author: FORET, Judge.

text:
    Earl Joseph MECHE, Plaintiff-Appellee, v. GULF COAST PRE-MIX TRUCKING, INC., Defendant-Appellant.
    No. 7459.
    Court of Appeal of Louisiana, Third Circuit.
    April 9, 1980.
    Allen, Gooch & Bourgeois, Paul J. Breaux, Lafayette, for defendant-appellant.
    Edwards, Stefanski & Barousse, J. Michael Stefanski, Crowley, for plaintiff-ap-pellee.
    Before CULPEPPER, DOMENGEAUX and FORET, JJ.
   FORET, Judge.

This is a workmen’s compensation suit. Plaintiff, Earl Meche, filed suit against his former employer, Gulf Coast Pre-Mix Trucking, Inc., to recover compensation benefits for total and permanent disability.

Prior to the trial, defendant filed an exception of prescription contending that plaintiff’s action had prescribed. The trial court overruled the plea of prescription.

Following a trial, the trial court, finding plaintiff to be temporarily, totally disabled, awarded judgment in plaintiff’s favor.. Defendant was ordered to pay compensation at the rate of $65.00 per week for a period not to exceed 300 weeks since the date of the accident. Defendant brings this appeal from the court’s ruling. Plaintiff has not appealed nor answered this appeal.

The record shows that plaintiff was employed by Gulf Coast Pre-Mix Trucking, Inc. as a truck driver. On February 20, 1975, plaintiff stated that he experienced a sharp pain in his back when he attempted to connect a 4-inch hose to his assigned truck. Plaintiff continued working but due to the increase in pain, he sought medical advice four days after the injury to his back.

Plaintiff was examined first by a Dr. Curtis. Dr. Curtis, finding no objective evidence of pain, advised plaintiff to return to work. Plaintiff testified that after having returned to work for approximately a month, the pain increased to such an extent that he was unable to drive a truck. At his request, plaintiff was assigned a position as a mud-mixer which required him to pump mud into the mud trucks. Plaintiff testified that his back continued to hurt in the mud department so he was assigned duty in the body shop.

Plaintiff’s employment was terminated by defendant in July, 1976. According to plaintiff, he was fired because he could no longer perform his duties. After being fired, plaintiff remained unemployed for approximately eight months, until he was hired by Land Offshore Services as a roustabout pusher. After working for Land Offshore for approximately three months, plaintiff testified that he quit because he could not do the work with his back condition. Plaintiff then- began working for Bufford Slaughter House as a meat cutter. This job lasted for approximately seven months. At the time of the trial, plaintiff was working as a bartender.

Defendant contends the trial court erred in rejecting its plea of prescription. Defendant also contends the trial court erred in finding plaintiff temporarily, totally disabled.

PRESCRIPTION

LSA-R.S. 23:1209 provides:

“In cáse of personal injury (including death resulting therefrom) all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter or unless within one year after the accident proceedings have been begun as provided in Parts III and IV of this Chapter. Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in cases of partial disability this limitation shall not take effect until three years from the time of making the last payment. Also, where the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until the expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.”

The trial court found as fact that plaintiff suffered a work-related accident on February 20, 1975. Plaintiff instituted the suit on February 14, 1977, after one year but within two years of the accident. Thus, the issue is whether suit was instituted within a year of the development of the disabling injury.

In Burleigh v. Argonaut Ins. Co., 347 So.2d 13 (La.App. 3 Cir. 1977), writ denied, 349 So.2d 1267 (La.1977), we quoted with approval from Harris v. Seaboard Fire & Marine Insurance Company, 337 So.2d 262 (La.App. 2 Cir. 1976), writ refused, 339 So.2d 853 (La.1976), as follows:

“In a workmen’s compensation suit for disability benefits, the disabling injury does not fully develop until the workman cannot perform his duties and the prescriptive period does not commence to run until discontinuance of employment, subject to the requirement that suit be filed within two years after the date of the accident.”

See also Russell v. Employers Mutual Liability Insurance Co. of Wisconsin, 246 La. 1012, 169 So.2d 82 (1964).

Likewise, if an employee cannot perform work, whether it be of the same or similar character, or any type of gainful employment, without experiencing substantial pain, he is “totally disabled” within the meaning of LSA-R.S. 23:1221. Phillips v. Dresser Engineering Co., 351 So.2d 304 (La.App. 3 Cir. 1977); Rachal v. Highlands Insurance Co., 355 So.2d 1355 (La.App. 3 Cir. 1978).

In the instant action, the trial court found that plaintiff suffered a work-related accident injuring his back on February 20, 1975. Plaintiff’s employment with defendant was terminated in July, 1976. Plaintiff testified that he was fired because he could not perform his duties due to the pain which resulted from his injury. The trial court, finding that the injury did not develop until the date of plaintiff’s termination, accepted plaintiff’s testimony as to the reason for his termination. Under the rationale of Russell, supra, the prescriptive period did not commence until the claimant’s employment was finally discontinued in July, .1976. Since plaintiff’s action was filed within one year of July, 1976, and within two years of the accident, his action was not prescribed. See Bolden v. Georgia Cas. & Sur. Co., 363 So.2d 419 (La.1978).

DISABILITY

Defendant also contends that the trial judge erred in finding plaintiff temporarily, totally disabled. The accident happened on February 20, 1975; therefore, the issue is whether plaintiff is totally disabled within the meaning of the Workmen’s Compensation Act prior to the 1975 amendments.

Compensation disability is based on a medical disability sustained as a result of an accident occurring in the • course and scope of employment. LSA-R.S. 23:1031. The trial court found that plaintiff was suffering from a disability as a result of a work-related accident. The record amply supports such a finding.

The trial court found plaintiff to be totally and temporarily disabled. Under the Workmen’s Compensation Act prior to the 1975 amendment, a claimant was totally disabled if the disability produced total inability to do work of any reasonable character. LSA-R.S. 23:1221(1)(a) (Acts 25, 1968 Ex.Sess.).

The jurisprudence interpreted this statutory language rather broadly. In Futrell v. Hartford Accident & Indemnity Company, 276 So.2d 271 (La.1973), the court stated that a skilled employee is deemed totally disabled when he is unable to perform work of the same or similar description to that which he performed before the accident.

In this case, at the time of the accident, plaintiff was a bulk truck driver, an occupation requiring the use of skills other than manual labor. After his accident, plaintiff testified that his back pain increased to such an extent that he could no longer drive a truck. After being fired by defendant, plaintiff was employed as a roustabout pusher. He testified that he quit after three months because he could not perform the strenuous labor required of him. Plaintiff then worked as a meat cutter for seven months. The work required the occasional performance of strenuous activities. Plaintiff stated that he quit because he could not do the work.

Dr. McCutchen, a neurologist, testified that plaintiff is suffering from a post-traumatic discopathy, a disc disorder. Dr. McCutchen held the opinion- that plaintiff is unable to return to his previous employment as a truck driver because of the condition.

The testimony of Dr. McCutchen and plaintiff support a finding that plaintiff is unable to engage in the same or similar employment that he was performing prior to his accident. Under the . rationale of Futrell, supra, plaintiff is totally disabled.

Dr. McCutchen stated that plaintiff’s condition might improve with surgery. Since plaintiff’s condition might improve at a later date, the trial court did not err in finding plaintiff temporarily, totally disabled.

Defendant, additionally, contends that the trial court erred in awarding compensation benefits at the rate of $65.00 per week without allowing a credit for the wages being earned at the time of the trial.

At the time of the trial, plaintiff was employed at the Tropical Lounge as a bartender. Appellant cites no law which entitles it to a credit for wages paid claimant by another employer. Defendant’s contention that it is entitled to a credit for wages received by plaintiff at the time of the trial is without merit.

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

Costs of this appeal are assessed against defendant-appellant, Gulf Coast Pre-Mix Trucking, Inc.

AFFIRMED.


source: Caselaw Access Project

author: DOMENGEAUX, Judge.

license: Public Domain

text:
    Onie Mae Neal VICKERS, Individually, and in her capacity as Natural Tutrix of the minor children, Sarita Joan Vickers, Bobby Vaughn Vickers, and Stephanie Ellen Vickers, Plaintiff-Appellee, v. CONTINENTAL SOUTHERN LINES, INC. and Transport Insurance Company, Defendants-Appellants.
    No. 7471.
    Court of Appeal of Louisiana, Third Circuit.
    April 9, 1980.

      Stafford, Stewart & Potter, Ronald J. Fiorenza, Alexandria, for defendants-appellants.
    Gravel, Roy & Burnes, Anna E. Dow, Alexandria, for plaintiff-appellee.
    Before CULPEPPER, DOMENGEAUX and FORET, JJ.
   DOMENGEAUX, Judge.

Plaintiff, Onie Mae Vickers, individually and on behalf of her three minor children, instituted this suit to recover workmen’s compensation benefits for the death of her husband, Bobby Gene Vickers. Made defendants were Continental Southern Lines, Inc. and Transport Insurance Company, Continental’s workmen’s compensation insurer.

Following trial, judgment was rendered in favor of plaintiff awarding compensation at 65% of decedent’s wages and funeral expenses of $1,500.00. The trial judge, finding defendant’s failure to pay the claim to have been arbitrary and capricious, also awarded 12% penalties and attorney’s fees of $3,000.00. From that adverse judgment, defendants have perfected this appeal.

The record reveals that Bobby Gene Vick-ers was employed as a bus operator by Continental Southern Lines, Inc. Mr. Vick-ers drove a passenger bus to New Orleans on a regularly scheduled run. The run consisted of leaving Alexandria at 12:45 P. M. and arriving in New Orleans 5:05 P. M., the same day. He would then spend the night in New Orleans and depart from New Orleans the following morning at 8:00 A. M., arriving in Alexandria at 12:00 Noon.

On the date of the accident, April 22, 1977, Mr. Vickers arrived in New Orleans on schedule at approximately 5:05 P. M. After completing his duties, he signed out and left the bus terminal. Mr. Vickers was struck and killed at 5:20 P. M. by an automobile as he attempted to cross Tulane Avenue. The site of the accident was approximately four blocks from the bus terminal.

Defendants contend that the accident did not arise out of and in the course of employment.

R.S. 23:1031, the applicable statute, provides in pertinent part:

“If an employee not otherwise eliminated from the benefits of this Chapter, receives personal injury by accident arising out of and in the course of his employment, his employer shall pay compensation in the amounts, on the conditions, and to the person or persons hereinafter designated.”

In Lewis v. Bellow, 212 So.2d 540 (La.App. 3rd Cir. 1968), this court stated:

“An employee protected by the Louisiana statute is entitled to receive workmen’s compensation if disabled ‘by accident arising out of and in the course of his employment.’ LSA-R.S. 23:1031. In Kern v. Southport Mill, 174 La. 432, 141 So. 19, 21 (1932), a lead case, our Supreme Court stated that, for purposes of the workmen’s compensation act, (a) ‘an accident occurs in the course of an employment when it takes place during the time of such employment’, and (b) it arises out of the employment when it is ‘the result of some risk to which the employee is subjected in the course of his employment to which he would not have been subjected had he not been so employed.’ (Italics ours.)”

212 So.2d at 544.

In the present case, did the accident occur “in the course of” employment? Prior to the accident, decedent had completed his duties at the bus terminal and had signed out. He was not required to report for duty until the next morning. However, in Lewis v. Bellow, supra, the court stated:

. Protection of the compensation act extends not only to disabilities incurred in the performance of employment duties, but also to activities reasonably connected with or incidental to them. Bates v. Gulf States Utilities Co., 249 La. 1087, 193 So.2d 255 (1966).”

Department of Transportation regulations and Continental Southern required bus operators on the Alexandria to New Orleans run to get eight hours of rest prior to returning to Alexandria. Continental provided free motel accommodations at the Tamanaea, a motel conveniently located approximately six blocks from the terminal, to encourage employees to comply with the regulations. The trial judge found as fact that decedent was going to the motel when the accident occurred. If decedent had arrived at the motel, he would have been able to rest the required amount of time.

Continental has conceded in oral argument that if Mr. Vickers had survived the walk to the Tamanaea only to be felled by an untimely calamity, such as a fire, while he was there resting the required eight hours, then the accident would be compen-sable under current jurisprudential interpretations. Yet Continental doggedly persists in its view that the bus operators are not protected during their death-defying scramble from the bus terminal to the sanctuary of the Tamanaea, nor during their frantic six block return to the bus terminal the following morning. We are not impressed by the logic of this position. We agree with the trial court that the act of walking to the motel to obtain rest was an activity incidental to Vickers’ employment. Since decedent was killed while performing an activity reasonably connected with his employment, the accident occurred in the course of employment. The result would be different if the trial court had found that Vickers was pursuing his own interests at the time of the accident.

Continental Southern devotes much of its time arguing that the plaintiffs have failed to prove that Vickers was actually going to the motel room provided by Continental Southern when the accident occurred. Yet the trial court found sufficient circumstantial evidence to factually determine that Vickers was en route to the Tamanaea when the unfortunate accident claimed his life. Although that factual question could have been decided either way we do not feel compelled to disturb the able trial court’s finding on this point.

Did the accident “arise out of” decedent’s employment? As stated in Kern, an accident arises out of employment when it is “the result of some risk to which the employee is subjected in the course of his employment to which he would not have been subjected had he not been so employed.” In the present case, decedent’s employment required him to spend the night in New Orleans in order to obtain eight hours rest. Decedent was walking to a motel where a room was reserved for him at Continental’s expense. Had decedent not been required to spend the night in New Orleans by his employment, he would not have been subjected to the risk of being hit while attempting to walk to his motel. Since the necessities of the employer’s business required decedent to be at the place of the accident at the time the accident occurred, death benefits are due his survivors under the Workmen’s Compensation law. Kern v. Southport Mill, supra; Jackson v. Long, 289 So.2d 205 (La.App. 4th Cir. 1974).

ATTORNEY’S FEES AND PENALTIES

The trial judge awarded plaintiff attorney’s fees and penalties. R.S. 22:658 provides, in pertinent part:

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

In Guillory v. Travelers Insurance Company, 294 So.2d 215 (La.1974), the court stated, in reference to R.S. 22:658:

“The purpose of this penalty provision is to deter insurers from unjustified termination of payments to injured employees during the period of their distress. Poindexter v. South Coast Corp., La.App., 204 So.2d 615 (1967). The penalty provision is stricti juris. Penalties should be imposed only in those instances in which the facts negate probable cause for nonpayment. Hebert v. South Louisiana Contractors, Inc., La.App., 238 So.2d 756 (1970); Chase v. Warren Petroleum Corp., La.App., 168 So.2d 861 (1964).
It is necessary to review the facts surrounding the discontinuance of payments, in order to determine if the action was justified. Lee v. Smith, 248 La. 16, 176 So.2d 413 (1965). In the event that there exists a substantial issue as to whether the disabled workman is entitled to compensation benefits, penalties should be denied. Hull v. Liberty Mutual Ins. Co., La.App., 236 So.2d 847, cert. ref. 256 La. 862, 239 So.2d 361 (1970); Moore v. Great American Ind. Co., La.App., 106 So.2d 771 (1958).”

In the present case, because of the peculiar facts of this case, a substantial issue existed as to whether decedent’s widow and children were entitled to compensation benefits for his death. By reason of the close legal questions involved, the defendant insurer cannot be said to have denied the payment of benefits on an arbitrary or capricious basis. An award of penalties and attorney’s fees is not appropriate under the circumstances. Turner v. United States Fidelity & Guaranty Company, 339 So.2d 917 (La.App. 3rd Cir. 1976), writ granted 341 So.2d 414, app. dismissed 341 So.2d 899 (La.1977).

For the above and foregoing reasons, the judgment of the trial court is reversed insofar as it awards penalties and attorney’s fees to plaintiff. It is affirmed in all other respects.

Costs on appeal are assessed one-half to appellants and one-half to appellee.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.


author: DOMENGEAUX, Judge. SWIFT, Judge,

text:
    Armand RICHARD, Plaintiff-Appellee, v. SOUTHWEST LOUISIANA HOSPITAL ASSOCIATION and St. Paul Fire & Marine Insurance Company, Defendants-Appellants.
    No. 7474.
    Court of Appeal of Louisiana, Third Circuit.
    April 9, 1980.
    Writ Refused June 6, 1980.

      Raggio, Cappel, Chozen & Berniard, Richard B. Cappel, Lake Charles, for defendants-appellants.
    Jones, Jones & Alexander, J. B. Jones, Jr., Cameron, for plaintiff-appellee.
    Before DOMENGEAUX, FORET and SWIFT, JJ.
   DOMENGEAUX, Judge.

This was a jury case. The defendants, Southwest Louisiana Hospital Association and its insurer, St. Paul Fire Marine Insurance Company, appeal an adverse judgment of the trial court, holding them liable for damages resulting from the use of a defective catheter in plaintiff, Armand Richard, while he was a patient in Lake Charles Memorial Hospital. We affirm.

On September 6, 1974, Armand Richard was hospitalized at Memorial for a fracture of his right leg. For some reason he began to retain urine in his bladder and a catheter was inserted for several days. Thereafter a stricture, or mass of scar tissue formed in his urethral canal, which restricted the passage of urine and caused difficulty in urinating. Slightly over a year after that hospitalization Mr. Richard consulted Dr. John W. Melton, III, a urologist practicing in Lake Charles.

Doctor Melton performed several sounding procedures in an attempt to alleviate the stricture. However, in March of 1976 he decided that more complicated surgery was required. On March 8, 1976, he performed, at defendant hospital, what is known as a “patch urethroplasty”. In doing so, it was necessary for the physician to place a Foley catheter in Mr. Richard’s urethra.

The Foley catheter is inserted through the urethra into the bladder. It has a small balloon on its forward end which is inflated with a sterile liquid after entering the bladder. The catheter is then pulled back until the balloon is seated in a position in the bladder which completely blocks the flow of urine through the urethra and thereafter the urine drains from the bladder through the catheter.

On the third post-operative day Richard suffered a bladder spasm which caused the catheter to dislodge and slip down a short distance in his urethra. It was re-inserted, but some urine had been permitted to pass in the area of the surgery that had an adverse effect on the skin graft. Later it was determined that the balloon of the catheter had a minute leak. The urine leaked out through the new suture line and into the tissues, resulting in the failure of the patch urethroplasty, and plaintiff’s subsequent difficulties.

The plaintiff underwent further surgery, known as a “Johannsen urethroplasty” which was performed by Dr. C. E. Carlton in Texas. This was done in two operations, the first on September 21, 1976, and the second on January 17, 1977.

On October 25, 1976, Armand Richard filed suit against Southwest Louisiana Hospital Association, the hospital group of which Memorial is a member, and its insurer.

On September 16, 1977, Richard filed a supplemental and amending petition naming Travenol Laboratories, Inc. as an additional defendant co-tortfeasor, alleging it was the manufacturer of the defective Foley catheter that caused injury to the plaintiff.

Travenol filed an exception of prescription which was referred to the merits by the trial judge.

The jury trial began on May 21, 1979. At that time Richard filed a motion and obtained an order dismissing Travenol, by reason of a compromise settlement with the latter for the sum of $5,000.00.

The jury found in favor of the plaintiff and awarded him $81,500.00.

Thereafter, the defendants filed a rule to show cause why the judgment should not be reduced by one-half under Harvey v. Travelers Insurance Company, 163 So.2d 915 (La.App. 3rd Cir. 1964). The rule was denied. It also asked for a new trial limited to the question of whether Travenol was the manufacturer of the defective catheter. This request was also denied.

This appeal followed.

We cite appellants’ specifications of error and will consider them in the following order:

I. The trial judge committed error in permitting cross-examination of defendants’ employees with textbooks not properly offered into evidence.

II. The jury verdict that defendant hospital knew or should have known of the defect in the Foley catheter, and its finding that the hospital was negligent in its medical treatment of plaintiff was manifestly erroneous.

III. The trial judge erred in refusing to charge the jury that a nurse providing professional services in the operating room under the direction and supervision of the surgeon is considered to be a borrowed employee of the surgeon, consequently any negligent acts or omissions on the part of the nurse while under the direction and supervision of the surgeon relieves the hospital of any responsibility for such negligence.

IV. The damages «awarded plaintiff were excessive.

V. The trial judge should have granted a new trial limited to the question of whether Travenol Laboratories, Inc. was the manufacturer of the defective catheter.

VI. The trial judge should have reduced the jury award by one-half in accordance with Harvey v. Travelers Insurance Co., 163 So.2d 915 (La.App. 3rd Cir. 1964).

SPECIFICATION I

Plaintiff presented as a witness Ms. Linda Jane Jones, a graduate nurse with a B.S. degree in nursing education from the University of Texas, and an M.A. degree in nursing education from the University of Minnesota. At the time of trial she was head of the Department of Nursing at McNeese State University at Lake Charles. Ms. Jones had been head of the department for seven years and had been associated with the University for some twenty years. She was presented two editions of a textbook entitled “Bedside Nursing Techniques in Medicine and Surgery” authored by Audrey Latsham Sutton, a registered nurse. The first edition was dated 1964, and the revised edition was dated 1969. Ms. Jones recognized these texts and testified that the author thereof, Ms. Sutton, was a competent authority on the subject of nursing techniques. She was tendered for cross-examination, and testified that “. . . although this book is outdated, there are still procedures that are in use today and are appropriate for today. And on the basis of that, I would say what she [Ms. Sutton] has in this book is correct.” After this testimony plaintiff’s attorney offered, without objection, both texts, at which time the District Judge stated “Let the offerings be received.”

Later, plaintiff’s attorney called as a witness, Mrs. Rita Rains, a licensed practical nurse and certified surgical technologist. Mrs. Rains was an employee of the defendant hospital and was the circulating nurse attending plaintiff at the time of his surgery on March 8, 1976. Based on the fact that she was an employee of the defendant hospital, plaintiff’s counsel was allowed to question her under cross-examination. During the course of her cross-examination she demonstrated the use of a Foley catheter. She was.familiar with testing techniques of such a catheter. She was presented the two texts which had been previously admitted in evidence,- at which time counsel for defendant hospital, although admitting that the texts had been offered in evidence, objected to Mrs. Rains testifying in connection with them. The trial court overruled the objection, at which time upon questioning by plaintiff’s counsel, the witness read to the jury from both texts the following paragraph:

“A (Reading): The Foley catheter is the only catheter effectively used as an indwelling catheter. The inflation balloon should be tested before insertion. With a 5 cc. bag, two or three cc.’s of sterile solution or air is sufficient to hold the catheter in place. Always make certain that the catheter is in place in the bladder before inflating the balloon.”

Counsel for plaintiff then asked her if she agreed with the statement contained in Ms. Sutton’s texts, to which she answered “I suppose so.”

We find it unnecessary to determine whether or not the two textbooks were properly offered into evidence, inasmuch as defendant counsel raised no objection at the time that they were offered and received into evidence. As was stated in Chivers v. Couch Motor Lines, Inc., 159 So.2d 544 (La.App. 3rd Cir. 1964):

“It is well settled that ‘A rule of evidence not invoked is waived, and hence a failure to object to evidence waives objections to its admissibility.’ 88 C.J.S. Trial § 115, p. 230. Cf. also, 32 C.J.S. Evidence § 863, p. 796. A failure to object to hearsay or secondary evidence when admitted at the trial constitutes a waiver of the right to object to its admissibility; such evidence may then be considered and given probative effect; and a party may not subsequently upon appeal urge that such evidence was actually inadmissible.” (Citations omitted.)

See also Bowlin v. Herrin Transportation Company, 187 So.2d 167 (La.App. 2nd Cir. 1966).

We also note that the referred to texts made no distinction between a re-usable and a disposable catheter.

We therefore conclude that defendant’s Specification No. I is without merit.

SPECIFICATION II

We find that the medical evidence shows that plaintiff’s difficulties after the March 8, 1976 patch urethroplasty were caused by the defective Foley catheter used in that operation.

The sole determining factor concerning negligence on the part of the defendant hospital is whether or not it should have tested the Foley catheter for defects before it furnished it for use on the plaintiff at the time of the March 8, 1976 operation. Until approximately the year 1970, the defendant utilized re-usable Foley catheters. It was the practice of the hospital to test these re-usable products prior to insertion in- a patient. Subsequently, the hospital began using a pre-packaged, pre-sterilized, and disposable Foley catheter, the type used on plaintiff in this case. This latter type is manufactured by numerous manufacturers, and it is unclear, as shown hereafter, who the actual manufacturer of this one was. Apparently, the hospital did not require pre-testing since it began using the new type catheter, and the one in this case was not pre-tested. A Foley catheter can properly be tested before use by simply filling the balloon part with a saline solution, and in the event that the balloon has a hole in it, the liquid will escape. Air can also be used instead of the saline solution.

Doctor Melton and two other urologists in the Lake Charles area testified that they do not pre-test these disposable Foley catheters before use. Testimony of certain nurses employed by defendant also testified that they were not pre-tested by the hospital personnel.

On the other hand, it was clearly shown that before the new type catheters were utilized by the hospital, pre-testing was done. Mrs. Lillie Himel, a graduate nurse who was the operating room supervisor at defendant hospital testified that the manufacturers in product literature do not recommend testing pre-packaged catheters, but she also admitted that she never saw a manufacturer’s recommendation or suggestion that the pre-packaged catheter not be tested.

The standard of care required of a hospital does not require a “community standard” in order to make a determination of negligence. A hospital’s standard of care was stated recently in the case of Bryant v. St. Paul Fire & Marine Insurance Co., 365 So.2d 537 (La.App. 3rd Cir. 1978), writ refused 367 So.2d 1184 (La.1979), as follows:

“This court, in the case of Williams v. Sisters of the Incarnate Word of Galveston, Texas, 341 So.2d 1299 (La.App. 3rd Cir. 1977), set out the standard of care a hospital owes to its patients, wherein the court stated as follows:
‘In the case of Hunt v. Bogalusa Community Medical Center, 303 So.2d 745 (La.1974), our-Supreme Court has stated the duty of a hospital toward its patients as follows:
‘ “A hospital is bound to exercise the requisite amount of care toward a patient that the particular patient’s condition may require. It is the hospital’s duty to protect a patient from dangers that may result from the patient’s physical and mental incapacities as well as from external circumstances peculiarly within the hospital’s control. A determination of whether a hospital has breached the duty of care it owes to a particular patient depends upon the circumstances and the facts of that case.”
‘However, the hospital’s duty has been traditionally limited by the jurisprudence, and the oft-quoted limitation has been recently reiterated in Goodeaux v. Martin Hospital, Inc., 333 So.2d 717 (La.App. 2nd Cir. 1976):
. . .On the other hand, a private hospital is not an insurer of a patient’s safety, and the rules as to the care required are limited by the rule that no one is required to guard against or take measures to avert that which a reasonable person under the circum-. stances would not anticipate as likely-to happen. (Emphasis added)”
‘See also Guidry v. State, Department of Hospitals, 317 So.2d 222 (La.App. 3rd Cir. 1975), writ refused, 320 So.2d 904 (La.1975); LeBlanc v. Midland National Insurance Company, 219 So.2d 251 (La.App. 3rd Cir. 1969); Killgore v. Argonaut-Southwest Insurance Company, 216 So.2d 108 (La.App. 2nd Cir. 1968), and DeBlanc v. Southern Baptist Hospital, 207 So.2d 868 (La.App. 4th Cir. 1968).’”

The jury, in awarding plaintiff damages, found that the defendant hospital, its agents, employees, etc., sold a defective Foley catheter to the plaintiff, and that the hospital, its agents, employees, etc., either knew or should have known of the defect in the catheter: It follows logically, in view of its finding, that: (1) the jury concluded that the catheter should have been pre-test-ed by the hospital, its agents, employees, etc.; (2) if the catheter would have been pre-tested the defect therein would have been discovered; and (3) the defect in the catheter caused the injury complained of by plaintiff.

We have carefully reviewed the evidence in this case, and applying the standards of appellate review as set out in Canter v. Koehring Co., 283 So.2d 716 (La.1973); and Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), we cannot say that the jury’s verdict was manifestly erroneous or clearly wrong.

Defendant hospital suggests that the ease of Holliday v. Peden, 359 So.2d 640 (La.App. 1st Cir. 1978) is authority for relieving it of responsibility. In Holliday, a pre-sealed, disposable suturing needle broke while the doctor was performing a tonsillectomy on the plaintiff therein. We distinguish Holliday basically on the proposition that the jury found no defect in the needle. Additionally, there was no testing procedure indicated for an instrument of this kind. The doctor involved in Holliday was held liable under the doctrine of res ipsa, loquitur, in that the evidence showed that the needle was bent prior to breaking because of excessive stress, and that the doctor knew plaintiff’s chronic tonsillitis caused tough-1 ened tissue, and therefore did not exonerate himself from the inference of negligence. The hospital and the manufacturer of the needle were exonerated.

SPECIFICATION III

Appellants requested that the following charge be given to the jury:

“A nurse providing professional services in an operating room under the direction and supervision of a surgeon is considered to be a borrowed servant of the surgeon and the hospital has no responsibility for the negligent acts or omissions of the nurse during the time she is acting under the direction and supervision of the surgeon.”

They cited as authority therefor the cases of Jordan v. Touro Infirmary, 123 So. 726 (La.App., Orleans, 1922); Danks v. Maher, 177 So.2d 412 (La.App. 4th Cir. 1965); and Grant v. Touro Infirmary, 207 So.2d 235 (La.App. 4th Cir. 1968).

The trial judge refused to give that charge, citing the decision of the Supreme Court in LeJeune v. Allstate Insurance Company, 365 So.2d 471 (La.1978) as authority. In the LeJeune case, the Supreme Court held that both a general and a special employer may be solidarily liable in tort to a third person injured by an employee’s negligent act.

We find no error by the trial judge in refusing this charge for the reason given by him.

SPECIFICATION IV

The jury awarded plaintiff the sum of $81,500.00. There was no breakdown by the jury of its award. Appellee proved medical expenses in the amount of $6,983.54. The medical evidence prevails that the defect in the Foley catheter inserted into plaintiff at the “patch urethro-plasty” operation of March 8, 1976, allowed urine to permeate the raw skin graft and thereby was the cause of infection and strictures developing in the urethral canal resulting in plaintiff’s subsequent difficulties. Two subsequent operations known as “Johannsen urethroplasty” were performed by Doctor Carlton. Between the operations of March 8, 1976, and the last operation of January 17, 1977, numerous procedures were employed in an attempt to correct the urethral strictures which had developed. For a period of approximately two and one-third years plaintiff suffered substantial pain because of swelling of his organs and difficulty in urination. There was evidence of difficulty in ejaculation. There is substantial scarring and angling of the male organ, and some discoloration. He was disabled during a portion of the two and one-third year period. Although his claim for lost wages ($12,000.00) was not definitively shown, it is clear that some lost wages were proven. The various surgical procedures which were required to alleviate his condition and their results were obviously painful, burdensome, and restrictive. We find no abuse of discretion in the jury award. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977); Schexnayder v. Carpenter, 346 So.2d 196 (La.1977).

SPECIFICATION V

On the morning of the trial plaintiff entered into a compromise agreement with the second defendant, Travenol, for the sum of $5,000.00. Apparently the trial judge, in chambers, informally ordered that the compromise settlement with Travenol not be referred to before the jury because of possible prejudice as recognized in Canter v. Koehring Company, supra. We do not find error here. A review of the record indicates that it was not the intention of the trial judge to prohibit defendant from showing who actually manufactured the defective Foley catheter. Therefore, we find no error in the trial judge’s denial of the motion for a new trial.

SPECIFICATION VI

The trial judge refused to reduce the jury award by one-half in accordance with Harvey v. Travelers Insurance Co., supra. The defendant hospital did not third party Travenol. The trial judge, rendering written reasons, correctly found that there are several manufacturers of Foley catheters and that the defendant hospital uses them all. He also correctly found that the evidence showed that no one could identify the particular manufacturer which made the defective catheter in this case. After reciting in his reasons his understanding of the law regarding contribution, the trial court continued, and we quote:

“Plaintiff Richard has opposed this rule on three grounds: (1) the hospital did not file a third party demand against Traven-ol, (2) there was no evidence of a compromise or settlement, and (3) there was no proof of negligence or liability on the part of Travenol at the trial of this case.
Based on the above observations of law, the court concludes that it was not necessary for the hospital to file a third party demand in order to protect its rights. Also, the court overlooks the technical fact that there is no evidence in the record of a compromise or settlement, because the court knows that as a matter of fact there was a settlement and release. The court concludes that the first two grounds asserted by plaintiff for why the hospital cannot claim contribution have no merit.
The third one does. The court believes that before the hospital can claim contribution, there must be proof that Travenol was, in fact, a co-tortfeasor with the hospital. My reasons for this conclusion are as follows.
All of the principles of law above enunciated apply to a situation where the released party was in fact a co-tortfeasor and thus liable in solido with other tort-feasors to the injured party. In Mullin, supra, [Mullin v. Skains, 252 La. 1009, 215 So.2d 643 (La.1968)], there was an express finding by the court of negligence on the part of the dismissed party. Minyard v. Curtis Products, Inc., La., 251 La. 624, 205 So.2d 422 (1967) says: ‘. . .a joint tortfeasor cannot seek contribution unless the tort-feasor against whom he seeks contribution has been cast in solido with him.’ In Jones v. Louisiana Department of Highways, 338 So.2d 338 (La.App. 3rd Cir. 1976) is this language:
‘The Highway Department argues in the alternative that should plaintiff, Mr. Jones, be deemed guilty of contributory negligence, the award granted to the minors against the former should be reduced by one-half, since plaintiffs (minors) released an alleged co-tort-feasor’s (Jones’) insurer. There has been no finding of contributory negligence on the part of Mr. Jones and thus the Department’s argument is without merit. See Harvey v. Travelers Insurance Company, 163 So.2d 915 (La.App. 3rd Cir. 1964); Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1967).’ (underscoring supplied)
Similarly, in Cunningham, supra, [Cunningham v. Hardware Mutual Casualty Company, 228 So.2d 700 (La.App. 1st Cir. 1969)], Emmons, supra, [Emmons v. Agricultural Insurance Company, 245 La. 411, 158 So.2d 594 (La.1963)], and in Canter v. Koehring Co., La., 283 So.2d 716 (1973), the court was either presented evidence on which to find or actually found the released party was a tortfeasor.
Harvey, supra, states that the burden of proof rests upon the party seeking contribution to establish the negligence, and consequent tortfeasor status, of the released party. This case raises but does not answer the question of what effect, if any, the plaintiff’s allegation of negligence as to the released party may have on the type of proof required to establish this negligence. This question, in my opinion, although not answered by Harvey, is answered by the other cases cited above. The mere allegation of negligence by plaintiff does not establish co-tortfeasor status. It was the hospital’s burden of proof here to establish the joint negligence of Travenol in order to claim a reduction of its liability based on Traven-ol’s status as a co-tortfeasor.
Turning now to a consideration of whether the hospital has borne that proof, I repeat that the evidence at the trial indicated no one can identify the particular manufacturer. In reaching this conclusion, I am attempting as best I can to base it upon my recollection of the testimony at the trial. I was not forewarned that I would be asked to make such a finding of fact. I was not requested to submit an interrogatory on the issue to the jury. Based on information given to me in chambers conferences with the attorneys, I got the impression that the case against Travenol was weak, that the hospital’s answers to interrogatories identifying Travenol were in error, that no. nurse, no doctor, no records could identify Travenol as the manufacturer of this kit, and that the settlement of $5,000 paid by it was sound economics, despite the paucity of proof against it, considering the substantial damage exposure and costs of trial.
These were the considerations in the court’s mind when in chambers, counsel for plaintiff sought an advance ruling from the court to prevent reference to Travenol and its settlement in the presence of the jury. I informally ordered counsel to refrain from mentioning Tra-venol in connection with the settlement or its prior involvement in the case, but I recall that I informed counsel for the hospital that he would be free to try to shift the blame to anyone, including the manufacturer, if he felt this would benefit his client’s defense.
From all I know about the case I really believe that there is no preponderant evidence to link Travenol with this foley catheter. The hospital’s brief surprisingly suggests that there may be, when it says it was prevented from making proof because of my ‘gag rule’. It was never my intention to prevent the hospital from presenting evidence to support its contribution demand, simply because I did not know it intended to advance such a demand. I must conclude that the evidence overwhelmingly negates the identification of Travenol as the responsible manufacturer, and I must deny the rule.”

We conclude that the trial judge did not err in denying contribution.

For the above and foregoing reasons the judgment of the District Court is affirmed at appellant’s costs.

AFFIRMED.

SWIFT, J., dissents and assigns written reasons.

SWIFT, Judge,

dissenting.

I respectfully disagree with the majority’s decision.

The only evidence offered by the plaintiff in this case to establish that the standard of care owed by a hospital to its patients required a prior testing of the Foley catheter was two editions (1964 and 1969) of a textbook entitled, “Bedside Nursing Techniques in Medicine and Surgery,” which recommended testing the catheter balloon before insertion. However, it was admitted that some parts of the text were out-dated. Also, as the majority mentions, no distinction was made therein between a reusable and a pre-packaged disposable catheter. To me, this is a strong indication that these books were published before the latter came into extensive use.

Ms. Lillie Himel, the operating room supervisor at Memorial, testified that the manufacturers do not recommend testing pre-packaged catheters and to her knowledge it has never been done at the hospital with a disposable Foley, catheter. When the reusable type catheters were used there a number of years ago, sterilization and testing were part of the ordinary procedure. However, this was stopped when the hospital began using disposable Foley catheters.

Mrs. Margie Liechty, a licensed practical nurse employed in the three Lake Charles hospitals during 16 years, was the scrub nurse when the patch urethroplasty was performed by Dr. Melton in March, 1976. She testified that in the operating room she took orders from the doctor and she had never been instructed by a physician to test the balloon of a Foley catheter since they had been getting the pre-packaged disposable type.

Dr. Melton testified that not only does he not test these Foley catheters, but he knew of no physician that did. His testimony in this regard was corroborated by two other urologists in this community. Plaintiff has presented no evidence to the contrary or to show that the standard of care of hospitals with respect to testing individually packaged disposable Foley catheters is different. In fact, the deposition taken by plaintiff of Dr. Carlton, an eminent specialist in the field of urology, is devoid of any evidence of a standard requiring the testing of catheters by anyone prior to insertion.

Who should be better informed as to whether such testing should be done, nurses or physicians? Obviously, the latter because of their long and extensive training and experience. But in any event, it is ■clear this record contains no evidence that any hospital here or elsewhere tests catheters since the reusable type has been discarded.

In my opinion the facts of this case bring it within the rule of Holliday v. Peden, 359 So.2d 640 (La.App. 1 Cir. 1978), which involved a suturing needle that broke while a doctor was performing a tonsillectomy of his plaintiff. In exonerating the hospital, the court stated:

“The evidence shows that the hospital relies totally upon the manufacturer to supply defect free suturing needles. It was further shown that the needles come to the hospital in individually sealed packages which are not opened by any members of the hospital’s surgical team until they are ready for use by the physician and that the hospital keeps a card file on which it is noted what preparations, instruments and supplies are requested for each type of operation. Whatever type and grade needle requested by the doctor is laid out for him. Once a needle has been used it is disposed of. Finally, it was established that the hospital has used this procedure for many years without requiring an inspection of the suturing needles by members of its surgical teams prior to their use, without incident.
“We, therefore, hold that the hospital was not guilty of negligence in handling the suturing needle prior to its use by Dr. Peden.”

The majority points out that Holliday differs from the instant case in that the •instrumentality causing the harm was not defective. While this is true, there is no indication in the Holliday opinion that the hospital would haye been under any duty to open the individually sealed package and inspect the needle had it been defective. While the court did state that those entrusted with the care of an unconscious patient owe him a duty of furnishing defect-free instruments, it went on to say that if they fail to do so “they can be called upon to establish their non-culpability or else risk liability for injuries suffered.” In other words, if a defective instrument is furnished and injury results res ipsa loquitur applies and the hospital and/or doctor are liable unless they are establish they were free from fault. Like in Holliday, this was accomplished in the present case by proof that the hospital relied totally on the manufacturer to supply defect-free Foley catheters in individually sealed packages and that it is not the practice of hospitals or physicians to open them and test the catheters before use.

Furthermore, it is far from certain that had the hospital opened the sterile package and tested the catheter, the minute defect in the balloon would have been discovered. Dr. Melton testified that he would have missed the leak had he tested the balloon before insertion. He did test it, however, several days later when the catheter was removed in his office, because he wanted to know if there really was a leak. It was only after filling the balloon with twice the recommended amount of air and submerging it in water that he discovered a tiny air bubble on its surface. Dr. Logan P. Perkins, Jr., the urologist who assisted Dr. Melton in the operation, testified that overdis-tending the balloon in a pre-test would weaken it and there would probably be a greater risk of subsequent balloon failure than if no such test had been made.

Although I naturally sympathize with the plaintiff, in my opinion the record contains no reliable evidence that would establish negligence on the part of the hospital or its employees with regard to the handling or use of the catheter. Instead, the preponderance of evidence is clearly to the effect that the sole cause of Mr. Richard’s injuries was the manufacture of the defective catheter. I am convinced that the jury’s findings and conclusion in this respect were clearly wrong and they should be reversed.

Furthermore, I must also register my disagreement with the majority’s decision not to give the defendants an opportunity to present evidence as to the identity of the manufacturer of the catheter and its conduct in support of their contention that the rule of Harvey v. Travelers Insurance Company, 163 So.2d 915 (La.App. 3 Cir. 1964) is applicable in this case.

For these reasons, I respectfully dissent.

      . A “patch urethroplasty” is an operation to correct a urethral stricture. As explained by Doctor Melton, non-hair bearing skin is cut from the foreskin of the penis or the brachial plexus up in the neck, the skin is de-fatted, the mucosa strained, a “sound” is inserted, and then using sharp dissection the urethra is exposed. Then the scar tissue is cut out, and the non-hair bearing skin is sutured to replace the destroyed tissue.

      . This type catheter is named after its inventor.

      . The Johannsen urethroplasty was utilized to correct the strictures in plaintiffs urethral canal. On the first operation of September 21, 1976, an incision through the skin of the under-surface of the penis was made, carrying it down into the tip of the urethra, and split the urethra from the • normal tissue from beyond the stricture to the normal tissue behind the stricture, and the skin margin was sewn down to the tube that had been split open. The incision is from the tip of the place where it joins into the scrotum. It is a longitudinal incision. The goal of the first operation was to sew skin onto the urethra that could subsequently be used on the second operation to rebuild the urethra. Concerning the second operation on January 17, 1977, Doctor Carlton stated: “We used the skin we had sewn to the urethra in the first operation to rebuild the tube and roll the skin up into a tube so he then had a new urethra from all the way from the tip of the penis back to the scrotum, and we put a catheter into the bladder to drain the urine.”

      . The fact that doctors do not pre-test these catheters is not crucial to a finding of negligence on the part of the defendant-hospital. If there is any duty to pre-test the catheter, it would be with the hospital and not with the doctors. The hospital, and not the doctors, was providing the catheters.


text:
    Wayne JOINER, Plaintiff-Appellant, v. Robert DOWNING, Defendant-Appellee.
    No. 7505.
    Court of Appeal of Louisiana, Third Circuit.
    April 9, 1980.

      Wayne D. Joiner, in pro. per.
    Garrett, Ryland & Nunnally, Charles F. Nunnally, III, Alexandria, for defendant-appellee.
    Before CULPEPPER, DOMENGEAUX, and FORET, JJ.
   DOMENGEAUX, Judge.

This is a jury case in which the plaintiff, in proper person, takes this appeal from a directed verdict entered in favor of the defendant after plaintiff rested his case. Plaintiff also appeals the trial court determinations that plaintiff is not entitled to a new trial and that defendant is entitled to attorney’s fees under C.C. Art. 2315.1. Plaintiff further alleges that numerous procedural errors were committed by the trial court. For the following reasons, we affirm the directed verdict.

Directed verdicts are authorized by La.C.C.P. Article 1810, which provides in pertinent part as follows:

“Art. 1810. Directed verdicts; motion to dismiss at close of plaintiff’s evidence
A. A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order of the court granting a motion for a directed verdict is effective without any assent of the jury.

Although Article 1810 A establishes no standard to be used in determining a party’s right to a directed verdict, this court set forth the standard in Campbell v. Mouton, 373 So.2d 237 (La.App. 3rd Cir. 1979) at page 239:

“. [SJince the source of LSA-C.C.P. article 1810A is the Federal Rules of Civil Procedure, we believe that the correct standard is that applied in the Federal Courts. See Madison v. Travelers Insurance Company, 308 So.2d 784 (La.1975). This standard is succinctly stated in the following language penned by the U.S. Fifth Circuit Court of Appeal in Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969):
On motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence — not just that evidence which supports the non-mover’s ease — but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable'and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury.” (Emphasis added)

Applying the above standard, and considering the evidence in the light most favorable to Mr. Joiner, the plaintiff, we conclude that the trial judge was correct in granting the motion for a directed verdict, and agree with his reasons for doing so.

The record reflects the following. Plaintiffs “PETITION FOR COMPENSATION AND FOR DAMAGES”, which in reality is only a defamation suit, is based entirely on two letters composed and sent by defendant in his capacity as an attorney for his client during the course of the proceedings in Jones v. Youngblood and Joiner (La.App. 3rd Cir. 1978, Docket No. 6453, unpublished opinion). In that prior suit, the defendant in these proceedings, Mr. Downing, represented Mrs. Youngblood and filed a third party demand on her behalf against her co-defendant, Mr. Joiner. In connection with this third party demand, Mr. Downing sent the following correspondence to the Department of Occupational Standards in Baton Rouge on June 4, 1976:

“Mr. Wayne D. Joiner is a licensed realtor. He was employed by Mrs. Ora Youngblood to sell certain property located in and around Hot Wells, Louisiana, to Mr. John Jones of New Orleans. Mr. Jones gave a large deposit to Mr. Joiner which was to be his commission should the sale go through. Before the sale was consummated the building on the property burned. Under Louisiana Law, the buyer is no longer obligated to purchase the property.
Mr. Joiner has failed and refused to return the deposit to Mr. Jones. Mr. Jones has sued both Mrs. Youngblood and Mr. Joiner. Our firm represents Mrs. Young-blood. We would appreciate your having Mr. Joiner investigated, and requiring him to return this deposit to Mr. Jones. We would also appreciate your sending us a copy of the bond which he filed with you so that we may institute suit against the bonding company.
Please send a. copy of Mr. Joiner’s bond to me as soon as possible to avoid economic hardship to Mrs. Youngblood.”

Ten days later, Mr. Downing sent this letter to Western Surety Company, the issuer of Mr. Joiner’s real estate bond:

“Our firm represents Ora Cripps Young-blood. Mrs. Youngblood retained the services of Wayne D. Joiner, real estate broker, to sell property owned by her at Hot Wells, Louisiana. Mrs. Youngblood entered into a contract to buy and sell with Mr. John E. Jones of New Orleans. Under the terms of this contract to buy and sell, Wayne D. Joiner, as broker, received $2,450.00 to apply to the purchase price upon the execution of the deed. Before the execution of the deed the improvements on the property burned. Mr. Joiner refused to return the deposit to Mr. Jones. Under Louisiana Law, if the improvements are destroyed before the deed is passed, the contract is void and all deposits must be returned to the purchaser.
As a result of Mr. Joiner’s. failure to repay Mr. Jones, Mr. Jones instituted suit against Mrs. Youngblood and Mr. Joiner. We filed a third party demand against Mr. Joiner for any amounts for which Mrs. Youngblood would be liable to Mr. Jones. We have taken a judgment against Mr. [Joiner] in the amount of $2,450.00, with legal interest at the rate of 8% from March 26, 1976 until paid and for the costs of the legal proceedings. Under the provisions of LSA-R.S. 37:1447B [37:1447 B] we are entitled to recover these damages from Mr. Joiner’s real estate bond. The Louisiana Real Estate Commission advises me that Mr. Joiner’s bond was in effect at the time of this wrongdoing.
Enclosed is a copy of the petition in the above mentioned suit, and a certified copy of our judgment against Mr. Joiner. Please inform me as soon as possible whether you will pay this judgment or whether I should institute suit to recover this amount.”

The judgment referred to in this second letter was a default judgment taken on June 11, 1976, against Mr. Joiner by Mr. Downing on his client’s behalf. Joiner contends that the default judgment was wrongfully taken. The evidence does not support plaintiff’s contention. Instead, the evidence shows the default judgment was properly taken, but that it was later voluntarily withdrawn by Mr. Downing, probably at the request of the judge who signed the judgment. Approximately one year later, in the same suit but after a trial on the merits, judgment was again rendered in favor of Mrs. Youngblood and against Mr. Joiner for the same amount as the default judgment.

Using the following language with which we agree, the trial court explained why Mr. Joiner did not prove his defamation suit and why attorney’s fees were imposed.

“Defamation is ‘an invasion of the interest in reputation and good name.’ Handbook of the Law of Torts, Sec. 111, at 737 (4th Ed. 1971) Prosser. A person is defamed when one party communicates to another party words or a statement which exposes the person to contempt, hatred, ridicule or condemnation.
Essential elements a plaintiff must prove in order to succeed in a defamation action are: 1) defamatory words, 2) publication or communication by the defendant to one other than the party alleged defamed, 3) Falsity of the statement at the time the statement was made, 4) actual or implied malice and 5) resulting injury. Lees v. Smith, 363 So.2d 974 (3rd Cir. 1978).
With the exception of communication/publication, Wayne Joiner has failed to prove any of the elements listed above. There was evidence that two letters were written by Robert Downing (on behalf of his client, Mrs. Ora Youngblood) which can constitute publication. The letter to Western Surety Company informed that company that Wayne Joiner who was bonded by the company, had been third-partied and a judgment had been taken against him. The letter stated the rights of Robert Downing’s client under R.S. 37:1447B [37.1447 B] (all references to Revised Statutes Title 37 are to the specific provisions in effect at the time of the activity involved) to proceed against the bonding company. Inquiry was made as to whether payment would be made or if there was a need to institute suit.
According to R.S. 37:1447 Downing could have instituted suit on behalf of his client against Western Surety even without first obtaining a judgment against Joiner. Instead of instituting suit, Downing first requested payment from the company.
The judgment Downing took against Joiner was rescinded by joint motion, after which the matter proceeded to trial. After the trial the plaintiff was awarded the same amount she would have received in the original judgment against Joiner.
The other letter was written to the State of Louisiana, Department of Occupational Standards informing that agency that Wayne Joiner had acted as a real estate broker of property belonging to Downing’s client, and that Joiner had refused to return a purchaser’s deposit when the purchaser lawfully rescinded the agreement (due to a fire). Downing wrote ‘We would appreciate your having Mr. Joiner investigated . . . ’.
R.S. 37:1453 provides for an investigation of a real estate broker when the commission receives a verified complaint in writing, from any person. Also, the commission is at liberty to institute an investigation on its own motion.
The letter to the commission was in good faith. R.S. 37:1454[A](4) states that a license may be suspended or revoked for:
‘Failure to account for or to pay over any monies belonging to others coming into the possession of the licensee whenever legally obligated, or failure to deposit monies or things of value received on behalf of clients in a separate banking account . . . ’
As pointed out at the defamation trial, Joiner did neither of the above.
I found that Mr. Downing did what any other attorney diligently representing his client would have done. It is part of an attorney’s daily practice to write demand letters on behalf of clients. The letters were relevant, made with probable cause and without malice. The communications were made in good faith, pertaining to a subject in which Downing’s client had an interest and they were made to parties having a corresponding interest or duty. Ward v. Sears Roebuck & Co. [La.App.] 339 So.2d 1255. Downing was attempting to serve his client in a manner appropriate to the situation.
Civil Code Article 2315.1(B) (effective July 29, 1976) states in part:
‘Should plaintiff in any action for defamation, libel or slander not prevail, and judgment be rendered in favor of the defendant, reasonable attorney’s fees may be awarded to the defendant as an item of taxable costs if the court determines that the action was frivolous . ’ (underscoring added)
This defamation suit was filed after the effective date of Civil Code Article 2315.1, therefore the article is applicable.
I find that the suit was frivolous. This is apparent since only one of five essential elements was proved. The directed verdict was granted because of the serious lack of sufficient evidence.
I find that Robert Downing qualifies for an award of attorney’s fees. His pleadings included a prayer that plaintiff pay costs. The code article in point is very specific in classifying attorney’s fees in a defamation suit as an item of taxable costs. The defendant’s analogy that these fees should be likened to expert witness fees is well founded. The case cited by plaintiff in his behalf is not in point. Pittman v. Davidge, 189 So.2d 706 (1st Cir. 1966). In Pittman the main issue was the recovery for services rendered. That case was in the nature of a regular suit in which attorney’s fees must be specifically pleaded. Civil Code Article 2315.1 makes an exception to that general principle.
Charles F. Nunnally, III, and James Boren served as legal counsel for Robert Downing. Nunnally was hired by Appalachian Insurance Company which had a contractual obligation to defend Downing. Boren was hired directly by Downing.
Boren, charging $50.00 per hour for his services, devoted 15 hours of in-court time to this trial. Nunnally worked 60.55 hours at $50.00 per hour on the case outside of court. He also spent 15 hours in court for which he testified he normally charges $75.00 per hour.
Boren’s total is $750.00. Nunnally’s is $4,152.50. As to Nunnally, the collateral source rule as to recovery applies. Womack v. Travelers Insurance Company, 258 So.2d 562. Hall v. State of Louisiana, through Department of Highways, [La.App.] 213 So.2d 169 (3rd Cir. 1968), writs refused [252 La. 959] 215 So.2d 128.
In awarding attorney fees, I do not feel that the Courts are bound by the agreements between attorneys and their clients. Therefore, I fix the attorney fees in the amount of $3,000.00 to be taxed as costs.
Attorney Dee Drell was tendered and accepted as an expert legal witness and testified during the trial. His expert witness fee is fixed at $100.00 and taxed as costs.”

Plaintiff contends that numerous other errors were committed by the trial court. We have carefully considered all twenty-four of Mr. Joiner’s allegations of procedural irregularities and incorrect evi-dentiary rulings, and find that, with the possible exception of error # 8, all of plaintiff’s allegations are without merit. No purpose would be served to list plaintiff’s specifications of error, many of which demonstrate a lack of knowledge of basic and well-established rules of evidence and of trial procedure. By appearing in proper person, Mr. Joiner assumes all responsibility for his inadequacy and lack of knowledge of procedural and substantive law. Delesdernier v. Gene Thorpe Finance, Inc., 225 So.2d 485 (La.App. 4th Cir. 1969); Alexander v. Town of Jeanerette, 371 So.2d 1245 (La.App. 3rd Cir. 1979).

In his specification of error # 8, plaintiff argues that La.C.C.P. Art. 5185, paragraph 2, grants him the right, as one proceeding in forma pauperis, to the compulsory attendance of witnesses without the necessity of pre-paying the witness fees. Joiner contends that the Rapides Parish Clerk of Court’s Office required him to pre-pay $88.00 before that office would subpoena his witnesses. Presumably the Clerk’s Office was acting in accordance with La.C.C.P. Article 1353, which requires the pre-payment of all witness fees before a witness will be subpoenaed. In light of the possible conflict in these provisions, we must conclude that the more recently enacted statute—Article 5185, paragraph 2, is an exception to the general rule established by the older statute—Article 1353. Thus, in all cases in which the pauper laws are not invoked, the general provision of Article 1353 will apply. With this construction, the apparent conflict between the statutes is easily reconciled and both laws will continue to have effect. Legros v. Conner, 212 So.2d 177 (La.App. 3rd Cir. 1968).

Even though the Clerk’s Office would be wrong in requiring plaintiff to pre-pay witness fees, we can grant plaintiff no relief. Nothing filed in the record indicates that plaintiff paid $88.00 or that he was in any way prejudiced if he did pay. The record shows that the trial court was never informed of this alleged violation of Article 5185 until after the directed verdict was granted. Inasmuch as plaintiff lost his suit and was held liable for costs, he would have had to pay the witness fees anyway. Although plaintiff’s alleged hardship is regrettable, there is insufficient evidence presented on this point to justify a reversal or a remand.

For the above and foregoing reasons the judgment of the District Court is affirmed in all respects. Costs of this appeal are assessed against the plaintiff-appellant, Mr. Wayne Joiner.

AFFIRMED.

      . “Libel and slander” are the common law equivalents of and are indistinguishable from “defamation” in Louisiana. Also the “compensation” and “damages” claimed by the plaintiff are simply consequences of Mr. Downing’s alleged wrongdoing. The damages, even if they had been proven (which they were not) would have been recoverable only if the plaintiff had first successfully shown that Mr. Downing was guilty of defamation.

      . Allegations 22, 23, and 24 were inadvertently numbered 21, 22, and 23.

      . There is some correspondence in the record between plaintiff and the Deputy Clerk of Court. However, these letters were not filed into the record nor were they offered as evidence during the trial. Their appearance in the record is unexplained.


author: SWIFT, Judge.

text:
    MID-STATE HOMES, INC., Plaintiff-Appellant, v. Clement LARTIGUE et al., Defendants-Appellees.
    No. 7510.
    Court of Appeal of Louisiana, Third Circuit.
    April 9, 1980.
    Joseph E. Anzalone, Jr., Amite, for plaintiff-appellant.
    Preston N. Aucoin, Ville Platte, for defendants-appellees.
    Before SWIFT, STOKER and LA-BORDE, JJ.
   SWIFT, Judge.

This case is before the court for the second time. Plaintiff-appellant, Mid-State Homes, Inc., originally filed a petition seeking seizure and sale of defendants’ property through executory process. A writ of seizure was issued and served on defendants, Clement and Roselle Lartigue. In response to the seizure, defendants filed a petition demanding an .injunction of the seizure and sale and damages for wrongful seizure. Defendants also filed an exception of no cause and no right of action to plaintiff’s suit for executory process. Following a hearing the trial judge sustained the exception and dismissed Mid-State’s suit for exec-utory process; issued a preliminary injunction enjoining the seizure and sale of defendants’ property; and awarded attorney’s fees to the latter.

On appeal this court, finding that Mid-State had not met the legal requirements for executory process, affirmed that part of the trial court’s judgment issuing a preliminary injunction and awarding defendants attorney’s fees. Noting, however, that the trial judge had erred in dismissing the suit on the exception, we reversed the judgment in this respect and remanded the case for further proceedings. Mid-State Homes, Inc. v. Lartigue, 367 So.2d 1230 (La.App. 3 Cir. 1979).

On remand, after hearing testimony principally in regard to damages, the trial judge granted a permanent injunction enjoining the seizure and sale of the Lartigues’ property and awarded damages to each defendant in the sum of $1,250.00 plus $750.00 as attorney’s fees.

Mid-State has perfected this appeal from the lower court’s ruling.

MOTION TO DISMISS

The defendants have filed in this court a peremptory exception of “no interest, no right of action and no cause of action” and a motion to dismiss the appeal, subject to a reservation of right to urge an increase in the award of attorney’s fees for services performed in connection with the appeal. The Lartigues contend in support of their exception and motion that Mid-State has abandoned or waived its right to executory process by converting the proceeding to one via ordinaria and no longer has an appeal before this court. They cite as authority Meadow Brook National Bank v. Lafayette Royale Apts., 187 So.2d 793 (La.App. 3 Cir. 1966).

Although it is not in the record before us, both parties have attached to documents submitted here copies of a supplemental and amending petition filed by Mid-State in the district court after this appeal was perfected wherein the plaintiff prays that the executory proceedings be converted into an ordinary proceeding in accordance with LSA-C.C.P. Art. 2644. Both sides acknowledged in their briefs that such conversion has been accomplished. However, we have now learned that the trial court has dismissed, with prejudice, the supplemental petition on defendants’ exception to the jurisdiction and the plaintiff has taken another appeal to this court from such ruling.

Be that as it may, all issues that have arisen as a consequence of the filing of the supplemental petition, and particularly whether or not this executory proceeding was duly converted to ordinary process, are not before Us for determination on this appeal because the supplemental petition was not filed until after it was taken. They, of course, will be considered on the subsequent appeal.

It is our opinion that the defendants’ exception and motion to dismiss this appeal lack merit and must be overruled. Regardless of whether the executory process has been converted, this appeal has not been abandoned insofar as the awards in the judgment of damages for wrongful seizure and attorney’s fees are concerned.

ON THE MERITS

In our previous decision this court held that plaintiff failed to meet the requirements for executory process and that the seizure of defendants’ property was wrongful. Consequently, that issue has also-passed out of the case.

Under our jurisprudence a party aggrieved by a wrongful seizure is entitled to recover not only the special damages caused him, but also general damages for mortification, humiliation, mental worry caused by the intentional violation of his property rights. Moses v. American Security Bank of Ville Platte, 222 So.2d 899 (La.App. 3 Cir. 1969).

Needless to say, in the appellate review of damage awards we are required to give full effect to our Civil Code Article 1934 which provides, in part, that in the assessment of general damages, “much discretion must be left to the judge or jury.” Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977); Reck v. Stevens, 373 So.2d 498 (La.1979).

Mr. Lartigue testified that the seizure of his property caused him to worry very much, almost to the point of being sick. He said he could not sleep at night, because he was afraid he was going to lose his home. He stated that he made 20 trips to his attorney’s office in relation to the suit. Mrs. Lartigue testified that the seizure caused her great worry. From the record, it does appear that the Lartigues were quite distressed as a result of the seizure of their property. While the awards of $1250.00 in damages to each defendant may appear to be on the high side inasmuch as the Lartigues were never dispossessed, we are unable to say that they are beyond the limits of the trial judge’s discretion.

Attorney’s fees are also allowable in wrongful seizure cases. May Co., Inc. v. Heirs of Sumage, 347 So.2d 916 (La.App. 3 Cir. 1977); General Motors Acceptance Corp. v. Meyers, 377 So.2d 1355 (La.App. 3 Cir. 1979) Writ granted; Escat v. National Bank of Commerce in New Orleans, 284 So.2d 832 (La.App. 4 Cir. 1973). The trial judge awarded $750.00 for attorney’s fees. We find no abuse of discretion in this award. The Lartigues answered Mid-State’s appeal seeking an increase in attorney’s fees. This court finds an additional award of $250.00 for attorney’s fees is appropriate for the services rendered on appeal.

For the above and foregoing reasons, the peremptory exception and motion to dismiss filed by the defendants in this court are overruled and judgment rendered herein by the trial court on June 6, 1979, is amended to increase the award for attorney’s services in both courts to $1,000.00. In all other respects, the judgment appealed from is affirmed. The costs of this appeal are assessed to the appellant.

AFFIRMED AS AMENDED.


text:
    Wayne D. JOINER, Plaintiff-Appellant, v. C. G. WEEKS et al., Defendants-Appellees.
    No. 7511.
    Court of Appeal of Louisiana, Third Circuit.
    April 9, 1980.
    Writ Refused May 30, 1980.

      Wayne D. Joiner, in pro. per.
    Charles J. Yeager, Alexandria, for defendants-appellees.
    Before CULPEPPER, DOMENGEAUX and FORET, JJ.
   DOMENGEAUX, Judge.

Plaintiff, Wayne Joiner, is a former minister of the United Pentecostal Church. He filed this suit for defamation after learning that defendants recommended he be removed from the ministry of the United Pentecostal Church. This case is before us for the second time. The first review occurred when plaintiff appealed the sustaining of an exception to the trial court’s subject matter jurisdiction. In an unpublished opinion dated April 5,1978, we reversed the lower court ruling and held that it had jurisdiction to hear the case inasmuch as plaintiff had alleged defamation, a quasi-offense under La.C.C. Article 2315 which is reviewable by the District Courts of this state. We then remanded the case for further proceedings without reaching or deciding any other issues then raised. The case is now before us on plaintiff’s appeal from the granting of defendants’ motion for summary judgment.

The thirteen defendants are members and officers of the Louisiana District Board of the United Pentecostal Church. This Board is the official tribunal and governing body of the Louisiana Pentecostal Church. The Board met on December 10, 1976, to consider the merits of a complaint brought by another member of the Church alleging acts of misconduct by the plaintiff, who was then a minister of the Church. At the conclusion of the hearing, a resolution was adopted by the Board recommending that plaintiff be removed from the ministerial fellowship of the United Pentecostal Church. The text of that resolution, passed unanimously by the Board after Mr. Joiner had left the meeting reads as follows:

“WHEREAS, Rev. W. D. Joiner and Rev. Mrs. Ora C. Youngblood met with the Louisiana District Board of the United Pentecostal Church to hear and answer to complaints brought against Rev. W. D. Joiner by Rev. Mrs. Ora Cripps Young-blood and in the hearing of both parties it was' noted by the Louisiana District Board that there were several instances where Rev. Joiner had done things in his business transactions with Sister Young-blood and another party that were not right legally, morally, as a Christian, and certainly not as a minister of the United Pentecostal Church and
Having reviewed all evidence in writing and personal testimony of Sister Ora Youngblood and Brother Wayne Joiner, it is the opinion of the Louisiana District Board that Sister Youngblood is under no further obligation to Brother Joiner relative to the property at Hotwells, furthermore, Sister Youngblood is under no obligation to pay additional tithing to Brother Joiner. It is our recommendation that Brother Joiner pursue this matter no farther in the courts of the land, or before this board and
Further, the District Board requests that Brother Wayne Joiner apologize to Sister Youngblood for this action and the use of her good name and integrity in cashing the check from a Mr. Jones and appropriating these funds to his personal use and Further the District Board requests that Brother Joiner apologize to the District Superintendent, District Secretary, and this Board for his statements of prejudgment relative to this case and
WHEREAS, Rev. Joiner did not make any statement of apologies relative to the Louisiana District Board’s requirements in their decision pertaining to Sister Youngblood’s complaints, and his action in the Board Meeting and
WHEREAS, Rev. Joiner was very disrespectful to the District Superintendent and the District Board, and when asked by the District Superintendent to remain-after the other parties had left to be questioned relative to other matters of a very serious nature (marital problems), he left the Board Meeting and premises with no explanation and in a spirit and action of total disregard to the request of the District Board
THEREFORE, BE IT RESOLVED that in accordance to Judicial Procedure; Article 111, Section 5, paragraph 5, we recommend that Rev. W. D. Joiner be dropped from the Ministerial fellowship of the United Pentecostal Church, relative to his ministerial conduct.”

As a result of this resolution by the Board, plaintiff sued the thirteen members of the Board, alleging defamation as his principal cause of action, and seeking damages. The defendants are: C. G. Weeks (the District Superintendent), J. R. Weid-ner (the District Secretary), G. F. Simpkins, M. K. James, E. W. Reeves, T. D. Cardwell, W. C. Jackson, W. Ashworth, G. A. Man-gum, B. L. White, G. E. Chance, J. T. Miller, and L. J. McDaniel. Additionally, plaintiff has sued five of these defendants — Weeks, Weidner, James, Chance, and McDaniel— for allegedly uttering the following statements (claimed by plaintiff to be defamatory) during the meeting:

“By Weeks: ‘It seems to me that you have played a con game with Mrs. Youngblood and that is what I called you is a Con-Man.’; ‘You have crooked ways.’; ‘Bro. Joiner I question your integrity’; [‘] I imagine you called her Sister when you was trying to get money from her [’].
By Weidner: ‘Bro. Weeks could have pulled your ministerial card a long time ago, right here in one of the conference room.’
By James: ‘If Joiner come to his church that he pastored, that he would not even expect his church people to as much as raise their hands, if they knew what he knew about Joiner and his family.’
By Chance: ‘The Civil Petition that Joiner filed on Ora Cripps Youngblood, et al, is not worth a dime and is not worth the paper that it is wrote on.’
By McDaniel: ‘A person can make an agreement one day and turn around the next day and break that agreement and that is alright, as I have done that myself many times.’; T clearly understand what the agreement was [between plaintiff and Mrs. Young-blood].’ ”

In addition to the defamation charges, plaintiff has also complained that the procedure followed by the Board was improper and that his dismissal from the ministry of the Church has deprived him of his ministerial livelihood.

Our principal concern on this appeal is determining whether the trial court was correct in granting a summary judgment. The rules governing the procedure to be followed when considering the merits of a motion for summary judgment are found in La.C.C.P. Articles 966 and 967:

“Art. 966. Motion for summary judgment; procedure
The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed. The plaintiff’s motion may be made at any time after the answer has been filed. The defendant’s motion may be made at any time.
The motion for summary judgment shall be served at least ten days before the time specified for the hearing. The adverse party may serve opposing affidavits prior to the day of the hearing. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.”
“Art. 967. Same; affidavits
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.
When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.
If it appears from the affidavits of a party opposing the motion that for reasons stated he cannot present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
If it appears to the satisfaction of the court at any time that any of the affidavits presented pursuant to this article are presented in bad faith or solely for the purposes of delay, the court immediately shall order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney’s fees. Any offending party or attorney may be adjudged guilty of contempt.”

In support of the motion for summary judgment, each defendant filed this affidavit:

“[Defendant] is a member of the District Board of the United Pentecostal Church of Louisiana; that one of his most important duties as a member of the District Board is the disciplining of ministers who fail to conform to the spiritual standards required of ministers by the United Pentecostal Church; that in the recommendation of disfellowship of Wayne D. Joiner from the Fellowship of Ministers made by the Louisiana District Board on December 10, 1976, he acted in good faith and with no malice to the aforesaid Wayne D. Joiner.”

The affidavits provided by the defendants complied with all of the requirements of Article 967 by affirmatively showing that the facts set forth in the affidavits were within the personal knowledge of the affiants and by establishing their competence to testify to the material facts at issue. Benoit v. Burger Chef Systems of Lafayette, Inc., 257 So.2d 439 (La.App. 1st Cir. 1972). In fact, Joiner does not dispute the first two averments contained in the defendants’ affidavits. He objects only to the last averment, that the defendants acted in good faith and without malice.

In opposition to the motion for summary judgment, plaintiff filed this affidavit:

“That he is the Plaintiff in the above Captioned matter. That the allegations in the Civil Petition and the amendments are true and correct to the best of his knowledge, belief and information. That Publication, i. e. communication to some other person other that one defamed was committed, by certain defendant. That certain statements made by certain defendant was false. That Malice was shown by certain defendant, toward Reverend Wayne D. Joiner. That acts by defendant has resulted in injury. That Plaintiff Joiner has not received income from ministering since December 10, 1976.”

After a hearing on the motion was held, the trial court held as follows:

“Plaintiff in this case has failed to follow the mandatory provisions of Article 967. The affidavit of plaintiff ‘failed to “show affirmatively” that the affiant was competent to testify to the matters stated therein. The fact that it is stated as a conclusion that the affiant has personal knowledge of the facts will not suffice. The facts as set forth in the affidavit must show that he has such knowledge.’ [Barnes v. Sun Oil Co., 362 So.2d 761 (La.1978)]. The affidavit filed by plaintiff is inadequate to establish the existence of a genuine issue as to a material fact.”

For the above reasons given by the trial court, and for other reasons explained more fully below, the summary judgment 'is affirmed. The only genuine issues involved are legal.

To decide this case we must balance the right of an individual to protect his good name and reputation against the right of a religious organization to conduct its affairs free of civil court scrutiny or intrusion. The balance we strike favors the religious organization since we recognize that a qualified privilege exists which protects the actions of the Board and the statements made by the Board members during the December 10, 1976, meeting.

Our brothers on the Second Circuit succinctly stated the law relative to qualified privileges in Carter v. Catfish Cabin, 316 So.2d 517 (La.App. 2nd Cir. 1975):

“The essential elements of a conditional privilege are described in Madison v. Bolton, . . . [234 La. 997, 102 So.2d 433 (1958)] as ‘good faith, an interest to be upheld and a statement limited in scope to this purpose, a proper occasion, and publication in the proper manner and to proper parties only.’ In Toomer v. Breaux, . . . [146 So.2d 723 (La.App. 3rd Cir. 1962)] it was held that a conditional privilege is applicable ‘if the communication is made (a) in good faith, (b) on any subject matter in which the person communicating has an interest or in reference to which he has a duty, (c) to a person having a corresponding interest or duty. This privilege arises from the social necessity of permitting full arid unrestricted communication concerning a matter in which the parties have an interest or duty, without inhibiting free communication in such instances by the fear that the communicating party will be held liable in damages if the good faith communication later turns out to be inaccurate.’ ”

The conditional or qualified privilege has been recognized and applied in a variety of circumstances in Louisiana, including one instance in a religious or ecclesiastical setting, Gaillot v. Sauvageau, 154 So.2d 515 (La.App. 4th Cir. 1963). We feel that the privilege applies here because all the essential elements described in Madison v. Bolton are present.

The defendants all deposed that their actions at the December 10, 1976 meeting were conducted in good faith and without malice. Defendants spoke from personal knowledge and are competent to testify to that fact. Plaintiff, in opposition to these affidavits, merely reasserted the allegations of his petition that the defendants acted in bad faith and with malice. Yet he did not establish his competence to testify to the factual issue of whether defendants acted in bad faith and with malice. On the contrary, plaintiff admitted that the Board was vested with the authority to recommend the dismissal of any minister that the Board found to be spiritually unfit. This is all that the Board did. Its adopted resolution served as a notice to all concerned of the Board’s recommendation and the reasons therefor. No suggestion is made that the resolution was circulated to anyone not having a legitimate interest in the Board’s proceedings.

Attendance at this meeting was limited to the thirteen Board members, plaintiff, the complainant, Mrs. Ora Cripps Young-blood, and her two witnesses. Any potentially damaging comments made by the Board members during this meeting were heard only by those in attendance who must surely have been aware of the nature of the proceedings.

Plaintiff’s complaint against the defendant Board members is, in reality, an attempt by plaintiff to appeal the decision of the Board that he is spiritually unfit to continue as a minister in the United Pentecostal Church. The United States Supreme Court has declared it is impermissible, as a violation of the First Amendment of the United States Constitution for civil courts to investigate the propriety of ecclesiastical proceedings in disciplinary matters. Serbian Eastern Orthodox Diocese for the United States of America and Canada, et al. v. Milivojevich, 426 U.S. 696, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976).

It would be ludicrous to believe that the constitutional principles upheld by the United States Supreme Court in Milivojevich could be satisfied by allowing this intrusion into the disciplinary proceedings of an ecclesiastical board. To allow defamation suits to be litigated to the fullest extent against members of a religious board who are merely discharging the duty which has been entrusted to them by their church could have a potentially chilling effect on the performance of those duties and could very well inhibit the free communication of important ideas and candid opinions. Our state Supreme Court recognized this danger to the free exercise of First Amendment rights in Mashburn v. Collin, 355 So.2d 879 (La.1977).

Mashburn is in many important respects similar to the case under review and supports our affirmation of the summary judgment. In Mashburn, a restaurant critic was sued by a restaurateur after the critic published a scathing review of the restaurant’s cuisine. The trial judge granted the critic’s motion for summary judgment. The Court of Appeal reversed the trial court. The Supreme Court reversed the Court of Appeal and reinstated the trial court’s judgment. After reciting at length the history of the scope of protection afforded certain First Amendment rights, the Supreme Court held in favor of the critic.

The Court considered the deposition filed by the critic wherein he said that the review expressed his careful, honest opinion and reflected no ill will or desire to harm the restaurant or its owners. The Court found that his deposition satisfactorily established the absence of knowing or reckless falsity on his part. The affidavit filed by the restaurant owner neither related to the information contained in the column nor contradicted the critic’s deposition.

The Court found that the reasonable inferences favorable to the restaurant owner which may have been drawn from the facts before the Court did not show that a reasonable trier of fact could find by clear and convincing evidence that the restaurant owner had been defamed with knowing or reckless falsity by the defendant.

We reach the same result here as the Court did in Mashburn-reasonable inferences favorable to Joiner do not show that a reasonable trier of fact could find by clear and convincing evidence that the Board or its members acted or spoke with malice toward the plaintiff.

Although Mashburn was not concerned with the protection of religious disciplinary proceedings via a qualified privilege, it is important and useful here because of its approval of summary proceedings in a defamation suit:

“Summary adjudication may be thought of as a useful procedural tool and an effective screening device for avoiding the unnecessary harassment of defendants by unmeritorious actions which threaten the free exercise of rights of speech and press.”

355 So.2d at 891.

This rationale adopted by the Supreme Court in striving to protect the free exercise of rights of speech and press works just as effectively here to protect the free exercise of religion, another First Amendment right which has received renewed protection through the Milivojevich case.

Having found that defendants’ motion for summary judgment is well-supported by their affidavits, and that plaintiff’s affidavit fails to raise a genuine issue of material fact, we now find that defendants are entitled to judgment as a matter of law.

Finally, we consider plaintiff’s complaint of numerous irregularities in the December 10, 1976, proceedings of the Board and his complaint that he has been wrongfully deprived of his ministerial income. Milivojevich teaches us that we aré not to inquire into the propriety of religious disciplinary proceedings. It also instructs us that we are required to accept certain consequences as incidental effects of these ecclesiastical determinations not subject to judicial abrogation. Therefore, this court cannot inquire into the merits of plaintiff’s claim that he has been wrongfully disfel-lowshipped due to procedural irregularities and his loss of ministerial income must be accepted as a necessary consequence of his dismissal from the ministry.

For the above and foregoing reasons the judgment of the' District Court dismissing plaintiff’s claim against all defendants is affirmed. Costs are assessed against the plaintiff, Wayne Joiner.

AFFIRMED.

      . All quotes, unless they are from a source other than the record, are quoted precisely as they appear in the record. No corrections have been made and no effort has been taken to alert the reader to grammatical or other errors by using the customary designation “[sic]”.

      . It appears from the record that C. G. Weeks expired during the pendency of this action.

      . Plaintiff has sued Weidner and Chance on account of other statements allegedly made at some unspecified time before the meeting as follows:
      “By Weidner: (to the complainant, Ora Cripps Youngblood): ‘You should have con-’ suited us before you got Joiner to Co-Pastor with you. That we have been after Joiner for a long time.’
      By Chance: (when Mrs. Youngblood allegedly tried to settle the suit with plaintiff): ‘That he did not think that Mrs. Youngblood should offer Joiner anything concerning the Civil Petition, as the Petition was not any thing.’ ”
      We find these statements to be wholly lacking in defamatory content. These words simply are not capable of a defamatory meaning and cannot form the basis for a defamation suit. See Brown v. News-World Publishing Corp., 245 So.2d 430 (La.App. 2nd Cir. 1971) for the test used to determine whether a statement is defamatory or not. See also Kihneman v. Humble Oil & Refining Co., 312 F.Supp. 34 (E.D.La.1970) which supports the view that “whether the words used, are capable of a defamatory meaning” is a question of law for determination by the court, not a jury.

      . The standard applied in Mashburn-knowing or reckless falsity — is not the same here. The standard here is generally stated as “malice” or “ill will.” The difference in terminology is not critical since the underlying reasons for granting the summary judgment are the same in both cases.