text:
    STATE of Louisiana ex rel. Junior L. BARRETT v. Warden Hayden J. DEES, Dixon Correctional Institute. STATE of Louisiana ex rel. Thomas CARDWELL v. Warden Frank C. BLACKBURN, Louisiana State Penitentiary.
    No. 80-K-1777.
    Supreme Court of Louisiana.
    Oct. 6, 1980.
   In re Junior L. Barrett, applying for supervisory writs of certiorari or review. Parish of Lafourche. Nos. 98224 and 95818.

Writ denied.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Norma Lynn NEWMAN.
    No. 80-K-2095.
    Supreme Court of Louisiana.
    Oct. 6, 1980.
   In re Norma Lynn Newman, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Ouachita. No. 44169.

Denied.

DIXON, C. J., and DENNIS, J., would grant the writ.


text:
    Jacques J. CREPPEL et al. v. The PARISH OF JEFFERSON et al.
    No. 80-C-1756.
    Supreme Court of Louisiana.
    Oct. 6, 1980.
   In re The Parish of Jefferson, applying for certiorari or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 384 So.2d 853.

Denied.

WATSON, J., would grant the writ.

LEMMON, J., recused.


text:
    MARYLAND CASUALTY COMPANY v. Don TRAHAN d/b/a Trahan Texaco Service Station and The Traveler’s Insurance Company.
    No. 80-C-1757.
    Supreme Court of Louisiana.
    Oct. 6, 1980.
   In re Travelers Insurance Company applying for certiorari, or writ of review, to the Court of Appeal, Fourth District. Parish of Jefferson. 384 So.2d 819.

Denied.

LEMMON, J., recused.


text:
    Lionel THERIOT et al. v. MERMENTAU RESOURCES, INC.
    No. 80-C-1760.
    Supreme Court of Louisiana.
    Oct. 6, 1980.
   In re Lionel Theriot, et al., applying for certiorari, or writ of review to the Court of Appeal, Third Circuit. Parish of Cameron. 385 So.2d 939.

Writ denied.

WATSON and LEMMON, JJ., would grant the writ.


text:
    Lloyd WEYSHAM, Jr. and Louis Weysham v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 80-C-1762.
    Supreme Court of Louisiana.
    Oct. 6, 1980.
   In re New Orleans Public Service Inc. applying for writ of certiorari or review to the Court of Appeal, Fourth Circuit. Parish of Orleans. 385 So.2d 19.

Denied.

LEMMON and BLANCHE, JJ., would grant the writ.


text:
    Brigida HALL v. BOARD OF SUPERVISORS, SOUTHERN UNIVERSITY, etc., and Niagara Fire & Marine Ins. Co.
    No. 80-C-1773.
    Supreme Court of Louisiana.
    Oct. 6, 1980.
   In re Board of Supervisors, Southern University, Etc., and Niagara Fire & Marine Ins. Co., applying for certiorari or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 387 So.2d 643.

Denied.

MARCUS, J., would grant the writ.


text:
    Dennis ESTA v. DOVER CORPORATION et al.
    No. 80-C-1797.
    Supreme Court of Louisiana.
    Oct. 6, 1980.
   In re Dennis Esta applying for writ of certiorari or review, to the Court of Appeal, First Circuit. Parish of St. Mary. 385 So.2d 439.

Denied.


text:
    Nathan P. BOUDREAUX v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY. John R. BOUDREAUX, Individually and on behalf of John R. Boudreaux, Jr. v. Nathan P. BOUDREAUX, State Farm Mutual Automobile Insurance Company, et al.
    No. 80-C-1806.
    Supreme Court of Louisiana.
    Oct. 6, 1980.
   In re State Farm Mutual Automobile Insurance Company, applying for certiorari or writ of review, to the Court of Appeal, First Circuit. Parish of Terrebonne. 385 So.2d 485; 385 So.2d 480.

Denied.


text:
    Nathan P. BOUDREAUX v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY. John R. BOUDREAUX, Individually and on behalf of John R. Boudreaux, Jr., v. Nathan P. BOUDREAUX, State Farm Mutual Automobile Ins. Co., et al.
    No. 80-C-1788.
    Supreme Court of Louisiana.
    Oct. 6, 1980.
   In re John R. Boudreaux, Jr., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Terrebonne Parish. 385 So.2d 480; 385 So.2d 485.

Writ denied.

DIXON, C. J., would grant the writ.


text:
    STATE of Louisiana ex rel. Gilbert FRANKLIN v. STATE of Louisiana.
    No. 80-KH-2290.
    Supreme Court of Louisiana.
    Oct. 10, 1980.
   In re Gilbert Franklin, applying for remedial writs. Parish of East Baton Rouge.

Denied.


text:
    STATE of Louisiana v. Charles K. WALLACE.
    No. 80-K-2327.
    Supreme Court of Louisiana.
    Oct. 10, 1980.
   In re Charles K. Wallace, applying for writs of certiorari, review, mandamus and stay order. Parish of St. Tammany. Nos. 75883 and 72358.

Granted.

DIXON, C. J., would order the immediate release of the relator.


text:
    STATE of Louisiana v. Ernest TAYLOR, Jr.
    No. 80-K-2369.
    Supreme Court of Louisiana.
    Oct. 13, 1980.
   In re Ernest Taylor, Jr., applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Orleans. No. 278-312.

Writ granted. The trial judge is hereby ordered to grant defendant a continuance to permit the filing of pretrial motions.


text:
    STATE of Louisiana v. David C. RAYMOND.
    No. 80-K-2383.
    Supreme Court of Louisiana.
    Oct. 14, 1980.
   In re David C. Raymond, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Jefferson. No. 79-2336.

Denied. Applicant has not applied first to district court on Assignment of Error No. 1; otherwise, adequate remedy by review in the event of conviction.


text:
    STATE of Louisiana v. Kevin BOYD.
    No. 80-K-2388.
    Supreme Court of Louisiana.
    Oct. 14, 1980.
   In re Kevin Boyd, applying for supervisory writs. Parish of Jefferson. No. 80-1985.

Writ denied.


text:
    STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT v. Darrel Van WILLET, Sr. et ux.
    No. 80-C-2153.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re Darrel Van Willet, Sr., et ux., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Rapides. 386 So.2d 1023.

Denied.


text:
    STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT v. Darrell Van WILLETT, Sr. et ux.
    No. 80-C-2145.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re State of Louisiana, through the Department of Transportation and Development, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. 386 So.2d 1023.

Denied.


text:
    CONCERNED CITIZENS FOR CALCASIEU RIVER and Old Town Bay v. LAKE CHARLES REFINING COMPANY.
    No. 80-C-1815.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re Lake Charles Refining Company, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 387 So.2d 1330.

Denied.


text:
    Joseph M. ALFONSO et al. v. Reginald McINTYRE and Appalachian Insurance Company.
    No. 80-C-1809.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re Joseph M. Alfonso applying for writ of certiorari or review, to the Court of Appeal, First Circuit. Parish of Tangipahoa. 387 So.2d 1348.

Denied.


text:
    Harold L. LEWIS v. BATON ROUGE OIL AND CHEMICAL WORKERS UNION et al.
    No. 80-C-1810.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re Harold L. Lewis, James C. Matthews, Elmo W. Morgan, Ronald J. Matthews, Johnnie A. Jones, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 387 So.2d 1311.

Denied.


text:
    VULCAN FOUNDRY, INC. v. Shirley McNAMARA, Secretary of the Department of Revenue and Taxation, State of Louisiana.
    No. 80-C-1824.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re Shirley McNamara applying for writ of certiorari or review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 387 So.2d 1318.

Granted.


text:
    Peggy J. NAPOLI v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al.
    No. 80-C-1870.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re Peggy J. Napoli, applying for writs of certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 387 So.2d 1351.

Granted.


text:
    C. B. DUTTON v. William J. GUSTE, Jr.
    No. 80-C-1560.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re C. B. Dutton applying for writ of certiorari or review, from the First Circuit, Court of Appeal. Parish of East Baton Rouge. 387 So.2d 630.

Granted.


text:
    QUALITY SEAFOOD, INC. v. DOS GRIS SEAFOOD, INC.
    No. 80-C-1808.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re Dos Gris Seafood, Inc., applying for writ of certiorari or review, to the Court of Appeal, First Circuit. Parish of Lafourche. 388 So.2d 95.

Denied.


text:
    CITY OF BATON ROUGE v. Michael F. MALIK.
    No. 80-K-1775.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re Michael F. Malik, applying for reconsideration of — writ granted in part and denied in part — of September 19, 1980.

Granted. In addition to granting the writ on assignment of error number two (2), the Court also grants on the issue of the illegal sentence.


text:
    STATE of Louisiana v. Terry P. DUPLANTIS.
    No. 80-K-2604.
    Supreme Court of Louisiana.
    Nov. 7, 1980.
   In re Terry P. Duplantis, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Jefferson. No. 79-685.

Granted. Execution of sentence stayed and defendant is ordered admitted to bail pending action on application for writs in the United States Supreme Court.


author: CULPEPPER, Judge.

text:
    The SOUTHERN COTTON OIL CO., Plaintiff and Appellant, v. Huey P. MITCHELL, Defendant and Appellee.
    No. 7809.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 1980.
    Gahagan & Gahagan, Russell E. Gahagan, Natchitoches, for plaintiff and appellant.
    Thomas & Dunahoe, Gerard F. Thomas, Jr., Natchitoches, for defendant and appel-lee.
    Before CULPEPPER, DOMENGEAUX and SWIFT, JJ.
   CULPEPPER, Judge.

This is a workmen’s compensation case. The plaintiff-employer seeks a declaratory judgment determining the type of disability of defendant-employee. The trial court found defendant is totally and permanently disabled. Plaintiff appealed. Defendant answered the appeal, seeking damages for frivolous appeal.

The accident and injury in question occurred on November 3, 1977, while the defendant was working for the plaintiff, Southern Cotton Oil Co., Inc. in Natchitoch-es. Defendant and a co-employee picked up a 30-gallon can filled with cotton-seed cake to move it to another location. The co-employee dropped his side of the can, causing injuries to defendant’s back.

Immediately after the accident, claimant was seen by Dr. J. V. Kaufman of Natchi-toches, who diagnosed a back injury and referred him to Dr. Baer I. Rambach, an orthopedic surgeon of Shreveport. On November 11, 1977, Dr. Rambach examined claimant and started treatment for a back injury. The back and leg pain persisted, so on December 18, 1977 Dr. Rambach performed a myleogram which showed a herniated disc in the lumbar region. On December 21, 1977, Dr. Rambach performed a complete removal of the disc at L3-4 and a partial removal of the disc at L5, SI.

Dr. Rambach followed claimant’s progress after surgery. On June 19, 1978 he reported defendant had permanent partial loss of function of the lumbo-sacral spine resulting in 10% loss of function of the body as a whole. However, Dr. Ram-bach was of the opinion plaintiff could return to work at Southern Cotton Oil Co. effective July 1, 1978.

Defendant did return to work at the oil mill and performed light duties for about two weeks. But he quit and went back to Dr. Rambach on August 1, 1978, still complaining of pain in his back. On that occasion, Dr. Rambach found claimant had not rehabilitated himself enough to tolerate heavy lifting, so he recommended a back brace.

Claimant continued to complain of pain in his back, so Dr. Rambach referred him to Dr. H. K. Faludi, a neurosurgeon in Shreveport. This physician reported on December 13, 1978 that defendant could return to light work. On January 30,1979, Dr. Falu-di examined plaintiff and reported he had partial permanent disability of about 15% of the body as a whole and could perform light work, but advised that he not lift anything heavier than about 50 pounds and that he avoid twisting motions. Dr. George Martinez, an associate of Dr. Faludi, saw defendant on August 14, 1979 and rendered essentially the same report as Dr. Faludi, but stated in addition that he saw no reason why defendant could not resume at least light type part-time work.

On August 28, 1979, defendant was seen by Dr. H. Winston Brown, a pain specialist in Shreveport. This physician found defendant to be a well developed, well nourished 47-year-old black male in no acute distress and with no obvious abnormalities. An electromyograph revealed nerve root abnormalities at multiple levels in the lumbar spine. The diagnosis was chronic degenerative lumbar disc disease with acute exacerbation. No surgery was recommenced. Treatment suggested was medication for pain.

Plaintiff has paid workmen’s compensation benefits from the time of the accident through the date of the trial on November 13, 1979, based on total disability. The weekly payments are $100.08.

At the trial, defendant testified he has only a fourth grade education. As a young man, he worked at various common labor jobs such as pulpwood cutter, sawmill worker, etc. He had worked at plaintiff’s oil mill for almost 30 years. During the pressing season he operated a press. The remainder of the year he worked as a maintenance laborer.

Defendant lives with his common-law wife of more than 20 years. She works in a dress shop. He stays at home and tries to cook and take care of the house. However, he testified he could not bend, stoop or climb and that he cannot stay in one position for more than about two hours without pain in his back. He says he can’t stand for long periods of time, cannot sit in one position for more than three hours and even at night cannot get comfortable in bed. He takes two pills a day for pain.

However, defendant admitted that he and his wife own and operate a cafe and nightclub, the Blue Light Inn. The club is open on Friday, Saturday and Sunday nights from 7:00 P.M. until early the next morning. Plaintiff works behind the counter selling beer, soft drinks and other items, but he says that after about two hours he has to go back in the rear and lay down on a bed.

Defendant also testified he occasionally goes fishing on Cane River, sometimes from the bank and sometimes in a boat owned by a friend. But he says he can’t stand on the bank or ride in the boat for very long at a time.

Defendant’s testimony as to his activities is corroborated by his common-law wife of 20 years and by three or four of his friends and neighbors.

In the recent case of Dusang v. Henry C. Beck Builders, et al., 389 So.2d 367 (La.1980) our Supreme Court answered for the first time several questions which have arisen as to the new definitions of total disability, as distinguished from partial disability, contained in LSA-R.S. 23:1221 as amended in 1975. Dusang was an iron worker and a welder. He injured his shoulder and wrist. After treatment, he returned to work as a welder, but continued to have pain. The Supreme Court states in its opinion:

“Malone and Johnson have recommended that Louisiana courts adopt the ‘odd lot’ doctrine in interpreting the new total disability provision. Under this doctrine a claimant is considered totally disabled if his injury makes him an ‘odd lot’ in the labor market — in other words, if he can hold various jobs periodically, but the kind of work he can do is so limited that a reasonably stable market for it does not exist. An ‘odd lot’ claimant need not be absolutely helpless to qualify for total disability status. If the claimant can prove that his physical condition, his mental capacity, his education, training, age or other factors combine to place him at a substantial disadvantage in the competitive labor market, he has made out a prima facie case for classification in the ‘odd lot’ category. The employer or insurer must then show that some form of suitable work is regularly and continuously available to the claimant in the area where he resides. (Emphasis supplied)
******
“In this case, even though we agree with the trial court and the Court of Appeal that Mr. Dusang works in substantial pain, he is not totally disabled.
“Except for the six weeks following his termination at Beck, Mr. Dusang has worked steadily following his injury. The pain has not been so disabling as to require him to be hospitalized or to miss work. While his co-workers testified that they needed to help him with heavy lifting following the accident, his foreman at Beck testified that he never had to substitute any employee for Mr. Dusang because of his inability to do the work. Mr. Dusang has been able to find work as a welder out of the electrician’s hall, and there is no clear evidence that he will not be able to find work in the future. At the time of trial he was earning more than he earned before his accident; the partial disability status will protect him in the future.”

Under the rules quoted from Du-sang, the first question is whether defendant has made out a prima facie case that he is totally and permanently disabled, considering his physical condition, his mental capacity, his education, training, age or other factors which might combine to place him at a substantial disadvantage in the competitive labor market. To fall into the “odd-lot” category and thus be totally disabled, claimant need not be absolutely helpless nor unable to perform odd jobs periodically. Of course, in this case these are factual questions as to which the finding of the trial judge should not be reversed on appeal unless he is manifestly erroneous or clearly wrong.

Although the trial judge did not have the benefit of Dusang at the time of his decision, he did find defendant totally disabled. Under the evidence set out above, the trial judge was not clearly wrong in this conclusion. Defendant has only a fourth grade education, is now about 50 years of age and has worked all of his life in jobs requiring strenuous physical labor. He has no education or training in any types of skilled or semi-skilled work not requiring heavy physical labor. His back condition is such that he cannot engage in work where he has to lift over 50 pounds, do any twisting or turning, or even stand or sit for more than two or three hours at a time. These factors combine to place him at a substantial disadvantage in the competitive labor market.

Having determined that defendant made out a prima facie case that he falls in the “odd-lot” category, the next question is whether the employer has shown that some form of suitable work is regularly and continuously available to the defendant in the area where he resides. Of course, counsel for plaintiff did not have the benefit of the Dusang case at the time of trial. However, plaintiff’s counsel did attempt to show that defendant can perform light work for wages. Plaintiff argues that defendant is a relatively young man in excellent health except for the disability of his back resulting from the two disc removals. Plaintiff points to the evidence that defendant works at the nightclub. Also, plaintiff notes that claimant stays at home and cooks and takes care of the house so that his wife can earn a substantial wage. The implication is that defendant does not try to work because he is content to draw his $100 per week for the rest of his life, and this benefit plus what his wife earns is sufficient for them to live well.

Although the employer’s arguments are serious, they are not sufficient to satisfy the requirement set forth in Dusang that the employer must show “some form of suitable work is regularly and continuously available to the claimant in the area where he resides.”

Unlike the claimant in Dusang, the claimant here did not continue to work. He tried to do light work at the oil mill for two weeks but had to quit because of the pain. Of course, if claimant ever does return to regular work which would remove him from the “odd-lot” category, or if other evidence develops that defendant’s incapacity has diminished, the employer can seek judicial review under the provisions of LSA-R.S. 23:1331.

With regard to the claimant’s answer to the appeal seeking damages for a frivolous appeal, we think the appeal is serious, and that no such damages can be awarded.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the plaintiff-appellant.

AFFIRMED.

SWIFT, J., concurs in result.


author: FORET, Judge.

text:
    Eddie ROSS, Jr., Individually and as Administrator of the Estate of the Minor Children, Wilford Earlton Ross and Eddie Lee Ross, III, Plaintiff-Appellant, v. CENTRAL LOUISIANA STATE HOSPITAL et al, Defendant-Appellee.
    No. 7816.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 1980.

      Brittain & Williams, Jack 0. Brittain, Natchitoches, for plaintiff-appellant.
    Broussard, Bolton & Halcomb, Frank R. Bolton, Jr., Alexandria, for defendant-ap-pellee.
    Before FORET, CUTRER and LA-BORDE, JJ.
   FORET, Judge.

On May 30, 1977, Vivian Ross, mother of three children, was committed by the coroner of Natchitoches Parish to Central Louisiana State Hospital in Pineville, Louisiana. Upon expiration of the coroner’s commitment, she voluntarily agreed to remain at Central for further treatment. She was discharged on August 5, 1977. Seven months later on March 11, 1978, while at her parents’ home, she shot and killed her daughter, Pauline Ross, and shot and injured her son, Eddie Lee Ross, III.

After being adjudicated not guilty of murder by reason of insanity, Vivian Ross was remanded to East Louisiana State Hospital (now Feliciana Forensic Facility). Eddie Ross, Jr., her husband and father of the children, sued individually and as administrator of the estate of the minor children, alleging the State of Louisiana, through the Department of Health and Human Resources, was liable for the death and injury of the children. The trial court found the state was not liable. We affirm.

The appellant argues the hospital had a duty to warn Vivian Ross’s family that if she did not take her medication she would become violent.

The only physicians testifying at the trial were Dr. Roy Hill, a psychiatrist and administrator of Central Louisiana State Hospital and Dr. Robert Ourso, a staff psychiatrist at Central Louisiana State Hospital. Both testified that at the time Vivian Ross was released she had never exhibited any propensity toward violence nor could they have recommended her commitment since they did not consider her dangerous to herself or others. Dr. Ourso testified that she knew the importance of taking her medication and was able to comply with the instructions.

Dr. Ourso, the treating psychiatrist, diagnosed her condition as schizophrenia, schizo-affective type. Persons suffering from such an illness have a disturbance in their thinking ability due to a distorted perception of reality. The medication given Vivian Ross has the effect of improving the individual’s thinking ability. The medication is not meant to control violence nor could it be used to do so. Neither psychiatrist could name a medication which specifically prevents a person from becoming violent. Both psychiatrists were of the opinion that an individual suffering from schizophrenia, schizo-affective type, was no more apt to commit an act of violence than a member of the general public.

Under the duty-risk analysis, the court must first determine if the defendant’s actions or omissions caused plaintiff’s injuries. If they did, the court then must determine whether defendant owed plaintiff a duty of care and whether it protects the plaintiff from the particular harm incurred. Dixie Drive It Yourself System v. American Beverage Company, 242 La. 471, 137 So.2d 298 (1962).

The appellant offered no evidence to show that Vivian Ross failed to take her medication at the time she attacked her children. Nor did appellant present any medical testimony establishing a causal relationship between her failure to take her medication and her attack on the children.

The appellant has not argued the hospital was negligent in releasing Vivian Ross. Given the facts and circumstances at the time of her release, the hospital could not have foreseen her actions. A hospital cannot be expected to warn third persons of possible dangers which it could not foresee. Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972).

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed against the appellant.

AFFIRMED.


author: DOMENGEAUX, Judge.

text:
    Richard G. LUCITO, Plaintiff-Appellee, v. LOUISIANA HOSPITAL SERVICE, INC., d/b/a Blue Cross of Louisiana, Defendant-Appellant.
    No. 7830.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 1980.

      Lewis & Lewis, Peter F. Caviness, Opel-ousas, for defendant-appellant.
    Sandoz, Sandoz & Schiff, Gerald H. Schiff, Opelousas, for plaintiff-appellee.
    Before CULPEPPER, DOMENGEAUX, and SWIFT, JJ.
   DOMENGEAUX, Judge.

The plaintiff-appellee, Richard G. Lucito, instituted this suit to recover medical benefits under a group hospitalization insurance policy issued by the defendant-appellant, Louisiana Hospital Service, Inc., d/b/a Blue Cross of Louisiana. Blue Cross denied coverage. The trial court rendered a judgment in favor of the plaintiff and against Blue Cross for the benefits, plus attorney’s fees, but denied penalties. From this judgment, Blue Cross suspensively appeals. Plaintiff has answered the appeal seeking penalties denied him in the trial court and asking for additional attorney’s fees for services on appeal. We reverse in part and affirm in part.

The issues presented on appeal are: Is the plaintiff’s hospitalization excluded from coverage under the hospitalization insurance policy issued by the defendant-appellant? And, if the plaintiff is entitled to benefits under the policy, is he entitled to penalties and attorney’s fees?

On November 22, 1978, the plaintiff was examined by Dr. Wilfred Briley, a general practitioner. Doctor Briley concluded that the plaintiff was suffering from diarrhea but could not at that time ascertain the cause. The next day, Doctor Briley admitted the plaintiff to Opelousas General Hospital. During the approximately 24 hour period plaintiff was in the hospital he was enema cleansed, then was administered a Barium enema, a GI series, blood tests, gall bladder tests, an EKG, tests for parasites, etc., and a chest x-ray. Following these tests, Doctor Briley determined that plaintiff was suffering from a peptic ulcer. Plaintiff was released from the hospital and treatment of his ulcer continued at home.

IS PLAINTIFF’S HOSPITALIZATION COVERED?

Defendant contends that this hospitalization is not covered under its policy because of an exclusion contained in Article IX A (4) of the policy in question, which reads:

“.:. A. No Health Care allowance will be provided for:
* * * * * *
(4) admissions which in the opinion of the attending Physician and the Plan’s Physicians are primarily for diagnostic studies ...” (Emphasis added)

That clause excludes from coverage any hospitalization which, in the opinion of the attending physician and the Blue Cross physicians, is primarily for diagnostic studies. The trial court determined that in order for the exclusion to apply both the admitting physician and the Blue Cross physicians had to concur that the hospitalization was primarily for diagnostic studies. The court found that Doctor Briley, the attending physician, did not so concur. This determination is supported by the record. Doctor Briley testified that he admitted the plaintiff into the hospital because he suffered from diarrhea and that the diagnostic tests were part of the treatment. We cannot say this determination is manifestly erroneous. In fact, his definition of treatment as including diagnostic tests is supported by recent jurisprudence.

In Baque v. Pan-American Life Insurance Company, 313 So.2d 293 (La.App.3rd Cir. 1975), writ refused 318 So.2d 52 (La.1975), this Court had occasion to define the word “treatment”:

“Although the Louisiana jurisprudence reveals no case defining ‘treatment’, we find applicable the following definition of that term by the courts of sister states: ‘In common parlance and often in the law, ‘treatment’ is the broad term covering all the steps taken to effect a cure of the injury or disease. It includes examination and diagnosis, as well as application of remedies’, Hester v. Ford, 221 Ala. 592, 130 So. 203, 206 (1930). See also Stephens v. Williams, 226 Ala. 534, 147 So. 608 (1933); Kirschner v. Equitable Life Insurance Society, 157 Misc. 635, 284 N.Y.S. 506, 510 (1935); Permanent Edition, Words and Phrases, Volume 42A, Treatment, p. 45. We believe that the foregoing definition of the word ‘treatment’ accords with logic and common sense.”

Under this rather broad definition of the word “treatment” which this court has utilized, diagnostic tests may be properly regarded as part of the treatment.

The Baque definition of treatment was approvingly applied in a situation analogous to the one herein in our recent case of Poche v. Louisiana Health Services & Indemnity Company, 391 So.2d 17 (La.App.3rd Cir. 1980) (# 7827).

We note that the Blue Cross policy purports to provide inpatient benefits for “treatment” of an illness or infirmity while at the same time, later in the policy, it purports to exclude inpatient benefits when the hospitalization is “primarily for diagnostic studies”. We note that the Blue Cross policy does not define the terms “treatment” (which is covered) nor “diagnostic studies” (which is not covered if the hospitalization is primarily for that reason).

In the absence of more precise policy language which clearly differentiates between “treatment” and “diagnostic studies” we cannot say the trial court erred in giving great weight to Doctor Briley’s testimony that the diagnostic tests constituted a part of the treatment.

It is well settled that ambiguous clauses in policies of insurance are to be construed against the insurer. This is particularly true of exclusionary clauses. In Paret v. Louisiana Health Service & Indemnity Company, 366 So.2d 634 (La.App.3rd Cir. 1979), writ refused, 369 So.2d 139 (La.1979) this Court said: “If more than one interpretation of an exclusion is reasonable, the one affording coverage to the insured will be adopted.” See also Rushing v. American Income Insurance Company, 274 So.2d 458 (La.App.3rd Cir. 1973).

The defendant cites Niles v. American Banker’s Insurance Company, 258 So.2d 705 (La.App.3rd Cir. 1972) to support its contention that the plaintiff’s hospitalization is not covered in the instant case. The facts in Niles are similar to the facts herein. However, in Niles, the attending physician testified that the hospitalization was for “observation and for tests”; no treatment was given. The trial and appellate courts concluded that Mrs. Niles was hospitalized principally for the purpose of diagnosis, even though a positive diagnosis was never made. Niles can be distinguished from the instant case because here Doctor Briley testified that the plaintiff’s hospitalization was for treatment as well as for diagnostic tests and that the tests were part of the treatment. Thus, we find the Niles case inappo-site.

PENALTIES AND ATTORNEY’S FEES

The trial court went on to determine that the plaintiff was entitled to attorney’s fees, but not to the penalties provided in La.R.S. 22:657. We will not disturb the trial court’s finding that penalties are not warranted; however we find the court erred in making the award of attorney’s fees.

La.R.S. 22:657 governs the award of penalties and attorney’s fees when insurers fail to make timely payment of loss claims under health and accident policies. The defendant contends that La.R.S. 22:658, which also governs the awarding of penalties and attorney’s fees in certain cases, should control the instant situation because the Supreme Court in Tabb v. Louisiana Health Services & Indemnity Co., 361 So.2d 862 (La.1978) held that a Blue Cross policy which did not insure against injury, disablement or death, but provided benefits only for hospital and medical care was not a “Health and Accident” policy. However, the Supreme Court in Rudloff v. Louisiana Health Services and Indemnity Co., 385 So.2d 767 (La.1980) overruled Tabb in that it held such a Blue Cross policy is classified as a “Health and Accident” policy and is within the scope La.R.S. 22:657. Thus, the trial court correctly held that La.R.S. 22:657 was the applicable statute.

La.R.S. 22:657 provides for penalties and attorney’s fees to be assessed against an insurer who fails to pay a claim without “just and reasonable grounds, such as would put a reasonable and prudent businessman on his guard”. As to whether or not just and reasonable grounds exist is purely a factual matter and each case must be considered on its own facts and circumstances. Tingle v. Reserve Life Insurance Company, 260 So.2d 333 (La.App.2nd Cir., 1972); McMillan v. Travelers Insurance Company, 371 So.2d 1213 (La.App.1st Cir. 1979). The trial judge in the instant case found the actions of the defendant not to warrant the imposition of penalties. Factual determinations of the trial court will not be disturbed unless clearly wrong. Upon review of the entire record we find the trial court’s decision in this respect is not clearly wrong.

However, we feel that the trial court was clearly wrong in awarding attorney’s fees to the plaintiff. The penalty clause of La.R.S. 22:657 reads:

“Failure to comply with the provisions of this Section shall subject the insurer to a penalty payable to the insured of double the amount of the health and accident benefits due under the terms of the policy or contract during the period of delay, together with attorney’s fees to be determined by the court.”

The words “together with attorney’s fees” indicate attorney’s fees may only be assessed when grounds exist to award penalties. See Miley v. Fireside Mut. Ins. Co., 200 So. 505 (La.App.1st Cir. 1941). Having determined no grounds existed to award the statutory penalty, it was clearly wrong for the trial court to award attorney’s fees.

For the above and foregoing reasons, the judgment of the trial court is reversed insofar as it awards attorney’s fees to the plaintiff-appellee. In all other respects the trial court’s judgment is affirmed. All costs of this appeal are to be borne by the defendant-appellant.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

      . Article II of the policy, relative to inpatient hospital benefits provides:
      “A Member admitted to a Member Hospital as an Inpatient is entitled to the following Health Care benefits for each Benefit Period when treatment of the condition requires Inpatient care and when services and supplies provided are prescribed by a Physician billed for by the Hospital, administered by the Hospital, and used by the Member during the Admission, and when the services and supplies rendered are in connection with direct care and treatment of an illness or infirmity necessitating hospitalization." (Emphasis added)


author: STOKER, Judge.

text:
    Willie Matt PAUL et al., Plaintiffs-Appellees-Appellants, v. FORD MOTOR COMPANY et al., Defendants-Appellants, Alexandria Lincoln-Mercury, Inc., Third Party Plaintiff-Appellant.
    No. 7847.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 1980.

      Provosty, Sadler & deLaunay, Michael T. Pulaski, Gold, Little, Simon, Weems & Bruser, Henry B. Bruser, Alexandria, for defendants-appellants.
    Edward A. Kaplan, Alexandria, for plaintiffs-appellees-appellants.
    Before GUIDRY, STOKER and DOU-CET, JJ.
   STOKER, Judge.

This is a redhibitory action brought by a husband and wife seeking to rescind the sale of an automobile, a 1978 Mercury Marquis. The trial court gave judgment for plaintiffs and ordered rescission of the sale and gave other forms of relief. The principal impact of the judgment fell on the manufacturer of the vehicle, Ford Motor Company. Judgment was also rendered against Alexandria Lincoln-Mercury, Inc., the seller, but this defendant was granted recovery over against Ford Motor Company on a third-party demand for indemnity. Ford Motor Credit Company, which financed the purchase of the vehicle, was also a defendant and the trial court’s judgment contains certain orders directed to that company.

Ford Motor Company and Alexandria Lincoln-Mercury, Inc., have appealed from the trial court’s judgment. The plaintiffs answered the appeal seeking (1) a reversal of the allowance of a credit to defendant-appellees of $.08 per mile for use by plaintiffs of the vehicle, (2) an increase in the award of attorney’s fees to reflect the additional work required in defending this appeal and (3) reimbursement of telephone expenses in the amount of $13.66.

The principal factual question in this case is whether the vehicle in question contained a vice or defect when sold to plaintiffs. We agree with the trial court’s finding that there was, and we affirm that portion of its judgment. In order to set forth all the issues we include the trial court’s reasons for judgment which set forth with specificity its findings, rulings, and dispositions. We will then state our own rulings which will require reversal of certain aspects of the trial court’s judgment.

“REASONS FOR JUDGMENT
Plaintiffs, Willie Matt Paul and Lá-veme Paul, bring this action in redhibition against Ford Motor Co., Ford Motor Credit Co;, and Alexandria Lincoln-Mercury, Inc. Plaintiffs seek to rescind the sale of a 1978 Mercury Marquis bought by them from defendants, the cancellation of the chattel mortgage connected with said sale, as well as damages and attorney’s fees.
Plaintiffs purchased the auto in question on or about April 1978, from defendant, Alexandria Lincoln-Mercury for a negotiated cash price of $7,980. Plaintiffs were given a trade-in allowance of $1,605.00 for their 1969 model Chevrolet. Other expenses of the sale included taxes of $191.25, and license and title fees of $13.00, for a total deferred payment of $10,649.64, including interest.
Testimony at trial established that the auto in question was defective, in that on numerous occasions the engine would stall, or completely quit, often requiring the service of a mechanic to restart it. Plaintiffs afforded Alexandria Lincoln-Mercury numerous opportunities to cure this problem. The Alexandria Lincoln-Mercury mechanics attempted to correct this problem at least nine times within the first eight months after plaintiffs had purchased the car. The personnel at the Alexandria Lincoln-Mercury repair shop made a good faith effort to cure the problem, including seeking the advice of Mr. Barre, the Ford Motor Co. mechanical expert for this region. I was very impressed with the competency, knowledge, and frankness of Mr. Barre, who testified at trial. Mr. Barre acknowledged that the problem did exist with plaintiffs’ car, and that the attempts to cure the problem had been unsuccessful.
The testimony and evidence at trial convinced me that the defect complained of by plaintiffs existed at the time of the sale, was not apparent at the time, and is so serious as to warrant rescission of the sale. Therefore, judgment is rendered for plaintiffs rescinding the sale of the auto, and against and between the various defendants in the following amounts and for the following reasons.
Judgment is granted for plaintiffs and against Alexandria Lincoln-Mercury for the entire purchase price paid for the vehicle, including the trade-in value given for plaintiffs’ 1969 auto, taxes, license, title fee and all other costs incurred by plaintiffs in connection with this purchase, subject to the following conditions:
Plaintiffs partially financed their purchase of this auto with a loan obtained from Ford Motor Credit Co. To obtain this loan, plaintiffs signed a note which was secured by a chattel mortgage on the auto. It is necessary that this note be paid and the chattel mortgage be can-celled, in order for plaintiffs to return the car to the seller free of all liens and encumbrances. To accomplish this end, it is the order of this Court that Alexandria Lincoln-Mercury use part of the monies awarded to plaintiffs to pay the balance due on the note. In determining the balance due on the note, Ford Motor Credit Co. is ordered to give credit for installments paid by plaintiffs for unearned interest and for any other unac-crued charges reflected on the face of the note. Upon payment of this note, the chattel mortgage is to be cancelled.
The amount paid by Alexandria Lincoln-Mercury to Ford Motor Credit Co. is to be deducted, from the monies owed by Alexandria Lincoln-Mercury to plaintiffs. The balance shall immediately be paid to plaintiffs, subject to a credit of eight cents a mile for plaintiffs’ actual use of the car.
Plaintiffs are ordered to return the car to Alexandria Lincoln-Mercury, free of all liens. This procedure is intended to place these three parties in the positions they were in prior to the sale of the car.
No allegation of bad faith on the part of Alexandria Lincoln-Mercury was made or proven at trial, therefore, Alexandria Lincoln-Mercury is not liable to plaintiffs for consequential damages or attorney fees.
Alexandria Lincoln-Mercury filed a third party demand in this lawsuit seeking indemnification from Ford Motor Company for any and all sums that this court awards to plaintiffs. Judgment is hereby granted in favor of Alexandria Lincoln-Mercury and against Ford Motor Company for indemnification of all amounts paid by Alexandria Lincoln-Mercury to plaintiffs. Alexandria Lincoln-Mercury is ordered to return the defective automobile to Ford Motor Company.
Plaintiffs seek attorney fees and consequential damages against Ford Motor Company. The law of this state provides that a manufacturer is presumed to know the defects of his products and is presumed to be in bad faith. LSA-C.C. art. 2545 allows the recovery of damages against the bad faith seller. Therefore, judgment is rendered for attorney’s fee in the amount of $2000.00 and for inconvenience and embarrassment in the amount of $2500.00. The testimony of plaintiffs and their witnesses was that the car stalled several times while the plaintiffs and friends were on vacation in the car and also while Mrs. Paul was using the car to transport herself and some classmate^ to school. On each of these occasions the plaintiffs and their friends were stranded until the auto could be restarted by a mechanic. I feel this caused them great embarrassment and inconvenience, and justifies an award against the manufacturer.
All costs of these proceedings are to be paid by defendants.
Judgment rendered this 8th day of February, 1980, Alexandria, Louisiana.
/s/ Richard E. Lee
RICHARD E. LEE, JUDGE
DIVISION ‘F’ ”

After reading the record and the testimony of the experts who examined plaintiffs’ 1978 Mercury Marquis we fully agree that the vehicle was defective. Alexandria Lincoln-Mercury, Inc., extended every effort in attempting to discover the problem. We do not find that defendants dispute the fact that the vehicle tended on occasion to stall, stop or act as if it were running out of gas. In fact, under the theory advanced by the defendants’ experts the vehicle was subject to running out of gas because the gas was being choked off at the source, that source being the filter in the gas or fuel tank. None of the defendants’ experts could find any cause for the problem, except for the discovery of certain foreign material in the tank variously described as particles having the appearance of thin paint flakes or scrapings, or as varnish-like material and also as small pieces of cellophane. The size of these particles was about one-eighth inch square. The fuel filter measured about two inches long and was three-quarters of an inch in diameter.

Defendants’ experts theorized that these foreign particles were formed from the gasoline, principally unleaded gas. They put forth the interesting speculation that the phenomenon resulted for some unknown reason at times when the fuel in storage tanks and service stations was low. To give plausibility to their theory the experts suggested that at the onset of gas shortages on a nationwide basis and the institution of allocation of gasoline to service stations and their suppliers, there was a tendency for storage tanks to be pumped to a point of virtually emptying them. This practice resulted, in their opinion, in pumping up some filmy substance which normally rested at the bottom of the tanks. Under normal conditions of supply gas would be pumped off the top of the fuel storage tanks and the filmy substance would not be pumped into automobile gas tanks. Hence, under normal conditions of an abundance of gasoline the problem would not manifest itself.

VICE OR DEFECT

It appears to us that in offering this persuasive explanation defendants have only succeeded in proving plaintiffs’ case for them. Plaintiffs had a pickup truck and bought gas regularly for both of their vehicles at the same stations. Yet, no problems ever developed with the pickup truck of the nature complained of in the 1978 Mercury Marquis. Plaintiffs’ problems predominated on long trips where gas would be bought over long distances. The defendants’ experts testified this was consistent with their theory because, as the vehicle was driven longer there was a greater period of time during which the foreign material could be drawn toward the fuel tank filter and coat it over so as to cut off the gasoline supply.

In our opinion when an automobile manufacturer offers an automobile for sale the automobile should be capable of operating properly on the standard fuels marketed for use in such vehicles. The expert testimony established that the problem described was apparently noted generally over the country as early as 1973, although it was not established to be a common problem. Therefore, if we accept defendants’ explanation of what caused the stalling, stopping and motor failures, defendants are in the unusual position of establishing that the 1978 Mercury Marquis contained a vice at the time of sale. The vice consisted of being equipped with a filter system incapable of filtering standard fuel sold at ordinary places of supply, albeit that the fuel came from tanks in near empty condition as above explained.

PRESUMPTION FROM FAILURE OF PLAINTIFFS TO CALL A WITNESS

Defendant-appellant Alexandria Lincoln-Mercury, Inc., complains on appeal of the failure of the trial court to apply an adverse presumption against plaintiffs. At plaintiffs’ request a mechanic by the name of Monte Elliott examined the 1978 Mercury Marquis to see if he could locate the trouble. Mr. Elliott was subpoenaed but was not called by plaintiffs as a witness. Alexandria Lincoln-Mercury, Inc., urges that in a redhibitory action, as in other litigation, the failure of a party to call an expert witness within his control who has firsthand knowledge of the facts, gives rise to a presumption that the witness’s testimony would have been adverse to the litigant. The cases cited are Edelman Systems, Inc., v. Capital GMC, Inc., 345 So.2d 99 (La.App. 1st Cir. 1977), writ denied, 347 So.2d 250 (La.1977) and Loewer v. Vanderhider, 336 So.2d 1011 (La.App. 3rd Cir. 1976), writ denied, 339 So.2d 850 (La.1976).

While the general rule referred to is well recognized it is applied in connection with all the evidence and particularly in connection with determining whether a plaintiff has established a prima facie case. We are not sure how Alexandria Lincoln-Mercury would have us apply the presumption. In this suit a prima facie case of redhibition was made, and as we have pointed out the proof was provided by defendants themselves. No one contests the fact that plaintiffs’ car was malfunctioning. No one found any problem other than the inadequacy of the fuel filter in the fuel tank. We are left without a contention as to what the adverse presumption would show.

An equally important reason why we see no force to the claimed adverse presumption is that inasmuch as defendants’ experts established plaintiffs’ case for them, there was no reason to call Mr. Elliott as a rebuttal witness. It is well understood that some witnesses, particularly expert witnesses, are called simply for the purpose of rebuttal testimony when needed.

INDEMNITY IN FAVOR OF SELLER

The dispositions made by the trial court in favor of Alexandria Lincoln-Mercury, Inc., were correct. We affirm this portion of the trial court’s judgment including the disposition ordered with reference to retiring the chattel mortgage note give in connection with the loan made by Ford Motor Credit Company.

AWARD FOR INCONVENIENCE AND EMBARRASSMENT

The evidence establishes that plaintiffs suffered considerable inconvenience as a result of being stalled at various times and the necessity of returning the vehicle to Alexandria Lincoln-Mercury, Inc., for attempted correction of the trouble. For this the trial court awarded $2,500.00. The courts of this state have not yet seen fit to recognize non-pecuniary damages in redhi-bition to cover mental anguish, inconvenience and embarrassment. Meador v. Toyota of Jefferson, Inc., 332 So.2d 433 (La.1976); Robertson v. Jimmy Walker Chrysler-Plymouth, Inc., 368 So.2d 747 (La.App. 3rd Cir. 1979), writ denied, 371 So.2d 833 (La.1979); Laughlin v. Fiat Distributors, Inc., 368 So.2d 742 (La.App. 3rd Cir. 1979); Muller v. A. K. Durnin Chrysler-Plymouth, Inc., 361 So.2d 1257 (La.App. 1st Cir. 1978), writ denied, 363 So.2d 915 (La.1978); Burns v. Lamar-Lane Chevrolet, Inc., 354 So.2d 620 (La.App. 1st Cir. 1977); Stratton-Baldwin Co. Inc., v. Brown, 343 So.2d 292 (La.App. 1st Cir. 1977). Therefore, we reverse the trial court award of this sum.

ATTORNEY’S FEES FOR THIRD PARTY PLAINTIFF

Alexandria Lincoln-Mercury, Inc., contends alternatively that in the event plaintiffs’ recovery is affirmed, it should be indemnified by Ford Motor Company and judgment should also be granted against Ford Motor Company for reasonable attorney’s fees in favor of Alexandria Lincoln-Mercury, Inc. The trial court granted the third party demand of Alexandria Lincoln-Mercury, Inc., for indemnity against Ford Motor Company. However, the trial court made no mention of attorney’s fees. This is equivalent to a denial of reasonable attorney’s fees. Alexandria Lincoln-Mercury, Inc., contends the trial court erred in failing to award these fees. We agree and reverse on this point. We will award the sum of $2,500.00 to Alexandria Lincoln-Mercury, Inc., as reasonable attorney’s fees to include services on this appeal, the judgment to run against Ford Motor Company. LSA-C.C. art. 2545; Robertson v. Jimmy Walker Chrysler-Plymouth, supra; Laughlin v. Fiat Distributors, Inc., supra; Porche v. Robinson Bros., Inc., 349 So.2d 975 (La.App. 1st Cir. 1977), writ denied, 351 So.2d 171 (La.1977); Gonzales v. Southwest Mobile Homes, Inc., 309 So.2d 780 (La.App. 3rd Cir. 1975), writ refused, 313 So.2d 239 (La.1975) and C. T. Boudreaux Lumber Co., v. Sherrwood Homes, Inc., 371 So.2d 326 (La.App. 4th Cir. 1979).

CREDIT TO DEFENDANTS FOR USE OF VEHICLE

In plaintiffs’ answer to the appeal they contend that under the circumstances of this case the defendants should not be allowed a credit of $.08 per mile for each mile of use of the vehicle.

Plaintiffs have called our attention to the Louisiana Supreme Court case of Alexander v. Burroughs Corp., 359 So.2d 607 (La.1978). In that case the Supreme Court observed:

“A credit for a purchaser’s use of a product may be proper in certain instances, even in favor of a bad faith seller.... Compensation for the buyer’s use, however, ought not be granted automatically by the courts; even the value of an extensive use may be overriden by great inconveniences incurred because of the defective nature of the thing and constant interruptions in service caused by the .seller’s attempts to repair.”

The Louisiana Supreme Court referred to our case of Hebert v. Claude Y. Woolfolk Corp., 176 So.2d 814 (La.App. 3rd Cir. 1965). It noted that in the Hebert case no credit was allowed for purchaser’s use for 8500 miles over 7V2 months, because the truck’s defects were found to have rendered it totally useless. The Supreme Court added:

“Often a defect in the thing, although redhibitory, does not render the thing absolutely useless. In such cases, where the purchaser has derived some benefit from the thing before its return, in spite of the defects, it is proper to award a credit for use.”

Considering the facts and circumstances of this case, we are of the opinion that the trial court’s allowance of credit was proper and we affirm the judgment in that respect.

TELEPHONE EXPENSES

Plaintiffs introduced evidence of telephone call expenses in the amount of $13.66 made in connection with the stoppages or stalling of the 1978 Mercury Marquis. Tr. 126-128 and P-8. The trial court failed to make an allowance for these expenses. We will allow them. Breaux v. Winnebago Industries, Inc., 282 So.2d 763 (La.App. 1st Cir. 1973).

ATTORNEY’S FEE FOR SERVICES ON APPEAL

We will make an award to plaintiffs of $500 to cover the services of counsel rendered in connection with this appeal. The total award will thus be $2,500.00. Counsel has successfully defended the principal issue in this case, the question of whether the sale should be rescinded. In addition plaintiffs have prevailed on the issue concerning reimbursement of telephone expenses. Therefore, we will not apply the rule applied in Gagnard v. Travelers Ins. Co., 380 So.2d 191 (La.App. 3rd Cir. 1980) and the earlier case of Conlay v. Houston General Ins. Co., 370 So.2d 196 (La.App. 3rd Cir. 1979), writ granted, 371 So.2d 618 (La.1979).

CONCLUSION

For the reasons set forth above that portion of the judgment of the trial court awarding plaintiffs the sum of $2,500.00 for inconvenience and embarrassment is reversed and set aside. Further, the judgment is amended to award plaintiffs additional judgment against defendants for the sum of $13.66 with judgment being granted to Alexandria Lincoln-Mercury, Inc., over against Ford Motor Company in the amount of $13.66 by way of indemnity.

The judgment of the trial court is amended to grant judgment in favor of Alexandria Lincoln-Mercury, Inc., and against Ford Motor Company for attorney’s fees in the sum of $2,500.00.

The judgment of the trial court is further amended to increase the award of attorney’s fees to plaintiffs to award a total sum of $2,500.00 to cover services rendered in the trial court and on appeal.

In all other respects the judgment of the trial court is affirmed. The costs of this appeal are to be borne equally by plaintiffs-appellees-appellants, Willie Matt Paul and Láveme Paul and by Ford Motor Company defendant-appellant and third party defendant-appellee.

AFFIRMED IN PART; REVERSED IN PART AND RENDERED.

      . There is no official indication as to the ultimate disposition of the Conlay case. Unofficially we have been advised by counsel that the case was compromised and settled prior to being acted upon by the Louisiana Supreme Court.


author: CUTRER, Judge.

text:
    Paul M. KNUCKLES, Plaintiff-Appellee, v. Timothy BEAUGH, Defendant-Appellant.
    No. 7852.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 1980.

      Raleigh Newman, Lake Charles, for defendant-appellant.
    McClain, Morgan & Greenwald, R. Scott McClain, Lake Charles, for plaintiff-appel-lee.
    Before CULPEPPER, DOMENGEAUX and CUTRER, JJ.
   CUTRER, Judge.

Paul Knuckles sued Timothy Beaugh for damages alleging that Beaugh committed a battery upon him on the night of April 26, 1978. The trial court rendered judgment in favor of plaintiff for $1,128.78 for medical expenses and $18,000.00 for general damages. The defendant appeals. We affirm as to liability, but find the general damage award to be excessive.

The suit arises from an incident at a Lake Charles bar known as the “Keg.” It is undisputed that on the night in question, the defendant kicked the plaintiff twice in the scrotal area and struck him several times in the face. As a result, Knuckles suffered injuries requiring his hospitalization for three days, during which time exploratory surgery was necessary to examine his left testicle.

The issues are: (1) Whether the defendant acted in self-defense; (2) whether there was any provocation by the plaintiff that would mitigate the damages; and (3) did the trial court abuse its discretion in awarding $18,000.00 in general damages.

The parties to this suit had a confrontation at the Lake Charles beach a week or so before their meeting at the “Keg.” On that occasion, words were exchanged for reasons which are unclear. The defendant, and a friend of his, testified that at one point plaintiff approached defendant with a knife and retreated only after defendant produced a knife of his own. Plaintiff denies ever having had a knife. He states that he approached defendant, after an earlier exchange of harsh words, to talk, whereupon defendant pulled a knife on him. Plaintiff left the beach scene in a van with other persons.

On the night of their encounter in the “Keg,” plaintiff was facing the bar, talking to a friend, while defendant and some friends were walking parallel to the bar, passing to the rear of plaintiff. Shortly after reaching plaintiff, defendant recognized plaintiff and, according to his testimony, said, “Look there’s the guy that pulled a knife on me,” whereupon plaintiff turned around quickly, moving toward defendant as he turned. Defendant explained his next actions:

"... I deliberately kicked to back him off, you know, because I didn’t know if he was going to come right at me or, you know, what his intentions were at the time.”

Defendant kicked more than once and then followed with several blows to plaintiff’s head. Plaintiff stated that when he heard defendant’s comment, he turned around but made no move toward defendant.

Each case of battery depends upon its own peculiar facts and circumstances and resort must be held to the evidence to determine who is the aggressor and whether any provocation occurred sufficient to justify a battery. Tripoli v. Gurry, 253 La. 473, 218 So.2d 563 (1969); Byrd v. Isgitt, 338 So.2d 374 (La.App. 3rd Cir. 1976). In battery cases, the plaintiff has the general burden of proof equivalent to that which any plaintiff has in a tort or damage suit. Similarly, the defendant must establish sufficient facts to constitute a provocation or a justification for the battery by a reasonable preponderance of the evidence. Ogden v. Smith, 344 So.2d 1099 (La.App. 3rd Cir. 1977).

To establish a provocation, the defendant must show some conduct or action by the plaintiff sufficient to provoke and arouse the defendant to the point of physical retaliation. Andrepont v. Naquin, 345 So.2d 1216 (La.App. 1st Cir. 1977); Squyres v. Phillips, 285 So.2d 337 (La.App. 3rd Cir. 1973).

In this case, the defendant admittedly never heard plaintiff utter any threatening or offensive words on the night of the battery. He didn’t see plaintiff raise his hands or make any threatening motion. Plaintiff was not armed. Furthermore, the defendant pleaded guilty to a criminal charge of simple battery arising from the incident. The circumstances simply do not support the defendant’s contention that he acted out of reasonable fear for the safety of his own person, or that plaintiff’s conduct was such as would provoke such an attack. This is so even if the defendant’s version of the facts are accepted.

We now turn to the question of damages. The case of Chaney v. Our Lady of Fatima Catholic Church, et al., 391 So.2d 501 (La.App. 3rd Cir. 1980) discusses the role of the appellate court in reviewing quantum:

“Whenever the issue of quantum is considered on appeal, the court must make an initial inquiry as to whether the trial court’s award for the particular injury, and its effect on this particular injured person, is a clear abuse of the trier of fact’s ‘much discretion’, LSA-C.C. Article 1934(3), in the award of damages. It is only after articulated analysis of the facts discloses an abuse of discretion, that the award may, on appellate review, be considered either excessive or insufficient. Reck v. Stevens, 373 So.2d 498 (La.1979); Carollo v. Wilson, 353 So.2d 249 (La.1977); Schexnayder v. Carpenter, 346 So.2d 196 (La.1977); Olds v. Ashley, [250 La. 935] 200 So.2d 1 (La.1967).”

Dr. John Melton, III, treated the plaintiff after the attack. He testified at trial indicating that plaintiff was admitted to the hospital at 2:30 A.M. the morning of April 27th, complaining of extreme pain in the left testicle area, and the lower quadrant of the abdomen. The left side of the scrotum was swollen larger than a grapefruit. A large hematoma initially prevented the doctor from determining whether the testicle and epididymis, which is the structure behind the testicle, were intact. Consequently, he performed exploratory surgery and evacuated the blood clot. The doctor found that the testicle, epididymis and vas defer-ens were intact. He discharged the plaintiff on April 30th, prescribing pain medication, an antibiotic and a drug to prevent epididymitis, infection of the epididymis. According to Dr. Melton’s records, plaintiff was told to return for a follow up examination in five days but never returned. The doctor further testified that such a patient would probably experience discomfort for from six to eight weeks. Plaintiff testified that he suffered pain for about five or six weéks. There is no indication that plaintiff had any residual effect from the injury. Plaintiff otherwise sustained contusions to the head, a black eye and a cut lip which required no treatment.

There was also testimony concerning the effect of plaintiff’s injury on his education. Plaintiff stated that he missed his final examinations at McNeese State University because of the injury and was not allowed to take them later. The consequences of this are not clear. Plaintiff did not testify as to how many courses he was enrolled in. He does not testify that he failed the courses in which he couldn’t take the finals. His father’s testimony indicates that his grades dropped from a “B” minus to a “C” minus. The detrimental effect on plaintiff’s education is not clear, the testimony being inconclusive.

The plaintiff also complains of great humiliation due to his injury. He apparently suffered no permanent psychological- problems but states that the attack was the impetus for his transfer to another university. Plaintiff made no claim for lost wages.

We conclude that an award of $18,-000.00 in general damages in this case is excessive. The plaintiff was hospitalized for only three days where he underwent successful surgery to drain the blood clot. After leaving the hospital, he found it painful and awkward to walk. He regained his mobility, however, in a few days. After six weeks, the plaintiff stated that he was free of pain. We recognize that the particular injury was undoubtedly extremely painful for a short time, but in view of the relatively short period of recovery and the lack of residual effect, we find that $10,000.00 in general damages is adequate compensation. In a case such as this, care must be taken not to let the offensive or brutal nature of the defendant’s conduct lead the court out of the realm of compensatory damages into damages which may contain punitive aspects. Article 2315 of the Civil Code contemplates simple reparation, a just and adequate compensation for injuries. It suggests no idea of revenge or punishment. Ricard v. State, 382 So.2d 190 (La.App. 1st Cir. 1980).

For the above and foregoing reasons, the judgment of the trial court is amended by reducing the total award for plaintiff to the sum of $11,128.78. As amended, the judgment is affirmed. The costs of this appeal are assessed one-half to defendant-appellant and one-half to the plaintiff-appellee.

AMENDED AND AFFIRMED.


author: GUIDRY, Judge.

text:
    Wanda KEEL, Both Individually and as Natural Tutrix for Kenneth E. Naquin and Kenneth E. Naquin, Sr., Plaintiffs-Appellants, v. Ima THOMPSON and Government Employees Insurance Company, Defendants-Appellees.
    No. 7858.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 1980.

      Baggett, McCall, Singleton, Ranier & Iey-oub, Drew Ranier, Lake Charles, for plaintiffs-appellants.
    Raggio, Cappel, Chozen & Berniard, Christopher Trahan, Lake Charles, for defendants-appellees.
    Before GUIDRY, STOKER AND DOU-CET, JJ.
   GUIDRY, Judge.

In this tort action Wanda Keel, Individually and as Natural Tutrix of Kenneth Na-quin Jr., age nine, and Kenneth E. Naquin Sr., seek to recover damages sustained by their minor son who was involved in a bicycle-automobile collision. Ima Thompson, driver of the automobile and her insurer, Government Employees Insurance Company are named as defendants. The trial court rendered judgment for the defendants. Plaintiffs have appealed urging that the trial court manifestly erred in its conclusion that the defendant driver, Ima Thompson, was free of any negligence. Appellants further urge that the trial court erred in its conclusion that the minor bicyclist was guilty of contributory negligence.

The trial judge rendered written reasons setting forth in detail his factual findings and his conclusions in regard thereto. Close scrutiny of the trial record reveals not only that the trial judge’s conclusions are free of manifest error but rather fully supported by the evidence adduced. For this reason we take the liberty of adopting as our own the well considered opinion of the trial court which reads in its entirety as follows:

“This case involves an automobile-bicycle accident that occurred at approximately 7:55 p. m. on Sunday, August 14, 1977, at the intersection of N. Texas Street and Simmons Street in DeRidder, Louisiana. The bicycle rider, Kenneth Naquin, Jr., who was nine years old at that time, was injured and his mother and natural tutrix has brought this suit for damages against the owner and operator of the automobile, Mrs. Ima Thompson, and her liability insurer, Government Employees Insurance Company. .

N. Texas Street runs north and south and is intersected from the east by Simmons Street, which runs east and west but which does not cross N. Texas. Thus, a T-intersection is formed at that point. Both streets are hard-surfaced, but N. Texas has the right of way. There is a stop sign at the intersection on Simmons Street for traffic entering N. Texas from Simmons. The speed limit on N. Texas Street was and is 35 miles per hour.

Just prior to the accident, the defendant driver, Mrs. Thompson, was travelling north on N. Texas Street in her 1976 Buick Skylark, which was in good condition. She had just left Texas Avenue Baptist Church, where she had attended evening services. That church is approximately three or four blocks south of where the accident happened. She was headed home, following her usual route from church, and she was travelling about 20 miles per hour as she approached Simmons Street. The weather was clear and dry. It was not dark, but because of the time of day, Mrs. Thompson was driving with her lights on.

On the west side of N. Texas Street, almost directly across from Simmons Street, there is a parking lot for the Assembly of God Church. As Mrs. Thompson was traveling in the northbound lane of N. Texas Street, she momentarily looked to the northwest, toward that parking lot, to determine if any vehicles on the lot were moving toward the street. As she neared the intersection, Kenneth suddenly entered N. Texas Street from Simmons Street riding a ten-speed bicycle. Immediately upon seeing the boy on the bicycle, Mrs. Thompson hit her brakes and swerved 'to her left in an attempt to miss him. She was nearly stopped when the bicycle collided with the right front bumper of her vehicle.

The left tires of Mrs. Thompson’s automobile left 32 to 34 feet of skid marks. The car stopped just north of the intersection, with its left front tire slightly over the center line of N. Texas Street. The bicycle came to rest on the east curb of N. Texas Street near the front of the automobile.

The officer who investigated the accident was of the opinion that the point of impact was in the northeast quadrant of the intersection and off to the right. However, there was nothing on the street to mark that spot, so he simply estimated where he thought the collision occurred.

Plaintiff contends that Mrs. Thompson failed to maintain a proper lookout as she approached Simmons Street; that she was looking off toward the parking lot and failed to timely see that which she should have seen, that is, Kenneth entering N. Texas Street on his bicycle. Plaintiff argues that if Mrs. Thompson had maintained a proper lookout, she could and would have seen Kenneth in sufficient time to react and avoid an accident.

On the other hand, Mrs. Thompson maintains that obstructions at the intersection prevented her from seeing Kenneth until about the time he reached the intersection; that he was moving fast and, despite her best efforts to do so, she was unable to avoid the accident.

Kenneth has no explanation for the accident because he does not remember colliding with an automobile. He said he left his father’s home on Patton Street, which is west of N. Texas and several blocks south of where the accident happened, and rode his bicycle to N. Texas Street where he stopped and then crossed to the east side of that street. He stated he then rode north on a sidewalk along the east side of N. Texas.

Kenneth said he believes he was involved in an accident because the brakes went out and he lost control of his bicycle. However, as stated above, he has no recollection of colliding with or being hit by an automobile.

Kenneth testified that two other boys were riding bicycles with him prior to the accident, but, inspite (sic) of the fact that he knew one of them, Cecil Thompson, he has not seen or heard from either of the boys since that time and does not know where they are now.

Mrs. Thompson said that she did not see Kenneth or any other children on bicycles on the sidewalk on the east side of N. Texas Street before the accident. She testified that when she saw the boy, he was entering N. Texas from Simmons Street.

The Court believes that immediately prior to the accident, Kenneth was riding his bicycle west on Simmons Street and that he failed to stop before entering N. Texas Street. The Court does not believe that he was riding on the sidewalk immediately prior to the accident. Neither does the Court believe that he was accompanied by friends when he collided with the automobile. He may have been riding with friends on the sidewalk earlier that day but not at the time of the accident. His memory was affected by the accident and the Court believes he is confused about when that occurred. It seems highly improbable that two friends, old enough to ride bicycles, would have hastily left the scene of the accident, knowing that Kenneth was injured, without saying anything to anyone and without ever contacting Kenneth or other members of his family again.

There are obstructions in the southeast comer of the intersection which interfere with the vision of persons traveling north on N. Texas and west on Simmons. One problem is that the lot, near the corner, is about four feet higher than the surface of the intersecting streets. To make matters worse, there is considerable downward slope in Simmons Street as it approaches N. Texas. Further, along the north side of the lot, parallel with Simmons Street, there are shrubs, plants, trees and a utility pole which obscure vision. Then there are some shrubs, plants and trees on the west and south sides of the corner lot which add to the problem. See photographs 3, 6, 7, 8,17a and b, and 18.

There is no doubt that a motorist going north on N. Texas would have great difficulty seeing a small boy riding a bicycle going west on Simmons Street until the bicycle emerged from behind the large evergreen bush located at the corner of the lot. Lower portions of that evergreen bush extend almost to the eastern edge of the sidewalk and upper portions extend over the sidewalk. The distance from the eastern edge of the sidewalk to the street curb probably is not more than 10 or 11 feet. The large utility pole is between the curb and the sidewalk. Thus, it is apparent that the opportunity for a motorist to see and react to a moving bicycle before it actually reaches N. Texas Street is extremely limited.

The evidence establishes, and plaintiff does not contend otherwise, that Mrs. Thompson was proceeding at a safe speed, considerably below the speed limit, and that she was in full control of her automobile. Plaintiff does contend, however, that Mrs. Thompson was distracted and was not maintaining a proper lookout as she drove along the street. The Court does not agree with that contention. The Court finds from the evidence that Mrs. Thompson was maintaining a careful and proper lookout compatible with the circumstances then and there existing. Because she was proceeding along at a time when she knew churchgoers might be leaving services at the Assembly of God Church on the west side of N. Texas Street, Mrs. Thompson was properly concerned about the possibility of vehicles leaving the church parking lot and pulling into the street in front of her automobile. It was prudent for her to be concerned and attentive. On the other hand, at that particular time, there was absolutely no reason for her to anticipate that a child on a bicycle on Simmons Street would suddenly run in front of her car. Before Kenneth appeared at the intersection there was nothing to indicate that children were playing or riding bicycles in that area.

For Mrs. Thompson to check for vehicles on the church parking lot, it was not necessary for her to turn her head to the left to such extent that she could not see the intersection. All that she had to do was move her eyes from straight ahead to slightly to the left. She admitted that she glanced toward the parking lot but she added that she did not turn her head away from the street. The Court believes that is what happened.

In spite of the opinion of plaintiff’s expert, Dr. McPhate, to the contrary, the Court concludes that Mrs. Thompson was not able to see Kenneth in time to avoid the accident. Although she was keeping a proper lookout, as indicated above, her view of the intersection was obstructed and when Kenneth became visible, he was rapidly moving into her path and she simply did not have sufficient time to stop her automobile or take other evasive actions to prevent a collision.

Dr. McPhate’s opinion that Mrs. Thompson could have seen Kenneth a full second before she saw him and could have prevented the accident if she had applied her brakes one-half second sooner than she did is mechanistic and mathematical and based on numerous assumptions, some of which are not supported by any evidence. One such important assumption is the speed of the bicycle. There is no evidence in the record to support the assumption made by Dr. McPhate. He simply used a speed which he felt would be reasonable. Everything considered, Dr. McPhate relied on too many unsupported assumptions for his mathematically based opinion to be very persuasive. If all of his assumptions are correct, then the ideal driver may have been able to avoid the accident, but it is very doubtful that the average driver, exercising ordinary care, could have done so. Under the facts and circumstances of this case, the Court believes it would be requiring too much of a motorist to hold that Mrs. Thompson failed to maintain a proper lookout and that she should have seen Kenneth in time to have avoided the accident.

While the law imposes a high degree of care upon a motorist operating a vehicle on streets and highways in the vicinity of small children, a driver is not the insurer of the safety of children playing near or along a street or highway. If a motorist is proceeding at a lawful and reasonable rate of speed, maintaining a proper lookout, and otherwise obeying the rules of the road, he will not be held liable for injuries to a child who suddenly darts or dashes into the path of his vehicle from a concealed position in such a way that an accident cannot be avoided. When a driver has employed all reasonable precautions to avoid an accident and a sudden act of a child creates an emergency rendering it impossible for the motorist to avoid striking the child, the accident is considered unavoidable and the motorist is not liable. See Percle v. Employers-Commercial Union Companies, 292 So.2d 314 (La.App. 1 Cir. 1974), where the facts are similar to those in this case. Also see Bruno v. Daniels, 328 So.2d 739 (La.App. 4 Cir. 1976), where the Court said that the duty to exercise greater than ordinary care to avoid injury to a child arises only upon the motorist becoming aware of the child or under circumstances where he should have been aware of the child. In other words, unless the motorist knows or has reason to know that a child is in the vicinity of the street, his duty is to use ordinary care and caution in the operation of his vehicle. In this case, it is clear that Mrs. Thompson did not know and had no reason to know, until it was too late, that Kenneth was riding a bicycle in the vicinity of N. Texas Street.

Kenneth knew the purpose of a stop sign and he should have seen the sign at the intersection. There was nothing to impede his view of it. In any event, whether he saw the sign or not, he did not stop and he should have done so. It was extremely careless of him to ride his bicycle onto N. Texas Street without stopping, as required by the stop sign and common sense, or even looking for approaching northbound vehicles. His actions, even for a nine year old boy, were a gross disregard for his safety in the face of known, perceived and understood danger. Thus, even if Mrs. Thompson was guilty of negligence, Kenneth was guilty of contributory negligence.

This case is unlike Dufrene v. Dixie Auto Ins. Co., 373 So.2d 162 (La.1979). There the court found that a motorist had the last clear chance to avoid a collision with a child on a bicycle who had been observed by the motorist in a position of peril on a highway from a distance of several hundred yards. Here Mrs. Thompson had no last clear chance. By the time she could have first seen Kenneth in a perilous position it was too late for her to avoid the accident.

For the foregoing reasons, the demands of the plaintiff will be rejected at her cost.”

We find it unnecessary to address appellants’ contention that the trial judge committed error in concluding that the minor bicyclist was guilty of contributory negligence. A careful reading of the trial court’s opinion clearly indicates that plaintiffs’ suit was dismissed upon a finding that the defendant driver was free from any negligence. We fully agree with this conclusion. Therefore, the question as to whether or not the minor-bicyclist was or was not contributorily negligent is moot.

For the reasons assigned the judgment appealed from is affirmed at appellants’ cost.

AFFIRMED.


text:
    Sue R. DOSCH, Plaintiff-Appellant, v. UNITED STATES FIDELITY & GUARANTY COMPANY, Defendant-Appellant.
    No. 7859.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 1980.
    James D. Davis and H. Dillon Murchison, Alexandria, for plaintiff-appellant.
    Gist, Methvin, Hughes & Munsterman, David A. Hughes, Alexandria, for defendant-appellant.
    Before CULPEPPER, DOMENGEAUX, and SWIFT, JJ.
   DOMENGEAUX, Judge.

The plaintiff-appellant, Mrs. Sue R. Dosch, a 62 year old widow, instituted this direct action suit against United States Fidelity & Guaranty Company, to recover damages for injuries sustained when she fell while walking a dog belonging to defendant’s insureds. The trial court rendered judgment in favor of the defendant, dismissing the suit. From this judgment, the plaintiff perfected this appeal. We affirm.

In February of 1979, the plaintiff, a resident of the State of Missouri, was visiting the home of the defendant’s insureds, Ruth and Cassie Beaubouef. The Beaubouefs resided on Texas Avenue in Alexandria, Louisiana. On the morning of February 18, 1979, the plaintiff arose prior to the Beau-bouefs, and decided to go outside to get the morning paper. Realizing the Beaubouefs’ pet dog wanted to go out, the plaintiff put the dog on its leash and took it outside. While in the back yard, the dog’s leash became tangled with a support post of the Beaubouefs’ patio. While trying to untangle the leash, the plaintiff slipped and fell, sustaining injury to her right shoulder and right great toe.

The plaintiff contends that the trial court erred in not holding the defendant liable pursuant to La.C.C. Art. 2321 as interpreted by Holland v. Buckley, 305 So.2d 113 (La.1974).

Civil Code Article 2321 holds the owner of an animal answerable for the damage it has caused. This article was interpreted by the Supreme Court in Holland v. Buckley, supra:

“We hold, therefore, that the correct interpretation of Civil Code Article 2321 is as follows: When a domesticated animal harms another, the master of the animal is presumed to be at fault. The fault so provided is in the nature of strict liability, as an exception to or in addition to any ground of recovery on the basis of negligence, Article 2316. The owner may exculpate himself from such presumed fault only by showing that the harm was caused by the fault of the victim, by the fault of a third person for whom he is not responsible, or by a fortuitous event.”

Before the owner of an animal can be held liable under Article 2321, the plaintiff must first prove that the defendant’s animal was a cause-in-fact of the damage. Only after this causal relationship is proved, is the owner of the animal presumed to be at fault.

In the instant case the trial court evidently held that this causal relationship did not exist. The only evidence pertaining to the accident presented at the trial was the deposition of the plaintiff. Nowhere in her deposition does she say what the dog did to cause her fall. A review of her deposition illustrates that the plaintiff was candid and honest in her responses to questions, and her testimony shows that the dog was not the cause of her falling. When asked what caused her fall to start, the plaintiff answered, “I can’t explain it”. The plaintiff also testified that the patio where she was standing when she fell was cold and wet. From the evidence presented, the trial court concluded the plaintiff had not met her burden of proving the dog caused her to fall.

A trial court’s factual determination will not be disturbed unless it is manifestly erroneous. Canter v. Koehring Company, 283 So.2d 716 (La.1973). Manifestly erroneous means clearly wrong. An appellate court must determine, based on a review of the entire record, that the determination of the trial court is not clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Our review of the entire record indicates that the decision of the trial court is not clearly wrong. Actually it is clearly correct.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are taxed to the plaintiff-appellant.

AFFIRMED.


author: DOUCET, Judge.

text:
    John Perry SCOTT and Dale Clement, Plaintiffs-Appellants, v. Timothy Allen LANK, Defendant-Appellee.
    No. 7891.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 1980.
    Patricia A. Thomas, Abbeville, for plaintiffs-appellants.
    Cooper, Sonnier, Ortego, Hebert & Wood-ruff, Calvin E. Woodruff, Abbeville, for defendant-appellee.
    Before GUIDRY, STOKER and DOU-CET, JJ.
   DOUCET, Judge.

John Perry Scott and his wife, Dale Clement, sued Timothy Allen Lank to recover damages for destruction of property, assault and mental anguish. The trial court rendered a default judgment in the Plaintiffs’ favor for $8,986.75. Included in this amount was $1,000 awarded to each of the Scotts for mental anguish suffered. Plaintiffs appealed.

The only issue is the quantum of the compensatory damages awarded for mental anguish.

The Scotts leased a house from Mr. Lank. They subsequently purchased a lot adjacent to the rent house from Mr. Lank and began building their own home. On August 15, 1979, Mr. Lank, highly upset, called the Scotts and told them they couldn’t have anything more to do with the rent house. The Scotts objected since the term of the lease had not expired.

Uncertain of what Mr. Lank intended, Mr. Scott and his brother began removing the household goods the Scotts had left in the rent house while their new home was being constructed. Shortly after they began, Mr. Lank drove up in his truck and hit the driver’s side of Mr. Scott’s pickup truck while Mr. Scott was sitting in it. Mr. Lank then proceeded to pour a flammable liquid on the porch and interior of the rent house setting it ablaze. During this time, Mr. Scott and his brother went to the Scotts’ new home to call the police. The Scotts watched the rent house and its contents burn to the ground from their new home. As he left, Mr. Lank ran over the Scott’s mailbox at their new home destroying it.

Both of the Scotts testified to being extremely upset. Mrs. Scott testified that she is fearful Mr. Lank will attempt some further reprisal. This fear is intensified by the fact the Scotts live in the country without any neighbors nearby.

The Scotts argue the behavior of Mr. Lank was so outrageous that an award to each of $1,000 for mental anguish cannot adequately compensate them for their injuries.

It is well settled that before a Court of Appeal can disturb an award made by a trial court, the record must clearly show the trial court abused its discretion in making the award. Reck v. Stevens, 373 So.2d 498 (La.1979). There is little evidence in the record showing the severity of the mental anguish suffered by the. Scotts. This court does not doubt the Scotts suffered mental anguish from the actions of Mr. Lank. However, the record does not reveal the trial court abused its much discretion in its award of damages for mental anguish.

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

AFFIRMED.


text:
    Gordon Earl G. DURR, Plaintiff-Appellant, v. NATCHITOCHES MUNICIPAL FIRE AND POLICE CIVIL SERVICE BOARD, Defendant-Appellee.
    No. 7897.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 1980.

      Charles W. Seaman, Natchitoches, for plaintiff-appellant.
    Watson, Murchison, Crews, Arthur & Corkern by Ronald E. Corkern, Natchitoch-es, for defendant-appellee.
    Before GUIDRY, STOKER and DOU-CET, JJ.
   GUIDRY, Judge.

Plaintiff-appellant, Gordon E. Durr, perfected this appeal from the judgment of the trial court affirming the findings of the Natchitoches Municipal Fire and Police Civil Service Board that Patrolman Durr’s dismissal from the City of Natchitoches Police Department was made in good faith for cause. The appellant, Durr, seeks reversal of this decision and retroactive reinstatement with pay to his former position with the Police Department. We affirm.

The findings of fact as found by the Board and accepted by the trial court are as follows:

“On October 31, 1978, at approximately 11:00 o’clock p. m. Officer Durr encountered Anthony Chester in a private parking lot in Natchitoches, Louisiana. Officer Durr was on duty and in uniform. Officer Durr on seeing Chester removed his gun and badge and then attacked Chester. Durr also threatened Chester with a tire tool. The intervention by Officer Lodrigue, a fellow officer of Durr prevented further action by Durr.”

Appellant does not seriously contest these findings of fact but contends that the discipline imposed was too harsh.

The trial court’s and this court’s scope of review is limited under LSA-R.S. 33:2501(3):

“The board shall, within ten days after the filing of the notice of appeal, make, certify, and file the complete transcript with the designated court, and that court shall thereupon proceed to hear and determine the appeal in a summary manner. This hearing: shall be confined to the determination of whether the decision made hv the board was made in erood faith for cause under the provisions of this Part. No appeal to the court shall be taken except upon these grounds.” (Emphasis added)

This court finds nothing in the record indicating the trial court erred in affirming the decision of the Board. The facts brought out at the hearing clearly show Mr. Durr’s actions violated LSA-R.S. 33:2500 providing grounds for his dismissal. No evidence has been brought forward showing the Board did not reach its decision in good faith. City of Kenner v. Wool, 320 So.2d 245 (La.App. 4th Cir. 1975).

The appellant contends the Board’s decision is invalid because a hearing and investigation was not granted within thirty days after receipt of his written request as required by LSA-R.S. 33:2501(1).

Correspondence between the parties shows the hearing was set by the Board for November 29, 1978. This date was within thirty days of Mr. Durr’s request. A postponement of the hearing date to December 6, 1978, was made at Mr. Durr’s request. The hearing on December 6,1978, could not be held due to the illness of a witness so it was reset for December 20,1978. The hearing was again delayed when the Board lacked a quorum on December 20, 1978. In a letter dated January 23, 1979, Mr. Durr’s attorney and the chairman of the Board agreed to hold the hearing on January 26, 1979. Mr. Durr reserved the right to appeal from the failure of the Board to comply with the thirty day requirement of LSA-R.S. 33:2501(1). The hearing was held on January 26, 1979, when Mr. Durr and the City agreed to waive their right to have a quorum of the Board members present.

Although the record does reveal the Board failed to comply with the thirty day requirement of LSA-R.S. 33:2501(1), this circumstance does not warrant a reversal of the Board’s decision which we find to have been made in good faith and for cause. There is absolutely nothing in the record to indicate that appellant was prejudiced by the delay in hearing.

Appellant finally contends the Board’s decision was invalid because one of the Board’s members was not qualified. The record reveals no evidence to support this allegation.

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

AFFIRMED.