text:
    Robert Lynn LAMETTE, Plaintiff-Appellee, v. MORRISON ASSURANCE CO., et al., Defendant-Appellant.
    No. 16653-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1984.

      Cook, Yancey, King & Galloway by Samuel W. Caverlee, Shreveport, for defendant-appellant.
    Roland Y. McKneely, Jr., Bossier City, for plaintiff-appellee.
    Before PRICE, J. Pro Tem., and JASPER E. JONES and FRED W. JONES, Jr., JJ.
   JASPER E. JONES, Judge.

In this worker’s compensation case, defendants, the Magnolia Pulpwood Company, Inc., and its insurer, Morrison Assurance Company, appeal a judgment finding the plaintiff temporarily totally disabled and awarding him worker’s compensation benefits of $166.50 per week from October 21, 1983 through the duration of his disability. The sole issue raised by their appeal is whether the record supports the trial court’s finding that plaintiff is suffering disabling pain. The plaintiff, Robert Lam-erte, answered the appeal contending the trial court erred in denying his claim for penalties and attorney’s fees. We affirm.

Plaintiff was injured in a chain saw accident on May 2, 1983 while working as a wood cutter for Billy Turnipseed who was producing pulpwood for Magnolia. The chain saw plaintiff was operating slipped and cut into the big toe on his left foot. The bone, joint and nerves in the toe were severely damaged. Plaintiff subsequently underwent two operations to repair the toe; both of which were performed by Dr. Thomas Edwards, who is an orthopedic surgeon. In the first operation a pin was placed in the joint to hold the toe together. In the second operation a piece of bone was taken from plaintiffs hip and grafted over the joint in order to make it stiff and stable. Dr. Edwards treated plaintiff as an outpatient on numerous occasions following the operations. After the accident defendants commenced paying plaintiff compensation benefits of $166.50 per week.

Dr. Edwards examined plaintiff on October 7, 1983 and found the toe had healed sufficiently to allow plaintiff to return to work. The same day Dr. Edwards sent defendants a report stating:

Robert returns and he is doing well in regard to his toe. The wound has had no drainage whatsoever. We removed the pin and x-rays show solid union of the bone graft. We will have him return to work and check with us in 2 months.

Within a few days after the October 7 doctor’s visit plaintiff called a Mr. Haynes at Magnolia and informed him he was able to return to work. Haynes told plaintiff no work was available. Based upon the report from Dr. Edwards and plaintiff’s call to Haynes defendants terminated plaintiff’s benefits effective October 21, 1983.

On December 5, 1983 plaintiff returned to Dr. Edwards’ office for the prescribed two month check-up. The doctor found no objective indications of complication with the toe that would create disability. He sent a report to defendants stating plaintiff was complaining of some aching from time to time but was generally functioning at a good level. The report further states that plaintiff is to continue his full activities and is otherwise released.

On December 19, 1983 plaintiff’s attorney sent defendants a letter demanding that plaintiff’s benefits be resumed retroactive to October 13, 1983. Defendants rejected the demand.

On December 29, 1983 plaintiff returned to Dr. Edwards’ office complaining of “some soreness” in his big toe. Dr. Edwards again found no objective symptoms and he prescribed sole pads for plaintiff’s shoes.

Plaintiff filed suit on January 6, 1984 seeking compensation on the basis that he was suffering severe pain as a result of his injury and was unable to work. Trial was held on February 10, 1984.

Plaintiff testified he had pain from his toe since the accident. He stated that he had no foot problems prior to the accident. Since the accident his activities have been severely curtailed as he can neither stand nor walk for more than a few minutes without pain. He is unable to wear a shoe on his left foot due to pain and he suffers extreme pain every time he bumps his toe.

Plaintiff’s testimony is substantially corroborated by that of his father, a friend and his girlfriend. Defendant called no rebuttal witnesses. The only other witness to testify was Dr. Edwards. He testified to his treatment and diagnosis of plaintiff’s injury. The trial court found plaintiff was suffering disabling pain as a result of the accident at the time of trial.

Disability

An employee is considered to be disabled if he is unable to engage in any self-employment or gainful occupation for wages without experiencing substantial pain. LSA-R.S. 23:1221(1) and (2). An employee is not required to work in substantial pain. Tyler v. American Mutual Liability Insurance Co., 212 So.2d 437 (La.App. 2d Cir.1968); Durham v. G & H Drug Company, 216 So.2d 878 (La.App. 2d Cir.1968).

Whether an injured employee’s pain is substantial enough to render him unable to work is a question of fact. Hebert v. Your Food Processing & Warehouse, Inc., 248 La. 197, 177 So.2d 286 (1965); Lucas v. Ins. Co. of North America, 342 So.2d 591 (La.1977). The trier of fact’s determination on the pain issue should not be disturbed on appeal if there is reasonable evidence before the trier which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the determination, unless such finding is clearly wrong. Crump v. Hartford Acc. & Indem. Co., 367 So.2d 300 (La.1979); Kraemer v. Louisiana Power & Light Co., 393 So.2d 346 (La.App. 1st Cir.1980); Ellis v. Rapides Parish School Bd., 419 So.2d 990 (La.App. 3d Cir.1982). Whether the pain is substantial enough to be disabling is ordinarily not a medical question but is an issue to be determined by the trier of fact on the totality of the evidence, both medical and lay. Tantillo v. Liberty Mutual Insurance Company, 315 So.2d 743 (La.1975); Lucas v. Ins. Co. of North America, supra; Bordelon v. Ranger Ins. Co., 413 So.2d 962 (La.App. 3d Cir.1982).

Defendants argue the trial court should have given more weight to Dr. Edwards’ testimony that he found nothing objectively wrong with plaintiff’s toe which would cause him to experience severe pain. This argument ignores other portions of Dr. Edwards’ testimony in which he indicated that pain is a subjective phenomena. Dr. Edwards testified that although he released plaintiff to return to work, he expected him to experience some pain. The doctor further testified that the level of pain plaintiff experienced depended on the type of person he is and that there is nothing inconsistent in the level of pain plaintiff claimed he was experiencing at trial and the extent of his injuries. Dr. Edwards stated the big toe performs an important push function for the foot when walking is performed and the big toe performs a balancing function to the foot. He opined that the necessary bone graft which immobilized the joint in the big toe together with the scar tissue and damage to the nerve and blood supply created a permanent 5% partial disability in plaintiff’s foot. He stated that he expected plaintiff to have pain in his foot and that only the plaintiff could determine if the pain was so severe that he was unable to work. The doctor further stated that he did not expect the pain in the foot to completely stop for about one year following the bone graft performed on the plaintiff’s toe in June of 1983. We find nothing in Dr. Edwards’ testimony which negates the possibility that plaintiff was experiencing disabling pain at the time of trial. The totality of the medical evidence and the lay testimony supports the trial judge’s factual finding that plaintiff was suffering substantial pain creating disability.

Defendants contend a number of facts established at trial tend to indicate plaintiff is a malingerer. In Harrison v. Chicago Mill & Lumber Co., 446 So.2d 843 (La.App. 2d Cir.1984) we made the following observations concerning the malingering defense in worker’s compensation cases:

The appellate courts of this state are reluctant to brand as a malingerer a compensation claimant who has been held to be disabled, and will not do so unless the trial court’s finding is manifestly erroneous ... The claimant will not be so stigmatized in the absence of positive and convincing evidence ... (cites omitted)

The most serious of defendants’ factual arguments are: (1) plaintiff never told Dr. Edwards that he was suffering severe pain and he did not relay this information to Mr. Haynes at Magnolia when he informed him he was able to work; and (2) plaintiff failed to take measures, such as wearing shoes and exercising his foot, to improve the condition of his toe.

Dr. Edwards testified that plaintiff is not a complainer. His observation is based on the fact that plaintiff never complained much about pain even after the accident first occurred. Dr. Edwards also testified that he never asked plaintiff about the level of pain he was experiencing.

Plaintiff testified he only intended to continue working, if work had been available, if he was physically able and the toe did not hurt too badly.

Plaintiff explained he did not wear shoes or exercise because these measures caused him a lot of pain. He was also never told that wearing a shoe and taking exercise would gradually decrease the level of pain he was experiencing.

We find that the above factual arguments are adequately explained by the record and do not warrant reversal of the trial court’s determination that plaintiff is not malingering. The other factual arguments relied on by defendants are either irrelevant or are not the positive convincing evidence required to brand a compensation claimant as a malingerer in light of the trial court’s finding to the contrary.

There is substantial evidence in the record to support the trial court’s determination that plaintiff was suffering disabling pain at the time of trial. We find no manifest error in that determination.

Penalties and Attorney’s Fees

Plaintiff seeks penalties and attorney’s fees because of defendants’ termination of his benefits as of October 21, 1983.

An employer or its insurer shall be liable for penalties and attorney’s fees for terminating benefits when the action is arbitrary, capricious or without probable cause. LSA-R.S. 23:1201.2; Harrison v. Chicago Mill & Lumber Co., supra.

Whether or not á termination of or refusal to pay benefits is arbitrary, capricious or without probable cause depends primarily on the facts known to the employer or insurer at the time of its action. Lee v. Smith, 248 La. 16, 176 So.2d 413 (1965); Scott v. Sears, Roebuck & Co., 406 So.2d 701 (La.App. 2d Cir.1981); Edwards v. Hartford Ins. Co., 445 So.2d 499 (La.App. 2d Cir.1984). The termination of benefits is not arbitrary, capricious or without probable cause when it is based upon legitimate disputes as to the extent or cause of claimant’s disability. Hughes v. Webster Parish Police Jury, 414 So.2d 1353 (La.App. 2d Cir.1982); Harrison v. Chicago Mill & Lumber Co., supra. The question is ultimately one of fact and the trial court’s finding should not be disturbed on appeal absent manifest error. Scott v. Sears, Roebuck & Co., supra; Edwards v. The Hartford Insurance Company, supra.

The trial court found defendants’ termination of benefits was not arbitrary, capricious or without probable cause because it was based on Dr. Edwards’ October 7 report releasing plaintiff to return to work and plaintiff’s call to Haynes stating he was able to work. Relying on the case of Harris v. Louisiana Paving Co., Inc., 427 So.2d 1352 (La.App. 2d Cir.1983) plaintiff argues the trial court’s finding is manifestly erroneous because defendants failed to properly investigate his claim.

In Harris we found the defendants had a duty to investigate whether the plaintiff was able to work because the doctor’s report, while giving plaintiff a minimal disability rating of 15%, did not state he was able to return to work. Here, there was no indication in the October 7 report that plaintiff was disabled as a result of his injury. The report also indicates that Dr. Edwards unconditionally released plaintiff to return to work. The reference to having plaintiff return for a check-up in two months is merely an indication that Dr. Edwards wanted to check his progress. It is not an indication that there was some limitation to plaintiffs ability to work.

We further note that although plaintiff testified he only intended to work if he was physically able, he did not inform Haynes that he may be incapable of performing his job without substantial pain. While plaintiff was on cross-examination the following colloquy took place:

Q. Okay. And then when you called Magnolia and talked to Haynes, the man over there within several days or so after Dr. Edwards released you, you remember isn’t it correct that you told him you were ready to come back to work. Let me phrase it, you told him that the doctor had released you, you had another appointment to see him, and that he thought you might be ready, through (sic) you were ready to go back to work. You told the same thing to the doctor, to Mr. Haynes that you told us.
A. Well, yes, that’s what I said.
Q. And then I remember I asked you did you tell him anything else, Mr. Haynes, and you said no, that was all. That’s really—
A. That’s all. With the speculation— well, may I add this? I said that with the speculation that I was will- ' ing to try to go back to work.
Q. Okay, now I understand that is what you said today, but in the deposition two days ago the only thing you told me you said to Haynes was that you, the doctor said you were ready to go back to work and you were presenting yourself back to work.
A. Yes.
Q. And then what you are telling me now that is in your mind you were going to kind of see what you could do?
A. Yes.
Q. Okay, but you didn’t tell me that two days ago and you didn’t say that directly to Haynes at Magnolia?
A. Right_

At the time the decision to terminate plaintiff’s benefits was made, defendants had no indication from plaintiff or his doctor that the injury may have rendered him unable to work. Without such an indication defendants had no duty to investigate the extent of plaintiff’s injury. See Breaux v. Marine Elec. & Reliance Ins. Co., 369 So.2d 196 (La.App. 3d Cir.1979) which holds that an insurer was not arbitrary and capricious for discontinuing benefits where the insurer relied on a report from the plaintiff’s doctor stating the plaintiff could return to his normal activities.

Plaintiff argues defendants were arbitrary and capricious for not resuming his benefit payments after receiving the demand letter of December 19 in light of Dr. Edwards’ report from plaintiff’s December 5 office visit. That report states:

Robert is doing well in regard to his toe and he has some aching from time to time but generally is functioning at a good level. We will have him continue his full activities and check with us if he has any further problems. He is otherwise released.

There is no indication in the report that plaintiff was suffering any disability or was unable to work. To the contrary, the report indicates plaintiff was physically capable of performing any activity he performed prior to the accident.

We find no manifest error in the trial court’s decision to deny plaintiff’s claim for penalties and attorney’s fees.

The judgment of the trial court is AFFIRMED. All costs are assessed to defendants.

      . None of the parties question the amount awarded or the trial court’s classification of plaintiff’s disability as temporary total.

      . The bone at the distal end of the approximal phalanx and the bone at the proximal end of the distal phalanx was damaged and 80% of the joint between was missing and one-half of the blood and nerve supply of the big toe was eliminated.

      . Dr. Edwards is the only doctor who has treated plaintiffs injury.

      . At trial it was stipulated that plaintiff received benefits through October 21, 1983.

      . Plaintiff stated the only type shoes he has been able to wear since the accident is flip-flops. In reference to the sole pads prescribed by Dr. Edwards, plaintiff never informed the doctor he was unable to wear regular shoes. Dr. Edwards never asked plaintiff if he was able to wear regular shoes, although plaintiff always wore flip-flops during the office visits.

      . Other facts pointed to by defendants are: (1) plaintiff only complained to a friend twice about his toe during a three month period of time; (2) since the accident plaintiff has spent 8-10 hours per day watching television; (3) plaintiff intended to apply for another job the week after trial; (4) plaintiff did not have a cane or crutch at trial despite testimony that he had to use a cane or crutch for walking; (5) there was conflicting testimony as to plaintiffs pre-accident activities; and (6) a person can function without a big toe. In connection with (6) we note Dr. Edwards testified that plaintiff would have recovered faster if his toe had been amputated. Dr. Edwards chose not to amputate the toe.


source: Caselaw Access Project

author: PRICE, Judge Pro Tern.

license: Public Domain

text:
    In re SUCCESSION OF James GORDON. Emma Cromedy GORDON and Elvira Gordon Sanders, Plaintiffs-Appellees, v. Elizabeth GORDON and Linda Maxine Gordon Mims, et al., Defendants-Appellants.
    No. 16656-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1984.
    Rehearing Denied Jan. 4, 1985.
    Writ Denied March 8, 1985.

      Jones & Jones by Benjamin Jones, Monroe, for defendants-appellants.
    Hamilton & Carroll by Orlando N. Hamilton, Jr., Oak Grove, for plaintiffs-appellees.
    Before FRED W. JONES, Jr. and JASPER E. JONES, JJ., and PRICE, J. Pro Tern.
   PRICE, Judge Pro Tern.

Elizabeth Weston Gordon, alleged putative wife of decedent, James Gordon, and her children appeal the judgment of the trial court awarding all of the property of the decedent’s succession to Emma Crome-dy Gordon, the legal wife of decedent and to Elvira Gordon Sanders, the child of that marriage. We reverse the judgment of the trial court for the following reasons.

Emma Cromedy Gordon and Elvira Gordon Sanders filed a petition on September 10, 1982 alleging that decedent, James Gordon, died intestate on August 11, 1972. Plaintiffs alleged that the deceased was legally married only once on September 8, 1928 to Emma Cromedy Gordon. Of this marriage, one child, Elvira Gordon Sanders, was born on January 24, 1931. Plaintiffs alleged that decedent left Emma Gordon and without dissolving his marriage to her, contracted a second marriage to Elizabeth Weston Gordon. Plaintiffs argue that at the time of her marriage, Elizabeth Weston Gordon knew or was in a position to know of decedent’s valid marriage to plaintiff, Emma Gordon and thus was in bad faith. Therefore, the civil effects of the marriage could not flow to Elizabeth Weston Gordon and the children of that union. Plaintiffs alleged that the marriage of decedent to Emma Cromedy Gordon was never legally dissolved before the death of James Gordon, thus the civil effects from the marriage continued to exist until decedent’s death in 1972.

It appears from the record that the sole asset of the succession is approximately 40 acres of land located in West Carroll Parish, Louisiana purchased on September 30, 1936.

Plaintiffs argued that all the property belonging to decedent was in the community of acquits and gains existing between decedent and Emma Cromedy Gordon. Thus as the widow of decedent, Emma Cromedy Gordon, should be entitled to one-half of the community property. Plaintiffs further alleged that Elvira Gordon Sanders was the sole, legitimate heir of decedent and was entitled to inherit from decedent to the exclusion of the illegitimate heirs since the right to inherit equally with legitimate children is not retroactive to the date of decedent’s death in 1972.

Elizabeth Weston Gordon and the children, Barbara Gordon Lepley, Annette Gordon Redmond, Linda Gordon Mims, James L. Gordon, Marion Gordon Brooks, Lawrence W. Gordon, Harold D. Gordon, and Ira L. Gordon filed an answer and intervention alleging that Elizabeth Weston Gordon married the decedent on July 1, 1934. Of this union, nine children were born, eight of which survived. Elizabeth Gordon alleged that she and the decedent had lived together as man and wife and decedent was designated as the father on the birth certificate of each child. Elizabeth Gordon alleged that she and decedent purchased the property in 1936 and she is reflected on the deed of the property as being decedent’s wife.

Elizabeth Gordon alleged that at the time of her marriage, she was informed by decedent that he had divorced Emma Cromedy Gordon in Chicot County, Arkansas. The prior marriage and divorce was recited in the marriage license. Elizabeth alleged she had no knowledge of any impediment to her marriage and believed it to be valid. Elizabeth states there was no notice until the late 1960’s that a divorce had never been obtained. Elizabeth and the children further alleged that decedent was in good faith in contracting the marriage. Elizabeth claimed that she was entitled to recover from the succession the amount of taxes paid on the property, the enhanced value of the property from improvements and amounts paid on indebtedness secured by the property should her interest in the property be found to be less than one-half.

Elizabeth Gordon argued, in the alternative, that she was the owner of the property by virtue of ten year or thirty year acquisitive prescription.

The trial on this matter was held on September 15, 1983.

Emma Cromedy Gordon testified that she married decedent in Eudora, Arkansas in 1928. Her home at that time was at Brown’s Crossing, Arkansas, close to the Arkansas-Louisiana state line. Emma attended St. Paul’s Church in Arkansas and Blooming Shade Church in Louisiana. Apparently, the churches held services on alternating Sundays and members regularly attended both churches. It appears that the Gordon, Cromedy, and Weston families attended these churches. Emma testified that she knew Elizabeth Weston Gordon who lived nearby in Kilbourne, Louisiana and several members of the Weston family had inter-married members of the Cromedy family.

After their marriage, Emma and decedent lived at her father’s place in Brown’s Crossing, and the couple continued to attend church where they would sometimes see Elizabeth Weston Gordon. Emma testified that Elizabeth knew that she was married to decedent. Elvira Gordon Sanders was born in 1931, no other children were born of the marriage. Emma testified that decedent left her approximately two years after Elvira was born but she never received notice of any divorce proceedings. Emma remained at her parent’s place. Emma saw Elizabeth and decedent at church outings from time to time. Emma testified that the whole community had a serious religious involvement in the churches. It appears that decedent, after leaving Emma, lived approximately two and one-half miles away in Louisiana. Emma testified she moved to California in 1944 and lived there until approximately 1956 when she returned to Eudora. In 1962, Emma moved to Chicago and worked there for six years. While living away, Emma would regularly return on vacation to visit with her daughter. On these trips, she would occasionally see decedent and Elizabeth. Elvira lived with her mother and Cromedy grandparents for several years and then with the decedent’s parents after Emma moved to California.

Emma testified that she did not know of any wedding between decedent and Elizabeth. Emma testified that in 1969, 1970, and 1971 she had conversations with decedent who purportedly told Emma he would never divorce her. Emma testified that she never had received notice of any divorce proceedings and that during her years away, her family knew where to reach her.

Elvira Gordon Sanders testified that decedent would come to visit her in Eudora when she was very young. Sanders began living with decedent’s parents in 1944 and remained there until she was married in 1950. Sanders testified that her father lived at his place with Elizabeth and she visited at her father’s house. Sanders testified that she considered the children of decedent and Elizabeth to be her brothers and sisters and that they were considered to be a family in the community. However, Sanders testified that she and her father had never discussed a divorce between her parents. In later years, Elizabeth moved to Arizona and would return to visit occasionally. Sanders testified, however, that decedent never permanently moved to Arizona but remained in Louisiana.

Elizabeth Weston Gordon did not testify at trial. One of her children testified that she was suffering from multiple sclerosis. It was asserted that she was too ill to testify.

Mae Weston Lacy, sister of Elizabeth Gordon, testified that she attended the wedding of Elizabeth and the decedent. Lacy testified that the wedding was not secretive, rather, there were many people invited as guests. Lacy testified that the couple was considered to be man and wife by the community and there was never a suggestion to the contrary.

Lacy testified that sometime in the 1950’s she began seeking a divorce from her first husband and was advised by decedent of an attorney in Arkansas. Lacy testified that decedent indicated to her that this is where he had obtained his divorce.

Lacy testified that she consulted with the attorney and was given a document. However, a later search of records revealed that her divorce proceedings had never been completed.

Noreen Edwards, former employer of Elizabeth, testified that Elizabeth had worked for her for approximately 10 years. Edwards testified she had always considered Elizabeth and decedent to be married and there was never a suggestion to the contrary.

James Collier, neighbor of Elizabeth and decedent, testified the couple was held out to the community as husband and wife.

Linda Gordon Mims, the daughter of Elizabeth and decedent, testified that she always considered her parents to be married. However, in 1969, a Cromedy niece made a statement to several members of the Gordon family, including Mims, that decedent did not have a divorce from Emma. Mims testified that decedent was upset and displayed to her a worn, old paper which was claimed by decedent to be his divorce paper. Mims- stated she accompanied decedent to an attorney’s office and it was later learned that there were no records of a divorce in Arkansas. Decedent then initiated divorce proceedings in Arizona.

Mims testified that after the move to Arizona in 1968, decedent spent more of his time in Arizona although he would return to Louisiana from time to time. Decedent died in Louisiana and Mims testified that several of his personal effects could not be found, especially a black book in which decedent kept his papers. Mims testified that her father had become extremely aggravated when her sister began living with a man and that decedent “strictly” did not believe in cohabitation.

Marion Gordon Brooks and Ira Gordon testified that they believed their parents to be married and the family lived happily together for almost forty years. Ben and Joe Cromedy, brothers of Emma Cromedy Gordon, testified by deposition. Joe Cro-medy attended the wedding of Elizabeth and the decedent and the brothers generally testified that the couple lived in the community as husband and wife.

It is clear from the evidence that there was no record of a divorce action between James Gordon and Emma Cromedy Gordon being filed between the years 1928-1934 in either West Carroll Parish, Louisiana or Chicot County, Arkansas. Decedent’s death certificate was admitted reflecting Elizabeth Gordon as his wife. The deed to the property recites as vendee, “James Gordon, husband of Elizabeth Gordon.” The marriage license of decedent and Elizabeth Gordon was also admitted into evidence reflecting that James Gordon was divorced from Emma Gordon. There is no evidence, however, as to whether Elizabeth and' decedent remarried after decedent’s divorce in Arizona. It appears from the record that decedent lived as husband and wife from their marriage in 1934 to decedent’s death in 1972, a period of thirty-eight years.

The trial court found that neither James Gordon nor Elizabeth Gordon were in good faith in contracting the putative marriage. The court noted that decedent knew he had married Emma, had a child by her, and then abandoned them to take up with Elizabeth Weston Gordon. The court found that decedent was charged by the knowledge that the marriage to Emma had not been dissolved and thus could not have been in good faith. The court found that in this small community, Elizabeth knew that Emma and decedent were married, thus she was obliged to make a reasonable investigation to confirm that the marriage had been dissolved. Finding that the preponderance of the evidence negated any possible legal good faith in the confection of the marriage of Elizabeth Gordon and James Gordon, the court awarded ownership of the property to Emma as the surviving spouse in the community, and to Elvira as the sole heir. The children of the decedent and Elizabeth, as illegitimates, were not entitled to inherit any of decedent’s property under the authority of Succession of Brown, 388 So.2d 1151 (La.1980) and Succession of Clivens, 426 So.2d 585 (La.1982).

The court further found that Elizabeth Gordon was not entitled to ownership of the property by virtue of either the ten or thirty year acquisitive prescription.

The court reserved the right of the inter-venors to assert claims for reimbursement of Ad Valorem taxes which may have been paid on the property between the years 1973 to 1982. Intervenors filed a Motion for a New Trial which was rejected by the court.

It appears that the main issue before this court on appeal is whether the trial court erred in finding that James Gordon and Elizabeth Gordon were in bad faith and thus they and their children were not entitled to the benefits of a putative marriage.

It was clearly established at trial that James Gordon married Emma Crome-dy Gordon. There is no evidence in the record that decedent obtained a valid divorce before contracting a second marriage with Elizabeth Weston Gordon. Thus, decedent had a legal impediment and was incapable of contracting a second marriage. La.C.C. art 93.

The Civil Code provides in pertinent part: Art. 117.
The marriage, which has been declared null, produces nevertheless its civil effects as it relates to the parties and their children, if it has been contracted in good faith.
Art. 118.
If only one of the parties acted in good faith, the marriage produces its civil effects only in his or her favor, and in favor of the children born of the marriage.

As noted by the Supreme Court in King v. Cancienne, 316 So.2d 366 (La.1975), the “... theory of putative marriages is based on the canonical law of France and has no Roman law source. Because many persons in good faith ran the risk of contracting null marriages, ‘ *** [a] palliative had to be found at any price.’ 1 M. Planiol, at 1094.” at p. 370. The court further noted that the “... simple import of the putative spouse provisions of La.C.C. arts. 117 and 118 is to cause civil effects of marriage to flow in favor of the party who marries in good faith and in favor of the children born of that marriage, as though the marriage had been legally consummated.” at p. 371. The articles have been broadly construed in favor the children of the marriage and the parties in good faith in determining the civil effects of a putative marriage. Cortes v. Fleming, 307 So.2d 611 (La.1973).

In the context of a putative marriage, it is well-settled that good faith is defined as an honest and reasonable belief that the marriage was valid and there existed no legal impediment to it. Whether a party is in good faith when entering an invalid bigamous marriage is a subjective inquiry and necessarily would depend on all the circumstances presented in each particular case. Galbraith v. Galbraith, 396 So.2d 1364 (La.App. 2d Cir.1981) and citations therein. See also Hart v. Hart, 427 So.2d 1341 (La.App. 2d Cir.1983), Succession of Davis, 142 So.2d 481 (La.App. 2d Cir.1962), Succession of Zinsel, 360 So.2d 587 (La.App. 4th Cir.1978), and Succession of Jene, 173 So.2d 857 (La.App. 4th Cir.1965).

The “issue of good faith of the parties to an invalid marriage presents a question of fact which must be determined by the trial judge and his findings are entitled to great weight. Gathright v. Smith, 368 So.2d 679 (La.1978).” Galbraith v. Galbraith, supra, at p. 1369.

Further, if there is any doubt as to whether the parties contracted a second marriage in good faith, it is to be resolved in favor of good faith. Succession of Primus, 131 So.2d 319 (La.App. 1st Cir.1961) and citation therein. See also Succession of Davis, supra, and Succession of Barbier, 296 So.2d 390 (La.App. 4th Cir.1974). There “... is a presumption of good faith in favor of the party without a legal impediment in an alleged putative marriage.” Succession of Jene, supra at p. 860 and numerous citations therein. See also Succession of Zinsel, supra. However, it appears that this presumption does not run in favor of a putative spouse who has been shown to have a prior, undissolved marriage. Rather, the burden would shift to that party to show that the second marriage was entered into in good faith. Gathright v. Smith, supra.

In light of the above jurisprudence and the particular facts of this case, it is the opinion of this court that the trial court was manifestly erroneous in finding that James Gordon and Elizabeth Gordon were in bad faith.

The Good Faith of Elizabeth Weston Gordon

The record evidences that Elizabeth Weston Gordon was in good faith when she married James Gordon. The parties lived in a small, closely-knit, rural, religious community and all attended the same church. Elizabeth’s father was a minister and she appeared to be living at home when she married. Several members of the Weston family and Cromedy family had inter-married and Emma and Elizabeth knew and saw each other from time to time. It appears from the evidence that Elizabeth knew that decedent and Emma had married. While the court was not aided by Elizabeth’s testimony, it does not appear from the facts that Elizabeth had any reason to believe that an impediment existed to her marriage.

The facts reveal that Elizabeth and decedent had a wedding with a number of guests in attendance including Emma’s brother. The parties’ marriage license indicated that decedent was divorced. After the wedding, the' couple remained in the same community, continued to attend the same church that Emma attended and eventually bought property there on which they settled. The majority of the witnesses testified the community believed the couple to be man and wife. Elizabeth and decedent had nine children, eight of which survived, all considered to be children of this marriage. There is nothing in the record to indicate that Elizabeth had any reason to believe that decedent was never divorced until sometime in 1969. Emma Cromedy Gordon testified that she saw Elizabeth occasionally. However, there was no evidence that Emma had ever indicated to Elizabeth that she and decedent had not been divorced.

The trial court found that Elizabeth had a duty to investigate whether the marriage of James and Emma had been dissolved.

In examining the issue of the duty to investigate, the Supreme Court in Gathright v. Smith, supra, and numerous citations therein, noted that an older general rule required that when a party knew that his or her spouse had been previously married, that party was not justified in entering the marriage solely on the word of that spouse that he or she was divorced, rather the spouse was under a duty to investigate to determine whether the previous marriage actually had been dissolved.

The court found that the rule was more a rule of evidence or a means of weighing the evidence rather than a rule of law or a legal presumption. The . fact that the party who is informed of a prior dissolved marriage relies on assurances of the dissolution without conducting an independent investigation does not preclude a finding that he was nevertheless in good faith, when there are circumstances to support that conclusion.” Gathright v. Smith, supra, at p. 684.

The circumstances in the instant case would not mandate an investigation by Elizabeth. There is absolutely no evidence that Elizabeth ever received any type of information which would indicate an impediment to her marriage and thus place her under a duty to investigate. As noted earlier, Emma and Elizabeth saw each other on occasion but it does not appear that Emma ever revealed that there had been no divorce. There was no evidence that any other member of the community had somehow indicated Emma and decedent were not divorced or that Elizabeth and decedent were ever regarded by the community as anything other than man and wife. It must be remembered that Elizabeth was a young girl living in a small, rural community. In this particular set of facts, it is the opinion of this court that Elizabeth had an honest and reasonable belief her marriage was valid and that no legal impediment existed to her marriage. Emma Cromedy Gordon and Elvira Gordon Sanders failed to rebut this presumption, that is, there is no proof that Elizabeth had any reason to believe in the existence of any impediment which would render her marriage to decedent invalid and plus place her in bad faith.

The Good Faith of James Gordon

It is the opinion of this court that James Gordon was in good faith when he contracted his second marriage to Elizabeth. Again, the court did not have the benefit of decedent’s testimony in determining this issue. However, the record evidences that decedent believed he was divorced and had honest and reasonable belief his second marriage was valid.

The testimony established decedent was a hard-working, honest and religious man who objected to cohabitation. Mae Weston Lacy testified that decedent had referred her to an attorney for a divorce indicating that he had obtained a divorce there. Lacy consulted the attorney and later learned that her divorce proceedings had not been completed. Although, it was established that the attorneys referred to in Lacy’s testimony were not admitted into practice at the time of decedent’s alleged divorce, it appears from the evidence that decedent had a reasonable belief he was divorced. It appears to this court that decedent and Lacy fell prey to a somewhat dubious practice. As noted earlier, decedent married Elizabeth in the same small community and eventually settled there. Decedent did not conceal his prior marriage with Emma when he and Elizabeth applied for their marriage license. Rather, he declared he was divorced from “Emma Gordon”. His wedding was attended by Emma’s brother. Decedent continued to see his daughter, Elvira, who considered his children with Elizabeth to be her brothers and sisters. Again, the determination of good or bad faith must be considered with regard to the peculiar facts and circumstances of each case. Decedent lived in a rural community and the time of the alleged divorce was the early 1930’s. Quite simply, people at that time were not as educated or familiar with the intricacies of divorce as in the present. The course of decedent’s conduct, particularly in remaining in the community after his marriage to Elizabeth to raise his family, evidences that he believed he was divorced. Decedent’s good faith is further evidenced by his actions in 1969 when he was informed he was not divorced from Emma. Linda Gordon Mims testified decedent appeared upset and displayed an old paper which he indicated to be his “divorce papers”. Decedent consulted an attorney and later initiated divorce proceedings in Arizona.

As enumerated earlier, it appears from the record that decedent had not obtained a divorce from Emma thereby creating an impediment to his second marriage to Elizabeth. Thus, the burden shifted to him or his heirs to show his good faith as he had a prior, undissolved marriage. The only evidence indicating that decedent was in bad faith was the self-serving testimony of Emma. Emma testified that decedent had made statements to the effect that he would never divorce her. It is this court’s opinion that the burden of proving decedent’s good faith was met.

Finding that the parties were in good faith, the civil effects of marriage would flow to both of them. One civil effect is the legitimacy of the children of the putative marriage. Succession of Chavis, 211 La. 313, 29 So.2d 860 (1947). See also Cortes v. Fleming, supra. Another civil effect is the right of a putative wife to share in the community property. Prince v. Hopson, 230 La. 575, 89 So.2d 128 (1956).

Division of Community Property

As noted previously, it appears from the record that the sole asset of the succession is approximately forty acres of property. It is well settled that in Louisiana, property purchased by either spouse during the existence of a community of acquets and gains is presumed to be community property. Prince v. Hopson, supra. In a similar case wherein both parties to a putative marriage were found in good faith, the Supreme Court in Prince v. Hopson, supra, examined the appropriate distribution of property between the legal wife, putative wife and heirs. The court looked to older cases which divided the property acquired in a putative marriage in equal halves between the legal and putative wife. However, it appeared that the good faith of both parties to the second marriage was not a factor and the facts of most of those cases clearly demonstrated that the husband was in bad faith. The court found that following this rule when both parties were in good faith would essentially violate La.C.C. art. 117 by denying the husband and his heirs the civil effects of the second marriage. After an extensive review of french commentators, the court found the most equitable distribution of the property would be one-fourth interest each to the legal and putative wife and one-half interest to the heir of the decedent-husband.

In the instant case, the property was acquired during the putative marriage. However, as decedent’s first marriage was not dissolved, the community of acquets and gains was still in existence. In other words, the legal and putative community were in co-existence. Thus, it would appear to this court that as both parties to the putative marriage were in good faith, the distribution enumerated in Prince v. Hopson would be the correct and most equitable result in the instant case. Thus, Emma Cromedy Gordon and Elizabeth Weston Gordon would each receive a one-fourth interest in the property and the heirs of decedent would receive the remaining half of the property in equal portions. There is no evidence in the record to indicate that the termination of the legal community by the Arizona divorce, provided this divorce was valid, would have any effect on the above distribution of the property in the succession.

Finding that the decedent and Elizabeth Weston Gordon contracted their marriage in good faith, this court now need not consider intervenors’ alternative arguments that Elizabeth acquired ownership of the property by means of ten or thirty year prescription or that the trial court erred in failing to grant intervenors’ motion for a new trial.

There is not sufficient evidence in the record as to the exact amount of property taxes which may have been paid by the intervenors or to determine the amount of payments made by a particular intervenor. Further, there is no evidence as to the enhanced value of the property, if any, due to improvements. Although this court may not pass upon these issues on this appeal, the rights of the intervenors to assert these claims in a future proceeding is hereby reserved.

For these reasons, the judgment in favor of Emma Cromedy Gordon and Elvira Gordon Sanders is reversed. Judgment is rendered herein recognizing Emma Cromedy Gordon and Elizabeth Weston Gordon as owners of an undivided one-fourth interest each and recognizing Elvira Gordon Sanders, Barbara Gordon Lepley, Linda Gordon Mims, Ira L. Gordon, Harold D. Gordon, Marion Gordon Brooks, Annette Gordon Redmond, James L. Gordon and the unopened Succession of Lawrence W. Gordon as owners of an undivided one-ninth interest each in the remaining half of the following described property:

That portion of ground, together with all of the buildings and improvements thereon, and all of the rights, ways, privileges, servitudes, appurtenances and advantages thereunto belonging or in anywise appertaining, lying, being and situated in the Parish of West Carroll, State of Louisiana, particularly described as follows, to-wit:
The Southwest Quarter of the Northwest Quarter (SWV4 of NWV4) of Section Nine (9), Township Twenty-Three (23) North, Range Eleven (11) East, LESS AND EXCEPT a strip of land fifteen (15) feet wide off the South side of said land for a road. Containing 38.03 acres, more or less.
SUBJECT TO a right-of-way 30 feet wide for a public road along the West side of said land, in favor of Police Jury granted by James Gordon, dated September, 1938, recorded in Conveyance Book 9, page 250 of the records of West Carroll Parish, Louisiana.

The costs of the proceedings below are assessed to the above named parties in proportion to the amount of the property that they received. The costs of this appeal are assessed to Emma Cromedy Gordon and Elvira Gordon Sanders.

REVERSED.

      . From the record, it appeared that Lawrence Gordon had died during the pendency of these proceedings before the date of trial; however, the date of death is not clear.

      . In Succession of Brown, supra, LSA-C.C. art. 919 excluding acknowledged illegitimates from participating in their father’s succession when he was survived by legitimate descendants, ascendants, collateral relatives or a surviving spouse was declared to be unconstitutional. In Succession of Clivens, it was held that the Brown decision was only given retroactive effect to the effective date of the Louisiana Constitution of 1974.

      . This rule was followed by this court in Succession of Choyce, 183 So.2d 457 (La.App. 2d Cir.1966). In that case, the husband was found in bad faith in contracting his second marriage. The property was divided equally between the legal and good faith putative wife to the exclusion of children born in the two marriages.


author: JASPER E. JONES, Judge.

text:
    STATE of Louisiana in the Interest of the Minor, W.B.
    No. 16665-CAJ.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1984.

      E. Rudolph McIntyre, Asst. Dist. Atty., Winnsboro, for State.
    Joe D. Wray, Monroe, for Juvenile.
    Before PRICE, J. Pro Tern., and JASPER E. JONES and FRED W. JONES, Jr., JJ.
   JASPER E. JONES, Judge.

W.B. (age 16 at time of offenses charged), was adjudicated a delinquent child in a juvenile proceeding before the Fifth Judicial District Court. The adjudica-tidn was based on findings that W.B. was guilty of having committed the following offenses: (1) disturbing the peace in violation of LSA-R.S. 14:103; (2) resisting an officer in violation of LSA-R.S. 14:108; (3) battery of a police officer in violation of LSA-R.S. 14:34.2; and (4) aggravated assault in violation of LSA-R.S. 14:37. In a judgment of disposition the trial court ordered W.B. committed to the custody of the Department of Corrections for a period not to exceed one year or his 21st birthday. W.B. appeals. We affirm in part, reverse in part and remand.

About noon on November 27, 1983, Aaron Wright, the Chief of the Winnsboro City Police, responded to a call about a disturbance at the home of Gloria. When he arrived Gloria told him she had been verbally abused and threatened by M.B., her neighbor across the street. M.B. is W.B.’s mother. Wright told Gloria if she would swear out a warrant he would arrest M.B. but he could do nothing until the warrant was issued. It was Sunday and Gloria told Wright she would obtain the warrant the following day. Wright left her house and drove away. In a few minutes he received a call stating there had been another disturbance at Gloria’s home. When he returned Gloria told him she had again been threatened by M.B. Wright repeated his earlier advice that he would need a warrant before he could arrest M.B. Gloria assured him she would get a warrant and he left her house.

When Wright started to depart he saw several people, including W.B. and perhaps M.B., in M.B.’s yard. He stopped his car and told the people not to go back over to Gloria’s. W.B. told Wright he had not been over there. An argument ensued and W.B. began extensively cursing Wright. Wright arrested W.B. for disturbing the peace by cursing an officer performing his duty. See R.S. 14:103A(2). When he informed W.B. he was under arrest, W.B. asked him if he wanted to fight. When Wright attempted to handcuff W.B., Wright was struck in the face by W.B. Wright drew his pistol in order to subdue W.B.

When Wright drew his pistol M.B., who had been in her house, came outside. She physically attacked Wright and tried to take the pistol away from him. W.B. joined his mother in the ensuing struggle. During the struggle for possession of the pistol it accidentally discharged striking M.B. in the shoulder. She, nevertheless, continued the struggle and eventually caused Wright to drop the pistol. One of her young daughters picked up the pistol and carried it into the house. Once the pistol was removed the confrontation between Wright, M.B. and W.B. was temporarily discontinued.

In a few minutes the daughter brought Wright’s pistol out of the house and M.B. obtained it from her. M.B. then pointed the pistol at Wright and threatened to kill him. At about this point W.B. went into the house and got a shotgun. He brought the shotgun to the door, pointed it at Wright and threatened Wright with it. Wright backed out of the yard, got behind his car. and radioed for assistance. Before backup units arrived W.B. carried the shotgun back into the house. When the backup officers arrived they first arrested M.B. and then W.B. W.B. fled when the officers attempted to arrest him. The officers caught him and W.B. struggled with them until he was handcuffed.

On appeal W.B. contends that Wright’s initial attempt to arrest him for disturbing the peace was unlawful because of an absence of probable cause. Therefore, all his subsequent actions in resisting the arrest were legally justified.

WAS THE ARREST FOR DISTURBING THE PEACE UNLAWFUL

Cursing directed at a police officer is constitutionally protected speech under the First Amendment to the United States Constitution and under Article 1, § 7 of the Louisiana Constitution which protects the right of freedom of speech unless the words used are “fighting words” which are words that “by their very utterance inflict injury or tend to incite an immediate breech of the peace.” City of New Orleans v. Lyons, 342 So.2d 196 (La.1977); White v. Morris, 345 So.2d 461 (La.1977); Norrell v. City of Monroe, 375 So.2d 159 (La.App.2d Cir.1979); State v. Fontenot, 410 So.2d 1112 (La.1982).

The record reflects W.B. called Wright a “G_ D_ white M_ F_” Substantially similar words which have been directed at or uttered in the presence of police officers have been recognized by the Louisiana Supreme Court since 1977 to be protected by the freedom of speech provisions of the State and U.S. Constitution. In the case of City of New Orleans v. Lyons, supra, the defendant cursed an arresting officer and called him a “S ” and stated to him “F_ Y_” The court there held these words neither inflicted injury upon the officer nor tended to incite an immediate breech of the peace. The court found that police officers are expected to exercise more restraint than others and that insulting language directed at police officers is less likely to cause an immediate breech of the peace and fall within the “fighting words” exception to protected speech. The Lyons case was cited with approval in White v. Morris, supra, Norrell v. City of Monroe, supra, and State v. Fontenot, supra.

W.B. contends Officer Wright did not have probable cause to arrest him and for this reason Wright’s attempt to arrest him was unlawful. Probable cause exists when the facts and circumstances known to the arresting officer, and of which he has reasonably trustworthy information, are sufficient to justify a person of ordinary caution in believing the person to be arrested had committed a crime. Where the facts established do not support probable cause an arrest for disturbing the peace is unlawful. State v. Lindsay, 388 So.2d 781 (La.1980).

Wright testified he had been Chief of Police of Winnsboro for more than twenty years. He stated that during his long career as a police officer he had been subjected to much verbal abuse and that being subjected to this type treatment was part of his job. He admitted that he cursed frequently and he was more calloused to curse words than the average individual.

In the case of Norrell v. City of Monroe the appellant told a Monroe police officer to “get the ‘God Damned M_ F_’ light out of my eyes” and when the officer told him to stand up the defendant said to him “F_ Y_” The court held the disrespectful remarks to the police officer did not constitute criminal activity and did not create probable cause to justify an arrest for disturbing the peace. The arrest was found to be unlawful.

The remarks made by W.B. to Chief of Police Wright were not within the “fighting words exception” to constitutionally protected freedom of speech and for this reason did not constitute criminal activity. There was no probable cause for the arrest of W.B. because of these insulting words addressed to the officer. The arrest attempt was unlawful.

RIGHT TO RESIST ARREST

The issue of whether W.B. had a right to resist arrest, and whether he could be found guilty of that offense, is limited to his resistance of the attempted arrest by Wright. Although W.B.’s actions in fleeing from and struggling with the officers who eventually arrested him may have supported a finding of guilty for the offense of resisting an officer, W.B. was not charged for those actions.

A person has a right to resist an unlawful arrest and can use reasonable force in doing so. City of Monroe v. Ducas, 203 La. 974, 14 So.2d 781 (1943); White v. Morris, supra; Norrell v. City of Monroe, supra; State v. Lindsay, supra. W.B. had the right to resist the unlawful arrest for disturbing the peace and the trial court erred in finding that he was guilty of this charge.

Battery is defined as the intentional use of force or violence against a person. LSA-R.S. 14:33. The record does not clearly indicate whether defendant was charged with and found guilty of battering Chief Wright solely for striking him with his fist or also for struggling with him in general. Neither action is the use of unreasonable force. See White v. Morris, supra. The trial court erred in finding defendant guilty of the battery of a police officer.

The aggravated assault charge arose from W.B.’s action in threatening Wright with the shotgun in violation of LSA-R.S. 14:37. Prior to pointing the shotgun at Wright W.B. had left the front yard and was safely in his home. He at this point had no sound reason to fear the unlawful arrest. Instead of staying in the house, he secured a shotgun, returned to the front door and pointed the gun at Wright and threatened him with it. This action constitutes the use of unreasonable force which was unnecessary in the resistance of the unlawful arrest. At the time W.B. threatened Wright with the shotgun, Wright had been disarmed and the mother had the pistol pointed at him. There was no need for W.B. to point a second gun at him. While police officers may not always act in strict accordance with the law,.they are, nevertheless, the guardians of our society and must be protected from the unnecessary use of force. There is no error in the trial court’s finding that W.B. was guilty of aggravated assault.

The finding that W.B. was guilty of aggravated assault supports the trial court’s adjudication of delinquency. However, since defendant was not guilty of the other three charged offenses, the judgment of disposition committing him to the Department of Corrections for one year must be reversed as being contrary to law. Article 89B(1) of the Code of Juvenile Procedure provides that the judgment of disposition shall not remain in force for a period exceeding the maximum term of imprisonment for the offense forming the basis for the adjudication. The maximum term of imprisonment for aggravated assault is six months.

The adjudication is AFFIRMED. The disposition is REVERSED and the case is remanded for disposition in accordance with law.

      . The charge as set forth in the petition to have the minor adjudicated a delinquent was:
      CHARGE ONE: he did violate the provisions of L.R.S. 14:103, relative to disturbing the peace on November 27, 1983, in that he did call Officer A.W. Wright by an offensive or derisive name or make a noise or exclamation in his presence and hearing with the intent to deride, offend or annoy him.

      .R.S. 14:103A(2). Disturbing the peace
      A. Disturbing the peace is the doing of any of the following in such manner as would fore-seeably disturb or alarm the public: ...
      (2) Addressing any offensive, derisive, or annoying words to any other person who is lawfully in any street, or other public place, or call him by any offensive or derisive name, or make any noise or exclamation in his presence and hearing with the intent to deride, offend, or annoy him, or to prevent him from pursuing his lawful business, occupation, or duty ...

      . The testimony of numerous defense witnesses reflects facts substantially in conflict with the facts which we have related which represent Wright’s version of what occurred. The trial judge did not favor us with a finding of fact but he necessarily accepted Wright’s testimony to find W.B. guilty of the four offenses charged.

      . W.B. makes no contention that LSA-R.S. 14:103A(2) is unconstitutional.

      . In describing the resisting arrest charge the state’s petition specifies:
      CHARGE TWO: he [defendant] did violate the provisions of L.R.S. 14:108 relative to resisting an officer, on November 27, 1983, in that he did intentionally oppose, resist and obstruct one Officer A.W. Wright in that he did attempt to avoid arrest after notice was given to him that he was under arrest and knowing and having reason to believe and know that the said officer was acting in his official capacity; ...

      . LSA-R.S. 14:33. Battery defined
      Battery is the intentional use of force or violence upon the person of another; or the intentional administration of a poison or other noxious liquid or substance to another.

      . LSA-R.S. 14:37. Aggravated assault
      Aggravated assault is an assault committed with a dangerous weapon.
      Whoever commits an aggravated assault shall be fined not more than five hundred dollars, or imprisoned for not more than six months, or both.

      . All of the defense witnesses testified either that they did not see defendant get the gun or that he did not get it. Wright’s testimony that W.B. threatened him with a gun is supported by the testimony of two other witnesses. Gloria viewed part of the incident from across the street and saw W.B. pointing a shotgun at Wright. Lucius Myles, a passerby, testified that he saw W.B. with something in his hand. Myles thought at the time it might have been a stick. After viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have concluded that the state proved beyond a reasonable doubt that defendant threatened Wright with a shotgun. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).


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

text:
    James A. BARRON, Individually and as Administrator of the Estate of the Minor, Barbara Jean Barron, Plaintiff-Appellee, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al., Defendant-Appellant.
    No. 16668-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1984.

      Theus, Grisham, Davis & Leigh by J. Bachman Lee, Monroe, for defendant-appellant.
    Charles C. Bice, Winnfield, for plaintiff-appellee.
    Before HALL, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

James A. Barron sued State Farm Mutual Automobile Insurance Company under the medical payments provision of an insurance policy that was in effect on a vehicle that Barron’s minor daughter, Barbara, was driving when she was injured. The trial judge found the nonpayment by State Farm to be arbitrary and capricious and awarded the father the amount sued for, 100% in penalties, and $7,000 attorney fees. State Farm appealed. We affirm in part and reverse in part.

James A. Barron and Ruby Irene Kirkland Barron were divorced in Mississippi on December 13, 1974. Pursuant to the judgment of divorce, Mrs. Barron, now Mrs. Phillips, received legal custody of the two minor children of the marriage, Barbara Jean Barron (born September 30, 1964) and Marie Barron (born December 23, 1965). In 1979, both of the girls moved to live with their father. From 1979 until the accident on April 20, 1981, Barbara was in the physical custody of Mr. Barron.

On April 20,1981, Barbara, then 16 years old, was driving a pickup truck belonging to Hershel Cloud, the brother-in-law of Mr. Barron. For reasons undisclosed in the record, the truck went out of control and Barbara was severely injured. Mr. Barron checked Barbara into Winnfield General Hospital where he signed a guarantee of payment. Barbara was later transferred to St. Francis Cabrini Hospital in Alexandria where Mr. Barron again signed a guarantee of payment. Mr. Barron did in fact pay both of those bills.

Hershel Cloud notified his insurance company, State Farm, of the accident. Berle Palmer, a claims adjuster for State Farm, contacted Mr. Barron and told him that the policy would cover medical payments “to and for” Barbara to the extent of $25,000. Palmer sent Mr. Barron drafts that reimbursed him for $1,000 of the bills he had paid.

Mrs. Phillips, through Alexandria counsel, made demand on State Farm for the amount of the medical bills. The file was then transferred to a State Farm claims adjuster in Alexandria. Upon presentation of a copy of the 1974 custody decree and a copy of the hospital bill from St. Francis Cabrini for $12,540.90, State Farm issued a draft, dated November 19, 1981, payable to the attorney and Mrs. Phillips jointly.

The Alexandria claims adjuster admitted that he did not check with the hospital to see who paid the bill. He also admitted that he had in his possession the file that showed prior bills being reimbursed to Mr. Barron. He had himself sent drafts to Mr. Barron.

The facts of this case are further complicated in that James Barron received legal custody of Barbara Barron pursuant to a judgment signed September 22,1981. Consequently, Barron actually had legal custody when the draft was issued to Ruby Phillips.

Counsel for State Farm places great weight on the fact that Ruby Phillips had legal custody at the time of the accident, at the time of admission to the hospital, and at the time of release from the hospital. Counsel cites two cases in support of his argument that the insurance company properly paid the person who was the legal custodian at the time the bills were incurred rather than ascertaining who actually paid the bills.

The first case cited is Flannigan v. Valliant, 400 So.2d 225 (La.App. 4th Cir.1981). In Flannigan, a child who was not living with either parent at the time he committed a tort was held to be the legal responsibility of the parent with legal custody and not the liability of the noncustodial parent. This case is readily distinguishable. Flan-nigan does not decide liability between the parent with physical custody and the parent with legal custody. Furthermore, it discusses the tort liability of a parent under Civil Code Articles 237 and 2318, not the liability for a debt incurred on behalf of a child.

The second case cited is South Jefferson General Hospital v. Connors, 341 So.2d 637 (La.App. 4th Cir.1977). In South Jefferson, the court held that a parent who did not have physical or legal custody of a child was not directly liable to a hospital for the bills incurred on behalf of that child. The court based its reasoning on the obligation of the noncustodial parent to pay child support to the custodial parent who can sue for an increase in child support in the event of extraordinary expenses. In South Jefferson, the parent with legal and physical custody checked the child into the hospital and guaranteed payment of the bills. In the case before us, the parent with physical custody checked the child into the hospital and guaranteed payment without consulting the parent with legal custody.

Counsel argues that if Mr. Barron had not paid St. Francis Cabrini Hospital, the hospital could have sued Mrs. Phillips as the legal custodian of the child. This argument has no merit. First, it is merely hypothetical and not based on the facts as they existed. In fact, at the time the draft was issued to Mrs. Phillips she was not subject to suit because the bill had been paid. Second, the contract with the hospital was made by Mr. Barron and he was obligated to pay it regardless of Mrs. Phillips’ hypothetical liability. It is clear that Mr. Barron was liable for the hospital bill and paid it, while it is not clear that Mrs. Phillips was liable at all.

The primary issue in this case is whether State Farm discharged its obligation under the insurance policy to make medical payments “to and for” Barbara Barron. We hold that State Farm did not discharge this obligation and affirm the trial court’s finding that James A. Barron was the proper person to pay. The bills in question were incurred on behalf of Barbara Barron. The hospital could have collected from State Farm directly. By paying the bills, James Barron was subrogated to the hospital’s right to collect from State Farm. Consequently, State Farm could only extinguish the obligation by paying Mr. Barron.

The secondary issue in this case is whether State Farm was arbitrary and capricious in its nonpayment of the hospital bill to Mr. Barron. The record indicates that State Farm was in complete good faith. State Farm was informed by Barron that his former wife had custody of the child. Further, the company was furnished with a copy of the custody judgment and with the amount of the large hospital bill. Under the circumstances it is understandable that the company made the mistake of paying Mrs. Phillips. We find that this mistake was not arbitrary and capricious, therefore penalties and attorney fees were erroneously granted by the trial court.

For these reasons, we affirm the trial court judgment insofar as it rules State Farm liable to James A. Barron for medical payments not reimbursed. We reverse insofar as penalties and attorney fees were granted. The costs of appeal are to be divided evenly between appellant and ap-pellee.

HALL, J., concurs in the result.


text:
    Kennon HARVILL et al., Plaintiffs-Appellees, v. Joanna Roberson CASEY et al., Defendants-Appellants. Willie FRANKLIN, Plaintiff-Appellant, v. Kennon HARVILL et al., Defendants-Appellees. Kennon HARVILL et al., Plaintiffs-Appellees, v. Willie FRANKLIN, Defendant-Appellant. (Two Cases).
    Nos. 16676-CA to 16679-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1984.
    Rehearing Denied Jan. 4, 1985.
    Writ Denied March 8, 1985.

      Louis Berry, Alexandria, Vanue B. Lac-our, Baton Rouge, for defendant-plaintiff-appellant.
    Gordon, Bailey & Associates, P.C. by Jack M. Bailey, Jr., Shreveport, for plaintiff s-def endants-appellees.
    Before MARVIN, FRED W. JONES, Jr. and NORRIS, JJ.
   FRED W. JONES, Jr., Judge.

After purchasing interests of heirs in the Jeter Estate, Kennon Harvill, Rick Fayard and Norman R. Gordon filed a partition suit against the remaining owners. Willie Franklin subsequently filed a possessory action against Harvill, Fayard and Gordon. These latter parties responded by filing an eviction action against Franklin and sought in a fourth suit to have buildings and works he had erected demolished. The four suits were consolidated for trial purposes, with the parties stipulating that they had been converted into a petitory action.

Franklin appeals the judgment based on the finding that he did not establish his defense of 30 years acquisitive prescription. We affirm for the following reasons.

Willie Franklin spent his youth in the home of his uncle, Aaron T. Jeter, Sr. In his early teens, he moved to Shreveport. During his residency in Shreveport, he met and married his wife. Shortly thereafter in 1925, Franklin and his wife moved to Mr. Jeter’s farm, commonly referred to as Jersey Farm. Franklin repaired an old frame house on a little-used portion of the farm and started farming.

Over the course of more than 50 years Franklin made his living on Jersey Farm. He cleared various areas of the farm and grew potatoes, corn, peanuts, and cotton; raised livestock on a small pasture that he enclosed near his house; cut and sold timber and cross-ties. All of these things are consistent with ownership of property. However, they are also consistent with renting property or living on family-owned property at the forbearance of relatives.

There are two fatal flaws in Franklin’s argument that he owns the property as a result of 30 years acquisitive prescription. First, Franklin must show that he possessed the property with the intent to be the owner. La.C.C. Article 3424. A possessor is presumed to possess as an owner unless he possesses in the name of another. La.C.C. Article 3427. One who possesses in the name of another is a precarious possessor. La.C.C. Article 3437. A precarious possessor only ceases to be a precarious possessor when he gives actual notice to the one on whose behalf he is possessing that he intends to possess for himself. La.C.C. Article 3439.

Franklin first possessed the land at the forbearance of Aaron Jeter and his heirs. As long as they lived on the land with him there was no problem because he was treated as a member of the family. The problem arose when nonmembers of the Jeter family acquired interests in the property. This is the first time that Franklin started to manifest his intent to possess as owner. By this time however it was too late to amass 30 years of possession with the intent to own.

The second fatal flaw in Franklin’s prescription claim is his total failure to establish the boundaries of what he possessed. As the trial judge pointed out in his reasons for judgment, nowhere in the record did Franklin or his witnesses locate where Franklin’s house or fields were located. Even if this court was disposed to grant Franklin some relief, we would not be able to locate the property he possessed.

Franklin’s counsel also argues that the trial judge erred by ruling at the close of his evidence. When a party fails to carry his burden of proof there is no necessity for the opposing party to rebut insufficient evidence. Article 1672 of the Code of Civil Procedure was amended to allow a trial judge to rule when the plaintiff has failed to show a right to relief. La.C.C.P. Article 1672 B. It is arguable that Franklin was acting as either a plaintiff or a defendant. Regardless of his position, the trial judge properly ruled after all parties had presented their evidence that Franklin had not proved a 30-year acquisitive prescriptive title.

We therefore affirm the trial court judgment. Willie Franklin is assessed with cost of appeal.


author: NORRIS, Judge.

text:
    Walter G. HORTON, Plaintiff-Appellee, v. VALLEY ELECTRIC MEMBERSHIP CORPORATION, Defendant-Appellant.
    No. 16705-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1984.

      Bethard & Davis by Robert E. Bethard, Coushatta, for plaintiff-appellee.
    Whitehead & McCoy by C.R. Whitehead, Jr., Natchitoches, for defendant-appellant.
    Before PRICE, MARVIN and NORRIS, JJ.
   NORRIS, Judge.

In this personal injury suit, defendant-appellant, Valley Electric Membership Corporation, hereinafter called “VEMCO”, appeals a lower court judgment in favor of plaintiff-appellee, Walter G. Horton, awarding plaintiff damages in the amount of $58,278 plus interest and court costs. Ap-pellee answered the appeal seeking an increase in general damages. The trial court held VEMCO had breached its duty of care to plaintiff by allowing electrical transmission lines to exist in a condition that presented an unreasonable risk of harm. On appeal, VEMCO advances three assignments of error. Finding merit only in appellant’s contention that the lower court abused its discretion in its general damage award, we amend the damage award and, as amended, affirm.

Defendant owns and maintains a right-of-way for electrical lines through certain property in Red River Parish owned by Roby Jones and leased to Billy Don Morgan. VEMCO had placed a 7,620 volt power line on the right-of-way to service a hunting camp located on the property. The hunting camp is located at least xk of a mile from the site where plaintiffs accident occurred.

On November 18,1982, plaintiff was preparing for a deerhunt. He went to the camp located on the subject property, retrieved an eight foot metal deerstand that resembled a ladder, and placed it on top of his jeep. It was stipulated that plaintiff was lawfully on the premises. Plaintiff then drove to the top of a hill and parked on or near VEMCO’s right-of-way, which runs alongside a wooded area, with the intention of setting up the stand. Plaintiff testified he remembered lifting the deer-stand off the top of the jeep, placing it in an upright position on his shoulder and taking one or two steps backward. The next thing plaintiff remembered was waking up on the ground on his back. He was paralyzed but could see electrical wires above his head. Plaintiff opined he had been “shocked” when the deerstand came into contact with the electrical wires. Plaintiff testified he was afraid because he could not move and thought his limbs had been blown off and he was going to die. However, within a few minutes, the paralysis subsided and he was able to get up and drive himself to his mother’s house. Plaintiff immediately contacted his family physician, Dr. Wyche Coleman, who hospitalized him. As a result of being shocked, plaintiff suffered a third degree burn on his left foot, a first degree burn on his right shoulder and a first degree subcutaneous burn on his right hand and other complications.

The VEMCO electrical service line on the right-of-way where the accident occurred consists of two wires. The high wire, or primary line, is, according to defendant’s safety director, an energized uninsulated electrical line carrying 7,260 volts. The lower line, or neutral wire, according to the safety director, has a potential of zero and would not cause a shock unless one cut it and held both ends.

Plaintiff and a friend, Michael Simpson, measured the lines after the accident on two occasions. On the first, shortly after the accident according to the photographs, they testified the lines were low and estimated the lower line to be nine and one-half to ten feet above the ground. On the second occasion, in May of 1983, they actually measured the lines and Simpson testified the lines were even lower and that the lowest line was only seven feet four inches off the ground.

In June of 1983, VEMCO’s safety director, Leo Friday, after learning of the accident, visited the site, measured the lines, and found them to be in his words, “extremely low.” He found the primary wire to be thirteen feet eight inches above the ground and the neutral line to be seven feet six inches above the ground.

Friday did not deny that plaintiff had been shocked but could not explain how the accident occurred. Friday examined the primary wire, which was introduced into evidence, and could find no evidence that it caused the injury but admitted that the accident could have happened without causing a burned area on the wire.

Friday further testified that although VEMCO’s lines were constructed to comply with the National Electric Safety Code, VEMCO did not conduct regular inspections to assure that their lines were maintained in compliance therewith. He admitted there had been no actual inspection of the lines in question at any time prior to the accident.

In answers to interrogatories, defendant stated that under the National Electric Safety Code, an uninsulated electrical line in a rural area carrying 7,620 volts should be constructed and maintained at a minimum height of fifteen feet above the ground.

Plaintiff testified that at the time of the accident, the top of the deerstand, introduced into evidence, reached a height of either nine feet four inches or ten feet four inches above the ground, depending upon which rung was resting on his shoulder at the time he backed away from the jeep. Plaintiff could not be sure exactly which rung rested on his shoulder at the time. He also stated that while he was generally aware there were power lines in the area, he had not specifically noticed any power lines at the accident site prior to the accident. There were no buildings near the site.

We note that plaintiffs version of the accident is uncontradicted and the medical evidence corroborates that his injuries resulted from an electrical shock.

After trial, the lower court concluded that plaintiff had received an electrical shock which was caused solely by the negligence of YEMCO in allowing its electrical lines to exist in an unreasonably dangerous condition. It concluded that VEMCO’s failure to maintain its electrical lines at a safe height was a breach of its duty of care to protect the plaintiff and others similarly situated from the particularly dangerous condition of low hanging electrical wires. The trial court awarded plaintiff special damages in the amount of $3,278 for medical expenses and $55,000 for general damages. The general damage award included an amount necessary to pay for additional corrective foot surgery.

VEMCO suspensively appealed contending the trial court erred in finding it negligent; in failing to apply the doctrine of comparative negligence; and in abusing its discretion by awarding excessive general damages.

ASSIGNMENTS OF ERROR NOS. 1 & 2

Here, appellant alleges that the lower court erred in its finding that VEMCO was negligent in allowing electrical lines to exist at a low height, creating an unreasonably dangerous condition, and, in the alternative, if VEMCO is at fault, in not applying the doctrine of comparative negligence.

In Hebert v. Gulf States Utilities Co., 426 So.2d 111 (La.1983) and Kent v. Gulf States Utilities Co., 418 So.2d 493 (La.1982), the Louisiana Supreme Court recently considered the principles of tort liability which apply when injury occurs as the result of contact with overhead power lines. The court rejected the suggestion that absolute liability be imposed upon a utility company. In both Kent and Hebert, because the utility company had actual knowledge of the condition of its lines, the court found it unnecessary to impose strict liability. Rather, it applied the principles of negligence and assessed the liability of the various parties to the accident under a duty-risk analysis.

Despite the holding in favor of the utility in Kent because of the peculiar and unusual facts of that case, the court stated in Hebert that it did not intend to diminish in any way the high degree of care that Louisiana courts have required of those who deal in the manufacture and distribution of electricity.

Electric transmission companies which maintain and employ high power lines are required to exercise the utmost care to reduce hazards to life as far as practicable. Hebert v. Gulf States Utilities Co., supra; Simon v. Southwest La. Elec. Membership, 390 So.2d 1265 (La.1980). However, an electric utility is not required to guard against situations which cannot reasonably be expected or contemplated. Simon, supra.

The three-fold duty of a utility in cases where injury is easily associated with the transmission of electricity over high power lines, as set forth in Simon, supra, is (1) to insulate the lines, or (2) to warn adequately of the danger, or (3) to take other proper and reasonable precaution to prevent injury. Mere compliance with safety standards does not, per se, relieve the utility of negligence. Simon, supra; McKowen v. Gulf States Utilities Co., 358 So.2d 675 (La.App. 1st Cir.1978). In order for a violation or breach of duty to constitute negligence, it must be shown that the utility had knowledge, actual or constructive, of the danger and that it failed to correct same or warn of the danger. McCoy v. Franklin Parish Police Jury, 414 So.2d 1369 (La.App. 2d Cir.1982).

Had the lines met the height requirement of the National Electric Safety Code, the accident would not have occurred. As in Kent, supra, VEMCO would have effectively “insulated” its lines by “isolation.” However, in the instant case, VEMCO’s lines were found by the trial court to have been hanging dangerously low at the time of plaintiff’s accident, and thus, to have created an unreasonable risk of harm to plaintiff. That finding is amply supported by the evidence and is not manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). The record shows that both plaintiff and defendant measured the height of the lines subsequent to the accident. Regardless of which measurement is used, the evidence preponderates that at the time of plaintiff’s accident, an electrical wire, capable of “shocking,” was hanging as low as ten to eleven feet above the ground, which is much lower than the National Electric Safety Code requirement.

Appellant, in an effort to absolve itself of negligence, argues that its lines were constructed in compliance with the National Electric Safety Code and in such a manner that they should have remained in compliance therewith, absent some intervening force. In essence, appellant’s argument is that it had no actual knowledge of its low hanging electrical wires. However, VEMCO admitted that it had no reliable regular inspection system for ascertaining whether its electrical lines were in need of maintenance or repair and further admitted the subject line had never been inspected since construction to insure its continued compliance with the safety code requirements. In light of this admission coupled with the high degree of care required by our courts of those who deal in the manufacture and distribution of electricity, we conclude that VEMCO is charged with constructive notice of its dangerously low hanging lines. Compare, McCoy v. Franklin Parish Police Jury, supra. The trial court correctly concluded that VEMCO breached its duty to plaintiff to protect him from the risk of electrocution. VEMCO, by failing to have a systematic schedule of inspection, did not take proper and reasonable precautions to prevent injury to persons like plaintiff. See, Simon v. Southwest La. Elec. Membership, supra. In sum, VEMCO failed to exercise the utmost care to reduce hazards to life as far as practicable. The trial court’s conclusion that VEMCO was negligent in this case was correct.

VEMCO further contends that the lower court erred in failing to find plaintiff comparatively or contributorily negligent. It argues that despite the fact its lines were dangerously low, the wires themselves were adequate warning that they carried electricity and could cause injury if a grounded object came in contact with them. We find VEMCO’s argument unconvincing.

The relevant question is: did plaintiff’s conduct conform to the standard of care that would be exercised by a reasonable man? In other words, did the plaintiff, Horton, breach a duty to himself by failing to avoid the unreasonable risk created by the defendant utility company? Dyson v. Gulf Modular Corporation, 338 So.2d 1385 (La.1976). We agree with the lower court’s conclusion that plaintiff did not in the instant case.

The party relying on contributory negligence has the burden of proving it. Failure to take every precaution against every foreseeable risk or to use extraordinary skill, caution, and foresight does not constitute negligence or contributory negligence. The victim is only required to use reasonable precautions and his conduct in this regard is not negligent if, by a common sense test, it is in accord with that of reasonably prudent persons faced with similar conditions and circumstances. Dupas v. City of New Orleans, 354 So.2d 1311 (La.1978); Smolinski v. Taulli, 276 So.2d 286 (La.1973).

The fact that a person’s own actions bring him in contact with high voltage wires does not necessarily make him negligent. Hebert v. Gulf States Utilities, supra.

While plaintiff was generally aware of the electric line right-of-way, he certainly was not specifically aware of nor should he have expected the immediate danger presented by the unusually low hanging electrical wires. The plaintiff could reasonably expect the utility to maintain its lines at a safe height well above where they were on the date of this accident. Plaintiff was in a wooded area with no buildings nearby and could reasonably expect he could lift a portable deerstand to a maximum height of ten feet four inches off the ground without coming in contact with high voltage electrical lines. The lower court’s conclusion that plaintiff’s conduct conformed to the standard of care that would be exercised by a reasonable man under similar circumstances was not erroneous.

We further conclude that VEMCO is also strictly liable for the defective electrical wires under La.C.C. Art. 2317. Here, as opposed to Kent and Hebert, the defective thing that posed the unreasonable risk of harm was not uninsulated wires the location and height of which were known to the utility. The defective thing in the instant case was VEMCO’s uninsulated wires that were hanging dangerously low to the ground, a condition which was actually unknown to VEMCO. These wires were in an area extensively used for hunting.

In Kent v. Gulf States Utilities Co., supra, the court stated at page 497:

Accordingly, in a strict liability case in which the claimant asserts that the owner’s damage causing thing presented an unreasonable risk of harm, the standard for determining liability is to presume the owner’s knowledge of the risk presented by the thing under his control and then to determine the reasonableness (according to traditional notions of blameworthiness) of the owner’s conduct in light of that personal knowledge.
... Under strict liability concepts, the owner was presumed to have knowledge of the [hazardous] condition, and ... was liable because a reasonable owner who had discovered the hazardous condition would not have maintained the thing as he did without correcting or minimizing the risk ...

Here, had VEMCO discovered the low hanging wires, its only reasonable conduct would have been to correct or warn against the unreasonable risk of harm. Thus, under the strict liability concept of 2317, VEMCO is liable for its “fault” in maintaining defective electrical lines and not preventing the “thing” from causing injury, unless it proved that the damage was caused by the fault of the victim, by the fault of a third person, or by an irrestible force. VEMCO failed to prove victim fault, third party fault or that the damage was caused by an irrestible force.

ASSIGNMENT OF ERROR NO. 3

Defendant claims that the award of the trial court of $55,000 in general damages was excessive. After a careful review of the record, we agree.

In Coco v. Winston, 341 So.2d 332 (La.1976), the court stated:

... [B]efore a court of appeal can disturb an award made by a trial court ... the record must clearly reveal that the trier of fact abused its discretion in making its award. [Citations omitted.] Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court. [Citation omitted.]

Since the finder of fact does have much discretion in fixing damages, the appropriate procedure for testing whether the trial judge abused its discretion is to determine whether the award can be supported under the interpretation of the evidence most favorable to the plaintiff which reasonably could have been made by the trial court. Schexnayder v. Carpenter, 346 So.2d 196 (La.1977).

In Reck v. Stevens, 373 So.2d 498 (La.1979), the court further amplified their earlier holding:

Before a trial court award may be questioned as inadequate or excessive, the reviewing court must look first, not to prior awards, but to the individual circumstances of the present case. Only after analysis of the facts and circumstances peculiar to this case and this individual may a reviewing court determine that the award is excessive.
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Thus the initial inquiry must always be directed at whether the trier court’s award for the particular injuries and their effects upon this particular injured person is, a clear abuse of the trier of fact’s “much discretion,” La.Civ.C. art. 1934(3) in the award of damages. It is only after articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review, for articulated reasons, be considered either excessive, [citations omitted] or insufficient [citation omitted]. [Footnote omitted.]

We recognize that electrical shock can be a very traumatic injury. Unlike an ordinary thermal burn which usually only affects one area, electrical shock can cause damage to the entire body.

The injuries suffered by the plaintiff were a first degree burn on his hand, a first degree burn on his shoulder and a third degree burn on his left foot. Plaintiff was hospitalized on two occasions for a total of five days. The first degree burn on his shoulder only required treatments of local cream and the burn on his hand essentially required no treatment. He underwent a debridement of his left foot and a skin graft procedure which should have healed within ten to twelve weeks. He wore an UNA boot after the skin graft procedure for a short period to protect the area. He was on crutches for three to four weeks. Immediately after he was shocked, there was evidence of internal injury to plaintiff’s skeletal musculature system as was evidenced by elevated levels of certain enzymes. The doctors testified there is no evidence of permanent internal injury to plaintiff, however, that possibility remains. Further, plaintiff has some increased risk of skin cancer at the graft site and the medical testimony admits that cataracts and arthritic complications are speculative possibilities but not probabilities.

Plaintiff has a small scar on his left shoulder. The donor site for the skin graft presents a small discolored area which should disappear in one to three years. Plaintiff’s left foot has a 1.2 by 1.9 centimeter permanent disfiguring scar and was still painful at time of trial. Because of this pain, this 25 year old plaintiff testified he could not participate in extensive athletic endeavors as he once did. The best medical testimony indicates that another surgical operation will relieve this problem, at a cost of not more than $1,500. For a short period, plaintiff thought he was sterile as a result of this accident. However, that proved to be false. Plaintiff’s last visit to a doctor for treatment in connection with the accident was December 27, 1982.

Plaintiff is aware of the slight possibility that permanent damage to his vital organs may have resulted from the accident, which could show up later. He is also aware of the increased risk of skin cancer to the skin graft area on his left foot and that there is a slim possibility of cataracts and arthritic problems evidencing themselves in the future. No doubt these uncertainties caused plaintiff anxiety and worry. However, plaintiff did not take medication or seek treatment for anxiety.

Applying the foregoing legal principles after our careful review of the record, we conclude that the trier of fact clearly abused its discretion in making its general damage award. The award is unreasonable and excessive since the evidence, as articulated hereinabove in a light most favorable to Mr. Horton, does not realistically support a finding of any permanent injury, disability, extreme pain and suffering, or severe mental anguish.

Bearing in mind that we cannot substitute our judgment as to what we consider to be an appropriate award on the basis of the evidence, but can only lower the excessive award to the highest point which is reasonably within the discretion accorded the trier of fact, we find the high-ést reasonable amount which could be awarded as general damages in this case to be $35,000. This amount does not include an award of $1,500 for future medical expenses, to pay for the corrective operation on plaintiffs left foot, which amount we award and add to the special damages previously granted.

Accordingly, and for the foregoing reasons the judgment appealed from is amended as follows:

IT IS ORDERED, ADJUDGED AND DECREED that judgment is rendered in favor of Walter G. Horton and against Valley Electric Membership Corporation in the amount of $35,000 for past, present and future pain and suffering and emotional distress, which sum shall bear legal interest from date of judicial demand until paid.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that judgment is rendered in favor of Walter G. Horton and against Valley Electric Membership Corporation, in the amount of $4,778 for past and future medical expenses, together with legal interest from date of judicial demand until paid. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that defendant shall pay all costs of court which shall include all expert witness fees.

As amended, the judgment is affirmed with costs of this appeal to be divided equally between appellee and appellant.

AMENDED AND AS AMENDED, AFFIRMED.

      . Plaintiff’s brief claims that the minimum height for the line in question under the code is eighteen feet. However, for purposes of this opinion, we accept the fifteen foot requirement to VEMCO’s answer to plaintiff’s interrogatories. The code, itself, was not introduced into evidence.

      . While compliance or noncompliance with the Code’s standards does not, per se, relieve the owner of electrical transmission lines of negligence nor act as a presumption of negligence, in Burley v. Louisiana Power & Light Co., 319 So.2d 334 (La.1975), the court observed that the code is entitled to such probative weight as it warrants in the judgment of the court. Although the National Electric Safety Code has not been adopted as a safety standard by any law or ordinance applicable here, it is a publication which reasonable minds would agree to be trustworthy and is therefore of probative value in determining whether there was a breach of duty on the part of VEMCO toward the plaintiff. Burley, supra; Dyson v. Gulf Modular Corp., 338 So.2d 1385 (La.1976); Williams v. City of New Orleans, 433 So.2d 1129 (La.App. 4th Cir.1983).


author: GULOTTA, Judge.

text:
    STATE of Louisiana v. Shelton DAUZART.
    No. KA-1390.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 10, 1984.

      Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Beryl M. McSmith, Asst. Dist. Atty., New Orleans, for appel-lee.
    Before GULOTTA, KLEES and ARMSTRONG, JJ.
   GULOTTA, Judge.

Defendant was convicted of two counts of armed robbery, LSA-R.S. 14:64, and sentenced to five years on each count. The sentences are to run consecutively. In his only assignment of error, defendant requests review for errors patent.

The record does not indicate whether or not the defendant was present at his arraignment. However, it does reflect that his attorney was present and entered a plea of not guilty to both counts of the charge. Any irregularity in the arraignment is waived if the defendant either pleads guilty or goes to trial without objecting to the irregularity. See LSA-C.Cr.P. Art. 555. Because no objection was made in the instant case, we find no basis to set aside the conviction because of this error patent in the record.

The record also contains an error in the verbiage used by the trial judge in sentencing. According to the record entry, the defendant was sentenced without benefit of “pardon, parole, or suspension of sentence”. The proper statutory language should have been without benefit of “parole, probation, or suspension of sentence”. The word pardon was erroneously substituted for the word probation. We encountered the same problem in State v. Smith, 450 So.2d 714 (La.App. 4th Cir.1984). In that case, we held the incorrect language to be a typographical error. We reach the same conclusion in the instant case.

The last error patent on the face of the record is the absence of a delay between the denial of the new trial motion and sentencing. The record fails to indicate that the defendant waived the twenty-four hour delay. The Supreme Court has held such error to be harmless unless prejudice is shown by the defendant. State v. Brogdon, 426 So.2d 158 (La.1983). State v. White, 404 So.2d 1202 (La.1981). Because the appellant has not shown any prejudice here and has in fact not even raised this issue, this error is harmless.

Although not assigned as error, we have reviewed the sufficiency of evidence to support the defendant’s conviction. State v. Raymo, 419 So.2d 858 (La.1982). To obtain a conviction for armed robbery, the State must prove that the defendant committed: 1) a theft, 2) of anything of value, 3) upon the person of or the immediate control of another, 4) by use of force or intimidation, 5) while armed with a dangerous weapon.

In the instant case, a wristwatch, van, cash, and clothing from his dry cleaning business were stolen from Swon Sung Park. A wristwatch was also taken from Lewis Gautreaux on the premises. In both instances, a gun was used. Swon Park, the business owner and eye witness, identified the defendant as being one of three persons who perpetrated the crime. The defendant offered evidence of an alibi.

The jury chose to believe the State’s witnesses. There was sufficient evidence, viewed in the light most favorable to the prosecution, to lead the jury to find the defendant guilty beyond a reasonable doubt. State v. Boelyn, 432 So.2d 260 (La.1983); State v. Bruins, 407 So.2d 685 (La.1981).

The conviction and sentence are affirmed.

AFFIRMED.