author: GUIDRY, Judge.

text:
    MISSOURI MEAT COMPANY, Plaintiff-Appellant, v. Donald RICHARD, Pistols Plumbing and Maintenance, Inc., and Kenneth E. Vitello, d/b/a Vitello Refrigeration Service Company, Defendants-Appellees.
    No. 8419.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1981.
    Rehearing Denied Jan. 4, 1982.
    Writ Granted Feb. 19, 1982.

      John R. Olds, Baton Rouge, and Collings & Collings, R. William Collings, Lake Charles, for plaintiffs-appellants.
    Joseph W. Greenwald, Shreveport, for defendants-appellees.
    Before GUIDRY, FORET and DOUCET, JJ.
   GUIDRY, Judge.

The above numbered and entitled matter was consolidated for purposes of trial in the lower court with a suit entitled AMP Service Corporation v. Donald Richard, Pistols Plumbing and Maintenance, Inc., and Kenneth B. Vitello, d/b/a Vitello Refrigeration Service Company, our docket number 8420. These cases remain consolidated on appeal and we this day render a separate opinion and judgment in No. 8420.

In these cases Missouri Meat Company, hereafter Missouri, and AMP Service Corporation, hereafter AMP, judgment creditors of a now defunct corporation, Rapides Packing and Frozen Foods of Louisiana, Inc., hereafter Rapides, seek to recover the amounts due them under their respective judgments from the defendants in these proceedings, Donald Richard, Pistols Plumbing and Maintenance, Inc., hereafter Pistols, and Kenneth B. Vitello d/b/a Vitello Refrigeration Service Company. As a basis for their entitlement to judgment, plaintiffs allege that Richard and Vitello, as directors and sole shareholders of Rapides, voted in favor of and received an unlawful distribution of the assets of Rapides in violation of LSA-R.S. 12:92(D) and LSA-R.S. 12:93(D) and are therefore responsible in judgment to the creditors of Rapides.

The trial court, finding no distribution of Rapides’ assets in violation of the cited statutes, dismissed plaintiffs’ suits at their cost. Plaintiffs appealed.

The record reflects no genuine dispute of material fact, a brief summary of which follows.

On February 24, 1978, and March 7, 1978, AMP and Missouri each sold and delivered certain meat products to Rapides. Rapides, a Louisiana corporation, was owned by Richard and Vitello, they being its sole stockholders, officers and directors. On March 22, 1978, Rapides advised its trade creditors, including plaintiffs, that it was contemplating bankruptcy, offering, in lieu of such action, to pay 25% of the total amount due in full discharge of all outstanding indebtedness. Presumably this plan was unacceptable because it was never put into effect. On April 30,1978, Rapides, represented by Richard and Vitello, executed two promissory notes, payable on demand, one in the sum of $67,190.00 made payable to the order of Pistols and the other in the amount of $74,253.00, made payable to the order of Vitello Refrigeration Service Company. Both notes were secured by act of conventional mortgage covering all of the physical assets, land, machinery and plant property, owned by Rapides. The record reflects and plaintiffs concede in brief that at the time Rapides was justly and truly indebted to Pistols and Vitello Refrigeration in the amounts for which the notes and mortgages were executed although such indebtedness had been previously unsecured. At all pertinent times Pistols, a Louisiana corporation, was solely owned by Richard and Vitello Refrigeration was solely owned by Kenneth Vitello’s father.

At the time of execution of the aforesaid notes and mortgages Rapides was virtually insolvent and had ceased operations. Its plant property was subject to a first mortgage in favor of Calcasieu Marine National Bank which secured a promissory note with a balance due of $240,000.00. This note had been personally endorsed by Richard and Vitello. In addition to this first mortgage and the second and third mortgages granted to Pistols and Vitello Refrigeration, Rap-ides owed approximately $100,000.00 to its unsecured trade creditors.

On August 22, 1978 judgment was rendered in favor of AMP and against Rapides for the sum of $22,283.03. On the same date judgment was rendered in favor of Missouri and against Rapides for the sum of $7,800.00.

On November 15, 1978, Vitello Refrigeration and Pistols instituted foreclosure proceedings to enforce payment of their respective notes. On December 27, 1978, the encumbered plant property was sold at judicial sale to Richard and Vitello, they being the only bidders present at the sale, for the sum of $250,000.00, the exact amount re-, maining due the first mortgage holder and all costs of the foreclosure proceedings. Although the judicial sale, which is made a part of the record, reflects payment of the aforesaid sum in cash, the record reflects that Richard and Vitello paid the costs in cash and simply assumed payment of the indebtedness owed to Calcasieu Marine National Bank.

On April 17, 1980, Richard and Vitello sold the property acquired by them at the aforesaid judicial sale to the Calcasieu Parish School Board for the sum of $350,000.00. According to the record the sum of $73,-361.51 was received by Richard and Vitello, after payment of the bank mortgage, real estate commission, and property taxes. Richard and Vitello testified that very little of this sum, if any, constituted a profit on the transaction as a result of out of pocket expenses for maintenance of the plant property and interest on the bank loan, during the fifteen month period between the judicial sale and the sale to the School Board.

One day previous to the School Board sale, i.e., April 16, 1980, AMP and Missouri instituted the instant suits against Richard, Kenneth Vitello, d/b/a Vitello Refrigeration Service Company and Pistols, seeking collection of their judgments against Rap-ides.

The sole issue for resolution on this appeal concerns whether under the facts set forth Richard, Vitello and Pistols are responsible for payment of the judgments rendered in favor of plaintiffs and against Rapides, by reason of their having authorized and/or received an unlawful distribution of Rapides’ assets in violation of LSA-R.S. Sections 12:92(D) and/or 12:93(D).

Sections 92 and 93 of Title 12 of the Louisiana Revised Statutes read in pertinent part as follows:

“Section 92. Liability of directors and officers
D. If any dividend shall be paid in violation of this Chapter, or if any other unlawful distribution, payment or return of assets be made to the shareholders, or if the corporation purchase or redeem any of its own shares in violation of this Chapter, -the directors who knowingly, or without the exercise of reasonable care and inquiry, voted in favor thereof shall be Hable jointly and severally to the corporation, or to creditors of the corporation, or to both, in an amount equal to the amount of the unlawful distribution. An action to enforce such liability must be brought within two years from the date on which the distribution was made, and this time limit shall not be subject to suspension on any ground, nor to interruption except by timely suit”
“Section 93. Liability of subscribers and shareholders
D. Every shareholder who receives any unlawful dividend or other unlawful distribution of assets shall be liable to the corporation, or to creditors of the corporation, or to both, in an amount not exceeding the amount so received by him. An action to enforce this liability must be brought within two years from the date on which the unlawful distribution was received, and this time limit shall not be subject to suspension on any ground, nor to interruption except by timely suit.”

Relief is afforded a corporation or creditors of a corporation under the provisions of the cited statutes when it is made to appear that unlawful distribution has been made of corporate assets having some value. When this occurs, the directors who, knowingly or without the exercise of reasonable care vote in favor of such action are liable jointly and severally to the corporation and/or to its creditors, in an amount equal in value to the amount of the unlawful distribution. Likewise, the shareholder receiving such unlawful distribution is liable to the corporation and/or to its creditors, in an amount not exceeding in value the amount received by the shareholder. Thus in the instant case the issue becomes whether the actions of Richard and Vitello in their capacities as officers, directors and shareholders or Rapides, which authorized and ultimately granted preferred creditor status to a corporation solely owned by Richard and to a business entity solely owned by Vitello’s father, constituted an unlawful distribution of assets within the purview of LSA-R.S. 12:92 and 93. We answer this query in the negative and affirm the action of the trial court which dismissed plaintiffs’ suits concluding that although the transaction was invalid Pistols, Vitello Refrigeration, Richard and Vi-tello derived no benefit or advantage and nothing of value as a result of the transaction.

An officer or director of a corporation is not precluded from becoming a creditor of the corporation which he serves. However, the relation of officers and directors to corporations is of such a fiduciary nature that transactions between them are subject to close scrutiny. A transaction by an officer and director with the corporation he serves which grants to him, as a bona fide but unsecured creditor of the corporation, preferred status over other unsecured creditors at a time when the corporation is known to be insolvent, is invalid. In support of this conclusion we find the following in 19 Am.Jur.2d, Corporations, Section 1574:

“The denial of the right of directors of an insolvent corporation to obtain a preference by way of security or payment of debts due them by the corporation is not as a rule founded upon the trust fund doctrine, but upon the theory that it is inequitable that a director, whose position as to knowledge of conditions and power to act for the corporation gives him an advantage, should be permitted to protect his own claim to the detriment of others at a time when it is apparent that all the unsecured debts of the corporation are equally in peril and that all of them cannot be paid. The courts sustaining that rule regard the director as in a sense trustee for all the stockholders and creditors so far at least as to render it improper for him to act solely for himself in disregard of the interest of those for whom he is such trustee. A director may not take advantage of his superior means of information either by confession of judgment or otherwise.”

Such a transaction was declared invalid in Abraham v. Lake Forest, Inc., 377 So.2d 465 (La.App. 4th Cir. 1979) writs denied, 380 So.2d 99 and 100 (La.1980).

Although the transaction under scrutiny in this case was clearly invalid plaintiffs can be afforded no relief under the provisions of LSA-R.S. 12 Sections 92 and 93 because the evidence fails to show that Richard, Vitello, Pistols and Vitello Refrigeration received anything of value as a result of the invalid transaction. Proof of the receipt of something of value as a result of an unlawful distribution is clearly required as Section 92 fixes the liability of the director in an amount equal in value with the amount of the unlawful distribution and Section 93 fixes the liability of the shareholder to an amount not exceeding in value the amount received by him. In all of the cases to which we have been referred by able counsel for plaintiffs, the defendant was shown to have received something of value as a result of the unlawful distribution. In Abraham, supra, the last remaining assets of an insolvent subsidiary corporation, totaling in excess of $33,000.00, was shown to have been transferred to the parent corporation in total disregard of the rights of creditors. In McGregor v. United Film Corp., 351 So.2d 1224 (La.App. 1st Cir. 1977) the rights and credits of a debtor corporation were diverted and distributed to its only stockholder in violation of the rights of an injured employee seeking workmen’s compensation benefits. See also Pasternack v. Louisiana and Arizona Lands, Inc., 254 So.2d 142 (La.App. 3rd Cir. 1971).

In this case, although all of the physical assets of Rapides were sold at judicial sale as a result of foreclosure proceedings instituted by Pistols and Vitello Refrigeration, the only creditor to receive payment as a result of that sale was the Calca-sieu Marine National Bank, holder of the first mortgage. Pistols and Vitello Refrigeration received absolutely nothing from the sale and as a result thereof the mortgages securing the indebtedness owed them by Rapides were ordered cancelled. Plaintiffs suggest in brief that the execution of the notes and mortgages to Pistols and Vi-tello Refrigeration afforded defendants a bidding advantage at the judicial sale which was something of value in that defendants were in a position to purchase the property upon payment of the first mortgage indebtedness, whereas plaintiffs were in a position of purchasing the plant property only by payment of the amounts due under all three mortgages plus costs. We find no merit to plaintiffs’ argument. We have previously demonstrated that the transaction in question was clearly unlawful. Therefore, defendants were not in fact entitled to a preference over other unsecured creditors. However, in any event, there is no evidence in the record to support plaintiffs’ suggestion that they did not bid at the judicial sale because of the prior execution by Rapides of the second and third mortgages. To the contrary, the record reflects that plaintiffs had no representative at the sale and expressed no interest therein, the only interested persons present being Richard and Vitello. Plaintiffs made no complaint and took no action whatever either before or after the judicial sale until Richard and Vitello managed to sell the Rapides plant some fifteen months later. Under such circumstances, plaintiffs can hardly be heard to complain that the execution of the notes and mortgages somehow granted Richard and Vitello something .of value which deprived the unsecured creditors of the opportunity to exercise their rights against the assets of Rapides.

Finally, plaintiffs assert that as a result of the unlawful transaction of defendants were able to purchase all of the assets of Rapides and as a result thereof Richard and Vitello derived a profit of $73,-361.51 when such property was conveyed to the Calcasieu Parish School Board. They assert that this circumstance indirectly reflects the value of the unlawful transaction. We find this contention equally without merit. We have previously shown that Richard and Vitello did not acquire the Rapides property as a result of any preference derived from the unlawful transaction. Furthermore, the record does not establish that Richard and Vitello actually profited from the sale to the School Board. As previously mentioned Richard and Vitello testified that the difference in the amount received and that owed on the Rapides property was only sufficient to reimburse them for expenses incurred for maintenance, interest, etc. during the fifteen month interim between the judicial sale and the sale to the School Board.

In sum, we find, that although the transaction of which plaintiffs complain was unlawful, as a result thereof defendants derived nothing of value. Accordingly, plaintiffs’ actions seeking relief under the provisions of LSA-R.S. 12: Sections 92 and 93 was properly denied by the trial court.

For the reasons assigned the judgment of the trial court is affirmed at plaintiff-appellant’s cost.

AFFIRMED.

      . Richard and Vitello testified that foreclosure proceedings were instituted at the behest of Calcasieu Marine National Bank but were instituted on the second and third mortgages in order to save attorney’s fees.

      . Plaintiffs do not contend that defendants are liable to them by reason of fraud or under the alter ego doctrine.


source: Caselaw Access Project

license: Public Domain

text:
    AMP SERVICE CORPORATION, Plaintiff-Appellant, v. Donald RICHARD, Pistols Plumbing and Maintenance Inc., and Kenneth E. Vitello d/b/a Vitello Refrigeration Service Company, Defendants-Appellees.
    No. 8420.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1981.
    Rehearing Denied Jan. 4, 1982.
    John R. Olds, Baton Rouge, and Collings & Codings, R. William Codings, Lake Charles, for plaintiffs-appedants.
    Joseph W. Greenwald, Shreveport, for defendants-appellees.
    Before GUIDRY, FORET and DOUCET, JJ.
   GUIDRY, Judge.

For the reasons assigned in the companion matter entitled Missouri Meat Company v. Richard et al., La.App., 407 So.2d 17, the judgment appealed from is affirmed at appellant’s cost.

AFFIRMED.


author: DOUCET, Judge.

text:
    LAFAYETTE PARISH SCHOOL BOARD, Plaintiff-Appellant, v. MARKET LEASING CO., INC., Defendant-Appellee.
    No. 8430.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1981.
    Rehearing Denied Jan. 4, 1982.
    Writ Granted Feb. 19, 1982.

      Mouton, Roy, Carmouche, Bivens & Kraft, H. Purvis Carmouche, Jr., Lafayette, for plaintiff-appellant.
    Alfred S. Landry of Landry, Watkins & Bonin, New Iberia, for defendant-appellee.
    Before GUIDRY, FORET and DOUCET, JJ.
   DOUCET, Judge.

The Lafayette Parish School Board, appellant, by summary proceeding, sought to compel Market Leasing Company, Inc., an Iberia Parish Corporation, to pay a 2% tax on the rentals from long-term automobile leases to Lafayette Parish domiciliaries, plus penalties and attorneys fees. The trial court concluded that plaintiff had received all taxes to which it was entitled and denied recovery. Plaintiff appeals. We affirm.

Market Leasing operates out of Iberia Parish; its principal business operations consisting of the leasing of automobiles for periods in excess of six months. The company does not maintain a fleet available for lease but instead an automobile is purchased simultaneously with the obtaining of a new lease. Market Leasing retains title to the vehicle and the name and address of the lessee is reflected on the ^registration. The State collects the sales tax then remits that portion owing to the local governing authority pursuant to LSA-R.S. 47:303. In the present case, following the sale in Iberia Parish, a 5% tax was collected and forwarded to Baton Rouge. The Lafayette Parish School Board was listed on the accompanying forms as the local taxing authority and subsequently the Collector of Revenue remitted 2% to appellant.

The State collects no tax on the long term leasing of vehicles by virtue of an exemption granted by LSA-R.S. 47:305.23. However, the same statute provides that the exemption does not affect the taxation powers of local authorities. It is this taxing power which appellant seeks to exercise in the present case.

The trial court characterized the simultaneous sale-lease as one taxable transaction. Additionally, the trial court reasoned that, regardless of the number of taxable transactions plaintiff may contend to have taken place, the plaintiff had already received all to which it was entitled. The latter reasoning was premised upon the fact that if there were two separate transactions then Lafayette Parish was not entitled to collect the 2% on the sale, as this amount would be due to Iberia Parish, where the owner was domiciled and where the sale took place.

Appellant specifies as error both reasons assigned by the trial court for its dismissal of its demand. Defendant answered the appeal alleging the trial court judgment was correct, and, alternatively, that the Lafayette ordinance which imposes, a tax obligation upon an Iberia Parish resident is unconstitutional.

Laws regulating the collection of taxes or licenses are sui generis and constitute a system to which the general provisions of the Civil Code have little application. Generally, the exclusive method for attacking action of taxing authorities is a suit for recovery of taxes paid. LSA-R.S. 47:1576. Here, however, the defendant does not seek recovery of taxes paid but alleges payment as defense to the present action. As no express tax provision deals with this matter the trial court was justified in resorting to codal articles to reach an equitable result. Appellee paid unto appellant a sales tax not due. cf: La.Civ. Code arts. 2133, 2302. Appellant thereafter brought suit for the same amount based upon the lease transaction. The trial court was within its discretion in concluding that the debt was extinguished by confusion. La.Civ.Code art. 2217. Not only is such a result equitable, La.Civ.Code art. 1965, and consistent with construction of tax statutes in favor of the taxpayer, Chicago Bridge and Iron Co. v. Cocreham, 317 So.2d 605 (La.1975), but it also serves the interests of judicial economy.

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

AFFIRMED.


author: CULPEPPER, Judge.

text:
    Larry McELROY, Plaintiff & Appellee, v. James C. VEST, et al., Defendants & Appellants.
    No. 8439.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1981.
    Rehearing Denied Jan. 4, 1982.
    Writ Denied Feb. 19, 1982.

      Voorhies & Labbe, W. Gerald Gaudet, Lafayette, Edwards, Stefanski & Barousse, Russell K. Zaunbrecher, Crowley, for defendants-appellants.
    Simon & Dauterive, J. Minos Simon, Lafayette, Guillory, McGee & Mayeux, Donald L. Mayeux, Eunice, for plaintiff-appellee.
    Welton P. Mouton, Jr., Lafayette, for in-tervenor-appellee.
    Provost, Ernest & Schwing, James W. Sehwing, Armentor & Wattigny, Gerard B. Wattigny, New Iberia, Davidson, Meaux, Sonnier & Roy, V. Farley Sonnier, Lafayette, for defendant-appellee.

      Before CULPEPPER, CUTRER and LA-BORDE, JJ.
   CULPEPPER, Judge.

This is an executive officer negligence action arising out of events that occurred prior to the enactment of Act 147 of 1976 amending LSA-R.S. 23:1032, which now precludes such action. Plaintiff, employed as a welder by Gulf Marine Fabricators, Inc., hereinafter Gulf Marine, sustained a serious and disabling injury to his back when he fell through a hole in the steel floor of a production platform in Gulf Marine’s storage yard. Alleging the accident and resulting injury were caused by the negligence of Gulf Marine’s executive officers, in failing to cover or place a rail around the hole, plaintiff sued the executives and their liability insurer. Gulf Marine’s workmen’s compensation insurer intervened, seeking recovery of compensation benefits paid and to be paid to the plaintiff. The defendants denied negligence and, alternatively, plead plaintiff’s contributory negligence as a bar to recovery. After trial before a jury, a verdict was returned in favor of plaintiff and against certain of the defendants in the amount of $890,416.66, of which $13,243.04 was due the intervenors for medical expenses and $19,075 due for compensation benefits paid. From a judgment rendered accordingly, defendants appealed. The intervenor answered the appeal, requesting certain modifications of the judgment.

.All defendants-appellants raise the following issues on this appeal: (1) Whether the jury erred in holding that plaintiff was not contributorily negligent; (2) whether the jury instructions on the issue of contributory negligence were inapplicable to this case and also an incorrect statement of the law, thus misleading and confusing the jury; (3) whether the amount of damages awarded by the jury was so excessive as to constitute an abuse of discretion. Defendant, James Vest, individually, raises an issue as to whether he should be relieved of liability by reason of his belief that the corporation’s duty to provide a safe place to work had been fulfilled by one of his superiors.

GENERAL FACTS

Plaintiff had been employed as a welder by Gulf Marine for almost two years. On February 26, 1975, he received instructions from defendant, James Vest, to go to Gulf Marine’s salvage and storage yard at the Port of New Iberia to remove the stairway from one of two platforms for use on another structure. Plaintiff and his helper, Donald Dugas, gathered the necessary equipment for the job, drove to the jobsite and awaited further instructions from Vest as to which of the stairways plaintiff was to remove. He was later instructed to make his own choice as to which was the better stairway and to remove it.

Plaintiff examined the two and made his choice. The stairway in question was attached to the top section of a rectangular production platform situated on four legs. The structure had a grated steel deck or floor, i.e., a mesh-type floor with one-inch by three-inch spacing between the steel strips, such that the ground is visible through the floor in all areas. The first floor of the structure, located at the top of the stairway, was some 15 to 18 feet above the ground. Plaintiff fell through a hole in this floor.

CONTRIBUTORY NEGLIGENCE

Defendants urge two errors in the finding of no contributory negligence. First, they contend the jury’s finding that plaintiff was not contributorily negligent is clearly contrary to the evidence. They argue the evidence establishes that McElroy saw or should have seen and avoided the hole. They rely heavily on the testimony of McElroy’s 19-year-old helper, Donald Du-gas. The essence of Dugas’ testimony was that the existence of the hole was readily apparent, that he saw the hole before they started to work, and that McElroy knew the hole was there and knew it was dangerous. He was very clear on these points but became confused and unclear regarding other events of the day. Furthermore, he contradicted certain testimony he had given previously in his deposition.

Defendant's also rely on testimony by executives Nugent and Merrill that when they visited McElroy at the hospital after the accident, he admitted he was at fault.

Also, defendants argue photographs of the “large” hole make it difficult to believe plaintiff did not see it. The evidence shows the hole was about two feet by five feet and was approximately in the middle of the deck, about six feet from the top of the stairway.

Plaintiff testified he was totally unaware of the hole before he fell through it. He said his attention was directed at the stairway and the places where he would be working. He first cut the cable, holding the bottom of the stair, and then planned to cut the pins in the hinges holding the top of the stairs. The stairway was on the outside of the platform and lead up to an opening in the railing which went around the outer edge of the deck. It was plaintiff’s testimony that as he climbed the stairs he was concentrating on carrying his torch and a sufficient length of hose. He had the hose coiled around his left arm. Approximately 100 feet of hose was strung out to his oxygen tank. At the top of the stairway, he walked a distance of about eight feet to his left along the railing of the platform deck and tied the hose to the railing, leaving enough hose from that point to the place where he was going to cut the pins at the top of the ladder. As he returned toward the top of the ladder, he discovered that the hose was tangled on the floor and was lying in the area where he would have to be cutting the pins, so he started backing up and whipping the hose around with his arm. At this point, plaintiff was facing the top of the stairway, which meant that he was facing away from the hole. While he was thus engaged, he stepped back into the unguarded hole and fell a distance of 15 to 18 feet to the ground below.

Plaintiff also testified that he knew from previous employment as a welder that any holes in the floor of the platform should have been covered or should have had a railing around them. Thus, he says he assumed that any holes would be covered or have rails.

Furthermore, plaintiff testified, contrary to the testimony of Dugas, Nugent and Merrill, that he did not recall making any statements to anyone after the accident admitting that he was at fault for falling through the hole.

From the above description of the evidence, it is obvious that the question of whether plaintiff saw or should have seen and avoided the hole is one of fact depending largely on the credibility of the witnesses. The applicable rules of law are well established in our jurisprudence. First, it is fundamental that the defendant bears the burden of proving the plaintiff was contrib-utorily negligent. Factual findings of the jury, particularly those based on evaluations of credibility, should not be reversed on appeal unless manifestly erroneous or clearly wrong. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Jurisprudence has developed certain special rules for determining whether a work-related accident is caused in part by the contributory negligence of the employee. In Miller v. Employers Mutual Liability Insurance Company, 349 So.2d 1353 (La.App. 2d Cir. 1977), the court reviewed the jurisprudence and stated the following general rules:

“Emerging as criteria for determining an employee’s contributory negligence are: (1) relative knowledge of the danger by the supervising employee and the injured employee; (2) relative control over the employee’s situation; (3) the degree to which the employee’s conduct is voluntary on his part; (4) alternatives available to the employee; (5) obviousness of the danger; and (6) relative ability to eliminate the danger.”

Applying these rules to the present case, we do not find the jury was manifestly erroneous or clearly wrong in concluding that the plaintiff was not contributorily negligent. The jury could have reasonably concluded plaintiff did not actually see the hole before he fell, because it was not an obvious danger, his duties required that his attention be directed elsewhere, and he had a right to rely to some degree on defendants’ duty to cover the hole or place a rail around it.

THE JURY INSTRUCTIONS

The defendants next contend the jury instructions on contributory negligence were inapplicable to this case, as well as being an incorrect statement of the law. They argue that the jury was therefore mislead as to the proper standard by which to judge the conduct of the plaintiff. Proper jury instructions are those which fairly and reasonably point up the issues presented by the pleadings and the evidence, and which provide correct principles of law for the jury’s application thereto. Hanks v. Drs. Ranson, Swan and Birch, Ltd., 359 So.2d 1089 (La.App. 3rd Cir. 1978), writ denied 360 So.2d 1178 (La.1978); Hebert v. Ordoyne, 388 So.2d 407 (La.App. 1st Cir. 1980).

The charges to the jury first followed generally the six criteria for determining an employee’s contributory negligence, quoted above from Miller v. Employers Mutual Liability Insurance Co., supra. Defendants object in particular to the following charges given at the request of plaintiff’s counsel, and to which defendants objected:

“The workman is not to be held contribu-torily negligent because he does work assigned to him under dangerous conditions which his employer is responsible and which assignment he must work or suffer dismissal. However, while it may be true that the reasonable man would wish to avoid none risk, an employee is not entirely free to do so. He cannot simply decline to do the work, because he would then subject himself to loss of his job, support for his family, (sic)
Where dangers are unreasonable, their obviousness standing alone does not necessarily relieve the defendant of responsibility for their presence. Although, the plaintiff may have been under a duty to avoid harm likely to result to him from open and obvious dangers, he may not be in a position to avoid the danger even if he was aware of it. For instance, his attention may have been distracted or his duties may require is (sic) unavoidable presence near the danger and exposure to it. In such circumstances, the defendant would be best able to anticipate and prevent the harm from the obvious dangers on the premises under his control and would, therefore, be under a duty to take corrective action.”

Defendants argue the above quoted charge is inapplicable to the present case because there was no evidence that plaintiff was forced to work under hazardous conditions or suffer dismissal. They point to the testimony that plaintiff actually chose the platform from which he was cutting the stairway. They also point to the evidence that plaintiff was under no pressure of time to accomplish his job and was under no threat that he could lose his job if he did not perform this task in a particular way.

Defendants also argue the above quoted charge is erroneous because it unduly emphasizes the idea that plaintiff could not decline to do the work under hazardous conditions.

We have carefully reviewed all of the judge’s charges to the jury and find they fairly and reasonably point up the issues presented by the pleadings and correctly state the applicable principles of law. At trial, defendants introduced much testimony in an effort to show that plaintiff was not assigned to work under dangerous conditions, that plaintiff actually chose the platform and that he was under no pressure to perform the work or suffer dismissal. Of course, defendants also introduced much testimony in an effort to show that the hole was so obvious that plaintiff saw or should have seen and avoided it. All of these were issues in the case.

DAMAGES

Defendants vigorously contend the jury’s award of $890,416.66 constitutes an abuse of discretion. They cite numerous cases wherein severe injuries received lesser awards. The principles of review governing this issue are well settled. First, to modify the amount of an award for general damages, an appellate court must find that the trial judge or jury abused the much discretion accorded by LSA-C.C. Article 1934. Second, the awards in other cases serve only as an aid in determining whether there has been an abuse of discretion. They provide no frame of uniformity. Miller v. Thomas, 258 La. 285, 246 So.2d 16 (La.1971); Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976). A reviewing court might well disagree with the amount of the award fixed by the jury, but cannot on that basis alone substitute its opinion for that of the trier of fact. Spillers v. Montgomery-Ward & Company, Inc., 294 So.2d 803 (La. 1974). An award which is so excessive that it constitutes an abuse of the jury’s discretion should be reduced to the highest point which is reasonably within that discretion. Reck v. Stevens, 373 So.2d 498 (La.1979).

The principal treating physician was Dr. William Meuleman, an orthopedic surgeon. He testified plaintiff sustained fractures of the transverse processes of L-l, L-2, and L-3, and a multi-fragment fracture of L-4. Plaintiff was first strapped in a bed to prohibit any kind of movement, pending preparation to surgically fuse all of the injured vertebrae. On April 3, 1975, Dr. Mueleman fused the vertebrae, starting with the third lumbar and then proceeding down into the solid sacrum, so that it would be a 3-level fusion. The discs were removed between these vertebrae, and bone, taken from the posterior ilium, was used to place in the disc spaces. Immediately after the surgery, Dr. Meule-man was optimistic, but by November of 1975 it was apparent the fusion between L-4 and L-5 had failed.

On May 24, 1976, another attempt was made to fuse L — 4 and L-5, this time using bone from the opposite side of the hip. However, by February of 1977 Dr. Meule-man concluded this second surgery had also failed. Plaintiff again submitted to surgery on July 12, 1977, but this also failed. The result is that plaintiff will never be able to perform any physical activity which places a strain on his lower back. Moreover, arthritic spurring will probably cause the condition to worsen. Dr. Meuleman stated that in his opinion plaintiff would be unable to engage in any gainful occupation for the rest of his life, and, moreover, would have considerable pain, even when sitting, standing, or walking for long periods of time.

As to damages for past and future loss of wages, the evidence shows that at the time of the accident plaintiff was earning a gross wage of $1,163.44 per month. From the time of trial to the date of the accident, his loss of wages was $90,936. Plaintiff was 30 years of age at the time of the accident and had a life-work expectancy of 32.2 years. An expert economist testified his gross loss of wages from date of trial to the end of his life-work expectancy would be $1,166,095. Using an 8% discount rate on loss of future wages resulted in a net loss of $374,089 for future wages. This added to the loss of past wages in the sum of $90,936, results in a total of $465,025.30 in loss of past and future wages.

The medical expenses through September 8, 1980 totaled $13,243, and, of course, there will be substantial additional future medical expenses.

Adding, in round figures, $465,000 for past and future loss of wages to the past medical expenses in the sum of $13,000 produces a total of $478,000. This means that there was an award of approximately $412,-000 for future medical expense and general damages.

Plaintiff’s injuries are painful, disabling and permanent. The expert medical testimony is that his condition will worsen. We do not find that the jury abused its much discretion as to the award.

LIABILITY OF DEFENDANT, JAMES VEST.

The jury found that James Vest was guilty of negligence which was a proximate cause of the accident. Vest seeks to escape liability based on the argument that he had reason to believe the company’s duty to furnish plaintiff a safe place to work had been fulfilled by one of his superiors.

It was uncontradicted that two of the defendants, Mr. Vest and Mr. Merrill, had been to the New Iberia yard in question the day before the accident to view some of the rigs there. They both testified they had looked at the rig from which plaintiff fell.

Mr. Vest was the person responsible for sending plaintiff out on the job assignment. He was a superintendent for Gulf Marine, working under Mr. Merrill, and had the responsibility of inspecting all jobsites, in part to make sure they were safe. Mr. Merrill was apparently Mr. Vest’s immediate supervisor and was manager of operations for Gulf Marine at the time of the accident. Both of these defendants testified that their “inspection” of the structure only took a few minutes.

At trial, Merrill testified that he did not go upon the structure, although he said in his deposition that he did. Vest did not recall Merrill going on the platform, and he testified that he did not go on the platform. Despite the uncertainty of the testimony, it was apparent that a thorough inspection of the structure in terms of safety considerations was not conducted by anyone. In light of Mr. Vest’s specific duty of inspecting jobsites for safety and his knowledge that only a cursory inspection had been made, we find no manifest error in the jury’s conclusion that Mr. Vest failed to fulfil his duty toward plaintiff.

CLAIM OF INTERVENOR

Hartford Accident & Indemnity Company, as intervenor for workmen’s compensation benefits, has answered defendants’ appeal to request certain revisions in the judgment, so as to adequately protect Hartford for reimbursement of compensation benefits paid and to be paid in the future. The pertinent portion of the judgment reads as follows:

“ ‘It is further ORDERED, ADJUDGED and DECREED that intervenor, Hartford Accident & Indemnity Company, does recover judgment against James V. Vest, Jack “John” Merrill, Phil Nugent and Hartford Accident & Indemnity Company for the aggregate amount of medical, hospital, pharmaceutical and other expenses paid by intervenor to and/or for and on behalf of plaintiff, “ ‘Larry McEI-roy, in the total sum of THIRTEEN THOUSAND TWO HUNDRED FORTY-THREE AND 04/100THS ($13,243.04) DOLLARS through September 8, 1980 and for the additional sum of NINETEEN THOUSAND SEVENTY-FIVE AND NO/IOOTHS ($19,075.00) DOLLARS representing the payment of compensation benefits at the rate of $65.00 per week through September 8, 1980 and further recover all future medical, hospital, pharmaceutical and other similar expenses that it might pay in the future up to and including the date that this judgment shall become final; payment of this judgment in favor of intervenor shall be made by preference from the proceeds and funds which shall be paid to and received by plaintiff in satisfaction of the judgment herein rendered in plaintiff’s favor and against James C. Vest, Jack “John” Merrill, Phil Nugent and Hartford Accident & Indemnity Company.... ’” (Emphasis supplied)

The contention is that Hartford is not adequately protected by the judgment as it reads in that no provision is made for possible future compensation benefits accruing after the date of the satisfaction of the judgment. Hartford requests that the judgment be amended to conform with the judgment rendered in Billeaud v. United States Fidelity & Guaranty Company, 349 So.2d 1379 (La.App. 3rd Cir. 1977), wherein the compensation insurer was allowed a credit against any obligation which it might owe to the worker for future compensation after the date of satisfaction of the tort judgment. The judgment in the present case, quoted above, gives the intervenor credit only to the date che tort judgment becomes final. We agree the present judgment should be amended to conform with that in Billeaud.

For the reasons assigned, the judgment appealed is amended so as to add an additional paragraph reading as follows: “It is further ordered, adjudged and decreed that such portion of the amount of the judgment herein in favor of Larry McElroy and against the defendants as above named, which exceeds the amount which the inter-venor, Hartford Accident & Indemnity Company, is entitled to be paid, shall be credited against any obligation which Hartford Accident & Indemnity Company may owe to Larry McElroy for future workmen’s compensation benefits, medical expenses or otherwise accruing after the date of satisfaction of this judgment.” Otherwise, the judgment appealed is affirmed. All costs of this appeal are assessed against the defendants-appellants.

AFFIRMED, AS AMENDED.


author: CUTRER, Judge.

text:
    Gloria Handley HOLLEY, et ux., Plaintiffs-Appellants, v. ROYAL GLOBE INSURANCE COMPANY, et al., Defendants-Appellees.
    No. 8442.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1981.
    Rehearing Denied Jan. 4, 1982.
    Thomas & Dunahoe, Edwin Dunahoe, Natchitoches, for plaintiff-appellant.
    Trimble, Randow & Assoc., Lon P. Wilson, Alexandria, for defendant-appellee.
    Before CULPEPPER, CUTRER and LA-BORDE, JJ.
   CUTRER, Judge.

This appeal presents the issue of whether the trial court erred in its sustaining an exception of res judicata filed by defendant, Royal Globe Insurance Company (Royal Globe).

The facts presented in this case are as follows:

Mrs. Gloria Holley was injured as a result of a vehicular collision involving a car driven by Mrs. Holley and a vehicle driven by .Michael S. Adams. Mrs. Holley and her husband first filed suit against Adams and his insurer, Southern Farm Bureau Casualty Insurance Company (Southern Farm). Southern Farm provided liability coverage for Adams in the amount of $100,000.00 per person and $300,000.00 per accident. After trial, judgment was rendered in favor of the husband for the sum of $4,917.16 subject to a credit of $1,406.65 previously paid. Gloria Holley was awarded $95,000.00 general damages. This judgment was paid by defendants on January 29, 1980; a release and satisfaction of judgment was executed by Gloria and her husband. Royal Globe was not a party to this first suit.

Mrs. Holley and her husband filed a second suit on February 19, 1980, against Royal Globe and Reliance Insurance Company (Reliance), based on the uninsured motorist coverage of each policy. Royal Globe’s policy applied to the non-owned car Mrs. Holley was driving at the time of the accident. Reliance’s policy applied to the personal automobiles owned and insured by the Holleys. Royal Globe filed a motion for summary judgment seeking dismissal of the claim of Mr. and Mrs. Holley. Counsel for Royal Globe also filed an exception of res judicata due to the judgment having been rendered in the suit against Adams and Southern Farm. The trial court rendered judgment granting the exception of res ju-dicata and dismissing the suit as to Royal Globe. Plaintiffs appeal. We affirm.

The trial judge, in his reasons for judgment, stated as follows:

.. As a result of the above and foregoing, the court is of the opinion that, 1) the plaintiff has had her day in court; 2) that there is a sufficient identity and quality of defendants to sustain the exception of res judicata; and 3) even if the triple identities required by Civil Code Art. 2286 are not present this action should be barred by judicial estoppel because all liability (vicarious or direct) flows from the negligent acts of Michael Adams and a court of competent jurisdiction established the amount of damages due to the plaintiff and she has received payment in the full amount of those damages.
“The exception is therefore sustained and judgment will be signed upon presentation dismissing plaintiff’s demands at plaintiff’s cost.”

The trial judge based his decision on two grounds; namely, res judicata, and also judicial estoppel. While we disagree with the trial court’s conclusion that the suit is barred by res judicata and/or judicial estop-pel, we do affirm the dismissal on other grounds.

RES JUDICATA

Civil Code art. 2286 sets forth the requirements of res judicata as:

“The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality.”

Welch v. Crown Zellerbach Corp., 359 So.2d 154, 156 (La.1978), states:

".. . Louisiana legislative authority for res judicata establishes a presumption of correctness and precludes a relitigation of the object of the judgment only when there is (1) an identity of the parties, (2) an identity of ‘cause’ and (3) an identity of the thing demanded. . .. The absence of any of these identities is fatal to a plea of res judicata. ”

The court also states that:

“There exists an identity of parties whenever the same parties, their successors, or others appear so long as they share the same ‘quality’ as parties.”

In the case at hand, the three requirements for res judicata are not met. The identity of the parties is not the same in each suit. Thus, the trial court erred in its conclusion that the exception should be granted on this basis.

JUDICIAL ESTOPPEL

As an alternative reason for granting the exception, the trial court relied on judicial estoppel. The rule of judicial estop-pel has been jurisprudentially overruled. The Supreme Court, in Ugulano v. Allstate Ins. Co., 367 So.2d 6 (La.1978), overruled California Co. v. Price, 234 La. 338, 99 So.2d 743 (La.1957), which had entrenched the doctrine of judicial estoppel in our jurisprudence. This doctrine, a common-law variation of res judicata, is inconsistent with the civil law concept of res judicata. As a result of its . potential for confusion, the Supreme Court has abandoned its use. The trial court erred in its application of this doctrine.

MOTION FOR SUMMARY JUDGMENT

Royal Globe filed a motion for summary judgment on the ground that, as an uninsured motorist carrier, it is liable in solido with the tortfeasor, Adams; thus, the release of Adams also releases Royal Globe. The trial judge denied the motion stating:

“... The relationship between plaintiff, HOLLEY, and mover, ROYAL GLOBE, is one of contract rather than tort, therefore the relation of joint tort-feasor does not exist. POWELL v. ALLSTATE, 1970 [La.App.] 2d Circ. 233 So.2d 38; BOOTH v. FIREMAN’S FUND INSURANCE CO., 1969, 253 La. 521; 218 So.2d 580.”

The trial court correctly overruled the motion on those grounds, but we have concluded that the motion must be granted on other grounds set forth below.

In the allegations of this second suit, Mrs. Holley and her husband allege that:

“... Michael S. Adams was insured to the extent of $100,000.00 and that insurance has now been exhausted and plaintiffs are entitled to recover the excess of their damages over and above that sum from the defendants herein, . ... ”

An examination of the record clearly reflects that the plaintiffs have litigated their respective damage claims arising out of the accident against the tortfeasor, Adams, and his liability insurer. After trial, the trial judge rendered judgment against Southern Farm and Adams for less than the liability policy limits. This judgment was duly paid and such payments acknowledged by Mrs. Holley and her husband. This being so, we conclude that the trial judge rendered judgment for the full amount of proven damages; past, present and future. Mrs. Holley and her husband, having obtained judgment for less than the liability insurance coverage, cannot seek further damages0 from Royal Globe under its uninsured or underinsured policy provisions because the liability policy limits have not been exhausted. Royal Globe is entitled to judgment as a matter of law. The motion for summary judgment filed by Royal Globe shall be sustained and the judgment of the trial court dismissing the suit against Royal Globe shall be affirmed.

Having come to this conclusion, it is unnecessary to consider the serious question of whether the filing of this second suit is prohibited by LSA-C.C.P. art. 425.

For these reasons, the judgment of the trial court is affirmed. Plaintiffs-appellants are to pay all costs of this appeal.

AFFIRMED.


author: DOMENGEAUX, Judge.

text:
    Nelda REID, Plaintiff-Appellee, v. ALLSTATE INSURANCE COMPANY, et al, Defendants, State of Louisiana, Uniform Group Employees Benefits Program, Appellant.
    No. 8454.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1981.
    Rehearing Denied Jan. 4, 1982.

      Tommy D. Teague, Baton Rouge, for defendant-appellant.
    Gahagan & Gahagan, Marvin F. Gaha-gan, Natchitoches, for plaintiff-appellee.
    Before DOMENGEAUX, SWIFT, and YELVERTON, JJ.

       Judge Henry L. Yelverton, Fourteenth Judicial District Court, Parish of Calcasieu, presided as judge ad hoc in this decision.

   DOMENGEAUX, Judge.

This suit involves a claim allegedly due under the State of Louisiana, Uniform Group Employees Benefits Program, for medical and hospitalization costs resulting from an accidental injury. Nelda Reid, plaintiff-appellee, originally filed suit against Allstate Insurance Company (Allstate) and Continental National Assurance Company (Continental), claiming benefits arising out of two separate insurance policies. Pursuant to a settlement between defendant Allstate and the plaintiff, she dismissed her suit against Allstate reserving her rights against defendant Continental. Thereafter, the State of Louisiana, Uniform Group Employees Benefits Program (State), was substituted as a party defendant in the place of Continental.

The trial judge found in favor of the plaintiff and against the State, and awarded her judgment in the amount of $1,545.10, plus penalties of $1,545.10, attorney’s fees of $1,500.00, interest and costs. The State of Louisiana, the only remaining defendant, has appealed.

On appeal, the State suggests several errors. For reasons hereinafter stated, we find it unnecessary to address all of them. Instead, the attention of our review focuses only on the issue of proof of damages. In particular, has plaintiff sufficiently proven the damages awarded by the trial court?

The trial in this matter primarily involved two issues, (1) the interpretation of a provision found in the contract of insurance between the plaintiff and the defendant, and (2) damages. By addressing the issue of damages, we find it unnecessary to rule on the trial court’s interpretation of the insurance contract.

At trial both parties presented their arguments on the contract interpretation issue. Thereafter, defendant produced one witness whose testimony related solely to the interpretation issue. Much to the surprise of her counsel, plaintiff failed to appear and testify in her own behalf. It appears that she now resides out of state, and failed to notify her counsel of her intention not to appear. No continuance was requested.

Absent his client’s testimony, plaintiff’s counsel’s sole remaining evidence, relating to damages allegedly sustained by his client, consisted of several photostatic copies of receipts purporting to be plaintiff’s medical expenses. Counsel submitted these photostatic copies into evidence in globo and rested.

We are aware that reversible error exists as to a factual conclusion only when there is a complete absence of probative facts to support a reasonable inference by the trier of fact. Darbonne v. Allstate Insurance Company, 357 So.2d 1269 (La. App.3rd Cir. 1978); Canter v. Koehring Company, 283 So.2d 716 (La.1973). Our review and close study of this record leads us to conclude that there is insufficient evidence to sustain the decision of the trial court.

The point seems too elementary to state, but we will state it anyway — a plaintiff must prove his case before he is allowed to recover. Likewise, in order to prove his case, it is necessary that the plaintiff prove each and every element of the damages claimed. As mentioned above, plaintiff’s only evidence produced at trial consists of photostatic copies of receipts purported to be medical expenses incurred by her. One particular page of plaintiff’s exhibit contains a photostatic copy of five receipts grouped together. Four of these receipts, which appear to represent prescription receipts, are incompletely dated, and fail to show the drug prescribed. The fifth receipt, from its face, gives absolutely no indication as to what it purports to represent.

We might also point out other peculiarities surrounding the receipts referred to hereinabove. The accident in question occurred on September 19, 1977. On June 15, 1978, services were provided to the plaintiff by St. Mary’s Hospital. An invoice for services, amounting to $55.00, was sent to the defendant on or about July 15, 1978, and on July 24, 1978, defendant paid the submitted claim in full. Defendant received no other bills or claims from the plaintiff until after suit was filed on September 19, 1979, and in some instances these claims represented expenses incurred some two years prior to the filing of suit.

Plaintiff’s list of receipt copies, relied on by the trial judge in awarding damages, include in part, the previously paid St. Mary’s medical bill, the drug receipts mentioned above, a receipt of $750.00 for a boxspring and mattress purchased from a furniture store located in Natchitoches, as well as a receipt for laboratory tests run two years before the institution of this suit. The introduction of these copies alone merely commenced the proof of facts contained therein. Marks v. New Orleans Cold Storage Co., 107 La. 172, 31 So. 671 (1901).

Absent a stipulation by the defendant acknowledging the validity of these copies and their connexity with the accident from which plaintiff claims damages herein, the amounts shown thereon cannot be recovered when not corroborated by supporting evidence. Nowhere in the record of this proceeding do we find any testimony or other evidence dealing with the issue of damages sustained by the plaintiff. Therefore, the plaintiff has failed to prove by a preponderance of evidence the damages she claims in this suit. It follows, that her suit must be dismissed.

For the above and foregoing reasons the judgment of the trial court awarding plaintiff damages, penalties, attorney fees, interest and costs is reversed and plaintiff’s suit is hereby ordered dismissed. All costs at trial and on appeal are assessed against the plaintiff-appellee.

REVERSED AND RENDERED.

      . The copy of the prescription receipts show the day and month filled but fail to show the year. The medication prescribed is represented by a number alone. Without more, we have no way of knowing whether or not the prescribed medication is recoverable under the insurance policy or whether or not it properly relates to this suit.


text:
    John G. THIBODEAUX, Plaintiff-Appellee, v. DRESSER INDUSTRIES, INC., Defendant-Appellant.
    No. 8457.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1981.
    Rehearing Denied Jan. 4, 1982.
    Writ Denied Feb. 19, 1982.

      Guillory, McGee & Mayeux, A. Frank McGee, Eunice, for defendant-appellant.
    Pucheu & Pucheu, Jacque B. Pucheu, Jr., Eunice, for plaintiff-appellee.
    Before DOMENGEAUX, SWIFT and YELVERTON, JJ.

      Judge Henry L. Yelverton, Fourteenth Judicial District Court, Parish of Calcasieu, presided as Judge ad Hoc in this decision.

   DOMENGEAUX, Judge.

This suit is by an employee, John G. Thi-bodeaux for workmen’s compensation benefits resulting from injuries he sustained while working in the assembly plant of defendant, Dresser Industries, Inc. The district court adjudged plaintiff to be totally and permanently disabled. The defendant has appealed.

Defendant on appeal suggests that the trial court erred: (1) By not ordering, upon request of defendant, an independent examination of plaintiff by a physician appointed by the court, as required by LSA-R.S. 23:1123; (2) In finding plaintiff totally and permanently disabled.

Plaintiff answers the appeal and prays for affirmation of the trial court’s finding as to disability, and reversal of the trial court’s denial of penalties and attorney’s fees as provided for in LSA-R.S. 23:1201.2.

Plaintiff was injured on August 1, 1978, while employed as an assemblyman at defendant’s plant. He sustained injuries to his back and shoulder, and was unable to return to work. Defendant paid weekly compensation benefits in the amount of $111.20 through March 18, 1980, on which date benefits were discontinued.

Plaintiff instituted this action against his employer to recover compensation, penalties, and attorney fees on April 29, 1980. On August 7, 1980, defendant filed a Rule to Show Cause Why a Physician Should not be Appointed to Examine Plaintiff-Employee, in accordance with the provisions of LSA-R.S. 23:1123. On August 13, 1980, a Stipulation Between the Parties was filed in which the plaintiff and defendant both agreed that, among other things, the rule filed therein by the defendant would be referred to the merits. After a trial on the merits, the trial court found in favor of the plaintiff without a hearing on the rule. The defendant now suggests that the provisions of LSA-R.S. 23:1123 are mandatory in nature and accordingly the trial court erred in failing to require an independent medical examination prior to making a decision this matter. in

In the case of D’Aville v. Travelers Insurance Company, 295 So.2d 454 (La.App.3rd Cir. 1974) we stated:

“In order to facilitate an understanding of the issue, the statute itself should be examined. The statutory scheme of workmen’s compensation is set out in LSA-R.S. 23:1021 et seq. The provisions relied on by defendant are contained in Sub-Part F, Medical Examinations. We set out the text of the statute which are applicable.

Section 1121:

‘An injured employee shall submit himself to an examination by a duly qualified medical practitioner provided and paid for by the employer, as soon after the accident as demanded, and from time to time thereafter as often as may be reasonably necessary and at reasonable hours and places, during the pendency of his claim for compensation or during the receipt of him of payments under this Chapter.’

Section 1122:

‘The employer shall cause the examination provided for in the preceding section to be made immediately after knowledge or notice of the accident, and to serve a copy of the report of such examination made by the employer’s physician upon the employee within six days after the examination. If the examination is not made and the report is not furnished by the employer within that time, the employee shall furnish a report of the examination made by his own physician to the employer, for which the employee shall be entitled to receive from the employer the sum of one dollar. Upon the receipt by either party of such a report from the other party, the party receiving it, if he disputes the report or any statement therein, shall notify the other of that fact within six days, otherwise the report shall be prima facie evidence of the facts therein stated in subsequent proceedings under this Chapter.’

Section 1123:

‘If there be any dispute thereafter as to the condition of the employee, the court, upon application of either party, shall order an examination of the employee to be made by a medical practitioner appointed by the court. The fees of such examiner shall be fixed by the court at not more than ten dollars, and shall be paid in advance by the applicant. The medical examiner shall report his conclusions from the examination to the court, and such report shall be prima facie evidence of the facts therein stated in any subsequent proceedings under this Chapter.’
The statutes reveal that they are designed to be read together in order to assess the role of the medical examination in a compensation hearing. In view of the fundamental purpose of the Workmen’s Compensation statute that the workmen be paid for disability, the statute requires that a medical examination be made.”

Sections 1121 through 1123 have been summarized by one court in the early decision of Gordon v. Home Accident Insurance Company, 14 La.App. 666, 130 So. 664 (Orl. Cir. 1930), as follows:

“ * * * The section relied on first requires the employer to have the examination made and then the employee. It allows either side a short period for consideration and criticism of the report made by the other side and provides that the failure to make objection shall result in the prima facie correctness of the report, and if thereafter (meaning, we take it, after this preliminary procedure has been resorted to), there has failed to result any agreement as to the condition of the employee, or, because of timely objection, there has failed to result any prima facie proof of the extent of his injuries, then either party may apply to the judge for appointment of a judicial expert, whose findings and report, whether objected to or not shall be deemed prima facie evidence. It is apparent therefore, that what this section of the act seeks to accomplish is the prompt determination of the extent of the employee’s injuries by permitting, first one side and then the other, to appoint an expert in the hope that a prima facie showing may be made extrajudicially, and, failing in that, declaring that the findings of the judicial appointee shall be considered as prima facie correct.”

We interpret LSA-R.S. 23:1123 in light of its preceding two articles as did the court in Gordon supra. The articles provide a scheme for a trial court to obtain an unbiased and impartial opinion from a third physician, where the expert opinions presented by the plaintiff and defendant are in dispute. In the case before us, however, the only medical opinions in dispute are those of the experts chosen by the defendant.

Defendant has called all the shots in picking the examining physicians. On the day of the injury defendant sent Mr. Thibo-deaux to see Doctor Lafleur, a general surgeon. Doctor Lafleur later recommended that plaintiff see Doctor Laborde, a doctor of general medicine, concerning his injuries. The doctors continued to see plaintiff and recommended against his return to work. Approximately two years later defendant sent plaintiff to Doctor McDaniel, an orthopedic surgeon, for another opinion of plaintiff’s injury. Doctor McDaniel could not find any objective reasons for plaintiff’s pain and recommended plaintiff’s return to work. Defendant then sent plaintiff back to Doctor Lafleur. Doctor Lafleur’s diagnosis and prognosis remained unchanged from those previously mentioned. Defendant now claims LSA-R.S. 23:1123 demands the court, upon a parties’ request, to appoint another physician to examine the injured employee, and receive that physician’s finding as prima facie evidence representing the employee’s physical condition insofar as his ability to return to work. We do not agree.

For this Court to hold that the mandatory language of LSA-R.S. 23:1123 requires a judicial appointee under the present facts would be to disregard the statutory scheme of the Compensation Act. We feel the purpose of Section 1123 is to provide a method of settling disputes between the employer and employee where their experts appear to be in complete disagreement as to the condition of the employee. The purpose of the statute is to provide an expedient method to determine whether or not compensation benefits are owed the employee. This affords the injured employee the opportunity to begin receiving compensation payments' before a trial on the merits, if the appointed physician finds the employee disabled. The statutory scheme is not designed to allow a litigant the opportunity to go fishing for an opinion favorable to that litigant’s interest, when that litigant’s physician’s opinions seem to be contrary to one another.

The plaintiff and defendant by a joint stipulation referred the hearing on the defendant’s rule to the trial on the merits. After all the evidence was presented, the trial judge was obviously convinced that an additional physician’s report would add nothing to clear up, in his mind, any discrepancies in the evidence before him. In fact, the trial judge makes this clear in the court minutes of January 12, 1981, when he states:

“. . . Having considered the matter, the court is of the opinion that the medical opinions are not irreconcilably split. On the contrary perponderate in favor of the plaintiff [sic]. Too, Court recalls personally observing on trial, the swollen area of the left scapula about which the plaintiff complained.”

For the reasons aforementioned, we find no error in the trial court’s ruling.

Defendant’s second contention is that the trial court erred in finding plaintiff totally and permanently disabled.

Doctors Lafleur, Laborde, Webre, and McDaniel testified by deposition concerning their opinions on the plaintiff’s ability to return to work. There was no conflict in the medical testimony insofar as the attending physicians were concerned. Doctor Lafleur and Doctor Laborde both stated in their most recent reports dated April 9, 1980, and March 30, 1980, respectively, that plaintiff was physically unable to return to his employment because of the injuries sustained to his shoulder on August 1, 1978. Both doctors’ reports continually referred to the winging of the left scapula as being the primary cause of plaintiff’s disability.

The defendant presented two experts, Doctor Webre and Doctor McDaniel, both orthopaedic surgeons. Neither Doctor We-bre or Doctor McDaniel treated plaintiff, but examined him for evaluation purposes only. Doctor Webre never examined plaintiff’s shoulder but did conduct an examination of plaintiff in September of 1978, limiting his examination to plaintiff’s back. Doctor McDaniel first examined plaintiff on February 27, 1980, and also limited his examination to plaintiff’s back. On July 28, 1980, he examined the plaintiff’s shoulder but observed no “winging” and felt plaintiff could return to work. Doctor McDaniel did, however, acknowledge the fact that some of the symptomologies of back injuries produce occasional manifestations which are discoverable on one examination and not another. As mentioned earlier, this “winging” of the left scapula was observed by the trial judge during the course of the trial.

It is significant that Doctors Lafleur and Laborde, who treated plaintiff initially and have continued as his attending physicians since the accident, found the plaintiff still unable to return to work. We find no error on the part of the trial judge in accepting and accrediting greater weight to the testimony of the treating physicians rather than that of specialists who were employed merely to evaluate the claimant. Williams v. Liberty Mutual Insurance Company, 327 So.2d 462 (La.App. 3rd Cir. 1976); St. Pe v. Howard P. Foley Electric Company, 341 So.2d 639 (La.App. 4th Cir. 1977).

After closely reviewing the medical evidence and according it the proper weight, we do not feel that the trial judge was manifestly erroneous in finding plaintiff totally and permanently disabled. Furthermore, defendants are possessed with an adequate remedy to review the compensation award under LSA-R.S. 23:1331 which provides that any change in the status of the employee’s condition may be reviewed at any time six months after the rendition of the original compensation judgment.

The final matter in this case deals with the award of penalties and attorney’s fees.

An employer’s conduct in discontinuing workmen’s compensation payments must be judged primarily upon the facts existing and known to him at the time payments were stopped. These facts must justify discontinuance. Lee v. Smith, 248 La. 16, 176 So.2d 413 (1965); De Jean v. B. F. Trappey’s Sons, Inc., 285 So.2d 297 (La. App. 3rd Cir. 1973).

Throughout the entire course of this litigation the plaintiff has claimed disability based upon his left shoulder injury. The report of the two treating physicians, Doctors Lafleur and Laborde, date back to their initial examinations of the plaintiff soon after his injury, and continue up to the time benefits were terminated. Both physicians clearly agree that plaintiff’s left shoulder injury is the primary cause for plaintiff’s continued disability.

Defendant contends that compensation payments were not “arbitrarily and capriciously” discontinued due to the fact that termination rested upon the findings contained in the medical report submitted by Doctor McDaniel on February 27, 1980. Defendant did not produce this report at trial so we have no way of knowing its contents. The deposition of Doctor McDaniel, however, was submitted at trial. Doctor McDaniel states that on the visit in question, he limited his examination to plaintiff’s back and he did not examine plaintiff’s shoulder. Defendant knew that Doctor McDaniel’s examination was limited to an examination of plaintiff’s back, as represented by defendant’s letter to plaintiff dated March 28, 1981. Likewise, defendant knew or should have known that plaintiff was claiming disability as a result of an injury to the shoulder and his back.

We find that the facts known to the defendant at the time compensation benefits were terminated do not justify discontinuance. It was incumbent upon defendant to have in its possession some authoritative findings showing that the injured employee had healed from those injuries from which he claims disability. A report from a physician representing an examination of the employee’s back, when from the onset the primary claim for disability has been the employee’s shoulder, does not justify discontinuance of compensation benefits. It is incumbent upon the insurer to make a reasonable effort to ascertain plaintiff’s exact condition at the time which compensation benefits are terminated. See Chavis v. Maryland Casualty Company, 307 So.2d 663 (La.App. 3rd Cir. 1975), and the cases cited therein.

Accordingly, we find that termination of compensation payments based upon the limited examination of Doctor McDaniel was arbitrary and capricious and defendant is therefore liable for penalties and attorney’s fees. LSA-R.S. 23:1201.2.

When attorney’s fees are awarded as a result of arbitrary nonpayment of benefits such an award is deemed to be a penalty and the value of the attorney’s fee need not be proven. Fontenot v. Town of Kinder, 377 So.2d 554 (La.App. 3rd Cir. 1979). We have reviewed the record in the case as well as our recent jurisprudence concerning the award of attorney fees, and conclude that an award of $5,000.00 for all of the attorney’s services, including the trial and appeal involved in this matter, is appropriate. See Morgan v. Equitable General Insurance Company, 383 So.2d 1067 (La.App. 3rd Cir. 1980), and the cases cited therein.

The further award of 12% interest applies from the date on which benefits were terminated (March 12, 1980), until date that such back payments are finally made current.

For the above and foregoing reasons the judgment of the trial court is affirmed insofar as it declares plaintiff to be totally and permanently disabled within the terms of the Workmen’s Compensation Act. The judgment of the trial court is reversed insofar as it denies plaintiff recovery of statutory penalties and attorney’s fees against defendant, and it is hereby Ordered that there be judgment in favor of plaintiff and against defendant in the amount of $5,000.00, with legal interest from date of judicial demand until paid, plus 12% penalties on weekly benefits which are overdue until paid.

Costs of this appeal are taxed against the defendant.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.


author: LABORDE, Judge.

text:
    DON SIEBARTH PONTIAC, INC., Plaintiff-Appellee, v. ASPHALT ROAD BUILDING AND RESURFACING, INC., Defendant-Appellant.
    No. 8469.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1981.
    Rehearing Denied Jan. 4, 1982.

      Brame, Bergstedt & Brame, Joseph A. Brame, Lake Charles, for defendant and plaintiff in reconvention-appellant.
    James L. Babin, Lake Charles, for plaintiff and defendant in reconvention-appellee.
    Woodley, Barnett, Cox, Williams & Fen-et, Robert W. Fenet, Lake Charles, for in-tervenor-appellee.
    Before CULPEPPER, CUTRER and LA-BORDE, JJ.
   LABORDE, Judge.

This is a breach of contract case allegedly resulting from improper workmanship in the laying of asphalt roads, parking lots and other surfaces at an automobile dealership located in Calcasieu Parish, Louisiana.

Plaintiff, Don Siebarth Pontiac, Inc., seeks damages representing the cost of remedying a defective asphalt job constructed under contract by the defendant, Asphalt Road Building and Resurfacing, Inc. Defendant reconvened for the unpaid amount of its contract price for work it performed. R. E. Heidt Construction Company, Inc., intervened to secure payment for hot mix asphalt it sold to defendant for use in the job. The asphalt sale was secured by a lien.

The trial court determined that the work was performed in an unworkmanlike manner, awarding plaintiff the amount necessary to completely repair it. This amount was off set by certain authorized extras performed by defendant and judgment was rendered accordingly. In addition, the court recognized intervenor’s lien and awarded intervenor the amount of its lien plus attorney’s fees for preparing it and cost for filing it.

Defendant’s motion for a new trial was denied following which it appealed to this court claiming that the trial court erroneously allowed plaintiff any recovery when the undisputed evidence established that the problems resulted from failures- in the sub-base which was neither prepared nor warranted by it; that the trial court erroneously accepted the estimate presented by plaintiff’s expert without giving consideration to the doctrine of mitigation of damages; that the trial court erroneously failed to award it certain items listed in its recon-ventional demand; and that the trial court rendered a judgment defective in form. With none of these arguments do we agree.

The trial judge in well considered and well articulated oral reasons for judgment stated:

“THE COURT: Thank you, gentlemen. In this suit the plaintiff seeks to recover damages from the defendant allegedly resulting from improper workmanship in the laying of asphalt roads and other surfaces at its automobile dealership location in Calcasieu Parish. The agreement between the parties leaves much to be desired. The area was “walked over” by Mr. Siebarth and Mr. Broussard, who represented the defendant, along with a Mr. Ripley, to whom the work was subcontracted. Rough sketches with measurements of the area were made, and the agreement, to some extent, was reduced to writing on speedletter forms introduced in evidence as P-5. Shortly before the work was completed, failures appeared in some portions of the asphalt surface which were caused by sub-grade or sub-surface failures. There is a serious dispute as to whether the builder was responsible for these. The agreement contained a provision for some soil cement work behind the mechanic shop, but this was not done by consent of the parties. There were a number of items deleted by agreement, and it appears that some work was done by the subcontractor which Mr. Siebarth contends he did not authorize. There is a serious dispute as to the plaintiff’s obligation to pay for this extra work. There was no agreement for the contractor or sub-contractor to perform any drainage work or work on the sub-grade. However, the Court believes that a builder is obliged to construct work that is suited for its intended purpose which in this case was to lay asphalt on a suitable base so that there would be a minimum of failures on the asphalt surface. Where the builder fails to point out to the owner, which was the case here, that the base is not suitable, and a failure results, in the Court’s opinion the builder is responsible therefor. Not only did this builder fail to point out that the base would be unsuitable in any particular location, he actually thought the base was suitable for the application of a two inch hot mix which would provide the necessary hard surface for the automobile dealership, and he told this to the plaintiff. Consequently, the Court concludes the defendant is responsible for the failures that occurred in this instance. There was some dispute of some testimony to the effect that the defendant and the subcontractor did not know that there were certain electric and water lines already installed under the area to be hard surfaced, and that their location caused some of the failures. However, the Court is of the opinion it was the duty of the builder to ascertain whether any were there and their location. The mere fact that he was not aware of their presence does not relieve him of his responsibility. Consequently, the Court concludes that the plaintiff has suffered damages, and that it is entitled to an award of $25,-000.00 which is the sum that Mr. Fenet of R. E. Heidt Construction Company testified would be the price of correcting the failures and placing the hard surface in a proper condition. Generally, a party who has sustained damages by reason or fault of another is obliged to minimize his damages. There was some testimony by defendant’s experts that the failures could have been patched for a much lessor sum at some time after this job was completed. However, the Court believes and accepts Mr. Fenet’s testimony that the most satisfactory method of removing the failures was to re-surface the whole area, and it does not appear that this would have been done a great deal cheaper in early 1977 than now. The defendant is entitled to credit for certain extra work and extra asphalt that it supplied in connection with this job. These credits are as follows: Invoice No. 781 — $676.80; Invoice No. 782 — $1,725.00; Invoice No. 783 —$3,150.00; Invoice No. 784^$4,860.00. I am going to give credit for Invoice No. 788 in spite of the fact that it does not seem to have been included in defendant’s computation of the total area to which the two inch hot mix was applied, it is inconceivable to me that that portion between the two buildings was not contemplated to be hard surfaced in the original agreement. It certainly is well within all red lines shown on the sketches that were a part of the agreement. The next credit will be one-half of Invoice No. 792 —amounting to $740.00. I haven’t added those up, but they will be deducted from the total sum of $25,000.00 and judgment will be rendered herein favor of the plaintiff and against the defendant for the resulting figure. In addition, there will be judgment herein on the petition of intervention filed by R. D. Heidt Construction Company in favor of intervenor and against the plaintiff and the defendant, in solido, in the sum of $2,940.60, plus the sum of $25.00 attorney’s fees for preparing and filing the lien, and $3.00 as the recording fee thereof. In addition, the plaintiff will be awarded reimbursement through judgment over against the defendant upon its payment of the judgment to the intervenor. Incidentally, both judgments will bear legal interest from judicial demand until paid, and the costs of the suit will be assessed to the defendant. A formal decree in accordance with the Court’s reasons for judgment will be read and signed upon presentation.”

We adopt as our own the opinion of the learned trial judge and affirm his judgment.

The record leaves no doubt that the defects complained of — consisting mainly of breaks and cracks in the surface which filled with water and continued to grow into large potholes — appeared within a very short time after application and developed into very serious defects. The expert witnesses on both sides agree that the cause of these problems was a failure in the sub-base or sub-surface as it is also referred to.

At the outset, we reject defendant’s contention that it was not responsible for the failures in the sub-base because it did no work on the sub-base nor did it warrant the sub-base in any manner. As pointed out by the trial judge, a builder is obliged to construct work that is suited for its intended purpose. Stated another way, it is implicit in every building contract that the work will be performed in a good, workmanlike manner free from any defects in materials or workmanship. LSA-C.C. art. 2762. Furthermore, a contractor is liable when he should have known by the exercise of proper judgment that the condition at the site, other than a latent defect of soil, should be corrected before proceeding with the work and he fails to advise the owner in time to permit an adjustment. He is considered as having expert knowledge of such things and must bring them to the attention of the owners who have no knowledge of such affairs. Wetmore v. Blueridge, Inc., 391 So.2d 951 (La.App. 4th Cir. 1980); Unverzagt v. Young Builders, Inc., 207 So.2d 405 (La.App. 3rd Cir. 1967); and Wurst v. Pruyn, 250 La. 1109, 202 So.2d 268 (1967).

In our case, the record contains ample evidence showing that in the asphalt business, the contractor’s responsibilities include responsibility for the site’s sub-surface. For example, plaintiff’s expert, Courtney Fenet, Jr., who has been in the asphalt business for twenty six years, testified that an asphalt job includes consideration of and responsibility for the sub-surface and any necessary work in preparing the sub-surface. Similar testimony was elicited from one of defendant’s witnesses, Walter Loftin, who was accepted by the court as an expert in asphalt and asphalt contracting and application. The following exchange occurred during cross examination:

“Q. So it’s your responsibility, don’t you feel, to take whatever areas given you, figure out what you’ve got to do to make a good base and then charge the man appropriately.
A. Yes, sir. We write us our contract accordingly unless he wants to cut down on money and says, T want you to put it on this base’. When he does that we make him sign a letter of release that we’re not responsible for the sub-grade, the base or the asphalt.
Q. Saying you are not responsible.
A. Yes, sir....”
(Tr. 429)

The record also shows that Don Siebarth, the person who negotiated the asphalt contract on plaintiff’s behalf, relied on defendant’s expertise in the area of asphalt application. Mr. Siebarth testified that he met with John Broussard, president and owner of the defendant corporation, and walked the site with him explaining what he wanted. Mr. Siebarth stated that he was a car salesman and not a blacktop expert. Plaintiff’s reliance on the contractor’s expertise is also shown by the testimony of Harry Ripley, the subcontractor of defendant, who in explaining why the site was not soil cemented, testified:

“A. Well, at that time I talked to Mr. Siebarth about it. He said if I could save him some money to do it, and the road, the base was good, and it wouldn’t have been no better after we soil cemented it because we would have broke into our sub-base. One time you break your top six inches around this part of the country, then you’ve got to go down into a sub-base. In the fall of the year, especially, with rains, if we would have broke that, then we would have had to go down into sub-base work. So, I figured it was best not to spend that twenty-one hundred dollars. Leave good enough alone, and that’s why that wasn’t spent.
Q. Did you discuss that with Mr. Sie-barth?
A. Not exactly like I’m telling you, no but I did talk to him. I told him we wouldn’t have to soil cement it, that I was going to save him some money. That was the words. I didn’t discuss how come because we would have had to go into the sub-base, I mean, I’m a road builder. He’s a car salesman, and I figured he wouldn’t, maybe understand it.
Q. Yes, sir. Was he in accord with your suggestion?
A. I think so. He never stopped me or told me to do it. I think he agreed.”
(Tr. 571-572)

Under these circumstances, defendant cannot escape liability for defective construction resulting in the cracked surface by claiming that it neither worked on the sub-base nor warranted it in any manner.

We next consider defendant’s contention that the trial court erroneously accepted the estimate presented by plaintiff’s expert without giving consideration to the doctrine of mitigation of damages. Defendant presented this identical argument in its motion for new trial which was heard by Judge King. In his reasons for judgment, Judge King stated:

“Defendant moves for a new trial on two grounds. First, that the initial trial judge failed to take into account plaintiff’s failure to minimize its damages . . . see Louisiana Civil Code Article 2323 . . . in connection with the award of damages on the plaintiff’s claim against the defendant. The Court has carefully reviewed some 654 pages of trial transcript as well as very extensive personal notes left in the Court’s file which were taken contemporaneously by Judge Swift when he tried the lawsuit. The Court has also had the benefit of the briefs and oral arguments of the counsel for each side in connection with the reargument. After reviewing the evidence the Court does not find that the trial judge manifestly erred in his conclusion to accept the testimony of Mr. Courtney Fenet, Jr. as to the most satisfactory method of removing the failures of the defendant to properly perform his contract. As stated by Judge Swift, at Page 344 of the transcript in Volume 2, ‘.. . however, the Court believes and accepts Mr. Fenet’s testimony that the most satisfactory method of removing the failure was to resurface the whole area, and it does not appear this would have been done a great deal cheaper in early 1977 than now.’ The initial trial Judge had the opportunity to observe the demeanor of the witnesses and to hear their testimony. There is adequate evidence in the record to support the trial judge’s determination to believe Mr. Fenet’s testimony as to the most satisfactory method of correcting the defendant’s breach of the contract. Defendant further complains that the initial trial judge erred in making his award of damages by not taking into consideration the increased cost of that award because of plaintiff’s failure to minimize it’s damages. Louisiana Civil Code Article 1934 provides the measure of damages for breach of contract. An initial inquiry must always be directed at whether the trial court’s awárd for the particular damages is a clear abuse of the trier of facts ‘much’ discretion under Louisiana Civil Code Article 1934 in the award of damages. Reck v. Stevens, 373 So.2d 498 (La.App. 3rd Cir. 1979). After reviewing the record, the Court does not find that the initial trial judge abused his much discretion in the award of damages to the plaintiff. ...”

We fully agree with Judge King’s review of and response to this argument of defendant’s and adopt that portion of the judgment as our own.

Defendant next contends that the trial court erred in failing to award the total amount of its reconventional demand. We disagree. Although the trial court did not allow the total amount, he did go through individual invoices he denied and stated why he was denying them. After a careful review of this argument, we conclude that defendant has failed to show any abuse of the trial court’s “much discretion” warranting reversal on appeal.

Finally, defendant claims the trial court should have rendered a separate judgment covering the total of its reconventional demand instead of rendering a single judgment for the difference in plaintiff’s favor. We find this argument totally lacking in merit. Defendant cites to this court the “official revision comments” to LSA-C. C.P. art. 1038. That article, which allows the trial court to order a separate trial of the principal and incidental trial demands to render and sign separate judgments, has no application to this case where the principal and reconventional demands were tried in a single trial. This court finds no trial court error in the procedure which the initial trial judge chose to follow.

For the above reasons, the judgment of the lower court is affirmed at appellant’s cost.

AFFIRMED.

      . That portion of the judgment recognizing the lien was not appealed from and is now final.

      . The trial was heard and the matter decided by District Judge G. William Swift who was subsequently sworn in as a judge on the Third Circuit Court of Appeal. The motion for new trial was decided by Judge Swift’s successor, District Judge Charles S. King.