author: GUIDRY, Judge.

text:
    Kenneth H. LAVALLAIS, Plaintiff-Appellee, v. DAIRYLAND INSURANCE COMPANY, Defendant-Appellant.
    No. 8152.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1981.

      Stafford, Stewart & Potter, Larry A. Stewart, Alexandria, for defendant-appellant.
    John T. Bennett, Marksville, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and SWIFT, JJ.
   GUIDRY, Judge.

This case arises out of an automobile collision. The plaintiff-appellee, Kenneth H. Lavallais, sued to recover damages under the collision insurance provisions of an automobile insurance policy issued to him by the defendant-appellant, Dairyland Insurance Company, plus penalties and attorney’s fees. The trial judge found thejdain-tiff’s automobile to be totally destroyed in the collision and awarded plaintiff $2,107.70 but denied his claim for penalties and attorney’s fees. Defendant appeals. Plaintiff did not appeal or file answer to defendant’s appeal.

The only issue is whether the trial judge erred in finding the plaintiff’s automobile to be totally destroyed as a result of the accident.

The record reflects the following. On September 14, 1979, Jimmy Antoine, driving a 1969 Ford owned by Mary Johnson, made an improper right turn on Tunica Drive in Marksville, Louisiana, in front of plaintiff’s automobile causing a collision. The plaintiff was driving a 1976 Pontiac Trans Am. Under the liability provisions of an automobile insurance policy issued to Mary Johnson, Dairyland paid plaintiff $1,917.30 as the cost of repairing his automobile.

The plaintiff sued for the full value of his automobile contending it was totally destroyed in the accident. At trial the parties stipulated that the value of the automobile at the time of accident was $4,775.00. The plaintiff’s collision insurance was subject to a deductible of $250.00. Expert testimony established the salvage value of plaintiff’s automobile to be $500.00.

The trial judge found the plaintiff’s automobile was totally destroyed and awarded plaintiff $2,107.70. The trial judge computed the award as follows:

"Adual Caih Value..$4,775.00
Lea: Paid by Valayland. 1,917.30
Subtotal.$7,857.7 0
Lea: Salvage. 5 00.00
Subtotal.$2,357.7 0
Lea Deductible. 250 ■ 00 .
Total.$2, 1 07.70”

For an automobile to be deemed a total loss, the cost of the repairs must exceed its value before the accident. The burden is on the plaintiff to prove the car is a total loss by introducing evidence of the automobile’s prior value, the cost of repair and the salvage value. Roy v. Commercial Union Assur. Co., 385 So.2d 1273 (La.App. 3rd Cir. 1980) and cases therein cited.

The only evidence concerning the extent of damages sustained by plaintiff’s vehicle is that set forth in the testimony of two expert witnesses. Neither of these witnesses testified that the cost of repairing plaintiff’s automobile exceeded the value of the automobile as stipulated to by the parties.

The plaintiff called Mark Ducote, a former employee in the body shop of Lewis Roy Motors in Marksville, Louisiana. Mr. Ducote concluded that plaintiff’s automobile was a total loss. However, he based his estimate on plaintiff’s automobile having a value at time of accident of $3,206.51 instead of the stipulated value of $4,775.00. Mr. Ducote testified that he stopped calculating the cost or repairs when he reached a total of $3,800.00 since he had already exceeded what he believed to be the value of the plaintiff’s automobile. Mr. Ducote’s estimate of damages to the Lavallais’ vehicle as being in excess of $3,800.00 is not supported by an itemized list of parts and labor essential to a repair of such vehicle.

The defendant called Edwin R. Wilson, an appraiser for Crawford and Company Adjusters and Appraisers with some 28 years of experience, who estimated the cost of repairing plaintiff’s automobile to be $1,917.30. At no time did Mr. Wilson consider plaintiff’s automobile to be a total loss.

Since there is no evidence in the record indicating that the cost of repairing plaintiff’s automobile exceeds the stipulated value of $4,775.00, the trial judge was clearly wrong in finding that plaintiff’s automobile was a total loss.

The evidence contained in the record as it now stands is not sufficient for us to make a proper award to plaintiff. Mr. Ducote did not provide an itemized estimate of the damages nor does his testimony reveal how he arrived at his estimate that the cost of repairing plaintiff’s automobile would be at least $3,800.00. Although Mr. Wilson provided an itemized estimate showing the repairs needed and their cost in reaching the figure of $1,917.30, his estimate was made solely on a visual inspection of plaintiff’s automobile. Mr. Wilson freely admitted that additional damage could be discovered upon repair of plaintiff’s automobile. Considering the difference between the two estimates it is probable that there is additional hidden damage.

Under these circumstances, we feel it proper to reverse the judgment of the trial court and remand the matter so as to give both sides an opportunity to offer evidence as to the repairs necessary and the cost thereof. Cheramie v. Jones, 327 So.2d 601 (La.App. 4th Cir. 1976).

For the reasons assigned, the judgment appealed from is reversed and set aside and this matter is remanded to the district court for trial in accordance with law and with the views expressed in this opinion. All costs incurred on this appeal are to be paid by the plaintiff-appellee. Assessment of all other costs will await a final disposition of this matter.

REVERSED AND REMANDED.

      . Following the accident plaintiff’s automobile was examined by Edwin R. Wilson, an appraiser for Crawford and Company, who estimated the cost of repairing plaintiff’s vehicle to be the sum of $1917.30.

      . Although accepted as an expert in the field of automotive damage appraisal and repair, the record reflects that Mr. Ducote’s training in such field was limited to a nine months’ course taken during his senior year in high school and his experience extended only over a period of 13 months.


source: Caselaw Access Project

author: BIENVENU, Judge.

license: Public Domain

text:
    Joe FLEMMONS, Plaintiff-Appellant, v. ADMINISTRATOR, OFFICE OF SECURITY, DEPT. OF LABOR and Boise Southern Co., Defendants-Appellees.
    No. 8155.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1981.

      Mark Holden, Lake Charles, plaintiff-appellant.
    James A. McGraw, Baton Rouge, Hall, Lestage & Lestage, F. Steve Landreneau, DeRidder, for defendants-appellees.
    Before CUTRER, STOKER and BIEN-VENU, JJ.

       Judge C. Thomas Bienvenu, Jr., Sixteenth Judicial District Court, presided as Judge Ad Hoc in this decision.

   BIENVENU, Judge.

This is an appeal from a judgment of the district court affirming a decision of the Board of Review of the Division of Employment Security, Department of Labor, State of Louisiana, wherein the claimant, Joe Flemmons, was denied unemployment compensation benefits on the ground that he had been discharged by his employer, Boise Southern Company, for misconduct connected with his employment.

The record shows that on October 11, 1979, plaintiff was discharged from his employment by Boise Southern Company. He filed a claim for unemployment compensation benefits on December 14, 1979 and was found to be qualified to receive them by the Office of Employment Security. The employer appealed, and following a hearing, the Appeals Referee reversed the agency’s determination and found that plaintiff was disqualified for benefits because he had been discharged as a result of misconduct connected with his employment. Plaintiff appealed to the Louisiana Board of Review, which affirmed the Tribunal’s determination. He subsequently filed this suit for judicial review, and the district court affirmed the decision of the Board of Review.

Plaintiff raises three issues on appeal: (1) Whether he was given proper notice of the reason for his discharge prior to the hearing before the Appeals Referee; (2) Whether the Board of Review’s decision is supported by sufficient evidence; and, (3) Whether Boise Southern discriminated against him in discharging him for absenteeism. We find the first issue to be dispositive of the case.

Plaintiff argues that he was not afforded a fair hearing before the Appeals Referee. He complains that he was not able to prepare an adequate defense because the notice that he was given prior to the hearing did not sufficiently apprise him of the issues that would be decided.

We note at the outset that the district court apparently did not consider this issue because plaintiff did not raise it in that court. Defendant argues that having failed to raise the issue in the district court, plaintiff is estopped to raise it on appeal.

In Devillier v. City of Opelousas, 247 So.2d 412 (La.App. 3rd Cir. 1971), this court expressed the applicable rule as follows:

“Ordinarily, issues not passed on by the trial court are not reviewable by the appellate court. Nevertheless, the appellate court in discharging its duty to render a judgment which is just, legal and proper upon the record, has authority to consider any legal point or theory presented in the case, when the record contains all the evidence necessary to determine the question, even though no ruling was made on that issue by the trial court. LSA-C.C.P. Art. 2164, and comment (a) under that article; Blanchard v. Ogima, 200 So.2d 374 (La.App. 4 Cir. 1967); Norman v. City of Shreveport, 141 So.2d 903 (La.App. 2 Cir. 1962); Ohanna v. Ohanna, 129 So.2d 249 (La.App. 4 Cir. 1961); Williams v. American Employers’ Insurance Co., 10 So.2d 516 (La.App. 1 Cir. 1942).”

See also Robinson v. Allstate Insurance Company, 267 So.2d 257 (La.App. 3rd Cir. 1972).

Under this rule of appellate review, we find that the present case falls within the purview of LSA-C.C.P. Art. 2164, which requires appellate courts to “render any judgment which is just, legal and proper upon the record on appeal.” Our review of the record has shown that it contains all of the evidence necessary to decide the issue of the sufficiency of the notice, and we believe that the ends of justice would be served best by our doing so. We will therefore consider the merits of plaintiff’s argument.

The record shows that on October 30, 1979, plaintiff’s employer filed with the agency a “Separation Notice Alleging Disqualification”, which notice serves as the “charge” that plaintiff is disqualified for benefits. In that notice, the employer stated that the reason for separation was “abandonment of job”. The record also contains an official notice to appear for the hearing before the Appeals Referee in which it is stated:

“The issue(s) before the Referee are the correctness of the following:
ALLEGED GROUNDS FOR DISQUALIFICATION OR INELIGIBILITY:
The claimant was discharged from his job because of absenteeism due to the necessity of caring for a member of his family who was ill. He gave proper notice and indicated no other arrangements could be made. His discharge was not due to misconduct connected with his employment.” (emphasis added.)

At the hearing, plaintiff testified that he left work on October 11, 1979 in order to care for his father, who was ill. He testified that he left the job at noon after giving notice to his supervisor during the morning break. Plaintiff’s supervisor, the only other witness who testified at the hearing, contradicted that testimony. He acknowledged the fact that plaintiff had informed him of his need to leave at noon. However, according to his supervisor, plaintiff walked off the job shortly after the 9:30 a. m. break, after refusing to perform work that had been assigned to him.

After the hearing, the Appeals Referee reached the following conclusions:

“From the evidence and facts presented it is concluded that the claimant had been instructed to get on the Skinner and take his turn on the machine as they had two drivers and only one machine to work. It is further concluded that when the claimant told his Supervisor that he was not going to do it and turned and walked off the job, he was discharged for failing to perform the work assigned and his discharge was due to his own misconduct connected with his employment and under disqualifying conditions.” (emphasis added.)

It is clear from his opinion that the referee based plaintiff’s disqualification solely upon his failure to perform work assigned to him and not upon his “absenteeism”, the issue that plaintiff was notified to refute or defend by the notice to appear for the hearing.

It is well settled in the jurisprudence that a claimant may not be denied unemployment compensation benefits on the basis of a charge of misconduct that he was not given notice of prior to the hearing. Calhoun v. Administrator of Department of Employment Security, 390 So.2d 912 (La. App. 2nd Cir. 1980); Goff v. Administrator of Division of Employment Security, 157 So.2d 268 (La.App. 3rd Cir. 1963); Lee v. Brown, 148 So.2d 321 (La.App. 3rd Cir. 1962); King v. Brown, 115 So.2d 405 (La. App. 2nd Cir. 1959). As this court observed in Lee v. Brown, supra,

“The statutory provisions that a claimant be given notice and a fair hearing require a reasonable and substantial compliance with the principle of due process of law, including that the claimant be given prior notice of definite, certain, and specific disqualifying causes, which cannot be sufficiently proved by vague, uncertain, and indefinite testimony, or by testimony as to incidents other than those with which the claimant is charged by the prior formal notice.”

Applying those principles to the facts of this case, we conclude that the denial of benefits to plaintiff was improper, because he was not given adequate notice prior to the hearing. The more difficult question, which remains to be decided, is how to rectify this impropriety.

A judgment in plaintiff’s favor, declaring that he is qualified to receive benefits, would certainly eliminate the harmful effects of the unfair hearing. However, contrary to plaintiff’s other arguments on appeal, we find the evidence in the record sufficient to support the referee’s finding that he was discharged for misconduct connected with his employment. In view of the fact that plaintiff might not have been able to successfully refute that evidence even if he had been given proper notice, we find that it would be patently unfair to defendant to simply reverse and direct the payment of benefits. Rather, we have concluded that this is one of those relatively rare instances in which a remand for a new hearing should be ordered. In this regard, the instant matter is different from that of Banks v. Administrator of the Department of Employment Security, et al., 393 So.2d 696 (1981), wherein our Supreme Court reversed and felt a new hearing was unnecessary since, in addition to the legal defect, the evidence did not show disqualifying misconduct. The opposite situation obtains here.

In so deciding, we are not unmindful of the fact that the aim of the unemployment compensation statue is to alleviate financial hardships caused by unemployment and that the statutory scheme of the enactment calls for prompt disposition of claims and prompt payment of benefits if due. Lee v. Brown, supra. We also note, however, that the delay in resolving this matter has been largely due to plaintiff’s failure to raise the issue of the sufficiency of the notice in the early stages of these proceedings. Taking all of these factors into consideration, we have concluded that remanding this matter for a new hearing would not be unfair to plaintiff.

For the foregoing reasons, the judgment of the district court is reversed at the cost of the defendant, and this claim is remanded to the administrative agency for a new hearing with proper notice of the issues to be decided.

REVERSED AND REMANDED.


author: CUTRER, Judge.

text:
    Margie GIBSON and Darlene Gibson, Individually and on Behalf of her Minor Child, Terrance Gibson, Plaintiffs-Appellants, v. J. D. FISHER, Jr.; Suzanne Fisher; and the Travelers Insurance Company, Defendants-Appellees.
    No. 8156.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1981.
    Rehearing Denied Aug. 13, 1981.
    Lester J. Gauthier, Lafayette, for plaintiffs-appellants.
    Pugh & Boudreaux, Donlon Pugh, Lafayette, for defendants-appellees.
    Before CUTRER, STOKER and BIEN-VENU, JJ.

       Judge C. Thomas Bienvenu, Jr., Sixteenth Judicial District Court, Parish of St. Martin, participated as Judge Ad Hoc in this decision.

   CUTRER, Judge.

This is a suit for damages arising out of an automobile collision. Margie Gibson, Darlene Gibson and Terrance Gibson seek damages for personal injuries sustained in the collision from the defendants, J. D. Fisher, Jr., Suzanne Fisher, and their liability insurer, Travelers Insurance Company (Travelers). Travelers filed a reconventional demand against Margie Gibson for the amount paid to Mr. Fisher under the collision provisions of its policy. The trial court held that the accident was caused solely by the negligence of Mrs. Margie Gibson and denied the plaintiffs’ claims. The trial court rendered judgment on Travelers’ re-conventional demand against Mrs. Gibson and awarded the amount of $2,779.82. From this judgment the plaintiffs have perfected this appeal. We affirm.

On August 6,1979, during daylight hours, Margie Gibson was driving her 1970 Mercury automobile northerly on University Avenue, a four-lane thoroughfare in Lafayette, Louisiana. Darlene Gibson and her son, Terrance Gibson, were guest passengers in the Gibson automobile. At approximately the same time, Mrs. Suzanne Fisher was driving her Cadillac automobile in a southerly direction on University Avenue. As Mrs. Gibson approached the intersection of University Avenue and St. Landry Street, which is controlled by a traffic signal, she slowed to stop as the light was red. After the light turned green, Mrs. Gibson proceeded to turn left onto St. Landry Street. Before Mrs. Gibson completed her turn, Mrs. Fisher’s vehicle, approaching the intersection from the opposite direction, collided with the Gibson vehicle. The trial court held that “the negligence which was the sole cause of the accident was the act of the plaintiff, Margie Gibson, in turning across the traffic lane of the approaching defendant.”

The plaintiffs contend the court erred in four respects: (1) In denying the claims of Margie Gibson; (2) in denying the claims of Darlene Gibson and her minor son, Terrance Gibson, guest passengers in the vehicle driven by Margie Gibson; (3) in failing to apply the doctrine of last clear chance; and (4) in granting judgment in favor of Travelers against Margie Gibson. All of these contentions can be resolved by determining whether the trial court erred in holding that the accident was caused solely by the negligence of Margie Gibson and whether the doctrine of last clear chance is applicable.

The driver of a vehicle intending to turn left bears the responsibility of yielding the right-of-way to vehicles approaching from the opposite direction which are so close as to constitute an immediate hazard. LSA-R.S. 32:122. Our courts have consistently held that a motorist attempting a left turn is required to exercise a very high degree of care. He should not attempt the left turn unless he has taken every reasonable precaution to insure that the turn can be made without endangering approaching motorists. Casimere v. Ryder Truck Rental, Inc., 324 So.2d 855 (La.App. 4th Cir. 1975), writs den., 329 So.2d 453 (La.1976); Bourque v. Haycock, 243 So.2d 108 (La.App. 3rd Cir. 1971); Beasley v. Pate, 180 So.2d 219 (La.App. 2nd Cir. 1965).

Such a left turning motorist, when involved in a collision, is burdened with a presumption of liability for the accident. He must show he was free from negligence to avoid the imposition of liability. Dunn v. Snyder, 388 So.2d 450 (La.App. 2nd Cir. 1980); Bennett v. U. S. Fid. & Guar. Co., 373 So.2d 1362 (La.App. 1st Cir. 1979), writ den., 376 So.2d 1269 (La.1979); Washington Fire & Marine Ins. Co. v. Firemen’s Ins. Co., 232 La. 379, 94 So.2d 295 (1957).

Mrs. Gibson stated that she was stopped at the red light on the inside lane facing north preparing to turn left. At the same time, a car was stopped in the inside lane facing south. As the light turned green, the driver of the car facing south signaled her to proceed with her left turn. She turned left but never saw the Fisher car until it struck her car.

Mrs. Fisher testified that she was proceeding south on the outside lane of University Avenue at a speed of 30 to 35 miles per hour. As she approached the intersection in question, the light was green and as she started into the intersection, Margie Gibson suddenly turned left in front of her. Mrs. Fisher stated that she applied her brakes immediately but could not stop before striking the Gibson car. Mrs. Fisher stated that she could not veer to the left as traffic was in the left lane. She could not turn right as a utility pole was located on the corner to her right. Mrs. Fisher’s automobile struck the Gibson vehicle immediately behind the right front door.

An employee of a service station at the intersection, who witnessed the accident, corroborated Mrs. Fisher’s testimony. In its reasons for judgment, the trial court correctly disposed of the issue of negligence as follows:

“. . . the testimony in this Court apparently again uncontradicted is that Margie Gibson did, in fact, left turn across a traffic lane in a heavily trafficked area that she did not see approaching traffic until the moment of impact. It, therefore, appears to the Court that she did not maintain a proper lookout, and that she did not properly execute a left, turn, and that she did not make sure it could be done safely before attempting to make the same. She should have seen the approach of the Fisher automobile, but she did not. Accordingly, the Court finds that the negligence which was the sole cause of the accident was the act of the plaintiff, Margie Gibson, in turning across the traffic lane of the approaching defendant.”

The plaintiff’s contention that the doctriné of last clear chance applies is without merit. The essential elements of the doctrine of last clear chance were discussed in Deo Gracias v. Collins, 286 So.2d 295 (La.App. 4th Cir. 1970), as follows:

“Before the doctrine of last clear chance can be invoked the litigant relying thereon has the burden of establishing, by a clear preponderance of the evidence, three essential elements: (1) he was in a position of peril of which he was unaware or from which he was unable to extricate himself; (2) the person against whom the doctrine is invoked actually discovered, or by the exercise of reasonable care, caution and observation, should have discovered such position of peril; and (3) when the person against whom the doctrine is invoked discovered or should have discovered the peril he could have avoided the accident by the exercise of reasonable care.”

See also: Cripps v. Kennedy, 364 So.2d 243 (La.App. 3rd Cir. 1978), writs den., 366 So.2d 917 (La.1979). The party relying on the doctrine of last clear chance bears the burden of proof of establishing the facts which are essential to make that doctrine applicable and such facts must be proved and will not be presumed. Desormeaux v. Continental Insurance Company, 153 So.2d 128 (La.App. 3rd Cir. 1963). The essential prerequisites of the doctrine of last clear chance have not been established in this case. The plaintiff failed to establish the existence of the second and third elements of the doctrine.

The trial court rendered judgment dismissing the plaintiffs’ main demand and granting judgment in favor of the defendant, Travelers Insurance Company, on the reconventional demand. Our review of the record convinces us that the trial court judgment was clearly correct.

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

AFFIRMED.

      . LSA-R.S. 32:122 provides:
      “The driver of a vehicle within an intersection intending to turn to the left shall yield the right of way to all vehicles approaching from the opposite direction which are within the intersection or so close thereto as to constitute an immediate hazard, Acts 1962, No. 310, § 1.


text:
    Wayne Anthony BERNARD, Sr., et al., Plaintiffs-Appellants, v. KANSAS CITY SOUTHERN RAILWAY COMPANY, et al., Defendants-Appellees.
    No. 8165.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1981.

      Haik, Broussard & Haik by Theodore M. Haik, Jr., New Iberia and Baggett, McCall, Singleton, Ranier & Ieyoub by Homer Singleton, Jr., Lake Charles, for plaintiffs-appellants.
    Scofield, Bergstedt & Gerard, Richard E. Gerard, Jr., Lake Charles, John W. King, Baton Rouge, for defendants-appellees.
    Raggio, Cappel, Chozen & Berniard, Richard B. Cappel, Lake Charles, for third-party, plaintiff-appellant.
    Before DOMENGEAUX, GUIDRY and SWIFT, JJ.
   GUIDRY, Judge.

This is a suit for damages filed by Wayne A. Bernard, Sr., individually and as natural tutor of his minor children, Christine A. Bernard, Rebecca A. Bernard, and Kathleen M. Bernard, and Wayne A. Bernard, II. Kansas City Southern Railway Company (hereafter Kansas City Southern), James A. Ambler, Joe Dowen, Joe Henry, Arthur R. Bynog, employees of Kansas City Southern, the Department of Highways, State of Louisiana, (hereafter the Department), Kathy Diane Bernard and the latter’s liability insurer, Allstate Insurance Company (hereafter Allstate) are named as defendants. The several defendants filed third party demands against each other seeking indemnity and/or contribution in the event they were ultimately held liable to the principal plaintiffs. Prior to trial, on motion of plaintiffs, this suit was dismissed as to James A. Ambler, Joe Dowen, and Joe Henry.

This matter was tried to a jury as to all defendants except the Department, plaintiffs’.demands against the latter being tried to the judge in accordance with LSA-R.S. 13:5105. The jury’s findings were as follows:

“1. Was Kansas City Southern Railway Company, or any of its employees, negligent and, if so, was that negligence a proximate cause of the accident? ANSWER No
2. Was the automobile driver, Kathy Diane Bernard, negligent and, if so, was her negligence a proximate cause of the accident? ANSWER Yes
If the answer to both of the above questions is “NO”, do not answer the questions below. The case is over. If one or both of the above questions is answered “YES”, then you must answer the following questions.
3. What was the amount of damages, general and special, sustained by Wayne Anthony Bernard, II? ANSWER $68.-400.00
4. What was the amount of general damages sustained by Revecca Ann Bernard? ANSWER $265.642.00
5. What was the amount of special damages sustained by Wayne Anthony Bernard, Sr. as a result of the injuries sustained by Rebecca Ann Bernard? ANSWER $44.000.00

The trial judge’s findings were as follows:

“After a careful review of the evidence and the applicable law, this Court has concluded that the parties asserting claims against Louisiana Department of Highways have failed to prove by a preponderance of the evidence that the Highway Department was guilty of any negligence that was a proximate cause of the accident that occurred on November 23, 1977 at the railroad crossing located on Louisiana Highway 110 at Singer, Louisiana. Accordingly, all claims against Louisiana Department of Highways will be rejected."

Judgment was rendered accordingly. Plaintiffs and Allstate have appealed and assign as error the bifurcated holding that Kansas City Southern and the Department were not guilty of any negligence that was a proximate cause of the accident giving rise to this suit. Additionally, Rebecca A. Bernard seeks to have the amount of damages awarded to her increased to the sum of $500,000.00.

FACTS

On November 23, 1977 at approximately 8:55 p.m., Mrs. Kathy Diane Bernard while driving a 1975 AMC Pacer automobile in a westerly direction on Highway 110 collided with a train owned and operated by Kansas City Southern near Singer, Louisiana in Beauregard Parish. In addition to Mrs. Bernard, the Bernard vehicle was occupied by four of her children, Kathleen, Christine, Rebecca, and Wayne A. Bernard, II.

The collision occurred at the point where two parallel railroad tracks, running north and south, cross Highway 110. This crossing is approximately 130 feet east of the junction of Highway 110 and La. Highway 27. A slight rise in the elevation of Highway 110 is evident at the location of the track. Just east of the railroad-highway intersection Highway 110 curves slightly to the right. As a motorist approaches this intersection traveling west there are nine reflectorized traffic control signs which seek to inform motorists of various traffic situations ahead. These nine traffic control signs were all in place on the date of the accident in question. The first sign encountered by a motorist is a so-called “object marker” used to mark obstructions within or adjacent to the roadway. Approximately 800 feet from the junction of Highway 110 and La. 27 is a speed limit sign instructing motorists to reduce their speed to 35 m.p.h. Approximately thirty feet west of this speed limit sign is a railroad advance warning sign. Motorists proceeding in a westerly direction on Highway 110 then encounter a stop ahead warning sign, a sign signifying the junction of La. 27 and Highway 110 and shortly thereafter, a sign warning motorists of a pedestrian cross walk. Approximately 165 feet from the main railroad track is a large reflectorized railroad warning sign painted on the pavement on Highway 110. About 54 feet east of the main railroad track located approximately 19 feet from the traveled portion of Highway 110 is a railroad crossbuck sign. About 24 feet east of the main track is an informational sign directing motorists to DeRidder and DeQuincy. About 130 feet past the subject railroad crossing is the intersection of Highway 110 and La. 27 where there is a stop sign and flashing red beacon lights which seek to warn oncoming motorists of the intersection. All of the signs located before the railroad tracks, with the exception of the railroad crossbuck sign, are located within six feet of the traveled portion of Highway 110.

Appellants contend that the subject railroad crossing is extra-hazardous; the approach thereto was inadequately signed; the crossbuck sign was improperly located, being too far from the traveled portion of the highway; the crossing was obscured by overgrown vegetation; and, the train crew failed to give warning of its approach to the intersection.

The voluminous trail record contains extensive expert testimony, often in direct conflict. Plaintiffs’ experts testified that the approach to the railroad crossing with its multiple signs presented a confusing traffic situation to motorists unfamiliar with the area. Further testimony by plaintiffs’ experts indicated that the location of the railroad crossbuck sign, approximately nineteen feet from the traveled portion of the highway, was in violation of applicable standards. In particular, Dr. John L. Baer-wald, an expert in the field of transportation and traffic engineering stated that the crossing at issue was extra-hazardous. Dr. Baerwald testified that the location of the flashing red beacon lights at the intersection of Highway 110 and La. 27 functions to distract the attention of motorists away from the railroad, crossing and that the location of the railroad crossbuck sign makes the crossbuck ineffective as a warning device. On the other hand, defendants’ expert witnesses testified that the crossing was a “typical” one that posed no unreasonable risk of harm to the ordinarily prudent motorist. All testified that the intersection was adequately signed. Dr. Ned Walton, an expert regarding human factors in traffic and transportation engineering testified that 65% of all railroad crossings have highway intersections located within 200 feet such as the one at issue. In addition, defendants’ expert witnesses stated that the crossbuck sign at issue was not incorrectly located according to applicable standards, but rather, in the interest of motorists’ safety, it should not be located any closer to the traveled portion of the highway since it was not a so-called “breakaway” sign.

With regard to the alleged overgrowth of vegetation in the area of the accident plaintiffs’ witnesses testified that same obscured Mrs. Bernard’s view of the tracks and approaching train. Although plaintiffs’ witnesses testified to the presence of overgrown vegetation, photographs of the accident site admitted at trial do not reflect overgrown vegetation sufficient to significantly affect the ability of a reasonably attentive motorist to see the tracks and act accordingly.

Although Mrs. Bernard and her son, Wayne, II, testified that they did not hear the train whistle sound as they approached the railroad crossing, several area residents and members of the train crew stated that the train whistle was sounded numerous times as the train proceeded toward the crossing.

Mrs. Bernard testified that as she drove toward the crossing, she observed only a pedestrian crosswalk sign, and the flashing red beacon lights and the stop sign located at the intersection of Highway 110 and La. 27. In addition, Mrs. Bernard stated that she had slowed her vehicle to a “rolling stop” in anticipation of stopping behind an automobile ahead of her vehicle at the highway intersection. Mrs. Bernard stated that she did not see the oncoming train until a few seconds before impact. Mrs. Bernard testified that immediately prior to the collision she thought of backing up, but instead decided to accelerate in an attempt to avoid the collision.

The duty owed by the State Highway Department to motorists traveling on Louisiana’s highways is well-established. It is the duty of the Highway Department to construct and maintain the highways in a condition reasonably safe for persons exercising ordinary care and reasonable prudence. Coleman v. Houp, 319 So.2d 831 (La.App. 3rd Cir. 1975); U.S.F. & G. Company v. State, Department of Highways, 339 So.2d 780 (La. 1976). The State Department of Highways is not responsible for every accident which may occur on state highways, nor is it a guarantor of the safety of travelers thereon, or an insurer against all injury or damage which may result from obstruction or defects in such highways. See Barnes v. Liberty Mutual Insurance Co., 350 So.2d 288 (La.App. 3rd Cir. 1977), writ refused, 352 So.2d 259 (La. 1977); United States Fidelity and Guaranty Company v. State Department of Highways, State of Louisiana, et al, supra. Clearly, insofar as the railroad crossing at issue is concerned, the duty of Kansas City Southern to highway motorists should be no greater than that owed by the Department of Highways.

The issue on appeal concerns the factual conclusions of both the trial jury and the trial judge. The judge and jury concluded that neither Kansas City Southern nor the Department was guilty of negligence which was a proximate cause of the accident, thus, apparently concluding that the subject crossing was properly and adequately signed, that the train crew acted reasonably and appropriately in their operation of the train, and that the condition of the crossing at the time of the accident presented no unreasonable danger to the reasonably prudent motorist. Discerning no clear error in these factual findings and conclusions, such findings and conclusions must be affirmed. See Canter v. Koehring Company, 283 So.2d 716 (La. 1973); Arceneaux v. Domingue, writ granted, 359 So.2d 1303 (La. 1978), 365 So.2d 1330 (La. 1978), on remand, 370 So.2d 1262 (La.App. 3rd Cir. 1979); Bertrand v. Aetna Casualty and Surety Company, 306 So.2d 343 (La.App. 3rd Cir. 1975).

The only other issue on appeal concerns the adequacy or inadequacy of the amount of damages awarded to Rebecca Ann Bernard. Since we have concluded as did the trial jury and judge, that the responsibility for plaintiffs’ damages lies solely with the Allstate Insurance Company, we need not consider this issue since the amount awarded by the lower court to Rebecca Ann Bernard greatly exceeds the limits of the liability insurance policy issued by Allstate to Kathy Diane Bernard.

For the above and foregoing reasons, the judgment appealed from is affirmed. All costs of this appeal are assessed one-half (V2) to plaintiffs-appellants, Wayne A. Bernard, Sr., Wayne A. Bernard, II, Rebecca A. Bernard, and one-half (V2) to defendants-third party plaintiffs-appellants, Kathy Diane Bernard and her insurer, Allstate.

AFFIRMED.

      . Following institution of suit Rebecca Ann Bernard attained the age of majority and now prosecutes this suit in her own right.

      . As indicated above, Kathy Diane Bernard, wife of plaintiff Wayne A. Bernard, Sr. and mother of the remaining plaintiffs, was made a party-defendant along with her insurer, Allstate. Additionally, Mrs. Bernard was named as a third party defendant in third party demands filed by the Department and Kansas City Southern. Mrs. Bernard remained a defendant and third party defendant throughout the entire trial. Although the jury concluded that Mrs. Bernard was negligent and that her negligence was the sole proximate cause of the accident, the trial court did not render judgment in favor of plaintiffs against Mrs. Bernard individually, but rather, rendered judgment only against her insurer, Allstate. The trial court’s judgment restricted plaintiffs’ recovery to the limits provided in the liability insurance policy issued to Mrs. Bernard by Allstate. Since no judgment has been rendered and signed casting Kathy Diane Bernard, we do not consider that the question of her individual responsibility to plaintiffs is before this court on appeal. In this connection, we observe that appellants do not assign as error the failure of the trial court judgment to cast Mrs. Kathy Diane Bernard in judgment along with her insurer.

      . This matter was not dismissed as to Arthur R. Bynog. Presumably, the omission of his name from the motion and order of dismissal was a clerical error as no further mention is made of Mr. Bynog in these proceedings or in the judgment appealed from.


author: SWIFT, Judge.

text:
    Aaron JOUBERT, et al., Plaintiffs-Appellants, v. TEXAS INDUSTRIES, et al., Defendants-Appellees.
    No. 8171.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1981.

      William Henry Sanders, Jena, for plaintiffs-appellants.
    Gold, Little, Simon, Weems & Bruser, Herbert Mang, Alexandria, for defendants-appellees.
    Before SWIFT, STOKER and DOUCET, JJ.
   SWIFT, Judge.

In the afternoon of February 6, 1979, Mrs. Sherry Joubert was driving the family automobile northward on Trenton Street in West Monroe, Louisiana. Calvin J. Smith, Jr. was driving a cement truck in a southerly direction on this street during the course of his employment with Texas Industries, Inc. and/or Louisiana Industries, Inc. The weather was rainy. As Smith approached the Joubert vehicle he lost control of his truck, struck a sign pole and entered Mrs. Joubert’s lane of travel. There the truck collided with the front of the Joubert car.

Mr. and Mrs. Joubert sued Smith, his employers, and Travelers Insurance Company, the insurer of the two defendant corporations, seeking damages allegedly caused by Smith’s negligence.

The defendants admitted liability, so the only issues presented to the trial jury for determination concerned damages. Its verdict was as follows:

"WE, THE JURY, FIND FOR THE PLAINTIFFS, AARON JOUBERT AND SHERRY JOUBERT, IN THE FOLLOWING AMOUNTS:
"SPECIAL DAMAGES:
1) MEDICAL EXPENSES, PAST: $7,292.60
2) MEDICAL EXPENSES, FUTURE: 3,000.00
3) LOSS OF EARNINGS, FUTURE: -0-
"GENERAL DAMAGES - PHYSICAL AND MENTAL PAIN AND SUFFERING, PAST, PRESENT AND FUTURE: $2,000.00"

The plaintiffs have appealed from the judgment, contending that the amounts awarded are inadequate and that the denial of recovery for loss of Mrs. Joubert’s earnings is manifestly erroneous. Appellants also assert that the jury instructions and the verdict form were inconsistent and incorrect. However, as no objection thereto was made at the trial, they are precluded from raising this issue on appeal. LSA-C. C.P. Art. 1793; Williams v. City of Alexandria, 376 So.2d 367 (La.App. 3 Cir. 1979), writ refused 378 So.2d 432 (La.1979); Helaire v. Liberty Mut. Ins. Co., 397 So.2d 8 (La.App. 3 Cir. 1981).

Appellees have neither appealed nor answered the appeal.

In our review of the judgment with respect to quantum we must determine whether the jury abused the “much discretion” accorded it by law. Unless the record clearly reveals this to be the ease, the awards cannot be disturbed. However, should we find such abuse, the awards can only be altered by raising them to the lowest amounts that would be reasonably within the jury’s discretion. Wilson v. Magee, 367 So.2d 314 (La.1979).

In the present case Mrs. Joubert told the investigating officer at the scene of the accident that she was uninjured. However, she testified her neck began to hurt that night. She saw Dr. Weldon D. Smith, a local chiropractor, the next day. He felt she had a spinal strain due to the accident and adjusted the cervical and upper thoracic areas of her spine. He had treated her for similar complaints in 1971 and 1975. He continued to see plaintiff, but did not adjust her lumbar spine until November, 1979.

On March 8, 1979, Mrs. Joubert was seen by a family practitioner in Jonesville, Dr. William C. Coney, complaining of neck pain. His x rays were negative, but the physician initiated therapy and she was given an anti-inflammatory drug. The plaintiff did not complain to him of pain in the lumbar area until November, but Dr. Coney’s final diagnosis was a cervical and lumbar sprain of the chronic type which he thought was probably caused by the accident.

On March 9, 1979, the plaintiff consulted Dr. John J. McCutchen, a neurologist in Houston, Texas. His first diagnosis was a cerebral concussion with cervical and lum-bosacral strains or possible discopathy in these areas. He saw her at intervals during the rest of 1979 and also up to July 17,1980. The doctor had Mrs. Joubert hospitalized in Houston from December 9 through 17 for tests, physical therapy and traction. Although he testified she made considerable progress, plaintiff was still bothered with soreness in her neck and low back and also pain in the back of her head. This doctor feels that there is evidence of discopathy producing nerve root pressure both in the neck and in the low back. However, he would not recommend surgery until she has had a full neurological evaluation and his clinical diagnosis is confirmed by further tests.

Dr. McCutchen referred Mrs. Joubert to two orthopedic surgeons in Houston for consultation, Dr. Arthur L. Glassman and a Dr. L’Ecuyer. Dr. Glassman’s diagnosis was strains of Mrs. Joubert’s neck, low back and right knee and a bruise of her right hip. Except possibly the hip condition, the doctor relates these problems to the accident simply on the basis of the history given him by the patient.

Dr. L’Ecuyer did not testify. There being no explanation of this, it is presumed that his testimony would be adverse to Mrs. Joubert.

The plaintiff was also seen by Dr. Roy J. Ledbetter, Jr., an orthopedic surgeon in Monroe, on April 27, 1979. His x rays were normal and the doctor concluded she had a collision sprain of the cervical and lumbar segments of the spine. He found no evidence of disc pathology and did not feel that a myelogram or surgery was needed. He did not believe Mrs. Joubert had any permanent or disabling type of injury.

Dr. John N. Patton, a neurosurgeon in Alexandria, saw Mrs. Joubert on January 31, 1980. He concluded she probably had a cervical and lumbar musculoskeletal injury but there was then no evidence of a herniated nucleus pulposis. He felt she probably also had a left ulnar neuropathy which gave rise to mild hyperesthesia in her left hand, but did not know whether this was caused by the accident. The doctor thought Mrs. Joubert was mildly depressed. A myelo-gram was run and it was found to be normal.

Mrs. Joubert was also seen by Dr. Ronald S. Pryor, a clinical psychologist and vocational consultant in Pineville, Louisiana, on November 10, 1979. He found that she was significantly depressed and experiencing anxiety which he believed was caused by the accident. However, he recognized that the secondary gain from the pending law suit could have some influence on her condition.

Most of the doctors felt that when seen by them Mrs. Joubert was incapacitated from performing heavy lifting and prolonged standing or stooping, but she was capable of performing administrative or managerial work.

The plaintiff had worked in and helped manage nursing homes most of her life. However, she and her husband leased to others the one which they owned about five years before the accident and Mrs. Joubert’s activities were thereafter confined to civic work and housekeeping except for some assistance she gave her husband in his non-emergency medical transportation service and a pump service business. She received no pay for these.

All of the doctors mentioned were seen at the request of plaintiff or her attorney or in consultation with Dr. McCutchen. We note that in a few instances different results were reported by some doctors on similar diagnostic tests that were made about the same times.

The plaintiffs first complain of the $3,000.00 award for future medical expenses. Their position is that the jury should have allowed $13,000.00 for this item, which Dr. McCutchen said would be the cost of possible disc surgery and hospitalization. None of the other doctors thought such surgery was necessary. Thus, it was not shown that, more probably than not, these expenses will be incurred by plaintiffs. In view of the highly speculative nature of the probability of such surgery, we cannot say that the jury abused its discretion in the amount awarded for future medical expenses. Wexler v. Martin, 367 So.2d 111 (La.App. 4 Cir. 1979).

The record reflects that the plaintiff and another lady had some plans to open a dress shop when this accident occurred. However, Mrs. Joubert was not gainfully employed for about five years prior thereto and it was not shown just what loss of future income, if any, she will suffer as a result of this accident. Since it was not established with reasonable certainty that there will be any loss of future earnings, we cannot say the jury was manifestly in error in concluding that no award should be made for this item.

On the other hand, we are convinced that the trier of fact abused its discretion in awarding only $2,000.00 for Mrs. Joubert’s past and future pain and suffering.

The preponderance of evidence is to the effect that the plaintiff’s injuries in this accident generally consisted of muscular and ligamentous strains of the cervical and lumbar areas of her back from which she will eventually recover. That she also has had some depression and anxiety does not seem to be seriously disputed. The jury obviously concluded she was still experiencing symptoms from these conditions when the case was tried on August 12, 1980. They must have also found that she would continue to suffer some thereafter. Otherwise, no award would have been made for future medical expenses. All things considered, we believe that an award of $10,-000.00 for Mrs. Joubert’s pain and suffering, past and future, would be the lowest amount that is reasonably within the discretion afforded the trier of fact.

For the foregoing reasons, the judgment of the district court is amended to increase the award to plaintiff, Sherry Joubert, for these general damages from $2,000.00 to $10,000.00 and as amended it is affirmed. The costs of this appeal are assessed to appellee.

AMENDED AND AFFIRMED.


author: STOKER, Judge.

text:
    Melissa FREDERICKS, Plaintiff-Appellant, v. ASSOCIATED INDEMNITY CORPORATION, et al., Defendants-Appellees.
    No. 8172.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1981.

      Thomas & Dunahoe, Gerard F. Thomas, Jr., Natchitoches, for plaintiff-appellant.
    Watson, Murchison, Crews, Arthur & Corkern, William P. Crews, Jr., Natchitoch-es, for defendants-appellees.
    Before CUTRER, STOKER and BIEN-VENU, JJ.

       Judge C. Thomas Bienvenu, Jr., Sixteenth Judicial District Court, Parish of St. Martin, participated as Judge Ad Hoc in this decision.

   STOKER, Judge.

This is a worker’s compensation suit. Plaintiff, Melissa Fredericks, filed suit against her employer Country Pride Foods, Ltd., and its insurer, Associated Indemnity Corporation, seeking benefits for total and permanent disability and penalties and attorney’s fees pursuant to LSA-R.S. 22:658. The defendants filed an exception of prematurity, an answer, and a rule to show cause why compensation payments should not be terminated. A hearing on the exception, the rule and the merits came up at the same time. After the hearing all matters were taken under advisement. In its written reasons for judgment the trial court sustained defendant’s exception of prematurity but proceeded to render judgment on the merits. Plaintiff appeals. The defendants answered the appeal urging this court to affirm the trial court judgment sustaining the exception of prematurity and to reverse the judgment on all other points.

This lawsuit presents several issues. The first issue is whether this suit was premature at the time it was filed. Assuming the suit is not premature other issues include the defendant-insurer’s liability for penalties and attorney’s fees pursuant to LSA-R.S. 22:658 and the nature of plaintiff’s disability.

FACTS

The plaintiff injured her back on December 5, 1978, while on the job at the Country Pride Foods, Ltd. plant in Natchitoches, Louisiana. Plaintiff continued working until late December 1978. Plaintiff underwent disc surgery on January 22, 1979. At the time of trial on June 11, 1980, plaintiff had not returned to work.

Defendant-insurer began compensation payments in late December 1978 and continued to make these payments until April 12, 1980. From April 12, 1980, to May 6, 1980, plaintiff did not receive compensation. Plaintiff filed suit on May 2,1980. On May 6, 1980, plaintiff received a check to cover the three week delinquent period.

The plaintiff specifies as error:

1. The trial court’s action in sustaining the defendants’ exception of prematurity;

2. The trial court’s action in classifying plaintiff’s disability as temporary, total disability; and

3. The trial court’s failure to assess penalties and attorney’s fees.

When this suit came before the trial judge the three matters pending included plaintiff’s suit on the merits, defendants’ exception of prematurity and defendants’ rule to show cause why benefits should not be terminated. The trial judge referred the exception of prematurity to the merits. Tr. 21. A ruling on the exception of prematurity should have been made prior to trial on the merits. See LSA-R.S. 23 ¡ISM. Although it was error for the trial court to proceed as it did, we do not consider the error as a ground for reversal under the peculiar circumstances of this case. In our opinion the exception of prematurity should have been overruled.

I.

LSA-R.S. 23:1314 provides that an employee’s compensation suit shall be dismissed upon an exception of prematurity unless the petition alleges:

1. That the employee is not being paid or has not been paid the maximum percent of wages to which he is entitled;

2. That the employee has not been furnished the proper medical attention; or

3. That the employee has not been furnished with copies of the medical reports after a written request.

Plaintiff’s petition contains the following paragraphs:

“X.
“She has been paid some workmen’s compensation by the defendants and some of her medical expenses have been paid by the defendants. She does not know the exact amount of compensation she has been paid, nor the exact amount of medical expenses paid by the defendant.”
“XI.
“Petitioner has given due notice to her employer and the insurer of her accidental injury and has made demand upon the defendants for compensation benefits which she is entitled to be paid under the Louisiana Compensation Statute. Despite such demand and notice of her injury and disability, the defendant is not now paying her and, in fact, refuses to pay her, the maximum workmen’s compensation benefits to which she is entitled to be paid under the Louisiana Workmen’s Compensation Statute.”

The Supreme Court in Patton v. Silvey Companies, 395 So.2d 722 (La.1981) interpreted LSA-R.S. 23:1314. In discussing possible interpretations of this statute the Supreme Court said:

“One possible construction of these provisions of R.S. 23:14 is that justification ‘under the facts’ for the claimant’s allegation of nonpayment concerns whether plaintiff is or is not being paid his compensation, whether the employer has or has not refused to pay. Thus, according to this interpretive version of the statute, most favorable to plaintiff, if he is not being paid at the institution of suit, his suit is not premature.
“An alternate interpretation which we consider more reasonable and appropriate is that justification ‘under the facts’ coupled with the outset requirement, among others, that plaintiff must allege and prove ‘the employer has refused to pay’ requires the court to determine more than simply whether plaintiff is receiving compensation; rather, the court must determine whether the employer has unreasonably determined to terminate benefits, or has unreasonably refused to pay.
“It is by virtue of the latter interpretation that Malone espouses and Jack v. Fidelity and Casualty Co. of New York, supra, has applied the three considerations noted above, namely whether there existed a reasonableness in ceasing to make payments, promptness in resuming them, and manifestation of a desire to cooperate.
“Because in a case such as this where suit is filed shortly after termination, a defendant’s resumption of payment and manifestation of willingness to cooperate is possibly prompted by the plaintiff’s institution of suit, with defendant attempting to enhance its defense of prematurity, and considering that the exception of prematurity ‘. . . must be determined according to the facts and circumstances which existed at the time the suit was filed . . . ’, our focus is necessarily on only the first of the three considerations mentioned above, namely, whether defendant’s termination of benefits was reasonable.”

* * !j« * # *

We now proceed to determine whether defendant’s termination of benefits was reasonable. Upon trial of this matter an employee of the defendant-insurer testified that compensation was not paid for a three week period because of “an oversight”. See Tr. 81. Benefits were terminated because the insurer’s computer was not programmed to continué printing compensation checks for the plaintiff.

We do not feel that a termination based on this type of “oversight” is reasonable. We believe that the trial judge erred in sustaining the defendants’ exception of prematurity.

II.

Since the trial judge referred the exception to the merits and evidence was adduced we have a complete record of the case before us. In our opinion a remand is not necessary in this case we will proceed to discuss the issues raised by plaintiff’s claim for compensation benefits. These issues include:

1. Whether the defendant-insurer was arbitrary, capricious or unreasonable in terminating benefits so as to be subject to penalties and attorney’s fees pursuant to LSA-R.S. 22:658, and

2. Plaintiff’s disability classification.

Plaintiff contends that the defendant-insurer is liable for penalties and attorney’s fees pursuant to LSA-R.S. 22:658 because its failure to pay compensation from April 12, 1980, to May 6, 1980, was arbitrary, capricious or without probable cause. Plaintiff also argues that defendant-insurer is liable under LSA-R.S. 22:658 because of its failure to pay benefits on a weekly basis as demanded, its failure to pay a $45.00 hospital bill and its failure to tender medical travel expenses.

Having concluded in connection with the issue of prematurity that the defendant-insurer’s failure to pay compensation for the period of April 12 to May 6 was unreasonable we find that its failure to pay was without probable cause. See Allor v. Belden Corp., 382 So.2d 206 (La.App. 3rd Cir. 1980).

As to plaintiff’s demand for penalties and attorney’s fees based on the defendant-insurer’s failure to pay a portion of the hospital room charge and medical travel expenses we cannot say that the failure to pay was arbitrary, capricious or without probable cause. Prior to trial plaintiff did not demand medical travel expenses from the insurer. The failure to pay such amounts absent demand and verification of the expenses incurred by plaintiff does not subject the defendant insurer to liability for penalties and attorney’s fees under LSA-R.S. 22:658. See Rodriquez v. American International Insurance Company, 394 So.2d 621 at 626 (La.App. 3rd Cir. 1981). Prior to trial plaintiff did demand from the insurer payment of a $45.00 hospital bill to the Natchitoches Parish Hospital which represented the difference between a private and a semi-private room, however, she did not at the time of demand furnish to the insurer any medical verification that it was necessary that she be housed in a private room. We do not feel that the insurer’s refusal to pay this expense was arbitrary, as the insurer was not furnished with medical verification that a private room was a necessary medical expense. See Dove v. Liberty Mutual Insurance Co., 379 So.2d 1193 (La.App. 3rd Cir. 1980).

We hold that the defendant-insurer is liable for penalties and attorney’s fees pursuant to LSA-R.S. 22:658 based on its failure to pay benefits from April 12, 1980, to May 6, 1980. Penalties of 12% attach to that delinquent amount. We award plaintiff attorney’s fees of $5,000.

III.

The district court in this case found the plaintiff to be temporarily totally disabled. In holding that the plaintiff was temporarily totally disabled the court concluded:

“The Court doubts whether plaintiff is suffering from permanent total disability since the deposition of Dr. William Wade Fox, III, an orthopedic surgeon who examined Ms. Fredericks, indicated that he believes that her chances for recovery are ‘. . . good or better than anticipated . . . ’, and that she should be able to soon return to active labor type work, (depos. pg. 30).”

Dr. Fox, the orthopedic surgeon who performed plaintiff’s disc surgery, last examined the plaintiff on November 20, 1979. A close reading of the deposition of Dr. Fox reveals that the trial judge incorrectly evaluated what Dr. Fox said about plaintiff’s condition. For this reason we quote the following portion of Dr. Fox’s deposition. See Deposition of Dr. William Wade Fox, III, taken on June 24, 1980, at pages 30 and 31.

“Q The recovery was as good or better than you anticipated it would be?
A Yes sir, especially in the early stages.
Q On the occasion of your last examination [November 20, 1979], you have previously expressed that in your medical opinion she should be able to resume active labor type work?
A Yes sir.
Q Is that right?
A Yes sir.
Q And is that your opinion today? [June 24, 1980.]
A Yes sir.
Q You didn’t find any medical reason why she should not be able to resume her regular manual work, of course, accorded the fifteen percent residual disability that you assigned?
A That’s correct.
Q And she should be able to do that without any continued substantial pain?
A That’s correct.
Q And that she should experience no pain to the extent that it would be physically disabling to work?
A That’s correct.”

Following examination of the plaintiff on November 20, 1979, Dr. Fox discharged her and released her to return to work. At that time he estimated that plaintiff had a 15% partial permanent disability of the body as a whole. In the course of his deposition Dr. Fox admitted that his disability evaluation did not take into consideration plaintiff’s specific employment. Dr. Fox only knew that plaintiff worked in a chicken processing plant. He did not know the physical activities required by plaintiff’s job.

In a letter to counsel for defendants dated May 27, 1980, Dr. Fox stated that he felt plaintiff would continue to have intermittent slight pain while doing her work on the job and while doing housework but he did not feel that she would incur constant or substantial pain on the job. Again we note that at the time Dr. Fox wrote this letter he did not know the exact nature of plaintiff’s job and the physical activity required in this job.

The lay testimony consisted of the testimony of plaintiff, the plaintiff’s father and plaintiff’s two sisters-in-law. The plaintiff’s testimony revealed that she is in considerable pain five out of seven week days and that she can no longer do many of the physical activities she was accustomed to doing prior to her injury. Plaintiff testified that she cannot walk, stand, sit, or recline for long periods of time (not exceeding thirty minutes) without substantial pain. Plaintiff testified that she has frequent muscle spasms and “charleyhorses” and that these often interrupt her sleep. The testimony of the other lay witnesses revealed that plaintiff is not now as active as she was before the injury and that she has been forced to limit her physical activities because of pain. Plaintiff testified that she frequently takes Tylenol and Reía, a prescribed muscle relaxant, in order to relieve the pain. The other witnesses confirmed this testimony. Plaintiff testified that she could not do the work that she was doing prior to her injury at Country Pride Foods, Ltd., because of her inability to stand for periods of time and her inability to lift, stoop and bend.

It is the totality of the evidence, medical and lay, which must be examined by the court in making its determination of whether to grant an award for disability. It is the trial judge’s function to determine the weight to be accorded medical and lay testimony. Lay testimony is greatly probative of certain facts, such as the existence and location of pain and the ability of a compensation claimant to perform certain physical activities or to pursue regular employment. See Tantillo v. Liberty Mutual Insurance Company, 315 So.2d 743 (La. 1975).

Considering all the evidence in this case, both medical and lay, we do not find that the trial court erred in concluding that the plaintiff is totally disabled. However, our review of the record reveals no evidence as to the duration of plaintiff’s disability. Under the circumstances the trial court erred in holding that plaintiff was temporarily disabled. In a case where a worker’s compensation claimant is totally disabled at the time of trial and the duration of the disability is indefinite or the evidence does not clearly indicate the duration of the disability, a judgment for total and permanent disability should be made. Walker v. Gaines P. Wilson & Son, Inc., 340 So.2d 985 (La.1976); Wiley v. Southern Casualty Insurance Company, 380 So.2d 214 (La.App. 3rd Cir. 1980). The correct judgment in the case before us is one of total and permanent disability.

For the above and foregoing reasons the judgment of the trial court is reversed insofar as it sustained defendant’s exception of prematurity and the exception is hereby overruled. The judgment of the trial court will be amended to provide compensation for permanent total disability rather than temporary total disability and to provide for statutory penalties and attorney’s fees.

IT IS NOW THEREFORE ORDERED, ADJUDGED AND DECREED that there be judgment in favor of plaintiff, Melissa Fredericks, against Associated Indemnity Corporation for penalties as provided in LSA-R.S. 22:658 in the amount of 12% of the compensation which became due for the period of April 12, 1980, to May 6, 1980, dating from the due date of each payment, together with legal interest on such sums from the date of delinquency until paid.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that there be judgment in favor of plaintiff and against Associated Indemnity Corporation in the sum of $5,000.00 attorney’s fees. The judgment appealed is amended to award plaintiff weekly compensation based upon a forty hour week at $2.95 per hour for total and permanent disability for the period of the disability. All costs of this appeal are assessed against defendant Associated Indemnity Corporation.

REVERSED IN PART, AFFIRMED IN PART AND AMENDED AND RENDERED.

      . LSA-R.S. 23:1314 reads as follows:
      “Unless in the verified petition above referred to it is alleged (where the petition is filed by the employee or his dependents) that the employee or the dependents is not being or has not been paid, and that the employer has refused to pay, the maximum percent of wages to which petitioner is entitled under the provisions of this Chapter, or that the employee has not been furnished the proper medical attention, or that the employee has not been furnished with copies of the reports of examination or examinations made by employer’s medical practitioners after written request therefor has been made under the provisions of this Chapter, the presentation or filing of such petition shall be premature and shall be dismissed; when such allegations are contained in such petition and are denied by the employer at the time fixed thereunder by the court, if it be shown that such allegations are without reasonable cause or foundation in fact, such petition shall be dismissed; and the question of whether or not such allegations of nonpayment or of failure to render medical attention or failure to furnish medical reports is justified under the facts shall be determined by the court before proceeding with the hearing of the other issues involved.”

      . The explanation given by the insurer’s employee establishes that the cessation in compensation checks was caused neither by clerical error or computer breakdown. After the insurer determined a claimant was due compensation it “fed” a certain number of weeks into the computer. Unless additional weeks were “fed” into the computer, the computer would cease issuing checks at the end of this period. Prior to the end of the period for which the computer had been programmed, the insurer’s employee in charge of a claimant’s file was required to review the claimant’s disability status. If the claimant’s status indicated that the disability would persist for sometime the computer was reprogrammed to add additional weeks. This procedure was repeated as long as the claimant remained disabled.
      In this case the insurer’s employee in charge of plaintiff’s file failed to review the file and the computer ceased issuing checks at the end of the period for which it was programmed. This was human error, not computer error.

      “6 Jack v. Fidelity and Casualty Co. of New York, 306 So.2d 806 (La.App. 3rd Cir. 1975). See also Malone, Louisiana Civil Law Treatise, vol. 14, § 383, p. 236 (1980).”

      . LSA-R.S. 22:658 provides:
      All insurers issuing any type of contract other than those specified in R.S. 22:656 and 22:657 shall pay the amount of any claim due any insured including any employee under Chapter 10 of Title 23 of the Revised Statutes of 1950 within sixty days after receipt of satisfactory proofs of loss from the insured, employee or any party in interest. Failure to make such payment within sixty days after receipt of such proofs and demand therefor, when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of 12% damages on the total amount of the loss, payable to the insured, or to any of said employees, together with all reasonable attorney’s fees for the prosecution and collection of such loss, or in the event a partial payment or tender has been made, 12% of the difference between the amount paid or tendered and the amount found to be due and all reasonable attorney’s fees for the prosecution and collection of such amount. Provided, that all losses on policies covering automobiles, trucks, motor propelled vehicles and other property against fire and theft, the amount of the penalty in each of the above cases shall be 25% and all reasonable attorney’s fees.
      Amended by Acts 1958, No. 125.

      . This judgment is subject to modification pursuant to LSA-R.S. 23:1331.


author: LABORDE, Judge.

text:
    S. T. RELIFORD, Plaintiff-Appellee, v. DOBSON PULPWOOD COMPANY, et al., Defendants-Appellants.
    No. 8175.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1981.

      Mayer, Smith & Roberts, Mark A. Goodwin, Shreveport, for defendants-appellants.
    Andrew S. Vallien, Natchitoches, for plaintiff-appellee.
    Before CULPEPPER, FORET and LA-BORDE, JJ.
   LABORDE, Judge.

This is a workmen’s compensation case. The plaintiff-appellee, S. T. Reliford, injured his left ankle in an accident arising out of and in the course of his employment as a pulpwood cutter for the defendant-appellant, Dobson Pulpwood Company. He was paid disability benefits for 104 weeks until his doctor released him to return to work. The plaintiff contends that due to the pain he suffers from his injury he is unable to perform work of any reasonable character for which he is suited by reason of his age, training and experience. The trial judge found the plaintiff to be permanently and totally disabled under the workmen’s compensation law. Dobson Pulpwood Company and its workmen’s compensation insurer, American Mutual Liability Insurance Company, appeal.

The record reflects that plaintiff, S. T. Reliford, a forty-five year old laborer who dropped out of school in the seventh grade to go to work, was employed as a pulpwood cutter and loader with Dobson Pulpwood Company. While at work on September 27, 1977, a large log being loaded onto a truck fell on plaintiff striking his lower left leg and knocking him from the top of the truck to the ground. Plaintiff was momentarily knocked unconscious and upon regaining consciousness, complained of pain to his left ankle.

The plaintiff was first treated by Dr. Fred S. Willis in Coushatta, Louisiana, with conservative care, mild physical therapy and medication for pain and inflammation. Plaintiff continued to experience pain and swelling of his left ankle and foot and was referred to Dr. W. W. Fox, an orthopedic surgeon in Shreveport, Louisiana. Dr. Fox examined the plaintiff on November 8, 1977. At that time he diagnosed plaintiff as having a sprain and contusion or bruise over the lateral part of the left foot and ankle. Dr. Fox again examined plaintiff on February 23, 1978. Following the examination, Dr. Fox felt plaintiff had chronic pero-neol tendinitis which was post-traumatic due to his job-related injury. Plaintiff continued to have trouble and on March 21, 1978, Dr. Fox admitted plaintiff into the hospital and the following day performed surgery known as the Ellis-Jones procedure. Plaintiff continued to see Dr. Fox. On December 5,1978, Dr. Fox released plaintiff to return to his former duties as a pulpwood laborer.

Plaintiff, alleging that he is unable to return to work due to pain, seeks to be declared permanently and totally disabled within the meaning of the compensation act.

When this case came to trial in August of 1980, plaintiff still was not working. He testified that he attempted to return to work after his discharge by Dr. Fox but claims the pain he experienced in his ankle forced him to quit. He also testified that upon exertion, he experiences pain and swelling in his left foot. The plaintiff’s family and friends testified that before his accident he was an active person and a hard worker but after his injury he became inactive and often complained of the pain in his left foot. Plaintiff has not worked since his attempt to return to work cutting pulpwood.

The medical reports of Dr. Fred Willis, a practicing general physician who treated plaintiff initially, were introduced in evidence in lieu of his testimony. These reports indicate that plaintiff went to Dr. Willis complaining of severe foot pain. Generally, Dr. Willis found plaintiff’s left foot to be grossly swollen, red, tender and unable to bear weight on it. After several visits, Dr. Willis notes that plaintiff’s foot progressively worsened.

The deposition of Dr. Fox, the orthopedic surgeon who treated plaintiff and performed the surgery, was also introduced in evidence in lieu of his testimony. Dr. Fox found that plaintiff experienced more swelling in his left foot for a longer period of time than was expected. The plaintiff remained in a cast until July 20, 1978. Upon removal of the cast, plaintiff’s foot was still swollen and causing him pain. Dr. Fox began treatments to reduce the swelling and inflammation having the plaintiff return each month for an examination. On December 5, 1978, Dr. Fox’s examination revealed very little remaining swelling and a good range of motion in his left foot and ankle. Dr. Fox assessed a 15% partial permanent disability of plaintiff’s left foot and released him to return to work.

The primary issue posed by this appeal is whether the trial court erred in finding plaintiff totally and permanently disabled.

A worker who is unable to return to any gainful employment without suffering substantial pain is entitled to compensation benefits for total disability. Wilson v. Ebasco Services, Inc., 393 So.2d 1248 (La.1981); Dusang v. Henry C. Beck Builders, Inc., 389 So.2d 367 (La.1980); Whitaker v. Church’s Fried Chicken, Inc., 387 So.2d 1093 (La.1980). Substantial pain cases fall within the framework of the odd lot doctrine which was adopted by the Supreme Court in Oster v. Wetzel Printing, Inc., 390 So.2d 1318 (La.1980). See also Whitaker v. Church’s Fried Chicken, Inc., supra; Dusang v. Henry C. Beck Builders, Inc., supra; Turner v. American Mutual Insurance Company, 390 So.2d 1330 (La.1980); Allor v. Belden Corporation, 393 So.2d 1233 (La.1981); Wilson v. Ebasco Services, Inc., supra; Lattin v. Hica Corporation, 395 So.2d 690 (La.1981).

In the Lattin case, supra, the Supreme Court explained:

“Under the odd lot doctrine, a claimant is considered totally disabled if his injury makes him an odd lot in the labor market, that is, one capable of obtaining employment periodically but one whose services are so limited in quality, dependability or quantity that a reasonably stable market for his services does not exist. An odd lot claimant need not be absolutely helpless to qualify for total disability. If the claimant can prove that his physical condition, mental capacity, education, training, age or other factors combine to place him at a substantial disadvantage in the competitive labor market, he has made out a prima facie case for classification in the odd lot category. This satisfies his burden of proving that he should be awarded benefits for permanent and total disability. The employer or insurer must then show that some form of gainful occupation is regularly and continuously available to the employee within reasonable proximity to the employee’s residence. The odd lot doctrine is also applicable to substantial pain cases because a worker who, due to his injury, can function only with substantial pain or with the help of fellow workers may not be considered a particularly desirable employee. Thus, if a claimant’s pain appreciably limits the types of work available to him and greatly diminishes his ability to compete in the labor market, he can be treated as an odd lot worker and be awarded total disability, unless there is proof that jobs are realistically available to him. On the other hand, if a worker cannot perform the same work that he did before his injury because it causes him substantial pain, but he has the mental capacity to perform other jobs which are available, he should be considered partially disabled. Dusang v. Henry C. Beck Builders, Inc., supra.”

In the instant case, plaintiff testified that the pain in his foot and ankle increases upon exertion such as standing, even for short periods of time. Due to the pain, plaintiff has only attempted to work for a brief part of one day since his injury. His friends and relatives testified that he was an active person and a good worker prior to the injury but after his injury he became inactive and complained constantly about the pain in his foot. Although Dr. Fox believed that plaintiff could return to work, he did point to objective medical findings to support his claim of pain. In addition, Dr. Fox gave him a disability rating of 15% permanent partial disability to the ankle with limited motion in his lower extremities. Finally, although he believed plaintiff was able to return to work, Dr. Fox did not feel that plaintiff was a malingerer.

In addition to claims of substantial pain, the record reveals that plaintiff is a forty-five year old man who has lived in the rural community of Chestnut, Louisiana, his entire life. Upon reaching the seventh grade, he quit school and went to work. The plaintiff’s work history reveals a series of jobs involving hard, manual labor. At the time of the accident, plaintiff had worked as a pulpwood cutter for Dobson Pulpwood Company approximately two years. The trial judge observed the plaintiff could hardly read and write.

We believe the evidence establishes a prima facie case for application of the odd lot doctrine. The evidence shows the plaintiff to be a manual laborer with little education and few skills. The pain experienced by plaintiff limits the type of work available to him and severely restricts his ability to compete in the labor market. However, under the odd lot doctrine standards adopted by the court in the Oster case, supra, defendants should be given the opportunity to reduce the award of plaintiff’s benefits from permanent and total disability to partial disability by presenting evidence that •some form of gainful occupation is regularly and continuously available to plaintiff within a reasonable proximity to his residence. Accordingly, the judgment of the trial court awarding compensation benefits for permanent and total disability must be set aside and the case remanded to the district court to allow both parties to present additional evidence in light of the newly-adopted standards.

For the above reasons, the judgment of the district court is set aside and the case is remanded for further proceedings consistent with this opinion.

SET ASIDE AND REMANDED.


author: FORET, Judge.

text:
    Mrs. Paul J. FONTENOT, Plaintiff-Appellant, v. ESTATE OF Andre VIDRINE, Defendant-Appellee.
    No. 8241.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1981.

      Preston N. Aucoin, Ville Platte, for plaintiff-appellant.
    Pucheu, Soileau & Cored, A. Gaynor Soi-leau, Ville Platte, Darrel D. Ryland, Marks-ville, Sklar, Nachman, Schmidt & Bowsher, Robert T. Bowsher, Baton Rouge, Ashlock & Vidrine, Jules R. Ashlock, Ville Platte, for defendant-appellee.
    Before CULPEPPER, FORET and LA-BORDE, JJ.
   FORET, Judge.

Mary Lou Vidrine Fontenot (Plaintiff) brought this action on a claim against the Succession of Andre Vidrine based on a promissory note executed by Andre Vidrine in her favor. Plaintiff’s petition was served upon Theolise Smith Vidrine, who was confirmed as the testamentary executrix of the succession.

The testamentary executrix answered plaintiff’s petition and denied the allegations contained therein. The testamentary executrix then filed peremptory exceptions of prescription, no right of action, and no cause of action. Meanwhile, the other heirs of Andre Vidrine intervened in the succession proceedings and opposed plaintiff’s claim.

Thereafter, plaintiff filed an amending and supplemental petition in which she alleged, in the alternative, that the note represented either a remunerative donation, or onerous donation, or a gratuitous donation.

The trial court rendered judgment against plaintiff and sustained the peremptory exceptions. Plaintiff was granted a suspensive appeal from that judgment. This Court, in Succession of Vidrine, 377 So.2d 564 (La.App. 3 Cir. 1979), reversed the trial court’s judgment and remanded the case for trial on the merits.

The testamentary executrix and one of the intervenors then filed amending answers in which they plead that no consideration was given for the note sued upon, which constituted a bar to recovery by plaintiff.

A trial on the merits was held and the trial court rendered judgment against the plaintiff dismissing her action. Plaintiff was granted a devolutive appeal from the trial court’s judgment.

Plaintiff presents the following issues for our resolution:

(1) Whether the trial court was manifestly erroneous in finding that no consideration had been given for the promissory note sued upon;
(2) If so, was the note delivered by the maker to the plaintiff, and
(3) Whether the note sued upon was a valid donation of any kind.

FACTS

Andre Vidrine executed a promissory note for the sum of $14,000.00 on September 19, 1968, and named plaintiff as the payee thereon. The terms of the note provide that it is due “at death”, with interest at the rate of 6% per annum from October 1, 1968, until paid, together with 25% attorney’s fees for collection.

Andre Vidrine died on March 18, 1978, and his widow, Theolise Smith Vidrine, filed a petition for probate of a nuncupative testament by public act. Andre Vidrine’s testament was annexed to that petition.

Plaintiff instituted this action on May 24, 1978, alleging that the note was now due, payable and exigible, as the maker had died. She further alleged that amicable demand for payment had been made, but to no avail.

A trial on the merits of plaintiff’s action was held on April 2, 1980. The trial court rendered judgment on August 15, 1980 against plaintiff and in favor of the defendant succession, dismissing plaintiff’s action. Plaintiff was granted a devolutive appeal from that judgment.

LACK OF CONSIDERATION

Plaintiff contends that the trial court erred in finding that there was a failure of consideration for the note sued upon. Plaintiff argues that her father made the note in her favor because of the help she had given him around his farm during the time she lived there and after she got married.

The trial court found that plaintiff did only the regular and normal tasks that would be expected of a farm girl of a family of modest means and that there was a failure of consideration for the note.

The Louisiana Supreme Court, in Smith v. Louisiana Bank & Trust Company, 272 So.2d 678 (La.1973), noted the distinction between the defenses of “failure of consideration” and “want of consideration”. Smith stated on page 683 that:

“The defense of failure of consideration concedes that there was consideration for the instrument in its inception, but alleges that the consideration has wholly or partially ceased to exist. The defense of want of consideration, on the other hand, asserts that no consideration ever existed for the negotiable instrument.”

Appellees asserted both of the defenses in their amending answers. We conclude that what the trial court really found was that there was a “want of consideration” rather than a “failure of consideration”. Our conclusion is based on the reasons given by the trial court in its written opinion.

This Court, in Succession of Vidrine, supra, held that since the note was executed in 1968, this controversy is controlled by the “Negotiable Instruments Law”, LSA-R.S. 7:1 et seq., rather than the “Commercial Laws”, LSA-R.S. 10:1 et seq.

Plaintiff contends that there is a presumption that the note was issued for a valuable consideration.

Former LSA-R.S. 7:24 provided:

“§ 24. Presumption of consideration
Every negotiable instrument is deemed prima facie to have been issued for a valuable consideration; and every person whose signature appears thereon to have become a party thereto for value.”

See Bernard Brothers v. Dugas, 229 La. 181, 85 So.2d 257 (1956); Smith v. Louisiana Bank & Trust Company, supra; Straughter v. Holy Temple of Church of God and Christ, 150 So.2d 124 (La.App. 4 Cir. 1963), writ denied, 151 So.2d 693 (La.1963).

However, if during the trial of the case the defendant offers evidence which casts doubt upon the reality or the amount of the consideration, the presumption that the note was given for value is rebutted, and the burden shifts to the plaintiff to prove consideration by a preponderance of the evidence. Bernard Brothers v. Dugas, supra; Smith v. Louisiana Bank & Trust Company, supra; Cleveland Construction Corporation v. Thibodeaux, 307 So.2d 785 (La.App. 3 Cir. 1975); Alexander v. Occhipinti, 251 So.2d 188 (La.App. 4 Cir. 1971); Laborde v. Dauzat, 158 So.2d 637 (La.App. 3 Cir. 1963), writ denied, 245 La. 731, 160 So.2d 595 (1964).

Theolise Smith Vidrine was married to Andre Vidrine at the time of his death. She testified that she and Andre Vidrine had two children and that plaintiff was one of them. Further, it was her testimony that plaintiff never did anything out of the ordinary in helping her father around the family farm. She stated that plaintiff attended school and would help out with the housework. She also testified that Andre Vidrine had quit farming at the time plaintiff was born and that there was no need for the heavy work which plaintiff claims to have done around the farm.

Dudley Vidrine, one of the children of Andre Vidrine born during his first marriage, testified that, at all times during which plaintiff claims to have performed extraordinary tasks, he lived no more than a quarter of a mile from his father’s farm. Dudley stated that he farmed his father’s land and, while he did this, he performed the heavy work around the farm, i. e., mending fences, plowing, etc. He stated that he never saw plaintiff perform any extraordinary tasks for her father, even though he could observe any activity taking place on his father’s farm, while working in his own fields.

Harrison Smith testified on behalf of the defendant-succession. He is Theolise Smith Vidrine’s son-in-law, as he married one of her daughters from her first marriage. He too testified that all he saw plaintiff doing around the farm was some housework and that she did attend school.

Defendants introduced a portion of " a note written by plaintiff in which she asked for payment for having helped her mother take care of her father for a week and a-half. Plaintiff conceded that the note was written after she had purportedly received the note from her father. She explained her request for payment at that time by stating that she had doubts as to whether the note given her was valid and enforceable.

We find that the evidence offered by the defendant was sufficient to rebut the presumption that the note sued upon was given for value. Therefore, the burden shifted to plaintiff to prove consideration by a preponderance of the evidence.

Plaintiff testified that she performed the following tasks around the farm: feeding the animals; baling hay; making fences around the farm; shucking and grinding corn; taking care of her father and mother; and splitting wood for her parents. It was her testimony that, after her marriage, she and her husband continued to perform different services for her parents. However, plaintiff’s husband failed to testify at the trial of this matter. Plaintiff presented no other evidence of any consideration given by her for the note. Plaintiff gave contradictory testimony as to whether the note was given to her as a gift or as compensation for the services she had performed.

There was testimony to the effect, and the trial court opined, that Andre Vidrine made the note in favor of plaintiff because he was afraid that she would be unable to inherit anything from him, as she had been bom before he had married her mother.

It is our opinion that the record establishes that the trial court’s finding that there was a want of consideration for the note is not clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Company, 283 So.2d 716 (La.1973). Therefore, there is no need to address the issue of whether the note was actually delivered to plaintiff.

DONATION

Plaintiff has alleged, in the alternative, that the note was either a remunerative donation, an onerous donation, or a gratuitous donation. The written opinion of the trial court and its judgment reveal that the trial court apparently failed to consider these alternative pleas of plaintiff or found no merit whatsoever in them.

LSA-C.C. Article 1467 provides:

“Art. 1467. Methods of acquiring or disposing gratuitously
Art. 1467. Property can neither be acquired nor disposed of gratuitously, unless by donations inter vivos or mortis causa, made in the forms hereafter established.”

LSA-C.C. Article 1468 provides:

“Art. 1468. Donation inter vivos, definition
Art. 1468. A donation inter vivos (between living persons) is an act by which the donor divests himself, at present and irrevocably, of the thing given, in favor of the donee who accepts it.”

LSA-C.C. Article 1469 provides:

“Art. 1469. Donation mortis causa, definition
Art. 1469. A donation mortis causa (in prospect of death) is an act to take effect, when the donor shall no longer exist, by which he disposes of the whole or á part of his property, and which is revocable.”

There is no dispute with regard to the fact that the note cannot be considered a valid donation “mortis causa,” as it is not in the proper form for such a donation. Further, on July 31, 1973, Andre Vidrine executed a “nuncupative testament by public act” in which he specifically revoked all prior wills. The note sued upon was executed on September 18, 1968. Therefore, plaintiff must prove that the note constitutes a valid donation “inter vivos” to recover. There are three kinds of donations “inter vivos”: the donation purely gratuitous; the onerous donation, and the remunerative donation. See LSA-C.C. Article 1523.

Plaintiff first argues that the note constitutes either a remunerative donation or an onerous donation and that since these are not real donations, the rules peculiar to donations “inter vivos” are inapplicable.

A donation which is burdened with charges imposed on the donee is an onerous donation. A donation, the object of which is to recompense for services rendered, is a remunerative donation. See LSA-C.C. Article 1523.

LSA-C.C. Article 1526 provides:

“Art. 1526. Onerous and remunerative donations, when rules applicable
Art. 1526. In consequence, the rules peculiar to donations inter vivos do not apply to onerous and remunerative donations, except when the value of the object given exceeds by one-half that of the charges or of the services.”

The trial court, as noted above, found that plaintiff performed only the regular, normal tasks that would be expected of a farm girl of a family of modest means. The record clearly shows that the services performed by plaintiff, prior to the time that the note was executed, were nothing more than ordinary errands or chores that naturally arise from the parent-child relationship. Further, the record shows that she did no more after the note was executed. Plaintiff’s testimony that she performed extraordinary tasks such as building fences and hoeing fields was contradicted by three other witnesses, including her own mother. Further, the evidence indicates that, up until the time that plaintiff left home at the age of 15, her father fully supported her and she was able to attend school. There was testimony to the effect that her father continued to provide her with some food after she was married and that he lent her and her husband money on different occasions.

We conclude that the record establishes that the trial court’s finding that plaintiff performed only the regular, normal tasks of a farm girl of a family of modest means is not clearly wrong. Arceneaux v. Domingue, supra; Canter v. Koehring Company, supra.

Plaintiff contends that the note was given to her by her father to compensate her for services rendered to him. However, as noted above, the testimony of the other witnesses was to the effect that Andre Vid-rine had made the note because of his mistaken belief that plaintiff would be unable to inherit from him. There was testimony from two witnesses that they were shown the note by plaintiff’s father just a short time before his death. Plaintiff’s mother testified that the note was in her husband’s wallet when he died and that she later saw plaintiff remove the note from the wallet. It was plaintiff’s testimony that she received the note just a few days after it was made by her father.

We need make no finding of fact concerning the contradictory testimony set out above. Assuming arguendo, that the note was given to plaintiff for services rendered both before and after the note was made, we find that the amount of the note, $14,-000.00, far exceeds the value of the services plaintiff rendered to her father and that the value of the note exceeds by xk the value of those services. See LSA-C.C. Articles 1525 and 1526; Succession of Pierson, 339 So.2d 1337 (La.App. 3 Cir. 1976), writ denied, 342 So.2d 216, 217 (La.1977). Therefore, this donation is subject to the rules peculiar to donations “inter vivos”.

LSA-C.C. Article 1536 provides:

“Art. 1536. Donation of immovables or incorporeals, form required
Art. 1536. An act shall be passed before a notary public and two witnesses of every donation inter vivos of immovable property or incorporeal things, such as rents, credits, rights or actions, under the penalty of nullity.” (Emphasis provided.)

The mode of proof of a donation “inter vivos” of an incorporeal movable, such as a promissory note, is prescribed by LSA-C.C. Article 1536. McLaughlin v. Knox, 224 So.2d 491 (La.App. 1 Cir. 1969); Houston v. McCoy, 351 So.2d 829 (La.App. 1 Cir. 1977). There is no authentic proof of the inter vivos donation of the note in the action before us and, therefore, the transaction is a nullity.

For the above and foregoing reasons, the judgment of the district court is affirmed.

All costs of this appeal are assessed against plaintiff-appellant.

AFFIRMED.

      . Mrs. Paul J. Fontenot was referred to as Mary Lou throughout these proceedings.