author: SWIFT, Judge.

text:
    Inez CRADER, Plaintiff-Appellant, v. CASUALTY RECIPROCAL EXCHANGE, Defendant-Appellee.
    No. 8518.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1982.
    Baggett, McCall, Singleton & Ranier, Drew Ranier, Lake Charles, for plaintiff-appellant.
    Brame, Bergstedt & Brame, Joseph A. Brame, Lake Charles, for defendant-appel-lee.
    Before CULPEPPER, SWIFT and LA-BORDE, JJ.
   SWIFT, Judge.

In this workmen’s compensation suit Inez Crader is seeking benefits for total and permanent disability from Casualty Reciprocal Exchange, her employer’s insurer. Following trial on the merits judgment was rendered in favor of plaintiff awarding her weekly compensation from June 11 through October 9,1980, together with unpaid medical bills and charges. Her claims for penalties and attorney’s fee were denied. The plaintiff has perfected this appeal. We affirm.

The plaintiff, Inez Crader, is a 38 year old short order cook who sustained a fall at Emery’s Restaurant in Welsh on February 10, 1979. Plaintiff alleges that she injured her lower back when she fell while carrying a box of gallon jars of salad dressing. Weekly benefits were paid beginning February 15, 1979, through June 11, 1980, at a rate of $77.00 per week. The total amount paid was $5,313.00. Defendant also paid all of Ms. Crader’s medical expenses through the date that weekly benefits were terminated.

The plaintiff continued to work and fell again on February 14, 1979. She was then treated by her family physician, Dr. Angle-rill, who subsequently referred her to Dr. Clark Gunderson, an orthopedic surgeon in Lake Charles. Dr. Gunderson saw her on nine occasions thereafter. She was also seen by a Dr. Akins. At the request of the defendant, Ms. Crader was seen by Dr. Norman Morin, an orthopedic surgeon, in May and October of 1980.

The assessments of the plaintiff’s physical condition by Drs. Gunderson and Morin varied greatly. On his original examination of Ms. Crader in March of 1979 Dr. Gunder-son concluded that she had a lumbar straining type injury. After subsequent visits during the period from April of 1979 through July of 1980, his opinion was the same and he thought the plaintiff would probably still have pain lifting, bending and standing for long periods. He did not know if it would be disabling, saying that this would depend on the person. The doctor opined that the plaintiff would have a five per cent impairment, but added that a lumbar straining injury was not necessarily permanent.

Several tests were made on Dr. Gunder-son’s orders. One was a neurological examination by a Dr. Shamiel, which included an electromyogram of plaintiff’s right leg. Another was a myelogram performed by a Dr. Johnson. These produced negative findings.

Dr. Norman Morin saw the plaintiff twice following the negative diagnostic studies by Drs. Shamiel and Johnson. On each occasion this doctor felt that the plaintiff had completely recovered from her prior injury and that she was either exaggerating symptoms caused by excessive weight or was a malingerer.

The plaintiff called two relatives and a friend to support her claim of disabling pain. However, she did not present the testimony of either Dr. Anglerill or Dr. Akins. There was a conflict in the testimony of plaintiff and her employer as to when the accident was reported and prior problems with the plaintiff’s knee.

The principal issue on appeal is whether the denial by the trial court of an award to plaintiff either for permanent total or partial disability was manifestly erroneous.

In his written reasons for judgment the trial judge stated that he was unimpressed by Dr. Gunderson’s treatment of plaintiff. Obviously, he was not impressed by his opinion in regard to disability and with plaintiff’s testimony in this respect.

The standard of review in such a case was expressed by this court in Guidry v. Davis, 382 So.2d 250 (La.App. 3 Cir. 1980), as follows:

“It is also well settled that the jury or trial judge may, and should, assess the credibility of experts who testify at the trial, as well as that of lay witnesses, to determine the most credible and realistic evidence and the fact finder’s determination of the credibility of those witnesses will not be disturbed unless found to be clearly erroneous. Green v. State, Southwest Louisiana Charity Hosp.; 309 So.2d 706 (La.App. 3 Cir. 1975), Monette v. Aet-na Cas. & Sur. Co., 352 So.2d 423 (La.App. 3 Cir. 1977). After weighing and evaluating all of the medical evidence, and in most cases the lay testimony, relating to the injuries sustained by a plaintiff, the jury or trial judge may accept or reject the opinion expressed by any medical expert, depending upon how he is impressed with the qualifications and the testimony of that expert. Touchet v. Fidelity and Casualty Co. of New York, 264 So.2d 752 (La.App. 3 Cir. 1972).”

In the instant case the trial court was definitely more impressed with the qualifications and testimony of Dr. Morin and chose to accept his expert medical opinion rather than that opinion of Dr. Gunderson. Except for muscle spasms noted on earlier examinations, Dr. Gunderson’s testimony reflects that his opinion as to pain and impairment was based only on subjective complaints. His notes did not reflect whether or not he found any muscle spasm on the date he last examined her. Also, his testimony as to pain the plaintiff may suffer in the future falls short of establishing that it will be substantial or disabling. On the other hand, Dr. Morin supported his opinion that the plaintiff had completely recovered from her injury when he saw her by tests and relating the plaintiff’s inconsistent and often medically impossible complaints. The plaintiff was last seen by Dr. Gunderson in July of 1980. Dr. Morin, however, examined her both in May and October of the same year.

Presumably, the testimony of Drs. Angle-rill and Akins would have been adverse to the plaintiff’s position.

Prom our review of the record we cannot say that the trial court was clearly wrong.

The plaintiff’s brief contains no mention of her claim for penalties and an attorney’s fee, so we assume such claim has been abandoned. In any event, we do not find that the termination of compensation benefits on the basis of Dr. Morin’s medical report was arbitrary, capricious or without probable cause.

For the foregoing reasons, the peremptory exceptions filed in this court by appellee are overruled and the judgment of the trial court is affirmed. All costs of this appeal are assessed against the plaintiff-appellant.

AFFIRMED.

      . After the appeal was lodged the defendant filed in this court “PEREMPTORY EXCEPTIONS OF NO RIGHT AND/OR NO CAUSE OF ACTION,” alleging that subsequent to the trial on the merits the plaintiff filed a claim for unemployment benefits and certified that she is capable of returning to work. Consequently, she no longer has a claim for total and permanent disability. Both sides have presented this court with affidavits in regard to this allegation. However, such evidence is not in the record on appeal. Therefore, it is not before this court and cannot be considered by us. Capital Bank and Trust Company v. Lacey, 393 So.2d 668 (La.1980). The peremptory exceptions will be overruled.

      . Probably Dr. William G. Akins, a Lake Charles orthopedic surgeon.


source: Caselaw Access Project

author: LABORDE, Judge.

license: Public Domain

text:
    Eve A. RICHARD, Plaintiff-Appellant, v. Joseph A. TRAHAN, et al., Defendant-Appellee.
    No. 8787.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1982.
    Andrus & Preis, Edwin Preis, Lafayette, for plaintiff-appellant.
    Randall K. Theunissen, Lafayette, for defendant-appellee.
    Before CULPEPPER, SWIFT and LA-BORDE, JJ.
   LABORDE, Judge.

This is a suit by plaintiff, Eve A. Richard, to recover damages for injuries she allegedly sustained in a rear-end collision with the defendant, Joseph A. Trahan. The trial court rendered judgment against the defendant in the amount of $14,580.00. The plaintiff appeals the issue of quantum. We affirm.

On the evening of April 15, 1978, the plaintiff, Eve A. Richard was driving in her automobile in a westerly direction towards her house. The defendant, Joseph A. Tra-han, was following her in his vehicle, as they had previously agreed. Through inattentiveness, Mr. Trahan collided with the rear-end of plaintiff’s automobile.

At trial, the plaintiff offered proof that she suffered some injuries as a result of the April, 1978, accident. The deposition of Dr. Corbett J. LeBouef, Jr. was entered into evidence. In his deposition Dr. LeBouef testified that he treated plaintiff after the accident in April, 1978, and described her injuries as an acute cervical neck syndrome, upper thoracic strain, and contusions of the forehead. He saw her in June of 1978, when she began to experience pain in the low lumbar area. By August of 1978, plaintiff was discharged from Dr. LeBouef’s care. In August of 1979, Eve Richard returned to Dr. LeBouef complaining of low back pain, for which she was then hospitalized and placed in traction. Dr. LeBouef did not see plaintiff subsequent to September 19, 1979, for any complaints with reference to the April, 1978, accident.

On March 20, 1980, Eve Richard was involved in another automobile accident in which she was re-injured. Dr. LeBouef stated that she was examined the next day and the diagnosis was an acute cervical neck syndrome type of condition. The pain was in the same location but on the opposite side as resulted from the April, 1978, accident. In his deposition Dr. Louis C. Blanda, Jr. stated that in September of 1980, he diagnosed plaintiff as having a traumatic degenerative disc injury with little likelihood that future surgery would be necessary. Ms. Richard suffered temporary disability and still experiences minor pain from these injuries. The physicians did testify that plaintiff was predisposed to the second injury by her first accident.

The trial court concluded that the defendant’s negligence was the sole cause of the accident and held him liable. It also concluded plaintiff had recovered from the first accident by August, 1978, with one flare-up in August of 1979, and was doing well when she was re-injured in March 1980. The court awarded plaintiff $12,-500.00 for pain and suffering and $2,080.00 for medical expenses. The plaintiff appeals the issue of quantum.

The sole issue is whether the trial court abused its much discretion in awarding damages to plaintiff. Plaintiff argues that the damages awarded were “clearly inadequate and unsupported by the record.”

Our law provides in LSA-C.C. art. 1934 that in the assessment of damages, the judge has much discretion. The standard of appellate review for such trial court determinations was set forth in Coco v. Winston Industries, Inc., 341 So.2d 332 (La. 1967);

“We do reemphasize, however, that before a Court of Appeal can disturb an award made by a trial court that the record must clearly reveal that the trier of fact abused its discretion in making its award.”

The Supreme Court further elaborated on this standard in Reck v. Stevens, 373 So.2d 498 (La.1979), wherein it stated:

“Thus, the initial inquiry must always be directed at whether the trier court’s award for the particular injuries and their effects upon this particular injured person is, a clear abuse of the trier of fact’s ‘much discretion’, La.Civ.C. art. 1934(3) in the award of damages. It is only after articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review, for articulated reason, be considered either excessive, Carollo v. Wilson, 353 So.2d 249 (La.1977); Schexnayder v. Carpenter, 346 So.2d 196 (La.1977), or insufficient, Olds v. Ashley, 250 La. 935, 200 So.2d 1 (1967). Only after such determination of abuse has been reached, is a resort to prior awards appropriate under Coco for purposes of then determining what would be an appropriate award for the present case.”

In its written reasons, the trial judge, in discussing plaintiff’s injury, stated:

“The plaintiff has proven she suffered injuries as a result of the accident. There is a problem with causation, though, since plaintiff was in another accident in March of 1980 and sustained similar injuries then. Dr. LeBouef treated plaintiff after her first accident and described her injuries as an acute cervical neck syndrome, upper thoracic strain, and contusions of the forehead. In June of 1978 she began to experience pain in the low lumbar area. By August plaintiff was discharged from Dr. LeBouef’s care. It was not until August of the next year (1979) that plaintiff went back to Dr. LeBouef complaining of low back pain. She was hospitalized then and placed in traction. After this, plaintiff was doing well until the car accident of March 20, 1980 when she was reinjured. The doctors testified she was predisposed to this second injury by her first accident. Dr. Blanda in September 1980 diagnosed plaintiff as having a traumatic degenerative disc injury with little likelihood future surgery will be necessary. Plaintiff suffered temporary disability and still experiences minor pain from these injuries. The Court concludes plaintiff had recovered from the first accident by August 1978 with one flare-up in August 1979. She was doing fine until March 1980 when she was re-injured.”

In assessing damages, the court concluded, “In recognition of the injury she in fact suffered as a result of the first collision, the Court awards plaintiff TWELVE THOUSAND, FIVE HUNDRED AND NO/100 ($12,500.00) DOLLARS for pain and suffering and TWO THOUSAND, EIGHTY AND NO/100 ($2,080.00) for medical expenses.” After carefully reviewing the record before us, we conclude that the trial court did not abuse its much discretion in awarding damages.

For the above reasons, the judgment of the trial court is affirmed at plaintiff-appellant’s cost.

AFFIRMED.


text:
    In the Matter of the Interdiction of John M. AARON.
    No. 8813.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1982.

      Gahagan & Gahagan, Russell E. Gahagan, Natchitoches, for plaintiff-appellant.
    Harrington & Harrington, Eric E. Harrington, Natchitoches, for defendant-appel-lee.
    Before CULPEPPER, SWIFT and LA-BORDE, JJ.
   SWIFT, Judge.

On May 17, 1971, a judgment of interdiction was rendered against John M. Aaron. His wife, Ellen Rae Aaron, was appointed as curatrix. On June 1, 1981, Mr. Aaron filed this proceeding against the curatrix to revoke the interdiction, alleging that he had recovered completely from his former mental illness and was presently competent to take care of his person and administer his estate.

A hearing was held on August 27, 1981. Petitioner’s counsel called Mrs. Aaron on cross-examination and presented the testimony of the plaintiff and five lay witnesses. Counsel also offered five certificates from physicians to which the defendant objected to as being hearsay. After the objection was sustained the certificates were proffered. In addition petitioner offered in evidence the deposition of Dr. Charles É. Cook, a general practitioner and coroner for Natchitoches Parish, whose testimony as to the plaintiff’s mental competency was objected to and sustained on the ground that he was not an expert in the fields of psychology and/or psychiatry.

After the presentation of petitioner’s case in chief the defendant moved for a dismissal of the action under LSA-C.C.P. Art. 1810(B). The judge granted the motion, finding that the plaintiff had failed to present competent medical evidence to show Mr. Aaron is now capable of caring for his person or estate and that the lay testimony weighed to the contrary.

The principal issues presented by this appeal are whether the trial court erred in granting the dismissal and in failing to admit in evidence the five medical certificates and Dr. Cook’s deposition.

In a proceeding to set aside an interdiction the burden of proof is on the petitioner to establish that the interdiction should be terminated. Fuqua v. Fuqua, 311 So.2d 568 (La.App. 3 Cir. 1975).

Under Article 1810(B) the judge in a non-jury case, upon a motion for a judgment of dismissal being filed, should weigh and evaluate all the evidence presented at that point and grant a dismissal if the petitioner has not established his case by a preponderance of the evidence. Sevin v. Shape Spa for Health & Beauty, Inc., 384 So.2d 1011 (La.App. 4 Cir. 1980); Standard Mach., etc. v. So. Pac. Transp. Co., 410 So.2d 842 (La.App. 3 Cir. 1982), writ denied, 414 So.2d 377 (La.1982).

Before discussing whether the evidence supported the conclusion reached by the trial court, we will consider the two evidentiary rulings complained of by the plaintiff on this appeal; i.e., excluding the five doctors’ certificates and Dr. Cook’s testimony as to plaintiff’s mental competency.

In Bland v. Interstate Fire and Casualty Co., 311 So.2d 480 (La.App. 4 Cir. 1975), counsel for the plaintiff attempted to offer the deposition of a doctor, accompanied by a certificate of the doctor’s physician stating that the witness was unable to testify because of sickness. Defendant objected to the offer, but the trial judge overruled the objection. The appellate court held that the trial court had erred in this ruling stating, “[T]he medical certificate offered in support of the introduction of the deposition was clearly hearsay evidence and should have been excluded.”

In the present case we find that the trial court properly determined that the five certificates were hearsay and excluded them from evidence.

In regard to the exclusion of Dr. Cook’s opinions as to the plaintiff’s mental condition, we recognize that the qualification of an expert witness rests within the sound discretion of the trial court and his determination will not be disturbed except for a showing of manifest error. Roberts v. Tiny Tim Thrifty Check, 367 So.2d 64 (La.App. 4 Cir. 1979); and Maddox v. Percy, 351 So.2d 1249 (La.App. 1 Cir. 1977), writ denied 353 So.2d 1336 (La.1978).

In the present case the evidence reveals that Dr. Cook graduated from the University of Arkansas, School of Medicine, in May, 1952, and is a licensed practicing physician and surgeon in the City and Parish of Natchitoches. He is the coroner for that parish and has served as such for the past 18 years. Dr. Cook was the coroner who examined and certified that Mr. Aaron needed to be committed in 1971. The doctor testified that he has been involved both in his practice and position of coroner with many persons who were mentally disturbed or emotionally upset. He felt capable of reaching opinions as to their mental condition because of his experience, reading about the subject and his contacts with psychiatrists. He has done this for 18 years.

At the taking of Dr. Cook’s deposition defendant’s counsel accepted the physician’s expertise as a general practitioner of medicine, but objected to any statements he might make in the areas of psychology or psychiatry. This objection was reiterated at the trial and it was sustained. However, the deposition was otherwise admitted in evidence. The objection should have been overruled.

LSA-C.C. Art. 393 provides:

“Proof of mental incapacity. The acts of imbecility, insanity or madness must be proved to the satisfaction of the judge, that he may be enabled to pronounce the interdiction, and this proof may be established as well by written as by parol evidence; and the judge may, moreover, interrogate, or cause to be interrogated by any other person commissioned by him for that purpose, the person whose interdiction is petitioned for, or cause such person to be examined by physicians or other skillful persons, in order to obtain their report, upon oath, on the real situation of him who is stated to be of unsound mind.” [Emphasis added.]

This article does not limit such testimony to psychiatrists. “[Pjhysicians or other skilled persons” may also testify in an interdiction proceeding.

Generally, the fact that a medical doctor is not a specialist in a particular field applies only to the effect or the weight to be given such testimony, not to its admissibility. McCastle v. Woods, 180 So.2d 421 (La.App. 1 Cir. 1965); Frye v. Joe Gold Pipe & Supply Co., 50 So.2d 38 (La.App. 2 Cir. 1951).

In this case we find that the trial court abused its discretion in sustaining the objection to Dr. Cook’s opinion as to petitioner’s mental condition. That the physician is not a psychiatrist does not establish his lack of qualification on the subject, but it is to be considered in determining the weight to be given to his testimony.

This brings us to the question of whether the plaintiff has established by a preponderance of the evidence submitted in his case in chief (including the excluded testimony of Dr. Cook) that the interdiction should be removed.

At the hearing the petitioner’s wife testified that her husband still has to take medication for his illness and visit the mental health center. He is supposed to take lithium and Mellaril each day, but he does not always do so. When he does not take the medication his behavior worsens. At times he will rave and rant. Mr. Aaron is very seldom on an even keel. When he is on a “low” he becomes depressed and sleeps most of the time. When he is on a “high” he talks to persons who are not there and answers the phone when it has not rung. Petitioner is awake almost every night and walks around the house. A typical daily schedule is for him to fix his breakfast after midnight, leave around 4:00 a. m. and not come back until the afternoon. He does not bathe regularly. He has burned three mattresses while smoking in bed and sometimes his waste paper basket catches on fire. He has trouble handling money which generally has been limited to his social security check of $167.00 per month. He has not drunk alcohol for about five years.

The petitioner, who is 61 years old, disputed Mrs. Aaron’s testimony in many respects. He insisted that he took four lithium tablets and one Mellaril tablet daily. However, on the advice of a nurse at the mental health center he stopped taking his medication one weekend in January, 1981. He thought he got along all right, but admitted that he felt bad and must have acted differently. He is not taking medication for his diabetes and high blood pressure, because tests have shown this is no longer necessary. He visits the mental health clinic once every four weeks to see a Dr. Boswell. He has not had a drink (one source of his original problem) for over ten years. Mr. Aaron believes that he will be able to take care of his personal needs and business if the interdiction is removed.

Three witnesses, who knew petitioner for over 45 years, testified that he is the same now as he was before he had his problems which caused his commitment to Central Louisiana State Hospital. Two of them expressed the opinion that he can now handle his own affairs.

Julius Aaron, Jr., the petitioner’s 80 year old brother, testified that he has seen his brother almost daily for about five or six hours a day. He is the same now as before he had the problem for which he was sent to the state mental hospital and is able to take care of his own business.

Hannah Hankins, petitioner’s sister, stated that he visited her practically every day and frequently has lunch at her house. She cannot see any difference between his condition today and before he became ill. She sees no reason why he cannot take care of his personal and business affairs. She said that plaintiff became upset in January, 1981, when his son threatened to take him back to the state mental hospital because he had seen his lawyer about a proceeding to set aside the interdiction.

The deposition of Dr. Charles Cook revealed that the petitioner visited him in June, 1981, for fifteen minutes and visited on August 20, 1981, for thirty minutes. The doctor had examined Mr. Aaron in 1971 and recommended that he be sent to Central Louisiana State Hospital. His diagnosis was a manic depressive schizophrenic, with the illness having been aggravated by alcohol abuse. The doctor was told the plaintiff had not had a drink in 12 years. The petitioner’s condition is currently in a state of remission and is controlled by the medication. However, Dr. Cook admitted that “most true manic depressives, when off the medication for as long as a week, will show some manifestations of their primary illness .. . whether it be the manic phase or the depressive phase.” The doctor believed that Mr. Aaron was taking his medication as he tried to provoke him, but Aaron did not respond with anger. However, Dr. Cook said it is possible that Mr. Aaron may have been able to control his emotions during the interviews even if he had been off the medication. Dr. Cook’s opinion was that petitioner can handle his affairs.

While we are reluctant to disagree with the trial judge in these matters, we are convinced from our review of the record, including Dr. Cook’s opinions, that the preponderance of the evidence submitted thus far is to the effect that the interdict is capable of caring for his person and estate and there is no actual necessity for his interdiction. Therefore the trial court erred in sustaining the defendant’s motion to dismiss.

For these reasons, the judgment of the district court is reversed and this case is remanded to that court for further proceedings in accordance with law. Taxation of court costs will await final judgment.

REVERSED AND REMANDED.

      . LSA-C.C.P. Art. 1810(B) provides:
      B. In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.


text:
    Elaine NATION, Plaintiff-Appellant, v. Jay MILLER, Individually and as Executive Director of the Housing Authority of the City of Crowley, La., and Housing Authority of the City of Crowley, La., Defendants-Appellees.
    No. 8834.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1982.

      William I. Jones and Herb Whitaker, Lafayette, for plaintiff-appellant.
    Miller, Miller & Craton, Jack Derrick Miller, Crowley, for defendants-appellees.
    Before CULPEPPER, SWIFT and LA-BORDE, JJ.
   LABORDE, Judge.

From a judgment denying her the right to litigate her suit in forma pauperis, plaintiff suspensively appeals. We affirm.

Seeking a declaratory judgment, a permanent injunction and damages, Elaine Nation filed suit against the Housing Authority of the City of Crowley, and against Jay Miller, both individually and as director of the Housing Authority. The suit was filed on August 20, 1981, and on that date an order was signed by the Clerk of Court authorizing plaintiff to litigate the action without payment of costs of court in advance or as they accrued. On the same date, the Clerk of Court filed a rule to traverse plaintiff’s right to proceed in for-ma pauperis. Following a hearing on the rule, the trial court concluded that plaintiff was not entitled to proceed in forma pau-peris. Accordingly, the order permitting the suit to be prosecuted in that manner was set aside and plaintiff was ordered to pay the costs of the suit within sixty (60) days or suffer its dismissal. From this judgment, plaintiff suspensively appeals.

On appeal, plaintiff questions (1) whether a clerk of court has a right of action to traverse an order permitting plaintiff to proceed in forma pauperis and (2) whether the lower court abused its discretion in concluding that plaintiff was not entitled to proceed in forma pauperis.

Plaintiff is correct in her contention that a clerk of court is without right to traverse her right to proceed in forma pau-peris. Code of Civil Procedure Article 5184 permits an “adverse” party to traverse the truth of an applicant’s claim of poverty. In Futch v. Coumes, 347 So.2d 1121 (La.1977), the Supreme Court, in footnote 6, implied that a clerk of court is not an adverse party by stating:

“6. Neither the respondent clerk nor the opposing party has made any appearance in this court to oppose the applicant’s proceeding in forma pauperis. From this we infer that the respected clerk of court recognizes that his public office, constitutionally created to serve litigants, is not properly concerned with contesting the privilege of a litigant entitled to proceed in forma pauperis, insofar as the grant or denial of the right means less or more revenues for his office.”

Even though a clerk is not an adverse party and thus is without right to bring a rule to traverse, after the rule was filed, it was tried by counsel for defendants who are adverse parties and as such could have formally joined in the rule or filed their own rule. Plaintiff did not question the procedure until the case had progressed to the appeal level at which time it was too late for defendants to file their own rule. However, in view of the fact that a rule was filed, that the contradictory hearing was conducted by the proper parties, and especially because the trial court has the given authority and duty to subject in for-ma pauperis orders to continuing scrutiny to prevent abuse, we decline the invitation from plaintiff to dismiss the rule to traverse and to reinstate the initial order allowing plaintiff to proceed in forma pauper-is because the rule was filed by the clerk of court.

The next issue, and the more important one, is whether the lower court abused its discretion in concluding that plaintiff was not entitled to proceed in forma pauperis.

At the hearing on the rule to traverse, it was established that plaintiff is divorced from her husband and has custody of their six minor children. She earns a gross income of $1000 a month which results in a net income slightly in excess of $774 each month. Additionally, she receives child support from her former husband in the amount of $500 a month. Plaintiff’s net income totals $1,274 a month. According to her Affidavit of Financial Status, plaintiff’s expenses total $1,300. Little corroboration of the expenses was offered by plaintiff at the hearing and in fact, counsel for defendants through his cross examination of plaintiff raised some doubt regarding the amount of plaintiff’s monthly food bill as well as repayment of loans she received from her mother, both items of which comprise part of plaintiff’s listed expenses.

Additional facts which the court had before it in reaching its decision as to plaintiff’s right to proceed in forma pauperis were that plaintiff is not heavily in debt and that she owns unencumbered assets.

At the conclusion of the hearing, the trial judge, after comparing plaintiff’s monthly net income of $1,274 to her monthly expenses of $1,300, noted that we are in a period of inflation and that “almost every member of the society of which we are all members are under financial strain or stress through greater or lesser degree.” He then concluded, “However, I do not believe that the forma pauperis action is designed to cover situations such as this...”

Our law is settled that, in the absence of clear abuse, appellate courts do not disturb the trial court’s discretion in granting or denying the privilege to proceed in forma pauperis, based upon that court’s factual determination of the litigant’s ability or inability to pay the court costs. Houston v. Brown, 292 So.2d 911 (La.App. 2nd Cir. 1974); Bodcaw Co. v. Enterkin, 273 So.2d 325 (La.App. 3rd Cir. 1973).

Primarily to the trial court is entrusted the duty, on the one hand to permit a qualified indigent the privileges granted by the act so as not to deprive him of the opportunity of having his claim adjudicated simply because he is financially unable to meet the cost requirement of asserting his claim in court, but on the other to see that such privileges granted by¡ the act are not abused. See Benjamin v. National Super Markets, Inc., 351 So.2d 138 (La.1977) and cases cited therein.

Under these circumstances, we cannot say that the trial court abused its discretion or erred in finding that plaintiff was not entitled to proceed in forma pau-peris.

For the above reasons, we affirm the lower court judgment at plaintiff-appellant’s cost. The case is remanded to the district court for further proceedings in accordance with law.

AFFIRMED AND REMANDED.


author: CUTRER, Judge.

text:
    Robert C. TILLMAN, Plaintiff-Appellant, v. Dr. Isiah J. LAWSON, Defendant-Appellee.
    No. 8843.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1982.

      Darrel D. Ryland, Marksville, for plaintiff-appellant.
    Harry A. Hammill, Alexandria, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.

      . The proper spelling of defendant’s name is “Dr. Isaiah J. Lawson.”

   CUTRER, Judge.

This appeal emanates from a malpractice suit filed against a dentist.

Robert C. Tillman consulted Dr. Isaiah Lawson, a dentist, for repair of his upper front four teeth. Following the repair work Tillman developed an acute abscess in the area of repair. Further dental work was performed by a Dr. Robert Johnson to relieve the pain caused by the abscess. Tillman filed suit against Dr. Lawson contending that Dr. Lawson “failed to exercise the standard of care in rendering professional services to the same degree of skill ordinarily employed under similar circumstances by the members of that specialty in good standing.” From an adverse judgment by the trial judge, plaintiff appeals. We affirm.

The issue presented on appeal is whether the trial court erred in concluding that Tillman had failed to meet his burden of proof.

FACTS

Tillman was performing with a musical group known as “Wisdom.” He decided that, for cosmetic purposes, he needed to have his upper four front teeth refilled. His friend, Mrs. Peggy Wallace, of Marks-ville, Louisiana, recommended Dr. Lawson of Alexandria. Pursuant to an appointment made by Mrs. Wallace, Tillman consulted Dr. Lawson on Friday, July 27, 1979.

Dr. Lawson testified that Tillman informed him of the cosmetic reason for the dental repair work. Upon examination Dr. Lawson found the four upper front teeth to be decaying and the prior fillings needed replacing. He also found that Tillman had poor oral hygiene, in that, the gum tissues were diseased to some extent. After observing these conditions, Dr. Lawson took “bitewing” x-rays in order to ascertain if there were any pathological problems in the area of the subject teeth. Dr. Lawson stated that a permanent type x-ray (Panorex) was not indicated for the type of work he intended to perform. He testified that the “bitewing” x-ray examination before filling teeth is the procedure that is normally accepted and is commonly used by dentists in the Alexandria area.

Dr. Lawson stated that his clinical examination along with a viewing of the x-rays did not reveal any evidence of the existence of a cystic sac or pus at the apex of any of the roots of the teeth in the area. He explained that if the existence of such a cystic sac or pus in the area would have been found, this would indicate that, instead of refilling the teeth, a root canal procedure would have been proper. Having found no such condition existing, Dr. Lawson informed Tillman that the cosmetic work could be achieved by either of three methods: (1) remove the existing fillings and refill; (2) extract the teeth and replace them with a partial bridge; or (3) root canal therapy along with a capping of the teeth. Tillman stated that he may consider the second or third methods at some later time, but he preferred at the time to have the teeth refilled. Dr. Lawson proceeded with the filling of the teeth without incident.

The following day, Tillman’s jaw was swelling and he was in pain. A telephone call to Dr. Lawson resulted in the dentist calling a drug store in Marksville and prescribing medication for the condition. The next day, July 29th, Tillman saw Dr. Robert Johnson, a dentist in Marksville, complaining of pain and swelling in the area of the teeth that had been worked upon.

Dr. Johnson stated that when he saw Tillman, he found that an abscess had manifested itself in the area of the upper lateral incisor. He relieved the problem by draining the area. Tillman was seen by Dr. Johnson the following day. Dr. Johnson took x-rays which confirmed the existence of an acute abscess in the area. This condition indicated that a chronic abscess condition had existed in the area for an extended period of time which had manifested itself. Two of the teeth appeared to be non-vital due to a nerve loss. Dr. Johnson did not perform any dental work on this occasion, but prescribed medication.

Tillman saw Dr. Johnson on September 10, 1979. Tillman stated that he had incurred some intermittent swelling since he had last seen Dr. Johnson on July 30th. Dr. Johnson again took x-rays and proceeded with performing root canal therapy on three of the teeth. This work was done on visits of September 10, 11, 14 and 22, 1979. During this procedure, Tillman incurred swelling in the area caused by flare-ups of the abscess.

Dr. Johnson next saw Tillman on January 29, 1980. Tillman was complaining of periodic swelling in the palatal area. Dr. Johnson recommended that Tillman see an oral surgeon. This was the last time Dr. Johnson saw Tillman.

Dr. Johnson expressed the opinion that Dr. Lawson failed in his duty to Tillman by rendering a “misdiagnosis” of the condition. Dr. Johnson felt that Dr. Lawson should have diagnosed the existence of the chronic abscess. Dr. Johnson was of the opinion that this misdiagnosis led to improper treatment by Dr. Lawson.

The question arises as to whether Dr. Lawson was negligent in his examination and diagnosis of Tillman’s condition.

A plaintiff’s burden of proof in a medical malpractice suit is set out in La.R.S. 9:2794 which states, in pertinent part:

“A. In a malpractice action based on the negligence of a physician licensed under R.S. 87:1261 et seq., or a dentist licensed under R.S. 37:751 et seq., the plaintiff shall have the burden of proving:
(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians or dentists licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances: .. .
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill, and
(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.”

The statute also provides that injury alone does not raise a presumption of the physician’s (dentist’s) negligence.

As to the diagnostic duties required of a dentist or a physician, an error of diagnosis is not malpractice per se. A physician or dentist is not obligated to always be correct in making a diagnosis. A diagnosis is an act of professional judgment and, in case of a misdiagnosis, malpractice exists only if it results from a failure by a physician or dentist to exercise the standard or degree of care in diagnosing which would have been exercised by a member of his profession in good standing in his locality, under similar circumstances. Borne v. Brumfield, 363 So.2d 79 (La.App. 4th Cir. 1978).

Also, 70 C.J.S. Physicians and Surgeons § 48, page 961, states:

“... Whether a physician was negligent in making a diagnosis must be determined in light of conditions existing and facts known at the time thereof, and not in the light of knowledge gained through subsequent developments....”

With these principles in mind, we must determine whether Dr. Lawson was negligent in failing to diagnose a dormant chronic abscess condition in the area of the subject teeth.

This issue was before the trial court as a result of the testimony of Dr. Johnson. This dentist arrived at his conclusion of “misdiagnosis” by Dr. Lawson, based upon what he saw when Tillman consulted him two days after Dr. Lawson’s diagnosis and procedure. At that time, the dormant chronic infection had manifested itself by swelling and causing pain. Such condition was apparent to Dr. Johnson upon observation and the x-rays confirmed the clinical findings. Dr. Johnson stated that the existence of the dormant abscess pre-dated the work of Dr. Lawson. He also testified that a dormant abscess condition could become acute at any time. He could not say that the manifestation of the condition was caused by the filling of the teeth by Dr. Lawson. The manifestation could have resulted from several other causes. He felt that the dental work could possibly have caused the manifestation or it could have been merely a coincidence. Based upon his findings, Dr. Johnson concludes that Dr. Lawson was negligent in not detecting the condition.

Dr. Johnson testified that he did not know what procedure Dr. Lawson used in making his diagnosis nor did he know what the conditions were at the time of Dr. Lawson’s examination. He did not criticize the use of the “bitewing” x-ray as a method of examination nor did he have an opportunity to examine the x-rays taken by Dr. Lawson. Dr. Johnson based his conclusion on knowledge gained through developments that occurred after Dr. Lawson’s examination and dental work.

Dr. Lawson stated that when he examined Tillman there were no clinical signs of the presence of the chronic, dormant abscess. There were no pockets of pus present along the gums, nor was there any excretion of pus from them. His x-rays did not indicate a cystic sac or a dormant abscess situation. Dr. Lawson stated that if such a condition would have been indicated to him he would not have filled the teeth but would have used the root canal therapy.

As we examine the record in light of the authorities cited heretofore, we conclude that Tillman has failed to prove that Dr. Lawson was negligent in his diagnosis or that he failed to meet the required standard of knowledge, skill and care as set forth in LSA-R.S. 9:2794.

The evidence preponderates that a chronic infection existed prior to Dr. Lawson’s examination and diagnosis, but we do not deem him negligent in his examination and diagnosis. It is undisputed that the method of examination utilized by Dr. Lawson was the method of examination customarily used by the dental profession in the locality of Alexandria, Louisiana. Dr. Lawson found no signs of the chronic infection condition of the area. His diagnosis, after such examination, is an act of professional judgment and the failure to diagnose the condition under the circumstances, does not elevate the diagnosis of Dr. Lawson to that of negligence. We find no manifest error when the trial court rendered judgment rejecting Tillman’s demands.

For these reasons, the judgment of the trial court is affirmed. The plaintiff-appellant is to pay all costs of this appeal.

AFFIRMED.

      . “Bitewing” x-rays are made by placing the small film behind the teeth as the x-ray is taken. It takes about 35 seconds to develop for reading. These x-rays are not processed for a permanent record.

      . Dr. Lawson was a general practitioner, thus, the “specialty” provisions of the statute are not applicable and are deleted.


author: DOMENGEAUX, Judge.

text:
    Dianne Dauzat BELL, Plaintiff-Appellee, v. Robert Bruce BELL, Defendant-Appellant.
    No. 8852.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1982.
    Eugene P. Cicardo and Robert L. Beck, Jr., Alexandria, for defendant-appellant.
    Knoll & Knoll, Jerry L. Spruill, Marks-ville, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY, and CUTRER, JJ.
   DOMENGEAUX, Judge.

In this domestic relations matter, defendant Robert Bruce Bell appeals an adverse judgment which was rendered in favor of his wife, Dianne Dauzat Bell.

Dianne sued Robert for a separation from bed and board alleging as grounds therefor that he was guilty of mental and physical cruelty towards her. Robert answered and reconvened, seeking a separation based on his wife’s cruel treatment and abandonment. Pursuant to hearing on a rule nisi, Mrs. Bell was awarded custody of the three minor children, child support of $200.00 per month per child, and alimony pendente lite of $700.00 per month. Additionally, defendant husband was ordered to pay all medical, dental and pharmaceutical bills of plaintiff and the three children.

The husband subsequently filed a motion to decrease alimony and child support and change of custody whereby he sought custody of the minor son, Robert Bruce Bell, Jr. These rules were consolidated for hearing with the trial on the merits.

Pursuant to trial on the merits, the district judge granted Dianne a separation from bed and board. Custody of the minor child, Robert Bruce Bell, Jr., was changed to the father by agreement of both parents, and child support was reduced accordingly to a total of $400.00 per month. Robert was ordered to pay Dianne $550.00 per month as alimony and to keep in force and effect a group hospitalization insurance policy issued through his employment, and which included Dianne as an insured.

On this appeal by the husband, the issues are:

1. Whether the trial court was manifestly erroneous in granting the plaintiff a separation based on the defendant’s mental and physical cruelty towards her.

2. Whether the court was clearly wrong in the amount of its award to plaintiff of alimony pendente lite and child support.

In Hebert v. Brazzel, 393 So.2d 135 (La.App. 3rd Cir. 1980) this Court reiterated the law concerning appellate review of factual issues:

“Our review of factual issues is controlled by the principle established by the Supreme Court in Canter v. Koehring Company, 283 So.2d 716 (La.1973) and Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). In those two cases, the standard of review to be applied to factual determinations by the trier of fact, whether judge or jury, was declared to be manifest error. Manifest error was defined as meaning clearly wrong. Therefore, our review of the factual determinations consists of a review of the record to establish whether or not they are clearly wrong.”

As an appellate court we must give great weight to the reasonable evaluations and inferences of fact made by the trial court. In this instance there is insufficient evidence to hold that the trial court was clearly wrong in its conclusions.

The record adequately supports the district judge’s finding that the defendant was guilty of acts of mental and physical cruelty to his wife. The testimony of the litigants is replete with instances of Robert’s mentally and physically abusive treatment of Dianne. Although the husband denied the occurrence of most incidents cited, the trial court evidently chose to place more belief in the testimony of the wife. Such a conclusion represents a reasonable evaluation of testimony and credibility of the witnesses, all of which is well founded in the record. Therefore we will not disturb the lower court’s judgment concerning the grounds for granting plaintiff a separation from bed and board.

Additionally, we find that the amount of child support and alimony pen-dente lite which the trial court ordered defendant to pay, does not appear to be an abuse of his discretion. The record supports the conclusion that the total child support award of $400.00 per month is a fair representation of the circumstances of both parents’ ability to pay and the needs of the children, as is the alimony pendente lite award of $550.00 per month.

The trial court’s decision is therefore affirmed, and all costs are assessed to the defendant-appellant.

AFFIRMED.


text:
    Sylvia SISTRUNK, et al., Plaintiffs-Appellants, v. SUN OIL COMPANY, et al., Defendants-Appellees.
    No. 8856.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1982.
    Burnett, Sutton, Walker & Calloway by Glenn E. Walker, Shreveport, Simon, Fitzgerald, Cook & Reed, Chatham H. Reed, Shreveport, for plaintiffs-appellants.
    Gahagan & Gahagan, Russell E. Gahagan, Natchitoches, Edmond M. Thomas, S. Maurice Hicks, Lunn, Irion, Switzer, Johnson & Salley, Frank M. Walker, Jr., Jerald L. Perl-man, Mayer, Smith & Roberts, Mark Goodwin, Shreveport, Provosty, Sadler & deLau-nay, Albin Provosty, Trimble & Associates, James T. Trimble, Jr., Alexandria, for defendants-appellees.
    Before CULPEPPER, SWIFT and LA-BORDE, JJ.
   LABORDE, Judge.

Plaintiffs appeal from a judgment dismissing their suit against Darby Equipment Company, Inc., based on Darby’s declinato-ry exception of lack of jurisdiction in per-sonam over it. Darby’s exception was based on the grounds that it is a foreign corporation which has never been licensed to do business in Louisiana; has never done business or conducted any business therein; and has no offices, officers, employees, or agents in Louisiana on whom process may be validly served. The exception was heard on September 30, 1981, and in a judgment rendered without written reasons, the trial court maintained the exception and dismissed plaintiffs’ suit against Darby. We reverse and remand in order to allow plaintiffs to amend their petition as provided by LSA-C.C.P. art. 932.

This suit for damages was filed by the widow and children of Harold Sistrunk who was electrocuted in Sabine Parish, Louisiana, on March 11, 1980, when an A-frame mounted on a truck on which he was working came in contact with an energized electric overhead wire. By supplemental and amending petition, plaintiffs sued Darby Equipment Company, Inc. Darby filed an exception to the personal jurisdiction of the Court over it. The exception was sustained and the suit was dismissed as to Darby. Plaintiffs appeal and allege that the trial court erred in holding that it was without personal jurisdiction over Darby and in the alternative, in not permitting plaintiffs to amend in order to remove the ground for objecting.

Plaintiffs, although they did not allege it in their petition, rely on Louisiana’s Long Arm Statute, which is contained in LSA-R.S. 13:3201 et seq., to support the proposition that Darby is amendable to suit in Louisiana LSA-R.S. 13:3201, pertinent hereto, 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;
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(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;”
Jfs }(C S« Hi sfc sfc

In Soileau v. Evangeline Farmer’s Co-op, 386 So.2d 179 (La.App. 3rd Cir. 1980), this court discussed the limits of jurisdiction under Louisiana’s Long Arm Statute as follows:

“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).”

Continuing, we added that the finding of jurisdiction over non-residents involves an evaluation of the factual circumstances of the case in light of federal constitutional principles. Basically, these principles are that in order for the proper exercise of jurisdiction in personam over a nonresident, 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). Concluding, we stated that 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).

Returning to the facts of the present case, we note that the only evidence introduced at the trial of the exception was the original and amended petitions and the citation and return to Darby. After reviewing these, we agree with the lower court that it is without jurisdiction over Darby.

We next consider whether plaintiffs should have been allowed to amend their petition in order to remove the ground for objecting.

The lack of jurisdiction over the person is a declinatory exception which merely retards the progress of the action rather than defeats it. LSA-C.C.P. arts. 923, 925, 928 and 932. Therefore, when the grounds of the objection may be removed by amendment of the petition or other action of the plaintiff, “. .. the judgment sustaining the exception shall order the plaintiff to remove them within the delay allowed by the court.” LSA-C.C.P. art. 932. It is only if the grounds of objection cannot be removed or if the plaintiff fails to comply with an order requiring such removal within the delay allowed by the court, that the suit will be dismissed. LSA-C.C.P. art. 932.

Under the facts of the instant case, we hold that the lower court erred in dismissing the suit against Darby without first affording plaintiffs an opportunity to cure the defect by amendment of their petition.

For the above reasons, we reverse the district court’s judgment sustaining Darby’s exception to the lack of jurisdiction over the person and dismissing plaintiffs’ suit. These proceedings are remanded to the trial court to enter an order allowing plaintiffs a delay within which to amend their petition. The ease is to be dismissed only upon noncompliance with such an order. Costs of this appeal are assessed against one-half against appellants and one-half against ap-pellees.

REVERSED AND REMANDED.


text:
    Julian CLARY, Plaintiff-Appellant, v. NABORS-SUN DRILLING & OPERATING COMPANY, INC., et al., Defendants-Appellees.
    No. 8859.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1982.
    Writ Denied Oct. 1, 1982.
    Brittain & Williams, Joseph Payne Williams, Natchitoches, for plaintiff-appellant.
    Lunn, Irion, Switzer, Johnson & Salley, Jack E. Carlisle, Jr., Shreveport, for defendants-appellees.
    Before CULPEPPER, SWIFT and LA-BORDE, JJ.
   SWIFT, Judge.

Julian Clary filed a rule to show cause against his employers, Nabors-Sun Drilling & Operating Company, Inc., and Sun Company, Inc. (Nabors-Sun), and their worker’s compensation insurer, Royal Globe Insurance Company (Royal), seeking acceleration of benefits under LSA-R.S. 23:1333 and for penalties and an attorney’s fee. He alleged that the defendants had failed to pay more than six consecutive weekly compensation benefits which had been awarded by a prior judgment and also that they had refused to pay additional compensation, medical and travel expenses within 60 days after demand. Prom a judgment denying such relief, the plaintiff has appealed.

Mr. Clary was injured either in late February or early March of 1979. In September he filed suit against the defendants for workmen’s compensation benefits. The case was tried on November 12, 1979, and on May 30, 1980, judgment was rendered awarding plaintiff weekly benefits for total and permanent disability, medical and travel expenses and legal interest from date of judicial demand. The plaintiff’s demand for penalties and an attorney’s fee was rejected. On February 4, 1981, this court affirmed the trial court’s decision and amended the judgment to fix the disability benefits at $141 a month. (Our Docket No. 8025, an unpublished opinion). The judgment became final on March 6, 1981.

On February 9, 1981, plaintiff’s attorney wrote a letter to Royal’s counsel giving his calculation of benefits totaling $20,057.25 that were due Mr. Clary under the judgment. These were listed as:

1) Weekly compensation through February 20, 1981, $12,831.00;
2) Medical benefits, $5,080.19;
3) Travel expenses, $132.40;
4) Interest from September 18, 1979, through February 18, 1981, $2,013.66.

The letter also demanded payment of $1,494.23 for additional medical and $588.47 for travel expenses incurred subsequent to the trial, a total of $2,082.70.

On February 23, 1981, Royal’s attorney replied, stating that a draft in the sum of $20,057.25 had been requested from the insurer, but it would need medical documentation to establish that the additional medical and travel expenses were incurred as a result of the compensable injury.

On February 27, plaintiff’s counsel forwarded copies of the reports of the principal doctor, saying he saw no reason to do so as the employer had already been provided copies thereof, however, he was in the process of getting and would furnish reports from the other doctors and the hospital. Additional medical information was sent subsequently.

On March 20 Royal’s counsel sent the plaintiff’s attorney a check for $20,057.27 in partial satisfaction of judgment. The latter replied on March 26, calling attention to the fact that the check did not include the weekly compensation benefits due subsequent to February 20, 1981, and legal interest. A request was also made for prompt payment of the additional medical and travel expenses. The matter was discussed by the attorneys in a telephone conversation on April 16 and Royal’s counsel agreed to get a check from Royal for $3,501.70 to bring all compensation benefits to date. On April 20 plaintiff’s attorney wrote that if this sum was not received by April 27 they would take “action to require payment.”

The file of Royal’s counsel reflects that he received an unsigned draft for the plaintiff on or before April 23, but it was necessary to return it to the insurer on that date for signature. There is a dispute between counsel as to whether plaintiff’s attorney’s office was informed of this by telephone. A signed draft for $3,501.00 was received by counsel for plaintiff on April 29, 1981, the same day that the rule to show cause was filed.

At the trial of the rule the above mentioned documentary evidence and some other letters requesting payment were admitted. Also, Mrs. Bonnie G. Campbell, Senior Claims Clerk for Royal, testified that in March, 1981, a report to the New York office stated that the plaintiff was to be paid weekly compensation benefits, but that she evidently did not see that report and failed to put plaintiff on her weekly diary. This error was brought to her attention in April and the plaintiff was put on the diary for payment of weekly compensation on April 28. Mrs. Campbell was unable to explain just how the oversight occurred. Donald C. Gassaway, an employee of Sun Production Company, testified that his company had received some medical reports on the plaintiff’s condition before February, 1981. However, such information was not sent to Royal, because prior to the judgment in this case the employer treated the claim as one for benefits under its disability plan with another insurer which covered non-compensable disabilities of its employees.

The trial court rejected the plaintiff’s demands and dismissed the rule.

The principal issue presented by this appeal is whether the plaintiff is entitled to acceleration of all of the weekly compensation benefits awarded by the judgment under LSA-R.S. 23:1333. The statute provides as follows:

“If the employer against whom a judgment awarding compensation has been rendered becomes insolvent or fails to pay six successive installments as they become due, the installments not yet payable under the judgment shall immediately become due and exigible and the judgment shall become executory for the whole amount; but if the employee or his dependent is adequately protected by insurance and receives payments thereunder this right shall not accrue.”

The plaintiff argues that mandatory acceleration of benefits is required if the employer fails to pay six consecutive installments without regard to whether the employer or insurer was willful or capricious in not making payments. We disagree.

In Johnson v. Continental Insurance Companies, 410 So.2d 1058 (La.1982) our supreme court was confronted with the same issue and similar circumstances. In that case due to an administrative error plaintiff was taken off the insurance company’s weekly diary. Upon discovering the error the company promptly paid the plaintiff the benefits owed. The trial court found that the company had not willfully refused to pay plaintiff benefits and therefore denied the plaintiff acceleration of benefits under 23:1333. The appellate court affirmed, 396 So.2d 2 (La.App. 1 Cir. 1981). Writs were granted to review this interpretation of LSA-R.S. 23:1333 and the supreme court concluded:

“In the instant case, defendant’s failure to pay six successive installments was due to an administrative error in its office. Defendant made prompt payment, however, when the delinquency was brought to the attention of its supervisory employees. Under these circumstances, defendant did not ‘willfully’ refuse to pay. “The uniform interpretation of R.S. 23:1333 by the courts since the statute was enacted compels a conclusion that section 1333 should not apply to a situation where there was no ‘willful refusal’ to pay. Other penalty provisions in the compensation act apply when the failure to pay or discontinuance of payment of a claim is found to be arbitrary, capricious or without probable cause. R.S. 22:658 (insurer); R.S. 23:1201.2 (uninsured employer).”

In the present case Royal’s records confirm Mrs. Campbell’s testimony that a notation was made on March 2,1981, to pay the judgment to date and also to commence payment of weekly compensation benefits. However, she evidently did not see this entry and failed to put plaintiff on a weekly diary. The error was brought to her attention in April and thereafter in due course the plaintiff received payment of all benefits awarded by his judgment.

The trial judge concluded:

“The Court has considered the facts of the case carefully and finds no evidence of willful and capricious non-payment of compensation. Rather, it was a matter of an unusual series of clerical errors. It is to be hoped that they do not re-occur.”

From our review of the record we cannot say that his finding in this respect was manifestly in error or clearly wrong.

We reach the same conclusion in regard to the plaintiff’s demand for penalties and an attorney’s fee under LSA-R.S. 22:658. Although the written reasons for judgment do not mention this claim, as stated in Butler v. Commercial Union Ins. Co., 371 So.2d 337 (La.App. 4 Cir. 1979), writ refused, 373 So.2d 527 (La.1979):

“By dismissing the suit the trial judge necessarily found that defendant’s failure was not arbitrary or capricious or without probable cause under the circumstances of this case.”

Not having found any manifest error in the factual findings of the district court, the judgment appealed from is affirmed at appellant’s cost.

AFFIRMED.


author: GUIDRY, Judge. DOMENGEAUX, Judge,

text:
    Verna Marie Delozia DIXON, Individually and as Natural Tutrix of Sheila Ann Delozia, Plaintiff-Appellant, v. John WINSTON, Sr., Defendant-Appellee.
    No. 8860.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1982.
    Harrington & Harrington, C. Rodney Harrington, Natchitoches, for plaintiff-appellant.
    Gist, Methvin, Hughes & Munsterman, Victor H. Sooter, Alexandria, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   GUIDRY, Judge.

Plaintiff, Verna Marie Delozia Dixon, individually and as natural tutrix of Sheila Ann Delozia, instituted this suit against the defendant, John Winston, Sr., seeking damages resulting from a battery allegedly committed on the person of Sheila Ann by Winston’s minor son, John Winston, Jr. The incident giving rise to this suit occurred on November 10, 1980 at Natchitoches Central High School in Natchitoches, Louisiana. After evaluating the testimony of the numerous eyewitnesses to the incident, as well as that of the parties, the trial court rendered judgment in favor of defendant and against the plaintiff, and dismissed plaintiff’s suit. Thereafter, plaintiff moved for a new trial, however, her motion was denied by the trial court. Plaintiff now appeals the judgment of the trial court rejecting her demand for damages. The defendant has neither answered plaintiff’s appeal nor appealed from the aforesaid judgment.

The sole issue on appeal is whether the trial court clearly erred in concluding that the defendant is not liable for the injuries sustained by plaintiff’s minor daughter.

On November 10, 1980, Sheila Ann Delo-zia, plaintiff’s minor daughter, a fifteen year old student at Natchitoches Central High School at the time of trial, was preparing to have lunch in the school cafeteria. Sheila approached the table where she usually sat each day for lunch and noticed that John Winston, Jr., defendant’s minor son, was sitting in her regular place. The record reflects that Sheila instigated a rather heated, profane verbal exchange with John regarding the seating arrangement. The aforesaid altercation culminated in Sheila’s threat to slap John. Immediately thereafter, John moved from his seat and sat in a chair located further down the table where he continued to eat his lunch. After finishing his meal, John approached Sheila, tapped her on her shoulder, and inquired regarding why she became so hostile and physically threatening earlier. Sheila responded by instructing John to leave her alone. The testimony regarding what transpired next is in conflict. John testified that Sheila quickly turned around in her chair wielding a fork and thereafter struck him in his right side with the utensil. John stated that he struck Sheila’s face with his fist in an unthinking reaction-type response to being hit. In contrast, Sheila testified that she merely turned around in her chair and struck at John with her hand, not the fork. Eyewitnesses testifying at the trial presented seriously conflicting and irrecon-ciable testimony not only as to Sheila’s actions but also as to the manner in which Sheila was hit by John. As a result of the incident, Sheila sustained a large blowout fracture of the bone surrounding her left eye. Ultimately, surgery was required to correct Sheila’s injury.

An accurate statement of the law pertinent to battery cases in Louisiana is found in Tripoli v. Gurry, 218 So.2d 563 (La.1969) wherein our Supreme Court stated:

“It is correctly stated in Alexander v. McCray (La.App.), 190 So.2d 463 that ‘the law is well settled in actions for damages for battery that a plaintiff cannot recover damages for such battery if the evidence establishes that he is at fault in provoking the difficulty in which the injury complained of is received. See Oubre v. Judice [et al.] (La.App., 1962) 147 So.2d 745, and the cases therein cited.’ Also pertinent are Stothart v. Louisiana-Arkansas Railway Company, 127 La. 409, 53 So. 668 and Johnson v. Prince-ville Canning Company et al. (La.App.), 205 So.2d 449.
It is equally well settled that even where there is an aggressive act, justifying a battery, the person retaliating may use only so much force as is necessary to repel the aggression; and that if he goes beyond this, he using force in excess of what would have been reasonably necessary, he is liable for damages for injury caused by the employment of such unnecessary force. Oakes v. H. Weil Baking Company et al., 174 La. 770, 141 So. 456, Whittington v. Levy (La.App.), 184 So.2d 577, Bauman v. Heausler (La.App.), 188 So.2d 189 and Mut v. Roy et al. (La.App.), 185 So.2d 639.
Of course, each case depends on its own peculiar facts and circumstances; and resort must be had to the evidence to determine who was the aggressor and whether more force than necessary was used to repel the aggression.”

In rendering judgment for the defendant, the trial court made the following factual findings:

"... taking into consideration the overall posture of this situation it appears to the Court that this was a two way incident caused by the provocation of Sheila Ann Delozia and the reaction to that provocation by John Winston, Jr. I find that Sheila Ann Delozia cursed John Winston, Jr. and while not inflicting serious bodily harm did strike him with a fork in the lunch room of Natchitoches Central High School, which provocation caused John Winston, Jr. to react, striking Sheila Ann Delozia in the face. The testimony of the different witnesses to this striking and to the fork incident was rather confusing. No two persons who testified as to being eye witnesses to the incident testified identically, which is not unusual in a situation such as this type. But considering the overall picture I find that Sheila Ann Delozia provoked and participated in the incident to the extent that it acts as a bar to her right to recover in this matter. ...”

So oft repeated, it has become a Louisiana jurisprudential maxim, that before a reviewing court can disturb the factual findings of a trial court, it must conclude that such findings by the trier of fact are manifestly erroneous and have no reasonable factual basis in the record. Perniciaro v. Brinch, 384 So.2d 392 (La.1980). It is equally well settled that a trial judge is in the best position to determine the credibility of witnesses and where testimony is in serious conflict and the resolution of questions necessarily depends on an evaluation of such credibility, great weight must be granted to the decision of the trial court. Correge v. Webb, 284 So.2d 355 (La.App. 4th Cir. 1973), writ refused, 286 So.2d 664 (La.1973); Blue Streak Enterprises v. Cherrie, 263 So.2d 734 (La.App. 4th Cir. 1972); Curole v. Acosta, 303 So.2d 530 (La.App. 1st Cir. 1974).

Our review of the testimony and evidence confirms as correct the trial court’s conclusion that Sheila provoked the incident at issue. There is no conflict in the record regarding her instigation of the verbal altercation which culminated in her injury. In addition, we conclude, as did the trial court, that John’s striking of Sheila was an involuntary reflex reaction to her attack and did not constitute the use of unreasonable force under the circumstances. There is no dispute regarding the immediacy of John’s response to being struck with the fork wielded by Sheila nor is there any dispute regarding young Winston’s immediate reaction of surprise and disbelief at his own actions. Also, we note that John is a scholar, athlete, class favorite, and student government officer at Natchitoches Central High School and has no past record of disciplinary problems. We find no clear error on the part of the trial court in its conclusion that Sheila’s provocation of the incident bars her right of recovery for those injuries sustained as a result of the altercation.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed to the plaintiff, Verna Marie Delozia Dixon.

AFFIRMED.

DOMENGEAUX, J., dissents and assigns reason.

DOMENGEAUX, Judge,

dissenting.

John Winston, Jr., a football player on his high school team, was, at the time of this unfortunate incident, six feet tall, weighed 192 lbs., and could bench press 230 lbs. In contrast, Sheila Ann Delozia was a petite cheerleader for the team. Notwithstanding the sorrow expressed by John for busting Sheila’s eye wide open with his fist, and causing a blow out fracture of the inner wall of that eye socket, his post trauma remorse does not excuse his unwarranted act.

John and Sheila were juniors in high school and were boyfriend and girlfriend in the eighth and part of the ninth grades. Their association since that time was spasmodic. On the day of the incident the record shows that John sat down in a chair where Sheila usually sat with a certain group of classmates. Actually, Sheila had placed her purse on the chair when she went to get her lunch. When Sheila returned from the lunch counter to sit at the table, she admittedly made an uncomplimentary comment to John, something to the effect that he should get out of her chair, and that she could slap the s— out of him. She then sat in another chair, after which time John removed himself and went to sit in a chair further down the table. At this point, as I see it, and as unquestionably shown in the record, whatever unpleasan-tries which had taken place were now over. John should have left well enough alone, but he did not. As shown hereafter, he returned to continue the altercation. Under those circumstances if he was ever the victim, he lost that favored position by becoming the aggressor himself, and under the circumstances shown hereafter, neither the aggressor doctrine nor the plea of self-defense are available to him.

Some ten minutes later, after John had finished his meal, he walked over to the counter to deposit his meal tray and voluntarily came back to where Sheila was sitting. He placed himself behind her and a little to her left and touched, poked, or pushed Sheila on the shoulder and made some comment about what had previously happened at the table ten minutes before. She asked him to leave her alone. He continued to strike, poke, or push Sheila on the shoulder (the record is in conflict as to how many times he did this), at which time this petite little girl, who was obviously and justifiably irritated with John’s actions, turned around to push him away, and struck him with her hand which held a fork which she was using while eating her meal. It was then that John struck her with his fist. I perceive nothing involuntary on John’s part, as suggested in the majority opinion.

It is interesting to note that the trial judge, in reasons for judgment contained in the Court’s minutes, stated that Sheila struck John with a fork. Subsequently, in his reasons for denying a motion for a new trial he was not too sure that Sheila had done this because he stated that she (Sheila) “.. . either actually stabbed him with a fork or struck him with her fist in which was held a fork.”

I have grave doubts that the fork touched John. John said he had “red marks .... in four streaks.” I think that the so-called fork striking was an afterthought.

My conclusion from an analysis of the record makes it very clear that if there was any aggressor in this altercation it was John, who went back to the place where Sheila was, and not only wanted to reopen the unpleasantries, but hovered over her from her rear and physically struck and poked her shoulder which ultimately led to his fracturing of her eye bone.

If any party is entitled to the luxury of “an involuntary reflex” it should be Sheila.

In the least, and even reluctantly assuming arguendo that Sheila was the aggressor, the facts leave little room for doubt but that John’s actions fit the well-known jurisprudential rule that if one resorts to excessive violence and unnecessary force in repelling an assault, he then becomes liable as an aggressor and is subject to an action for damages for assault and battery.

It is inconceivable to me, even painting the scenario in his favor, that John needed to do what he did. There is no excuse for his battering this little girl with the force which he used.

I have no difficulty concluding that the plaintiff should prevail in this case and that we should proceed to award damages for the serious injuries which Sheila received.


author: CULPEPPER, Judge.

text:
    J. R. WEST, Plaintiff & Appellant, v. Charles KLUMPP, Defendant & Appellee.
    No. 82-10.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1982.

      Guy 0. Mitchell, Ville Platte, for plaintiff & appellant.
    Douglas L. Hebert, Jr., Kinder, for defendant & appellee.
    Before CULPEPPER, SWIFT and LA-BORDE, JJ.
   CULPEPPER, Judge.

The plaintiff, J. R. West, seeks to rescind the sale of a 1954 Chevrolet truck with a fuel tank mounted thereon, and to obtain judgment for damages in the sum of $70,-000 and attorneys’ fees in the sum of $8,000. The defendant, Charles Klumpp, was the auctioneer at the sale to plaintiff. The basis of plaintiff’s suit is that after he purchased the truck he could not obtain a certificate of title, and therefore could not use it for the purpose for which he bought it, i.e., to mount welding equipment on it and drive it on the highway. After a trial on the merits, the district judge held the truck was sold without warranty of title or fitness for use, it being being an old truck of little value except for the fuel tank. From a judgment dismissing his suit, plaintiff appeals. We affirm.

The issues are: (1) Was the defendant auctioneer acting as an agent for a disclosed principal, the owner of the truck, thus barring a redhibitory action against the auctioneer? (2) Did the defendant auctioneer misrepresent to the plaintiff that he would receive a certificate of title, thereby subjecting the auctioneer to a tort action?

The facts are that the plaintiff, who lives near Ville Platte, read a “flyer” advertising an auction sale of all farm equipment and machinery owned by Mr. Percy Monceaux to be held at his farm near Oberlin and conducted by defendant Klumpp as auctioneer. Plaintiff freely admitted he learned of the sale by reading the flyer, that he knew Mr. Klumpp was acting as auctioneer, and that the farm equipment being sold was owned by Mr. Monceaux.

Plaintiff attended the auction and became interested in the 1954 Chevrolet 1-ton truck, on which was mounted a diesel fuel tank. He is a riverboat captain, but he wanted the truck for his son-in-law, who is a welder. He testified his plan was to buy the truck and mount welding equipment on it for operation by his son-in-law, and that they planned to split the profits of the welding operation. Plaintiff testified that before the sale he started the truck and it ran good. He examined it but did not notice that it had no license plate or current inspection sticker.

Mr. Klumpp testified that during the auction when he came to the truck in question he had just sold two big trucks for $11,000, and he made a joke of selling the 1954 Chevrolet truck, because he thought it was practically worthless except for the diesel tank mounted on it. He testified he announced: “Take it like you take your wife (as is). I’ll sell you the tank and give you the truck.”

Plaintiff and a Mr. Landreneaux bid on the truck, the last bid in the sum of $375 being by Landreneaux. However, after the sale plaintiff went to Landreneaux and offered him $25 for the receipt. Landre-neaux agreed, so plaintiff paid him $25 and took the receipt and paid Klumpp $375 for the truck.

About a month after the sale, plaintiff went to Klumpp’s office and asked for the certificate of title to the truck. Klumpp called Monceaux and learned the truck had no title. Monceaux testified he acquired the truck as a gift from his brother in Texas who had junked it. He brought the truck to Louisiana and used it to haul fuel to his tractors on the farm. The truck was never used on the highways, so he had no title.

About 18 months after the sale, plaintiff filed the present suit against the auctioneer to rescind the sale because he was unable to obtain a certificate of title.

The first issue is whether the defendant auctioneer was acting as the agent of a disclosed principal. Although plaintiff alleged in his supplemental petition that the defendant was acting for an undisclosed owner, the evidence shows clearly, as outlined above, that plaintiff knew from the flyer he read that Klumpp was acting as auctioneer for Monceaux who was the owner of the equipment being sold. This being true, plaintiff cannot sue the auctioneer to rescind the sale. The redhibitory action would have to be brought against the owner, Monceaux. In Castille v. Folck, 338 So.2d 328 (La.App. 3rd Cir. 1976), which involved the auction sale of a brood mare, we stated the law:

“We know of no authority, and we have not been referred to any, which would authorize a suit for rescission of sale being brought against the agent of the seller. A suit for rescission of sale, be it for error of fact or redhibition, must be brought against the seller. As set forth in 3 C.J.S. Agency § 476, p. 358:
“An undisclosed principal is not a necessary party defendant to a suit by the purchaser against the agent to rescind a contract of sale of personal property
It must be remembered that in the instant case the purchaser, Castille, was at all times aware that the broodmare “Flying Cobre” was owned by C. Wade Navarre and that Folck was acting only as agent for Navarre.13

Since plaintiff cannot bring a redhi-bitory action against the defendant auctioneer for a disclosed owner, the remaining question is whether plaintiff can recover in tort against the auctioneer for misrepresenting that plaintiff would receive a certificate of title to the truck. Again, we quote from Castille v. Folck, supra, where the plaintiff sought to recover damages in tort against the auctioneer of a brood mare for false misrepresentations that the horse had been Coggins tested, and that a Coggins certificate would be furnished to the purchaser so that he could use the horse as a brood mare. In Castille we stated:

“Folck must be held to compensate plaintiff for the damage caused by his deliberate misrepresentations. R.C.C. Article 2315; Ingram v. Canal Bank & Trust Co. et al., 13 La.App. 651, 127 So. 462 (La.App. — Orleans 1930).
We recognize that generally speaking an agent is not responsible to third persons where his principal is disclosed, however, the agent may make himself personally liable if he expressly or impliedly pledges his own responsibility.”

Plaintiff testified that at the auction Klumpp did not state whether there was a title to the truck. Plaintiff assumed he would receive a title, and that he and his son-in-law could use the truck on the highway.

The defendant testified that before the sale he did not know whether there was a title to the truck and made no mention of title. Klumpp considered the truck to be of so little value that it was not important. He thought the only value was in the diesel fuel tank.

The trial judge accepted Klumpp’s version of the sale and held as a fact that the truck was sold without warranty of title, and that there were no misrepresentations by Klumpp which constituted actionable negligence. We have carefully reviewed the record and conclude the trial judge was not clearly wrong in these findings of fact.

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

AFFIRMED.


text:
    Vernon McCLINTON, et al., Plaintiffs-Appellants, v. Herbert W. REID, et al., Defendants-Appellees.
    No. 82-13.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1982.

      Gahagan & Gahagan, Fred S. Gahagan and Watson, Murchison, Crews, Arthur & Corkern, William P. Crews, Jr., Natchitoch-es, for intervenors-appellants.
    Bolen & Erwin, Gregory S. Erwin and Charles H. Musterman, Alexandria, Jonathan M. Stewart, Arcadia, for defendants-appellees.
    Before CULPEPPER, SWIFT and LA-BORDE, JJ.
   SWIFT, Judge.

Vernon McClinton and his wife Gracie filed suit against Herbert W. Reid, doing business as Reid’s Fire Equipment Company (Reid), and Casco Products Company (Cas-co), seeking recovery of fire damages to plaintiff’s restaurant and its contents allegedly caused by an automatic fire extinguisher system malfunctioning. The system was sold, installed and maintained by Reid, but was manufactured by Casco. The McClintons’ fire insurer, Travelers Insurance Company, intervened under a subrogation agreement to recover the amount of the loss it paid to the plaintiffs. The defendants, Reid and Casco, filed third party demands against each other. The case was tried before a jury. From a judgment in favor of the plaintiffs and intervenor against Reid only and dismissal of the other demands, the McClintons and Travelers have appealed.

The record reveals that in October, 1974, Mr. Reid sold and installed a Casco Fire Extinguisher System in the Bayou Jack-0 Restaurant owned by the McClintons. Reid testified that it worked like it was supposed to work and there were no problems with the system then. It was a 30 pound dry chemical fixed system designed to protect the specific area of the stove and two deep fat fryers. Reid provided the pipe and conduit for the system while Casco provided the remote pull switch, junction boxes, cornering pulleys, gas valves, surface nozzels, fusible link and fusible link holders, as well as 50 pound containers of powder.

The system was designed to work automatically and also manually. The fire extinguishing material was a dry powder, sodium bicarbonate. The powder was stored in a canister which was supposed to be pressurized to 350 pounds per square inch. Pipes led from the pressurized canister to four surface nozzles. Two of these nozzles were located above the stove and there was one above each deep fat fryer. The nozzles were designed to spray the powder simultaneously upon the melting of the fusible link. The latter was made to melt at 350° Fahrenheit and was located approximately six inches up in the exhaust duct of the hood over the protected area. According to Mr. Reid, the fixed system had to have 350 pounds per square inch of pressure to force all the powder out.

Reid also had a service contract with the McClintons in which he was required to inspect the system every six months and to maintain it. He testified that during these inspections he would check the pressure gauge to insure there was enough pressure for the system to operate, check the seals, change the fusible link, clean the nozzles, blow out the supply line, rearm the system and tag it. He said he also cheeked the three portable hand extinguishers.

In April of 1975 a small fire evidently occurred in the restaurant and the system was manually activated by an employee. It functioned properly, emptying its powder throughout the kitchen. Under the maintenance contract Reid was supposed to recharge and reinstall the system. He testified that he replaced the old powder with new, cleaned the control leads and valves, reassembled the system and performed a leak test by submerging the system in water. The 0 ring seals and the pressure gauge were not replaced at that time, because they were still in good condition. Reid also stated that he repressurized the system to 350 pounds per square inch.

Thereafter the system was inspected by Mr. Reid semi-annually. His last inspection occurred on April 17, 1977. Less than a month later, on May 10, 1977, a fire occurred at the Bayou Jack-0 Restaurant. This time the system did not activate either automatically or manually. Mr. McClinton and his employees testified that the fire originated in the deep fat fryer next to the stove within the area the system was designed to protect.

Ted Dugan, a representative of Travelers, testified that he arrived the day after the fire to inspect the premises. He observed that the fusible link had melted, but the system had failed to operate. He then called in Jerry Gilmore, an expert in the origin of fires and fire extinguishing units, to inspect the system.

Mr. Gilmore testified that he investigated the May 10, 1977, fire and found that it originated in the deep fat fryer adjacent to the kitchen range. His examination and hydrostatic testing of the system revealed that the fusible link had melted, but the fire extinguishing system failed to work both automatically and manually. Based on the fire patterns it was his opinion that the fire should have melted the fusible link before any heat could have adversely affected the canister or pressure gauge. The control head of the system was in the “open” position which should have allowed the powder and pressure to come out of the canister. There were no holes in the system or the canister, but the latter only contained 19V!i pounds of dry chemical powder instead of the 30 pounds required by the Casco manual. There was no indication of powder in the pressure gauge or the pipes leading to the nozzle. Mr. Gilmore found no evidence of defects or mechanical malfunction of the Casco system other than a leaking condition of the pressure gauge. He concluded that this leak occurred subsequent to the melting of the fusible link and that the failure of the system to activate was due to the “lack of pressurization of the system” before the fire. The witness added that either the system was never pressurized or that the pressure had “leaked off.” However, there was no identifiable defect or mechanical reason for the pressure to have leaked off prior to the fire.

Dewey W. Lewis, an electrical engineer with expertise in the design, installation, and maintenance of chemical fire extinguishing systems, testified that he examined the system after it was removed to Dallas and found it to have extensive fire damage. The pressure gauge ruptured and there were traces of powder therein. Based on these facts the witness opined that the decompression of the gauge occurred at a rapid rate and probably ruptured during the fire. He found no apparent defects with the system other than the rupturing of the pressure gauge. His theory was that it either ruptured prior to the melting of the fusible link or at approximately the same time. Since this system was not designed to fight a fire outside of the system Mr. Lewis said that if the pressure gauge had ruptured before the melting of the fusible link this would indicate the fire began outside the system. The witness also stated that the pressure leak could have resulted from overpressurization.

Mr. McClinton and two employees of the restaurant testified that no one other than Reid and his employees ever worked on or tampered with the system.

At the conclusion of the trial the jury determined that Mr. Reid was solely responsible for the damage caused by the failure of the system to operate. He has not appealed from the judgment and that ruling is not in question before this court. Therefore, the only issue on this appeal is whether the jury erred in failing to find Casco liable also for the fire damages to the plaintiffs’ property.

The manufacturer of a product is bound by an implied warranty that the thing sold is free of hidden defects and is reasonably fit for the product’s intended use. In such actions the buyer has the burden of proving the existence of a defect in the manufacture or design of the thing sold which renders it absolutely useless, or its use so inconvenient and imperfect that the buyer would not have purchased it had he known of the vice. Such defect must exist at the time of the sale. LSA-C.C. Arts. 2475, 2476 and 2520; Rey v. Cuccia, 298 So.2d 840 (La.1974); Gamble v. Bill Lowrey Chevrolet, Inc., 410 So.2d 1155 (La.App. 3 Cir. 1981); and Associates Financial Services Co. v. Ryan, 382 So.2d 215 (La.App. 3 Cir. 1980).

Whether a product is defective at the time of sale is a question of fact. Domingue v. Whirlpool Corp., 303 So.2d 813 (La.App. 3 Cir. 1974). And, of course, such factual determination by the trier of fact will not be disturbed on appeal in the absence of manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

In the present case the jury heard the testimony of the witnesses, including the experts, and having considered all of the evidence it obviously found that the system was not defective when sold and the failure of the extinguisher to function properly was caused by the fault of defendant Reid subsequent to the sale. There being an ample evidentiary basis for such determination, we affirm the verdict with no hesitancy.

The appellants also argue in brief that the jury erred in failing to find Casco negligent under the doctrine of res ipsa loquitur. They rely on Blackshere v. Kem-per Ins. Co., 352 So.2d 275 (La.App. 2 Cir. 1977). In Blackshere the plaintiff was injured when a valve stem assembly blew out of an oxygen cylinder. The court found that both the manufacturer and the distributor had joint control and responsibility for the condition of the cylinder valve. This was not the case in the situation before this court. Unquestionably, Reid had the sole responsibility for maintaining and inspecting the system, including its pressurization. Therefore the doctrine of res ipsa loquitur is inapplicable and creates no inference of negligence as to Casco.

For the reasons assigned the judgment of the district court is affirmed at appellants’ cost.

AFFIRMED.

      . This was the second trial by jury in the present case. In the first trial the district judge sustained Reid’s motion for a directed verdict at the close of the plaintiffs evidence. After presentation of all evidence the jury returned a verdict in Casco’s favor. This Court reversed that judgment and remanded the case for a new trial. McClinton v. Reid, 391 So.2d 506 (La.App. 3 Cir. 1980).