text:
    Stanley MESSER, Curator, Plaintiff-Appellee, v. Ezola Sonnier HARRIS, Defendant-Appellant.
    No. 83-285.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.
    J. Carol Aymond, Jr., Bunkie, for defendant-appellant.
    Boatner & Luke, R.H. Luke, Bunkie, for plaintiff-appellee.

      Before CUTRER, DOUCET and LA-BORDE, JJ.
   CUTRER, Judge.

Stanley Messer, as curator of the interdict, Albert Harris, Sr., sought a partition of the community which had existed between Albert and his wife, Ezola Sonnier Harris. The trial court ordered a partition by licitation. Mrs. Harris has appealed.

FACTS

On October 20, 1981, Albert Harris, Sr., was interdicted and his son-in-law, Stanley Messer, was made his curator. At that time, and at all times during this lawsuit, Albert Harris, Sr., was married to Ezola Sonnier Harris. After Mr. Harris’ interdiction, Mrs. Harris, acting with a formal power of attorney from her husband executed January 9, 1981, continued to run businesses and manage rental properties which had been acquired during their marriage.

On November 5, 1981, Messer filed a petition seeking a separation of property and a dissolution of the community of ac-quets and gains then existing between the Harrises; Messer also sought an accounting of the community property and an injunction preventing Mrs. Harris from alienating any community property. Mrs. Harris answered the petition. She also filed a reconventional demand seeking payment of three promissory notes issued to her by Mr. Harris. The trial judge, on October 21, 1982, signed a “Consent Judgment for Separation of Property.”

In this judgment the trial judge declared Mr. and Mrs. Harris to be under a separate property regime. The parties, Messer and Mrs. Harris, were ordered to attempt to amicably partition, within thirty days, the property involved. This property consisted of the family home, eight tracts of land, and certain movables. The trial judge indicated that, if the parties were making good faith efforts but were nevertheless unable to agree during the thirty days, a thirty day extension would be considered. Otherwise, the trial judge stated that he would order a partition by licitation.

On December 3, 1982, the parties being unable to agree on a division of the property, Messer filed a “Petition to Partition by Licitation.” Mrs. Harris answered the petition; in a reconventional demand she asked that the trial court divide the property in kind and that she be awarded payment of the promissory notes mentioned earlier.

A hearing on this matter was held on January 25, 1983. After that hearing the trial judge ordered all of the property of Mr. and Mrs. Harris’ former community sold at a public sale to effect a partition by licitation. The trial judge also found the promissory notes held by Mrs. Harris were not collectable as they had prescribed.

Mrs. Harris has brought the instant appeal specifying as error: (1) the trial judge’s failure to award her the amount of the promissory notes plus interest; and (2) the trial judge’s ordering the sale of all properties to effect a partition by licitation.

THE PROMISSORY NOTES

Concerning the promissory notes, each of which were issued in 1963, the trial judge found that prescription had run. A review of the record reveals no evidence of Mr. Harris acknowledging the debts after prescription had run or any evidence to indicate the tolling of prescription. The trial judge’s ruling, in this respect, is correct and will be affirmed. See: LSA-C.C. art. 3540 and art. 3544; LSA-R.S. 10:3-108.

PARTITION

Mrs. Harris has challenged, on appeal, the trial judge’s order that the property of the former community be sold to effect a partition by licitation. Her motion for a devolutive appeal was dated February 3, 1983. At oral argument the panel was informed that, pursuant to the trial judge’s order, a sheriffs sale had taken place and all of the property in dispute had been sold. There is no dispute about whether the sale took place. The fact that the sale has occurred renders moot Mrs. Harris’ appeal on that issue. Under these circumstances, the jurisprudence is established that the appeal of this issue is subject to dismissal.

As was stated by this court in City Finance Co., Etc. v. Johnson, 410 So.2d 1189 (La.App. 3rd Cir.1982), in a case involving a devolutive appeal from a trial court’s denial of injunctive relief to stop a marshall’s sale “we know of no order or judgment this court could render which would grant appellant the relief she seeks or undo that which has already been done.”

For the reasons stated above the trial court’s judgment is affirmed insofar as the dismissal of the claim on the promissory notes is concerned; that portion of the appeal dealing with the partition of the property is dismissed for mootness. Defendant-appellant herein shall be charged with all costs of this appeal.

AFFIRMED IN PART; DISMISSED IN PART.

      . This petition was placed in the suit record which was opened for plaintiffs November 5, 1981 petition. This was not a new suit.

      . The trial judge repeated his earlier judgment for support in the amount of $1,500.00 in favor of Messer. The trial judge also ruled on two other claims raised by the parties; these rulings were not challenged on appeal and need not be discussed further.

      . Mrs. Harris’ attorney conceded the sale had taken place but argued this court should decide certain questions dealing with debts of the community. That question is not before us.


source: Caselaw Access Project

author: CUTRER, Judge.

license: Public Domain

text:
    Citizen KING, on Behalf of his minor son, Glenn Patrick KING, Plaintiff-Appellant, v. INSURANCE COMPANY OF NORTH AMERICA, Defendant-Appellee.
    No. 83-287.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.
    James L. Babin, Lake Charles, for plaintiff-appellant.
    David L. Hoskins, Lake Charles, for defendant-appellee.
    Before CUTRER, DOUCET and LA-BORDE, JJ.
   CUTRER, Judge.

Citizen King, on behalf of his minor son, Glenn Patrick King filed suit for workmen’s compensation payments allegedly due Glenn as a result of injuries received when Glenn was struck by hot water and steam emanating from a pressure cooker while employed as a part-time helper at a Kentucky Fried Chicken outlet in Lake Charles, Louisiana.

This suit was filed against Insurance Company of North America, the workmen’s compensation carrier of Glenn’s employer. At trial it was stipulated that compensation payments had been paid at the correct weekly rate of $82.66 from the date of the accident to the date of trial, approximately 97 weeks, plus all medical expenses.

The sole issue presented to the trial court is the extent of the disability incurred by Glenn as a result of the injuries.

After trial, the trial judge handed down written reasons rejecting plaintiff’s demands. Judgment was rendered accordingly.

Plaintiff appeals contending that the trial court erred in failing to find that he was permanently totally disabled under the odd-lot doctrine or, in the alternative, plaintiff should be declared partially permanently disabled.

This court has recently enunciated the applicable law as to these issues in the following manner:

“A worker who is unable to return to any gainful employment without suffering substantial pain is entitled to compensation benefits for total disability. Wilson v. Ebasco Services, Inc., 393 So.3d 1248 (La.1981); Dusang v. Henry Beck Builders, Inc., 389 So.2d 367 (La.1980). According to the odd-lot doctrine, an employee is entitled to compensation for total disability when he is rendered unable to perform any job or service for which a reasonable market exists. The term ‘any gainful employment', as used in the workmen’s compensation statute, is interpreted to mean any gainful occupation which, as a practical matter, affords the claimant an opportunity for employment. Wilson v. Ebasco Services, Inc., supra.
“A worker is partially disabled under LSA-R.S. 23:1221(3) when he cannot perform the duties required by his former employment but can still do other work. Scott v. Sears, Roebuck & Company, 406 So. 2d 701 (La.App. 3rd Cir.1981). Partial disability also includes the situation where a workman would experience substantial pain when working in his former occupation, but where he could perform other work without experiencing such pain. McBroom v. Argonaut Insurance Company, 370 So.2d 212 (La.App. 3rd Cir. 1979), writ denied, 371 So.2d 1342 (La.1979)- The determination of disability and the existence of substantial pain are questions of fact which may not be disturbed on appeal unless clearly wrong. Newell v. U.S. Fidelity and Guaranty Co., 368 So.2d 1158 (La. App. 3rd Cir.1979).”

Bernard v. Merit Drilling Co., 434 So.2d 1282, 1285-1286 (La.App. 3rd Cir.1983).

The trial judge handed down well written reasons for rejecting plaintiff’s demands. We have examined these reasons in light of the principles set forth in Bernard above and fully agree with the trial judge’s reasons which read as follow:

“Citizen King filed this suit on behalf of his minor son, Patrick Glenn King to recover workmen’s compensation benefits, penalties, interest and attorney’s fees. During the pendency of the lawsuit, Patrick reached his eighteenth (18) birthday and he has now been substituted as party-plaintiff. At trial it was stipulated that the accident in which Patrick was injured did occur in the course and scope of his employment as a part time kitchen helper and cook at a Kentucky Fried Chicken Restaurant. It was also stipulated that workmen’s compensation benefits had been paid to the date of trial and all known medical expenses had also been paid. Therefore, the only issue for this court to determine is the extent and duration of any disability.
“At the time of his injury plaintiff was sixteen (16) years of age and a full time school student. Prior to the accident he was on the varsity football and track teams. He had also played in the school band. At the time of trial, plaintiff was a freshman at Southern University in Baton Rouge.
“On November 20, 1980, plaintiff was scalded by steam and heated water from a pressure cooker. His chest, abdomen and upper arms suffered first, second and minimal third degree burns. He was hospitalized for approximately one month and then released. He then continued his high school studies. During the 1981-1982 school year, Patrick played in the school’s marching band and participated in the physical education program. Both the band director and the physical education instructor testified that Patrick engaged in the same activities as the other students.
“After his return to full time classes, plaintiffs real problem was the scarring that resulted from the burns. In this connection, Patrick was treated by Dr. Louis Mes, a plastic and reconstructive surgeon in Lafayette, Louisiana. In December of 1981, Dr. Mes performed surgery to relieve a mild range-of-motion impairment caused by scars in the left arm pit. Patrick testified that the operation did not fully relieve his problem. Dr. Mes testified in his deposition that the surgery was successful and there was no residual functional impairment.
“At trial Patrick testified that while he has no physical impairment, the scars are sensitive to heat. He explained that heat causes the scars to itch. He has been applying coco butter and cortisone to the affected areas and this gives him some relief.
“Dr. Mes testified that plaintiffs scarring will tend to flatten out in time and will become less sensitive to heat. The doctor testified that a second operation to remove some of the scarring will reduce the area of sensitivity, however such an operation will leave surgical scars. Dr. Mes could not estimate prior to actual surgery how much a reduction he could make. He did say that the sensitivity would be reduced in direct proportion to the reduction of scarring, i.e., thirty per cent (30%) reduction of scars would produce a thirty per cent (30%) reduction of heat sensitivity. As the court appreciated Dr. Mes’ views, he was not recommending the second operation. The decision on whether or not to have the operation was left entirely to the patient.
“The Court concludes, after having heard the plaintiff and read the deposition of Dr. Mes that the claimant can physically perform just as well after the accident as prior thereto. The difference however is that exposure to heat causes an itching sensation. This has been described as a discomfort and an irritation. Also, plaintiff testified it was not constant. Plaintiff also testified that at time of trial he was working in the library at Southern University in air conditioned surroundings.
“Plaintiff contends he is totally and permanently disabled. In support of his position, he cites Cottonham v. Rockwood Insurance Company, 403 So.2d 773 (La.App. 3rd Cir.1981), [writ denied, 407 So.2d 732 (La.1981)] and Whittaker [Whitaker] v. Church’s Fried Chicken, Inc., 387 So.2d 1093 (La.1980).
“Cottonham dealt with a worker whose injuries left him permanently paralyzed from the waist down and in a state of constant disabling pain. Despite his paralysis, the claimant was able to return to his job, but worked in substantial and debilitating pain. The sole question before the Cottonham court was whether the claimant could be considered totally disabled in light of the fact that his disabling pain was caused by his paraplegia rather than by the duties of his employment. It is hardly surprising that the Third Cir cuit affirmed the lower court’s total disability finding. The court, quite predictably, concluded that a worker who cannot return to any gainful employment without suffering substantial and debilitating pain must be considered totally disabled, even though he will suffer the same pain if he does not work at all. There is no evidence to indicate that Patrick King is suffering substantial and debilitating pain as shown in Cottonham.
“Although superficially similar to the instant case (the claimant was a sixteen-year-old janitorial worker at Church’s Fried Chicken who was severely burned' in an on-the-job accident) Whitaker, too, is inapposite. The medical evidence in that case established that the claimant suffered keloid burn scars which would worsen in time. The scars were described as ‘unstable, subject to irritation, infection, and ulceration, followed by additional scarring in a vicious cycle.’ He suffered severe disabling pain and constant discomfort. Moreover, his limited education (four years of grammar school) and limited intellectual capacity (clerical skills, reading comprehension, and the like were beyond his ‘meager abilities, ’) rendering him incapable of alternative employment. The Whitaker court concluded that the claimant had been rendered an ‘odd lot’ on the labor market and was, therefore, permanently disabled within the meaning of the act.
As the medical evidence shows, Patrick King’s scars are not keloids. They will not worsen over time. He has suffered none of the instability, irritation, infection, ulceration, or vicious cycle of additional scarring described in Whitaker. He suffers neither severe and disabling pain nor constant discomfort. He labors under none of the intellectual or educational restrictions described in Whitaker, and thus has not been rendered an ‘odd lot’ on the employment market. While plaintiff may have a mild potential environmental restriction regarding employment, the court concludes he is not disabled within the meaning of the workmen’s compensation act.”
1 His duties included cleaning up, taking out garbage, general janitorial tasks, cooking chicken and serving as general kitchen help.

We find that no manifest error was committed in denying the plaintiff any further payments under the workmen’s compensation statute, either under the theory of permanent total disability under the “odd lot” doctrine or for permanent partial disability. The plaintiff has been paid adequate compensation payments; he received approximately 97 weekly payments of $82.66, plus all medical expenses.

For these reasons we affirm the judgment of the trial court. All costs of this appeal are assessed against plaintiff-appellant.

AFFIRMED.

      . Glenn King reached the age of majority before trial and was substituted as party-plaintiff.


author: STOKER, Judge.

text:
    Efton THOMAS, Plaintiff-Appellant, v. AETNA CASUALTY & SURETY COMPANY, Defendant-Appellee.
    No. 83-296.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.

      Preston N. Aucoin, Ville Platte, for plaintiff-appellant.
    Martin & Taulbee, Edward 0. Taulbee IV, Lafayette, for defendant-appellee.
    Before DOMENGEAUX, STOKER and YELVERTON, JJ.
   STOKER, Judge.

Plaintiff, Efton Thomas, appeals from the dismissal of his suit for worker’s compensation benefits against Aetna Casualty & Surety Company, the worker’s compensation insurer for plaintiffs employer Hawk Pipe Service. We affirm.

Mr. Thomas injured his shoulder at work on March 16, 1982, while lifting a pipe. The parties stipulated to the occurrence of the accident and to the payment of worker’s compensation benefits in the amount of $183.00 for fourteen weeks. Compensation was terminated on June 23, 1982. The parties also stipulated that the compensation rate should be $133.01. Apparently Aetna overpaid Mr. Thomas for fourteen weeks, but it has made no claim for set-off.

On appeal, Mr. Thomas claims that the trial court erred in failing to find him totally and permanently disabled and in failing to award penalties and attorney’s fees. Because we affirm the trial court’s finding as to disability we do not reach the issue of penalties and attorney’s fees.

The only medical evidence presented at trial consisted of the deposition of Dr. Louis C. Blanda, Jr., an orthopedic surgeon. Mr. Thomas first saw Dr. Blanda on March 24, 1982, at which time Dr. Blanda suspected that the shoulder injury was a rotator cuff tear. Dr. Blanda ordered a test called an arthrogram in order to determine if the injury was severe. The arthro-gram was negative and it was Dr. Blanda’s opinion on April 12, 1982, that the injury was a small tear or strain and should be treated conservatively.

Dr. Blanda saw Mr. Thomas regularly after that time, prescribing physical therapy and administering some pain killers. Mr. Thomas was improving at each subsequent visit and on June 23, 1982, Dr. Blan-da discharged him to return to work. At this time, Dr. Blanda reported that Mr. Thomas had a “good range of motion and normal findings as far as muscle strength is concerned.” On the basis of these findings by Dr. Blanda, Aetna terminated compensation payments.

By letter dated June 30,1982, counsel for Mr. Thomas requested that Aetna reinstate benefits claiming that Mr. Thomas remained disabled. Aetna refused and this suit was filed.

In support of his claim that he remains disabled, Mr. Thomas relies primarily on the testimony of himself, his mother, and a neighbor, Curtis Celestine. Both Mr. Thomas and his mother testified that he has been unable to work since his accident because of the pain in his shoulder. Each testified that his efforts to do work around the house were unsuccessful. Mr. Celes-tine testified that Mr. Thomas once tried to mow his yard in July of 1982 but was unable to finish because of the pain in his shoulder.

Mr. Thomas testified at trial that he has continuously been in pain since his accident. Contrary to Dr. Blanda’s statements, Mr. Thomas claims that he was still complaining of pain on June 23, 1982. Mr. Thomas admitted that he did not return to work after being discharged by the doctor because he did not have transportation from his home in Ville Platte to the job in Lafayette.

Since being released by Dr. Blanda on June 23, Mr. Thomas has sought no further medical treatment. Dr. Blanda admitted that if the patient had continued to have pain he would have continued treatment and testing, but the trial court was not convinced by the lay testimony that Mr. Thomas had continued to suffer. In this regard, the trial court stated:

“This Court was not favorably impressed with plaintiff’s lay witnesses for a number of reasons, including the fact that he never sought medical aid from a local physician, the defendant insurance company, or even the Charity Hospital. It would be reasonable to expect if the man was disabled or suffering great pain he would at least have sought the services of a general practitioner and/or made a request of the insurance company for a medical examination and treatment.”

The trial court’s factual findings as to disability are entitled to great weight and should not be disturbed unless clearly wrong. Culp v. Belden Corporation, 416 So.2d 1311 (La.App. 3rd Cir.1982). We are aware that medical and lay testimony must be considered in determining disability; however, it is the trial court’s function to determine the weight accorded to that testimony. Fredericks v. Associated Indemnity Corporation, 401 So.2d 575 (La.App. 3rd Cir.1981). The trial court in this case was not clearly wrong in its disability determination. More weight was given to the doctor’s unqualified opinion rather than the plaintiff’s somewhat contradictory testimony.

For the above reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED.


author: DOMENGEAUX, Judge. STOKER, Judge,

text:
    Carolyn CUMMINGS, Individually, and for the Minors, Michele Cummings and Coleen Cummings, Plaintiffs-Appelles, v. Robert W. NIXON, et al., Defendants-Appellants.
    No. 83-299.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.

      Raggio, Cappel, Chozen & Berniard, Frederick L. Cappel, Lake Charles, for defendant-appellant.
    Caskey & Pizzolatto, Nick Pizzolatto, Jr., Lake Charles, for plaintiff-appellee.
    Russell T. Tritico, Lake Charles, for defendant-appellee.
    Before DOMENGEAUX, STOKER and YELVERTON, JJ.
   DOMENGEAUX, Judge.

This litigation arises from an automobile accident which occurred on July 8, 1980, in Lake Charles, Louisiana. Plaintiff-appel-lee, Carolyn Cummings, and her two minor daughters, Michele and Coleen, were occupants of a vehicle which was struck by an automobile operated by defendant, Robert W. Nixon.

The parties stipulated that the accident was caused solely by the negligence of Nixon, thus leaving only the damage issue to be determined at trial. After trial of the matter judgment was granted against Nixon’s insurer, St. Paul Fire & Marine Insurance Company, and in favor of the plaintiff in the amount of $4,328.55 in special damages. Additionally the jury awarded general damages to Carolyn Cummings of $16,000.00 for herself, $5,000.00 for Michele Cummings, and $1,000.00 for Coleen Cummings.

Defendant insurer, St. Paul Fire & Marine Insurance Company, perfected this suspensive appeal seeking reduction of the award. The appellee has answered the appeal asking that the awards be increased.

La.C.C. Art. 1934(3) provides that in the assessment of general damages, “much discretion must be left to the judge or jury * * *.” In elaborating on the methodology of appellate review of awards for general damages the Louisiana Supreme Court in Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977) stated that:

“... before a Court of Appeal can disturb an award made by a trial court that the record must clearly reveal that the trier of fact abused its discretion in making its award. Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court. It is never appropriate for a Court of Appeal, having found that the trial court has abused its discretion, simply to decide what it considers an appropriate award on the basis of the evidence.” Coco, at 335 (citations omitted).

Thus, the analysis should be directed toward whether the factfinder has abused his/their much discretion in compensating the plaintiff for this particular injury taking into consideration the effect such injury had on this particular plaintiff.

“It is only after [an] articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review, for articulated reason, be considered either excessive, Carollo v. Wil son, 353 So.2d 249 (La.1977); Schexnayder v. Carpenter, 346 So.2d 196 (La.1977), or insufficient, Olds v. Ashley, 250 La. 935, 200 So.2d 1 (1967). Only after such determination of abuse has been reached, is a resort to prior awards appropriate under Coco for purposes of then determining what would be an appropriate award for the present case.” Reck v. Stevens, 373 So.2d 498, 501 (La.1979).

After analyzing the facts in this case we find that the jury did not abuse its discretion in making its award.

As to the $4,328.55 in special damages, the record clearly supports this award with bills representing charges for medical expenses, repairs to the vehicle, towing charges and rental car expenses.

As to the general damages awarded Carolyn Cummings, the jury simply believed her testimony as it related to the effect the accident had upon her and her two daughters, both physically and emotionally. There is evidence in the record that Mrs. Cummings was seen in the emergency room of St. Patrick’s Hospital. The examining physician’s medical report notes abrasions of both knees, right shoulder pain, stiffness and pain in the neck. Mrs. Cummings later consulted a local orthopaedic surgeon on multiple occasions for treatment of these conditions. Additionally, Mrs. Cummings testified that she developed a fear of driving as a result of the accident, and that she still had the fear on the day of the trial, some thirty months after the accident. In connection therewith, Mrs. Cummings’ job required an extensive amount of driving and because of her fear, she felt it necessary to quit her job after the accident. In an attempt to overcome this fear the plaintiff consulted a Doctor Shirley in Jennings on three occasions for psycho-therapy sessions. Mrs. Cummings further testified that she was distressed by the fact that bills for her and her daughters’ medical expenses were unpaid and she had begun receiving collection notices.

The jury’s award of $16,000.00 in general damages indicates its appreciation of the severity of the emotional and physical trauma caused Ms. Cummings as well as the mental anguish she suffered from the loss of her job. The issue here is whether the jury has abused its much discretion, not whether a lower (or higher) award would be appropriate. And, in addressing the issue on that basis we cannot say the facts disclosed an abuse of discretion.

General damages in the amount of $5,000.00 were awarded for Michele Cummings and likewise general damages in the amount of $1,000.00 were awarded for Coleen Cummings. In connection therewith the record reveals: (1) that both children experienced sleepless nights after the accident; (2) that Michele had a great fear of traffic and hides her face if traffic gets heavy; (3) that Coleen had a knot on her shin which remained for about two months; (4) that Michele had a bruised forehead which caused her pain for some time. “There is no rule or standard of law fixing or establishing the amount of recovery and each case consequently must rest on its own set of facts.” Reck v. Stevens, supra, at 505. In this case it is the jury who as the trier of fact heard the witnesses and observed their demeanor. And as we earlier stated the question on appeal is whether the jury has abused its discretion in making the awards. We cannot say that the jury has abused its great discretion by making the above stated awards of general damages.

For the above and foregoing reasons the judgment of the trial court is affirmed. The defendant-appellant is to pay all costs of these proceedings.

AFFIRMED.

STOKER, J., dissents with respect to the quantum issue and assigns written reasons.

STOKER, Judge,

dissenting.

With respect I dissent as to the awards to Carolyn Cummings and Michele Cummings. Actual physical injury sustained by these claimants was not extraordinary. Carolyn Cummings’ major complaint was the development of a fear of driving. Michele developed a fear of riding in automobiles. Proof of these fears, in my opinion, was not substantial or persuasive. I feel that the highest awards within the jury’s discretion would have been $7,500 for Carolyn Cummings and $2,500 for Michele Cummings.

      . There is no explanation either in the record or in briefs (oral argument was waived) as to why defendant Nixon was not cast in judgment. In any event no issue is made of that omission.


author: DOMENGEAUX, Judge.

text:
    John G. THIBODEAUX, Plaintiff-Appellant, v. DRESSER INDUSTRIES, INC., Defendant-Appellee.
    No. 83-304.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.
    Writ Denied March 9, 1984.
    Pucheu, Pucheu & Pucheu, Jaeque B. Pucheu, Eunice, for plaintiff-appellant.
    Guillory, McGee, Mayeux & Fontenot, A. Frank McGee, Eunice, for defendant-appel-lee.
    Before DOMENGEAUX, STOKER and YELVERTON, JJ.
   DOMENGEAUX, Judge.

This case results from earlier proceedings wherein we awarded compensation benefits to plaintiff and the Louisiana Supreme Court subsequently denied writs. Initially plaintiff obtained a judgment ordering the defendant, Dresser Industries, Inc., to pay weekly compensation benefits at the rate of $111.20 per week beginning August 1, 1978, and continuing for the duration of plaintiff’s disability, with legal interest on each past due installment from its due date until paid. Defendant appealed the lower court’s judgment to this Court. We affirmed the award of compensation benefits but amended the trial court’s judgment to award plaintiff the sum of $5,000.00 as attorney’s fees and twelve (12%) percent penalties. See John G. Thibodeaux v. Dresser Industries, Inc., 407 So.2d 37 (La.App. 3rd Cir.1982), writ denied, 412 So.2d 85 (La.1982).

On March 15, 1982, defendant paid plaintiff compensation benefits covering the period through March 18, 1982. The interest on the attorney’s fees, which had been ordered by this Court, were paid on June 9, 1982. On June 16, 1982, defendant paid plaintiff compensation due for the period from March 18th to June 3rd. On July 23, 1982, plaintiff filed a rule to accelerate payments under the provisions of La.R.S. 23:1333. The trial court refused to accelerate the payments stating that the facts of this case did not bring it within the purview of La.R.S. 23:1333. Plaintiff appeals such refusal. We affirm.

The sole issue presented by this appeal is whether plaintiff is entitled to acceleration of all of the weekly compensation benefits under the provisions of La.R.S. 23:1333.

“In Johnson v. Continental Insurance Companies, 410 So.2d 1058 (La.1982) our supreme court was confronted with the same issue and similar circumstances. In that case due to an administrative error plaintiff was taken off the insurance company’s weekly diary. Upon discovering the error the company promptly paid the plaintiff the benefits owed. The trial court found that the company had not willfully refused to pay plaintiff benefits and therefore denied the plaintiff acceleration of benefits under 23:1333. The appellate court affirmed, 396 So.2d 2 (La.App. 1 Cir.1981). Writs were granted to review this interpretation of LSA-R.S. 23:1333 and the supreme court concluded:
‘In the instant case, defendant’s failure to pay six successive installments was due to an administrative error in its office. Defendant made prompt payment, however, when the delinquency was brought to the attention of its supervisory employees. Under these circumstances, defendant did not ‘willfully’ refuse to pay. ‘The uniform interpretation of R.S. 23:1333 by the courts since the statute was enacted compels a conclusion that section 1333 should not apply to a situation where there was no ‘willful refusal’ to pay. Other penalty provisions in the compensation act apply when the failure to pay or discontinuance of payment of a claim is found to be arbitrary, capricious or without probable cause. R.S. 22:658 (insurer); R.S. 23:1201.2 (uninsured employer).’ ”

Clary v. Nabors—Sun Drilling, etc., 417 So.2d 119, 121 (La.App. 3rd Cir.1982), writ denied, 420 So.2d 457 (La.1982), (Emphasis added).

The record clearly indicates herein that the defendant was delinquent in the payment of disability benefits over a six or seven week period. It is thus imperative that the reason for the delinquency be considered.

Defendant, Dresser Industries, Inc., retains the services of Underwriters Adjusting Company to handle their worker’s compensation claims. Two of the adjusting company’s employees were involved in handling the plaintiff’s case. They were Mr. Keith Turner, who was the adjuster in charge, and Mrs. Gay Angelle, who was the employee responsible for preparing the checks and keeping up the “diary”.

Mr. Turner’s testimony was to the effect that he issued the appropriate orders to place Mr. Thibodeaux’s name “on diary” after the payment of June 3, 1982, but because of a mere oversight the proper action was not taken. This failure to so enter his name in the diary resulted in plaintiff’s claim not coming up for payment on the subsequent weeks. Additionally, Mr. Turner indicated that this oversight was further complicated by virtue of the fact that after the issuance of the checks on June 3, 1982, he took a vacation and once he returned to his office there was nothing to call this matter to his attention. Understanding the workings of the diary system, it logically follows that once the error was committed the only way the matter would be called to the attention of the adjusting agency is if the claimant employee or his attorney calls their attention to the delinquencies. Here the oversight was called to the attention of the adjuster by virtue of the filing of this suit and the problem has long since been rectified.

Mr. Turner’s testimony and the defendant’s exhibit which consists of various work requisition forms and diary pages, substantiate the fact that although an error was made, it was an honest one. There was nothing intentional, wanton, or wilful, about this omission, but rather, this set of unfortunate events was caused by a mere administrative oversight.

“Courts have treated section 1333 as a penalty or forfeiture against the employer and have held, therefore, that this section must be strictly construed. Dixon v. King, 178 La. 1, 150 So. 385 (1933); Mason v. Costanza, 166 La. 323, 117 So. 240 (1928). Thus, judgments of acceleration of payments have been awarded only on infrequent occasions.”

Johnson v. Continental Ins. Companies, 410 So.2d 1058, 1060 (La.1982).

Under the strict construction given by the Court to Section 1333 its acceleration principle does not apply where there was no “willful refusal” to pay.

For the above and foregoing reasons the judgment of the trial court denying acceleration of the plaintiff’s compensation payments is affirmed. Plaintiff is to pay all costs, both at trial and on appeal.

AFFIRMED.

      . La.R.S. 23:1333 provides:
      "If the employer against whom a judgment awarding compensation has been rendered becomes insolvent or fails to pay six successive installments as they become due, the installments not yet payable under the judgment shall immediately become due and exigible and the judgment shall become executory for the whole amount; but if the employee or his dependent is adequately protected by insurance and receives payment thereunder this right shall not accrue.”

      . Underwriters Adjusting Company utilizes a bookkeeping system whereby a claimant’s name is placed on a ledger for each date a payment is due. The ledger is checked every morning and a check is issued to whomever benefits are due.


author: YELVERTON, Judge.

text:
    Little J. THOMPSON, et ux., Plaintiffs-Appellants, v. CANE GARDENS APARTMENTS, Defendant-Appellee.
    No. 83-314.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.

      Thomas, Dunahoe & Gregory, A.J. Gregory, Jr., Natchitoches, for plaintiffs-appellants.
    Brittain & Williams, Jack 0. Brittain, Natchitoches, for defendant-appellee.
    Before DOMENGEAUX, STOKER and YELYERTON, JJ.
   YELVERTON, Judge.

Plaintiffs, Little Joe Thompson and his wife, Ira Hyde Thompson, filed suit against defendant, Cane Garden Apartments, alleging the breach of a lease agreement. They alleged that defendant failed to provide plaintiffs with a safe and secure apartment as promised. Allegedly as a result of the breach, an intruder was able to gain access to their apartment and brutally assault the plaintiffs. The defendants filed exceptions of no cause of action and prescription. The plaintiffs appeal the dismissal of their suit following the sustaining of defendant’s exception of no cause of action.

The issues on appeal are whether (1) the trial court erred in granting the defendant’s exception of no cause of action, and (2) if so, whether the plaintiffs’ action has prescribed. We find that the exception of no cause of action was improperly maintained and we overrule the exception of prescription. Accordingly, we reverse and remand for the reasons which we will now explain.

Exception of No Cause of Action

As this court stated in Ingram v. Reliable Finance Company, Inc., 410 So.2d 768 (La.App. 3rd Cir.1981):

[1, 2] Our jurisprudence is well settled that the exception of no cause of action is tried solely on the face of the petition and attached documents. In ruling on an exception of no cause of action, all well-pleaded facts in the petition and attached documents must be accepted as true and any doubt must be resolved in favor of the sufficiency of the pleadings to state a cause of action. Guillory v. Nicklos Oil & Gas Company, 315 So.2d 878 (La.App. 3rd Cir.1975).

The petition in the instant case alleges that on April 1, 1981, the plaintiffs entered into a lease agreement with the defendant for the rental of an apartment. At that time, according to the petition, agents for the defendant assured the plaintiffs that security measures would be taken to provide a safe environment for the elderly and to prevent them from worrying about intruders. It is alleged that plaintiffs were further advised that security guards would be on duty. The lease agreement, attached to the petition, provided that the lessors would maintain the premises in a decent and safe condition. The petition then alleges that on July 24, 1981, due to a breach of the lessor’s obligation to provide plaintiff with a safe and secure environment, an intruder was able to gain access to the plaintiffs’ apartment and assault the plaintiffs.

Although LSA-C.C. art. 2703 absolves the lessor from liability for torts against the lessee committed by third persons who claim no right to the leased premises, a lessor may be held liable where the lessor makes implied or express obligations of security maintenance to the lessee, and a breach thereof is the proximate cause of a tort committed by a third person intruder. See Gant v. Flint-Goodridge Hospital of Dillard, 359 So.2d 279 (La.App. 4th Cir.1978); and Carline v. Lewis, 400 So.2d 1167 (La.App. 1st Cir.1981).

In Carline v. Lewis, supra, the plaintiff filed suit alleging that a defective window in her apartment allowed the undisturbed entry by an intruder who assaulted her. Additionally, she alleged that the defendants-lessors warranted that there was a security guard on duty. The defendants moved for summary judgment claiming that a lessor is not bound to protect the lessee against disturbances caused by persons not claiming any right to the premises. The trial court granted the defendants’ motion for summary judgment. In reversing the trial court the appellate court observed that neither side discussed the allegation that there would be a security guard on duty, and found a genuine issue of material fact as to whether there was a security guard in the employ of the defendant and, if there was, whether he was properly performing his duty.

In the present case the allegations, accepted as true, establish that agents for the defendant assured the plaintiffs that security measures would be taken to provide a safe environment for the elderly and to keep them from having to worry about intruders. The plaintiffs were further advised that security guards would be on duty. Due to a breach of the lessor’s obligation to provide plaintiffs a safe and secure environment, an intruder was able to gain' entrance into the plaintiffs’ apartment and harm them. Under these facts we find the plaintiffs’ petition does state a cause of action.

Prescription

On appeal the defendants also argue that plaintiffs’ suit for damages has prescribed since the suit was not brought against the defendant within one year from the date of the incident. The defendant contends and the trial court held, that plaintiffs’ petition is a suit for damages in tort and not one in contract. The defendant’s exception of prescription had been timely pleaded at the trial court level.

Although the exception of prescription was not the basis of the trial court’s dismissal, the exception is before this Court and may be decided by us pursuant to LSA-C.C.P. art. 2163 since the exception was timely pleaded in accordance with C.C.P. art. 927. See Allen v. Michell, 303 So.2d 214 (La.App. 4th Cir.1974).

In order to determine the applicable prescriptive period we must determine whether this action is a suit in contract or an action in tort. In McCrory Corp. v. Latter, 331 So.2d 577 (La.App. 1st Cir.1976), writ denied 334 So.2d 229 (La.1976), the plaintiff-lessee filed suit against his lessor and the lessor’s insurer for damages caused by intrusion of water into the leased premises. The plaintiff alleged that his lessor breached a provision of the lease agreement that required the landlord to “keep the basement (if any) of the leased premises waterproof.” The defendant-insurer filed a peremptory exception pleading that the prescriptive period applicable to an action ex delicto applied and that more than one year had elapsed from the date of the damage to the date of filing suit and that accordingly plaintiff’s claim had prescribed. The trial judge overruled the exception. On appeal the court affirmed the trial court’s decision by stating:

[1,2] We do not view this latter provision as a mere covenant to repair. If it means what it says, it is an obligation to keep the basement waterproof. The failure of this obligation is not only a breach of the contract but is also a breach of the landlord’s statutory obligation to maintain the lessee in the peaceable possession of the leased premises during the continuance of the lease, LSA-C.C. Art. 2692,2 and to guarantee him against all of the vices and defects of the thing leased, LSA-C.C. Art. 2695.3 Thus, there was a breach of both the landlord’s contractual duty as well as the statutory duties imposed upon him by law.
[3] Recently the Louisiana Supreme Court in Federal Insurance Company v. Insurance Company of North America, 262 La. 509, 263 So.2d 871 (1972), stated:
“It has been recognized by this Court on numerous occasions that when a party has been damaged by the conduct of another arising out of a contractural [sic] relationship, the former may have two remedies, a suit in contract, or an action in tort, and that he may elect to recover his damages in either of the two actions. In such cases, the prescription applicable is determined by the character which plaintiff gives his pleadings and the form of his action. * * * ” (263 So.2d at 872)
Therefore, it is enough for us to decide that plaintiff brought its suit in contract, alleging that the contract was breached and that the damages which may be awarded are those sustained because of the other party’s default, LSA-C.C. Art. 1930.4 All of the damages here sued for are those which resulted from the landlord’s failure of his contractual duty to keep the basement waterproof.
The law is well settled that an action on a breach of contract prescribes in ten years, LSA-C.C. Art. 3544 and Federal Insurance Company v. Insurance Company of North America, supra.

In the present case the plaintiffs brought suit in contract alleging that the lease agreement between the parties was breached when an intruder was able to gain entrance into their apartment.

We find that such an action may have been brought either by a suit in contract or an action in tort. See the dissenting opinion in Gant, supra. In this case the plaintiffs clearly brought their suit in contract and the action on a breach of contract prescribes in ten years. LSA-C.C. art. 3544. For these reasons plaintiffs’ suit has not prescribed.

The judgment of the trial court is reversed, and the case is remanded for further proceedings consistent with the views expressed herein. All costs of this appeal are to be paid by defendant-appellee.

REVERSED AND REMANDED.


text:
    Valerie Ann DUCOTE, Plaintiff-Appellee, v. Rodney J. DUCOTE, Jr., Defendant-Appellant.
    No. 83-318.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.

      Sumpter & Schrumpf, Charles Schrumpf, Sulphur, for defendant-appellant.
    Hunt, Godwin, Painter & Roddy, Fred R. Godwin, Lake Charles, for plaintiff-appel-lee.
    Before DOMENGEAÜX, STOKER and YELYERTON, JJ.
   STOKER, Judge.

Defendant, Rodney Ducote, appeals from a judgment of the trial court declaring invalid an act of donation inter vivos to him from plaintiff, Valerie Ducote, and an act between the parties captioned “Community Property Agreement”.

Valerie brought this suit to annul the purported donation and community property settlement. After Rodney answered the petition, Valerie filed a motion for summary judgment alleging that there was no genuine issue of material fact as to either of the acts in question and that she was entitled to judgment in her favor as a matter of law. The trial court granted this motion and we affirm. Each act is discussed individually below.

DONATION INTER VIVOS

In her petition, Valerie asserts that the donation is invalid (1) because it is not in authentic form, (2) because she did not reserve to herself enough of her property for subsistence, and (3) because her consent was obtained through the exercise of threats and undue influence by Rodney. The only basis urged for the motion for summary judgment is that the act is not in authentic form.

The donation in question purports to transfer Valerie’s one-half interest in community property consisting of two lots in a subdivision and a promissory note payable to Rodney and Valerie. The parties stipulated that the donation was executed before a notary and two witnesses, but the act has never been signed by the witnesses.

LSA-C.C. art. 1536 requires that donations inter vivos of immovable and incorporeal property be made by an act passed before a notary and two witnesses. LSA-C.C. art. 2234 makes the same requirement for an authentic act, an act which is self-proving under LSA-C.C. art. 2236. In order to be authentic an act must appear on its face to have been executed in the manner required by law. Mossler Acceptance Co. v. Osborne, 14 So.2d 492 (La. App. 1st Cir.1943); West Louisiana Bank v. Dawson, 154 La. 830, 98 So. 262 (1923). The act must be signed by the witnesses, the notary, and the parties to the act. Rittiner v. Sinclair, 374 So.2d 680 (La.App. 4th Cir.1978); Thomas v. Kean, 10 Rob. 80 (La.1845). We have no difficulty in concluding that the act of donation before us is not authentic. We must now determine what effect, if any, the act may have.

On appeal Rodney urges that LSA-C.C. arts. 2242 and 2291 should be applied to find that the donation in question was proved to have been procedurally executed in proper form. These articles provide:

“Art. 2242. An act under private signature, acknowledged by the party against whom it is adduced, or legally held to be acknowledged, has, between those who have subscribed it, and their heirs and assigns, the same credit as an authentic act.
“Art. 2291. The judicial confession is the declaration which the party, or his special attorney in fact, makes in a judicial proceeding.
“It amounts to full proof against him who has made it.
“It can not be divided against him.
“It can not be revoked, unless it be proved to have been made through an error in fact.
“It can not be revoked on a pretense of an error in law.”

Having determined that the act before us is not authentic, we reject the contention that it can be made effective through action provided in either of the above articles. The purported donation of immovable and incorporeal property can be considered as nothing more than an act under private signature duly acknowledged and, as such, is absolutely null. See Gabert v. St. Tammany Yacht Club, 166 La. 57, 116 So. 667 (1928) and Sarpy v. Sarpy, 354 So.2d 572 (La.App. 4th Cir.1977), writ denied, 356 So.2d 436 (La.1978).

LSA-C.C. art. 2240 permits all acts to be executed under private signature except those which “positive laws have ordained to be passed in presence of a notary.” The trial court in this case properly applied the rationale of American Bank and Trust Co. in Monroe v. Carson Homes, Inc., 316 So.2d 732 (La.1975), in which the Supreme Court held that a mortgage which was executed under private signature could not be used as a basis for executory process.

■ Virtually the same issues in the case before us were involved in American Bank and Trust Co. in Monroe v. Carson Homes, Inc., supra. The Supreme Court held there that LSA-C.C. art. 2242 was a general provision of law, but the laws relating to executory process must be strictly followed because they are specific provisions of law. Therefore, inasmuch as evidence in authentic form was required in executory process, nothing less would do, and Article 2242 was not available. LSA-C.C. art. 1536 which relates to donations inter vivos is also a specific provision of law and requires that the donation be in authentic form. The rationale of the Carson Homes, Inc. case applies and the plaintiff-appellant may not avail himself of Article 2242 in this instance.

Likewise, we find that Article 2291 quoted above is inapplicable to this case. A donation of immovable or incorporeal property can be made only by authentic act. An admission, even under oath, cannot ratify an act which is null. This principle as applied to donations is affirmed in LSA-C.C. art. 2273 which provides:

“The donor can not, by any confirma-tive act, supply the defects of a donation inter vivos null in form; it must be executed again in legal form.”

For all of the above reasons, the trial court correctly rescinded the donation inter vivos from Valerie to Rodney.

COMMUNITY PROPERTY SETTLEMENT

Through a document executed on August 12, 1982, entitled “Community Property Settlement” the parties purported to partition all of the community property. The document itself recites that the parties were judicially separated by judgment dated September 10, 1982. Apparently this date was filled in after the judgment of separation was signed. Counsel for Rodney admits in his brief that the petition for separation was not filed until August 16, 1982. Although we do not have the petition or judgment of separation before us, these dates are not disputed.

Valerie seeks to invalidate the agreement on the basis that it is in violation of LSA-C.C. art. 2329 which provides in part:

“Spouses may enter into a matrimonial agreement that modifies or terminates a matrimonial regime during marriage only upon joint petition and a finding by the court that this serves their best interests and that they understand the governing principles and rules. They may, however, subject themselves to the legal regime by a matrimonial agreement at any time without court approval.”

It is Valerie’s contention that the agreement is a termination of the matrimonial regime which was not properly petitioned-for and approved in court. In her petition, Valerie also claims that the settlement is null because her consent was obtained by the exercise of threats and undue influence. Only the applicability of Article 2329 is before us.

Rodney takes the position that the agreement is valid as a voluntary partition of community property under LSA-C.C. art. 2336 which provides in part:

“During the existence of the community property regime, the spouses may, without court approval, voluntarily partition the community property in whole or in part. In such a case, the things that each spouse acquires are separate property. The partition is effective toward third persons when filed for registry in the manner provided by Article 2332.”

There is an apparent or obvious distinction between a modification or termination of a matrimonial regime during marriage under Article 2329 and a partition under Article 2336. One changes the nature of the property regime under which the parties live. The other partitions community property as of a given moment, but the community regime continues. For this reason Rodney correctly maintains that after a partition of community property under Article 2336, property subsequently acquired by the married parties becomes community property. Therefore, it may be observed that a partition under Article 2336 neither modifies nor terminates a matrimonial regime during the existence of the marriage. If the marriage continues, property is acquired subject to whatever regime governs the marriage.

If Rodney could show that the parties merely intended to partition the community property as of the date of the “Community Property Settlement” executed August 12, 1982, his contentions might have merit. However, the language of the agreement belies any such intent. In pertinent part, the agreement provides:

“That they do hereby desire and voluntarily partition the community property heretofore held between them, so that the community of acquets and gains previously existing between them shall be completely and wholly dissolved, and so that the property to be owned hereafter by each of them shall be the separate property of each of them.”

The above quoted language makes it clear to us that the agreement was intended to terminate the matrimonial regime between Valerie and Rodney at a time when the marriage was still valid and subsisted. This is clearly in violation of Article 2329 and the trial court was correct in so ruling. Under the clear terms of LSA-C.C. art. 2329, the parties could not validly enter into the community property settlement without petitioning the court for approval and obtaining an order of court approval.

For the above reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to defendant-appellant.

AFFIRMED.


text:
    Albert L. ROY, Jr., Plaintiff-Appellant, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant-Appellee.
    No. 83-322.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.

      James L. Babin, Lake Charles, for plaintiff-appellant.
    Thomas W. Sanders, Lake Charles, for defendant-appellee.
    Before DOMENGEAUX, STOKER and YELVERTON, JJ.
   STOKER, Judge.

Plaintiff appeals in this matter from a judgment rendered against him on a motion for summary judgment. Plaintiff, Albert L. Roy, sued defendant, United Services Automobile Association (USAA-CIC). The action was brought under the uninsured motorist and underinsured provisions of an insurance contract issued to Mr. Roy by USAA-CIC. Plaintiff seeks recovery of damages for personal injuries sustained by Mr. Roy in an automobile accident. USAA-CIC as defendant filed a motion for summary judgment arguing that a release and settlement of claim executed by plaintiff in favor of Dora Melancon, the driver of the other car involved in the accident, and Hartford Accident and Indemnity Company, her insurer, barred recovery against any other defendant who was a solidary obligor. From a judgment on the motion for summary judgment in favor of USAA-CIC, Mr. Roy appeals. We affirm.

FACTS

On January 8, 1981, Mr. Roy was involved in an automobile accident with Dora Melancon. On April 10, 1981, prior to filing a suit, Mr. Roy settled his claim and granted a release to Ms. Melancon and her insurer in exchange for $10,000 which represented the maximum limits of the policy carried by Ms. Melancon. The release and settlement agreement, in pertinent part, reads:

“It is further agreed that in the event other parties are responsible to me/us for damages as a result of this accident, the execution of this agreement shall operate as a satisfaction of my/our claim against such other parties to the extent of the pro rata share of the parties herein released.”

Mr. Roy relies upon this language as constituting a reservation of his rights against all other parties liable to him. On January 8, 1982, Mr. Roy filed suit against USAA-CIC, his uninsured and underin-sured motorist insurer, claiming that he was not adequately compensated in damages for the personal injuries received as a result of the accident. By way of an amended answer, USAA-CIC pleaded the prior settlement and release as a bar to Mr. Roy’s suit on the ground that the release of one solidary obligor, without expressly reserving the right to claim from another, discharges all solidary obligors from liability.

Prior to trial on the merits, USAA-CIC filed the motion for summary judgment which is the subject of this appeal. In a judgment signed on February 25, 1983, the trial court gave judgment on the motion in favor of USAA-CIC and dismissed Mr. Roy’s suit with prejudice. In his reasons for judgment, the trial judge found that USAA-CIC was a solidary obligor with Dora Melancon and her insurer and that Mr. Roy failed to reserve his rights against USAA-CIC in his settlement and release agreement with them thereby barring recovery from USAA-CIC.

Mr. Roy appeals, urging that the release and settlement agreement was restrictive and released only Dora Melancon and her insurer.

APPLICABLE LAW

We find that this case is appropriate for disposition on motion for summary judgment under LSA-C.C.P. art. 966. After reviewing the pertinent documents, we find that no genuine issue of material fact exists, and the motion for summary judgment was properly granted.

A solidary obligation may arise jointly by tort and contract. LSA-C.C. arts. 2091, 2092. Granger v. General Motors Corporation, 171 So.2d 720 (La.App. 3rd Cir.1965). A tort-feasor who causes an automobile accident victim to sustain damage is a solidary obligor with the victim’s uninsured-underinsured motorist carrier because they are obliged to repair the same damage. Therefore, neither may plead the benefit of division, and the payment by one exonerates the other as to the obligation owed to the victim. Hoefly v. Government Employee’s Insurance Company, 418 So.2d 575 (La.1982); Swanson v. Comeaux, 286 So.2d 117 (La.App. 4th Cir.1973), affirmed 296 So.2d 267 (La.1974).

Under the circumstances of this case, the provisions of LSA-C.C. art. 2203 come into play. Article 2203 provides in pertinent part:

“The remission or conventional discharge in favor of one of the codebtors in solido, discharges all the others, unless the creditor has expressly reserved his right against the latter.”

Remission of an obligation extinguishes the obligation, LSA-C.C. art. 2130, and if the debt of one obligor is remitted, all other solidary obligors are discharged. Where, however, the creditor reserves his rights to proceed against the other solidary obligors, the debt is not extinguished by remission, and the release does not inure to the benefit of the other solidary obligors. By reserving his rights, the creditor makes clear that he is not fully compensated and that he will proceed against other solidary obli-gors. Sampay v. Morton Salt Company, 395 So.2d 326 (La.1981). Civil Code article 2203 applies to debtors ex-delicto, as well as ex-contactu. Hoffpauir v. Kansas City Southern Railroad Co., 219 So.2d 29 (La. App. 3rd Cir.1969).

In the instant case, the release executed by Mr. Roy in favor of Dora Melan-con and her insurer contained no express reservation of his rights against USAA-CIC. If Dora Melancon was in fact tor-tiously liable to plaintiff and was underin-sured, she and USAA-CIC are solidary ob-ligors. Under the plain terms of Article 2203, the compromise settlement contract operated to release Mr. Roy’s rights against USAA-CIC. The language in the agreement quoted above relied upon by Mr. Roy does not constitute a reservation of his rights against a solidary obligor.

The judgment of the trial court granting summary judgment in favor of USAA-CIC and dismissing Mr. Roy’s lawsuit is affirmed. The costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED.

      . Defendant’s correct and legal name should have been U.S.A.A. Casualty Insurance Company as noted by defendant in a supplemental answer.


author: LABORDE, Judge.

text:
    Virginia HOLMES, Plaintiff-Appellee, v. CENTRAL LOUISIANA STATE HOSPITAL, Defendant-Appellant.
    No. 83-325.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.

      Robert L. Royer, Alexandria, for defendant-appellant.
    Edward A. Kaplan, Alexandria, William Henry Sanders, Jena, for plaintiff-appellee.
    Before CUTRER, DOUCET and LA-BORDE, JJ.
   LABORDE, Judge.

Plaintiff, Virginia Holmes, filed this workmen’s compensation claim against her employer, Central Louisiana State Hospital, defendant, seeking compensation benefits and medical expenses following an alleged work related accident. The trial court held that plaintiff’s accident occurred within the course and scope of her employment and attributed her injury to a specific incident involving a struggle with a mentally ill patient. Plaintiff suffered a hernia in the course of the altercation and as a result was found to be totally and permanently disabled. Defendant appeals this decision by raising eight assignments of error which present the following issues for our determination:

1) Whether the plaintiff sustained an accident within the course and scope of her employment for which her current medical problems are attributable, and;
2) Whether this suit was prematurely filed since plaintiff failed to properly give notice of her injury to defendant in conformity with the notice requirements of LSA-R.S. 23:1291, et seq.

The trial court, in a well reasoned opinion, resolved each of these issues in favor of the plaintiff. We affirm.

Facts

Virginia Holmes, an employee of Central Louisiana State Hospital, had an altercation resulting in a physical struggle with a patient at some time between January, 1981 and February 27, 1981. She continued to work for as long as possible, but was forced to terminate her employment in order to undergo a hernia operation in April of 1981. Since that operation, she returned numerous times for further surgery to remove foreign material and obstructions related to the hernia operation, all of which are allegedly related to her altercation or accident at work.

Issue #1

Defendant claims, that in light of the evidence presented, the trial court erroneously held that the plaintiff carried her burden of proof showing that the accident and related injuries were sustained within the course and scope of her employment. We disagree.

The law imposes upon the plaintiff in compensation cases, as in other civil cases, the burden of proving the causal link between the employment and the injury by a preponderance of the evidence. Prim v. City of Shreveport, 297 So.2d 421 (La.1974). This causal link is established when the evidence presented satisfactorily leads a reasonable trier of fact to conclude, that more likely than not, the accident or injury from which the plaintiff suffers occurred and arose within the course and scope of plaintiff’s employment.

In conformity with these established standards, the trial judge, in this instance, stated in his written reasons:

“While the question of cause and effect is again not a certain one, the Court is left with an abiding conclusion that the incident involving the struggle with the patient more probable than not resulted in the hernia problem which has seriously affected the plaintiff” (Emphasis Added)

We acknowledge and admire defendant’s basis for appeal; that no one should be condemned to pay a debt which has not been proven by sufficient evidence. However, that is not the case in this instance. The record establishes that plaintiff’s hernia occurred and arose in the course and scope of her employment and that the injury rendered her totally and permanently disabled.

The standards of review set forth in Canter v. Koehring Co., 283 So.2d 716 (La.1973), require that we give great weight to the trial court’s factual conclusions and should not disturb its findings in the absence of manifest error. This test applys to worker’s compensation cases as well. Butts v. Insurance Company of North America, 352 So.2d 745 (3rd Cir.1977), cert. denied, 354 So.2d 206 (La.1978).

We refuse to substitute our factual findings and conclusions for those of the trial court in the absence of clear error. Copeland v. Louisiana Dept. of Transportation and Development, 428 So.2d 1251 (La.App. 3rd Cir.1983). Accordingly, we agree with the trial court’s holding that plaintiff sustained a work related accident leaving her totally and permanently disabled under the Workmen’s Compensation Laws of Louisiana. LSA-R.S. 23:1021, et seq.

Issue # 2

In the course of the proceedings, defendant filed exceptions of prematurity and of no right of action, on the basis that no proceeding for workmen’s compensation should be maintained unless notice of the injury had been given to the employer as required by LSA-R.S. 23:1291. Defendant contends that no notice of the alleged injury was received until such was served with this lawsuit. We disagree. The evidence supports the trial court’s conclusion that the employer received sufficient notice to determine the existence and extent of plaintiffs claim, notwithstanding the fact that such notice was not in accordance with the provisions of LSA-R.S. 23:1291, et seq. The record indicates that the occurrence of the incident was well-known to plaintiffs fellow workers and to all of her supervisors. The provisions regarding notice of injury should be construed liberally in favor of the employee unless the rights of the employer are prejudiced by the nonconformity. Allen v. Freiler Industries, Inc. 246 So.2d 327 (La.App. 1st Cir.1971).

Therefore, we hold that the trial court properly ruled on the exceptions, finding that defendant had adequate notice of plaintiffs injury.

Having resolved the above issues in favor of the plaintiff, we hold that further review of defendant’s additional assignments of error is unwarranted.

Por the above and foregoing reasons, the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.

      . LSA-R.S. 23:1291. “Notice as prerequisite to institution of proceedings. No proceeding under this Chapter for compensation shall be maintained unless notice of the injury has been given to the employer within six months after the date of the injury or death. This notice may be given or made by any person claiming to be entitled to compensation, or by any one in his behalf.”


text:
    Carolyn Mitchell LANGTON, Plaintiff-Appellant, v. Thomas Wade LANGTON, Defendant-Appellee.
    No. 83-330.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.

      R. Stuart Wright, Natchitoches, for plaintiff-appellant.
    William D. Dyess, Many, for defendant-appellee.
    Before DOMENGEAUX, STOKER and YELVERTON, JJ.
   STOKER, Judge.

Plaintiff, Carolyn Langton, appeals from a judgment of separation from bed and board granted on the basis that the parties were mutually at fault. The only issue before us in this appeal is whether the trial court erred in finding fault on behalf of Carolyn which would constitute an independent ground for separation. We reverse the trial court’s finding on that matter.

Carolyn and Thomas Langton were married on December 13, 1952. Carolyn left the matrimonial domicile on January 7, 1983, and filed suit for separation on January 10, 1983, alleging that Thomas was at fault for habitual intemperance which rendered their living together insupportable. Thomas reconvened, alleging that Carolyn was at fault for abandonment and mental cruelty. In the alternative, he alleged that they were mutually at fault in causing the separation.

The trial court rendered a judgment of separation finding the parties to be mutually at fault. Carolyn alone appeals; therefore, the finding of fault on behalf of Thomas is final.

No written or oral reasons for judgment were given by the trial court. It is clear, however, that Thomas was found guilty of habitual intemperance. Given that fact, we conclude that Carolyn could not have been guilty of abandonment. A separation on the grounds of abandonment may be granted only if one of the parties withdrew from the matrimonial domicile without lawful cause. LSA-C.C. art. 143. The lawful cause justifying a withdrawal must be substantially equivalent to a cause giving grounds for separation. Quinn v. Quinn, 412 So.2d 649 (La.App. 2nd Cir. 1982), writs denied, 415 So.2d 941 and 945 (La.1982). Since habitual intemperance is a cause for separation under LSA-C.C. art. 138(3), we find that Carolyn has a defense to the charge of abandonment and was not at fault for that reason.

The remaining allegation of fault against Carolyn is that of cruel treatment. The claim is for mental cruelty, not physical cruelty. In a separation based on mutual fault under LSA-C.C. art. 141, the fault of each party must be sufficient standing alone to award the other spouse a separation. Harrington v. Campbell, 413 So.2d 297 (La.App. 3rd Cir.1982). We find that the alleged mental harassment in this case is not sufficient to constitute cruelty. The only evidence of mental harassment by Carolyn is Thomas’ testimony that when he came in at night he would be questioned as to his whereabouts, called a slouch, and accused of infidelity. He also testified that Carolyn has not had a meal on the table for him when he came in for over a year. Thomas admitted that the time he comes in varies from 5:00 or 6:00 PM to 9:00 or 9:30 PM.

We do not find that accusations of infidelity and other bickering constitutes fault on behalf of Carolyn. Adams v. Adams, 389 So.2d 381 (La.1980). Thomas, while complaining that Carolyn did things to irritate him, admitted that he did the same. A pattern of mutual incompatibility, fussing and bickering is not sufficient to constitute cruel treatment. Loyd v. Loyd, 336 So.2d 912 (La.App. 4th Cir.1976). Further, we do not find that the failure to have dinner ready for a husband under these circumstances is cruel treatment.

For the above reasons, the judgment of the trial court decreeing a separation on the grounds of mutual fault is reversed.

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that there be judgment in favor of plaintiff, Carolyn Mitchell Langton, and against defendant, Thomas Wade Langton, decreeing a separation of bed and board between them.

In all other respects, the judgment of the trial court is affirmed. Costs of this appeal are assessed to defendant-appellee.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.


author: DOMENGEAUX, Judge. STOKER, J.,

text:
    Wilene Adelle W. WATSON, Plaintiff-Appellant, v. Willie O. WATSON, Defendant-Appellee.
    No. 83-306.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.
    William M. Wolfe, Pineville, for plaintiff-appellant.
    Kennedy & Yeager, Ralph W. Kennedy, Alexandria, for defendant-appellee.
    Before DOMENGEAUX, STOKER and YELVERTON, JJ.
   DOMENGEAUX, Judge.

This appeal is from a judgment of separation granted to Wilene Adelle Watson and Willie 0. Watson, based upon their mutual fault.

On July 29, 1982, Mrs. Watson filed suit for separation from bed and board against her husband. In her petition, Mrs. Watson also sought custody of the minor child of their marriage, child support, alimony pendente lite, partition of the community property, and an injunction prohibiting Mr. Watson from alienating or encumbering the community assets.

Mr. Watson answered plaintiff’s original petition and further assumed the position of plaintiff-in-reconvention seeking a judgment of separation, joint custody of the minor child, and dissolution of the community.

The trial judge ordered a judgment of separation, finding that both parties were mutually at fault within the meaning of La.C.C. Art. 141.

In his decree, the trial judge condemned each of the parties to pay one-half of the court costs therein. On February 1, 1983, Mrs. Watson appealed suspensively from the final judgment which was signed on January 3, 1983. Her husband answered the appeal seeking a modification of the judgment to find fault solely on the part of Mrs. Watson.

The only issue presented for our consideration is whether the trial court erred in finding that the parties were mutually at fault in granting the separation.

FACTS

On July 16, 1982, Wilene Watson left the matrimonial domicile. She subsequently filed a petition for separation from bed and board on July 29,1982, based upon grounds of cruel treatment and habitual intemperance. Mr. Watson denied her allegations in his answer and reconvened for a separation in his favor on grounds of cruel treatment and abandonment.

At trial, Mrs. Watson , testified that Mr. Watson drank excessively which resulted in cruel and abusive conduct towards her and the children. She further testified that his drinking problem had worsened over the recent years and caused him to lose his temper, return home late from work, and intimidate and mistreat the members of their household. Mrs. Watson stated that she left the matrimonial domicile on the evening of July 16, 1982, because Mr. Watson failed to come home from a dental appointment. She testified that she believed he had gone out drinking and was afraid of his behavior so she took the children and left.

Cynthia Dean Watson, their 23 year old daughter, also testified at trial. She has always lived in the family home with Mr. and Mrs. Watson. She confirmed her mother’s testimony. In addition, she stated that her father’s drinking caused tension in the marital relationship. She further testified that when her father came home intoxicated, he was uncontrollable and often arguments would ensue.

Mr. Watson testified at trial that he had missed only one day of work, for his brother’s funeral, in the sixteen years he had been working at the Kraft Pineville Paper Mill. Mr. Watson holds a supervisor position at the mill. He admitted on the stand that he once struck his wife eighteen years prior to the filing of the present suit. He also admitted that he whipped his children to discipline them.

Mr. Watson testified that his wife permitted their daughter’s two dogs to stay inside the house, which made living conditions unsanitary and caused many arguments between them. He also stated that Mrs. Watson neglected the household duties.

Mr. Watson testified that his wife refused to let him drink beer at home and constantly harassed him about drinking with friends after working hours. He refuted the testimony given by his wife and daughter that he drank excessively almost every night. Mr. Watson stated that he drank beer only after work when he was assigned to the 3 to 11 shift at the Pineville Kraft Paper Mill, which was approximately one or two nights out of each month.

Several witnesses testified on behalf of Mr. Watson. Some were business associates who worked with him at the paper mill. Others were friends of the family who often went deer hunting with Mr. Watson; Mrs. Watson usually accompanied them. All of them contradicted the allegation that Mr. Watson had a drinking problem.

Mr. Watson stated that after Mrs. Watson left the matrimonial domicile he repeatedly tried to persuade her to come home, but she refused. She told him she wanted a divorce and planned to move to Idaho where her family lived.

MUTUAL FAULT OF THE PARTIES

As to petitioner’s assignments of error, it is to be noted that in separation proceedings, the trial court’s finding of fact on the issue of fault will not be disturbed on appeal unless manifestly erroneous. Pearce v. Pearce, 348 So.2d 75 (La.1977).

Plaintiff argues that the trial court committed error of law in determining that she was at fault. We find no merit to any of her assignments of error.

The evidence presented at trial substantiates the allegations of each party. Mr. Watson’s fault consisted of acts of intemperance and cruel treatment “of such a nature as to render [the couple’s] living together insupportable.” La.C.C. Art. 138; Harrington v. Campbell, 413 So.2d 297 (La.App. 3rd Cir.1982). Mrs. Watson’s fault consisted of “acts of commission or omission violative of her marital duties which precludes her from alimony after divorce.” Pearce v. Pearce, supra, at 77.

The fault required to form the basis of a mutual fault separation is conduct constituting an independent ground for separation under La.C.C. Art. 138. Adams v. Adams, 389 So.2d 381 (La.1980). It is not necessary for spouses to be guilty of equal fault as long as each spouse is found to have committed acts which constitute grounds for separation under La.C.C. Art. 138. Post v. Post, 376 So.2d 1275 (La.App. 2nd Cir.1979). Additionally, the fault must be an independent contributing cause of the separation. Saucier v. Saucier, 357 So.2d 1378 (La.App. 4th Cir.1978).

It is apparent that the trial judge believed that each spouse sustained their burden of proof by establishing fault on the part of the other spouse. The trial judge further concluded that the fault of each party was sufficient to award the other a judgment of separation, and therefore their respective fault is deemed to be mutual. Adams v. Adams, supra at 382. There is substantial evidence to support the trial judge’s determination that appellant and her husband were mutually at fault within the ambit of La.C.C. Art. 141. Miller v. Miller, 398 So.2d 1162 (La.App. 2nd Cir.1981). There exists no manifest error in the trial court’s findings.

DECREE

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed equally between plaintiff and defendant.

AFFIRMED.

STOKER, J., concurs in part and dissents in part and assigns reasons.

STOKER, J.,

concurring in part and dissenting in part.

I fully concur in that portion of the majority opinion which affirms the trial court’s evident finding that the plaintiff, Wilene Adelle Watson, was entitled to a separation based on the defendant husband’s intemperance and cruel treatment.

I respectfully dissent with respect to the finding that the separation should be grounded on mutual fault of the parties. The trial court did not favor us with written reasons for judgment and his oral reasons were not recorded. We do not know what the trial court found in any conduct of Mrs. Watson that would have constituted fault, which standing alone, would be sufficient to justify the granting of a separation to Mr. Watson. It could not have been grounded on abandonment because Mr. Watson had given Mrs. Watson lawful cause justifying her withdrawal from the matrimonial domicile. See our opinion in Langton v. Langton, 442 So.2d 1308 (La.App. 3rd Cir.1983). Moreover, abandonment was not pleaded as a ground for separation in Mr. Watson’s reconventional demand.

The trial court’s finding of mutual fault necessarily must rest on a finding of cruel treatment by Mrs. Watson “of such a nature as to render their living together insupportable.” LSA-C.C. Art. 138. The only evidence in the record to support a claim of cruel treatment by Mrs. Watson is the testimony of Mr. Watson. His testimony covers only two complaints. One claim is that Mrs. Watson allowed their daughter’s two dogs to have the run of the house, and (evidently not being house trained) they spoiled the floor, drapery and other portions of the house. The other complaint was that Mrs. Watson did not cook meals as she once did and depended to a large extent on serving hamburgers.

The charge concerning the dogs obviously could be a very serious matter, but I do not find that it shines through as a very serious matter in Mr. Watson’s testimony. He made no reference to this complaint in his reconventional demand. Most damaging, however, is Mr. Watson’s own testimony that he kept the dogs in the house himself after Mrs. Watson left the home. Mr. Watson’s testimony relative to the dogs as it stands is not convincing that a condition existed which made living in the home with Mrs. Watson insupportable.

Relative to Mrs. Watson’s cooking, the complaint is not that Mrs. Watson failed to cook or prepare meals. Mr. Watson’s complaint was that she did not serve the kind of meals she had served in the past. This alone does not show living with Mrs. Watson was insupportable. Moreover, there was testimony that Mrs. Watson’s health was not as good as it had been in former years which might excuse such cooking habits if there was any truth to the complaint.

In my opinion Mrs. Watson was not at fault so as to make applicable the mutual fault provisions of LSA-C.C. Art. 141. The sole testimony bearing on her alleged fault (other than her complaints about his drinking) consists of the following testimony of Mr. Watson:

“Q Tell us about the house, in particular your wife’s dogs.
A Well, we’ve had, we’ve had some pretty stiff arguments about the dogs and the carpet, the drapes and uh, the way the kids keep their rooms, and uh, just, just general, just dogs messing, the whole carpet in the house where they, they went to the bathroom on it, and we’ve had, we’ve had a considerable amount of trouble about that, arguments, not no trouble, just big arguments, incidents.
Q What about the drapes.
A Well, I thought I’d surprise her when she went off to Idaho and come back I had her a pair of drapes put up, Four Hundred and Eighty Dollars ($480.00), Four Hundred and Sixty Dollars ($460.00), ...
Q Did the dogs ruin the drapes.
A Well you can see where they, the male dog has went all over the drapes and uh, they will be ruined, I guess, they can be cleaned, but still, uh, I thought I was just doing something to help her feelings.
Q What about the care of yourself, does your wife cook for you and the family.
A At times she cooked pretty good, and at times it looked like she, she would, we would eat a lot of hamburgers and stuff and uh, she never, like she never did cook like she did when we was living in Idaho around her folks, because every day at 5:30 in Idaho you could count on it, just like clock work, supper was on the table.
Q It is not that way any more, or at least it was not that way any more.
A As we moved on — as we moved on to Texas and Georgia and around, well, they just got, it just got different, that’s all, I don’t know whether, which fault, you know, it just got, it was just that way.”

I am of the opinion that the trial court was clearly wrong in granting a separation based on mutual fault. The judgment should have been granted in Mrs. Watson’s favor without a finding of fault on her part. Accordingly, I concur in part with the majority opinion but dissent in part as explained above.

      . Wilene Watson and Willie O. Watson were married for twenty-seven years, with two children, ages 23 and 16.

      .A hearing pursuant to rule filed by plaintiff was held on September 3, 1982, concerning the issues of child custody, child support, alimony pendente lite, and the injunction against disposition of the community property. Both parties stipulated to Mrs. Watson’s right to exclusive occupancy of the family home (subject to the condition that she pay the monthly mortgage note and telephone bill), to a temporary child custody award to Mrs. Watson (subject to reasonable visitation rights), and to a combined alimony pendente lite and child support award of $750.00 per month.

      . La.C.C. Art. 141 provides:
      “A separation from bed and board shall be granted although both spouses are mutually at fault in causing the separation. In such instances, alimony pendente lite may be allowed but permanent alimony shall not be allowed thereafter following divorce.”

      . A suspensive appeal was granted with no bond required, as provided by law under La.C.C.P. Art. 3942; Young v. Young, 413 So.2d 673 (La. App. 1st Cir.1982).

      . For a comprehensive analysis of the effects of judicial separation based upon "mutual fault,” see generally Comment, The Fault Preclusion to Post-Divorce Alimony in Louisiana, 57 Tul.L. Rev. 351, 370-372 (1982).


author: KNOLL, Judge.

text:
    Dale J. BELLARD, Plaintiff-Appellee, v. SAFEWAY INSURANCE COMPANY, Defendant-Appellant.
    No. 83-357.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.

      Sandoz, Sandoz & Schiff, Lawrence B. Sandoz, III, Opelousas, for defendant-appellant.
    David L. Carriere, Opelousas, for plaintiff-appellee.
    Before GUIDRY, FORET and KNOLL, JJ.
   KNOLL, Judge.

Dale J. Bellard filed suit against his insurer, Safeway Insurance Company, for payment of his medical expenses and property damage as a result of an automobile accident. The trial court rendered judgment in favor of Bellard and against Safeway in the amount of $809.78 representing his unpaid medical bills and property damage with twelve (12%) percent statutory penalties and $650.00 as attorney fees. Safeway appeals the award of statutory penalties and attorney fees. Bellard answers the appeal seeking damages for a frivolous appeal and an increase in attorney fees. We amend and affirm as amended.

We find that the trial court was not manifestly erroneous in awarding penalties and attorney fees; that Bellard is entitled to an additional award of attorney’s fees in the sum of $500.00 for handling this appeal; and that the appeal taken by Safeway was not frivolous.

The issues on appeal are as follows:

1. Whether the trial court erred in finding that Safeway’s actions were arbitrary and capricious;
2. Whether the trial court’s award of attorney’s fees is sufficient; and
3. Whether Safeway’s appeal was frivolous.

FACTS

On December 7, 1981 a vehicle driven by Charlotte Weinstein struck the rear of Bel-lard’s 1982 Toyota Turcel. At the time of the accident, Bellard’s vehicle was insured with a Safeway policy which provided coverage for medical payments and collision loss. As a result of the accident, Bellard sustained physical injuries and property damage. On December 23, 1981 Bellard notified Safeway in writing of the accident and requested reimbursement of $105.85 in medical expenses he incurred. In the last week of December, Mr. Dan Burkhalter, Safeway’s representative, spoke with Bel-lard’s attorney concerning the property damage. In that conversation Mr. Burk-halter was informed that the vehicle was being repaired at Acadian Toyota.

On March 8, 1982 Burkhalter forwarded a Safeway draft to Bellard in the sum of $105.85 for medical expenses. On the reverse side of the draft appeared endorsement language granting Safeway full and final settlement of all claims. Bellard returned the draft contending it was unacceptable because of the endorsement language. Burkhalter stated in a memo to Bellard’s attorney that he (Burkhalter) would treat the draft as a partial payment for the medical expenses incurred since Safeway would not issue a draft without the endorsement language. Bellard filed suit for payment of his medical expenses and property damages. The matter was tried on July 7, 1982 approximately six (6) months after demand for payment. Safeway has made no payment to Bellard under its insurance policy.

PENALTIES & ATTORNEY’S FEES

The first issue is whether the trial court’s award of penalties and attorney’s fees against Safeway is manifestly erroneous.

LSA-R.S. 22:658 provides that penalties of twelve (12%) percent on the total amount of the loss together with reasonable attorney’s fees for the prosecution and collection of the loss are to be awarded when the insurer fails to make payment within sixty (60) days after receipt of proof of loss, when such failure is found to be arbitrary, capricious or without probable cause.

Safeway acknowledges that Bellard’s claim for medical payments and collision damages is due. However, Safeway contends that it did not act arbitrarily or capriciously for the following reasons: their draft accompanied with the written and verbal guarantee of Safeway’s agent represented a partial payment under LSA-R.S. 22:658; Bellard’s refusal to execute a sub-rogation agreement provided Safeway with reasonable grounds to withhold payment; and, finally, Safeway was not sufficiently supplied with a proof of loss of the property damage.

The draft which Safeway presented to Bellard for payment of his medical bills contained a printed endorsement which incorporated “full release” language. Notwithstanding Safeway’s representations that this draft only constituted partial payment, under this state’s jurisprudence if the insured conditions its offer to pay an undisputed amount on the insured’s acceptance thereof in full settlement, it is not a “tender” within the contemplation of LSA-R.S. 22:658, since it is not absolute and unconditional. Witherwax v. Zurich Insurance Company, 315 So.2d 420 (La.App. 3rd Cir.1975).

Safeway contends that since Bel-lard refused to execute a subrogation agreement in its favor it was reasonable in withholding payment. We reach a different conclusion. Where there is a subrogation stipulation in an insurance contract, subrogation takes place automatically at the time of payment as an incident to the policy. Continental Cas. Co. v. Canadian Universal Ins. Co., 605 F.2d 1340 (5th Cir. 1979), certiorari denied 445 U.S. 929, 100 S.Ct. 1317, 63 L.Ed.2d 762 (1979); State Farm Fire & Casualty Co. v. Sentry Indemnity Co., 346 So.2d 1331 (La.App. 3rd Cir.1977). Therefore, Bellard’s acceptance of an unconditioned payment would have activated the subrogation provisions of Safeway’s policy.

Lastly, Safeway contends that it was not supplied with sufficient proof of loss of Bellard’s property damage. We disagree. Bellard reported the claim to his insurance agent by visiting his office the day after the accident. Safeway was notified of the date and location of the repair of Bellard’s auto prior to the completion of the work. Finally, Safeway never requested to physically examine the Bellard vehicle as provided in its insurance contract.

Therefore, we conclude that the trial court’s finding that Safeway was arbitrary and capricious was not manifestly erroneous.

The second issue concerns the amount of attorney’s fees. Bellard contends that the award of attorney’s fees should be increased substantially from that awarded by the trial court. The record does not support the contention that the trial court abused its discretion. We do, however, find that the handling of this case on appeal required additional time and labor. As a result we will allow an additional $500.00 in attorney’s fees.

FRIVOLOUS APPEAL

The last issue is whether Safeway’s appeal was frivolous. Bellard contends that he is entitled to damages because Safeway used the appeal process as a delay tactic.

Appeals are favored in our law. We are reluctant to impose the penal provisions of LSA-C.C.P. Art. 2164 which provide for the award of damages for frivolous appeal. Such damages will be awarded only when it manifestly appears that the appeal was taken solely for the purpose of delay or that appealing counsel does not seriously believe in the position he advocates, even though the appeal lacks serious merit. Goad v. May, 376 So.2d 340 (La.App. 3rd Cir.1979).

This appeal involved a penal statute. In light of the standard set out above we cannot say that penalties for frivolous appeal are clearly due here.

For the above and foregoing reasons the judgment of the trial court is amended by fixing the attorney’s fees at $1,150.00. In all. other respects the judgment is affirmed. Costs of this appeal are assessed against Safeway Insurance Company.

AMENDED AND AFFIRMED AS AMENDED.


text:
    Carol O’QUINN, Plaintiff-Appellant, v. KANSAS CITY SOUTHERN RAILROAD, et al., Defendants-Appellees.
    No. 83-360.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.

      James D. Davis, Alexandria, for plaintiff-appellant.
    Trimble Randow, Percy Smith, Wilson & Foote, Elizabeth E. Foote, Alexandria, for defendants-appellees.
    Before GUIDRY, FORET and KNOLL, JJ.
   KNOLL, Judge.

Carol A. O’Quinn filed suit against Kansas City Southern Railroad Company and its insurer, Commercial Union Insurance Company, to recover damages received by her as a result of a vehicular accident which occurred on March 10,1982. Kansas City Southern Railroad and its insurer stipulated to liability. A jury determined quantum.

The only issue presented on appeal pertains to the validity of the judgment. The form of the jury verdict read as follows:

“WE FIND FOR CAROL A. O’QUINN
Special Damages _
General Damages $_
Total $_
Date Foreperson”

After deliberation, the jury filled in the blanks with special damages of $2,100 and general damages of $2,000. The figures were totaled to $4,100, and the foreperson signed and dated the verdict in the appropriate places. Beneath the foreperson’s signature appears the phrase “1,700 for repairing the car to Walker Oldsmobile $380 medical bill.”

When the court’s clerk read the verdict, the language which appears after the foreperson’s signature was also read. At the plaintiff’s request the jury was polled and all jurors indicated that this was their verdict.

After the jury was dismissed, plaintiff’s attorney examined the verdict sheet questioning whether the language following the foreperson’s signature was intended to be an additional award. Plaintiff suggested that the trial judge contact the jury foreperson to determine the jury’s intent but the trial judge observed the jury panel was already dismissed and the jury had left. The trial court concluded that the jury verdict was correctly stated in that portion of the verdict which appeared before the foreperson’s signature. A formal judgment was signed in accordance with the $4,100 jury award. This appeal followed.

The plaintiff argues that there are inconsistencies in the jury verdict (between the total, general and special damages and the writing following the foreperson’s signature) and that as a result no valid judgment could have been entered. We disagree.

The form of the verdict was a general verdict. The jury was not requested to state special written findings upon each issue of fact. LSA-C.C.P. Arts. 1811 and 1812. Under the factual setting of the case sub judice, LSA-C.C.P. Art. 1812 was inapplicable. Under these facts it was not required that the trial judge return the jury for consideration of its answers or that a new trial be ordered.

The laws of this state do not require a special form for a general verdict. The test of sufficiency of form for a verdict is whether it decides the issues in question. In the instant case the only issue was damages. In its jury instructions the trial court stated:

“Under Louisiana law, a person is entitled to recover damage which he or she incurs in an accident caused by another. The damages are generally broken down into two types. One. type is called special damages. Special damages include loss or damage to property, medical expenses and other out of pocket expenses that result from the accident. The other type of damages are referred to as general damages, and these refer to the injuries received by the person. General damages include the injury itself and whatever results from the injury, such as physical and mental pain and suffering, embarrassment, inconvenience, loss of mobility, physical disability, and other such things that a person might suffer because of his or her injuries.
In awarding damages you should take into consideration past and future physical pain, disability, suffering and inconvenience arising from the accident.
Damages must be established by a preponderance of the evidence. You are not entitled to award speculative damages.

The record reflects that the only two categories proved at trial for special damages covered plaintiffs medical bills ($367.00) and auto repair ($1736.60) for a total of $2103.60. The jury awarded special damages of $2100.00. These figures are reconcilable and consistent with the special damage award filled in, above the foreperson’s signature.

The plaintiff argues that the language which appears after the foreperson’s signature renders the verdict confusing and uncertain. We disagree. From our prior discussion we find this phrase to be simply an elaboration of the jury award for special damages. There were no other special damages to be awarded. When a jury verdict contains findings which are not essential to a determination of the issues presented and the jury verdict in all other respects is responsive to the issues, the additional findings may be deemed surplus-age. Wallis v. Bazet, 34 La.Ann. 131 (1882). We will sustain a jury verdict which is internally consistent with the issues presented or when its meaning is certain.

Accordingly, we accept the trial court’s construction of the verdict. The language which the jury included after the signature of the foreperson is not in conflict with the general verdict and may be overlooked as irrelevant.

For the foregoing reasons we affirm the judgment of the trial court. All costs of this appeal are assessed to the plaintiff-appellant.

AFFIRMED.