author: GARRISON, Judge. SCHOTT, Judge,

text:
    Charles L. LANDRY, Sr. v. John SCHWEGMANN d/b/a and Schwegmann Brothers Giant Supermarkets, Inc., ABC Insurance Company and Eddie Williams.
    No. 12346.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 8, 1982.
    Rehearing Denied July 16, 1982.

      Wayne J. McDougall, Chalmette, for plaintiff-appellee.
    C. Monk Simons, III, New Orleans, for defendant-appellant.
    Emile L. Turner, Jr., New Orleans, for intervenor.
    Before SCHOTT, GARRISON and KLEES, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court granting to plaintiff damages in the amount of $85,867.85 plus interest, costs and expert fees for alleged mental injuries and physical abuse sustained by him on May 11,1973, when he was detained at a Schwegmann’s Supermarket for several hours and allegedly was roughly interrogated by the security guards. From that judgment, which we affirm, defendant appeals.

The trial judge provided 14 pages of reasons for judgment, excerpts of which are quoted below:

* * * * * *
“The facts of the instant case show that on May 11, 1973 at or about 1:30 P. M., the plaintiff Landry was shopping at the Schwegmann’s Brothers Giant Food Store located on Gentilly Highway. That is uncontroverted. The facts show that he was stopped, seized and detained by a security officer in the employment of Schwegmann Brothers Giant Supermarket in the instance store. That is uncon-troverted. He was stopped, seized and detained because the security officer had come to the conclusion that Landry had stolen an object from the Schwegmann’s Brothers Supermarket and that he had put an object in his pocket for which he did not pay. That is uncontroverted. “After Landry was brought to the security office in the store he was questioned. That is uncontroverted. And unfortunately for Schwegmann’s, and fortunately for Landry, it was concluded that the officer had made a grave, grave mistake because lo and behold Landry did not in fact steal anything, hide anything, attempt to get away with anything without paying. The bag of items brought were opened and each item accounted for on the receipt ticket. That is uncontrovert-ed.
“So up to this stage we have uncontro-verted testimony that Landry was illegally and unlawfully detained and seized by a security officer of Schwegmann’s Brothers who was completely in error, who was guilty of gross negligence. Worse than running into someone in the rear of a car loaded. Gross negligence. To detain a person and accuse him of pilferage and stealing is a rather serious thing in this Court’s vein. See the BILL WATSON CASE affirmed by the Appellate Court in which the Court gave reasons similar to herein.”
* * * s(c sfc Us
“Now, we get to the point that is slightly controverted. Landry says he was detained in that room for about two and a half hours and the security officer for Schwegmann’s says five minutes. Landry said that he was going to the Bank of New Orleans safety deposit box to get out a gift for his mother for Mother’s Day, this May 11th being a Friday. When he wasn’t able to make the 2:00 o’clock closing because he was detained until around 4:00 o’clock, he was not able to get in until around 4:15-4:30. Landry testified that he pleaded with Mr. Oubre, head of security of that store, to allow him to go to his truck and get a pill to take which he said Mr. Oubre allowed him to do. The security guard says no way.
“Considering Landry’s testimony, considering the testimony of his former wife or present wife, they are legally separated, whom this Court was extremely impressed with, considering all of the testimony taken, the Court is of the opinion that Landry is telling the truth.... ”
* !(! J(! * $ SfC
“I was unimpressed with the security guard and impressed with Landry’s testimony and impressed with his wife and his sister’s testimony. There is controversy whether or not there was a bruise on his forehead. Landry says they brought him in and sort of rushed him through the door causing him to hit the wall and then they searched him and he said he took off his britches and he said Oubre said that wasn’t necessary. Landry did say on that day that he bought a bone for his labra-dor retriever and I think some kind of collar.”
s(s * h¡ *
“There is no doubt that Landry was inflicted with physical damage on his body by these guards, either through extraordinary handling of his arms, et cetera. He had to go to Methodist Hospital in which he spent a period of about ten hours there. Methodist Hospital the Court takes notice ex proprio motu is a good institution and the Court would not assume that if Landry was not messed up that he would spend ten hours in the emergency. The testimony showed that the doctor got so worked up by his condition that he ordered Landry to go to DePaul Hospital according to the testimony of his wife who was there. That doctor being in Colorado, Dr. Roy. He ordered him to go to DePaul. He didn’t suggest it, recommend it, he ordered him to be taken forthwith to DePaul Hospital, the mental institution here in this city and Landry was brought there.
“Jumping ahead in my reasons, Dr. Church, the psychologist, said she had no doubt that the incident in Schwegmann’s was a precipitating cause of his mental derangement which presently he still has. So because of gross negligence of a Schwegmann employee, we now find a peaceable citizen of our community having to spend ten hours in Methodist Hospital and five days in DePaul’s. As of today he is still suffering according to Dr. Church.”
* * * * * *
“There was no testimony in the record which shows that he was not normal before this incident.”
% * * * * *
“The Court must conclude, not assume, that this was the precipitating cause that got him in this condition.”
♦ * »fc * * *
“The Court is of the opinion for the mental pain and suffering, physical pain and suffering and to the best of its ability award him something for lost wages. The Court is of the opinion that the sum of $85,000.00 should be and is hereby awarded to Landry. The Court feels this is not a high figure and the Court feels that perhaps it is a modest figure to a degree but it must put the brakes somewhere and I address myself to my Learned Brethren on the Court of Appeals and if I was on the low side please advise me and raise the amount.
“Landry is in his early fifties. He didn’t physically tell us how old he is. He is in his fifties so the length of his life of twenty years he has to go around with all his problems. His sister, the nun, I don’t think lied to me and we had to shut her up because of the hearsay rule. But she claimed that he was talking about the war days and maybe being detained in that room brought back memories. Maybe. I don’t know. She said she never heard him talk about the war before. She said he was spilling about the war in DePaul’s.
“The medical bills. The Court hereby awards the sum of $200.00 for Dr. Church. Dr. Birchard, the other psychiatrist, $70.00.... the court hereby fixes an amount of $285.00 for Dr. Fuge. .. . ”
******
“Then the Methodist Hospital bill is $84.50. Then DePaul’s bill has to be awarded which was $128.35. So the medical bills come to $867.85. Therefore, this Court is awarding $85,000.00 as stated supra plus the $867.85 for a total award of $85,867.85.
“Now the expert fees are as follows: The Court has awarded $150.00 to Dr. Church, $150.00 to Dr. Fuge, and Dr. Llouwellyn testified yesterday after the Court had to leave and $150.00 for Dr. Llouwellyn’s testimony. Then we have Dr. Roy’s testimony which is $100.00 and then we have the expenses to go to Idaho which is $412.00 taxed as cost and $46.92 was the cost of the deposition. So the total cost including travel and the deposition for the Idaho deposition is $458.92.”
******
“(t)he last item is $53.00 for the cost of the deposition of Dr. Llouwellyn taken yesterday and identified as P-19 is included.”

On appeal, defendant argues that Mr. Landry was detained only for a period of one hour, that it was improper for the trial judge to find that Mr. Landry’s head was bruised on the basis of lay testimony, that there was no causal link between the Schwegmann incident and plaintiff’s mental condition, and that the amount awarded was clearly excessive.

The question of the length of detention was a factual question resolved by the trial judge in favor of plaintiff on the basis of Mr. Landry’s testimony that he was taken into custody by the security guards at about 1:30 p. m. and detained until he walked into the adjoining Bank of New Orleans office at about 4:15 p. m. In contrast, Eddie Williams, the only security guard who testified at the trial, stated that Mr. Landry was detained for less than five minutes, that he was not searched and that no shoving occurred which would have resulted in a bruise on plaintiff’s forehead. On questions of credibility, great weight is given to the trial judge’s determinations as it is he who has the opportunity to observe the demeanor of the witnesses.

Defendant further argues that the existence of a bruise on plaintiff’s forehead or the lack thereof should have been established by expert instead of lay testimony. While defendant is technically correct that the existence or lack of a bruise is a medical determination, bruises are so common a part of everyday life that this court feels that even laymen are familiar with and capable of identifying a common and ordinary bruise. Anyone who has ever engaged in athletic competition, taken a physical education course in school, had a son on a Little League team or raised a toddler is familiar with bruises. In the instant case, Mrs. Landry, a medical technician with over 13 years of education and experience, testified that a bruise existed on plaintiff’s forehead, as did plaintiff’s sister, Sister Myia Landry, a Catholic nun of the Order of Theresans. Defendant argues that because the emergency room report prepared by Dr. A. Kenison Roy, III does not indicate a bruise on the forehead no bruise existed. We do not agree. Dr. Roy testified via deposition that at the time of the incident he was a resident at Methodist Hospital. He further testified that he had no independent recollection of the incident but needed to rely on his report. Dr. Roy also stated that Dr. Elizabeth Hilleker examined and diagnosed the patient and that he confirmed Dr. Hilleker’s examination after he relieved her in the emergency room. In light of the testimony presented, the court finds that the trial judge’s determination was not amiss on this point.

Defendant’s argument that no causal link exists is an argument unsupported by the evidence presented. Immediately after the Schwegmann incident, plaintiff walked into the BNO branch office. The BNO employees realized that Mr. Landry was in a dazed and confused state and summoned his family. His family immediately took him to the Methodist emergency room, from which he was ordered to De-Paul’s for a period of confinement. Dr. Jane Church, who taught Dr. Roy, found a causal link between the incident and plaintiff’s condition. Indeed, she found that he still suffers from chronic depression and acute anxiety as indicated by objective testing and that he has made no progress to date. Sue Ellen Lyons, Mrs. Landry’s daughter, and Mrs. Landry both testified that Mr. Landry was crying incoherently and hallucinating immediately after the Schwegmann incident. We find that the trial judge was clearly correct in his determination on this issue.

Turning to the issue of quantum, we note that Mr. Landry had some other physical injuries unrelated to the incident at issue. Because of those injuries, however, Mr. Landry was under medical observation. Dr. Harry Pflug, who operated on Mr. Landry, testified that as of October 15,1979 the plaintiff was still taking medication for his mental disorders. Dr. Church likewise testified that Mr. Landry was still taking medication as of January 10, 1980, and that he appeared to be in worse condition than on his other visits. At trial, plaintiff testified that he was still taking medication for anxiety and depression. As • a result of this incident, plaintiff and his wife have been living separate and apart, although not divorced, since October 8, 1974. Plaintiff is unable to function in his former capable manner and is unable to enjoy his remaining years in a manner which we all anticipate.

In light of the evidence and testimony presented and the effects of this particular incident on this particular plaintiff, we find that the trial judge did not clearly abuse his discretion in the amount awarded.

For the reasons discussed, the judgment of the district court is affirmed.

AFFIRMED.

SCHOTT, Judge,

dissenting:

From my review of this record, I have concluded that the trial judge abused his discretion in awarding plaintiff $85,000 for general damages. As can be seen from the excerpts from the trial judge’s reasons quoted by the majority this award was for mental and physical pain and suffering and lost wages. Physical injuries were relatively minor so that the question is whether the plaintiff proved that he suffered mental injury and loss of wages as a result of the tort committed on him by Schwegmann’s employees so as to support the award.

As to plaintiff’s mental condition, the trial judge concluded that the incident sued on was a “precipitating cause” of his present condition. He based this conclusion on the testimony of Dr. Church, a clinical psychologist, who first examined plaintiff on July 12, 1973, and on the assumption that there was nothing in the record to show that plaintiff was not normal before this incident occurred.

Dr. Church did testify in response to a question by the court that the Schwegmann incident was a precipitating cause of his mental disorder. But she explained that this was based on her understanding that his functioning had been fairly good up until the time of May, 1973. Furthermore, at one point during her testimony, when asked whether plaintiff had not been “laid low” for a period of eight months prior to the Schwegmann incident, she replied that she was “sort of limited to the report” because she could not remember anything about the interview except what was in her report. Consequently, Dr. Church’s report is far more reliable than her testimony at trial.

She stated at the beginning of her report that plaintiff was complaining of headache which he felt originated at the time of the Schwegmann incident. However, she also reported that plaintiff “has had severe headaches for the past two years, apparently following an automobile accident in 1970.” She also outlined plaintiff’s work history which is significant. He had been a union functionary until elections in June, 1972, when he lost his appointed position. Thereafter, he “loafed” for eight months until he found “light work” not physically demanding. In April, 1973, he had an accident which caused him to lose this job and was unemployed at the time of the incident sued on. Dr. Church also stated that plaintiff admitted to her that he had received shock treatments 30 years ago in connection with heavy drinking and a period of depression when he was discharged from the service. In her conclusion, Dr. Church stated that plaintiff was experiencing severe psychological disturbance severe enough to warrant immediate attention.

Dr. Church’s report demonstrates that plaintiff was having problems before this incident and her findings are corroborated by the testimony of plaintiff’s wife and daughter. The wife testified that between July, 1972, and April, 1973, Landry was not able to work physically because of “constant, continued headaches.” The daughter testified in response to whether plaintiff had been under the care of a psychiatrist prior to the incident sued on that he did see a doctor 10 or 12 years before. We also know that plaintiff lost his job because of some union politics and voluntarily chose not to work for a full eight months following this development. When asked why he was idle for those eight months plaintiff answered that he had “some things to do and I did a little fishing .... ”

The record shows that plaintiff was extensively tested and treated at the Veterans Administration Hospital beginning in June, 1973. His recurring complaint throughout this period of time in June and July was that he was suffering from headaches as a result of which he was given extensive neurological testing. Interestingly, there is no indication that plaintiff was ever seen by a psychiatrist while being treated at the Veterans Administration Hospital. In October and November he was treated as an out patient at this hospital, but again the emphasis was on his headaches and neurological studies to determine the cause and no mention is made of psychological problems.

While the record does support an award for aggravation of a previous condition it does not support the conclusion that plaintiff was perfectly sound before the incident and that his mental problems were all caused by the incident. Because I interpret the trial court’s reasons for judgment to convey the latter I believe the award constitutes an abuse of discretion.

Furthermore, the $85,000 award according to the trial judge was designed to compensate plaintiff for lost wages, attributable to this incident. To begin with, plaintiff had not worked at all for ten months prior to the incident in his trade as an electrician except for a brief period a month before the incident. Several years prior to July, 1972, he was not engaged in his trade as such but was a union official, and this job had been lost long before the incident sued on. Plaintiff had serious problems, having had a cervical disc just two years before the incident and a lumbar disc some eight years before. As already discussed, he was suffering from severe debilitating headaches from the time of the accident which caused his cervical disc problem until the incident at Schwegmann’s. According to Dr. Church, the one job he took in April, 1973, was “light work” as compared to what he was trained to do but had not done for several years. Thus, any lost wages which are directly attributable to this incident are based on speculation and conjecture and are not supported by his previous work record or his condition prior to the incident sued on.

Plaintiff had the burden to prove his damages. In the case of psychological injuries the evidence must be scrutinized most carefully even though the danger of denying recovery to a deserving claimant must be guarded against by the courts. Walton v. William Wolf Baking Co., Inc., 396 So.2d 962 (La.App. 1st Cir. 1981). Significantly the award in. the Walton case was supported by the testimony of two psychiatrists. In sharp contrast, the record before us does not contain the testimony of any psychiatrist to support plaintiff’s claim. Plaintiff was examined and treated at De-Paul Hospital by Dr. Ken Birchard, a psychiatrist, and he was unable to produce Dr. Birchard as a witness because his whereabouts were unknown at the time of the trial. However, the discharge sheet written on May 13, 1973, contains the following information: He was “admitted for anxiety due to incident at store.” His course in the hospital according to the doctor was “responded to rest & structural inverse. No thought disorder.” The final diagnosis was “set reaction of adulthood.” His condition on discharge was “improved” and his prognosis was “good.” While followup in the doctor’s office was recommended the record does not show that any such followup was given. According to Dr. Church plaintiff was referred to her by Dr. Birchard and, as already noted, she recommended further psychiatric treatment but despite extensive medical treatment at the Veterans Administration Hospital under the care of various neurosurgeons the record does not show that plaintiff was ever given any further psychiatric treatment from the time he last saw Dr. Birchard until the time of this trial in January, 1980. In short, the record is barren of any psychiatric testimony to support plaintiff’s claim and Dr. Church, who was not a psychiatrist but only a clinical psychologist, did not offer convincing testimony considering her own admission that she had no independent recollection of her interview of plaintiff and her report did not contain a clear cut statement as to the Schwegmann incident being a precipitating cause for all of plaintiff’s subsequent mental problems.

I respectfully disagree with my colleagues that the evidence supports the trial judge’s conclusion, I believe that the award constitutes an abuse of discretion, and I would reduce the award to $25,000 in general damages on the basis of the record.

      . The objective test involved is Minnesota Mul-tiphasic Personality Test, which indicated severe psychopathology and severe depression.


source: Caselaw Access Project

author: BARRY, Judge.

license: Public Domain

text:
    William A. BISCHOFF v. BROTHERS OF THE SACRED HEART.
    No. 12971.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 8, 1982.
    Rehearing Denied July 16, 1982.
    Silvestri & Massicot, New Orleans, Frank Sloan, Andrew M. Weir, Metairie, for plaintiff-appellant.
    Denechaud & Denechaud, Thomas A. Rayer, New Orleans, for defendant-appel-lee.
    Before GULOTTA, GARRISON and BARRY, JJ.
   BARRY, Judge.

Plaintiff appeals the dismissal of his lawsuit which sought damages for the alleged breach of his teacher’s contract. The facts are not in dispute.

Plaintiff applied to teach religion at Brother Martin High School in New Orleans. Prior to his initial interview he filled out the school’s “Application For Teaching Position”, a form used by all applicants which made inquiry into the personal background by way of a “check off” format (as opposed to filling in blanks). Under the category of “Religion” plaintiff checked off “Practicing Catholic: Yes” and under “Marital Status” he noted “Married”.

Mr. Bischoff was first interviewed by Brother Farrel, Chairman of the religion department, who recommended to the principal, Brother Brice, that plaintiff be hired to teach religion and a contract was signed on March 27, 1972. Prior to signing the contract plaintiff’s religious practices and marital status were not discussed. A short time later Brother Farrel learned that plaintiff had been married in the Catholic church, divorced, and remarried, a situation contrary to the teachings of the Catholic church. As a result, on June 20, 1972, defendant withdrew the contract and plaintiff filed this suit for wages, mental anguish, damage to his career and attorney’s fees.

The lower court found that the application misled the defendant because plaintiff, due to his expertise in Catholic doctrine, knew or should have known his answers would reasonably cause the Brothers to assume “his so-called present state of ‘marriage’ was one validly contracted in accord with generally accepted principles of Catholic tradition and law.” On this basis the Trial Judge determined the defendant was justified in relying upon plaintiff’s assertions without obligation to inquire further. The court held there resulted an error of fact as to the person or character of the plaintiff which was a principal cause of the contract and plaintiff should have known this was a major consideration for making the contract. See LSA — C.C. Arts. 1823, 1826. Hence, the contract was void ab ini-tio as this error vitiated the defendant’s consent.

Plaintiff asserts in order for the defendant to vitiate its consent it is not sufficient to prove that plaintiff knew this information would have hurt his chances of being hired. Instead, he argues he must have known (or be presumed to have known) this knowledge would have precluded employment as a religion teacher and cites the following language from Hall v. Arkansas-Louisiana Gas Co., 368 So.2d 984 (La.1979) at p. 992:

“Consent of the parties legally given is a requisite to the validity of a contract. La.Civil Code art. 1779. Consent being the concurrence of intention in two or more persons, with regard to a matter understood by all, reciprocally communicated, and resulting in each party from a free and deliberate exercise of the will, it follows that there is no consent where it has been produced by error. La.Civil Code art. 1819. An error of fact proceeds either from ignorance of that which really exists, or from a mistaken belief in the existence of that which has none. La. Civil Code art. 1821. Errors may exist as to all the circumstances and facts which relate to a contract but it is not every error that will invalidate it. La.Civil Code art. 1823. To have that effect, the error must be in some point, which was a principal cause for making the contract and when there are several this principal cause is called the motive and means that consideration without which the contract would not have been made. Id. & art. 1825. No error in the motive can invalidate a contract, unless the other party was apprised that it was the principal cause of the agreement, or unless from the nature of the transaction it must be presumed that he knew it. La.Civil Code art. 1826. These articles of our Code simply mean that error in the determining motive, or principal cause, of a contract vitiates consent and invalidates the contract. Error as to a subsidiary motive has no effect upon the validity of the contract. Cryer v. M & M Manufacturing Co., Inc., 273 So.2d 818 (La.1972); Stack v. Irwin, 246 La. 777, 167 So.2d 363 (1964); Carpenter v. Skinner, 224 La. 848, 71 So.2d 133 (1954).” (Emphasis in original.)

Plaintiff claims it was not his obligation “to put his worst foot forward” and argues the following facts reveal he did not know employment would be precluded because of his marital status: there was no testimony showing Brother Martin had a policy prohibiting divorced persons from teaching religion; there were three divorced and remarried teachers at Brother Martin teaching other subjects; the application and contract were used for all teachers and the record clearly established a different standard for religion teachers. Three teachers, knowing plaintiff’s background, recommended him to teach religion, and Brother Farrel testified one of the three told him he didn’t think plaintiff’s divorce would make a difference. Plaintiff testified he felt his personal experience would help rather than hinder his ability to be an effective religion teacher. He was supported by Father George Lundy of Loyola, who stated it was reasonable to check “practicing Catholic” and he would have hired plaintiff to teach religion despite his divorce.

Plaintiff also argues he did not misrepresent himself on the application by checking “married” and “practicing Catholic” because those answers were true and the Trial Judge erred by shifting the burden of inquiry from the employer to a confession by the applicant. Finally, he avers the trial court’s statement that “professional candor should have compelled plaintiff to have made a disclosure of these facts” was error because plaintiff’s only obligation was to inform defendant of his qualifications as a professional and not personal information unrelated to the job.

Defendant counters that plaintiff intentionally concealed material facts which if known would have been the cause or motive for denial of employment, and points to the importance of a religion teacher as a role model for the students. Defendant argues plaintiff must exemplify in his personal life the doctrines of the Catholic church: to teach religion is not merely a profession but a way of life, and if one’s personal lifestyle and teachings are in conflict it would cast serious doubt as to credibility.

Defendant points to the testimony of Brother Farrel where he related the following conversation with plaintiff:

“He said ‘Brother, if I had done that, would you have hired me?’ And I said, ‘Probably not.’ And he said, ‘That’s the reason why I did not do it because if I had done it, I would have known I wouldn’t have gotten hired.’ ”

Defendant relies on Ostrolenk v. Louise S. McGehee School, 402 So.2d 237 (La.App. 4th Cir.) writ denied, 404 So.2d 1259 (La.1981) where a piano teacher failed to disclose on her application and in subsequent interviews that the previous year she had been discharged from a private school, and the court said at p. 240:

“This court, in Aetna Ins. Co. v. General Elec. Co., 362 So.2d 1186 [La.App.], observed that under Civil Code Article 1847(5) either an assertion of what is false or a suppression of what is true constitutes fraud if such action is designed to obtain an unjust advantage.
“Defendant’s head mistress testified the contract was terminated because of plaintiff’s omission of unfavorable facts and not because of the truth of anything stated against her. In view of her desire to obtain employment, plaintiff’s omission to state facts unfavorable to her is both human and understandable. Nevertheless, this omission induced an error in defendant as to a principal cause of the contract by which plaintiff was hired and renders the contract null from its beginning.
“Particularly under the circumstances of the present case, we reject plaintiff’s argument that her silence was merely a normal part of the routine of obtaining employment, and that the burden was upon defendant to obtain any factual evidence to determine her lack of fitness for the position. This argument likens the employment of a teacher for a private girls’ school to an adversary proceeding.”

Judge Samuel, in Ostrolenk, further cited 78 C.J.S. “Schools and School Districts,” Sec. 187, p. 1043-44, as follows:

“A false representation of a material fact by the teacher, with knowledge of its falsity, with intent to induce the school authorities to enter into a contract of employment to teach, constitutes fraud sufficient to entitle the school authorities to avoid the contract.”

Defendant suggests the facts of the instant case are more compelling than in Os-trolenk and the contract is invalid under LSA — C.C. Arts. 1823 and 1826:

LSA — C.C. Art. 1823.
Errors may exist as to all the circumstances and facts which relate to a contract, but it is not every error that will invalidate it. To have that effect, the error must be in some point, which was a principal cause for making the contract, and it may be either as to the motive for making the contract, to the person with whom it is made, or to the subject matter of the contract itself.
LSA — C.C. Art. 1826.
No error in the motive can invalidate a contract, unless the other party was apprised that it was the principal cause of the agreement, or unless from the nature of the transaction it must be presumed that he knew it.

Ostrolenk is a strong case in defendant’s favor; however, as pointed out by plaintiff’s supplemental brief, the plaintiff in Ostrolenk was specifically asked about her latest professional activities and failed on two occasions to disclose her termination. This was an obvious attempt to mislead.

In summary, plaintiff argues: there was no misrepresentation on his application intended to deceive; and the “withheld” information related to personal background and not qualifications as a religion teacher and should have no bearing on the employment decision.

Defendant answers: plaintiff concealed, misrepresented or did not candidly disclose vital information which materially affected the employment decision.

All expert witnesses testified that, based on plaintiff’s responses on the application, the implication was that he was living in accordance with church doctrine. But, plaintiff’s experts felt the employment form was inadequate and it was the employer’s obligation to inquire further if the data sought was the basis for hiring. Defendant’s experts felt the form plainly asked if plaintiff was validly married according to the Catholic church; further, with plaintiff’s background he should have known the implication and relevancy of the questions.

We note that plaintiff was in a Dominican seminary for 6 years and had done extensive post-graduate work in theology and philosophy (master’s degree) and was close to obtaining his doctorate. He had taught philosophy, theology and psychology at the college level.

At the time of his application plaintiff was 34 years old. He first married in 1964, separated in 1969, was divorced in 1971 and married his second wife in a ceremony performed by a fundamentalist minister in 1971. He and his first wife jointly instituted annulment proceedings which were finalized in 1976, four years after this incident.

The issue before us is not whether plaintiff is, in fact, a “practicing Catholic”, but rather his subjective intent, i.e., did he intend to deceive the defendant by this assertion.

We find plaintiff intentionally concealed his marital status as revealed by his conversation with Brother Farrel. Plaintiff said he didn’t divulge his marital history because he knew Brother Farrel would not have hired him under those circumstances. Plaintiff did not mention this telling conversation when he testified on direct examination and he was not recalled on rebuttal; hence, plaintiff’s damaging admission remains uncontradicted. Plaintiff testified he was aware of Catholic dogma regarding divorce and we conclude, as did the Trial Judge, that the plaintiff’s bad faith caused error and the contract was void ab initio.

The district court judgment is affirmed with plaintiff assessed all costs.

AFFIRMED.


text:
    Carolyn MORAN v. Odell DEAN, M.D., Anthony J. Hackett, Jr., M.D., and Flint-Goodridge Hospital of Dillard University.
    No. 12986.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 8, 1982.

      Margaret A. LeBlane, New Orleans, for plaintiff-appellant.
    Wiedemann & Fransen, Edmund W. Golden, New Orleans, for defendants-appel-lees.
    Before GULOTTA, GARRISON and BARRY, JJ.
   BARRY, Judge.

This appeal is from the dismissal of Carolyn Moran’s medical malpractice lawsuit arising out of the delivery and death of her newborn child. Defendants are Dr. Odell Dean, the physician that followed her during pregnancy, Dr. Anthony Hackett, who was on call for Dr. Dean, and Flint-Good-ridge Hospital where the delivery took place. Our concern is a review of the Trial Judge’s evaluation of conflicting expert testimony.

FACTUAL BACKGROUND

On Sunday afternoon June 16, 1974, this 21 year old plaintiff began having labor pains and attempted to contact Dr. Dean. During her pregnancy plaintiff had been seen only by Dr. Dean and told the child would be delivered at Methodist Hospital. Plaintiff did not know he was on vacation and was informed by Dr. Dean’s answering service that Dr. Hackett was taking his calls and told to proceed to Flint-Goodridge Hospital.

At approximately 5:30 p. m. plaintiff was admitted to Flint-Goodridge. Upon reaching the obstetrics unit the nurse on duty, Edwina Morgan, a licensed practical nurse, took a brief history and recorded plaintiff’s blood pressure, pulse, respiration and temperature. She was prepped, fetal heart tones taken, and her pains assessed, but was not examined to determine dilation of the cervix. At 6:15 the information was given to the supervisor who called the answering service. At 6:30 Dr. Hackett first called to inquire about plaintiff’s condition, was given the above data, and at 6:35 prescribed 100 mg. of demerol and 20 mg. of largon. At 7:00 p. m. the nurse’s notes indicate the contractions subsided from moderate to mild and plaintiff was asleep. At 7:30 Dr. Hackett called and was told her condition. Plaintiff awoke at 9:15 with complaints but was in the separation period prior to active labor. At 10:15 Dr. Hackett called and ordered a second round of the same dosages of demerol and largon. At 11:00 there was a “bloody show” and moderately high pains at regular intervals. At 12:02 plaintiff’s membranes (water bag) ruptured spontaneously and the amniotic fluid contained a large amount of meconium (a stool which is usually passed after birth). At 12:05 a. m. Dr. Hackett was notified. At 12:20 there was delivery of a 6 pound, 10 ounce viable female with only nurse Morgan in attendance. At 12:21 Dr. Hackett advised he was in route.

The hospital chart reveals there was no cry at birth and coloring was pink with cyanosis (blue) of the extremities. The nurse suctioned fluid and blood from the nose and mouth, noted respiratory effort was poor with deep retractions, and administered oxygen by mask. At 12:35 Dr. Hackett arrived, also noted breathing difficulty, and ordered resuscitation. He felt the infant was having problems and ordered the baby placed in the nursery incubator for additional oxygen. The notes show his order was at 12:45 at which time the nurse reported there was a weak cry upon stimulation, the child was still retracting on respiration, but the color and breathing had improved. At 1:00 a. m. the baby continued retracting on respiration. Dr. Hackett left the hospital between 1:30 and 1:45 a. m. (the time is not in the hospital record). The 2:00 a. m. note indicated respiration was “poor” and oxygen was administered by mask. At 2:10 the supervisor and Dr. Evans (the emergency room physician) were present and found respirations were shallow. The infant was pronounced dead at 2:22 a. m. Dr. Hackett did not request any tests or consult a pediatrician before leaving the hospital.

Plaintiff sued alleging negligent acts of omission, namely: Dr. Dean was unavailable and Dr. Hackett was not present to deliver the baby; Dr. Hackett ordered medication without personally examining plaintiff; the baby’s death was caused by improper care and treatment; the hospital did not have a staff doctor on duty.

The Trial Judge dismissed plaintiff’s suit because she did not prove, by a preponderance of the evidence, that either Doctor or the hospital did anything contrary to the standard of care in the community.

ARGUMENT

Plaintiff argues her treatment prior to delivery was insufficient because the only person in attendance was the nurse. Also, there was no examination to determine dilation of the cervix and this information should have been available when Dr. Hack-ett telephoned. Plaintiff’s expert, Dr. George Sterne, a pediatrician, testified it was normal in the New Orleans area for a nurse to examine the expectant mother to determine dilation and record fetal heart tones. He felt an accurate judgment of the time for delivery was impossible based solely on the heart tones and contractions. Defendants’ two experts, Dr. John Lindner and Dr. Simon Ward, obstetricians, testified there was no correlation between Dr. Hack-ett’s absence during delivery and the child’s death. Both defendants’ experts also said in most hospitals in the New Orleans area O.B. nurses do not check dilation unless requested by the attending physician and it was usual for the physician to be guided by the nurse’s observations through periodic phone calls. The three experts agreed all doctors want to be present for a delivery, but a rare absence does occur. Dr. Ward said “. .. it is a community standard for the doctor to be in attendance ...”

Next plaintiff argues Dr. Hackett was negligent by twice prescribing demerol and largon without an examination. Dr. Sterne said it was reasonable to order the first dose but it should not have been repeated absent an examination. Defendants’ experts thought ordering drugs 6 and 2 hours prior to delivery was appropriate even without seeing the patient.

Dr. Sterne testified when plaintiff’s water bag broke with a large amount of meconium in the amniotic fluid it clearly indicated the infant was in distress. He said the fetus had been “compromised in terms of oxygen” and should have been delivered “as expeditiously as possible.” He estimated only 1% of all deliveries discharge amniotic fluid containing meconium. Dr. Lindner said meconium was found in the fluid in many instances and its presence did not indicate what was occurring in the uterus. Dr. Ward testified until the membranes ruptured revealing a large amount of meconium, there was no reason to suspect a high risk pregnancy because some meconium is not unusual; however, this definitely pre-alerts to the possibility of a problem. Dr. Ward opined because plaintiff was in the final stage of labor all that could be done was deliver. He felt at that point he would not have proceeded any differently because of the meconium.

The medical experts also disagree on the type and sufficiency of treatment for the child after birth. Dr. Sterne said the AP-GAR (a device used by less experienced personnel to evaluate newborns) score of 4, with a 2 reflecting the heart rate, indicated the child was revivable but required vigorous attention. He felt strongly there was a lack of diagnostic procedures (x-rays or additional tests) and the treatment was inadequate. He stated the deep retractions with respiration indicated either a central nervous system problem (from drug depression), or asphyxia, or both.

It was Dr. Sterne’s opinion the attempts to clear the lungs and airways were insufficient and with adequate ventillation methods the infant would have survived. He suggested if there was no response to the applied resuscitation, the next step was in-tubation and positive pressure. He also felt because the records indicated the child was in trouble Dr. Hackett (a general practitioner) should have consulted a specialist. It was his opinion that Dr. Hackett’s treatment was below the medical standard in the community.

Both defendants’ experts felt the nurse performed properly under the circumstances and Dr. Hackett could not have avoided the outcome. Dr. Lindner attributed the cause of death to aspiration of amniotic fluid which led to bilateral pneumonia, a diagnosis with which Dr. Sterne agreed. He stated the fluid had been aspirated into the lungs and it would have been impossible to intubate the child with success. He disagreed that the child was getting worse and stated retractions with respiration is not necessarily indicative of more distress unless it is getting progressively worse. His analysis of the hospital record indicated the child was improving and he said he would have done nothing differently.

Dr. Ward felt death was caused by asphyxiation in the uterus and after delivery the baby had no chance to breathe because with clogged lungs (which were filled with fluid) it is very difficult for oxygen to enter. He also agreed that the record showed the child actually improved after delivery and Dr. Hackett’s treatment was adequate.

NEGLIGENCE OF DR. DEAN

Plaintiff argues that it was negligence “on the part of a physician” for failing to attend to a patient in need of his care or services; however, plaintiff does not specify if she is referring to Dr. Dean or Dr. Hackett.

Plaintiff testified Dr. Dean was her regular attending physician during pregnancy and she did not know he was on vacation when she telephoned for help. Apparently it is customary for a medical colleague to “cover” and this practice is not questioned here. We do feel Dr. Dean was remiss in failing to notify his patient of his anticipated absence and providing his replacement with plaintiff’s medical history to assist in the treatment.

Even though Dr. Dean is a co-defendant, he was not called by either side to testify. There is no evidence or argument connecting Dr. Dean with the treatment administered by Dr. Hackett or Flint-Goodridge and his acts of omission are not causally connected to plaintiff’s treatment or the infant’s death.

NEGLIGENCE OF FLINT-GOODRIDGE

Plaintiff’s petition relating to the hospital’s negligence is vague and inaccurate. Plaintiff avers that Flint-Goodridge “negligently refused to have one of its doctors see her to provide necessary medical attention . . . and refused or failed to take ordinary necessary precautions or take ordinary necessary tests ... ”. We find no evidence that any of the hospital’s personnel refused medical attention. The O.B. nurse tended to plaintiff’s needs during several hours of labor and successfully delivered the baby. The hospital provided essential facilities and its nurse performed in accordance with the telephonic instructions from Dr. Hackett. We find no acts of omission or negligence in any of the services rendered by Flint-Goodridge Hospital.

NEGLIGENCE OF DR. HACKETT

There is no explanation in the record why Dr. Hackett failed to go to the hospital from 6:30 p. m. until 12:35 a. m. There is evidence that a simple examination to ascertain dilation of the cervix, coupled with the fetal heart tones, would have alerted Dr. Hackett to the imminent birth, but he failed to request the examination. Dr. Hackett’s second drug prescription two hours before delivery without examining an unfamiliar patient is suspect. The record very convincingly shows, as per Dr. Sterne and Dr. Ward, that meconium in the amniotic fluid is a definite danger warning. Had Dr. Hackett tended to his patient at delivery, he should have recognized this warning sign and acted accordingly. But the transcript shows otherwise when he was questioned:

Q. If you had been there and you know that the meconium, would that indicate to you as a physician that you will have to give some sort of special treatment to the child when the child finally does come?
A. No, it does not.

In striking contrast, when asked the same question, Dr. Sterne, a pediatrician specialist, said the presence of meconium "... is presumptive that the fetus has been compromised in terms of the supply of oxygen ...” and the infant was in trouble. Dr. Sterne elaborated and said a large amount of meconium required special treatment for the fetus, i.e., delivery as expeditiously as possible and the presence of a physician to immediately initiate relief procedures.

The hospital provided the APGAR device to evaluate the newborn’s condition. This was done by the nurse right after birth (before Dr. Hackett arrived) and provided a rating from five components; heart rate, respiratory effort, muscle tone, reflex irritability and color. Each component is rated from 0 to 2. This infant received a 2 for heart rate and, according to Dr. Sterne, the baby was readily revivable. Respiratory effort and muscle tone scored a 1, and a 0 was scored for reflex response and color. This infant’s total score 4, according to the pediatric expert, “suggest the child is just on the borderline requiring vigorous attention”. Despite having this revealing and vital information, routine procedures were followed. The O.B. nurse was questioned concerning Dr. Hackett’s actions when he finally arrived fifteen minutes after the delivery. She answered that Dr. Hackett re-suctioned the infant, performed a physical examination, said the baby’s condition had improved, and “Well, its okay.” When Dr. Hackett was asked “Did you give any other orders to Ms. Morgan with respect to the baby, other than having the child placed in the incubator with heat and oxygen?”, he responded “No other orders.”

Defendants’ two obstetrical experts testified this infant was “pre-ordained” to die, was “doomed”, and nothing could be done. In contrast, the pediatrician would have administered a small dose of a narcotic antagonist to determine if the respiratory depression was due to the drugs administered prior to delivery. Dr. Sterne said it was appropriate to see if a nose catheter or airway in the mouth was expedient, plus a chest x-ray to determine the presence of a collapsed lung, pneumonia, or if surgery was needed. Dr. Sterne stated that incubator oxygen, as ordered by Dr. Hackett, was insufficient. He emphasized the baby did not have meconium aspiration, rather the child died from aspiration of plain amniotic fluid. Despite defendants’ experts stating the child could not survive, conclusions they reached after reading the hospital records, Dr. Hackett, during his brief time at the hospital, concluded otherwise. He testified the baby was “okay” despite all of the medical history to the contrary. Dr. Hack-ett left the baby between 1:30 and 1:45 a. m. Dr. Sterne stated between 1:00 and 2:00 a. m. the baby deteriorated significantly because its color was “pale”, the efforts were “poor”, and “the baby is rapidly going downhill.” This evidence is conclusive from reading the hospital records, yet Dr. Hack-ett departed when the infant was in obvious critical condition and minutes before death.

In a medical malpractice suit, plaintiff bears the burden of establishing the physician’s deviation from the standard of care required by others in the same field or specialty. Ardoin v. Hartford Accident and Indemnity Co., 860 So.2d 1331 (La.1978). Plaintiff must also establish a causal relationship between the physician’s alleged negligence and the injury resulting therefrom. Druilhet v. Comeaux, 317 So.2d 270 (La.App. 3rd Cir.) writ denied, 321 So.2d 363 (La.1975).

Dr. Hackett is a general practitioner without specialized training in obstetrics. His experience was gained over the years by active practice. When he assumed Dr. Dean’s responsibility for care of the plaintiff, he did so without any medical history or records. After plaintiff’s labor pains started she summoned Dr. Hackett but his only response was three telephone calls to the hospital. Dr. Hackett did not request an examination for dilation of the cervix, information which would have indicated time of delivery. AGPAR tests and a large amount of meconium were telltale signs of obvious distress, but were totally ignored except for one effort at resuscitation and placing the newborn under oxygen. Crucial diagnostic tests were not made despite noted cyanosis and ever worsening breathing retractions. Supplemental breathing techniques were omitted. Dr. Hackett performed minimal services and did not recognize the crisis which accounts for no consultation with a specialist.

Considering the totality of circumstances, we find there is ample evidence Dr. Hackett did not exercise ordinary skill employed under similar circumstances by members of his profession. We conclude he failed to use reasonable care, diligence, or his best judgment, and his negligence is causally connected to the outcome. Dr. Hackett’s treatment was below acceptable medical standards in our community and the lower court opinion to the contrary is clearly wrong.

Our jurisprudence is sparse on the amount of damages for the negligent death of an infant. We feel consideration here should be given to the age of the child, mental anguish of the parent, and loss of future love and companionship.

Plaintiff’s baby girl lived only two hours. Recovery for the infant's suffering, though heritable, was not requested. Plaintiff was sedated and asleep when death occurred. She learned of the tragedy when she awoke several hours later and became hysterical. Later Dr. Dean prescribed valium for her nerves.

A mother was awarded $50,000.00 and the father $40,000.00 for the loss of a three month old son in Searcy v. Porter, 381 So.2d 540 (La.App. 2nd Cir. 1980). Parents of a stillborn were awarded $20,000.00 in Danos v. St. Pierre, 402 So.2d 633 (La.1981).

None of the cited cases are similar to the circumstances of this case. Plaintiff went through the ordeal of childbirth without her physician or his stand-in. She was aware the infant was in distress. She carried the fetus nine months in anticipation of a normal delivery and the expectation of motherhood. Mental anguish from this traumatic experience was evident and loss of future love is obvious. Considering all elements an award of $40,000.00 appears reasonable and appropriate.

For the reasons assigned above, the judgment of the district court dismissing plaintiff’s lawsuit as to Dr. Hackett is reversed and set aside. Judgment is hereby entered in favor of Carolyn Moran against Dr. Anthony Hackett in the amount of $40,000.00, plus legal interest from date of judicial demand until paid. The judgment as to Dr. Odell Dean and Flint-Goodridge hospital of Dillard University is affirmed. All costs are assessed against Dr. Hackett.

REVERSED IN PART; AFFIRMED IN PART.

      . This lawsuit pre-dates LSA-R.S. 40:1299.41 et seq., the medical review panel procedure which pertains to malpractice occurring after September 1, 1975.


author: KLEES, Judge.

text:
    Kevin M. KELLER v. Mrs. J. S. REDNOUR and Clifford D. Rednour.
    No. 12917.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 8, 1982.
    Camilo K. Salas, III, Michael R. Allweiss, Sessions, Fishman, Rosenson, Snellings & Boisfontaine, New Orleans, for plaintiff-appellant.
    Milton W. Janssen, New Orleans, for defendants-appellees.
    Before KLEES, BYRNES and CIACCIO, JJ.
   KLEES, Judge.

On October 7, 1978, Michael Rednour and Hanon Scallan committed a battery on Plaintiff, Kevin M. Keller. Keller timely filed a suit against both parties, and in due course a default judgment was obtained against them.

After judgment was rendered, the plaintiff Keller learned that Michael Rednour was a minor at the time of the battery and instituted this lawsuit against Michael Rednour’s parents, Clifford D. Rednour and Mrs. J. S. Rednour alleging that the parents were responsible for the tortious conduct of their minor son, and also that they were solidary obligors with their son and Scallon.

In response to the lawsuit, defendants filed exceptions of no right of action and prescription asserting that they were not solidary obligors with their son and the suit against them was filed one year and 88 days after the incident occurred. The trial court maintained the exception of prescription thereby dismissing the plaintiff’s suit.

The issue brought before us on this appeal is whether the district court erred in concluding that the defendants are not soli-dary obligors with their minor son, Michael Rednour.

Appellant argues that the defendants, although vicariously liable, are nonetheless solidary obligors and as such the timely suit filed against the minor interrupts the running of prescription as to the parents. Based upon the recent decision of Kern v. Travelers Ins. Co., 407 So.2d 2 (La.App. 4th Cir. 1981) writs denied Feb. 5, 1982, we must agree that his argument is correct.

The situation in Kern was very similar to that presented here. The only real difference lies in the fact that in Kern the plaintiff sued the parent and later sued the child who was then of majority. Plaintiffs filed suit against the notarially emancipated Michael Rednour and later filed suit against the parents. Of particular significance is the following language in Kern :

Our interpretation of Foster and Sampay leads us to conclude that the vicarious responsibility of the father for the delicts of his minor child creates an obligation whereby the father and child are each obligated for the same thing — total reparation of the damages to the victim. The victim can compel either the father or minor to compensate for the whole of his damages and payment by either exonerates the other. That being so, the requisites of C.C. Art. 2091 are met and the father’s vicarious liability under C.C. Art. 2318 is in solido with the minor. One consequence thereof is that citation served on one solidary obligor interrupts prescription as to all other solidary obli-gors. Kern v. Travelers Ins. Co., supra.

We have carefully considered appellee’s argument and authorities cited, but find that the authorities which they rely upon have been specifically or impliedly overruled by Sampay v. Morton Salt Company, et al, 395 So.2d 326 (La.1981) and Foster v. Hampton, 381 So.2d 789 (La.1980).

Accordingly, the judgment of the District Court maintaining the exception of prescription filed by defendants Mrs. J. S. Rednour and Mr. Clifford D. Rednour, is hereby reversed and set aside and this matter is remanded to the District Court for further proceedings.

REVERSED AND REMANDED.

      . Michael Rednour was emancipated by notorial act pursuant to L.S.A.-C.C. Art. 366 on June 22, 1977.


text:
    Posey BLOUNT, widow of Johnnie Blount, Jr., Individually and for the Use and Benefit of Her Minor Child, Patricia BLOUNT v. COOPER STEVEDORING CO., INC., Interocean Stevedoring, Inc., and Employers National Insurance Company.
    No. 12978.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 8, 1982.
    Rehearing Denied July 16, 1982.

      Claude D. Vasser, Jones, Walker, Waech-ter, Poitevent, Carrere & Denegre, New Orleans, for defendant-appellant.
    J. Stuart Douglass, New Orleans, for plaintiff-appellee.
    Before REDMANN, SCHOTT and KLEES, JJ.
   KLEES, Judge.

Johnnie Blount, Jr., the deceased, was a longshoreman who held two separate jobs, one with Cooper Stevedoring, Inc., and the other with Interoeean Stevedoring, Inc. On February 28, 1979 he began his workday at approximately 8:00 P.M. At this time he was working for Cooper Stevedoring and he and his partner, Johnnie L. Squire, unloaded 250 sacks of coffee from a container. After unloading the coffee sacks he and his partner were instructed to clean out a truck and to begin loading some flour onto the truck. While sweeping out the truck, Mr. Blount complained to his partner that he didn’t feel good. He took a Rolaid tablet given to him by another worker and thereafter obtained a slip from the office to leave so that he could be checked by a doctor.

Instead of going directly to the company doctor, Mr. Blount went home to rest and at approximately 4:00 P.M., he visited his personal physician Dr. Saeed Ahmed. Dr. Ahmed stated that Mr. Blount complained of pains in the lower chest and upper abdomen and of belching. Dr. Ahmed ordered an EKG and stated that the results of the test did not lead him to think that Mr. Blount was having or had a heart attack. Nonetheless, he prescribed nitroglycerin tablets for Mr. Blount and allowed him to leave without further instructions.

Later that evening at 6:00 P.M., Mr. Blount reported for work with Interocean Stevedoring Inc. His duties with Inter-ocean, Inc., on this evening were to act as a “hook-on man” which is considered to be light duty for a longshoreman.

Mr. Blount and Mr. Squire worked as “hook-up men” until 12:00 midnight. At this time the men began their lunch break. They returned for duty at 1:00 A.M., but were instructed to wait until some other men were finished performing another task. While seated and waiting for the other men Mr. Squire noticed that Mr. Blount was very quiet. When the other men returned Mr. Squire touched Mr. Blount on the arm and said “come on, we’re getting ready to go back to work”. It was at this point that Mr. Blount was determined to be dead.

An autopsy was performed and it was discovered that Mr. Blount’s death was caused by a myocardial infarction. Dr. Welsh who performed the autopsy testified that the onset of the heart attack was within 12-18 hours before the death. This would place the onset of the attack at or near the time the deceased complained that he was feeling ill, and while he was employed by Cooper Stevedoring Company, Inc.

Suit for Worker’s Compensation benefits was then filed against both employers. Immediately prior to the trial, Interocean and its insurer settled with the plaintiffs for $46,800 and the case proceeded to trial. Upon its conclusion, the trial judge then entered judgment against Cooper Stevedor-ing for one-half of the maximum death benefits and dismissed the third party claims of the defendants against each other. The trial judge concluded that Cooper and Interocean were liable in solido for compensation benefit and since Interocean had settled with the plaintiffs they were only entitled to one-half of the weekly death benefits in the judgment against Cooper.

Our courts have held without hesitation that heart attack is a compensable accident within the meaning of the La. Workmen’s Compensation Law. Roussel v. Colonial Sugars Co., 318 So.2d 37 (La.1975). The only pertinent factor is whether in fact, the heart attack occurred on the job or was caused or precipitated by the usual and customary actions, executions or other factors directly connected with the employment.

The fact that the deceased suffered a heart attack while on the job is not disputed. The appellant, however, argues that the deceased was not employed by Cooper when his attack occurred and therefore Cooper should not be required to pay death benefits.

The trial judge concluded that the deceased’s attack occurred while he was employed by Cooper and Interocean.

Dr. Welsh who performed the autopsy on the deceased testified that there was evidence of a myocardial infarction and that he could not have seen such evidence if the deceased had died within eight hours after his attack began. He then testified that the onset of the heart attack began 12-18 hours before Mr. Blount’s death. Dr. Phillips, an expert in Cardiology substantiated Dr. Welsh’s findings.

The issue presented on appeal is whether the deceased’s employment with Interocean was an intervening cause of his death which relieves Cooper from its duty in the payment of death benefits.

The appellant argues that the deceased’s work with Interocean was an intervening cause of Mr. Blount’s death and as such Cooper is not liable for payment of death benefits. In support of its claim the appellant cites the following language from Haughton v. Fireman’s Fund American Insurance Companies, 355 So.2d 927 (La.1978).

If an accident causes a disability from which a workman would have recovered except for further disability produced by a separate, intervening cause, there is no liability for compensation beyond the disability produced by the job connected accident. But here there is no evidence of an intervening cause. Nothing happened to Haughton after the accident, except his failure to recover. He did not suffer a new accident or disease. The disease he had when the accident occurred contributed to the injury itself.

Nonetheless, Haughton, supra, goes on to say that:

When there is an accident and a resulting disability without any intervening cause, it is presumed that the accident caused the disability. This simple guide plainly stated in Bertrand v. Coal Operators Casualty Co., 253 La. 1115, 221 So.2d 816 (1969) we affirmed in Johnson v. Travelers Insurance Co., 284 So.2d 888 (La.1973) and reaffirmed in Gradney v. Vancouver Plywood Co., 299 So.2d 347 (La.1974). The presumption is not irrebuttable but its effect is to shift the burden of proof to the defendant.

Defendants here were afforded the opportunity to present evidence concerning what they considered an intervening cause, that of the decedents work and ultimate death on the premises of the job at Intero-cean. Nonetheless, the trial court after considering this evidence, concluded that both jobs contributed to Mr. Blount’s death and we can find no manifest error in his findings.

An employer is liable for workmen’s compensation when the initial injury is aggravated by medical complications or a subsequent off the job injury, whether due to improper medical treatment or otherwise if the complications of the second accident are causally related to the on-the-job accident. Fields v. Sperry Rand Corp., 343 So.2d 339 (La.App. 2nd Cir. 1977), writ denied, 345 So.2d 902 (La.1977), writ denied, 345 So.2d 903 (La.1977); Carter v. Rockwood Ins. Co., 341 So.2d 595, and Deville v. Townsend Bros. Const. Co., 284 So.2d 110 (La.App.3rd Cir. 1973) writ refused, 286 So.2d 367 (La.1973).

We have additionally considered the recent decision of our Supreme Court in Carter v. Avondale Shipyards, Inc., on rehearing No. 80-C-2903, 415 So.2d 174, May 17, 1982, wherein the court refused to require contribution from a former employer whose working conditions might have contributed to the occupational disease which ultimately disables the workers. Nonetheless we distinguish Carter v. Avon-dale Shipyards, Inc., supra from the instant case, in that the decedent Johnny Blount, Jr. was employed by both Cooper and Inter-ocean at the time of his demise.

While on the job with Cooper the decedent’s attack began to manifest itself. His physician did not diagnose the attack and he did not advise Mr. Blount not to return to work. As a result the decedent returned to work in the early evening and thereby aggravated his condition causing him to sustain a massive myocardial infarction resulting in his death. While it is true that the decedent had an 85% chance of survival if he had not gone to work, the massive attack and his subsequent death were direct and foreseeable consequences of the onset of his attack while with Cooper. Since the massive attack was causally related to the onset of the attack while the decedent was on the job with Cooper it does not matter whether the decedent’s condition was aggravated by his own drive to support his family, his ignorance of his condition or the lack of proper medical advice and/or treatment. The causal connection between the onset of the decedent’s heart problem while he was employed with Cooper and the massive attack suffered by him 12-18 hours later is sufficient to hold Cooper and Intero-cean equally liable for payment of death benefits since the decedent’s employment with both contributed to his demise.

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

AFFIRMED.


author: CIACCIO, Judge.

text:
    Rudy MILLS v. Richard GANUCHEAU, et al.
    No. 12-916.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 8, 1982.
    Rehearing Denied July 16, 1982.

      Henry P. Julien, Jr., New Orleans, for plaintiffs-appellants.
    Louis A. Heyd, Jr., New Orleans, for defendant-appellee.
    Before KLEES, BYRNES and CIACCIO, JJ.
   CIACCIO, Judge.

This is an action for damages claimed to have been sustained by the plaintiff, Rudy Mills, as a result of the negligent acts of the defendant, Deputy Clerk Johnny Ohlsen, (sometimes referred to as Johnny Ohlsson), while in the employ of Richard Ganucheau, Clerk of Civil District Court. The district court, after a trial on the merits, rendered judgment in favor of the plaintiff, Rudy Mills, and against the defendants, Richard Ganucheau, Clerk of Civil District Court, and Johnny Ohlsen, Deputy Clerk, in the sum of $7,500.00, plus interest and costs. The defendants filed this suspensive appeal. We affirm.

The trial judge, in his lucid reasons for judgment, stated findings of fact and a recitation of the applicable law which serves as the basis for the judgment granted in favor of plaintiff. We adopt his reasons as our own.

The trial judge stated:

REASONS FOR JUDGMENT

“Plaintiff, Rudy E. Mills, filed a petition for damages against defendants, Richard J. Ganucheau, now Judge and formerly Clerk of the Civil District Court for the Parish of Orleans and Johnny Ohlsson, a Deputy Clerk of the same Court. It is alleged by plaintiff that he was arrested and imprisoned because Ohlsson failed to properly check the records of the Civil District Court before replying to a letter dated August 23, 1978 from Captain Albert M. Fried, of the Los Angeles Police Department inquiring as to the legal custody of the minor children.

The sequence of events is as follows:

On August 29, 1975 Vilma Allen Mills was awarded the care, custody and control of the minor children of her marriage to Rudy E. Mills, namely Rudy E. Mills, Jr., Alexander Mills and John Mills. This judgment was rendered in a suit for separation filed by Mr. Mills against Mrs. Mills entitled “Rudy E. Mills versus Vilma Allen, wife of Rudy E. Mills”, Docket No. 596-268, Division “F” of the Civil District Court.

In 1976 David Mills was born and some time later that year Mrs. Mills left for California, taking only the youngest child with her. The balance of the children remained in the physical custody of their father.

Mills then filed a suit for divorce against his wife, bearing Docket No. 77-95, Division “J” and on January 27, 1977 was awarded a judgment of divorce and the care, custody and control of the minor children, Rudy E. Mills, Jr., Alexander Mills and John Mills.

In 1977 Mills visited his ex-wife in California and brought the three children with him, namely, Rudy, Alexander and John. Following the visit Mrs. Mills would not permit the children to return to Louisiana with her former husband.

In the summer of 1978 plaintiff travelled to the State of California and brought all four children of the marriage home to New Orleans with him. Mrs. Mills then filed a child stealing complaint against Mills on August 13, 1978 furnishing the authorities with a copy of the judgment dated August 29, 1975. In investigating the complaint, Captain Albert M. Fried forwarded the following letter dated August 23, 1978 to the Clerk of the Civil District Court, to-wit:

‘Clerk of Civil District Court
421 Loyola Avenue
New Orleans, Louisiana 70112
Dear Sir:
This Department is currently conducting a criminal investigation regarding an act of child stealing. The involved parents are Vilma and Rudy S. Mills, both residents of the City of New Orleans.
It is necessary that this Department obtain certified copies of all court orders regarding custody of the minor children, Rudy, Jr., Alexander, John and David Mills. Our information has revealed that this matter was handled in Division “F”, Civil District Court for the Parish of Orleans, No. 596-268, Docket 5 on August 26, 1975. We also need any court orders handed down since that date.
Copies of these court documents will be used by the Los Angeles District Attorney for the purpose of resolving the current complaint.
This Department will greatly appreciate your attention to this matter, and ask that you send the documentation to Investigator W. J. LaBrie # 16130, Los An-geles Police Department, Southwest Special Investigations Team, 1546 W. Santa Barbara Avenue, Los Angeles, California 90062
Very truly yours,
DARYL F. GATES, Chief of Police ALBERT M. FRIED, CAPTAIN
Acting Commanding Officer, Southwest Area’

The letter was delivered to the defendant, Johnny Ohlsson, Senior Deputy Clerk of Docket No. 5 of the Civil District Court. This docket handles separations and divorces among other types of cases.

After checking the record of Case No. 596-268, Mr. Ohlsson typed across the bottom of the letter as follows:

‘The enclosed judgment is the only judgment rendered in the above named suite.
J. Ohlsson, Dy. Clerk’

Following receipt of this reply from Ohls-son, Detective William J. LaBrie swore out a complaint against plaintiff for child stealing. Thereafter, a warrant was issued for plaintiff’s arrest.

Plaintiff was arrested in New Orleans on the fugitive warrant on September 27, 1978 and was not released on bond until the afternoon of September 29, 1978. While plaintiff was in jail during this period Mr. Mills was served with a rule to change custody back to his ex-wife.

Custody of the minor children was again awarded to Mrs. Mills on September 29, 1978 while her ex-husband was incarcerated. Further, the plaintiff was unrepresented at the hearing with Wilfred McKee, attorney for plaintiff claiming he had a conflict in court dates on the 29th. Further, both McKee and Mills claimed they could not properly communicate about the matter with plaintiff confined in jail.

On October 13, 1978 plaintiff appeared in Court at the extradition hearing with counsel, McKee. McKee advised plaintiff to waive extradition and voluntarily to return to California to get the matter settled. Mills testified he waived extradition on advise of counsel, principally because the local judge indicated that under the criminal procedure in effect in this State, he could not consider the validity of the various judgments of custody rendered in this case. Additionally, plaintiff testified that he was without funds to further contest the proceedings and that the State of California would bear the cost of air transportation to that State if he waived extradition. Moreover, Mills testified that the matter had to be resolved and since the State of California had filed the charges he had been led to believe that the matter would have to be settled there.

Plaintiff was returned to California on October 31, 1978 where he remained in jail for two days until released in the custody of a Los Angeles attorney. The charges filed by the State of California against plaintiff were dismissed on November 15, 1978.

Plaintiff filed the instant suit for damages on October 30, 1979. Defendants filed a peremptory exception of prescription of one year, urging that the alleged cause of action occurred more than one year prior to the commencement of this action.

This Court overrules the defendants’ plea of prescription. Prescription does not run against one who is ignorant of the existence of facts that would entitle him to bring suit, as long as such ignorance is not willful and does not result from his neglect. Cordova v. Hartford Accident and Indemnity Co., 387 So.2d 574 (La.Sup.Ct.1980). This Court also holds that plaintiff did not discover until November 15, 1978 that the Los Angeles Police Department had mailed a letter to the Clerk’s Office in New Orleans and that Ohlsson had returned the letter with his notation contained thereon. It is also the conclusion of this Court that plaintiff’s failure to learn of the existence of the letter sooner was not the result of neglect or willful ignorance.

The Clerk of Court is the legal custodian of all of its records, and is responsible for their safekeeping and preservation. LSA— C.C.P. Art. 251. Further, the Clerk of Court is required to keep a docket of all cases of separation and divorce, with proper indices thereto. LSA — R.S. 13:1216. Additionally, Rule 5, Section 1 of the Rules of the Civil District Court for the Parish of Orleans, provides that the Clerk shall keep the several dockets required by LSA — R.S. 13:1216, in one room. Rule 6, Section 14 provides that the Clerk shall keep an index of the general docket and of each particular docket under LSA — R.S. 13:1216. The record reflects that since 1976 there has been maintained a card index for docket five cases listed alphabetically by plaintiffs and defendants and cross-indexed.

The above cited authority requires of the Clerk of Court that he have a complete and thorough knowledge of the dockets under his control. Furthermore, being the custodian of the records gives the Clerk the sole responsibility for disseminating requested documentation.

LSA-R.S. 44:32 prohibits the Clerk from making any inquiries of any person who applies for a public record beyond the purpose of establishing his authority. However, in this case, the Los Angeles Police specifically set forth their purpose in requesting the documentation.

Deputy Clerk Ohlsson testified that the Los Angeles Police could not have received the requested documentation from any other source. He also stated that he knew why the documentation was being sought. He further related that he knew separation and divorce proceedings are sometimes filed in separate records.

The Louisiana Code of Civil Procedure Article 251, provides that the Clerk of Court may issue a copy of any of the records over which he is the custodian. While the article does not require any specific legal duty on the part of the Clerk of Court, this Court feels that once he had undertaken this responsibility he is to be held to a standard of care mandated by Articles 2315 and 2316 of the Louisiana Civil Code pursuant to the circumstances of each case. This Court believes that these articles provide a broad ambit of protection for those persons damaged by negligent acts of misrepresentation of others. See Devore v. Hobart Manufacturing Co., 367 So.2d 836 (Sup.Ct.1979).

Actionable negligence results from the creation of maintenance of an unreasonable risk of injury to others, and the likelihood that harm may be caused is relevant in determining whether the risk is unreasonable. Guilbeau v. Liberty Mutual Insurance Co., 338 So.2d 600 (La.Sup.Ct.1976). The likelihood that harm may be caused was prominent in this case.

This Court feels that the information requested in Captain Fried’s letter, together with Mr. Ohlsson’s knowledge of the Clerk’s Office and accessibility of its records, should have put Ohlsson on notice that a more thorough search of the records was necessary.

Mr. Ohlsson further testified that he was aware of the possibility of criminal action being dependent on his response and that the Los Angeles Police Department was relying on him for pertinent information relative thereto.

It appears here that a reasonable standard of care requires that Ohlsson should have at least checked the index cards of the docket five suits.

This Court made a first hand inspection of these and within two (2) minutes found two index cards, one entitled “Rudy Mills v. Velma Mills’’ Docket No. 596-268 and another entitled “Rudy Mills v. Velma Mills”, Docket No. 77-95. Both of these cards were also cross-indexed for easy reference.

Therefore, this Court finds that defendant, Ohlsson, was negligent under the circumstances of this case.

Additionally, the evidence overwhelmingly supports a determination that Ohlsson was acting within the scope of his employment at the time he sent the requested documentation to the Los Angeles Police Department. As a Deputy Clerk of Court, Mr. Ohlsson is an employee of the Clerk of Court. The Clerk of Court at the time of the incident in question was Richard J. Gan-ucheau.

As a result of the negligence detailed above, defendant was required to spend a total of five (5) days in jail, was extradited to California and has a permanent felony arrest on his record.

This Court feels that an award in the sum of Seven Thousand Five Hundred and No/100 ($7,500.00) Dollars is fair for the damages sustained by plaintiff. Further, this Court feels that a higher award would be granted in this case except that plaintiff voluntarily waived extradition proceedings.”

In appealing this judgment defendants urged that the trial court erred in concluding that once the Clerk of Court answered the inquiry of the Los Angeles Police that he was held to a standard of care mandated by Articles 2315 and 2316 of the Louisiana Civil Code; that the court further erred in ruling that the letter from Los Angeles was clear and precise enough to have put defendants on notice to make the more thorough search; and, that the court erred in ruling that defendants did not meet the standard of care that would be reasonable under these circumstances. We find no merit in these assignments of error and hold that the trial court committed no manifest error in holding the defendants liable for their negligent acts. Further, a review of the record does not indicate that the trial judge was clearly wrong in his finding of facts and in his interpretation of the law. Canter v. Koehring, 283 So.2d 716 (La.1973) at 724 and Arceneaux v. Domingue, 365 So.2d 1330 (La.1978) at 1333.

DAMAGES

The defendants argue that the trial court’s award of $7,500.00 damages constitute an abuse of discretion. The individual circumstances of each case are controlling in a determination by the reviewing court as to whether a trial court’s award is excessive. Reck v. Stevens, 373 So.2d 498 (La.1979). Before an appellate court may disturb the award made by the trial court, the record must clearly reveal that the trier of fact abused his discretion in making the award, based upon the particular injuries sustained and their effect on the particular person injured. Perniciaro v. Brinch, 384 So.2d 392 (La.,1980): Reck v. Stevens, supra.

In this case the plaintiff was arrested, handcuffed, fingerprinted and photographed for future identification and transported cross country as a criminal suspect. He was imprisoned for a total of five (5) days. He also suffers the effects of having a permanent felony arrest on his record. These were injuries which resulted directly from the negligent actions of the defendants. Under these circumstances an award of $7,500 was not an abuse of discretion. The trial court did not err in its award of damages.

For the reasons assigned, the judgment of the trial court is affirmed. Costs of this appeal are assessed against the defendants-appellants.

AFFIRMED.

      . The Honorable Thomas C. Wicker, Jr. was appointed, by the Louisiana Supreme Court, to preside as judge ad hoc over the district court proceedings in this matter.


text:
    Harold E. SCHOLEGEL, Jr. and Samuel A. Scholegel v. Walter ROBINSON, Sallie T. Robinson and Allstate Insurance Company.
    No. 12960.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 8, 1982.
    Rehearing Denied July 16, 1982.
    Robert M. Johnston of Johnston & Du-plass, New Orleans, for defendants-appellants.
    Before KLEES, BYRNES and CIACCIO, JJ.
   CIACCIO, Judge.

This is an action for damages for personal injuries arising out of an intersectional collision. Defendants answered the petition denying the plaintiffs’ allegations and pleading contributory negligence. The case was tried by jury and, at the conclusion of the evidence, closing arguments were made by opposing counsel concerning both liability and quantum. No motions for directed verdict were made by either trial attorney but the trial judge, on his own motion, granted a directed verdict in favor of the plaintiffs on the issue of liability, removing the issue of contributory negligence from the jury’s deliberations and limiting those deliberations to the issue of quantum. The jury awarded damages in the amount of $7,500 to Harold E. Schloegel, Jr., the plaintiff-driver and $1,000 damages to Samuel A. Schloegel, a guest passenger. The defendants filed a suspensive appeal. Appel-lees did not answer the appeal nor did they file a brief in these proceedings.

The accident occurred on April 18,1980 at the intersection of St. Roch Avenue and Filmore Avenue. Defendant, Sallie Robinson, was proceeding South on St. Roch Avenue and, after passing the stop sign at the intersection of St. Roch and Filmore Avenues drove her vehicle across two lanes of traffic and a small median ground to the east bound lane of Filmore Avenue where her vehicle was struck at the passenger door by a vehicle being driven on Filmore Avenue by plaintiff, Harold E. Schloegel, Jr. It is alleged that the collision caused injuries to plaintiff and his guest passenger which are the subject of this suit.

Following closing arguments by both attorneys on the issues of negligence, contributory negligence and damages, the trial judge, ex proprio motu, rendered a directed verdict in favor of plaintiff on the issue of liability over the objections of attorney for defendants.

The single issue presented for review is whether the trial judge erred in directing a verdict, ex proprio motu, in favor of the plaintiff on the issue of liability, when no motion for a directed verdict was presented by either party.

In removing the issue of liability from the consideration of the jury, the district court reasoned as follows:

“And in the charge conference, the Court indicated that had a directed verdict been made timely, the Court would have granted it on the issue of liability and contributory negligence.
When the closing argument was conducted by Mr. Barker, he judicially confessed his client’s negligence to the jury, and rightfully so because Mrs. Robinson — and I commend her — was very honest and admitted her own negligence. The question of contributory negligence, in my opinion, was effectively removed by the judicial admission by counsel on behalf of his client.
It was then at that point that the Court exercised judicial leadership or its judicial discretion to render a directed verdict on the question of liability. Therefore, the Court did have within its discretion the right to direct a verdict under the circumstances as I have set forth.
Again, had the plaintiffs made a motion for directed verdict, I would have granted it, but when the defendant confessed or admitted liability, it was incumbent on the Court to do that; to direct liability on its own motion.
The Court refers to the directed verdict case of Ragas vs. Argonaut — Southwest Insurance Company, 4th Circuit; January 10, 1980; 379 So.2d 822, which sets forth the standard. And all of the cases are directed verdicts I have followed, particularly the language in the most — in the case of Rawls vs. Damare, and certainly there was in that case where virtually no factual dispute exists. Credibility determinations by the jury are not required. In such a circumstance, questions of the existence of the duty — violation of that duty to the defendant, assumption of risk or contributory negligence of the plaintiff are legal questions within the province of the judge who acts within his discretion in rendering a directed verdict from the legal inferences to do so deduced from undisputed evidence.
This Court is absolutely convinced that the evidence is undisputed that Mrs. Robinson was negligent and the plaintiffs were not, and so directed its verdict, and the authorities are now before you to check.” (Tr. p. 338-340.)

We have reviewed the cases cited by the district court and we find that they do not address the procedural issue presented by this case. Rawls v. Damare, 377 So.2d 1376 (La.App., 4th Cir., 1979), writ. ref. 380 So.2d 72, and Ragas v. Argonaut Southwest Insurance Co., 379 So.2d 822 (La.App., 4th Cir., 1980), aff. 388 So.2d 707 (La., 1980), merely discuss the substantive legal issue of the standard to be utilized after a motion for a directed verdict is properly before the court. Rawls v. Damare, supra. In both of the above cited cases the motions for directed verdicts were made by a party and not by the trial judge on his own motion.

The procedural issue, of whether a court may act on its own motion to direct a verdict, has been squarely addressed by this Court, in the decision of Pete v. New Orleans Public Service, Inc., 402 So.2d 807 (La.App., 4th Cir., 1981). In the Pete decision, the trial judge dismissed the jury and directed a verdict, on its own motion, in favor of the defendant. This Court vacated the trial court judgment and remanded the matter to the district court. The reasoning in that case was correct and we adopt it in this matter:

On appeal plaintiff argues that the trial court erred in granting a directed verdict because the defendant failed to move for a directed verdict and the trial court entered the verdict on its own motion. C.C.P. Art. 1810 reads as follows:
“A. A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order of the court granting a motion for a directed verdict is effective without any assent of the jury. B. In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.”

The rationale of the Pete case is further supported by the fact that Code of Civil Procedure Article 1810, which gave rise to directed verdicts in civil cases, was derived from the Federal Rules of Civil Procedure, Rule 50(a). This Federal Rule likewise states that the motion for a directed verdict shall be brought by a “party.”

Therefore, it is the conclusion of this Court that the trial court erred when it acted ex proprio motu in rendering a directed verdict in favor of the plaintiff on the issue of liability.

For the reasons assigned, the judgment of the district court granting a directed verdict on its own motion is reversed, and the matter is remanded for further proceedings which are consistent with this judgment. Costs of this appeal are to be paid by the plaintiff.

REVERSED and REMANDED.

      . This issue is in dispute. The defendant testified that she stopped for the stop sign. The plaintiff testified that it was his opinion that the plaintiff did not stop for the stop sign.