text:
    Charles DAIGLE, Jr. v. WEST JEFFERSON GENERAL HOSPITAL, et al., (Dr. Raymond E. Horn, Dr. Earl Rozas, and Dr. James A. McKeon).
    No. 5-186.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 1982.
    Charles Daigle, Jr. in pro. per.
    Lemle, Kelleher, Kohlmeyer & Mathews, H. Martin Hunley, Jr., New Orleans, for defendants-appellees.
    Before CHEHARDY, BOWES and GRISBAUM, JJ.
   GRISBAUM, Judge.

This is a medical malpractice case. Appellant Charles Daigle claims that appellees Drs. Horn, Rozas and McKeon lacked adequate skill or failed to utilize their skill in treatment of his foot. The trial court rendered judgment in favor of appellees and dismissed appellant’s suit at his cost. We affirm.

On September 20, 1974 appellant was working as a switchman for a private company. His right foot slipped and was run over by the wheel of a railroad car. He was immediately taken to West Jefferson General Hospital’s emergency room and examined by Dr. Horn, an orthopedic surgeon. Dr. Horn reported that the accident resulted in a traumatic amputation of the right foot extending to the base of the metatarsals, translated as a loss of appellant’s forefoot. Appellant was placed on various antibiotics during his entire stay at West Jefferson. He was operated on the first day to remove the fragmented bones and muscles. Dr. Horn’s partner, Dr. Rozas, saw the appellant a few times in the hospital but was not actively involved in his treatment.

On October 16, 1972, Dr. James McKeon, a plastic surgeon, did a debridement of the right foot involving cutting away of dead tissue. Appellant became disturbed with his treatment after the debridement and on October 18th told Dr. McKeon that he did not want his services any longer.

Dr. Day, another plastic surgeon, was then called in on the case. He followed appellant until Mr. Daigle was transferred to Touro Infirmary per appellant’s request on October 24,1974. Mr. Daigle then came under the care of Dr. Stuart Phillips, an orthopedic surgeon. Dr. Phillips subsequently performed a below the knee amputation on appellant.

Appellant filed suit on September 22, 1975 against West Jefferson General Hospital, Drs. Raymond E. Horn, Earl J. Rozas, James A. McKeon, and James Dudley Day. A Motion for Summary Judgment was granted on behalf of West Jefferson and Dr. Day on April 3, 1980 and May 23, 1980 respectively. On June 23, 1981 a trial was held and on July 10, 1981 judgment was signed dismissing appellant’s suit against the remaining appellees.

The sole issue is whether the appellees exercised improper care resulting in an infection of appellant’s foot and leg, necessitating a below the knee amputation.

In a malpractice action based on the negligence of a physician, the plaintiff’s burden of proof is set out in Louisiana Revised Statute 9:2794 which states:

A. ... (T)he plaintiff shall have the burden of proving:
(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians or dentists licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians or dentists within the involved medical speciality.
(2) That defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill, and
(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.
******
C. In medical malpractice actions the jury shall be instructed that the plaintiff has the burden of proving, by a preponderance of the evidence, the negligence of the physician or dentist. The jury shall be further instructed that injury alone does not raise a presumption of the physician’s or dentist’s negligence. The provisions of this Section shall not apply to situations where the doctrine of res ipsa loquitur is found by the court to be applicable.

Appellant called as his main witness Dr. Stuart Phillips, the orthopedic surgeon who performed the amputation. He stated that when he first saw the appellant on October 24, 1974 he saw no serious infection, evidenced by the fact that he did not give appellant antibiotics. He testified that the treatment received by the appellant at West Jefferson was reasonable and proper. He at no time placed any blame on the appellees for the resulting amputation. It was his professional judgment that a below the knee amputation was preferred to the partial foot the appellant was left with.

The trial judge gave oral reasons for judgment at the conclusion of the trial. He found that the evidence failed to prove by a preponderance of the evidence any negligent action on the part of the appellees. Upon examining the record, we find the appellant failed to show any lack of knowledge of skill or failure to use reasonable care and diligence. He also failed to show any proximity between appellees’ treatment of appellant and the ensuing amputation.

For the reasons assigned, the judgment is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: GRISBAUM, Judge.

license: Public Domain

text:
    E.A. BELL d/b/a Universal Engineering v. BADGER DREDGING, INC. and Continental Grain Company.
    No. 5-140.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 1982.
    Codings & Codings, R. William Codings, Lake Charles, for plaintiff-appellee.
    Don Almerico, Norco, John M. Crum, Jr., La Place, for defendants-appellants.
    Before CHEHARDY, BOWES and GRISBAUM, JJ.
   GRISBAUM, Judge.

This is a suit on an oral lease agreement of a dredge and dredge equipment. From a judgment on January 22, 1981 awarding E.A. Bed d/b/a Universal Engineering, $47,524.95 with legal interest from date of judicial demand, for rental and repair costs on two “mudcat” dredges, appellant, Badger Dredging, Inc., appeals claiming that the trial court erred in awarding damages for rent and repair costs on dredges leased from Universal Engineering and in finding that the dredges and equipment supplied by Universal Engineering were not defective. We affirm.

E.A. Bed initially sued Badger Dredging, Inc. and Continental Grain Company for dredges and labor furnished by Bed for the improvement of property owned by Continental Grain Company. Bed effected a lien upon Continental Grain’s property and contended Continental Grain was in solido liable with Badger for rental of dredges and labor furnished by Bed. On June 19, 1979 Bed moved for dismissal of its suit against Continental Grain reserving its right against Badger Dredging, Inc. Badger answered Bell’s petition claiming among other things late delivery of equipment, failure to deliver in accordance to Badger’s order, and payment in full. It also set forth as an affirmative defense that Bed breached its duty to deliver by supplying a defective dredge and asked in a reconvention demand for damages as a result of this breach.

The trial court found that Bell and Badger entered into a lease agreement for the use of a dredge in the sum of $15,000 per month, that Badger had an obligation to pay for repairs on the dredges due to improper operation of dredges, and that the equipment which Bell delivered was not “for the most part” defective crediting defendant for parts that were defective which it replaced at its cost.

Practically all the material facts were disputed by the parties. In order to fulfill a contract with Continental Grain Company to dredge a portion of Continental’s property located in a bend in the Mississippi River, Henry Smith, president of Badger, contacted E.A. Bell, owner of Universal Engineering, to lease a dredge. Rental of equipment without Universal’s personnel to operate the equipment was not a practice of Universal; therefore, some inquiry of a dredge rental company regarding the proper amount of rental payment was necessary before Bell could quote Mr. Smith Universal’s price. Eventually, Bell and Smith agreed that Badger would lease a mudcat dredge from Universal. There is conflicting testimony and other evidence as to whether $15,000 or $20,000 per month was agreed as rent for 24-hour-a-day use of the Universal dredge.

Several days after the lease agreement was entered into Badger’s trucks arrived to pick up the leased equipment. Replacement of a flexible hose which connected the pump to a suction line and a battery were necessary to make the dredge operable. While there is conflicting testimony as to when Badger was informed of these deficiencies, it is uncontroverted that Badger did agree to accept the dredge with these deficiencies and to secure and install a hose and battery and bill Universal for these.

From the start of the dredging project there were problems with the dredge. Defendant’s witnesses testified that the pump was defective causing the discharge hose to burst. There was also testimony by defendant’s witnesses that it had a malfunctioning spline with the spline gear totally nonfunctional and a defective pump clutch. Moreover, Badger’s witnesses claimed that one of Universal’s employees who assisted in the dredging when problems initially arose with the dredge was not able to operate the dredge properly and could not make the necessary repairs on it. Due to problems with the first dredge, Universal replaced it with another mudcat dredge. Defendant’s witnesses testified that this dredge was also defective in that the clutch was slipping, the teeth on the auger were worn down and bent, and hoses on it were rotted due to its prior use in dredging of small ponds containing chemicals.

In contrast, plaintiff’s witnesses testified that the defendant’s employees operated the dredge improperly by using it beyond its capacity in an area (a bend in the Mississippi River) unsuited for the mudcat dredges and that defendant attempted to dredge materials that these particular dredges were unable to dredge.

This case is concerned with two issues:

1) Whether defendant who claims extinction of its obligation to pay rent has satisfied the requirements of proof under Louisiana Civil Code Article 2232; and

2) Whether the lessee caused damage to the equipment leased through its own fault thereby making it responsible for repair costs pursuant to Louisiana Civil Code Article 2721.

With respect to the first issue, Civil Code Article 2232 provides in part:

“... he who contends that he is exonerated, must prove the payment or the fact which has produced the extinction of the obligation.”

The plea that the equipment leased was defective is an affirmative defense under Louisiana Code of Civil Procedure Article 1005, and Louisiana Civil Code Article 2232 requires that the defendant affirmatively prove its claim of extinction of its lease obligation to pay rent due to defects in the thing leased. Davenport v. Lemon Tree of Ruston, Inc., 230 So.2d 764, 767 (La.App. 2nd Cir.1970); Ray v. Martin, 117 So.2d 839, 841 (La.App. Orleans 1960). A litigant who pleads extinction of an obligation bears the burden of proving that defense by a preponderance of the evidence. Bohn Ford, Inc. v. Lanza, 347 So.2d 935, 936 (La.App. 4th Cir.1977). Proving by a preponderance of the evidence means considering the evidence as a whole, the existence of a fact is more probable than its nonexistence. See Lombard v. Sewerage & Water Board of New Orleans, 284 So.2d 905, 913 (La.1973); Bordlee v. Pat’s Construction Company, Inc., 316 So.2d 16, 17-18 (La.App. 4th Cir.1975).

In this case evidence relative to defendant’s affirmative defense consisted merely of the testimony of the owner of Badger and several of its employees whose maintenance and operational experience with mudcat dredges developed only after the lease of the mudcat dredges subject of this litigation. The trial court was not convinced by their testimony as to the existence of defects in the leased machinery. On the other hand, the trial court accepted as credible the contradictory testimony concerning defendant’s operation of the dredges from plaintiff’s witnesses who at the time of Badger’s lease of the dredges were, on the whole, more experienced with the mudcat type dredge. The trial court concluded that no defects were proven in the leased dredges except for certain minor difficulties for which the defendant was credited for the replacement or repair of these parts. This was a reasonable determination of credibility and fact under Canter v. Koehring, 283 So.2d 716, 724 (La.1973). We conclude as did the trial court that defendant failed to carry its burden of proving its affirmative defense by a preponderance of the evidence.

Similarly, with respect to the second issue, there was conflicting testimony as to the nature and extent of repairs made on both the mudcat dredges. The trial court chose to give more weight to plaintiff’s witnesses who testified that repairs were required due to the improper operation of both mudcat dredges and to accept as accurate the repair bills introduced into evidence by plaintiff. Thus, under Civil Code 2721 which requires the lessee to pay for losses sustained through its own fault, appellant Badger is liable for repairs made on both mudcat dredges.

For the reasons stated above, we affirm.

AFFIRMED.

      . Subsequent to the lease arrangement, Badger purchased a new mudcat dredge.


author: DUFRESNE, Judge.

text:
    Janie A. DELOUME v. DIVISION OF EMPLOYMENT SECURITY OF the DEPT. OF LABOR and Engen Sales Company.
    No. 5-112.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 1982.

      Larry Samuel, Samuel & Foshee, New Orleans, for plaintiff and appellant-Janie A. Deloume.
    Lucas J. Giordano, Mmahat, Gagliano, Duffy & Giordano, Metairie, for defendant and appellee-Engen Sales Co.
    James A. McGraw, Baton Rouge, for defendant and appellee-Herbert L. Sumrall as Administrator of Office of Employment Sec., Div. of Employment See. et al.
    Before SAMUEL, CURRAULT and DU-FRESNE, JJ.
   DUFRESNE, Judge.

The plaintiff, Janie A. Deloume, appeals a judgment of the trial court denying her unemployment. compensation. Plaintiff was employed by Engen Sales Company for two years and two months. On June 23, 1980, the plaintiff’s employment was severed and she applied for benefits provided by the Louisiana Employment Security Law (LSA R.S. 23:1471 et seq.). Based on information furnished by the plaintiff and En-gen, an initial determination was made at the local office of the Office of Employment Security denying the claim on the basis that she left her employment without good cause.

Plaintiff filed an administrative appeal, which was conducted before an appeals referee. The referee affirmed the findings of the agency and ruled the plaintiff was properly disqualified.

Plaintiff appealed this decision to the Louisiana Board of Review which likewise affirmed the disqualification.

As a result of this finding, the plaintiff filed a petition for Judicial Review in the 24th Judicial District Court and judgment was rendered denying compensation benefits.

The fundamental issue presented on appeal centers around the application of LSA R.S. 23:1601(1) which reads pertinently, as follows:

,Disqualification for Benefits
“An individual shall be disqualified for benefits:
1. If the administrator finds that he has left his employment from a base period or subsequent employer without good cause connected with his employment — ”

Plaintiff emphasizes and maintains that she was terminated from her employment, or at the very least, she did not return to work after notification that she was no longer wanted, thereby leaving her employment for good cause connected with her employment.

There is ample testimony in the record to support that there were changes in plaintiff’s working conditions, both present and prospective. Further, there was quite a bit of confusion dealing with the discussions by the employer with the plaintiff. The co-owners of the Engen Sales Co. are Mr. and Mrs. Ensley Porche, who are both active in the business. The plaintiff’s discussion concerning her job was with Mrs. Porche who was relaying messages from Mr. Porche. It is apparent from the referee’s hearing that the testimony of Mrs. Porche was essential to make a fair determination; however, she did not testify at all. The referee indicated to the plaintiff that it was her burden to call Mrs. Porche as a witness; however, Mrs. Porche should have been called by the defendant, since she was a co-owner and a co-employer and she possessed knowledge that was vital to the case. It is well settled that the failure of a party to call a witness under his control creates a presumption that the testimony would be adverse to that party. The referee’s hearing contained considerable hearsay evidence concerning the discharge of the plaintiff or her leaving. Although hearsay evidence is admissable, in an administrative hearing of this nature, a finding of ineligibility cannot be based on hearsay testimony.

The Legislature in enacting the Employment Security Law intended that the statute should be construed liberally in favor of the unemployed worker.

We therefore are convinced that under a liberal interpretation of the law, coupled with a careful review of the evidence and testimony contained in the record, the plaintiff did terminate her employment with sufficient cause so as to avoid disqualification from unemployment compensation benefits under LSA R.S. 23:1601(1).

The defendants have argued that LSA R.S. 23:1634 provides in part that “ — the findings of the board of review as to the facts, if supported by sufficient evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law.” We are convinced that the hearing conducted by the appeal referee shows numerous deficiencies in the presentation of facts and evidence. The determination by said referee is not supported by the evidence and the facts in the record.

For the reasons assigned, the judgment appealed from is reversed and it is now ordered that there be judgment in favor of the plaintiff, Janie A. Deloume, and against the defendants, Division of Employment Security of the Department of Labor and En-gen Sales Company, declaring that plaintiff is eligible for unemployment compensation benefits.

REVERSED AND RENDERED.

      . Marion v. New Orleans Public Service, 306 So.2d 758 (La.App. 4th Cir.1974).

      . Payne v. Antoine’s Restaurant, 217 So.2d 514 (La.App. 4th Cir.1969).

      . Smith v. Gerace, 339 So.2d 410 (La.App. 1st Cir.1976).


text:
    Dr. Joseph CREELY v. JACK E. MOLESWORTH, INC.
    No. 5-172.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 1982.
    Rehearing Denied Nov. 17, 1982.

      Frederick Burkart, New Orleans, for plaintiff and appellant, Jack E. Moles worth.
    Robert G. Creely, Gretna, for defendant and appellee, Dr. Joseph J. Creely.
    Before SAMUEL, CURRAULT and DU-FRESNE, JJ.
   DUFRESNE, Judge.

The defendant-appellant, Jack E. Moles-worth, Inc., seller of an incorrectly described and advertised postage stamp, appeals from a judgment in quanti minoris in favor of the plaintiff-appellee, Dr. Joseph Creely, the purchaser.

Plaintiff-appellee, brought this action in redhibition and sought additional damages for fraudulent misrepresentation of the quality of the stamp. The trial judge converted the suit to one for a reduction in the purchase price and awarded damages and attorney fees on proof of fraud.

Defendant-appellant, urges three errors by the trial court:

1. That the defect in the stamp was obvious to the buyer, thus precluding the action in redhibition or quanti minoris.

2. That the plaintiff failed to prove that the defect existed in the stamp at the time of the sale.

3. That the trial court should not have used the appreciated value that the stamp would have had at the time of trial, if it had indeed been as advertised, as a measure of damages since this valuation is too speculative.

The factual findings of the trial court are amply supported by the evidence and the damages were proven with reasonable certainty.

The trial judge found that the stamp was not in the condition as advertised by the seller at the time of sale and that the seller was in bad faith in so advertising it. In his reasons for judgment, the trial judge concluded that the stamp when sold had a value of $1,125.00 and not the $2,250.00, the amount paid by the buyer. At the time of trial, the stamp was determined to have a value of $1,500.00. Further, it was concluded that had the stamp been in its advertised condition, it would have been worth $5,500.00 at the time of trial.

Based on these findings, the trial judge awarded the plaintiff-appellee a reduction in the purchase price of $750.00, the difference between the purchase price of $2,250.00 and the present value of the stamp $1,500.00. He further awarded as damages $3,250.00, the difference between the purchase price of $2,250.00 and the value the stamp would have had if it had been in the condition as advertised, which was $5,500.00. Plaintiff-appellee was awarded attorney fees of $800 for a total award of $4,800.00 together with legal interest and all costs.

We affirm.

The stamp at issue here was a $3.00 Co-lumbian stamp and was represented by the appellant as having “Fresh Original Gum, Light Hinge Mark”. After purchasing the stamp for $2,250.00, the appellee sent it to the American Philatetic Society for experti-zation or evaluation. A committee of three experts examined the stamp and two of them determined that it did not have “fresh original gum”, but had instead been re-gummed. The third expert was in fact the seller of the stamp, Jack Molesworth, who did not realize that this was one of his stamps. His opinion was that the stamp had original gum but that it had been remelted and was certainly not “fresh original gum”. Due to his conflict, the Society disallowed his opinion.

On receiving the Society’s conclusions, the appellee demanded a refund of the purchase price and tendered the stamp to the appellant. The appellant refused to refund the purchase price, insisting that the stamp had been damaged by the appellee. He testified at trial that the present condition of the stamp could have been caused by either cleaning it with one of a number of chemicals, commonly used by stamp collectors, or by treating it with a sweatbox hinge remover, a device used to melt the gum on stamps to remove the paper hinges by which they are sometimes attached to stamp albums.

During the trial, Dr. Hubert Skinner, one of the Society’s experts who examined the stamp, testified that had the gum on the stamp been remelted since the time of the sale, the pencil marks placed thereon by the appellant for identification purposes before the sale would have run or been disfigured. He concluded that the gum had not been altered since leaving the seller’s hands.

The appellee testified he did not alter the stamp in any way and had it in his possession only two days before sending it to the Society for evaluation. He further testified he was not an expert stamp collector and to him the stamp appeared to be as advertised.

Appellant’s first contention is that under La.C.C. Article 2521, apparent defects in the thing sold do not give rise to the redhibitory actions, and since the defect in the stamp was apparent, this action cannot lie. The trial judge concluded that the appellee who was not an expert could not have discovered the defect on simple inspection. This conclusion will not be disturbed on appeal in the absence of manifest error. Canter v. Koehring Co., 283 So.2d 716 (La.1973). We find that the trial judge’s conclusions are justified and supported by the record.

Appellant’s second contention is basically that the appellee failed to prove that the stamp was not damaged after it was sold. Again, this court must apply the manifest error rule of Canter v. Koehring, supra. There is no manifest error in the trial court concluding that from the evidence and his evaluation of the credibility of the witnesses, that the gum had not been remelted after the stamp left the seller’s hands.

The final issue of the appellant; whether the appreciated value of the stamp is too speculative to form the basis of a damage award, likewise is without merit. The award for damages is clearly based on La.C.C. Art. 2547, which permits damages when the seller is in bad faith in misrepresenting the quality of the thing sold. This article also provides that such cases should be judged according to the rules laid down on the subject of fraud. As to allowable damages for fraud, La.C.C. Art. 1934 provides in part as follows:

Where the object of the contract is any thing but the payment of money, the damages due to the creditor for its breach are the amount of the loss he has sustained, and the profit of which he has been deprived, under the following exceptions and modifications:—
2. When the inexecution of the contract has proceeded from fraud or bad faith, the debtor shall not only be liable to such damages as were, or might have been foreseen at the time of making the contract, but also to such as are the immediate and direct consequence of the breach of that contract; but even when there is fraud, the damages can not exceed this.—

The first issue here is whether appellee’s loss of the appreciated value the stamp would have had if it had been in the advertised condition was an “immediate and direct consequence” of the appellant’s fraud. We conclude, as did the trial judge, that it was. Had the stamp possessed “fresh original gum” as advertised, it would have been worth $5,500.00 to the appellee at the time of trial. Moreover, for the appellee to have bought a stamp of the quality advertised, the object bargained for in the first place, he would have to have paid $5,500 for it. The trial judge was simply placing the ap-pellee in the financial position he would have occupied absent the fraud by awarding him $3,250.00 for the appreciation the advertised stamp would have had.

Appellant argues, however, that the ap-pellee was a collector and never intended to offer the stamp for sale and therefore that this award is in the nature of speculative profits. We do not find the absence of an offer to sell of any consequence in the present context. Had the appellee received a stamp of the advertised quality, he would have been enriched in the amount of $3,250.00; due to appellant’s action, he was not so enriched. Since appellant was in bad faith, we find nothing unfair in compelling him to so reimburse the appellee. Stipelcovich v. Mike Persia Chevrolet Co., Inc., 391 So.2d 582 (La.1980).

Likewise, the appreciated value placed on the advertised stamp at the time of trial could be fixed with reasonable certainty. Experts for both the appellant and appellee testified as to the value of the stamp. There is nothing too speculative in this figure, based as it was on expert testimony. Stipelcovich v. Mike Persia Chevrolet Co., Inc., supra.

Appellant has further claimed that the value of stamps has decreased since the time of trial in February, 1981 and therefore the appellee has been given a peak market price. Be that as it may, a court cannot speculate as to the future price of objects; it can only act on evidence as to their current value presented at trial. We also note that had the appellant returned the purchase price of the stamp when demand was first made in 1979, he would have suffered no loss from appreciation at all. This argument of appellant is totally without merit.

For the reasons set forth, we affirm the judgment of the district court, at appellant’s costs.

AFFIRMED.


text:
    THREE-ELEVEN SHOP, INC. v. GREATER LAKESIDE CORPORATION.
    No. 5-102.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 1982.
    Gary M. Bougere, Metairie, for plaintiff and appellant-Three-Eleven Shop, Inc.
    Randy Opotowsky, Steeg & O’Connor, New Orleans, for defendant and appellee-Greater Lakeside Corp.
    Before SAMUEL, CURRAULT and DU-FRESNE, JJ.
   DUFRESNE, Judge.

The Three-Eleven Shop, Inc., plaintiff herein, brought this action seeking an interpretation of Section 7 of Article I of the lease agreement with Greater Lakeside Corporation, defendant herein. The plaintiff also sought the return of a portion of money paid to the defendant “under protest”. The subject lease agreement was executed on January 7,1979 by FNR Louisiana No. 1, Inc. (Lessor) and House of Nine, Inc. No. 103 (Lessee). Thereafter, plaintiff (Three-Eleven) and defendant (Greater Lakeside) became successors in interest of the lessee and lessor respectively.

The trial court rendered judgment dismissing plaintiff’s petition with prejudice and ruled that Section 7 of Article I is clear and precise and not ambiguous or vague. The judgment further ordered that the plaintiff is obligated to pay additional rent as required by the lease and that the amount for 1979 was past due and payable in the amount of $2,524.92. From this judgment the plaintiff has appealed.

Although the plaintiff has expounded numerous issues in his brief, the main issue for this court to decide is the interpretation of the language of Section 7 Article 1 of the lease, which reads as follows:

“Increased Taxes
Section 7.
Lessor will pay in the first instance all real property taxes which may be levied or assessed by any lawful authority against the land and improvements in the shopping center. If the amount of the real property taxes levied or assessed against the land and building of which the leased premises form a part shall in any lease year exceed the amount of such taxes during the first full tax year, the lessee shall pay as additional rent one-half (V2) of one percent (1%) of such excess. The term “first full tax year” shall mean the lease year in which this lease commenced. The tax year of any lawful authority commencing during any lease year shall be deemed to correspond to such lease year. The additional rent provided for in this Section 7 shall be paid within twenty (20) days after demand therefore by Lessor. A tax bill submitted by Lessor to Lessee shall be sufficient evidence of the amount of taxes assessed or levied against the parcel or real property to which such bill relates.” (Emphasis added)

In reviewing this section of the lease, we must ascertain whether the section is a legally acceptable contract. Article 1779 of the Louisiana Revised Civil Code provides:

“Four requisites are necessary to the validity of a contract:
1.) Parties legally capable of contracting.
2.) Their consent legally given.
3.) A certain object, which form the matter of agreement.
4.) A lawful purpose.

In this instant case we are convinced that there is no question that all four requisites have been satisfied. Under Louisiana law, “All agreements have effect of law upon parties and they are bound by agreement, regardless of harsh consequences, provided that agreement is not contra bonos mores or in violation of some prohibitory law.”

Generally parties to a contract may agree to any terms, conditions or things which are not forbidden by law or public policy. The parties in this appeal entered into a lease (via the assignments) for the premises located in the Lakeside Shopping Center. One of the sections of the leases contained provisions relative to the payment of increased real estate taxes by the Lessee (plaintiff). There is no factual dispute in this case, only the issue whether this section of the lease is vague and uncertain or clear and explicit.

The parties have obligated themselves through the terms and conditions set forth in the entire lease. In Sleet v. Gray 351 So.2d 286 (La.App. 3rd Cir.1977). The Third Circuit Court of Appeal declared:

“Agreements legally entered into have the effect of law on those who have formed them (LSA-C.C. Article 1901) and the courts are bound to give legal effect to such contracts according to the true intent of the parties. LSA-C.C. Articles 1945 and 1963. The intent of the parties is to be determined by the words of the contract and when these are clear and explicit, the terms of the contract must prevail.”

Although the plaintiff has tried to present various interpretation of Section 7, we agree with the trial court that this section is clear and precise and not ambiguous or vague. The trial judge interpreted Section 7 of Article I of the lease agreement to mean that “plaintiff, Three-Eleven Shop, Inc. is obligated to pay one-half of one percent (.5%) of that excess ad valorem taxes assessed against the lessor on all the land and improvements in the shopping center”.

This involves a simple mathematical computation to determine the amount of additional rent that the plaintiff must pay in any given year. We further realize and understand the many arguments presented by the plaintiff, however, we concur with the conclusion that “it is not the province of the courts to relieve a party of a bad bargain; no matter how harsh”. Maloney v. Oak Builders, Inc., 235 So.2d 386 (1970), Louisiana Power & Light Co. v. Mecom, 357 So.2d 596 (La.App. 1st Cir.1978).

For the reasons assigned, the judgment of the trial court is affirmed. All costs of appeal are assessed to the plaintiff.

AFFIRMED


author: YELVERTON, Judge.

text:
    Walter VOORHIES, et ux., Plaintiff-Appellee, v. Josephine LIVINGSTON, et al., Defendants-Appellants.
    No. 82-172.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.
    Voorhies & Labbe, Robert A. Lecky, Lafayette, for defendants-appellants.
    James Wattigny, Jeanerette, for plaintiff-appellee.
    Before DOMENGEAUX, DOUCET and YELVERTON, JJ.
   YELVERTON, Judge.

This case began as an action in redhibition seeking recission of the sale of a residence based on defects in the foundation. At the beginning of trial, the purchasers announced that they would limit their demand to a reduction of the price. The parties thereupon stipulated the amount by which the sale price was to be reduced in the event of a decision favorable to plaintiffs. The trial judge decided for the purchasers and awarded them the stipulated sum of $7,750 and costs. From this judgment the sellers appealed. We affirm.

The appellants do not contest that defects in the foundation of the residence existed at the time of sale. Their defense at trial, and their contention on appeal, is that the defects were apparent, that is, discoverable by the buyers by simple inspection, that the defects were therefore not redhibitory vices, and that accordingly the purchasers should not be permitted to recover. The single issue on appeal is whether the trial court erred in finding that the admitted defects were not discoverable by simple inspection.

The facts reveal that the house was built in the early 1960s in the Blue Haven Subdivision of Iberia Parish. In January 1972 it was purchased by Lawrence Livingston and his wife. Lawrence Livingston subsequently died and his widow, Josephine Livingston, continued living in the residence until July 1979 when she and her three sons, who inherited their father’s interest, sold the property to the present owners, Walter Voorhies and his wife, the plaintiffs herein.

The new owners made their first discovery of evidence of foundation failure in early 1980 when, during renovation involving the back of the house, paneling was removed revealing a major crack in the outside back wall. This led to the discovery of extensive foundation movement culminating in 1981 in major foundation repairs which accounted for most of the stipulated damages.

The evidence is clear that serious foundation cracking was present at least seven years before the sale from the Livingstons to the Voorhies. Ernest Sigura, the contractor who laid the original foundation, testified that for some unremembered reason he inspected the house in 1972, the same year the Livingstons bought it. He observed to his professional dismay that there was a crack on the back brick wall near the sliding glass doors. The crack was obvious to anyone looking at the wall and indicated that the foundation was settling. This one crack was all he saw at the time.

Not long after the Livingstons moved in in 1972, they roofed and enclosed the patio, making of it an additional room on the house. The crack observed by Segura was along that portion of the back of the house enclosed by the patio room. This wall was paneled, covering the crack. Mrs. Livingston testified that although she assisted some in the construction of the patio room by her late husband, she did not notice that crack.

The patio room was on a separate foundation from the rest of the house. In 1979 this room had foundation problems of its own. These were pointed out by Mrs. Livingston to Voorhies during his estimated 12 to 20 visits to the house before the sale was closed. No defects involving the main structure were ever pointed out by Mrs. Livingston because, according to her testimony, she was not aware of any cracking or separating either in the walls or the foundation. Voorhies testified that in his numerous visits he did not see any such defects.

Andrew Armentor, an expert appraiser for Iberia Savings and Loan Association, inspected the house for appraisal purposes about five weeks before the Voorhies purchase. The inspection took 20 to 30 minutes. He found nothing out of the ordinary with the outside of the house and determined that it was in good condition.

Some eight to nine months after his purchase Voorhies undertook to renovate the patio room. When the paneling was removed a crack was discovered in the brick veneer extending from one end of the room to the other, approximately 40 feet in length and a half inch in width. This was the first time that Voorhies was aware of the existence of this crack. About a month later he found another crack underneath a window on one side of the house. This crack was concealed by a yucca plant. He also discovered a crack blocked from view by the air conditioning unit. He found other cracks in the foundation concealed by monkey grass that surrounded the house. Four or five months later a crack was observed at the front entrance of the house. This crack extended across the foundation from the front door through the den to the bathroom door. It caused damage to 24 ceramic tiles on a new floor which had been laid by Voorhies after he purchased the house.

It was at this point that Cecil Causey, owner of Louisiana Soil Stabilization Industry, Inc., was called in. He found that the foundation slab had cracked from the front to the back door, causing one side of the house to separate from the other and settle four and a half inches. With the help of mechanical jacks, the sunken side was raised and underpinned. Causey also injected a lime slurry under the house to minimize further damage to the foundation.

We quote from the trial court’s reasons for judgment:

“There’s quite a bit of vegetation around the edges of the house. The Court finds, from the defendant’s explanation of this vegetation, consisting of a yucca plant which has sharp spines or spears from top to bottom, that she planted these plants under the window as a sort of a help against burglars entering the windows, because they were very sharp, and would tend to discourage anybody from attempting to come in the windows where they were located. It happens that some of the worst cracks that were found in the house, where the cracks were started, were largely under these windows, and to some extent these yuccas and the other vegetation, the rose bushes, tended to obscure the worst part of these cracks. However, the cracks extended beyond the outside of this vegetation. But the Court can only conclude that the cracks in the exterior of the house, at least to these not experienced people, both the plaintiff and the defendant, and even to an experienced inspector like Mr. Armentor, were not so obvious as to be readily observable. In the opinion of the Court this has significance because it does not establish any bad faith on the part of the sellers of this residence, and neither does it establish the fact that the buyer should have been on notice that these were readily observable defects, and he should have been on notice before buying the house, which of course could result in his failiing (sic) to recover, if the cracks were that bad. But in the opinion of the Court, the exterior visible damage was not such as to make the Court feel that the vendor, the Livingstons, were aware of this damage, and neither was it so obvious that the vendee, the plaintiffs herein, should have been put on notice of this damage so as to bar their recovery.”

The trial court also stated in its reasons for judgment that it had read and considered the case of Prat v. Heymann, 410 So.2d 343 (La.App. 4 Cir.1982). We quote from Prat v. Heymann:

“In order to determine whether a defect is apparent by a simple inspection the courts have used a reasonable standard which is discussed Pursell v. Kelly, 152 So.2d 36 (La.1963) at p. 41.
‘The proper test to be applied to this case, we think, as in all other cases of this kind, is whether a reasonably prudent buyer acting under similar circumstances, would have discovered the presence of termite damage in the premises.’
“In Fraser v. Ameling, 277 So.2d 633 (La.1973), the Supreme Court reaffirmed the reasonable man standard but explained that while an inspection connotes more than a casual observation the buyer need not inspect with expertise or ‘deface’ the thing purchased while inspecting it.”

In the Prat case the home purchased by the plaintiffs contained severe cracks and a sinking foundation. When the plaintiffs inspected the home, it appeared to be free of any defects with the exception of a section of faded wallpaper and a minor crack in the front wall which the defendant agreed to repair at her cost. Approximately six weeks later the plaintiffs testified that they began having difficulty in opening and closing the front door and observed a rather substantial crack on the inside of the entrance porch and eventually noticed a very large crack in the front wall just below the window. The realtor and two other witnesses also testified that the house appeared to be well kept and in excellent condition. However the witnesses for the defendant, including two prior prospective purchasers, stated that they had noticed the defects on their own and that they were readily apparent. The expert witnesses testified that it would be extremely difficult for a layman to notice any foundation sink-age. The trial court concluded that the house contained redhibitory defects and that these defects were not readily apparent. The appellate court concluded that this factual determination was not manifestly erroneous.

The law is clear that the determination of whether or not a defect is latent or apparent by reasonable inspection is a factual determination which will not be disturbed by the appellate court unless manifestly erroneous. Prat v. Heymann, supra; and Aucoin v. Fontenot, 334 So.2d 773 (La.App. 3 Cir.1976).

In the present case the testimony is undisputed that the cracks in the house were not apparent by reasonable inspection. The plaintiff testified that in his 12 to 20 visits to the home prior to purchase that he conducted a thorough inspection of the home and failed to notice the defects. The cracks in the walls were either hidden behind foliage or paneling. The appraiser for the savings and loan institution also failed to notice the defects during his inspection of the home prior to purchase. The defendant, Mrs. Livingston, also testified that during the seven year period that she lived in the house she failed to notice any of the cracks in the walls. Under the circumstances it is clear that the trial court was not manifestly erroneous in his factual determination.

Although plaintiff has filed a brief in this court seeking additional damages and contending that the trial court erred in finding the vendors in good faith precluding the award of an attorney’s fee, the plaintiff has neither appealed nor answered appellants’ appeal. Under the circumstances this court may not consider the claims made by plaintiff in brief alone. La.C.C.P. Art. 2133; Ingram v. Reliable Finance Company, Inc., 410 So.2d 768 (La.App. 3 Cir.1981); and Daigle v. Robinson Brothers, Inc., 368 So.2d 186 (La.App. 1 Cir.1979).

For the foregoing reasons, the judgment of the trial court is affirmed, at appellants’ costs.

AFFIRMED.

      . “Art. 2520. Redhibition, definition
      “Art. 2520. Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.”
      “Art. 2521. Apparent defects discoverable by buyer
      “Art. 2521. Apparent defects, that Is, such as the buyer might have discovered by simple inspection, are not among the number of redhi-bitory vices.”


author: DOUCET, Judge. DOMENGEAUX, Judge,

text:
    Russell COMEAUX, Plaintiff-Appellee, v. CAMERON OFFSHORE SERVICES, INC., Defendant-Appellant.
    No. 82-173.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.

      Simon, Peragine, Smith & Redfearn, Michael R. Daigle, New Orleans, for defendant-appellant.
    McHale, Bufkin & Dees, Louis D. Bufkin, Lake Charles, for plaintiff-appellee.
    Before DOMENGEAUX, DOUCET, and YELVERTON, JJ.
   DOUCET, Judge.

This is a worker’s compensation case wherein plaintiff, Russell Comeaux, was categorized as an “odd-lot” worker and was awarded benefits for permanent total disability. Defendant-appellant, Cameron Offshore Services, Inc., was further cast for statutory penalties and attorney’s fees. Disputed on appeal is whether plaintiff sustained his burden of proving to a legal certainty and by a preponderance of evidence that he remains in substantial pain such as would preclude regular employment, and whether defendant’s actions warranted imposition of penalties and attorney’s fees.

On May 13, 1980, plaintiff sustained a straining-type injury to his back while col-taring pipe in the normal course and scope of his employment with defendant, Cameron Offshore Services, Inc. He was examined at St. Patrick’s Hospital, where he was told that he had a pulled muscle, given pain pills and discharged with instructions to consult another physician if the pain continued. The pain continued.

Two days subsequent to the injury plaintiff sought the services of a chiropractor who rendered treatment through May 26, 1980.

Approximately one month post-injury, on June 16, 1980, Comeaux was examined by Jerome W. Ambrister, an orthopedic surgeon. Dr. Ambrister diagnosed plaintiff’s condition as lumbo-sacral strain, from which plaintiff was expected to recover in about six weeks. One month thereafter, July 25, 1980, Comeaux returned to Dr. Ambrister and was found “to have recovered from the lumbo-sacral strain, and has no resulting disability. He is thought to be physically able to return to his usual type of work.”

On August 12,1980, Comeaux underwent a neurological examination by Dr. William F. Foster, Jr. who diagnosed plaintiff’s condition as “lumbo-sacral straining injury, resolved”.

Plaintiff returned to Dr. Ambrister on August 19, 1980 and requested a written statement that he was able to return to work, which was granted. Benefits previously received were terminated August 20, 1980.

Upon returning to work at Cameron Offshore plaintiff experienced a resurgence in back pain and was subsequently discharged.

Following his discharge from Cameron Offshore, he obtained a job at The Woodshed, a local furniture refinishing shop, in September, 1980. For “almost a year” he sanded, stripped and sprayed wood furniture. Comeaux testified that he was terminated after he became “slowed down because his back gave out.”

Following his discharge from The Woodshed, Comeaux occasionally painted commercial signs at home earning about $75.00 every two weeks. Even under such restricted working conditions plaintiff endures pain to the extent that he cannot sleep, according to the testimony of plaintiff and his wife. Nevertheless, Comeaux, along with his wife, partially rennovated a barn which they now use as living quarters. In this regard, Comeaux laid and tacked tar paper on the floor and helped carry a fifteen foot oval rug.

On July 10, 1981, plaintiff again sought medical treatment, consulting orthopedist Dr. R. Dale Bernauer. Dr. Bernauer’s examination was essentially negative however, he noted a narrowed intervertebral disc interspace at the L5, SI location. Dr. Bernauer felt that Comeaux would benefit from a myelogram so as to rule out any disc extention. Arrangements were made for this procedure, however the scheduled mye-logram had to be cancelled due to defendant’s refusal to pay the costs and the plaintiff’s financial inability to pay the expense himself. Upon learning of Dr. Bernauer’s recommendation, counsel for defendant arranged to have plaintiff re-examined by Dr. Ambrister. This examination was conduct ed on July 21, 1981, at which time Dr. Ambrister found no objective findings and rendered a negative report as to disability. Despite plaintiff’s subjective complaints, Dr. Ambrister had no X-rays conducted, perhaps explaining the lack of objective data.

At the time of trial plaintiff remained under medication having received a prescription for pain killers from Dr. Bernauer a week prior thereto.

Testifying at trial were Dr. Bernauer, plaintiff and Patricia Comeaux, plaintiff’s wife. The defense presented no witnesses. Following trial, judgment was rendered in favor of plaintiff and against defendant, the Court finding that Comeaux was totally and permanently disabled as a result of the May 13, 1980 injury and, further, that defendant was arbitrary and capricious in failing to pay compensation and medical expenses subsequent to August 20, 1980. Accordingly, defendant was assessed with statutory penalties on all unpaid benefits and attorney’s fees in the amount of $2,000.00. From that judgment defendant has perfected this suspensive appeal.

Appellant assigns the following specification of errors:

1) The court erred in finding plaintiff totally and permanently disabled.
2) The court erred in finding defendant arbitrary and capricious in failing to pay compensation and medical expenses subsequent to August 20, 1980.

Appellant places emphasis upon the fact that Drs. Ambrister and Foster considered plaintiff to be without back problems, whereas only Dr. Bernauer found objective signs of disability. However, the number of witnesses is not a decisive factor as witnesses are weighed, not counted. Peyton v. Wade, 181 So.2d 878 (La.App. 4th Cir.1966). The fundamental function of the trier of facts is to determine the facts and this is not done by counting noses. U.S. Fidelity & Guaranty Co. v. Fiffie, 211 So.2d 690 (La.App. 4th Cir.1968). Furthermore, positive findings of medical experts are to be afforded greater weight than the negative findings as to the existence or not of a particular condition. Smith v. Highlands Ins. Co., 222 So.2d 540 (La.App. 4th Cir. 1969). The trial judge did not commit manifest error in assigning greater weight to the testimony of Dr. Bernauer.

Moreover, expert testimony is not controlling inasmuch as courts cannot abdicate their decision-making responsibilities in favor of the medical profession but must consider all factors present in a case. Broussard v. Broussard, 320 So.2d 236 (La. App. 3rd Cir.1975). The ultimate determination concerning disability is by the courts, not the medical profession. Guillory v. United States Fidelity and Guaranty Ins. Co., 420 So.2d 119, (La.1982). Hence the trial judge may accord greater weight to the testimony of a lay witness than that of expert witnesses. In this regard the trial judge specifically noted the veracity of plaintiff and his wife, and that plaintiff “demonstrated a sincere wish to be done with his back problems”.

Similarly, the testimony of a physician who examines and treats an injured party is generally entitled to greater weight than that of a physician who examines the party at a later date. However, like all rules of law, the aforesaid rule is not inflexible, but subject to exception. All of the physicians involved acknowledged the existence of an injury; disagreement existed only as to its recovery or lack thereof. When one doctor deemed him recovered plaintiff proceeded to consult another physician. Dr. Bernauer exhibited concern for Comeaux’s condition and sought objective data to aid in diagnoses. Under the circumstances we cannot conclude that the trial judge erred in assigning the weight given to the physician who had most recently examined plaintiff.

Next, appellant contends that plaintiff’s failure to call as a witness the chiropractor consulted creates a presumption that his testimony would have been adverse. This presumption alone, where applicable, is not sufficient to outweigh or overcome the positive testimony of medical doctors who did testify inasmuch as a litigant is not required to produce all witnesses who might have some knowledge as to the matter in dispute. Boutte v. Mudd Seperators, Inc., 236 So.2d 906 (La.App. 3rd Cir. 1970), writ refused 256 La. 394, 240 So.2d 231 (1970); Motors Ins. Corp. v. Boling, 262 So.2d 156 (La.App. 3rd Cir.1972). This is particularly true where the witness is equally available to the defendant. Rushing v. Insurance Co. of North America, 391 So.2d 864 (La.App. 3rd Cir.1980); Crandall v. Scott, 350 So.2d 922 (La.App. 4th Cir. 1977). The trial judge may have concluded that, insofar as the chiropractor lacked the expertise of a medical physician, he could shed no additional light on plaintiff’s condition. cf: Baham v. South Central Bell, 355 So.2d 630 (La.App. 4th Cir.1973).

We agree with the trial judge that plaintiff remains disabled, suffering substantial pain, as a result of the May 13, 1980 accident. Accordingly, we proceed to address the issue of whether claimant falls under the odd-lot doctrine such as would justify the award of total and permanent compensation.

The trial judge made the following observations with respect to plaintiff’s condition:

“Plaintiff is not a highly educated person and is unskilled at any trade other than sign painting which he has followed from time to time. At the time of the accident he was working as a laborer with heavy pipe at defendant’s shop. He returned to work and was discharged after about three days by his employer. He then worked as a helper in a furniture refinishing business and did well enough to be granted one raise in pay. He became ‘slowed down because his back gave out’ and was terminated. Since then he has sought no employment but with the help of his wife he does some sign painting at home.

Plaintiff testified he continued to have back pain during this entire period. He put a board under his mattress and his wife would massage his back at night to try to relieve the pain. This was corroborated by his wife, the only other lay witness.”

We summarized the applicable law in Augustine v. Courtney Construction Co. Etc., 405 So.2d 579 (La.App. 3rd Cir.1981) as follows:

“A worker who cannot return to any gainful employment without suffering substantial pain is entitled to compensation benefits for total disability. Lattin v. HICA Corporation, 395 So.2d 690 (La.1981); Wilson v. Ebasco Services, Inc., 393 So.2d 1248 (La.1981); Dusang v. Henry C. Beck Builders, Inc., 389 So.2d 367 (La.1980); Whitaker v. Church’s Fried Chicken, Inc., 387 So.2d 1093 (La.1980). However, substantial pain cases must also be analyzed within the framework of the Odd Lot Doctrine adopted by the Louisiana Supreme Court in Oster v. Wetzel Printing, Inc., 390 So.2d 1318 (La.1980). See Lattin v. HICA Corporation, supra; Wilson v. Ebasco Services, Inc., supra; Calogero v. City of New Orleans, 397 So.2d 1252 (La.1980); Dusang v. Henry C. Beck Builders, Inc., supra.

The Louisiana Supreme Court, in Lattin v. HICA Corporation, supra, stated that:

“Under the odd lot doctrine, a claimant is considered totally disabled if his injury makes him an odd lot in the labor market, that is, one capable of obtaining employment periodically but one whose services are so limited in quality, dependability or quantity that a reasonably stable market for his services does not exist. An odd lot claimant need not be absolutely helpless to qualify for total disability. If the claimant can prove that his physical condition, mental capacity, education, training age or other factors combine to place him at a substantial disadvantage in the competitive labor market, he has made out a prima facie case for classification in the odd lot category. This satisfies his burden of proving that he should be awarded benefits for permanent and total disability. The employer or insurer must then show that some form of gainful occupation is regularly and continuously available to the employee within reasonable proximity to the employee’s residence.”

“The odd lot doctrine is also applicable to substantial pain cases because a worker who, due to his injury, can function only with substantial pain or with the help of fellow workers may not be considered a particularly desirable employee. Thus, if a claimant’s pain appreciably limits the types of work available to him and greatly diminishes his ability to compete in the labor market, he can be treated as an odd lot worker and be awarded total disability, unless there is proof that jobs are realistically available to him. On the other hand, if a worker cannot perform the same work that he did before his injury because it causes him substantial pain, but he has the mental capacity to perform other jobs which are available, he should be considered partially disabled. Dusang v. Henry C. Beck Builders, Inc., supra.”

Applying the above law to the facts found by the trial judge, we find appellee presented a prima facie case for his inclusion in the “odd-lot” category, whereas defendant has failed to show there are jobs available to the injured worker. We cannot conclude that the trial judge was clearly wrong in finding that claimant’s pain is substantial and appreciably limits the types of work available to him and diminishes his capacity to compete in the labor market. His good fortune in obtaining another job following his discharge from defendant’s employ appears to have been a passing thing and he remains unable to hold employment. The record reflects that, at the time of trial, the only work available to plaintiff, sign painting, was on a part-time basis (generating $75.00 every two weeks), and required the assistance of his wife. An “odd-lot” claimant need not be absolutely helpless to qualify for total disability status. Dusang v. Henry C. Beck Builders, Inc., 389 So.2d 367 (La.1980); Oster v. Wetzel Printing Co., Inc., 390 So.2d 1318 (La.1980). It suffices that the injured plaintiff’s physical condition, limited education and training, combine to place him at a substantial disadvantage in the competitive labor market.

Defendant’s argument that plaintiff might later obtain gainful employment is entirely conjectural, particularly in light of present economic conditions. As noted by Professors Malone and Johnson in their Louisiana Civil Law Treatise, Worker’s Compensation § 274 (2d ed. 1964) “... during a period of slack employment the one-armed worker or the employee who complains of a stiff back will probably be among the first to be laid off. Exposure to the uncertainties of the climate of the economy presents an even greater hazard where the injured employee has been obliged to change the nature of his work. By entering a strange field of endeavor he may be forced to compete under the additional handicap of inexperience.” Should appellant’s speculations about plaintiff’s work prospects prove true, the judgment herein will, of course, be subject to modification upon a showing of change in the physical condition of the worker.

The trial judge assigned the following reasons for imposition of penalties and attorney’s fees:

“The question of penalties and attorney’s fees must be resolved by determining whether defendant did all it should before denying costs of the testing procedure. Admittedly, it did ask for another examination by Dr. Ambrister and chose to rely on his findings as opposed to those of Dr. Ber-nauer. The court was not made aware of any effort by defendant to ask Dr. Ber-nauer the basis of his findings and consequently was left unaware of the significance of Dr. Ambrister having taken no new X-rays or not having reviewed the new ones taken by Dr. Bernauer.

The plaintiff may not be penalized if defendant chooses to rely on one physician’s negative opinion and ignores that of another which is to the contrary and which is supported by good reasons not explored.” Accordingly, plaintiff was awarded penalties and attorney’s fees pursuant to LSA-R.S. 23:1201-2.

It is the duty of the employer to provide medical services. LSA-R.S. 23:1203. It is the right of the injured employee, not the employer to select the physician for treatment of his disabling condition. Kinsey v. Traveler’s Ins. Co., Inc., 402 So.2d 226 (La.App. 1st Cir.1981). This is so because the trust and confidence needed in a patient-doctor relationship is important to successful treatment. Malone and Johnson, supra, § 287, p. 672; Kinsey v. Travelers Inc. Co., Inc., supra. The penalty provisions of LSA-R.S. 23:1201-2 are applicable where an employer wrongly denies medical claims. Dupre v. Sterling Plate Glass & Paint Co., Inc., 344 So.2d 1060 (La.App. 1st Cir.1977); Scott v. Hartford Accident & Indemnity Co., 302 So.2d 641 (La.App. 3rd Cir.1974); Vining v. Phoenix of Hartford Ins. Co., 256 So.2d 698 (La.App. 1st Cir.1971).

Defendant was faced with conflicting medical reports, one from Dr. Ambrister, who was content with foregoing additional testing and disregarding plaintiff’s complaints, another from Dr. Bernauer who was of the opinion a myelogram would aid in plaintiff's diagnoses. Without further investigation defendant chose to rely on the report most favorable to itself thereby depriving plaintiff of additional medical attention. In selecting such a course of action we believe Cameron Offshore proceeded at its own peril. Had Dr. Bernauer been questioned by defendant as to the reasons for recommending a myelogram, it would have been learned that his recommendation was based upon X-ray findings not available to other doctors. On the other hand, Dr. Ambrister, in his report to defense counsel dated July 21, 1981, admitted that no further testing had been conducted, and Dr. Foster stated simply that “I don’t have anything to offer this gentleman from a neurological standpoint.” (P-8, Medical Report, 12/11/80). We find, as did the trial judge, that the law requires an employer to look further into the merit of the worker’s claim before refusing to pay for medical treatment. In this regard, this court heretofore has observed that “Perhaps, upon the employer’s default in providing medical services needed, the injured workingman may possibly have been able to secure the needed medical treatment by charity or other means (and we doubt this under the present facts); nevertheless, the basic cause of the failure to receive adequate medical care is the employer’s failure to comply with its mandatory statutory duty to furnish reasonable medical treatment needed by the injured claimant.” Andrus v. Great American Ins. Co., 161 So.2d 109, at 111 (La.App. 3rd Cir.1964), writ denied 246 La. 86, 163 So.2d 360 (1964).

Although we find defendant’s refusal to provide medical expenses to be without just cause, the same cannot be said of appellant’s withholding of compensation payments. In the latter instance, defendant possessed not only conflicting medical reports but also evidence of plaintiff’s employment and mobility at home. Accordingly, we find that penalties and attorney’s fees should be computed on the basis of medical expenses only, cf: Vining v. Phoenix of Hartford Ins. Co., supra. Inasmuch as the record before us does not reveal said sum, the case is remanded for consideration of this matter.

For the reasons set forth hereinabove, the award of penalties and attorney’s fees is reversed and the case remanded for consideration consistent with this opinion. In all other respects the judgment appealed is affirmed at appellant’s cost.

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

DOMENGEAUX, J., concurs in part and dissents in part and assigns reasons.

DOMENGEAUX, Judge,

concurring in part and dissenting in part.

I do not find the odd lot doctrine applicable to this case. I conclude that plaintiff’s disability should be governed under the substantial pain theory, without further categorizing it under odd lot.

I disagree with the imposition of penalties and attorney’s fees.

In July of 1980, Doctor Ambrister, an orthopedic surgeon, found that plaintiff had recovered from the lumbo-sacral strain and had no resulting disability. Doctor Ambris-ter pronounced him physically able to return to his usual type of work. In August of 1980 the insurer also had a report from Doctor Foster, a neurological expert who stated that plaintiff’s lumbo-sacral straining injury was resolved. Plaintiff asked to go back to work and his request was granted. Consequently, his benefits were discontinued in August of 1980. He was later discharged from his job and for about a year he engaged in various and sundry occupations, including sign painting.

In July of 1981 he was examined by Doctor Bernauer who suggested that a myelo-gram might be in order so as to rule out any disc extension. From learning of Doctor Bernauer’s recommendation, defendant arranged to have plaintiff re-examined by Doctor Ambrister. This was done on July 21, 1981, and Doctor Ambrister found no objective findings and released another negative report as to disability.

The general rule on the subject of subsequent positive medical reports is set out by the Supreme Court in Walker v. Gaines P. Wilson & Son, Inc., 340 So.2d 985 (La.1976). In Walker the Supreme Court stated:

“ ‘[I]f subsequent to an initial optimistic report, an insurer receives medical information indisputably showing disability at a subsequent date, the insurer may not blindly rely upon the early report and solely on its basis avoid penalties for arbitrary non-payment of compensation benefits indisputably due a disabled workmen.’ [Citations omitted]”

See also Hebert v. Loffland Brothers, 363 So.2d 969 (La.App. 3rd Cir.1978); Carter v. American Mutual Liability Insurance Co., 386 So.2d 1072 (La.App. 3rd Cir.1980); West v. Belden Corporation, 396 So.2d 1004 (La.App. 3rd Cir.1981); and Montgomery v. Commercial Union Assurance Co., 413 So.2d 969 (La.App. 3rd Cir.1982).

I feel that the majority opinion is extending the doctrine of the Walker case. Here, as soon as the insurer had the report from Doctor Bernauer suggesting a myelogram, the insurer sent the claimant back to Doctor Ambrister. The fact that Doctor Ambrister did not order an x-ray is of no consequence. Doctor Ambrister was still of the opinion after his examination that plaintiff was okay.

I feel, therefore that the insurer in this case did not idly sit back on its original negative reports. It immediately caused a re-examination of the plaintiff after it received the Bernauer report.


author: CULPEPPER, Judge.

text:
    Huey P. STEWART, Plaintiff & Appellee, v. LOUISIANA FARM BUREAU MUTUAL INSURANCE COMPANY, Defendant & Appellant.
    No. 82-25.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.

      Brittain & Williams, R. Stuart Wright, Natchitoches, for defendant and appellant.
    Gahagan & Gahagan, Marvin F. Gaha-gan, Natchitoches, for plaintiff and appel-lee.
    Before CULPEPPER, GUIDRY and LA-BORDE, JJ.
   CULPEPPER, Judge.

Huey P. Stewart sues his homeowner’s insurer, Louisiana Farm Bureau Mutual Insurance Company, for storm damages to the roof of his mobile home. The district judge awarded plaintiff $1,000 for the cost of repairs, but denied penalties and attorney’s fees. Defendant appealed. The plaintiff answered the appeal, seeking penalties and attorney’s fees.

The issues are: (1) Does the homeowner’s policy cover the damaged roof? (2) Is plaintiff entitled to penalties and attorney’s fees?

FACTS

The following facts were stipulated by the parties:

On March 21, 1981, the roof of plaintiff’s double-wide mobile home was damaged by high winds during the term of the policy. The damaged roof was not the original roof, but was a roof which plaintiff had built on top of the original roof after the homeowner’s policy went into effect on September 30, 1980. The plaintiff failed to inform the defendant that an additional roof had been constructed on top of the original roof, nor did he pay an additional premium as a result of the new roof.

Additional facts not included in the stipulation were established at trial. The plaintiff testified that in January, 1981, he found several leaks in the original shingle roof of his mobile home. Rather than pull off the old shingles and replace them with new ones, he decided to insulate the roof at the same time he repaired it. He nailed boards onto the old roof decking, placed six inches of fiber glass insulation on the old roof, then put a new aluminum roof over that. He further testified that both roofs, new and old, were damaged by the March 21 storm.

In denying coverage, the defendant relies on Section 1, Coverage A, of the policy which reads in pertinent part:

“It is specifically agreed that Coverage A — Mobile home, does not include awnings, outside radio or television antenna and its tower, shelters, cabanas, porches, completely enclosed additions, carports, or other structures and equipment not included in A, B or C above which were not part of the mobile home when purchased new.”

The defendant further relies on Section 1, Coverage B, titled “Adjacent Structures and Equipment.” It provides:

“1. Property Covered. This coverage applies to awnings, shelters, cabanas, porches, completely enclosed additions, carports, portable air conditioners and other structures and equipment attached to or being used in connection with the mobile home insured under Coverage A provided that this coverage applies only to those items which are listed and described in the Declarations of this policy in which a specific premium charge has been made.”

COVERAGE

In a suit to recover benefits under a policy, the insurer has the burden of proving facts which limit its coverage. Massachusetts Protective Association v. Ferguson, 168 La. 271, 121 So. 863 (1929); Paret v. Louisiana Health Service & Indemnity Company, 366 So.2d 634, writ denied 369 So.2d 139 (La.1979). Construction of the unambiguous terms of a policy is a matter of law rather than fact, and any exclusion from coverage must be made clear and unmistakable. If more than one interpretation of an exclusion is reasonable, the one affording coverage to the insured will be adopted. Paret v. Louisiana Health Service & Indemnity Company, supra.

The law applicable to insurance exclusions was stated by the Louisiana Supreme Court in Benton Casing Service, Inc. v. AVEMCO Insurance Company, 379 So.2d 225 (La.1979):

“[4] Briefly stated, the law is to the effect that the insurer is required to clearly express exclusions to its insuring obligations and that any doubt or ambiguity is to be resolved against the insurer, against forfeiture, and in favor of what reason and probability dictate was intended by the parties with respect to coverage.”

The defendant contends that the above quoted exclusionary clause made it clear that anything which was not a part of the mobile home when it was purchased new would not be covered under the policy of insurance. It argues that the intent of the provision is to exclude any and all structures which might be added onto the mobile home after the original purchase.

The trial court found that Section 1, Coverage A of the policy is ambiguous because, while it is clear what is meant by an awning or an outside radio or television antenna and its tower, the language of the policy does not indicate what is encompassed by the phrase “completely enclosed additions, carports, or other structures and equipment * * * which were not part of the mobile home when purchased new.” (emphasis added) We agree. The clause is ambiguous and must be interpreted so that the ambiguity is resolved against the insured.

The defendant asserts that the plaintiff’s damaged roof is not covered by the policy because instead of repairing the original roof he chose to add insulation to his dwelling and place the new roof on top of the six inches of insulation. We agree with the trial court that the new roof and insulation is not an “other structure and equipment” within the intendment of the exclusionary clause. The repair of the roof in this manner did not result in the acquisition of additional living space or shelter, but simply reinforced a part of the trailer. Nor did the new roof and six inches of fiber glass insulation create a new hazard to the insured, as pointed out by the trial court. Therefore, we affirm the trial court’s finding of coverage under the homeowner’s policy issued by the defendant.

PENALTIES AND ATTORNEY’S FEES

The plaintiff-appellee contends that the insurer had no rational or reasonable basis for refusing to pay the plaintiff’s claim, and that he is entitled to an award of penalties and attorney’s fees against the defendant as authorized by LSA-R.S. 22:658. Plaintiff does not cite, nor have we found, any Louisiana cases construing the clause in question.

As stated by this court in Cameron State Bank v. American Employers’ Insurance Company, 401 So.2d 1090 (La.App.3rd Cir. 1981):

“[2] A trial court’s conclusion with regard to assessment of penalties and attorney’s fees under LSA-R.S. 22:658 is in part a factual determination. It should not be disturbed in the absence of a finding that it is manifestly in error. Carter v. American Mutual Liability Insurance Company, 386 So.2d 1072 (La.App.3rd Cir. 1980) and Cullivan v. Fish Engineering and Construction Company, Inc., 354 So.2d 597 (La.App.3rd Cir.1977).”

Where serious issues are raised with regard to plaintiff’s right to recovery, the insurer’s refusal to pay is not arbitrary, capricious or without probable cause. See Patin v. State Farm Insurance Company, 395 So.2d 466 (La.App.3rd Cir. 1981). Where an insurer’s interpretation of its policy is reasonable and not contrary to any existing jurisprudence, the denial of a claim is not arbitrary so as to require the imposition of penalties and the insurer has a right to a judicial determination of the issues. While a court may disagree with the interpretation the insurer places upon its policy, its actions in refusing to pay should not necessarily subject it to the penalty provisions of the statute. See Graham v. Equity National Life Insurance Company, 373 So.2d 988 (La.App.3rd Cir.1979), writ denied 376 So.2d 319, 320 (La.1979).

The trial court found that this defendant’s action in refusing to pay the plaintiff’s claim was not arbitrary, but was made in good faith, based on an interpretation of its policy provisions which the trial court obviously found was not unreasonable. We find nothing in the record to convince us that this conclusion is clearly wrong. In the absence of manifest error, we affirm the trial court’s denial of penalties and attorney’s fees.

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

AFFIRMED.


author: LABORDE, Judge.

text:
    Sharon HARRIS, Plaintiff-Appellant, v. LOUISIANA-PACIFIC CORPORATION, Defendant-Appellee.
    No. 82-44.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.

      Sanders & Castete, Ltd., Martin S. Sanders, Jr., Winnfield, for plaintiff-appellant.
    Gaharan & Wilson, Donald R. Wilson and Paul Boudreaux, Jr., Jena, for defendant-appellee.
    Before CULPEPPER, GUIDRY and LA-BORDE, JJ.
   LABORDE, Judge.

This is a workmen’s compensation suit. Plaintiff, Sharon Harris, instituted this suit against her former employer, the Louisiana-Pacific Corporation. Plaintiff seeks to recover benefits for loss of a physical function. The trial court rendered judgment in favor of defendant. From this judgment, plaintiff has perfected this appeal. We affirm.

■ The issue presented on appeal is whether plaintiffs loss of a physical function, the ability to bear children, was caused by job related trauma.

The record reveals that plaintiff worked as a'grader at defendant’s plant in Urania, Louisiana. As a grader, plaintiff was to sort sheets of plywood as they were ejected from a plywood drying machine onto a flat table. During the evening shift on December 12, 1978, plaintiff was struck in the abdomen area by a sheet of plywood veneer ejected from the machine. The sheet of veneer weighed about twelve (12) pounds and was moving at a slow rate of speed. Plaintiff was taken to a hospital that night but was not treated by a physician. She exhibited no signs of internal disorder. Her clothes were not torn. She was not bruised, or lacerated, and she had no abrasions in the vicinity of the trauma.

On December 14, 1978, plaintiff saw Dr. E.C. Meyers. She complained of generalized abdominal pain and backache. She was admitted to the hospital for tests and was released on December 22, 1978. On January 9, 1979, plaintiff re-entered the hospital. On January 10, 1979, Dr. L.R. Collier examined plaintiff and found evidence of chronic pelvic inflammatory disease and recommended a pelvic laparotomy be performed. The laparotomy revealed plaintiff had bilateral tubo-ovarian abscesses due to chronic pelvic inflammatory disease with numerous adhesions being present. It was necessary to perform a complete hysterectomy.

From December 12,1978 through April 8, 1979, defendant paid to plaintiff $1,921.14 in workmen’s compensation benefits, plus an additional $8,190.11 in medical benefits. This suit was filed to obtain additional benefits for loss of a physical function.

In addition to these facts, the record also contains the testimony of plaintiff’s treating physicians. Dr. E.C. Meyers was the first physician to treat plaintiff. After reviewing the pathology report, he concluded that the inflammation found by the diagnostic laboratory was not the type inflammation normally associated with trauma.

Dr. L.R. Collier, the surgeon who performed the hysterectomy, was in agreement with Dr. Meyers. Dr. Meyers testified that he did not think the trauma had anything to do with plaintiff’s pelvic abscesses. It was pure conjecture that the trauma caused a flare up in her pre-existing condition. Normal sexual activity or even another pelvic examination could have caused the flare up of the disease.

Dr. Gordon S. Bowers, a specialist in the field of gynecology, was called in to review the medical records, reports, and findings of Dr. Meyers and Dr. Collier. Dr. Bowers concluded that this was a textbook picture of pelvic inflammatory disease. He stated that this disease is a long; developing process. He did not feel that the trauma caused a flare up of the disease. Dr. Bowers felt the most probable cause of the flare up was an anemic condition suffered by plaintiff prior to her accident.

From the medical testimony produced, the trial court concluded that plaintiff had suffered pelvic inflammatory disease for a long time. Her condition pre-existed the work related accident. The medical testimony further convinced the trial court that it was more likely than not that plaintiff was already incapable of conception at the time she was injured. Therefore, the trial court held that plaintiffs loss of a physical function was not caused by job related trauma.

In compensation cases the plaintiff has the burden of showing that more probably than not an employment accident occurred and that it had a causal relation to the disability. The plaintiffs case must fail if the evidence shows only a possibility of a causative accident or leaves it to speculation. Prim v. City of Shreveport, 297 So.2d 421, (La.1974); Randle v. Commercial Union Ins. Co., 396 So.2d 1007, (La.App. 3rd Cir.1981).

The standard of review of factual determinations in workmen compensation cases is that of manifest error. Hall v. Houston General Ins. Co., 377 So.2d 561 (La.App. 3rd Cir.1979), writ denied 379 So.2d 10 (La.1980); Randle v. Commercial Union Ins. Co., supra. We will not disturb the lower court’s findings of fact unless they are clearly wrong. Arceneaux v. Dominque, 365 So.2d 1330 (La.1978).

After reviewing the entire record we find that the evidence clearly supports the decision of the trial court. It is clear that the trauma suffered by plaintiff was not the origin of her disease. At best it is purely conjectural or speculative whether trauma could even cause a flare up of the pre-existing disease. The evidence is convincing that more probably than not the trauma sustained by plaintiff caused no change in her ability to bear children.

For the above and foregoing reasons the decision of the trial court is affirmed and all costs are assessed to the plaintiff-appellant.

AFFIRMED.


text:
    Benny W. O’BRIAN, Plaintiff-Appellee, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellant.
    No. 82-45.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.

      Provosty, Sadler & deLaunay, Ronald J. Fiorenza, Alexandria, for defendant-appellant.
    Watson, Murchison, Crews, Arthur & Corkern, William P. Crews, Jr., Natchitoch-es, for plaintiff-appellee.
    Before CULPEPPER, GUIDRY and LA-BORDE, JJ.
   LABORDE, Judge.

This is a property damage case resulting from an automobile accident. Plaintiff, Benny W. O’Brian, sued his insurance carrier, Allstate Insurance Company, pursuant to a contract of insurance between the parties. The case arose from a dispute as to the actual cash value of plaintiff’s 1971 customized Dodge van. The trial court originally awarded plaintiff $3,500.00 for property damage, $363.00 for loss of use of the van, $2,000.00 for attorney’s fees plus a penalty of 12% on the sum of $3,500.00 from the date of judicial demand.

Defendant, Allstate, filed a motion for new trial arguing that the law and evidence did not support an award of attorney’s fees, penalties, and a recovery for loss of use. Defendant also argued that they were entitled to a credit for the $100.00 deductible called for in the insurance contract.

The trial court granted a new trial solely for the purpose of allowing defendant a $100.00 credit on the $3,500.00 awarded plaintiff for property damage. In addition, the trial court increased by $250.00 the award of attorney’s fees to plaintiff’s counsel for answering the motion for new trial and filing a memorandum in opposition to the motion.

Allstate Insurance Company appeals the trial court’s judgment insofar as it awarded damages for loss of use of the van, penalties and attorney’s fees. We reverse in part and affirm in part.

The issues presented are as follows:

(1) Whether damages for loss of use of the insured vehicle which was totally destroyed is a proper element of damages in this case.
(2) Whether the trial court was correct in finding that Allstate was arbitrary and capricious and thereby awarding penalties and attorney’s fees.

FACTS

In 1971 plaintiff, Benny O’Brian purchased a used 1971 Dodge van for $2,300.00. Thereafter, plaintiff and his wife installed carpeting, kitchen equipment, revolving bucket seats, a stereo system and other improvements which converted the plain vehicle into a travel van complete with sleeping space, running water and other accessories.

On February 19, 1981, plaintiff’s van, driven by his wife, was involved in an accident in the City of Natchitoches. The accident was reported to defendant, Allstate Insurance Company, who provided collision coverage on the van. Defendant’s adjuster inspected the van on February 26,1981, and concluded that the van was a total loss. The terms of the policy provided that in case of a total loss, Allstate would pay the insured the actual cash value of the vehicle.

Since the vehicle was over ten (10) years old it was not listed in national guide books that are used to determine the value of automobiles. Therefore, Allstate took photographs and a descriptive list of the van’s accessories to various car dealers and individuals who were familiar with this type vehicle. Allstate determined that the actual cash value of the van was $2,500.00. Plaintiff refused to accept this figure as the actual cash value and informed Allstate that he felt that the van was worth $3,500.00.

On April 9, 1981, within sixty days of being notified of the loss, Allstate offered a check to plaintiff in the amount of $1,950.00. The letter accompanying the check explained that this amount represented the $2,500.00 actual cash value of the van less the $100.00 deductible and less a $450.00 salvage value bid which had been obtained by Allstate. Plaintiff refused this offer and this suit was instituted.

LOSS OF USE

At trial, plaintiff testified and introduced evidence tending to establish damages for loss of use of his van. Plaintiff based his loss upon added expenses he incurred and would incur on two out of state trips. The first trip was taken in June of 1981, some 314 to 4 months after the accident. The second trip had yet to be taken at the time of trial in August, 1981. Plaintiff offered evidence to establish the cost difference in the two trips due to the loss of use of the van. Based upon these cost differences, the trial court awarded $363.00 in damages for loss of use of the van.

In cases where a wrecked vehicle is totally destroyed or' its repair is not economically feasible, damages for loss of use are recoverable only for a reasonable time, that time period in which the owner becomes aware of the situation and secures a replacement therefor. Menard v. Prejean, 374 So.2d 1275 (La.App.3rd Cir.1979); Washington v. Lake City Beverage, Inc., 352 So.2d 717 (La.App. 3rd Cir. 1977), writ denied 354 So.2d 1050 (La.1978); Barry v. United States Fidelity & Guaranty Co., 236 So.2d 229 (La.App.3rd Cir.1970).

In Menard v. Prejean, supra, the plaintiff knew immediately that his tractor was a total loss. This court determined that 30 days was a reasonable period of time for a replacement tractor to have been purchased. No damages for loss of use were allowed beyond this 30 day period.

In the present case, plaintiff became aware that his vehicle was a total loss one week after his accident. No evidence was introduced to establish damages for loss of use of the van during the seven day period it took to determine that the van was a total loss. Plaintiff based his claim for damages solely on losses he claimed to have sustained four months after the accident and upon speculative losses that had not yet been incurred.

We conclude that these losses claimed by plaintiff were not sustained within a reasonable period of time that it would take for a replacement van to be purchased. Although not specifying what would have been a reasonable time period in this case, we think it clear that to allow a four (4) month period would open the door for abuse in the future. We conclude that no award for loss of use of plaintiff’s van should have been rendered.

PENALTIES AND ATTORNEY’S FEES

The second issue on appeal concerns the trial court’s award of penalties and attorney’s fees pursuant to LSA-R.S. 22:658 which reads as follows:

“All insurers issuing any type of contract other than those specified in R.S. 22:656 and 22:657 shall pay the amount of any claim due any insured including any employee under Chapter 10 of Title 23 of the Revised Statutes of 1950 within sixty days after receipt of satisfactory proofs of loss from the insured, employee or any party in interest. Failure to make such payment within sixty days after receipt of such proofs and demand therefor, when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of 12% damages on the total amount of the loss, payable to the insured, or to any of said employees, together with all reasonable attorney’s fees for the prosecution and collection of such loss, or in the event a partial payment or tender has been made, 12% of the difference between the amount paid or tendered and the amount found to be due and all reasonable attorney’s fees for the prosecution and collection of such amount. Provided, that all losses on policies covering automobiles, trucks, motor propelled vehicles and other property against fire and theft, the amount of the penalty in each of the above cases shall be 25% and all reasonable attorney’s fees.”

Defendant argues that a genuine dispute as to the actual cash value of the van existed and within sixty days of being notified of the loss, it made an unconditional tender of the undisputed amount due under the policy. Having made this offer, defendant argues that the trial court erred in finding that it was arbitrary and capricious. This finding resulted in the award of penalties and attorney’s fees.

The law is clear that where there is a reasonable dispute as to amount of loss, the insurer can avoid imposition of penalties and attorney’s fees by unconditionally tendering part of the claim which is undisputed. LeBlanc v. Underwriters At Lloyd’s London, 402 So.2d 292 (La.App.3rd Cir. 1981); Nations v. Excess Insurance Company, 377 So.2d 433 (La.App.2nd Cir.1979); Riverland Oil Mill v. Underwriters for Lloyd’s, 368 So.2d 156 (La.App.2nd Cir. 1979), writs denied 369 So.2d 1365 (La.1979).

The trial court viewed Allstate’s actions or inactions as eliminating the possibility that a reasonable dispute existed. The trial court stated:

“In this case, defendant did not try to adjust or negotiate with plaintiff about the value of the vehicle. Defendant arrived at a value of the van without looking at it or discussing its value with plaintiff. Instead, defendant sent plaintiff a draft and in effect said take it or leave it. The court finds the defendant’s attitude and conduct constitutes arbitrary action which subjects defendant to the penalty and reasonable attorney fees provided in R.S. 22:658.”

The facts reveal that Allstate’s adjuster contacted Dewey’s Auto Sales and Perry Chrysler Dealer in Alexandria in an attempt to evaluate the cash value of the van. Pictures of the van and a descriptive list of the accessories included on the van were shown to these dealers. When the result of this initial evaluation was presented to plaintiff it was refused. Plaintiff felt his van was worth more money and demanded a sum $1,000.00 greater than Allstate’s offer. At this point Allstate’s adjuster asked plaintiff for the names of dealers who would value the van at $3,500.00. Plaintiff was unable to provide defendant with the name of any dealer who would appraise the van at $8,500.00 but he did give defendant’s adjuster the names of two individuals. After cheeking with these individuals, Allstate found neither would substantiate an actual cash value of $3,500.00. At no time prior to the issuance of Allstate’s draft representing the $2,500.00 offer did plaintiff provide defendant with the name of any appraiser who would appraise the value of the van at $3,500.00.

At trial, the expert witnesses relied on by plaintiff were not the same individuals that plaintiff had previously informed defendant of, but were two individuals who had first viewed the van in June of 1981.

The trial record also reveals that plaintiff’s van, originally purchased for $2,300.00, had been driven over 100,000 miles during the past ten (10) years. The van’s present engine had accounted for over 39,000 of these miles.

Based on the trial record, we conclude that a reasonable dispute as- to the actual cash value of the van did exist. Since plaintiff’s van was too old to be listed in the national guide books used in determining the value of automobiles, we feel defendant followed a reasonable procedure to ascertain the van’s value. After plaintiff’s refusal to accept defendant’s offer, defendant investigated the possibility that others might appraise the van at the amount requested by plaintiff. Given these facts and given the fact that the ten (10) years old van had over 100,000 miles on it, we cannot conclude that Allstate acted arbitrarily in setting the value of the van at $2,500.00.

Even though we conclude that a reasonable dispute as to the actual cash value existed, we are not prepared to reverse the trial court’s award of penalties and attorney’s fees. One cannot rely on a dispute as to value to escape the penalties of LSA-R.S. 22:658 without having unconditionally tendered the portion of the value that is undisputed. LeBlanc v. Underwriters At Lloyd’s London, supra.

Under the jurisprudence of this state, if the insurer conditions its offer to pay an undisputed amount on the insured’s acceptance thereof in full settlement, the offer is not viewed as an unconditional tender for purposes of LSA-R.S. 22:658. Gagnard v. Travelers Ins. Co., 380 So.2d 191 (La.App. 3rd Cir.1980); Witherwax v. Zurich Insurance Company, 315 So.2d 420 (La. App.3rd Cir.1975); Spano v. Emmco Ins. Co., 239 So.2d 434 (La.App. 4th Cir.1970), writ refused 257 La. 168, 241 So.2d 530 (La.1970).

Beside the words “In Payment Of”, the draft sent to plaintiff on April 9, 1981, stated as follows:

“Total loss settlement on 1971 Dodge van.”

The first paragraph of the letter accompanying the draft which explained the amount for which the draft was drawn read as follows:

“I regret that we have been unable to agree on this settlement. A market in these vehicles is made only by a limited number of dealers. My offer to settle is based on a local dealer quote and pretty much confirmed by other dealers.”

There is no other evidence in the record to indicate whether the tender of the draft was unconditional. All that is present is the draft and the letter that accompanies it. Defendant states in his brief that, “If Mr. O’Brian had negotiated the draft, he would not have been restricted or impaired from maintaining this action." This court gives little weight to this self-serving statement unsupported by the record. Had plaintiff negotiated the draft, defendant could have as easily argued that a settlement had been reached and suit could not be maintained.

The intent of defendant appears to be that acceptance of the draft would act as a full settlement of plaintiff’s claim. The draft designated payment as a “Total loss settlement’, (emphasis added). The letter states that this is “My offer to settle”, (emphasis added). From the use of these terms we conclude that the draft was an offer for a full settlement and not an unconditional tender of an undisputed term. Since Allstate did not make an unconditional tender of the undisputed sum, it cannot avoid the payment of penalties and attorney’s fees. LeBlanc v. Underwriters At Lloyd’s London, supra; Deville v. Louisiana Farm Bur. Mut. Ins. Co., 378 So.2d 457 (La.App.3rd Cir.1979); Witherwax v. Zurich Insurance Company, supra. We affirm the trial court’s award of penalties and attorney’s fees.

For the above reasons, it is hereby ordered that the lower court’s judgment be amended to exclude the award to plaintiff for loss of use of the van; in all other respects the judgment is affirmed. Costs of this appeal are assessed one-half to defendant-appellant and one-half to plaintiff-ap-pellee.

AMENDED; AFFIRMED AS AMENDED.

      . See also Fruge v. Hub City Iron Works, Inc., 131 So.2d 593 (La.App.3rd Cir.1961), where the court held that where a sum is offered “as a settlement”, it is not a good tender.