text:
    Joseph Dewey DEVILLIER, Plaintiff-Appellant, v. Marie Louise Noel DEVILLIER, Defendant-Appellee.
    No. 82-99.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1982.

      Dean, Lomenick & Seemann, G. Douglas Dean, Opelousas, for plaintiff-appellant.
    Knoll & Knoll, Jeannette Theriot Knoll, Marksville, for defendant-appellee.
    Before FORET, STOKER and DOUCET, JJ.
   DOUCET, Judge.

This case was consolidated with the companion case of Devillier v. Devillier, La. App., 417 So.2d 1337, both at the trial and appellate levels. However, inasmuch as the only connexity between the cases is the similarity of the parties, we render separate opinions.

This suit pertains to respective usufructu-ary rights and obligations arising from the parties’ usufruct in indivisión of a farm located in Avoyelles Parish. The parties were formerly husband and wife. Since separation discord has been rampant, litigation frequent, and numerous allegations and counter-allegations have transpired between the parties. Their disputes appear un-ending. The facts of the present dispute are as follows:

The parties acquired the joint usufruct of the 326 acre farm in 1977 and 1978, pursuant to certain “Acts of Establishment”. In addition the parties have Vs naked ownership in indivisión. After the initial acquisition Marie Devillier, defendant-appellee herein, filed suit against her husband, Joseph Devillier, seeking separation from bed and board, and was eventually awarded custody of the minor children, child support, and alimony. Thereafter when Mr. Devillier became delinquent in the said obligations, and was threatened with suit by his former mate, a Temporary Release of Usu-fruct and Compromise of Claim was executed in satisfaction of his delinquency whereby plaintiff released his rights for six months to a one acre tract upon which the family home was situated. In addition thereto Mr. Devillier sold all rights, titles and interests in all household furnishings contained in said home. In return Mrs. Devillier also gave up all interest in certain items of movable property. Both parties agreed to “release and relinquish their respective rights to claim reimbursement between themselves for either rents which may have been collected heretofore on community properties or judgments collected heretofore on community debts. This relinquishment shall have no effect upon future rents or future collections on community debts.”

Thereafter Mr. Devillier was awarded a judgment of divorce on August 7, 1979.

On November 13, 1980, Mrs. Devillier filed two suits against Mr. Devillier and, again, settlement was effectuated and the claims dismissed, but not without another return to court necessitated by Mrs. Devillier’s suit for specific performance of said settlement prior to expiration of the 30 day delay allowed for performance. Under said agreement, Mr. Devillier sold to Mrs. Devil-lier all of his interest in the usufruct over the 326 acre farm, reserving the residuary usufruct for himself in the event the latter should predecease him. In exchange Mrs. Devillier paid $25,000 and dismissed legal proceedings and further agreed to release and forever discharge Mr. Devillier “for any loss or damage of any kind, including particularly any claims for accounting for rentals, crops, or any other actions arising out of vendor’s enjoyment of the usufruct conveyed herein”.

Mr. Devillier filed suit for reimbursement for expenditures relative to the 326 acre tract on July 7, 1981. In addition thereto, Mr. Devillier sought recovery for $4,000 worth of property withheld which had been listed in the partition. He further sought an injunction enjoining Mrs. Devillier from harming any property subject to the usu-fruct, and an order permitting him to inspect the property subject to the usufruct. Mrs. Devillier answered denying plaintiff’s authority to administer the usufruct and respondent’s liability thereto; reconvened seeking contribution for usufruct expenses, and sought an injunction to prohibit her former husband from entering onto the farm.

Also, on July 7,1981, Mr. Devillier filed a rule to reduce child support. On July 29 Mrs. Devillier filed seeking an increase in child support.

Before long the parties were back in court as the result of a rule for past due child support, contempt, and attorney’s fees, filed by Mrs. Devillier on November 23, 1981, pertaining to a $100.00 dental bill. See the companion case # 82-100.

Subsequently judgment was rendered in the usufructuary reimbursement and movable property dispute. Said judgment also enjoined Mr. Devillier, as reversionary usu-fructuary and owner in indivisión with defendant of Vs interest in naked ownership, from entering upon the 326 acre farm, due to threats made against Mrs. Devillier, subject to his right to inspect the' property twice annually. Each party was awarded part of the relief prayed for and denied certain demands. From that judgment plaintiff has appealed. Mrs. Devillier has answered the appeal.

Plaintiff-appellant assigns the following specifications of error:

1. The trial court erred in failing to grant Mr. Devillier reimbursement for certain expenditures made by him in satisfaction of the joint obligations imposed upon him and Mrs. Devillier.

2. The court failed to order Mrs. Devillier to return the items in her possession to Mr. Devillier or to award a money judgment for same.

3. The court erred in failing to consider Mr. Devillier’s defense of release and compromise.

4. The court erred in granting Mrs. Devil-lier a permanent injunction prohibiting Mr. Devillier from entering upon the land subject to the usufruct.

Defendant-appellee, in answer, asserts these errors:

1. The trial court erred in finding Mrs. Devillier indebted unto Mr. Devillier in the sum of Three Thousand Nine Hundred Fifty Two and 18/100 ($3,952.18) Dollars.

2. The trial court erred by finding Mr. Devillier indebted unto Mrs. Devillier in the sum of Three Thousand Two Hundred Twenty-one and 05/100 ($3,221.05) Dollars and limiting set-off for Mrs. Devillier in that amount.

3. The trial court erred by failing to order Mr. Devillier to return the items taken by him from the property subject to the usufruct.

4. The trial court erred by granting Mr. Devillier a right of inspection to the property subject to the usufruct.

We have carefully reviewed each and every assignment of error and find that none merit reversal. Each claim essentially turns upon certain factual findings and assessment of the witnesses’ credibility. In this regard, we note:

“When there is evidence before the trier of facts which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.” Canter v. Koehring, 283 So.2d 716 (La. 1973).

Accord: Boustany v. Fluid Dynamics, Inc., 392 So.2d 750 (La.App. 3rd Cir. 1980); Johnson v. Coca Cola Bottling Co., Inc., 386 So.2d 993 (La.App. 3rd Cir. 1980).

The trial judge heard conflicting factual accounts as to whether certain expenses or items were intended to fall within the ambit of the parties’ agreements. He heard evidence and evaluated the credibility of witnesses concerning whether a litigant had certain property (e.g., a used weedeater, black pot, a radio, etc.) in their possession, and if so, whether he/she misappropriated property of the other. The trial judge further heard evidence in respect to whether irreparable harm was shown to support the injunction preventing the naked owner from interfering with the usufructuary’s enjoyment. Recitation of each claim and the facts relative thereto would in no way aid in proper development of the law; therefore same is omitted. A reasonable factual basis exists for each of the trial judge’s determinations. We find no manifest error.

Should plaintiff still consider defendant’s actions to be an abuse of usufructuary enjoyment, and feel aggrieved by judgment, his proper remedy is to seek judicial termination of the usufruct, or security, pursuant to La.Civ.Code Art. 623.

For the reasons stated hereinabove, the judgment of the trial court is affirmed. Costs to be divided equally between the parties.

AFFIRMED.


source: Caselaw Access Project

author: DOUCET, Judge.

license: Public Domain

text:
    Marie Louise Noel DEVILLIER, Plaintiff-Appellee, v. Joseph Dewey DEVILLIER, Defendant-Appellant.
    No. 82-100.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1982.

      Dean, Lomeniek & Seemann, G. Douglas Dean, Opelousas, for plaintiff-appellant.
    Knoll & Knoll, Jeannette Theriot Knoll, Marksville, for defendant-appellee.
    Before FORET, STOKER and DOUCET, JJ.
   DOUCET, Judge.

Plaintiff, Mrs. Devillier, filed a rule on November 23, 1981 in trial court to make past due child support executory wherein she averred that she was awarded custody of the two minor Devillier children, subject to visitation rights of defendant, by judgment dated August 7, 1981 which obliged defendant to pay support in the amount of $200.00 per month per child plus all medical, dental, and pharmaceutical expenses incurred by the children.

The basis for the rule was defendant’s failure to pay $100.00 in orthodontic expenses incurred by the parties’ child, Paul. Defendant filed an Answer and Counter Rule claiming the work was cosmetic and testified at hearing that Mrs. Devillier had refused him the opportunity to take Paul to a dentist to secure a second opinion. The trial judge, relying on the testimony of dentist Ralph Jackson, felt otherwise and rendered judgment in favor of plaintiff. An executory judgment was rendered in favor of plaintiff in the sum of $100.00 with 10% interest from date of judicial demand until paid. Defendant was held in contempt of court and was fined $100.00. Additionally judgment was rendered in favor of plaintiff and against defendant in the sum of $200.00 attorney’s fees, and casting defendant with court costs, including the expert witness fees of Dr. Jackson.

The father has appealed alleging the trial court erred in finding that he was in arrears on his child support in the sum of $100.00. In support thereof Mr. Devillier argued that the children of a marriage are entitled to the same standard of living following termination of a marriage as during its existence and that inasmuch as the child involved did not require orthodontic care prior hereto, nor did six of the parties’ other seven children, the support requested must be considered cosmetic and not necessary.

The assignment of error lacks merit. There is ample evidence in the record to conclude the dental care was necessary. Although litigation such as the present might be avoided by rendering parents mutually responsible for medical and dental care, the wisdom of casting only one parent liable is not before us. The trial judge’s factual determination, that the orthodontic expense was necessary, is not manifestly erroneous and is hereby affirmed.

AFFIRMED.


author: FORET, Judge.

text:
    Larry FONTENOT, Plaintiff-2nd Appellant, v. CAGLE CHEVROLET, INC., and Great American Insurance Companies, Defendants-3rd & 1st Appellants.
    No. 82-109.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1982.
    Rehearing Denied Aug. 30, 1982.

      Camp, Carmouche, Palmer, Barish & Hunter, David R. Frohn and Randy J. Fuerst, Lake Charles, for defendant-appellant-appellee.
    Caskey & Pizzolatto, Nick Pizzolatto, Jr., Lake Charles, for plaintiff-appellee-appel-lant.
    Ronald J. Bertrand, Woodley, Barnett, Cox, Williams & Fenet, J. L. Cox, Jr., Lake Charles, for defendant-appellee-appellant.
    Before FORET, STOKER and DOUCET, JJ.
   FORET, Judge.

Larry Fontenot (claimant) brought this workmen’s compensation action to recover disability benefits and medical expenses, together with penalties and attorney’s fees. Named defendants are: Cagle Chevrolet, Inc. (Cagle Chevrolet), claimant’s alleged employer at the time the work-related accident occurred; and, Great American Insurance Companies (Great American), the workmen’s compensation insurer of Cagle Chevrolet at the time of the accident. Ca-gle Chevrolet brought a third party demand against Great American seeking to recover attorney’s fees incurred by it in defending this claim and indemnity for any sums it might be held liable to pay claimant, should he be successful in prosecuting his action.

The trial court, after trial, rendered judgment on the main demand in favor of claimant and against defendants, finding claimant to have been temporarily totally disabled from February 12, 1981, the date of the work-related accident, to November 2, 1981, the date of trial. Claimant was awarded disability benefits of $163.00 per week for this period of time. Claimant was also decreed to be partially disabled for a period not to exceed six (6) months beginning from the date of trial. Claimant was awarded disability benefits in the amount of 66%% of the difference between the wages he was earning at the time of the accident ($250.00 per week) and any lesser wages he might actually earn in any gainful occupation for wages, but limited to a maximum of $163.00 per week. Claimant was also awarded $4,088 for medical expenses. Finally, claimant was awarded penalties of 12% of all weekly disability benefits found to be delinquent from February 12, 1981, until paid, and attorney’s fees of $750.00. This last award was made against Great American, which was found to have been arbitrary, capricious, and without probable cause in failing to pay claimant’s disability benefits.

As to the third party demand, the trial court rendered judgment in favor of Cagle Chevrolet (third party plaintiff) and against Great American (third party defendant), ordering third party defendant to indemnify third party plaintiff for all sums it had been ordered to pay claimant on the main demand. In addition, third party defendant was ordered to pay all costs incurred by third party plaintiff in defending against the main demand, that amount having been stipulated to as being $2,410.40.

Both defendants have appealed suspen-sively from the trial court’s judgment and raise the following issues:

Whether the trial court committed manifest error:

(1) in finding that claimant’s misrepresentations of his physical condition in obtaining employment with Cagle Chevrolet failed to constitute a bar to his recovery of workmen’s compensation benefits;
(2) in failing to find that claimant was an independent contractor for whom no coverage is provided by the Louisiana Workmen’s Compensation Act;
(3) in finding that claimant was an employee of defendant, Cagle Chevrolet;
(4) in finding that claimant was performing work which was necessary and substantially related to the regular trade or business operations of defendant, Cagle Chevrolet;
(5) in finding that the workmen’s compensation policy issued by Great American to Cagle Chevrolet provided coverage for the injuries suffered by claimant; and,
(6)in finding defendant, Great American, to be arbitrary, capricious, and without probable cause, in failing to pay disability benefits to claimant.

Claimant has appealed devolutively from the trial court’s judgment and raises the following issues:

Whether the trial court committed manifest error:

(1) in finding that claimant was only temporarily disabled, rather than permanently disabled;
(2) in finding that claimant would be partially disabled for only six (6) months post-trial and limiting its award of benefits to him for said disability to that time period.

Further:

(3) Whether the trial court abused its discretion in awarding claimant $750.00 in attorney’s fees, which is alleged to be grossly inadequate, and
(4) Whether claimant is entitled to an award of additional attorney’s fees should he be successful in prosecuting this appeal.

FACTS

Claimant was hired by Joe Cagle, Sr., in November of 1980 as a bulldozer operator. Joe Cagle, Sr. and his brother, Kenneth “Bobby” Cagle, own some seventeen hundred acres of land, located in Calcasieu Parish, some of which needed clearing. Claimant was put to work clearing a certain portion of that tract of land immediately after he was employed. While in the process of performing this task on February 12, 1981, he drove the bulldozer to an area of the tract of land, where he believed that a fellow employee was having trouble containing a fire burning the stumps and trees cleared off the land. Claimant climbed down onto one of the tracks of the bulldozer to talk to this other person. However, while standing on the track, he slipped and fell to the ground, injuring his back.

Claimant duly reported this accident to his employer, who directed him to the emergency room of a nearby hospital. There, he received treatment from George P. Schneider, M.D., who had been treating him at the time for an earlier back injury that had required surgery to correct. Dr. Schneider is an orthopedic surgeon. He hospitalized claimant from February 12, 1981, to February 20, 1981, for treatment of the injuries he received in his fall off the bulldozer. He has continued to follow up on claimant’s condition and had to hospitalize him one more time subsequent to the period following the accident for an acute flare-up of his back injury.

Claimant instituted this action when defendants refused to pay him disability benefits and medical expenses incurred by him for the treatment of his injuries.

Defendant, Cagle Chevrolet, answered claimant’s original petition, denying the significant allegations contained therein, except to admit that it had been informed of the accident and had failed to pay any compensation benefits to claimant. Defendant, Great American, also answered claimant’s original petition denying the significant allegations contained therein, except to admit that it had been informed of the accident. It further answered, alleging that the policy it had issued to Cagle Chevrolet specifically excluded coverage for anyone employed in farm or agriculture-related work, which it alleged that claimant was performing at the time of the accident.

Cagle Chevrolet then filed a first supplemental and amending answer in which it alleged: that claimant was an independent contractor at the time of the accident; that, in the alternative, if the trial court should find that claimant was not an independent contractor, then his workmen’s compensation action is barred by the fact that he misrepresented his physical condition at the time he was employed, in that he would not have been employed had his true condition been known; that, if claimant is found to be disabled, then said disability is a continuation of a previous disability for which he was being treated at the time he was employed, and, accordingly, he is unable to recover workmen’s compensation benefits from Cagle Chevrolet; that, at the time of the accident, claimant was collecting workmen’s compensation benefits from another source, and, to prevent claimant from obtaining a double recovery, Cagle Chevrolet should be allowed a set-off for prior recoveries being made by claimant during the time period for which this action was filed; and, in the alternative, if the trial court should find that claimant is entitled to recover workmen’s compensation benefits for the claim on which this action is based, then claimant’s continued disability is a result of an intervening accident which occurred on August 1, 1981, when claimant allegedly injured his back lifting a heavy ice chest, and his benefits should be terminated as of that date.

Cagle Chevrolet also filed a third party demand against Great American in which it alleged: that it had purchased a policy of workmen’s compensation insurance from Great American, which was in force at the time claimant’s accident occurred; that Great American had been duly notified of claimant’s accident, and the demand being made upon Cagle Chevrolet as a result of said accident; that Great American denied coverage for the accident and refused to provide Cagle Chevrolet with a defense to claimant’s action; that Cagle Chevrolet was entitled to recover from Great American a sum equal to the amount of attorney’s fees actually incurred by it in defending against claimant’s action, and, in the alternative, should claimant be successful in prosecuting his action, then Cagle Chevrolet was entitled to judgment against Great American indemnifying it for any sums which it might be ordered to pay claimant.

Great American answered Cagle Chevrolet’s third party demand denying that its policy provided coverage for the accident in which claimant was injured because claimant was engaged in “. .. farm or agricultural employment ...” at the time of the accident for which there was a specific exclusion in the policy issued by it. After trial, defendants stipulated as to the amount of attorney’s fees owed to Cagle Chevrolet by Great American.

CLAIMANT’S ALLEGED MISREPRESENTATION OF HIS PHYSICAL CONDITION

The trial court found that claimant had misrepresented his physical condition to his employer, but went on to further find that there was no causal connection between the misrepresentation of his pre-existing condition and his injury. Thus, the trial court held that claimant’s misrepresentation was no bar to his recovery in this action.

Defendants contend that the trial court committed manifest error in finding that claimant’s misrepresentation of his physical condition failed to operate as a bar to his recovery of workmen’s compensation benefits. We disagree.

Johnson v. Calcasieu Paper Company, 95 So.2d 659 (La.App. 1 Cir. 1957), writ denied (La.1957), found, on page 665, that:

“As to defendant’s fourth defense he is frank to admit that he knows of no case sustaining the defense of estoppel. The estoppel which defendant relies on herein, of course, is that Mr. Johnson is taking advantage of his own refusal to disclose the true facts first during his pre-employment physical and second to the physicians who testified in his behalf. Although the case of Peavy v. Calcasieu Paper Company, Inc. [La.App.], 70 So.2d 755 is one where plaintiff withheld information during his pre-employment physical and yet recovered, the instant case involves more fraud on the part of the claimant. At the same time considering the universally accepted mandate that the Courts are to liberally construe the workmen’s compensation act in favor of the employee, this Court cannot recognize the doctrine of estoppel to be used against an employee in the manner suggested by the defendant. Defendant has the opportunity of protecting itself from employees such as the plaintiff by conducting a thorough pre-employment physical and further, by conducting an investigation of its applicants for jobs." (emphasis ours.)

The test for recovery in a workmen’s compensation action is not the veracity of the claimant, but whether he has been disabled. Johnson v. Calcasieu Paper Company, supra; Mitchell v. Travelers Insurance Company, 136 So.2d 143 (La.App. 3 Cir. 1961), writ denied (La.1962); Richard v. Barber Brothers Company, 112 So.2d 168 (La.App. 1 Cir. 1959).

13 La. Civil Law Treatise: Workers’ Compensation, § 53 provides, in pertinent part, that:

“If the matter that the employee misrepresented was not a factor in bringing about the accident, it is clear that he should not be deprived of his right to compensation;21 and even where, as in the Plick [Plick v. Toye Brothers Auto & Taxicab Co., 13 La.App. 525, 127 So. 59 (Orl. Cir. 1930)] case, the misrepresentation directly affected the conditions of safety, the same result should follow; for the employer’s liability to pay compensation is not limited to responsibility merely for the risks he could have avoided. If the employer were permitted to litigate the intricacies of the bargaining that led to the employment, a new uncertainty would be introduced and the now discredited notion that the employee must be free from fault would, to that extent, be resurrected.”

LSA-R.S. 23:1081 provides:

“§ 1081. Deliberate or wilful injuries, etc.; defenses; burden of proof
No compensation shall be allowed for an injury caused (1) by the injured employee’s wilful intention to injure himself or to injure another, or (2) by the injured employee’s intoxication at the time of the injury, or (3) by the injured employee’s deliberate failure to use an adequate guard or protection against accident provided for him or (4) by the employee’s deliberate breach of statutory regulations affecting safety of life or limb.
In determining whether or not an employer shall be exempt from and relieved of paying compensation because of injury sustained by an employee for the causes and reasons set forth in this Section, the burden of proof shall be upon the employ-

Cagle Chevrolet could have protected itself by requiring claimant to undergo a pre-employment physical, especially in view of the fact that Joe Cagle, Sr. was aware of the fact that claimant had been previously injured. Joe Cagle, Jr., a part owner of Cagle Chevrolet, testified that he was also aware of the fact that claimant had been previously injured at the time he was hired. Further, as the trial court correctly found, claimant’s misrepresentation was not a factor in bringing about the accident that occurred. Finally, LSA-R.S. 23:1081 does not list wilful misrepresentation by a prospective employee of his physical condition as a defense to a claimant’s workmen’s compensation action.

The trial court correctly found that claimant’s misrepresentation as to his physical condition was no bar to his recovery in this action.

CLAIMANT’S ALLEGED INDEPENDENT CONTRACTOR STATUS

LSA-R.S. 23:1021 defines an independent contractor as follows:

“(5) “Independent contractor” means any person who renders service, other than manual labor, for a specified recompense for a specified result either as a unit or as a whole, under the control of his principal as to results of his work only, and not as to the means by which such result is accomplished, and are expressly excluded from the provisions of this Chapter unless a substantial part of the work time of an independent contractor is spent in manual labor by him in carrying out the terms of the contract, in which case the independent contractor is expressly covered by the provisions of this Chapter.”

The evidence shows that no contract existed between claimant and Cagle Chevrolet specifically for the clearing of the tract of land, providing that a certain area of the tract of land would be cleared for a certain price. Instead, claimant was paid by Cagle Chevrolet at the rate of $50.00 per day, or $6.00 per hour if he did not work a full day. Joe Cagle, Sr., in his testimony, specifically stated that claimant was an employee of Cagle Chevrolet. The bulldozer being operated by claimant belonged to Ca-gle Chevrolet. Both Joe Cagle, Sr. and Kenneth Cagle testified that they instructed claimant on an almost daily basis as to the clearing they wanted done, and that sometimes plans were changed so that different areas of the tract of land would be cleared.

We find no merit to the argument that claimant was an independent contractor.

WHO WAS CLAIMANT’S EMPLOYER?

Defendants contend that the trial court committed manifest error in finding that claimant was an employee of Cagle Chevrolet. Instead, they argue that he was employed by Joe Cagle, Sr. and Kenneth Cagle. We find no merit to this argument.

As noted above, Joe Cagle, Sr. specifically testified that claimant was an employee of Cagle Chevrolet. He also testified that the original purpose for hiring claimant was to clear some land, where Cagle Chevrolet planned to build new dealership facilities. However, re-zoning problems postponed those plans for a while and, during this period of time, claimant was put to work clearing the tract of land where the accident occurred. Joe Cagle, Sr. stated that if claimant had continued to work, he would have been used to clear land for the new dealership as soon as that became possible. Claimant was paid by checks drawn on the account of Cagle Chevrolet as shown by the evidence.

Defendants strenuously argue that claimant was employed by a joint venture existing between Joe Cagle, Sr. and Kenneth Cagle. They further argue that Kenneth Cagle had control and supervision over claimant, rather than Cagle Chevrolet, and that this factor proves that no employee-employer relationship existed between Ca-gle Chevrolet and claimant. However, defendants overlooked the fact that Kenneth Cagle was the secretary/treasurer for Cagle Chevrolet. Further, Joe Cagle, Jr. testified that he owned 25% of Cagle Chevrolet, and that claimant was paid by that entity. It is clear that claimant was under the control and supervision of the top management of Cagle Chevrolet, and was considered by them to be an employee of Cagle Chevrolet, which we find that he was.

Defendants argue that, if this Court should find that claimant was an employee of Cagle Chevrolet, then his injury was still not compensable under the workmen’s compensation laws because his employment was not necessary to and substantially related to the regular trade, business, or operation of Cagle Chevrolet.

LSA-R.S. 23:1031 provides that compensation shall be allowed for accidental injury “arising out of and in the course of” the claimant’s employment. Under the jurisprudence interpreting this statute, it has been held that the terms “arising out of” and “in the course of” are not synonymous but, nevertheless, must be considered together. To “arise out of” the employment, the accident must be the result of some risk to which the employee is subjected in the course of his employment and to which he would not have been subjected had he not been so employed. Time, place and circumstance must determine this. An accident occurs during the course of the employment when it occurs during the time of the employment and at a place contemplated by it. See Laughlin v. City of Crowley, 411 So.2d 708 (La.App. 3 Cir. 1982), and authorities cited therein.

We find that claimant’s accident was the result of some risk to which claimant was subjected in the course of his employment by Cagle Chevrolet. The accident occurred during the time of claimant’s employment and at a place contemplated by it. We find that the cases cited by defendants in support of their argument are inapposite to the case sub judice, in that they either deal with situations involving independent contractors, or involved decisions based on certain provisions of the Louisiana Workmen’s Compensation Act (LSA-R.S. 23:1035) that are no longer applicable to situations such as this.

ALLEGED EXCLUSION OF CLAIMANT FROM COVERAGE BY PROVISION OF POLICY

Great American argues that claimant is excluded from coverage by certain provisions of the policy of workmen’s compensation insurance issued by it to Cagle Chevrolet. The policy excludes coverage of employees engaged in domestic employment or farm or agricultural employment. Great American argues that claimant was engaged in farm or agricultural employment at the time of the accident.

The evidence clearly shows that Cagle Chevrolet was not engaged in the business of farming at the time of the accident. It is true that the land being cleared by claimant was to have been eventually used as pasture land on which Joe Cagle, Sr. and Kenneth Cagle were going to attempt to establish a small registered herd of Santa Gertruda and Brahman cattle. However, they were still in the process of acquiring cattle and raising them. They had sold none and had made no income off of such activity. In fact, Joe Cagle, Sr. indicated that the raising of these animals would be more of a hobby for him than anything else. We agree with the trial court’s finding that claimant, himself, was not engaged in farm or agricultural employment at the time of the accident and that the policy exclusion is inapplicable.

Great American also argues that the “alter ego” doctrine relating to corporations is applicable here and that Joe Cagle, Sr. in his “alter ego” as an individual had employed claimant. This issue was not raised in the pleadings, nor was it submitted to •the trial court. Thus, we will dismiss this argument with no discussion.

PENALTIES AND ATTORNEY’S FEES

Great American contends that the trial court committed manifest error in finding that it was arbitrary, capricious, and acting without probable cause, in failing to pay disability benefits to claimant. It argues that there were close legal questions involved as to whether its policy provided coverage for the accident in which claimant was injured. The only defense plead in Great American’s answer for its failure to pay claimant disability benefits was that its policy excluded coverage to anyone employed on the “Cagle Farm”. The evidence shows that the real dispute over who should pay disability benefits to claimant existed between defendants, themselves, rather than between either of the defendants and claimant.

Our review of the record establishes that the trial court’s finding that Great American acted arbitrarily, capriciously, and without probable cause, in failing to pay disability benefits to claimant is not clearly wrong. However, we find that the trial court erred in awarding claimant only $750.00 in attorney’s fees. We find this amount to be grossly inadequate. We will increase claimant’s award of attorney’s fees to $4,000.00 for said professional services rendered both in his appeal to this Court and the representation of him in the trial court.

DURATION OF CLAIMANT’S DISABILITY

Claimant contends that the trial court committed manifest error in finding that he would be partially disabled for a period “not exceeding six months from November 2, 1981”. As noted above, George Schneider, M.D., an orthopedic surgeon, who was accepted by the court as an expert in that medical specialty, provided the only testimony regarding the duration of claimant’s disability. He was of the definite opinion that claimant would recover from the injuries suffered in the accident within a period of six months post-trial. The trial court obviously accepted Dr. Schneider’s professional judgment.

Our review of the record establishes that the trial court’s finding regarding the duration of claimant’s disability is not clearly wrong. Once the trial court has made factual findings as to disability and the length thereof, these determinations are entitled to great weight and are not to be disturbed except upon a showing of manifest error. Hoofkin v. Schwegmann Brothers Giant Super Markets, Inc., 398 So.2d 1218 (La.App. 4 Cir. 1981); Newell v. United States Fidelity & Guaranty Company, 368 So.2d 1158 (La.App. 3 Cir. 1979); Stokes v. Continental Insurance Company, 345 So.2d 1200 (La.App. 1 Cir. 1977).

In addition, LSA-R.S. 23:1222 provides:

“§ 1222. Probable duration of disability as basis for compensation
For injury producing temporary total or temporary partial disability the court may, in its discretion, award compensation for a fixed number of weeks to be based upon the probable duration of such disability.”

For the above and foregoing reasons, the trial court’s judgment is amended to award claimant $4,000.00 as attorney’s fees for both his appeal to this Court and for the prosecution of his claim in the trial court, and is affirmed as amended.

All costs of this appeal are assessed against defendant-appellant, Great American.

AFFIRMED AS AMENDED.


author: DOUCET, Judge. FORET, Judge,

text:
    COMMERCIAL SECURITIES COMPANY, INC., Plaintiff-Appellee, v. Guiseppe CORSARO, Sr., et al., Defendants, Plantation Manor Restaurant, Inc., (Garnishee), Defendant-Appellant.
    No. 8781.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1982.
    Rehearing Denied Aug. 31, 1982.

      Gold, Little, Simon, Weems & Bruser, Dee D. Drell, Alexandria, for garnishee-appellant.
    Edward A. Kaplan, Alexandria, for plaintiff-appellee.
    Before CULPEPPER, FORET, DOUCET, SWIFT and LABORDE, JJ.
   DOUCET, Judge.

This is a garnishment suit wherein a default judgment was rendered pursuant to LSA-C.C.P. Art. 2415 against the principal debtor’s employer, Plantation Manor Restaurant, Inc., and in favor of plaintiff Commercial Securities Company, Inc. The garnishee appeals. We reverse and remand.

The rather convoluted procedural history of this case begins in Pineville City Court where the plaintiff received judgment on December 19,1979 against the debtors, Gui-seppe Corsaro, Sr. and Rose Corsaro, in the sum of $1,331.55 together with interest at the rate of 27% per annum from November 30, 1979 until November 30, 1980, and thereafter at the rate of 8% per annum until paid, plus 25% additional on principal and interest as attorney’s fees, together with costs of the proceedings. Thereafter the judgment was made executory in district court and plaintiff filed a garnishment petition with interrogatories on May 15, 1981. Plantation Manor, alleged employer of Rose Corsaro, was served on May 20, 1981, however the notation of personal service signed by the deputy failed to state what was served. Additional service was made on June 22, 1981 on the president of the restaurant, apparently as a matter of precaution by the judgment creditor. Requests for an answer met with no response. On July 7, 1981 appellee filed a Rule for Judgment against the garnishee for its failure to answer, which motion was fixed for hearing on July 20, 1981. No one appeared on appellant’s behalf. Judgment was rendered against the garnishee, signed July 24, 1981, for the total amount of the aforementioned Pineville City Court judgment, and additional attorney’s fees were awarded for the appellant’s failure to answer.

Subsequently, Plantation Manor was summoned to appear for a judgment debtor examination on September 9,1981, at which it appeared. On September 21, 1981, garnishee filed a Motion for Appeal, which was granted the following day. Also, on September 21, 1981, appellant filed a Motion for Annulment of Judgment and to Reopen Case pursuant to LSA-R.S. 13:3923. Said motion was denied on October 16, 1981. The trial judge assigned as reasons for the denial that R.S. 13:3923 was not applicable and that the court was without jurisdiction to hear any further evidence in the case as of the signing of the order of appeal.

On appeal Plantation Manor assigns as error the trial court’s grant of a judgment pro confesso on a petition for garnishment of wages, the refusal to grant the motion to reopen, and the court’s failure to order a hearing to determine the portion of wages, salaries, or commissions of Rose Corsaro which are exempt from seizure. Commercial Securities has answered the appeal seeking damages for frivolous appeal.

As aforementioned, the trial judge rejected appellant’s “Motion for Annulment of Judgment and to Reopen Case” on the grounds that jurisdiction thereof was lost upon mover’s theretofore filed Motion for Appeal already signed by the Court. However, he did so only after answering the issues presented herein adversely to appellant. LSA-R.S. 13:3923 provides that the trial court retains jurisdiction in a wage garnishment proceeding to reopen the case. Under this statute the court may grant retroactive relief from such a judgment. American Employers Ins. Co. v. Sybil Real ty, Inc., 270 F.Supp. 566 (E.D.La.1967). Nonetheless the decree involved is a final judgment for procedural purposes of review despite being subject to substantive change upon reopening of the case. Thus, two remedies were available to the litigant herein which were inconsistent with each other. Pursuit of one implies negation of the other as jurisdiction must lie in one court or the other. We find that appellant’s first act of election barred the subsequent motion under LSA-C.C.P. Art. 2088. Appellant’s election of remedies (appeal) deprived the trial court of jurisdiction pending disposition of the appeal, therefore dismissal of the motion to reopen was proper and we proceed to address the issues presented.

Initially we promptly reject appel-lee’s request for award of attorney’s fees for frivolous appeal. Appellee cites no cases clearly dispotive of the issues presented. The matter is one of first impression with persuasive arguments advanced by each side. Damages for frivolous appeal will not lie unless it manifestly appears that the appeal was taken solely for delay, or that appealing counsel does not seriously believe in the position he advocates, even though the appeal lacks serious merit. Brasseaux v. Reaux, 394 So.2d 688 (La.App. 3rd Cir. 1981).

Preliminarily, we feel that an overview of the applicable law would aid analysis of the issues presented. We look first to the general garnishment provisions. Failure of the garnishee to file his answer within the delay provided by law results in plaintiff being entitled to seek a judgment pro confesso against the garnishee. LSA-C.C.P. Art. 2413. Such a judgment is an interlocutory decree which deems the garnishee’s failure to answer to be a confession, or prima facie proof, that has sufficient assets in his hands to satisfy plaintiff’s claim. However, the judgment pro confesso is not self-executory and it is not until a contradictory motion is filed against the garnishee for the amount of the judgment that the stage is set for a default judgment against the garnishee. LSA-C. C.P. Art. 2413, Security Ins. Co. of Hartford v. Holliday, 363 So.2d 246 (La.App. 4th Cir. 1978). Up until this time the court may permit the garnishee to file his answers in an attempt to rebut the judgment creditor’s prima facie case. Nevertheless, regardless of the decision on the contradictory motion, the garnishee will be liable for costs and reasonable attorney’s fees incurred for the motion. The successful judgment creditor in the trial of such a motion is entitled to relief as provided in LSA-C.C.P. Art. 2415, which states that the court shall order the garnishee to deliver the property immediately to the Sheriff or pay him the indebtedness when it falls due. The last paragraph of said article states: “This article does not apply to the garnishment of wages, salaries, or commissions.”

Specialized procedures exist for the garnishment of wages, salaries and commissions due to the tenous relationship often existent in employment and the provisions, state and federal, exempting a certain percentage of an employee’s wages from seizure. LSA-R.S. 13:3921, et seq., was enacted to permit garnishment of yet unearned wages and hence created the necessity of continued jurisdiction by the trial court of a judgment garnishing future wages because of the ever present realization that, although garnished, the wages may never in fact be earned. The provisions provide that the court, after hearing all competent evidence, fix the exempt portion and render a judgment for periodic payments to the plaintiff out of the available non-exempt portion. If a prior act affects the non-exempt portion of the employee’s wages, a judgment is rendered but does not take effect until liquidation of the preceding demand. LSA-R.S. 13:3923 provides that it shall not be necessary for the creditor to serve more than one writ of garnishment or one set of interrogatories on the garnishee, however, noticeably absent is any proviso setting forth the effect to be given the garnishee’s failure to answer same. The article further provides that the court, in its discretion, may reopen the case upon motion of any party concerned for evidence affecting the proper continuance of such judgment, and the court retains jurisdiction to amend or set aside its judgment at any time in its discretion; however all effects of seizure cease upon discharge of the employee unless he is thereafter reinstated within 180 days. Additionally, a specific provision is made for reopening a judgment pro confesso against the garnishee whereby the trial judge, in his discretion and upon proper showing, may reopen the case.

Common to both sets of garnishment provisions is the general principle that a creditor acquires no greater right against the garnishee than his judgment debtor would have had if he had sought relief directly. Walker v. Townsend, 127 So.2d 224 (La.App. 3rd Cir. 1961) and cases cited therein. This is so because the garnishee is merely a stakeholder for the judgment creditor and only for as long as the requisite relationship between principal debtor and garnishee remains.

In discussing Act No. 181 of 1932, which is the source of LSA-R.S. 13:3923, the court in Julius Aaron and Son v. Berry, 165 So. 496 (La.App. 2nd Cir. 1936) said:

“The purpose and intent of the act are quite clearly reflected from its provisions. It was designed to give to a creditor the right to seize and have paid to him a fair portion of the wage or salary accruing to his debtor so long as such debtor is employed. In such a case, the act does not attempt to go further. When the employment ceases, the judgment ordering the garnishee to pay over a part of the employee’s salary to his judgment creditor also ceases to have effect. If the law were otherwise, garnishees could be, and would often be, mulcted for the benefit of persons to whom they are due nothing.”

The court therein further held that the remedy of having the case reopened was available even though the garnishee failed to answer in prior proceedings. Although rendered in 1936, Julius Aaron and Son remains good law.

More recently the Fourth Circuit stated that the general garnishment proceedings contained in the Code of Civil Procedure, Articles 2411 et seq, and the wage garnishment provisions in the Revised Statutes, 13:3921 et seq, must be considered supportive of each other as otherwise the wage garnishment proceedings could be ignored by obtaining judgment under codal provisions thereby precluding the garnishee from seeking relief under the statutory provisions creating his liability in the first instance. Accordingly, it was held that where an employer fails to timely answer wage garnishment interrogatories a default judgment may be rendered against him pursuant to C.C.P. Art. 2413 but the court has discretion thereafter to reopen the case pursuant to R.S. 13:3923. Beneficial Finance Company of Louisiana v. Haviland, 411 So.2d 1102 (La.App. 4th Cir. 1982).

We consider Haviland to be rightly decided and expound upon it. C.C.P. Art. 2413 provides that relief may be provided as set forth in C.C.P. Art. 2415. The latter article expressly provides that the remedy is not available in cases involving garnishment of wages, salaries or commission. Thus the Code of Civil Procedure prohibits a default judgment in such instances and the Revised Statutes provide for relief when the article is misapplied. R.S. 13:3923. In the case at bar appellee cannot be heard to say its claim is not one for wages as such is expressly stated in its petition. Nonetheless, Commercial Securities urges on appeal that its action should be characterized as general garnishment action, however the evidence overwhelmingly preponderates otherwise. Under these circumstances the rendition of the default judgment was in error and the case shall be reopened.

It is, of course, the duty of the garnishee to answer all proper questions and interrogatories and to make all proper disclosures concerning his indebtedness to the debtor or concerning property of the latter in his possession. The provisions of Art. 2413 relative to attorney’s fees and costs are consonant with the statutes pertaining to wage garnishment and amply protect the seizing creditor against court costs and attorney’s fees which are occasioned by the failure of the garnishee to answer the interrogatories. Mid-City Investment Co. v. Batiste, 248 So.2d 88 (La.App. 1st Cir. 1971). Furthermore, if additional sanctions are necessary to compel garnishee’s compliance resort may be had to ordinary contempt provisions. However, as the law stands, the garnishee cannot be penalized, for the benefit of the debtor, due to its failure to answer by imposing the total judgment upon the one who is merely a stakeholder.

The garnishee has established a prima facie showing of a meritous defense — the improperly rendered default judgment. Appellant is entitled to have the case reopened pursuant to LSA-R.S. 13:3923.

For the reasons set forth above the judgment appealed is reversed and the case remanded for further proceedings consistent with this opinion. Costs are taxed to appellant.

REVERSED AND REMANDED.

FORET, J., dissents and assigns reasons.

SWIFT, J., dissents for the reasons assigned by FORET, J.

FORET, Judge,

dissenting.

I respectfully dissent from the majority decision in this case for the reasons expressed by Judge Kleibert in his dissenting opinion in Beneficial Finance Co. of La. v. Haviland, 411 So.2d 1102 (La.App. 4 Cir. 1982).

      . LSA-C.C.P. Art. 2413.

      . id.

      . id.

      .id.

      . id.

      . LSA-R.S. 13:3921, 13:3922

      . LSA-R.S. 13:3922


author: CULPEPPER, Judge.

text:
    Lee RUSHING, Jr., Plaintiff & Appellant, v. INSURANCE COMPANY OF NORTH AMERICA, et al., Defendants & Appellees.
    No. 8822.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1982.
    Rehearing Denied Aug. 30, 1982.

      Ford & Nugent, William M. Ford, Alexandria, for plaintiff & appellant.
    Provosty, Sadler & deLaunay, David P. Spence, Alexandria, for defendants & ap-pellees.
    Before CULPEPPER, SWIFT and LA-BORDE, JJ.
   CULPEPPER, Judge.

This case is a sequel to Rushing v. Insurance Company of North America, 391 So.2d 864 (La.App. 3rd Cir. 1980). In that case, the plaintiff, Lee Rushing, Jr., sued his employer, John L. Pleasant, and his workmen’s compensation insurer, Insurance Company of North America, for workmen’s compensation benefits and penalties and attorneys’ fees. The trial court originally rendered judgment in favor of the plaintiff and against the two defendants for workmen’s compensation benefits and penalties and attorneys’ fees. Only the insurer appealed. The employer did not appeal. In the Court of Appeal the judgment was affirmed, except that the award of penalties and attorneys’ fees was reversed and set aside, and penalties and attorneys’ fees were denied.

Following the judgment on appeal, the workmen’s compensation insurer paid the plaintiff all sums except penalties and attorneys’ fees. However, plaintiff refused to sign a release authorizing the clerk of court of Rapides Parish to cancel the judgment from his records. Plaintiff took the position that the judgment in the district court against the employer for penalties and attorneys’ had not been appealed by the employer and had become final.

The present matter involves a rule to show cause filed by the employer, John L. Pleasant, Sr., and the workmen’s compensation insurer, Insurance Company of North America, against Lee Rushing, Jr. and the clerk of court of Rapides Parish to show cause why the judgment rendered by the district court and amended by the Court of Appeal should not be canceled from the records. The district court ordered the judgment be deemed paid and that it be canceled from the records. The defendant-in-rule, Lee Rushing, Jr., appealed.

The issue is whether the appeal by the workmen’s compensation insurer served to raise on appeal the question of the insured’s liability for penalties and attorneys’ fees, even though the insured did not appeal.

At the outset we note there is no explanation in the record for the employer’s failure to appeal. There was no dispute between the employer and his insurer over coverage or any other matter. The same attorneys represented the insured and the insurer. Insofar as the record shows, the insurer simply complied with its duty under its policy to defend its insured in the trial court. After defendants lost in the district court, only the insurer appealed, and it briefed all issues regarding liability for workmen’s compensation benefits, penalties and attorneys’ fees as if both the insured and the insurer had appealed. In the present rule to show cause, the same attorneys are again also representing both the insured and the insurer seeking cancellation of the judgment. We do not have before us at this time any dispute between the insured and the insurer.

The defendant-in-rule relies on the general rule that where a defendant is cast and the delays for taking a suspensive or devolutive appeal elapse without his taking an appeal, the judgment becomes final as to him, and no court can alter its substance. Mitchell v. Louisiana Power & Light Company, 380 So.2d 743 (La.App. 4th Cir. 1980); LSA-C.C.P. articles 2082, 2087 and 2123. Also pertinent are the many cases decided under LSA-C.C.P. article 2133 holding that where a party neither appeals nor answers an appeal from a judgment of the district court, the judgment cannot be modified, revised or reversed in his favor. Arrow Construction Company, Inc. v. American Employers Insurance Company, 273 So.2d 582 (La.App. 1st Cir. 1973); Gaspard v. Aetna Insurance Company, 390 So.2d 243 (La.App. 3rd Cir. 1980).

Nevertheless, the plaintiffs-in-rule contend, and the trial court held, that the appeal by the insurer brought before the Court of Appeal the issue of the insured’s liability for penalties and attorneys’ fees, and that the decision of the Court of Appeal denying penalties and attorneys’ fees modified the judgment of the trial court so as to relieve the insured of paying these items.

Plaintiffs-in-rule argue first that under LSA-R.S. 23:1201.2 and the case of Carmouche v. Haynes Lumber Company, 378 So.2d 466 (La.App. 3rd Cir. 1979), an employer who is covered by workmen’s compensation insurance may not be cast for penalties and attorneys’ fees. The answer to this argument is that where a party has neither appealed nor answered an appeal and the judgment has become final as to him, he cannot thereafter question the judgment even though it may have been erroneous and subject to reversal on appeal. Williams v. Baker, 398 So.2d 1188 (La.App. 2d Cir. 1981); Fontenot v. Pan-American Fire & Casualty Company, 209 So.2d 105 (La.App. 3rd Cir. 1968), writ refused.

Plaintiffs-in-rule rely principally on two cases. The first is Robertson v. Perry, 370 So.2d 596 (La.App. 4th Cir. 1979). In that case, plaintiff’s minor child was injured by a toy motor scooter owned by defendant’s 11-year-old child but operated by a 13-year-old neighbor child. Plaintiff sued the defendant and his homeowner’s liability insurer. The district court held the motor scooter was covered by the homeowner’s policy, and that the defendant insured was liable. The trial court judgment was rendered in favor of the plaintiff and against both the defendant and his homeowner’s liability insurer. However, as in the present case, only the insurer appealed. Unlike the present case, the insured had been represented by other counsel in the district court, presumably because of the coverage question, but that counsel withdrew. On appeal, the Fourth Circuit held the toy motor scooter was not a “recreational motor vehicle” within the exclusion clause of the policy, and therefore that the motor scooter was covered. However, the court held the insured was not liable for a neighbor child’s negligent operation of the scooter, because the scooter was not an unreasonably dangerous thing.

In Robertson, the Court of Appeal having concluded there was coverage by the insurer but that the insured was not liable, the court had to face the difficult procedural problem caused by the fact that only the insurer appealed. The court held:

“[2] We conclude, as in Emmons v. Agricultural Ins. Co., 1963, 245 La. 411, 158 So.2d 594, 600, relying on C.C.P. 2086’s grant of the right of appeal to any person who could have intervened (as the insurer could, had the insured been sued alone), that the insurer’s appeal does constitute an appeal from the judgment as against the insured. To hold otherwise “would be attributing to the [insured] the right to control the appeal and, so to speak, deprive [appellant insurers] of rights vested in them under the Constitution.” Appellant insurer cannot have an appeal on the question of its insured’s liability if its insured’s failure to appeal “controls” the insurer’s appeal. See also Vidrine v. Simoneaux, La.App. 3 Cir. 1962, 145 So.2d 400, cert. denied; Fontenot v. Grain Dealers Mut. Ins. Co., La.App. 3 Cir. 1964, 168 So.2d 478; Murry v. Bankers F. & M. Ins. Co., La.App. 3 Cir. 1967, 198 So.2d 532. Furthermore, from the insured’s point of view, he had no need to have the judg-merit “revised, modified, set aside, or reversed”, C.C.P. 2082, and therefore no need to appeal from the judgment, as long as it cast his insurer for its full amount: the insured is not aggrieved by the judgment as rendered.
“[3] We recognize, as did Murry, at 198 So.2d 538 n. 12, that one defendant’s appeal necessarily brings up the question of the other’s liability only to the extent necessary to decide the first’s appeal. Thus, if we reversed as to the insurer by applying the exclusion, that reversal would not reverse as to the insured on the ground that he was not liable. But, because we cannot reverse on the ground of the exclusion, and appellant insurer has the right to appeal on the question of its insured’s liability, we must consider that ground although it requires reversal of a judgment against the insured who did not appeal. Otherwise the insurer will be liable to the insured and, as in Emmons, the absence of a third-party demand by the insured against the insurer is not pertinent; C.C.P. 1113 preserves his right to sue hereafter.”

The primary rationale stated in Robertson is that:

“To hold otherwise ‘would be attributing to the (insured) the right to control the appeal and, so to speak, deprive (appellant insurers) of rights vested in them under the Constitution.’ Appellant insurer cannot have an appeal on the question of its insured’s liability if its insured’s failure to appeal ‘controls’ the insurer’s appeal.”

We prefer not to apply that rationale here. Under the policy provisions in the present case, the insurer had the duty to “defend any (workmen’s compensation) proceeding against the insured seeking such benefits.” The policy also provides under “Conditions” paragraph 7 that “The insured shall cooperate with the company and, upon the company’s request,_shall assist — in the conduct of suits or proceedings.” Under these provisions, the insurer had the duty to defend the insured on the question of liability for workmen’s compensation benefits, and the insured had the duty to cooperate in the conduct of suits or proceedings. If the insured refused to appeal, this would be a violation of the cooperation clause, relieving the insurer of any liability to the insured caused by the insured’s refusal to join in the appeal. Under this rationale, the insured could not control the appeal to the prejudice of the insurer.

The cases relied on in Robertson v. Perry, supra, are distinguished. Emmons v. Agricultural Insurance Company, 245 La. 411,

158 So.2d 594 (La.1963); Vidrine v. Simoneaux, 145 So.2d 400 (La.App. 3rd Cir. 1962); Fontenot v. Grain Dealers Mutual Insurance Company, 168 So.2d 478 (La.App. 3rd Cir. 1964); and Murry v. Bankers F&M Insurance Company, 198 So.2d 532 (La.App. 3rd Cir. 1967) all- involved tort actions against multiple tort-feasors or their liability insurers where only the defendant or insurer who was cast appealed, there being no appeal by the defendant or insurer who was not cast. In all of these cases, it was held that the appeal by the defendant who was cast brought before the Court of Appeal the defendant who was not cast, even though there was no third party demand by the defendant cast against the defendant not cast. This rule protects rights to contribution amongst tort-feasors and their insurers. It does not apply to the present situation where only one employer and his workmen’s compensation insurer were sued, and there are no contribution rights involved. The applicable rule is, as stated above, that where a judgment is rendered against a defendant, and he neither appeals nor answers an appeal, the judgment becomes final as to him.

In Robertson v. Perry, supra, the court also used the rationale that one defendant’s appeal brings up the question of the liability of a defendant who did not appeal to the extent necessary to decide the appeal. The reasoning was that otherwise the insurer who did appeal would be liable to the insured who did not appeal, and the result would be that the insurer would have to pay the judgment.

The same argument is made by the plaintiffs-in-rule in the present case. They contend that because of the insurer’s contractual obligation under its policy to fully indemnify the insured for any loss arising out of this workmen’s compensation claim, it is necessary that the appeal by the insurer bring before the Court of Appeal the question of the insured’s liability, otherwise the insurer will have to pay the penalties and attorneys’ fees which the Court of Appeal held it did not owe. In support of this argument, plaintiffs-in-rule cite Fontenot v. Sun Oil Company, 257 La. 642, 243 So.2d 783 (La.1971), which was a suit by a mineral lessor against his lessee and six owners of overriding royalty for cancellation of the lease and for an accounting. The trial court canceled the lease and ordered the lessee and the owners of the overriding royalty to account. The lessee and three of the overriding royalty owners appealed, but the other three owners of overriding royalty did not appeal. The Court of Appeal reversed the cancellation of the lease, except as to the three owners of overriding royalty who did not appeal. The Supreme Court granted writs and held that the judgment of the Court of Appeal was effective even as to the owners of overriding royalty who did not appeal. The court stated:

“This is a natural consequence of the judgment on appeal and it matters not, either from a common sense or legal standpoint, if any of the holders of overriding royalties appealed from the adverse decision of the district court so long as ultimately the judgment was set aside at the behest of the lessee. For, since the order for an accounting was dependent on the judgment of cancellation for its vitality, any modification and amendment thereof was just as effective as to those who did not join in the appeal. That this is the well-settled law of this country and in accordance with the jurisprudence of this Court is well stated in 5B C.J.S. Appeal and Error § 1952, as follows:
“ ‘A reversal is binding on the parties to the suit, but does not control the interest of parties who did not join, or were not made parties, to the appeal, unless their rights and liabilities and those of the parties appealing are so interwoven and dependent as to be inseparable, in which case a reversal as to one operates as a reversal as to all'3 (Italics ours)”

Under the holding in Fontenot v. Sun Oil Company, quoted above, the plaintiffs-in-rule in the present case argue that the rights and liabilities of the insurer and the insured are so interwoven and dependent as to be inseparable, so that a reversal as to the insurer operates as a reversal as to the insured on the question of penalties and attorneys’ fees. There is equity in this argument. However, the Fontenot case is the only decision in our jurisprudence which states such a rule. The decision in our Supreme Court was by a vote of four to two, with Justice Tate recused because he had written the decision in the Court of Appeal to the contrary. The decision is in conflict with many prior and subsequent decisions applying the rule that a judgment becomes final as to a defendant who is cast and does not appeal or answer an appeal.

Although we must of course recognize the holding of our Supreme Court in Fontenot v. Sun Oil Company, supra, we conclude this exception to the general rule should be restricted to the particular facts of that case. We see no reason, under the facts of the present case, to create another exception to the general rule.

In conclusion, we respectfully suggest to our Supreme Court that this is an uncertain area of the law as to which the Courts of Appeal need direction.

For the reasons assigned, the judgment appealed is reversed and set aside. It is now ordered, adjudged and decreed that there be judgment in favor of the defendant-in-rule, Lee Rushing, Jr., and against the plaintiffs-in-rule, Insurance Company of North America and John L. Pleasant, dismissing their rule at their cost. All costs in the trial and appellate courts are assessed against the plaintiffs-in-rule-appellees.

REVERSED AND RENDERED.


author: CULPEPPER, Judge. LABORDE, J.,

text:
    STATE of Louisiana in the Interest of Terry Joseph DRONET.
    No. 82-23.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1982.
    Rehearing Denied Aug. 30, 1982.
    Baggett, McCall, Singleton & Ranier, Robert C. McCall, Lake Charles, and Kenneth E. Badon, Cameron, for defendant-appellant.
    Jones, Jones & Alexander, Jerry G. Jones, Cameron, Raggio, Cappel, Chozen & Bern-iard, Stephen A. Berniard, Jr., Lake Charles, for plaintiff-appellee.
    Before CULPEPPER, SWIFT and LA-BORDE, JJ.
   CULPEPPER, Judge.

Mrs. Pamme Dronet Nobles has appealed from a judgment of the Thirty-eighth Judicial District Court, acting in its juvenile court capacity, declaring her 18-month old child, Terry Joseph Dronet, to be in need of care and giving custody of the child to the Department of Health and Human Resources (Department), for. placement in a foster care program.

The record reflects that on September 28, 1981, the juvenile court issued an oral instanter order placing the child in the Department’s custody. A verified complaint was filed on September 29, alleging that the child was in need of care within the meaning of LSA-C.J.P. article 13 for the reasons stated in the attached affidavit of Candace Faulk, a Department social worker. The affidavit set forth several instances in which the young mother left her home in Cameron, taking the child with her but failing to furnish him proper and necessary care.

On September 30, a hearing was held to determine the continued custody of the child pursuant to LSA-C.J.P. article 38. However, according to the judgment, “by stipulation and agreement of all parties present, the hearing to determine continued custody was converted to an adjudication and disposition hearing....” The mother was present at this hearing. Judgment was rendered in open court on September 30 and signed on October 28 finding Terry Dronet to be a neglected child in need of care and ordering that he remain in the home of his mother under the supervision of the Department. It further ordered that the child not be transported from the State without court approval.

On November 13, 1981, the district attorney filed another petition alleging that Pamme Nobles had violated the October 28 judgment by leaving her family home and taking up residence in Holly Beach, Louisiana, with a man not her husband. A hearing was had on November 19. The proceedings were recorded and have been transcribed for purposes of this appeal. The mother admitted she had moved to Holly Beach with the child, initially living for a short time in a motel with a man she had thought of marrying and subsequently moving in with a married couple. On November 19, judgment was rendered placing the child in the custody of the Department for eventual placement in a foster home. The judgment was signed on November 24, 1981. The mother timely appealed. The trial judge filed extensive written reasons on January 27, 1982.

The appellant’s specifications of error are:

“1. The Court erred in proceeding without citation, service of process or any written or recorded oral waiver of the same.
“2. The Court erred in failing to provide counsel or obtaining a knowledgeable waiver of the right to counsel.
“3. The Court erred in adjudicating the child- as a ‘Child in Need of Care,’ without competent evidence to support the findings.
“4. The Court erred in adopting emergency procedures without any exceptional circumstances or dangers justifying these.
“5. The Court erred in finding that the mother’s move from Cameron, Louisiana to Holly Beach, Louisiana was inconsistent with the safety and protection of the child.
“6. The Court erred in ordering the juvenile not be transported out of the State of Louisiana at any time without specific permission being granted by the Court, and then, upon request, refusing that permission.”

We will consider the specifications of error in the order listed above.

SPECIFICATION OF ERROR NO. 1:

There is no merit in the appellant’s contention that the proceedings were conducted without citation or service on her. Mrs. Nobles actually brought the citation and summons with a certified copy of the petition to the hearing on November 19, 1981. She testified under oath that she had received the papers on Monday before the hearing on the following Thursday.

SPECIFICATION OF ERROR NO. 2:

Under this specification, the appellant argues the court erred in failing to appoint special counsel for the child or to obtain a waiver of counsel as required by the following articles of the Code of Juvenile Procedure:

“Art. 95. Right to counsel
A. A child shall be entitled to counsel in the following proceedings:
(1) A hearing to determine continued custody;
(2) An appearance to answer a petition which requests that the child be adjudicated to be a delinquent;
(3) A transfer hearing pursuant to R.S. 13:1571.1 et seq.;
(4) An adjudication hearing if the petition requests that the child be adjudicated to be a delinquent;
(5) A disposition hearing if the child has been adjudicated to be a delinquent;
“(6) A hearing on a motion to modify the judgment of disposition in delinquency proceedings if the motion is filed by the district attorney or probation officer, unless the motion requests that the disposition be less restrictive;
(7) An appeal if the child has been adjudicated to be a delinquent.
B. The child shall be entitled to counsel in any other proceeding.
C. If the parents of the child are financially unable to afford counsel, the court shall appoint counsel in accordance with R.S. 15:141 et seq.
D. If the parents of the child are financially able to afford counsel but fail to employ counsel, the court may appoint counsel to represent the child at the expense of the parents in accordance with R.S. 15:148.
Added by Acts 1978, No. 172, § 1,' eff. Jan. 1, 1979,”
“Art. 96. Waiver of counsel
The child, with consent of the court and his parent, may waive assistance of counsel. Such waiver shall be evidenced by a writing signed by the child and his parent and filed in the record, or by a verbatim transcript of the proceedings in which the child is advised of his rights and, with consent of his parent,1 waives counsel.
Added by Acts 1978, No. 172, § 1, eff. Jan. 1, 1979.”

The issue is whether in a proceedings to determine whether a child is in need of care, within the meaning of LSA-C.J.P. article 13(14), it is necessary in every case for the court to appoint special counsel to represent the sole interest of the child, in addition to the district attorney who represents the interest of the child. In State in Interest of Brown, 387 So.2d 1366 (La.App. 4th Cir. 1980), writ denied 394 So.2d 615 (La.1980) without giving reasons, the Court of Appeal held in a similar case that LSA-C.J.P. article 95 mandates the appointment of counsel to represent the sole interest of the child, in addition to the district attorney. With all due respect to our brethren of the Fourth Circuit, we disagree. Neither article 95 nor any other article of the Code of Juvenile Procedure requires such special counsel. It is our view that the counsel required by article 95 can be, and is in the present proceedings, the district attorney. To hold otherwise would mean that in every such proceeding there would be two attorneys representing the interest of the child. In most cases, as in the present, the interest of the child can be best protected by the district attorney alone.

LSA-R.S. 14:403 et seq., which is the child abuse statute in criminal law, can be considered in pari materia for the purpose of construing article 95 of the Code of Juvenile Procedure. LSA-R.S. 14:403G(9) provides that in child abuse charges brought against persons who abuse children, the district attorney “shall represent the interest of the state, which interest shall be the protection of the child.” We note that the 1974 Act contained the additional provision that “The court may also appoint an attorney to represent the sole interest of the child.” The 1979 amendment deleted this express provision allowing the juvenile judge, in his discretion, to appoint counsel for the child alone. We will not speculate as to whether the intention of the legislature in making this change was to prohibit or discourage appointment of additional counsel for the child. In any event, appointment of such additional counsel is not required in either the child abuse law or the Code of Juvenile Procedure.

Thus, it is our conclusion that in proceedings to determine whether a child is in need of care, the district attorney, represents the interest of the state, which interest is the protection of the child, and this satisfies the requirement of article 95 that the child shall be entitled to counsel. Article 95 does not mandate that in addition to the district attorney another special counsel shall be appointed to represent the sole interest of the child.

In State in Interest of Brown, the Court of Appeal cites In Interest of Gen usa, 381 So.2d 504 (La.1980) as authority for requiring the appointment of special counsel to represent the sole interest of the child. In that case, an 18-month-old child was found to be in a state of neglect and removed instanter from the parents and placed in the custody of the Department. A hearing was scheduled to determine continued custody. The juvenile judge appointed special counsel to represent the sole interest of the child at the hearing. This special counsel filed a motion to compel the disclosure before the hearing of the child’s location and the identity of the foster parents. The trial court denied the motion, and the Court of Appeal denied writs. The Supreme Court granted writs and reversed, holding that an attorney appointed to represent a child at a continued custody hearing was entitled to information as to the child’s whereabouts and custodians so that he could prepare for the hearing. The Genusa case is not authority for a rule that in every proceedings to determine whether a child is in need of care it is mandatory under C.J.P. article 95 that special counsel, in addition to the district attorney, be appointed to represent the interest of the child. The case did not involve that issue.

The appellant cites In Interest of Howard, 382 So.2d 194 (La.App. 2d Cir. 1980). In that case, the parents of a 14-year-old daughter were charged with abuse and neglect under LSA-R.S. 14:403, a criminal law. At the hearing, the parents advised the court they could not afford to employ counsel and requested the court to appoint an attorney to represent them. The trial judge refused, on the basis that this particular law did not provide for appointment of counsel. The Court of Appeal reversed on the grounds that since this was criminal law for violation of which the parents could be fined or imprisoned, they were constitutionally entitled to appointment of counsel. The Howard case is distinguished from the present matter in that here the proceedings is brought under the Code of Juvenile Procedure to determine whether the child is in need of care. There are no provisions in the statute under which these proceedings were filed for the imposition of penalties of any kind against the parent. Hence, the parent is not constitutionally entitled to appointment of counsel. Of course, the C.J.P. does not require appointment of counsel to represent the parent. Moreover, the parent in the present case made no request for appointment of counsel to represent her. It was not until after the child was removed from her custody and placed in foster care that she employed counsel to prosecute this appeal.

SPECIFICATIONS OF ERROR NOS. 3, 4, 5 and 6:

Specifications of Errors Nos. 3, 4, 5 and 6 address themselves essentially to the merits of whether the juvenile judge erred in finding the child was in need of care. The record before us contains ample evidence to support the finding by the juvenile judge that this child was in dire need of care. The trial judge gave five pages of written reasons explaining in detail his adjudication. These proceedings were initiated when Mr. and Mrs. E. J. Dronet, parents of the mother of the child, reported to Mrs. Candace Faulk of the Office of Human Development, that Mrs. Nobles had disappeared with her infant child and her whereabouts were unknown. According to the original affidavits which precipitated these proceedings, this was a pattern of behavior by Pamme which had been repeated many times. The Dronets stated that Pamme had been extremely erratic since her adolescent years. The most disturbing thing she repeatedly did was to leave Cameron in the company of strange men older than herself. On one of these trips she became pregnant with the child in question, Terry Joseph Dronet.

Mr. and Mrs. Dronet tried several times to get help for Pamme. She was a patient at East Louisiana Hospital, a student at All Saints School in Vicksburg, and was placed under the care of a psychiatrist. Unfortunately, she received no benefit from these efforts.

Following the birth of the child, Pamme continued her pattern of behavior. She would leave, often hitchhiking and disappearing for periods of time and taking the infant with her. Even after her marriage to James Nobles, Pamme left with a truck-driver for a period of four weeks, and neither her husband nor her parents knew her whereabouts. She finally called from Oklahoma City and her parents and her husband sent her money to return home. On returning to Cameron, she met another stranger and she and the infant again disappeared for several days. On a subsequent occasion, when the child was about five months old, the child became very ill and Pamme brought the infant back to her parents in Cameron, where the infant was hospitalized and found to have a bacterial infection causing severe dehydration.

On these occasions when Pamme took the child with her on hitchhiking trips,' the child’s health was endangered. On her return, the child was dirty and usually had bad diaper rash and was in poor health. All of this is described in the record and in the trial judge’s written reasons. The trial judge explains why he finally had to remove the child from Pamme’s custody and place him in foster care:

“The hearing of November 19, 1981 was provoked by the Department when it learned that Mrs. Nobles had again left the family home and was living in sub-standard conditions at a camp in Holly Beach, Louisiana with a young man by the name of Darrell Goodwin. At that hearing, the court confronted Mrs. Nobles with the allegations of the Department. Mrs. Nobles admitted that she had left her husband’s home and was living in Holly Beach. She related that her leaving was part of a plan to divorce her husband and marry Mr. Goodwin. However, at the time of the hearing, as evidenced by the transcript taken of the court’s conversation with Mrs. Nobles, she stated that she had again changed her plans and she no longer planned to marry Mr. Goodwin, she had taken up residence with two other people at Holly Beach named Dana and Kenny Houston. The court deferred ruling at the time of the November 19, 1981 hearing.

“After meditation on the problem, it was the court’s decision that the Department should consider a foster care program which would be phased in gradually and, also, be phased out gradually on a showing that Mrs. Nobles had developed the capability to provide for the safety and welfare of the child. This was the second judgment of the court.

“Pursuant to the plan, the case worker went to the Houston residence in Holly Beach on the Wednesday immediately following the hearing. That was November 25,1981. The worker was informed by Mrs. Houston that Mrs. Nobles had again disappeared with the infant child letting no one know her whereabouts. After contacting her husband and Mr. and Mrs. Dronet and becoming alarmed that Mrs. Nobles had again placed herself and the infant in a dangerous situation, the worker sought and received from this court an order that the child be taken into custody whenever it could be located.

“As a part of the order for custody, the court, also, issued an oral order that the foster care program be accelerated in view of the immediate danger posed by allowing Mrs. Nobles to maintain even partial custody of the child. Upon the basis of that modification, the Department obtained custody and placed the infant in foster care after Mrs. Nobles appeared and surrendered the .child.”

We conclude there is no merit in Specifications of Error Nos. 3, 4, 5 and 6.

DECREE

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

AFFIRMED.

LABORDE, J.,

dissents. Article 95 of the Louisiana Code of Juvenile Procedure clearly mandates that the child be represented by counsel. See State In Interest of Brown, 387 So.2d 1366 (La.App. 4 Cir. 1980), writ denied, 394 So.2d 615 (La.1980).


author: GULOTTA, Judge.

text:
    Earl SMITH v. CUMIS INSURANCE SOCIETY, INC., Allstate Insurance Company, and Earl Venible.
    No. 13034.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 7, 1982.

      William T. Bringle, New Orleans, for plaintiff-appellee.
    Porteous, Toledano, Hainkel & Johnson, David J. Mitchell, New Orleans, for defendant/appellant Cumis Ins. Society, Inc.
    Before GULOTTA, GARRISON and BARRY, JJ.
   GULOTTA, Judge.

Appealing from a $3,394.17 jury verdict in this automobile accident case, Cumis Insurance Society, Inc., insurer of the owner of the defendant vehicle, contends: 1) plaintiff failed to prove insurance coverage by Cumis; 2) plaintiff had no right of action since his own insurer, Allstate Insurance Company, became subrogated to his claim; and, 3) the $1,302.69 jury award for property damage was erroneous because it exceeded the automobile’s value.

The accident occurred on February 3, 1979, at the intersection of Caffin and Urquhart Streets in New Orleans at approximately 5:30 p. m. Earl Smith’s automobile, southbound on Caffin, was side-swiped by the defendant truck headed northbound as it attempted to pass another vehicle. After the collision, the defendant truck failed to stop and left the scene. Plaintiff gave chase and found the truck abandoned fifteen blocks from the accident site.

Smith learned from the truck owner, Freddie Green, that he had loaned the truck to Earl Venible on the day of the accident. According to Green, Venible told him someone had stolen the truck.

Smith’s damage suit was directed against; 1) Green’s insurer, Cumis; 2) Earl Venible; and 3) Allstate, plaintiff’s uninsured motorist and medical pay insurer. Allstate thereafter paid plaintiff $3,000.00 in uninsured motorist payments and $356.19 in medical payments under the policy and became subrogated to plaintiff’s claim for that amount.

Based on the conventional subrogation, Allstate intervened seeking reimbursement from Cumis and Venible for the amounts paid to plaintiff. This claim was compromised and the intervention was dismissed.

The matter went to trial on Smith’s claim against Venible and Cumis. Judgment was rendered in favor of plaintiff and against these defendants in solido.

PROOF OF INSURANCE POLICY AND COVERAGE

We find no merit to defendants’ contention concerning lack of proof of policy coverage. Although plaintiff did not introduce the policy into evidence, Cumis, in answer to Allstate’s request for admissions of fact, admitted that Green’s vehicle was covered under a policy of liability insurance and that if Earl Venible were using Green’s vehicle with his permission, then Cumis would be liable up to policy limits.

We reject Cumis’ contention that only Allstate, not plaintiff, can rely on the admissions to prove insurance coverage. LSA-C.C.P. Art. 1468, concerning the effect of an admission, states, in pertinent part:

“Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission.... Any admission made by a party under Articles 1466 and 1467 is for the purpose of the pending action only and is not an admission by him for any other purpose nor may it be used against him in any other proceeding.” (Emphasis ours.)

Although any admission made by a party is only for the purpose of the pending action, we do not interpret this article to limit its use to the party who requested the admissions.

Moreover, Allstate, when requesting the admissions, was the conventional subrogee of a portion of plaintiff’s claim against Cu-mis, and “stood in the shoes” of the plaintiff-subrogor. See Great American Indemnity Co. v. Laird, 73 So.2d 6 (La.App. 2d Cir. 1954). It would be anomolous, therefore, to deny plaintiff the use of defendant’s admission made to plaintiff’s partial subrogee in the same proceeding as proof of a fact essential to both plaintiff and the subro-gee’s claims against defendant. Accordingly, we conclude that Cumis’ admissions establish coverage.

We likewise reject Cumis’ contention that plaintiff failed to prove Earl Venible was operating the defendant truck with Green’s permission at the time of the accident. Although plaintiff could not identify the driver of the defendant vehicle, the circumstantial evidence indicated Venible was the negligent operator. Undisputed evidence indicated Green’s truck had left the scene of the accident with a flat tire, and Catherine Brown, a witness who knew Venible, testified that she had seen Venible operating a truck fitting that description in the vicinity of the accident site within ten minutes after hearing the noise of the crash.

The only evidence rebutting plaintiff’s version was the hearsay testimony concerning Venible’s self-serving statement to Green that the truck had been stolen sometime after Green had loaned it to him. Venible did not appear at trial. Under the circumstances, we find no error in the jury’s finding that Venible was the driver of the truck.

PLAINTIFF’S RIGHT OF ACTION

We are not persuaded by defendant’s argument that plaintiff has no right to assert a claim against Cumis after receiving $3,356.19 under his policy of insurance with Allstate, or, alternatively, that Cumis should be allowed a credit in this amount.

After receiving $356.19 in medical payments from Allstate, plaintiff executed a “Release and Subrogation Receipt” in favor of his insurer “to the extent of the payment....” He also received a separate $3,000.00 uninsured motorist payment and executed an “Uninsured Motorist Release” in Allstate’s favor “to the extent of the payment. .. ,”

We do not quarrel with the authorities cited by Cumis for principle that the right to assert a subrogated claim rests with the subrogee. Furthermore, these same authorities establish that where subrogation is partial, the subrogor may enforce his claim judicially and recover to the extent of his retained interest.

In our case, the partial releases executed by plaintiff were “to the extent of the payment” received. Moreover, plaintiff admitted that he had received funds in settlement from Allstate. Although aware of this fact, the jury nonetheless chose to award plaintiff a verdict over and above the subrogated amount.

Accordingly, we view the jury’s award as an amount which the jury intended in excess of the amount recovered by plaintiff in subrogation. Under the circumstances, we cannot say the jury was clearly wrong in making this award.

PROPERTY DAMAGE

Finally, we reject defendant’s argument that the jury erred in awarding $1,302.69 in property damages.

Plaintiff’s appraiser estimated the cost of repair at the amount awarded. Although this witness also stated that this cost exceeded the value of the vehicle, no evidence was offered to establish the automobile’s value. Furthermore, plaintiff testified that he owned the car at the time of trial and that he had spent approximately $1,200.00 for repairs. Considering that the jury had before it only the cost of repair, we cannot find error. Defendant had as much opportunity as did plaintiff to submit evidence of the value of the vehicle. In the absence of any additional evidence, we find no error.

Having so concluded, we affirm the judgment of the trial court.

AFFIRMED.

      . The Allstate policy is not in the record and we are at a loss to know the exact wording. In oral argument, Cumis’s counsel stated that Allstate became subrogated to plaintiffs claims for medical payments, pain and suffering and loss of wages to the extent of the payments to plaintiff. Plaintiff’s counsel, on the other hand, views the Allstate payments as pertaining to plaintiff’s claim for pain and suffering and medical payments but not for property damage or loss of wages.

      . See LSA-C.C.P. Art. 697; Reisz v. Kansas City Southern R. Co., 148 La. 929, 88 So. 120 (1921); Smith v. Foucha, 172 So.2d 318 (La. App. 4th Cir. 1965); Younger v. American Radiator & Standard San. Corp., 193 So.2d 798 (La.App. 3rd Cir. 1967); Carl Heck Engineers, Inc. v. Daigle, 219 So.2d 294 (La.App. 1st Cir. 1969); Rond v. Sims, 355 So.2d 591 (La.App. 4th Cir. 1978); Jones v. Gentilly Dodge, Inc., 397 So.2d 849 (La.App. 4th Cir. 1981).

      .In response to specific interrogatories, the jury awarded plaintiff the following amounts: $1,500.00 for pain and suffering; $372.10 for medical expenses; $219.38 for loss of wages; and, $1,302.69 for property damage, or a total award of $3,394.17.


author: GARRISON, Judge.

text:
    Larnell BRACH, wife of/and Henry J. Sauviac v. Joyce McCLANAHAN, wife of/and Albert Charles Burns, Wonders Realty, Inc. and Albert L. Klotz, Jr.
    No. 12962.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 7, 1982.
    Deutsch, Kerrigan & Stiles, Victor E. Stilwell, Jr., New Orleans, for plaintiffs-appellants.

      Meunier, Martin & Meunier, Richard J. Meunier, New Orleans, for defendants-ap-pellees, Dr. & Mrs. Albert C. Burns.
    William G. Whatley, Baton Rouge, for defendant-appellee, Wonders Realty, Inc.
    Before GULOTTA, GARRISON and BARRY, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court denying plaintiffs’ suit for reeission, granting plaintiffs’ action in quanti minoris and awarding diminution of the price in the amount of $5,500.00. Plaintiffs’ actions against various real estate agents and homeowner insurers for fraud and/or misrepresentation were dismissed, as were plaintiffs’ claims for attorney’s fees, costs, relocation, rent and other miscellaneous expenses. From that judgment, plaintiffs appealed; defendants Burns and United States Fidelity and Guarantee Company answered the appeal.

On October 25, 1978, Mr. and Mrs. Henry J. Sauviac purchased No. 3 Spanish Fort Boulevard in New Orleans from Dr. and Mrs. Albert Charles Burns for $75,000.00. Shortly after moving into the house, the Sauviacs discovered rotted studs in the walls, a deteriorated leaking roof, water seepage, and electrical and mechanical problems which resulted in termination of utility service due to unsafe conditions. The Sauviacs moved and have lived in rental apartments since that time.

The trial judge provided the following written reasons for judgment:

“Issues which had to be resolved were: “(1) Were there any defects in this home of sufficient magnitude to warrant the rescission of the sale, plus damages, as requested by the plaintiffs;
“(2) If any such defects did exist, were they ‘hidden’ or were they susceptible to discovery by an ordinary inspection of the premises?
“(3) If some hidden defects did exist, were they of a minor nature and more or less to be expected in a home of this age?
“(4) Is a diminution in price the proper resolution of this dispute, rather than a rescission of the sale?
“The house was approximately 35 years old. It was established to the court’s satisfaction that the plaintiffs were anxious to buy a home in the lakefroiit area in the price range in which this house sold ($75,000.00). The court concluded that the strong desire of the plaintiffs to buy such a home perhaps obstructed their willingness to observe defects or drawbacks prior to purchase. But most importantly, testimony and evidence showed that the plaintiffs themselves caused considerable damage to this home after their purchase, in their attempt to determine whether there were any hidden defects. In fact, the basic usefulness of this home was practically destroyed by the overzealous actions in the way of examination conducted by the plaintiffs after their purchase. The court feels that such damage was totally unnecessary and unwarranted. It would be inequitable to compel the sellers to take back this home which has been so extensively damaged by the buyers in their search for defects.”

After carefully weighing the testimony and evidence and observing all parties involved, the court concluded:

“(1) The sellers had no intention to, nor did they in fact, hide any defects in this home;
“(2) The buyers were most anxious to buy this particular home at the price finally reached;
“(3) All defects existing in this home at the time of the sale were readily observable by simple inspection.
“Of the 28 defects alleged in plaintiffs’ petition, only 2 can be in any way construed as hidden defects. These were the ‘homemade’ electrical work and the possibly deteriorated studs in some walls. All other alleged defects were either unproven or were shown to be readily observable by simple inspection of any ordinary buyer. In addition, there are some minor items which must be corrected to comply with the City Building Code.”

On appeal, plaintiffs raise the following issues:

1. The trial court’s failure to find that the sellers had knowledge of and omitted to declare the defects;
2. The trial court’s failure to find that the roof condition and water seepage constituted hidden defects;
3. The trial court’s award for reduction failed to adequately compensate the plaintiffs; and
4. Failure to award expert fees, attorney’s fees and additional damages for temporary living expenses.

The trial judge specifically found that the Burns had told the Sauviacs that much of the work done on the house was the amateur effort of Dr. Burns and that the Burnses had provided to the Sauviacs a detailed discussion of the problems with the house. Dr. Burns further testified that he had informed Mr. Sauviac that the low price of the house was due to its defects. Likewise, both Dr. Burns and Mr. Sauviac testified that Burns stated that the water stains were the result of a leak which had been repaired. Burns testified that the seepage was visible because the caulking that he used to keep it under control was visible and that the roof problems were visible because the old water stain was visible. The record contains very little evidence about the degree of visibility of anything. Both attorneys simply asked, in effect, whether or not something were “visible.” Predictably, the Burnses would say “Yes, it was visible” and the Sauviacs would say “No, it wasn’t.”

On appeal the scope of appellate review is whether or not the trial judge was manifestly erroneous in his factual determinations:

“Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.” Canter v. Koehring Company, 283 So.2d 716, 724 (La.1973).

Thus, in reviewing the first two specifications of error, we cannot conclude that the trial judge was manifestly erroneous in his factual determinations and credibility calls.

The third specification of error deals with the amount of reduction. Plaintiff seeks to have the reduction increased to $20,877.00, including $3,930.00 for electrical and mechanical defects, $1,200.00 for the roof, and $15,747.00 for the framing. Dahl-man, a general contractor and estimator and witness for the Sauviacs, provided the figures above. In each instance, he estimated making the cheapest type of repair available and reusing materials already in the house. Some of Dahlman’s cited inadequacies, such as the need to finish the paneling in the small bedroom, actually would comprise additionals to the purchased structure. The trial judge further found that most of the “repairs” are necessary solely because of the Sauviac’s overzealous inspections.

On the issue of living expenses, the trial judge found that plaintiffs were forced to move because of the extensive inspections which virtually made the house uninhabitable.

On appeal, the scope of appellate review on the question of quantum is whether or not the amount awarded below constituted a clear abuse of discretion. In the light of the trial judge’s findings that most of the shortcomings were due to damage inflicted by the plaintiffs, we cannot conclude that the amount awarded constituted a “clear” abuse of discretion.

Turning to the question of attorney’s fees, we note that attorney’s fees are provided for under C.C. Art. 2545 when a seller knows of a vice and fails to declare it. In the instant appeal, the vices were declared; hence plaintiffs were not entitled to attorney’s fees.

Expert fees are mandatory under R.S. 13:3666(A):

“Witnesses called to testify in court only to an opinion founded on special study or experience in any branch of science, or to make scientific or professional examinations, and to state the results thereof, shall receive additional compensation, to be fixed by the court, with reference to the value of time employed and the degree of learning or skill required.” (emphasis added)

In this case the expert fees “are to be taxed as costs to be paid by the party east in judgment ...” However, both parties were cast in judgment. Accordingly, the trial judge acted properly in denying expert fees.

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

AFFIRMED.