text:
    AMERICAN AIR TRANSPORT, INC., and George M. Chappell, Appellants, v. SEAFIRST COMMERCIAL CORPORATION, a Colorado corporation, and Edward Condon, d/b/a Palm Beach Aviation Maintenance, Appellees.
    No. 83-2167.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 1984.
    See also, Fla.App., 452 So.2d 1037.
    Edward G. Stephany of Marko, Stephany & Lyons, Fort Lauderdale, for appellants.
    Richard B. Warren of Gunster, Yoakley, Criser & Stewart, P.A., Palm Beach, for appellee — Seafirst Commercial Corp.
    Allan L. Hoffman, West Palm Beach, for appellee — Condon.
   PER CURIAM.

Appellants seek reversal of a non-final order of the Circuit Court of the Fifteenth Judicial Circuit denying appellants’ motion to dismiss or alternatively to abate or transfer the action to Broward County on the ground that Broward County was the proper venue of said action.

Briefly, the factual setting is that appel-lee Seafirst sold American Transport an aircraft and took back a promissory note, a security agreement and a guaranty agreement. Thereafter appellants sued Seafirst in the Circuit Court of the Seventeenth Judicial Circuit for damages for malicious interference with a contract between appellants American and Bachner and for slander. Seafirst filed a counterclaim seeking to enforce a promissory note, a security agreement and a guaranty agreement that were allegedly in default. While that suit was pending, Seafirst filed suit for replevin and damages in the Fifteenth Judicial Circuit against appellants, American and Chappell, and thereafter dismissed its counterclaim in the suit pending in the Seventeenth Judicial Circuit. Appellants moved to dismiss the Fifteenth Judicial Circuit suit contending that the Seventeenth Judicial Circuit was the proper venue of the action. From a denial of said motion, this non-final appeal was perfected.

Appellants contend that the counterclaim filed by Seafirst in the Seventeenth Judicial Circuit was a compulsory counterclaim and thus the venue therefor was Broward County. We disagree. First, we do not believe Seafirst’s counterclaim was compulsory and thus there was no basis to preclude Seafirst from deciding to sue to replevy the aircraft and for damages in Palm Beach County where the aircraft was located. We reach that conclusion because 1) the complaint in Broward County was for tortious interference with a contract and for slander, whereas, the counterclaim initially filed by Seafirst was to enforce a promissory note and security and guaranty agreements and 2) the venue for replevin by statute is the county in which the property is located. Thus, neither-Florida Rule of Civil Procedure 1.170(a) (1983), nor the logical relationship test referred to in Neil v. South Florida Auto Painters, Inc., 397 So.2d 1160 (Fla. 3d DCA 1981), required the original counterclaim to be filed in Broward County, nor was the claim for replevin and damages required to be filed there.

Accordingly, we affirm the order appealed from.

AFFIRMED.

DOWNEY, LETTS and GLICKSTEIN, JJ., concur.


source: Caselaw Access Project

author: BARKETT, Judge.

license: Public Domain

text:
    Henry J. TURNER, Appellant, v. STATE of Florida, Appellee.
    No. 84-1662.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 1984.
    Henry J. Turner, pro se.
    No appearance required by appellee.
   BARKETT, Judge.

This is a pro se appeal by the defendant pursuant to Rule of Appellate Procedure 9.140(g) governing appeals from summary denials of Florida Rule of Criminal Procedure 3.850 motions for post-conviction relief.

The trial court denied the defendant’s motion without an evidentiary hearing. Defendant alleges ineffective assistance of counsel which is an allegation of a factual nature. The trial court incorrectly determined that the underlying appeal was dis-positive of this issue. See Jones v. State, 384 So.2d 736 (Fla. 4th DCA 1980). Accordingly, we reverse for an evidentiary hearing solely on the issue of ineffective assistance of counsel. In all other respects the trial court’s order is affirmed.

AFFIRMED IN PART; REVERSED IN PART.

GLICKSTEIN and WALDEN, JJ., concur.


author: PER CURIAM.

text:
    William Edward KRAUS, Jr., Appellant, v. Cathy Jean KRAUS, Appellee.
    No. 83-2322.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 1984.
    Ronald E. Jones, West Palm Beach, for appellant.
    Jane Kreusler-Walsh and Larry Klein, West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal by a husband from a final judgment of dissolution. There are three issues:

I.Whether the court erred in not clarifying paragraph 5 of the final judgment because the said paragraph does not state what is to become of the marital domicile upon the remarriage of the wife. The parties agree that the trial court was in error.

II. Whether the court erred in failing to specify what in the final judgment constituted alimony, what type of alimony, and the duration of same. The parties agree that the trial court was in error.

III. Whether the court erred in that it abused its discretion in the amount of alimony and child support which it ordered the husband to pay to the wife. We conclude that it did not.

As for the first issue, we remand for clarification. See Scheuermann v. Scheuermann, 423 So.2d 411 (Fla. 4th DCA 1982), and Caldwell v. Caldwell, 400 So.2d 1270 (Fla. 5th DCA 1981).

We similarly remand for clarification of the second issue. See Zediker v. Zediker, 398 So.2d 915 (Fla. 1st DCA 1981), a situation similar to this one, in which the court ordered the husband to make mortgage and utility payments. Noting that there are tax consequences to be considered, the appellate court remanded in Zediker for denomination of these expenses as child support or alimony. The trial court on remand should so classify the mortgage and insurance payments.

In all other respects we affirm the trial court.

GLICKSTEIN and BARKETT, JJ., and SCOTT, ROBERT C., Associate Judge, concur.


text:
    John Caldwell BROOKS, Appellant, v. Joan R. BROOKS and Mary F. Martin, Appellees.
    No. 83-1888.
    District Court of Appeal of Florida, Second District.
    Sept. 5, 1984.

      Joel R. Tew, Tampa, for appellant.
    H.H. Baskin, Jr. of Baskin & Benninson, P.A., Clearwater, for appellees.
   PER CURIAM.

John Brooks, the mortgagee in this foreclosure action, appeals the final order of dismissal granting summary judgment in favor of appellees Mary Martin and Joan Brooks. We reverse.

Reviewing the record in a light most favorable to appellant, as we must, we hold that genuine issues of material fact exist with respect to the circumstances surrounding the failure of the title company to timely mail the October 31, 1982, payment. Fla.R.Civ.P. 1.510(c); Holl v. Talcott, 191 So.2d 40 (Fla.1966). For instance, it is not clear whether appellant did in fact change his address; and, if he did, there is no evidence of a forwarding address. Assuming appellant did not relocate, the record does not indicate why appellees were under the opposite impression. Further, the record does not reveal why Mr. Lord, the closing agent representing the title company, was unable to acquire appellant’s address prior to November 7, 1982, the day Mr. Lord’s mother-in-law died. Finally, no explanation is found for appellee Brooks’ failure to provide the title company or Martin with the address that she used to make the prior mortgage payments. In view of these unresolved material facts, we are unable to determine whether the circumstances of this case would render the foreclosure unconscionable or inequitable.

Accordingly, we REVERSE the summary judgment entered against appellant and REMAND for proceedings consistent with this opinion.

HOBSON, A.C.J., and BOARDMAN and SCHOONOVER, JJ., concur.


text:
    GENERAL HOST/LITTLE GENERAL STORE, INC., et al., Appellants, v. Kathy LINDSEY, Appellee.
    No. AW-471.
    District Court of Appeal of Florida, First District.
    Aug. 14, 1984.
    Mark E. Hungate, of Fowler, White, Gil-len, Boggs, St. Petersburg, for appellants.
    E. Peter Pfaff, St. Petersburg, for appel-lee.
   PER CURIAM.

AFFIRMED. See Cycenas v. Sarasota Coca Cola Bottling Co., 440 So.2d 39 (Fla. 1st DCA 1983) and Higgins v. Trigil Repair, Inc., 436 So.2d 222 (Fla. 1st DCA 1983).

ERVIN, C.J., and JOANOS and NIM-MONS, JJ., concur.


author: DIXON, Chief Justice.

text:
    In re the Matter of Attorney General William J. GUSTE, Jr., Superseding the District Attorney of the Twenty Fifth Judicial District. In re STATE of Louisiana Through the Attorney General, William J. GUSTE, Jr., applying for writs of certiorari, prohibition and mandamus.
    No. 81-K-0948.
    Supreme Court of Louisiana.
    May 18, 1981.
    Rehearing Denied June 5, 1981.
    William J. Guste, Jr., Atty. Gen., Patrick G. Quinlan, Donald T. Giglio, William B. Faust, III, Asst. Attys. Gen., for plaintiff-relator.
    Gerald Gallinghouse, Ben C. Toledano, Gilbert V. Andry, III, New Orleans, for defendant-respondent.

       Originally published at 401 So.2d 967.

   DIXON, Chief Justice.

The attorney general has alleged facts which, if proven, would establish cause for the district court to authorize him to institute and prosecute criminal actions and proceedings and to supersede the district attorney in criminal actions. La. Const, art. 4, § 8(3)(a) and (b). If the district attorney, in fact, wrongfully thwarted the additional grand jury’s attempt to return indictments against him or any other person, caused the grand jury to be prematurely discharged to prevent it from returning indictments, or filed charges against members of the grand jury as punishment or to prevent the return of indictments, the attorney general should be given this authority as necessary for the assertion and protection of the state’s rights and interests in the matters under investigation by the additional grand jury or which have arisen therefrom. Accordingly, the trial court’s rulings sustaining the exceptions of no cause of action are set aside and the case is remanded for a hearing after which the district court shall make findings of fact and conclusions of law with regard to the issues raised by the attorney general’s allegations. If any of the particular allegations of grand jury interference are true, the district court shall immediately authorize the attorney general to (1) institute and prosecute, or to intervene in any proceeding, as he may deem necessary for the assertion or protection of the rights and interests of the state in the matters under investigation by the additional grand jury or any other matters arising therefrom; (2) supersede the district attorney in any criminal action resulting from the activities of the additional grand jury, including any prosecutions against members of the grand jury; (3) request, in accordance with Louisiana Code of Criminal Procedure article 415.1, the court to order an additional grand jury to be empanelled for the purpose of inquiring into any offenses with respect to which the attorney general is authorized to institute, prosecute or intervene in criminal actions or proceedings or related to those in which the attorney general is authorized to supersede the district attorney.

In the interest of justice and to expedite proceedings, we deem it necessary to assign a district judge specially to preside over the hearing upon the attorney general’s allegations and, if necessary, over any subsequent proceedings arising therefrom. Let Julian E. Bailes be assigned in accordance with La. Const, art. 5, § 5(A) to serve as judge ad hoc of the Twenty-Fifth Judicial District and to effectuate the purposes of this order.

       The Attorney General's first amending and supplemental motion contains allegations including, in accordance with an affidavit filed by the foreman of the Additional Grand Jury, the following: That the extended term of the Additional Grand Jury was to expire on February 19, 1981; that on February 17, 1981 the members of the Additional Grand Jury voted to indict District Attorney Leander H. Perez, Jr. and Delta Development Corporation on the charge of theft from the Parish of Plaquemines and various governmental agencies thereof; that the foreman of the grand jury, believing it would be necessary to have the indictment filed by someone authorized to institute criminal prosecutions, informed District Attorney ad hoc Giles J. Duplechin, Assistant District Attorney Frank Klein, and District Judge Eugene Leon of the impending indictments and requested assistance of these officials; that Judge Leon advised the foreman to adjourn the Additional Grand Jury for the day and further advised that he would arrange a conference for the following morning; that on the morning of February 18, 1981 the foreman learned that the Additional Grand Jury had been discharged, on motion filed by District Attorney Perez and granted by District Judge Leon, without any inquiries by Judge Leon of any matters to be reported upon; and that immediately thereafter the foreman learned that District Attorney Perez had filed a bill of information charging the foreman with conspiracy to commit extortion.


author: CALOGERO, Justice. MARCUS, Justice BLANCHE, Justice

text:
    Danny A. DAUZAT v. GREGORY & COOK, INC. and Gray and Company, Inc.
    No. 84-C-0039.
    Supreme Court of Louisiana.
    June 25, 1984.
    Rehearing Denied Sept. 14, 1984.

      John Saunders, Saunders, Vidrine & Walker, Ville Platte, for applicant.
    Gregory J. Laborde, Hal J. Broussard, Susan Daigle, Andrus, Preis & Kraft, Lafayette, for respondents.
   CALOGERO, Justice.

This is a worker’s compensation case. Plaintiff is a pipeline construction laborer, occasionally a straw boss (or sub-foreman). This litigation arises out of an accident which occurred when he worked for Gregory and Cook, Inc., a pipeline contractor. On May 31,1980, he was working on a road boring machine. While guiding a winch line he was thrown off balance, fell, and injured his right knee.

Ultimately he filed a workmen's compensation suit seeking benefits for partial permanent disability. The trial judge ruled in plaintiff’s favor, ' awarding him benefits for partial permanent disability, along with penalties and attorney’s fees. The Court of Appeal reversed the judgment and dismissed his suit. 440 So.2d 989 (La.App. 3rd Cir.1983). We granted writs on his application. 445 So.2d 430 (La.1984).

At trial plaintiff and his wife testified. He presented the deposition testimony of Dr. Gregory Savoy. He presented no other witnesses. Only two defense witnesses were presented. One witness, a representative of the employer’s insurer, testified with respect to the insurer’s evaluation of the reported injury and their determination that plaintiff was not entitled to compensation benefits other than the medical expenses which had been incurred. The other defense witness was an employee of Ashy Enterprises, a company plaintiff worked for subsequent to his employment with Gregory and Cook, Inc. This witness testified in relation to plaintiff’s job as a laborer with Ashy Enterprises. He testified that in the three weeks plaintiff worked for that company, he performed his work properly. Defendant presented no medical or any other witness or witnesses. Thus plaintiff’s, his wife’s and his doctor’s testimony were essentially uncontroverted. The record reveals the following.

Plaintiff is thirty-five years old, married and the father of five children. He has no previous history of injury to his right knee. His entire work history is in pipeline construction. He is a laborer although on occasion he has had additional responsibility as a straw boss, essentially a sub-foreman.

After the accident and injury to his knee plaintiff continued working the rest of the day, although in pain. The following day his condition was worse, requiring that he use crutches. A few days later, on June 3, 1980, with the knee swollen and painful, he went to see Dr. Gregory Savoy.

Dr. Savoy diagnosed a knee strain, prescribed anti-inflammatory and pain medication and recommended bed rest with elevation of the leg. Plaintiff followed the doctor’s advice and returned to work five days later. On June 18, 1980 he returned for a follow-up visit. By that time the swelling was gone and he had full range of motion in the knee.

Plaintiff returned to the doctor again on August 4, 1981. At that time he complained about the same knee, which had a tendency to give out when he walked, and was still causing him problems with pain and swelling. Dr. Savoy referred plaintiff to physical therapy.

Plaintiff’s last visit to the doctor, prior to trial, was on February 5, 1982. At that time he complained of constant pain in the knee accompanied by swelling. Dr. Savoy again prescribed anti-inflammatory and pain medication.

Dr. Savoy, the treating physician and only physician involved in the case, testified in his deposition that the problems plaintiff experienced with his knee were a direct result of the work related accident. Dr. Savoy was of the opinion that the knee would trouble plaintiff the rest of his life and he would probably develop arthritis. As far as limitations, he stated that plaintiff is

not going to be as mobile as he was. He’s not going to be able to assume some of the wierd positions that people who work and do heavy labor generally have to assume in lifting and straining. He’s not able to jump from one height to the ground even though it’s only about two to three feet at the most, because of the potential for this knee to become reinjured. His actual mobility of the joint did not seem to be impaired when he was first injured, however, I’m sure the joint will eventually begin to give him trouble.

The plaintiff testified that his knee hurts him all the time and that standing and working in mud or putting weight on the knee, makes it swell. He stated that because of the swelling his pants leg would have to be cut to allow room for the swelling. The knee had a tendency to swell more and become tender as the work day wore on. Plaintiff testified that in every job he had since the injury, he worked in substantial pain which limited his physical activities. He was unable to put much weight on his bad leg. In order to help alleviate the pain and swelling, he would elevate his leg and put either ice packs or a heating pad on the knee. He stated that, despite the pain in his knee, he went back to work because of economic necessity.

Plaintiff’s wife testified about the swelling and the fact that his pants leg had to be split to accommodate the swelling. She stated that she had seen his leg give out on him when walking on uneven ground. She further testified that elevating the bad leg and staying off of it helped him more than anything.

The trial judge found that plaintiff is partially permanently disabled within the meaning of La.R.S. 23:1221(3), because he can not perform all of the duties customarily engaged in when injured or duties of the same or similar character, nature or description.

The trial judge found that plaintiff “does suffer pain at irregular intervals.” (This is consistent with plaintiff’s testimony, that his knee bothers him more as the work day progresses.) The trial judge also found that plaintiff “will probably suffer substantial pain when doing heavy or laborous work, such as a laborer on a board run. He will be limited in his duties since he will not be able to squat, walk on uneven terrain or lift heavy objects.” The trial judge placed heavy reliance on plaintiff’s work history and his testimony that the reason he continued to work was because of the needs of his family.

The Court of Appeal reversed the trial court. They were impressed by several factors: Plaintiff never lost a day of work because of the injury. Plaintiff performed his jobs satisfactorily and never refused a job offered through the union. He never told either the union or an employer about his injury. He made more money on subsequent jobs than he was getting at the time of his injury. He never quit a job due to his injury and he never missed a day of work. At the time of trial, although he wasn’t working, he was available for work. The Court of Appeal was also influenced by the fact that plaintiff did not present any co-workers at trial to substantiate his testimony.

Although the record supports the above factors there are other important considerations which should have been taken into account. Plaintiff only actually worked about ten months in the twenty-eight months which had elapsed between the time of the injury and the trial. His testimony indicates that in just about all of those jobs he relied on the use of his hands to “take care” of him. He stated that he has to “babysit” the injured knee to keep it from hurting. The testimony of both plaintiff and his wife supports the fact that he was forced to work because of economic necessity. Finally, and most important, plaintiff testified that he experienced substantial pain while working in all of the jobs which he held since the accident.

On this matter of proving the sub-stantiality of pain to support a compensation claim, we said in Lucas v. Ins. Co. of North America, 342 So.2d 591, 596-97, 595 (La.1977),

Whether pain is substantial enough to be disabling, however, is ordinarily not a medical question but an issue to be decided by the trier of fact on the basis of the preponderance of the medical and lay evidence. Tantillo v. Liberty Mutual Insurance Co., 315 So.2d 743 (La.1975); Williams v. Hudson East, 261 La. 959, 261 So.2d 629 (1972).

In Dusang v. Henry C, Beck Builders, Inc., 389 So.2d 367, 369 (La.1980), we stated:

It is well settled that:

“The claimant who alleges disability because of inability to perform his usual and regular duties without substantial or appreciable pain must establish the existence of that condition to a reasonable certainty and by a fair preponderance of testimony. Ball v. American Marine Corporation, 245 La. 515, 159 So.2d 138 (1964); Johnson v. R.P. Farnsworth and Company, 186 So.2d 405 (La.App. 1 Cir. 1966).” Breaux v. Kaplan Rice Mill, Inc., 280 So.2d 923, 925 (La.App. 3d Cir. 1973).

We find. that Dauzat has proven that his pain is substantial enough to be disabling by a preponderance of medical and lay evidence.

The record does support plaintiffs complaints of substantial pain. Plaintiff was seen by Dr. Savoy a total of four times after the accident. His first two visits were shortly after the accident. His third visit, on August 14, 1981, was fourteen months after the accident. His fourth visit, on February 5, 1982, was twenty months after the injury. On all of these visits' plaintiff detailed for Dr. Savoy the problems he was experiencing with his injured knee, i.e., pain, swelling and the knee giving out. It is true that at his deposition Dr. Savoy was never asked to express an opinion about the degree of pain plaintiff was experiencing. However, it is significant and noteworthy that on his first and last visits, Dr. Savoy prescribed a strong pain medication as well as anti-inflammatory medication.

The fact that plaintiff experienced swelling in his knee is substantiated by his wife’s testimony that his pants leg had to be cut to allow for swelling and that he had to elevate his leg and use hot or cold compresses on the knee. Plaintiff’s wife also testified that she had seen his knee give out on him at times.

We have determined that plaintiff has sustained his burden of proving that he is unable to perform his usual and regular duties without substantial or appreciable pain. The evidence presented by plaintiff, deposition testimony of his doctor, his wife’s testimony and the plaintiff’s own testimony, is convincing. Defendants presented no contradictory evidence.

That plaintiff continued to work in pipeline construction, a factor which apparently influenced the Court of Appeal in reversing the trial court, is not determinative of the issue whether he is entitled to partial permanent disability benefits. La. R.S. 23:1221(3) does not require a partial disability claimant to prove loss of employment because of a work-related injury. For instance in Naquin v. Uniroyal, Inc., 405 So.2d 525, 527 (La.1981), we stated:

The statute clearly provides that an employee is eligible for compensation for a partially disabling work-related injury regardless of whether his employment continues; only the amount of compensation due may be affected by wages actually earned after the injury.

In fact plaintiff has worked in substantial pain at every opportunity because of economic necessity. That is to his credit. The consequence of being able to work under La.R.S. 23:1221(3) is not a denial of benefits. Rather the worker, classified as partially permanently disabled, will be entitled to “sixty-six and two-thirds per centum the difference between the wages the employee was earning at the time of the injury and any lesser wages which the injured employee actually earns in any week thereafter in any gainful occupation for wages...”

As we said in Dusang at 389 So.2d at 272:

if a worker cannot perform the same work that he did before his injury because it causes him substantial pain, but he has the mental capacity and physical capability to perform other jobs which are available, he should be considered partially disabled. Such classification will protect him in any work in which he earns less than he did before his injury.

We next turn to the question of penalties and attorney’s fees. The trial court found that defendant’s failure to provide plaintiff compensation benefits was unreasonable and arbitrary. The appellate court did not have to address this question because they reversed the trial court finding that plaintiff is entitled to benefits. Because we have reinstated the trial court judgment we are faced with the issue.

The circumstances of this case convince us that the trial court was correct in determining that plaintiff’s employer’s failure to pay benefits was arbitrary. La.R.S. 23:1201.2. (Acts 1958, No. 43, § 1)

Decree

For the foregoing reasons the judgment of the Court of Appeal is reversed and the judgment of the trial court reinstated.

JUDGMENT OF COURT OF APPEAL REVERSED; JUDGMENT OF TRIAL COURT REINSTATED.

LEMMON, J., concurs.

MARCUS and BLANCHE, JJ., concur in part and dissent in part and assign reasons.

MARCUS, Justice

(concurring in part and dissenting in part).

I concur in the majority opinion except for the award of penalties and attorney fees. Accordingly, I concur in part and dissent in part.

BLANCHE, Justice

(dissenting in part and concurring in part).

This writer can live with the finding that the plaintiff worked in substantial pain even though the contrary findings of the Court of Appeal are equally supported in the record. Nevertheless, it seems to add insult to injury to award penalties and attorney’s fees in the absence of any evidence that the employer or anyone else other than plaintiffs wife knew that plaintiff was working in pain.

I concur in the majority opinion’s award of compensation but respectfully dissent from the award of penalties and attorney’s fees in the absence of any evidence of an arbitrary failure to pay compensation.

      . Plaintiff initially sought benefits for total permanent disability. This claim was defeated, however, by an exception of prescription, since more than a year had elapsed when the suit was filed from the date of the injury. La.R.S. 23:1209. La.R.S. 23:1209 was amended by Acts 1975, No. 583 § 7 to provide a three year prescriptive period for partial disability claims. Because suit was filed within that period of time, the claim for partial permanent disability had not prescribed.

      . This testimony was, no doubt, offered by defendant in order to defeat plaintiff’s claim for penalties and attorney’s fees.

      . Dr. Savoy testified that there are several things which can cause the knee to give out, "but, more often than not, the knee giving out is usually a result of a ligament tear, which is — becomes chronic, and in certain positions the knee becomes unstable and tends to want to slip out from under the patient when they’re walking or if they're jumping from a small height to another, the knee will tend to give out once the pressure is placed on it.”

      .Defendant suggested during oral argument that plaintiff suffered a re-injury to his knee as a result of tripping or falling in a hole in his back yard. The Court of Appeal states that there was "evidence” of such an accident shortly before plaintiff's August 4, 1981, visit to Dr. Savoy. 440 So.2d at 992.
      We are constrained to disagree with this interpretation of the evidence. At trial plaintiff testified that the hole in the yard did not cause him to fall. Rather, while he was doing some work in his yard his leg began hurting him. As he was trying to walk in the yard he was limping, and when he reached the spot where the ground was uneven his leg gave out on him.

      . Plaintiffs injury occurred prior to numerous enactments of and amendments to the Louisiana Worker’s Compensation Law. Acts 1983, 1st Ex.Sess., No. 1 § 1. Thus, his claim for benefits falls under the law as it existed at the time of the accident. Prior to the 1983 amendments, La.R.S. 23:1221(3) provided:
      For injury producing partial disability of the employee to perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description for which he was fitted by education, training, and experience, sixty-six and two-thirds per centum of the difference between the wages the employee was earning at the time of the injury and any lesser wages which the injured employee actually earns in any week thereafter in any gainful occupation for wages, whether or not the same for a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training, and experience, during the period of disability, but not beyond a maximum of four hundred weeks for such partial disability resulting from injury occurring on and after September 1, 1975, and on or before August 31, 1976; and not beyond a maximum of four hundred twenty-five weeks for such partial disability resulting from injury occurring on and after September 1, 1976, and on or before August 31, 1977, and not beyond a maximum of four hundred fifty weeks for such partial disability resulting from injury occurring on and after September 1, 1977, provided further that for any week during which the employee is paid any compensation under this subdivision (3) the employer shall be entitled to a reduction of one full week of compensation against the maximum number of weeks for which compensation is payable under this subdivision (3) and for any week during which the employee is paid no compensation, because of the employee's actual earnings during that week, the employer shall not be entitled to a reduction for that week against the maximum number of weeks for which compensation is payable under this subdivision (3), and in no event shall the total number of weeks of compensation for such partial disability under this subdivision (3) be increased beyond the maximum number of weeks stated in this subdivision (3).

      . In his written reasons for judgment the trial court stated:
      The Court, in considering all of the evidence, even including testimony of the insurance company’s claims adjuster, finds that the defendant in fact did very little to ascertain whether or not plaintiff was entitled to workmen's compensation benefits. It is indeed difficult for this Court to understand why this company never did have the plaintiff examined by an orthopedic surgeon to determine whether or not the plaintiff was disabled with a chronic knee condition as found by Dr. Savoy. The company should have realized that the plaintiff was entitled to some compensation benefits after being notified of the injury by the plaintiff's attorney of the claim, (sic) Therefore, their failure to provide plaintiff with these benefits was unreasonable and arbitrary, and as such, they are liable to plaintiff for attorney’s fees and penalties as provided for by law. The Court will therefore award the plaintiff the sum of $5,000.00, as attorney’s fees, and 12% penalties, together with legal interest thereon on each and every delinquent workmen’s compensation weekly benefit.


author: MARCUS, Justice.

text:
    Louise Miles THIBODEAUX v. Kidearn THIBODEAUX.
    No. 84-CC-0084.
    Supreme Court of Louisiana.
    June 25, 1984.
    Rehearing Denied Sept. 14, 1984.

      Paul B. Deal, Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans, for relator.
    J. William Starr, J. Joseph Blotner, Gret-na, for respondents.
   MARCUS, Justice.

On October 19, 1979, the Civil District Court for the Parish of Orleans rendered by consent an executory judgment in favor of Louise Miles Thibodeaux and against Kidearn Thibodeaux for $5,460 for past due child support. Another consent judgment against Kidearn for $2,850 for past due child support was made executory by the same court on August 27, 1982. Thereafter, Louise filed a petition in the Twenty-Fourth Judicial District Court for the Parish of Jefferson to have the $2,850 judgment made executory in that court. Judgment was rendered and signed on June 27, 1983. Louise had the $5,460 judgment made executory in the same court on August 31, 1983. After issuance of writs of fieri facias, Louise caused Employers National Insurance Company to be cited as garnishee to declare what property it had in its possession or under its control belonging to Kidearn. Interrogatories to be answered by Employers were annexed to the petitions. Employers was making compensation payments pursuant to the Longshoremen’s and Harbor Workers’ Compensation Act (LHWCA) on behalf of its policy holder Gulf Stevedores to Kidearn for his work-related injury in July 1980. Employers answered the petitions for garnishment and interrogatories asserting that the federally mandated benefits being paid to Kidearn were exempted under the LHWCA from attachment. The district court overruled the “exception of exemption of seizure” and ordered the garnishment to remain in effect. The court of appeal denied Employers’ application for supervisory writs with reasons. On application of Employers, we granted certiorari to review the correctness of the ruling of the district court.

The LHWCA was enacted by Congress to provide workers’ compensation benefits to persons injured in the course of maritime employment. Maritime employers are liable for and must ensure that payments as compensation for disability are made to the employee periodically, promptly and directly, and employers that are not qualified self-insurers must secure these payments by insurance with a carrier approved by the Secretary of Labor. These payments from the carrier arb protected under the LHWCA by the broad language of 33 U.S.C. § 916:

No assignment, release, or commutation of compensation or benefits due or payable under this chapter, except as provided by this chapter, shall be valid, and such compensation and benefits shall be exempt from all claims of creditors and from levy, execution, and attachment or other remedy for recovery or collection of a debt, which exemption may not be waived. (Emphasis added.)

Despite this federal statutory exemption, the court of appeal agreed with Louise’s contention that past due child support is not a “debt” within the meaning of section 916 and hence that exemption is not applicable to the garnishment of LHWCA benefits under state court judgments for child support and/or alimony. We disagree.

Notwithstanding the limited application of federal law in the field of domestic relations generally, the Supremacy Clause protects rights and expectancies established by federal law against the operation of state law and prevents the frustration and erosion of the congressional policy embodied in the federal rights. U.S. Const, art. VI, cl. 2; Ridgway v. Ridgway, 454 U.S. 46, 102 S.Ct. 49, 70 L.Ed.2d 39 (1981). While state family and family-property law must do major damage to clear and substantial federal interests before the Supremacy Clause will demand that state law be overridden, the relative importance to the state of its own law is not material when there is a conflict with a valid federal law, for the framers of our constitution provided that the federal law must prevail. Hisquierdo v. Hisquierdo, 439 U.S. 572, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979); Free v. Bland, 369 U.S. 663, 82 S.Ct. 1089, 8 L.Ed.2d 180 (1962). In particular, a state divorce decree, like other law governing the economic aspects of domestic relations, must give way to clearly conflicting federal enactments. Ridgway v. Ridgway, supra (servicemen’s life insurance); McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981) (military retirement pay); Hisquierdo v. Hisquierdo, supra (Railroad Retirement Act benefits); Free v. Bland, supra (United States savings bonds); Wissner v. Wissner, 338 U.S. 655, 70 S.Ct. 398, 94 L.Ed. 424 (1950) (servicemen’s life insurance).

The critical terms of the federal law involved here include payment to a specified beneficiary protected by a flat prohibition against attachment. The section itself says nothing about contrary dictates of state law or state judgments. Counsel for both parties assert they have found no reported case involving this LHWCA exemption provision and we have discovered none. Cases interpreting exemption provisions in other workers’ compensation or benefit statutes are divided on whether alimony and child support awards .are preempted by the general exemption of such benefits from creditors’ claims. Some courts have adopted Louise’s sole argument in this case by holding that alimony and child support are not “debts” within the meaning of the exemption provisions because the wife and children are not creditors in the ordinary sense but are in fact persons intended to be benefited by the statutes as much as the workman himself.

However, we are faced here with clear explicit language in a congressional enactment and not merely with the recognition of our state’s public policy. Whatever the pláusibility of her argument that LHWCA benefits ought to serve to protect a disabled worker’s family and fulfill his legal obligation of support, La.Civ.Code art. 227, Louise nevertheless stands as a judgment creditor whose garnishment is an attachment prohibited by section 916. To allow her to garnish these benefits would require carving out a jurisprudential exception to Congress’ anti-attachment clause which the strong language of the LHWCA does not permit. Section 916 does not refer only to claims of commercial creditors; it imposes a bar against the seizure of these benefits in terms broad enough to include all claimants. Cf. Philpott v. Essex County Welfare Board, 409 U.S. 413, 93 S.Ct. 590, 34 L.Ed.2d 608 (1973) (federal disability benefits protected by 42 U.S.C. § 407 against state government).

We are bolstered in this interpretation of congressional intent by the clarity with which Congress has addressed this very issue in other enactments. A convincing example involves the exact exception which Louise requests we imply in the LHWCA made explicit in the anti-attachment protection afforded by Congress to seamen, traditionally themselves “wards of the courts”:

No wages due or accruing to any master, seaman, or apprentice shall be subject to attachment or arrestment from any court, ... Provided, That nothing contained in this or any preceding section shall interfere with the order by any court regarding the payment by any master or seaman of any part of his wages for the support and maintenance of his wife and minor children.[]

The result in this case mandated by the LHWCA may be similarly avoided with ease if Congress so chooses. Thus far, however, since its passage in 1927 with the creation of the LHWCA system section 916 has remained unchanged. It therefore continues to insulate LHWCA disability benefits from going to any claimant in place of the disabled worker himself. When Congress desires to expose a uniform federal benefits plan to the vagaries of state alimony and support laws, it has demonstrated that intention unmistakably.

Additionally, we have the benefit of a recent United States Supreme Court interpretation of a similar anti-attachment provision in Ridgway v. Ridgway, supra. A Maine divorce judgment ordered a father to keep in force his life insurance then outstanding for the benefit of his three minor children. Instead, the father, a career army sergeant, made his second wife the policy’s beneficiary. After his death, both the second wife and the three minor children filed claims for the proceeds of the policy, which was issued by a private insurer pursuant to the Servicemen’s Group Life Insurance Act (SGLIA). Congress included an anti-attachment section in the SGLIA which shields the insurers’ payments from “claims of creditors” and states that they “shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary.” 38 U.S.C. § 770(g). The Supreme Judicial Court of Maine nevertheless ordered the policy proceeds paid to the former wife in constructive trust for the three children, concluding that the anti-attachment provision “has no application to the instant case since its purpose is to protect the proceeds of the insurance from the claims of creditors.” Ridgway v. Prudential Ins. Co. of America, 419 A.2d 1030, 1033 (Me.1980). That court decided it was “concerned here not with the claim of a creditor but with the claims of minor children who assert an equitable interest in the proceeds arising from their deceased father’s voluntary agreement and a valid judicial decree.” Id.

The United States Supreme Court reversed on two independent grounds as a consequence of the Supremacy Clause: (1) the SGLIA provides that the serviceman has the right to freely designate the beneficiary and to alter that choice at any time, and (2) the state decree operated as a seizure forbidden by the anti-attachment provision. The Court specifically rejected arguments that the statutory exemption was inapplicable because of “the special nature of the parental legal duty” whereby “familial obligations are not merely commercial” and hence are not debts within the meaning of the statute. 454 U.S. at 61 n. 11, 102 S.Ct. at 58 n. 11. Instead, the Court emphatically reiterated that its language of Hisquierdo was applicable without qualification:

Like anti-attachment provisions generally, it ensures that the benefits actually reach the beneficiary. It pre-empts all state law that stands in its way. It protects the benefits from legal process “notwithstanding any other law ... of any State.... ” It prevents the vagaries of state law from disrupting the national scheme, and guarantees a national uniformity that enhances the effectiveness of congressional policy. Id. at 61, 102 S.Ct. at 58.

As in the case before us, that father had specific obligations to his children imposed by a judgment of the state court. Indeed, the Court recognized “that this unpalatable case suggests certain ‘equities’ in favor of the ... minor children and their mother.” Id. at 62, 102 S.Ct. at 59. Nevertheless, the Court held to the interpretation which most closely accords with the purpose of anti-attachment provisions like the ones in the SGLIA and LHWCA: they ensure that the benefits actually reach the beneficiary. In the instant case, of course, we deal not just with life insurance proceeds but with disability benefits which Congress has said should go to the disabled worker directly without any attachments. It is not the province of state courts to ignore or rewrite the exemption provision enacted by Congress. The strong language of the LHWCA anti-attachment provision bars this garnishment action. Accordingly, we must reverse the ruling of the district court.

DECREE

For the reasons assigned, the judgment of the district court is reversed. It is ordered, adjudged and decreed that the petitions for garnishment filed by Louise Miles Thibodeaux be dismissed at her costs.

LEMMON, J., dissents.

      . 33 U.S.C. § 901 et seq.

      . 445 So.2d 748 (La.1984).

      . 33 U.S.C. §§ 904, 908, 914.

      . Id. § 932.

      . E.g., 24 Am.Jur.2d Divorce and Separation § 766 (1983); Annot. 31 A.L.R.3d 532, § 6 (1970); 35 C.J.S. Exemptions § 83 (1960); E. Blair, Workmen's Compensation Law § 11.19.

      . See also Mickenheim v. Cathcart, 228 La. 890, 84 So.2d 449 (1955) (dicta; attorney fees for obtaining alimony judgment included in garnishment of seaman’s wages where Congress was "particularly careful” to expressly except enforcement of support obligations from the exemption afforded in 46 U.S.C. § 601). But see Ridgway v. Ridgway, 454 U.S. at 74 n. 8, 102 S.Ct. at 57 n. 8 (Stevens, J., dissenting) and Wissner v. Wissner, 338 U.S. at 663 n. 2, 70 S.Ct. at 402 n. 2 (Minton, J., dissenting) which note that the Supreme Court twice did not accept the reasoning of these listed cases when interpreting federal exemption provisions.

      . Similarly, Louisiana’s comparable statute contains an explicit legislative exception to the anti-attachment exemption which protects state worker's compensation benefits:
      Claims or payments due under this Chapter ... shall not be assignable, and shall be exempt from all claims of creditors and from levy or execution or attachment or garnishment, except under a judgment for alimony in favor of a wife, or an ascendant, or descendant.
      La.R.S. 23:1205 (enacted 1914 La.Acts No. 20, § 22).

      . 46 U.S.C. § 601 (enacted March 4, 1915).

      . E.g., 5 U.S.C. §§ 8346, 8345(j) (civil service retirement benefits, amended in 1978); 10 U.S.C. § 1408 (military retirement pay, in particular section (c)(1) effective after June 25, 1981 overruling McCarty)-, 22 U.S.C. § 4060 (Foreign Service Act of 1980); 42 U.S.C. § 659 (effective January 1, 1975 waiving United States’ sovereign immunity to allow garnishment of government employees’ wages for the enforcement of child support and alimony obligations); 45 U.S.C. § 231m (railroad retirement benefits, amended in 1983 overruling Hisquierdo ).

      . 38 U.S.C. § 765 et seq.


author: CRAIN, Judge.

text:
    Alfred CARTER v. GULF STATES UTILITIES COMPANY.
    No. 83 CA 0653.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.
    Rehearing Denied Aug. 24, 1984.

      Joseph A. Gladney, Baton Rouge, for plaintiff.
    W. Luther Wilson, Baton Rouge, for defendant.
    Before SHORTESS, LANIER and CRAIN, JJ.
   CRAIN, Judge.

This is an appeal from a judgment of the trial court which awarded Alfred Carter (Carter) $11,492.25 for damages to his home due to the fault of Gulf States Utilities Company (GSU).

On June 2, 1981, a truck owned and operated by Baton Rouge Insulation Company struck a low hanging electrical service wire owned by GSU causing the electrical meter to be pulled through the roof of Carter’s house. GSU immediately assumed complete responsibility for all damages caused by the low hanging wire. GSU hired an electrician to reinstall the meter and fixtures, repair all wiring in Carter’s house and reconnect the service. GSU also honored requests by Carter for repair expenses to an air conditioner and television set allegedly damaged in the accident.

GSU then sent three independent contractors to Carter’s house to estimate the necessary repairs. These estimates, which were provided to Carter, were $150, $500 and $560.95. Carter then secured estimates for repairs. After Carter tendered these estimates, GSU refused to pay claiming they were not liable for the complete remodeling of Carter’s home.

Carter subsequently filed suit for $12,-247.00 based on the estimates he had received.

GSU answered, admitting liability for the accident, requesting credits for what was paid and requesting reimbursement for the television set and air conditioner repairs. GSU then deposited into the registry of the Court the average of the three estimates GSU had secured.

After trial on the merits, the trial court awarded Carter $11,550. This award represented the entire estimate of one of Carter’s contractors, Mr. Richard Lockhart. GSU appeals from this judgment alleging only one specification of error. Specifically, GSU argues the trial court erred in determining the applicable measure of damages in this case.

In determining damages, the trier of fact is accorded much discretion, especially where the facts of the case preclude a precise computation of damages. Emer son v. Empire Fire & Marine Ins. Co., 393 So.2d 691 (La.1981); Boswell v. Roy O. Martin Lumber Co., Inc., 363 So.2d 506 (La.1978); Hymel v. Tom Alexander Brokerage Co., 348 So.2d 104 (La.App. 4th Cir.1977), writ denied 350 So.2d 894 (La. 1977). No mechanical rule of determining damages is to be applied; the quantum in each case must be determined considering the facts and circumstances of that case. Coleman v. Victor, 326 So.2d 344 (La.1976); Kalmn, Inc. v. Empiregas Corp., 406 So.2d 276 (La.App. 3rd Cir.1981). Although trial judges are granted great discretion in determining damage awards, these awards must be made in accordance with law. Cenac v. Duplantis Moving & Storage Co., Inc., 407 So.2d 424 (La.App. 1st Cir.1981). The proper goal of a damage award is to restore the plaintiff, as closely as possible, to the position which he would have occupied had the accident never occurred. Coleman, 326 So.2d at 346; Kalmn, 406 So.2d at 281; Williams v. Louisiana Machinery Co., Inc., 387 So.2d 8 (La.App. 3rd Cir.1980).

Generally, three approaches have been followed by the Louisiana courts in arriving at the amount of damages to property; (1) the cost of restoration if the thing damaged can be adequately repaired; (2) the difference in value prior to and following the damage; or (3) the cost of replacement new, less reasonable depreciation, if the value before and after the damage cannot be reasonably determined, or if the cost of the repairs exceeds the value of the thing damaged. Cenac, 407 So.2d at 427; Kalmn, 406 So.2d at 281; Hymel, 348 So.2d at 105; Davis v. Roberts, 194 So.2d 772 (La.App. 1st Cir.1967).

It is clear from the record that the trial court assumed the house could be adequately repaired and awarded what he found to be the cost of restoration. However, the record does not reflect the value of the house prior to or after the accident. Without knowing these facts, we cannot determine the proper measure of damage. We are forced to remand for these determinations. We can review the trial court’s findings as to the extent of damages. Then, the trial court will know the appropriate repairs that will have to be made in determining which is the proper method of assessing damages.

The trial judge was confronted with opposing views as to the actual damage to Carter’s home. GSU argues essentially that there was only “spot damage”. Carter argues that the damage is more extensive and that the damages shown on the estimates secured from his contractor properly represent the damages to his home and the amounts necessary to restore his home to its prior condition.

Carter introduced the testimony of three contractors from the Livingston Parish area, Mr. Richard Lockhart, Mr. Willie Turner and Mr. Frankie Bell. Mr. Lock-hart testified that he could repair the home for $11,500.00. Mr. Turner testified he could repair the house for $11,478 and Mr. Bell testified he could repair the house for $10,850. GSU also secured three estimates from independent contractors. The average of these estimates is $403.65.

The trial judge, after examining the house himself, noted considerable damage to Carter’s home. He apparently believed that the estimates given by the contractors testifying on Carter’s behalf were more credible and realistic. He accepted the estimate of Mr. Lockhart in particular in making the award. Therefore, we will review separately each item of damage as revealed in Mr. Lockhart’s estimate. Each item has been given a letter designation to aid in our determination of the extent of actual damage to Carter’s home due to the fault of GSU.

Item A. Panel Two Rooms $450.00

GSU alleges that there was insufficient damage to the paneling to require the repa-neling of two complete rooms.

The record reveals that GSU unsuccessfully attempted to cover up the hole in the roof and prevent water damages. The photographs reveal the efforts were piecemeal at best. The evidence reflects the efforts were unsuccessful. Both Mr. Lock-hart and Mr. Turner found water damage to the paneling due to water seepage through the hole in the ceiling and roof that was made by the GSU meter being pulled through. Further, Mr. Lockhart testified that the paneling along the front wall would have to be pulled loose in order to repair the broken plates behind the wall and that this process would destroy the paneling beyond reuse. Therefore, we affirm the trial court’s finding of actual damage to the paneling of two rooms.

Item B. Replace Ceilings $2,500.00

The record reveals that as a result of the accident, a number of ceiling tiles in both the living room and front bedroom fell from the ceiling. GSU argues that the ceiling tiles already needed replacing because they had dry rotted, and at the most GSU can only be responsible for the replacement of the ceiling tiles in the living room and front bedroom, not the entire house.

Mr. Lockhart and Mr. Turner testified that there are many tiles with water damage due to water seeping in through the hole in the roof caused by the meter. However, there is no evidence in the record to support a finding that there was actual damage to the ceiling tiles throughout the house for which GSU could be held responsible. Therefore, we reverse that portion of the judgment.awarding $2,500.00 for the replacement of ceiling tiles throughout the house and remand this item of damage to the trial court for a determination of the cost to replace the ceiling tiles in the living room and front bedroom.

Item C., F, G., L., and N. $2798.00

Item C. Bricks $ 950.00
Item F. Sand 60.00
Item G. Mortar 168.00
Item L. Brick Layer 1500.00
Item N. Black Board Insulation 120.00

Each of the items of damages listed above relate to the removal of brick and rebricking of the front wall of Carter’s home. The evidence indicates that the area of actual brick damage by the meter does not cover the whole wall, but the whole wall is loose and will move at touch. GSU alleges it is not responsible for the rebrick-ing of the entire house-front, back and sides. However, Mr. Lockhart testified that the estimate given is for the front wall only, not the back and sides. Therefore, we must only review the finding by the trial court that the front brick wall was damaged to such an extent that the entire wall needed to be replaced.

There appears to be no dispute that the front wall sways. However, GSU argues that there were no brick-ties (metal strips designed to provide lateral support) in any of the brick walls and this causes the sway, not the accident. GSU alleges this was evidenced by the fact that all the brick walls in the house will move when pushed against just as much as the front wall.

GSU also argues that the mechanics of the accident prove that the accident could not have caused the brick-ties to break. GSU alleges the forces of the accident actually caused the meter to be pushed inward as compared to the meter being pulled up and out as alleged by Carter. This inward force, GSU contends, would have merely bent the brick-ties and not broken them.

The record does not reveal sufficient facts for us to determine the force exerted by the accident. However, we find such a determination unnecessary because the testimony of Mr. Lockhart reveals that regardless of whether the meter pulled the brick up and away or pushed the meter into the brick wall, either type of force would break the brick-ties. The trial judge went to the house with counsel for GSU and inspected the walls. He found the front wall shook more than the others indicating a breaking rather than an absence of brick-ties. We cannot say the finding of the trial judge that the brick-ties were broken by the accident is manifestly erroneous. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

GSU argues last that the foundation is cracked and that absent the brick-ties, the brick walls probably could have easily been shaken prior to the accident. This argument also lacks merit because, as we noted previously, the evidence will support a finding that there were, in fact, brick-ties in Carter’s home. Accordingly, the trial court was not in error in finding that the front brick wall would have to be torn down and rebuilt because the brick-ties were broken in the accident.

Item E. Building Walls, and Replacing Decking, Facia and Soffit $1,500.00

GSU concedes that the roof decking and soffit needed to be replaced. However, GSU alleges the facia can be repaired adequately by replacing only that portion that was damaged rather than replacing the fa-cia across the entire front of the house.

At trial Mr. Lockhart testified that the only way to repair the damaged facia is to replace the facia all the way across the front of the house. There was no evidence presented to contradict Mr. Lockhart.

GSU then argues that the contractors it secured found only one unrelated cracked rafter brace and no damage to the walls.

Mr. Lockhart testified that there was water damage to the inner front wall and the top plates caused by water seeping into the house through the hole in the roof and that the only way to repair the damage would be to replace the deteriorated plates and studs. Therefore, the trial court was not in error in finding that the front wall, decking, facia and soffit were actually damaged to such an extent that it is necessary to replace the soffit, decking, entire facia and the damaged wall.

Item H. Shingles and Felt $522.00

Item I. Nails $65.00

The above items of damages relate to the re-roofing of Carter’s entire house. GSU concedes that the area damaged needed to be repaired but argues it is not responsible for the re-roofing of the entire house because the roof already needed replacing. Specifically, GSU alleges that only the damaged shingles need to be replaced.

Mr. Lockhart, in a deposition taken January 3, 1983, stated the following:

A. Right, Replace the shingles on the complete house because some of the decking had to be replaced, and see, you tear up shingles, you cannot replace them, you know, patch them after they get a certain age.
Q. In other words, you were not going to just spot repair the roof?
A. Oh, no, couldn’t spot repair that roof. I’m sure I couldn’t do it because them shingles, you know, are layers on there.

The trial court obviously believed Mr. Lockhart’s testimony that it is impossible to properly repair the roof by spot repairing the shingles. We find no error in this conclusion.

Item D. Labor on Outside of House $2,400.00

The record is devoid of information as to what this time of damage actually covers. We note that the labor for the brick laying, building of the front wall and painting is already provided for in. other items of damages. Therefore, the only remaining outside labor that could fall under this item is the labor to re-roof the house. However, since the record does not adequately define this item of damage, we remand to the trial court for a determination of what this item of damage actually covers.

Item J. Insulation $115.00

Carter alleges and the trial court awarded damages for installation of insulation on the basis that proper repair of the home should include insulation. We disagree with this award.

GSU cannot be held responsible for the replacement of something that was never present in Carter’s home. The record reveals that there was no insulation in Carter’s home, therefore that portion of the judgment awarding $115.00 for the installation of insulation is reversed.

Item K. Paint and Painting $700.00

GSU concedes it is responsible for painting the soffit and facia along the front of the house but argues it is not responsible for repainting the entire house. Mr. Lock-hart testified at trial that this item represented the cost to paint the entire front of the house including the soffit, facia, shutters, door and trim. Therefore, GSU is not being held responsible for repainting the entire house. However, there still remains the issue of whether the actual damage caused by GSU to the front of the house requires that GSU be held responsible for painting the shutters and front door.

Mr. Lockhart testified that he would have to remove the shutters before he could replace the brick wall which probably would cause damage to the shutters necessitating painting of the shutters before they were put back on the new brick wall. However, there was no testimony that the front door was actually damaged from the accident or would have to be removed in order to replace the front brick wall. Consequently, this item of damage awarding $700.00 for paint and painting is reversed and remanded to the district court for a determination of the cost to paint the entire front of the house except the front door.

Item L. Mise. $500.00

GSU alleges this item of damage is not recoverable because it is not sufficiently defined. We agree. GSU can only be responsible for the damage caused to Carter’s home by the meter being pulled through the roof. An award of $500.00 for miscellaneous expenses by the trial court was an abuse of discretion and is therefore reversed.

Credit to GSU

The trial court credited GSU with $570.75 for repairs made, and for payment for damages admittedly not incurred in the accident. We find no error in this credit.

For the foregoing reasons, the judgment of the trial court is affirmed in part, reversed in part and remanded to the trial court for further proceedings consistent with the views expressed in this opinion. All costs are to be paid by appellant.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

      .Estimate of Mr. Richard Lockhart:
      AMOUNT
      A. Panel two rooms $ 450.00
      B. Replace ceilings 2,500.00
      C. Bricks 950.00
      D. Labor on outside of house 2,400.00
      E. Building walls & replace decking, facia and soffit 1,500.00
      F. Sand 60.00
      G. Mortar 168.00
      H. Shingles & felt 522.00
      I. Nails 65.00
      J. Insulation 115.00
      K. Paint & Painting 700.00
      L. Brick layer 1,500.00
      M. Mise. 500.00
      N. Black Board Insulation 120.00
      $ 11,550.00


author: DOUCET, Judge. DOMENGEAUX, Judge,

text:
    Connie Sue PONDER, Ind. & as Natural Tutrix, et als., Plaintiffs-Appellees, v. GROENDYKE TRANSPORT, INC., et als., Defendants-Appellants.
    No. 83-503.
    Court of Appeal of Louisiana, Third Circuit.
    June 12, 1984.
    Concurring Opinion June 13, 1984.
    Writs Denied Oct. 5, 1984.

      Gold, Little, Simon, Weems & Bruser, John F. Simon, Alexandria, for defendant-appellant.
    Morrow & Morrow, Patrick C. Morrow, Opelousas, Ronald R. Thompson, Baton Rouge, Bernard Whetstone, Little Rock, Ark., for defendant-appellee.
    Paul Wilkins, Columbia, for plaintiff-ap-pellee.
    Before DOMENGEAUX, GUIDRY and DOUCET, JJ.
   DOUCET, Judge.

In this tragic vehicular collision case, a northbound 18-wheel truck failed to stay in its lane of traffic, at a point where the highway expanded from a two-lane undivided roadway into a four-lane divided highway, striking a southbound vehicle, killing two and seriously injuring another. In consolidated actions which ensued, a jury awarded plaintiffs damages approaching four million dollars against defendant trucking company and its insurers. In accordance with law, the trial judge adjudicated the claims against the State of Louisiana, Department of Transportation and Development (DOTD), and found this defendant free of fault. Issues presented on appeal are: (1) the finding of no liability on the part of DOTD; (2) whether the award was excessive; and (3) whether the trial court erred in permitting the jury to know the policy limits of all insurance carriers. We amend and affirm.

On March 30,1982, at approximately 1:30 A.M., Stuart A. Thevenot was driving an 18-wheel vehicle belonging to Groendyke Transport, Inc., north of Cheneyville, Louisiana heading north toward Lecompte, Louisiana on Highway 71. South of Lecompte the highway changes from a two-lane undivided road to a four-lane divided highway. The southbound traffic continued in a straight line upon reaching the two lane section, whereas the northbound lane forked-off in a trapezoid fashion towards the two northbound lanes. The truck traveled some 600 feet through a painted gore equipped with raised markers, struck and ran through a number of barrels standing well inside the perimeter of the neutral zone between the divided highway. The truck rolled through the barrels for approximately 200 feet then jackknifed from the neutral zone into the southbound portion of the divided Highway 71. There, the The-venot truck, without warning, smashed into a vehicle being driven by Nickie D. Ponder, instantly killing Nickie Ponder and his brother Donald Ponder. The other occupant in the Ponder vehicle, Michael Mols-bee, suffered numerous injuries; Molsbee’s left arm and shoulder were severely and permanently mangled. The Ponder vehicle was in its right-hand lane traveling at a reasonable speed. On the other hand, it is clear the Thevenot vehicle was in the wrong lane albeit at an undetermined speed.

Connie Sue Ponder, individually and on behalf of her minor son, brought suit to recover damages occasioned by Donald Ponder’s death, naming as defendants Stuart A. Thevenot, Groendyke Transport, Inc., North Star Reinsurance Corp., and Mission Insurance Co. Linda Ponder brought suit against the same defendants, to recover damages individually and on behalf of her three children as a result of the death of Nickie Ponder. Michael Molsbee also brought suit against all of the aforementioned defendants except Mission Insurance Co. Stuart Thevenot brought suit against DOTD and the aforesaid defendants brought third party demands against DOTD.

Original defendants and third party plaintiffs, Groendyke Transport, Inc., North Star Reinsurance Corporation and Mission Insurance Company together with original plaintiff Stuart A. Thevenot presented their claims against the State of Louisiana, DOTD. The demands against the State were determined by the trial judge whereas plaintiffs claims against the original defendants and third-party plaintiffs were tried by a jury. All claims were consolidated for trial.

The jury determined that Stuart A. The-venot was 80% at fault, thereby implying that another party, presumably DOTD, was 20% at fault. The trial judge found there was no evidence to support a finding of any fault on the part of DOTD, stating: “[t]he highway was properly designed at the accident site. Also, the brightly marked metal barrels with sand in the bottom for ballast were placed well within the neutral ground by the DOTD and created no hazard whatsoever for an ordinarily prudent driver. After Mr. Thevenot ignored the clearly visible early warning signs, Mr. Thevenot’s truck had to progress in a straight line through the no travel zone of the painted point (gore) at least 600 feet over raised markers before he ever got to the neutral ground which was outlined by reflector marked barrels placed well back within the perimeter but outlining the perimeter of the neutral ground. Then the Thevenot truck ran through the barrels for about 200 feet before it swerved in the southbound lanes of the four-lane highway. Third party plaintiffs contend that a brake air hose was severed in the accident. Perhaps so, but how and when? It could have been by one of the barrels overrun in the neutral ground or by the accident impact itself in the southbound lane of U.S. Highway 71.

Even if one of the barrels had become lodged underneath the truck and severed an air hose to the brakes, the cause of the accident remains the fault of the driver, Thevenot, who without any known reason traveled some 600 feet across a no travel zone and then into the neutral zone where the barrels were standing as markers to outline the said neutral zone. Mr. Theven-ot left his travel lane portion of the highway; this was an act on his part which falls below the reasonable standard of care demanded of any motorist...

... The highway area near the accident site was neither hazardous nor defective. Third party plaintiffs, Groendyke Transport, Inc., North Star Reinsurance, and Mission Insurance Company, and original plaintiff, Stuart A. Thevenot, have failed to prove by a preponderance of the evidence (1) that the highway design was defective, or (2) that the highway construction was faulty or (3) that the highway regulations imposed were unreasonable or inadequate or (4) that the highway inspection or highway maintenance was inadequate or (5) that the highway marking or highway signing was improper or inadequate.

On the contrary, the highway area here involved posed no surprises. There was an adequate early advance warning sign system, an effective positive route guidance system, a reasonably safe recovery area and the installation of the best available cross over prevention measures. In this matter the DOTD was neither negligent nor in custody of a defective or hazardous highway.”

The jury awarded the following sums to the plaintiffs:

(a) Connie Sue Ponder (individually)
1) Loss of love and affection $150,000.00
2) Loss of support, earnings, maintenance $750,000.00
3) Special damages (funeral, etc.) 5,032.00
TOTAL $905,032.00
(b) Connie Sue Ponder, on behalf of minor
Donald R. Ponder, Jr.
1) Loss of love and affection $100,000.00
2) Loss of support, earnings, maintenance 200,000.00
TOTAL $300,000.00
(c) Linda Ponder (individually)
1) Loss of love and affection $150,000.00
2) Loss of support, earnings, maintenance 700,000.00
3) Special damages (funeral, etc.) 2,000.00
TOTAL $852,000.00
(d) Linda Ponder on behalf of the following
minor children:
John Wayne Ponder:
1) Loss of love and affection $100,000.00
2) Loss of support, earnings, maintenance 200,000.00
TOTAL $300,000.00
Christopher D. Ponder
1) Loss of love and affection $100,000.00
2) Loss of support, earnings, maintenance 200,000.00
TOTAL $300,000.00
Angela N. Ponder
1) Loss of love and affection $100,000.00
2) Loss of support, earnings, maintenance 200,000.00
TOTAL $300,000.00
(e)Michael E. Molsbee
1) Past pain and suffering $ 10,000.00
2) Future pain and suffering 50,000.00
3) Loss of past earnings 23,000.00
4) Loss of future earnings 500,000.00
5) Past medical expenses 20,000.00
6) Future medical expenses 5,000.00
7) Disability, disfigurement 10,000.00
TOTAL $618,000.00

In the Connie Ponder suit, the defendants have paid the judgment awarded Connie Sue Ponder, individually, but have appealed the judgment in favor of Donald Ponder, Jr., and have appealed the dismissal of their third party demands against DOTD. In the Linda Ponder suit, the defendants have appealed as to all plaintiffs, and have appealed the dismissal of their third party demands against DOTD. In the Michael Molsbee suit, the defendants have settled with Michael Molsbee, but have appealed the dismissal of their third party demands against the Department. Stuart Thevenot has appealed from the dismissal of his suit against the Department.

Appellants specify three assignments of errors, to wit: (1) The District Court erred in finding no liability on the part of DOTD; (2) The verdict of the jury was manifestly erroneous in awarding excessive sums to Linda Ponder, Angela N. Ponder, Christopher D. Ponder, John Wayne Ponder, and Donald Ponder, Jr.; and (3) The court erred in permitting the policy limits of all of the insurance carriers to be known by the jury.

LIABILITY

The third party plaintiffs and plaintiff Thevenot contend DOTD was negligent in that if the barrels had not been where they were, or if they had not been made of metal, Mr. Thevenot’s truck could have continued forward into the neutral ground or back into the northbound lanes. In other words, appellants contend the 55 gallon metal drums severed the brake line and otherwise caused Thevenot to lose control of his truck. Appellants argue that plastic, rubber or even cardboard barrels should have been used instead inasmuch as vehicles could then travel through barricades with a minimum of damage to the vehicles. We disagree.

It is undisputed that Mr. Theven-ot was in the wrong lane of travel at the time of the collision, thus the burden is upon Thevenot to show that the collision was not caused by his negligence. Simon v. Ford Motor Co., 282 So.2d 126, (La.1973); Rizley v. Cutrer, 232 La. 655, 95 So.2d 139 (1957). Additionally, those parties alleging strict liability on the part of DOTD had the burden of proving the existence of a defect which created an unreasonable risk of harm to others. Shipp v. City of Alexandria, 395 So.2d 727 (La.1981); Jones v. City of Baton Rouge, 388 So.2d 737 (La.1980). In determining whether the risk of harm is unreasonable, the utility of the object must be balanced against the risk and magnitude of harm posed. Hunt v. City Stores, Inc., 387 So.2d 585 (La.1980).

Mr. Thevenot, a resident of nearby Cot-tonport, testified that he had driven through this area at least three or four times a week, often at night, for the past several years and he was familiar with the steel barrels and the roadway. The barrels are marked with high intensity reflective tape to enhance their visibility at night. They were weighted with sand to reduce the risk of them being blown or knocked over onto the traveled portion of the highway. The trial judge obviously accepted as true the testimony that the barrels were properly placed and marked in accordance with acceptable traffic control planning.

Although not dispositive of whether DOTD’s maintenance or design presented an unreasonable risk of harm, the evidence indicated that more than 1,200,000 vehicles safely maneuvered through this location. Indeed, Mr. Thevenot testified he had traversed the same passage many times before.

In addition to the multiple barrels, there were raised pavement markers to alert motorists to the upcoming divided highway. Signs also warned of the change in travel design including “Keep Right” signs. Nevertheless, Mr. Thevenot claimed he was blinded by an oncoming car light after he already slowed to execute the fork in the highway. When Thevenot struck the barrels, the evidence indicated he had not yet applied his brakes and the tractor-trailer was turned slightly to the left. He traveled approximately 600 feet through the gore area before striking the barrels whereupon he lost control of the truck. It appears that a barrel became lodged beneath the truck, rupturing a brake line.

Drivers are under a never ceasing duty to maintain a proper lookout and to see what should be seen. Dabov v. Allstate Ins. Co., 302 So.2d 697 (La.App. 3rd Cir.1974); Sinitiere v. Lavergne, 391 So.2d 821 (La.1980); Smith v. Borchers, 243 La. 746, 146 So.2d 793 (1962); McCandless v. Southern Bell Tel. & Tel. Co., 239 La. 983, 120 So.2d 501 (1960). Causation is a question of fact to which the trial court’s determinations are entitled to great weight and will not be disturbed absent manifest error. Smith v. State, Through Dept. of Transportation and Development, 412 So.2d 685 (La.App. 2nd Cir.1982); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). We agree with the trial court that Thevenot was negligent in failing to maintain a proper lookout for hazards which, by use of ordinary care and observation, he should have been able to see in time to avoid collision with the channelization devices. Furthermore, we agree with the trial judge that the warnings provided by DOTD were sufficient to alert an ordinary, reasonable motorist of the character of the crossover and the safeguards provided by DOTD were commensurate with any danger posed. Accord: Jimcoily v. State Through Dept. of Highways, 361 So.2d 982 (La.App. 4th Cir.1978) writ denied 363 So.2d 1384 (La.1978); Usry v. Louisiana Dept. of Highways, 402 So.2d 240 (La.App. 4th Cir. 1981) writs denied 404 So.2d 1259 (La.1981).

QUANTUM

Upon review of a jury’s award of damages, an appellate court is constrained to follow several limiting principles. First, we are reminded that assessment of damages is the province of- the trier of fact, whose judgment is allowed great discretion and deference. Moreover, an award of damages cannot be disturbed unless the appellate record clearly reveals that the trier of fact abused its great discretion. If such is the case, the reviewing court may modify the award, but only to the extent of lowering it to the highest point which is reasonably within the discretion afforded the finder of fact. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977); Reck v. Stevens, 373 So.2d 498 (La.1979). Nevertheless, Courts of Appeal have the right and duty to review damage awards. Wilson v. Magee, 367 So.2d 314 (La.1979); La. Const, art. 5 § 10(B); Cheatham v. City of New Orleans, 378 So.2d 369 (La.1979); Schexnayder v. Carpenter, 346 So.2d 196 (La.1977). The appellate court’s modification of the award must be based upon a particularized inquiry as to the injuries suffered by the individual plaintiffs.

Defendants have appealed the awards made to Linda Ponder, her children, and Donald Ponder, Jr. Appellants do not seriously contest the sums awarded for loss of love and affections, rather their argument centers on the awards for loss of support, earnings, and maintenance.

Donald Ponder, Sr. went to work for Ocean Drilling and Exploration Co. (ODE-CO) as a roughneck in 1969 earning $3.15 per hour. A series of promotions followed and on the date of his death he was earning $3,200 per month or $38,400 per year. In addition, he received a company car and insurance benefits. On the date of his death he was 35 years old and had a work-life expectancy of 24.9 years, based upon working until age 60. Dr. Charles Betting-er, an expert in the field of economics and statistics, called on plaintiff’s behalf, estimated Donald Ponder’s past and future loss of earnings, including fringe benefits, to be $1,373,352.00 based on a 7V2% wage increase per annum over 24 years. When fringe benefits (calculated to be 28% of gross) are excluded, Bettinger’s estimate was $1,039,915.00. The jury awarded Connie Sue Ponder $750,000.00 for loss of support and her son, Donald R. Ponder, Jr. was awarded $200,000.00 for loss of support.

Nickie Ponder was also employed by ODECO, earning $9.25 per hour or $25,-493.00 annually, at the time of his death. He was 33 years of age with a projected work life expectancy 25.8 years. Dr. Bet-tinger, using the same inflation and discount factors, projected his earnings loss at $795,604.00. The jury awarded the Nickie Ponder survivors $1,300,000.00 for loss of support and maintenance, or $700,000.00 to the surviving spouse and $200,000.00 to each of his three children.

Thus, the jury’s award in the Nickie Ponder case exceeded the estimated economic loss projected by plaintiffs’ expert and apparently failed to take into account any discount factor to arrive at the present value. Furthermore, the award appears to assume the decedent would spend all (or more) of his disposable income on his family-

The jury awarded Linda Ponder $700,-000.00 for loss of support, earnings and maintenance. Nickie Ponder was earning $2,125.00 per month at the time of the accident or .$25,000.00 a year.

If Linda Ponder were to invest $700,-000.00 in a portfolio of U.S. Treasury Bonds such as was suggested by expert economist Dr. Boudreaux, at an average return of 10.25 percent interest, she could immediately have an income of $71,750.00 per year. Nickie Ponder was only earning $25,500.00 a year at the time he was killed. She would receive $71,750.00 in interest every year that her investments averaged a return of 10.25 percent, and when she died, the principal amount of $700,000.00 would still be available to go to her heirs, presumably her children.

With regard to Linda and Nickie’s children, plaintiffs’ counsel has suggested that the present value of loss of six years support to John Wayne Ponder alone is $128,-571.00. If that is divided by the six years until his reaching majority it amounts to $21,000.00 a year, which is more than Nick-ie Ponder was earning after taxes at the time of his death.

Clearly Nickie could not be expected to have his earnings increase during that six years to such an extent that he would be contributing $21,000 a year to the support of John Wayne. And such a figure does not consider reduction of the annuity to discount it to its present value. The same can be said of the awards to Christopher and Angela Ponder.

Plaintiffs emphasize the fringe benefits accorded decedents prior to their death. However, a spouse and children have not lost any support because the husband/father is no longer alive to get holidays, vacations, sick leave and payment for jury duty. Flight insurance and life insurance were not items of support for the wife and children that they have lost through the death of the worker. Plaintiffs received the amount of life insurance decedents had. Because he is no longer alive, there is no need for the family to pay premiums for flight insurance or life insurance on his life. Likewise, disability insurance, retirement plans, stock ownership plans and room and board which were provided to the decedents while he was working do not constitute items of support for his family that they have lost through his death.

The only item of support that was being provided to the spouse and children through ODECO’s fringe benefits were the major medical and hospitalization insurance with which they were provided directly as dependents. All of the other fringe benefits were going directly to the decedent and not as support to his wife and children. Dr. Bettinger’s estimate of the worth of fringe benefits was clearly excessive.

We find the jury clearly abused its great discretion in finding that Nickie Ponder would have contributed three times his after-tax earnings to the support of his three children and, additionally, have contributed that same amount to the support of his wife at the same time.

Having found a clear abuse of discretion, we are constrained to reduce the award only to the highest point which is reasonably afforded the finder of fact. Although estimates of economic losses are speculative in nature and incapable of calculation with mathematical certainty, the award for loss of support herein exceeded the projections of all experts. According to counsel for the Linda Ponder plaintiffs, their own expert projected Nickie’s earnings loss to the Nickie Ponder family at about $700,-000.00 once a reduction is made for the inflated value placed on fringe benefits. Apportioning three-fourths of this sum to the surviving spouse’s support, a balance of $175,000.00 remains for support of the three children.

At the time of the death of Nickie Ponder his three children would have reached age eighteen as follows: John Wayne Ponder in approximately six years; Christopher in approximately ten years; and, Angela Ponder in approximately twelve years. These years represent years of dependency of the children and total twenty-eight years. Allocating $175,000.00 to the three Ponder children on a proportional basis of 6/28, 10/28, and 12/28 the proper support awards to the children are:

John Wayne Ponder $37,500.00
Christopher Ponder 62,500.00
Angie Ponder 75,000.00

Cf: Faulk v. Schlumberger Well Service, 412 So.2d 162 (La.App. 3rd Cir.1982). We note that the other elements of damages awarded to the Linda Ponder plaintiffs are not herein disturbed.

With regard to Donald R. Ponder, Jr., he was 11 years old at the time of the trial. He presumably would have been supporting himself in 7 years when he became 18. An award of $200,000.00 could be invested in a safe investment at 10.25 percent, which would give an income on the $200,000.00 in the first year of $20,500.00. Clearly, Donald Ponder was not contributing $20,500.00 a year out of his total earnings of $37,000.00 to the support of Donald, Jr. at the time of his death but his earnings were projected to increase. Thus, we think that an award of $200,000 is somewhat out of proportion for someone age eleven and must be reduced to the highest amount which the jury could reasonably have awarded under the circumstances. We believe the highest amount of award under the circumstances to be $70,000 for loss of support.

DISCLOSURE OF POLICY LIMITS TO THE JURY

Appellant insurers contend that the trial court erred in permitting plaintiffs’ attorneys to disclose the amount of the policy limits to the jury. Prior to trial, defendants filed a Motion in Limine to prevent such a disclosure, however, the trial judge denied the motion. We find he erred in doing so. The financial status of a defendant is irrelevant unless he places it at issue by claiming inability to pay. Suhor v. Gusse, 388 So.2d 755 (La.1980); Moffett v. Lumpkin, 382 So.2d 278 (La.App. 4th Cir.1980); Ashley v. Nissan Corp. in U.S.A., 321 So.2d 868 (La.App. 1st Cir. 1975). Compare: the three opinions in Domingue v. Continental Ins. Co., 348 So.2d 209 (La.App. 3rd Cir.1977). However, because the jury’s award fell below the policy limits and because of our independent determination that certain of the damage awards constituted a clear abuse of discretion, the erroneous denial of defendants’ Motion in Limine does not warrant reversal under the circumstances.

For the reasons assigned, the judgment appealed is hereby amended in accordance with the views expressed hereinabove. In all other respects, the judgment is affirmed at appellants’ cost.

AFFIRMED.

DOMENGEAUX, Judge,

concurring.

The language in the Louisiana Supreme Court case of Arceneaux v. Domingue, 365 So.2d 1330 (La.1979), indicates the trend in that Court clearly being toward admissibility of the policy limits before the jury, even when the inability of a defendant to pay is not an issue. I therefore feel that the majority opinion may be in error when it states that the trial judge was wrong in allowing plaintiffs’ attorneys to disclose the amount of the policy limits to the jury in this case.


text:
    Linda PONDER, Ind. & as Natural Tutrix of minor children, John Wayne Ponder, Christopher D. Ponder, and Angela N. Ponder, Plaintiff-Appellees, v. GROENDYKE TRANSPORT, INC., Stuart A. Thevenot, North Star Reinsurance Corporation, and Mission Insurance Company, Defendants-Appellants.
    No. 83-504.
    Court of Appeal of Louisiana, Third Circuit.
    June 12, 1984.
    Concurring Opinion June 13, 1984.
    Writs Denied Oct. 5, 1984.
    Gold, Little, Simon, Weems & Bruser, John F. Simon, Alexandria, for defendant-appellant.
    Morrow & Morrow, Patrick C. Morrow, Opelousas, Ronald R. Thompson, Baton Rouge, Bernard Whetstone, Little Rock, Ark., for defendant-appellee.
    Paul Wilkins, Columbia, for plaintiff-ap-pellee.
    Before DOMENGEAUX, GUIDRY and DOUCET, JJ.
   DOUCET, Judge.

For the reasons assigned in the consolidated case of Connie Ponder v. Groendyke Transport, Inc., 454 So.2d 823 (La.App. 3rd Cir.1984), it is now ORDERED ADJUDGED AND DECREED that the awards for loss of support are amended as follows:

Linda Ponder $525,000.00

John Wayne Ponder 37,500.00

Christopher Ponder 62,500.00

Angie Ponder 75,000.00

In all other respects the judgment appealed is affirmed at appellant’s cost.

AFFIRMED AS AMENDED.

DOMENGEAUX, Judge,

concurring.

For the brief reasons assigned in 454 So.2d 823, handed down this date, I respectfully concur.


author: DOMENGEAUX, Judge,

text:
    Michael E. MOLSBEE, Plaintiffs-Appellees, v. GROENDYKE TRANSPORT CO., INC., Stuart A. Thevenot, North Star Reinsurance Corporation, and Mission Insurance Company, Defendant-Appellee.
    No. 83-505.
    Court of Appeal of Louisiana, Third Circuit.
    June 12, 1984.
    Concurring Opinion June 12, 1984.
    Writs Denied Oct. 5, 1984.
    Gold, Little, Simon, Weems & Bruser, John F. Simon, Alexandria, for defendant-appellant.
    Morrow & Morrow, Patrick C. Morrow, Opelousas, Ronald R. Thompson, Baton Rouge, Bernard Whetstone, Little Rock, Ark., for defendant-appellee.
    Paul Wilkins, Columbia, for plaintiff-ap-pellee.
    Before DOMENGEAUX, GUIDRY and DOUCET, JJ.
   For the reasons assigned in the consolidated case of Connie Ponder v. Groendyke Transport, Inc., 454 So.2d 823 (La.App. 3rd Cir.1984), the judgment appealed is affirmed at appellants’ cost.

AFFIRMED.

DOMENGEAUX, Judge,

concurring.

For the brief reasons assigned in 454 So.2d 823, handed down this date, I respectfully concur.


text:
    Stuart A. THEVENOT, Plaintiffs-Appellees, v. GROENDYKE TRANSPORT CO., INC., Stuart A. Thevenot, North Star Reinsurance Corporation, and Mission Insurance Company, Defendant-Appellee.
    No. 83-506.
    Court of Appeal of Louisiana, Third Circuit.
    June 12, 1984.
    Concurring Opinion June 13, 1984.
    Gold, Little, Simon, Weems & Bruser, John F. Simon, Alexandria, for defendant-appellant.
    Morrow & Morrow, Patrick C. Morrow, Opelousas, Ronald R. Thompson, Baton Rouge, Bernard Whetstone, Little Rock, Ark., for defendant-appellee.
    Paul Wilkins, Columbia, for plaintiff-ap-pellee.

      Before DOMENGEAUX, GUIDRY and DOUCET, JJ.
   For the reasons assigned in the consolidated case of Connie Ponder v. Groendyke Transport, Inc., 454 So.2d 823 (La. App. 3rd Cir.1984), the judgment appealed is affirmed at appellants’ cost.

AFFIRMED.

DOMENGEAUX, Judge,

concurring.

For the brief reasons assigned in 454 So.2d 823, handed down this date, I respectfully concur.


author: SCHOTT, Judge.

text:
    STATE of Louisiana v. Teddy THOMAS.
    No. KA 1633.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 26, 1984.
    Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for defendant-appellee. nick, Dist. Atty., Mary Charlotte McMullan, Asst. Dist. Atty., New Orleans, for plaintiff-appellant.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-

      Before GULOTTA, SCHOTT and WILLIAMS, JJ.
   SCHOTT, Judge.

Defendant was convicted of two counts of forgery in violation of R.S. 14:72 and sentenced to ten years at. hard labor on each count to run concurrently.

In early August, 1982, Giwena Patin’s automobile was burglarized and her checkbook, stolen. On August 17 defendant attempted to cash a check payable to his order drawn by Patín on the account. The bank teller refused to cash the check because he noticed that initials on the check purporting to be the bank manager’s appeared to be forged. Another manager who was notified by the teller of the difficulty, verified that the initials were false, and called the police who arrested the defendant.

In her testimony Mrs. Patín identified the check as hers. She stated that the drawer’s signature was not hers, she did not know the defendant prior to the institution of these proceedings, and she never drew a check to his order.

The state's handwriting expert testified that none of the entries on the face of the check were in defendant’s handwriting but the endorsement on the reverse was his.

ASSIGNMENT OF ERROR 1

By this assignment defendant contends that the evidence was insufficient to support a conviction on either count. LSA-R.S. 14:72 defines forgery as follows:

“Forgery is the false making or altering, with intent to defraud, of any signature to, or any part of any writing purporting to have legal efficacy.
Issuing or transferring with intent to defraud, a forged writing, known by the offender to be a forged writing, shall also constitute forgery.”

The state’s expert established that the signature purporting to be Mrs. Patin’s on the face of the check as drawer was not written by defendant. Thus, he did not commit the crime defined in the first paragraph of the statute of falsely making that signature. The only other signature on the check was his own as endorser to whom the cheek was made payable. This signature was not false so that it likewise could not constitute the crime defined by the statute’s first paragraph. Hence, defendant’s conviction on the first count falls.

As to the second count, however, we reach the opposite conclusion. Our task is to determine, in viewing the evidence in the light most favorable to the state, whether there is sufficient evidence in the record for a rational trier of fact to have found defendant guilty beyond a reasonable doubt on every essential element of the offense. State v. West, 408 So.2d 1302 (La.1982). Since this case is based in part on circumstantial evidence we must further determine that every reasonable hypothesis of defendant’s innocence has been excluded. R.S. 15:438.

The four elements of this offense are 1) issuing or transferring, 2) with intent to defraud, 3) a forged writing, 4) known by defendant to be forged. Elements 1 and 3 were established by direct evidence while 2 and 4 were established by circumstantial evidence. The question is over the sufficiency of proof of the latter two elements.

The defendant was in possession of a check payable to his order by a stranger. When he presented the check for cashing it contained the forged initials of the bank manager. We are simply unable to conjure up any reasonable hypothesis of defendant’s innocence on the elements that he intended to defraud the bank and knew the maker’s signature was forged. As to the second count, this assignment of error has no merit.

Because of the conclusion we have reached with respect to count 1 defendant’s second and final assignment of error is moot.

We have reviewed the record for errors patent and find none.

Accordingly, defendant’s conviction and sentence as to count 1 are reversed and set aside, while his conviction and sentence as to count 2 are affirmed.

REVERSED IN PART; AFFIRMED IN PART.