author: HALL, Judge.

text:
    Thomas Lamar WILSON, Plaintiff-Appellant-Appellee, v. AETNA CASUALTY AND SURETY COMPANY, et al., Defendants-Appellants.
    No. 14560.
    Court of Appeal of Louisiana, Second Circuit.
    June 8, 1981.

      Troy E. Bain and Pringle & Herzog by R. Perry Pringle, Shreveport, for plaintiff-appellant-appellee, Thomas Lamar Wilson.
    Lunn, Irion, Switzer, Johnson & Salley by Richard H. Switzer and Jack E. Carlisle, Jr., Shreveport, for defendants-appellants, Bob W. Herren, Don Waldrop and Aetna Cas. and Sur. Co.
    Before HALL, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   HALL, Judge.

This is an executive officer suit arising out of a 1974 industrial accident in which the fingers of plaintiff’s right hand were crushed between the ram and the base of a corrugating press as plaintiff was pushing a sheet of metal through the press. Pursuant to a jury verdict, judgment in the amount of $175,000 was rendered in favor of plaintiff, Thomas Lamar Wilson, against defendants, Bob W. Herren and Don Waldrop, the president and the office manager of Herren Metals, Inc., and Aetna Casualty & Surety Company, their liability insurer.

All parties appealed, defendants contending the judgment is erroneous on liability and plaintiff contending the amount of damages awarded is inadequate. Defendants argue on appeal that the accident was caused by plaintiff’s negligence in inserting his hand into the operating machine, that the trial court erred in allowing evidence of a prior accident, and that defendants had delegated responsibility for the safety of the company employees to the shop foreman.

Plaintiff argues that the award of $175,-000 is entirely inadequate to compensate plaintiff, who lost four fingers of his right hand, for general damages and for past and future loss of earnings and earning capacity. Plaintiff also contends the trial judge erred in refusing to give a requested jury instruction relating to loss of earning capacity.

We amend the judgment to increase the award to $252,779.15, and otherwise affirm. Facts

Herren Metals, Inc. was a business that manufactured and fabricated sheet metal products. The business was started in 1966 by the defendant, Bob Herren, who was the principal stockholder, president, and operating head of the company. Defendant, Don Waldrop, was vice president of the company and served as office manager or general manager. Alton B. Jean was general superintendent or shop foreman. Jean was originally named as a defendant but was voluntarily dismissed from the case by the plaintiff during the progress of the trial.

Company policy was to have employee safety meetings every Monday which were attended by Jean and sometimes by Herren and Waldrop. There is no evidence that the company had any other formal safety programs or procedures. Although authority for day-to-day operational safety was delegated to Jean, the evidence, particularly the testimony of Jean, establishes that Waldrop had responsibility in this area and that Her-ren had and exercised the final authority relating to safety and, especially, to equipping the machinery with safety devices.

The business used several pieces of heavy machinery in its production activities, one of which was a corrugating press machine. The function of the machine is to corrugate flat sheets of metal. The press is about 12 feet long and is operated by an operator who stands at the right end of the machine and a helper who stands at the left end of the machine. The operator and the helper place a sheet of metal on notched arms extending out from the press. There is a control panel at the operator’s end of the press which contains a starter button by which the operator starts the motor. The corrugating mechanism of the press is activated by the operator pressing a pedal with his foot. When the pedal is pressed a ram with a die attached comes down with considerable force and makes contact with the metal which lies on a die at the base of the press, corrugating the metal sheet. While the pedal is pressed the ram moves down and up in a repetitive, continuous fashion. As the ram moves up the operator and helper manually advance the sheet of metal into the press one notch at a time. When the ram makes a corrugation at the last notch the operator takes his foot off the pedal and the ram stops in the up position. It is then necessary for the operator and the helper to manually move the sheet of metal farther into the machine so that the last or final corrugation can be made. In order to do this it is necessary that the men put a substantial portion of their fingers into the machine. Although Herren testified that the operation can be performed without putting the fingers into the machine, the testimony of all of the other witnesses who worked with the machine is to the contrary and it was firmly established that this was the customary manner in which the operation was performed. After the sheet of metal is placed in this final position the operator' again presses the pedal and the ram comes down and makes the final corrugation. A worker behind the machine then pulls the corrugated sheet out of the press and the operation is repeated with another sheet.

At the time of the accident plaintiff had been working in the shop more than three years and was thoroughly familiar with the operation of the machinery, including the corrugating machine. On the day of the accident he was working as the helper on the corrugating machine which was being operated by Louis Longorio. He had been working for several hours and had assisted in corrugating several hundred metal sheets. As a sheet was being completed, plaintiff thought the motor had stopped and was pushing the metal sheet into the final position, with his fingers inside the machine. The ram came down and plaintiff’s fingers on his right hand were crushed between the ram and the sheet of metal resting on the base of the press. The operator of the press, Longorio, testified they were at or near the last step in the operation but that he could not remember whether he had taken his foot off the pedal and stopped the motor at the time the accident happened.

Evidence was offered at trial, over defendants’ strenuous objection, that a similar accident on this corrugating machine had occurred about one year earlier. Both the operator and the helper who was injured in the previous accident testified. The helper’s fingers were crushed when the ram came down as he was placing the sheet of metal into the final position. The helper testified the ram had stopped when he started the final operation, but then the ram came down. The operator on that occasion testified that although he took his foot off the pedal and the ram should have stopped, it did not stop and came down one more time. The operator testified that on several occasions the ram had failed to stop as it should have when he took his foot off the pedal.

A safety engineer and inspector for the defendant insurance company testified that after the previous accident he made strong recommendations to Herren that safety devices be installed on the machine. Among his recommendations was the installation of an electric eye which would stop the machine when a worker’s hands were between the ram and the base. Four or five other safety devices were also recommended. The recommendations were made in August and September, 1973 and the inspector made follow-up visits to the company in January and March 1974 at which time none of the recommendations had been put into effect. The accident happened on May 23, 1974.

It was established that after the first accident and after his discussion with the insurance company inspector, Herren contacted an electrical company to make arrangements for the installation of an electric eye safety device on the machine. However, the device had not been installed on the date of plaintiff’s accident, some 13 months after the prior accident, and was not installed until several months after plaintiff’s accident.

Dr. Paul N. Hale, Jr., a professor at Louisiana Tech University and an industrial engineer with considerable experience in industrial safety, testified that the corrugating machine was extremely dangerous. He testified as to various safety devices that are available and in use on similar presses in other industrial establishments. The witness described several safety devices, including some of those described by the insurance company inspector, which would make it difficult or impossible for the ram to operate while a worker’s hands were in the machine or which would have made it unnecessary for the worker to put his fingers into the machine to complete the corrugating operation.

Liability of the Defendants

An employer owes a duty to an employee to provide the employee with a reasonably safe place to work and has a duty not to require the employee to work under conditions that expose the employee to an unreasonable risk of harm. Where this duty is delegated by an employer to an officer, agent or employee, the officer, agent or employee is individually liable for a breach of this duty through personal fault, that is, a breach of a personal duty owed to the injured plaintiff which specifically has caused the plaintiff’s injuries. If the general responsibility of the defendant officer, agent, or employee has been delegated with due care to some responsible subordinate he is not himself personally at fault and liable for the negligent performance of this responsibility unless he personally knows or should know of its nonperformance or malperformance and has nevertheless failed to cure the risk of harm. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Miller v. Employers Mutual Liability Insurance Company, 349 So.2d 1353 (La.App.2d Cir. 1977).

The evidence in this case clearly establishes that the corrugating press was an extremely dangerous machine. The evidence establishes that it could have and should have been equipped with safety devices. There was a breach of the duty to provide the plaintiff with a safe place to work because he was exposed to an unreasonable risk of harm.

The evidence also establishes that the defendants had been delegated the responsibility for discharging the employer’s duty to the employee in regard to safety. In this relatively small business enterprise Herren and Waldrop had personal knowledge of the details of the shop operations and individual responsibility for decision-making in connection with these operations. Herren in particular was the officer who had specific authority and exercised that authority on decisions relating to the purchase of equipment and the equipping of machinery with safety devices. He owed a personal duty to the plaintiff and breached this duty by failing to equip the dangerous machine with available safety devices even though he had personal knowledge of the danger involved. This breach of duty was the specific cause of plaintiff’s injury.

It was not established that the defendants’ responsibility for safety and, particularly, their responsibility for the purchase of safety equipment had been delegated to the foreman, Jean. The officer — defendants, particularly Herren, retained this responsibility, were personally at fault, and are liable for the negligent performance of this responsibility.

Evidence of Prior Accident

The prior accident occurred fairly close in point of time to the accident involved in this case. It involved the same machine and occurred in an almost identical manner. Evidence of the prior accident was admissible to show the prior malfunction of the machine, the dangerous nature of the machine, and the knowledge of the defendant-officers of the dangerous condition.

Defendants rely on Miller v. Employers Mutual Liability Insurance Company, supra, where evidence of prior accidents and injuries was held to be inadmissible when it was not established how, when, or where the other injuries occurred or that they were in any way related to the accidents at issue. This court noted in the Miller case, however, that evidence of prior injuries may, under limited circumstances, be admissible to show notice of an existing particular hazardous condition, where the prior injuries are closely related in circumstance to the injury or hazard at issue. The circumstances of the prior accident in the instant case meet the criteria of Miller, and evidence of the prior accident was properly admitted.

Contributory Negligence

Defendants argue that the plaintiff was contributorily negligent in placing his fingers into the machine while it was operating because he well knew the danger of doing so. Defendants point out that the machine had a sign on it warning workers to keep their hands clear. Defendants cite the Miller case where recovery was denied in an executive officer suit on a finding that the plaintiff was contributorily negligent.

At the time of the accident plaintiff was performing a duty which his employment specifically required in the manner in which he had been trained by his supervisors. He thought the machine had been turned off by the operator. One of the inherent dangers of the machine was a lack of communication or .coordination between the operator and the helper. The evidence does not establish that plaintiff was negligent. The probability is that the accident was caused by the danger inherent in the operation being conducted, involving as it did coordination and timing between the operator and the helper. A workman is not held to be contributorily negligent because he does work assigned to him under dangerous conditions for which his employer is responsible and at which assignment he must work or suffer dismissal. Coco v. Winston Industries, Inc., 330 So.2d 649 (La. App. 3d Cir. 1976), reversed as to quantum 341 So.2d 332 (La.1977); Payton v. Travelers Insurance Company, 373 So.2d 1324 (La. App. 4th Cir. 1979), writ denied 377 So.2d 119 (La.1979).

Jury Instruction — Loss of Earning Capacity

The plaintiff contends that the trial judge erred in failing to give a requested instruction to the jury relating to loss of earning capacity. Plaintiff argues that the failure to give the requested instruction resulted in the jury failing to make an adequate award for this item. Plaintiff further contends that, in any event, the jury’s award is so low as to amount to an abuse of discretion and that the award should be increased by this court.

The requested instruction read as follows:

“Damages should be estimated on the injured person’s ability to earn, rather than what he actually earned before the injury.” * * * “Earning capacity in itself is not necessarily determined by actual loss; damages may be assessed for the deprivation of what the injured plaintiff could have earned despite the fact that he may never have seen fit to take advantage of that capacity. The theory is that the injury done to him has deprived him of a capacity he would have been entitled to enjoy even though he never profited from it monetarily.”

The instructions given by the trial judge related to loss of earnings and earning capacity were as follows:

“Such items of damages as are capable of mathematical demonstration must be proved with exactness. The amount of damages for such items as loss of past or future wages or future medical or other expenses are speculative and cannot be calculated with mathematical exacti-tudes, but should be determined by the jury in its sound discretion and considering all the circumstances in the amount as is just to both litigants and not unduly oppressive to either.
“If the plaintiff’s injury does not totally disable him but it does lessen his earning ability, then you may award such damages as you feel will compensate him for the loss of his earning ability.”

The requested instruction was one of six special charges requested by the plaintiff relating to loss of future wages and earning capacity. The requested instruction is a fair statement of the law, being verbatim excerpts from a recent authoritative supreme court decision. See Folse v. Fakouri, 371 So.2d 1120 (La.1979). We find, however, that the charge given by the trial judge is also a fair statement of the law relating to loss of future wages and earning ability, and adequately instructed the jury on these items of damage. Viewing the charge to the jury as a whole, if all of the plaintiff’s requested instructions relating to these items of damage had been given there would have been too much weight and emphasis on these particular items. In instructing the jury the trial judge need not include every requested instruction, even though the requested instructions are fair statements of the law; indeed, the trial judge needs to strike a balance so that no one issue before the jury is unduly emphasized. In this instance, the trial judge properly exercised his discretion in formulating the jury instructions as a whole and the instructions given on loss of future wages and earning capacity were adequate.

Amount of Damages

Plaintiff seeks an increase in quantum contending that the amount awarded by the jury is so inadequate as to be an abuse of the jury’s discretion in setting quantum. The jury awarded damages in the sum of $175,000; having been instructed to deduct $22,220.85, the amount plaintiff had received in workman’s compensation benefits, the jury’s total award was $197,220.85. The jury did not attribute any specific sum to general damages or to loss of earnings, but indicated only the lump sum award. Plaintiff contends that, at a minimum, he should receive $150,000 in general damages to compensate him for his pain and suffering and for permanent disfigurement. This would leave only $47,220.85 to compensate plaintiff for loss of past and future earnings. Plaintiff contends that even if only $100,000 of the total award is attributed to general damages, that leaves only $97,220.85 for loss of past and future earnings and for loss of earning capacity which, he contends, is woefully inadequate in view of the evidence he presented regarding these items of damage.

The following facts gleaned from the evidence and the testimony are pertinent to the issue of quantum.

The plaintiff, born in 1952, is a native of Shreveport who graduated from Fair Park High School in 1970 where he was very active in sports. He attended Northwestern University where he was enrolled in the wildlife management curriculum. Throughout his school career, plaintiff was generally an average or “C” student. After attending college for eight months, plaintiff dropped out of school and returned to Shreveport. He secured a job with E. L. Burns Company, a company specializing in the manufacture of prefabricated walkway covers and decorative louvres. He left this job to work for Herren Metals. Plaintiff was 22 years old at the time of the accident and led a very active life, engaging in several recreational sports, such as tennis, softball, and water skiing.

Plaintiff’s accident occurred between 6:00 and 6:30 p. m., May 23,1974. He was taken by ambulance to the hospital where his fingers were amputated. Plaintiff remained hospitalized for eight days. For a month after his release, plaintiff saw the doctor once a week on a outpatient basis; plaintiff then saw the doctor about every two weeks until August 1974. Plaintiff returned to work at Herren Metals about six weeks after the accident where he did odd jobs until his dismissal in the fall of 1974. He was still experiencing some pain and had not yet adjusted to the loss of his fingers. In December 1974, plaintiff underwent additional surgery to remove webbing between what remained of his fingers. This operation, which required a hospital stay of three days, left him with greater movement in the nubs of his fingers.

Plaintiff testified that because he was right-handed he had to learn how to do many things with his left hand after the accident. He initially had problems shaving, combing his hair, buttoning his shirt, eating, and tying his shoes. He tried to learn to write with his left hand, but failed; he then tried to write with his damaged right and, after much practice, succeeded. Plaintiff can no longer play softball, but has adapted himself to engage in some sports in spite of his disability. He manages to play tennis by switching his racket from hand to hand. He manages to water ski by using a double-handled rope, placing the right handle behind his right wrist. Other than the physical handicap caused by the accident, plaintiff has problems meeting people and shaking hands and suffers some embarrassment because of his disfigurement.

From the fall of 1974 until the fall of 1975 plaintiff remained unemployed. He then entered nursing school and worked weekends as an orderly at a local hospital. Between semesters plaintiff worked several odd jobs including working as a janitor. Plaintiff left nursing school in the fall of 1976 because he felt it was not working out satisfactorily. Plaintiff remained unemployed, although he searched for work on his own and also tried to obtain work through an employment agency. In March 1977, plaintiff obtained employment as an assistant warehouse manager. At time of trial in October, 1980, plaintiff was still so employed and was making $6.45 an hour. His earnings for 1979, with overtime, were $16,282.44.

Plaintiff began working for Herren Metals, Inc. in 1971. At the time of the accident, he was making about $3.75 per hour. Plaintiff testified it was his intention prior to the accident, to continue to work in the sheet metal industry and to eventually become a journeyman sheet metal worker after apprenticeship with the sheet metal workers union.

To substantiate his claim for loss of past and future earnings and for loss of earning capacity, plaintiff offered the testimony of two expert witnesses. Dr. Richard Galloway, an expert in vocational rehabilitation and employment rehabilitation counseling, testified that, although plaintiff is doing very well in his current job, he now lacks the versatility which would allow him mobility in the labor market. He testified that the traditional crafts, such as pipefit-ting, carpentry, and the like, are closed to plaintiff because he no longer has the finger dexterity that is required for those types of jobs. Dr. Galloway further testified that it was probable, based on plaintiff’s motivation and ability, that if plaintiff had not lost his fingers he could have advanced through the union training program and become a journeyman sheet metal worker. If plaintiff had become a sheet metal worker, he could be earning $12.65 an hour as of the time of trial.

To establish the amount of damages sustained because of impaired earning capacity caused by the accident, plaintiff presented evidence consisting of the estimated amount of earnings he could reasonably have been expected to receive from the date of the accident until the time of trial and from the time trial over the remainder of his working life, minus the amount of earnings plaintiff had actually received since the accident and could be reasonably expected to receive in the future. Dr. Luvo-nia Casperson, an expert in economics, estimated plaintiff’s loss of past earnings, i. e., earnings he would have received from the time of the accident until the time of trial, at $58,664.64. Dr. Casperson arrived at this figure by taking the $3.75 an hour plaintiff was making in 1974, by presuming that plaintiff’s hourly wage would increase each year until he would be making $12.65 an hour at time of trial (the economist determined this to be equal annual increases of $1.50 per hour) and multiplying these figures to obtain an estimate of what plaintiff’s earnings would have been over the six-year period from the accident until the time of trial. The wages that plaintiff had actually made were then subtracted from this total figure to produce the figure of $58,664.64.

To calculate the loss of future earnings, the economist first determined from statistical information published by the Department of Labor that plaintiff at age 28, his age at the time of trial, has a work-life expectancy of 34.1 years until he reaches the age of 62. She then calculated the difference between the hourly wage that plaintiff was making at time of trial, $6.45 an hour, and what he would have been making as a journeyman sheet metal worker, $12.65 an hour, the difference being $6.20 an hour. The economist then took this difference in the hourly wage and calculated plaintiff’s projected loss of earnings over the remainder of his expected work life. In order to reach a more accurate projection, the economist applied three factors in calculating plaintiff’s loss of future earnings: (1) an annual inflation factor of 4 percent (which the expert noted was a very conservative figure); (2) an annual productivity factor of 2.8 percent; and (3) a discount factor of 5.5 percent. Based upon these calculations Dr. Casperson determined that plaintiff’s loss of future earnings over the remainder of his work-life expectancy equaled $530,879.48. All of Dr. Casperson’s calculations were based on a 40-hour work week, 52-week work year.

In Schexnayder v. Carpenter, 346 So.2d 196 (La.1977), the court held that the appropriate procedure for testing whether the jury abused its discretion by making an excessive award is to determine whether the award can be supported under the interpretation of the evidence most favorable to the plaintiff which reasonably could have been made by the jury. The converse of this is also true: in determining whether the trier of fact abused its discretion by making an inadequate award, the evidence must be viewed in the light most favorable to the defendant.

That plaintiff would have become a journeyman sheet metal worker if the accident had not occurred is speculative to some extent. The evidence shows that to join the sheet metal workers union, an applicant must meet certain qualifications, must be employed in a union shop, and must serve a four-year apprenticeship. Although plaintiff testified that it was his intention to join the sheet metal workers union and the vocational rehabilitation expert testified that plaintiff had the ability to do this, the fact is that plaintiff had made no move in that direction at the time he was hurt. However, plaintiff had been working in the sheet metal industry for approximately four years and it is likely that he would have pursued his intention to join the union.

With regard to the economist’s calculations of plaintiff’s loss of earnings, we deem the following considerations to be pertinent. First of all, given plaintiff’s ability and motivation, which were taken into account in anticipating that he could have and would have advanced to the position of journeyman sheet metal worker, it should also be anticipated that plaintiff will advance steadily beyond his present position as assistant warehouse manager. It could well be anticipated that the gap between what plaintiff actually earns in the future and the pay scale of a journeyman sheet metal worker will narrow in future years.

Additionally, we must consider that the economist’s projections are based on 52 full work weeks per year. This does not take into account vacation time or periods of unemployment. There is evidence in the record that a typical union sheet metal worker’s employment fluctuates with the demand for that type of work, seniority, and other factors. On the other hand, however, the economist did not take into account the possibility of overtime, which sheet metal workers ordinarily work when employed.

Finally, it could well be argued that the 5.5 percent discount figure used by the economist in making her calculations, while approved in a number of cases, is low in view of the average returns on investments over the past few years. The higher the discount percentage used, the lower the present value of future earnings.

Loss of future earning capacity cannot be calculated with mathematical certainty. Philippe v. Browning Arms Co., 395 So.2d 310 (La.1981). The testimony of the economist is entitled to weight, but, since it is necessarily based on uncertain future events, is not conclusive. A reasonable trier of fact could discount the totals arrived at by the economist to a considerable extent for the reasons discussed above, and perhaps others, but not to the extent necessarily implicit in the $175,000 award. The amount of damages awarded should compensate plaintiff for the difference between his ability to earn immediately prior to the injury and his ability to earn after the injury. Coco v. Winston Industries, Inc., supra. It cannot be doubted that plaintiff’s earning capability has been substantially impaired because of the loss of the fingers of his dominant hand.

Viewing the evidence and the calculations of plaintiff’s economist in the light most favorable to the defendant as might be found by a reasonable trier of fact, and taking into account the considerations expressed above, we conclude that $200,000 is the lowest figure which could be awarded for loss of earning capacity, past and future. Applying the same approach, we conclude that $75,000 is the lowest award that could have been made for general damages, i. e., pain, suffering, disfigurement, and permanent disability. Crediting the $22,220.85 compensation paid against the total award of $275,000 to which plaintiff is entitled in accordance with the joint stipulation, the judgment should be increased to $252,779.15.

The judgment of the trial court, rendered in accordance with the jury verdict, is amended to increase the award to $252,-779.15 and, as amended, the judgment is affirmed. Costs of the appeal are assessed to defendants-appellants.

Amended, and as amended, affirmed.


source: Caselaw Access Project

author: PRICE, Judge.

license: Public Domain

text:
    Mickey JOHNSTON, Plaintiff-Appellee, v. Sandra McCULLOUGH, Defendant-Appellant.
    No. 14561.
    Court of Appeal of Louisiana, Second Circuit.
    June 8, 1981.
    En Banc. Rehearing Denied July 15, 1981.

      John Makar, Natchitoches, for defendant-appellant.
    James R. Hatch, Homer, for plaintiff-ap-pellee.
    Before PRICE, HALL and MARVIN, JJ.

       Jones, J., recused.

   PRICE, Judge.

This appeal of a judgment ordering the change of custody of a thirteen-year-old boy from the mother to the father is concerned primarily with whether the trial court gave improper weight to the expressed preference of the child in determining that it was in his best interest to be allowed to live with his father. We find no abuse of discretion and affirm the judgment for the reasons assigned.

Plaintiff, Sandra Johnston McCullough, was divorced from Mickey Johnston on March 26,1973, by an uncontested Arkansas decree. Custody of their five-year-old child Kelly was awarded to Sandra. Shortly thereafter Sandra married Van McCullough and they moved to Florida where they presently reside in Brandon, a suburban area near Tampa. Mickey Johnston has also remarried and continues to live in Homer, Louisiana, with his present wife and her five-year-old daughter.

Since the divorce and her remarriage, although no specific visitation privileges were provided in the divorce decree, Sandra McCullough has been very considerate in permitting Kelly to spend approximately two months of each summer and part of the Christmas holidays with his father in Homer. He was also permitted to spend some time each summer with his maternal grandparents in Baytown, Texas.

This action was filed by Mickey Johnston near the end of Kelly’s regular summer visit in Homer in 1980.

Johnston alleges that his primary reason for seeking the change of custody is to comply with his son’s repeated request to be allowed to live with him in Homer where he could enjoy the recreational and social advantages offered in this small town, semi-rural environment. He also alleges he desires the custody of Kelly so that he can assist Kelly in overcoming an apparent learning disability which has been of concern to both parents during Kelly’s school years in Florida.

In support of his position that it was in the best interest of Kelly for the change of custody, Johnston presented the testimony of a clinical social worker, Donald D. Heae-ock of Shreveport, who had been consulted by Johnston for advice in view of the boy’s request to be allowed to live in Homer.

After hearing the testimony of Kelly, in which he confirmed that it was his desire to be allowed to live with his father, and the testimony of Heacock to the effect that Kelly’s desire was sincere and should be given recognition, the trial court found it in the boy’s best interest to order a change of custody to his father, subject to specified visitation privileges with the mother and maternal grandparents.

On this appeal the mother’s assignments of error may be summarized as follows: (1) that the court ordered a change of custody from the parent who had previously been awarded custody without any showing that it would be detrimental to continue custody with that parent; (2) that the court failed to consider, in conjunction with the boy’s best interest, the length of time he had lived with his mother and the effect a change in custody would have on the parties; (3) that the trial court improperly permitted and considered the testimony of the expert witness, Heacock, since his opinion was based solely on consultation with Kelly and the Johnstons; (4) and that the court improperly gave weight to the boy’s preference to live with his father when there was evidence to show the preference was induced by expensive gifts, expanded privileges, and less discipline.

In custody cases the standard for appellate review is to give great weight to the determination of the trial judge whose determination should not be overturned unless there is a clear abuse of discretion. Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (La. 1971); Cleeton v. Cleeton, 383 So.2d 1231 (La.1980); and Bordelon v. Bordelon, 390 So.2d 1325 (La.1980). The Supreme Court abrogated the prior “double burden” rule in change of custody matters and ruled that the singular test is what is in the best interest of the child as determined from the totality of the circumstances. Bordelon v. Bordelon, supra.

It is apparent from the lengthy reasons for judgment given by the trial judge that he gave careful consideration to all pertinent factors in determining the best interest of the child. His reasons also reflect that he gave consideration to the fact that the mother and her present husband loved the child and had provided proper care and guidance for Kelly during the last seven years that he was in their home. In giving critical weight to the expressed desires of this thirteen-year-old boy, the court’s reasons in pertinent part are as follows:

This Court was impressed with Kelly’s understanding of questions propounded and his ability to think through and articulate his responses. He very humbly, but firmly, expressed his wishes to stay in this environment with his father, reflecting, at the same time, no animosity toward his mother or step-father, but on the contrary. He stressed his ability to get around to see friends in this more rural environment, his enjoyment of responsibilities here with a horse, mule, etc., relationships with his grandparents, riding a trail bike, having a greater degree of “freedom” and participating on the 7th-8th grade football team at the school he attends, Claiborne Academy.
His principal, Mr. Larry White, spoke highly of his efforts academically, indicating that his prior education had not prepared him for the level of competition at the Academy, but that they felt Kelly was overcoming that deficiency. He was tutored here during the summer by a special education teacher, Mrs. Vicky Car-rigan, who testified that he had improved significantly as a consequence.
Nevertheless, as a result of an “apparent” learning disability, his mother and stepfather had him examined several years ago in Florida, receiving a vague diagnosis of dyslexia, and moved him through several schools attempting to help him overcome the disorder. Mr. White, Mrs. Carrigan and Rev. Heacock testified that Kelly did not suffer dyslexia. The evidence before this Court indicated that he did not suffer dyslexia; thus, it would appear that his problem was something else.
In that connection, there was unusual maternal concern evidenced in Court by Mrs. McCullough about her son being given a shotgun by the father, the father permitting him to ride a mini-bike, a trail bike, a tractor on the farm, and driving an automobile a few blocks along the back streets of Homer. All except the latter are usual (and generally beneficial) experiences of young men like Kelly. The Court had the distinct impression that Mrs. McCullough was unduly overprotective of Kelly and nervously provocative about potential hurt to him via normal boyhood activities and attitudes. . . .

The conclusions reached by the trial judge as stated above are supported by the evidence and appellant has not shown on this appeal that the trial court committed reversible error or abused its discretion under the current jurisprudential rules.

Although it might appear harsh from the custodial parent’s standpoint to change a custody decree that has extended for a period of seven years without a showing that the custodial parent has not provided proper care and guidance, it is nevertheless within the discretion of a trial court to take such action if the court finds other factors present which would outweigh the usual policy to maintain the child in a stable environment. Bordelon v. Bordelon, supra.

Appellant complains of the court’s consideration of the testimony of the social worker, Heacock, even though his opinion was formulated without any consultation with appellant or her husband. Trial courts are accorded great discretion in whether a witness is qualified to testify as an expert. Benedic v. N.O.P.S.I., 389 So.2d 871 (La. App. 4th Cir. 1980). In this instance Heac-ock clearly indicated his opinion was based primarily on his interviews and tests of Kelly, and that an interview with appellant and her husband would not have altered his opinion. Heacock testified that his main concern was to detect whether Kelly’s preference to live with his father was based on any inducement by the father or vindictiveness toward the mother, neither of which was found by him.

While there is evidence that the father has been generous to the boy, these instances have been consistent throughout the period since divorce and as found by the trial judge were not shown to have been designed to improperly influence the boy to ask to remain with him. Neither can we say that the trial court abused its discretion in finding that the additional privileges and relaxation of discipline were of sufficient import to preclude the court from giving recognition to the desire of the child.

The degree of weight to be accorded the express desire of a child to live with a particular parent must necessarily be judged by the age and maturity level of the child, as well as all other pertinent factors. In this instance the trial court found Kelly to be a very mature and sincere thirteen-year-old boy whose preference should be given substantial weight, and that it was in his best interest not to deny his request to live with his father. We find this determination to be clearly within the court’s discretion. See Genac v. Power, 211 So.2d 408 (La.App. 1st Cir. 1968) and Sharpe v. Sharpe, 328 So.2d 893 (La.App. 1st Cir. 1976).

In the alternative that this court affirms the judgment ordering a change of custody, appellant has asked that the visitation privileges fixed by the trial court be modified to extend her the same privileges which she voluntarily allowed the father during the time she had custody of Kelly.

While we are reluctant to interfere with this phase of the trial court’s discretion, the request made by appellant appears to be fair and equitable under the circumstances. Kelly has indicated he desires to maintain a close relationship with both parents. Therefore, he should be allowed to spend the same sixty-day period each summer with the mother as he previously was allowed with his father while under the custody of his mother.

For the foregoing reasons, the judgment appealed is amended to provide that the period for summer visitation of Kelly Johnston with Sandra McCullough be increased from thirty days to sixty days; the judgment as amended is affirmed. Costs of this appeal are assessed equally.


author: MARVIN, Judge.

text:
    Dr. Irving G. KENNEDY, Jr., and Carole Sargent Kennedy, Plaintiffs-Appellants, v. Lloyd W. COON, Defendant-Appellee. Lloyd W. COON, Plaintiff-Appellee, v. Hamp H. HANKS, Defendant-Appellee.
    Nos. 14563, 14564.
    Court of Appeal of Louisiana, Second Circuit.
    June 8, 1981.
    En Banc. Rehearing Denied July 15, 1981.

      Bruscato & Loomis by Anthony J. Brus-cato, Monroe, for plaintiffs-appellants, Dr. Irving Kennedy and Carole S. Kennedy.
    William A. Hargiss, Monroe, for plaintiff/defendant-appellee, Lloyd W. Coon.
    Hamp H. Hanks, in pro. per.
    Before PRICE, HALL and MARVIN, JJ.
   MARVIN, Judge.

In this appeal of a summary judgment foreclosing by ordinary process on real estate under a vendor’s lien mortgage, we find material factual issues and other discrepancies which make summary judgment inappropriate and reverse.

The vendor’s lien was created in a credit sale of real estate by Coon to Hanks in 1973 providing for payment in annual installments on March 25 of each year. Kennedy acquired the property from Hanks’ vendees in 1976 and assumed the obligations of the credit deed.

Kennedy paid the annual installments in 1977, 1978 and 1979 by delivering payment to Coon. The credit sale did not provide where payment was to be made but gave Coon’s address as Route 1, Box 58, Choud-rant, Louisiana.

On March 29, 1980, Kennedy telephoned Coon to learn Coon’s mailing address and informed Coon that he was mailing checks for the 1980 installments. Coon gave Kennedy the address, Route 2, Box 388, Choud-rant, Louisiana 71227, and did not otherwise comment or indicate an intention to accelerate and mature the note. Kennedy mailed the checks to Coon on March 29, 1980, and Coon received them on or before April 1, 1980. Coon returned the checks to Kennedy in a transmittal letter dated April 4, 1980.

About April 1, 1980, Coon mailed and Kennedy received notice of Coon’s intent to accelerate and mature the note according to its terms.

About April 10, 1980, Coon offered Kennedy in writing to accept less than the installment payment if Kennedy would agree to increase the rate of interest on the note from 7 percent to 15 percent.

On April 18,1980, Kennedy filed a declaratory judgment action against Coon.

On May 14, 1980, Coon filed the foreclosure action against Hanks. Kennedy intervened in the foreclosure action and the two actions were consolidated.

Hanks did not answer or appear and a preliminary default was not entered against him.

The trial court granted Coon’s motion for summary judgment in the consolidated actions without naming who the judgment was against. In Coon’s action, the summary judgment was in favor of Coon for the balance due on the note and ordered foreclosure of the property under the lien, and in Kennedy’s action the summary judgment simply rejected Kennedy’s demands.

A judgment cannot be rendered against a defendant who has not been defaulted and who has not appeared or answered. Bickford v. Lutz, 339 So.2d 1268 (La.App. 1st Cir. 1976). See also CCP 3722 and Spencer v. Collins, 338 So.2d 148 (La. App. 2d Cir. 1976).

Summary judgment will not be allowed where genuine issues of material fact exist. CCP 966; Simmons v. City of Lake Charles, 368 So.2d 1167 (La.App. 3d Cir. 1979). The validity and effect of Kennedy’s depositing the checks in the mail on March 29, 1980, Coon’s exercise of the option to accelerate and mature the note and the question of Coon’s acquiescence or consent by silence to accept the late payment and of Coon’s failure to object to Kennedy’s mailing the checks, in the telephone conversation of March 29, 1980, present genuine issues of material facts which can only be resolved at a trial. See Guichard v. Grennup, 187 So.2d 516 (La.App. 4th Cir. 1966). See also Chapman v. Capri Constn. Co., 248 So.2d 101 (La.App. 4th Cir. 1971).

Summary judgment is reversed at Coon’s cost and these cases are remanded for further proceedings.


text:
    Rhelda Scharf RYAN, Plaintiff-Appellee, v. John Michael RYAN, Defendant-Appellant.
    No. 14565.
    Court of Appeal of Louisiana, Second Circuit.
    June 8, 1981.

      Hudson, Potts & Bernstein by W. Craig Henry, Monroe, for defendant-appellant.
    Blackwell, Chambliss, Hobbs & Henry by James A. Hobbs, West Monroe, for plaintiff-appellee.
    Before PRICE, HALL and MARVIN, JJ.
   PRICE, Judge.

Defendant, John Michael Ryan, appeals a district court judgment which orders him to pay to plaintiff, Rhelda Scharf Ryan, alimony pendente lite and other temporary maintenance. The sole issue on appeal is whether the trial court’s award constitutes an abuse of discretion. Being unable to say that it does, we affirm.

After trial of a rule for alimony pendente lite, defendant was ordered to pay $1,500 monthly to plaintiff. Plaintiff was granted the right to continue occupancy of the former community residence and the use of a Chevrolet Corvette automobile. Defendant was additionally ordered to pay the monthly mortgage payment of $469.75 on the house; the property taxes of $56.25 per month; and the insurance of $83.00 per month on the house. Defendant has appealed contending the total amount he has been ordered to pay is excessive, and that he does not have sufficient means to pay this amount.

The record shows that the parties were married in 1975 and physically separated in July 1980. There are no children of the marriage. At the time of the hearing on the rule for alimony pendente lite, plaintiff was living in the matrimonial domicile and defendant was residing with his parents. Plaintiff was working one day per week as a dental hygienist at the net rate of $56.32 per day. She submitted an estimated monthly expense list in the amount of $3,372.85.

The defendant was employed as a general manager of the family owned automobile dealership in Monroe, Louisiana, and was given a “draw” of $2,500 per month against an annual salary of 5% of the net profits of the company. This amounted to approximately $80,000 in 1979. He had been paid approximately $34,000 by Ryan Chevrolet through September 30, 1980, at which time he was relieved of his duties by his father, the company president. Defendant testified that he was receiving interest income from loans to Ryan Chevrolet and two savings accounts. Defendant submitted a monthly expense list based on anticipated expenses in the event he left his parents’ home and rented an apartment.

Defendant sought to show that adverse economic conditions in the automobile business had resulted in a decline of the net profits of Ryan Chevrolet from 1979. Jim Myrick, business manager for the company, estimated that defendant’s income for 1980 based on projected profits would be $38,000 if he were paid for the months of November and December. In accepting these figures, the trial court based its award on an estimated net income of $27,000 for 1980. We note that this net income figure is based on the same percentage of deductions previously applicable to defendant’s income and does not take into consideration the federal tax deductions available for payment of court ordered alimony.

Alimony pendente lite may be allowed the claimant spouse if that spouse has insufficient income for maintenance pending the outcome of litigation. The amount allowed is to be proportioned to the needs of the claimant spouse and the means of the other spouse. La.C.C. Art. 148. The trial court is vested with a wide discretion in applying these standards and the award will not be disturbed unless there is a clear abuse of that discretion. Lewis v. Lewis, 329 So.2d 778 (La.App.2d Cir. 1976).

Defendant contends that he is unable to pay the maintenance ordered since it amounts to approximately $25,000 annually, and thus consumes most of his estimated net income for 1980.

While the monthly payments may seem to be large in proportion to defendant’s stated income, it is also true that defendant’s income is not the sole criterion in a determination of his means within which he is to satisfy his alimentary obligation to his wife. The word “means” as used in La.C.C. Art. 148 refers not only to income but to any resources from which the wants of life may be supplied and the entire financial condition of the husband must be examined to determine this. See Lewis, supra.

In the instant case defendant’s financial condition was somewhat difficult to determine in a specific dollar amount. During the marriage this couple had become accustomed to a somewhat high standard of living which was sustained in large part by a rather generous expense account with defendant’s employer. In defendant’s capacity as general manager of the family’s automobile dealership, the trial court apparently felt that he would continue to have the benefit of this expense account, use and maintenance of an automobile, and other accommodations which have been extended him in the past.

Although defendant was not employed at the time of trial, the record substantiates plaintiff’s contention that this was a result of defendant’s own volition. Defendant had left Monroe on August 25, after the initiation of this lawsuit, for a hunting trip to Canada and Colorado and did not return until the first of November. His testimony indicates that his expenses on these two trips amounted to approximately $2,000. While he was in Colorado defendant testified that he worked as a guide on a friend’s ranch without pay. When he returned to Monroe, he discovered that he had been relieved of his duties at Ryan Chevrolet by his father. Evidently, the only obstacle at the time of trial to his resuming his duties with the company was defendant’s refusal to accede to his father’s policy implementations. We think it is incumbent upon defendant in view of his obligations to his wife that he resolve these differences of opinion with his father and resume his duties. We note that defendant’s projected income for 1980 upon which the trial court based its award did not include income he was capable of earning and apparently would have earned in the month of October had he not taken the extended hunting trip.

The trial judge acknowledged that his decision was influenced by the fact that defendant was employed by a family owned business in which he had access to a generous expense account in addition to other accommodations not easily expressed in dollar figures. It is reasonable to consider these factors in arriving at a fair figure which of course is subject to modification for changed circumstances.

We are convinced the trial court examined defendant’s entire financial condition in arriving at a figure which would as nearly as possible satisfy the needs of plaintiff in a manner proportionate to the means of defendant. We cannot say that in so doing he clearly abused the discretion accorded him in alimony determinations.

For the reasons assigned, the judgment appealed is affirmed at defendant’s cost.


text:
    Harold L. JOHNSTON, Plaintiff-Appellant, v. MOREHOUSE PARISH POLICE JURY, Defendant-Appellee.
    No. 14569.
    Court of Appeal of Louisiana, Second Circuit.
    June 8, 1981.

      McLeod, Verlander & Dollar by Robert P. McLeod and Johnny E. Dollar, Monroe, for plaintiff-appellant.
    James E. Yeldell, Asst. Dist. Atty., Bas-trop, for defendant-appellee.
    Before HALL, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   HALL, Judge.

Plaintiff filed suit to have the local option election for Ward 2 of Morehouse Parish held on October 29, 1979, invalidated on the basis of alleged irregularities in election procedures. The four propositions permitting sale of alcoholic beverages within the ward were overwhelmingly rejected by the voters. In the trial court, plaintiff urged four irregularities as grounds to set the local option election aside. The trial court rejected plaintiff’s demands and he appeals. We affirm.

On appeal, as in the trial court, plaintiff argues that four irregularities occurred during the election process which should invalidate the election: (1) that there was not attached to the petition requesting the calling of the election a sworn verification showing the day, month, and year the petition was filed with the police jury as required by LSA-R.S. 26:586(A); (2) that the local option election was not separately called and held as required by LSA-R.S. 26:582, but was held in conjunction with other elections; (3) that one of the official voting commissioners attempted to influence the votes of two voters who cast their ballots in the election, contrary to the provisions of LSA-R.S. 18:1462 C; and (4) that the commissioners were not selected in compliance with LSA-R.S. 26:593 which requires they be selected in a manner so as to give, as nearly as possible, equal representation to the proponents and opponents of the propositions to be voted on.

Plaintiff operates a community grocery store located in Ward 2 of Morehouse Parish. On May 14, 1979, the Morehouse Parish Police Jury issued plaintiff a license to sell alcoholic beverages containing not more than 3.2 percent alcohol by weight. On June 28, 1979, a local option election petition was filed with the Morehouse Parish Registrar of Voters requesting a local option election in Ward 2. The petition was received by the registrar of voters in accordance with LSA-R.S. 26:585 and was filed with the police jury of Morehouse Parish. The police jury accepted the filing of the petition by the following notation: “Received in Jury Office July 3, 1979. E. A. Greer Sec-Treasurer.” On August 13, 1979, the police jury adopted a resolution calling for the local option election to be held in conjunction with the general election on October 27, 1979. The election was held and the official results, promulgated on October 30, 1979, reflected overwhelming rejection of all four of the local option propositions.

LSA-R.S. 26:586 A requires that the governing authority with whom the petition is filed by the registrar of voters attach to the petition its sworn verification showing the day, month, and year the petition was filed with it. The secretary-treasurer of the Morehouse Parish Police Jury did not attach the sworn verification required by the statute and plaintiff argues that this failure to comply with the statute should invalidate the election. The trial court determined that the lack of a sworn verification attached to the petition was not sufficient basis upon which to invalidate the election.

LSA-R.S. 18:1401 C provides:

“A person in interest may bring an action contesting any election in which any proposition is submitted to the voters if he alleges that except for irregularities or fraud in the conduct of an election the result would have been different.”

The failure to comply with the mandatory provisions of LSA-R.S. 26:586 A is not an irregularity which substantially affected the results of this local option election. In Kelly v. Village of Greenwood, 363 So.2d 887 (La.1978), it was held that an error in the date upon which the police jury called a local option election was not an irregularity which would affect the result of the election; therefore, the court found that the error did not require the invalidation of the local option election. The voters of Ward 2 overwhelmingly voted to make their ward “dry” and the failure of the secretary-treasurer of the police jury to attach a sworn verification of the date of the petition is not an irregularity which substantially affected the results of this election. The certification which was attached to the petition provided substantial compliance with the statute in that it did contain the date upon which the governing authority received the petition.

Plaintiff argues that the trial court erred in finding that the fact the local option election was held in conjunction with a multitude of other elections did not violate LSA-R.S. 26:582. That statute provides:

“Upon petition of not less then twenty-five percent of the qualified electors residing in any parish, ward, or any incorporated municipality the governing authority shall order a referendum election to be held to determine whether or not the business of manufacturing, producing, rectifying, distilling, blending, using, storing, distributing and selling alcoholic beverages, shall be conducted and licensed therein.
“In the case of such an election held on other then a parishwide basis the election shall be separately called and held, and the result separately binding for each incorporated municipality, and for the unincorporated balance of the ward. In the case of an election called on a parishwide basis the result shall be binding on the entire parish.
“No such election shall be held for the same subdivision oftener then once in every two years.”

The statute does not indicate that a local option election must be held at a separate time from other elections. Rather this statute requires that a local option election be separately called and held for each incorporated municipality, and for the unincorporated balance of a ward. Additionally, LSA-R.S. 18:1300, subd. A(l) expresses clear approval for the holding of an election in which a proposition is to be submitted to the voters in conjunction with an election for a public official. See also LSA-R.S. 18:402 F which establishes the dates on which an election on a proposition may be held; most of these dates are also dates on which a general election or primary election for public officials may be held. Plaintiff’s argument that a local option election must be held at a separate time from all other elections is without merit.

Plaintiff also argues that Earline Brown, one of five election commissioners for Ward 2, wrongfully urged two voters to vote against the four propositions permitting the sale of alcoholic beverages in Ward 2, in direct contravention of LSA-R.S. 18:1462 C. The cited statute prohibits any election commissioner from attempting in any manner to influence any voter to vote for or against any propositions being voted on in an election being held in the polling place where such commissioner serves. At trial, plaintiff offered the testimony of two voters who testified that Mrs. Brown urged them to vote against the four propositions. However, both voters testified that the solicitation had no influence on the way they cast their ballots. Even if the alleged solicitation had influenced these two voters, this would not have changed the results of the election in which the voters by an overwhelming majority voted the ward “dry.” Therefore, this alleged irregularity did not affect the outcome of the election. See LSA-R.S. 18:1401 C, quoted above.

Plaintiff’s final argument is based on LSA-R.S. 26:593 which provides:

“The parish board of supervisors shall appoint three commissioners and one clerk to preside over the election at each polling precinct. These appointees shall be qualified electors and residents of the precinct in which they serve. In making the appointment the board shall endeavor to give equal representation, as nearly as possible, to the proponents and opponents of the propositions to be voted upon.”

It was established through testimony and stipulations in the trial court that four of the five election commissioners for the only precinct in Ward 2 signed the petition seeking the local option election. Plaintiff, therefore, argues that there was not equal representation as required by § 593. It was further stipulated at trial, however, that the plaintiff did not request any particular commissioner or commissioners to serve; nor, on the other hand, was he invited or solicited to do so. It was established through the testimony of one of the members of the election board of supervisors that the election commissioners were chosen by lot out of a group of about six or seven applicants and that no attempt was made to get equal representation of both sides of the issue. The evidence in the record does not establish that there was any improper conduct involved in the selection of the election commissioners which had any effect on the result of this election. Therefore, plaintiff’s argument in this regard has no merit.

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

Affirmed.


author: FRED W. JONES, Jr., Judge.

text:
    Level EALY, Plaintiff-Appellant, v. Herbert SUMRALL, Administrator, Department of Employment Security, State of Louisiana and Sun Furniture Company, Defendants-Appellees.
    No. 14571.
    Court of Appeal of Louisiana, Second Circuit.
    June 8, 1981.
    Northwest Louisiana Legal Services by Allan Ray Harris, Shreveport, for plaintiff-appellant.
    Willie D. Maynor, Baton Rouge, for defendant-appellee, Department of Employment Security.
    Before HALL, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

An unemployment compensation claimant appeals a district court judgment affirming a denial of benefits by the Board of Review of the Louisiana Division of Employment Security. We reverse and remand.

According to the record the claimant had worked for Sun Furniture Company as a truck helper and warehouse helper for about 14 years. His usual work week was from Monday through Saturday, with Wednesday off.

Claimant failed to appear for work on Monday, April 2, 1979 and also on the following day. Upon his return to work on Thursday, the claimant was discharged, allegedly for being absent without permission and without giving proper notice, by a manager-trainee who had recently entered the business as a partner.

Claimant’s application for unemployment compensation benefits was denied by the agency, the appeals referee and the board of review, based upon the finding that he was discharged for misconduct connected with his employment. The district judge affirmed the ruling of the board of review, stating in his written reasons that claimant was “legally fired.”

One basis for disqualifying an individual from receiving unemployment compensation benefits is a finding by the administrator that “he has been discharged for misconduct connected with his employment.” La. R.S. 23:1601(2).

Our jurisprudence has defined “misconduct” under the cited statute in part as “an act of willful or wanton disregard of the employer’s interest; a deliberate violation of the employer’s rules.” Gastinell v. Lockwood, 393 So.2d 907 (La.App. 4th Cir. 1981); Pilgrim Manor Nursing Home, Inc. v. Gerace, 337 So.2d 660 (La.App. 3rd Cir. 1976); Atkins v. Doyal, 274 So.2d 438 (La.App. 1st Cir. 1973).

The employer has the burden of establishing the disqualifying misconduct of the employee by a preponderance of the evidence which, of course, must be competent. Caldwell v. Gerace, 378 So.2d 1045 (La.App. 2d Cir. 1979); Gastinell v. Lockwood, supra; Dorsey v. Administrator, 353 So.2d 363 (La.App. 1st Cir. 1977).

In this case the employer was represented at the hearing before the appeals referee by its general manager, George Restovich. This witness testified that he was on vacation when the claimant was discharged. Therefore, he could only present hearsay testimony, related to him by the manager-trainee who did the firing, concerning the circumstances surrounding claimant’s discharge from his employment. Restovich obviously did not consider that the claimant had committed any flagrant violation of company rules, explaining that he was willing to rehire the discharged employee except “that I would be doing something that I left a man in charge to do.”

Claimant, who only had a fifth grade education, testified that his grandchildren from Kansas came in unexpectedly for a visit on Sunday night. He acknowledged missing work the next day without giving prior notice. However, he stated that he went into the store on Tuesday to pick up a refrigerator for his home and while there explained to the manager-trainee:

“I told him my kids went to Kansas City, and they didn’t have but 3 days here and I wanted to be with ’em ’cause they didn’t have nowhere to stay.”

As pointed out in Banks v. Adm. of Dept. of Employment, 393 So.2d 696 (La.1981), “the word ‘misconduct’ in LSA-R.S. 23:1601 is used to connote intentional wrongdoing. .. . Thus, an employee can be unsatisfactory to the employer without being guilty of disqualifying misconduct. An intent-to do wrong must be present.”

The primary issue posed by this appeal. is whether the record shows that the employer discharged its burden of proving the claimant’s disqualifying conduct by a preponderance of the evidence. We find it significant that the general manager, who was the employer’s sole representative at the appeals referee hearing, obviously did not believe that the claimant had committed an intentional wrong in failing to appear for work without giving prior notice. Further, if the manager-trainee had considered this a serious infraction of company rules it seems that he would have fired the claimant when he saw him at the store on Tuesday rather than waiting until later. In view of these factors, we conclude that the employer did not discharge its burden of proving the claimant’s disqualifying conduct by a preponderance of the evidence.

For these reasons we reverse the judgment of the district court and remand this matter to the Board of Review for entry of an order declaring claimant to be eligible for such benefits as the law provides, all in accordance with this opinion.

       The record contains a letter written by Resto-vich to the involved state agency on May 9, 1979 stating that the claimant was discharged “in a fit of temper” by the person left in charge while Restovich was on vacation and that the writer disagreed with the determination of disqualification.


author: JASPER E. JONES, Judge.

text:
    Phillip THOMAS, Jr., Plaintiff-Appellant, v. McINNIS BROS. CONSTRUCTION, INC., et al., Defendants-Appellees.
    No. 14572.
    Court of Appeal of Louisiana, Second Circuit.
    June 8, 1981.
    En Banc. Rehearing Denied July 15, 1981.

      Brown, Williams & Tucker by Jack A. Williams, Shreveport, for plaintiff-appellant.
    Mayer, Smith & Roberts by Mark A. Goodwin, Shreveport, for defendants-appel-lees.
    Before HALL, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   JASPER E. JONES, Judge.

Plaintiff, Phillip Thomas, Jr., appeals a judgment in this worker’s compensation case awarding him $8,114.91 for medical expenses, penalties and attorney’s fees against his employer, Mclnnis Brothers Construction, Inc., and its insurer, Rock-wood Insurance Company. Defendants answer the appeal asking that the awards of medical expenses, penalties, and attorney’s fees be reversed.

Plaintiff injured his back on July 17, 1979 while operating a jackhammer for Mclnnis on the Strand Theater project. The next day plaintiff went to see Dr. Gordon Mead, an orthopedic surgeon. Dr. Mead diagnosed plaintiff as having an acute thoracic and lumbar sprain. He admitted plaintiff to Highland Hospital for bed rest and traction on July 27, 1979. Plaintiff was discharged on August 2, 1979, but was still experiencing pain. Dr. Mead admitted plaintiff to the hospital on August 14th to have a mye-logram performed. No abnormalities were reflected by the myelogram. While at the hospital, plaintiff was seen by Dr. Kenneth Gaddis, a neurologist, who found plaintiff’s neurological examination to be normal. Plaintiff was discharged on August 20th with a final diagnosis of lumbosacral strain. Dr. Mead believed that on August 22nd plaintiff could return to work. Dr. Mead opined that plaintiff could do all the work required of him, including use of the jackhammer.

Upon receipt of the information from Dr. Mead that plaintiff could return to work, defendant ceased compensation payments. Defendant paid plaintiff compensation benefits of $141 per week through August 28th.

On August 23, 1979, plaintiff went to see Dr. Matthew Green, an orthopedic surgeon. Dr. Green diagnosed a probable lumbosacral sprain and recommended that plaintiff go see Drs. Osborne and Phillips at the Pain Center. Dr. Green made the referral to the Pain Center because his examination disclosed very little findings to justify plaintiff’s complaint of back and leg pain.

Plaintiff went to see Dr. Donald Ray Smith, a neurosurgeon, on September 5, 1979. Dr. Smith saw no reason that plaintiff could not return to work, and no reason for any limitations on plaintiff’s work.

Plaintiff was admitted to the Pain Center on September 30, 1979. He was discharged from the Pain Center on October 26, 1979 with an order of limited work duty for the next ninety days (no lifting of objects heavier than 20 lbs., no prolonged bending or stooping).

Plaintiff filed this suit for worker’s compensation benefits on April 30, 1980, asking that he be recognized as permanently and totally disabled.

The trial court, in a lengthy written opinion, found that plaintiff did not establish he was disabled so as to be entitled to additional weekly compensation benefits. The trial court held that defendants had properly stopped the worker’s compensation payments on August 28, 1979, and that plaintiff was not entitled to additional weekly payments. The trial judge found the $5,079.60 hospital expenses incurred at the Pain Center to be necessary expenses for which defendants were liable. The trial court found defendants were arbitrary and capricious in failing to pay this bill and assessed penalties and attorney’s fees.

The issues on appeal are (1) is plaintiff entitled to weekly benefits after August 28, 1979? (2) is plaintiff entitled to the medical expenses incurred at the Pain Center? (3) were defendants arbitrary in not paying the bill from the Pain Center and therefore is plaintiff entitled to penalties and attorney’s fees? and (4) is the $2,000 attorney fee excessive?

PLAINTIFF IS ENTITLED TO WORKER’S COMPENSATION BENEFITS FROM AUGUST 28TH THROUGH OCTOBER 26, BUT IS NOT ENTITLED TO ANY FURTHER BENEFITS.

The trial judge in his written reasons analyzed in detail the testimony of plaintiff’s examining and treating physicians from date of his injury through September 25th and summarized his findings as follows:

“The incident occurred July 17, 1979, according to plaintiff. As of September 25, 1979, plaintiff had been examined by three orthopedic surgeons, one neurologist and one neurosurgeon. None of them, according to our understanding of their testimony, found anything on which they could medically rely in substantiating plaintiff’s complaints of pain. To the contrary, his treating orthopedic physician, Dr. Mead, had released him on August 22, after extensive examination and treatment, as being able to return to his regular duties. The last examining physician, Dr. Smith, had pronounced plaintiff able to return to his regular duties on September 5 and reaffirmed that on September 24.”

We find the testimony of these physicians fully supports the trial judge’s conclusions with regard to their examinations and treatment of plaintiff.

The trial judge made the following correct factual finding with regard to plaintiff’s course of treatment in the Pain Center:

“At the suggestion of Dr. Green, who had been unable to find any justification for plaintiff’s complaints, plaintiff was accepted at the Shreveport Pain Center, which is physically located in Doctors Hospital and is apparently operated by Dr. Phillip Osborne, a general practitioner who has specialized in the field of chronic pain for several years, and Dr. James Phillips, a psychiatrist. While the Center is located in the hospital, the participants in the program are not in actual need of hospitalization as that term is generally used, but they are apparently there primarily for observation and testing. For example, plaintiff was required to leave the hospital and return to his home each weekend. Plaintiff remained under the observation of Drs. Osborne and Phillips from September 30 to October 26, when he was discharged to return to work, but with light duty being specified for 90 days.”

The plaintiff in brief does not assign as error the trial judge’s evaluation of the testimony of the three orthopedics, the neurosurgeon, or the neurologist, but rather relies upon the testimony of Drs. Osborne and Phillips to support his claim for additional compensation.

The trial judge gave an extensive evaluation of the testimony of Drs. Osborne and Phillips in his reasons for judgment concerning their treatment of plaintiff between September 30 and October 26, as follows:

“However, upon a careful study of their testimony, we conclude that neither doctor has stated that plaintiff could not perform all of his duties, including use of the jackhammer, but that they recommended avoidance of the latter because of a possibility, of an injury which might occur and due to plaintiff’s mental state it might be more difficult to cure his physical problem in the future. In short, both doctors found plaintiff to be a hypochondriac and, indeed, both came very close to calling him a malingerer. The possibility of future difficulty is speculative at best. Neither found any physical disability. Both found that plaintiff had a motivation problem which was essentially connected with the financial reward which might be generated as a result of this lawsuit. This was also referred to as secondary gain by the doctors. The upshot of all of this is that again we had medical testimony which failed to substantiate plaintiff’s claims or complaints, but doctors who repeatedly stated they were unable to justify those complaints. In fact, we read Dr. Osborne’s and Dr. Phillips’ testimony as doubting the validity of plaintiff’s complaints.
In summary, the best that we can draw from the testimony of Drs. Osborne arid Phillips is that plaintiff has an emotional problem which appears to be of a hypochondriac nature and which is also affected by his desire for economic gain. Neither doctor suggests that plaintiff cari not perform the physical duties which he formerly engaged in as a laborer. Dr. Phillips, however, expressed concern that plaintiff might receive an injury to his back and this would make it ‘twice as hard the second time around’, but this would be purely because of his emotional problems and not because of any physical or organic problem (T.62). It did not matter to Dr. Phillips whether the emotional problems stemmed from plaintiff’s personal life or from whatever cause. He simply concluded as follows:
A. I do not recommend that he return to manual labor because, as I have previously stated, he has the emotional make-up, so that if he ever injures his back again he will aggravate it with emotional problems.
Q. And the source of those emotional problems, Doctor, doesn’t it matter? You don’t have any idea what the source of those problems is?
A. No sir. (Tr. 63, 1.14-21)

We must conclude that Drs. Osborne and Phillips have really added nothing to what had already been said by virtually every doctor who had seen plaintiff, i. e., there is no physical reason why he could not return to the duties of his regular employment as a laborer. They say, however, that while he is not disabled to work, should he sustain an injury, it might become disabling because of his motivational problems. Based on this, we are unable to say that plaintiff has established that he is in fact disabled, even partially, so as to be entitled to additional compensation benefits beyond those which have already been paid to him.”

We find the trial judge’s evaluation of the testimony of Drs. Osborne and Phillips to be substantially correct and to be a fair evaluation of the totality of their testimony relating to the condition of plaintiff at the time of his discharge on October 26, 1979. However, we find that the trial judge omitted from his written reasons the finding of Dr. Osborne during the early period of plaintiff’s hospitalization that plaintiff had a difference of 5% temperature in the right and left leg. Dr. Osborne believed this indicated a sympathetic reflex problem caused by the myoligamentous strain. Dr. Osborne testified:

“This can represent soft tissue change. It can represent some neurological change from injury that might be creating a reflex dystrophy. Because of these findings consulation was obtained with anesthesia. And, since orthopedic evaluation had been within normal limits, we felt that the only possible physical thing the patient could have should be alleviated with the use of interthecal steroids and/or regional block. So, consulation was obtained with anesthesia, and this procedure was done. After this procedure the temperature changes were not present.
afe * * sje * sfe
And we felt that the only physical abnormalities that had been present at the time of evaluation were corrected by anesthesia.” (Tr. 7.60).

We conclude that this physical abnormality which Dr. Osborne treated and corrected, and which he believed related to plaintiff’s injury of July 17, 1979, supported the trial judge’s finding that plaintiff’s hospitalization of September 30 to October 26 was a necessary medical service within the contemplation of LSA-R.S. 23:1203.

Plaintiff contends in brief that he is disabled because he is having pain due to an emotional problem. He contends the pain has a “psychiatric basis” which is related to his on the job injury. He argues that the testimony of his psychiatrist, Dr. Phillips, establishes his disability based upon this mental condition.

In Victoriana v. Orleans Parish Sch. Bd., 346 So.2d 271 (La.App.4th Cir. 1977), the court recognized the compensability of disability caused by a disabling mental condition relating to on the job physical injury:

“Regarding the second contention, it is now our settled jurisprudence that recovery may be had in compensation cases for disability resulting from a mental condition. The condition must be proven, as any other disabling injury, by a preponderance of the evidence, and it must be shown that the disability was causally connected to the work related accident. In such cases the court must proceed with utmost caution and exercise extreme care in view of the nebulous characteristics of the condition, and the possibility of the symptoms being easily feigned; the evidence in these cases should be scrutinized carefully and every precaution taken to guard against unjustified claims.” Id. at 273.

See also Jackson v. International Paper Company, 163 So.2d 362 (La.App.3d Cir. 1964); Elliott v. Insurance Company of North America, 159 So.2d 313 (La.App.2d Cir. 1963).

These cases require the plaintiff to establish with clear and convincing evidence the existence of a disabling mental condition and plaintiff here has completely failed to meet this burden of proof. While there are isolated statements in Dr. Phillips’ testimony to support plaintiff’s contention, the totality of his testimony supports the trial judge’s conclusion that Dr. Phillips’ examination did not establish plaintiff to be disabled from a mental condition related to his on the job injury.

The trial court found plaintiff had exaggerated his complaints to several of his examining doctors and in some instances deliberately gave false responses to the tests being performed by the doctors. The plaintiff had misrepresented his work history following his discharge to return to work, both in answers to written interrogatories and his oral deposition. Plaintiff’s conduct in this regard supports the trial court’s finding that plaintiff lacked credibility.

We do not find the trial judge to be clearly wrong in rejecting plaintiff’s claim that he is disabled by a job related mental condition.

As pointed out earlier in this opinion there was objective evidence of deviation of temperature in plaintiff’s legs which was found by Dr. Osborne during plaintiff’s hospitalization in the Pain Center. Dr. Osborne explained the cause of this temperature deviation as related to plaintiff’s on the job injury, and believed this positive physical finding substantiated plaintiff’s complaint of pain. Dr. Osborne treated and corrected the condition and concluded plaintiff should have no further pain from this abnormality. We find that plaintiff had the pain corrected by Dr. Osborne during the period subsequent to August 28th (which was the date upon which plaintiff’s compensation was terminated). Plaintiff is not required to work in pain. Plaintiff is entitled to weekly compensation during the period between August 28 and October 26 when he was discharged from the Pain Center. While this is a finding of fact inconsistent with the trial judge’s total rejection of further weekly compensation benefits, it is not totally contrary to the trial judge’s conclusions since he recognized that plaintiff’s stay in the hospital from Sept. 30 to October 26 created necessary medical expenses. We have found the trial judge was correct in awarding the Pain Center hospital bills, and the same evidence which supports the hospital expense award requires the award for weekly compensation covering the period between August 28 and October 26th.

Our award of the additional weekly compensation is consistent with the rules related to appellate review of worker’s compensation cases as expressed in the case of Crump v. Hartford Acc. & Indem. Co., 367 So.2d 300 (La.1979), and cases cited therein.

As we have earlier pointed out, the evidence in the record fully supports the trial judge’s rejection of plaintiff’s claim for compensation beyond October 26, 1979.

WERE DEFENDANTS ARBITRARY IN REFUSING TO PAY PLAINTIFF BENEFITS UNDER WORKER’S COMPENSATION LAW SUBSEQUENT TO AUG. 28, 1979?

LSA-R.S. 22:658 provides:

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

This statute is penal in nature and therefore must be strictly construed. Penalties and attorney’s fees are not assessed unless it is clearly shown that the insurer was arbitrary, capricious and without probable cause in discontinuing payments. The burden of proof is on the claimant to prove that the failure to pay is arbitrary and capricious. Breaux v. Marine Electric & Reliance Insurance Co., 369 So.2d 196 (La. App.3d Cir. 1979); Henley v. F. G. Sullivan, Jr., Contractor, Inc., 385 So.2d 497 (La. App.1st Cir. 1980).

In defendants’ answer to plaintiff’s petition, they acknowledged they had ceased payments after receiving communication of Dr. Mead’s final report, which informed them that plaintiff was able to return to work. The termination of compensation payments was based on this medical report of plaintiff’s treating physician. Defendants’ action of terminating payment of worker’s compensation benefits was justified by their receipt of this report. Defendants’ action was not arbitrary and capricious.

The fact that plaintiff was admitted to the Pain Center some thirty days after Dr. Mead’s discharge does not in and of itself establish that the hospitalization was a necessary medical service required by plaintiff’s compensable injury. Though defendants later acquired knowledge of the hospitalization, this does not create any obligation on the part of defendants to pay the bill until they have been supplied with the medical reports indicating the hospitalization was necessary treatment of plaintiff’s compensable injury. The record does not disclose that defendants had information establishing that plaintiff was disabled subsequent to Dr. Mead’s report. The record does not reflect that defendants received any medical reports from other physicians that treated plaintiff subsequent to Dr. Mead’s discharge which indicated plaintiff was disabled and in need of further treatment. All we can discern from the record is that defendants first acquired information of the opinions of other physicians that plaintiff was disabled at the time that these doctors testified at trial. There is nothing in the record to support a contention that defendants at a subsequent time received any information from any other doctor who examined or treated plaintiff that his disability continued subsequent to Dr. Mead’s examination. The list of physicians who examined plaintiff at the Pain Center contained in plaintiff’s answer to defendants’ interrogatories does not reflect the opinions of these doctors with regard to whether plaintiff’s disability continued or required additional hospitalization.

Because of the careful diagnostic procedures of Dr. Mead and the concurrence of at least one other orthopedic, a neurologist, and a neurosurgeon, in his general conclusions any contrary medical reports indicating continuing disability and need for further treatment would have had to have been particularly persuasive before defendants would have been placed in a posture of being arbitrary and capricious.

Only the testimony of Dr. Osborne supports the additional weekly compensation which we have awarded and provides any substantial justification for the lengthy hospitalization which commenced September 30, and even if defendants had been given his opinion by report or deposition, we conclude that defendants would have been justified in relying upon the other medical opinions indicating no disability. Defendants would not have been arbitrary and capricious under these circumstances to have litigated their further liability to plaintiff.

The trial court was clearly wrong in finding defendants arbitrary and ordering them to pay penalties and attorney’s fees.

For the reasons assigned the judgment appealed is amended as follows:

Plaintiff is awarded weekly worker’s compensation benefits in the amount of $141 per week commencing August 28, 1979 and terminating October 26, 1979, together with legal interest on each past due weekly compensation payment from due date until paid.
The award of 12% penalties and $2,000 attorney’s fees is REVERSED and plaintiff’s demand for penalties and attorney’s fees are rejected.

As AMENDED the judgment is AFFIRMED. All costs on appeal are assessed against appellant.