author: KLIEBERT, Judge.

text:
    Helen GRIGSBY v. SCHWEGMANN BROTHERS GIANT SUPER MARKETS, INC.
    No. 5-241.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 11, 1982.
    Rehearing Denied Aug. 17, 1982:

      Elsie Halford, Metairie, for plaintiff-ap-pellee.
    Stephen M. Pizzo, Beard, Blue, Schmitt, Mathes, Koch & Williams, New Orleans, for defendant-appellant.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   KLIEBERT, Judge.

In a jury trial, the plaintiff, Helen F. Grigsby, 75 years of age, was awarded a judgment of $386,500.00 for general and special damages for injuries she sustained when she tripped and fell face down in the aisle at Schwegmann’s Supermarket in Harvey, Louisiana. Schwegmann appealed on liability and quantum. Grigsby answered the appeal seeking an increase in the quantum. We affirm the trial court.

The accident happened after the effective date of the amendment to Civil Code Article 2323. Therefore, the present comparative negligence doctrine, rather than the old contributory negligence doctrine, i.e., contributory negligence constitutes a complete bar to recovery, is applicable here. The jury’s verdict found Schwegmann guilty of negligence and the plaintiff free from fault, hence, no quantum reduction in the award was made for negligence on the part of the plaintiff.

The accident occurred on October 20,1980 when the plaintiff, Helen Grigsby, and her friend, Mayme Neeb, stopped to shop at Schwegmann’s. The ladies had a cart or carts and were walking through the aisles together, except at times, depending on the items selected, one might stop at one section of an aisle while the other was further down the same aisle. After stopping and picking up several items, the ladies arrived at aisle 13 with Mrs. Grigsby stopping by the pickle display and Mrs. Neeb stopping by the honey display, both located in aisle 13. After having selected a jar of Paramount Dill Pickles, Mrs. Grigsby testified that she tripped over a single box of merchandise left on the floor. She described the box as being about 12 X 14 inches. According to Mrs. Neeb, as she was walking back from the place where the honey was stacked to where the pickles were stacked, she saw Mrs. Grigsby on the floor, face down, with her left foot and leg lying over a box she described as being about the size of a legal pad and heavy as lead. Mrs. Grigsby and Mrs. Neeb both testified this was the only box on the floor. Both testified they did not see boxes stacked three feet high in the aisle at the point where Mrs. Grigsby fell.

Although all of the reports made by Schwegmann’s employee shortly after the accident described the incident as a customer tripping over a box left in the aisle, at the time of trial, Schwegmann disputes the plaintiff’s version of the accident insofar as it contends there was only a single box on the floor. It contends that at the time of the accident there was a row of boxes stacked on top of one another, standing over three feet high which ran the entire length of the aisle. Then, based on the fact there were many boxes stacked in the aisle, counsel argues that as a matter of law Schwegmann is not at fault and cites Meyers v. Schwegmann Bros. Giant Super Mkts., Inc., 284 So.2d 847 (La.App. 4th Cir. 1973) as authority supporting his contention. Counsel’s argument, however, is without merit. Although there is testimony indicating frozen food boxes were stacked three feet high in the aisle, there is no testimony that Mrs. Grigsby tripped and fell over a stack of frozen food boxes. Both Mrs. Grigsby and her friend, Mrs. Neeb, testified the plaintiff tripped over a single box left unattended on the floor. Even though there may be a conflict between the testimony of Schwegmann’s employees and that of the plaintiff and Mrs. Neeb as to the existence of stacked frozen food boxes in the aisle, the jury resolved the cause of the tripping in favor of Mrs. Grigsby. We cannot say the jury committed manifest error in doing so.

Under the standard of review established in Canter v. Koebring, 283 So.2d 716 (La.1973), when there is evidence before the trier of fact which upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the findings of the trier of the facts, the reviewing court should not disturb this factual finding in the absence of manifest error. Here, there is the clear and convincing testimony of the plaintiff and of Mrs. Neeb that plaintiff tripped and fell over a single box on the floor. This is supported by Schwegmann’s accident report. On the other hand, there are substantial discrepancies in the testimony of Schwegmann’s employees as to the time the accident occurred, as to the condition of the floor following the accident, i.e., with or without broken glass and pickles on the floor and as to the length of time frozen food could sit in the aisle unrefrigerated without thawing out. For whatever reasons the jury elected to accept the testimony of Mrs. Grigsby and her friend over that of Schwegmann’s employees is unknown to us, but as the initial trier of the facts, it was their prerogative to make the selection. From our review of the record, we would make the same selection.

Following the accident, Mrs. Grigsby was taken to Jo-Ellen Smith Hospital where x-rays revealed severe orthopedic problems. Dr. Williams, an orthopedist, testified that her arm bones at each shoulder joint level were shattered. Additionally, both arms were black and blue and swollen. Her face and left leg were also bruised and discolored. She went from Jo-Ellen Smith Hospital to Baptist Hospital to Coliseum Medical Center (a convalescent hospital) where she stayed until February 14th, 1981. When she left there, her shoulder had little mobility because the humeral head healed in an abnormal position. Her left arm had mobility, however, she could not lift it over her head nor could she bring it down to the side of her body. According to Dr. Williams, greater mobility might be obtained if two additional surgical procedures were performed and this was followed by prolonged physical therapy. The plaintiff testified she would not submit to additional surgery because she could not take more pain.

Prior to the accident, plaintiff was an active individual who drove her own car, lived alone, maintained her own home and was capable of visiting friends and enjoying long trips. Now she is virtually helpless, requiring constant care, including the performance of routine activities of daily living, such as, combing her hair, dressing, cooking, etc. Additionally, Dr. Smith a psychiatrist, testified that as a result of the fall Mrs. Grigsby had a fear of the unknown and a fear that something would happen to her at home if she lived alone.

Mr. Phillip Clesi, an actuary, using Mrs. Grigsby’s stated age of 75 years, established her to have, according to the life expectancy tables, a life expectancy of 10.3 years. Then, using the present wage scale paid to her sitters, i.e., $3.35 per hour, he computed that it would require $300,345.00 for the care and attention Mrs. Grigsby needed for the remainder of her life.

In answer to a specific interrogatory as to the total amount of plaintiff’s damages, the jury responded as follows:

Past pain and suffering $ 36,500.00
Future pain and suffering 75,000.00
Past medical, nursing, hospital
and home care expenses 25,000.00
Future medical, nursing,
hospital and home care
expenses 250.000.00
Total $386,500.00

Plaintiff argues for a higher award for past due and future pain and suffering, for an increase in past due medicals of $10,-000.00 and for an increase in future medical care and costs to $300,345.00. Schweg-mann, on the other hand, argues that the amounts fixed by the jury were excessive and further should be reduced because of plaintiff’s negligence. The medical bills and expenses were admitted in evidence under a stipulation that if Mrs. Grigsby testified she would have identified each bill and each check, hence, the bills were admitted into evidence in globo. There was no stipulation, however, that the bills and expenses were actually incurred by Mrs. Grigsby as a result of the accident.

The jury was presented with uncon-tradicted testimony regarding the pain and suffering of Mrs. Grigsby as well as her condition at the time of trial. They had the opportunity to listen to the “live” witnesses and observe the plaintiff for several days. They were in a much better position to evaluate the plaintiff’s injuries than we are. Also, under the standard of appellate review set by the Supreme Court in Reck v. Stevens, 373 So.2d 498 (La.1979), before changing the jury’s award, we must first find there was a clear abuse of their “much discretion” in fixing an award. We are not at liberty to speculate on the jury’s motivation in arriving at the individual items which made up the total award; nor can we, after a careful review of the record, say the total award was inadequate or excessive. Rather, we believe it was a reasonable award and well within the jury’s discretion.

For the reasons stated, therefore, we affirm the trial court’s judgment. All costs of appeal to be borne by the appellant.

AFFIRMED.


source: Caselaw Access Project

author: CHEHARDY, Judge.

license: Public Domain

text:
    Arleen Newitt, wife of/and Bruce NEWITT v. HOSPITAL CORPORATION OF LOUISIANA, d/b/a Lakeside Hospital For Women.
    No. 5-38.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 8, 1982.
    Rehearing Denied Aug. 17, 1982.
    Manard, Schoenberger & Ryan, Robert L. Manard, III, New Orleans, for plaintiffs-appellants.

      René A. Curry, Jr., New Orleans, for defendant-appellee.
    Before CHEHARDY, KLIEBERT and CURRAULT, JJ.
   CHEHARDY, Judge.

This is a suit for damages instituted by Arleen Newitt, wife of/and Bruce Newitt against Hospital Corporation of Louisiana, doing business as Lakeside Hospital for Women, resulting from injuries sustained by plaintiff wife at defendant institution. Following trial judgment was rendered in favor of plaintiffs in the sum of $1,500. Plaintiff’s have appealed.

These facts are not in dispute. On April 18, 1979, Mrs. Newitt (hereinafter referred to as plaintiff) was admitted to Lakeside Hospital by Dr. Paul Fuselier, her personal physician. She was allergic to Demerol and this was duly noted on her medical chart. In spite of this fact plaintiff was administered 50 milligrams of Demerol on April 22, which triggered a phobic reaction lasting somewhat less than 12 hours. At a later hospitalization in August 1980, she complained of an improperly administered Vis-taril shot. She also complained of employee laxity in answering her requests for aid promptly.

Plaintiff later consulted Dr. C. B. Scrig-nar, a psychiatrist for a phobia of hospitals, allegedly resulting from the negligently administered Demerol injection.

The award of $1,500 for pain, suffering, mental anguish and medical costs was based solely on the Demerol incident. The trial judge failed to find actionable negligence on the part of the hospital in regard to the Vistaril shot and rejected plaintiff’s claim for a phobia or unusual irrational fear of hospitalization.

In this court appellants contend the trial court erred in failing to grant recovery for the alleged phobia of hospitals and for past and future medical bills in connection therewith. In support of their position, plaintiffs rely on the testimony of plaintiff wife, four lay witnesses, and the two medical experts, her treating physician Dr. Fuselier (who did not testify, but whose deposition is in evidence), and Dr. Scrignar, the psychiatrist.

The only issue for our consideration therefore is the alleged phobia of hospitals. In connection therewith we have carefully examined the testimony of Mrs. Newitt, her lay witnesses and the two medical experts.

Plaintiff testified she had been hospitalized on seven occasions prior to the incident in suit and had consulted numerous doctors for a variety of ailments. Although she expressed a lack of confidence in some doctors, plaintiff had great trust in Dr. Fuselier, her gynecologist. She is knowledgeable about hospital procedures having worked in the x-ray department of another hospital where she observed patients who had died following injection of drugs to which they were allergic. She herself had almost died on the operating table during a prior hospitalization.

In spite of these experiences plaintiff claims she did not have a fear of hospitals until after the Demerol episode. Even though she was still running a temperature and all of the tests had not been administered, plaintiff asked to be released the next day.

Although Dr. Fuselier suggested further hospitalization the following month, because of her fear, plaintiff delayed hospitalization until July 1979 and returned to Lakeside only because this is where Fuselier practices. She also went back to the hospital briefly in August 1980 and is aware that her physical problems are such that she will require future hospitalization. If Fuselier recommends surgery she will return.

Plaintiff’s visits with Dr. Scrignar were unsatisfactory. She found him no help at all. After four visits she discontinued his services. Part of the reason was that he had moved his offices and she claimed an inability to find sitters. However, two of her lay witnesses (her father, who is retired, and a close neighbor) both offered to sit at any time. Dr. Scrignar had suggested hypnosis but since her fears were related to human error, and not imagined, she was not receptive to the suggestion.

Dr. Fuselier indicated he first saw plaintiff in January 1978. She had a long-standing medical problem and had consulted and been treated by a number of physicians with poor results. When plaintiff was admitted to Lakeside in April 1979 he noted on her chart she was allergic to Demerol, and when she was erroneously given the injection she experienced all of the usual reactions which patients demonstrate when they are allergic to the medication, rashes, heaves, welts, difficulty breathing, nausea, vomiting, tremors and agitation. Her unfortunate experience played a part in her early discharge the following day and her subsequent fear of hospitals.

The following month she was advised further hospitalization would be necessary if her condition did not respond to conservative treatment. She was rehospitalized at Lakeside in July 1979, was discharged a week later and was admitted again in August 1980. Because of past experiences plaintiff was reluctant to be hospitalized. Fuselier indicated plaintiff’s greater reluctance than usual may be due to the unusual amount of surgery she has undergone previously.

Dr. Scrignar, a clinical proffessor of psychiatry specializing in phobic reaction, testified: He first saw Mrs. Newitt on June 10, 1980, and on three subsequent occasions, June 16, 23 and July 30, 1980; he obtained her medical history involving a partial hysterectomy in 1977 with a rocky post-operative course including administration of the Last Rites. This set the stage for her anxiety about doctors, hospitals, and surgical procedures. However, no phobic components were present at that time because in January 1978 she was again hospitalized and had no phobic components after that operation. In January 1979 she consulted a doctor for abdominal swelling and pain which involved conservative treatment and no signs or symptoms of phobia were present at that point.

In April 1979 in addition to an allergic reaction to a Demerol shot she had a panic attack, a dysphoric or uncomfortable feeling and thought she was going to faint, go out of control, or that she was going to die. He concluded the Demerol episode was responsible for her anxiety reaction and triggered or activated the phobia she now suffers. He diagnosed her condition as a post-traumatic stress disorder.

The doctor concluded Mrs. Newitt had a very severe phobic reaction to hospitals, injections, medical orders and doctors. This phobia impinges on her access to treatment because she has a known physical problem, abdominal adhesions, as a consequence of past hospitalizations which may require hospitalization in the future. He concluded if she needed and refused an emergency operation it would require strong arm measures, a lot of medication and sedation or possible interdiction if she refuses to go. In his opinion Mrs. Newitt would require a minimum of one year of psychiatric treatment on a once-a-week basis to cure her phobia.

The testimony of the lay witness on the subject of plaintiff’s alleged phobia is brief and unconvincing.

The trial judge concluded Dr. Fuselier’s answers were general and did not indicate any unusual situation as regards plaintiff and hospitalization, and while Dr. Scrig-nar’s testimony was excellent and intelligent about phobias generally, his testimony as to plaintiff’s phobia was markedly inconsistent with the facts as indicated by plaintiff. His testimony that if plaintiff needed an emergency operation because of a life or death situation and refused such operation, he would have to have her interdicted to have her return to the hospital, is a hypothesis. Actually on two occasions after the Demerol incident, which did not involve life-threatening situations, plaintiff did return to Lakeside.

Plaintiff’s testimony did not impress the trial court, nor does it impress us, that plaintiff was phobic or irrational on the prospect of any future hospitalizations.

Appellant contends we should accept the uncontradicted medical evidence as true. We do not agree.

After weighing and evaluating all of the medical and lay testimony the trial judge may accept or reject the opinion expressed by any medical expert. Guidry v. Davis, 382 So.2d 250 (La.App. 3d Cir. 1980); Monette v. Aetna Cas. & Sur. Co., 352 So.2d 423 (La.App. 3d Cir. 1977); Matirne v. Wilson, 336 So.2d 960 (La.App. 4th Cir. 1976). As it is the duty of the trial judge to seek the truth he should evaluate the expert testimony according to the same rules applicable to other witnesses. Necaise, Inc. v. Vicknair, 391 So.2d 1347 (La.App. 4th Cir. 1980); Davenport v. McCullough Services Baroid Div., 388 So.2d 453 (La.App. 2d Cir. 1980); Jennings v. Halliburton Co., 346 So.2d 268 (La.App. 4th Cir. 1977). The trial judge is not bound by expert testimony. He may substitute his own common sense and judgment for that of an expert witness where, in the opinion of the trier of fact, such substitution appears warranted by the evidence as a whole. Smith v. Andrepont, 378 So.2d 479 (La.App. 1st Cir. 1979); Galloway v. Gaspard, 340 So.2d 579 (La.App. 1st Cir. 1976).

In the instant case we are satisfied, as was the trial court, that plaintiff has failed to prove a phobia of hospitals attributable to the negligently administered Demerol shot, and this is true even after careful consideration of the expert testimony. If such a condition had been proven, it is unlikely that psychiatric treatment would have been accepted by plaintiff. It is clear from her testimony she placed no confidence in psychiatric treatment and would be unlikely to attend the weekly, one-year minimum treatment at $75 per hour recommended by her psychiatrist.

The trial court was correct in rejecting plaintiff’s claims for an additional award for her alleged phobia and medical expenses in connection therewith.

For the reasons assigned the judgment appealed from is affirmed.

AFFIRMED.

      . Appellants do not contest the $1,500 award for the Demerol shot and their brief states that the “award for the physical reaction caused by the allergic reaction to the Demerol shot was fair”.


author: SCHOTT, Judge. PER CURIAM.

text:
    Arlene LIGHTFOOT v. J. RAY McDERMOTT & COMPANY and Crawford and Company.
    No. 13103.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 8, 1982.
    Rehearing Denied Aug. 3, 1982.

      Walter J. Rippas, St. Martinville, for plaintiff-appellant.
    John T. Nesser, III, Henry A. King, T. A., Milling, Benson, Woodward, Hillyer, Pier-son & Miller, New Orleans, for defendant-appellee (McDermott, Inc.) (formerly J. Ray McDermott).
    Before REDMANN, SCHOTT and KLEES, JJ.
   SCHOTT, Judge.

Plaintiff has appealed from a dismissal of her suit for workers’ compensation benefits beyond the two month period in which she was paid benefits by her employer. The issue is whether the trial court’s conclusion is supported by the record.

Plaintiff, employed as a welder, was injured on July 25, 1978, when a “come along” fell on her back. She reported to the employer’s first aid station for treatment, returned to work about a half hour later, and continued working for about two more hours. The next day she worked ten hours. Supervisory personnel testified that she manifested no injury at this time.

On the second evening following her accident plaintiff sought treatment at a hospital in Franklin and on July 28 consulted her physician, Dr. Vela. He found spasm in her right lumbar spine, treated her with medication and heat applications, and, on August 18, referred her to a neurosurgeon, Dr. John D. Jackson.

On September 5 she was examined by Dr. P. H. Rhymes, an orthopedist, at the employer’s behest. He found objective evidence of muscle damage to the lumbar back and prescribed medication and a brace. When he last saw her on September 13 she was still having objective symptoms and was not cleared for work. She was told to return in ten days but did not.

On September 25, 1978, plaintiff was examined by Dr. Jackson. Based on his examination, particularly his finding that the Achilles reflexes were decreased bilaterally, he felt that she had a bulging disc or a contused nerve root. He saw her again on October 16 and because she continued to have numbness and pain in both feet he felt that she should be hospitalized for conservative treatment.

Defendant’s claims examiner for its workers’ compensation department testified that she discontinued compensation payments on September 27 based on the report from Drs. Rhymes and Soboloff that plaintiff was no longer disabled. However, plaintiff was not seen by Dr. Soboloff until November 6.

Dr. Soboloff, an orthopedist, after exam-. ining plaintiff found no objective symptoms and he concluded his report to defendant with the following:

“... We therefore, see nothing of an orthopedic nature that would indicate a need for continued orthopedic treatment and no contra-indication to her return to a regular work status. If there is doubt about her having any pressure on the nerve root, then we would suggest an EMG for the right lower extremity to see if there truly is any nerve root irritation.”

However, in his testimony Dr. Soboloff made the following statement:

“... And I came to the conclusion that there were no objective orthopedic findings but because of the persistence of her complaints I felt she should have the benefits of an EMG, an electrical test, and see if there was any evidence of nerve root irritation.”

When asked if the EMG study was performed on plaintiff, Dr. Soboloff testified that one was performed at Charity Hospital in May, 1980, and it revealed no abnormalities. Defendant sent plaintiff to Dr. William A. Martin, a neurosurgeon, who conducted electro-myogram diagnostic studies on her in December, 1978. This revealed intermittent muscle spasm activity in her paraspinous muscle. Although he reported to defendant that the studies were normal, with no evidence of radiculopathy, neuropa-thy or myopathy, he testified that such a muscle spasm “usually indicates there has been a strain or some other condition causing the muscles to be in spasm and tighten up.”

Dr. Soboloff, when asked what his recommendation to plaintiff would have been, had he been aware of the objective finding of muscle spasm by Dr. Martin, replied that he would not have allowed her to return to work but would have recommended a period of some three months of physical therapy and medication.

Dr. Jackson saw plaintiff again on February 8, 1979, and July 2, 1979. He was convinced that plaintiff had a bulging disc and recommended that a myelogram be performed followed by a discogram in the event that the myelogram was negative. He was quite adamant in his testimony that plaintiff was in need of this further testing and faulted defendant for not providing it. However, on November 13, 1979, a myelo-gram was performed on plaintiff at Charity Hospital and the neurosurgeon reported that there was no ruptured lumbar disc and no objective signs to substantiate plaintiff’s claim of back pain.

Plaintiff would have us conclude that she is entitled to compensation benefits for total permanent disability based primarily on her own testimony and that of Dr. Jackson. Apparently the trial judge did not believe plaintiff whose credibility was severely damaged when she admitted having been convicted of stabbing her sister to death ten years previously and injuring her back in that altercation after she initially denied previous convictions or back trouble. Furthermore, she applied for a job with a company nine days after her accident on July 25 and in her employment application she stated that she had no previous accidents or injuries to her back. As for Dr. Jackson, the trial judge apparently assigned little weight to his testimony, and this conclusion is supported by the doctor’s deposition which is in the record. It reveals that Dr. Jackson was far from an objective medical expert but he behaved more like an advocate for plaintiff’s position as he argued her case throughout and was highly critical of defendant’s handling of her claim.

Nevertheless, even though we reject plaintiff’s testimony as incredible and accept the trial judge’s negative evaluation of Dr. Jackson’s testimony, we are constrained to amend the judgment because of the testimony of Doctors Soboloff and Martin. These were defendant’s witnesses and it is clear from their testimony that as of December 6, 1978, when Dr. Martin performed his electromyogram plaintiff was still disabled and, according to Dr. Soboloff, should have been provided with physical therapy and medication over a three-month period, during which he would expect plaintiff’s symptoms to subside. Plaintiff’s lack of credibility does not serve to preclude her from compensation benefits because defendant, by paying her compensation benefits and medical expenses for 60 days, acknowledged that she was hurt on the job and was disabled for at least that period of time. Defendant declined to pay further benefits because of the reports it had from Doctors Rhymes, Soboloff and Martin. While the reports from Doctors Soboloff and Martin supported defendant’s decision their combined testimony made it clear that their reports were incomplete and misleading and that plaintiff was indeed still disabled as of December 6.

It is likewise clear from the record that the trial judge did not attach any significance to Dr. Martin’s finding of muscle spasm on December 6, 1978, because of plaintiff’s admission that some three weeks previously, i.e., between the date she saw Dr. Soboloff and the date the electromyo-gram was conducted she was in an automobile accident, in which she sustained a fractured clavicle, three broken ribs, and injury to her cervical spine. The trial judge apparently concluded as a fact that the muscle spasm found by Dr. Martin was attributed to this automobile accident rather than the work accident sued on. The question is whether this finding was manifestly erroneous.

The physicians who were asked hypothetically whether such an accident could have caused damage to the lumbar spine were quite vague in their replies, stating in effect that it depended on which ribs were broken but acknowledged that the trauma which produced such severe results could have produced damage to the low back as well. We have concluded that the trial judge was clearly wrong in his conclusion for two reasons. First, the clear inference from the little testimony in the record concerning the automobile accident is that plaintiff’s injuries from this accident were to the top of her cervical spine in the vicinity of the clavicle and that the broken ribs were likewise in this area of her body. However, more important is the law that the burden of proof that plaintiff’s muscle spasm in her low back was attributed to this intervening cause was on defendant and not on plaintiff. Adams v. New Orleans Public Service, Inc., 418 So.2d 485 (La.1981), Clofer v. Pratt-Farnsworth, Inc., 407 So.2d 1295 (La.App. 4th Cir. 1982). Defendant’s failure to produce medical reports concerning the automobile accident which might have connected the accident with the spasm in her low back precludes it from exoneration from liability based on the theory of an intervening cause. Thus, the trial court erred in reaching the conclusion that plaintiff’s back condition as of December 6 was not caused by her on the job accident of July 25.

Because of our conclusion that the trial judge properly rejected the testimony of plaintiff as well as Dr. Jackson, but failed to properly consider the testimony of Doctors Soboloff and Martin, we have concluded that plaintiff is entitled to the workers’ compensation benefits for temporary total disability until Dr. Soboloff’s hypothetical three month period of treatment which would have ended on March 6, 1979.

The only remaining issue is plaintiff’s claim for penalties and attorney fees against defendant. We are convinced that she is not entitled to this relief because defendant was justified in relying upon the reports it had from Doctors Rhymes, Sobo-loff and Martin, and was equally justified in disbelieving the reports of Dr. Jackson.

Accordingly, the judgment appealed from is reversed and set aside and there is judgment in favor of plaintiff, Arlene Lightfoot, and against defendant, J. Ray McDermott & Company, awarding her workers’ compensation benefits in the amount of $151.34 per week from September 27, 1978, until March 6, 1979, with legal interest on each payment from due date until paid, and for all costs.

REVERSED AND RENDERED.

ON REHEARING

PER CURIAM.

In its application for rehearing defendant argues that our award of $151.34 per week to plaintiff is in excess of the maximum provided by R.S. 23:1202. Because the record does not contain any evidence to enable us to compute the maximum amount allowed we amend our decree to award weekly compensation benefits for the period from September 27, 1978, until March 6, 1979, with interest from due date until paid in the amount of $151.34 or 66% per cent of the average weekly wage paid in all employment subject to the Louisiana Employment Security Law, as determined by the Administrator of the Division of Employment Security, whichever is lower. In all other respects the application for rehearing is denied.


author: GARRISON, Judge.

text:
    Willie WILLIAMS v. PUBLIC GRAIN ELEVATOR OF NEW ORLEANS, INC. and Fireman’s Fund Insurance Company.
    No. 13109.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 8, 1982.
    Rehearing Denied Aug. 19, 1982.
    M. H. Gertler, New Orleans, for plaintiff-appellant.
    Christovich & Kearney, Robert E. Peyton, New Orleans, for defendants-appellees.
    Before GULOTTA, GARRISON and BARRY, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court granting defendants’ motion for summary judgment on the basis of prescription. Plaintiff has appealed.

In the instant appeal, plaintiff worked for Public Grain and its predecessor from 1952 through January 31, 1980. On January 31, plaintiff was forced to quit work as a result of a “shortness of breath and weakness.” On May 21, 1981, plaintiff was examined by a specialist in pulmonary diseases, Dr. Morton Brown, and was informed that he had pneumoconiosis, an occupational disease caused by exposure to grain dust and pesticides. On August 12, 1981, plaintiff filed this suit for workmen’s compensation, which was dismissed via summary judgment on the basis of prescription under the occupational disease statute, R.S. 23:1031.1.

R.S. 23:1031.1, as amended by Acts 1980, No. 666, provides as follows:

“All claims for disability arising from an
occupational disease are barred unless the
employee files a claim with his employer
within six months of the date that:
(A) The disease manifested itself.
(B) The employee is disabled from working as a result of the disease.
(C) The employee knows or has reasonable grounds to believe that the disease is occupationally related.”

Defendants argue that plaintiff “kn(ew) or ha(d) reasonable grounds to believe that his disease (was) occupationally related” because of (1) the existence of the symptoms, short-windedness and weakness, and (2) plaintiff, along with all of his coworkers, complained to the management of Public Grain Elevator of New Orleans, Inc. when management failed to provide the workers with protective masks. Plaintiff has been receiving medical treatment for some time before Dr. Brown’s diagnosis of May 21, 1981, but he had not been diagnosed as having an occupational disease.

At trial, proof of the connexity between a disease and the place of employment is shown by both fact witnesses and expert testimony. Needless to say, not all diseases suffered by working individuals are occupational diseases and the diagnosis of a disease as an occupational disease requires expert testimony. No court in this land would find an “occupational disease” solely on the basis of lay testimony, yet defendants argue that a layman should be able to diagnose his illness as an occupational disease for purposes of prescription. We do not agree.

In the instant appeal, we must conclude that plaintiff “kn(ew) or ha(d) reasonable grounds to believe that the disease (was) occupationally related” on May 21, 1981, only when examined by the medical specialist, Dr. Brown, and not before.

For the reasons discussed, the judgment of the district court is reversed and the case is remanded for further proceedings.

REVERSED AND REMANDED.


author: BYRNES, Judge.

text:
    Max SIMON v. John H. KNIPMEYER and Allstate Insurance Co.
    No. 12811.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 8, 1982.
    Rehearing Denied Aug. 19, 1982.
    Max Simon, in pro. per.
    Steven M. Lozes, Felicien P. Lozes, Drury & Lozes, New Orleans, for defendants-ap-pellees.
    Before WARD, WILLIAMS and BYRNES, JJ.
   BYRNES, Judge.

The appellant did not make an appearance when this case was regularly called for argument. He did show up later during that day, but he has not filed any briefs in connection with this case. The appellee has submitted the case and moved that the judgment be affirmed.

Since the appellant has not pointed out any error in the judgment of the lower court, that judgment may be affirmed under the presumption that it is correct. Delpit v. Delpit, 1957, 232 La. 539, 94 So.2d 660; Perkins et al. v. Buchler et al., 1953, 223 La. 179, 65 So.2d 130; Succession of Bailey, 1957, 232 La. 824, 95 So.2d 326.

We have examined the record carefully and find no error patent on the face thereof.

For the reasons assigned, the judgment appealed from is affirmed, appellant to pay all costs.

AFFIRMED.


author: WILLIAMS, Judge. WARD, Judge,

text:
    Penny Acton, wife of Gabriel BURBANO v. Gabriel BURBANO.
    No. 12985.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 8, 1982.
    Rehearing Denied Aug. 19, 1982.

      Floyd J. Reed, Reed & Reed, New Orleans, for plaintiff-appellee.
    Malcolm B. Robinson, Jr., Metairie, for defendant-appellant.
    Before WARD, BYRNES and WILLIAMS, JJ.
   WILLIAMS, Judge.

The plaintiff Penny Acton Burbano and the defendant Gabriel Burbano were married in 1959. Two children were born of the marriage. The plaintiff was awarded a divorce from defendant in 1972. The defendant was ordered to pay $150.00 per month for alimony and $150.00 per month for child support. The defendant was later ordered to pay an additional $50.00 per month for child support. He has had difficulty keeping current with these payments, and the plaintiff has had to resort to court action to compel defendant to pay. Prior to the rule involved herein, the last proceeding brought against the defendant by the plaintiff was in November, 1975.

On November 1, 1980, plaintiff filed a rule to make past due payments executory. She contended that the damages should be calculated from November 7, 1975 (the last executory judgment) to February 1, 1981 (the last due date prior to trial). The defendant filed a motion to eliminate alimony and support payments.

The trial judge rendered judgment in favor of plaintiff and awarded her attorneys’ fees. It is from this judgment that the defendant appeals, citing five errors as the basis therefor. These errors are: (1) the trial court’s overruling the defendant’s exception of prescription; (2) the trial court’s failure to consider the agreement whereby the plaintiff and the defendant entered into an agreement to waive child support while the children lived with their father; (3) awarding attorneys’ fees; (4) refusal of the trial court to allow a witness to consult notes; and (5) refusal of the trial court to entertain evidence to indicate the amount of money spent by the defendant on his children while they resided with him. PRESCRIPTION

The defendant contends that the trial court erred in not dismissing the plaintiff’s action on the basis of prescription.

Louisiana Civil Code Article 3538 states in pertinent part:

“The following actions are prescribed by three years:
That for arrearages of rent charge, annuities and alimony, or for the hire of movables and immovables.”

This three year prescriptive period also has been applied to child support payments. Arabie v. Arabie, 230 La. 1036, 89 So.2d 890 (1956). It has been held that prescription is interrupted when any payments are made within the period for which the alimony (or support) is sought. Reed v. Reed, 399 So.2d 1255, 1258 (La.App. 4th Cir. 1981); Morasco v. Metcalf, 381 So.2d 901 (La.App. 3d Cir. 1980).

Evidence adduced at trial showed that the defendant did make irregular payments between 1975 and the time that the action was brought. Although the plaintiff is seeking past due support and alimony for a period greater than three years, because the defendant has made some payments since the last judgment, prescription has been interrupted and does not bar the action.

AGREEMENT TO WAIVE CHILD SUPPORT

The defendant argues that the plaintiff agreed to waive child support during any time that the children were living with him, and that she also specifically had waived a portion of the support payments during an eight-month period in which one child had lived with the father.

Court ordered child support cannot be modified or altered absent a judgment of the court. Eg. Dauzat v. Dauzat, 391 So.2d 60 (La.App. 3d Cir. 1980). The Louisiana Supreme Court has held, however, that divorced parents may agree to suspend payments if it would not “interrupt the child’s maintenance or upbringing or otherwise work to his detriment.” Dubroc v. Dubroc, 388 So.2d 377 (La.1980).

The plaintiff testified at trial that during an eight month period in 1979, her son lived with his father and she told the defendant that he could deduct $200.00 a month from his child support payments. In brief to this court, the plaintiff claims that she waived the support only because she believed that she was under an obligation to do so. She did not, however, testify to such effect at trial, and no evidence is contained in the record to support her contention that her agreement to waive child support was made without a correct appreciation of the law. On the basis of her testimony, therefore, we can presume only that the plaintiff knowingly waived her right to child support during that eight-month period. This support amounts to $1,600.00.

At trial, the plaintiff unequivocally denied that she had entered into any agreement with the defendant to suspend support payments at any of the other times that one or both of the children lived with their father. Although, based upon the record, it would be difficult for us to decide that the plaintiff did waive support, we cannot find manifest error on the part of the trial court in its decision. Arceneaux v. Dominique, 365 So.2d 1330 (La.1978).

Finally, the plaintiff has argued in brief that the award for alimony and child support was in globo and, therefore, could not be reduced notwithstanding any agreements to that effect. This argument is totally without merit because the basic premise is wrong: the original judgment for child support and alimony was not an in globo award. The award specifically delineated the amount of money to be paid for support and for alimony. Furthermore, even though the judgment provides for the payment of one sum for both children, the plaintiff could nevertheless agree to reduce it proportionately as was done in Dubroc, supra.

ATTORNEYS’ FEES

La.R.S. 9:305 provides:

“When the court renders judgment in an action to make past due alimony or child support executory, or in an action to enforce child visitation rights except for good cause, the court shall award attorney fees and costs to the prevailing party.”

It is clear that plaintiff is entitled to attorneys’ fees. The trial court awarded the plaintiff $4,408.00, which represents a little over one-third of the total amount awarded to the plaintiff. The plaintiff contends that the amount awarded is reasonable in light of the work done by her attorney. The plaintiff contends that her counsel: (1) made two court appearances for a rule, which was continued both times; (2) attended a deposition; (3) appeared at trial; (4)held conferences with plaintiff; and (5) prepared for appeal.

Although as the plaintiff contends that this amount is reasonable and points out in support of this argument that there has been an award of attorneys’ fees in the amount of one-third of support/alimony recovered, such an award was made when the amount of support/alimony was considerably lower than in the instant case. In Thompson v. Courville, 372 So.2d 579 (La.App. 3d Cir. 1979), relied upon by the plaintiff, attorneys’ fees that were one-third of the judgment were recovered. In Thompson, however, the "recovered alimony/child support was only $2,700.00 and the attorneys’ fees were $900.00. In the instant case, an award of one-third of the judgment is not supported by the record. Based upon the work actually done by counsel both at trial and on appeal for the plaintiff, we find that an award of $2,000.00 is fair.

REFUSAL OF TRIAL COURT TO ALLOW WITNESS TO CONSULT NOTES

and

REFUSAL OF TRIAL COURT TO ACCEPT EVIDENCE OF MONEY SPENT ON CHILDREN BY DEFENDANT

The defendant claims that the trial court erred in refusing to allow defendant’s present wife to consult her notes in order to determine the exact dates on which the children stayed with him. He also alleges that the trial court was in error in not allowing him to testify and to offer into evidence proof of the amount of money he has spent on the children.

No error was committed by the trial court. Numerous witnesses, including the defendant and the children of the marriage, testified at length as to the amount of time that the children lived with the father. The defendant was allowed to make a proffer of his expenditures on the children during the time that they lived with him. Such payments cannot be considered as a set-off to court-awarded support absent an agreement between the parties. Furthermore, even had the trial court considered this evidence, it would not have been in error to rule that such an agreement did not exist. It is reasonable, under any circumstances, to assume that a parent with whom a child is living will incur expenses in maintaining the child. The fact that the defendant spent money in supporting the children while they stayed with him is not conclusive.

CREDIT

At the time of the property settlement, the plaintiff gave the defendant a $5,000.00 note in exchange for allowing her to keep certain community property. The court allowed the defendant to deduct $150.00 a month from his alimony payments to his wife. The trial court did not mention any credit in its reasons for judgment, although it appears that in its calculation, the defendant was awarded a credit of $1,850.00, the amount outstanding on the note. The plaintiff admitted at trial that she still owed this credit and does not dispute it in brief. The defendant shall be allowed to keep this credit.

IT IS ORDERED, ADJUDGED, AND DECREED THAT the amount of past due child support awarded to the plaintiff be reduced by $1,600.00, pursuant to the agreement between the parties, to $11,625.00.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED THAT the attorneys’ fees awarded in the amount of $4,408.20 be reduced to $2,000.00.

AFFIRMED IN PART.

AMENDED IN PART.

WARD, J., concurs with written reasons.

WARD, Judge,

concurring.

I disagree with that part of the majority decision that reduced the Trial Judge’s award of attorney’s fees. I do not believe the trial record supports either that part of the majority decision that awarded $2,000.00 or the Trial Judge’s award of $4,408.00. There are simply no factual findings in the record either of the number of hours devoted to the case or of a reasonable hourly compensation to support the majority or the Trial Judge. However, since counsel did not support his claim for attorney’s fees in the Trial Court, I concur in the result.

      . The judgment also terminated child support, because the children of the marriage had reached majority.


author: EDWARDS, Judge.

text:
    STATE of Louisiana, Ex rel. William J. GUSTE, Jr., Attorney General, and Louisiana Department of Justice Office of Employment Security v. The AETNA CASUALTY AND SURETY COMPANY.
    No. 14886.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.
    Stephen J. Caire, Asst. Atty. Gen., New Orleans, for plaintiff-appellee William J. Guste, Jr., Atty. Gen., State of La. and Louisiana Dept, of Justice Office of Employment Sec.
    Ray C. Dawson, Baton Rouge, for defendant-appellant The Aetna Cas. and Sur. Co.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   EDWARDS, Judge.

The Aetna Casualty and Surety Company, hereinafter Aetna, appeals a summary judgment in favor of plaintiff, the State of Louisiana, ex rel. William J. Guste, Jr., Attorney General, and the Office of Employment Security, hereinafter collectively OES. We affirm as amended.

On September 15, 1970, OES purchased from Aetna a public employees blanket bond, number 48 F 387 BCA. Said bond, with a limit of liability of $15,000.00, was to protect OES against

“Loss caused to the Insured through the failure of any of the Employees, acting alone or in collusion with others, to perform faithfully his duties or to account properly for all monies and property received by virtue of his position or employment during the Bond Period, the amount of indemnity on each of such Employees being the amount stated in the Table of Limits of Liability applicable to this Insuring Agreement 4.”

For each of the next five years, OES paid an annual premium, thereby continuing the bond in force through September 14, 1976. On September 15, 1976, OES and Aetna executed a rider increasing the limits of liability to $50,000.00. Coverage was terminated after September 14, 1977.

OES eventually discovered that an employee had misappropriated funds over a number of years. Stipulated to by Aetna and OES, the amounts stolen were, by year:

September 15,1971 through September
14.1972 $ 6,469.80 September 15,1972 through September
14.1973 15,000.00 September 15,1973 through September
14.1974 12,075.85 September 15,1974 through September
14.1975 7,745.15 September 15,1975 through September
14.1976 15,000.00 September 15,1976 through September
14.1977 26.609.16
Total $82,899.96

OES demanded $82,899.96 from Aetna. Aetna offered $41,609.16 in full payment of OES’ claim. OES refused the offer, brought this action, and moved for summary judgment.

At trial of the motion for summary judgment, the only real issue was the meaning of certain terms in the blanket bond. Those terms provided as follows:

Declarations
Item 3. “Bond Period: from the beginning of September 15, 1970 to 12
o’clock night on the effective date of the cancelation or termination of this Bond as an entirety.”
Conditions and Limitations Limits of Liability Section 4 (paragraph 3)
“Regardless of the number of years this Bond shall continue in force and the number of premiums which shall be payable or paid, the limit of the Surety’s liability as specified in the Table of Limits of Liability shall not be cumulative from year to year or period to period.”

OES urged that the bond period was ambiguous and that, with the payment of each annual premium, a new contract had been formed. On that basis, OES argued that the noncumulation clause could have no effect.

Aetna maintained that there was only one contract for one bond and that the subsequent premiums merely extended the coverage period during which Aetna’s limitation of liability would remain at $15,-000.00. Aetna conceded that its limitation of liability was raised to $50,000.00 for losses during the year September 15, 1976 through September 14, 1977.

The trial court found no ambiguity in the contract of insurance but did conclude that the noncumulation clause was against public policy because

“Once a defalcating employee converts funds in an amount exceeding the limits of liability stated in the bond, the defendant has no liability, even though the employer has continued to pay premiums to cover the faithfuly [sic] performance of that employee in succeeding years.”

Striking the noncumulation clause, the trial court:

1. declared that the liability of Aetna
was $15,000.00 for each and every year from September 15, 1970
through September 14,1976, and $50,-000.00 from September 15, 1976 through September 14, 1977,
2. cast Aetna for $82,899.96 plus interest,
3. reserved to OES the right to bring claims unknown at the time of judgment, not to exceed the limits of liability as found by the court, and
4. assessed all costs against Aetna.

We agree with the district court that the contract was not ambiguous. Only one bond was issued, number 48 F 387 BCA. Each year OES paid annual premiums renewing the bond but not creating a new one. Even the rider increasing the limitation of liability to $50,000.00 stated in part:

“To be attached to and form part of Bond No. 48 F 387 BCA.”

That both parties intended a single continuing bond is obvious from OES’ memorandum in support of its motion for summary judgment which states, at page 5 (R-17):

“The intent of plaintiff in securing bond from defendant was to insure itself against losses as a result of the dishonesty of an employee. Further by the payment of an annual premium and the renewal of the bond each year it intended to be maintained in that coverage. The reason plaintiff continued to pay annual premiums and fill in the Application-Questionnaire without question was because it felt that this was the mutually agreed upon procedure to renew said bond. Such was the case in September 1976 when plaintiff executed a Rider against the bond to increase the coverage.” (Emphasis supplied.)

Plaintiff attached numerous exhibits to the motion for summary judgment. Nothing indicates the existence of any bond other than 48 F 387 BCA. OES made no request that more than one bond be issued by Aetna. Clearly, only one continuous bond existed or was ever contemplated. Plaintiffs claim of multiple bonds arose only after an employee stole more than the limitation of liability required Aetna to repay.

While ambiguous contracts will be construed against the party drawing same, courts should not strain to find, against all the evidence, an ambiguity where none exists, merely to afford added insurance protection to a party which freely chose to purchase only limited coverage.

The trial court found Aetna’s noncumulation clause to be against public policy and struck it from the contract. We find the clause not to be against public policy.

No Louisiana case is precisely in point, but a careful review of the national jurisprudence reveals that where the terms of a fidelity bond, taken as a whole, indicate an intention that the original bond shall be continued for a new period or periods due to the payment of a consideration, the contract is a continuous one and the extent of liability is to be determined by the provisions of the original bond. Parish of East Baton Rouge v. Fidelity & Casualty Company of New York, 373 F.Supp. 440 (M.D.La. 1974), affirmed without opinion 502 F.2d 783 (5th Cir. 1974). See also Eddystone Fire Company No. 1 v. Continental Insurance Companies, 284 Pa.Super. 260, 425 A.2d 803 (1981); Scranton Volunteer Fire Co. v. United States Fidelity and Guaranty Company, 450 F.2d 775 (2nd Cir. 1971); Columbia Hospital for Women and Lying-In Asylum v. United States Fidelity & Guaranty Co., 188 F.2d 654 (D.C.Cir.1951), cert. denied 342 U.S. 817, 72 S.Ct. 81, 96 L.Ed. 618 (1951); 7 A.L.R.2d 946 at 949.

The court in Columbia Hospital, supra, which contains a most scholarly discussion of the problem now confronting us, stated

“. .. The weight of authority is in favor of the surety companies, even where there has been no specific contract provision against cumulation of liability. It has generally been held that ‘where the bond is for an indefinite term, the date it begins to run being the only date given, the fact that the premiums were paid annually does not make the relation a series of separate yearly contracts.’ .. . Accordingly, even in the absence of a specific provision against cumulative liability, it has been held that the continuous term of the bond impliedly excluded liability in excess of the amount stated in the bond, in spite of the extent of actual losses over the years... . Where, as here, in addition to the continuous term of the bond, there was language in the bond or its attachments which militated against a finding of cumulative liability, the courts have consistently held liability to be limited, in the aggregate, to the amount stated in the bond (i.e., noncumulative).” 188 F.2d at 657. (Citations omitted.)

We find the foregoing case law to be most convincing. Clearly, the weight of authority is that noncumulation clauses are not against public policy elsewhere. We will not hold them so in Louisiana.

Aetna tendered $41,609.16 as payment. This, the proper amount, represents the sum of $15,000.00, stolen and payable under the bond’s limit through September 14, 1976, and $26,609.16, stolen and payable under the bond’s limit for the period of September 15, 1976, through September 14, 1977.

For the foregoing reasons, it is adjudged, ordered and decreed that there be judgment in favor of the State of Louisiana through the Office of Employment Security and against the Aetna Casualty and Surety Company in the amount of $41,609.16 with legal interest only from the date of this judgment. Plaintiff’s right to bring claims for amounts stolen, but as yet undiscovered, during the period from September 15, 1976 through September 14, 1977, and neither exceeding the bond’s limits of liability nor prescribed by either law or contract is expressly reserved.

It is further adjudged, ordered and decreed that $244.77 in costs are assessed against the state, pursuant to LSA-R.S. 13:5112.

AFFIRMED AS AMENDED.

      . Had the sums stolen during the period of September 15, 1976, through September 14, 1977, amounted to more than $35,000.00, it would have been necessary to determine whether the $15,000.00 and $50,000.00 bond limits, applicable before and from September 15, 1976, respectively, might be cumulated or not. Such is not the case. Since we are, however, reserving to OES the right to bring additional claims for as yet undiscovered thefts occurring during the bond’s final year of validity, the possibility exists that this situation might arise, at which time the district court will have to decide the issue.


author: PONDER, Judge.

text:
    Mrs. Edwina Deano, Widow of James T. HURSTON, Jr., Testamentary Executrix v. Charles A. HURSTON, et al.
    No. 14915.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.

      Guy L. Deano and Edward Deano, Jr., Covington, for plaintiff, appellant.
    William J. Jones, Jr., Covington, for defendants, appellees.
    Before ELLIS, PONDER and SAVOIE, JJ.
   PONDER, Judge.

Plaintiff appealed from the dismissal of her suit alleging failure of consideration and the wrongful transfer of stock certificates.

The issues on appeal are proof of agreement under C.C. Art. 2277, the court’s finding of consideration, and the court’s finding that there was a valid stock transfer.

We affirm.

Plaintiff’s husband, James Hurston, Jr., her brother-in-law, Charles Hurston, and her father-in-law, James Hurston, Sr. formed Hurston’s Pine Manor Motel and Restaurant, Inc. in January, 1963. James Hurston, Jr., was the corporate secretary, and his father was the corporate president.

James Hurston, Jr., having marital difficulties and needing money, after finding that he had cancer, agreed to sell to Charles Hurston his shares of stock for $10,000.00 in cash, the assumption of James’ half of an $18,000.00 obligation to their father, the assumption of the corporate liabilities and the continued support of James for the remainder of his life. The new stock certificates, transferring James’ shares to Charles, were issued in October of 1966 and were signed by James Hurston, Jr., as secretary, and by his father.

Plaintiff, after her husband’s death in 1970, alleged in this suit that the decedent received no consideration for his stock and that any transfers of shares that resulted were wrongful.

Plaintiff argues that the defendants did not adequately prove any agreement under Louisiana Civil Code Article 2277. However, a party to a lawsuit may serve as his own “credible witness.” O’Rourke v. Tracy, 375 So.2d 747 (La.App. 4th Cir. 1979). “Other corroborating circumstances” can be the testimony of a second witness. Dennis Miller Pest Controls, Inc. v. Wells, 320 So.2d 590 (La.App. 4th Cir. 1975), writ denied 323 So.2d 806 (La.1976); Rogers v. Barton, 264 So.2d 715 (La.App. 1st Cir. 1972).

Plaintiff disputes the trial court’s finding of valid consideration. Charles Hurston testified that he paid the $18,000.00 debt, paid $10,000.00 in cash, to his brother and paid a weekly salary of $250.00 to James, Jr., until he died in 1970. The father testified he witnessed the transfer of some money. There is no error in the finding that there was consideration.

Plaintiff’s attack upon the proof of transfer of certificates is based upon her lack of knowledge thereof, an attack upon the father’s credibility and alleged forgery.

There was evidence of marital difficulties between plaintiff and her husband near the time of transfer. This and the other circumstances explain the failure to tell her of the transfer, even after reconciliation.

Plaintiff argues that James Hurston, Sr. was not a disinterested witness. While the father’s relation to Charles Hurston could diminish his credibility, the trial judge’s finding of credibility is given great weight and we find no reason to disturb his decision.

Plaintiff’s evidence of forgery of decedent’s signature on the stock certificates was introduced by proffer, after defendant objected that plaintiff had not specifically pled fraud or forgery. However, in his reasons for judgment, the trial judge stated he had considered the evidence of forgery or fraud, in rendering his decision, because of the prohibition of replicatory pleadings in Louisiana Code of Civil Procedure Article 852 and Savoie v. Bills, 317 So.2d 249 (La.App. 3rd Cir. 1975).

The handwriting expert testified that the deceased’s signature on the last three stoek certificates issued by the corporation was forged. However, the trial court chose to review this testimony with caution, since the expert was not aware of the decedent’s physical problems at the time of the writing.

The trial judge must weigh the expert testimony in the same manner as other evidence, according to the expert’s professional qualifications, experience, and the circumstances and materials on which the opinion was based. Galloway v. Gaspard, 340 So.2d 579 (La.App. 1st Cir. 1976). In light of the testimony of the decedent’s father of the signing of the certificates and the testimony of the decedent’s wife that the signatures appeared to be those of her husband, we cannot say that the trial court’s finding was manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The cancelled certificates were not introduced into evidence. Evidence of a valid transfer under La.R.S. 12:624(A), is therefore lacking. However, the Uniform Stock Transfer Act’s purpose is to protect third persons who give value upon the faith of the certificates. Noncompliance does not invalidate a transfer between the parties where valid consideration was given. Primeaux v. Libersat, 322 So.2d 147 (La.1975); Dardeau v. Fontenot, 326 So.2d 521 (La. App. 3rd Cir. 1976); Osborn v. Aetna Life and Casualty Company, 308 So.2d 355 (La.App. 4th Cir. 1975), writ denied 312 So.2d 340 (La.1975).

There is sufficient evidence that the decedent acquiesced in the stock transfer and voluntarily surrendered his shares.

For these reasons, the judgment of the trial court is affirmed and costs are assessed to the plaintiff.

AFFIRMED.

      . La.C.C. Art. 2277:
      “All agreements relative to movable property, and all contracts for the payment of money, where the value does not exceed five hundred dollars, which are not reduced to writing, may be proved by any other competent evidence; such contracts or agreements, above five hundred dollars in value, must be proved at least by one credible witness, and other corroborating circumstances.”

      . The name of that corporation has been changed to Hurston’s, Inc.

      . La.C.C.P. Art. 852:
      “The pleadings allowed in civil actions, whether in a principal or incidental action, shall be in writing and shall consist of petitions, exceptions, written motions, and answers. No replicatory pleadings shall be used and all new matter alleged in exceptions, contradictory motions, and answers, whether in a principal or incidental action, shall be considered denied or avoided.”

      . One of these stock certificates was never introduced into evidence and is not before this court. The other two stock certificates were those that effectively transferred the decedent’s shares to his brother.

      .La.R.S. 12:624 A:
      “A. Title to a certificate and to the shares represented thereby can be transferred only:
      (1) By delivery of the certificate indorsed either in blank or to a specified person by the person appearing by the certificate to be the owner of the shares represented thereby, or
      (2) By delivery of the certificate and a separate document containing a written assignment of the certificate or a power of attorney to sell, assign, or transfer the same or the shares represented thereby, signed by the person appearing by the certificate to be the owner of the shares represented thereby. Such assignment or power of attorney may be either in blank or to a specified person.”


author: COLE, Judge.

text:
    Leon S. and Andrein L. POIRIER v. COLLECTOR OF REVENUE.
    No. 14931.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.
    Louis D. Curet and David R. Cassidy, Baton Rouge, for plaintiff.
    Riley F. Boudreaux, Baton Rouge, for defendant.
    Before COVINGTON, COLE and WATKINS, JJ.
   COLE, Judge.

This case involves alleged deficiencies in state income taxes for the calendar years 1965,1967 and 1968. The events giving rise to this litigation are as follows.

Plaintiffs, Leon S. and Andrein Poirier, filed their 1965 income tax return late, on April 25, 1967. They filed their 1967 tax return timely, April 15, 1968. Plaintiffs were audited in 1971 and it was discovered they had failed to report two substantial amounts of income earned during 1965 and 1967. The source of the income was the sale of two buildings resulting in a gain to the taxpayers of $167,168.30 in 1965 and $93,698.58 in 1967. Because of the exclusion of these two sales the Poiriers paid only $76.14 (instead of the $8,030.40 due) for 1965 and paid no tax at all (instead of the $3,494.52 due) for 1967. The income for each year was reported on the respective federal tax returns. The formal assessment made on December 23, 1971, by the State Collector of Revenue (herein referred to as the Collector), was as follows:

The Poiriers appealed this assessment to the Louisiana Board of Tax Appeals. A hearing was held and the board rendered judgment in favor of the Collector and against the Poiriers “for the amount of tax and interest due for the years 1965, 1967 and 1968.” The Poiriers appealed to the district court and the court overruled the decision of the board as to the 1965 taxes, finding the right to collect these taxes had prescribed. As to the 1967 taxes, the Poiri-ers were found to have owed $3,494.52 plus interest until paid. The trial court denied penalties for fraud and delinquency. The board’s determination of the taxes for 1968 ($6.00), plus interest was affirmed. The Collector of Revenue then filed this appeal and urges two errors.

Appellant argues the court erred in holding the 1965 assessment and penalties were barred by prescription and in disallowing the fraud penalty for the 1965 and 1967 assessment.

We agree with the trial court’s conclusion concerning the prescription of the 1965 taxes. At the time the taxes were due the 1921 constitution was in effect. La. Const, art. XIX, § 19 provided in part as follows:

“... all taxes and licenses, other than real property taxes, shall prescribe in three years from the 31st day of December in the year in which such taxes or licenses are due.”

Therefore, the taxes for 1965, due on April 15, 1966, ordinarily would have prescribed on December 31,1969. The assessment was not made until December 23, 1971.

Appellant contends under La.R.S. 47:1580 the prescription running against the state is interrupted upon the filing of a false or fraudulent return and does not commence to run until the state has knowledge of the fraud and an opportunity to assert its claim. The statute reads in part as follows:

“The prescription running against any state tax, license, excise, interest, penalty or other charge shall be interrupted by: (1) The collector’s action in assessing any such amounts in the manner provided by law;
* # * * * *
“(4) The filing of a false or fraudulent return; and
* * * * sit *
“The running of such prescription may also be suspended by means of a written agreement between the taxpayer and the collector made prior to the lapse of the prescriptive period set out in the Constitution of Louisiana.” (Emphasis added.)

We find the words of the statute clear. The prescription in this case was interrupted on April 25, 1967 when the false return was filed. An interruption means the previous time running was eradicated and the prescriptive period begins running anew from the time of the interruption. Hotard v. Fleitas, Inc., 67 So.2d 345 (La.App.Orl. Cir.1953). Therefore, even though the prescription was interrupted on April 25, 1967, it began to run again and the three year period ended on April 25, 1970. The assessment did not occur until after the taxes had prescribed.

Appellant’s interpretation of the statute would have us substitute the word “suspended” for the word “interrupted.” When prescription is suspended by a cause the “clock” simply stops. The time that has already run is not annihilated (as is the case when prescription is interrupted) and when the suspending cause ceases the clock begins running at the same point it left off. Hotard, supra. The two terms have different meanings and we decline to substitute one for the other. Although the interpretation urged by the appellant would certainly be beneficial to the Collector, we find no authority for saying the prescription is suspended (rather than interrupted, as the statute says) until the state has an opportunity to discover the fraud and to act upon it.

Appellants contend if we interpret the statute to have interrupted prescription (rather than having stopped it completely), the doctrine of contra non valentem agere nulla currit praescriptio should apply to prevent prescription from running against them in this matter. Under this common law principle, translationally, prescription does not run against one who is unable to bring an action. Smith v. Tyson, 193 La. 571, 192 So. 61 (1939).

We decline to apply the doctrine of contra non valentem to this case. The doctrine serves as an equitable remedy for a plaintiff who, because of the defendant’s concealment, is unaware of certain facts and therefore allows the prescriptive period to run without taking action. A plaintiff in that position is unable to interrupt prescription because of his ignorance. However, in the present case, the plaintiff is protected by statute (La.R.S. 47:1580(4)), which provides specifically that when the defendant has concealed certain facts (i.e., the defendant has filed a false or fraudulent return), the prescriptive period is interrupted. Therefore, there is no need, and in fact it would be inappropriate, to apply the doctrine to this situation. To do so would be to ignore the clear legislative statement that the prescription running against the state is interrupted (and starts anew) by filing of the false return. We would instead be declaring prescription does not begin to run until the state has knowledge of the fraudulent behavior. We refuse to ignore the clear language of the statute. The application of the statute leaves the doctrine without any basis for operative effect.

Appellant cites Collector of Revenue v. Pioneer Bank and Trust Co., 250 La. 446, 196 So.2d 270 (1967), rehearing denied 1967, for the proposition that the prescriptive period does not restart immediately after being interrupted by an assessment under La. R.S. 47:1580(1). We find the case easily distinguishable because there the assessment was made before the three year period had run. The court held simply that once the assessment was timely made the taxpayer could not raise the issue of prescription when the state attempted to collect the tax. The time period in question was that from the assessment to the actual collection. In addition, La.R.S. 47:1581 treats assessments as judgments, and once issued timely they prescribe in the same manner as judgments prescribe. Because of these differences, we do not find the case to shed light on the prescription issue at hand.

For these reasons we conclude the taxes, interest and penalties for 1965 have prescribed. We do not find it necessary to rule on the contention of appellees that La.R.S. 47:1580(4) conflicts with the applicable constitutional provision and, to that extent, is not a valid exercise of legislative authority. Constitutionally or with the statutory implementation, the result here is the same.

Concerning the allegation of fraud for the 1967 tax return we note it is the taxpayer’s responsibility to file a correct income tax return but the failure to file a correct return does not necessarily constitute fraud. Davis v. Commissioner, 184 F.2d 86 (10th Cir. 1950). Fraud is never presumed but must be proved by clear and convincing evidence. Summers v. Summers Bros., Inc., 385 So.2d 489 (La.App. 1st Cir. 1980). The “clear and convincing evidence” standard is somewhere between proof beyond a reasonable doubt and proof by a preponderance of the evidence. American Cyanamid Co. v. Electrical Industries, Inc., 630 F.2d 1123 (5th Cir. 1980). The Davis court made the following observation at page 87 concerning the issue of fraud:

“Fraud implies bad faith, intentional wrong doing and a sinister motive. It is never imputed or presumed and the courts should not sustain findings of fraud upon circumstances which at the most create only suspicion.”

After examining the record we conclude the Collector has failed to show by clear and convincing evidence Mr. Poirier has committed fraud. We find instead, circumstances which “at the most create only suspicion.”

The strongest evidence suggesting fraud is the fact that Mr. Poirier omitted substantial gains on both his 1965 and his 1967 tax returns. All other evidence negates the charge of fraud. Such evidence includes the fact that gains from both the 1965 sale and the 1967 sale were reported on the federal income tax returns and the sales of the properties were disclosed on footnotes and schedules attached to the state returns. Mr. Poirier argues had he intended to defraud the state government he would not have taken the risk of having them gain access to the federal returns and discover his omissions and, had he intended to conceal the sales he would have taken care to delete all references to them on the state returns. Testimony at the hearing established Mr. Poirier had prepared his federal returns and then gave the information to his bookkeeper, Mrs. Myrtle Trent, to fill out the state returns. She testified she had not been instructed to omit any items and the errors had occurred because she was overworked at the time. Mr. Edward Blossman, the auditor, stated Mr. Poirier had been totally cooperative and had voluntarily furnished all of his records to the auditors. Mr. Poirier made no attempt whatsoever to conceal any transactions during the audit.

In summary, while we find it highly coincidental that Mr. Poirier “forgot” to report a substantial gain in 1965 and again in 1967, the record does not contain “clear and convincing evidence” that he intended to conceal these transactions from the state government. In absence of such proof we have no choice but to affirm the judgment of the trial court. Costs are to be assessed against appellant in the amount of $234.66 in accordance with La.R.S. 13:5112.

AFFIRMED.

      . The Collector had apparently made an error as to the amount of tax due for 1967. At trial the parties stipulated the tax due for 1967 was $3,494.52.

      . This amount is not an issue on appeal.

      .Appellees suggest the new prescriptive period, at most, ended three years from December 31st of the year the false return was filed which would be December 31, 1970. We do not believe this interpretation has merit but agree with appellees’ observation that even under such an interpretation, the taxes had still prescribed.

      . Mr. Poirier did not owe any federal tax for the year 1965 and owed less than $2,000 for the year 1967.

      . Mr. Blossman did not assert or suggest a fraud penalty in this case. He testified he was instructed to put a fraud penalty in the assessment.


author: WATKINS, Judge.

text:
    Fred B. WEIMER v. James T. JENKINS.
    No. 14937.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.

      James B. Olinde, Jr., Baton Rouge, for plaintiff-appellee.
    Lawrence B. Shallcross, Jr., Baton Rouge, for defendant-appellant.
    Before COVINGTON, COLE and WATKINS, JJ.
   WATKINS, Judge.

This is an action for property damage resulting from a collision between a station wagon owned and driven by James T. Jenkins, defendant, and a pickup truck owned by Fred B. Weimer, plaintiff, and driven by Brad Weimer, his major son. Defendant reconvened for damage to the station wagon. The trial court rendered judgment for plaintiff in the amount of $1,267.97, which was the amount counsel for the respective parties had stipulated should be awarded if Jenkins were found to be at fault. Defendant’s reconventional demand was dismissed with prejudice. Defendant has appealed. We affirm.

There were no personal injuries sustained as a result of the accident, the damage being confined to the two vehicles involved in the collision.

The matter turns largely upon the credibility of witnesses. The testimony of Brad Weimer, driver of the pickup truck, is not contradicted by Jenkins’ testimony, Jenkins having testified he did not know how the accident took place, but Brad Weimer’s testimony is directly contradicted by that of Charles Kegler, a hitchhiker standing on the right side of the road. According to the testimony of Brad Weimer, whose testimony the trial court obviously believed to be the more credible, he and Jenkins both stopped at a traffic signal on Perkins Road in Baton Rouge, at the intersection with College Drive. Both vehicles were facing in an easterly direction, Weimer being in the right lane and Jenkins in the left lane of a four-lane road. Both vehicles pulled out at a moderate rate of acceleration when the light turned green. When Weimer’s pickup truck had reached a speed of 20-25 m. p. h., and Jenkins’ station wagon was parallel to the pickup truck but slightly ahead so that the front and center of the pickup truck were even with the center and back of the station wagon, the station wagon abruptly entered the right lane, apparently so that Jenkins could pick up the hitchhiker, Ke-gler, who was standing on the right side of the road. The front, center, and bed of the pickup truck were damaged, and the center and rear of the station wagon were damaged.

It is clear that if the recited version of the accident is believed, which is Weimer’s version, Jenkins was negligent and Weimer was free of contributory negligence. The trial court believed Weimer. The determinations of the trial judge as to the credibility of witnesses are entitled to great weight, and should not be upset absent manifest error. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Furthermore, we have thoroughly reviewed the transcript of testimony and find Weimer’s version of the accident to be far more credible than that of Kegler, whose testimony is extremely unclear and almost incoherent. We thus uphold the determination of the trial court that Jenkins was negligent and that Weimer was free of contributory negligence.

The judgment of the trial court is affirmed, at appellant’s cost.

AFFIRMED.


text:
    PEARSON DISTRIBUTORS, INC. v. ST. TAMMANY MOTORS, INC., d/b/a Tammany Dodge.
    No. 14939.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.
    Andrew I. Brown, New Orleans, for defendant-appellant.
    Christopher M. Smith, Slidell, for plaintiff-appellee.
    Before COVINGTON, COLE and WATKINS, JJ.
   COLE, Judge.

Plaintiff-appellee, Pearson Distributors, Inc., filed this open account suit against defendant-appellant, St. Tammany Motors, Inc., d/b/a Tammany Dodge, seeking recovery of $1,564.50, plus interest and attorney fees. Defendant responded with an answer and reconventional demand, seeking to convert the matter into a concursus proceeding. Plaintiff then sought to have the reconven-tional demand dismissed by urging the dec-linatory exception and the peremptory exception. After a hearing on the exceptions, held July 28, 1981, judgment was rendered and signed denying the declinatory exception but sustaining the peremptory exception, raising the objections of no right of action and no cause of action, and dismissing defendant’s reconventional demand. Defendant has perfected a suspensive appeal to this court from the judgment.

The issue presented is whether or not a creditor’s ordinary suit on an open account may be converted by the debtor into a concursus proceeding, impleading all other creditors of the debtor for the purpose of having them assert claims against available funds so that the funds may be ratably distributed.

Plaintiff is a trade creditor of defendant. Defendant alleges it has forty-three trade creditors, including plaintiff, and only $7,000 in available funds to satisfy all claims. Defendant contends it is thus entitled, under La.Code Civ.P. art. 4651 et seq., to convert this matter into a concursus proceeding so that the $7,000 may be distributed equitably among all its creditors.

Defendant’s allegation in its recon-ventional demand that plaintiff is one of forty-three creditors asserting claims to a particular $7,000 fund is incorrect. A review of the record reveals plaintiff does not specifically seek recovery out of this or any other particular fund. Thus, even accepting as true defendant’s allegation that other creditors have asserted claims against this particular fund, plaintiff itself does not have a competing or conflicting claim to the fund or any part of it. Regardless of whether or not defendant’s other creditors are seeking recovery out of a particular fund, plaintiff clearly is not doing so and the requisite of La.Code of Civ.P. art. 4651 that “competing or conflicting claims to money, property, or mortgages or privileges on property” be involved, has not been satisfied.

Additionally, we do not construe plaintiff’s claim to even compete or conflict with those of defendant’s other creditors. In Lent, Inc. v. Lemel Steel Fabricators, Inc., 340 So.2d 1035 (La.App. 1st Cir. 1976), writ denied 343 So.2d 1075 (La.1977), this Court pointed out that a requisite of La.Code of Civ.P. art. 4651 of competing or conflicting claims by the interpleaded parties requires more than a mere “vying for payment by a single defendant.” The fact that all the creditors obviously desire payment from defendant appears, in fact, to be the only thing these creditors have in common with plaintiff. The Court in Lent held that such claims, having in common only their adversity to defendant, were not competing or conflicting within the meaning of La.Code Civ.P. art. 4651.

Appellant argues that one of the purposes of La.Code Civ.P. art. 4651 is to prevent multiple litigation and it should thus be permitted to invoke a concursus proceeding to prevent the filing of forty-three suits against it. It is true that a concursus proceeding may be invoked to prevent multiple litigation, as well as multiple liability. Landry & Passman Rlty., Inc. v. Beadle, S., W. & A., Inc., 303 So.2d 761 (La.App. 1st Cir. 1974), writ refused, 307 So.2d 631 (La.1975). However, we find no authority to support the proposition that this purpose alone eliminates the necessity of complying with the plain requirements of La.Code Civ.P. 4651 et seq., which, as stated above, have not been met in the instant ease.

Appellant further argues the present case is analogous to those cases involving competing claims of laborers and materialmen in which concursus proceedings are permitted. In this regard, it suffices to say that such proceedings are the subject of a special statutory provision which is not pertinent herein. La.R.S. 9:4841.

Appellant, having failed to show that plaintiff has any conflicting or competing claim to a particular fund of money, property, or mortgage or privilege on property, does not possess a right of action to invoke a concursus proceeding in the instant suit. More simply stated, as to plaintiff, appellant has no interest in provoking a concur-sus proceeding. The trial court dismissed properly the reconventional demand.

For the foregoing reasons, the judgment of the trial court is affirmed. Appellant is to pay all costs of this appeal.

AFFIRMED.


text:
    James McGEE, # 73523 v. The STATE of Louisiana Through the LOUISIANA DEPARTMENT OF CORRECTIONS and/or the Louisiana Board of Corrections.
    No. 14942.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.

      Robert D. Downing, Baton Rouge, for plaintiff-appellant James McGee.
    Archie Perry, Staff Atty., Dept, of Justice, Brady Louis Jones, III, Baton Rouge, for defendant-appellee State of Louisiana, Through Louisiana Dept, of Corrections and/or Louisiana Bd. of Corrections.
    Before COVINGTON, COLE and WATKINS, JJ.
   COLE, Judge.

The issue presented is whether or not the State is liable for James McGee’s personal injuries sustained while he was incarcerated at Angola State Prison.

On July 30, 1976, plaintiff and a fellow inmate, James Carney, had an argument which resulted in Carney injuring plaintiff with a yard tool known as a “ditch bank blade.” The argument arose at approximately 10:00 A.M. in the dormitory at Camp I at Angola. Camp I is a minimum security camp with all inmates classified as “trusties.” Plaintiff, resting on his bunk, was disturbed by Carney’s loud talking and asked Carney to carry on his conversation elsewhere. Tempers flared and Carney went into the dorm office and returned swinging a ditch bank blade at plaintiff. A struggle ensued and Carney struck plaintiff with the tool, severely cutting plaintiff’s right bicep. Plaintiff was taken to the Angola hospital and then to Earl K. Long Hospital in Baton Rouge. The muscle was severed to the bone and the bone itself was fractured.

Plaintiff filed suit against the State, through the Department of Corrections, alleging their negligence in failing to provide an adequate number of guards and in allowing Carney to have access to the dangerous tool. A hearing was held before Commissioner Norbert C. Rayford. The Commissioner issued a report wherein he found the State free of fault because “the plaintiff did not prove by a preponderance of the evidence that the Department of Corrections knew or should have had reason to anticipate that the resulting harm would ensue and failed to use reasonable care in preventing that harm.” Plaintiff then filed a rule to traverse the finding of the Commissioner and the matter was reviewed by the Nineteenth Judicial District Court. The district court agreed with the findings of the Commissioner and therefore dismissed the case. Plaintiff then filed this devolu-tive appeal.

Appellant raises numerous errors but they may be reduced to two basic questions. One, what is the State’s standard of care as to prisoners’ safety? Two, what is the effect of a possible violation of a federal court order concerning the requirement two guards be on duty at all times?

As reflected in recent jurisprudence, it is well settled the State is not an insurer of an inmate against an attack by another. Further, the State is liable for such injuries only when it is proven the prison officials knew or had reason to anticipate harm would ensue and yet failed to use reasonable care in preventing the harm. Parker v. State, 282 So.2d 483 (La.1973); Shields v. State Through Dept. of Corrections, 380 So.2d 123 (La.App. 1st Cir. 1979), writ denied 1980; Neathery v. State, etc., 395 So.2d 407 (La.App. 3d Cir. 1981).

There was no evidence at the hearing indicating the prison officials knew of prior threats or previous confrontations between these two inmates. The dispute arose spontaneously and was culminated in a matter of moments. Therefore, we conclude the State had no reason to anticipate the harm would ensue.

Plaintiff does not dispute the general rule set forth by the jurisprudence but focuses instead on the State’s duty to supervise prisoners using dangerous weapons. He relies heavily upon language in Hampton v. State, Through Dept. of Corrections, 361 So.2d 257 (La.App. 1st Cir. 1978). The case involved injury sustained by an inmate when a fellow prisoner threw acid in his face. The issue on appeal was a procedural one concerning the propriety of the trial court’s allowing the State to withdraw a stipulation that the prison officials had distributed the acid to the inmates for the purpose of cleaning the toilets. This court dealt with the stipulation issue and remanded the case to discover whether or not the stipulation had been made through error of fact and was therefore properly withdrawn. The substantive issue of liability was not reached by this court but the following remark was made at page 259:

“However, we are of the opinion that if the State, in fact, distributed acid to the inmates without supervising them closely in the use thereof, that it was guilty of negligence. The stipulation hereinabove
referred to, coupled with the fact that this incident occurred, necessarily lead to that conclusion.”

Appellant insists the inmates in the present case were not supervised in their use of the tools and therefore, under Hampton, the State is negligent.

We do not find the language in Hampton to compel a finding of liability. First, the language could be classified as “dicta” since the substantive issue of liability was not decided by this court. Even if we did grant the language some authoritative weight, the facts of the two cases make them readily distinguishable because of the different classifications of the prisoners involved.

As opposed to the minimum security or “trusty” classification of the inmates in this case, those in Hampton were classified as maximum security. While Camp I is an open dormitory, allowing inmates freedom to come and go within their camp, the prisoners in Hampton resided in a cell block where the inmates were confined to their cells 24 hours a day except for one hour in which they were allowed to exercise and to take a shower. The exercise and shower schedule was arranged so only one cell (containing two inmates) was opened at a time. This arrangement suggests the prisoners residing there were considered extremely dangerous and required constant supervision. In that situation the State would have a duty to exercise great care in allowing the inmates access to any dangerous instrumentality. We agree the State would be negligent in distributing acid to these inmates without extremely close supervision.

At the hearing it was revealed the method of distributing the yard tools was somewhat casual. Men assigned to yard duty, such as James Carney, were to ask the officer on duty for permission to use the tools as the need arose. The officer would then allow the inmate the enter the storage closet (adjacent to the office) and get the tool. There was no formal system of checking the tools in or out. Drue Bergeron, a correctional officer assigned to Camp I on the day of the incident, testified sometimes the guards were called away from the office momentarily and on such occasions it would be possible for prisoners to take a tool without permission.

Although this method of tool distribution is somewhat informal, we do not find it unreasonable in the context of a minimum security area. Prisoners assigned to Camp I have earned their classification by demonstrating their ability to be trusted. Responsibility should be encouraged in such a setting and it is appropriate the inmates should have some freedom in performing their daily jobs around the camp. Therefore we decline to say the State was negligent in their method of handling the tools.

Appellant further contends the State is liable for the injury because it violated a federal court order concerning the number of guards required to be on duty. In Hayes Williams v. McKeithen, No. 71-98 the U. S. District Court for the Middle District of Louisiana ordered two correctional officers be on duty at each dormitory on a 24-hour basis. We reject this argument for two reasons.

First, the evidence did not establish the court order was violated. On the day in question three correctional officers were assigned to Camp I: Mr. Beauboeuf, Mr. Ber-geron and Lieutenant Cavalier. Mr. Ber-geron was in the adjoining kitchen at the time of the incident and Lt. Cavalier had left Camp I and had gone to the warehouse to get supplies. Evidence at the hearing was inconclusive as to Mr. Beauboeuf’s whereabouts at the moment of the altercation but it was established he appeared shortly thereafter. Therefore, it is apparent three officers were assigned to Camp I and two were on the immediate premises at the time of the incident.

However, we need not determine whether or not the order was violated because we agree with the Commissioner a violation of the order does not mean there was negligence per se. We quote from the Commissioner’s report:

“Reading the Hampton and Shields decisions together and in conjunction with Judge West’s order, supra, it becomes evident that a violation of a particular provision of the order does not make out a prima facie case that the State is negligent; the plaintiff nonetheless must prove fault on the part of the State to establish its liability.”

In conclusion, the State did not violate its duty of reasonable care in that it had no reason to anticipate a disturbance between the two inmates. The method of tool distribution was not unreasonable under the circumstances and a possible violation of the federal court order does not in and of itself establish a prima facie case of negligence. For these reasons, the judgment of the trial court is affirmed. Costs are assessed against appellant.

AFFIRMED.

      . Although the case was appealed once more to this court, the issue again concerned the stipulation and the substantive issue was not directly addressed. See Hampton v. State, 376 So.2d 980 (La.App. 1st Cir. 1979).

      . We have been unable to find a citation for this case. Apparently, it is unreported at this time.