author: BOUTALL, Judge.

text:
    Beryl Corceller BABIN v. Gerald R. BABIN.
    No. 5-120.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 7, 1982.
    On Rehearing Sept. 13, 1982.
    Rehearing Denied Nov. 17, 1982.

      Robert C. Lowe of Sessions, Fishman, Ro-senson, Boisfontaine & Nathan, New Orleans, for Beryl Corceller Babin, plaintiff-ap-pellee.
    Gibson Tucker, Jr. of Tucker & Schone-kas, New Orleans, and Leo Boothe of Smith, Taliafero, Seibert, Boothe & Purvis, Jonesville, for Gerald R. Babin, defendant-appellant.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   BOUTALL, Judge.

This appeal is concerned with a procedural morass in which factual justice may be obscured by the very procedures adopted to insure it. Three judgments have been appealed from and the issues before us are 1) which appeals may be considered and 2) which judgments are correct.

Beryl Corceller Babin and. her husband Gerald R. Babin separated, with Beryl becoming resident in Jefferson Parish and Gerald residing in Catahoula Parish. After prior litigation was voluntarily dismissed, on October 23, 1979, Beryl Babin filed a petition for separation in the Twenty Fourth Judicial District Court for the Parish of Jefferson on the grounds of cruel treatment. After some preliminary matters were disposed of, Beryl received a judgment for alimony in the amount of $700.00 per month and, after the birth of her child, an additional sum of $100.00 per month for the support of the child over which she was awarded custody. The contest between the parties was both bitter and active, but the separation suit was set for trial on the merits on March 20,1980, at which time some contempt rules were also set. On that date the court took up several of the rules and continued the merits to May 1,1980, to be tried along with the issue of child support.

The trial date of May 1, 1980, is important because it was on that day that a conference was held between the judge and the parties and the events of that day form part of the issues before us. The case was not heard that day but was instead continued to September 8, 1980, and in turn was not tried on that date either but instead continued to December 3, 1980. In the meantime, on August 13, 1980, Gerald Ba-bin filed suit for divorce on the grounds of one year separation in the Seventh Judicial District Court for Catahoula Parish to which Beryl responded first with exceptions and then with an answer to the merits. Presumably it became apparent that the merits of the Catahoula Parish case would come to trial towards the end of October, prior to the December trial date in the Jefferson case. Beryl moved the Jefferson court on September 25 to advance the December trial date up to October 8. At this trial setting there took place most of the events which are subject to these appeals.

On October 8, 1980, at 10:48 A.M., just prior to trial, Beryl filed “INSTANTA AMENDMENT FOR FINAL DIVORCE” alleging that the parties have lived separate and apart for a period of over one year without reconciliation and prayed for a divorce with the reservation of all rights regarding alimony, child support, custody, contempt and fault and all other related matters for trial at a future date. Gerald Babin objected to the filing of the document and to being forced to trial instanter and filed a number of exceptions, excepting to the sufficiency of citation, sufficiency of service of process, lis pendens, venue and lack of notice. The court overruled all of the exceptions and objections based upon an agreement which the court felt was arrived at by conference between the court and the parties on the May 1 hearing date, and proceeded to try the merits of the divorce petition. Judgment was rendered forthwith decreeing a divorce a vinculo matrimo-nii between the parties, maintaining all previous orders of child support, alimony, etc., in full force and effect and continued all of the rules presently pending, as well as the issue of fault to the hearing date that had been previously set, December 3, 1980. This judgment was signed on the ninth day of October, 1980, and is the subject of the first appeal taken.

That appeal was sought to be dismissed by Beryl on the grounds that the time for appealing had elapsed but that rule was apparently dismissed. Instead on January 27, 1981, on the motion of the Clerk of Court alleging that the appellant was notified of the costs of the appeal and granted twenty days to pay such costs but that the costs had not been paid, the judge issued an order dismissing the appeal on that date. No hearing was held on that motion, and the order of dismissal of the first appeal brought forth the second appeal on the correctness of the dismissal.

The last matter of appeal is a judgment dated March 5, 1981, after hearings in February in which the court decreed that Gerald Babin was at fault in these proceedings and that Beryl Babin was free of fault. Accordingly, the judge fixed alimony and child support, rendered a judgment for accrued alimony pendente lite and attorney’s fees and found Gerald Babin in contempt of court imposing a fine of $500.00. This is the third judgment on appeal.

It is apparent that the finding of fault, etc., in the third appeal is dependent upon the validity of the October 9 judgment of divorce, and in turn we may only inquire into the validity of that judgment if the appeal therefrom is still in existence. Accordingly, we first consider whether that appeal was properly dismissed.

The judgment of divorce was signed on the 9th day of October, 1980, and on the 14th day of November Gerald Babin filed a motion for appeal which was signed on the 18th day of November by the trial judge. By reference to Code of Civil Procedure Articles 3942 and 2087(1)(3), the appeal was timely taken, and was returnable to this court on January 18, 1981. On January 27, 1981, the Clerk of the Twenty-Fourth Judicial District Court filed a motion to dismiss the appeal alleging that appellant’s attorney was notified of the cost of the appeal on December 19, 1980, and given twenty (20) days to pay ending on January 8,1981, but has not paid. No hearing was requested nor was one held. The court simply signed the order filed on that date ordering the appeal dismissed. Appellant in turn has appealed that order which we now consider.

The authority for dismissal of appeal for nonpayment of costs is Code of Civil Procedure Article 2126. In pertinent part, we quote:

Article 2126. “ * * * If the appellant fails to pay the estimated costs, or the difference between the estimated costs and the actual costs, within the time specified, the trial judge, upon motion by the clerk or by any party, and after hearing, may.
(1) Extend the time within which the costs may be paid, not to exceed thirty days with or without penalty upon appellant or his attorney; or
(2) Impose a fine, not to exceed one hundred dollars, upon the appellant, or his attorney, or both; or
(3) Dismiss the appeal.
If the appellant pays the costs required by this Article, the appeal may not be dismissed because of the passage of the return day without an extension being obtained or because of an untimely lodging of the record on appeal.”

Article 2126 clearly requires that the judge hold a hearing on the motion to dismiss. The words “ * * * upon motion * * * and after hearing * * * ” show that this is not an ex parte order or motion but that both motion and hearing are required. Article 2126 is consistent with the definitions of ex parte motions and contradictory motions set out in C.C.P. Article 963:

Article 963. “If the order applied for by written motion is one to which mover is clearly entitled without supportive proof, the court may grant the order ex parte and without hearing the adverse party.
If the order applied for by written motion is one to which the mover is not clearly entitled, or which requires supporting proof, the motion shall be served on and tried contradictorily with the adverse party.”

Because the order was signed ex parte without a hearing it must be vacated and set aside. There is no need to remand for a hearing, because the record has now been lodged in this court and the costs have been paid. The appeal from the divorce judgment of October 9, 1980, is still viable and before this court for consideration.

The divorce judgment of October 9 was based upon the hearing held on October 8, 1980. Beryl’s separation suit was set on the merits for October 8, as well as several pending rules. At the time of trial, counsel for Gerald was confronted with the filing of a document entitled “INST ANT A AMENDMENT FOR FINAL DIVORCE,” filed that morning without any order of the court attached permitting its filing. That document, without referring to the petition for separation, simply alleged that the parties have lived separate and apart for a period of over one year without reconciliation and that Beryl desires a judgment of divorce, reserving the rights of the parties as to ancillary matters for trial at a future date. Counsel for Gerald objected to any consideration of that pleading without prior notification to him, and leveled a number of exceptions against it. After argument and discussion before the court, the judge permitted the pleading to be filed, overruled all of the exceptions, and after trial, rendered judgment granting Beryl a divorce and reserving the ancillary matters and the question of fault to a hearing to be held on December 3, 1980.

The basis for the judge’s actions was an agreement between the parties and the judge as a result of a conference amongst them on a prior trial date, May 1, 1980. The trial judge stated (after discussion in open court in which Mr. Cabral argued there was an agreement, and Mr. Boothe argued there was no agreement) the following:

“This record may be silent as to any agreements because unfortunately we don’t always remember when agreements are made in those chambers to come out of here and put the exact agreement on the record. Sometimes we forget to do that. But I’m stating this for the purposes of the higher Court and this record will be clear today with my comments that I remember an agreement being made that this matter would be concluded with the parties agreeing on the basis of a one year separate and apart divorce. And then later the issues would be litigated as to fault as to any change in the status of the parties regarding the support and visitation and all related matters. But I do remember the agreement being made in chambers. And as I say I believe Mr. Cabral and this Court have been misled when after such an agreement is made, a petition for divorce is filed in another parish. Legally, legally and technically you may be correct in filing it in another parish. But it seems to me, to put it plainly in the venacular, I’ve been had and it seems to me Mr. Cabral here has been had, if we can’t enforce agreements between attorneys, if we have to always remember to come out here and put them on record. As I said, we should have done that that day.”

We have no hesitancy in agreeing with the recollection of the trial judge that there was an agreement between the parties that future proceedings in this case would take place upon the basis of a divorce after one year separation, but nowhere in the record is there spelled out any agreements relating to the times and procedures that would be utilized in carrying out that end result. The plight that the trial court found itself in is easily recognized as one which courts are faced with from time to time. Some courts have dealt with such matters in their court rules and presumably the Twenty-Fourth Judicial District Court has also done so, but those rules were not put in evidence or pleaded to us. In any event, despite our sympathy with a judge who is attempting to render justice as he sees it, we conclude that the provisions of the Code of Civil Procedure require us to hold him in error. We refer to the provisions of C.C.P. Article 1551:

Article 1551. “In a civil action in a district court the court may in its discretion direct the attorneys for the parties to appear before it for a conference to consider:
(1) The simplification of the issues;
(2) The necessity or desirability of amendments to the pleadings;
(3) What material facts and issues exist without substantial controversy, and what material facts and issues are actually and in good faith controverted;
(4) The possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof;
(5) The limitation of the number of expert witnesses; or
(6) Such other matters as may aid in the disposition of the action.
The court shall render an order which recites the action taken at the conference, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matters considered, and which limits the issues for trial to those not disposed of by admissions or agreements of counsel. Such order controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice.” (Emphasis ours)

The discussion between the attorneys and the judge took place in chambers and there was a consideration of the matters enumerated above. We call attention to the last paragraph of the Article which requires the rendition of an order reciting the action taken and specifically mentions the very procedures considered here. We cannot ignore the plain wording of the Codal Article, and we hold that the trial judge could not disregard the pleadings and exceptions raised by the defendant and proceed to trial without any delay. See for example Walker v. Walker, 395 So.2d 433 (La.App. 3rd Cir.1981). We have considered the possibility of remand of this matter to permit the trial court to render an appropriate order, if the circumstances warrant it, that may cover the entire agreement between the parties. However there are other facts before us which we feel are dispositive of the issue and will hopefully settle some of the bitter litigation between these parties and aid a speedy solution to their financial dilemma.

The pleading filed on October 8 is plainly and simply a divorce action filed on the basis of living separate and apart for more than one year. R.S. 9:301. The defendant Gerald had previously filed a petition for divorce on those same grounds in the Seventh Judicial District Court for the Parish of Catahoula on August 13, 1980. Beryl had responded to that suit by exceptions and on October 1, 1980, by answer. Regardless of whether we would declare the divorce pleading to be a supplemental petition or a separate suit, its effect is only as of the day that it was filed, October 8, as it is an entirely different cause of action from the original petition of separation on grounds of cruel treatment. Accordingly, it is subject to the exception of lis pendens defined in C.C.P. Article 531. State ex rel. Marston v. Marston, 223 La. 1046, 67 So.2d 587 (La.1953). There is nothing in this record to show that Gerald agreed not to file a divorce suit in Catahoula directly pleading such an agreement, or even nullity of judgment after those proceedings were terminated. We conclude that the trial judge should have maintained the exception of lis pendens and not proceeded to judgment on the divorce.

Additionally, there are other reasons why a judgment of divorce would be ineffective under the procedural situation as it now appears. Gerald Babin took an appeal from the October 8 judgment of divorce rendered against him. Correspondingly, Beryl Babin took an appeal from the October 27 judgment of divorce rendered against her in Catahoula Parish. Code of Civil Procedure Article 3942 provides that an appeal shall suspend the execution of the judgment insofar as the judgment relates to a divorce. While those appeals were pending, neither judgment was yet final and did not become effective or executory. Morgan v. Morgan, 410 So.2d 312 (La.App. 4th Cir.1982); Eiermann v. Modenbach, 198 La. 1062, 5 So.2d 335 (La.1941); Smith v. Smith, 378 So.2d 509 (La.App. 4th Cir.1979). Documents filed with us show that the appeal of the Catahoula judgment to the Court of Appeal, Third Circuit, was dismissed on March 19, 1981. That judgment is now definitive and executory. See C.C.P. Article 2166. The Jefferson judgment was still not execu-tory and by this decision has been vacated and set aside. Accordingly the matter of the divorce between the parties is res adju-dicata.

This brings us to the last issue on this appeal and that is the judgment rendered on March 5, 1981, concerning fault and ancillary matters.

The question of fault is of course directly involved with the validity of the judgment of divorce on October 9. Because that judgment is set aside, the judgment of fault must be set aside.

The other matters adjudicated therein are subject to the principles announced in the Marston case, supra, and extended in Thornton v. Floyd, 229 La. 237, 85 So.2d 499 (La.1956). When two courts have concurrent jurisdiction over the same subject matter, the court which first obtains jurisdiction and possession of the res retains it to the end of the controversy to the exclusion of all others. In this instance, the Jefferson Parish Court by virtue of the separation suit had jurisdiction over the matters of alimony, child custody and support. The judgment of divorce on October 8 simply carried forward all of the prior judgments that were in effect as a result of the separation proceedings. These were finally heard on February 5 and February 24,1981, resulting in the March 5 judgment. Accordingly, the Jefferson court still retained jurisdiction, because the Catahoula divorce was on appeal, over those ancillary proceedings. See Smith v. Smith, supra, and the discussion therein. Insofar as the Jefferson Parish judgment of March 5 pronounced upon those matters cognizable under its separation proceeding, it retained jurisdiction. However as to those matters which are properly considered on a judgment of divorce, it has lost jurisdiction.

To be specific we take the portions of the decree in turn. The alimony and child support previously fixed was amended to provide an amount after March 1, 1981. The amendment can only be effective until thirty (30) days from March 19, 1981, at which time the dismissal of the Catahoula appeal became executory and definitive.

The judgment of accumulation of past due alimony pendente lite and child support plus attorney’s fees is affirmed.

That portion of the judgment finding Gerald Babin in contempt and fining him is affirmed.

That portion of the decree granting reasonable visitation rights are annulled and set aside, being subject to the Catahoula divorce decree.

Accordingly, we annul and set aside the order of dismissal of appeal signed January 27,1981; we annul and set aside the divorce judgment of October 9, 1980, and render judgment in favor of Gerald R. Babin and against Beryl Corceller Babin maintaining the exception of lis pendens dismissing her petition for divorce; in the judgment of March 5, 1981, we annul and set aside the finding concerning fault, we amend the award for alimony and child support to terminate as expressed above, the visitation decree is similarly terminated and the balance of that judgment is affirmed. The costs of this appeal shall be borne by Gerald R. Babin.

ANNULLED AND SET ASIDE IN PART, AMENDED IN PART, AFFIRMED IN PART.

ON REHEARING:

On the application of Beryl Corceller Ba-bin, plaintiff-appellee, we granted a limited rehearing on the issues of child custody and support and visitation rights. After reconsideration of those issues, we conclude that our original judgment was in error in holding that the judgment of divorce in Cata-houla Parish terminated the Jefferson Parish separation suit and the decrees of that court pendente lite concerning the child, which we stated were ancillary proceedings to that separation suit.

In reaching the result that we did, we relied upon the principles enounced in the case of Thornton v. Floyd, 229 La. 237, 85 So.2d 499 (1956). On application for rehearing, it was called to our attention that the Supreme Court of Louisiana in the case of Lewis v. Lewis, 404 So.2d 1230 (La.1981) has overruled Thornton v. Floyd stating as follows at p. 1234:

“Our previous opinions holding that support awarded to minor children ceases upon the rendition of a judgment of divorce were in error and are overruled to the extent they are inconsistent herewith. White v. Morris, [236 La. 767, 109 So.2d 87 (1959)], supra; Thornton v. Floyd, 229 La. 237, 85 So.2d 499 (1956); Bowsky v. Silverman, [184 La. 977, 168 So. 121 (1936)], supra.”

The court in Lewis established the principle that a judgment awarding support for a child has a legally independent basis and is not a mere incident of the separation decree which terminates at the dissolution of the marriage. We are thus bound in this case to decree that the Jefferson Parish court retains jurisdiction of the issue of child support beyond the effective date of the Catahoula Parish divorce decree and amend our previous decree accordingly. Similarly, it must follow that other issues which relate to the child, i.e., child custody and visitation rights, must also remain with the Jefferson Parish court. See for example Howard v. Howard, 409 So.2d 279 (La. App. 4th Cir.1981) relative to custody.

For these reasons our previous decree to terminate child support effective 30 days from March 19, 1981, and similarly terminating the visitation decree is in error and we annul those portions of our decree and now affirm the judgment of the District Court relative to those matters. In all other respects our decree is reinstated. As thus amended, our decree is now as follows:

We annul and set aside the order of dismissal of appeal signed January 27, 1981; we annul and set aside the divorce judgment of October 9, 1980, and render judgment in favor of Gerald R. Babin and against Beryl Corceller Babin maintaining the exception of lis pendens dismissing her petition for divorce; in the judgment of March 5, 1981, we annul and set aside the finding concerning fault, we amend the award for alimony for Beryl Corceller Ba-bin to terminate 30 days from March 19, 1981, we affirm the award for child support and visitation, and the balance of that judgment is affirmed. The cost of this appeal shall be borne by Gerald R. Babin.

ANNULLED AND SET ASIDE IN PART, AMENDED IN PART, AFFIRMED IN PART.


source: Caselaw Access Project

author: LOBRANO, Judge. REDMANN, Chief Judge, SCHOTT, Judge,

license: Public Domain

text:
    Irma ADAMS v. Jody CAMPBELL.
    No. 12953.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 30, 1982.

      Orlando G. Bendana, Bendana & Carlton, New Orleans, for plaintiff-appellee.
    P. Albert Bienvenu, Jr., Bienvenu, Foster, Ryan & O’Bannon, New Orleans, for defendant-appellant.
    Before REDMANN, SCHOTT, AUGUSTINE, BYRNES and LOBRANO, JJ.
   LOBRANO, Judge.

This lawsuit is the result of a collision that occurred at the intersection of Baccich Street and Robert E. Lee Boulevard in the city of New Orleans on December 4, 1978. At approximately 9:00 a.m. on that morning, Irma Adams was operating a vehicle owned by Ella Brumfield in a southerly direction on Baccich Street, while Jody Campbell, defendant-appellant, was driving her automobile in an easterly direction on Robert E. Lee Boulevard. Robert E. Lee Boulevard is a two-way street with only two lanes separated by a neutral ground. It “dead-ends” at its intersection with Bac-cich Street, and thus forms a “T” intersection at that point. There is a stop sign at the corner of Baccich Street controlling traffic entering its intersection with Robert E. Lee Boulevard. Traffic travelling in an easterly direction on Robert E. Lee Boulevard must do one of three things at the intersection with Baccich; either turn right or left on Baccich, or make a U-turn and proceed in the opposite direction on Robert E. Lee.

At the intersection appellant, Campbell, proceeded to make a U-turn, which really consisted of two left turns, first onto Bac-cich Street, and second onto Robert E. Lee in the opposite direction. As she was completing this maneuver, she collided with ap-pellee, who had proceeded past the stop sign into the “T” intersection on Baccich. Adams filed these proceedings seeking recovery for both personal injuries and property damages as a result of the collision. The trial court awarded judgment in favor of appellee in the total amount of $3,755.65, and appellant has perfected this appeal.

Although appellant raises thirteen specifications of error in her brief, the issues can be categorized into three areas. First is the factual question of whether appellant, ap-pellee, or both were negligent. Second is the question of quantum for the personal injuries received. And third is the legal question of whether appellee is the proper party plaintiff to bring this action for the damages to the vehicle since she was not its owner.

Negligence of the Parties

As the trial court so aptly stated: “This case is purely and simply a question of who was and was not negligent in this accident ... a question of fact.” We are well aware of our obligations in reviewing questions of fact, and must necessarily be concerned with the trial court’s conclusions in that regard. An appellate court must not substitute its own conclusions for that of the trial judge where that tribunal’s decision is sufficiently supported by the evidence.

Appellant contends that the appellee was the sole and proximate cause of the subject accident or at least was guilty of contributory negligence. She argues that the essential basis for this contention rests on three premises brought out during the testimony. First, appellee testified that even though she stopped for the stop sign, she still pulled out into the intersection when she saw appellant stop. Secondly, appellant testified that she was making an uninterrupted U-turn, and in order to do so she went directly around the neutral ground. She claims since Baccich Street has only one lane, that was the only way to execute the turn. Thirdly, the testimony of the investigating officer, as well as his diagram of the vehicles’ position after the accident, clearly show that appellee’s vehicle was turning onto Robert E. Lee rather than going straight on Baccich. We disagree with appellant’s analysis of the evidence. It is necessary that the totality of the witnesses testimony be considered rather than isolated statements. Appellee testified that she pulled into the intersection after coming to a complete stop and only after observing appellant come to a complete stop. Her testimony also indicates that she was careful in her observation of appellant’s actions because she saw her stop twice before she moved from the stop sign into the intersection. She was also observant of a vehicle which apparently was following appellant’s car and which had come to a stop on Baccich Street to let children out for school. Also appellee’s testimony is that she was proceeding straight on Baccich Street and the impact of the collision forced her car to the right thus giving the appearance that she was turning to the right. Even though there is conflicting testimony between the parties as to whether or not appellee stopped for the stop sign, the trial judge believed appellee. We see no manifest error in this conclusion. However, we are well aware that a motorist confronted with a stop sign at an intersection is not only required to come to a complete stop, but must also ascertain that it is safe to proceed. To stop and then proceed in the immediate path of oncoming vehicles constitutes negligence. Audubon Insurance Com pany v. Knoten, 325 So.2d 624 (La.App. 4th Cir.1976); Roy v. Schneider, 367 So.2d 1314 (La.App. 4th Cir.1979).

We agree with the trial court’s conclusion that appellee did what the law required of her. That is, she stopped at the stop sign, observed the appellant’s vehicle stop once, then stop again and then proceeded into the intersection under the assumption appellant would not proceed further. Appellant on the other hand, testified she expected the appellee to pass to her right, thus requiring appellee to travel on the left side of Baccich St. As stated by the trial court, “This, of course would be contrary to the ordinary and prudent rules of the road.” The testimony and diagram of the investigating officer further substantiates the fact that appellant was in the “wrong lane” upon executing the U-turn. It is abundantly clear to this Court that appellant’s U-turn was, in fact, a series of two left turns. Upon completion of the first left turn unto Baccich Street she should have stayed in the right lane, which would have been proper. Her argument that Baccich had only one lane of travel is without merit, as Baccich is a two way street sufficiently wide enough for two vehicles to pass. The second left turn would have been from Baccich unto Robert E. Lee Blvd. Again appellant would have to be cognizant of the cars travelling in the opposite direction on Baccich before executing her second left turn.

It is well settled that the burden rests heavily on a left turning motorist to explain how the accident occurred and to show that she was free from negligence. Pierre v. Times-Picayune Publishing Company, 363 So.2d 1301 (La.App. 4th Cir.1978). Appellee had the right to assume that appellant would proceed in the correct lane of traffic. It is apparent from the totality of the testimony that there is ample evidence to support the trial court’s conclusions that appellant was negligent.

Damages

Included as an item of damages in the trial court’s judgment is the cost of repairing the vehicle driven by appellee. See footnote 1 supra. The evidence is unquestionable that appellee was not the owner of the vehicle, as it was owned by her aunt. This award has been challenged by appellant in the form of an exception of no right of action which was filed for the first time in this court. Code of Civil Procedure Article 2163 provides as follows:

“The appellate court may consider the preemptory exception filed for the first time in that court, if pleaded prior to a submission of the case for a decision, and if proof of the ground of the exception appears of record.
* * * *

Appellant objected to the testimony of the vehicle’s owner as to the amount of the damages sustained. She also objected to appellee testifying that she agreed to pay the owner for the damages. Appellant also opposed appellee’s motion to amend the pleadings to conform to the evidence adduced at trial. The basis for all these objections was the fact that appellee was not the owner of the damaged vehicle, and therefore could not sue to recover for same. We hold that appellant, by those actions, has in effect pleaded “no right of action” prior to submission for judgment, and therefore our consideration of same is proper.

The merits of this exception must necessarily depend on the Louisiana law of sub-rogation, for without being subrogated to the owner’s right, no action can be brought unless the plaintiff has a real and actual interest in the claim he asserts. La.C.C.P. Art. 681.

Our Civil Code provides that “Subro-gation to the right of a creditor in favor of a third person who pays him, is either conventional or legal.” La.C.C. Art. 2159. We are convinced that no formal subrogation instrument was executed by the owner of the vehicle in favor of appellant, nor was there any payment made to the owner. Therefore, there can be no conventional subrogation, and we must determine if there is a legal subrogation. Civil Code Article 2161 defines legal subrogation as follows:

“Subrogation takes place of right:
1. For the benefit of him who, being himself a creditor, pays another creditor, whose claim is preferable to his by reason of his privileges or mortgages.
2. For the benefit of the purchaser of any immovable property, who employs the price of his purchase in paying the creditors, to whom this property was mortgaged.
3. For the benefit of him who, being bound with others, or for others, the payment of the debt, had an interest in discharging it.
4. For the benefit of the beneficiary heir, who has paid with his own funds the debts of the succession.” La.C.C. Art. 2161.

It is clear from the above cited article that in order for a legal subrogation to exist there must be a payment made by the party who is to be subrogated to the rights of another. The appellee admits having paid no one for the property damage, and therefore a legal subrogation cannot exist. We are, therefore, compelled to uphold the exception of no right of action and reverse the award of damages for the automobile. Ap-pellee argues that she is indebted to the owner for the damages because she borrowed her vehicle. This is not true, for she may not be legally obligated to pay same. A party situated in appellee’s position can readily protect herself by obtaining from the owner a conventional subrogation of the latter’s rights, and thus the tort feasor can be made to respond for the direct and foreseeable consequences of his act in a single suit. See Forcum-James Co. v. Duke Transportation Co., 231 La. 953, 93 So.2d 228 (1957); See also, Lambert v. Donald G. Lambert Const. Co., 370 So.2d 1254 (La.1979).

Appellant raises the issue that the transcript is incomplete because the trial judge refused to allow the investigating officer to answer certain questions under a proffer. As a result of the trial judge’s actions, appellant sought writs of certiorari and mandamus to this court. Those writs were granted on July 28, 1981 and the trial judge and court reporter were ordered to include all proffered testimony and evidence in the transcript of this matter. Since the writ was issued after the trial, it would have been necessary to reopen the case and place the police officer on the witness stand in order to obtain his answers to the proffered questions. We have already agreed with appellant’s contention in this regard by granting his writ application, however we hold that the exclusion of the proffered evidence is harmless error. The testimony sought from the police officer concerned the possibility of an obstruction existing on the neutral ground which may have impaired either driver’s vision. However, both drivers testified they saw each other with no visual impairments, therefore the officer’s testimony in that regard would have been of little probative value. Appellant further complains that the trial court erroneously excluded portions of plaintiff’s deposition from the transcript. We have plaintiff’s entire deposition before us as a proffer, and therefore appellant’s complaint is without merit. “When a review of the record indicates that the trial court judgment is correct and that justice has been done, the judgment will not be overturned because of error which did not affect the merits.” Carlton v. Great American Insurance Co., 340 So.2d 678 (La.App. 4th Cir. 1976).

For the above and foregoing reasons the judgment is affirmed in part and reversed in part. Each party shall pay his own costs of this appeal. Costs of the trial court are assessed against appellant.

REDMANN and SCHOTT, JJ., dissent in part with reasons.

REDMANN, Chief Judge,

dissenting in part.

The award to plaintiff of the damages to her aunt’s automobile should be affirmed. Both plaintiff and her aunt testified that it was agreed by them that plaintiff would reimburse her aunt. The aunt’s testifying at the trial in support of plaintiff’s demand for those damages and forbearing to bring suit in her own name for those damages necessarily implies either (1) that their own pre-accident understanding was something more than simple deposit of the car, and created something on the order of a no-exceptions obligation to return the car in good condition, in which case plaintiff is subro-gated by La.C.C. 2161(3); or (2) that plaintiff herself contracted to pay those damages to the aunt in return for the aunt’s inescapably implied assignment to her, although unwritten (it need not be in writing), of the aunt’s right to recover from defendant; or (3) that plaintiff was her aunt’s authorized attorney-in-fact to sue for those damages. Under any of those theories plaintiff is a party in interest and therefore entitled to recover. It is simply undeniable, in this case, on this record, that the car owner, present in court in person and testifying in support of plaintiff’s presentation of the claim for damages, expected plaintiff to recover those damages from defendant (and to reimburse the owner).

The circumstances of the present case are unlike those of earlier cases denying recovery to a depositary with no obligation to repair and no subrogation. But even in cases of the theoretically unobliged and un-subrogated depositary, a garageman has been allowed to recover; Douglas v. Haro, 214 La. 1099, 39 So.2d 744 (1949); Standard Motor Car Co. v. State Farm Mut. A. Ins. Co., 97 So.2d 435 (La.App. 1 Cir.1957). The garagemen in those cases had in fact already repaired the damage, while our plaintiff had not. But our plaintiff very evidently had some agreement, supported by lawful cause within C.C. 1893, to reimburse the owner for the damages. She is therefore a proper party in interest and ought to recover.

SCHOTT, Judge,

dissenting in part:

Although the general rule is that only the owner of the thing damaged has a right of action for the damages, Lambert v. Donald G. Lambert Const. Co., 370 So.2d 1254 (La.1979) and Forcum-James Co. v. Duke Transportation Co., 231 La. 953, 93 So.2d 228 (1957), there is an exception in the case of a depositary, Douglas v. Haro, 214 La. 1099, 39 So.2d 744 (1949) and Standard Motor Car Co. v. State Farm Mut. A. Ins. Co., 97 So.2d 435 (La.App. 1st Cir.1957). This is so for the very practical reason of preventing an injustice to the depositary. If a thing is damaged while in his care there is a presumption of fault on his part under C.C. Art. 2945 and the depositor has ten years to bring an action against him under Art. 3544. On the other hand, the depositary has only one year to bring an action against the tort feasor who damaged the thing deposited. Art. 3536. If the depositary is prevented from claiming the damage against the tort feasor he is vulnerable to a suit based on presumed liability to the depositor long after his action against the tort feasor has prescribed and his position may be seriously weakened with the departure of witnesses and fading memories.

I would apply the exception to the instant case of a borrower whose position under C.C. Arts. 2898 and 2902 is much the same as a depositary and affirm the trial court’s award to plaintiff of the damage to the automobile owned by her aunt.

      . Ella Brumfield, the owner of the vehicle was not a party plaintiff to this suit.

      . The award of the trial court is itemized as follows:
      Loss wages $189.00
      Damage to Automobile 991.65
      Mental anguish, pain and suffering and disability 2000.00
      Dr. Henry E. Braden 575.00

      . At the trial, the judge refused to let him answer.


author: SAMUEL, Judge.

text:
    Joseph J. CAMARATA, Individually and as Administrator of the Estate of his Minor Child, Caroline Elizabeth Camarata v. George V. BENEDETTO, Individually and as Administrator of the Estate of his Minor Child, Randall Benedetto and State Farm Mutual Insurance Company.
    No. 5-94.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 1982.

      Anthony J. Vesich, Jr. and George H. Jones, New Orleans, for plaintiffs-appellants.
    Porteous, Toledano, Hainkel & Johnson, C. Gordon Johnson, Jr., New Orleans, for defendant-appellee.
    Before SAMUEL, CURRAULT and DU-FRESNE, JJ.
   SAMUEL, Judge.

This suit, for personal injuries sustained by his minor daughter in a one-car automobile accident and for medical expenses allegedly incurred as a result thereof, was filed by plaintiff, individually and in his capacity as administrator of her estate. Named defendants were the father of the minor driver of the automobile and his liability insurer, State Farm Mutual Insurance Company. Liability was admitted and the case went to trial only against the defendant insurer. Having reached majority, the daughter became a party plaintiff.

The matter was tried to a jury which rendered a verdict in the total amount of $7,829.41, consisting of stipulated medical expenses of $4,829.41 and $3,000 for personal injuries. The jury award was made the judgment of the court. Plaintiffs then filed a motion for an additur and, after a hearing thereon, the court ordered an addi-tur of $2,000 which was accepted by defendant but rejected by plaintiffs, so that the judgment rendered was for the amount of the jury verdict.

Plaintiffs have appealed. The sole issue is quantum insofar as general damages are concerned.

The daughter (hereinafter referred to simply as plaintiff) and her mother were the two lay witnesses who testified. Expert evidence was given by Dr. George N. Byram, Jr., an orthopedic surgeon, Dr. Humberto Otero, plaintiff’s family physician, Dr. Hamid Massiha, a plastic surgeon, Dr. David Weilbacher, a general and vascular surgeon, and Dr. Maria Palmer, a neurologist and psychiatrist.

The accident occurred when the defendant vehicle struck a curb, turned on its side and skidded some distance. The guest passenger had her right arm out of the window at the time. She testified she hit her head on the windshield and her chest on the dashboard and hurt her back and her right arm. The skin on her arm was raw and parts of the knuckle and wrist bone were exposed. She was taken to the emergency room at East Jefferson Hospital where x-rays were taken of her arm, head and chest. The arm was cleansed, placed in a solution and scrubbed; a east was applied, and she was given a sling and released.

Afterward she consulted her personal physician, Dr. Byram. He prescribed whirlpool treatment for the hand and arm five or six times for one week. Later she consulted Dr. Otero because she stated she was unable to swallow. He changed the dressing on her arm, took x-rays and an EKG and admitted her to East Jefferson Hospital, where she remained for a week while a battery of tests were performed. Dr. Weil-bacher performed some of the tests in connection with her problem swallowing. She later returned to Dr. Otero for a checkup because her back was hurting, and again returned to Dr. Byram for further whirlpool treatment.

Later, while being fitted for contact lenses, she fainted in the doctor’s office. After this episode, she again saw Dr. Otero who sent her to Lakeside Hospital where she had an EEG and a brain scan. Then she was referred to Dr. Palmer, who performed various neurological tests and prescribed phenobarbital three times per day. Plaintiff feels embarrassed and self-conscious and depressed about her problems. She was advised not to drive for one year, and she has been warned about the danger of drinking alcoholic beverages because of its reaction with the medicine.

She wore a glove, which came midway between the finger and the elbow, for about a year in connection with the injury to her arm, and had dermabrasion (a sandpaper like procedure) performed to reduce the scarring. The jury examined plaintiff’s arm and noted the scarring and discoloration of which she complained.

She is able to participate in normal activities, but wears long sleeve dresses because she is embarrassed about the pink discoloration. The testimony of plaintiff’s mother is similar to that of her daughter.

The medical evidence is as follows:

Dr. George N. Byram, Jr., an orthopedic surgeon, saw plaintiff on May 30, 1978. She complained of pain in the right arm. Following removal of the arm splint, the doctor noted a long superficial abrasion on the radial side of the forearm from the knuckles to the elbow. It was clean and healing satisfactorily. There was tenderness in the right wrist and about the meta-carpophalangeal joints, but no deformity. He reviewed the hospital x-rays and found no fracture. The arm was placed in a removable splint. She had whirlpool therapy, wound cleansing and dressing changes daily. He saw plaintiff on five occasions for therapy and dressing changes from May 31 to June 14, 1978. He last saw plaintiff June 16, 1978.

Dr. Humberto Otero, plaintiff’s family physician, first saw plaintiff on June 3, 1978. She complained of injuries to the right arm, ankle, head, chest and abdomen as a result of the car accident. He performed a physical examination and noticed the abrasions of the right arm and elbow. There was a decreased range of motion and minimal tenderness on palpation of the neck. He diagnosed her injuries as closed chest trauma and closed abdominal trauma (i.e., contusions in the muscles in the chest wall), but nothing organic other than the muscles. She was admitted to the intensive care unit of East Jefferson Hospital. Some tests and x-rays were performed in the doctor’s office, and during hospitalization (bone scans, x-rays, cardiac enzymes, electrocardiograms). All tests were negative. After two days, plaintiff was transferred from intensive care to regular care. She was hospitalized from June 3 to June 10, 1978. The diagnosis remained the same as it had been prior to hospital admission.

Plaintiff returned to Dr. Otero as an outpatient with the same complaints. She was examined, the dressing on her right arm was changed and she was referred to Dr. Book, an orthopedist, and Dr. Massiha, a plastic surgeon.

On July 13, plaintiff complained to Dr. Otero of mid-sternum chest pain that increased with exercise. An EKG was within normal limits. Analgesics and muscle relaxants were prescribed. She was last seen July 13, 1978. While hospitalized, she had also been seen by Dr. David Weilbacher, a general surgeon, and Dr. Serrato, a cardiologist.

Dr. Hamid Massiha, a plastic surgeon, saw plaintiff on June 15, 1978 relative to scars on her right forearm and dorsum of the right hand. He found a superficial second degree burn from the crease of the forearm to the crease of the hand and forearm and a deeper burn in the dorsum of the fingers and dorsum of the thumb. The burns on the dorsum of the hand were a different kind from which he expected hy-pertropic scarring (a thicker scarring) so the doctor ordered a stocking form of glove that holds constant pressure, to prevent a thick scar. She was ordered to avoid sunshine to prevent splotching.

She was seen again by Dr. Massiha on July 13,1978. The scar was raised and flat in relation to the normal skin layer. On August 10, there was scarring in the crease of the wrist and between the second and third fingers and in the dorsum of the thumb. The area from the wrist to the elbow was discolored but did not have much scarring.

Dr. Massiha also saw plaintiff on October 5, 1978, February 8, 1979 and August 14, 1979. He performed dermabrasion (a sandpaper procedure) on August 22,1979 in East Jefferson Hospital under general anesthesia. The procedure is painful. On August 28, the dressing was removed and the wound healed. She was seen again September 11, 1979, October 16, 1979 and March 25, 1980. On her last visit the scarring at the dorsum of the hand and one raised scar at the dorsum of the right wrist were still present. The wounds were healing well. They were still pink in color and plaintiff was advised to stay out of the sunshine.

This doctor testified plaintiff will have a permanent scarring or discoloration in the crease of the wrist, and small scarring in the space between the second and third fingers, and the dorsum of the thumb. The scar on the right wrist is about one centimeter wide, three centimeters long in the wrist and about two millimeters wide, and two or three centimeters long on the crease of the fingers.

Dr. David Weilbacher, a general and vascular surgeon, testified he saw plaintiff on June 4, 1978 in East Jefferson Hospital at the request of Dr. Otero regarding possible chest and abdominal surgery. He took a history wherein plaintiff told him she had been injured in an automobile accident nine days earlier. She denied any loss of consciousness. Physical examination was essentially normal except for minimal tenderness to pressure over the substernal area (the breast bone area). There was no rib tenderness and the remainder of the examination was normal. A series of gastrointestinal tests and an upper GI series was performed. These were normal. The GI series was performed to explore the possibility of an esophageal injury or esophagitis. She continued to complain of trouble swallowing. The tests were normal. She was examined from head to toe and all tests came back normal. She was last seen June 9, 1978. He concluded plaintiff had sustained a mild chest contusion, otherwise he had no explanation for the source of these complaints.

Dr. Maria Palmer, a neurologist and psychiatrist, examined plaintiff on August 23, 1978 at the request of Dr. Otero. She complained of loss of consciousness on August 18, 1978 while being fitted for contact lenses. A neurological examination and an electroencephalogram were performed. The latter showed an abnormality in the left temporal lobe which was described as a focal slowing. In obtaining plaintiff’s history she was certain plaintiff had lost consciousness, struck her head and face, and suffered many injuries in the car accident. She was hospitalized and, when she' recovered consciousness in the hospital, noted two knots on the left side of her head. She also suffered headaches after leaving the hospital. This doctor concluded plaintiff had a post traumatic seizure due to an injury to the brain following her head injury. Based on the history and description of symptoms plaintiff demonstrated while she was unconscious, the doctor also was of the opinion this was most likely due to trauma.

Treatment consisted of an anticonvulsant with phenobarbital. The patient was seen on regular follow-up visits on October 5, 1978, February 8 and September 10, 1979, March 27 and October 28,1980. After that, she was told to return in one year. Her only problem was that she was depressed. She was taking her medication and had no other complaints. The major side effect of phenobarbital is drowsiness. A person’s mood may be affected and they either may be depressed or hyper-excitable. It could be expected to last three to four weeks at the most. On all of the visits subsequent to the first, plaintiff had no seizures, the neurological examination was negative, she was still taking her medication, and had no complaints.

Dr. Palmer could not state how long plaintiff would be required to continue taking the medication. She proposed to stop the medication after five years, and if plaintiff then had no seizures the medication could be discontinued, otherwise she may have to be on medication forever.

It is clear from the award for personal injuries that the jury did not believe plaintiff proved all of her complaints were related to the accident. Obviously, their award would have been substantially higher if they had believed the incident at the eye doctor’s office was caused by the accident, or if they had accepted the testimony of Dr. Palmer. Nor do some of the numerous hospitalizations and tests, all of which were negative, appear to have been necessarily related to the accident.

Nonetheless, we are satisfied the award of $3,000 for plaintiff’s injuries is so low as to be manifestly erroneous. Certainly, some of her problems were caused by the accident. The painful dermabrasion procedure, the scarring (although somewhat minimal), the need to keep out of the sunshine, to wear the glove and long sleeves over an extended period of time, and the overall effect of the injuries on this teenage girl are sufficient to require a lower limit award of $15,000. We amend accordingly.

For the reasons assigned, the judgment appealed from is amended so as to increase the award for personal injuries from $3,000 to $15,000. As thus amended, and in all other respects, the judgment is affirmed.

AMENDED AND AFFIRMED.

      . Individually and in his capacity as administrator of the estate of his minor son.


text:
    TOM BLACK & ASSOCIATES, INC. v. THIBAUT CONSTRUCTION COMPANY, INC.
    No. 5-105.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 1982.
    Rehearing Denied Nov. 17, 1982.

      Irwin R. Sanders, Metairie, for plaintiff-appellee.
    Carl W. Cleveland & Associates, Bruce S. Kingsdorf, New Orleans, for defendant-appellant.
    Before SAMUEL, CURRAULT and DU-FRESNE, JJ.
   SAMUEL, Judge.

Plaintiff' filed this suit seeking recovery of $9,336, the alleged balance due by the defendant under a subcontract to frame four-unit apartment buildings for the defendant. Defendant answered and filed a reconventional demand for $24,721.28, allegedly the sum expended by it to rework and complete plaintiff’s work. After a trial on the merits, judgment was rendered against the defendant in the amount of $3,720. Defendant has appealed.

The record is replete with redundant and contradictory evidence, and the attorneys readily concede they cannot determine how the trial judge arrived at the amount of his award.

The record does reflect that on February 22, 1979 plaintiff and defendant entered into a contract by which plaintiff undertook to frame an unspecified number of four-unit buildings for defendant. Work began shortly thereafter, and the framing of the first five buildings was completed without major incident. However, when fourteen or fifteen buildings were in various stages of completion, defendant ceased pouring slabs for any additional buildings, informing plaintiff that the buildings already started had to be completed before any additional slabs would be poured.

Plaintiff’s evidence tends to show defendant’s handling of materials delayed its performance. Plaintiff argues incorrect material was delivered to the job and too much material was delivered, requiring plaintiff’s employees first to build an enclosure to hold the lumber and then to sort through the superfluous pieces of lumber to locate particular sizes as needed. Plaintiff contends the delay would not have been encountered had materials for each unit been delivered to the site for that unit, as originally contemplated, instead of the delivery of masses of material to one particular job site. Plaintiff also argues it was delayed by the inexperience and lack of training of the defendant’s field superintendent, who allegedly caused many delays by ordering changes to be made in the floor plan of each unit as it was framed.

Defendant points to the terms of the contract, in which plaintiff was to be paid progress payments, in eight installments, upon completion of various stages of the framing of each building. Defendant argues that after the fifth progress payment, plaintiff received approximately eighty percent (80%) of the contemplated contract price for each building and, therefore, after the fifth progress payment plaintiff’s incentive to complete a particular building was diminished and it was economically in plaintiff’s self-interest to begin building another building prior to the completion of the previous buildings. After fourteen or fifteen buildings (the record is not clear as to the exact number) were in various stages of completion, defendant stopped pouring slabs for any additional buildings as stated above. In June, 1979, a representative of plaintiff met with defendant’s general manager, who expressed dissatisfaction with plaintiff’s progress. Plaintiff claims it did not discuss the problems resulting from the inexperience of defendant’s field superintendent in order to shield him from job-action by defendant.

Shortly thereafter, plaintiff and defendant’s field superintendent concluded that an end to their relationship was inevitable. Plaintiff submitted to defendant’s field superintendent a list of work it was entitled to be paid for to that point, and after reviewing the list the field superintendent executed a letter stating that the amount due plaintiff was $16,628, of which $9,167 was paid, with the balance withheld by defendant for completion of work which should have been done by plaintiff or which was allegedly improper. These figures vary from the petition, which asserts $18,503 was due and $9,167 was paid, resulting in the demand for $9,336.

The parties offered no clear evidence to substantiate either of their claims. Plaintiff relies solely upon the letter of defendant’s field superintendent as an admission that $16,628 was actually earned by plaintiff, and that it is due $9,336.

The trial judge did not render reasons for judgment. It is evident, however, that he concluded the plaintiff was not at fault in causing the deláys complained of.

Considering the record as a whole, the evidence discloses the trial judge did not commit error in rendering judgment for plaintiff and dismissing defendant’s recon-ventional demand. While the evidence is confusing and conflicting, it justifies the conclusion that plaintiff was not in default, that defendant chose to terminate the contract, and that the delays of which defendant complains were caused by defendant’s own mismanagement of delivery of materials, impairing plaintiff’s ability to perform its framing operations more quickly.

The case is controlled by Civil Code Article 2765, which reads:

“The proprietor has a right to cancel at pleasure the bargain he has made, even in case the work has already been commenced, by paying the undertaker for the expense and labor already incurred, and such damages as the nature of the case may require.” LSA-C.C.Art. 2765.

In Glassell, Taylor & Robinson v. John W. Harris Associates, the Supreme Court held this article applies to the relationship between general contractor and subcontractor as well as to the owner-contractor relationship. It also has been held that this article applies when there is a discharge without cause and does not interfere with Article 2749, which involves discharge “for cause”.

In Forrest v. Caldwell, the Supreme Court explained the purpose of this article as follows:

“This article is taken from the Napoleon Code, but with'a change. In that code the measure of damages was fixed by the law-givers. The proprietor, in case of an arbitrary rescission of the contract, was bound to pay the contractor his expenses, the value of all his work done, and all the profits which he could have made, if permitted to perform the contract, de toutes ses dépenses, de tous ses travaux, et de tout ce qu’il aurait pu gagner dans cette entrépise. The framers of our code seem to have favored the rule as laid down by Pothier, and preferred to leave the damages to the sound discretion of the tribunal rather than to establish a positive and inflexible standard. But it is obvious that the rule given by our code is sufficiently broad to cover the loss of profits.
The arbitrary power given to the proprietor to cancel the contract at pleasure, seems at first view anomalous and exhor-bitant. But further reflection will show, that when properly guarded by a concomitant liability, it rests upon a sound policy. As suggested by the French commentators, the reason of the law is this: after making a contract, the proprietor may find that imperious considerations make it inexpedient to go on with it. Losses may have suddenly come upon him; his fortunes may have become embarrassed, and he may find that he cannot go on without exposing himself to the risk of not being able to pay the contractor; of making an investment unsuited to his means, or ruinous in its results. The law therefore, will not hold him to a specific performance, which may injure or ruin him. But at the same time the law extends the same equitable care to the contractor, and subjects the right of arbitrary cancellation to the condition of indemnifying him. Both parties are thus protected. See Pothier, Louage, No. 440. Troplong, Louage, § 1023 et seq.”

In spite of contrary implications in the foregoing quotation, the jurisprudence has developed the following formula in assessing damages in favor of a contractor who is prevented without cause from completing a contract: He is entitled to recover the cost of what he has put into the work plus the loss of potential profits, but he is not entitled to recover the full amount of the contract price. In short, the contractor will be awarded the contract price minus the amount it would cost him to complete.

The above rule seems to furnish the key for determining the validity of the trial judge’s award. Both sides concede that after plaintiff met with defendant’s field superintendent and plaintiff was paid $9,167, such payment satisfied all but the last progress payment. The record shows payment of the last progress payment was conditioned upon the building passing inspection by parish authorities. At this point, however, the remaining progress payment represented all profit to plaintiff, since no further expenditures for time, labor or materials had to be made by plaintiff in order to receive the final progress payment.

Plaintiff’s general manager testified the sum due to plaintiff under the final progress payment was between $3,300 and $3,400. This figure, together with some payments for extra work performed or other items contained in the record, seems to be the basis upon which the court made its award of $3,720. In view of the wide discretion afforded the trial judge in awarding damages, we conclude the record reflects no manifest error, and we therefore affirm his award.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

      . 209 La. 957, 26 So.2d 1; Accord: Civil Code Art. 2771.

      . Evans v. Delta By-Products, La.App., 52 So.2d 593.

      .5 La.Ann. 220, 221.

      . Roland v. American Casualty Company, 227 La. 727, 80 So.2d 387; Guidry & Swane v. Miller, 217 La. 935, 47 So.2d 721; Cusachs & Co. v. Sewerage & Water Board, 116 La. 510, 40 So. 855; Dugue v. Levy, 114 La. 21, 37 So. 995.

      . Hansen v. National Surety Company, La. App., 4 Peltier’s Orleans Appeal 597.


text:
    Carl CHRISTOFF and Nathaniel Christoff v. EVANS COOPERAGE CO., INC., Donald Krisantis.
    No. 5-134.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 1982.

      Gregory W. Roniger, Jefferson, for plaintiffs-appellees.
    Delbert G. Talley, Gretna, for Evans Cooperage Co., Inc., defendant-appellant.
    Before SAMUEL, CURRAULT and DU-FRESNE, JJ.
   SAMUEL, Judge.

Plaintiffs instituted this suit, for personal injuries received in an automobile accident, against the driver of the other vehicle involved and his employer. Defendants have suspensively appealed from a judgment in favor of plaintiff driver, Carl Christoff, in the sum of $5,968 (consisting of $2,880 for loss of wages, $588 in medical expenses, and $2,500 in general damages) and in favor of a guest passenger, Nathaniel Christoff, in the sum of $4,886 ($2,880 in loss of wages, $506 in medical expenses, and $1,500 in general damages).

The accident occurred on February 22, 1980. The two plaintiffs were taken from the scene to a hospital emergency room. On February 26,1980 they were seen by Dr. Wilmot Ploger. Plaintiff driver was treated over a period of 5V2 months for neck, left shoulder and back injuries and headaches. Muscle spasm in the neck was indicated in the first visit. Treatment consisted of heat, rest and medications. He was seen on nine occasions and discharged July 30, 1980.

The guest passenger was treated by Dr. Ploger from February 26 to May 20,1980, a total of seven visits, for neck, back and right elbow injuries. Treatment consisted of heat, medication and, briefly, a cervical collar. This patient also exhibited muscle spasms initially.

Both plaintiffs are welders. They were unemployed at the time of the accident, one because of a disagreement with a foreman about two weeks before the accident, and the other because the job on which he had been working concluded the day before the accident. They were advised by the doctor not to seek other jobs until their injuries had improved to the extent that they could return to work. At the end of nine weeks they were advised they could return to work. Thereafter, they did find employment.

In this court appellants contend: (1) The evidence is insufficient to show plaintiffs sustained any injuries or lost any wages as a result of the accident; and, alternatively, (2) the awards are excessive. We do not agree with either contention.

Appellants’ first contention is based upon the fact that their truck sustained very little damage as a result of the accident. We are unimpressed with this contention. The gas tank of defendants’ sizea-ble truck was ruptured when that vehicle struck the rear of the plaintiff vehicle (a Chevrolet car) and, in any event, damage to the vehicles is not necessarily material insofar as personal injury to the occupants of the vehicles is concerned.

While we agree plaintiffs’ injuries were of a minor nature, we believe the general awards reflect this and come within the much discretion granted to the trial court under Civil Code Article 1934, subd. 3, and Coco v. Winston Industries, Inc., La. 341 So.2d 332, and its progeny. Here the record does not “clearly reveal that the trier of fact abused its discretion in making its award.”

We also agree that the court award for loss of wages, based on an hourly rate of $9 per hour for the time in which plaintiffs were incapable of being employed, is correct and in accord with the Supreme Court holding in Folse v. Fakouri, La., 371 So.2d 1120.

Only by way of brief, appellees argue this appeal is frivolous and without merit and therefore they should be awarded attorney’s fees and penalties. We are unable to address this request as appellees have neither appealed nor answered defendants’ appeal as required by LSA-C.C.P. Art. 2133.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.


text:
    Jean WHITE, et al. v. Malcolm FALGOUST, et al.
    No. 5-124.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 1982.
    Jerald N. Andry and Gilbert V. Andry, III, New Orleans, for Jean McLaughlin White and Douglass White, plaintiffs-appellants.
    Daniel E. Becnel, Jr., Reserve, for Malcolm Falgoust, defendant-appellee.
    Thomas L. Gaudry, Jr., Rene A. Pastorek, Daniel A. Ranson, Gretna, for Aetna Cas. & Sur. Co., defendant-appellee.
    Before BOUTALL, CURRAULT and GAUDIN, JJ.
   BOUTALL, Judge.

Jean McLaughlin White and her husband Douglas White sued Malcolm Falgoust, Malcolm Falgoust Real Estate Company, and the Aetna Casualty and Surety Company, the real estate corporation’s liability insurer, for physical injuries and for humiliation and embarrassment resulting from Falgoust’s evicting her physically from his place of business. The trial court denied recovery and the plaintiff has appealed. We affirm.

The eviction incident occurred on December 21,1977, when Mrs. White, an agent for Stan Weber Realtors, and Marilyn Cormier, another Stan Weber agent, went to the office of Malcolm Falgoust Real Estate Company to see Falgoust and re-submit an offer to purchase a house that his office listed. Falgoust had returned the same offer to Mrs. White the previous day, rejecting it over Mrs. White’s protest. Falgoust refused to accept the offer when Mrs. White re-submitted it and told the women to leave. When they did not leave immediately, Falgoust escorted them out physically. In separate actions, both women sued Falgoust and his insurer. Mrs. White alleged that cervical strain, an ulcer and traumatic neurosis were the direct result of Falgoust’s rough treatment.

A bifurcated trial was held, with Judge Thomas J. Malik ruling on the White suit and a jury on the Cormier case. Both parties in White vs. Falgoust adopted the testimony of lay witnesses in Cormier vs. Falgoust. The jury found for defendant Fal-goust in the Cormier matter. The court dismissed Mrs. White’s suit on the basis of Falgoust’s having proved “by an avalanche of evidence” that he did not injure the plaintiff.

Although other issues are raised by the appellant, the primary question before us is a factual one, whether or not Mrs. White was injured by Falgoust’s eviction. The testimony of witnesses for both parties is in agreement that a heated discussion occurred between the plaintiff and defendant, that Falgoust did tell Mrs. White and Mrs. Cormier to leave, and that he did put his hands on Mrs. White’s person to push her to the door. Mrs. White testified that Fal-goust grabbed her by the neck and that she struggled to make him release his grasp. Falgoust and his employees who were present, Mike Carotta and Sandra Vicknair, said that Falgoust had one hand on Mrs. White’s back, not on her neck, and the other on her arm. Although Falgoust admitted pushing White through the door, Mike Car-otta stated that Falgoust did not “throw” Mrs. White, but walked behind and pushed her. No one, including Mrs. White, saw Falgoust touch Mrs. Cormier.

Mrs. White complained of pain in her neck and of extreme nervousness immediately following the incident and the next day consulted Dr. Charles C. Wyckoff, an osteopathic physician, who treated her for muscle spasm that day and again in March, 1978. On January 12, 1978, the plaintiff consulted an internist, Dr. Richard E. Leach, who diagnosed and treated her for an ulcer. Also in January, 1978, she began a period of psychotherapy for a condition diagnosed by the psychiatrist, Dr. Richard M. Dawes, as traumatic neurosis and psy-chophysical gastrointestinal illness.

In his reasons for judgment, the court stated that the lack of favorable testimony from the plaintiff’s co-worker, Mrs. Cormier, damaged her case heavily. Mrs. Cormier testified that she went out the door ahead of the plaintiff and did not witness the incident at the point where Falgoust touched and pushed plaintiff. Hence, there was no support for the plaintiff’s allegations of being manhandled or injured by the defendant. The plaintiff’s treating physicians’ testimony was taken by deposition and apparently failed to convince the court that her complaints were proximately caused by the eviction. Having concluded that the judgment of the trial court should be affirmed, we need not address the issues raised by the appellant of whether the owner of a business has the right to use force to evict a business invitee and whether he is responsible for unintended damage caused by the use of force.

According to the standard of appellate review set forth in Canter v. Koehring Company, 283 So.2d 716 (La.1973) at page 724:

“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 ...”

We find no manifest error in the record, and as the trial judge was able to assess the credibility of live witnesses, there is no basis for our disturbing his conclusions.

AFFIRMED.


text:
    Randall WALGAMOTTE v. AVONDALE SHIPYARDS, INC.
    No. 5-292.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 1982.
    Elsie Halford, Metairie, for Randall Wal-gamotte, plaintiff-appellant.
    Delbert G. Talley, Gretna, for Avondale Shipyards, Inc., defendant-appellee.
    Before BOUTALL, KLIEBERT and GAUDIN, JJ.
   BOUTALL, Judge.

Plaintiff, Randall Walgamotte, brought suit against his employer Avondale Shipyards seeking worker’s compensation benefits for total and permanent disability due to a knee injury which he incurred on the job. From a judgment finding his disability to be 10% partial loss of use of his right leg under the scheduled loss provisions of R.S. 23:1221(4)(h) and crediting against him the amount which he had already received under the Federal Longshoreman and Harbor Worker’s Compensation Act, plaintiff appeals. We affirm.

FACTS

Appellant, at the time of trial, was a 22 year old man with an 8th grade education. He was employed as a pipefitter at Avon-dale Shipyards when on December 11, 1979 his knee popped out of joint while he was lifting a heavy pipe. The next day appellant went to Ochsner Hospital for emergency treatment. Examination revealed a torn cartilage known as the medial meniscus. The cartilage could not be repaired and so appellant was operated on for its removal on January 22, 1980.

Dr. Jefferson Kaye, the operating physician, testified that he released appellant to return to work around April 7, 1980, and at that time furnished him with a return to work slip. Appellant altered the date on the slip (he says under the apparent impression that Dr. Kaye had told him to return to work when he felt able) and did not return to work until almost two months later at the end of May.

Appellant resumed his job at Avondale, however after a week he complained of serious pain in his right knee and felt unable to continue work as a pipefitter, which involves stooping, climbing, and squatting. Since Avondale considered appellant a good worker, he was kept on and assigned a less strenuous job in the pipe shop. Nonetheless appellant testified at that time he still experienced unendurable pain from standing eight hours a day.

Randy Walgamotte worked on and off from May until the end of August, 1980 and finally left Avondale’s employ of his own volition at this time. Avondale then began paying him weekly benefits of $117.00 under the Federal Longshoremen’s and Harbor Workers’ Compensation Act. Around this time appellant filed suit for total and permanent disability under the Louisiana Worker’s Compensation Act, and notified Avondale that he was electing to be paid under the state plan. The state act would, by appellant’s calculations, have yielded $148.00 per week as opposed to $117.00. Avondale did not acknowledge appellant’s choice and continued to pay him at the federal rate.

Appellant testified that after leaving Avondale he had two brief jobs at service stations. He stated that he was fired from the first when he told his employer that he could not perform a task involving heavy lifting which he had been ordered to do. Appellant testified that he was let go from the second job when he disclosed that he was involved in a workman’s compensation suit.

At the time of trial Walgamotte was employed as an investigative shopper for a security service. The job pays minimum wage and entails driving sometimes a distance of several hundred miles a day. He testified that his knee aches and stiffens up during these long drives.

Trial was had in the matter on June 2, 1981 in the 24th Judicial District Court for the Parish of Jefferson. The trial judge found Walgamotte to have a 10% partial disability of the right leg under La.R.S. 23:1221(4)(h) and gave defendant a credit for the sum which he had already been paid in Federal compensation benefits, sufficient to satisfy the award. Plaintiff has appealed that judgment.

ISSUES ON APPEAL

Walgamotte raises basically two issues on appeal:

1. Does appellant fall under the odd lot classification of total and permanent disability because he works in pain due to a work-related injury?
2. Did the trial court err in not awarding appellant penalties and attorney’s fees against appellee Avondale Shipyards under the provisions of La.R.S. 22:657 in connection with Avondale’s refusal to pay appellant under the state as opposed to the federal schedule of compensation, with its refusal to pay certain medical bills, and in its decision to cut off benefits in December of 1980?

ODD LOT STATUS

Appellant argues that he should fall under the “odd lot” classification of total and permanent disability due to the pain he suffers when he works, as a result of the knee injury he incurred while employed at Avondale.

The Louisiana Worker’s Compensation Act, La.R.S. 23:1221(2) provides lifetime compensation, “For injury producing permanent and total disability of an employee to engage in any gainful occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training, and experience... ”

Nonetheless additional grounds for total and permanent disability have evolved through the jurisprudence as a means of providing for the totally and permanently disabled worker who does not fit within the statutory definition as quoted above.

Since the case of Dusang v. Henry C. Beck Builders, Inc., 389 So.2d 367 (La.1980) it has been clear under Louisiana law that a worker who cannot return to any gainful employment without substantial pain is entitled to compensation benefits for total disability.

The “odd lot” doctrine interlocks with the substantial pain cases in that if a worker must suffer substantial pain while he works he may be considered an “odd lot” in the job market (somewhat akin to a manufacturer’s second) because his injury has made him a less desirable employee or simply unable to compete with healthy workers for a job. The effect then, of the overlap between the odd lot and substantial pain doctrines is to broaden the criteria under which a worker who suffers substantial pain on the job could be found to be eligible for permanent and total disability compensation.

The Louisiana Supreme Court adopted the odd lot doctrine in the 1980 case of Oster v. Wetzel Printing, Inc., 390 So.2d 1318 (La.1980), explaining as follows:

“In order to determine whether the plaintiff fits within this category of odd lot workers, he must show that because of his physical impairment, mental capacity, education, training, age, availability of employment in his area, and any other relevant factors, that he “cannot perform the substantial and material parts of some gainful work or occupation with reasonable continuity. “Reese v. Preston Marketing Assoc., 274 Minn. 150, 142 N.W.2d 721, 723 (1966). If the plaintiff is successful in showing a combination of factors indicating that the services which he is able to render are so limited in quality, quantity, or dependability that a market for his labor does not exist within which he can effectively compete, he has presented a prima facie case for classification in the odd lot category. An offering of such proof by the plaintiff, therefore, satisfies his burden of proving that he should be awarded benefits for permanent and total disability. The defendant employer then has the onus of showing that there are jobs which are available to provide a steady income to the plaintiff or that will provide him with “a gainful occupation.” It is fairer to place the burden on the defendant to show that there are steady jobs to the plaintiff, after plaintiff has shown his odd lot status, than to require the plaintiff to prove the universal negative of not being employable at any occupation. Brown v. Safeway Stores, 82 N.M. 424, 483 P.2d 305, 308 (1971); Lyons v. Industrial Special Indem. Fund, 98 Idaho 403, 565 P.2d 1360, 1363 (1977); Larson, supra, subsection 57.61 at pp. 10-136-137.

Ibid at 1323, 1324.

Two of our recent Louisiana Supreme Court cases applying the Oster analysis as enunciated above have reached differing results. In Lattin v. Hica Corp., 395 So.2d 690 (La.1981) the Louisiana Supreme Court held that the plaintiff workman had met his burden of proof in establishing a prima facie case for odd lot classification. Plaintiff, a twenty-eight year old man with a high school education, sustained a mutilation of his foot while on the job. He was not released to return to work until over a year later, and then only under the condition that he wear a special safety shoe. Doctors rated his disability as 25-30% of the foot. Plaintiff was fired when he could not return to work due to pain and swelling in his foot. Medical reports and depositions of three treating physicians which were introduced at trial substantiated plaintiff’s claims of pain. All of the doctors acknowledged that damage to the nerves in the veins of his foot could be the cause of the pain which plaintiff was experiencing. The court found that plaintiff had established a prima facie case for total and permanent disability and remanded to afford defendant-appellant an opportunity to rebut plaintiff’s showing since the case had gone to trial prior to Oster, supra.

In Schouest v. J. Ray McDermott & Co., Inc., 411 So.2d 1042 (La.1982) the Supreme Court held that plaintiff had not made out a prima facie case for odd lot classification. While plaintiff was found to be suffering from silicosis which he had contracted on the job, the opinion of the experts was that he was still capable of moderate to heavy work in a silica free environment. Plaintiff was working as a tack welder at the time of the trial and had received other offers of employment. From these facts the court found the plaintiff to be partially, as opposed to totally, disabled under the provisions of La.R.S. 23:1221(3).

It is evident from a reading of these recent cases that the holdings turn upon the facts of each situation. In the instant case, in his Reasons for Judgment the trial judge concluded:

“After reviewing the depositions submitted, the court finds that the plaintiff is partially disabled under the provisions of La.R.S. 23:1221(4)(H) in the amount of ten per cent disability to his leg. The court is of the opinion that the plaintiff is not totally and permanently disabled nor is he partially permanently disabled based on a reading of the depositions and the testimony of the plaintiff.”

It is implicit in the trial judge’s finding of a scheduled disability under La.R.S. 23:1221(4), rather than total and permanent disability, that he concluded that the testimony of Walgamotte was not completely credible relative to his complaints of pain and inability to work. We reach the same conclusion.

Reviewing the facts of the instant case under the mode of analysis presented in Oster, supra, we find that the record does not substantiate appellant’s claim of total physical impairment due to substantial pain. Dr. Jefferson Kaye, the operating physician testified at trial that appellant had suffered a 5% impairment of the lower extremity as a result of the removal of his knee cartilage. His earlier estimate had been 10% impairment, which he revised downward after consulting guidelines issued by the American Academy of Orthopedic Surgeons. On the last occasion on which he had examined appellant, approximately six months before the trial, there was no lost motion in the leg and appellant did not walk with a limp. At no time during the course of his post-operative visits to Dr. Kaye did Randall Walgamotte ask for pain medication. It is also relevant to note that though appellant testified that during this period he was in constant pain while he worked, he skipped appointments with Dr. Kaye on April 30, May 7, July 3, October 7, November 24 and November 29, 1980. Appellant points out in his brief that during at least part of this time appellant was seeing Dr. Kenneth Saer at the request of his attorney. Dr. Saer's deposition and medical reports were introduced at trial. Dr. Saer’s medical opinion was that he could do nothing more for Randall Walga-motte than was already being done by Dr. Kaye. In Dr. Saer’s report of October 21, 1980, he stated, “I cannot explain the intensity of the symptoms of which he complains.” Neither doctor could find a medical reason for the severity of the pain which appellant testified that he suffers from. However, appellant has suffered atrophy of the right thigh. The doctors testified that this phenomenon is due to lack of post-operative exercise, i.e., a failure to follow suggested physical therapy. The final recommendation of both doctors was that appellant should and could return to work, even though Dr. Kaye advised that appellant should avoid stooping, climbing, and squatting when at all possible, and also conceded that appellant might have to live with some degree of pain in his knee.

Other related elements of the plaintiff’s burden of proof under Oster entail a showing that he does not have the mental capacity or physical skills required to be competitive for other jobs in the market, or as the Louisiana Supreme Court has recently expressed it, to prove that, “... as a result of a compensable injury, he is rendered unable to perform any service for which a reasonably dependable market exists.” Wilson v. Ebasco Services, Inc., 393 So.2d 1248 (La.1981), at 1252. On this issue the testimony at trial was mixed. Appellant himself testified that he has an eighth grade education, that arithmetical calculations are difficult for him, and that he and his wife work as a team on their present job because he needs her assistance to get by. We note that his testimony as to his lack of understanding also puzzles us.

Appellant contends that the only other job for which he is trained is truck driving. At trial he called as a witness the former operations manager of a large chemical company here in Louisiana, a Ms. Beverly Bankston. Ms. Bankston, in charge of hiring and firing, testified with much candor that given the choice of two equally qualified candidates, one with appellant’s knee problem, her company would hire the other because her company does not hire the handicapped.

Additionally Walgamotte introduced the deposition of Dr. Courtney Russo at trial. Dr. Russo had been retained by plaintiff to evaluate him for the purpose of determining how he would make out with a pre-em-ployment physical when he applied for a job. The form which the doctor was to fill out was obtained from the chemical company mentioned above. Though Dr. Russo admitted he had never before conducted a pre-employment physical, he stated that he could not pass Randall Walgamotte in the “extremities” category.

However Mr. Cornelius Gorman, a vocational rehabilitation expert, testified for the defense that appellant underwent four hours of placement and evaluation testing under his supervision and that the results were above average. Randall Walgamotte scored at the eleventh grade level in verbal skills and at the sixth grade level in arithmetical skills. Mr. Gorman was of the opinion that with training appellant would be suited for a variety of technical jobs, giving drafting as one example.

Appellant also testified that after his injury he attended a few sessions of a high school equivalency or G.E.D. course and felt that he could follow the classes, but for reasons which do not appear in the record he stopped attending. Along the same lines Mr. Gorman testified to the variety of state vocational and technical training programs available to appellant at no cost.

While we remain mindful of the fact that “an odd lot claimant need not be absolutely helpless to qualify for total disability,” Lat-tin, supra, at 693, we nonetheless find after a review of the testimony that the record does not support appellant’s claims of total and permanent disability either due to substantial pain or limited job opportunities. Appellant was steadily employed at the time of trial and the expert testimony does not support his claim of substantial pain.

Therefore we hold that there was no manifest error in the trial judge’s finding that appellant has suffered a ten per cent disability to his leg under 23:1221(4)(h). Such a finding is supported by the testimony of Dr. Jefferson Kaye, the surgeon who operated on appellant’s knee.

FEDERAL VERSUS STATE BENEFITS

Appellant argues that, having made the election in August of 1980 to be paid under the State as opposed to the Federal scheme of compensation, he is now entitled to the difference between the $117.00 per week which he was paid under the LSHWA and the $148.00 per week which he alleges he was eligible for under the State Act. Since we have already found that the trial court did not err in finding that Randall Walgamotte was disabled under 23:1221(4)(h), it follows that he is not due any more than what that schedule allows him in compensation benefits. In his Reasons for Judgment the trial judge stated:

“... he [plaintiff] has already received a greater sum of money thru (sic) the temporary total disability provisions than he is entitled to under the ruling of the court. The court will award to the plaintiff the sum of money he has already received and will not grant the plaintiff any further recovery.”

The trial court then awarded defendant Avondale Shipyards a credit in the amount of benefits which it had already paid out to Randall Walgamotte under the LSHWA. This court approves the amount of the judgment awarded to appellant and the credit awarded to appellee, and will not disturb it on appeal.

PENALTIES AND ATTORNEY FEES

Finally on a related issue appellant argues that Avondale should be liable under La.R.S. 22:658 for penalties and attorney fees since appellee Avondale arbitrarily and capriciously refused to honor his election of benefits, refused to pay certain medical bills, and cut off appellant’s benefits in December of 1980.

As to the election of state benefits and Avondale’s cut-off of benefits in December of 1980, we find appellant’s argument to be without merit. Since appellant was found by the trial court to have received more money than he was entitled to for his disability under La.R.S. 23:1221(4)(h), and we affirm that finding, we decline to hold that Avondale was arbitrary and capricious in refusing to pay him an even greater amount.

However, as to appellant’s claim for medical expenses incurred in seeking a second opinion and treatment from Dr. Kenneth Saer, we award him that amount and assess penalties and attorney fees against appellant Avondale for arbitrary and capricious refusal to pay Dr. Saer’s bills.

La.R.S. 23:1203 provides in pertinent part:

“In every case coming under this chapter, the employer shall furnish all necessary medical, surgical and hospital services, and medicines, or any non-medical treatment recognized by the laws of this state as legal...”

We find that since appellant was still complaining of pain some six months after the operation on his knee, that he was entitled to consult the physician of his choice, and that the examination and evaluation by Dr. Saer constituted “necessary medical treatment” within the meaning of 23:1203. See Kinsey v. Travelers Insurance Company, 402 So.2d 226 (La.App. 1st Cir.1981). Accordingly we award appellant $195.00 in medical bills, 12% of the amount as penalty and $100.00 as attorney’s fees.

Appellant, also asks us to award expert witness fees for Dr. Saer, Dr. Russo and Ms. Bankston. The trial court cast the defendant-appellee for costs. Appellant’s remedy is a rule to fix costs in the trial court. On this record we are not able to make this determination.

The judgment appealed from is amended to award Randall Walgamotte the sum of $195.00 medical bills and 12% of that amount as a penalty along with $100.00 as attorney’s fees. As thus amended, the judgment is affirmed.

AMENDED AND AFFIRMED.