author: AUGUSTINE, Judge.

text:
    Pat HAWKINS v. JOHNS-MANVILLE CORPORATION.
    No. 13110.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 30, 1982.

      M. H. Gertler, New Orleans, for plaintiff-appellee.
    Thomas M. Nosewicz of Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for defendant-appellant Johns-Manville Sales Corp.
    Before REDMANN, AUGUSTINE and CIACCIO, JJ.
   AUGUSTINE, Judge.

By this appeal, defendant Johns-Mans-ville Corporation (J-M) seeks to reverse an award of workmen’s compensation benefits in favor of its former employee, Pat Hawkins. Plaintiff’s claim arises under La.R.S. 23:1031.1 of the Louisiana Workmen’s Compensation Act, as it existed prior to amendment in 1975. He alleges total and permanent disability as a result of having contracted asbestosis while in the employ of J-M.

The parties, Hawkins and J-M, stipulated that between 1948 and 1966, plaintiff was employed by J-M as a common laborer and that, during that time, J-M manufactured various products from raw asbestos material.

At trial, Mr. Hawkins testified that for many years he worked in that part of the plant which produced asbestos shingles. As he described it, the air was often so dense with asbestos dust that it hung like a fog, requiring workers to wear masks which, theoretically at least, reduced the risk of contracting lung disease. Mr. Hawkins left J-M in 1966 after having worked there for eighteen years. Afterward, he was employed as a common laborer on the river front, then at a chicory factory, and then at a Coca-Cola plant. In 1979, Mr. Hawkins performed light janitorial work for a local restaurant, but had left this job as of the time of trial. In 1980, he began to complain of shortness of breath and sought the advice of Dr. Morton Brown, a specialist in pulmonary diseases. After noting plaintiff’s history and performing several examinations, particularly x-rays, Dr. Brown diagnosed Mr. Hawkins’ condition as asbestosis, a progressive disease which results from scarring of the lungs by exposure to asbestos dust. Because of this scarring, the lungs have less capacity and furnish less oxygen to the victim’s blood.

The x-rays obtained by Dr. Brown were not the first indications of lung disease. Periodically, J-M conducted physical examinations of its employees to determine, among other things, whether exposure to asbestos or silica dust might have affected the workers’ lungs. Plaintiff’s x-rays, taken at yearly intervals between 1948 and 1966 (at the instance of J-M) were interpreted by Dr. Brown as confirming progressive deterioration of the lungs and the presence of asbestosis. Thus, Dr. Brown testified that x-rays taken in 1948 (at the outset of Mr. Hawkins’ employment and before exposure to asbestos) reveal no pulmonary abnormalities. X-rays taken in 1962 and 1964, however, show the first signs of the disease’s progression: there Dr. Brown detected “smudges” which he tentatively interpreted as “infiltrates” or scars on the plaintiff’s lungs. Evidence of lung deterioration was more discernible to Dr. Brown in x-rays taken in 1966, two years later. These indicated more numerous and defined marks or scars in the apices of the plaintiff’s lungs. As of that date, according to Dr. Brown,'the plaintiff’s disease had clearly begun to run its course. He explained that scarring of the lungs continues as the body tries unsuccessfully to “digest” or eliminate asbestos particles which, as he put it, are nothing other than microscopic rock. Dr. Brown analyzed the plaintiff’s most recent x-rays, taken in 1980, and found increased linear nodulations and interstitial fibrosis in both upper lungs — in the doctor’s opinion, the diseased reaction of the body to asbestos dust. In addition, these films indicated bilateral pleural thickening which, according to Dr. Brown, is one of the hallmarks of prolonged exposure to asbestos.

Dr. Brown’s findings were consistent with the independent report of Dr. Don McCormick, a radiologist at Jo Ellen Smith Hospital, who stated that Mr. Hawkins’ x-rays, taken in July 1980, revealed pleural thickening and bilateral interstitial fibrosis.

The plaintiff also submitted the medical reports of Dr. Samuel Logan, who in 1964 had been called upon by defendant J-M to examine employees and to interpret their x-rays with the particular objective to find lung abnormalities caused by exposure to asbestos. That year, Dr. Logan issued a report which classified Mr. Hawkins’ condition as “M-1”, which at trial, was explained by the doctor to mean “peribronchial infiltration or mixed scarring. Mixed could be silica, asbestos, or any of the other numerous kinds of foreign matter that collects in the lungs.” His report went on to remark, “probably asbestosis. Avoid all fumes and dust.” Emphasis supplied.

Further corroboration of Dr. Brown’s diagnosis is found in plaintiff’s pulmonary function report from Jo Ellen Smith Hospital, dated July 10, 1980, which states that “the results are consistent with a restrictive, as well as an obstructive defect, most probably as one sees with chronic obstructive lung disease.”

In contradiction to the medical testimony offered by the plaintiff, J-M presented the expert opinion of Dr. Hans Weil, a noted specialist in the field of pulmonary diseases who examined the plaintiff on January 19, 1981. In taking the plaintiff’s history, Dr. Weil recorded that Mr. Hawkins was sixty-one years of age and had worked at the J-M plant for eighteen years as of 1968, when he was “laid off” for non-medical reasons. Significantly, Dr. Weil noted that “there has been no shortness of breath . . . nor history of chest pain, edema, nocturnal dyspnea, or orthopnea”, and further, that plaintiff has smoked one pack of cigarettes per day for over forty years. Examination of the chest revealed adequate thoracic expansion without delay of the expiratory phase. Dr. Weil detected no crackling or wheezing in the plaintiffs lungs.

His examination of Mr. Hawkins’ x-rays revealed “bilateral linear and nodular densities within the apices of both upper lobes (of the lungs), suggesting an old granulo-matous infection such as tuberculosis. . . No pleural abnormalities are present.” Studies of pulmonary function were performed by Dr. Weil, and showed Mr. Hawkins’ lungs to be functioning in the lower normal range “with the possible exception of a modest degree of hyperinflation.” Dr. Weil’s ultimate finding was that “radio-graphic evidence of diffuse pulmonary or pleural fibrosis is lacking . . . there is no evidence of a work-related respiratory disorder.” Dr. Weil’s trial testimony served principally to repeat his earlier written findings and to explain to the court their significance with regard to his ultimate conclusion that the disease which afflicted Mr. Hawkins was not asbestosis, but rather tuberculosis. First, Dr. Weil explained that asbestosis produces linear densities of the kind that were not observable on Mr. Hawkins’ x-rays. Second, the probability that nodulation within plaintiff’s lungs was due to tuberculosis was enhanced by the fact that in 1972, plaintiff’s tuberculin skin tests converted from negative to positive. Third, Mr. Hawkins lung function tests were in the normal range. These tests measure three things: the volume of gas within the lungs and therefore the volume of the lungs themselves; conduction of air in and out of the lungs (flow rates); and the efficiency of gas exchange within the lungs. Dr. Weil found no reduction in the plaintiff’s rate of exhalation, and concluded that he did not have any airway obstruction. He also stated that any fibrosis or scarring within the lungs would have been revealed through these tests: total lung capacity, vital capacity and diffusing capacity would have shown reduction from the normal level. Mr. Hawkins’ functions showed no such reduction.

Several observations can be made at this point concerning these doctors’ contradictory findings. With regard to the analysis of the plaintiff’s x-rays, there is no dispute between the doctors that these films do in fact reveal bilateral linear and nodular densities. Ordinarily, it is very difficult, on the basis of x-rays alone, to determine whether the marks and “smudges” on the plaintiff’s films represent asbestosis. It is apparent from the doctors’ testimony that interpretation of these x-rays is largely a subjective matter over which experts might reasonably disagree. Proper diagnosis of the patient’s condition therefore requires that these films be interpreted in light of the patient’s history and the more objective informants, particularly lung function studies.

In this case, however, resolution of the factual dispute is complicated by the fact that Mr. Hawkins’ pulmonary function reports are at variance with each other: those performed by Dr. Weil reveal only slight abnormality — hyperinflation; those performed by Jo Ellen Smith Hospital indicate decrease in vital capacity and in flow rate, results which are consistent with the presence of asbestosis. In light of these contradictory findings, the trial court apparently accorded great weight to the opinion of Dr. Don McCormick, the Jo Ellen Smith radiologist whose report corroborates the diagnosis of Dr. Brown and contradicts the x-ray interpretations of Dr. Weil. Dr. McCormick, it will be remembered, found that plaintiff’s x-rays revealed pleural thickening and bilateral interstitial fibrosis (or scarring). We also assign considerable weight to the 1964 report of J-M’s company physician, Dr. Logan, who then stated that the abnormal marks on plaintiff’s film were “probably asbestosis.”

In resolving this dispute, we are reminded that appellate courts are admonished to pay great deference to the trial court’s factual findings, which must not be disturbed unless the error of those findings is clear and manifest. Crump v. Hartford Accident and Indemnity Co., 367 So.2d 300 (La.1979); Canter v. Koehring, 283 So.2d 716 (La.1973). We are unable to say that the trial court committed “manifest error” in finding that Pat Hawkins is afflicted by the lung disease “asbestosis.”

The question which remains is whether asbestosis has rendered the plaintiff “totally and permanently disabled”, as that term has been understood by our jurisprudence.

Inasmuch as the plaintiff’s disease was contracted prior to 1975, we shall discuss his status in light of the law in effect prior to the 1975 amendments of the Workmen’s Compensation Statute. Laurendine v. Fischback and Moore, Inc., 398 So.2d 1220 (La.App. 4th Cir. 1981).

Prior to the 1975 amendments, the pertinent section of the workmen’s compensation statute, La.R.S. 23:1221(2), defined total permanent disability as an inability “to do work of any reasonable character.” Our jurisprudence interpreted the above-quoted clause to mean disability to perform work of the same or similar description, kind or character as that which the claimant was accustomed to perform when the injury or disability occurred. Morgan v. American Bitumuls Co., 217 La. 968, 47 So.2d 739 (1950); Wright v. National Security Corporation, 221 La. 486, 59 So.2d 695 (1952); Knispel v. Gulf States Utilities Co., 174 La. 401, 141 So. 9 (1932). In time, courts began to recognize the difficulty of applying such a rule to the common laborer, who frequently went from one task to another several times within a single day. It would be unfair, these courts reasoned, to impose liability upon the employer merely because the laborer would henceforth be unable to perform the exact task in which he was engaged at the time of his injury, or because he could not do every conceivable act which a common laborer might be called upon to do. Accordingly, the courts developed the rule that a common laborer would be considered “totally and permanently disabled” only if he could no longer compete for regular employment among able-bodied workers in the flexible market for common labor. See Malone & Johnson, Worker’s Compensation, Louisiana Civil Law Treatise, 1980, § 273; also Malone, Workmen’s Compensation, 12 La.L.Rev. 150, 151 (1952). At the eve of the passage of the 1975 amendments, the overwhelming majority of cases concerning total disability of a common laborer applied the above-stated test. See James v. Jake Tusa’s Restaurant and Bar, 332 So.2d 548 (La.App. 4th Cir. 1976), applying pre-1975 law; Lewis v. St. Charles Parish Hospital District, 323 So.2d 842 (La.App. 4th Cir. 1975); Bryant v. Travelers Insur. Co., 314 So.2d 379 (La.App. 4th Cir. 1975); Carlisle v. Great American Insur. Co., 291 So.2d 449 (La.App. 2d Cir. 1974); Simien v. Haas-Hirsch Estate, 278 So.2d 836 (La. 3rd Cir. 1973).

Applying the “labor market” test to the facts of this case, we affirm the trial court’s finding that Mr. Hawkins is totally and permanently disabled. Although it is true that plaintiff secured a number of jobs following his departure from J-M, it is also true that he had been unemployed for approximately one year as of the time of trial. His last position required only light exertion — sweeping and cleaning in a restaurant. Mr. Hawkins testified that it is now difficult for him to find work because prospective employers regard him as disabled. He further stated that he experiences shortness of breath if he is on his feet for any length of time or if he engages in any extended physical activity. Dr. Brown testified that, in his expert opinion, Mr. Hawkins is no longer able to consistently perform even the lighter duties required of a common laborer — sweeping, walking, carrying, climbing, and so on.

It is apparent that as to this factual issue, the trial court believed the plaintiff and his doctor rather than the defendant’s expert. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review. Canter v. Koehring Co., supra.

We conclude that plaintiff has proven by a preponderance of the evidence that he is totally and permanently disabled, for although it may be that Mr. Hawkins will occasionally find brief, light employment such as that which was afforded him from time to time after his departure from J-M, we regard that prospect as entirely too speculative. Mr. Hawkins stands at a substantial disadvantage in the competition for regular employment among able-bodied workers in a flexible market for common labor. Accordingly, we affirm the trial court’s findings that the plaintiff is totally and permanently disabled.

Finally, with regard to the amount of the plaintiff’s award, we agree with appellant that compensation benefits should have been fixed in accordance with the statutory rate in effect in 1966, the last year of Mr. Hawkins’ employment at J-M. At that time, Louisiana law provided that the maximum compensation to be paid shall be thirty-five dollars per week, not beyond four hundred weeks. The plaintiff’s award, therefore, shall be reduced in conformance with the law.

Accordingly, the judgment of the trial court is amended and recast as follows:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of the plaintiff, Pat Hawkins, and against the defendant Johns-Mansville Corporation, for compensation at the rate of $35.00 per week for a period of four hundred weeks beginning June 30, 1981, with legal interest on each installment from due date until paid, and for medical expenses in the amount of $1,887.52 and for all costs, including $100.00 for medical reports.

As recast, the judgment is affirmed.

AFFIRMED.

      . The trial court awarded plaintiff Hawkins weekly compensation benefits at the rate of $45.00 per week for a period not to exceed four hundred and fifty weeks. The court also awarded $1,887.52 for medical expenses and $100.00 for medical reports.

      . The plaintiff testified that J-M had never informed him of these findings.

      . Plaintiffs report to the doctor was erroneous — he left J-M in 1966.

      . Edema is swelling caused by the increased accumulation of fluid in the tissue spaces.

      . Noctural dyspnea is shortness of breath at night.

      . Orthopnia — having to assume a semi-erect or erect position in bed in order to breathe more easily.

      . Plaintiff’s report to Dr. Brown was to the contrary; Mr. Hawkings testified that the primary reason for seeking Dr. Brown’s advice was his shortness of breath and chest pain.

      . The trial court apparently did not apply this rule. In Reasons for Judgment, it was stated that “this occupational disease (asbestosis) prevents him (plaintiff) from returning to the same or similar type of employment.” Emphasis added.

      . La.R.S. 23:1202, Acts 1956, No. 411 § 1.

      . La.R.S. 23:1221(2), Acts 1948, No. 175 § 1.


source: Caselaw Access Project

author: BYRNES, Judge.

license: Public Domain

text:
    CUMIS INSURANCE SOCIETY, INC., and Clement J. Hoerner, and Theresa B. Hoerner v. Chrissanthi CHRISTIDIS. Violette Christidis IKONOMIDIS v. CUMIS INSURANCE SOCIETY, INC., and Clement J. Hoerner.
    Nos. 12913, 12914.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 30, 1982.

      George J. Kambur, New Orleans, for Chrissanthi Christidis, defendant-appellant, and for Violette Christidis Ikonomidis, plaintiff-appellee.
    Dan Dorsey, River Ridge, for Cumis Ins. Soc., Inc., plaintiff-appellant/defendant-appellant and for Clement J. Hoerner, and Theresa B. Hoerner, plaintiffs-appellees/de-fendant-appellee.
    Before KLEES, BYRNES and CIACCIO, JJ.
   BYRNES, Judge.

These consolidated cases are actions for recovery of personal injury and property damages arising out of an automobile collision which occurred on January 26, 1978, at the intersection of Canal Street and South Jefferson Davis Pkwy. in New Orleans, La. The intersection was controlled by semaphore signals. At this location Canal Street is a six lane throughfare and South Jefferson Davis Pkwy. has four lanes. Both streets have wide neutral grounds in the middle. The driver of one vehicle, Chris-santhi Christidis, was headed uptown on South Jefferson Davis Pkwy. and approached the intersection on a green light which changed to yellow before she entered the intersection. The driver of the other vehicle, Clement Horner, was stopped in the left hand lake bound lane on Canal St. He stated that he had the green light in his favor when he proceeded across the intersection.

The first suit was brought by Hoerner, his insurer, Cumis Insurance Society, and his wife Theresa Hoerner, a guest passenger in his automobile, against Christidis. The second suit was instituted by Violette Ikonomidis, the guest passenger in the Chris-tidis automobile against Hoerner and his insurer. Hoerner’s insurer, Cumis, then filed a third party demand against Christid-is. The trial judge found that Hoerner had the green light in his favor, but made a “jack-rabbit” start and struck Christidis. The Christidis vehicle had crossed two lanes of traffic before her vehicle was hit in the side by Hoerner. There was judgment entered in favor of Violette Ikonomidis and against Cumis and Hoerner, in solido, for $4,000.00 in general damages, lost wages in the amount of $1,250.00 plus medical specials in the amount of $218.00. The trial court further ordered judgment in favor of Cumis against the third party defendant Christidis for contribution in the amount of one-half the amount due. In the other suit, judgment was entered in favor of the plaintiff Cumis and against Christidis in the sum of $1,000.00 to reimburse Cumis for the amount paid to Theresa Hoerner under the coverage of her husband’s policy.

There were two independent witnesses to the accident, both whom stated that the Hoerner vehicle had the green light. The first witness stated that Hoerner made a fast start and the second witness, who was stopped for the signal in the middle lane next to Hoerner, stated that she could clearly observe the Christidis vehicle approaching the intersection.

A review of the record satisfies this court that the trial judge make a credibility decision as to all witnesses. Upon a complete reading of the record, we find no manifest error in the trial judge’s decision and therefore we accept his findings of fact and the resultant judgment. Arceneaux v. Dominque, 365 So.2d 1330, (La.1979).

Addressing ourselves first to the question of negligence on the part of Chris-tidis on entering the intersection we look to the law enunciated in Hartford Accident and Indemnity Co. v. Finley, 282 So.2d 830 (La.App. 1st Cir. 1973) and followed by this court in Guidry v. Messina, 294 So.2d 559 (La.App. 4th. Cir. 1974), that a motorist with a favored light has the right to assume that other motorists will stop in obedience to the red light facing them. One who enters an intersection on a green or the beginning of a yellow light does so legally and thus is legally in the intersection. [Emphasis added]. Hartford Accident and Indemnity Co. v. Finley, supra. Thus the factual determination by the trial judge that Christidis had not entered the intersection at the beginning of a yellow light is borne out by the fact that the vehicle had only cleared two of the three lake bound lanes of traffic before the light turned green in favor of Hoerner. Accepting testimony of the witness at the trial court that the car was going approximately 25-30 miles an hour, we must agree with the trial judge’s conclusion, as stated in his reasons for judgment, that the Christidis vehicle did indeed enter the intersection after the light had been yellow for a period of time and that this was a cause in fact of the accident.

The second circuit in Earles v. Volentine, 191 So.2d 740 (La.App. 2nd. Cir. 1966), writ refused, 250 La. 21, 193 So.2d 529, held that a motorist is guilty of negligence if he proceeds into an intersection after a red light turns green without allowing sufficient time for those in the intersection to clear it. This case, coupled with the Fourth Circuit holding in Carter v. NOPSI, 293 So.2d 527 (La.App. 4th. Cir. 1974) affirmed, La., 305 So.2d 481 where the court stated that a motorist with a green light owes a duty to maintain a slight observation of a controlled intersection leads this court to conclude that Hoerner was indeed negligent in not making sure the intersection was clear at the time he proceeded. The Supreme Court in affirming Carter, supra page 484 quoted the language of Bourgeois v. Francois, 245 La. 875, 161 So.2d 750 (1964) that: “[I]t is only in exceptional circumstances where the motorist on the favored street could have avoided the accident by the exercise of the slightest sort of observation in care that he will be found derelict.” We concur with the determination of the Trial Judge that Hoerner was negligent and could have avoided the accident by the exercise of the slightest degree of observation and care.

Semaphore controlled intersections are installed so as to insure the orderly flow of traffic. When drivers attempt to subvert the purpose of these signals by trying to “beat the light” or be “first off the line”, although they may be legally where they are entitled to be, they have violated the standards of duty imposed on them as prudent operators of motor vehicles. In this case a duty was owed by both drivers to their passengers and this duty was breached by both of them. The trial judge correctly found that both drivers were negligent and ruled accordingly. We find no error in his conclusions and hereby affirm his ruling.

All cost of this appeal are to be borne by the respective parties.

AFFIRMED.


text:
    EDWARD MOORE CONSTRUCTION INC. v. STAR ELECTRICAL CONTRACTORS, INC.
    No. 12947.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 30, 1982.
    Martha L. Jumonville, Mandeville, for plaintiff-appellant.
    Frank Klein, Ronald P. Herman, Metair-ie, Katherine L. Kennedy, Chalmette, for defendant-appellee.
    Before KLEES, BYRNES and CIACCIO, JJ.
   BYRNES, Judge.

This case arises out of a contractual dispute between a general contractor (Moore Construction Inc.) and its electrical subcontractor (Star Electrical Contractors). The general contractor sued the sub-contractor for damages arising from an alleged breach of contract in the amount of $5,072.72. The defendant sub-contractor subsequently reconvened for approximately $6,000.00 allegedly owed him by the contractor. The trial court dismissed both the original demand and the re-conventional demand. This appeal has been instituted on behalf of the contractor only. The sub-contractor has not appealed the dismissal of his re-conventional demand. That dismissal is now final.

Although the trial judge did not render written reasons for judgment, he apparently found that neither side carried the requesite burden of proof necessary to substantiate their respective claims. In a case such as this great weight must be given to the fact finder’s decision regarding conflicting and contradictory testimony. We are not in a position to substitute our judgment for that of the trial judge when his findings are supported by the record at hand and are not manifestly erroneous. Arceneaux v. Dominque, 365 So.2d 1330 (La.1979).

The transcript presented to this court consists mainly of self serving and contradictory testimony by both parties. We are presented with oral contracts, accusations of unworkmanlike performances and damages arising therefrom. Nevertheless we are of the opinion that there was an agreement between the parties. It is also clear that some of the work performed pursuant to this agreement was, to some extent, unsatisfactory. It is not clear, however, who is at fault for these deficiencies. The evidence before us indicates that numerous factors came into play which were outside the control of the parties, such as the vandalism. Like the trial judge, we can come to no definitive conclusions regarding the true intentions of the parties, as these intentions were evidenced by oral contracts and the conflicting testimony of the parties. In the absence of any further concrete evidence, we must defer to the trial judge. He obviously based his decision not only on the evidence presented to him at court but also on the demeanor and conduct of the respective parties. When reviewing a record such as this, absent any clear abuse of discretion by the trial judge, we must abide by his decision.

For these reasons the findings of the trial court are hereby sustained and the ruling appealed from is hereby affirmed.

All cost of this appeal are to borne by the appellant.

AFFIRMED.


author: GAUDIN, Judge.

text:
    Judy CANCIENNE v. WINN-DIXIE LOUISIANA, INC., ABC Insurance Company.
    No. 5-239.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 4, 1982.
    Ronald Thibodeaux, Gretna, for plaintiff-appellee.
    Dan R. Dorsey, River Ridge, for defendants-appellants.
    Before SAMUEL, GAUDIN and PEREZ, JJ.
   GAUDIN, Judge.

Defendant Winn-Dixie Louisiana, Inc., has appealed suspensively from a judgment awarding to petitioner Judy Cancienne compensation benefits of $148.00 per week for 100 weeks, together with $8,000.00 as attorney fees, 12 per cent statutory penalties and legal interest. Also, plaintiff received medical expenses in the amount of $809.53.

Winn-Dixie’s primary arguments are that the trial judge erred (1) in finding that there had been a compensable accident and (2)in awarding attorney fees and penalties. We do not agree with either contention.

Miss Cancienne, a cashier and a 13-year Winn-Dixie employee with a good work record, contends that on September 10, 1979, she hurt her back while lifting a bag of groceries and placing it in a supermarket buggy.

Petitioner said:

“The buggy was a little bit forward and I had to overreach and when I did to place the bag in the buggy, I got a sharp pain in my back and into my thigh and into my leg area...”

Although in pain, Miss Cancienne said, she worked the remainder of that day and also the following two days.

On the third day after the accident, plaintiff said she planned to see a physician in the morning but worked instead at her employer’s request because of an approaching hurricane. “There was nothing but wall to wall people,” Miss Cancienne said.

Later that day (September 13th), petitioner did see Dr. Vincent Tumminello, who stated:

“The patient’s physical examination revealed difficulty in walking . .. There was notice of some decreased sensation in the left leg and foot, and decreased strength in the left great toe. It was my impression that the patient may have had a herniated disc at the level of L4-L5 region on the left side ...”

Back pains persisted and Miss Cancienne was hospitalized several times for tests. Dr. Naum Klainer eventually performed a lumbar laminectomy and disc excision.

Miss Cancienne testified that she orally reported the accident to store manager John Harrison on the day it occurred, although Harrison recalled Miss Cancienne saying that she’d hurt herself by falling in the bathtub.

To further substantiate the fact that an accident had in fact happened within the course and scope of her employment, plaintiff called as witnesses:

(1) Co-worker Janice Rivet, who said that Miss Cancienne was crying and appeared to be in pain following the accident on September 10th;

(2) Co-worker Linda Sevin, who testified that Miss Cancienne “. .. looked bad, very bad ...” the day of the accident and that she (Miss Cancienne) said “. . . she must have hurt herself lifting all those bags . . .";

(3) A1 Galloway, Miss Cancienne’s boyfriend, who stated that petitioner was “... in a lot of pain ...” the evening of the accident and that the pain lingered;

(4) Co-worker Shirley Powels, who said that on September 10th Miss Cancienne complained of pain in her back; and

(5) Ms. Rene Angelo, plaintiff’s sister, who said that after the September 10th accident Miss Cancienne “. . . couldn’t bend or nothing ...”

In his deposition, Dr. Klainer related Miss Cancienne’s disc problems to the September 10th lifting incident. “You can bend over to lift anything,” the doctor said, “and you can pop a disc...”

In the trial court’s judgment and in ours, Miss Cancienne proved that she injured her back in the supermarket on September 10th.

Attorney fees and penalties can be awarded, in accord with LSA-R.S. 23:1201.-2, if the employer fails to make compensation payments within 60 days after receipt of written notice or demand, if the failure is arbitrary, capricious or without probable cause.

In contending that there was a serious dispute as to whether the injury was job-related, defendant relies mainly on a September 17,1979, medical report prepared by Dr. Ahmad Haffar, to whom Miss Cancienne was referred by Dr. Tumminello.

Dr. Haffar saw Miss Cancienne on September 13th and wrote:

“The patient .. . says that this past Monday, while she was at work as a cashier in a Winn-Dixie store, she experienced severe abrupt onset of hurting sensation emanating from the upper left buttock and radiating to the low back regions . . . The patient says that she did not have any type of injury such as falling on her hip or buttock or low back, or pushing or carrying something heavy, and this pain occurred spontaneously. Since then, the patient has been having remarkable pains and . . . she is having remarkable difficulty in walking ...”

Dr. Haffar’s impression:

“Acute low back injury. Possible herniated lumbar disc at L4-L5 and/or L5-S1 level on the left side.”

On October 17, 1979, Dr. Haffar’s associate, Dr. Carl Cullicchia, sent a follow-up medical report to Winn-Dixie in which he wrote:

“The patient states that she has some soreness in the low back region, and a sensation of numbness ... of the left thigh . . . The patient has informed me that the historical account of her illness is not accurate. She relates that while at work, she was engaged in bagging groceries. She lifted a heavy bag when she noted pain in the left low back region and some pain in the left leg ...”

Despite the wording in Dr. Cullicc-hia’s report and the undeniable knowledge that a longtime and faithful employee had suddenly become unable to work, defendant neither started compensation payments nor conducted an investigation into the cause and other particulars of Miss Cancienne’s accident. This is arbitrary and capricious within the meaning of the compensation statutes, and justifies an award for attorney fees and penalties.

Actually, Dr. Haffar’s report, saying “. .. that this past Monday, when she was at work as a cashier in a Winn-Dixie store, she experienced severe abrupt onset of hurting sensation ... ”, was of sufficient notice to at least cause an inquiry.

Absent manifest error, the trial court’s judgment in a workmen’s compensation case will not be disturbed on appellate review. Zimmerman v. United Machinery Corp., 208 So.2d 336, and numerous other cases.

Here, the awards are fully supported by the evidence and testimony, and we affirm.

AFFIRMED.


author: DUFRESNE, Judge.

text:
    Phyllis COPELAND v. SALON CLEANERS, INC. and XYZ Insurance Co.
    No. 5-64.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 4, 1982.

      Patrick D. McArdle, New Orleans, for plaintiff-appellant.
    Deonne DuBarry, New Orleans, for defendant-appellee.
    Before BOUTALL, DUFRESNE and GRISBAUM, JJ.
   DUFRESNE, Judge.

The plaintiff, Phyllis Copeland filed suit against the defendants, Salon Cleaners, Inc. and its liability insurer for damages allegedly sustained to her wedding dress. Subsequently, the defendant requested the plaintiff to produce the sales receipt or any other proof of purchase. Failing to produce evidence of purchase, the trial court on January 27, 1981 ordered the plaintiff to produce proof of purchase and value within thirty days under penalty of dismissal with prejudice. On February 26th, the plaintiff did produce an affidavit signed by her asserting ownership and indicating she was unable to obtain evidence of purchase (Store from which the wedding dress was purchased has gone out of business).

The trial court granted the defendants’ Motion to Dismiss based upon the failure of plaintiff to furnish the necessary proof of purchase within the thirty day period as ordered by the court.

From this judgment of dismissal, the plaintiff has appealed.

Two issues were raised on appeal:

1.) Whether the affidavit was produced within the 30 day limit imposed by the court and,

2.) Whether the affidavit as produced by the plaintiff-appellant complied with the judge’s order.

As to the first issue, we feel the filing of the affidavit on February 26th was timely. Louisiana Code of Civil Procedure, Article 5059 is controlling with regards to computing the time element.

In regards to the second issue concerning whether the affidavit submitted complies with the court order; the court order of January 27, 1981 required the plaintiff-appellant to produce the original sales slip or a copy of the original sales slip or a document such as a book entry or certificate certifying the price and sale of the dress in question between the vendor of the dress and the plaintiff. (Emphasis added)

The plaintiff-appellant produced an affidavit signed by herself asserting the value, etc. of the dress. Although we feel this affidavit is self-serving in this instance, it does comply with the court order. It does leave a lot to be desired and if the plaintiff-appellant cannot produce more accurate and more precise evidence, her case may fail; however, we feel she should have her day in court.

For the foregoing reasons, the judgment appealed from is reversed and the matter is remanded to the trial court for trial on the merits.

REVERSED AND REMANDED.


text:
    Roy Joseph LEGENDRE, Jr. v. JEFFERSON PARISH SCHOOL BOARD, Joseph Toomy, Donalyn Hassenboehler, Andy Valence, Georgia Clesi, Gilda Haynes, Raymond Speeg, Leon Branis & Terry Verigan.
    No. 5-67.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 4, 1982.
    William L. Dehner, Westwego, for plaintiff, appellant.
    Jack A. Grant, Gretna, for defendants, appellees.
    Before BOUTALL, DUFRESNE and GRISBAUM, JJ.
   DUFRESNE, Judge.

This is a personal injury suit brought by plaintiff, Roy Joseph Legendre, Jr. against defendants, Jefferson Parish School Board and individual members of the School Board. The trial court held a hearing to determine the factual question of negligence in the case. Judgment was rendered finding no negligence on the part of the defendants and dismissed the suit at plaintiff’s cost. From this judgment, the plaintiff has appealed.

Neither the appellant nor the appellee filed briefs and neither appeared for oral argument.

From a review of the record, we are not persuaded by the appellant’s appeal. We agree with the result reached by the trial judge and affirm the decision at appellant’s cost.


text:
    Joseph R. PLANELLAS v. Daniel L. DOTY, Coiled Tubing, Inc. and Northwest Insurance Company.
    No. 5-22.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 4, 1982.

      George C. Stringer, Jr., Harahan, for plaintiff and appellant Joseph R. Planel-las.
    O. L. Shoenfelt, III, Adams & Reese, New Orleans, for defendants and appellees Coiled Tubing Inc. and Northwest Ins. Co.
    Nel F. Vezina, Gretna, for defendant and appellee Daniel L. Doty.
    Before BOUTALL, DUFRESNE and GRISBAUM, JJ.
   DUFRESNE, Judge.

This appeal arises from a suit for damages incurred by plaintiff as a result of an interseetional vehicular collision.

The plaintiff, Joseph R. Planellas, was injured and his automobile was damaged in the accident. The other automobile was owned by Coiled Tubing Inc. and was being operated by one of its employees, Daniel L. Doty.

Joseph R. Planellas filed suit to recover for his damages naming as defendants: Daniel Doty (Employee), Coiled Tubing, Inc. (Employer) and Northwest Insurance Company (Liability Insurer).

A Third Party Demand was filed by the defendants, Coiled Tubing, Inc. and Northwest Insurance Company against Daniel Doty alleging that he was operating the vehicle without permission and outside the scope of his employment. Daniel Doty responded with a Third Party Demand against Coiled Tubing, Inc. and Northwest Insurance Company for damages.

Following trial, judgment was rendered in favor of Joseph R. Planellas and against Daniel L. Doty, Coiled Tubing, Inc. and Northwest Insurance Company in the amount of $2,000.00‘damages, plus medical expenses of $433.24 and property damages of $398.56, plus legal interest. The trial court further ordered judgment in favor of Coiled Tubing, Inc. and Northwest Insurance Company and against Daniel L. Doty for the full amount of the judgment rendered. From this judgment the plaintiff, Joseph R. Planellas has appealed.

On appeal, the appellant, Joseph R. Pla-nellas raises the following issues:

1. The Trial Judge erred in not awarding the sum of $2,178.59 as lost earnings to Joseph R. Planellas for loss of earning power resulting from this accident of October 14, 1978, for the period October 14, 1978 through December 4, 1978.

2. The Trial Judge was in error in awarding only $2,000.00 to the plaintiff, Joseph R. Planellas, who suffered a severe lumboscaral strain which prevented him from working from October 14, 1978 through December 4, 1978, and continued to suffer intermittent pains up to the time of trial, especially in the light of his prior back operation in 1970, and injury of his back in 1974 from which he had fully recovered at the time of the accident, but according to the orthopedic surgeon, Dr. Cashio, made him more susceptible to injury and prevented him from healing faster than the ordinary person who had not suffered prior back injuries.

LOSS OF EARNING POWER

The plaintiff raises in his first assignment of error that the trial court erred in not awarding the full sum of $2,178.59 as lost earnings to the plaintiff. The question of law involved is whether the plaintiff is to recover loss of earning power for the period that he was disabled from this vehicular accident even though he may have been receiving workmen’s compensation for another unrelated accident during the same period of time?

On July 10, 1978, the plaintiff, while employed by U. S. Steel Products Division, Harahan, Louisiana, had injured his wrist, and subsequently was operated on August 28, 1978. He received workmen’s compensation payments until December of 1978, when he was allowed to go back to light work after recovering from the automobile injury in question on October 14, 1978. The testimony adduced at trial, indicated that the wrist injury suffered prior to the injuries sustained in the automobile accident would have kept plaintiff from working for the entire disputed time.

After considering the evidence, the trial judge concluded as follows:

“The Court refuses any amount of judgment for lost wages, in view of the fact that Mr. Doty was in fact unable to be employed because of a previous wrist injury. It is not the same situation as in the case cited by Plaintiff’s counsel where it called upon the court to determine liability vel non because of the collateral source problem. That isn’t the problem in this case. We’re not concerned whether the insurance company paid the plaintiff in this case, but we are concerned with is inability to work because of a previous injury. He would not have worked anyway, and if he would not have worked, he would not have been paid from Coiled Tubing; and that doesn’t have anything to do with whether he was paid or not because of the wrist injury. Therefore, I find that he’s not entitled to any lost wages.” (Emphasis added)

We have examined the record thoroughly and conclude that the evidence supports the trial judge’s conclusion that the period of plaintiff’s disability from the prior disabling injury continued throughout the length of time the plaintiff was disabled as a result of the accident made the basis of this litigation.

DAMAGES

The plaintiff contends that the award of damages is not sufficient. We disagree.

To support the plaintiff’s argument for increasing the award, he lacks supportive authority, La.Civil Code Art. 1934(3) gives the trial court and/or jury much discretion in the assessment of damages. The Supreme Court of Louisiana in Reck v. Stevens, 373 So.2d 498, 499-500 (La.1979), states in regard to appellate review of such an award:

“ ‘The primary question before the appellate court, then, is whether the judge or the jury in fixing the amount of the award has abused its great discretion vested in them by law. . . . [Prior deci-sional awards] relied upon may be similar injury such as broken arm, the loss of an eye or eyes, or the loss of some member of the body. Thereafter, however, the similarity ceases for each case is different, and the adequacy or the facts or circumstances peculiar to the case under consideration. The primary purpose of the judge or jury in fixing the award in a personal injury case is to adequately compensate the injured person for his injury under the facts shown to exist in this case.’ ”

We cannot find from our review of the record that the trial court clearly abused its discretion in making the awards. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977). We find the awards to be adequate. For the reasons hereinabove expressed, the judgment of the trial court is affirmed.

AFFIRMED.


author: BOUTALL, Judge.

text:
    LANDURA CORPORATION OF LOUISIANA v. Lloyd LEGE, d/b/a Marrero Paint & Decorating Company.
    No. 5-63.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 4, 1982.
    Michael E. Katz, Roberts, Katz & But-nick, New Orleans, for Landura Corp. of Louisiana, plaintiff-appellant.
    Nathan Greenberg, Greenberg & Dallam, Gretna, for Lloyd Lege, d/b/a Marrero Painting & Decorating Co., defendant-appel-lee.
    Before BOUTALL, GRISBAUM and DUFRESNE, JJ.
   BOUTALL, Judge.

This appeal is taken by a contractor against a sub-contractor for damages resulting from the non-performance by the sub-contractor. The sub-contractor claims that it was not obligated for the work under the proposal in question. The trial court agreed, and we affirm.

Landura Corporation of Louisiana, Inc., was the contractor in the process of building apartments in Raceland, Louisiana, when it sought a bid from the defendant, Lloyd Lege, d/b/a Marrero Painting and Decorating Company, to perform certain painting and sheet-rock services at the project. In accordance with that request, Marrero Painting and Decorating Company offered a written proposal on September 1, 1977, which Landura says it accepted on the same date, but no formal contract or subcontractor’s agreement was ever entered into by the parties. Some five months later, when Landura called upon Marrero Painting to perform the services described in the proposal, Marrero Painting declined to do so because of the lapse of time and the nonexistence of a formal agreement. Although there is some discrepancy in the facts concerning the parties’ attempts to come to an agreement so that work could be completed, Landura eventually contracted another sub-contractor to perform the necessary work. Landura argues that because of the greater costs in having the work done by another sub-contractor, Marrero Painting is liable for that increase in costs plus other damages.

In order to correctly decide upon this case, two issues must be confronted. Was there a binding contract, and, if so, is it reasonable to hold a sub-contractor bound by his proposal for a period of five months when no time has been specified in the contract? On the question of the existence of a contract, the written proposal by Marrero Painting contained the provision:

“Note: This proposal may be withdrawn by us if not accepted within 30 days.”

The document shows on its face an acceptance by Landura. However, nowhere in the proposal is there a provision stating when the work is to start or when it is to be completed. There is a direct conflict in the testimony as to whether Lege was notified of Landura’s acceptance and when he was notified to sign a formal contract and start work. It is undisputed that no formal contract was ever entered into between the contractor and subcontractor. The trial court determined that both parties contemplated such a contract by either a formal written contract or sub-contractor’s agreement. The record shows that Landura usually entered into a sub-contract’s agreement with its sub-contractors and it appears that Lege anticipated to have such an agreement forthcoming. The trial court considered these facts and obviously made a credibility determination on the conflicting testimony in concluding that Lege was never presented a contract to sign. It found that no building contract was ever entered into by the parties. We do not find those conclusions to be clearly erroneous. Nevertheless, the appellant argues that no parol evidence should have been allowed because the proposal was unambiguous. We agree with the trial court in allowing this evidence to be admitted because the basic issue, i.e., the time of doing the work, is not shown by the proposal.

If we were to determine that the proposal submitted by Marrero Painting was a binding contract, then the question of reasonableness of the time period between the acceptance of the proposal and the time when Marrero Painting was called upon to begin work becomes significant. The appellant argues that a contractor can rely on the bids or proposals made by sub-contractors; but the obligation of the sub-contractor is conditioned upon either a specified time period or a reasonable time period when none is specified. In this instance, if the proposal was found to be binding, then the sub-contractor would only be bound for a reasonable period of time. The appellant cites the case of W. M. Heroman & Co., Inc. v. SAIA Electric, Inc., 346 So.2d 827 (La.App. 1st Cir. 1977), which held that a period of three months was a reasonable time period for a contractor to rely on a sub-contractor’s bid. However, under the facts found here, the passage of time from the date the proposal was accepted was several months longer than three months. Accordingly, we find that the passage of time was unreasonable.

In summary, we find no error in the credibility decision made by the trial court and affirm his conclusion of the lack of a contract existing between the parties. Additionally, the time between the proposal and the date when the sub-contractor was to perform is unreasonable. The judgment is affirmed.

AFFIRMED.


text:
    Richard H. AUTHEMENT, et ux. v. Dr. Cyriac T. LUKE and the St. Charles Hospital.
    No. 5-66.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 4, 1982.

      Lawrence D. Wiedemann, New Orleans, for Richard H. Authement, et ux., plaintiffs-appellants.
    Charles A. Boggs, New Orleans, for Dr. Cyriac T. Luke, defendant-appellee.
    Felix R. Weill, Watson, Blanche, Wilson & Posner, Baton Rouge, for St. Charles Hosp., defendant-appellee.
    Before BOUTALL, GRISBAUM and DUFRESNE, JJ.
   BOUTALL, Judge.

This appeal is taken by the plaintiffs of a medical malpractice suit for alleged injuries sustained while in the hospital. The defendants filed exceptions of prematurity for plaintiffs’ failure to present the claim to a medical review panel before filing this lawsuit. The trial court sustained defendants’ exceptions and we affirm.

On February 25, 1980, Mrs. Richard Authement delivered a baby while under the care of Dr. Cyriac T. Luke at St. Charles Hospital. It is alleged that during the course of the delivery Dr. Luke negligently performed an unnecessary midline episiotomy with a fourth degree extension which caused a rectovaginal fistula. The Authements filed a suit on this action on February 25, 1981, against Dr. Luke and St. Charles Hospital. The defendants filed exceptions of prematurity arguing that Authements’ claim must first be reviewed by a medical review panel (R.S. 40:1299.47). The court sustained those exceptions.

The plaintiffs appeal that decision arguing that the procedure outlined in R.S. 40:1299.47 is unconstitutional. That article provides in pertinent part:

“No action against a healthcare provider covered by this Part, or his insurer, may be commenced in any court of this state before the claimant’s proposed complaint has been presented to a medical review panel established pursuant to this Section and an opinion is rendered by the panel. By agreement of both parties, the use of the medical review panel may be waived.”

This very issue was presented to our Supreme Court in Everett v. Goldman, 359 So.2d 1256 (La.1978). The court stated, at 1267:

“. .. [t]he requirement that malpractice claims be filtered through a medical review panel is not unreasonable and seems to be a rational effort to accomplish a plausible goal. A panel determination adverse to a malpractice claimant’s interests does not preclude his filing a lawsuit.”

The Everett decision makes clear the constitutionality of R.S. 40:1299.47; accordingly, we affirm the judgment maintaining defendants’ exceptions of prematurity, dismissing plaintiffs’ suit at their costs. See Desselles v. Brumfield, 386 So.2d 191 (La.App. 4th Cir. 1980); Roberts v. Russo, 400 So.2d 354 (La.App. 4th Cir. 1981).

AFFIRMED.


author: GRISBAUM, Judge.

text:
    Dianne Simoneaux, Wife of Roland Adam PEREZ v. Roland Adam PEREZ.
    No. 5-59.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 4, 1982.

      Michael B. McColloster, Metairie, for plaintiff-appellee.
    Noble, Slaughter, Clayton & Lorenz, William H. Slaughter, III, New Orleans, for defendant-appellant.
    Before BOUTALL, GRISBAUM and DUFRENSE, JJ.
   GRISBAUM, Judge.

This case is concerned with visitation rights of a divorced father. A rule was filed on November 18, 1980 by the appellant, Roland Adam Perez, requesting that he be granted the right to visit his minor son, Troy Perez.

Mr. Perez and his ex-wife, Dianne Simo-neaux, were separated in May 1976. After that time he visited the child at his mother’s home. Roland and Dianne were divorced in July of 1978, and Dianne was given custody of their minor son, Troy. The divorce decree was silent as to visitation. Mr. Perez, in fact, visited his son several times prior to Dianne’s remarriage in July 1978. He has not visited his son since that time. After hearing the testimony of both parents, the paternal grandmother, and an expert psychiatrist, the trial court denied the motion to visit finding that visitation by Mr. Perez was not in the best interest of Troy Perez. We affirm.

The question before this court is whether the trial court abused its discretion in denying visitation to a divorced father. We recognize that a divorced father is ordinarily entitled to visitation with his minor child. However, this right can be limited or denied by the court when visitation could injuriously affect the child. Larroquette v. Larroquette, 293 So.2d 628, 629 (La.App. 4th Cir. 1974). What is in the best interests of the child is the standard by which to determine visitation privileges. Gowins v. Gowins, 391 So.2d 48, 49 (La.App. 3rd Cir. 1980); Reaviil v. Reavill, 370 So.2d 175, 177 (La.App. 3rd Cir. 1979); Johnson v. Johnson, 357 So.2d 69, 72 (La.App. 4th Cir. 1978). Parental rights must yield when the exercise of the right is not in the child’s best interest. Larroquette, 293 So.2d 628, 629.

After review of the evidence presented at trial, we agree with the trial court’s determination that it is not in the best interest of ten-year old Troy Perez for his father to visit him. The trial court is given broad discretion in making this determination, and its judgment of the facts is entitled to great weight, and as a general rule the decision of the trial court will not be disturbed unless there is evidence of an abuse of the trial court’s discretion. Johnson v. Johnson, 214 La. 912, 39 So.2d 340, 343 (1949); Gowins v. Gowins, 391 So.2d 48, 49; Pate v. Pate, 348 So.2d 1338, 1339 (La.App. 3rd Cir. 1977); Spencer v. Spencer, 273 So.2d 605, 607-08 (La.App. 4th Cir. 1973). We find no such abuse. The trial court was impressed with the expert psychiatrist’s opinion. On cross examination, the psychiatrist testified that Troy had expressed fears of being battered by his father since he had seen violent actions of his father toward his mother. The psychiatrist noted physical and emotional symptoms of anxiety in Troy namely depression, stomach pains, inability to sleep, decline in his school performance, and nervousness. The psychiatrist concluded that it was not in Troy’s best interest to visit with his father.

After careful review of the entire record, we do not find that the trial court erred in denying visitation under the circumstances of this case. Therefore, the judgment of the trial court is affirmed.

AFFIRMED.

      . We note that at anytime in the future Mr. Perez can file a new rule for visitation and present evidence to show that circumstances have changed.


text:
    SOUTHERN AIR CONDITIONING OF NEW ORLEANS, INC. v. CUMBERLAND HOMES, INC. and Florence Kennedy, Widow of Joseph P. Palestina.
    No. 5-65.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 4, 1982.
    Henican, James & Cleveland, C. Ellis Henican, Robert Angelle, New Orleans, Irl R. Silverstein, Gretna, for plaintiff-appel-lee.
    Francis T. Moore, Jr., New Orleans, for defendant-appellant.

      Before BOUTALL, GRISBAUM and DUFRESNE, JJ.
   GRISBAUM, Judge.

This case comes to us concerning the coverage of a suretyship agreement. Trial was held and judgment was rendered on December 19,1980 in favor of Southern Air Conditioning of New Orleans, Inc. against defendants Cumberland Homes Incorporated and Mrs. Florence Palestina solidarily. Judgment was also in favor of third party plaintiff Mrs. Florence Palestina against third party defendants Cumberland Homes Incorporated, George D. Fee, and Jack Bryant, solidarily for all sums Mrs. Palesti-na was required to pay to Southern Air Conditioning of New Orleans, Inc. On February 25, 1981, third party defendant Jack Bryant filed a motion for appeal from the above judgment. We reverse.

On March 10, 1978, Mrs. Palestina went to the act of sale for property located at 1424 N. Cumberland, Metairie, Louisiana. She purchased the house from the builder, Cumberland Homes, Incorporated, represented at the act of sale by its president, George Fee. Also present at the act of sale was Jack Bryant, representing Bryant and Associates, holder of a mortgage note and other loans owed by Cumberland Homes Incorporated. Mr. Bryant was to receive the proceeds from the act of sale on this and twelve other homes built by Cumberland to settle the outstanding debt owed Bryant and Associates by Cumberland Homes Incorporated.

At the act of sale Mrs. Palestina and her attorney were concerned about unfinished work in the house. A “punch list” was drafted by Mrs. Palestina listing the unfinished work stating Mr. Fee’s promise that those items would be completed. To further ensure compliance, Jack Bryant signed an agreement at the bottom of the punch list written by Mrs. Palestina’s attorney stating, “It is agreed that the above list represents the presently unfinished work ... In the event the present owner and/or George Fee should fail to complete said installation and all of said work within the time specified, the undersigned Jack Bryant shall hold Mrs. Florence Kennedy Palestina forever harmless in account thereof and she will have the right to have the work done by a contractor of her own selection, if Mr. Bryant fails to have the work completed, at his own expense, upon the default of the present owner and/or George Fee, after 10 days written demand by Mrs. Palestina.”

This statement was also signed by Florence Palestina and George Fee. George Fee also signed an affidavit that day that all bills for labor performed and materials furnished to Cumberland had been paid in full. Thereafter, the act of sale was completed and the proceeds were received by Jack Bryant.

Prior to Mrs. Palestina’s taking possession, Southern Air Conditioning of New Orleans, Inc. installed an air conditioning unit at 1424 N. Cumberland. On April 11, 1979, Southern Air Conditioning filed a petition to enforce a materialmen’s lien naming as defendants Cumberland Homes Incorporated and Florence Palestina. Southern Air Conditioning claimed the bill for the air conditioner unit at 1424 N. Cumberland was due and owed despite amicable demand on Cumberland Homes Incorporated to pay.

On April 25, 1979, Florence Palestina filed an answer to the petition and a third party demand naming as third party defendants Cumberland Homes Incorporated, George Fee, and Jack Bryant. Mrs. Palesti-na asserted in her demand that she refused to take title to the property until Jack Bryant “agreed to guarantee the performance by Cumberland Homes, Inc. of the completion of all of the work under the Building Contract.” On May 21, 1979, Jack Bryant answered the third party demand admitting he signed an agreement to guarantee completion of work on the house but that said agreement did not encompass the unpaid bill which formed the basis of the lien.

The issue is whether the suretyship agreement between the parties covered all bills for labor and/or materials. Article 3035 of the Louisiana Civil Code defines suretyship as follows:

“Suretyship is an accessory promise by which a person binds himself for another already bound, and agrees with the creditor to satisfy the obligation, if the debtor does not.”

La. C.C. Article 3039 provides:

“Suretyship can not be presumed; it ought to be expressed, and is to be restrained within the limits intended by the contract.”

The contract of suretyship must be in writing as parole evidence is inadmissa-ble to prove any promise to pay the debt of a third person. La. C.C. Article 2278(3). W. H. Ward Lumber Co. v. Int. City Bank and Trust, 347 So.2d 322, 324 (La.App. 4th Cir. 1977).

Applying the above rules of surety-ship in an examination of the written document evidencing Bryant’s promise to satisfy the obligation of George Fee, we find that Jack Bryant did not promise to pay the outstanding bill owed to Southern Air Conditioning of New Orleans. The agreement specifically lists items to be completed and expressly states that it evidences the presently “unfinished work.” There is no promise to pay any specific or unspecified outstanding bills nor is there any reference to the air conditioning unit.

The standard of review by an appellate court is that a finding of fact should not be disturbed unless it is clearly wrong. Arcenaux v. Domingue, 365 So.2d 1330, 1333 (La.1978). In the present case, there was no evidence in the document to support the trial court’s holding.

Appellee contends that parole evidence should be considered in determining Mr. Bryant’s liability. Mr. Bryant’s receipt of a check for the proceeds from the sale, appel-lee argues, puts the case within an exception that parole evidence is admissible to prove the promise to pay the debt of a third person when the promisor has a business or pecuniary interest for binding himself. Burt v. Hebert, 338 So.2d 717, 721 (La.App. 1st Cir. 1976); Powell Lumber Company v. AFCO Corporation, 288 So.2d 697, 700 (La.App. 3rd Cir. 1974).

However, there was no parole evidence at trial supporting Mrs. Palestina’s assertion. The parole evidence admitted in the above cases were specific undertakings of the promisor. The testimony of Mr. Bryant quoted in appellee’s brief does not add to the written agreement. Mr. Bryant stated to Mrs. Palestina’s attorney: “At the act of sale if you remember, you had these problems, this punch list and you were very apprehensive about going to an act of sale ... I said I knew Mr. Fee would do these things and that I felt strongly enough about that that I would guarantee to you personally that if Mr. Fee did not do any of these items I would personally see they were done or would personally pay to have them done and that is what you wrote here and that is what I signed.” Tr. 52. Thus, he only reiterated in court what is evidenced in the written agreement. He signed to complete or pay for the work on the punch list. Mr. Bryant’s liability as a third party promisor cannot be extended to any obligation without his express consent.

Therefore, we reverse the trial court’s judgment as to Jack Bryant’s liability to Mrs. Palestina.

REVERSED.

      . Appellant contends that the air conditioner was installed in part after the act of sale. This, however, is controverted by Mrs. Palestina’s own testimony at trial. Tr. 22.

      . There were no written reasons for judgment given by the trial judge. Thus, this court must rely on the record as presented.

      . However, as explained in the recent case of Seashell Inc. v. Simon, 398 So.2d 99, 100-01 (La.App. 3rd Cir. 1981), the cases admitting parole evidence dealt with an agreement which in effect was an independent undertaking; a primary obligation rather than a secondary or collateral obligation of suretyship. Appellee does not argue that Mr. Bryant’s agreement was anything more than one of suretyship.


author: REDMANN, Chief Judge.

text:
    Dorothy Glasper WASHINGTON v. Stephen WASHINGTON.
    No. 12990.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 13, 1982.
    Edgar K. Corey, New Orleans, for relator.
    Cheryl Horton Kolb, New Orleans, for respondent.
    Before REDMANN, C. J., and GULOTTA and KLIEBERT, JJ.
   REDMANN, Chief Judge.

We granted certiorari to review and we now set aside a sentence for contempt for non-payment of child support against a disabled father who apparently has no income other than Social Security disability benefits.

The father is disabled from working. He receives one monthly check and his children receive another from the Social Security Administration on account of his disability. The mother of the children is employed but finds the total of her earnings and the children’s Social Security benefits inadequate for their needs. The parents’ former community owns a house in which the mother and the children live, and there is a claim (perhaps by now a settlement) in the United States District Court for the father’s injury that may have substantial value. As of trial of the contempt rule, however, and apparently on the trial of earlier proceedings, the father did not have any income other than his Social Security disability benefits and he had no other capital assets out of which support could be ordered paid. The record shows that the children also receive (as did formerly the mother) Social Security benefits, presumably in the amount that Congress has provided.

In view of the Supremacy clause, U.S. Const. Art. VI, and in view of 42 U.S.C. § 407, exempting Social Security benefits from “execution, levy, attachment, garnishment, or other legal process,” we conclude that a state court has no jurisdiction to order, in effect, a payee of Social Security benefits to turn over part of those benefits to his children (themselves the recipients of benefits) and to enforce such an order by contempt proceedings. That order and enforcement amount to “legal process” in violation of 42 U.S.C. § 407.

The sentence for contempt is reversed, and this matter is remanded for further proceedings in respect to the support orders consistent with our view that support cannot be ordered payable, in effect, out of the father’s Social Security benefits.