author: MARVIN, Judge.

text:
    Vernon SELF, Plaintiff-Appellee, v. RIVERSIDE COMPANIES, INC., Defendant-Appellant.
    No. 14082.
    Court of Appeal of Louisiana, Second Circuit.
    March 31, 1980.
    En Banc. Rehearing Denied May 13, 1980.
    Writ Refused June 23, 1980.

      Baker, Culpepper & Brunson by Bobby L. Culpepper and J. M. McDonald, Jonesboro, for defendant-appellant.
    Jim W. Wiley, Winnfield, for plaintiff-ap-pellee.
    Before PRICE, MARVIN and McCLEN-DON, JJ.
   MARVIN, Judge.

In this worker’s compensation appeal, the employer questions whether an employee suffers a personal injury by accident within the meaning of the law, when the employee’s artificial hip (femoral prosthesis) fails or gives way when the employee is lifting an object during the course and scope of employment. LRS 23:1021(1), (6); 23:1031. We answer affirmatively and affirm judgment in favor of the employee.

The claimant-employee was an orderly in defendant’s nursing home and was lifting a patient when the incident occurred. About 10 years before the incident, a Charnley-Muller prosthesis (the ball which moves in the hip socket) had been fitted into the claimant’s femoral canal with methacrylate glue. The stress of the lifting caused the glue to crack and allowed the prosthesis to twist and to be pushed deeper into the canal. When this occurred, the claimant gasped and grabbed his hip. He then tried to walk from the patient’s room and down the hallway by using a handrail but was overcome by pain and eased himself to the floor. The occurrence is corroborated by another employee who helped lift the patient.

The employer contends that there was no personal injury by accident because the medical expert agreed that the glue was expected to fail “in time” and because this was not the failure of a member or organ of the body. The employer neglects to note that the expert also testified that he found the claimant in the emergency room in acute pain, that he found evidence of old bleeding around the prosthesis when surgery was performed a few weeks later (indicating an “acute episode”), and that extensive surgery was required to correct the failure and re-fit claimant with a Harris prosthesis of newer material and design.

We begin with the “familiar principle” that the workmen’s compensation law is to be liberally construed to protect the employee from loss arising out of an employment-related injury. Campbell v. Fidelity & Cas. Co. of New York, 339 So.2d 339 (La.1976).

We have no problem finding the incident was an accident under the law even though the failure of glue might have been expected in time. Louisiana has adopted the accidental result approach as distinguished from the accidental cause approach in determining whether there is injury by accident. If, to the employee, an unexpected or an unforeseen result is produced suddenly and violently, with objective signs of injury, the statutory requirements for accidental injury are fulfilled. § 1021, 1031; Fields v. Sperry Rand Corp., 343 So.2d 339 (La.App.2d Cir. 1977), writ refused.

A Louisiana employer takes his employee as he finds him. An employee’s disability is compensable if a work-related accident aggravates or accelerates a pre-existing condition to produce disability. Cadiere v. West Gibson Products Co., Inc., 364 So.2d 998 (La.1978). The benefits of the act are payable primarily for disability. LRS 23:1221(1), (2), and (3).

There was personal injury here. There was trauma to the femur itself and to the surrounding blood vessels and tissues when the metal prosthesis was twisted and forced downward by the lifting of the patient. There was acute pain and bleeding, objectively found. There was further trauma from the extensive surgery which was required in a few weeks following the incident. There was total disability for 51 weeks as a result of the incident.

A Louisiana employer is obligated to pay the cost of repairing or replacing any prosthetic device damaged or destroyed by accident. Larson states that this type statute is employed by the courts of other states in prosthetic appliance-injury cases to uphold an award of disability compensation where there is no specific statute otherwise applicable, and, especially as here, where the damage to the prosthesis also causes a physical injury. Larson’s Workmen’s Compensation Law, § 42.12, pp. 7-580-581.

The defendant-employer also complains that penalties and attorney’s fees should not have been awarded. Again we cannot agree. Defendant had knowledge of the accident and claimant’s disability. Defendant caused claimant to be transported to the hospital. Demand was made on defendant to pay medical and prosthetic expenses and compensation. Without seeking medical or legal advice, defendant refused payment solely on the basis that its president “. . . felt that the employee’s injury was not the result of an accident, but was due to normal wear and tear of the hip joint.” Again we mention that the employer takes his employee as he finds him whatever his susceptibility to disabling injury. The lower court did not err in awarding penalties and attorney’s fees. LRS 23:1201.2. We are unable to award additional attorney’s fees for services on appeal in the absence of either an appeal or an answer to the employer’s appeal by the employee. CCP 2133. Gour v. Daray Motor Co., 373 So.2d 571 (La.App.3d Cir. 1979).

At the employer’s cost, judgment is

AFFIRMED.

      . LRS 23:1021:
      “(1) ‘Accident’ means an unexpected or unforeseen event happening suddenly or violently, with or without human fault and producing at the time objective symptoms of an injury.”
      ifc ifc ‡ * * *
      “(6) ‘Injury’ and ‘personal injuries’ include only injuries by violence to the physical structure of the body and such disease or infections as naturally result therefrom. These terms shall in no case be construed to include any other form of disease or derangement, howsoever caused or contracted.”
      LRS 23:1031 (in part):
      “If an employee not otherwise eliminated from the benefits of this Chapter, receives personal injury by accident arising out of and in the course of his employment, his employer shall pay compensation in the amounts, on the conditions, and to the person or persons hereinafter designated.”

      . LRS 23:1203 (in part):
      “The employer shall furnish to the employee the necessary cost of repair to or the replacement of any prosthetic device damaged or destroyed by accident . . . including • but not limited to damage or destruction of . artificial limbs . .


source: Caselaw Access Project

license: Public Domain

text:
    Bertell WILLIAMS, Andy Riser and M. Gilbert, Plaintiffs-Appellants, v. James TURNER, Jr., Superintendent of Caldwell Parish School Board, and the Caldwell Parish School Board, Defendants-Appellees.
    No. 14089.
    Court of Appeal of Louisiana, Second Circuit.
    March 31, 1980.
    Martha E. Minnieweather, Bastrop, Clyde Lain, II, Monroe, for plaintiffs-appellants.
    Don C. Burns, Columbia, for defendants-appellees.
    Before HALL, MARVIN and JONES, JJ.
   MARVIN, Judge.

The district court, reviewing a decision of the defendant School Board, affirmed the Board’s decision expelling four elementary students from school effective April 19, 1979, for the remainder of the 1978-79 school year, and rejected the other demands of the parents. The parents appeal. We affirm.

LRS 17:416 sets forth the procedure by which students may be suspended and expelled by school authorities. In such circumstances the student is entitled to be advised by his principal of the basis for the discipline and the particular conduct of which he is accused and is entitled to the opportunity of explaining his conduct.

If the principal recommends expelling a student, the superintendent or his designate is required to hold a hearing to determine what disciplinary action shall be taken.

The parent or tutor of the student is entitled to a review by the School Board, which may either affirm, modify or reverse the discipline imposed by the superintendent. The parent is entitled to appeal from the ruling of the School Board to the district court, which may reverse or revise the ruling on a finding that the Board’s ruling was based on an absence of relevant evidence in support of the ruling. Procedurally, the statute affords due process and is not unconstitutional. See Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975); Murray v. West Baton Rouge Par. School Board, 472 F.2d 438 (5th Cir. 1973); Whiteside v. Kay, 446 F.Supp. 716 (U.S.D.C. W.D. La., 1978).

The statute contemplates only that judicial review of the disciplinary action shall be afforded. Plaintiffs here sought not only reversal of the expulsion of their children, but damages on behalf of their children for the alleged wrongful expulsion. No objection was made to this cumulation. The lower court found that there was relevant evidence supporting the decision of the Board and rendered a judgment affirming the decision and rejecting the demands of plaintiffs.

Plaintiffs contend on appeal that there was no relevant evidence supporting the decision of the Board, that due process was not afforded, that the Board “violated the freedom of speech of the students,” and that damages should have been assessed.

LRS 17:416 generally authorizes a principal to suspend any student “ . . . who is guilty of willful disobe-

dience [or] who treats with intentional disrespect a teacher [or] principal . [or] who is guilty of vicious practices or of conduct . . . injurious to his associates . . . ”

The children involved were Tony and Andre Riser, Henry Williams, and Mack Gilbert. Tony, Henry and Mack apparently were classmates under the tutelage of a Mrs. Jackson. Tony had disturbed the class and Mrs. Jackson ordered him to stand in a corner in the hall. When he did not obey her order, she paddled him. During a school recess Tony, Henry, and Mack conspired to call Mrs. Jackson out of her classroom so that Tony could hit her with a stick. Another teacher prevented fulfillment of the scheme by taking away the stick. Andre and Tony confronted Mrs. Jackson in a hallway of the school. Tony told Mrs. Jackson, “You’d better not hit me again for doing nothing.” Andre, in a voice Mrs. Jackson described as “threatening”, told her, “Don’t ever hit my brother (Tony) again for nothing, you’d better not hit my brother again.” Mrs. Jackson ordered the two boys to accompany her to the principal’s office. André refused. Another teacher appeared. She corroborated Mrs. Jackson’s version of what occurred. Andre obeyed the principal’s later order to report to the principal’s office. On three prior occasions during the 1978-79 school year Andre had been suspended by the principal.

The superintendent mailed letters to the parents of each of the children advising that expulsion had been recommended and that a hearing was scheduled. The letters requested the presence of the parents and the child. Likewise, they were advised of the result and their rights of appealing to the School Board. They appeared at the hearings before the superintendent and before the School Board. They testified and were allowed to ask questions. ■ The expulsions were upheld by votes of 4 — 2 with one abstention (Mack Gilbert), 7-0 (Henry Williams, Tony Riser), and 6-0, with one abstention (Andre Riser).

We find no constitutional due process infirmity in the manner in which the hearings were conducted or in the manner in which these students were expelled. We fail to understand how, and do not find that, the freedom of speech of the students is or was curtailed either by the school authorities, by the statute, or by the way it was administered here. The students were disciplined because they freely spoke and acted. Conspiracy to commit a battery is not protected free speech in any event. See Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470 (1919).

Relevant evidence was not absent, but indeed was present. We find no error. At appellants’ cost, judgment in all respects is AFFIRMED.


text:
    Gary K. GALBRAITH, Plaintiff-Appellee, v. Sally Jane McCowen GALBRAITH, Defendant-Appellant.
    No. 14091.
    Court of Appeal of Louisiana, Second Circuit.
    March 31, 1980.
    Kennedy, Goodman, Donovan & Parnell, by Robert J. Donovan, Jr., Shreveport, for defendant-appellant.
    Whitmeyer & Glassell by Claudius E. Whitmeyer, Shreveport, for plaintiff-appel-lee.
    Before HALL, MARVIN and JONES, JJ.
   MARVIN, Judge.

The wife who quit her employment and returned to Houston after she was served with her husband’s petition for divorce, appeals, seeking to increase a judgment on a rule awarding her $350 monthly alimony pendente lite. She contends the amount is abusively low and was based on the legally erroneous factors that she had the capacity to earn a wage and that she had lived with her husband only a “short duration’’ (three and one-half years).

In .answer to the appeal, the husband urges that we should sustain, or order a remand to allow the trial court to sustain, the husband’s peremptory exception of no right of action which he filed in this court after the appeal was taken. His exception is grounded upon the allegation that because his alleged wife was not divorced from her first husband at the time he married her (the divorce judgment having been signed only one day later), his marriage is a nullity. CCP 2163.

We amend to increase alimony pendente lite and, as amended, affirm the judgment.

These parties were married in April 1976 and lived together until August 16, 1979, when the husband moved out of the family home and sued for divorce. The wife was then working as a bookkeeper earning about $800 per month. After being served with process she moved from Shreveport to her mother’s home in Houston and brought a reconventional demand for separation. Excluding the living expenses of her child by a previous marriage, she lists $800 as her monthly living expenses. Although she does not pay rent to her mother, she includes $162.50 as rental expense.

The husband has a monthly gross income of $2,200 as an airplane pilot. He is contemplating taking bankruptcy for the second time in six years because he and his wife have lived beyond their means and he claims that his installment and other obligations are equivalent to or are in excess of their once combined net income. Nevertheless, the husband’s alimentary obligations toward the wife come before his obligations to his creditors. Laiche v. Laiehe, 237 La. 298, 111 So.2d 120 (1959); Tablada v. Tablada, 356 So.2d 1031 (La.App.1st Cir. 1977); Moore v. Moore, 380 So.2d 180 (La.App.2d Cir. 1979). He owns property other than the family home and is occasionally reimbursed for expenses when away from home.

The wife’s complaint about the legally erroneous factors has merit. The trial court stated “for the record” that consideration had been given to the two factors complained of in arriving at the award. Neither the brevity of the marriage (Cordaro v. Cordaro, 168 So.2d 886 (La.App.2d Cir. 1964)) nor the wife’s capacity to earn a gainful wage (Ward v. Ward, 339 So.2d 839 (La.1976)) are factors to be considered in setting alimony pendente lite.

The considerations are statutorily given;

“If the spouse has not a sufficient income for maintenance pending suit for separation from bed and board or for divorce, the judge may allow the claimant spouse, whether plaintiff or defendant, a sum for that spouse’s support, proportioned to the needs of the claimant spouse and the means of the other spouse.” CC Art. 148.

Here the husband has the means, however strained, and the wife, who is unemployed and is without sufficient income, has the need. A proportionate sum for the wife’s support should be allowed, notwithstanding the brevity of the marriage or the capacity of the wife to earn.

Rather than remand, we deem that $500 per month alimony pendent lite is properly proportionate in these circumstances.

The proof of the ground of the husband’s peremptory exception (that the marriage is null) does not appear of record and we do not consider the exception here. CCP Art. 2163. See Cortes v. Fleming, 307 So.2d 611 (La.1973).

The judgment appealed is amended to increase the alimony pendente lite to $500 per month, and, as amended, at appellee’s cost, is AFFIRMED.

      . “In pre-trial this morning, your honor indicated that—and I don’t want to mis-quote your honor, but you made the statement that you didn’t feel like that Mrs. Galbraith was entitled to a large sum . . and you indicated that by reason of the short duration of the marriage and by reason of the fact that she had worked in the past rather recently and had this earning capacity that your honor felt like she was not entitled to a normal sum that she would be entitled to had the marriage been longer; had she not had this work experience.
      “I would address myself to those remarks at this time. * * *

        “The Court: I think it is unusual that the comments of the pretrial conference are made a part of the record. However, I intended to state for the record the two factors that you have mentioned, which are two of the factors which I have taken into consideration in arriving at the award.
      “There are, of course, many factors that any judge must take into consideration, and for that reason, the Courts have been given considerable latitude to try to determine what is fair under the circumstances.
      “These are two of them, I think. I may be incorrect, but the Court feels that,' having heard all of the testimony that either side wished to put on, that an award of $350 per month is adequate for Mrs. Galbraith’s alimony pendente lite.”


text:
    Patrick HENNESSY, Plaintiff-Appellant, v. SOUTH CENTRAL BELL TELEPHONE COMPANY, Defendant-Appellee.
    No. 14098.
    Court of Appeal of Louisiana, Second Circuit.
    March 31, 1980.
    Michael G. Latimer, Bossier City, for plaintiff-appellant.
    Tucker, Martin, Holder, Jeter & Jackson by T. Haller Jackson, Jr., Shreveport, for defendant-appellee.
    Before MARVIN, JONES and McCLEN-DON, JJ.
   MARVIN, Judge.

The plaintiff attorney sued for damages for the failure of the telephone company to list his office number in the 1979 yellow pages of the directory. His action was dismissed without prejudice on. an exception of improper venue and he appeals.

Plaintiff sued in the parish of his residence (Bossier), although he allegedly contracted with defendant to obtain the listing for his office in Shreveport (Caddo Parish). Shreveport-Bossier listings are contained in one directory.

Plaintiff’s essential allegations include:
“Petitioner relied entirely upon the assurances of defendant for his listing .
and . . . has been severely damaged by defendant’s negligence;
“ . . . defendant . . . negligently failed to list petitioner . [and] did not properly process petitioner’s purchased listing and the doctrine of ‘Res ipsa Loquitur’ is applicable;
“That defendant’s negligence in failing to provide petitioner with a listing in the yellow pages of the 1979 directory has and will cause petitioner . . . damages . . . ”

Plaintiff contends that his action is wholly or partly in tort, making applicable the special venue provisions of CCP 74, and alternatively, that the trial court erred in not transferring the action to a court of proper venue under CCP 121.

Defendant is a foreign corporation which has designated its principal business establishment in New Orleans. CCP 42(4) provides general venue in Orleans Parish. CCP 74 provides that special venue for an action to recover damages for an offense or quasi-offense lies in the parish where the wrongful conduct occurred or in the parish where the damages were sustained. A Comment at 25 Loyola L.R. 367, 375 (1979) states that CCP 74 venue impliedly is restricted to tort actions involving active negligence.

Some breaches of contract may also give rise to tort damages, as in Bunch v. South Central Bell Tel. Co., 356 So.2d 104 (La.App. 1st Cir. 1978), where the defendant inadvertently listed plaintiff’s number, but under a competitor’s name. See also Loridans v. Southern Bell Telephone & Telegraph Co., 172 So.2d 323 (La.App. 4th Cir. 1965).

CCP 74 limits its venue application to damages resulting from offenses and quasi-offenses. Comments, CCP 74. Allegations of the negligent failure to list a person’s name in a directory are simply restatements of a breach of the contractual obligation to list. Marino v. South Central Bell Tel. Co., 376 So.2d 1311 (La.App. 1st Cir. 1979).

Where a person neglects to do what he is obligated under a contract to do (CC 1883, 1926-1934), he has committed a passive breach of the contract (CC 1931-1933). If he negligently performs a contractual obligation, the courts sometimes term this as active negligence as well as an active breach of contract. See Richardson v. Moore, 304 So.2d 425 (La.App. 1st Cir. 1973); Clement v. Redi-Bilt Corporation, 249 So.2d 607 (La.App. 4th Cir. 1971); 25 Loyola L.R. 367 (1979). Clement sought damages for his contractor’s failure to repair defects in a home. Richardson sought damages for his contractor’s faulty installation of a burglar alarm. The Clement court deemed the failure to perform as passive negligence while the Richardson . court deemed the faulty performance as active negligence. CCP 74 venue was allowed in Richardson but not in Clement. Neither case provides guidelines for determining when a breach of contract gives rise to a tort action, but a venue solution based on whether the breach was by an act committed or by an act omitted “is as valid as any other type of determination . . . ” 25 Loyola L.R. 367, 375. This analysis should be explicitly made and on a case to case determination. This was the approach taken by the trial court and is the approach taken by us. The unintentional failure of the telephone company to list a person’s name in a directory does not give rise to an action in tort. See Marino, supra. CCP 74 venue is not applicable here and we find no error in the sustaining of the declinatory exception.

A trial court may transfer an action in which the declinatory exception of venue either is filed or is noticed, to a proper court with venue even where the plaintiff-respondent does not request transfer. CCP 121, 932. Cousins v. Crest Air Conditioning and Heating, Inc., 332 So.2d 543 (La.App. 4th Cir. 1976), writ refused.

“[T]he court may dismiss the action, or ... transfer it to a court of proper venue.’’ CCP 121, in part.

We find no abuse of the discretion afforded by these articles under the circumstances shown in this record.

At appellant’s cost, judgment is AFFIRMED.


text:
    Sarah J. CAMPBELL, Plaintiff-Appellee, v. BAKER, CULPEPPER & BRUNSON et al., Defendant-Appellant.
    No. 14110.
    Court of Appeal of Louisiana, Second Circuit.
    March 31, 1980.
    En Banc. Rehearing Denied May 13, 1980.
    Writ Refused June 23, 1980.

      Baker, Culpepper & Brunson by Bobby L. Culpepper and J. Michael McDonald, Jones-boro, for defendants-appellants, Baker, Cul-pepper & Brunson, William H. Baker, Bobby L. Culpepper and Donnie G. Brunson.
    Führer & Flournoy by George A. Flour-noy, Alexandria, for plaintiff-appellee.
    Before MARVIN, JONES and McCLEN-DON, JJ.
   MARVIN, Judge.

In this worker’s compensation case, the defendant law firm appeals a judgment awarding benefits to the claimant who was employed as a lawyer for the firm. Claimant answers the appeal, seeking penalties and attorney fees and an increase in the weekly amount ordered to be paid. We amend to allow penalties and attorney fees and affirm.

The issues concern the claimant’s alleged deviation from her route to purchase lunch at a fast food restaurant while on a business errand (whether the accident arose out of and occurred during the course and scope of her employment), the amount awarded ($50 per week for impairment of a physical function less credit for amounts owed and to be paid for the period of her temporary total disability), and whether the employer should be assessed with attorney fees and penalties because of the refusal to pay benefits, including medical expenses (whether arbitrary and without probable cause).

The facts are virtually undisputed. On October 3, 1977, claimant was instructed to drive approximately 21 miles from Jones-boro to Ruston to attend to firm business, and it was understood that claimant would return to her office after completing the business. After completing the business at the Lincoln Parish Courthouse, claimant drove approximately one block off the Jonesboro-Ruston Highway to a fast food restaurant where she purchased food to eat on the return trip to Jonesboro. When she was driving out of the restaurant parking lot, she was injured in an automobile accident. The law firm customarily reimbursed its employees for mileage and for meals they ate when away from Jonesboro on firm business. Defendant did not forbid claimant to purchase her lunch in Ruston. Claimant decided to eat in her automobile during the return trip to Jonesboro to save time for firm work which was awaiting her at the firm office.

The defendant states that it is the firm’s policy that if employees get through with out-of-town work in time, they should return to Jonesboro to eat rather than eating away from town at the firm’s expense. Defendant stipulated that the accident occurred at “twelve fifteen or twelve thirty [p. m.]”, but argues that claimant could have easily been back in Jonesboro by 12:10 p. m. at the latest if she left the Ruston Courthouse about 11:45 as she indicated. Defendant contends the claimant would not have been within the course of her employment during her lunch hour in Jonesboro. Whether this contention is correct cannot be answered in the abstract. See Huett v. Insurance Company of North America, 329 So.2d 222 (La.App. 4th Cir. 1976); Lavier v. Maclellan, 247 So.2d 921 (La.App. 4th Cir. 1971); Clark v. Employers Liability Assur. Corp., 27 So.2d 464 (La.App. 1st Cir. 1946); Lebourgeois v. Lyon Lumber Co., 6 La.App. 216 (1st Cir. 1927); Malone-Johnson, “Worker’s Compensation”, Vol. 7, La. Civil Law Treatise § 163.

Defendant contends that there was a “clear deviation” by claimant from her employment and that claimant “abandoned her post”, relying on such cases as Lisonbee v. Chicago Mill and Lumber Company, 278 So.2d 5 (La.1973). These cases are totally inapposite because they do not concern a traveling employee away from the employer’s premises on a business errand, but concern an inside employee who is injured when he leaves the employer’s business premises on a personal errand. Lisonbee, for example, was required to remain on at the employer’s mill and make appointed rounds as a night watchman even during meal time during an eight hour period. He was fatally shot at a grocery store across the street from the employer’s mill and was found not to have been within the course of his employment. The accident was held not to have arisen out of his employment.

Most of the deviation cases arise when an employee is on a business errand in a vehicle. A deviation which is brief in time and slight in distance is often entirely ignored as insubstantial. Related cases are those in which an employee has completed what has been a substantial deviation. In such situations, the deviation being completed, the employee is regarded as having legally reentered the course of his employment.

“In those cases in which it is clear that re-entry has occurred, compensation has been uniformly allowed.” Malone-Johnson, § 174, p. 377.

Re-entry occurs when the employee turns back toward the direction of the employment destination for the purpose of discharging his employment duties. Jagneaux v. Marquette Casualty Company, 135 So.2d 794 (La.App. 3d Cir. 1961); 14 Tulane L.R. 72. See also Larson, Workmen’s Compensation, § 19, § 20.

The alleged deviation is not “clear”, as defendant argues. The distance and time factors are not great or substantial, but are minimal. The circumstances strongly indicate, as the trial court noted, that claimant was serving her employer’s interest by eating in the automobile while driving back to Jonesboro. Green v. Heard Motor Co., 224 La. 1078, 71 So.2d 849 (1954); Davis v. Home Insurance Company, 291 So.2d 455 (La.App. 2d Cir. 1974). Where an employer pays an employee on a mileage basis for use of the employee’s vehicle or where the employer furnishes transportation to an employee, the employee is in the course of employment if he is injured on the way to or from his work. See Malone-Johnson, § 170, and cases cited therein.

Defendant contends that claimant failed to call the firm clients she saw in Ruston to corroborate her testimony about how she spent her time. Again this relates to the contended deviation. Even should we assume a deviation by this claimant, the circumstances compel the conclusion that she had completed her mission to purchase food (the contended deviation) when she left the restaurant and entered her automobile to return toward her business route. Whether or not a deviation is found, this accident occurred during the course of the claimant’s employment.

The arising-out-of question is not troublesome even though interdependent to the course-of question. Arising-out-of refers to the nature and origin of the risk. Lisonbee, supra. This claimant was in Ru-ston at the instruction of her employer and a particular risk to which she -was exposed was injury in a motor vehicle accident. Malone-Johnson, Chapter 9; Lisonbee, supra.

Claimant sustained injuries and aggravations to her spine in the accident and was treated conservatively for several months without success. About 11 months after the accident she underwent a lumbar laminectomy to relieve the pain which had progressed to become disabling. She eventually returned to work about two months after the operation with a 10-15 percent permanent residual disability of her body, according to the medical expert. The lower court awarded her $50 per week for the impairment of a physical function (LRS 23:1221(4)(p)) for 100 weeks and found her to have been totally disabled from August 11 through November 23, 1978. Judgment also awarded compensation (stipulated at $130 per week) for this period of temporary total disability. Trial courts have much discretion in determining the weekly amount which may be due for the 100 weeks for impairment of a physical function. Any amount between the statutory minimum and maximum may be awarded. LRS 23:1201; Ventress v. Daniel-Ryder, Inc., 225 So.2d 765 (La.App. 3d Cir. 1969); Malone-Johnson, §§ 283, 286. We do not find an abuse of discretion in this respect.

The question of attorney fees and penalties is not a question of discretion or a question of the seriousness and good faith of the asserted defenses. Brewton v. L. L. Brewton Lumber Co., Inc., 349 So.2d 1364 (La.App. 2d Cir. 1977). LRS 23:1201.2 provides that the employer shall be subject to penalties and attorney fees when the failure to make payment is arbitrary, capricious or without probable cause. If the asserted defenses are without a sound basis in fact or in law, penalties and attorney fees shall be assessed. Brewton, supra at p. 1367. The facts in Brewton are not inappo-site. Defendant argued that the claimant was neither an employee nor an independent contractor performing substantial manual labor because he merely supervised a crew of men to supply wood to defendant. Claimant was a passenger in his own pickup which was following one of his own trucks which was hauling the last load of logs for the day to defendant’s mill when the accident occurred. The claimant was not required to be present at the mill but had the general duty to supervise the hauling of wood to the mill. Claimant kept his trucks at his service station where they were serviced and where he and his employees began and ended their work day. Claimant was paid on the basis of wood delivered. In addition to supervision of the cutting and hauling, the claimant regularly operated the equipment used in the woods and frequently drove trucks to the mill. The arguments made there, factually and legally, were found to have been made seriously and in good faith. Attorney fees were allowed because the defendant called no witnesses to contradict facts which were asserted by the claimant and which were found to be “virtually undisputed”, and because the law on the established facts was “well settled”.

The facts and the law here are likewise undisputed and settled. If this accident had occurred in Jonesboro during the noon hour, Huett v. Insurance Company of North America, supra, might be considered on this issue. There the employee of a grocery was injured in a fall on the sidewalk adjacent to the store after she left the store during the noon hour to go home for lunch. Compensation was allowed, but attorney fees and penalties were not assessed. There the reasonable entry and exit theory, which had been applied in cases of going to and from work, was extended to apply to going to and returning from lunch away from the employment premises. Time and distance, a factual proximity issue, gave rise to the “serious [legal] issue of whether plaintiff’s injury occurred during the course of her employment.” While attorney fees were not allowed there, the course of employment issue was decided against, and not in favor of, the employer. That case might support this claimant on the penalty-attorney fee issue even if the course-of issue here was a true entrance-exit question from the employer’s premises. But here the claimant is a traveling employee on a business errand while away from the employment premises.

Defendant also contends that claimant had as much trouble with her back and missed as much time from work before the accident as she did afterward. Defendant also complains that it was not furnished with any medical reports until immediately prior to trial. Certainly this defendant law firm is aware that a Louisiana employer takes his employees as he finds them. Self v. Riverside Companies, Inc., 382 So.2d 1037 (La.App. 2d Cir. 1980).

Defendant learned of the accident the day it occurred and had a firm secretary make an appointment for claimant to see a medical doctor. The accident occurred on October 11, 1977 and claimant remained in defendant’s employ until August 11, 1978. Suit was filed September 15, 1978 and was not tried until June 19, 1979. During the interim, defendant took depositions of claimant and her doctor. Defendant was furnished medical and other reports on the status of the claimant through August 20, 1978, the time she was admitted to the hospital where she eventually underwent surgery. In the summer of 1978, about a month before claimant left her employment, she submitted her medical bills to defendant and asked about worker’s compensation insurance and was answered evasively.

In its answer filed September 22, 1978, defendant denied the allegations of claimant having been in the accident or having “timely” reported it. Claimant and defendant’s employees testified about claimant’s reporting the accident and nothing contradicts this testimony. Demand was made on defendant, at least by the filing of the suit in September 1978. Under these circumstances, there is no sound basis in fact or in law for us to conclude otherwise than that the claimant was injured in an accident while in the course of her employment, and which arose out of her employment. The medical evidence is uncon-tradicted that the accident was the cause of claimant’s temporary total disability and the permanent impairment of a physical function. Malone-Johnson, § 286. Demand for compensation benefits was made on, and was refused, by defendant. Defendant was arbitrary and without probable cause in refusing to pay benefits and medical expenses. Malone-Johnson, supra, § 389.

Attorney fees may be fixed by an appellate court. Albritton v. McDonald, 363 So.2d 925 (La.App. 2d Cir. 1978). This case was filed in September, 1978. The trial took one day. Two depositions were taken. The case was briefed here and below. A motion for new trial was heard and argued. The judgment will total $5,000 in principal compensation benefits and over $6,000 in medical expenses. We deem $3,000 will constitute reasonable attorney fees.

Judgment is amended to award statutory penalties and $3,000 attorney fees and, as amended, at defendant’s cost, judgment is AFFIRMED.


author: HALL, Judge.

text:
    Evie Chreene CORDOVA, Administratrix of the Succession of Frank Cordova, Plaintiff-Appellee, v. Alice Faye CORDOVA, Administratrix of the Succession of G. C. Cordova, and Alice Faye Cordova, Individually, Defendant-Appellant.
    No. 14093.
    Court of Appeal of Louisiana, Second Circuit.
    March 31, 1980.

      Jerry Kircus, Shreveport, La., for defendant-appellant, Alice Faye Cordova, Admin-istratrix of the Succession of G. C. Cordova, and Alice Faye Cordova, individually.
    Colvin, Hunter, Brown, Plummer & Means by Robert E. Plummer, Mansfield, for plaintiff-appellee, Evie Chreene Cordo-va, Administratrix of the Succession of Frank Cordova.
    Before HALL, MARVIN and JONES, JJ.
   HALL, Judge.

In July 1977, the widow of Frank Cordo-va, and administratrix of his succession, sued the widow of G. C. Cordova, individually and as administratrix of his succession, to annul and set aside a cash sale deed dated October 21, 1975 by which Frank Cordova conveyed to G. C. Cordova a tract of land for the stated consideration of $7,000 and other good and valuable consideration. Plaintiff alleged no consideration was ever paid and that there was mutual error in that neither seller nor buyer contemplated the completion of the sale without payment of the price.

At trial, over defendant’s objection, the trial court allowed parol evidence to establish the facts alleged by plaintiff. The evidence clearly established that although the deed, and a mortgage and a note, were signed in a lawyer’s office, and the deed was recorded in error, the sale was not completed by examination of title, securing of a bank loan, and payment of the purchase price, prior to the seller’s death one week after the papers were signed, after which the buyer decided not to go through with the sale. The buyer later died. The trial court rendered judgment annulling and setting aside the deed, and defendant appealed.

The determinative issue on appeal is whether parol evidence was admissible to establish the grounds for setting the deed aside. Appellant relies on the “deadman’s statute”, LSA-R.S. 13:3721, and LSA-C.C. Arts. 2236, 2276 and 2278 .

The deadman’s statute, applicable to suits to recover a “debt or liability” of a deceased person, is not applicable to this suit to annul and set aside a sale.

LSA-C.C. Art. 2278, dealing with the admissibility of parol evidence as related to prescription issues is not applicable here because prescription is not an issue.

Under LSA-CC. Arts. 2236 and 2276, an authentic act is full proof of the agreement contained in it as against the contracting parties and their heirs and assigns. Parol evidence is not admitted against or beyond what is contained in the act. The sale of immovable property executed in the form of an authentic act, which recites that the seller acknowledges receipt of the payment of the consideration therein stipulated, cannot be attacked by a party thereto on the ground that the consideration actually was not paid, unless the attacking party alleges fraud, mutual error, or force, or unless the lack of consideration is indicated by answers to interrogatories or requests for admissions of fact. See Durham v. Evans, 377 So.2d 423 (La.App.2d Cir. 1979) and cases cited therein.

In this case there were allegations of mutual error and parol evidence was properly admitted under the allegations made in this case.

The evidence established that the Cordovas, father and son, had agreed to make the sale. The documents, including the deed and a note and a mortgage, were signed at the lawyer’s office. The documents were to be held in escrow pending examination of title, recording, obtaining a mortgage certificate, certification of title by the lawyer to the bank which was to lend the purchase price to the buyer, execution of a hand note by the buyer to the bank and disbursement of the loan proceeds by the bank, and payment of the purchase price to the seller. The seller died one week after the papers were signed, before any of the conditions and requirements for completion of the sale were accomplished. The buyer then notified the lawyer that the sale was off. Somehow the deed, but not the mortgage, was recorded in error. The buyer later died.

The sale having never been completed, the purchase price having never been paid, and the deed having been released from escrow and recorded in error, the deed is a nullity and title never passed. See Durham v. Evans, supra; and Gibsland Supply Co. v. American Employers Insurance Company, 242 So.2d 310 (La.App.2d Cir. 1970), writ refused 257 La. 987, 244 So.2d 858 (1971).

The judgment of the district court is affirmed at appellant’s costs.

Affirmed.

      . LSA-R.S. 13:3721:
      “ParOl evidence shall not be received to prove any debt or liability of a deceased person against his succession representative, heirs, or legatees when no suit to enforce it has been brought against the deceased prior to his death, unless within one year of the death of the deceased:

        “(1) A suit to enforce the debt or liability is brought against the succession representative, heirs, or legatees of the deceased;
      “(2) The debt or liability is acknowledged by the succession representative as provided in Article 3242 of the Code of Civil Procedure, or by his placing it on a tableau of distribution, or petitioning for authority to pay it;
      “(3) The claimant has opposed a petition for authority to pay debts, or a tableau of distribution, filed by the succession representative, on the ground that it did not include the debt or liability in question; or
      “(4) The claimant has submitted to the succession representative a formal proof of his claim against the succession, as provided in Article 3245 of the Code of Civil Procedure.
      “The provisions of this section cannot be waived impliedly through the fáilure of a litigant to object to the admission of evidence which is inadmissible thereunder.

      . Art. 2236:
      “The authentic act is full proof of the agreement contained in it, against the contracting parties and their heirs or assigns, unless it be declared and proved a forgery.”
      Art. 2276:
      “Neither shall parol evidence be admitted against or beyond what is contained in the acts, nor on what may have been said before, or at the time of making them, or since.”
      Art. 2278:
      “Parol evidence shall not be received:
      “1. To prove any acknowledgment or promise to pay any judgment, sentence or decree of any court of competent jurisdiction, either in or out of this State, for the purpose or in order to take such judgment, sentence or decree out of prescription, or to revive the same, after prescription has run or been completed.
      “2. To prove any acknowledgment or promise of a party deceased to pay any debt or liability, in order to take such debt or liability out of prescription, or to revive the same after prescription has run or been completed.
      “3. To prove any promise to pay the debt of a third person.
      “4. To prove any acknowledgment or promise to pay any debt or liability, evidenced by writing, when prescription has already run. But in all cases mentioned in this article, the acknowledgment or promise to pay shall be proved by written evidence signed by the party who is alleged to have made the acknowledgment or promise or by his agent or attorney in fact, specially authorized in writing so to do.”


author: McClendon, Judge.

text:
    Cora L. TISBY, Plaintiff-Appellee, v. James TISBY, Defendant-Appellant.
    No. 14097.
    Court of Appeal of Louisiana, Second Circuit.
    March 31, 1980.
    Love, Rigby, Dehan, Love & McDaniel by William G. Nader, Shreveport, for defendant-appellant.
    Burnett, Sutton, Walker & Callaway by Bobby D. Sutton, Shreveport, for plaintiff-appellee.
    Before PRICE, HALL and McCLEN-DON, JJ.
   McClendon, Judge.

The defendant husband appeals from that part of a child custody judgment awarding plaintiff wife child support in the amount of $130 per month per child. Plaintiff-ap-pellee filed in this court a plea of mootness of the appeal. This plea has merit.

The plaintiff-appellee was granted judgment on July 2,1979, awarding her the custody of the parties’ two minor children and child support of $130 per month per child beginning July 1, 1979. While appellant’s appeal was still pending, a final judgment of divorce was rendered on November 20, 1979, in favor of appellant, wherein no mention was made of child support.

Under these circumstances we find that the final judgment of divorce, which failed to continue child support, terminated the child support awarded in the judgment appealed from. The decision of our Supreme Court in White v. Morris, 236 La. 767, 109 So.2d 87 (1959), where this precise issue was presented, supports this finding.

In that case the plaintiff wife contended that since there is a continuing obligation on the part of the defendant to support the children under Article 158 of the Louisiana Civil Code, the award of alimony pendente lite for the support of the minor children does not cease upon the rendition of a final judgment of divorce, although it makes no provision for the payment of alimony. In answer to this contention, the court said:

It is well settled that a judgment requiring payment of alimony pendente lite is automatically terminated and of no further effect after the rendition of a final decree of divorce. Bowsky v. Silverman, 184 La. 977, 168 So. 121; Bienvenue v. Bienvenue, 186 La. 429,172 So. 516; Eals v. Swan, 221 La. 329, 59 So.2d 409. Although the dissolution of marriage does not dissolve the obligation of support for the children, yet this obligation must be judicially enforced and until that is done there can be no recovery of alimony. The alimony awarded during the pendency of a suit for divorce ceases upon the rendition of a final judgment of divorce. Bowsky v. Silverman, supra. In the Bow-sky case the alimony awarded pendente lite was not only for the support of the wife but for the support of a minor son.

Having thus concluded, there is no reason to consider the question of the correctness of the trial court’s judgment as to amount, because that question is moot under the rationale of Bruner v. Bruner, 373 So.2d 971 (La.App.2d Cir. 1979), Frederic v. Frederic, 302 So.2d 903 (La.1974).

These cases hold that since there is no suspensive appeal from a judgment awarding alimony (La.C.C.P. 3943), the effect of the judgment continues during appeal until the judgment of the appellate court reversing or amending the award becomes final.

In the present case, therefore, since the effect of the judgment awarding the alimony for support of the children was terminated by the subsequent divorce judgment rendered before this appeal could be considered, it would be an exercise in futility for us to review the correctness of the earlier awarded amount. Even if we were to determine that the trial court had abused its much discretion, we would not be required or inclined to make the effective ■date of any reduction found appropriate retroactive to the date of the original judgment making the award. Rains v. Rains, 376 So.2d 1298 (La.App.2d Cir. 1979). Also, Frederic, supra.

For these reasons this appeal is dismissed as moot, at appellant’s cost.


text:
    SUCCESSION of Louzallie LITTLETON. Carey LITTLETON, Executor, Plaintiff-Appellee, v. Lizzie E. Littleton TAYLOR et al., Defendants-Appellants.
    No. 14084.
    Court of Appeal of Louisiana, Second Circuit.
    March 31, 1980.
    En Banc. Rehearing Denied May 13, 1980.
    Writ Refused June 23, 1980.

      Johnson, Johnson, Osburn & Johnson by Don H. Johnson, Monroe, for defendants-appellants.
    Rabun & Post by Armand F. Rabun, Farmerville, for plaintiff-appellee.
    Before PRICE, MARVIN and McCLEN-DON, JJ.
   McClendon, Judge.

This succession matter comes to this court in a-state of considerable confusion. The appeal was taken from a judgment authorizing the executor to sell two forty-acre tracts of land at private sale to different individuals for the consideration of $26,000 cash each.

At that point in time the decedent had been dead just over one year. She died testate February 3,1978, having never married and survived only by brothers and sisters or descendants of brothers and sisters, all as is set forth in a detailed affidavit of death and heirship filed in the initial succession proceeding on October 5, 1978. This affidavit shows that the vast majority of fifty or more collateral relations live in the Monroe and Downsville, Louisiana areas, all in relatively close proximity to Farmerville, Louisiana.

Examination of the proceedings had in the succession indicates that the decedent’s will, nuncupative by public act in form, was duly offered for probate, admitted, ordered recorded and executed, and the executor named therein permitted to qualify in the normal ex parte manner provided by law, on October 5, 1978. A notary public was designated in the same order to make an inventory of decedent’s estate.

In due course the inventory was filed, the inheritance tax on the single special legacy was fixed and the executor was authorized to deliver this legacy of 80 acres of land to the legatee. This judgment was signed on November 20, 1978.

In March of 1979, an attorney was appointed to represent the five non-resident collateral heirs and the names of two heirs omitted from the original affidavit were supplied.

On June 4, 1979, the executor petitioned the court for authority to sell the remaining 80 acres of land belonging to the estate at private sale for $52,000 cash to pay the debts and legacies and for the purpose of effecting a partition among the many heirs of the decedent. This petition was served on the attorney for absent heirs and notice of the application was published according to law.

After publication of notice in “The Gazette”, a weekly newspaper published at Farmerville, Union Parish, Louisiana, on June 7 and June 28,1979, and no opposition having been filed to the proposed sales, judgment authorizing the executor to make the sales was signed on July 11, 1979.

On July 30, 1979, at which time the sales had obviously been consummated, the executor filed a proposed Tableau of Distribution, requested that notice of its filing be published in accordance with law, and he be authorized to pay the debts shown thereon in the absence of opposition.

Por the first time appellants made an appearance in this proceeding by filing an opposition to the Tableau of Distribution on August 9, 1979.

On August 13, 1979, appellants filed a petition to annul the will and set aside the sales.

Exceptions, two dilatory and one peremptory, were filed by the executor to the August 13, 1979 petition to annul.

The record discloses no action taken in the trial court on either the opposition to the tableau or the three exceptions before the present appeal was taken.

In this court the executor filed a motion to dismiss the appeal on the grounds that none of the alleged assignments of error and the issues presented on appeal were either pleaded or raised in the trial court and no evidence was adduced in connection therewith and, therefore, under Rule IX-A, Uniform Rules of the Courts of Appeal, the court should not consider these matters not determined contradictorily in the trial court before appeal.

At first blush it would appear that this motion is very meritorious and should be sustained. However, we are impressed with the rationale and disposition of a very similar situation by our brethren of the Fourth Circuit in Succession of Joseph Patrick Doneilan, 262 So.2d 526 (1972).

In that case the surviving widow in community of decedent caused herself to be placed in possession of all of decedent’s property with allegations of two marriages by decedent, the first wife’s'death without issue, and no children born to decedent or any adoption by decedent of any person. The widow supported these allegations with an affidavit of death and heirship, whereupon a judgment of possession was duly signed placing her in possession of certain real estate and all other property left by decedent.

One week after that judgment was signed another person filed a petition to annul the judgment of possession, alleging that she was the adopted daughter of decedent and his first wife and attaching a copy of the act of adoption to her petition. She further alleged that the fact of her adoption was well known to the surviving widow; that certain assets of decedent were omitted from the original petition; and sought to annul the possession judgment for ill practice under Louisiana Code of Civil Procedure Art. 2004. Exceptions to this petition to annul were filed by the surviving widow, but were never disposed of before a petition for devolutive appeal from the judgment of possession was filed.

Appellee there questioned the right of appellant to prosecute that appeal, contending it was an effort to try the facts of heirship in the appellate court rather than the trial court where the petition for nullity was still pending.

Judge Boutall, as organ of the court in the Doneilan case, pointed out that the adopted daughter had a right to appeal under La. Code of Civil Procedure Arts. 2083 and 2086. He found that Succession of Lissa, 194 La. 328, 193 So. 663 (1940), answered appellee’s contention by holding that a prospective heir had a right to appeal from an ex parte judgment of possession in which his heirship was not recognized.

Finally, Judge Boutall concluded that, while appellant in Doneilan had a right to appeal, the exercise of that right was to no avail on the merits, because the only evidence before that court on the appeal was the verified petition and affidavit of death and heirship filed in support thereof and they afforded ample proof to support the judgment appealed. That court declined to consider allegations of appellant’s petition for nullity and the act of adoption attached thereto, holding that their introduction as evidence is governed by the rules applicable to ordinary cases — La.C.C.P. Arts. 2823 and 2824 — and, therefore, there was before the court no countervailing evidence to dispute the facts contained in the affidavits of death and heirship. For this reason the court affirmed the judgment of possession, but was careful to point out that this action did not close the matter of heirship and right to possession of decedent’s estate nor did it preclude appellant from proceeding with her petition for nullity in the trial court.

We find that appellants here are in substantially the same position as the adopted daughter in Donellan. They have appealed from a judgment authorizing the executor to sell two tracts of real estate at private sale, which judgment was preceded by proper petition, service on the attorney for absent heirs, duly published notice of the proposed sale, and no opposition filed as evidenced by the certificate of the Clerk of Court.

The record discloses no irregularity in the succession proceedings to the point of that judgment. Decedent’s nuncupative testament by public act had been ordered recorded and executed under La.C.C.P. Art. 2891 and its nullity can be declared only after a contradictory hearing in the trial court. (La.C.C.P. Arts. 2933 and 2931).

We conclude that, as in Donellan, we cannot consider as evidence the allegations of the petition to annul pending in the trial court and, therefore, there is no countervailing evidence to the succession proceeding leading up to the judgment appealed from.

For this reason the motion to dismiss filed in this court is overruled and the judgment appealed from is affirmed at appellants’ cost.

This, of course, is not in any manner intended to preclude appellants from asserting whatever rights they may have in seeking to annul the will or to set aside the sales in the pending petition to annul or other appropriate proceedings in the trial court.


text:
    Sandra Jean Broome DEES, Plaintiff-Appellee, v. Jerry Jerome DEES, Defendant-Appellant.
    No. 14087.
    Court of Appeal of Louisiana, Second Circuit.
    March 31, 1980.

      Lawrence K. McCollum, Shreveport, for defendant-appellant.
    Love, Rigby, Dehan, Love & McDaniel by Hani E. Dehan, Shreveport, for plaintiff-ap-pellee.
    Before PRICE, MARVIN and McCLEN-DON, JJ.
   McClendon, Judge.

The defendant husband appeals from a judgment making executory past due alimony and child support payments and denying his claim for compensation or set-off. We amend and affirm.

Mr. and Mrs. Dees married in 1961 and prior to their separation lived in Vivian, Louisiana. One child was born of the marriage. Beginning in December, 1978, Mr. Dees’ employment required him to live away from home almost constantly. The parties separated in the early part of 1979, although Mr. Dees did not remove his personal belongings from the family home until April, 1979. In the early part of May, 1979, Mr. Dees’ employment was terminated.

On April 26, 1979 Mrs. Dees filed a petition for separation and sought alimony and child support in a rule which was tried on May 31, 1979. Judgment was rendered awarding Mrs. Dees alimony and child support in the sum of $525 per month and use of the family home and automobile.

Prior to the rule awarding alimony and child support, Mrs. Dees sold a truck and right angle gear box for a net sum of $400. Appellant testified Mrs. Dees sold these items without his knowledge or consent and he has received only $75 from the proceeds. He also complained that the true value of the items was approximately $4,200. Ap-pellee testified she gave her husband half of the proceeds from the sale of the gear box, or $100.

After the judgment awarding alimony and child support appellant, who was still unemployed and living out of the state, authorized Mrs. Dees to sell several other items of community property for the total sum of $1,065. Mr. Dees testified they agreed the money would be used for the support of -Mrs. Dees and their minor daughter. On the other hand, Mrs. Dees testified they agreed the money was to be expended to pay community debts and she, in fact, used this money to pay past due house and automobile loan payments.

On July 10, 1979, Mrs. Dees filed the present rule to accrue past due alimony and child support payments. Mr. Dees answered contending he is entitled to a credit or set-off on his obligation for one-half of the community funds realized from the sales by Mrs. Dees.

Applying Louisiana Civil Code Article 2209 in a similar situation, the Louisiana Supreme Court said in Hartley v. Hartley, 349 So.2d 1258 (La.1977):

“Compensation or set-off to be applicable requires the contemporaneous existence of distinct debts, each equally liquidated and demandable. .
******
“Thus, a determination as to the liquidity of a claim is an essential prerequisite to deciding whether such a claim is a proper basis for a plea of compensation. Lack of sufficient liquidity and demandability will preclude such a plea.”

In that case, the court concluded that defendant had, at best, “a potential claim against his wife for community funds, a claim very likely to be contested, and one which should properly be determined in a partition of the community property.” Therefore, compensation or set-off was not allowed.

In the case at bar, there is a definite dispute as to the amount owed by Mrs. Dees. The testimony differs as to how much the truck and gear box were worth and how much money Mr. Dees received as his share of the proceeds. It is also not entirely clear how much of the proceeds was actually expended on community debts as opposed to the support of Mrs. Dees and the child. For these reasons we find that Mr. Dees has failed to show Mrs. Dees owes him a debt equally liquidated and demanda-ble. Therefore, the trial court correctly denied his claim for set-off.

However, we find appellant’s contention that Mrs. Dees admitted giving Mr. Dees credit of $200 toward the child support has merit.

Beginning at line 29 on page 60 of the Transcript, we quote from the cross-examination of Mrs. Dees by Mr. McCollum:

“Q. And Mr. Dees received none of this $1025 that you said was received from those sales?
A. I gave him $200 credit on the sale of the miscellaneous parts.
Q. I don’t understand. You say you gave him $200?
A. No. I just gave him $200 credit toward the child support.”

Counsel for Mrs. Dees did not address himself in brief to this admission or its effect.

For the foregoing reasons, the judgment appealed from is amended to give appellant credit for $200.00 against the $1,312.50 found past due, and otherwise is affirmed. Appellant is assessed with all costs.


text:
    John Bell WILSON, Plaintiff-Appellant, v. Jacqueline Rose NORFLIS, Defendant-Appellee.
    No. 14102.
    Court of Appeal of Louisiana, Second Circuit.
    March 31, 1980.
    Baker, Culpepper & Brunson by J. Michael McDonald, Jonesboro, for plaintiff-appellant.
    Sharp & McVea by Robert W. Sharp, Jr., Ruston, for defendant-appellee.
    Before MARVIN, JONES and McCLEN-DON, JJ.
   McClendon, Judge.

Plaintiff appeals from a trial court judgment sustaining defendant’s exception of res judicata and no right of action.

By act of donation dated August 5, 1965, Lester Norflis conveyed some immovable property to his only child, Jacqueline Nor-flis. On March 31, 1977, this same Lester Norflis allegedly signed a written statement in which he purportedly sold this same land to plaintiff, his first cousin. Mr. Nor-flis died intestate three days later, on April 4, 1977.

Initially, plaintiff filed suit against Jacqueline Norflis seeking to set aside the donation on the grounds that the donee failed to meet certain alleged conditions imposed by the donor. The recited consideration in the act of donation, however, was the natural love and affection Lester Norflis had for his daughter. Summary judgment was rendered in favor of defendant.

Plaintiff then filed this suit in which he sought to set aside the donation based on the theory that the donation was null because the donor divested himself of all of his property in contravention of Louisiana Civil Code Article 1497.

The issue on appeal is whether the trial court erred in sustaining defendant’s exception of res judicata and no right of action. Because we believe the trial court was correct in sustaining the exception of no right of action, we find it unnecessary to reach the issue of res judicata.

Louisiana Civil Code Article 1497 provides:

The donation inter vivos shall in no case divest the donor of all his property; he must reserve to himself enough for subsistence; if he does not do it, the donation is null for the whole.

Louisiana Civil Code Article 1504 provides:

On the death of the donor or testator, the reduction of the donation, whether inter vivos or mortis causa, can be sued for only by forced heirs, or by their heirs or assigns; neither the donees, legatees, nor creditors of the deceased can require that reduction nor avail themselves of it.

As pointed out above herein, plaintiff was a collateral relation (first cousin) of decedent and hence precluded by Civil Code Article 1504 from seeking to reduce a donation after the death of decedent.

The Louisiana Supreme Court applied this same prohibition to collateral relations attacking a donation omnium bonorum under Civil Code Article 1497 in Bernard v. Noel, 45 La.Ann. 1135, 13 So. 737 (1893) with the following explanation:

. The nullity declared by article 1497 of the Civil Code is absolute only relatively to the particular persons in whose special interest it was passed, and among them cannot be classed her collateral heirs invoking it when she had not done so herself. See Scott v. Briscoe, 37 La.Ann. 178. In the case at bar the right to invoke the nullity was a personal one, in the sense that when she died the right to revoke the act died also.

In that case the wife, made the donation complained of to her husband and, after her death, her collateral relations sought to set it aside.

The same result was reached in Succession of Moran et ux. v. Moran, 25 So.2d 302 (La.App. 1st Cir. 1946), where the administrator, representing collateral heirs, was not allowed to sue for the nullity of a donation omnium bonorum. The court stated that the right to sue for such nullity is restricted to the donor or his forced heirs.

See, also, Succession of Turgeau, 130 La. 65Ó, 58 So. 497 (1912), where the court said that the right to attack a donation omnium bonorum after the death of the donor can only be exercised by forced heirs.

In the case at bar plaintiff has not shown himself to be a forced heir nor has he introduced any will to show he has any interest at all in the succession of Leslie Norflis. Clearly, the exception of no right of action was properly sustained.

The judgment is therefore affirmed; costs to be paid by appellant.


author: JONES, Judge.

text:
    STATE of Louisiana in the Interest of Donald Ray GIBSON.
    No. 14075.
    Court of Appeal of Louisiana, Second Circuit.
    March 31, 1980.
    En Banc. Rehearing Denied May 13, 1980.

      James D. Caldwell, Dist. Atty., and George F. Fox, Jr., Asst. Dist. Atty., Tallu-hah, for plaintiff-appellee.
    Jones, Jones & Jones by Benjamin Jones, Monroe, for defendant-appellant.
    Before PRICE, HALL and JONES, JJ.
   JONES, Judge.

The State of Louisiana petitioned the District Court of East Carroll Parish, sitting as a juvenile court, for an adjudication of delinquency of the minor Donald Ray Gibson. Donald was charged with violation of L.R.S. 14:27 in that he attempted an act of simple rape (L.R.S. 14:43) upon a female. The court found Donald not delinquent on the charge of attempted simple rape but held him delinquent on attempted sexual battery (L.R.S. 14:43.1), which the court denominated a “lesser included offense”. Donald was committed to the custody of the Department of Corrections for a maximum sentence of five years but not to exceed his 21st birthday.

Donald was sixteen years old at the time of the alleged attack upon the victim (June 11, 1979). The attempted crime took place in broad daylight on the above date between 9:30 and 10:00 a. m. The victim was sitting in her car outside a small grocery store waiting for it to open when Donald drove up and approached her. After some light conversation Donald jumped onto her, fighting, pushing, scratching; and in the process of attempting to rape the victim he tore her slacks down to her knees. The victim persuaded him to get off her and convinced him she would follow him in her car. As soon as he got up, however, she locked her doors and chased him in order to get his license plate number. The number was given to the East Carroll Parish Sheriff’s Department, who relayed it to the Louisiana State Police. An identification was run on the license plate, and it would found to belong to a Gibson family on LeGrand Street in Lake Providence. The car at this residence matched the victim’s precise description, including the color, make and the presence of a Grambling University sticker and license plate. Since Donald was not home, the state troopers left and returned at 10:00 p. m. that same night when they arrested Donald. Donald was placed in a line-up with two other black males of comparable size and coloring, and the victim identified him. She again identified Donald at trial.

Among several assignments of error are the following: (1) the trial court erred in denying defendant’s motion to suppress the identification made by the victim at the line-up, (2) the trial court erred in allowing the in-court identification of defendant to be made, (3) the trial court erred in denying defendant’s motion for a directed verdict of not guilty of attempted simple rape, (4) the trial court erred in finding defendant guilty of attempted sexual battery on the grounds that attempted sexual battery is a responsive verdict to and a lesser and included offense of attempted simple rape, (5) the trial court erred in denying defendant's motion to strike the victim’s unresponsive answer that she was “slightly hysterical,” and (6) the trial court erred in denying defendant’s motion for acquittal after judgment , filed pursuant to C.J.P. art. 77(B). Because we find the case to turn upon that assignment of error dealing with the correctness of the so-called responsive verdict, we do not reach the other assignments of error.

L.R.S. 14:43 provides as follows:
“Simple rape is a rape committed where the anal or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) Where the victim is incapable of resisting or of understanding the nature of the act by reason of stupor or abnormal condition of the mind produced by an intoxicating, narcotic, or anesthetic agent, administered by or with the privity of the offender; or when victim has such incapacity, by reason of a stupor or abnormal condition of mind from any cause, and the offender knew or should have known of the victim’s incapacity; or
(2) Where the victim is incapable, through unsoundness of mind, whether temporary or permanent, of understanding the nature of the act; and the offender knew or should have known of the victim’s incapacity; or
(3) Where the female victim submits under the belief that the person committing the act is her husband and such belief is intentionally induced by any artifice, pretense, or concealment, practiced by the offender.”
L.R.S. 14:43.1 provides as follows:
“Sexual battery is the intentional engaging in a sexual act with another person, who is not the spouse of the offender, where the offender compels the other person to submit by placing the other person in fear of receiving bodily harm.
Sexual act, as used in this article means conduct between human being consisting of contact between the penis and the vulva, the penis and the anus, the mouth or tongue and the penis, or the mouth or tongue and the vulva.”
Since there are no procedures provided in the Code of Juvenile Procedure for the rendering of responsive verdicts against juveniles, we must look to the Code of Criminal Procedure which is indirectly applicable to juvenile proceedings (See State in the Interest of Batiste, 367 So.2d 784 (La.1979), at page 786) in order to determine if the verdict of guilty of attempted sexual battery is responsive to a charge of attempted simple rape. We hold that it is not.
C.Cr.P. art. 814(A)(11) reads as follows:
“A. The only responsive verdicts which may be rendered where the indictment charges the following offenses are:
11. Attempted Simple Rape:
Guilty ■
Not Guilty.” [our emphasis].

C.Cr.P. art. 814 was amended in 1978, the same year in which the crime of sexual battery was created, but it was obviously not amended to add attempted sexual battery as a responsive verdict to attempted simple rape. From the clear language of the statute above, it would appear that the verdict given defendant was incorrect.

Defendant as a juvenile is entitled to due process under the law. LSA-Const. art. 1, § 2, § 13. Included within the concept of due process is the right to be informed of the nature of the charge against him. See In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). Defendant must be put on notice that the crime with which he is charged (here, attempted simple rape) included within it the charge of which he is eventually found guilty (here, attempted sexual battery). See Batiste, supra, in which it was held that the juvenile defendant and his parents were placed on notice that the charge of theft included within it all the elements of the lesser included offense of which this defendant was adjudicated guilty, viz., unauthorized use of a movable. Of significance is the fact that C.Cr.P. art. 814(A)(23) lists guilty of unauthorized use of movables as a responsive verdict to the indictment charging theft.

The fourth circuit recently dealt with a similar problem in State in the Interest of Johnson, 365 So.2d 940 (La.App. 4th Cir. 1978). The juvenile there was charged with armed robbery but found guilty of conspiracy to attempt armed robbery. The court of appeal held that because the verdict given was not listed in C.Cr.P. art. 814 as being responsive to a charge of armed robbery and because the crime which the juvenile was found to have committed contained elements not included in the armed robbery statute, defendant’s constitutional right to be informed of the nature of the accusation against him had been violated.

In State v. McCoy, 337 So.2d 192 (La. 1976), the supreme court dealt with the issue of the responsiveness of a verdict to a charge not included in C.Cr.P. art. 814. The defendant had been charged with aggravated crime against nature and was convicted of crime against nature, which he argued was an unresponsive verdict. C.Cr.P. art. 814 did not include the responsive verdicts that may be rendered for aggravated crime against nature. The court therefore had to look to C.Cr.P. art. 815 to determine if crime against nature was responsive to aggravated crime against nature. C.Cr.P. art. 815 reads as follows:

“In all cases not provided for in Article 814, the following verdicts are responsive:
(1) Guilty;
(2) Guilty of a lesser and included grade of the offense even though the offense charged is a felony, and the lesser offense a misdemeanor; or
(3) Not Guilty.” [emphasis ours].

The court applied the test of a lesser and included offense and determined that the crime for which defendant was convicted was indeed responsive to that with which he was charged.

It is clear from this case and from the very language of C.Cr.P. art. 815 that the C.Cr.P. art. 815 test of a lesser and included offense applies only when the crime with which defendant is charged is not listed among those for which responsive verdicts are given. That is, if a crime is listed in C.Cr.P. art. 814 along with its responsive verdicts, the court shall not inquire further to determine whether the verdict actually rendered is responsive—provided the crime the defendant is convicted of is listed in C.Cr.P. art. 814 as a responsive verdict. If the crime which the trial court actually finds defendant guilty of committing is not enumerated under C.Cr.P. art. 814 as responsive to the crime charged, then the verdict is unresponsive and there is no further need or indeed right for inquiry whether the crime which the defendant is convicted of is a lesser but included crime of the offense of which defendant is actually charged with having committed.

State v. Turnbull, 377 So.2d 72 (La.1979), in which the defendant was charged with forcible rape and convicted of simple rape, recognized the exclusivity of C.Cr.P. art. 814 as to crimes listed there. The supreme court found that because the legislature did not amend C.Cr.P. art. 814 to include specific responsive verdicts for the newly enacted crime of forcible rape, the responsive verdicts to a charge of forcible rape must be examined in light of C.Cr.P. art. 815, implying that should the legislature have included responsive verdicts to forcible rape within C.Cr.P. art. 814, the court would have to look no farther than C.Cr.P. art. 814 and would not have to apply the test of a lesser and included offense of C.Cr.P. art. 815.

Because attempted sexual battery is not included in the listing of C.Cr.P. art. 814(A)(11) as a responsive verdict to a charge of attempted simple rape, we hold that attempted sexual battery is not a responsive verdict to the crime which the defendant was charged as having committed, and hence defendant’s conviction on this charge must be invalidated because of the violation of his constitutional right to know the nature and cause of the charge against him.

We observe that should the test of C.Cr.P. art. 815 have been applicable to the present case that attempted sexual battery is not a lesser and included offense of attempted simple rape. Under the jurisprudence a crime which is composed of some, but not all, of the elements of the greater crime and which does not have any element not included in the greater offense is a lesser and included offense. State v. Stewart, 292 So.2d 677 (La.1974). All elements of the lesser offense must be necessarily contained in the definition of the greater offense in order to meet the responsive verdict test. State v. Poe, 214 La. 606, 38 So.2d 359 (1948). If a reasonable state of circumstances can be hypothesized in which the greater offense is committed without commission of the lesser offense, then a verdict for the lesser offense cannot be responsive. Poe, supra.

Attempted sexual battery requires the victim to be placed by the offender “in fear of receiving bodily harm”, i. e., by use of force or threats thereof, while attempted simple rape, the greater offense, involves no such submission by the victim because of fear of bodily harm. Attempted sexual battery is not a lesser and included offense of attempted simple rape because not all elements of attempted sexual battery, viz., the placing of the victim in fear of receiving bodily harm, are included within the definition of attempted simple rape.

We note from the record that the Assistant District Attorney who tried this case attributed the error in the preparation of the petition to have the minor adjudicated a delinquent to the fact that it was prepared by a Juvenile Officer rather than by the District Attorney who signed the petition. While this regrettable error has resulted in the deplorable results here reached, the due process guaranteed the juvenile by Gault and Batiste, supra, will not permit the adjudication of delinquency to remain undisturbed.

The adjudication of delinquency grounded upon the conviction of attempted sexual battery is REVERSED and invalidated, and the commitment based upon it is set aside.


text:
    W. H. FRANKS, Plaintiff-Appellant, v. LOUISIANA HEALTH SERVICES & INDEMNITY COMPANY, Defendant-Appellee.
    No. 14077.
    Court of Appeal of Louisiana, Second Circuit.
    March 31, 1980.

      Sanders & Castete, Winnfield, for plaintiff-appellant.
    Brittain & Williams, Natchitoches, for defendant-appellee.
    Before PRICE, HALL and JONES, JJ.
   JONES, Judge.

Plaintiff, W. H. Franks, sued defendant, Louisiana Health & Indemnity Company, for $1,799.60 an amount he alleges is due him because of hospitalization expenses incurred by his children who were covered by defendant’s insurance policy. Plaintiff appeals the judgment rejecting his demands. We affirm.

Plaintiff is an employee of the U.S. Forestry Service and is stationed in Winn Parish. Plaintiff was eligible to participate in the Federal Employees Health Benefits Program established by 5 U.S.C.A. § 8901 et seq. In 5 U.S.C.A. § 8902(a) the U.S. Civil Service Commission is given the authority to contract with qualified carriers offering health insurance plans as generally described by 5 U.S.C.A. § 8903 to provide health insurance for various federal employees. 5 U.S.C.A. § 8902(b) requires that carriers for this plan must be licensed to issue group health insurance in all the states and in the District of Columbia. Pursuant to this authority defendant entered into an agreement with the U.S. Civil Service Commission and agreed to administer the Federal Employees Health Benefits Program. Defendant alleges, however, that it did not enter into a policy of health insurance in Louisiana under the provisions of the Louisiana Insurance Code but offered no proof or evidence as to this allegation at trial.

Plaintiff’s health policy with defendant contained the following exclusionary clause:

“Basic and Supplemental Benefits are NOT provided for the following types of hospital admissions or portions of admissions—
.Not medically necessary — i. e., when in the judgment of the Carrier the medical services did not require the acute hospital bedpatient (overnight) setting, but could have been provided in a physician’s office, the outpatient department of a hospital, or in a lesser facility without adversely affecting the patient’s condition or the quality of medical care rendered. Some examples are:
Admissions primarily for observation or evaluation and/or diagnostic studies that could have been provided safely and adequately on an outpatient basis Admissions to control or change the patient’s environment.
.Custodial care — Primarily to provide room and board (with or without routine nursing care, training in personal hygiene and other forms of self-care) and supervisory care by a doctor for a person who is mentally or physically disabled and who is not under specific medical, surgical or psychiatric treatment to reduce the disability to the extent necessary to enable the patient to live outside an institution providing medical care, or when, despite such treatment, there is no reasonable likelihood that the disability will be so reduced.
.Convalescent care or rest cures
.Domiciliary care — Provided because care in the home is not available or is unsuitable.
THE FACT THAT A PHYSICIAN MAY PRESCRIBE, ORDER, RECOMMEND, OR APPROVE A SERVICE OR SUPPLY DOES NOT, OF ITSELF, MAKE IT MEDICALLY NECESSARY OR MAKE THE CHARGE AN ALLOWABLE EXPENSE, EVEN THOUGH IT IS NOT SPECIFICALLY LISTED AS AN EXCLUSION.”

It is by virtue of this clause that defendant claims it does not have to pay plaintiff.

Two of plaintiff’s children, covered under the policy, were admitted at various times to the Winnfield General Hospital. Plaintiff claims reimbursement for the costs of these hospitalizations.

Dr. George Rodgers, a general practitioner and surgeon, hospitalized Delores, a 12-year old, from January 1 to January 13, 1978 for flu (fever, sore throat and generalized aching). She received cough medicine, nose spray, analgesics (Tylenol) and antibiotics. The bill was $1,002.65.

Dr. John T. Mosley, a general practitioner, placed Delores in the hospital on March 12,1978 and released her on March 16,1978. She had a sore throat, swollen tonsils, a low fever, and a high white blood cell count. Dr. Mosley stated he placed Delores in the hospital because “she couldn’t swallow well”, but Delores was given a regular diet. Delores received oral antibiotics while in the hospital. Her hospital bill was $333.85.

Dr. Mosley also placed Sondra, ah 11-year old, in the hospital from March 12, 1978 to March 16, 1978. Sondra was admitted with headaches, acute sinus infection, a low fever, and gastritis. Sondra received antibiotics, antihistamines, decongestants, pain medicine, and antacids; and her father received a bill for $420.60.

The defendant paid for the first four days of the initial hospitalization expenses incurred by Delores in the month of January. The parties stipulated the total unpaid hospitalization expenses on the three hospitalization periods sued for was the sum of $1,270.50.

Defendant refused to pay for the above hospitalizations because it decided they were not medically necessary, and for this reason were excluded from coverage. Plaintiff contends this determination was arbitrary and capricious and requests penalties and attorney fees.

The trial court construed the policy to give the defendant the right to decide whether hospitalizations were medically necessary and found the defendant’s determination that they were not medically necessary to be fairly and reasonably made under all the evidence.

The issues on appeal are (1) did defendant have a right to determine whether the hospitalizations were medically necessary? and (2)did the evidence reasonably justify defendant’s decision that the hospitalizations were not medically necessary?

Defendant alleges in its answer that the law of Louisiana (in the form of the Louisiana Insurance Code) is not applicable to this case. However, defendant never offers proof as to which law is indeed applicable. The law is well-settled that unless the law of another state upon which a party relies is placed into evidence, it is presumed that such foreign law is the same as that of the Louisiana forum. Strickland v. TransAmerica Ins. Co., 481 F.2d 138 (5th Cir. 1973); Succession of Gibson, 186 La. 723, 173 So. 185 (1937); Broday v. Broday, 360 So.2d 645 (La.App. 3d Cir. 1978); Johnson v. McCorvey, 344 So.2d 448 (La.App. 2d Cir. 1977); Cambre v. St. Paul Fire & Marine Ins. Co., 331 So.2d 585 (La.App. 1st Cir. 1976); Robertson v. Jimmy Walker Chrysler-Plymouth, Inc., 368 So.2d 747 (La.App. 3d Cir. 1979). We therefore hold that the law of Louisiana is applicable and it will be used to decide whether this exclusionary clause was proper and whether the defendant’s decision was reasonable.

In the absence of a conflict with a statute or with public policy, an insurer has the same right as an individual to limit its liability and to impose upon their policy obligations whatever conditions they please. Herring v. American Bankers Ins. Co., 216 So.2d 137 (La.App. 2d Cir. 1968); Niles v. American Bankers Ins. Co., 258 So.2d 705 (La.App. 3d Cir. 1972). Niles dealt with a similar exclusionary clause in plaintiff’s health insurance policy with defendant. The exclusion clause construed in the Niles case provided the policy did not cover a loss resulting from hospital confinement for which the principal purpose was a diagnosis. Defendant refused to pay plaintiff’s hospital costs because, in its opinion, her confinement was primarily for diagnosis even though her doctor testified her condition warranted putting her in the hospital. The trial court rejected plaintiff’s demands and the court of appeal affirmed, finding that this unambiguous provision in the insurance contract limiting liability must be given effect because it was not contrary to a statute or public policy.

Scrutinizing the Insurance Code, we find no statutory provision which conflicts with the exclusionary clause present in this insurance policy. We can also discover no public party which this clause contravenes. It appears, therefore, that the exclusionary clause, which plaintiff’s employer contractually agreed to, is within the broad contractual abilities of defendant in limiting its liability and drawing up its policies as it sees fit.

Plaintiff contends that the provisions in the exclusionary clause which provide that the insurer shall make the decision, as to whether the hospitalization is “not medically necessary” result in the exclusionary clause being totally invalid. In brief plaintiff states:

“Defendant is in effect saying that we will sell you this policy of insurance, however, we will not pay unless we want to pay. This is the end result of such a ridiculous and incomprehensible scheme as defendant has placed in its policy.”

We construe plaintiff’s argument to be analogous to those asserted by defendants in the following potestative condition cases. Stephen L. Guice & Co., Inc. v. Perkowski, 12 So.2d 692 (La.App.Orl.1943); Professional Billing Agency, Inc. v. Tarantino, 350 So.2d 258 (La.App. 4th Cir. 1977); D’Arbonne Sewerage, Inc. v. Sanders, 259 So.2d 417 (La.App. 2d Cir. 1972). In these cases defendants sought to escape liability contending the contract to be a nullity because the obligations were conditioned upon the obligór taking some definitive action under clauses in the contracts bearing some similarity to the exclusionary clause contained in the defendant’s policy which we are now interpreting.

The potestative condition is defined by LSA-C.C. art. 2024:

“The potestative condition is that which makes the execution of the agreement depend on an event which it is in the power of the one or the other of the contracting parties to bring about or to hinder.”
LSA-C.C. art. 2034 provides as follows: “Every obligation is null, that has been contracted, on a potestative condition on the part of him who binds himself.”

This article is explained by LSA-C.C. art. 2035, which makes it clear that not all potestative conditions nullify a contract:

“The last preceding article is limited to potestative conditions, which make the obligation depend solely on the exercise of the obligor’s will; but if the condition be, that the obligor shall do or not do a certain act, although the doing or not doing of the act, depends on the will of the obligor, yet the obligation depending on such condition, is not void.”

The jurisprudence establishes that only those potestative conditions which are dependent solely upon the will, whim, or caprice of the obligor invalidate the contract. See Guice, Professional Billing, and D’Arbonne, supra. If the condition shows on its face that the obligor may or may not fulfill his obligation as per his desire, then the obligation is null. However, if the condition imposes on the obligor the duty of making a sincere effort to fulfill the obligation, then the fact that the obligor is in a position to hinder or prevent the execution of the contract does not make the contract null. The cited decisions set forth the rule that the obligor has the duty to reasonably perform the condition which is a condition precedent to the obligation.

The defendant here was under an obligation to make an honest, sincere effort to determine whether hospitalizations creating expenses, the payment of which is claimed under its policy, were medically necessary. Defendant was not free to bring in unqualified laymen to make such a decision but was required to make a good faith effort by use of medical experts to determine the necessity of hospitalization. The defendant had two physicians evaluate the. hospital records covering the hospitalizations that are the basis for the claim here asserted and they concluded that the hospitalizations were not medically necessary. We agree with the trial court that the evidence supports a balanced and expertly made decision as to the lack of necessity of the hospitalizations wherein the expenses here sued upon were incurred. The defendant did not make an arbitrary, capricious' decision.

Because the evidence fully supports the defendant’s determination as to the lack of necessity for the hospitalizations wherein the expenses herein sued upon were incurred, there is no manifest error in the trial court’s decision rejecting plaintiff’s claim. Canter v. Koehring Co., 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The decision is AFFIRMED at appellant’s cost.


author: REDMANN, J.

text:
    Lon CONNOR v. Jack FARMER et al.
    No. 11477.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 17, 1980.
    Gerard M. Dillon, M. H. Gertler, Craig R. Nelson, Stanley E. Loeb, New Orleans, for relator.
    Warren M. Schultz, Jr., New Orleans, James L. Donovan, Metairie, Edward Rice, Jr., New Orleans, for respondents.
    Before REDMANN, CHEHARDY and BARRY, JJ.
   REDMANN, J.

Cotton Belt Insurance Company applies for relief under our supervisory jurisdiction against the district judge’s denial of applicant’s motion for summary judgment based on an exclusion in its insurance policy. We deem the exclusion inapplicable.

Plaintiff contracted silicosis after several years of employment in sandblasting. He sued his former employers’ executive officers and their insurers.

Applicant’s policy makes its insurance inapplicable:

F. To bodily injury or property damage arising our of the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, akalides, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon the land, the atmosphere or any water course or body of water; but this exclusion does not apply if such discharge, dispersal, release or escape is sudden and accidental.

Construing that exclusion strictly, as we must; we would not aPP^ j* to an ofWs liability arising out of failure to provide appropriate protective apparel when send-ln£ workmen into an area known to be affected by the discharge of irritants. We view the worker’s injury in such a case as arising not from the discharge of sandblasting matter into the atmosphere but from the failure to provide appropriate protective masks and other apparel. Liability (if any) for the injury arises not from polluting the atmosphere but from obliging others to work with inadequate protection in an atmosphere known to be polluted.

Perhaps it could be argued that such an injury “arises out of” two causative circumstances: the pollution and the inadequacy [or absence] of protective equipment. We do not construe the exclusion as applicable when the pollution is only one of two or more liability-imposing circumstances out of .which the injury arises.

Writs are therefore refused.


text:
    Anthony J. CASORELLI v. Pete FOUNTAIN, Steven R. Plotkin and David Gertler, d/b/a Pete Fountain’s Buena Vista Hotel & Motel.
    No. 51607.
    Supreme Court of Mississippi.
    Feb. 13, 1980.
    Rehearing Denied May 14, 1980.
    Hopkins & Logan, Floyd J. Logan, Gulf-port, Jerry L. Hutcherson, Pascagoula, for appellant.
    Hengen & Hengen, Wayne L. Hengen, Biloxi, for appellee.
   Appeal from Circuit Court, Harrison County; Walter M. O’Barr, Judge.

Before SMITH, P. J., and SUGG and BOWLING, JJ.

AFFIRMED.


text:
    Herbert F. TAPPAN v. Carle COOPER.
    No. 51780.
    Supreme Court of Mississippi.
    March 19, 1980.
    Rehearing Denied May 14, 1980.
    Michael D. Haas, Bay St. Louis, for appellant.
    Smith, Smith, Tate & Stuart, M. D.’Tate, II, Williams, Smith & McDonald, Claiborne McDonald, IV, Picayune, for appellee.
   Appeal from Chancery Court, Pearl River County; Michael Sullivan, Chancellor.

Before ROBERTSON, P. J., and WALKER and LEE, JJ.

AFFIRMED ON DIRECT AND CROSS-APPEAL.