author: LOTTINGER, Judge.

text:
    STATE of Louisiana v. Cheryl BERIDON.
    No. 83 KA 0209.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Rehearing Denied April 3, 1984.
    Writ Denied June 15, 1984.

      Edward James Gaidry, Houma, for appel-lee.
    Warren J. Daigle, Indigent Defender’s Office, Houma, for appellant.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   LOTTINGER, Judge.

Defendant, Cheryl Beridon, was charged by grand jury indictment with the unlawful distribution of heroin, in violation of La. R.S. 40:966 A(l). Defendant pled not guilty and, after a trial by jury, was found guilty as charged. The trial court imposed the mandatory life sentence.

On the evening of August 8, 1977, the district attorney for the Thirty-Second Judicial District, Norval Rhodes, and his chief investigator A.J. Dagate, received word from an informant, Lynn Blanchard, that the defendant had offered to sell her some heroin. Ms. Blanchard was given money so that she might make the transaction. The District Attorney and his investigator followed Ms. Blanchard to the Sugar Bowl Motel where she made contact with the defendant. She entered defendant’s room for a moment, and then they both proceeded in Ms. Blanchard’s car to the Paradise Lounge. Defendant entered the lounge while Ms. Blanchard waited in her car. After about fifteen minutes defendant returned; and the two drove back to the motel where Ms. Blanchard dropped off defendant. The District Attorney and his investigator met with Ms. Blanchard a few minutes later and she gave them several small packets of heroin which she had bought from defendant.

Defendant assigned 17 errors, but only briefed 9 assignments of error. Those assignments of error not briefed are considered abandoned. Rule 2-12.4, Uniform Rules — Courts of Appeal.

ASSIGNMENTS OF ERROR NUMBERS 1, 2, 3 AND 5

In these assignments of error, defendant alleges that the trial court erred in allowing the State to use its peremptory challenges in a discriminatory manner in order to exclude blacks from the jury, thereby violating her right to be judged by a jury representative of the community.

During the voir dire, the State elected to use eight of its twelve peremptory challenges. After each of five of the challenges made, the defense counsel objected on the basis that the State had peremptorily challenged those individuals solely because they were black. Following each objection, the prosecutor chose to explain why he had elected to peremptorily challenge them.

The State asserts that defendant’s allegations are specious. The State claims that it had adequate reasons to challenge each of the individuals in question and indeed, provided that reason to the court. The State also points out that there was one black who did serve on the jury.

We note that the State’s use of peremptory challenges against blacks does not deny a defendant equal protection unless there is a systematic exclusion of blacks over a period of time. State v. Smith, 430 So.2d 31 (La.1983); State v. Perry, 420 So.2d 139 (La.1982). The defendant has the burden of establishing a prima facie case of such exclusion. State v. Smith, supra.

Here, defendant urges that because the district attorney recused himself from this case and a prosecutor was specially appointed, it is impossible for her to show a history of systematic exclusion. However, we believe that even if we did not hold defendant to this difficult standard because of the special circumstances herein, and looked at this case alone, we still do not think she has shown an attempt by the State to keep blacks from serving on this jury. See State v. Francis, 403 So.2d 680 (La.1981).

In each instance when defendant objected to the State’s use of a peremptory challenge on a black, the State chose to give an explanation of why a challenge was so used, though the State is not required to do so. We find the State’s reasons for exercising its challenges to be sound.

In one instance, the State felt the juror had been inattentive during questioning. In another, the prospective juror stated he felt he had formed an opinion about the case and thought defendant probably was not guilty. The other prospective jurors were apparently challenged because they knew the defendant. We are not convinced that there was an invidious attempt by the State to exclude blacks from the jury, especially since there was one black member.

Accordingly, we find these assignments of error lack merit.

ASSIGNMENT OF ERROR NUMBER 4

In this assignment, defendant urges the trial court erred by denying her motion for a mistrial on the basis that one of the jurors violated the sequestration rule of the trial court.

Although this was not a capital case, the trial court elected to sequester the jury-after each juror was sworn, as provided for in La.Code Crim.P. art. 791. The incident at issue occurred after about one-third of the jury had been chosen. Shortly after Mr. Hugh was sworn as a juror and placed under sequestration, he was seen leaving the building. When he was brought before the trial court, Mr. Hugh explained that he was trying to get his daughter home. He was admonished by the trial court and told to rejoin the other jurors. The defense attorney then moved for a mistrial claiming Mr. Hugh had violated the sequestration rule. After some discussion, the trial court denied the motion and proceeded with the trial.

The purpose of La.Code Crim.P. art. 791 is to protect jurors from outside communications which might influence them to base their verdict on something other than the evidence introduced at the trial. Reversal is required when an outside communication occurs which is prejudicial to the accused. State v. Palrean, 395 So.2d 687 (La.1981). Where circumstances indicate, however, that no prejudice could have occurred to the accused, the mere separation of a juror briefly may be held to be insufficient grounds to set aside the verdict. In State v. Smith, 322 So.2d 197 (La.1975), a first degree murder trial, a juror left the other jurors before the rest of the jury had been sworn and returned to his home which was nearby. He testified in a motion for new trial that he did not discuss the case with anyone. There the court refused to set aside the verdict because it found no possible prejudice to the defendant.

In the instant case we do not believe that Mr. Hugh did anything which violated the purpose of the sequestration order. There is adequate evidence that Mr. Hugh only wanted to make sure his daughter got home. He was apparently only gone a very brief period of time. There was no indication that the juror spoke to anyone about the case so as to prejudice the defendant.

Accordingly, we find this assignment of error without merit.

ASSIGNMENTS OF ERROR NUMBERS 6 AND 7

Defendant contends that the trial court erred in allowing Ms. Grace Johansen of the Louisiana State Police Crime Laboratory to testify as an expert in the analysis of heroin. She argues that Ms. Johansen did not possess enough expertise or educational credentials to be qualified as an expert.

La.R.S. 15:466 provides that before any witness can give evidence as an expert his competency to so testify must be established to the satisfaction of the court. The competence of an expert witness is a question of fact to be determined by the trial court, State v. Parkerson, 415 So.2d 187 (La.1982), and the trial court is vested with wide discretion in its determination. State v. Boyer, 406 So.2d 143 (La.1981). Such discretion will not be disturbed on appeal in the absence of a clear showing of abuse. State v. Chapman, 410 So.2d 689 (La.1981), remanded for rehearing on other grounds.

We have reviewed Ms. Johansen’s qualifications and we are convinced that the trial court did not abuse its wide discretion. Ms. Johansen has a degree in chemistry and has attended various schools and seminars given by the Federal Bureau of Investigation and the Drug Enforcement Administration. She is also a member of several professional societies. Ms. Johan-sen testified that she had worked on approximately 100-150 cases and had been qualified as an expert many times before.

We see no abuse of discretion by the trial court. Accordingly, we find that these assignments lack merit.

ASSIGNMENT OF ERROR NUMBER 10

In assignment of error number 10, defendant urges that the trial court was in error in allowing into evidence an inculpa-tory statement made by defendant to Lynn Blanchard, the police informer. Ms. Blanchard testified that the defendant called her on the phone and asked her if she wanted to buy some heroin. The defense counsel objected on the basis that prior to its opening statement the State failed to give defendant written notice of its intent to use an inculpatory statement made by defendant, as mandated in La. Code Crim.P. art. 768.

The State asserts, and we agree, that the 768 notice applies only to statements made by defendant after the commission of the crime. See State v. Quimby, 419 So.2d 951 (La.1982). In State v. Lewis, 416 So.2d 921 (La.1982), the court held that the 768 notice was not applicable to an inculpatory statement made by defendant one hour before the crimes took place.

We believe that in the instant case, more than one hour transpired between the time the inculpatory statement was made and the time the crime was committed. Ms. Blanchard testified that defendant called her at eight o’clock at night and made the statement at issue. At 8:30, she met with Mr. Dagate, the district attorney’s chief investigator. At that time, Mr. Dagate searched her and her car and gave her the money to buy the heroin. Ms. Blanchard then proceeded to the motel to meet defendant, followed by Mr. Dagate. However, her first attempt to meet with the defendant failed; and Mr. Dagate told her not to proceed with the plans. Ms. Blanchard testified:

“I called Mr. Rhodes [the district attorney] again at his house and explained to him what had happened and what should I do. And after I called Mr. Rhodes, I also called Cheryl [defendant] and told her that I had gone by but I saw someone outside that looked suspicious to me; that I thought they might possibly be police or whatever, and I told her that I had changed my mind, that it really looked too suspicious. I told her I would call her back if I decided to go back. Then, we went to Mr. Rhodes house. Mr. Dagate followed me to Mr. Rhodes’ house_ When we got to Mr. Rhodes’ house, I called Cheryl again and told her that I would be there within the half hour.”

It is obvious from Ms. Blanchard’s testimony that quite a bit of time transpired between the time defendant called her and when she finally made contact with defendant to make the sale. Accordingly, we do not believe that a 768 notice was necessary for the introduction of the statement at issue. Therefore, we find this assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER 15

In this assignment of error, defendant alleges that the trial court erred in failing to grant defendant’s motion for a new trial. Defendant asserts that a new trial is warranted because (1) the verdict is contrary to the law and evidence and (2) several of the trial court’s rulings on objections during the trial showed prejudicial error.

When reviewing a denial of a motion for new trial based on allegations that the verdict is contrary to the law and evidence, we look to the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The reviewing court is required to consider the evidence in the light most favorable to the prosecution and determine whether any rational finder of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Washington, 421 So.2d 887 (La.1982).

The statute under which defendant was charged, La.R.S. 40:966, reads in part as follows:

“A. Manufacture; Distribution. Except as authorized by this part, it shall be unlawful for any person knowingly or intentionally:
(1) To produce, manufacture, distribute or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance classified in Schedule I; ...”.
Heroin is listed in Schedule I.

After reviewing the evidence herein, as set forth above, we are strongly-convinced of defendant’s guilt. There is the testimony of Lynn Blanchard which is further corroborated by the district attorney ■ and his chief investigator. We can easily understand why a jury or finder of fact could have found the essential elements of the crime, beyond a reasonable doubt.

In the second part of defendant’s motion for a new trial, she asserts that five of the trial court’s rulings on objections during the trial showed prejudicial error. Three of those objections have already been addressed in previous assignments of error. The defendant asserts that the trial court erred in (1) allowing the State to use its peremptory challenges to disqualify all but one black juror; (2) in allowing into evidence an inculpatory statement made by defendant when the State failed to give notice of its intent to do so, in accordance with La.Code Crim.P. art. 768; and (3) in failing to grant the defendant’s motion for a mistrial when a juror who had been sworn violated the trial court’s order of sequestration. We have already addressed these issues in assignments of error number 1-3 & 5, and 10, and 4, respectively. We found no merit in defendant’s assertions regarding those issues and see no reason to reiterate our findings here.

Defendant also alleges, in the second portion of her motion for a new trial, that the trial court failed to rule on defendant’s motion for a change of venue. We note from a review of the minutes that on December 12, 1978, defendant withdrew her motion for a change of venue after a two-day hearing on the matter and, it appears from the record, never reurged the motion. Therefore, we find this issue lacking merit.

Finally, defendant asserts that the State failed to establish that defendant was not licensed to distribute heroin and therefore might be an authorized exception to La.R.S. 40:966. We note, however, that under the provisions of La.R.S. 40:990, the State does not have this burden. La.R.S. 40:990 in part provides:

“A. It shall not be necessary for the state to negate any exemption or exception set forth in this part in any complaint, information, indictment or other pleading or in any trial, hearing, or other proceeding under this part, and the burden of proof of any such exemption or exception shall be upon the person claiming its benefit.”

Defendant, herein, did not make such a showing and therefore, we presume it is unlawful for her to distribute heroin.

We find the trial court’s rulings on the objections noted herein to be sound. We also find sufficient evidence to support the trier of fact’s conclusions.

Accordingly, we find this assignment-of error lacking merit.

Therefore, for the above and foregoing reasons, the conviction and sentence are affirmed.

AFFIRMED.


source: Caselaw Access Project

author: WATKINS, Judge.

license: Public Domain

text:
    Dr. Samuel E. FIELD, Jr. v. June B. MERRITT and the Commissioner of Insurance.
    No. 83 CA 0250.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Rehearing Denied April 3, 1984.
    Writ Denied June 1, 1984.

      F.W. Middleton, Jr., Baton Rouge, for plaintiff-appellee Dr. Samuel E. Field, Jr.
    Arthur Cobb, Baton Rouge, for defendant-appellant June B. Merritt.
    Before PONDER, WATKINS and CARTER, JJ.
   WATKINS, Judge.

Dr. Samuel E. Field filed a “Petition and Peremptory Exception of Prescription” naming as co-defendants June B. Merritt and the Honorable Sherman A. Bernard, Commissioner of Insurance. The pleading sought to obtain a determination that Mrs. Merritt’s right to convoke a medical review panel concerning her claim for her husband’s death had prescribed, and further sought to have the panel dismissed.

The pleading recites that Mrs. Merritt filed suit for malpractice against Dr. Field in the Nineteenth Judicial District Court, Parish of East Baton Rouge, on July 25, 1980, and that the suit was dismissed without prejudice on September 25, 1980, on an exception of prematurity because Mrs. Merritt had failed to convoke a Medical Review Panel as required by LSA-R.S. 40:1299.41 et seq. Mrs. Merritt, it is alleged, later filed a request to convoke such a panel on March 1, 1982. Annexed, to Dr. Field’s pleading in this proceeding is a copy of the original petition filed by Mrs. Merritt on July 25, 1980, and a copy of a letter dated March 1, 1982, by Mrs. Merritt’s attorney written after dismissal of the original suit requesting the convocation of a medical review panel. Generally, the original suit alleges that Mrs. Merritt’s husband, James D. Merritt, consulted Dr. Field for treatment for obesity, and died two days after a stomach stapling operation was performed by Dr. Field within one week thereafter. Mrs. Merritt alleged failure to inform Mr. or Mrs. Merritt of the risks involved in the operation.

After a hearing on Dr. Field’s exception of prescription, the trial court sustained the exception of prescription, and ordered the Commissioner of Insurance to dismiss the medical review panel. Mrs. Merritt appealed. We affirm.

Service of citation of the “Petition and Peremptory Exception of Prescription” upon Mrs. Merritt was never effected. However, her attorney made an appearance both in the trial court, and in this court as counsel for appellant. Thus, any possible exception of insufficiency of citation that Mrs. Merritt may have had was waived. LSA-C.C.P. art. 925.

The transcript of the hearing upon the “Petition and Peremptory Exception of Prescription” is not in the record. However, if the record is deficient, it must be assumed that the evidence submitted or stipulated supported the result reached by the trial court. Dowden v. Miller, 415 So.2d 283 (La.App. 1st Cir.1982), reversed on other grounds 425 So.2d 706 (La.1982); United Pentecostal Church v. Interstate Surplus Underwriters, 368 So.2d 1104 (La. App. 2d Cir.1979), writ denied 371 So.2d 621 (1979).

The basic argument put forth by Mrs. Merritt is that although the right to file suit may have prescribed before the letter requesting the convocation of the medical review panel dated March 1, 1982, was written, the statute providing for the convocation of a medical review panel contains no prescriptive period.

First, we must note that the right to file suit absent the requirement of a medical review panel, prescribed one year after the alleged fault on the part of Dr. Field or one year after the discovery of the alleged fault, whichever is later, under the provisions of LSA-R.S. 9:5628, which reads as follows:

“A. No action for damages for injury or death against any physician, chiropractor, dentist or hospital duly licensed under the laws of this state, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission or neglect, or within one year from the date of discovery of the alleged act, omission or neglect; provided, however, that even as to claims filed within one year from the date of such discovery, in all events such claims must be filed at the latest within a period of three years from the date of the alleged act, omission or neglect.
B. The provisions of this Section shall apply to all persons whether or not infirm or under disability of any kind and including minors and interdicts.”

Thus, even assuming that Mrs. Merritt did not discover the alleged fault on the part of Dr. Field until shortly before she filed her original suit on July 25, 1980, she would have been required, absent the requirement that a medical review panel be convoked, to file suit at least before July 25, 1981. However, the statute providing for the medical review panel, LSA-R.S. 40:1299.47 requires that a medical review panel be established to review a proposed complaint before suit may be filed, unless by agreement of the parties the use of a medical review panel is waived. LSA-R.S. 40:1299.47B(1).

LSA-R.S. 40:1299.47 as it stood at the time of the alleged fault and the filing of the original suit by Mrs. Merritt obviously required that the medical review panel be requested within the applicable prescriptive period, which in this case is one year, or certainly no later than July 25, 1981 First, Subsection A(2) of LSA-R.S. 40:1299.47 provides as follows:

“(2) The filing of the request for review of a claim shall suspend the time within which suit must be instituted, in accordance with this Part, until ninety days following notification, by certified mail, as provided in Subsection J of this Section, to the claimant or his attorney, of the issuance of the opinion by the medical review panel, in the case of those health care providers covered by this Part, or in the case of a health care provider against whom a claim has been filed under the provisions of this Part, but who is not qualified under this part, until sixty days following notification by certified mail to the claimant or his attorney by the commissioner that the health care provider is not covered by this Part. The request for review of a claim under this Section shall be deemed filed on the date of the receipt of the complaint stamped and certified by the commissioner or on the date of mailing of the complaint if mailed to the commissioner by certified or registered mail.”

Furthermore, Subsection G of LSA-R.S. 40:1299.41 provides the remedy of prescription against a health care provider (such as a physician) who is “answerable in solido with a qualified health care provider against whom a claim has been filed for review under this Part shall be suspended for a period of ninety days Thus, prescription is implicit in the entire statute.

Also, we see the sole purpose of the entire statute, beginning with LSA-R.S. 40:1299.41 and continuing through 40:1299.-47, is to require that the convocation of a medical review panel be a precondition to the filing of suit against a health care provider. If the right to file suit has prescribed, the issues before the medical review panel become moot, as there is no possible benefit in further review of the medical review panel.

This view was recognized by the legislature in the enactment of Subsection B(2) of LSA-R.S. 40:1299.47, by Act No. 674 of 1982, which Subsection reads as follows:

“(2) A health care provider, against whom a claim has been filed under the provisions of this part, may raise the preemptory (sic) exception of prescription in court at any time, without need for completion of the review process by the medical review panel. If the court finds that the claim had prescribed prior to being filed, the panel, if established, shall be dissolved.”

Clearly, this provision was adopted long after the act of injury and the filing of the original suit. The question of retroactivity and whether the enactment is substantive or procedural is not adequately addressed by counsel. However, even if the enactment is not applicable to the present case, it merely represents the statement of that which was already the law, that a medical review panel must be dismissed if its establishment is sought after the running of the applicable prescriptive period, as all issues before it are then moot, suit being barred by prescription.

For the foregoing reasons, the judgment of the trial court sustaining the peremptory exception of prescription and dismissing the medical review panel is affirmed, all costs to be paid by Mrs. June B. Merritt.

AFFIRMED.

      . She did not seek establishment of such a panel until a letter was addressed by her counsel to Mr. Emery Bates, Chief of Property and Casualty, Louisiana Patients’ Cooperative Fund, dated “1 March, 1982”.


author: EDWARDS, Judge.

text:
    James Sidney CONNER, Jr. v. Kaylynn Kern CONNER.
    No. 83 CA 0257.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Rehearing Denied April 3, 1984.
    Writ Denied June 8, 1984.
    See also La.App., 436 So.2d 591.

      Gerald J. Martinez, Metairie, for plaintiff, appellee.
    Floyd J. Reed, New Orleans, for defendant, appellant.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   EDWARDS, Judge.

On April 6, 1981, James Sidney Conner, Jr., filed suit against his wife, Kaylynn Kern Conner, seeking a divorce on the ground of having lived separate and apart for greater than one year. Mrs. Conner, having previously filed suit for a separation and having previously been awarded alimony pendente lite, sought to prove herself free from fault and be awarded alimony on a permanent basis. The trial court ordered the previous suit consolidated with the present action and the entire prior record was admitted into evidence.

Following trial, the court signed a judgment both awarding Mr. Conner a divorce based on living separate and apart for greater than one year and declaring the parties to be mutually at fault.

Appellant, Kaylynn Kern Conner, appeals only that part of the judgment finding the spouses to be mutually at fault. We affirm.

LSA-C.C. Art. 141 provides:

“A separation from bed and board shall be granted although both spouses are mutually at fault in causing the separation. In such instances, alimony penden-te lite may be allowed but permanent alimony shall not be allowed thereafter following divorce.”

In Adams v. Adams, 389 So.2d 381 (La.1980), the Louisiana Supreme Court held that “fault” as used in Art. 141 meant fault such as would entitle either party to a separation from bed and board.

The testimony and evidence on which the trial court based his judgment in the present case consisted almost entirely of conflicting versions of fact as related by Mr. and Mrs. Conner.

Mr. Conner testified to constant arguments and bickering. He stated that he and his wife would not sleep together for days at a time because his wife was on the sofa or with her son by a former husband. He testified that Mrs. Conner got progressively more irritable at visits by his two daughters from a previous marriage and that on many occasions she told him to get out, which ultimately proved unbearable. He denied remaining away from home for days at a time, for repeatedly getting drunk or for driving while intoxicated. He stated that he believed the main reason the marriage had failed was because Mrs. Conner tended to get hysterical and to be unable to cope with day to day events but admitted the divorce was as much his fault as Mrs. Conner’s.

Mrs. Conner testified that her husband left for three days at a time, that he came home drunk, that he was loud and abusive to her and her son, that at late hours he brought people and relatives home unasked and drunk, that he promised to reform but never did, and that he left the family domicile only to return his key and state that she would hear from his attorney.

In the area of domestic relations, much discretion must be vested in the trial judge and particularly in evaluating the weight of evidence which is to be resolved primarily on the basis of the credibility of witnesses. Having observed their demean- or, the trial judge is in a better position to rule on their credibility. Pearce v. Pearce, 348 So.2d 75 (La.1977); Kean v. Kean, 388 So.2d 398 (La.App. 1st Cir.1980). The instant case is no exception. Having viewed the witnesses’ demeanor and having heard their greatly conflicting testimony, the trial court weighed the evidence and found there to be mutual fault such as would deprive either spouse of permanent alimony. Based on a careful review of the entire record, we cannot say that the trial judge was clearly wrong.

Counsel for appellant has urged that because Mr. Conner has not appealed the trial court judgment, we should conclude that he admits to fault in the form of abandonment for leaving the matrimonial domicile. Further, Mr. Conner having admitted to abandonment, we should then conclude that since abandonment necessarily means, among other things, leaving the matrimonial domicile without just cause, Mrs. Conner should logically be found not to have committed fault such as would preclude her from receiving an award of permanent alimony. We do not agree with this argument because 1) Mr. Conner has only chosen not to appeal a finding of mutual fault and not a finding of individual but separable faults and 2) regardless of admitting fault by failure to appeal, such would not, absent a judicial finding, constitute a conclusive determination that any abandonment had, in fact, occurred.

For the foregoing reasons, the judgment appealed from is affirmed. All costs of this appeal are to be paid by appellant, Kaylynn Kern Conner.

AFFIRMED.


author: PONDER, Judge.

text:
    Cathy T. WALKER v. Dudley N. GRANTHAM, et al.
    No. 83 CA 0308.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Rehearing Denied April 3, 1984.
    John W. Degravelles, Baton Rouge, for plaintiff-appellant Cathy T. Walker.

      John Swanner, Baton Rouge, for defendant-appellee Clark Equipment Co.
    Vincent P. Fornias, Baton Rouge, for defendant-appellee Dudley N. Grantham, Walt Bradley, Jake Jacobs and Georgia Pacific Corp.
    Before PONDER, WATKINS and CARTER, JJ.
   PONDER, Judge.

Plaintiff appealed the trial court judgment dismissing on a motion for summary judgment her suit against the employer and co-employees of her deceased husband.

The sole issue on appeal is the “intentional act” exemption to the immunity of the employer and co-employees in tort.

We affirm.

Plaintiff filed suit for wrongful death as a result of her husband being killed while working within the course and scope of his employment with Georgia Pacific. The accident occurred when a “Model 632 Bobcat skid-steer loader”, which the decedent was operating, tipped over and crushed him.

Plaintiff sued Georgia Pacific and the following Georgia Pacific employees: Dudley Grantham, plant manager; Walter Bradley, safety director; and Loris Jacobs, pulp machine superintendent. She alleged that defendants committed negligent and/or intentional acts resulting in her husband’s accident and death, basing her cause of action on the “intentional act” exception to the tort immunity of employers and co-employees provided by La.R.S. 23:1032.

Defendants filed a motion for summary judgment which was granted. Plaintiff appealed.

Plaintiff, in an amending petition, stated:

“6.
“Plaintiff alleges upon information and belief that the acts and omissions alleged in the above paragraph, subparagraph (A), were ‘intentional’ within the meaning of La.R.S. 23:1032, as amended by Acts 1976, No. 147, § 1, in that while these defendants might not have desired the consequences of their acts and omissions, they nonetheless knew that the consequences were substantially certain to follow.
“6A.
“In furtherance of the foregoing allegation, petitioner alleges that the bases therefor include the following matters of factual knowledge on the part of the defendants which existed at the time that they ordered and/or allowed plaintiff to do work with the Model 632 Bobcat previously described:
“A. They knew that the decedent was a young man with practically no work experience at all, and no experience of whatever kind with heavy equipment and with a Model 632 Bobcat in particular;
“B. They knew that the decedent had been hired less than one month at the time he was assigned the job of operating the Model 632 Bobcat on the date that he was killed;
“C. They knew that he was given little or no safety training in the use of the Model 632 Bobcat or specifically in the consequences of operating the Model 632 Bobcat without a rollover protection system (hereinafter referred to as ‘ROPS’), which refers to the bars and cage around and on top of the driver of the Model 632 Bobcat or similar equipment designed to protect the driver in the event the piece of equipment tips over;
“D. They knew that the physical area where the Model 632 Bobcat was to be used was such that it was physically impossible to operate the Model 632 Bobcat or similar equipment with the ROPS;
“E. They knew that operating the Model 632 Bobcat involved in this accident without the ROPS would cause serious injury and/or death to the operator of this equipment or that this was substantially certain to happen;
“F. They knew that the Model 632 Bobcat which was involved in this accident had been rented to replace a similar piece of equipment which had broken and was in need of repair;
“G. They knew that the similar piece of equipment which had been replaced by the Model 632 Bobcat being operated by the decedent at the time he was killed had been specially modified so that its arms could not be raised over a certain level, making the possibility of its tipping over practically nil, and because of that safety modification, the ROPS had been removed;
“H. They knew prior to the renting of the Model 632 Bobcat involved in this accident that whatever piece of equipment was rented to replace the front end or skid steer loader which was in need of repair would have to have the ROPS removed in order to allow it to work within the physical confines of the area assigned for it (which area was where the decedent was ultimately killed);
“I. They knew that the Model 632 Bobcat rented to replace the similar piece of equipment which was being repaired was not modified so as to prevent its arms from extending to such height that, when loaded, the Bobcat was certainly or substantially certain to tip over and cause serious injury and/or death;
“J. They knew that the Model 632 Bobcat would be used to lift pulp or broke above that safe height, thereby necessitating the extension of its arms above that safe height, thereby making its tipover certain or substantially certain to occur, and serious injury and/or death certain or substantially certain to follow.”

For an employee to recover in tort from his employer or co-employees, the injury must have been caused by an intentional act, in which the tortfeasor consciously desires to bring about the physical result of his act, or has the belief that the result of his act was substantially certain to follow from his conduct. Fallo v. Tuboscope Inspection, et al., 444 So.2d 621 (1984); Bazley v. Tortorich, 397 So.2d 475 (La.1981). The term “substantially certain” may be restated as “virtually sure” or “nearly inevitable”. Reagan v. Olinkraft, Inc., 408 So.2d 937 (La.App. 2nd Cir.1981), writ denied, 412 So.2d 1095 (La.1982).

The decedent had been working with Georgia Pacific for about one month when the accident occurred. While it was common procedure to allow a new employee to work with equipment only after he was adequately trained, no one could state positively that Walker had been so trained. The decedent was using a Model 632 Bobcat which was leased by Georgia Pacific while its Bobcat was being repaired.

Because the owned Bobcat had to be used in a confined area, the cab or rollover protection system had been removed. However, the arms of the owned Bobcat had been modified so that they could not be raised past a certain height, thereby making a tipover virtually impossible.

The rollover protection system had also been removed from the leased Bobcat, which was common practice when a rented Bobcat was to be used in the particular area where the accident occurred, but no modification was made to the arms of the rented Bobcat.

There was conflicting evidence presented as to the general use of the Bobcat. The affidavit of Aristide Treloar, an electrical and instrument maintenance man at Georgia Pacific, stated that both the rented and owned Bobcats were routinely used to reload broken bits of wood (broke) into the repulper, which the decedent was doing at the time of the accident.

The safety man for Georgia Pacific, Walter Bradley, stated that the Bobcat was used only to remove the broke from the floor and place it by the repulper. This was corroborated by Loris R. Jacobs, the pulp machine superintendent. A forklift was then used to load the broke into the repulper. This procedure was used because the modified arms would not extend high enough to reach the repulper. When the unmodified arms of the Bobcat were raised to the height necessary to go over the retaining wall of the repulper with a loaded bucket, a dangerous situation was created.

However, plaintiff must show that defendants were aware that a death was substantially certain to occur. The mere knowledge that a machine is dangerous and therefore that its use creates a high probability that someone will eventually be injured is not sufficient. Maddie v. Plastic Supply & Fabrication, 434 So.2d 158 (La. App. 5th Cir.1983), writ denied, 435 So.2d 445 (La.1983).

Walter Bradley determined that the modified Bobcat was safe in the only use he was aware of, moving the broke next 'to the repulper. He did not know that another Bobcat had been rented and was in use, nor did he know that it was not modified. We find no knowledge, awareness or inference of an awareness that a death was substantially certain to occur.

Loris Jacobs, the pulp machine superintendent, knew a rented Bobcat was in use at the time of the accident. He stated, however, that he thought the limited arm extension of the modified Bobcat was standard and that he had never personally operated a Bobcat.

Although he may have been negligent in not closely analyzing the differences in the rented and owned Bobcats, in not seeing that the decedent was more thoroughly trained in the machine’s operation and in not making sure the rented Bobcat was modified, we find no evidence to support a finding that he was “substantially certain” or “virtually sure” that a death would result. See, Erwin v. Excello Corporation, 387 So.2d 1288 (La.App. 1st Cir.1980), writ denied, 396 So.2d 1242, 397 So.2d 1363 (La.1981).

The plaintiff, in brief, acknowledges that there is no evidence to support a finding that Dudley Grantham is liable.

There is insufficient evidence of an intentional act or a belief that a death was substantially certain to result from an act on the part of Georgia-Pacific either through the named defendants or others. We find no error in the dismissal of the suit against Georgia-Pacific.

We need not consider defendants’ arguments concerning the exception of no cause of action.

For these reasons, the judgment is affirmed with costs assessed to the plaintiff.

AFFIRMED.

      . Also made defendant is Clark Equipment Company who is not a party to this appeal.

      . La.R.S. 23:1032 provides:
      "The rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, or relations, against his employer, or any principal or any officer, director, stockholder, partner or employee of such employer or principal, for said injury, or compensable sickness or disease. For purposes of this Section, the word "principal” shall be defined as any person who undertakes to execute any work which is a part of his trade, business or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof.
      Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.
      The immunity from civil liability provided by this Section shall not extend to: 1) any officer, director, stockholder, partner or employee of such employer or principal who is not engaged at the time of the injury in the normal course and scope of his employment; and 2) to the liability of any partner in a partnership which has been formed for the purpose of evading any of the provisions of this Section."

      . We note that the depositions of the defendants indicate that they did not entertain a desire to bring about the result and were not substantially certain that result would follow.


author: CARTER, Judge:

text:
    Fred D. BOSLEY, Sr. v. PAYNE & KELLER OF LOUISIANA, INC.
    No. 83 CA 0331.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Rehearing Denied April 3, 1984.
    Writ Denied June 1, 1984.
    Raymond L. Simmons, Baton Rouge, for plaintiff-appellant Fred D. Bosley.
    R. Michael Caldwell, Baton Rouge, for defendant-appellee Payne and Keller of Louisiana, Inc.
    Before PONDER, WATKINS and CARTER, JJ.
   CARTER, Judge:

This is an appeal from a trial court judgment denying plaintiff’s claim for workmen’s compensation benefits.

FACTS

On May 5, 1982, Fred D. Bosley, Sr. was employed as a laborer and “clean-up man” for Payne & Keller at the Triad Chemical Plant in Donaldsonville, Louisiana. Bosley claims that on or about that date, he was overcome with a tired and sleepy feeling. Bosley theorizes that he came in contact with radioactive chemicals, which initially caused a burning sensation on his face and neck. Bosley never felt anything drip or drop on him, but alleges that a co-worker, who did not testify at trial, saw a liquid leak on Bosley’s face.

Upon reporting the incident to his employer, Bosley was sent to see Dr. Glenn Schexnayder, a company physician. Plaintiff initially complained only of the burning sensation on his face and neck, which Dr. Schexnayder diagnosed as contact dermatitis. On May 11, 1982, Bosley again saw Dr. Schexnayder. At that time, the rash had cleared, and Bosley related symptoms of fever, diarrhea, heartburn, and headaches. Dr. Schexnayder attributed these new symptoms to a viral infection.

On May 22, 1982, Dr. James Freeman, who is board certified in nuclear medicine, examined Bosley. On the date of the examination, Bosley had no skin lesions, and Freeman found no objective evidence of direct exposure to radiation. Freeman diagnosed Bosley’s condition as acute pan-creatitis, which can be caused by viral disease, trauma, alcoholism, or radiation exposure.

Dr. H.A. Samson was consulted on the Bosley case on July 1, 1982. Using the medical history supplied by Bosley, reports of the lab tests run by Freeman, and a physical examination, Samson opined that Bosley had sialadenitis (inflammation of the parotid gland). Dr. Samson attributed his finding to the increased amylase level and the medical history. Samson admitted that if the medical history was incorrect and Bosley had not been exposed to radiation, his diagnosis would be incorrect. He also acknowledged that pancreatitis or par-otitis (mumps) could cause increased amylase levels and that Bosley’s symptoms, viz., diarrhea and vomiting, could be caused by numerous things besides radiation exposure.

An on-plant inspection conducted by OSHA, following a complaint filed by Bos-ley, revealed no irregularities and no evidence of radioactive leak or exposure.

TRIAL COURT JUDGMENT

Upon finding that plaintiff had failed to carry his burden of proving that his malady was caused by exposure to radiation, the trial court rendered judgment in favor of defendant, denying plaintiff’s claim for permanent, partial disability benefits, and dismissed plaintiff’s suit.

Plaintiff appeals, assigning the following errors:

(1) The trial court erred in finding that plaintiff failed to prove that an “accident” occurred;
(2) The trial court erred in failing to apply the presumption that an employee in good health, who sustains an accident and thereafter suffers from a disability, is disabled as a result of the accident; and,
(3)The trial court erred in not finding that plaintiff suffered a mental disability caused by anxiety.

ASSIGNMENT OF ERROR NO. 1

The question presented in this assignment is factual: Did plaintiff establish a disability which was causally related to an employment accident?

In order to recover workmen’s compensation benefits, plaintiff must show (1) an accident, (2) a disability, and (3) a causal connection between the accident and disability. Landry v. Benson and Gold Chevrolet, 398 So.2d 1262 (La.App. 4th Cir. 1981); Cormier v. Aetna Ins. Co., 368 So.2d 461 (La.App. 3rd Cir.1979), writ denied, 371 So.2d 620 (La.1979). The claimant must show more than a possibility that the disability was caused by or aggravated by the employment. Bruney v. City of Lake Charles, 386 So.2d 950 (La.App. 3rd Cir.1980); Quine v. Ideal Cement Co., 351 So.2d 1303 (La.App. 1st Cir.1977), writ denied, 353 So.2d 1035 (La.1978).

As in any other civil suit, the plaintiff in a workmen’s compensation case has the burden of establishing the disability and the causal relation between it and the accident by a preponderance of the evidence. Gremillion v. Babst Services, Inc., 418 So.2d 637 (La.1982).

In the-instant case, there is insufficient evidence that Bosley suffered an employment accident. A claimant is entitled to compensation benefits only where he has sustained “personal injury by accident arising out of and in the course of his employment.” LSA-R.S. 23:1031; Gremillion v. Babst Services, Inc., supra. The term “by accident” involves an examination of whether there is an accidental result or effect on the employee, rather than whether the disability had an accidental cause. Ferguson v. HDE, Inc., 270 So.2d 867 (La.1972). The evidence is not convincing that there was an accidental injury to Bosley occasioned by exposure to radioactive chemicals. Bosley could not point to a specific instance where he came in contact with radioactive materials, and the investigations by OSHA failed to establish irregularities or incidents of radiation leaks or exposure to anyone. The medical testimony does not attribute his pancreatitis to exposure to radiation. The evidence more clearly reflects that the pancreatitis is the result of a viral infection, perhaps mumps.

In Prim v. City of Shreveport, 297 So.2d 421, 422 (La.1974), the Supreme Court stated:

“Although procedural rules are construed liberally in favor of workmen’s compensation claimants, the burden of proof, by a preponderance of the evidence, is not relaxed. Thus, the testimony as a whole must show that more probably than not an employment accident occurred and that it had a causal relation to the disability. If the testimony leaves the probabilities equally balanced, the plaintiff has failed to carry the burden of persuasion. Likewise, the plaintiffs case must fail if the evidence shows only a possibility of a causative accident or leaves it to speculation or conjecture.” (Citations omitted)

The preponderance of the evidence refutes plaintiffs theory that exposure to radiation played any part in his condition. There is simply no evidence of radiation exposure to this plaintiff, and there is no showing that plaintiff was injured by accident.

Because we find no merit in plaintiffs first assignment of error, we need not address the remaining issues.

For these reasons, the judgment of the trial court is affirmed at plaintiffs cost.

AFFIRMED.


author: SHORTESS, Judge.

text:
    Tommy A. THOMAS v. RPM CORPORATION, et al.
    No. 83 CA 0359.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Rehearing Denied April 3, 1984.
    Writ Denied June 1, 1984.

      Ralph W. Stephenson, Jr., Baton Rouge, Wm. Henry Saunders, Jena, for plaintiff, appellant.
    James E. Moore, R. Michael Caldwell, Franklin, Moore & Walsh, Baton Rouge, for defendants, appellees.
    Before SHORTESS, LANIER and CRAIN, JJ.
   SHORTESS, Judge.

This is a suit for worker’s compensation benefits arising out of an automobile accident which occurred on January 12, 1982. Plaintiff, Tommy A. Thomas, had left his employment at RPM Corporation (defendant) and was giving two fellow employees, Kevin Maynard and Tony Zieto, a ride home in a vehicle owned by defendant. At approximately 6:00 p.m., after dropping both of them off, plaintiff was attempting to enter Airline Highway from Highland Road to go home when he collided with a vehicle which ran the red light at that intersection. Plaintiff sustained serious injuries to his back.

The trial court rendered judgment for defendant, finding that “Mr. Thomas was not in the course and scope of his employment at the time of this accident because, as the defendants contend, the truck had merely been loaned to [Thomas] as a gratuity, for him to use until his vehicle was repaired.” Plaintiff appealed and specified as error the trial court’s “dismissing plaintiffs claim for workers compensation, medical payments, and penalties on the grounds that company furnished transportation for employees was a loan.”

Generally, for an injury to be compensable under our worker’s compensation law, the injury must be “by accident arising out of and in the course of [the claimant’s] employment_” La.R.S. 23:1031. In order to determine if an employee experienced an accident “arising out of” his employment, it must be determined whether the accident was the result of some risk to which the employee was subjected in the course of his employment and to which he would not have been subjected had he not been so employed. The “during the course of” element of the compensation statute brings into focus the time and place relationship between the accident and the employment. Guidry v. Sline Industrial Painters, Inc., 418 So.2d 626 (La.1982); Reynolds v. Be-Neat Tank Cleaning Corp., 425 So.2d 881 (La.App. 4th Cir.1983). Ordinarily, an employee injured while going to or returning from work is not entitled to compensation because the injuries are considered as not arising during the course of the employment. Gardner v. Industrial Indemnity Company, 212 So.2d 452 (La.App. 1st Cir.1968). However, this rule is subject to a number of jurispru-dentially established exceptions. Such exceptions arise, for example, when the accident occurs during a trip the employee is making in the interest of his employer’s business or pursuant to his employer’s order, or when the employer has interested himself in the transportation of the employee as an incident to the employment agreement, or where the employee was doing work for his employer under circumstances where the employer’s consent could be fairly implied. Reynolds, 425 So.2d at 883. See also Landry v. Benson & Gold Chevrolet, 398 So.2d 1262 (La.App. 4th Cir.1981); Sanders v. Hercules Sheet Metal, Inc., 377 So.2d 486 (La.App. 4th Cir.1979), modified on other grounds, 385 So.2d 772 (La.1980); Gardner, 212 So.2d at 455.

In this case, plaintiff testified that on the day of the accident Bob Long, part owner and shop supervisor, “asked me if I would mind picking up Tony because his truck was broken down.... ” Plaintiff further testified that the use of the truck was given him in lieu of a pay raise:

Q Now, after Mr. Glenn Brown terminated his employment at RPM, you did not get a raise in salary, did you?
A No, Sir.
Q At some point in time Mr. Tony Zieto got a riase (sic); is that right?
A He took over the general foreman’s job, that’s right. Mr. Long said they couldn’t get me a raise right then, but he said, “I’ll get you use of the truck.” And I said, “That’s fine.”
Q Well, Mr. Long isn’t here today, so we have no way—
A I have no reason to lie to you or anybody else.

Defendant did not directly refute either of plaintiff’s assertions concerning statements made by Bob Long. In fact, Richard Blackstone, an owner of defendant, testified that Bob Long had authority for the day-to-day operation of the shop and authority over the use of vehicles. Mr. Richard LeBlanc, another owner, testified that his testimony would be the same as Blackstone’s concerning company policy. Both witnesses testified that the truck was not part of any “employment package,” but both witnesses also testified that at the time of the accident neither was very involved in or familiar with the day-to-day operations of defendant. Additionally, Blackstone stated that Bob Long was “general manager” of the shop.

Plaintiff further testified that he used the company-supplied pickup truck “to drive back and forth to work and when I had to come in at night or on the weekend.” Further, “I used this truck when I had to deliver something on the way home.” Apparently, plaintiff was frequently called upon by his employer after hours to do work involving use of the truck. Plaintiff related a particular incident in which he was called on the weekend to help transport a trade show display from the Centroplex in Baton Rouge back to the RPM office at La Belle. Plaintiff also testified that on the day of the accident he had picked up Kevin Maynard and Tony Zieto “because neither one of them had a ride,” and stated that “Tony had been driving to work with me about a month.”

Ann McCormick, a secretary for defendant at the time, testified that plaintiff started using the truck in October and used it until the accident; that plaintiff worked a forty-hour week (four days a week, ten hours a day, with Friday, Saturday and Sunday off); that plaintiff was sometimes called in on Fridays to work, for which time he would be paid overtime; that the company paid for the gasoline used in the truck.

Tony Zieto testified that Bob Long told him the only reason plaintiff was using the truck was that his own personal truck was broken. However, Zieto further testified that this discussion took place “some time in December.” We must note at this point that the testimony of plaintiff’s wife, Glyn-da, and Ricky Lee, another fellow employee, firmly established that plaintiff first acquired use of the truck in late September or early October. Plaintiff testified that his truck was repaired around October 22, 1982. This means that Bob Long’s assertion to Zieto (that plaintiff was using RPM’s truck because his was broken down) was made after plaintiff’s truck was repaired. The record establishes that plaintiff had the use of the vehicle from late September or early October, 1981, until the time of the accident, approximately four months.

Lastly, we find it probative that Tony Zieto was given use of the replacement truck after plaintiff’s accident. Also, at all times RPM paid for gas and oil for the truck through an account at a nearby service station.

The trial court’s reasonable evaluations of credibility in worker’s compensation cases are accorded great weight by the reviewing court. Berry v. Livingston Roofing Co., 403 So.2d 1247 (La.1981). However, this deference carries with it a concomitant responsibility: “In evaluating the evidence, the trier of fact should accept as true the uncontradicted testimony of a witness, even though the witness is a party, at least in the absence of circumstances in the record casting suspicion on the reliability of this testimony.” West v. Bayou Vista Manor, Inc., 371 So.2d 1146, 1147 (La.1979). In that case, the Supreme Court noted that “the appellate court is not required by [the deference] principle to affirm the trier of fact’s refusal to accept as credible uncontradicted testimony where the record indicates no sound reason for its rejection and where the factual finding itself has been reached by overlooking applicable legal principles.” West, 371 So.2d at 1150.

Here, neither the testimony of plaintiff nor his credibility was challenged. Actually, his version of the facts paints a consistent and highly probable picture of the circumstances surrounding his use of the company vehicle. Furthermore, his testimony as to the statements of Bob Long, part owner of the corporation and shop manager at the time of the accident, tend to prove why plaintiff had use of the vehicle. Nevertheless, the trial court apparently chose to believe the testimony of two of defendant's owners who admitted that they were not familiar with the day-to-day operations of the company, and could offer only hearsay statements allegedly made by Bob Long at a board meeting to explain why plaintiff was using the truck. It also ignored the statements plaintiff testified were made by Bob Long, which statements were entirely consistent with the facts and circumstances as developed in the record. The statements of an employer regarding the occurrence of an accident in a worker’s compensation proceeding have been admitted as proof of the accident itself, being an admission against interest by the employer, even when the admission was hearsay related by a party opponent. Clifton v. Arnold, 87 So.2d 386 (La.App. 1st Cir.1956).

A material statement made by an agent for a principal is admissible at trial when offered by a party opponent, Pennington v. F.G. Sullivan, Jr., Contractors, Inc., 416 So.2d 192 (La.App. 1st Cir. 1982), writ denied, 421 So.2d 248 (La.1982), but the agent’s authority to make such a statement must be established. Pacholik v. Gray, 187 So.2d 480 (La.App. 3rd Cir. 1966).

We note the opinion of the Second Circuit in Bobo v. Sears, Roebuck and Company, 308 So.2d 907 (La.App. 2nd Cir.1975). The court in Bobo used an admission against interest made by a sales clerk of the defendant and related to the court by a witness. The authority of the clerk to make the statement was established only by the court’s noting that the witness testified that the “person who made the statement” had waited on her, brought clothing out and put it on the clothes rack, and waited on other customers. The court held that this would bring the admission (that all employees had the responsibility of reporting the broken mirror which cut plaintiff) within the scope of the employees’ duty and authority sufficiently to bind the employer. Bobo, 308 So.2d at 910.

We find that although the truck may not have been part of the original “employment package” that defendant offered plaintiff, it clearly was made part of plaintiff’s compensation by the shop manager who possessed at least such apparent, if not actual, authority. Likewise, he possessed the requisite authority to make the statements he did for defendant corporation, and as such, they must be taken as admissions against interest here.

Furthermore, we find that the circumstances surrounding plaintiff’s use of the truck do not indicate that it was a mere loan to plaintiff, but instead that it was given to him at least partly in the company’s interest. Plaintiff was called upon after his regular hours to use the truck for company business and to transport fellow employees to and from work.

We find that the totality of the circumstances present in this case taken with the admissions of Long indicate that plaintiff was in the course and scope of his employment on the date of his injury-producing accident. Johnson v. Aetna Casualty & Surety Co., 387 So.2d 1340 (La.App. 1st Cir.1980), writ denied, 393 So.2d 746 (La.1980). We turn now to consider the extent of his disability.

After the accident, plaintiff was seen at Our Lady of the Lake Hospital Emergency Room by Dr. Vance G. Byars. At the suggestion of a friend he contacted Dr. John J. McCutchen, a neurologist in Houston, Texas, when his symptoms worsened. McCutchen saw plaintiff on February 4, 1982, and hospitalized him at the Twelve Oaks Medical Center for diagnostic testing. During this time, in addition to McCutchen, plaintiff was seen in consultation by Dr. T.R. Williams, a urologist, and Dr. L.C. Detenbeck, an orthopedic surgeon. He was hospitalized from February 5 through February 12, 1982. Laboratory electro-myography demonstrated an L-4, L-5, S-l nerve root irritation bilaterally. Myelogra-phy revealed blunting of the left nerve root sleeve below the L4-5 interspace. Lumbar discography revealed a normal L8-4 disc while the L4-5 and L5-S1 discs were degenerated with rupture of the anulus and reproduction of radicular pain. X-rays demonstrated narrowing of C4-5 and C5-6 interspaces as well as L5-S1 interspace. McCutchen’s diagnosis was (1) mechanical spine disease with stage III discography, L4-5, L5-S1 and cervical spondylosis, (2) cerebral concussion with post-concussion syndrome, (3) thoracic outlet syndrome, right, and (4) impotence secondary to diagnosis number 1.

Dr. McCuthen’s deposition was taken in lieu of his live testimony. Therein, he testified that he felt that plaintiff was in substantial pain; that surgery was recommended to treat the ruptured disc in his low back; that light work would aggravate his medical condition and produce increased pain; and that plaintiff was totally disabled to do hard manual labor.

Defendant had plaintiff examined by Dr. Baer L. Rambach, an orthopedic surgeon. His report was introduced in evidence and states that in his opinion plaintiff sustained muscle and ligament strain to his cervical and lumbosacral spine at the time of the accident. He also felt that plaintiff was improving and should be able to return to work. Apparently, he did not see the results of the electromyography, myelogra-phy, or discography. His x-rays did show narrowing of the disc spaces at C4-5 and C5-6, but he attached minimal significance to this finding.

We find that the total medical evidence satisfies plaintiff’s burden of proof and shows that he is presently totally disabled for purposes of worker’s compensation.

The records contain exhibits to verify incurred recoverable medical expenses as follows:

Twelve Oaks Pharmacy 23.65
Twelve Oaks Pharmacy 20.00
Twelve Oaks Pharmacy 49.65
Eckerd’s 6.95
Twelve Oaks Pharmacy 120.00
Twelve Oaks Pharmacy 20.00 •
K & B 31.69
K & B 63.13
K & B 68.52
K & B 21.06
Wood Radiology 70.00
Wood Radiology 71.00
McCutchen bill 1,890.00
Twelve Oaks 3,681.90
Our Lady of the Lake 55.00
Dr. Williams 75.00
Dr. Detenbeck 250.00
Wood Radiology 201.00
Court Reporter 154,40
$6,872.95

Plaintiff is entitled to recover $6,872.95 for his incurred medical expenses. His right to reasonable future medical expenses is reserved to him.

Plaintiff seeks penalties and reasonable attorney’s fees per La.R.S. 23:1201.2 because defendants were allegedly arbitrary, capricious, or without probable cause when they denied his claim. We find that a serious issue was involved in this case as to whether plaintiff was in the course and scope of his employment at the time of his accident. Defendants were not arbitrary, capricious, or without probable cause in litigating this issue, and plaintiff is not entitled to the benefits provided in La.R.S. 23:1201.2.

For the above reasons, the judgment of the trial court is reversed. There is judgment in plaintiff’s favor and against defendants, RPM Corporation and Hanover Insurance Company (defendant’s compensation insurer), jointly and in solido, for weekly compensation payments during disability at the maximum rate of $183.00, commencing on January 12, 1982, with legal' interest on each weekly installment from date of delinquency until paid. Plaintiff is also awarded medical expenses incurred until the date of trial in the sum of $6,872.55, together with legal interest thereon from due date until paid. Shatoska v. International Grain Transfer, Inc., 480 So.2d 1255 (La.App. 1st Cir.1983). Plaintiffs right to recover future medical expenses resulting from this accident is reserved to him. Defendants are cast with all costs of these proceedings, including Dr. McCutchen’s expert witness fee of $300.00.

' REVERSED AND RENDERED.

      . Bob Long did not testify. Apparently, at the time of trial he was no longer associated with defendant. He had been subpoenaed by plaintiff but had car trouble and did not appear. According to representations of both counsel during oral argument and in response to court questions, the trial court laid the matter over for thirty days so Long’s testimony could be taken, but no effort was made to take the testimony by deposition or otherwise.


author: SAVOIE, Judge.

text:
    Ray K. JONES v. ARGONAUT INSURANCE COMPANY.
    No. 83 CA 0383.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Rehearing Denied April 3, 1984.
    Writ Denied May 25, 1984.
    Stephen M. Irving, Baton Rouge, for plaintiff-appellee Ray K. Jones.
    Robert L. Kleinpeter, Baton Rouge, for defendant-appellant Argonaut Ins. Co.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   SAVOIE, Judge.

Defendant, Argonaut Insurance Company, appeals the trial court’s award of the maximum allowable workmen’s compensation benefits-for plaintiff’s alleged occupational disease.

Plaintiff, sole owner and only employee of Kenwyde Industries, Inc. (Kenwyde), contracted to perform draftsman and design engineering services for Allied Chemical Company in Baton Rouge. These services commenced on April 27, 1977. On August 8, 1981, plaintiff allegedly developed a chronic lung disease as a result of fumes emanating from the adjacent Rollins Environmental Services waste disposal site. He contends that such disease totally disabled him. Thereafter, Allied terminated plaintiff’s contract for draftsman and design engineering services. On September 10, 1981, plaintiffs attorney notified defendant, the workmen’s compensation insurer of Kenwyde, that benefits were being sought. After being unable to settle this dispute, plaintiff filed suit on February 24, 1982.

The trial court found that plaintiff had become totally disabled as a result of his exposure to fumes while working for Ken-wyde at the Allied Chemical plant. It further found that it was not necessary that the employer against whom the compensation benefits were being claimed be responsible for creating the detrimental conditions leading to an injury. Accordingly, the trial court awarded plaintiff the maximum allowable benefits under the Act.

Defendant appeals, assigning as error the trial court’s awarding of workmen’s compensation benefits for plaintiff’s alleged occupational disease or disability resulting from an accident.

L.S.A.-R.S. 23:1031.1 provides that every employee disabled by an occupational disease shall be entitled to compensation as if he had received personal injury by accident arising out of and in the course of his employment. Further, L.S.A.-R.S. 23:1031.1(B) defines an occupational disease as “only that disease or illness which is due to causes and conditions characteristic of and ‘peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease.” As such, the threshold question to plaintiff’s recovery is whether he sustained an occupational disease as a result of causes and conditions characteristic of and peculiar to his particular occupation, process, or employment. This finding is one of fact.

Although great weight is to be given the trier of fact’s findings, we may overturn those findings if they are manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Herein, we find that the trial court was manifestly erroneous in concluding that plaintiff had proven by a preponderance of the evidence and to a legal certainty that his alleged occupational disease was the result of causes and conditions characteristic of and peculiar to his employment. See Guillory v. New Amsterdam Casualty Company, 244 La. 225, 152 So.2d 1 (1963); and Daney v. Argonaut Insurance Company, 421 So.2d 331 (La. App. 1st Cir.1982).

The record herein clearly indicates that plaintiff was a very heavy smoker and had a long history of bronchitis. Dr. James White, plaintiff’s own physician, testified unequivocally that the initial and continuing cause of plaintiff’s chronic bronchitis was his smoking.

Contrarily, plaintiff stated that fumes emanating from Rollins' waste disposal site caused his condition. In support of his contention, Greg J. Gazperecz, an expert in air quality emissions, testified that the air quality at Allied Chemical was adversely affected by such fumes. However, while Dr. White stated that he believed that there was a syngeristic effect between cigarette smoking and industrial fumes, he concluded that such was not the case here.

We find from the foregoing facts that the trial court was manifestly erroneous in concluding that plaintiff had by a preponderance of the evidence and to a legal certainty proved that his condition was the result of causes and conditions characteristic of and peculiar to his employment. We find that plaintiffs condition is non-com-pensable under Louisiana’s Workmen’s Compensation laws.

For the above and foregoing reasons, judgment of the trial court is reversed. Plaintiff is to pay all costs.

REVERSED.

      . L.S.A.-R.S. 23:1031.1 provides, in pertinent part, that:
      "A. Every employee who is disabled because of the contraction of an occupational disease as herein defined, or the dependent of an employee whose death is caused by an occupational disease, as herein defined, shall be entitled to the compensation provided in this chapter the same as if said employee received personal injury by accident arising out of and in the course of his employment.
      "B. An occupational disease shall mean only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease.” (Emphasis added).


author: LANIER, Judge.

text:
    Ernest MEADORS v. PACIFIC INTERNATIONAL PETROLEUM, INC., et al.
    No. 83 CA 0385.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Rehearing Denied April 3, 1984.
    Writ Denied June 1, 1984.

      James E. Kuhn, Denham Springs, for plaintiff Ernest Meadors.
    John C. Christian, M. Taylor Darden, and David N. Schell, Jr., New Orleans, for defendant Mid-South Exploration.
    Before SHORTESS, LANIER and CRAIN, JJ.
   LANIER, Judge.

Mid-South Exploration Company, Inc. (Mid-South) suspensively appeals from a judgment of the trial court cancelling an oil, gas and mineral lease granted to Mid-South by plaintiff, Ernest Meadors.

FACTS

On February 9, 1976, Ernest Meadors was admitted to the hospital for surgery for a stomach ulcer. He was discharged on February 26, 1976. On February 18, plaintiff was visited in the hospital by his brother, James B. Meadors, and Arthur B. Hammond, an independent lease broker who was seeking to obtain a mineral lease for Mid-South on the Meadors’ land. Hammond had prepared a lease for plaintiff's signature, but upon being advised by plaintiff that he was in too much discomfort to talk business, Hammond agreed to meet with plaintiff after he left the hospital.

The facts are in dispute from this point. Hammond asserts that he left the hospital with the unsigned lease which he had already dated. Hammond further testified that he later met with Ernest Meadors and his two brothers at Ernest Meadors’ home sometime after Meadors’ release from the hospital. Hammond could not pinpoint the exact date this meeting occurred; however, he did remember discussing the major provisions of the lease with all three brothers after which each signed a separate lease.

The draft Hammond made out to Ernest Meadors for the lease was dated March 1, 1976, and there is strong indication that this was the date the lease was signed as well.

The lease that Ernest Meadors signed was the one that Hammond had originally taken to the hospital. The date on it reads “February 18, 1076 [sic]” — the incorrect figure in the year resulting from a typing error on Hammond’s part.

Mrs. Meadors deposited the draft, and all payments made under the lease were accepted by the Meadors until October of 1979 when the present suit was filed.

Plaintiff originally filed a petition of mandamus against the Livingston Parish Clerk of Court to cancel the lease. The suit was later amended to an ordinary proceeding to cancel the lease. The allegations of the original petition as amended requested cancellation of the lease on the following grounds:

1) The lease had expired on its face being dated February 18, 1076;
2) At the time of the alleged execution of the lease the plaintiff, Ernest Mea-dors, was incapable of execution of the contract;
3) That there was no consideration paid to Mr. Meadors; and
4) Fraudulent conduct of the defendant.

Defendant, Mid-South, denied all grounds asserted by Meadors for cancellation. It further alleged that the lease was executed on or about March 1, 1976, that plaintiff accepted all payments due on the lease, and that plaintiff was guilty of laches and thus estopped from contesting the validity of the lease.

After trial on the merits, the trial judge found that the lease was executed on February 18,1976, and Meadors was temporarily deranged on that date and thus incapable of executing the lease. The trial judge then rendered judgment cancelling the lease on the basis that there was a lack of consent necessary to bring about a valid contract which “effectively resulted in lack of consideration to the plaintiff.”

On appeal, Mid-South lists the following two assignments of error:

1. The court erred in cancelling the mineral lease on the grounds that plaintiff Meadors did not have capacity to contract, and thus there was failure of consent between the parties which resulted in a lack of consideration for granting the mineral lease. In particular, the court:
(a) Erred in holding that the mineral lease was executed on February 18, 1976, while Meadors was in the hospital.
(b) Erred in saying that even assuming the lease was executed on March 1, 1976, Meadors was incapable of executing any document on that date; and
(c) Erred in finding failure of consent and lack of consideration in the granting, of this lease.
2. Additionally, the court erred in not holding that, by plaintiffs acceptance of the bonus and rentals payable under the lease, plaintiff had ratified the lease and was estopped from contesting its validity.

PROOF OF CAPACITY TO CONTRACT

It is necessary to the validity of a contract that the parties be legally capable of contracting. La.C.C. art. 1779. In the absence of a special exception the presumption is that all persons possess the capacity to contract. La.C.C. art. 1782; First National Bank of Shreveport v. Williams, 346 So.2d 257 (La.App. 3rd Cir.1977). La. C.C. art. 1788 recognizes insanity as evidenced by a judgment of interdiction, as one exception to the presumption. That exception is not applicable here. Another is recognized by La.C.C. art. 1789 which provides that “A temporary derangement of intellect, whether arising from disease, accident or other cause, also creates an incapacity pending its duration, provided the situation of the party and his incapacity were apparent”. The plaintiff must prove that the mental incapacity existed at the time of the contract. See Emerson v. Shirley, 188 La. 196, 175 So. 909 (1937); Kleiner v. Ciko, 417 So.2d 54 (La.App. 1st Cir.1982), writ denied, 420 So.2d 457 (1982).

The exceptions to the presumption of capacity to contract must be shown quite convincingly and by the great weight of the evidence. “Where doubt exists as to the showing of an exception, the presumed capacity to contract prevails.” First National Bank of Shreveport, 346 So.2d at 264. The trial court based its decision can-celling the lease on La.C.C. art. 1789. We hold that the decision of the trial court that the proof offered effectively rebutted the presumption of capacity to contract was in error and reverse.

DATE LEASE WAS SIGNED

In order to prove mental incapacity at the time of the execution of the contract, the plaintiff must first prove the time of execution. The trial judge concluded that the mineral lease in question was executed on February 18,1976, while plaintiff was in the hospital. This conclusion was based on the fact that the lease bears the date of February 18, and the trial court concluded that the defendant did not prove a different date. After review of the record, we are convinced that this finding of fact by the trial judge was clearly wrong.

Parole evidence is admissible between the parties to a contract to establish the correct date of execution of a contract when the date on the instrument is erroneous. Mount Olive Bank v. Jackson Air Taxi, Inc., 356 So.2d 1090 (La.App. 2d Cir.1978), writ denied, 359 So.2d 207 (La.1978); Russell v. Armington, 162 So.2d 91 (La. App. 4th Cir.1964), application denied, 246 La. 350, 164 So.2d 352 (1964).

Plaintiff was hospitalized between February 9, 1976, and February 26, 1976. It is clear from the testimony elicited at trial that the lease was not signed while Ernest Meadors was in the hospital, but was signed at Meadors’ home sometime after his discharge. Plaintiff makes much of the fact that the lease contained the following language:

“THIS AGREEMENT, entered into effective as of February 18, 1076[sic].”

The lease concludes:

“IN WITNESS WHEREOF, this instrument is executed as of the date first above written.”

Hammond testified that he went with James Meadors to Ernest Meadors’ hospital room on February 18, 1976, with the dated lease, but left when Meadors indicated he was in too much discomfort to talk business. Both James Meadors and Sam Digi-rolamo, plaintiff’s son-in-law who was visiting Meadors at the time, testified that plaintiff did not execute the lease that day in the hospital. On the contrary, all of the witnesses who were present testified that the lease was signed by Meadors at his home after he was discharged from the hospital. The plaintiff himself admitted that he signed the lease at his home. Referring at trial to his deposition he testified:

A. That was the day that I signed the lease.
Q. The following question is where did that take place?
A. At my home.

It is obvious that plaintiff’s lease was not signed on February 18, 1976, while he was hospitalized, but at his home sometime after his discharge on February 26, 1976. The trial judge’s holding on this point was therefore in error.

There was considerable evidence in the record that the lease was signed on March 1, 1976, at plaintiff’s home. None of the witnesses, including Hammond, could pinpoint the actual date the lease was signed, only that it was after Meadors’ discharge from the hospital on February 26, 1976. However, the bonus draft executed by Hammond and given to plaintiff as consideration for the lease, was dated March 1,1976, and Hammond testified that it would be unusual for a lease and its accompanying draft to be signed on different dates. There was no evidence refuting this or suggesting the lease was signed on another date. We therefore find that based upon a preponderance of the evidence the lease was signed by Ernest Mea-dors on March 1, 1976.

CAPACITY TO CONTRACT

The question now becomes, did Ernest Meadors have the capacity to contract on March 1, 1976, when he signed the lease? The trial judge, in the written reasons for judgment which he adopted, stated that “even assuming that one concludes that the date the lease was actually signed was March 1, 1976, Mr. Meadors was nonetheless incapable of executing any documents on that date.” The court found that Mea-dors was “temporarily deranged” under La.C.C. art. 1789, due to his illness and the medication he had been given. The appellant argues that, once again, the court was clearly in error. We agree.

The record reflects the following evidence. Meadors was released from the hospital on February 26, 1976. On the following Sunday, his wife gave him some medicine to control diarrhea and vomiting. On Monday morning (March 1, 1976) she called Dr. Mclnnis and obtained a prescription for carbrital, which Dr. Mclnnis testified is a “medication ... designed to assist someone in sleeping.” Mrs. Meadors claims to have given her husband two doses of carbrital that day over a 3V2 hour period — once in the morning and again in the early afternoon. The prescription read, “for Mr. Ernest Meadors, caps, carbrital, each grains, one and a half, dispense 30; one per hour of sleep if necessary.” The plaintiff argues that since Mr. Meadors was given this medicine and was underweight due to the surgery, he was incapable of signing a lease on March 1, 1976.

Dr. Mclnnis testified that the plaintiff was considerably underweight after surgery. He also testified that the worse the physical condition the greater the effect of the drug. However, he was never asked to give an opinion on what effect the medicine which Meadors was given on March 1 might have had on his mental capacity. Instead, the plaintiff put that question to John Biglane, a pharmacist, who admitted that he did not know Meadors in February or March, 1976.

Biglane testified that the primary effect expected of the drug carbrital is sedation. Biglane did testify, after classifying carbri-tal as a bromide, that,

side effects with increased use and build-up of bromides include loss of memory, disorientation and also including standard procedure with just about any drug that’s taken orally from skin rashes down to nausea or vomiting, gastrointestinal distress, in general, all the way down to loss of motor coordination, and coma, and even death, in — you know in, naturally, in excessive doses. (Our Emphasis)

However, we find no evidence of any “increased use and build-up” in this case.

In an effort to prove the alleged incapacitating side effects of the carbrital on Mea-dors, the plaintiff presented several witnesses who were present that night when Hammond came to Meadors’ home. The witnesses who testified were plaintiff’s two brothers, who also signed leases that night, and his son-in-law, Sam Digirolamo, who was a witness to Ernest Meadors’ lease. Plaintiff relies on testimony by his brother, William Meadors, that plaintiff “looked like someone in a drunken stupor, lounging around in his pajamas,” and testimony by Digirolomo that Meadors was “incompetent.” However, on review of Digirolomo’s testimony, it appears that he was referring to Meadors’ physical incompetence. All of the plaintiff’s witnesses testified that it was apparent that Meadors was on medication that night. On the other hand, Hammond testified that although Meadors appeared “drawn and pulled down, as anyone would have after such an operation,” mentally, he was “perfectly alert and lucid and clear, and nobody — there was no slightest [sic] indication from any of the family that there — he wasn’t under [sic] disability whatsoever at the time.... ”

We find the most significant testimony to be that of Meadors himself. For a man who claimed at trial that he was so incapacitated at the time the lease was signed that he remembered nothing about the lease, it is surprising how well he remembered several detailed provisions of the lease when his deposition was taken on January 19, 1981. We excerpt the following from Mea-dors’ deposition, which he read into the record at trial:

Q. Are you familiar with the terms of this lease, in particular the provisions?
A. Well, I will answer you this way, that all I know that one-eighth royalty was, to my knowledge, was right. That’s what the agreement was. But I don’t know the date like I told you or the day that I signed the lease. And my impression was at the time of signing the lease was for five years not ten.
Q. Did you understand the amount of the bonus that you were being paid?
A. Yes, sir.
Q. On your signature of the lease?
A. Yes, I did.
Q. Was that explained to you by anyone, Mr. Hammond or your brothers?
A. I believe Mr. Hammond explained it to us.
Q. Did he also explain the delay rental payment?
A. Yes, sir.

It is obvious after reading Meadors’ testimony that, despite the two doses of carbri-tal he might have been given on March 1, 1976, he was not mentally incapacitated at the time the lease was explained to him and he signed it. In fact, the record reflects that Mr. Meadors did not question his lease until he heard from the neighbors what they were getting paid for leasing their mineral rights.

Mental incapacity is not established by proof of poor physical condition, nor is it established by proof that the plaintiff was on medication. The plaintiff must prove “quite convincingly and by the great weight of the evidence” that he was mentally incompetent at the time the lease was executed. First National Bank of Shreveport, 346 So.2d at 264. Since the record demonstrates that plaintiff has failed to meet that burden, he is presumed to have possessed the mental capacity to contract.

DECREE

For the foregoing reasons, the judgment of the district court is reversed and judgment is rendered in favor of Mid-South dismissing the petition with prejudice. Meadors is cast for all costs.

REVERSED AND RENDERED.

      . Ernest Meadors owned the biggest part of the Meadors brothers’ land — 19.98 acres.

      . We note from the record that the written reasons for judgment signed by the trial judge on January 10, 1983, were not written by the trial judge, but were provided by the plaintiff and adopted by the trial court.

      . It is necessary for plaintiff to prove his incapacity at the time he executed the contract. Thus, a determination of the date the lease was signed is a necessary element in proving an incapacity to contract.


author: COVINGTON, Judge.

text:
    Morris Michael LAMANA v. Virginia Teressa LeBLANC.
    No. 83 CA 0421.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Rehearing Denied April 3, 1984.
    Writ Denied May 25, 1984.
    Wayne R. Crouch, Baton Rouge, for plaintiff-appellant Morris Michael Lamana.
    Georgia Wilemon, Baton Rouge, for defendant-appellee Virginia Teressa LeBlanc.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COVINGTON, Judge.

Plaintiff, Morris M. Lamana, brought suit against defendant, Virginia T. Le-Blanc, to be recognized as the father of defendant’s infant son. The child was born within 300 days of defendant’s divorce from Timothy J. Robillard. Robillard has not brought an action to disavow. Robil-lard was not made a defendant and no one was appointed to represent the child.

The trial court sustained defendant’s peremptory exception of no cause and no right of action and dismissed plaintiff’s suit. Plaintiff has appealed the judgment.

The issue presented to this Court, as it was to the trial court, is whether an alleged natural father has a right or cause of action to establish his paternity under LSA-C.C. art. 184, which presumption is now conclusive because of the failure of the husband of the mother to disavow paternity-

This issue has been fully considered and decided adversely to plaintiff-appellant in Fontenot v. Thierry, 422 So.2d 586 (La. App. 3rd Cir.1982), writ denied, 427 So.2d 868 (La.1983). For the reasons expressed in Fontenot v. Thierry, the judgment appealed is affirmed at appellant’s costs.

AFFIRMED.

COLE, J., concurs in the result.