nd Cir. 1972).
Considering the claimant’s term of service with the plaintiff and the fact that she was at her station working a .late night shift on her day off in replacement of another nurse at the employer’s request, we conclude that the defendant’s action in dozing off while on duty did not constitute a deliberate violation of the employer’s rules nor did such action, under the circumstances, constitute a wanton, willful or negligent disregard of the employer’s interest.”

In Pilgrim Manor, the court found other circumstances present which mitigated the effect of the employee’s conduct. Sleeping on the job is sufficient misconduct to disqualify an employee from receiving unemployment compensation benefits. Hall v. Doyal, 191 So.2d 349 (La.App. 3rd Cir. 1966). Here, the plaintiff was working his regular shift and had been suspended previously for the same offense. Under the circumstances, plaintiff was guilty of misconduct sufficient to disqualify him for unemployment compensation.

The decision of the trial court is affirmed at appellant’s cost.

AFFIRMED.

DOMENGEAUX, J., who was a member of the panel in the Pilgrim Manor case concurs, and agrees that the case is readily distinguishable.


author: CUTRER, Judge.

text:
    Gilbert NEVILLE, Sr., Plaintiff-Appellee, v. Frank JOHNSON, Defendant-Appellant.
    No. 8071.
    Court of Appeal of Louisiana, Third Circuit.
    April 15, 1981.

      Pucheu, Pucheu & Pucheu, Jacqué B. Pu-cheu, Eunice, for defendant-appellant.
    Edwards, Stefanski & Barousse, Nolan J. Edwards, Crowley, for plaintiff-appellee.
    Before DOMENGEAUX, CUTRER and DOUCET, JJ.
   CUTRER, Judge.

Gilbert Neville, Sr., filed this suit against Frank Johnson, seeking to recover damages for injuries sustained as a result of a gunshot wound. From a judgment of the trial court in favor of the plaintiff in the amount of $3,140.15, which included medical and hospital expenses, plus $1,500.00 general damages, the defendant has perfected this appeal. Plaintiff has answered the appeal seeking an increase in quantum. We affirm.

The issues on appeal are: (1) Whether the trial court erred in determining that although the plaintiff was the aggressor, the defendant used excessive force; and (2) whether the trial court abused its discretion in awarding plaintiff $3,140.15.

On October 20, 1978, Gilbert Neville, Sr., was a patron at Johnson’s place of business, the Flamingo Club, in Eunice, Louisiana. After having several drinks, Neville became involved in an altercation with another patron, Aaron Hudson. When Johnson became aware of the disturbance, he intervened and ordered Neville to leave the premises. Neville began arguing with Johnson. Finally Neville left the establishment with Johnson following him.

When they were outside, Neville started cursing and stating that he was going back inside to finish his altercation with Hudson. As to the subsequent events, Johnson testified as follows:

“Q. When did you take the gun out of your pocket?
“A. Well, after we got on outside, somewhere just past the steps. Neville was acting like a wild man or a crazy person, he wasn’t acting like a normal person, cussin saying that he was going back in there to kill that son-of-a-bitch and well, the only thing I could do, I couldn’t hold him, the only thing I could do, take that gun out and whip him with it.
“Q. You took your pistol out and hit him on the side of the head with it and the gun went off and shot him in the neck, is that right?
‘A. It went off, right.’’

Johnson also testified that Neville had patronized his bar many times before this event and had never gotten into any trouble. Johnson further stated that Neville was not armed at the time of the trouble. Johnson was 35 years old and weighed 250 pounds. Neville was 27 years old and weighed 160 pounds.

As a result of the wound, Neville was confined to the hospital for almost two weeks. The treating physician’s report reflects that the neck wound was cleaned and sutured. Neville was treated conservatively and the “wound healed well and the patient was discharged. ” Neville had some pain in the neck upon movement for several months thereafter.

Defendant Johnson contends that Neville should be precluded from recovering because he was the aggressor. In a suit for damages for battery, a person cannot recover where he was the aggressor who provoked the difficulty in which the injury was received. Babineaux v. Pernie Bailey Drilling Company, 335 So.2d 747 (La.App. 3rd Cir. 1976), writ ref’d, 339 So.2d 23 (La.1976); Squyers v. Phillips, 285 So.2d 337 (La.App. 3rd Cir. 1973); Tripoli v. Gurry, 253 La. 473, 218 So.2d 563 (1969).

The rule is established, however, that even where a person is the aggressor, the person retaliating may use only so much force as is reasonably necessary to repel the attack, and if he goes beyond this, he is liable for damages. Babineaux v. Pernie Bailey Drilling Company, supra; Watts v. Aetna Casualty & Surety Company, 309 So.2d 402 (La.App. 2nd Cir. 1975), writ den., 313 So.2d 601 (La.1975); Tripoli v. Gurry, supra. In determining what force is justified in repelling an attack all facts and circumstances at the scene of the incident must be considered. Resort to the use of a dangerous weapon in order to repel an attack cannot be considered justifiable except in exceptional circumstances where there exists facts which would likely induce similar action by men of reasonable prudence. Davis v. Marie, 339 So.2d 370 (La.App. 1st Cir. 1976), writ ref’d, 341 So.2d 5 (La.1977); Mullins v. Pence, 290 So.2d 803 (La.App. 1st Cir. 1974), writ ref’d, 294 So.2d 547 (La. 1974).

In its reasons for judgment the trial court stated, in part, as follows:

“Considering the evidence, it is my judgment that Johnson used more force than was necessary under the circumstances. It is apparent from the testimony that the plaintiff was not armed, that the defendant did not have a great deal of trouble in evicting him from the building. It was reasonably foreseeable that striking Neville with a loaded weapon could cause it to discharge — an unnecessary force, as I appreciate the evidence.”

Such a factual determination by a trial court will not be disturbed on appeal unless it is manifestly erroneous or clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Company, 283 So.2d 716 (La.1973). Our review of the record reveals that the judgment of the trial court is not clearly wrong.

Neville has answered the appeal seeking an increase in quantum. The trial court is vested with much discretion in determining the amount of damages to be awarded. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977); LSA-C.C. art. 1934. Before a court of appeal can disturb an award made by a trial court, the record must clearly reveal that the individual facts and circumstances peculiar to that case indicate the award made by the trier of fact is clearly excessive or inadequate. Reck v. Stevens, 373 So.2d 498 (La.1979).

The record in the instant case reveals that Neville was the aggressor who provoked the incident which resulted in the injury. Even though the trial court determined that Johnson used excessive force, the trial court also found that Neville’s conduct and actions helped create circumstances which gave rise to his injury. Such conduct may be considered in the mitigation of damages. Andrepont v. Naquin, 345 So.2d 1216 (La.App. 1st Cir. 1977); Ruiz v. Travelers Indem. Co., 349 So.2d 461 (La. App. 3rd Cir. 1977), writ den., 351 So.2d 1204 (La.1977). Considering the mitigating factors, the trial court’s award is within its much discretion.

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

AFFIRMED.


text:
    Julian R. RIDER et al., Plaintiffs-Appellees, v. Carl J. LeCOMPTE et al., Defendants-Third Party Plaintiffs-Appellees.
    No. 8087.
    Court of Appeal of Louisiana, Third Circuit.
    April 15, 1981.
    George L. Carmouche, Lake Charles, for defendants-third party plaintiffs-appellees.
    Joseph W. Greenwald, Shreveport and John LaVern, Lake Charles, for plaintiffs-appellees.
    Before DOMENGEAUX, CUTRER and DOUCET, JJ.
   DOUCET, Judge.

This is a redhibition suit. The plaintiffs, Julian and Patsy Rider filed suit against the defendants, Carl and Helen LeCompte, seeking a reduction of the purchase price of a house. The LeComptes filed a third party demand against their vendors, Stephen and Brenda Parker. The Parkers filed an exception of one year prescription which was referred to the merits. After trial on the merits, the trial court overruled the Par-kers’ exception and held for the Riders against the LeComptes. The trial court also held for the LeComptes against the Parkers. The Parkers have perfected this suspensive appeal from that portion of the trial court’s decision overruling their exception of prescription. We reverse in part and affirm in part.

The sole question on appeal is whether or not the LeComptes’ third party demand against the Parkers was prescribed.

In November of 1977, the Riders purchased a house from the LeComptes. The LeComptes had purchased the house from the Parkers in January of 1977. The Par-kers had purchased the house from their vendor some time in 1976. Some time after January 5, 1978, the Riders began to notice some severe leaks in the roof of the house. Several attempts were made to repair the roof but the Riders eventually had to replace the roof of the house. On October 2, 1978, the Riders filed this suit against their vendors, the LeComptes. On January 5, 1979, the LeComptes filed their third party demand against the Parkers. The Parkers then filed an exception of prescription. The trial court determined that the action had not prescribed because the third party demand was filed within one year of the discovery of the defect by the Riders.

The Parkers contend that because the third party demand was made against them more than one year after they sold the house to the LeComptes, the LeComptes’ action in redhibition had prescribed under LSA-C.C. Art. 2534 because they were good faith vendors and therefore an action in redhibition against them prescribes in one year from the date of the sale. The Le-Comptes contend that the running of prescription did not commence until the time the defect was discovered. LSA-C.C. 2546.

Louisiana’s time limitations for actions in redhibition are provided by Civil Code Articles 2534 and 2546. Article 2534 provides in pertinent part:

“The redhibitory action must be instituted within a year, at the farthest, commencing from the date of the sale.
“This limitation does not apply where the seller had knowledge of the vice and neglected to declare it to the purchaser.”

Article 2546 provides:

“In this case, the action for redhibition may be commenced at anytime, provided a year has not elapsed since the discovery of the vice.”

The vendor, who is not the manufacturer of the thing involved, is not presumed to have knowledge of the vice or defect in the thing itself. Boyd v. J. C. Penney Co., 195 So. 87 (La.App. 1st Cir. 1940); Peltier v. Seabird Industries, Inc., 243 So.2d 112 (La. App. 3rd Cir. 1971). Therefore, because the Parkers were not the manufacturer or builder of the house involved in the instant case, prescription commenced to run from the time of the sale of the house to the LeComptes unless it is proved that the Par-kers actually knew of the vice. See Peltier v. Seabird Industries, Inc., supra; Horil v. Napko Paint Company, 270 So.2d 261 (La. App. 4th Cir. 1972).

Although the party pleading prescription generally has the burden or proving same, where prescription has tolled on the face of the petition, the buyer bears the burden of showing the claim has not prescribed. Gustin v. Shows, 377 So.2d 1325 (La.App. 1st Cir. 1979).

The appellate review of the facts is not completed by reading so much of the record as will reveal a reasonable factual basis for the finding in the trial court; there must be a further determination that the record establishes that the finding is not clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Our review of the entire record reveals that the. trial court was clearly wrong on the issue of prescription.

There is no evidence in the record to indicate that the Parkers knew of the defect in the house. The house never leaked while they owned it. They are not presumed to know of the defect because they were not the builders of the house. Because the LeComptes’ third party demand against the Parkers was not filed until January 5, 1979, more than one year from the date the Parkers sold the house to the Le-Comptes, the third party claim has prescribed on its face. Therefore, the purchasers, the LeComptes, have the burden of proving the claim has not prescribed. Gustin v. Shows, supra. We hold that the LeComptes have not met that burden of proof and that the LeComptes’ third party claim against the Parkers has prescribed.

For the above and foregoing reasons, that part of the trial court’s judgment in favor of the third party plaintiffs, Carl J. Le-Compte and Helen LeCompte, and against the third party defendants, Stephen Michael Parker and Brenda Parker, is reversed. In all other respects, the judgment of the trial court is affirmed. All costs of this appeal are cast to the third party plaintiffs-appellees.

REVERSED IN PART, AFFIRMED IN PART and RENDERED.


author: DOMENGEAUX, Judge.

text:
    Claudia DOWNS, Plaintiff-Appellee, v. RAPIDES GENERAL HOSPITAL and United States Fidelity & Guaranty Company, Defendants-Appellants.
    No. 8088.
    Court of Appeal of Louisiana, Third Circuit.
    April 15, 1981.
    Rehearing Denied May 28, 1981.
    Gold, Little, Simon, Weems & Bruser, Henry B. Bruser, III, Alexandria, for defendants-appellants.
    Christopher J. Roy, Alexandria, for plaintiff-appellee.

      Before DOMENGEAUX, CUTRER and DOUCET, JJ.
   DOMENGEAUX, Judge.

This is a workmen’s compensation case. Defendant-employer, Rapides General Hospital, and its insurer, United States Fidelity & Guaranty Company (USF&G), are appealing the trial court’s judgment which held plaintiff-employee, Claudia Downs, to be totally and permanently disabled and entitled to workmen’s compensation benefits. Additionally, defendants seek reversal of the trial court’s judgment awarding plaintiff penalties and attorney’s fees. We affirm the findings of disability and entitlement to benefits. However, we reverse that part of the judgment awarding penalties and attorney’s fees.

Defendants assign as error the trial judge’s findings that: (1) plaintiff is totally and permanently disabled; and (2) defendant was arbitrary and capricious in terminating plaintiff’s compensation benefits.

DISABILITY

On July 3, 1976, plaintiff fell in a hall at Rapides General Hospital and suffered a Colles’ fracture of her left wrist. Plaintiff is righthanded. The injury occurred during the course and scope of her employment as a telephone switchboard operator. The plaintiff’s injury was treated at the hospital by Dr. T. E. Banks. A closed reduction was performed under local anesthesia and a long arm cast was applied. After removal of the cast in September, plaintiff began experiencing pain and paralysis in her left hand. On January 25,1977, Doctor Banks referred the plaintiff to Dr. Ray J. Haddad, an orthopedic surgeon specializing in hand surgery at the Tulane University Medical School.

Doctor Haddad examined plaintiff on February 9,1977, confirming Doctor Banks’ suspicion of carpal tunnel syndrome in plaintiff’s left hand. An electromyelogra-phy performed on February 23, 1977, in Monroe, Louisiana, confirmed the diagnosis. Upon Doctor Haddad’s recommendation, Doctor Banks referred plaintiff to Dr. C. W. Lowrey, an orthopedic surgeon, who performs hand surgery for the Alexandria Orthopedic Clinic.

On March 17, 1977, Doctor Lowrey performed a carpal tunnel release to relieve pressure on the median nerve going into the left hand. Doctor Lowrey discharged plaintiff to return to work on August 15, 1977, assessing a 20% permanent partial impairment of her left hand. Plaintiff continued to experience pain and numbness in her left hand.

Plaintiff returned to work as a telephone switchboard operator in August, 1977, but continued having problems with her left hand. Doctor Haddad performed a second carpal tunnel release on February 18, 1979. On August 8, 1979, Doctor Haddad discharged plaintiff to return to work assessing a 25% permanent partial impairment of her left hand.

Plaintiff returned to work in October, 1979, as the operator of the defendant hospital’s Tel-Med program, a job she could perform using only one hand. She resigned on March 14, 1980, citing the pain she continually experienced in her left hand as her reason for leaving.

Dr. Don K. Joffrion, an orthopedic surgeon, examined plaintiff twice (on September 25, 1979, and March 25, 1980) at the request of plaintiff’s attorney and diagnosed her condition as Sudeck’s atrophy, or Causalgia. He believed the pain associated with these conditions would prevent the plaintiff from returning to work.

The trial judge delivered extensive written reasons finding the plaintiff to be totally and permanently disabled due to substantial pain. In conclusion, the trial judge stated:

“Pain is a question of fact that must be determined after an evaluation of all the facts and evidence adduced at trial. Generally a trier of fact has made available to him only the ‘opinions’ of experts and the trial is void of any facts which the court may actually view, touch or examine. Such is not true with the case at hand for I was able to observe the change that took place in the color of plaintiff’s hand from early that morning when the courtroom was cold until later that afternoon when the courtroom was hot. It was blue when the courtroom was cold and red when the courtroom was hot; the topside skin was atrophic, thin and mummified; the color of the skin on the underside of the hand was mottled; the skin around the fingernails was tight, white and abnormal in appearance; the dryness of the little finger when I ran my fingers across it; the claw shape of the hand; the inability of plaintiff to extend the fingers; the inability of plaintiff to make a closed fist; the inability of the plaintiff to bend her fingers downward; and the obvious pain she experienced when she attempted these maneuvers. I say obvious pain because I do not believe that the trembling, and shaking of her entire hand and arm in the manner it occurred and the grimace that appeared on her face could be faked. I have known Mrs. Downs for many years and know her to be a very conscientious, dedicatéd, hard working and truthful individual. She is a type individual that would tell the truth even though it might have an adverse effect on the outcome of her pending litigation. I could accept her testimony in absence of Dr. Joffrion’s but his must be mentioned since it corroborates not only Mrs. Downs’ version of what is present but it also affirms the objective symptoms found by Dr. Lowrey, Dr. Had-dad, and this Court.”

This Court in Kelly v. International Union Operating Engineers, 386 So.2d 1060 (La.App. 3rd Cir. 1980), recently stated:

“It is well settled that an injured worker who suffers substantial pain in performing his former job or who cannot engage in any gainful employment without incurring substantial pain is disabled, either totally or partially. Phillips v. Dresser Engineering Company, 351 So.2d 304 (La.App. 3 Cir. 1977), writ denied, 353 So.2d 1048 (La.1978); Rachal v. Highlands Insurance Company, 355 So.2d 1355 (La.App. 3 Cir. 1978), writ denied, 358 So.2d 645 (La.1978); Whitaker v. Church’s Fried Chicken, Inc., 387 So.2d 1093 (La.1980).
We note at the outset that physical inability to return to work and inability to return to work due to substantial pain are questions of fact. The determination of fact made by a trial court will not be disturbed when there is evidence before the court, which evidence, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s findings, unless those findings are clearly wrong. Crump v. Hartford Accident and Indemnity Company, 367 So.2d 300 (La.1979). In this regard, we stated in Conlay v. Houston General Insurance Company, supra, 370 So.2d 196 at page 200 (La.App. 3 Cir. 1979):
‘... The trial court’s favored position in seeing and hearing live witnesses is especially important when the factual determination involves a concept as subjective as pain. Colorful inflections and subtle nuances given to spoken and physical expressions describing the degree of pain simply do not come out in the black and white transcription of testimony contained in the appellate record.’ ”

A review of the evidence shows no manifest error on the part of the trial judge in finding the plaintiff to be totally and permanently disabled due to substantial pain and therefore, that portion of the judgment will be affirmed.

PENALTIES AND ATTORNEY’S FEES

The trial judge awarded plaintiff compensation benefits at the rate of $68.80 per week from the date of the accident, less credit for the weeks compensation benefits were paid. He also found that the defendants’ refusal to pay benefits after plaintiff resigned from her job as Tel-Med operator on March 14, 1980, less than three weeks before trial, was arbitrary and capricious so he awarded plaintiff statutory penalties of 12% and $4,000.00 as attorney’s fees. The trial court committed manifest error in finding that the defendants’ refusal to resume benefits after March 14, 1980, was arbitrary and capricious. The record discloses that a conflict in up-to-date medical opinions existed at the time that plaintiff resigned from her job as a Tel-Med operator on March 14, 1980.

Between the date of the accident (July 3, 1976) and the date the defendants received Doctor Joffrion’s first report in late September 1979, the defendants received many reports from Doctors Banks, Lowrey, and Haddad. Most of these reports were encouraging and indicated that plaintiff’s condition was steadily improving. These reports referred only to a percentage of residual impairment of the hand; none indicated that plaintiff would suffer any pain by returning to work. Throughout this period of time, the defendants paid all of plaintiff’s medical expenses and paid compensation benefits of $68.80 per week for each week she was out of work as a result of the accident.

Doctor Joffrion examined plaintiff for the first time on or about September 25, 1979. Based on this examination he wrote a report indicating, among other things, that plaintiff must be experiencing pain as a result of her left hand injury. He did not believe that plaintiff could continue as an operator of a PBX machine, nor did he believe that she could be gainfully employed at that time, due to the injury. It must be remembered that plaintiff was receiving compensation of $68.80 per week when Doctor Joffrion made his bleak forecast for plaintiff’s future.

Subsequent to Doctor Joffrion’s initial report, plaintiff again was examined by Doctor Haddad on October 15, 1979, at which time he informed the defendants’ counsel that plaintiff was discharged from his care. To plaintiff’s hand Doctor Haddad assigned a residual impairment of 25% permanent partial disability. On his clinic notes pertaining to this last examination, Doctor Haddad noted that plaintiff was “about the same”, apparently referring to his most recent examination of plaintiff on August 8, 1979, when he opined that she could return to work.

On October 26, 1979, plaintiff voluntarily returned to work as an operator of the defendant hospital’s Tel-Med program. On February 28, 1980, plaintiff signed an employee resignation form. She stated that she was resigning because the injury to her left hand caused her constant pain even though her job as Tel-Med operator did not require the use of her left hand.

Prior to the effective date of her resigna-tion on March 14, 1980, plaintiff was examined one last time by Doctor Lowrey on March 11,1980. He assigned a 30% residual impairment of her hand but felt she could continue her work as a telephone operator. This final report by Doctor Lowrey prior to trial did not mention pain as a factor.

Finally, plaintiff was re-examined by Doctor Joffrion on March 25, 1980, one week before trial. He again reported to plaintiff’s attorney by letter dated March 25,1980, that plaintiff was obviously suffering from severe residual neurogenic pain in the left hand. Although the record is not completely clear on the subject, it appears that defendant received a copy of Doctor Joffrion’s second report no more than a week prior to trial, which was held on April 1, 1980.

To recapitulate, when plaintiff voluntarily returned to work on October 26,1979, the date her compensation payments were discontinued, the defendants had a September 25, 1979, report from Doctor Joffrion indicating that plaintiff was experiencing pain in her hand and could not return to work. However, the defendants also had a later conflicting report dated October 17, 1979, from Doctor Haddad indicating that plaintiff had a 25% permanent partial disability of her hand as a whole, but that she could return to work. His report did not mention pain as a factor.

At the time of trial on April 1, 1980, the defendants possessed a March 11, 1980, report from Doctor Lowrey wherein he assigned a 30% permanent partial disability of plaintiff’s hand as a whole. Like Doctor Haddad, Doctor Lowrey felt that plaintiff could continue her work as a telephone operator. His report, again like Doctor Had-dad’s, did not mention that plaintiff’s pain was substantial enough to prevent her from working. Finally, shortly before trial, defendants received a second report from Doctor Joffrion, wherein he reiterated his findings of pain and persisted in the view that plaintiff could not return to work.

When a workmen’s compensation insurer possesses up-to-date but conflicting medical opinions from two or more competent medical authorities, a decision to refuse compensation benefits based upon the report or reports which indicate the injured employee can return to work is not arbitrary or capricious. Lemoine v. Employers Casualty Company, 378 So.2d 594 (La.App. 3rd Cir. 1979), writ denied 380 So.2d 101 (La.1980); Johnson v. United States Fidelity & Guaranty Company, 276 So.2d 735 (La.App. 3rd Cir. 1973); Brooks v. Acme Carton Corporation, 312 So.2d 924 (La.App. 4th Cir. 1975), writ denied 318 So.2d 48 (La.1975).

Confronted with these up-to-date but very conflicting medical reports, there can be no question that the defendants were justified in basing their refusal to resume compensation payments after March 14, 1980, upon the medical reports supplied by Doctors Haddad and Lowrey.

In pursuing plaintiff’s claim for penalties and attorney’s fees, plaintiff’s counsel relies upon the following statement from Walker v. Gaines P. Wilson & Son, Inc., 340 So.2d 985 (La.1976), which was repeated in Carter v. American Mutual Liability Insurance Company, 386 So.2d 1072 (La.App. 3rd Cir. 1980):

“If, subsequent to an initial optimistic report, an insurer receives medical information showing disability at a subsequent date, the insurer may not blindly rely upon the earlier report and solely on its basis avoid penalties for arbitrary nonpayment of compensation benefits indisputably due a disabled workman.”

Although the above quote states an accurate principle of law, that principle has no application in this case because, after receiving Doctor Joffrion’s first report the defendants received a later report from Doctor Haddad who had been seeing the plaintiff frequently. Doctor Haddad’s October 17,1979 report indicated that plaintiff could return to work. (We note that a week later plaintiff did return to work.) Again, when plaintiff expressed her intention to resign from her Tel-Med job because of pain, she was sent to Doctor Lowrey, another specialist who was thoroughly familiar with the plaintiff’s case. He felt, as Doctor Haddad did, that plaintiff could continue her job as a telephone operator.

Rather than being analogous to the Walker and Carter cases, this case more closely resembles Hall v. Houston General Insurance Company, 377 So.2d 561 (La.App. 3rd Cir. 1979), writ denied 879 So.2d 10 (La.1980), wherein penalties and attorney’s fees were denied when the compensation insurer promptly responded to a pessimistic medical report by sending the plaintiff to another qualified physician for his evaluation.

For the above reasons, the judgment of the district court, insofar as it assessed penalties and attorney’s fees against the defendants, is hereby reversed; in all other respects it is affirmed.

Costs on appeal are assessed one-half to plaintiff-appellee, and one-half to defendants-appellants.

REVERSED IN PART, AFFIRMED IN PART, AND RENDERED.

      . A break in the lower end (i. e., near the wrist) of the radius, the outer of the two bones of the forearm (i. e., the bone which is on the thumb side of the forearm). The break is usually within an inch of the end of the bone, and the short fragment is usually displaced toward the back or hairy side of the forearm. The wrist is similarly displaced, and the hand is turned toward the thumb side of the forearm.

      . A condition resulting from pressure on the median nerve as it traverses the carpal tunnel, usually by fibers of the transverse carpal ligament. The condition is characterized by pain, tingling, burning, numbness, etc. in the areas supplied by the nerve, i. e., in the skin of the palm, fingers, wrist, etc. There may also be swelling of the fingers and atrophy of some of the muscles, especially those at the base of the thumb.

      . These conditions are explained in sections of Orthopaedics Principles and Their Applications by Samuel L. Turek, M. D., placed into evidence by the plaintiff. Both can result from injury to the median nerve and cause pain, swelling, stiffness, etc. in the hand.

      . The record shows that compensation was paid from July 3, 1976, to August 15, 1977, was discontinued while plaintiff was working from August 16, 1977, to February 15, 1979, and was paid again from February 16, 1979, to October 26, 1979, when plaintiff returned to work a second time. The amount of compensation paid totalled $6,467.20, representing 94 weeks at $68.80 per week. This amount exceeded the amount plaintiff would have been entitled to under the schedule for partial loss of use or function of the hand as set forth in La.R.S. 23:1221(4)(e) and (o).


author: GUIDRY, Judge.

text:
    Willie O. NASH et ux, Plaintiffs-Appellants, v. WESTERN CASUALTY AND SURETY COMPANY et al, Defendants-Appellees.
    No. 8096.
    Court of Appeal of Louisiana, Third Circuit.
    April 15, 1981.
    Writ Granted June 5, 1981.
    Thomas & Dunahoe, Edwin Dunahoe, Natchitoches, for plaintiffs-appellants.
    Gahagan & Gahagan, Fred S. Gahagan, Natchitoches, for defendants-appellees.
    Before GUIDRY, SWIFT, and LA-BORDE, JJ.
   GUIDRY, Judge.

Plaintiff-appellant, Willie O. Nash, filed this suit seeking a declaratory judgment decreeing that a policy of liability insurance issued by defendant, Western Casualty and Surety Company (hereafter Western) to Leonard Johnson provided coverage for property damage sustained by Nash as a result of a fire which destroyed plaintiff’s home. From a judgment of the trial court dismissing his claims, Nash has perfected this appeal. We affirm.

The record discloses that plaintiff made an application to the Natchitoches Parish Housing Authority for a grant to make certain improvements to the Nash residence. On January 17, 1979, a work agreement was signed by Nash, Leonard Johnson, the contractor, and Louis Reno, the director of the aforementioned Housing Authority. In addition to work not pertinent to this discussion, the agreement provided that Johnson was to install three heaters and connect any unconnected used heaters present in plaintiff’s house. After Johnson completed his work, plaintiff signed a document entitled, “Owner’s Acceptance of Rehabilitation Work” which served as an ac-knowledgement by plaintiff that the proposed work was completed to his satisfaction. On February 26, 1979, approximately three weeks following acceptance of the work, a fire completely destroyed the Nash residence. Subsequently, plaintiff filed suit against Leonard Johnson, the contractor, alleging that Johnson’s negligent installation of the heaters caused the fire which destroyed his home. Johnson failed to answer that suit and a default judgment was rendered against him in favor of Nash in the sum of $84,990.74.

Plaintiff then filed the instant suit seeking a declaration that the loss sustained by him was covered by an insurance policy issued to Johnson by Western.

The trial court determined that the fire originated in the living room of the Nash residence. Further, the trial court concluded that the heater in the living room was installed and in operation at the time that Johnson commenced his work at the Nash residence. Thus, the lower court determined that plaintiff had not proved that the sole and proximate cause of the fire was Johnson’s improper installation and venting of the space heater in the living room. Since the trial court concluded that the fire which resulted in plaintiff’s damages was not caused by negligence on the part of the named insured under the liability policy issued by the defendant, the lower court did not reach the issue of whether or not Johnson would have been covered under the subject policy had he been negligent.

The sole issue on appeal is whether or not the trial court was clearly wrong in its conclusion that Leonard Johnson, the named insured under the insurance policy issued by the defendant, did not install or connect the space heater which caused the fire which destroyed plaintiff’s residence.

A review of the record discloses that there exists a direct conflict in the statements of witnesses called to testify in the instant suit. Mr. Louis Reno, the Director of the Natchitoches Parish Housing Authority, stated that plaintiff expressed his com-píete satisfaction with the work done by Johnson on his home. Further, Reno testified that the only work done on the Nash residence was that specifically stated in the “work write-up”. We observe that that document makes no reference to the installation of a space heater in the Nash living room. Reno additionally stated that he observed upon a visit to the Nash home that the heater in the living room was installed and already in operation prior to the time that Johnson commenced his work. Contrary to Reno’s testimony is that of the plaintiff. Nash stated unequivocally that Johnson connected the living room heater and that he informed both Reno and Johnson of his displeasure with the manner in which the living room heater was connected and expressed his concern for the fact that the heater was not properly vented.

The role of the appellate court in reviewing the factual conclusions of the trial court is well settled. The standard of review as enunciated in Canter v. Koehring Company, 283 So.2d 716 (La.1973) and Arceneaux v. Domingue, 365 So.2d 1330 (La.1978) provides that the factual determinations of the trier of fact must not be disturbed unless a review of the trial record indicates that its conclusions are manifestly erroneous or clearly wrong. Our court in Harris v. Landry, 345 So.2d 242 (La.App. 3rd Cir. 1977), writ refused, 347 So.2d 262 (La.1977), stated:

"... where there is substantial conflict in the testimony, reasonable evaluation of credibility and reasonable inferences of fact made by the trier of fact, ..., should not be disturbed on appeal in the absence of manifest error. Pennington v. Panepinto, 328 So.2d 812 (La.App. 1st Cir. 1976)

See also, Reed v. Henry, 343 So.2d 457 (La.App. 3rd Cir. 1977); McMillan v. Travelers Insurance Company, 371 So.2d 1213 (La.App. 1st Cir. 1979).

We conclude that the trial court is in the best position to judge the credibility and demeanor of the witnesses and after reviewing the record in the instant case, we discern no “manifest error” on the part of the trial court. We need not reach the issue of whether or not the insurance policy issued by Western to Leonard Johnson is applicable to the present circumstances because we concur with the trial court’s conclusion that plaintiffs damages were not caused by the alleged negligence of Johnson.

For the above and foregoing reasons, the judgment of the trial court dismissing plaintiff’s suit is affirmed. All costs of this appeal are assessed against the plaintiffs-appellants.

AFFIRMED.

      . There appears to be no dispute among the parties that the fire did originate in the living room of the Nash residence and that the fire was caused by the space heater located in that room.


author: STOKER, Judge.

text:
    James Hardy ANDRIES, Defendant-Appellant, v. Linda James ANDRIES, Plaintiff-Appellee.
    No. 8099.
    Court of Appeal of Louisiana, Third Circuit.
    April 15, 1981.

      T. Gerald Henderson, Alexandria, for defendant-appellant.
    James Galloway, Alexandria, for plaintiff-appellee.
    Before CULPEPPER, FORET, and STOKER, JJ.
   STOKER, Judge.

This is an appeal from a judgment on a rule for contempt and to make alimony and child support payments executory. Judgment was rendered in favor of the plaintiff in rule, Linda James Andries, and against James Hardy Andries, defendant in rule. James Hardy Andries appeals.

The judgment on the rule which is on appeal in this case is one phase of the litigation which began when the appellant, James Hardy Andries, filed a petition for legal separation on June 30, 1976, in the Ninth Judicial District Court in Rapides Parish.

On September 23, 1976, appellee filed a rule to show cause praying for custody of the minor children and for alimony and child support. By judgment signed October 29, 1976, appellee was granted custody of the minor children and appellant was condemned to pay $150.00 per month alimony and $150.00 per month child support. During 1977 and 1978 appelle.e filed numerous rules for contempt and to make alimony and child support payments executory.

Subsequent to filing the petition for legal separation appellant moved to Houston, Texas. This move occurred in early January 1977. Appellant initiated divorce proceedings in Harris County, Texas, on July 7, 1977. A divorce judgment was rendered on October 28, 1977, by the 247th Judicial District Court of Harris County, Texas. The judgment made no award of alimony to the appellee and states that the court found that the child, Carmen Andries, was not under the jurisdiction of the court.

The appeal before us stems from a rule for contempt and to make alimony and child support payments executory filed on April 2, 1980, by the appellee. Appellant filed exceptions of no right or cause of action and res judicata. The asserted exceptions are based on the Texas divorce judgment. A judgment in the case before us was signed on July 14, 1980, overruling the exceptions and granting judgment in favor of appellee against the appellant for the sum of $5,580 in accumulated alimony and child support.

On appeal the appellant contends that the trial court erred in failing to sustain the exception of no cause of action. Appellant maintains that the law is clear that a foreign judgment of divorce which is entitled to full faith and credit abates an award of support previously granted in a Louisiana judgment.

Appellant specifies the issues before this court as:

1. Whether the Texas judgment is entitled to full faith and credit, and

2. Whether the Texas judgment abates the prior Louisiana judgment of support.

Louisiana is required to give full faith and credit to judgments of other states. Lewis v. Lewis, 395 So.2d 426 (La. App. 3rd Cir. 1981) No. 8020 on the docket of this court. Although the rule applies to foreign judgments of divorce, Louisiana is not obligated to give recognition and enforcement to such judgments if the court rendering them lacked jurisdiction. In this regard our state court may inquire into the jurisdictional basis of foreign courts. Upon a finding of no jurisdiction and absent an appearance or waiver by the complaining party, the examining state is not bound by a foreign judgment. Hampson v. Hampson, 271 So.2d 898 (La.App. 2nd Cir. 1972).

Jurisdiction in divorce matters is founded on domicile. Louisiana may make an independent inquiry into the issue of domicile in the foreign state. Hill v. Hill, 304 So.2d 922, (La.App. 1st Cir. 1974) citing Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577. The party attacking a foreign divorce decree bears the burden of proof on the issue and must conclusively show that the foreign court granting the decree was without jurisdiction based on domicile. Berry v. Berry, 307 So.2d 821 (La.App. 3rd Cir. 1975); Hill v. Hill, supra.

Under the above principles we may inquire into the factual question of whether appellant, James Hardy Andries, acquired a domicile in Texas so as to give jurisdiction to the Texas court which granted him a divorce. Domicile in this instance rests upon a showing of physical presence in the jurisdiction of the foreign court in Texas and an intent to remain there indefinitely. Hill v. Hill, supra. In our opinion the trial court was correct in overruling the exceptions filed by James Hardy Andries as the facts do not bear out an establishment of a good faith domicile within the jurisdiction of the Texas court.

The appellant husband in this ease argues that Louisiana must give the Texas judgment the same effect Texas would give it. Therefore, he urges, we must apply Texas law to determine the validity of the Texas judgment and cites Fountain v. Fountain, 365 So.2d 1139 (La.App. 3rd Cir. 1978). Fountain considered the issue of whether a Texas court had jurisdiction over children sufficient to sustain a decree of custody and whether such a decree was entitled to full faith and credit. In Fountain we held that the law governing whether the foreign court had jurisdiction is the law of the forum rendering the judgment. Under this rule we proceeded to determine the Texas law applicable to the situation.

Counsel for appellant in the case before us contends that the Texas judgment in this case is not subject to jurisdictional attack on the ground of non-compliance with Article 3.21 of the Texas Family Code because that provision of Texas law is not jurisdictional; it merely prescribes the qualifications a plaintiff must possess before plaintiff is entitled to procure a divorce. Under the concepts enunciated by the Supreme Court in Williams v. North Carolina, supra, Louisiana is entitled to use the traditional test for domicile (physical presence with intent to remain indefinitely), and compliance with Article 3.21 is not determinative of jurisdiction based on domicile. In addition, the cases cited by appellant regarding the jurisdictional nature of Article 3.21 merely hold that the residence requirement of Article 3.21 is not jurisdictional. They do not stand for the proposition that the six month domiciliary provision is non-jurisdictional.

In any event, appellant contends that although he did comply with Article 3.21, if it is found that he did not, he nevertheless, was domiciled in Texas because there is no evidence that he did not intend not to remain indefinitely. Appellant gives the following reasons for his move to Texas:

1. He worked offshore out of Galveston.
2. He wished to get away from the ap-pellee and his marital difficulties.
3. He wanted to obtain a divorce in Texas.

The appellee in this case argues that the appellant did not comply with Article 3.21 because there is no prima facie showing that the appellant lived in Texas for six months prior to filing for divorce. The testimony is to the effect that appellant moved to Texas in early January 1977 and filed for divorce on July 7, 1977. The ap-pellee contends the appellant was not domiciled in Texas so as to confer jurisdiction upon the Texas court to render a divorce judgment which is entitled to full faith and credit.

Appellee elicited the following facts at trial:

1. Appellant moved to Texas shortly after January 1, 1977, and lived with his brother and his brother’s wife.
2. Appellant did not pay rent or utilities; he did share food costs.
3. Appellant never registered to vote in Texas and retained his Louisiana voter registration.
4. Appellant’s pay checks were mailed to Otis, Louisiana.
5. Louisiana income tax was still withheld from appellant’s pay check as he never informed his employer that he moved.
6. Appellant left Texas immediately after judgment was rendered, and upon his return to Louisiana married again.

After a consideration of the evidence bearing on the factors stressed by appellant and appellee we have some doubt as to whether appellant actually established physical presence in Texas except on a transient basis. In any event it is clear that appellant never had any intent to remain in Texas permanently. Appellee has borne her burden of proof. We find that the trial court was not clearly wrong in its rulings and judgment. Therefore, the Texas judgment of divorce in appellant’s favor, which is not entitled to full faith and credit, did not result in an abatement of the Louisiana judgment ordering appellant to make support payments.

For the reasons assigned the judgment of the trial court is affirmed.

AFFIRMED.

      . Appellant testified that his intention to remain in Texas was changed by the fact that he remarried, and since his wife was from Rapides Parish, Louisiana, they returned there so she could stay with relatives on occasions when he worked offshore.


author: SWIFT, Judge.

text:
    AMERICAN MOTORS INSURANCE COMPANY et al., Plaintiffs-Appellees, v. Barbara LEGER et al., Defendants-Appellants.
    No. 8105.
    Court of Appeal of Louisiana, Third Circuit.
    April 15, 1981.

      Davidson, Meaux, Sonnier & Roy, M. Candice Hattan, Lafayette, for plaintiffs-appellees.
    Harold L. Savoie, McBride & Brewster, Glynn Rozas, Lafayette, for defendants-appellants.
    Before GUIDRY, SWIFT and LA-BORDE, JJ.
   SWIFT, Judge.

This is principally a subrogation suit instituted by plaintiffs, American Motorist Insurance Company (American) and Joyce Stockstill, to recover damages from the defendants, Barbara Leger and her daughter, Katherine Guillot, which resulted to Mrs. Stockstill’s 1978 Ford from a collision with a truck while the automobile was being driven by Katherine Guillot. The defendants filed a third party demand against State Farm Mutual Automobile Insurance Company (State Farm), allegedly their own public liability insurer. The trial court held in favor of the plaintiffs on the main demand and dismissed the defendants’ third party demand against State Farm. The defendants have perfected this appeal. We affirm.

On November 10, 1977, Dale Stockstill, the son of Joyce Stockstill, drove his mother’s car to the residence of a friend, Brenda Duhon. Dale parked the automobile in Mrs. Leger’s driveway which was adjacent to Miss Duhon’s residence. While Dale was visiting with Miss Duhon, Katherine Guil-lot, a 15 year old unlicensed driver, got in the Stockstill automobile and drove away. The testimony as to whether or not she had permission to do so was conflicting. Subsequently, Miss Guillot collided with a truck owned by Institutional Foods Sales that was being driven by Warren Gardiner, Jr.

The principal demand is for $3,024 as the sum paid by American to Mrs. Stockstill for the total loss of the automobile, less its salvage value, and $100 as the amount of deductible paid by Mrs. Stockstill. Apparently, Katherine Guillot is Mrs. Leger’s daughter by a prior marriage, but she resided with Mr. and Mrs. Leger at the time of the accident. Mrs. Leger was her tutrix when the suit was filed, but Katherine Guil-lot was made a defendant upon reaching majority. The defendants contend in their third party demand that any liability on their part was covered under the policy of automobile liability insurance issued to Mr. Leger by State Farm.

No reasons for the judgment were given by the trial judge, but it is obvious he determined that the accident was caused through the negligence of Katherine Guillot and plaintiffs had established the full amount of the damages demanded. It is equally clear he found that Miss Guillot did not have permission to drive the Stockstill vehicle and therefore coverage was excluded by the following provision in State Farm’s policy:

“(b) with respect to non-owned automobiles,
(1) the named insured,
(2) any relative, but only with respect to a private passenger automobile or trailer, provided his actual operation or (if he is not operating) the other actual use thereof is with the permission or reasonably believed to be with the permission, of the owner and is within the scope of such permission.”

The only issue raised by the defendants on appeal is whether or not the trial court erred in dismissing ■ the defendant’s third party demand. They contend Miss Guillot had actual permission, from Dale Stockstill and implied consent of Mrs. Leger to operate the car.

The evidence on this issue is in conflict. A court of appeal should not disturb the findings of the trial court when there is a conflict in the testimony unless it is clear they are “manifestly erroneous.” Canter v. Koehring Co., 283 So.2d 716 (La.1973). “Manifestly erroneous” in its simplest terms means “clearly wrong.” Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Our review of the record in the instant case reveals that the trial court’s factual determination in regard to permission is not clearly wrong.

For the foregoing reasons, the judgment of the district court is affirmed. All court costs are assessed against the defendants-appellants, Barbara Leger and Katherine Guillot.

AFFIRMED.


author: LABORDE, Judge.

text:
    Kenneth Austin GUINN, Plaintiff-Appellant, v. PROGRESS DRILLING, INC., Defendant-Appellee.
    No. 8106.
    Court of Appeal of Louisiana, Third Circuit.
    April 15, 1981.
    Michael Harson, Lafayette, for plaintiff-appellant.
    Young, McMahon & Levert, George J. Richaud, New Orleans, for defendant-appel-lee.
    Before GUIDRY, SWIFT and LA-BORDE, JJ.
   LABORDE, Judge.

In this tort suit, plaintiff, Kenneth Austin Guinn, sued defendant, Progress Drilling, Inc., seeking to recover damages for personal injuries he sustained when part of a diesel engine fell on his foot. Progress Drilling, Inc. filed a motion for summary judgment claiming to be Guinn’s statutory employer under Louisiana’s Workmen’s Compensation Law and therefore immune from tort liability. LSA-R.S. 23:1032,1061. The trial judge granted defendant’s motion for summary judgment and dismissed Guinn’s suit. Guinn appeals. We affirm. We hold that defendant was Guinn’s statutory employer because the work performed by Guinn was part of defendant’s trade, occupation or business. Additionally, we hold that LSA-R.S. 23:1061 is constitutional.

In written reasons for judgment the learned trial judge ruled:

“The motion for summary judgment is granted. The care, maintenance and repair of the defendant’s machinery and equipment is an integral part of its business — the exploration for and production of oil, gas and minerals. It is of no consequence that the particular work assigned to or undertaken by plaintiff herein was of a more serious nature than that usually done by defendant’s other mechanics, shown to have been at the job site. The evidence established that the activity, the repair of a diesel engine used to power chemical mud mixers on its drilling rig, was essential to the employer’s business. See Arnold v. Shell Oil Company, 419 F.2d 43 (5th Cir. 1969). See also, Malone’s Workmen’s compensation Law & Practice Ch. 6, page 153. The constitutional attack by able counsel for plaintiff is rejected.
Plaintiff’s remedy is under the Louisiana Workmen’s Compensation statutes.” (Tr. 180).

Whether the work performed by Guinn is part of defendant’s trade, occupation or business and whether LSA-R.S. 23:1061 is constitutional are the issues on appeal.

Guinn was employed as a diesel mechanic for Industrial Engine Warehouse, Inc. On December 12, 1977, he went to repair a diesel engine on a land oil rig owned by the defendant. The diesel engine powered the mixers and pumps used to supply drilling mud for the drilling operations. An adequate supply of drilling mud is essential to the operation of the oil rig.

There are two diesel engines mounted side by side on the same metal skid placed on the floor of the oil rig. The clearance between the two engines is approximately one foot. In order to properly repair the engine, plaintiff needed to remove the blower assembly on the side of the engine. The blower assembly, including the fuel and water pump, weighs from 75-80 pounds. Due to the closeness of the engines, plaintiff needed to walk sideways holding the blower assembly at chest height to move it clear of the engines. While carrying the blower assembly, plaintiff slipped on some oil or drilling mud and the blower assembly fell on his foot.

LSA-R.S. 23:1061 provides that a principal is liable for workmen’s compensation benefits to the employees of an independent contractor who are injured on the job if that contractor is performing work which is a part of the principal’s trade, business or occupation. The exclusive remedy provision of LSA-R.S. 23:1032 is applicable to such a principal.

In Vincent v. Ryder Enterprises, Inc., 352 So.2d 1061, 1068 (La.App. 3rd Cir. 1977), this court set out four requirements for the application of LSA-R.S. 23:1061:

(1) The relationship of principal-contractor (as distinguished from another type of relationship, i. e., vendor-vendee) must exist.
(2) There must be a contract between the principal and contractor for the execution by the contractor of the whole or any part of the work being undertaken by the principal.
(3) The “work” which is the subject of the contract must be part of the principal’s trade, business or occupation.
(4) The injured employee must be engaged in the execution of the “work” as described above.

Guinn disputes only the existence of the third requirement. The defendant often hired outside mechanics when its own mechanics were unavailable or unable to perform the necessary repairs. It is settled that ordinary maintenance and repairs are part of an employer’s regular business, trade and occupation. Barnes v. Sun Oil Co., 362 So.2d 761 (La.1978); Duplechin v. Pittsburgh Plate Glass Co., 265 So.2d 787 (La.App. 3rd Cir. 1972); Redler v. Louisiana Power & Light Co., Inc., 383 So.2d 409 (La.App. 4th Cir. 1980). Guinn contends the repair work performed by him is unlike that performed by defendant’s own mechanics taking his work outside the scope of defendant’s regular business, trade or occupation. However, the determination of whether a principal is the statutory employer of a contractor’s employee is not dependent upon the principal having employees performing the same task.

The undisputed facts presented show that plaintiff undertook to repair a diesel engine located on defendant’s oil rig. For a principal to be a statutory employer, the contractor’s employee must be engaged in an activity which is essential to the principal’s business. See Vincent, supra. Applying this test to the facts presented, we conclude the repair of such equipment is essential to the defendant’s business. Thus, the defendant is entitled to judgment as a matter of law recognizing it as plaintiff’s statutory employer under LSA-R.S. 23:1061.

The plaintiff alleges LSA-R.S. 23:1061 is unconstitutional since it denies him a remedy in tort against a principal who often does not have to respond in workmen’s compensation due to the right of indemnity granted the principal against the contractor. See Malone and Johnson, Louisiana Civil Law Treatise, Worker’s Compensation (2d ed., 1980), §§ 128-129, pp. 263-270. The plaintiff’s remedy under LSA-R.S. 23:1061 is made exclusive by LSA-R.S. 23:1032. LSA-R.S. 23:1032 has repeatedly withstood constitutional attack. Perez v. Continental Cas. Co., 367 So.2d 1284 (La. App. 3rd Cir. 1979), writ den., 369 So.2d 157 (La.1979); Branch v. Aetna Cas. & Sur. Co., 370 So.2d 1270 (La.App. 3rd Cir. 1979); Flynn v. Devore, 373 So.2d 580 (La.App. 3rd Cir. 1979) and Bazley v. Totorich, 397 So.2d 475 (La.1981).

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

AFFIRMED.


text:
    Walter CLEMENT et al., Plaintiffs-Appellants, v. MARION CORPORATION et al., Defendants-Appellees.
    No. 8107.
    Court of Appeal of Louisiana, Third Circuit.
    April 15, 1981.

      Privat & Regan, Thomas K. Regan, Crowley, for plaintiffs-appellants.
    Plauche, Hartley, Lepeyre & Ottinger, Patrick S. Ottinger, Lafayette, Gordon, Arata & McCollam, Sara Shackleton and John A. Gordon, New Orleans, for defendants-appellees.
    Before GUIDRY, SWIFT and LA-BORDE, JJ.
   SWIFT, Judge.

The plaintiffs, Walter M. Clement, Columbus F. Clement, James T. Clement, Joseph F. Clement and Elvie M. Clement Hopkins filed this suit against the defendants, Marion Corporation and Cypher Properties, Inc., seeking to recover damages allegedly resulting from drilling operations on their land. The trial court granted judgment in favor of the Clements and against the defendants for the sum of $5,117.00. The Clements appeal, seeking an increase in the award. We affirm.

The Clements are the owners in indivisión of a thirty-six acre tract of land in Acadia Parish, Louisiana which was leased for the purposes of oil and gas exploration by the defendant, Cypher Properties. In 1977, the defendant Marion Oil Corporation, the operator of the lease, drilled a well on the tract. The well, being a dry hole, was plugged and abandoned on October 18, 1977. The lease contained the following provision:

“In the event that operations are conducted on the land herein leased, Lessee shall within ninety (90) days after cessation of such operations, fill all pits and restore the land to its original condition as near as practicable.”

In an attempt to restore the land to its original condition, the defendants performed clean-up operations on two or three occasions in 1978. The plaintiffs, unsatisfied therewith, instituted this suit. The trial court awarded the plaintiffs $2,000.00 for the purpose of additional cleaning of the property, $257.00 for the cost of repairing a fence and $2,860.00 for the loss of timber, a total of $5,117.00.

The Clements contend that the trial court erred in awarding only $2,000.00 for the cost of restoring the property to its original condition. The trier of fact is vested with “much discretion” in determining an award. LSA-C.C. Art. 1934(3). Before a Court of Appeal may disturb an award by a trial court, the record must clearly reveal that the trier of fact abused its discretion. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976). Only after a review of the facts and circumstances peculiar to the case at hand may a reviewing court determine an award made by the trier of fact is inadequate or excessive. Reck v. Stevens, 373 So.2d 498 (La.1979).

As pointed out above, the duty of the defendants was to “restore the land to its original condition as near as practicable.” The original condition of the land was partly pine forest and partly cypress low land. After the drilling operation and clean-up effort, the land was relatively level, however, some levees and fallen timber remained. In their clean-up efforts, the defendants expended over $17,000.00. The defendants’ expert testified that it would cost between $1,000.00 and $1,500.00 to complete the clean-up operation. The plaintiffs’ expert testified that it would require $2,900.00 to complete the clean-up operation.

From our review of the record we are unable to say that the trial court’s award of $2,000.00 for the completion of the clean-up operations on the property was an abuse of its discretion.

The Clements also argue that the trial court’s award did not include any sums to restore the property to its original slope and grades, for restoration of its fertility and crop productivity and as damages for the defendants’ failure to complete the clean-up work within 90 days after cessation of operations as required by the mineral lease. The judge determined that the land could be practicably restored to its original condition and awarded the amount he found was necessary to do so. The testimony of the experts as to the best future use of the land was conflicting and the trier of fact evidently concluded that the plaintiffs had failed to establish with the required degree of certainty that they have or will sustain any losses in these respects.

The plaintiffs’ property was wooded land and no agricultural crop has ever been grown thereon. Just how productive the approximately 3.23 acre well site will be, or would have been if the well had never been drilled, is highly speculative. And in the latter case it is obvious that considerable expense would necessarily be incurred to convert such timberland to profitable agricultural use. It was not shown what loss, if any, the plaintiffs sustained through the delay in the clean-up operations.

Before a factual determination of a trial court can be disturbed, an appellate court must find that the record indicates the trier of fact was manifestly erroneous or clearly wrong. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). We are unable to find that the trial court was clearly wrong in concluding the plaintiffs failed to prove their claims for such additional damages.

We conclude, as did the trial judge, that payment for the timber destroyed, the fence damages and to restore the land as near as practicable to its original condition fulfilled the defendants’ obligations under the lease.

For the foregoing reasons, the judgment of the district court is affirmed. All court costs are taxed to the plaintiffs-appellants.

AFFIRMED.


text:
    Paul Leroy HEATH et ux., Plaintiffs-Appellants, v. NORTHGATE MALL, INC. et al., Defendants-Appellees.
    No. 8109.
    Court of Appeal of Louisiana, Third Circuit.
    April 15, 1981.

      Moore & Walters, Charles R. Moore, Baton Rouge, for plaintiffs-appellants.
    Fontenot & Hurlburt, David A. Hurlburt, Lafayette, for defendants-appellees.
    Before GUIDRY, SWIFT and LA-BORDE, JJ.
   LABORDE, Judge.

Plaintiffs, Paul Leroy Heath and his wife Barbara Jean Heath, sued Northgate Mall, Inc., and its liability insurer, Aetna Casualty and Surety Company seeking to recover damages sustained by Mrs. Heath when she fell in a large rain-filled hole in the parking lot at Northgate Mall, Inc. The trial court granted judgment in favor of plaintiffs and against defendants in the amount of $1,500 in general damages and $374.25 in special damages. The trial court also concluded that the fall did not precipitate or aggravate an umbilical hernia and disallowed those damages. The sole issue on appeal in whether the trial court erred in its determination that the fall did not cause or aggravate the umbilical hernia. We affirm. The record supports the trial judge’s determination that plaintiffs failed to prove by a preponderance of the evidence that the fall caused or aggravated the umbilical hernia.

On March 7,1978, Mrs. Heath, her daughter and a friend were shopping in the Northgate Mall in Lafayette, Louisiana. It was a rainy day and the parking lot had many large puddles of water. When Mrs. Heath was returning to her car, she stepped into a large hole in the pavement and fell forward onto the parking lot. The trial court held that the cause of Mrs. Heath’s fall was the failure of Northgate Mall, Inc. to properly maintain the parking lot and awarded damages for injuries sustained by Mrs. Heath to her hands, knees, legs and stomach.

The plaintiffs contend that the umbilical hernia was caused by the accident. In so doing, plaintiffs rely on the presumption that a medical condition producing disability is presumed to have resulted from an accident, if before the accident the injured person was in good health but shortly after the accident the disabling causing condition manifested itself, provided there is a reasonable possibility of causal connection between the accident and the condition.

Although the above cited presumption is usually applied in workmen’s compensation cases, Lucas v. Ins. Co. of North America, 342 So.2d 591 (La.1977); Lindsey v. H. A. Lott, Inc., 387 So.2d 1091 (La.1980), this court has applied it in personal injury cases. Roy v. Robin, 173 So.2d 222 (La.App.3rd Cir. 1965). However, in order for the presumption to apply, the plaintiff must prove that she was in good health prior to the accident and that there is a causal relationship between the accident and the condition. The record indicates that Dr. Bolin, the physician who treated Mrs. Heath for the hernia, stated that the hernia had pre-existed the fall by several months, therefore, Mrs. Heath was not in good physical condition prior to the accident and the presumption does not apply-

The plaintiffs also contend that even though the umbilical hernia pre-existed the fall, she is entitled to recover because the fall aggravated the condition to the point where surgery was necessary. Romero v. Flo-Tel, Inc., 332 So.2d 596 (La.App. 3rd Cir. 1976). The trial court specifically considered this contention but held that the accident did not in fact aggravate the preexisting hernia. An appellate court will not disturb a trial court’s factual determination unless a review of the record indicates the decision of the trial court is manifestly erroneous or clearly wrong. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La. 1978). Our review of the record reveals no errors in the trial court’s factual determinations.

Dr. Hernandez, the physician who treated Mrs. Heath in the emergency room of Lafayette General Hospital immediately after the accident did not notice the hernia. Dr. Hoffpauir, who examined Mrs. Heath on March 24, 1978, more than three weeks after the fall, did not notice the hernia. Dr. Bienvenu examined Mrs. Heath on March 8, 1978, the day after the accident. He did not discover the hernia. The hernia was not discovered by Dr. Bienvenu until April 4, 1978, almost a month after the fall. We cannot say that the trial court was clearly wrong in determining that the plaintiffs failed to prove by a preponderance of the evidence that the fall caused or contributed to the development of the umbilical hernia.

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

AFFIRMED.


author: FORET, Judge.

text:
    Michael Joseph VOLKER, Plaintiff-Appellant, v. Victoria McGlone VOLKER, Defendant-Appellee.
    No. 8126.
    Court of Appeal of Louisiana, Third Circuit.
    April 15, 1981.

      Knoll & Knoll, Kerry L. Spruill, Marks-ville, for plaintiff-appellant.
    Ben C. Bennett, Jr., Marksville, for defendant-appellee.
    Before CULPEPPER, FORET and STOKER, JJ.
   FORET, Judge.

Michael Joseph Volker (Plaintiff) brought this action for divorce against his wife, Victoria McGlone Volker (Defendant). The trial court rendered judgment in favor of defendant, dissolving forever the bonds of matrimony existing between the parties and condemned the plaintiff to pay alimony to defendant. Plaintiff appeals only from that part of the trial court judgment which awards alimony to the defendant.

FACTS

Plaintiff and defendant were married on November 19, 1977, in Dupont, Louisiana. Plaintiff is a member of the armed services and was assigned to a post overseas approximately one week after the marriage. The parties lived together as husband and wife only for this one-week period.

Defendant obtained a judicial separation from plaintiff on April 21, 1978. Plaintiff then instituted this action for divorce on June 4, 1980, and alleged as the ground therefor LSA-R.S. 9:302 which provides, in pertinent part, that:

“When there has been no reconciliation between the spouses for a period of one year or more from the date the judgment of separation from bed and board was signed, either spouse may obtain a judgment of divorce.”

Defendant answered plaintiff’s petition and incorporated therein a reconventional demand in which she sought to have a judgment of divorce rendered in her favor (apparently her reconventional demand was also based on LSA-R.S. 9:302) and to be awarded alimony in the amount of $350.00 per month.

The trial of this action was held on August 22, 1980. The trial court rendered judgment in favor of defendant and against plaintiff decreeing an absolute and final divorce between the parties, and condemning plaintiff to pay $100.00 per month in alimony to defendant. As mentioned above, plaintiff appeals only from that portion of the judgment condemning him to pay alimony.

ALIMONY ■

Plaintiff argues that under the clear provisions of LSA-C.C. Article 160, defendant is in no way entitled to alimony in any amount.

LSA-C.C. Article 160 provides that:

“Art. 160. Alimony after divorce
Art. 160. When a spouse has not been at fault and has not sufficient means for support, the court may allow that spouse, out of the property and earnings of the other spouse, alimony which shall not exceed one-third of his or her income. Alimony shall not be denied on the ground that one spouse obtained a valid divorce from the other spouse in a court of another state or country which had no jurisdiction over the person of the claimant spouse. In determining the entitlement and amount of alimony after divorce, the court shall consider the income, means, and assets of the spouses; the liquidity of such assets; the financial obligations of the spouses, including their earning capacity; the effect of custody of children of the marriage upon the spouse’s earning capacity; the time necessary for the recipient to acquire appropriate education, training, or employment; the health and age of the parties and their obligations to support or care for dependent children; any other circumstances that the court deems relevant.
In determining whether the claimant spouse is entitled to alimony, the court shall consider his or her earning capability, in light of all other circumstances.
This alimony shall be revoked if it becomes unnecessary and terminates if the spouse to whom it has been awarded remarries.

(Amended by Acts 1964, No. 48, § 1; Acts 1979, No. 72, § 1, eff. June 29, 1979.)”

Alimony after divorce is awarded to a spouse only if that spouse proves that she or he has insufficient means for her/his maintenance. Maintenance includes only the basic necessities of life, such as food, clothing and shelter. The earnings of the wife are considered “means” for her support. Vanier v. Vanier, 344 So.2d 1077 (La. App. 3 Cir. 1977); Ward v. Ward, 339 So.2d 839 (La.1976).

Plaintiff presented evidence of the fact that defendant is currently employed by Central Louisiana Electric Company (CLECO) earning $4.36 per hour, or approximately $755.73 per month.

The record further reveals the following:

1. There were no children born or conceived during the marriage of plaintiff and defendant;
2. That defendant is 21 years of age;
3. That defendant has no major financial obligations; and,
4. That there are no children dependent on defendant.

We find that defendant has sufficient means to provide herself with the basic necessities of life and, therefore, the trial court erroneously awarded her alimony under LSA-C.C. Article 160.

For the above and foregoing reasons, the judgment of the trial court condemning plaintiff to pay alimony to defendant is reversed. The trial court judgment is affirmed in all other respects.

Costs of this appeal are assessed against defendant-appellee.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

      . We mention the following in passing, although it has no moment with respect to the issues before us. Plaintiff had achieved the rank of in the U.S. Army at the time of trial, and his base pay was $720.00 per month. However, the trial judge found that plaintiff was effectively earning $1200.00 per month when his service-connected fringe benefits were added in.

      . LSA-C.C. Article 160 was amended by Acts 1979, #72, § 1, effective June 29, 1979 to remove all gender-based references from that article.