text:
    CONTINENTAL CASUALTY COMPANY, Plaintiff-Appellant, v. PROFESSIONAL TRIM AND UPHOLSTERY, INC., Defendant-Appellee.
    No. 14536.
    Court of Appeal of Louisiana, Second Circuit.
    April 27, 1981.
    Mayer, Smith & Roberts by Mark A. Goodwin, Shreveport, for plaintiff-appellant.
    Leon M. Pliner, Shreveport, for defendant-appellee.
    Before HALL, JASPER E. JONES, and FRED W. JONES, Jr., JJ.
   HALL, Judge.

Plaintiff as subrogee of its insured filed suit against defendant-corporation to recover $2,150 it paid to its insured for the loss of his boat, motor, and trailer. Plaintiff alleged that its insured took his newly-purchased bass rig to the defendant to have a canvas cover made for it and that while the rig was in the possession of the defendant it was either lost or stolen through the negligence of defendant or its employees. Defendant denied ever receiving delivery of the boat. After trial, the district court rejected plaintiff’s demands, finding that plaintiff failed to establish that the boat was left at the defendant’s place of business. Plaintiff filed this appeal. We affirm.

Plaintiff’s chief witness at trial was its insured, Dr. Overdyke. He testified that he bought the used boat, motor, and trailer on April 3,1978. In the latter part of April he took the rig to defendant to have a canvas cover made for it. Dr. Overdyke testified that he spoke to someone in charge whose name he could not remember, that the two discussed the cover and the price that would be charged, approximately $60, and an agreement was reached that defendant would make the desired boat cover. Another person, presumably an employee of the defendant, then removed the boat and trailer from the trailer hitch on Overdyke’s car. Dr. Overdyke admitted that he did not get a receipt, invoice or work order from defendant’s employees; nor did he recall leaving his name, address or telephone number. Dr. Overdyke testified that he left his rig with the defendant on a Friday and that he was told that the cover would probably be made on Saturday and could be picked up in the early part of the following week.

Dr. Overdyke returned to defendant’s place of business early in the next week, probably on a Tuesday, and spoke with the same man he had initially spoken with when he took the boat to defendant’s place of business. The boat and trailer could not be located and no one on the premises knew what had happened to it. Dr. Overdyke testified that he and defendant’s employees discussed what should be done and that he, Dr. Overdyke later called the police to report the theft.

A police officer from the Central Records Division was called to testify on behalf of plaintiff. The officer testified that he took a telephone call regarding the theft of the boat and made an offense report of the complaint. According to that report, which was filed into evidence, Dr. Overdyke informed the police that his boat, motor, and trailer were stolen from defendant’s place of business.

Plaintiff’s final witness, offered as an expert in the field of appraising boats, motors, and trailers, estimated the value of the Overdyke boat, motor, trailer, and optional equipment to be $1,700 to $1,800.

Defendant’s president, David Crofton, testified regarding defendant’s job control system and standard operating procedures. Mr. Crofton testified that when a boat or automobile is brought in for a job an invoice or work order is immediately made which describes the work desired. Each invoice includes the name of the person or company who authorizes the work to be done. Invoices covering all the work done by the defendant-corporation in the month of April 1978 were introduced into evidence. There is no invoice for work done for Dr. Overdyke. Mr. Crofton testified he has no record of any work order for a boat cover or anything else for Dr. Overdyke. Defendant’s accountant testified that he reviewed the invoices and his accounting records and found no records or invoices relating to work done for Overdyke in April 1978.

Mr. Crofton also testified that $60, the estimated price which Overdyke testified he was quoted, would not even cover the cost of materials for the described boat cover. Usually a boat cover of this nature would cost approximately $135 to $145. Additionally, defendant’s president stated that his company’s policy is to give a firm price to a person who brings a boat or car in for upholstery work. Once the exact nature of the desired work is determined, a firm price is quoted before the work is begun. Estimates are not given in such situations. Mr. Crofton also testified that his shop is not open on Saturdays.

Defendant called one of its regular customers who testified that he had been doing business with defendant corporation since 1969. In recent years, since about 1974, he has had no work done by defendant for which an invoice was not made. He is always quoted a firm price for the work he wants done.

Mr. Crofton testified that he did not receive the boat from Dr. Overdyke and did not have knowledge of any work that was to be done for Dr. Overdyke. However, Mr. Crofton does leave the shop on occasion and when he is out his shop foreman, Charles Harper, is in charge.

Plaintiff asserts that the evidence it offered at trial was sufficient to establish the existence of a contract of deposit between its insured and the defendant. A deposit is an act by which a person receives the property of another binding himself to preserve it and return it in kind. LSA-C.C. Art. 2926. The contract of deposit is perfected by the delivery of the thing deposited. LSA-C.C. Art. 2930. “The voluntary deposit takes place by the mutual consent of the person making the deposit and the person receiving it.” LSA-C.C. Art. 2932. Consent is implied when the owner has carried the thing to the depositary and the latter, knowing that the thing had been sent, has not refused to receive it. LSA-C.C. Art. 2933. Once the existence of the deposit and the loss of the property while deposited is established, a presumption is raised that the loss resulted from lack of due care on the depositary’s part and the burden is then on the depositary to exonerate himself from fault. Coe Oil Service, Inc. v. Hair, 283 So.2d 734 (La.1973); Brown & Blackwood v. Ricou-Brewster Building Company, 239 La. 1037, 121 So.2d 70 (1960); Alex W. Rothschild & Company v. Lynch, 157 La. 849, 103 So. 188 (1925). Plaintiff argues on appeal that the defendant presented only circumstantial evidence which was insufficient to rebut the direct testimony which it offered.

Plaintiff argues that the defendant’s evidence did not conclusively prove that the boat was not delivered to defendant’s shop, and emphasizes that defendant did not call all of its employees as witnesses to testify that they knew nothing about the boat.

Plaintiff cannot rely on the weakness of defendant’s evidence because plaintiff failed to offer proof sufficient to establish the existence of a contract of deposit. All agreements or contracts relative to movable property, the value of which exceeds $500, must be proved by at least one credible witness and other corroborating circumstances. LSA-C.C. Art. 2277. In Cormier v. Douet, 219 La. 915, 54 So.2d 177 (1951), the court applied Article 2277 to a contract of deposit.

The trial court in this case held that plaintiff failed to prove by a preponderance of the evidence that the boat was delivered to and received by the defendant. The court in its oral reasons for judgment evaluated the evidence and noted several discrepancies in the testimony.

In Cormier v. Douet, supra, the court stated:

“Since the requirement of Article 2277 R.C.C. is such that it of necessity draws into its legal vortex the sufficiency of proof shown by the record, and since the evidence is correlated with the credibility of the witnesses, the district judge’s conclusions must be accepted, unless they are manifestly erroneous. Barnes v. Le Blanc, 207 La. 989, 22 So.2d 404; Thornton v. Ellington, 209 La. 613, 25 So.2d 282; Meridian Land & Mineral Corporation v. Bagents, 211 La. 627, 628, 30 So.2d 563, and Martin v. Martin, 212 La. 1092, 34 So.2d 329.”

After a thorough review of the record, we find that the conclusion of the trial court is not manifestly erroneous.

Plaintiff failed to establish delivery of the boat to the defendant and the existence of a contract of deposit. The evidence offered by plaintiff did not meet the proof requirements imposed by Article 2277. Plaintiff offered only the testimony of its insured to prove the existence of a contract of deposit. Nothing was introduced which corroborates this testimony. The police officer called by plaintiff merely testified regarding information that was given to him by the insured. This testimony does not constitute the “other corroborating circumstances” required by Article 2277.

Because the decision of the trial court is not manifestly erroneous and because the evidence as a whole does not satisfy the proof requirements imposed by Article 2277, the judgment rejecting plaintiff’s demands must be affirmed.

For the reasons assigned, the judgment of the trial court is affirmed at plaintiff’s costs.

Affirmed.


source: Caselaw Access Project

author: REDMANN, Judge.

license: Public Domain

text:
    Jesse JOHNSON v. JOHNS-MANVILLE SALES CORPORATION.
    No. 11795.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 27, 1981.
    Writ Granted July 2, 1981.
    Law Offices of Gerald P. Webre, Kerry P. Camarata, Metairie, for plaintiff-appellee.
    Chaffe, McCall, Phillips, Toler & Sarpy, David L. McComb, G. Phillip Shuler, III, New Orleans, for defendant-appellant.
    Before SAMUEL and REDMANN, JJ., and STOULIG, J. pro tern.
   REDMANN, Judge.

In the contract between defendant employer and its hourly employees’ union in force when plaintiff was an employee, art. XXV(e) expressly obliges the employer to continue in full force the retirement plan. Thus a refusal to pay benefits under the plan would breach the contract.

The present action is for benefits allegedly due to plaintiff under the plan and is therefore a suit on a labor contract within § 305 of the Labor Management Relations Act, 29 U.S.C. § 185. The federal law is that, if a covered contract provides for arbitration of grievances (and failure to pay severance pay is a grievance), the arbitration procedure rather than a judicial proceeding must be pursued; Republic Steel Corp. v. Maddox, 1965, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580. Defendant could have removed this suit to the United States District Court, Talbot v. National Super Markets of La., E.D.La.1974, 372 F.Supp. 1050, but the same law governs although the suit is not removed.

Plaintiff relies on Moore v. Illinois Central R. Co., 1941, 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089, and Transcontinental & Western Air, Inc. v. Koppal, 1953, 345 U.S. 653, 73 S.Ct. 906, 97 L.Ed. 1325. Republic, however, 379 U.S. at 655-6, 73 S.Ct. at 907, observed that diversity cases under the Railway Labor Act presumed state law applicability, while later cases held substantive federal law applicable:

Thus a major underpinning for the Moore case in the field of the Railway Labor Act, and more importantly, in the present context, for the extension of its rationale to suits under § 301(a) of the LMRA, has been removed.
We hold that any such extension is incompatible with the precepts of [Textile Workers U. of Am. v.] Lincoln Mills [1957, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972] and cannot be accepted.

The judgment appealed from is set aside and plaintiff’s action is dismissed.


author: KLIEBERT, Judge.

text:
    NEW ORLEANS MEDICAL SALES AND SERVICES, INC. v. Errol A. BROWN.
    No. 11704.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 27, 1981.
    Rehearing Denied June 15, 1981.
    Gregory P. Orvis, New Orleans, for plaintiff-appellee.
    Law Office of Jacqueline Mae Goldberg, Alan F. Schoenberger, Gordon S. Patton, New Orleans, for defendant-appellant.
    Deutsch, Kerrigan & Stiles, Frederick R. Bott, New Orleans, for third party defendant-appellee.
    Before REDMANN, KLIEBERT and BAILES, JJ.
   KLIEBERT, Judge.

Errol A. Brown, defendant-appellant (hereinafter Brown), accepted delivery and signed the invoice evidencing delivery of a transcutaneous nerve stimulator from New Orleans Medical Sales and Service, Inc., plaintiff-appellee (hereinafter New Orleans Medical). The invoice cost of the stimulator was $422.30. Plaintiff instituted suit, seeking $510.98, (it added monthly service charges to the initial invoice price), together with 25% attorneys fees, legal interest, and all costs. Brown filed a general denial and a third-party petition against Martin-Marietta Corporation (hereinafter Martin-Marietta), his employer, alleging that it was responsible for his medical expenses under the workmen’s compensation statutes, because the cost resulted from injuries incurred in the course and scope of his employment. Martin-Marietta answered the third-party petition denying liability. After trial on the merits, the trial court granted plaintiff judgment as prayed for and dismissed defendant’s third-party demand against Martin-Marietta. Brown appealed.

In the trial court and on appeal, Brown contends he should not have to pay for the stimulator because it was ordered by his doctor for the account of his employer, Martin-Marietta.

Two witnesses testified at the trial. Dale Copien, Credit and General Manager of New Orleans Medical, established the delivery and acceptance of the stimulator by Brown and his subsequent refusal to pay notwithstanding repeated demands. Mr. Copien admitted sending Martin-Marietta a copy of the statement. He testified, however, that this was done for the convenience of Brown and his insurance carrier. If the carrier was obligated to make payment to Brown, it could, for the convenience of all, make payment directly to New Orleans Medical.

Brown admitted signing the invoice at the time of delivery. However, he stated that he did not personally order the stimulator from plaintiff; rather, his doctor did. He further stated that he signed the invoice only as proof to Martin-Marietta that he received the stimulator because the insurance representative had told him that his insurance coverage would pay the bill.

The invoice which is central to this case and which was introduced into evidence is dated November 27,1978. It reflects: “To: Errol Brown:”, “Ordered by: Dr. Bradke” (defendant’s doctor), “Bill to: Martin-Marietta Co.”, and delivery on November 28, 1978. At the bottom of the invoice is a line on which the signature of Errol A. Brown appears. Beneath the signature line are the words “Buyer accepts the terms and conditions set forth below.”

Below this are three terms and conditions:

“1. If this account is not paid in full within fifteen (15) days of the date of delivery a FINANCE CHARGE 'will be added. The FINANCE CHARGE is computed by a ‘Periodic Rate’ of lx/2% which is an ANNUAL PERCENTAGE RATE OF 18% applied to the delinquent amount after deducting current payments and/or credits with a minimum charge of .50 per billing plus postage.
2. In the event it becomes necessary to place this account in the hands of a collection agency or an attorney for collection, Purchaser shall be responsible for all reasonable collection costs and/or attorney fees.
3. No allowance or adjustment will be made on any item not returned unused within three (3) working days from date of purchase.”

Appellant argues that he did not give the requisite consent to be bound by the terms of the invoice.

The Louisiana Supreme Court, in Illinois Central Gulf Railroad Co. v. International Harvester, 368 So.2d 1009 (La.1979) stated (at 1011):

“Consent may be given either expressly or by implication, La.C.C. arts. 1780,1811, but the cases in which consent is implied are particularly determined by law. La. C.C. art. 1781. According to the civil code, consent may be implied in the following instances:
‘. .. when it is manifested by actions, even by silence or by inaction, in cases in which they can from the circumstances be supposed to mean, or by legal presumption are directed to be considered as evidence of an assent.’ La.C.C. art. 1811.
< * * *
‘(W)hen (actions without words) are done under circumstances that naturally imply a consent to such contract .. . ’ La.C.C. art. 1816. See also, La.C.C. art. 1817. Thus, except in those instances in which the statutory law creates a legal presumption, the mere silence of an offeree should not, in principle, be considered as involving acceptance on his part. His consent can result from silence, however, when combined with other facts or acts so as to imply or indicate his consent unequivocally, (citations omitted). In cases where the law does not expressly create a legal presumption of consent from certain facts, it is left to the discretion of the judge to determine if consent is to be implied from the particular circumstances of the case. La.C.C. art. 1818; Pooler Bldg. Mats. Inc. v. Hogan, 244 So.2d 62 (La.App. 1st Cir. 1971).”

In the instant case, Brown’s actions place him within the legal presumption of Civil Code article 1816. Having received the goods at his residence, having signed his name above a line implying that he accepted the terms of the invoice under circumstances which imply a consent to pay and, ostensibly, having used the product, leads to the same conclusion that the trial court reached, i. e., that defendant was bound by contract unto plaintiff and therefore obligated to pay same.

Appellant further argues that the court below erred in assessing him attorney’s fees in the amount of 25%. We find no error here, since the second term of the contract provides for reasonable attorney’s fees should legal services be needed for collection. There was no error in assessing said fees at 25% of the amount due and owing.

Appellant’s final argument is that the trial court erred in dismissing Brown’s third-party demand against Martin-Marietta, his employer. Brown contended that Martin-Marietta should ultimately be liable since it owes its employees a duty to provide for such medical expenses under the workmen’s compensation laws.

However, there is not a scintilla of evidence to support defendant-appellant’s assertion that his employer is liable. Brown did not prove any connexity whatsoever between the medical device at issue herein and any injury which was incurred in the scope and course of employment. Accordingly, the trial court was correct in dismissing the third-party demand against Martin-Marietta.

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal to be paid by appellant.

AFFIRMED.

      . Civil Code Art. 1816 states in pertinent part:
      “Actions without words, either written or spoken, are presumptive evidence of a contract when they are done under circumstances that naturally imply a consent to such contract. To receive goods from a merchant without any express promise, and to use them, implies a contract to pay the value... In all those cases and other of the like nature, all the conditions, which he, who gives or proposes, annexed to the delivery or the acceptance of the proposition, are also presumed to have been accepted by the act of receiving ...”


text:
    Walter S. BARNES v. PARK PLACE HOMES, INC., Murry P. Holmes, Sr., Murry P. Holmes, Jr., a/k/a M. Paul Holmes, Jr.
    No. 11815.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 27, 1981.

      Bagot & Gniady, John H. Gniady & Michael H. Bagot, New Orleans, for plaintiff-appellant.
    Gerald J. Martinez, Metairie, for defendants-appellees.
    Before REDMANN, KLIEBERT and BAILES, JJ.
   KLIEBERT, Judge.

The trial court dismissed the suit of Walter Barnes, plaintiff, and awarded to the defendant, Park Place Homes, Inc., the sum of $3,038.78, plus interest and costs on its reconventional demand. Plaintiff appealed.

Walter Barnes (hereinafter Barnes) purchased from Park Place Homes, Inc. (hereinafter Park Place) two commercial buildings. One building bore Municipal No. 3105 Independence Street and the other bore Municipal No. 3109 Independence Street. On November 15, 1972, the time of the sale of 3105 Independence Street, Park Place deposited money in an escrow account with the Greater New Orleans Homestead Association, Barnes’ financer and mortgage holder on the property. Similarly, money was deposited with the same homestead when the sale of 3109 Independence Street was made on January 5, 1973.

Apparently, as part of the selling agreement, Barnes leased each building to Park Place at a monthly rental of $900.00 per building. According to the lease agreement, the rentals for 3105 Independence Street commenced on October 11, 1972 and terminated on October 11, 1973, and amounted to $10,800.00 for the one year period. (Note the sale was dated November 15, 1972). For 3109 Independence Street, the rentals commenced on October 25, 1972 and terminated on October 25, 1973, and also amounted to $10,800.00 for the one year period. (Note the sale was dated January 5, 1973).

On August 16, 1976, Barnes filed suit claiming rentals of $5,400.00 due for the last three months on both leases, plus attorney fees and penalties as provided for under the lease. At the time of filing suit, he prayed for and an order issued authorizing the issuance of a writ of attachment on the funds on deposit with the Greater New Orleans Homestead upon Barnes posting bond of $8,500.00. The defendant, Park Place, answered denying any indebtedness for the rentals. Incorporated in the answer was a reconventional demand. In the re-conventional demand, Park Place, Inc. alleged it made advances to Barnes of rentals due under the leases of $3,600.00 on October 11, 1972 and of $2,813.78 on October 25, 1972. It also alleges the existence of oral agreements under which Barnes was authorized to and did commence collecting rents from the occupants (sub-tenants of Park Place) of the leased premises. The recon-ventional demand prayed for a judgment rejecting the plaintiff’s demand and for judgment against Barnes for all monies retained by Barnes in excess of that due under the lease, plus reasonable attorney fees as provided for in the lease.

The trial court concluded that there apparently were verbal arrangements made between the parties; but, neither litigant conclusively proved the provisions of the same. It then went on to grant judgment in favor of Park Place on the reconventional demand in the amount of $3,038.78. In its reasons for judgment the trial court concluded the last three months’ rents of $5,400.00 sued for by plaintiff were due. However, it concluded that plaintiff had obtained $7,438.78 in advance rents ($3,600.00 made on October 11, 1972 and $2,813.78 made on October 25, 1972 in advance rent deposits) and $540.00 and $485.00 in rents collected by plaintiff directly from Park Place’s sub-tenants. The $3,038.78 judgment was computed as the $2,038.78 overage on the advances plus $1,000.00 attorney fees.

Barnes brought this appeal contending the trial court erred in granting any credits other than the money collected by Barnes directly from Park Place’s sub-tenants should be credited against the $5,400.00 in rents still due under the lease.

The lease dated October 25,1972 covering the premises bearing Municipal No. 3109 Independence Street was on a printed form and contained the following special (typewritten & handwritten) provisions:

“Lessee agrees to pay monthly utility bills and maintenance of building. This lease is predicated upon acquisition of building by Walter Barnes. This lease will be cancelled upon sale of building by Walter Barnes. Lessee agrees to assign rentals from tenants to lessor to apply to monthly rental. Lessee agrees to escrow $3,600.00 toward advance lease payments and difference from $1119 — in total tax and insurance cost to lessor to be borne by or received by lessee.”

The lease for 3105 Independence Street contained a similar provision.

Only the plaintiff and one of the defendants testified at the trial. Walter Barnes, plaintiff, stated he had received rentals of $1,800.00 for 3105 Independence Street in January 1973. In June 1973, he sent the defendant a letter stating that it was in default. In the June 1973 letter he stated he would thereafter collect rentals directly from Park Place’s sub-tenants, but would not release Park Place from rental obligations. He then admitted collecting $485.00 from sub-tenants at 3105 Independence Street and $540.00 from sub-tenants at 3109 Independence Street, following the mailing of the letter. However, under cross-examination, Barnes admitted that he did not have all rent records for the time that he was collecting the rents and became vague as to exactly what rents were due. There were six apartments per building, but he had records for only two apartments in each building. Furthermore, Barnes admitted that the ledger sheets which he kept on the building rentals did not reflect credits in defendant’s favor for the advance rentals of $3,600.00 and $2,813.78, nor did he have proof of deposits of rentals from June 1973 onward with any bank.

The other witness was M. Paul Holmes, Jr., who had signed the lease for Park Place Homes, Inc. Mr. Holmes admitted that Park Place had not made any payments of rentals after June, 1973 because it was his understanding that Barnes was going to collect the rents himself. Furthermore, he stated that all rentals which Park Place collected subsequent to the letter from Barnes were sent to Barnes, and that it totalled more than Barnes had testified to. He produced and offered in evidence a number of checks with Park Place as the payee and sub-tenants as the makers, which he contended were endorsed and forwarded to Barnes. He testified that although he had no documentary evidence in support of same, his recollection was that $3,600.00 in advance rentals had been paid on each building.

The testimony is in hopeless conflict as to the amount of the advance rentals and the period for which the advance rentals were to be applied as well as to the amount of the rents due and the amounts paid after the letter of June 7, 1973. Although it is apparent verbal agreements were made between the parties which modified the special provisions of the written lease above quoted, no evidence was adduced from which it can be determined exactly what the agreements were after the modifications. Both parties evaded pertinent questions by alleging destroyed or missing records.

It is a well-established legal principle that one who asserts a fact must carry the burden of proving it by a preponderance of the evidence. Meyer v. State, Dept. of Public Safety License Control and Driver Improvement Division, 312 So.2d 289 (La. 1975). Proof by a preponderance of the evidence simply means that, taking the evidence as a whole, such proof shows the fact or cause sought to be proved is more probable than not. Marcotte v. Travelers Insurance Co., 258 La. 989, 249 So.2d 105 (1971).

Given the evidence adduced at this trial, it is evident that neither side has proven its case by a preponderance of the evidence. Plaintiff has failed to adequately show that it gave defendant proper credits for the advances, rental deposits or for all rents collected by plaintiff since the June, 1973 letter. On the other hand, defendant has not proven that it had paid the entire amount of the lease by a preponderance of the evidence so that it would be entitled to a judgment for all sums in excess of $5,400.00 (the amount plaintiff seeks herein) retained by plaintiff.

For the foregoing reasons, the judgment of the district court is amended insofar as it granted judgment in favor of plaintiff in reconvention, Park Place Homes, Inc., and against defendant in reconvention, Walter S. Barnes, and it is ordered, adjudged and decreed that the reconventional demand of Park Place Homes, Inc. against Walter S. Barnes be and is hereby dismissed at its costs. Said judgment is affirmed insofar as it dismisses Barnes’ suit against Park Place Homes, Inc., each party to bear its own costs.

AMENDED AND AFFIRMED.

      . Apparently in both instances the accounts were pledged to the Homestead as additional security for the Barnes’ loan. It is unclear from the record whether the amount deposited in the accounts at the time of sale was $2,000.00 in each instance or $3,600.00 on the first sale and $2,813.78 on the second sale.

      . The letter of June 7, 1973 by Barnes to Park Place specifically stated: “This does not mean I am relieving you of any future obligation regarding rents.”


author: GULOTTA, Judge.

text:
    Virginia Adamietz MONGRUE v. Roland Joseph MONGRUE.
    No. 11854.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 5, 1981.

      Daniel E. Becnel, Jr., Mary Hotard Bec-nel, C. William Bradley, Jr., Barry J. Landry, Reserve, for plaintiff-appellant.
    Norman J. Pitre, Luling, for defendant-appellee.
    Before GULOTTA, SCHOTT and PEREZ, JJ.
   GULOTTA, Judge.

The trial judge granted a separation from bed and board in favor of Roland A. Mon-grue after hearing his testimony and that of a major daughter bbrn of the marriage. The wife was absent for the trial but was represented by her attorney, who was present for the major part of the hearing and cross examined the witnesses. Virginia Mongrue, appealing, claims the trial judge erred in denying her attorney’s oral motion at the conclusion of the testimony to hold the case open. She further claims the judgment in favor of the husband is contrary to the weight of the evidence. We affirm.

On March 5, 1980, the wife filed a petition for separation based on Roland’s alleged cruel treatment and his request that she leave the matrimonial domicile. Roland answered, denying Virginia’s allegations, and reconvened for separation in his favor because of Virginia’s mistreatment of him and her repeated abandonment of the marital domicile.

On April 18, 1980, on motion of Roland’s attorney, the trial judge set the case for trial on the merits on June 20, 1980. The clerk’s certificate indicated a copy of the order was mailed to all counsel of record on April 18, 1980 and on April 21 Virginia’s attorney sent her a letter enclosing a copy of the notice of trial and advising her to meet him at court at the specified time on June 20.

Virginia did not appear at the trial on the merits on June 20. Roland Mongrue and his daughter, Ginger, testified on direct examination and were cross examined by Virginia’s attorney. At the conclusion of Roland’s case, Virginia’s attorney advised the court that he had notified Virginia by letter of the hearing, that he had assumed she would be present and that he did not know her whereabouts. Thereupon he asked that the case remain open for her testimony. The court orally denied this motion for continuance, however, and took the case under advisement on the merits. On June 25, 1980 judgment was rendered in favor of Roland decreeing a separation. In written reasons for judgment, the court found Virginia had abandoned the marital domicile and had refused to return.

At the outset, we reject Virginia’s contention that the trial court abused its discretion by refusing to hold the case open for her testimony.

In our case, Virginia’s attorney notified her by mail two months prior to the trial date of the time and place of the hearing. Her absence at trial on June 20, 1980 was unexplained and no exigent circumstances were proven. In time honored cases our courts have held that the mere absence of a party from court is not sufficient ground for granting a continuance. Lizardi v. Arthur, 16 La. 577 (1840); Hills v. Jacobs, 7 Rob. 406 (1844); Kohn v. Short, 18 La.Ann. 291 (1866). Moreover, Virginia’s attorney appeared shortly after trial began, extensively cross examined both witnesses and did not move for a continuance until the conclusion of Roland’s case. As pointed out in Cousin v. Schilleci, 374 So.2d 130 (La. App. 1st Cir. 1979), a continuance granted upon a request made only after the opposing party has presented its evidence and rested obviously gives an unfair advantage to the moving party. Under these circumstances, therefore, we find no abuse of the trial court’s discretion.

We likewise reject Virginia’s argument that the trial court’s granting of a judgment in favor of Roland is contrary to the evidence. Roland testified that Virginia’s persistent gambling and drinking precipitated arguments in the family over the years and that she had left the marital domicile on five occasions prior to her final leaving on February 24,1980. According to Roland’s testimony, he could not “put up” with her behavior “any more” and that it had caused “home-life hardship.” He indicated that Virginia kept late hours playing cards and gambled her allowance away. Roland had asked Virginia to stop gambling and at one point had a priest intercede.

Although the parties had reconciled after the wife had left the domicile on various occasions over the years, Virginia refused to return home after February 24, 1980, despite her husband’s request that she do so. Roland’s testimony was corroborated by a twenty-year-old daughter who stated that the wife’s drinking and gambling caused the conflict between her parents.

We reject also the wife’s contention that because the husband ordered his wife, without cause, to leave the matrimonial domicile he is guilty of “constructive abandonment.” It is true that the husband testified that he had told his wife to discontinue her gambling and drinking or leave. The wife chose to leave rather than forego the disruptive behavior causing the marital strife between the parties. In the first place, cause existed for the husband’s ultimatum. In the second place, the wife was not ordered to leave the family home; she was entreated to discontinue her deleterious conduct. Under these circumstances, we find no “constructive abandonment.”

The record supports the judgment granting a separation to the husband. The judgment is affirmed.

AFFIRMED.

      . The matter was set for hearing at 10:00 a. m. The court took up the case at 10:20 and the attorney for the wife apparently appeared shortly thereafter and cross examined the first witness, Roland Mongrue. The record is silent regarding the time that the wife’s attorney appeared.

      . LSA-C.C.P. Art. 1601 provides that a continuance may be granted in any case if there is good ground therefor.


text:
    Charles R. GERCHOW, Kathleen Gerchow and Marion M. Gerchow v. Wilhemena W. GERCHOW.
    No. 11834.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 5, 1981.

      J. Terrell Heath, New Orleans, for plaintiffs-appellees.
    Jones, Fussell, Derveloy & Schoen, Thomas S. Derveloy, Jr., Covington, for defendant-appellant.
    Before GULOTTA, SCHOTT and PEREZ, JJ.
   GULOTTA, Judge.

Plaintiffs, the forced heirs of their father, Marion R. Gerchow, claim entitlement to their forced portion of improved real property located at 4208 Clay Street in Metairie, Louisiana. Plaintiffs assert that the property was acquired by their father during the existence of the community with their mother and that following a divorce of their parents, the decedent acquired full ownership. On the other hand, defendant, plaintiffs’ paternal grandmother, claims ownership of the property through a counter letter executed on the same day that decedent purchased his judicially separated wife’s interest. Defendant further relies on the statement in Marion’s will that the disputed property belongs to his mother, had been held in his name solely for purposes of convenience, and had been purchased and improved with funds belonging to his mother.

The trial judge rendered judgment in favor of plaintiffs, concluding that the counter letter was “simulated.” Plaintiffs were recognized as owners of an undivided two-thirds interest in the disputed property and defendant was recognized as owner of an undivided one-third interest.

Appealing, defendant contends that plaintiffs’ suit is in the nature of a petitory action requiring proof of title. According to defendant, plaintiffs have failed to establish a valid title since the only evidence of title in Marion R. Gerchow is a copy of a sale and resale through a homestead when the decedent apparently acquired title. According to defendant, this transaction is a mere pignorative contract or security device by which nothing is actually acquired. Defendant further contends that the counter letter is in authentic form, that no evidence was adduced to disprove the payment of consideration by her, and, therefore, that the court erred in finding the counter letter to be a “simulation.” Defendant further argues that the recitation in decedent’s will, which states that the disputed property is not part of his estate, is itself a counter letter showing title in her favor.

Marion and his wife Eleanor purchased four adjoining lots in Metairie in 1959. One house, later designated by the municipal number 4212 Clay Street, had been built on two of the lots. In 1964, a house designated by municipal number 4208 Clay Street, was constructed on the remaining two lots and was occupied by defendant. It is this property that is the subject of the dispute.

Marion and Eleanor separated in 1971. On May 21, 1973, while the parties were legally separated but not divorced, Eleanor signed an act of sale transferring her one-half interest in the entire property, both municipal numbers 4208 and 4212 Clay Street, to Marion for $4,900.00.

On the same day as the transfer to him of Eleanor’s one-half interest, May 21, 1973, Marion executed, in authentic form, the counter letter. In this notarized document, Marion declared that he had purchased a one-half undivided interest in 4208 and 4212 Clay Street and further stated:

“That in truth and in fact appearer has no interest in said property, that the same was purchased by him for the account of Wilhemena Walker Gerchow, or her nominee, at such time as appearer is called upon to do so, an instrument transferring to the said Wilhemena Walker Gerchow all rights, title and interest that appearer has or may have in and to the said property [sic].”

Also on May 21, 1973, Marion signed a statutory will bequeathing to Wilhemena all of the disposable portion of his estate and confirming the legitime of two-thirds of his estate to his three children, the plaintiffs in the instant case. This will contains the following recitation:

“I show in this, my will, that the property located at 4208 Clay Street in Jefferson Parish, Louisiana is in point of fact the property of my mother and that it has been held in my name solely for purposes of convenience, but that the property was in truth purchased with funds belonging to my mother and the improvements erected thereon also with funds belonging to my mother, Wilhemena Walker Ger-chow.”

Marion and Eleanor were divorced in 1977 and subsequently they executed a second act of sale, dated October 3, 1977 whereby Eleanor transferred the same one-half interest in the Clay Street property to Marion. Marion received no further consideration for this transfer, however, and it is apparent that the parties were merely confirming the 1973 sale. On October 8, 1977 Marion sold the lots and improvements at 4212 Clay Street to third parties. Marion received the proceeds from this sale.

At the outset, we are not impressed with defendant’s claim that plaintiffs failed to establish ownership of the disputed property by the decedent. Irrespective of whether the sale and resale document is a pignorative contract as claimed by defendant, and whether plaintiffs’ instant suit is viewed as a petitory action or an action by forced heirs to attack a simulation, it is clear from the act of sale and defendant’s testimony, that Eleanor and Marion acquired title to the property in 1959. No further discussion of this question is either necessary or warranted. The crucial question is whether or not the counter letter is a simulation.

Although a counter letter in authentic form may be self-proving, LSA-C.C. Art. 2239, dealing with the force and effect of counter letters, provides that forced heirs have the right to annul absolutely and by parol evidence the simulated contracts of those from whom they inherit. See also Succession of Lewis, 157 So.2d 321 (La.App. 4th Cir. 1963). Where a plaintiff alleging a simulation produces evidence of circumstances that create highly reasonable doubts or suspicions concerning the validity of a transaction, such a showing establishes a prima facie case of simulation and shifts the burden to the defendant to demonstrate the validity of the transaction under attack. Smith v. Smith, 239 La. 688, 119 So.2d 827 (1960); Ingram v. Freeman, 326 So.2d 565 (La.App. 3rd Cir., 1976), writ denied 329 So.2d 755 and 757 (La.1976).

We believe the circumstances surrounding the existence of the counter letter are suspicious. This document makes reference to 4208 and 4212 Clay Street. However, decedent sold 4212 to a third party on October 8, 1977, and received the proceeds from the sale, but defendant makes no claim against the funds derived from that sale. Moreover, although the will bears the same date as the counter letter, May 21, 1973, reference was made in the will only to 4208 Clay St. Furthermore, the date of the counter letter executed on the same day that the property was transferred to Marion by his judicially separated wife, as well as the execution of the will on the same day, suggests decedent was motivated by desire to shelter the property from any later claims by his estranged wife in the event of his death before the divorce became final.

Marion purchased Eleanor’s undivided one-half interest in 4208 and 4212 Clay St. for $4,900.00. Although Wilhemena stated in deposition that she had gone to the attorney’s office and that papers had been signed to make her the owner of the Clay St. property, she had no knowledge of any counter letter or of Marion’s purchase of Eleanor’s community share of the property. She did not remember giving her son $4,900.00 for the sale price and could not remember the date of the meeting in the attorney’s office. She stated that she paid to build a house on 4208 Clay St. but did not own the ground. She stated also that she had given her son $1,500.00 to build a house in Slidell.

Eleanor testified, on the other hand, that she and the decedent had paid for the construction of the house at 4208 Clay St. and that she had not received any money from her mother-in-law for transferring her interest in the property to decedent. Significant also is the fact that subsequent to decedent’s purchase of his wife’s interest he, and not defendant, received rental income from 4212 Clay St. This does not comport with defendant’s ownership of both pieces of property, but rather indicates Marion continued to treat the property as his own despite the counter letter.

The evidence considered, we hold that plaintiffs established a prima facie showing that the counter letter was a “simulation.” In such instance it then becomes defendant’s burden to demonstrate the validity of the transaction. Defendant failed to carry that burden.

Having so concluded, we affirm the judgment of the trial court.

AFFIRMED.

      . Marion’s will bequeaths all the disposable portion of his estate to his mother and confirms the legitime of two-thirds of his estate to plaintiffs, his children.

      . The third parties are not named in the instant suit and there is no issue before us concerning the ownership of the property or sale proceeds of 4212 Clay Street.

      . LSA-R.S. 13:3720, in pertinent part, provides:
      “§ 3720. Instruments attested by witnesses and accompanied by affidavit; admissible in evidence.
      Any deed, counter letter, power of attorney, declaration, contract, or other instrument, under private signature, purporting to be attested by two or more witnesses and accompanied by an affidavit of the vendor or grant- or that the same was signed or executed by him, or by an affidavit of one or more such witnesses, made at or after the signing and execution of such deed, counter letter, or other instrument, and setting forth substantially that the instrument was signed or executed by the party or parties thereto in the presence of the affiant or affiants, shall be deemed, taken and accepted, prima facie, and without further proof, as being true and genuine, and shall be so received and accepted in evidence in the courts of Louisiana, without further proof”

      . LSA-C.C. Art. 2239 reads as follows:
      “Art. 2239. Counter letters, force and effect Art. 2239. Counter letters can have no effect against creditors or bona fide purchasers; they are valid as to all others; but forced heirs shall have the same right to annul absolutely and by parol evidence the simulated contracts of those from whom they inherit, and shall not be restricted to the legitimate [legitime].”


text:
    Eugene SALING v. The CITY OF NEW ORLEANS.
    No. 12206.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 5, 1981.
    Writ Denied June 22,1981.
    Delbert G. Talley, Deputy City Atty., Salvador Anzelmo, City Atty., New Orleans, for defendant-appellant.
    Barker, Bourdreaux, Lamy, Gardner & Foley, Harold J. Lamy, New Orleans, for plaintiff-appellee.
    Before GULOTTA, SCHOTT and PEREZ, JJ.
   GULOTTA, Judge.

The City of New Orleans appeals from a workmen’s compensation award in favor of Eugene Saling, a captain in the New Orleans Fire Department, for permanent and total disability resulting from arterioscle-rotic heart disease. We affirm.

Plaintiff began to work with the New Orleans Fire Department as a probation fire fighter in February, 1962 and continued active work until May, 1977 when a circulatory and nervous disorder in his hand, unrelated to his employment, required that he discontinue working for a time. Saling returned to the fire department the latter part of April, 1978 and was sent to a department training school to undergo a grip test. In the course of the examination plaintiff climbed four flights of stairs and experienced shortness of breath and some pain. The following morning, however, he experienced severe chest pains and was hospitalized from April 29, 1978 to May 9, 1978 for what was diagnosed as an episode of acute coronary insufficiency without evidence of death of the heart muscle. Subsequent testing indicated Saling had arteriosclerosis resulting in significant coronary obstruction. He was referred to a surgeon who performed a triple coronary by-pass operation in July, 1978. It is undisputed that plaintiff is unable to perform any further duties as a fire fighter.

At issue is whether LSA-R.S. 33:2581 entitles Saling to permanent and total workmen’s compensation benefits for his heart condition. In this connection the question is whether defendant has heart disease and whether that disease. was aggravated, was brought on, or was exacerbated by his fire fighting duties. This statute provides, in pertinent part, that any heart disease developing during a classified fireman’s period of employment shall be classified as a disease or infirmity connected with employment and such disease shall be presumed, prima facie, to have developed during employment and to have been caused by, or have resulted from the nature of the work performed, whenever the disease manifests itself anytime after the first five years of employment. In Vincent v. City of New Orleans, 326 So.2d 401 (La. App. 4th Cir. 1976), writ denied, 329 So.2d 760 (La.1976), this court affirmed a judgment awarding workmen’s compensation benefits to a fireman who had become disabled from cardio-vascular disease. We stated in Vincent:

“... Our reading of the statute convinces us that a rebuttable presumption exists that the nature of the work caused the disease. Accordingly, the employer bears the difficult burden of proving otherwise and unless affirmative proof is adduced to prove a lack of causation which is, admittedly, very difficult, then the presumption requires that the disabled fireman be entitled to coverage under the Act. ...”

In written reasons for judgment accompanying the award of permanent and total disability in favor of plaintiff, the trial judge in our case stated:

“There is no proof that the plaintiff had an accident. There is no proof that the plaintiff had a heart attack, or that plaintiff’s by-pass surgery was work related. The defendants’, however, have failed to rebut the presumption created by LSA-R.S. 33:2581.
Within the medical knowledge available, the court does not believe it possible to rebut this presumption.
The court believed that the wording of the statute makes it applicable to workmen’s compensation cases, after a fireman has been employed for five years, after 1968, even though he was employed before this time.”

On appeal, the City contends that Saling began working as a fireman over six years before the effective date of LSA-R.S. 33:2581 and the statute cannot be applied retroactively in his case. The City further argues that the statute was intended to apply only to firemen seeking disability pensions and does not pertain to workmen’s compensation claims.. Pointing out that the trial judge viewed the presumption created by the statute as irrebuttable, the City further contends that such interpretation denies it equal protection or due process of the law. Alternatively, should the statute apply, the City contends it has successfully rebutted the presumption of causation since medical evidence adduced in the case clearly indicates Saling’s arteriosclerosis is unrelated to his work.

At the outset we reject the City’s argument concerning the statute’s retroac-tivity, applicability to workmen’s compensation, and constitutionality. Even though Saling worked as a fireman before the effective date of the statute, it is undisputed that his heart ailment first manifested itself in 1978, approximately ten years after the passage of the statute. We find no wording in the statute to limit its application to firemen employed after its effective date.

Defendant’s argument that LSA-R.S. 33:2581 does not apply to workmen’s compensation cases is likewise without merit. Even though the cited statute is not part of the Workmen’s Compensation Act, we have invoked its application to workmen’s compensation cases. See Vincent v. City of New Orleans, supra. Moreover, the statute provides, in pertinent part, that the affected firemen “shall be entitled to all rights and benefits as granted by the laws of the State of Louisiana to which one suffering an occupational disease is entitled as service connected in the line of duty, regardless of whether the fireman is on duty at the time he is stricken with the disease... . ” The Workmen’s Compensation Act is one such Louisiana law conferring benefits on employees stricken with occupational disease.

As we recognized in the Vincent case, the presumption created by LSA-R.S. 33:2581 does not violate equal protection. We similarly reject defendant’s argument that the statute violates due process. Although the burden imposed on a defendant to show that a fireman’s heart condition was not job related is a difficult one, it is conceivable that medical evidence could be adduced in a given factual situation to prove lack of causation. LSA-R.S. 33:2581 is therefore constitutional.

We turn now to the City’s contention that it did in fact exculpate itself from the statutory presumption. Dr. Jack Ruli, an internist and physician for the New Orleans Fire Department, was of the opinion that Sal-ing’s fire fighting duties over the years constituted an “aggravation factor” accelerating his coronary disease. Dr. Ruli, who had read material on the relationship between the duties of fire fighters and heart conditions, indicated that firemen frequently go from a situation of inaction to very sudden, strenuous activity. This physical and emotional stress is a strain on the heart that could be subjected to further strain by toxic fumes such as carbon monoxide that are present during fires and further deplete the heart’s oxygen supply. This witness was of the opinion that such repeated stress over a period of years could have accumulative effect on the heart and that Saling’s condition of high blood pressure, obesity, and history of heavy smoking would make him a prime candidate for coronary disease. His repeated fire fighting in addition to this pre-existing condition, according to Ruli, would make for an acceleration of his heart condition.

Dr. John Ochsner, an expert in cardiovascular surgery, who performed Saling’s by-pass operation, was unwilling to place the blame for Saling’s heart condition on his occupation. Dr. Ochsner was of the opinion that arteriosclerosis begins to develop at an early age and that it w.as not unusual for a man such as Saling in his mid-forties with history of hypertension, cigarette smoking and obesity to have developed this condition. This witness was of the opinion that arteriosclerosis was not related to any occupation.

A third expert medical opinion was furnished through the deposition of Dr. Felix Rabito, Saling’s treating physician. He indicated that Saling’s cardio-vascular problem was first diagnosed during his hospitalization on April 29 through May 8, 1978 after the episode of chest pain. Dr. Rabito stated that the cause of coronary artery disease is now known but is likely due to hereditary or metabolic factors. According to Dr. Rabito it is not likely that the disease is causally related to employment. He did state however, that a job or life style could be an aggravating factor in an existing disease.

The testimony of Doctors Ochsner and Rabito differs to some extent from Dr. Ruli’s concerning Saling’s occupation as a cause or aggravation of his heart condition. However, Ochsner and Rabito’s opinions are insufficient to overcome the presumption established by LSA-R.S. 33:2581 and bolstered by the testimony of Dr. Ruli. -

Accordingly, we affirm the judgment of the trial court.

AFFIRMED.

      . LSA-R.S. 33:2581 reads as follows:
      “§ 2581. Development of heart and lung disease during employment in classified fire service; occupational disease
      Any disease or infirmity of the heart or lungs which develops during a period of employment in the classified fire service in the state of Louisiana shall be classified as a disease or infirmity connected with employment. The employee affected, or his survivors, shall be entitled to all rights and benefits as granted by the laws of the state of Louisiana to which one suffering an occupational disease is entitled as service connected in the line of duty, regardless of whether the fireman is on duty at the time he is stricken with the disease or infirmity. Such disease or infirmity shall be presumed, prima facie, to have developed during employment and shall be presumed prima facie, to have been caused by or to have resulted from the nature of the work performed whenever same is manifested at any time after the first five years of employment.”


author: BOUTALL, Judge.

text:
    Lloyd JESSIE et al. v. FIRESTONE TIRE & RUBBER CO., et al.
    No. 11824.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 5, 1981.
    H. F. Foster, III, Leonard Young, Bien-venu, Foster, Ryan & O’Bannon, New Orleans, for defendants-appellees, Albert Kirkland, A. Maenza & Son and Gulf Ins. Co.
    Before BOUTALL, CHEHARDY and STOULIG, JJ.
   BOUTALL, Judge.

This appeal arises from a judgment of the trial court dismissing the plaintiff’s claim against the defendants for damages sustained as a result of a motor vehicle collision.

On or about August 10, 1970 at about 1:40 P.M. Lloyd Jessie was operating his automobile in a westerly direction on U. S. Highway 90 in St. Charles Parish. Travel-ling with him was his wife and their daughter, Rosemary Harry. The plaintiff lost control of his vehicle and crossed the neutral ground area of the highway and collided head-on with a truck being driven by the defendant, Albert Kirkland, travelling in an easterly or opposite direction. Both of the passengers in the automobile were killed and both Jessie and Kirkland sustained personal injuries. Subsequently, Jessie and his seven children as well as Ernest Harry and his children filed suit against numerous defendants for the recovery of damages sustained as a result of the accident. As a result of a settlement agreement entered into between several of the parties as well as various preliminary judgments of dismissal there were only a few defendants that remained in the proceeding. They consist of: Kirkland, as the driver of the other vehicle involved in the collision, A. Maenza & Son (hereinafter referred to as Maenza) as the employer of Kirkland and the owner of the truck, and their insurer Gulf Insurance Co. (hereinafter referred to as GIC). The defendants answered denying that they owed any liability and further alleged that Jessie was contributorily negligent. Also, Kirkland and GIC filed a third party demand against Interstate Fire and Casualty Co. seeking either indemnity or in the alternative contribution for any liability that the former may owe unto the plaintiffs.

Upon trial of this matter, the lower court entered judgment against the plaintiffs thereby dismissing their claim for damages. The court found that Kirkland was not negligent and further that Jessie was negligent in causing the collision. From this judgment the plaintiffs have appealed.

After reviewing the record before us we conclude that the trial court’s findings regarding liability of the various parties is not manifestly erroneous nor does it represent an abuse of discretion. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring, 283 So.2d 716 (La.1973). We adopt his reasons for judgment and we affirm.

AFFIRMED.


text:
    FIRST OF GEORGIA INSURANCE COMPANY and Robert Serino v. Alfred COHEN, d/b/a Ajax Plumbing Company and ABC Insurance Company.
    No. 11843.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 5, 1981.

      Lolis E. Elie, New Orleans, for Robert Serino and Wanda Serino, appellants.
    David M. Cambre, Dillon & Cambre, George LeGrand, New Orleans, for defendants-appellees.
    Before BOUTALL and CHEHARDY, JJ., and STOULIG, Assigned Judge.
   BOUTALL, Judge.

This case arose out of a judgment of the trial court sustaining an exception of no cause of action filed by the defendant thereby dismissing the plaintiff’s claim for damages of mental anguish which allegedly resulted from the destruction of a home by fire.

On or about December 10, 1978, a fire occurred which caused extensive damage to the property located at 872 City Park Avenue in New Orleans. This property was allegedly owned by Robert Serino and was insured by First of Georgia Insurance Company (hereinafter referred to as FGIC). Subsequently, both Serino and FGIC filed suit against the defendants John Buttone, Jr., doing business as Ajax Refrigeration Company (hereinafter referred to as Ajax) and their insurer seeking the recovery of damages to the property as a result of the fire. The basis of their claim was the alleged negligence of Buttone and Ajax in failing to perform proper repairs in the attic of the property. Subsequently, Serino amended the petition seeking the recovery of additional damages from the defendants including mental anguish on behalf of his wife and the 3 minor children of the marriage as well as for loss of wages by Mrs. Serino and for inconvenience by both Mr. and Mrs. Serino. Thereafter the defendants filed exceptions of no cause of action as to the claims of damages for mental anguish and one of prescription for all of the claims other than that of Mr. Serino.

Upon a hearing of the exceptions, the lower court entered a judgment dismissing the claims raised by Serino on behalf of his minor children as well as the claim of his wife for damages for mental anguish. The exception of prescription was overruled. From this judgment Serino appealed devol-utively.

On appeal the issue before us is whether a wife and her minor children have a cause of action for the recovery of damages for mental anguish which allegedly resulted from the destruction by fire of the home which was allegedly owned by their husband and father.

There are generally four major areas in which damages may be awarded for mental anguish arising as a result of damage to property. These areas are where the:

“ * * * * (1) property is damaged by an intentional or illegal act; (2) property is damaged by acts for which the tort-feasor will be strictly or absolutely liable; (3) property is damaged by acts constituting a continuous nuisance; (4) property is damaged at a time in which the owner thereof is present or situated nearby and the owner experiences trauma as a result.”

Dugas v. St. Martin Parish Police Jury, 351 So.2d 271 (La.App. 3rd Cir. 1977); Farr v. Johnson, 308 So.2d 884 (La.App. 2d Cir. 1975) writ refused La., 310 So.2d 854 and cases cited therein. However, this list of areas is not exclusive or inflexible. Elston v. Valley Electric Membership Corporation, 381 So.2d 554 (La.App. 2d Cir. 1980); Todd v. Aetna Casualty and Surety Co., 219 So.2d 538 (La.App. 3rd Cir. 1969). In Speight v. Southern Farm Bureau Insurance Co., 254 So.2d 485 (La.App. 3rd Cir. 1971), the recovery of damages for mental anguish resulting from damage to property was not limited to the property owner but also included the daughter of the owner who resided in the property and occupied it at the time when the damage occurred. The court stated:

“Likewise we think the award to Debbie Speight (the daughter) to be within the realm of propriety. She was in her bedroom, reading when the accident occurred, and the occupancy of a residence is certainly foreseeable. The violence of the impact caused her great and understandable fright and she rushed out of the house in terror.” [(the daughter) supplied]

With respect to the matter before us the petition and amendments thereto filed by the plaintiff indicate that the house which was damaged by the fire was owned by Robert Serino. There is no indication that the house was a community home, thereby establishing Mrs. Serino’s rights as a co-owner or that she was present or situated nearby and experienced trauma as a result of the fire. Furthermore, these pleadings fail to show that the three minor children were residents in the home or that they occupied it at the time of the fire. Accordingly, we find that the judgment of the trial court sustaining the exception of no cause of action as to the claim of damages for mental anguish by Mrs. Serino and three minor children is correct.

La.C.C.P. Art. 934 permits an amendment to a petition when grounds for an exception may be removed. It states:

“When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection cannot be so removed, or if plaintiff fails to comply with the order to amend, the action shall be dismissed.”

Also see: Menard v. Associated Royal Crown Bottling Co., 249 So.2d 363 (La.App. 4th Cir. 1971). In considering the arguments raised by counsel in the matter before us it is apparent that some basis for amendment of the petition may exist so as to cure the grounds for the exception of no cause of action. Accordingly, we order that the judgment of the trial court be amended so as to permit the plaintiff a reasonable time within which to amend the petition so as to state a cause of action.

AMENDED AND AFFIRMED.


text:
    Earl F. HILL, Jr. v. MURCO, INC., Edwynne C. Murphy, and State Farm Mutual Automobile Insurance Company.
    No. 11860.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 5, 1981.

      Evans & Scheffler, William J. Scheffler, III, Gretna, for Earl F. Hill, Jr., plaintiff-appellant.
    Edward P. Lobman, Lobman & Carna-han, Metairie, for Murco, Inc., Edwynne C. Murphy and State Farm Mut. Auto. Ins. Co., defendants-appellees.
    Before BOUTALL, CHEHARDY and STOULIG, JJ.
   BOUTALL, Judge.

This appeal arises from a judgment from the trial court awarding damages to the plaintiff for personal injuries sustained in an automobile collision.

On or about February 15, 1977 in the early evening the plaintiff, Earl Hill, was operating his automobile when he was struck by a motor vehicle being driven by the defendant Edwynne C. Murphy. As a result of this collision the plaintiff sustained various personal injuries to the upper portion of his body. Subsequently, Hill filed suit to recover damages for his personal injuries against Murphy as driver of the vehicle causing the collision and injury, his insurer State Farm Mutual Automobile Ins. Co. (hereinafter referred to as State Farm), and his employer Murco, Inc. Thereafter Murco, Inc. filed exceptions of insufficiency of Service of Process and no cause of action. Prior to a hearing of these exceptions the plaintiff voluntarily dismissed Murco, Inc. but reserved his rights against the remaining defendants.

Upon trial of this matter the lower court entered judgment in favor of the plaintiff and against the defendants Murphy and State Farm individually, jointly and solidarity in the sum of $11,767.59. From this judgment the plaintiff has taken a devolu-tive appeal. The defendants have answered the appeal contending that the plaintiff was not entitled to the award of special damages in the form of a loss of wages.

On appeal the issues presented for our determination concern the validity of the awards made by the trail court for general damages of pain and suffering and special damages for loss of wages.

-I-

Regarding the issue of general damages the record reflects that immediately after the accident on February 15,1977 the plaintiff was taken to the emergency room óf West Jefferson hospital for treatment. Examination by Dr. Carlos Gorbitz revealed that Hill had suffered a whiplash injury to the cervical region which was described as a cervical sprain. At that time the plaintiff complained of pain in his back, chest, and a feeling of numbness in his left arm and leg. Subsequently the plaintiff was admitted to the hospital on this same day for a period ending February 19, 1977. During his hospital stay several tests and x-rays were performed, he was placed in cervical traction, and medication was prescribed for the purpose of relieving pain. Examination of the plaintiff prior to his discharge by Dr. Gorbitz revealed that Hill had no significant abnormalities in the cervical region, but, he did complain of pain upon movement of this area. Also, the numbness experienced by the plaintiff in the area of the left arm and leg had improved greatly and Dr. Gorbitz requested that Hill continue to wear the cervical collar and use the prescribed medication.

On March 7,1977 the plaintiff visited Dr. Jack Winters for treatment of his injuries. Examination by Dr. Winters revealed that Hill had a complete range of motion in the neck without any muscle spasms. Nevertheless, the plaintiff continued to have mild tenderness in the left part of the neck and shoulder and the lower back. At that time the plaintiff complained of pain in these regions and a feeling of numbness in the left arm remained. Dr. Winters gave the following diagnosis: the plaintiff has suffered a soft tissue injury to his neck and lower back in the nature of ligamentous or muscular sprains with some nerve root irritation in the left arm; the plaintiff also had spondylolithesis but this was present prior to the accident. The next and last visit by the plaintiff to Dr. Winters occurred on April 11, 1977 whereupon the latter informed Hill that he could return to most of his recreational and vocational activities.

Based on the foregoing the trial court awarded $3,500 in general damages to the plaintiff for the pain and suffering associated with the injuries sustained by him.

In considering the validity of the trial court’s award of quantum we are obligated to apply the reasoning expressed by the Supreme Court in Coco v. Winston Industries, 341 So.2d 332 (La.1976). In that case the court states:

“ * * * * We do reemphasize, however, that before a Court of Appeal can disturb an award made by a trial court that the record must clearly reveal that the trier of fact abused its discretion in making its award. ***** Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court. * * * * It is never appropriate for a Court of Appeal, having found that the trial court has abused its discretion, simply to decide what it considers an appropriate award on the basis of the evidence.” Citations omitted.

Also See: Reck v. Stevens, 373 So.2d 498 (La.1979); Carollo v. Wilson, 353 So.2d 249 (La.1977). Upon a review of the record in the matter before us we find that the trial court did not abuse its discretion in making its award of general damages.

-II-

In considering the second item of damages at issue the evidence presented before us indicates that the plaintiff was an executive stock broker and vice-president of sales with the investment firm of Howard, Weil, Labouisse, and Freidrichs, Inc. In this position the plaintiff represented hundreds of clients with respect to numerous types of investments such as stock, bonds, options and other items. His primary income comes from commissions on the sale of investment items. As a result of the injuries sustained by the plaintiff in the accident in mid February of 1977 the plaintiff was unable to work in his position of employment for a period of approximately three months. However, during this period Hill was able to conduct some minor business by telephone. As indicated previously, Dr. Winters discharged the plaintiff to return to work on a part time basis in mid to late April and the plaintiff followed these instructions. Hill worked on a part time basis until June when he returned to work full time. The plaintiff seeks recovery for the income he lost as a result of his absence from his place of employment.

Based on the evidence indicated above, the trial court determined that the plaintiff was entitled to a recovery of a loss of wages for a period of three months, namely February 15-May 15, 1977. The lower court further determined that the plaintiff’s absence from his employment position in the early part of 1977 had no effect on his income for the following years of 1978 and 1979. From these findings the trial court held that the plaintiff was entitled to a recovery of $7,417.79 for loss of wages.

Upon a review of the record before us we find that there was no showing of any manifest error committed by the trial court as to its factual findings. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Canter v. Koehring Co., 283 So.2d 716 (La.1973). However, we find that the trial court committed error in calculating the award for loss of wages.

At the trial, testimony was elicited from Dr. Angelo Agapos who was qualified as an expert in the field of economics and finance. He indicated that he used two basic methods in calculating the plaintiff’s loss of wages, namely the percentage method and the trendline analysis. In applying these two procedures to the case before us, Dr. Agapos relied upon the plaintiff’s tax returns for the years of 1972-79 as well as the plaintiff’s production figures for these same years. The final figures reached by Dr. Agapos were a loss of wages of $38,083 by using the percentage method and $29,836 under the trendline analysis. Of the two methods used here the trial court placed more confidence in the trendline analysis reasoning that it was more accurate. This figure represented the loss for the year of injury. However the trial court reasoned that the three month absence experienced by the plaintiff should be compensated by a mathematical formula showing a direct ratio of loss for 3 months as related to 12 months, applying that to the loss suffered.

If such a ratio is used, it must be applied to the expected salary, not to this loss which was computed to occur for that year without regard to the length of time away from work.

Upon consideration of the entire matter we believe that the loss of wages for a person in the position of employment as a commission stock broker cannot be determined with mathematical exactitude. Our belief is supported by the fact that there are numerous variables which affect the income of a person employed in this capacity. They include: market fluctuations, number of customers, actual sales, production levels as well as other items. In view of the fact that the methods used by Dr. Agapos relied merely upon production figures and income tax returns, and did not take into consideration the numerous other variables, we believe the figures for loss of wages reached by the two methods to be not completely reliable. We share the view of the trial court that these figures were excessive, and that plaintiff is entitled to something less. Because we determine that the trial judge was in error, we must set aside his award. We must then raise it to the lowest figure below $39,836 which is reasonably within the discretion of the trial court. We find this amount to be $15,000. Coco v. Winston Industries, supra.

Based on the foregoing we order that the judgment of the trial court be affirmed as to its decree concerning the award of $3,500 for general damages for pain and suffering, but amended and increased to award $15,-000 to the plaintiff for a loss of wages, and as thus amended, we affirm.

AMENDED AND AFFIRMED.


text:
    INSURANCE ANALYSIS, INC. v. XPLO CORPORATION.
    No. 11900.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 5, 1981.

      Lawrence J. Fritz, Metairie, for Insurance Analysis, Inc., plaintiff-appellee.
    Philip A. Gattuso and Joseph L. Kreller, Jr., Gretna, for XPLO Corp., defendant-appellant.
    Before BOUTALL and CHEHARDY, JJ., and STOULIG, J. Pro Tem.
   BOUTALL, Judge.

This appeal arises from a judgment of the trial court awarding to the plaintiff and against the defendant the sum of $4200, as payment due in a contract for personal services.

On or about January 1, 1976, the plaintiff, Insurance Analysis, Inc. (hereinafter referred to as IA) entered into a contract with the defendant XPLO Corporation wherein the former agreed to perform professional insurance consultant services at the rate of $3000 per year. IA allegedly performed the services for not only the one year period during 1976, but also worked for the first two months of 1977. Upon the alleged completion of the services by the plaintiff the defendant failed to make payment in accordance with the terms of the contract. Thereafter, IA filed suit against XPLO for breach of contract, seeking recovery of the fees allegedly due under the terms of the agreement between the two parties. In response thereto, XPLO answered and alleged that the contract was null and void as there was an error as to their primary motive for entering into the contract.

Upon trial of this matter the lower court entered judgment in favor of IA in the sum of $4200 and against XPLO. From this judgment XPLO has appealed suspensively.

On appeal there are several issues for our consideration including: 1.) Whether there was an error as to the principal motive of the contract thereby rendering it null and void; 2.) whether the plaintiff breached the contact by failing to fulfill all of its obligations under the terms of the contract; 3.) whether the trial court committed error in making an award to the plaintiff for services performed in 1977.

-I-

The Louisiana Civil Code provides several articles concerning the first issue before us. The relevant portions of these articles are as follows:

Errors may exist as to all the circumstances and facts which relate to a contract, but it is not every error which will invalidate it. La.C.C. Art. 1823.
To have that effect, the error must be in some point, which was a principal cause for making the contract, when there are several. This principal cause is called the motive and means that consideration without which the contract would not have been made. La.C.C. Art. 1823, 1825.
No error in the motive can invalidate a contract, unless the other party was apprised that it was the principal cause of the agreement, or unless from the nature of the transaction it must be presumed that he knew it. La.C.C. Art. 1826.

In Hall v. Arkansas-Louisiana Gas Co., 368 So.2d 984 the Louisiana Supreme Court simplified the meaning of these articles as follows:

* * * * “These articles of our Code simply mean that error in the determining motive, or principal cause, of a contract vitiates consent and invalidates the contract. Error as to a subsidiary motive has no effect upon the validity of the contract.”

Also see: Walker v. Don Coleman Const. Co., Inc., 338 So.2d 1183 (La.App. 3rd Cir. 1976).

One of the exhibits entered into the record by the defendant was a letter from IA to XPLO dated October 25, 1975 in which the former was attempting to sell insurance consulting services to the latter. In the course of this letter IA made the following statement: “Our fees are predicated on the size and complexity of the account. We have in every case saved our clients much more in insurance premiums than our fees.” XPLO contends that the insurance premiums it paid under the program established by IA did not save them money above and beyond the fees charged by IA. Accordingly, XPLO contends that the failure by IA to fulfill these terms was an error as to the principal cause or motive for the contract entered into between the parties on January 1, 1976 and therefore, this agreement was null and void.

Upon a review of the record in this matter we find that the evidence is inconsistent as to whether the terms of the letter indicated above were satisfied. Burnett Tappel of IA testified that he made several suggestions to XPLO which would have saved the latter more than enough money in premiums to cover the costs of the fees charged by the former. One of these suggestions involved obtaining insurance for XPLO on a yearly basis instead of on a job to job basis which was the method used by XPLO. Tappel further testified that the insurance they procured for XPLO on a job to job basis was more competitive than they had prior to the time of the agreement. Conversely, John Charpentier of XPLO testified that the proposed insurance package by IA was more expensive than the kind that XPLO had at that time.

Following the conclusion of the trial in this matter the trial court determined that the contract entered into between IA and XPLO was a valid one. Apparently, the court determined that there was no error as to the principal cause or motive for the agreement which would vitiate the consent of the parties and thereby nullify the contract.

On appeal the manifest error doctrine has direct application to the findings made by the lower court. This doctrine states in pertinent part:

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.”

Canter v. Koehring Co., 283 So.2d 716 (La. 1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Based on the foregoing we find that there has been no showing of any manifest error made by the trial court as to the validity of the contract between the parties. We believe that the lower court properly resolved the conflict in the testimony before it.

-II-

Regarding the second issue before us, XPLO contends that IA failed to fulfill all of the obligations it was required to perform under Section 2 of the contract between them. This provision states:

“2. The CONSULTANT agrees to perform the following services to assist the CLIENT in administering and controlling his insurance programs:
“a. Review of Retrospective Rating Plan; auditing current plan; rechecking computations of past adjustments up to the three past years; verifying open loss reserve credits; recommending proper Plan selection.
“b. Review of Experience Rating; audit of current modification formula and proper loss discounts; recommend methods designed to control and reduce future modifications.
“c. Analyze appropriate records of the loss experience of the CLIENT as well as other records which the Insurance Companies may furnish to the CLIENT and to periodically render to the CLIENT and the Insurance Companies conclusions based on such records. Request status of past and current losses, verify adequacy of reserves, determine closing costs, and assist in the closing of the open cases, which matured.
“d. Review of payroll reporting procedure, payroll insurance classifications; assist CLIENT at final audit, verify company billings.
“e. Analyze current casualty and property insurance policies, and make recommendations as to coverages, limits, costs, rating plans.
“f. Propose changes for renewal and assist CLIENT’S insurance agent or broker in marketing, negotiation and securing of renewal coverages.
“g. Recommend other services as indicated below and supervise and coordinate said services where appropriate.
“Marine Surveys
“OSHA
“Noise and other industrial hygiene tearing
“Electrical hazard tests
“Life insurance, Pensions, Trusts, Medical Plans
“Property valuations and surveys
“Elevator inspections
“Tax advisories (as related to insurance programs).”

Of the many services listed in this portion of the agreement, Tappel testified that virtually all of them were performed either orally or in writing. Moreover those that were not performed were not applicable to XPLO. Tappel further testified that he negotiated several contracts on behalf of XPLO in which he tried to get the other party to the agreement to pay the insurance premiums instead of XPLO. This service was not provided for in the contract but was nevertheless performed by IA. On the other hand, Charpentier testified there were some services that were not performed. Of those mentioned by him several of them were apparently not applicable to XPLO.

Upon consideration of the record as a whole we find there is little or no support for the contention made by XPLO. We believe that IA fulfilled its obligations under the terms of the agreement. Furthermore, there was no finding made by the trial court of a breach of contract and therefore, in the absence of manifest error, we are bound to uphold the performance by plaintiff. Canter v. Koehring, supra. The contract fee of $3000 for 1976 is affirmed.

-Hi-

Regarding the third issue presented for our consideration, the record reflects that IA performed 20 hours of services on behalf of XPLO during the first two months of 1977. IA contends that under the terms of the contract it is entitled to compensation for the services rendered. Conversely, XPLO contends that the contract expired on December 31, 1976 and therefore, IA is not entitled to any remuneration. The lower court in its judgment awarded $1200 to IA as compensation for the services performed by IA in 1977 on behalf of XPLO.

The pertinent provisions of the agreement between the parties relative to the length of time for the existence of the contract are as follows:

“1. The CONSULTANT agrees to perform insurance consultant services for CLIENT for the term of one year commencing January 1, 1976 to January 1, 1977 unless renewed as herein provided.
sic S(! # sfc sfc #
“9. The services of the CONSULTANT [may] be terminated at the end of one year from date hereof or any extensions thereof by either party giving the other party notice of termination at least thirty (30) days in advance in writing whereupon the services of the CONSULTANT shall cease as of the anniversary date.”

Upon a review of this language we find it to be very ambiguous. However, we believe that the parties could have intended only one meaning to these terms, that is, the agreement continues in existence indefinitely until such time as a 30 day notice of termination was issued by either party. Since there is no 30 day notice in the record, we find that IA is entitled to a recovery for the services performed on behalf of XPLO for the first two months of 1977. The trial court based its $1200 award for these services on an hourly rate of $60 per hour for the 20 hours of services. We disagree. The award for services beyond January 1, 1977 should be based on extension of the contract, which provided a yearly fee of $3,000, unchanged for the extension. Thus the award should have been $500, which figure represents V« of the $3,000 annual fee for the two months during which the services were performed.

Based on the foregoing, we order that the judgment of the trial court be reduced to $3,500 and as amended, we affirm.

AMENDED AND AFFIRMED.


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    Leola HOOKFIN, on Behalf of and for the Use of her Minor Daughter Joyce Grady v. SCHWEGMANN BROS. GIANT SUPER MARKETS, INC.
    No. 12158.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 5, 1981.

      Beard, Blue, Schmitt, Mathes, Koch & Williams, William G. Tabb, III, New Orleans, for Schwegmann Bros. Giant Super Markets, Inc., defendant-appellant.
    Richard D. Alvarez, Metairie, for Leola Hookfin, et al., plaintiffs-appellees.
    Before BOUTALL and CHEHARDY, JJ., and STOULIG, J. (Assigned).
   BOUTALL, Judge.

This appeal arises from a judgment of the trial court awarding to the plaintiff and against the defendant workman’s compensation benefits for a period of 25 weeks.

•On or about December 28, 1978, Joyce Grady, an employee of Schwegmann Bros. Giant Super Markets, Inc. (hereinafter referred to as Schwegmann’s) was allegedly injured in the course of her employment when a case of beer fell on the top of her head and her right lower extremity thereby inflicting personal injuries. Subsequently, Leola Hookfin, on behalf of her minor daughter Joyce Grady, filed suit against Schwegmann’s alleging that her daughter was totally and permanently disabled as a result of the accident and therefore, is entitled to the appropriate workman’s compensation benefits. Hookfin also sought penalties and attorney’s fees from Schweg-mann’s.

Upon trial of this matter the lower court entered judgment in favor of the plaintiff and against the defendant awarding workman’s compensation benefits in the amount of $42.00 per week for a period of 25 weeks plus medical expenses, penalties, and attorney’s fees. From this judgment Schweg-mann’s has appealed suspensively.

On appeal the only issue presented for our consideration is whether the trial court’s award of workman’s compensation benefits for a period of 25 weeks was an abuse of discretion or manifestly erroneous.

It is well settled in Louisiana jurisprudence that a plaintiff in a workman’s compensation case must establish his claim to a legal certainty and by a reasonable preponderance of the evidence. Dufrene v. St. Charles Parish Police Jury, 371 So.2d 378 (La.App. 4th Cir. 1979); Guidry v. Ford, Bacon and Davis Construction Corp., 376 So.2d 352 (La.App. 3rd Cir. 1979). In doing so, a plaintiff may rely on both medical and lay testimony. Tantillo v. Liberty Mutual Ins. Co., 315 So.2d 743 (La.1975); Simpson v. S. S. Kresge Co., 389 So.2d 65 (La.1980). Once the trial court has made factual findings as to disability and the length thereof, these determinations are entitled to great weight and are not to be disturbed except upon a showing of manifest error. Newell v. United States Fidelity and Guaranty Company, 368 So.2d 1158 (La.App. 3rd Cir. 1979); Stokes v. Continental Ins. Co., 345 So.2d 1200 (La.App. 1st Cir. 1977).

With respect to the case before us the record reflects that the plaintiff suffered personal injuries on December 28, 1978 in a work related accident. Examination of the plaintiff after the accident revealed that she had sustained a contusion to the head with a cerebral concussion; post traumatic headaches; and cervical, lumbar and ankle sprains. The plaintiff was treated by Dr. William Hill until March 8, 1979 whereupon she was discharged. At that time Dr. Hill indicated that the only physical finding as to the plaintiff was a mild tenderness in the lumbar area and occasional headaches. Apparently the cervical and ankle sprains were asymptomatic. The testimony given by Dr. Hill was corroborated by that given by the plaintiff. She further testified that the lower back pain and headaches persisted for the next two to three months, or some five months after the accident. Thereafter she returned to work as a cashier at McDonald’s, without experiencing any signs of physical impairment except for an occasional headache.

Based on the foregoing the lower court found that the plaintiff was temporarily totally disabled for a period of 25 weeks and therefore, entitled to workman’s compensation benefits at the rate of $42.00 per week for this period of time, plus medical expenses, penalties and attorney’s fees. Apparently the trial court relied on both the lay testimony of the plaintiff and the medical testimony of Dr. Hill in reaching its findings.

Upon a review of the law and the evidence in this matter we hold that there has been no showing that the trial court has committed manifest error. Accordingly, we order that the judgment of the trial court be affirmed.

AFFIRMED.


text:
    Mr. John H. LAURENDINE v. FISCHBACH & MOORE, INC. and ABC Insurance Company.
    No. 11896.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 5, 1981.

      James L. Donovan, Donovan & Lawler, Metairie, for plaintiff-appellant.
    Thomas M. Nosewicz, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, John L. Hantel, Duke, Porter-ie & Hantel, New Orleans, for Fischbaeh & Moore, Inc., defendant-appellee.
    Before BOUTALL, CHEHARDY and STOULIG, JJ.
   BOUTALL, Judge.

This appeal arises from a judgment of the trial court dismissing the plaintiff’s suit with prejudice for the recovery of workman’s compensation benefits from the defendant.

The plaintiff, John Laurendine, was employed by the defendant Fischbaeh & Moore, Inc. (hereinafter referred to as F & M) as an electrician for a period of three years beginning in 1973 through 1975. In the course of his employment, the plaintiff was required to work around asbestos. On May 16, 1979, Laurendine discovered by way of medical analysis that he had a chronic obstructive lung disease possibly due to asbestos exposure. Thereafter, the plaintiff filed suit against his former employer F & M and its insurer seeking the recovery of workman’s compensation benefits claiming that he was permanently and totally disabled or in the alternative that he was permanently partially disabled. In response thereto, F & M filed an exception of prescription and a third party demand seeking indemnity or in the alternative contribution from all of the plaintiff’s previous employers dating back to 1943.

Upon trial of this matter, the lower court entered judgment in favor of the defendants and against the plaintiff thereby dismissing the plaintiff’s claim with prejudice. From this judgment the plaintiff has taken a devolutive appeal.

On appeal the issue presented for our consideration is whether Laurendine has carried his burden of proof in establishing that he contracted asbestosis, an occupational disease listed in former R.S. 23:1031.1 prior to the 1975 amendment redefining an occupational disease, as a result of his employment with F & M entitling him to workman’s compensation benefits from it.

The plaintiff in a workman’s compensation action based on occupational disease must establish by a preponderance of the evidence that there is a disability which is related to the employment related disease. LaCoste v. J. Ray McDermott & Co., 250 La. 43, 193 So.2d 779 (La.1967). Similarly, the plaintiff must show that he contracted the disease during the course of his employment and that the disease was the result of the nature of the work performed. Bates v. Bituminous Casualty Corp., 266 So.2d (La.App.3d Cir. 1972). It is sufficient that he establish the cause of his disability by a reasonable probability. Bryant v. Magnolia Garment Co., Inc., 307 So.2d 395 (La.App.2d Cir. 1975).

A review of the plaintiff’s employment record reveals that he began working as an electrician in the U.S. Navy during WWII. At that time he was exposed to asbestos while aboard ship. The record further indicates that the plaintiff worked in the occupation of an electrician for the next 30 years. All during this period of time he was exposed to asbestos at the various construction sites to which he was assigned. In 1973 he was employed by F & M and remained there until 1975. During this time he worked at several different sites including the nuclear power plant at Taft, La., the Market Street powerhouse, a Federal building and J. C. Penney Co., Inc. While working at the first of these construction sites, the plaintiff worked as a stress reliever for four months. In doing so he was constantly exposed to asbestos fibers which accumulated on his clothing. Thereafter, the plaintiff continued to work as an electrician and was subject to asbestos exposure until 1979 when he stopped working because of medical complaints of exertional dyspnea or shortness of breath.

The plaintiff was examined by two different pulmonary disease specialists in 1979. Both doctors had different findings. Dr. Hans Weill found that the plaintiff did not have pulmonary fibrosis or scarring on the lungs and therefore there was no evidence of asbestosis. However, he did find that the plaintiff suffered from a bi-lateral pleural thickening along the collateral chest wall which is also known as pleural fibrosis or damage of the lining between the chest and the lungs. . Dr. Weill concluded that the plaintiff’s condition was due to exposure to asbestos. On the other hand, Dr. Ken Smith determined that the plaintiff not' only had pleural fibrosis but also asbestosis which is a form of pulmonary fibrosis. Similarly, he concluded that this condition was attributable to asbestos exposure. Despite the different findings, both doctors were in agreement that the plaintiff’s present condition was not due to his employment with F & M. Furthermore, this condition was most probably due to an exposure which occurred in the 1950’s or 196Q’s. Dr. Weill indicated that lung disease due to asbestos exposure takes a minimum of 10 years from the time of exposure and the average latency period is 20 years. The plaintiff’s condition was present in 1976. Accordingly, the earliest date upon which the disease could be attributable to an exposure would be 1966. Dr. Smith indicated that the earliest known latency period was 7 years, which if applied in this case would mean that the earliest date upon which the disease could be attributable to an exposure would be 1969. Hence, there is apparently no reasonable possibility that the plaintiff’s present condition is due to an exposure to asbestos which occurred over a four month some time between 1973-75 while he was employed with F & M.

Based upon the foregoing, we find that there has been no showing of any manifest error committed by the trial court in determining that the plaintiff has failed to carry his burden of proof. Crump v. Hartford Accident and Indem. Co., 367 So.2d 300 (La.1979); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Therefore, the lower court acted properly in dismissing the plaintiff’s claim. However, we further find that error was committed when the trial court dismissed the plaintiff’s claim with prejudice.

In Chivoletto v. Johns-Manville Products Corp., 330 So.2d 295 (La.1976), the trial court determined that the plaintiff had contracted asbestosis but this condition did not render the plaintiff totally and permanently disabled. Accordingly, the plaintiff’s claim for workman’s compensation benefits was limited to an award for serious and permanent impairment of a useful physical function (plaintiff’s lungs). On appeal, the Supreme Court recognized the fact that asbestosis is a progressive disease and therefore, reserved to the plaintiff the right to file another compensation claim if and when he would become disabled as a result of this particular occupational disease. See also LaCoste v. J. Ray McDermott & Co., supra.

In the case before us, Dr. Weill testified that asbestos exposure in the 1970’s such as the kind experienced by the plaintiff may contribute to lung diseases which may not become apparent until the 1980’s and 1990’s. Hence, the possibility exists that the plaintiff may experience a lung disease in the future which may be attributable to his employment with F & M.

Accordingly, we order that the judgment of the trial court be amended so as to dismiss the plaintiff’s claim without prejudice, and as amended, we affirm.

AMENDED AND AS AMENDED AFFIRMED.