author: PONDER, Judge. SAVOIE, Judge,

text:
    James J. BAILEY, III v. Susan Bailey JONES.
    No. 82 CA 0991.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.
    Writ Denied Dec. 16, 1983.
    Claude F. Reynaud, Jr., Baton Rouge, for plaintiff-appellee James J. Bailey, III.
    John Samaha, Baton Rouge, for defendant-appellant Susan Bailey Jones.
    Before PONDER, WATKINS, CARTER, SAVOIE and CRAIN, JJ.
   PONDER, Judge.

Defendant appealed the judgment holding her liable for one-half of a community debt paid by the plaintiff after dissolution of the community.

The issue is plaintiff’s right of reimbursement.

We affirm.

The parties stipulated as follows:

“1. Plaintiff, James J. Bailey, III, and defendant, Susan Gaushell Jones, were formerly married to one another. They were divorced pursuant to a judgment of divorce signed on November 9,1979. Pri- or to the signing of the judgment, the parties were separated from bed and board pursuant to a judgment of separation also signed on November 9, 1979. The suit from which the judgment of separation arose was filed on January 9, 1979.
“2. Also on November 9, 1979, immediately after the signing of the judgment of separation, the parties executed a community property agreement, . . .
“3. In connection with the community property partition, each of the respective parties was to bring to the discussions and ultimate settlement all assets and liabilities of which each was aware.
“4. The issue before the court stems from a dispute, which materialized in approximately 1975, while plaintiff and defendant were married, with Juban Lumber Company, and which led to a suit entitled Juban Lumber Company, Inc. v. James J. Bailey, III, in which James J. Bailey, III appears as defendant and plaintiff-in-reconvention.
“5. Durret, Hardin, Hunter, Dameron and Fritchie through Emile C. Rolfes were retained by plaintiff in this matter.
“6. The dispute and eventual suit arose from repairs or improvements being made to the then family home of plaintiff and defendant, located on Ingleside Drive, Baton Rouge, Louisiana. The suit was filed while plaintiff and defendant were married, and the suit is still pending. Although defendant was aware, having become aware on or about 1975, of the suit against Juban Lumber, she was under the impression, having heard nothing concerning the matter in years, the entire matter had been concluded. Defendant took no active role in this suit.
“7. At the time of the community property settlement, plaintiff had forgotten about the existence of the Juban Lumber Company suit, and was not reminded of its existence until Durrett, Hardin, Hunter, Dameron and Fritchie submitted its bill on April 29, 1980. . .. At no time during the partition discussions and eventual agreement was the attorney’s fee, which is the basis of the suit at issue, discussed or even mentioned by James J. Bailey, III.
“8. The debt incurred is a community debt.
“9. Defendant did not become aware of the community debt until she was notified by her attorney, John Sinquefield, on or about May 9, 1980, that demand was being made upon her to pay one-half of this debt.
“10. James J. Bailey, III paid the entire Durrett, Hardin, Hunter, Dameron and Fritchie bill.”

The trial court determined that plaintiff and defendant were bound in solido and allowed plaintiff to recover by way of sub-rogation under La.C.C. art. 2161(3).

Defendant’s only defense against recovery is the community property settlement. Specifically, defendant asserts that she and plaintiff have contracted, by virtue of the community property agreement, the law between themselves. She asserts that any benefit from article 2161(3) has been waived and the article is inapplicable. She contends that plaintiff’s suit seeks “further accounting” contracted against in the settlement.

The community property agreement, however, does not contain a clause, standard in such documents, whereby one of the parties assumes additional or unknown debts of the community that may arise or be discovered after the execution of the settlement. Plaintiff did not contract to assume any or all outstanding and unknown debts of the community. This debt was simply overlooked. We find that the community property settlement does not bar plaintiff’s recovery.

Defendant also contends that the only proper way to allow possible recovery is to invalidate the community property settlement and require the parties to renegotiate. In view of the relatively minor amount involved, the application of C.C. art. 2409 and the equitable result achieved by that application, we find it unnecessary to order that radical solution.

The primary source of Louisiana’s community system is Spanish law. Under the Spanish system, the community was built upon a theory of complete equality of benefit and mutuality of obligations. Pugh, The Spanish Community of Gains in 1803; Sociedad de Gananciales, 30 La.L.Rev. 1 (1969); Comment, The Fictitious Community and the Right to Partition, 30 La.L.Rev. 603 (1970).

When the early Spanish writers, such as Febrero, spoke of the payment of common debts, they were speaking in terms of accounting procedures to be used in the final determination of the spouses’ shares in the community. Pugh, supra, at 40; Comment, supra, at 608. See also 3 Plainol, Civil Law Treatise nos. 1238-1, 1238-2 (La. St.L.Inst. transí. 1959).

Although the husband and the community were the same in the eyes of third parties, since he contracted for the community and was responsible for the full amounts of the debts he incurred, the spouses shared equally between themselves. Upon dissolution of the community and its acceptance by the wife, each was ultimately responsible for one-half of the community debts, so that if the husband was forced to pay all, he was entitled to reimbursement of one-half from the wife. Comment, supra, at 607; Pugh, supra, at 41.

Louisiana Civil Code articles 2406 and 2409, taken primarily from the writings of Febrero, provided for the division of community assets and liabilities upon dissolution of the regime. Art. 2409 gives a right of recovery to the husband if he pays the full amount of the indebtedness.

Plaintiff paid all of the community debt. He was responsible for the whole as head and master of the community, regardless of any settlement he may have made with his wife. Benedict v. Holmes, 104 La. 528, 29 So. 256 (1900). The wife, having accepted the community, is responsible for one-half of the debt under C.C. art. 2409. Alpha v. Aucoin, 167 So. 835 (Orl.La.App. 1936); Bardwell v. Keller, 49 So.2d 68 (La.App. 2nd Cir. 1950).

When defendant accepted the community, she did so subject to one-half of the debts owed by the community. Plaintiff’s recourse is against the defendant for the recovery of one-half of the debt. Benedict v. Holmes, supra. See Arceneaux v. Blazek, 346 So.2d 288 (La.App. 4th Cir.1977).

For these reasons, the judgment of the trial court, holding the defendant liable for one-half of the community debt, is affirmed.

AFFIRMED.

SAVOIE, J., dissents and assigns reasons.

CRAIN, J., dissents for reasons assigned by SAVOIE, J.

SAVOIE, Judge,

dissenting.

I respectfully dissent.

I agree with the majority’s conclusion that if the wife accepts the community, under the interpretation of C.C. art. 2409, she becomes personally liable for one-half of the community debts not previously acquitted. However, I disagree that C.C. art. 2409 gives a right of recovery to the husband if he pays the full amount of the indebtedness after termination and partition of the community. It is my opinion that the wife’s liability, like that of the husband’s, is to the creditor. Alpha v. Au-coin, 167 So. 835 (Orl.La.App.1936).

C.C. art. 2409 provides:

“It is understood that, in the partition of the effects of the partnership or community of gains, both husband and wife are to be equally liable for their share of the debts contracted during the marriage and not acquitted at the time of its dissolution.”

Since C.C. art. 2409 is positive law, clear and free from ambiguity, its letter is not to be disregarded under the pretext of pursuing its spirit nor is the court to resort to equity. See C.C. arts. 13 and 21. Accordingly, I respectfully dissent.

      . The trial court relied on Hilgenfeld v. Hilgenfeld, 180 So.2d 236 (La.App. 2nd Cir.1965), for the proposition that a community debt is a solidary obligation between husband and wife. However, in Hilgenfeld v. Hilgenfeld, supra, the wife signed a mortgage and note specifically contracting for solidary liability.

      . La.C.C. art. 2161(3):
      Subrogation takes place of right:
      * * * * ⅜: *
      3.For the benefit of him who, being bound with others, or for others, for the payment of the debt, had an interest in discharging it.
      sfc ⅜: # s}s # ⅜⅞

      . Defendant relies on the following language in the community property settlement:
      This agreement represents the entirety of the community property existing between Mrs. Bailey and Mr. Bailey. All other property is hereby declared to be the separate property of each. Each party further hereby relinquishes any claim he or she may have against the community on behalf of his or her separate estate or against each other’s separate estate on behalf of the community of acquets and gains herein divided.

        As a result of this community property settlement, each of the parties hereto discharge each other from any further accounting to each other of the community which formally existed between them.

      . The translation of a part of the Fuero Real, promulgated in 1255, and a basic principal of Spanish law concerning debts of spouses, is: Every debt that husband and wife contracted in common, let them likewise pay it in common. Pugh, supra, at 17.

      . La.C.C. art. 2406:
      The effects which compose the partnership or community of gains, are divided into two equal portions between the husband and the wife, or between their heirs, at the dissolution of the marriage; and it is the same with respect to the profits arising from the effects which both husband and wife brought reciprocally in marriage, and which have been administered by the husband, or by husband and wife conjointly, although what has been thus brought in marriage, by either the husband or the wife, be more considerable than what has been brought by the other, or even although one of the two did not bring anything at all. (Repealed 1980)
      La.C.C. art. 2409:
      It is understood that, in the partition of the effects of the partnership or community of gains, both husband and wife are to be equally liable for their share of the debts contracted during the marriage, and not acquitted at the time of its dissolution. (Repealed 1980)

      . Neither Benedict v. Holmes, 104 La. 528, 29 So. 256 (1900), amended on application for rehearing, nor Arceneaux v. Blazek, 346 So.2d 288 (La.App. 4th Cir.1977), as cited in the majority’s opinion, discussed the application of C.C. art. 2409 in this manner.


source: Caselaw Access Project

author: WATKINS, Judge.

license: Public Domain

text:
    Jessie EDWARDS v. Josie EDWARDS & Larry Evans.
    No. 82 CA 1053.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.
    Allen B. Pierson, Jr., Atty., Ponchatoula, for plaintiff.
    Otha Curtis Nelson, Sr., Simmons, Nelson & Dunn, Baton Rouge, for defendants.
    Before PONDER, WATKINS and CARTER, JJ.
   WATKINS, Judge.

This is an eviction proceeding. After trial Josie Edwards and Larry Evans were ordered evicted from two houses in Denham Springs. From the judgment of eviction defendants have taken a devolutive appeal.

The suit was brought by Jessie Edwards. Although the petition in rule for eviction does not state whether defendants are lessees (see LSA-C.C.P. art. 4701) or occupants (see LSA-C.C.P. art. 4702) and no evidence was introduced to prove either, the notice of eviction bears the following caption: “Notice to Tenant to Vacate”. We shall therefore assume that plaintiff contends defendants are lessees. However, if defendants were indeed tenants or lessees, no evidence was introduced by plaintiff (who is not a lawyer but who presented his own case), that, in the language of LSA-C. C.P. art. 4701, the lessees’ “right of occupancy has ceased because of the termination of the lease by expiration of its term, action by the lessor, nonpayment of rent, or for any other reason, .. . . ” Plaintiff never proved on what legal ground defendants should be ordered evicted, if they were indeed lessees. Thus, plaintiff failed to prove his case.

Testimony was introduced that plaintiff was not the owner of the houses in question, but the houses were owned by Sam Ivy, for whom plaintiff was merely an agent. However, no instruments that proved Ivy’s ownership were introduced. Furthermore, if we assume the eviction proceeding was brought by an owner against an occupant (LSA-C.C.P. art. 4702), it would have been necessary for the owner to show that defendants occupied the premises by permission or accommodation of the owner. LSA-C.C.P. arts. 4702, 4704; Stroughter v. Shepherd, 207 So.2d 865 (La.App. 4th Cir.1968); Skannal v. Jones, 384 So.2d 494 (La.App. 2d Cir.1980). Absolutely no evidence was introduced that defendants occupied the premises by permission or ac-comodation of Sam Ivy, even if it be assumed that Sam Ivy was indeed the owner. It necessarily follows, that the plaintiff did not prove that the purpose of the occupancy by defendants had been terminated.

Plaintiff sought to present his own case. He failed to do so. For that reason, we will dismiss the eviction proceeding without prejudice.

The judgment of the trial court is reversed and plaintiff’s suit dismissed without prejudice, at plaintiff’s cost.

REVERSED.


author: CARTER, Judge:

text:
    CAR KITS, INC. v. BOLT-ON PARTS, INC.
    No. 82 CA 1058.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.

      David M. Vaughn, John Dale Powers, Baton Rouge, for plaintiff-appellant Car Kits, Inc.
    Michael D. Hunt, Baton Rouge, for third party defendant-appellee Dann Deaver.
    W. Luther Wilson, Baton Rouge, for defendant-appellee Bolt-On Parts, Inc.
    Before PONDER, WATKINS and CARTER, JJ.
   CARTER, Judge:

This is a suit by Car Kits, Inc. against Bolt-On Parts, Inc., Dann Deaver, Ventre Corporation, and Tecnik International Corporation. Car Kits, Inc. contends that Bolt-On’s delay in delivering merchandise caused the failure of plaintiff’s business and resulting damages. Bolt-On filed an answer and reconventional demand against Car Kits and a third party demand against Deaver. After a trial on the merits, judgment was rendered on the main demand in favor of Car Kits and against Bolt-On for $11,-281.44; in addition, Bolt-On was awarded $2,500.00 on its reconventional demand against Car Kits. Car Kits’ suit against Deaver, Ventre, and Tecnik, and Bolt-On’s third party suit against Deaver were dismissed. Car Kits appeals the judgment rendered on the main demand only. Bolt-On answers the appeal, but states in brief that the answer was filed strictly as a matter of protection and assigns no errors.

FACTS

In November or December of 1977, Rodney D. Hendrick, Richard R. Fitzgerald, and Ken J. Stewart, who eventually formed Car Kits, Inc., became interested in the possibility of a commercial market for after-sale add-on kits for specific automobiles, e.g., kits composed of air dams, spoilers and wheel flares for Chevrolet Malibus and El Caminos. As a result of this interest, they contacted Frank Boulton, owner of Bolt-On Parts, Inc., to discuss the possibility of obtaining the components for the kits. Although Bolt-On did not manufacture or stock the parts in question, they advised Car Kits that they could have them manufactured to specification and thus supply the merchandise to Car Kits. Bolt-On then contacted Dann Deaver whose corporations Ventre and Tecnik, would supply the tools to manufacture the parts and the parts themselves. The arrangement was. such that Deaver would manufacture the parts and sell them to Bolt-On and then Bolt-On would sell the parts to Car Kits.

During the first few months of 1978, there was considerable communication between Bolt-On and Car Kits regarding the particulars of the proposed project. In a letter dated January 24, 1978, Nedra Ware, Eastern sales manager for Bolt-On, outlined for Car Kits the type of materials to be used and the prices for the parts. The letter also stated that Car Kits would pay $53,000.00 to finance the tooling cost and that Car Kits would be the owner of the tools. In addition, it was agreed that Car Kits would purchase a minimum of 1200 kits from Bolt-On. At a meeting held on February 7, 1978, and attended by Boulton, Fitzgerald and Stewart, Boulton verified the information given in the January 24th letter and in a handwritten addendum placed on the bottom of the last page of the letter stated that the parts would be available within 10 to 13½ weeks.

Nedra Ware, Fitzgerald, Hendrick, Stewart and Deaver had a second meeting in mid-March. At this meeting the Car Kits people requested a change in the design of one of the parts. Deaver told the Car Kits people that as a result of the design change, the order would be delayed approximately a week to a week and a half. Additional delays were encountered when it was decided to switch to a different material and Deaver experienced problems finding a supplier for the new material. Hendrick testified at trial that the delay was due in part to the fact that Bolt-On was falling behind in its payments to Deaver. However, Deaver testified that he had given Hendrick this impression in hopes of putting pressure on Bolt-On to speed up payments, and that although he would have liked more money up front, production was never held up due to late payments by Bolt-On.

In mid-July, Car Kits contacted Bolt-On and requested that their agreement be formalized. A contract was signed on August 4, 1978. It contained the same terms that had been agreed upon earlier by the parties, and in addition, specified a delivery date for the kits and provided for a $1,000.00 per week penalty fee for every week the kits were not delivered on time.

From the testimony at trial, it is evident that by mid-July the relationship between Car Kits and Bolt-On had deteriorated. Car Kits contacted Deaver and began to conduct some of "the business with his corporations directly rather than through Bolt-On as had been the original arrangement.

Car Kits first received kits on October 26, 1978. The last shipment of kits was in January of 1979. In all, Car Kits received a total of 193 kits, and of these they have sold approximately 120.

In addition to the contract described above, Bolt-On executed a purchase order with Car Kits for 100 kits. Bolt-On was to retail the kits in their area.

Was the August 1978 Contract a Novation?

Plaintiff first assigns as error the finding of the trial court that the contract signed by Nedra Ware on August 4, 1978, was a novation of an earlier agreement between the parties. LSA-C.C. art. 2185. Novation is a method of extinguishing a debt and is therefore an affirmative defense which must be specially pled in the answer. Independent, Inc. v. Watson, 394 So.2d 710 (La.App. 3rd Cir.1981); LSA-C. C.P. art. 1005. In this instance, the answer filed by defendant Bolt-On does not assert novation as an affirmative defense. Therefore, the ruling of the trial court on this point is in error.

Plaintiff further argues that because there was not a novation of the earlier agreement, defendant Bolt-On is liable for all damages occasioned by the delay and not merely for the penalty fee stipulated in the August contract. In particular, plaintiff prays for all monies spent on expenses necessary to set up the business and for the lost profits.

Although we hold that there was not a novation, we agree with the ruling of the trial court denying damages for business expenses and lost profits. It is true that plaintiff expended monies on rent, employee salaries, and other operating expenses beginning in late May or early June. However, the record reveals, that during that same time period plaintiff was utilizing the same location and employees to engage in a separate business involving the production and sale of car louvers.

Regarding damages for lost profits, plaintiff failed to produce any evidence showing that the delays resulted in the loss or cancellation of specific orders and thus the loss of profits. Plaintiff did introduce an undated purchase order for 100 kits signed by Ronald L. Whitney, but this evidence was discounted by the trial judge, apparently because it was not established that the cancellation of the order was due to delays in shipments. A review of the entire record convinces us that the trial judge correctly concluded that the business failed due to lack of interest in the product rather than delays in shipments. Therefore, the ruling of the trial court denying damages for lost profits is affirmed.

Amount of Penalty Due for Delays in Shipments

Plaintiff’s second assignment of error involves the amount due for penalty fees as provided for in the August contract. The contract, dated August 4,1978, states “First Complete Kit due to be shipped August 31st, 1978 to Baton Rouge, Louisiana. Credit of $1,000 per week for each week kits are not delivered after that date.” The issue is whether the penalty ceases to run when the first kit was delivered or when the first complete order of 200 kits was delivered. The penalty clause took effect on September 1, 1978, and the first shipment of kits, numbering 18, was delivered on October 19, 1978. Additionally, shipments of various amounts were sent at later dates. Plaintiff admits that in late November, prior to receiving the total 200 kits, he told Bolt-On not to rush with the remainder of the order as he had enough on hand. It is plaintiff’s contention that the penalty should be paid for September 1 through the end of November, while defendant maintains that the penalty payments should only run from September 1 through October 19.

The questioned language in the August 4th contract originated in a letter dated July 14, 1978, and written by Richard R. Fitzgerald of Car Kits to Bolt-On. In this letter, Fitzgerald requested a formalization of the agreement which had been reached by the parties and in addition stated “the delivery of the first order will be August 1, 1978. We will require a credit of $1,000.00 per week for each week the kits are not delivered after the above date.” Bolt-On answered with a letter dated July 27, 1978, in which they wrote “First complete kit due to be shipped August 31st, 1978 to Baton Rouge, Louisiana. Credit of $500.00 per week for each week kits are not delivered after that date.” Car Kits resisted this change and subsequently Bolt-On sent a letter dated August 4, 1978 agreeing to the $1,000.00 per week penalty provision.

Ambiguous phrases in contracts are strictly construed against the party who prepared the contract. LSA-C.C. arts. 1957, 1958; Rayford v. Louisiana Sav. Ass’n., 380 So.2d 1232 (La.App. 3rd Cir. 1980), writ denied 384 So.2d 793 (La.1980).

Although the contract is on Bolt-On letterhead, it is clear that the sentence which is at issue was drafted by Car Kits and was only minimally altered by Bolt-On. Because an ambiguous phrase must be strictly construed against the party who prepared the contract, the trial judge was correct in accepting Bolt-On’s construction of the contractual phrase and holding that the penalty ceases to run on October 19, 1978, upon delivery of the first shipment of kits.

Additional Damages Requested by Car Kits

Plaintiff argues that the trial court erred in not awarding several additional specific items of damage.

First, Car Kits asserts that Bolt-On had agreed to purchase 100 kits from Car Kits, but only purchased 12 and is therefore liable for $8,078.40 representing the lost profit on the remaining kits. The evidence introduced at trial shows that Bolt-On issued a purchase order for 100 kits which they were to retail in their area. A purchase order is defined as a:

“Document authorizing a seller to deliver goods with payment to be made later. A written authorization calling on a vendor or supplier to furnish goods to the person ordering such. It constitutes an offer which is accepted when the vendor supplies the quantity and quality ordered.”

In this instance, Bolt-On has not refused to accept delivery on any kits. This fact was admitted even by Hendrick, a Car Kits owner, who testified that Car Kits had not shipped any additional kits to Bolt-On. Therefore, Car Kits’s assertion concerning Bolt-On’s liability on this point is without merit.

Second, Car Kits alleges Bolt-On is liable for $4,425.43 which is the amount covering a $23.00 price increase which Deaver charged Car Kits for the 102 kits bought directly from Deaver, and shipping costs for both parts and tools bought directly from Deaver. Car Kits argues that it was forced to do business directly with Deaver as a result of Bolt-On’s failure to fulfill the contract. This charge is not substantiated by the record. Plaintiff chose to circumvent its contractual relationship with Bolt-On and deal directly with Mr. Deaver. The fact that the deal struck between Car Kits and Deaver was not as advantageous to Car Kits as was the deal it had with Bolt-On, in no way causes Bolt-On to incur liability for the additional charges. The trial judge was correct in denying damages for this item.

Third, plaintiff alleges it sustained damages amounting to $6,712.65, the amount necessary to correct a paint defect on the seventy remaining kits in inventory. Mr. Hendrick testified that of the 102 kits in the last shipment, essentially all of these were defective due to a paint problem. However, Mr. Fitzgerald testified that he and Mr. Deaver talked frequently concerning the paint problem and that Deaver was trying to help cure the problem. Eventually they concluded that a mold release agent used during the manufacturing process was inhibiting paint adhesion. Fitzgerald testified further that Deaver cured the problem by indicating a particular thinner which should be used prior to painting. Based on these facts the trial judge was correct in denying damages for this item.

Liability of Deaver based on the Existence of a Third Party Beneficiary Contract

Next, plaintiff argues that Deaver is liable to Car Kits under the theory that there exists a third party beneficiary contract in favor of Car Kits. Plaintiff cited State ex rel Guste v. Simoni, Heck & Associates, 331 So.2d 478 (La.1976) for this proposition.

In Simoni, the Supreme Court found that the state was entitled to assert a cause of action for defective design against an architectural firm despite the fact that it was a state office building corporation (and not the State) who had entered into the building contract with the architectural firm. The court held this position because the state was found to be a third party beneficiary in whose favor the contract between the state office building corporation and the architectural firm had been made.

We find that this principle has no application sub judice since the contract between Bolt-On and Deaver (which may or may not have resulted in a third party beneficiary contract in favor of Car Kits) has not been breached.

Liability of Bolt-On and Deaver based on the Theory of Negligent Misrepresentation

Lastly, plaintiff argues that both Bolt-On and Deaver should be held liable on the theory of negligent misrepresentation. Plaintiff cited Devore v. Hobart Mfg. Co., 367 So.2d 836 (La.1979) in which the Supreme Court recognized that Civil Code articles 2315 and 2316 afford a broad ambit of protection which is sufficient to encompass a cause of action for negligent misrepresentation.

Plaintiff argues that Bolt-On and Deaver negligently misrepresented to Car Kits that the parts could be delivered within 10 to 13 weeks. After a thorough examination of the record, we find no evidence of negligent misrepresentation and therefore no merit in plaintiffs assignment of error. Both Boul-ton and Deaver testified that at the time of the February meeting when the initial delivery dates were given, they felt that the dates which had been set were reasonable and could be met. It was not until several weeks later that the delays began, first with a style change, then with a material change, and finally with Deaver’s problems finding a reliable source of the new material.

For the above reasons, the judgment of the trial court is affirmed. Costs on appeal to be paid by appellant Car Kits, Inc.

AFFIRMED.

      . Deaver and his corporations, Ventre and Tec-nik, will hereafter be referred to collectively as Deaver.

      . Black’s Law Dictionary, 5th Edition, Henry Campbell Black, M.A.


author: PONDER, J.

text:
    DEPARTMENT OF CORRECTIONS, HUNT CORRECTIONAL CENTER v. Paul R. MURRAY, Jr.
    No. 82 CA 1059.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.

      Annette R. Seng, Asst. Atty. Gen., Dept, of Justice, Baton Rouge, for appellant.
    Daniel L. Avant, Avant & Falcon, Baton Rouge, for appellee.
    Robert R. Boland, Jr., Civil Service Legal Counsel, Dept, of State Civil Service, Baton Rouge, for Herbert L. Sumrall, Director of the Dept, of State Civil Service.
    Before PONDER, WATKINS and CARTER, JJ.
   PONDER, J.

The Department of Corrections appealed the ruling of the State Civil Service Commission vacating the termination of a correctional employee.

The issues are whether defendant refused to obey a direct order from a superior and, if so, did that refusal impair the efficiency of the public service.

Defendant testified that following an order from his superior, Lt. Stanley Phillips, he transferred three inmates to administrative lockdown. While he waited for the leg irons to be returned, Lt. Phillips permitted him in the control area of the cellblock, or interlock, for a cup of coffee. A conversation between the two became heated and words were exchanged. Defendant was ordered out of the interlock. Defendant complied although he did not like the way the order was given. He stated he was not ordered to wait outside the cellblock.

Lt. Phillips testified that because defendant kept asking him questions that were not job-related, he ordered defendant out of the interlock so he could process the new inmates before count time. Defendant did not obey the order and Phillips had to repeat it. Defendant continued to argue and create a disturbance so Phillips then ordered him to leave the cellblock. Defendant refused and Phillips wrote a disciplinary report on him. Phillips stated he completed his urgent paperwork timely.

Sgt. Robert Legett testified he heard Phillips order defendant out of the cellblock because he had work to do. Defendant replied that he was not an inmate and was not going to leave until he got his leg irons.

Following the incident, defendant was interviewed by Major Edward Boeker, Col. Posey Roberson and Assistant Warden John Whitley. Each testified they recommended termination based on defendant’s statement that he pretended not to hear Phillips’ order because it could have been given in a better manner. Also, each stated that failure to obey orders promptly endangers security at the prison.

The Commission found that after defendant went out of the interlock to wait for his leg irons, both he and Phillips were in excited states, and that if in fact Phillips ordered defendant to leave the cellblock, he did not state the order in a clear and coherent manner which would have been recognized by defendant as a direct order.

The Commission also found that defendant’s statement that he pretended not to hear an order given by Phillips referred to the earlier event when Phillips ordered defendant to transfer some inmates to lock-down. Defendant obeyed that order without responding. The incident was not cited as a cause for the disciplinary action.

An employee with permanent status subjected to disciplinary action has the right to appeal before the Commission, with the burden of proof on the appointing authority to show cause for the action taken. La. Const, art. 10 § 8(A).

Cause is found if the conduct complained of impairs the efficiency of the public service and bears a real and substantial relation to efficient and orderly operation of the public service in which the employee is engaged. Leggett v. Northwestern State College, 242 La. 927, 140 So.2d 5 (1962); Dent v. Department of Corrections, Louisiana Correctional Institute for Women, 413 So.2d 920 (La.App. 1st Cir.1982).

We cannot say the Commission was clearly wrong in finding that a direct order to leave the cellblock, if given, was not recognized as such by the defendant. References to the Ku Klux Klan and Black Panther organizations obviously agitated both defendant and Phillips. An order to leave the cellblock shortly thereafter could have been misinterpreted by the defendant. We will not disturb the Commission’s finding. Allen v. DHHR, Ruston State School, 426 So.2d 234 (La.App. 1st Cir.1983).

Also, there was evidence to support the finding that defendant’s statement that he pretended not to hear Phillips’ order referred to the earlier order to transfer some inmates to lockdown. Defendant testified to that effect and Col. Boeker’s comments, written after his interview with defendant, indicated that that was the order associated with the statement. We find no error.

Even if an order were given and disobeyed, the efficiency of the public service was not impaired. Phillips did not have to repeat the order and was able to complete processing the inmates before the inmate count. We agree with the Commission and do not find that this single incident was sufficient legal cause for defendant’s termination. Ryder v. Department of Health and Human Resources, 400 So.2d 1123 (La.App. 1st Cir.1981).

For the above reasons, the decision of the State Civil Service Commission is affirmed at appellant’s costs.

AFFIRMED.

      . La. Const, art. 10 § 8(A):
      “No person who has gained permanent status in the classified state or city service shall be subjected to disciplinary action except for cause expressed in writing. A classified employee subjected to such disciplinary action shall have the right of appeal to the appropriate commission. The burden of proof on appeal, as to the facts, shall be on the appointing authority.”


text:
    Murray Charles KLIEBERT v. ARCENEAUX AIR CONDITIONING, INC. and Fireman’s Fund Insurance.
    No. 82 CA 1060.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.

      George T. Mustakas, II, Metairie, for plaintiff Murray Charles Kliebert.
    J. Rodney Ryan, Jr., of Preis, Crawford, Scheffy, Mauldin & Ryan, Baton Rouge, for defendants Arceneaux Air Conditioning, Inc. and Associated Indemnity Corp.
    Glenn P. Marcel, of Lindsay & Marcel, Baton Rouge, for intervenor Lindsay & Marcel, Baton Rouge.
    Before PONDER, WATKINS and CARTER, JJ.
   WATKINS, Judge.

This is a workmen’s compensation case. Plaintiff, Murray Charles Kliebert, suffered an inferior myocardial infarction on October 22,1980 while employed as an insulation installer for Arceneaux Air Conditioning, Inc. He brought suit against Arceneaux and its workmen’s compensation insurer, Associated Indemnity Corporation, one of Fireman’s Fund Insurance Companies, for workmen’s compensation benefits.

On the date of trial, the parties entered into a settlement of all issues except plaintiff’s current disability status and the applicability of the social security offset provision contained in LSA-R.S. 23:1225. In the settlement, defendants agreed to pay plaintiff’s past medical expenses in the amount of $9,985.79, weekly workmen’s compensation benefits from October 22,1980 through May 1, 1981, the date when plaintiff began receiving social security benefits, penalties in the amount of $1,451.01, attorney’s fees in the amount of $3,250 to plaintiff’s attorney, and drug charges in the amount of $788.91. It was further stipulated that plaintiff’s medical condition was experienced during the course and scope of his employment with Arceneaux, that plaintiff is currently receiving $525 per month in social security disability benefits, and that plaintiff’s wife and son are each receiving $138. per month in social security disability benefits.

The trial court rendered judgment finding that plaintiff was permanently and totally disabled and awarding him $163. per week for workmen’s compensation benefits for the duration of his disability. The trial court also found that the defendants were not entitled to the offset provided for in R.S. 23:1225. In addition, the trial court found that the defendants were arbitrary and capricious in refusing to pay compensation and awarded penalties and attorney’s fees in the amount of $3,750.

From that judgment, defendants filed a suspensive appeal, urging that the trial court erred in failing to apply the social security offset provision and in awarding additional penalties and attorney’s fees. Defendants do not raise as error on appeal the trial court’s finding of total and permanent disability.

The first issue for our consideration is the applicability of LSA-R.S. 23:1225. It provides that workmen’s compensation benefits for injuries producing permanent total disability shall be reduced when anyone is entitled to and receiving social security disability benefits. Since plaintiff was found to be permanently and totally disabled and was receiving social security disability benefits, R.S. 23:1225 clearly applies.

Under R.S. 23:1225 state workmen’s compensation benefits must be reduced to the extent that the combined state and federal benefits would cause or result in a reduction in federal social security benefits. This provision was enacted in response to subsection (d) of 42 U.S.C. Section 424a (the federal social security reduction statute) which provides that the federal reduction will not apply if the workmen’s compensation benefits are subject to reduction under state law.

We must therefore determine to what extent state workmen’s compensation benefits would subject plaintiff’s federal benefits to reduction under the federal statute and offset that amount against his state benefits. The relevant federal provision, 42 U.S.C. Section 424a, provides that federal benefits shall be reduced by the amount by which the combined state and federal benefits exceed the higher of 8Q% of the claimants’ average current earnings or his total federal disability benefits.

We note that computing the offset on the basis of the amount by which the combined benefits exceed 80% of the average current earnings and on the basis of the amount by which they exceed the total federal benefits will give us two different results. If the reduction was based solely on the amount by which the combined benefits exceed the total federal benefits, defendants would be entitled to a dollar-for-dollar offset in the workmen’s compensation benefits. If the reduction was based solely on the amount by which they exceed 80% of the plaintiff’s average current earnings, defendants would probably be entitled to a substantially smaller offset. This is exactly why 42 U.S.C. Section 424a calls for the reduction to be made on the basis of the amount by which the total benefits exceed the higher of the two.

We further note that the trial court in its reasons for judgment incorrectly stated that the offset provisions contained in R.S. 23:1225 are intended to apply only to social security benefits received by the individual, and not the benefits received by his wife and child. The reduction according to 42 U.S.C. Section 424a is to be the higher of 80% of the individual’s average current earnings or “the total of such individual’s disability insurance benefits under section 423 [benefits payable to the husband] ... and of any monthly insurance benefits under section 402 [benefits payable to the wife and child]...” [See Lofton v. Louisiana Pacific Corp., 423 So.2d 1255 (La.App. 3d Cir.1982), where although the method of determining the offset was not at issue, the court set out the necessary calculations.]

We find that the offset provision contained in R.S. 23:1225 applies in this case. There was no evidence introduced at trial relating to plaintiff’s average current earnings. Because computing the offset solely on the basis of the combined benefits may result in a reduction exceeding that to which social security is entitled under 42 U.S.C. Section 424a, we feel that it would be unfair to compute the setoff solely on that basis. Therefore, we remand to the trial court for the purpose of taking additional evidence relating to plaintiff’s average current earnings. A court of appeal may remand a case to the trial court for the taking of additional evidence where it is necessary to reach a just decision. LSA-C. C.P. arts. 2082 and 2164; Nereaux v. Rivet, 228 So.2d 172 (La.App. 1st Cir.1969); Succession of Brice, 390 So.2d 905 (La.App. 2d Cir.1980); McCullough v. Hart, 424 So.2d 531 (La.App. 5th Cir.1982).

Defendants contend that the trial court erred in assessing penalties and attorney’s fees for the issues which were submitted to the trial court, viz., plaintiff’s current disability status and the applicability of the social security offset provision. We agree.

LSA-R.S. 22:658 provides for the assessment of penalties and attorney’s fees against an insurer for failure to pay policy benefits within 60 days after receipt of proof of loss and demand for payment, when such failure is found to be arbitrary, capricious, or without probable cause.

Since this provision is penal in nature, it is to be strictly construed and the stipulated sanctions should be imposed only in those instances in which the facts negate probable cause for non-payment. Crawford v. A1 Smith P. & H. Service, Inc., 352 So.2d 669 (La.1977); Cole v. State Farm Mut. Auto. Ins. Co., 427 So.2d 522 (La.App. 3d Cir.1983).

We find that the defendants were not arbitrary or capricious in their actions regarding the issues presented for trial. A genuine dispute existed as to the extent of plaintiff’s disability. In addition, defendants have prevailed in their arguments concerning the application and calculation of the offset.

For the foregoing reasons, the judgment of the trial court, awarding additional penalties and attorney’s fees is reversed. Further, the finding of the trial court that defendants are not entitled to the offset pursuant to LSA-R.S. 23:1225 is reversed and the case is remanded to the trial court for the taking of additional evidence relating to plaintiff’s average current earnings.

The assessment of costs to await a final determination of this matter.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

      . We note that the penalties and attorney’s fees provided for in the settlement remain unchanged.


author: PONDER, Judge.

text:
    Charles W. FRANKLIN, et ux. v. ABLE MOVING & STORAGE COMPANY, INC.
    No. 82 CA 1062.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.

      Jack Rogers, Baton Rouge, for plaintiffs-appellants Charles W. Franklin, et ux.
    Robert Hornstein, St. Gabriel, for defendant-appellee Able Moving & Storage Co., Inc.
    Before PONDER, WATKINS and CARTER, JJ.
   PONDER, Judge.

Plaintiffs appealed the judgment awarding them damages for breach of contract but denying them nonpecuniary damages.

The issue is defendant’s liability for mental anguish, stress and inconvenience.

We amend and affirm.

Plaintiffs entered into a verbal contract with the defendant for an in-town move of their household effects at an hourly rate of $59.50, which included the use of a truck and four movers. The move, which was estimated to take three and one-half hours to four hours, took seventeen hours, extended over two days.

Plaintiffs filed suit for damages alleging that despite defendant’s repeated assurances that the correct size truck would be furnished, the truck was too small, necessitating two loads and two days’ work; that defendant’s employees were inexperienced, incompetent, loafed on the job and deliberately wasted a large amount of time; and that defendant’s employees damaged furniture and household items, tracked mud in the house, ate plaintiffs’ food without permission, and backed the truck over and damaged the lawn of their new neighbor, embarrassing plaintiffs. They also alleged the movers refused to unload the first truckful without payment for it, causing undue delay, notwithstanding the terms of the contract. Plaintiffs sought recovery for the physical damage, excessive charges and mental anguish.

The trial court found that defendant breached the contract and awarded $297.50 in damages representing excessive charges incurred on the second day of the move. Damages for items broken in the move were denied as no evidence was presented as to their value. Nonpeeuniary damages were denied.

Plaintiffs appealed contending that defendant’s actions were more than mere violations of contractual obligations and constituted tortious acts entitling them to mental anguish damages under Civil Code article 2315.

Pleading the theory of the case is rejected in Louisiana and recovery may be had under any legal theory justified by the facts pleaded in the petition. Philippe v. Browning, 395 So.2d 310 (La.1981). The same acts or omissions may constitute breaches of both general duties and contractual duties giving rise to actions in both tort and contract. Federal Insurance Company v. Insurance Company of North America, 262 La. 509, 263 So.2d 871 (1972); Free v. Franklin Guest Home, Inc., 397 So.2d 47 (La.App. 2nd Cir.), writ denied, 401 So.2d 975 (La.1981).

The trial court found no tortious acts under article 2315. We disagree.

We believe the evidence supports recovery ex delicto. The actions of defendant’s employees went further than mere breach of contractual obligations and constituted a breach of its duty to use due care in the transportation of plaintiffs’ possessions.

While damages for mental anguish may not be recoverable in breach of contract cases, such damages are recoverable in tort actions. Meador v. Toyota of Jefferson, Inc., 332 So.2d 433 (La.1976); Gele v. Markey, 387 So.2d 1162 (La.1980).

The record also supports a conclusion that plaintiffs suffered real and substantial emotional distress caused by defendant’s actions in the move. Mr. Franklin became so distraught that his physician had to be consulted for medication to calm him down. Mrs. Franklin became so upset she could not eat for the two days of the move. The move was more than an inconvenience to plaintiffs and damages for mental anguish were sufficiently proven.

We believe that an award of $1000.00 will adequately compensate Mr. Franklin and that- an award of $500.00 will compensate Mrs. Franklin for the losses they sustained.

For these reasons, the judgment is amended to include an award for mental anguish and distress in favor of Charles W. Franklin in the amount of $1000.00 and in favor of Marilyn T. Franklin in the amount of $500.00. In all other respects, the judgment is affirmed. Defendant shall bear the costs of this appeal.

AMENDED AND AFFIRMED.

      . C.C. art. 2315 provides in part:
      Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.


text:
    Claude S. MORGAN v. OFFSHORE HAMMERS, INC., et al.
    No. 82 CA 1064.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.

      David W. Oestreicher, II, Oestreicher, Whalen & Hackett, New Orleans, for appellant.
    Jerald L. Album, Lemle, Kelleher, Kohl-meyer & Matthews, New Orleans, for appel-lees.
    Before PONDER, WATKINS and CARTER, JJ.
   CARTER, Judge:

This is a workmen’s compensation case. Claude S. Morgan brought this workmen’s compensation action to recover disability benefits, penalties and attorney’s fees from defendant, Offshore Hammers, Inc. After trial judgment was rendered in favor of Offshore Hammers, denying Morgan’s claims for disability benefits.

Morgan appeals devolutively from the trial court judgment raising the following issues:

(1) Whether the plaintiff’s heart attack is a compensable injury under LSA-R.S. 23:1221;
(2) Whether the trial court erred in not finding plaintiff to be totally and permanently disabled as a result of personal injuries suffered in a work-related accident while employed by defendant;
(3) Whether the trial court committed manifest error in finding that plaintiff did not establish an “odd-lot” classification entitling him to disability benefits; and
(4) Whether the trial court erred in denying plaintiff penalties and attorney’s fees for defendant’s refusal to pay compensation benefits.

Offshore Hammers answered the appeal raising the following issue: Whether plaintiff has established a right to permanent-partial disability benefits.

FACTS

The trial court articulately and correctly stated the facts of the case in its written reasons for judgment. We adopt, as our own, its statement of facts, which provides as follows:

“Plaintiff was employed by Offshore Hammers as a truckdriver for approximately one year when on August 18, 1980, he suffered a myocardial infarction while in the course and scope of his employment with defendant. At the time of his attack, plaintiff was working an average of 119 hours per week.
“Plaintiff was hospitalized and convalesced for a 12 week period following his heart attack, at the expense of his employer, and was additionally paid compensation benefits in the amount of $148.00 (one hundred and forty-eight dollars) per week plus $125.00 (one hundred and twenty-five dollars) per week by the defendant/employer as an extra benefit. Plaintiff underwent medical treatment for the myocardial infarction, and was discharged by his treating physician on November 3, 1980, with the instructions that he could return to work.
“In November of 1980, plaintiff did return to work as a truckdriver for Offshore Hammers, working an average of 60 hours per week, as recommended by his physician. His employer stopped all compensation payments at this time. Plaintiff continued working as a truckdri-ver for defendant until March of 1981, when defendant, in response to plaintiff and his attorney’s request that plaintiff be given lighter duties, reassigned plaintiff to a position of dispatcher. Plaintiff testified that this position involved working from 6:00 p.m. until 6:00 a.m., answering the telephone, and doing some janitorial type services at the office, such as emptying trash, mopping the floors, and cleaning up. Plaintiff also testified that as a dispatcher, he would also perform some forklift operations, as he had done before his injury in connection with his truckdriving duties, without difficulty.
“On two occasions in March of 1981, plaintiff visited Dr. Ben Jacobs. Plaintiff was complaining of chest and shoulder pains, and various tests were performed by Dr. Jacobs. Dr. Jacobs recommended only that plaintiff refrain from lifting objects greater than 50 pounds in weight, and restrict his work week to 60 hours per week.
“Subsequent to the report of Dr. Jacobs, plaintiff returned to work as a dispatcher for defendant. During this entire period of time, plaintiff continued to receive incremental salary raises, and to maintain an income on an average weekly basis equal to or greater than that which he maintained prior to his heart attack.
“In March of 1982, plaintiff was seen by Dr. Kerry Pulver, a resident in internal medicine at Ochsner Foundation Hospital, who was serving a term at the hospital in Houma under the auspices of Dr. Kieran Key. As a result of tests performed on plaintiff by Dr. Pulver, medication was prescribed to plaintiff in the event that he was enduring a muscle spasm or nerve impingement. No work-related restrictions were placed on plaintiff by Dr. Pulver, other than recommending that plaintiff avoid lifting heavy objects.
“Subsequent to this examination by Dr. Pulver, the plaintiff returned to work as a dispatcher for Offshore Hammers until sometime in April of 1982, when he quit the company. A separation notice was introduced into evidence at the trial on the merits reflecting a voluntary leaving of the company by plaintiff. There was no evidence adduced at trial to refute this. Subsequent to plaintiff leaving the employ of defendant, this suit for workman’s compensation damages was filed.”

Compensable Injury-

In urging that he is disabled, plaintiff contends that a myocardial infarction is a compensable injury.

It is clear that compensation benefits are due under LSA-R.S. 23:1031 in cases involving heart conditions resulting in disability when the accidental injury is caused or precipitated by the usual and customary actions, exertions and other factors directly connected with the employment and the accidental injury occurs on the job. Roussel v. Colonial Sugars Company, 318 So.2d 37 (La.1975); Stubbs v. Parish of East Baton Rouge 343 So.2d 258 (La.App. 1st Cir.1977), writ denied 345 So.2d 506 (La. 1977).

Dr. Ben Jacobs, treating physician, testified that a heart attack can be brought on by physical stress as well as mental anxiety. Morgan testified that he averaged 119 hours a week as a truck driver for defendant. Morgan also stated that immediately prior to the attack, he had returned from a trip and had loaded and unloaded his truck. At the time of his attack, Morgan testified that he was in the midst of performing maintenance work on the vehicle. Furthermore, there is no evidence in the record which seriously disputes that plaintiff’s heart attack was work-related.

The trial court found, and we agree, that the evidence clearly establishes that plaintiff’s injury occurred while he was on the job and that the circumstances, conditions, and nature of his employment caused, contributed to, or accelerated the onset of his heart attack.

Total and Permanent Disability

Plaintiff contends that the trial court committed manifest error in finding that he was not totally and permanently disabled, under the provisions of LSA-R.S. 23:1221(2), and therefore, not entitled to disability benefits.

In 1975, LSA-R.S. 23:1221(2) was revised to constrict the broad “same or similar occupation” formula then applied by the courts. Total disability compensation can now be obtained only if the employee is unable “to engage in any gainful occupation for wages, whether or not the same or similar occupation as that in which the employee was customarily engaged.” LSA-R.S. 23:1221(2); Oster v. Wetzel Printing, Inc., 390 So.2d 1318 (La.1980).

In its written reasons for judgment, the trial court stated:

“Following his period of hospitalization and convalescence, plaintiff was discharged by his treating physician on November 3,1980, with the instructions that he could return to work, and without any limitations placed on him with respect to his occupation or work habits.
“Plaintiff did return to work as a truck driver for defendant in November of 1980. The wage and hour records of defendant submitted into evidence indicate that plaintiff was not frequently absent from work, nor was there any testimony given of plaintiffs inability to perform the duties of a truck driver at that time. The evidence indicates that the decision to alter the nature of plaintiff’s employment with defendant from truck driver to dispatcher in March of 1981 was in response to a request by plaintiff’s attorney that plaintiff be put on light duty, not involving driving activities.
“The Court is cognizant of the fact that plaintiff was experiencing chest pains when he resumed his truck driving duties in November of 1980. However, the testimony of Dr. Jacobs indicates that in his medical opinion, these chest pains described to him by plaintiff did not sound like cardiac pains (Deposition of Dr. Benjamin Jacobs, pp. 6, 11, 19). In fact, Dr. Jacobs testified specifically that as of the March 2, 1982 examination plaintiff was capable of truckdriving duties. He stated:
‘Well, physical exertion, I think, carried to an extreme and beyond his capabilities, may be a, or could conceivably be, a factor. Ordinarily, physical exertion the exertion of driving a truck, for instance — is probably not detrimental to him. I would not recommend he lift and unload heavy objects, as a sudden straining-type exertion; however, driving a truck physically is not too much exertion for him (Deposition of Dr. Benjamin Jacobs, p. 14).’
“The only limitation Dr. Jacobs placed on plaintiff as a result of the March, 1981 examination was that plaintiff restrict his working hours to 60 hours per week and that he not lift, any objects greater than 50 pounds in weight (Deposition of Dr. Benjamin Jacobs, p. 25). Of particular interest to this Court is Dr. Jacobs testimony that the main thing wrong with the plaintiff is the fact that ‘he emotionally does not want to work anymore and therefore, has a lot of stress from his job’ (Deposition of Dr. Benjamin Jacobs p. 14). Dr. Jacobs felt plaintiff could physically do his job, and further testified that, T think that the record is pretty clear this fellow was interested in trimming his job, and I got the impression that he was interested in not working, if possible (Deposition of Dr. Benjamin Jacobs, pp. 18-19).’
“Dr. Pulver, who examined plaintiff in March of 1982, testified that the complaints plaintiff was having then were atypical of angina. Dr. Jacobs made the same finding in his one evaluation of the plaintiff. In fact, Dr. Pulver found the complaints by plaintiff in the presence of normal EKG patterns, to be more positional than exertional, so that he ordered tests to determine whether or not there were orthopedic or neurological reasons for the complaints. Medication was given to the plaintiff in the event that he was enduring a muscle spasm or nerve impingement (Deposition of Dr. Kerry Pulver, pp. 9-11, 14).
“Dr. Pulver was in agreement with Dr. Jacobs about the plaintiff’s ability to perform truckdriving and dispatcher-type job responsibilities in March of 1982 (Deposition of Dr. Kerry Pulver, p. 17). Specifically, Dr. Pulver states with respect to the capability of the plaintiff to do truck-driving activities that:
T am not really that familiar with how exertional truckdriving can be; but so long as it did not require any lifting, as in loading or unloading of the trucks and was primarily that of a sitting-down job, it would not have been in the realm of strenuous activity as I have described to him, and I thought it would probably be — so certainly this would have been covered in my notes (Deposition of Dr. Kerry Pulves [sic], p. 19).’
* * * * * *
“There was no medical evidence presented to show that plaintiff could not perform the work activities of a truckdri-ver as he had prior to his heart attack. In fact, plaintiff had, for a period of four months, returned to work in a truckdriv-ing capacity. The facts in evidence attest that the plaintiff can still drive a truck with some hourly limitations and can still do unloading-type activities, as long as the weights he must lift do not exceed 50 pounds; and further, plaintiff can still, per his own testimony, operate the forklift, which he did before and after his injury; and finally, the plaintiff can perform the services of a dispatcher, which he did for about one year prior to his voluntarily leaving the defendant’s employment.”

We find that the trial court correctly determined that plaintiff is not totally and permanently disabled, in that he is able to engage in gainful occupation for wages.

Odd-Lot Classification

In Oster v. Wetzel Printing, Inc., supra, the Supreme Court adopted the “odd-lot” doctrine of permanent, total disability. In Oster, the court formulated the following test:

“In order to determine whether the plaintiff fits within this category of odd-lot workers, he must show that because of his physical impairment, mental capacity, education, training, age, availability of employment in his area, and any other relevant factor, that he ‘cannot perform the substantial and material parts of some gainful work or occupation with reasonable continuity. . . ’ If the plaintiff is successful in showing a combination of factors indicating that the services which he is able to render are so limited in quality, quantity, or dependability that a market for his labor does not exist within which he can effectively compete, he has presented a prima facie case for classification in the odd-lot category. An offering of such proof by the plaintiff, therefore, satisfies his burden of proving that he should be awarded benefits for permanent and total disability. The defendant employer then has the onus of showing that there are jobs which are available to provide a steady income to the plaintiff or that will provide him with ‘a gainful occupation.’ It is fairer to place the burden on the defendant to show that there are steady jobs available to the plaintiff, after plaintiff has shown his odd-lot status, than to require the plaintiff to prove the universal negative of not being employable at any occupation .... ” (Citations omitted) 390 So.2d at 1323-1324.

Under the “odd-lot” test as announced in Oster, an injured employee is entitled to total, permanent disability benefits if his injury makes him an “odd-lot” in the labor market. Stated another way, if the claimant can prove that his physical condition, his mental capacity, his education, training, age or other factors combine to place him at a substantial disadvantage in the competitive labor market, he has made out a case for classification in the “odd-lot” category. Dusang v. Henry C. Beck Builders, Inc., 389 So.2d 367 (La.1980).

In the instant case, plaintiff claims total and permanent disability, alleging that various factors place him at a substantial disadvantage in the competitive labor market. Morgan claims that he is a functional illiterate, with no formal training. He contends that his lack of training and work history make him dependent on his physical ability as a manual laborer to acquire work and that, in light of his current physical condition, he is at such a disadvantage in the labor market that he is entitled to disability benefits under the “odd-lot” doctrine.

The trial court correctly determined that plaintiff failed to show that he cannot perform the “substantial and material parts of some gainful work or occupation with reasonable continuity.” After his injury, plaintiff was offered and accepted employment as a truck driver and later as a dispatcher. As a dispatcher, Morgan answered the telephone and performed light maintenance services. Morgan was also able to rest and relax during the performance of his job as a dispatcher. There was no showing that Morgan was excessively absent from work as a result of his condition, and Morgan earned as much money as dispatcher as he had as a truck driver, if not more.

The “odd-lot” doctrine is also applicable to substantial pain cases. The Supreme Court in Lattin v. HICA Corp., 395 So.2d 690 (La.1981) stated that substantial pain claims of total, permanent disability should also be determined within the framework of the “odd-lot” doctrine. The court reasoned that the “odd-lot” doctrine encompasses substantial pain cases because:

“[A] worker who, due to his injury, can function only with substantial pain or with the help of fellow workers may not be considered a particularly desirable employee. Thus, if a claimant’s pain appreciably limits the types of work available to him and greatly diminishes his ability to compete in the labor market, he can be treated as an odd lot worker and be awarded total disability, unless there is proof that jobs are realistically available to him.”

In light of plaintiff’s work record subsequent to his injury and the medical evidence presented, the trial court was not convinced that plaintiff’s chest pains were a residual condition of the August 1980 heart attack. We agree.

There is no testimony in this case that plaintiff was in substantial pain during the performance of his work. To the contrary, the record establishes that from the time Morgan returned to work in November, 1980 until March, 1981, (when Morgan’s attorney requested that he be given lighter duties), plaintiff worked steadily as a truck driver. During that time, plaintiff neither complained of substantial pain to his employer nor did he request assistance in performing his responsibilities. Plaintiff continued to function as a dispatcher after the requested change, without complaint or excessive absence.

The medical evidence presented also does not substantiate plaintiff’s alleged substantial pain. Dr. Jacobs and Dr. Pulver testified that the chest pains complained of, or at least some of them, were noncardiac in nature. Dr. Pulver determined that these pains may have originated from nerve impingement or muscle spasm.

Partial Disability

LSA-R.S. 23:1221(3) provides that an employee is partially disabled if he cannot “perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description for which he was fitted by education, training, and experience.” Stated another way, if a worker cannot return to the same or similar work but can return to gainful employment, he is entitled to an award for partial disability.

In the instant case, the trial judge found that after his heart attack, Morgan was capable of performing the same job he held prior to his injury. The medical evidence was uncontradicted that plaintiff can perform truck driving activities, with the restrictions that he lift nothing greater than 50 pounds and that he limit his hours to a 60-hour work week. Morgan did, in fact, return to his job as a truck driver with Offshore Hammers, until he requested lighter duties and, subsequently, voluntarily quit working altogether. Furthermore, as a dispatcher, Morgan continued to operate a forklift, which was part of his job prior to his heart attack.

For the reasons previously mentioned, we find that the trial court was eminently correct in finding that plaintiff is not partially disabled.

Statutory Penalties

Plaintiff argues that Offshore Hammers’ refusal to pay compensation in light of a clearly compensable injury was arbitrary, capricious and without probable cause. Plaintiff contends that as a result of this unjust denial of benefits, he is entitled to invoke the penalty provisions of LSA-R.S. 22:658.

LSA-R.S. 22:658 provides for the assessment of penalties and attorney’s fees against an insurer for failure to pay policy benefits within 60 days after receipt of proof of loss and demand for payment, when such failure is found to be arbitrary, capricious, or without probable cause.

Since this provision is penal in nature, it is to be strictly construed and the stipulated sanctions should be imposed only in those instances in which the facts negate probable cause for nonpayment. Crawford v. A1 Smith P. & H. Service, Inc., 352 So.2d 669 (La.1977); Moore v. Millers Mut. Fire Ins. Co. of Texas, 406 So.2d 708 (La.App.2d Cir.1981), writ denied, 410 So.2d 1132 (La. 1982).

Plaintiff suffered a heart attack in August, 1980. At that time he was hospitalized and convalesced for a 12-week period. During the period of hospitalization and convalescence, Morgan’s employer (Offshore Hammers) paid compensation benefits in the amount of $148.00 per week and an additional $125.00 per week as an extra benefit. All medical expenses associated with treatment for the heart attack were paid by Offshore Hammers. On November 3, 1980, Morgan was discharged from his doctor’s care with instructions that he could return to work.

In November, 1980, plaintiff returned to work as a truckdriver for Offshore Hammers, assuming the same position he held prior to his injury. At that time all compensation benefits were stopped. Plaintiff continued his normal activities as a truck driver until March, 1981, when his attorney requested that Morgan be put on light duty. Offshore Hammers accommodated Morgan and placed him in the position of dispatcher, where he remained until he voluntarily left the company ten months later.

The medical evidence also supported the conclusion that Morgan was not entitled to compensation benefits. Each of the doctors who examined the plaintiff concluded that Morgan was capable of resuming truck driving activities with limited restrictions.

In view of the above, the plaintiff is not entitled to penalties and attorney’s fees because the termination of benefits by Offshore Hammers was not arbitrary and capricious.

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal to be assessed against appellant.

AFFIRMED.


author: SHORTESS, Judge.

text:
    L.B. PONDER, Jr., D/B/A Ponder and Ponder v. RELAN PRODUCE FARMS, INC.
    No. 82 CA 1065.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.

      J. Lynn Ponder, Amite, for plaintiff-appellant.
    Frank M. Edwards, Jr., Amite, for defendant-appellee.
    Before SHORTESS, LANIER and CRAIN, JJ.
   SHORTESS, Judge.

L.B. Ponder, Jr. (plaintiff) brought two suits against Reían Produce Farms, Inc. (defendant), which were consolidated for trial, seeking to recover $2,267.05 in allegedly unpaid attorney’s fees for services rendered. Trial was held on November 2, 1981, after which the case was taken under advisement by the trial court. Judgment was rendered and signed for plaintiff in open court approximately three weeks later, on November 23, 1981. No notice of the signing of this judgment was mailed by the clerk of court to either the defendant or his attorney.

On April 28, 1982, plaintiff filed a garnishment petition pursuant to a writ of fifa and seized a bank account of defendant and a check drawn by defendant.

On May 5,1982, defendant brought a rule to show cause why the seizure should not be set aside and included a prayer for damages and attorney’s fees for wrongful seizure. Plaintiff then filed “Exceptions and Answer” and “Exceptions of Moot” in response. Judgment was rendered in the summary proceeding on August 27, 1982, overruling the exceptions and awarding defendant $2,500.00 in damages and $1,500.00 in attorney’s fees. Plaintiff’s motion for a new trial was denied, and he perfected this appeal.

The facts of this case present four issues for consideration by this court:

(1) Was plaintiff’s garnishment premature?
(2) Is the summary proceeding properly available to dissolve the seizure?
(3) What is the proper measure of damages and attorney’s fees to be awarded, if any?
(4) Is indemnification against the clerk of court a remedy open to plaintiff?

(1)PREMATURE EXECUTION

The Louisiana Code of Civil Procedure sets forth with particularity the procedures that must be followed in order to execute on a judgment. Article 2252 permits a judgment creditor to proceed with the execution of a judgment “only after the delay for a suspensive appeal therefrom has elapsed.” Article 2123 sets forth a 30-day delay for taking a suspensive appeal, stating that the delay commences upon “[t]he expiration of the delay for applying for a new trial, as provided by Article 1974. .. . ” Under article 1974, the delay for applying for a new trial is seven days, such delay commencing upon the day after the clerk of court has mailed the notice of judgment, when such notice is required under article 1913. Finally, article 1913 requires that notice of the signing of a final judgment when a case has been taken under advisement “shall be mailed by the clerk of court of the parish where the case was tried to the counsel of record for each party.... ” The provisions were considered in Boswell v. Jeff Cantrell Homes, Inc., 333 So.2d 374 (La.App. 2nd Cir.1976), and Moses v. American Security Bank of Ville Platte, 222 So.2d 899 (La.App. 3rd Cir.1969). In both cases, the courts held that in lieu of the required article 1913 notice the delays for new trial (and, necessarily, the appeal delays) never commenced. 333 So.2d at 379; 222 So.2d at 902. Additionally, the court in Boswell held that actual knowledge of a party or his counsel has no effect on the need for sending of the notice. “Actual knowledge de-hors the specified judicial process ... does not cause the delays to run. .. . Notice must emanate from the clerk. . . . ” 333 So.2d at 378.

Applying this law to the facts in this case, the garnishment was indeed premature. Although approximately five months had passed between the rendition of judgment and the attempted garnishment, the delays for taking the suspensive appeal had not expired, as required by La.C.C.P. art. 2252.

(2)THE USE OF SUMMARY PROCEEDINGS

La.C.C.P. art. 2592(1) permits use of summary proceedings to dissolve a premature seizure, as an “incidental question” arising in the course of litigation. See Moses, 222 So.2d at 903. However, summary proceedings are not the proper vehicle for a prayer for damages and attorney’s fees. Moses, 222 So.2d at 903.

Defendant challenged the garnishment with a rule to show cause why the seizure should not be set aside and included a prayer for damages and attorney’s fees. Although the use of summary proceedings was proper to set aside the seizure, the prayer for damages and attorney’s fees was not properly included therein and is subject to a timely filed dilatory exception to the unauthorized use of summary proceedings. La.C.C.P. art. 926(3); Moses, 222 So.2d at 903. Plaintiff’s assertion of this dilatory exception was filed with his answer to the rule to show cause, presenting an issue for resolution by this court which has heretofore remained unaddressed in Louisiana. That issue is: should a dilatory exception to the unauthorized use of a summary proceeding be considered timely when filed with an unnecessary answer to the summary proceeding? Several Code of Civil Procedure articles merit our attention in resolving this question.

The proper time to file the dilatory exception in an ordinary proceeding is before filing the answer or the rendition of a judgment of default, under La.C.C.P. art. 928. The effect of filing an exception with the answer in an ordinary proceeding is waiver of that exception and submission to the court’s jurisdiction under La.C.C.P. arts. 7 and 928. This provision is made applicable to the summary proceeding by La.C.C.P. art. 2596. However, article 2596 says that rules governing ordinary proceedings are applicable to summary proceedings “except as otherwise provided by law.” We believe that article 2593 is one of the exceptions. Article 2593 requires that the dilatory exception be filed in the summary proceeding merely before trial of the proceeding, presumably because it also provides that no answer is required in the summary proceeding. We construe this language to give the right to a defendant in a summary proceeding to file his dilatory exception any time before the trial whether he files an answer or not. Official Revision Comment (D) of article 2593 states that a defendant waives an objection to the improper use of summary procedure “if he enters upon the trial without excepting to the summary procedure.” This Comment also states that all other exceptions which, under ordinary procedure, are required to be filed prior to answer or default “should be filed prior to the commencement of the summary trial, since there is no default in summary proceedings.” Reading the language of article 2593 together with the Official Revisions Comments leads us to conclude that the filing of an answer is irrelevant to waiving exceptions in a summary proceeding because there is no requirement that an answer be filed in such a proceeding. See also International Matex Tank Terminals v. System Fuels, Inc., 398 So.2d 1029 (La.1981); Louisiana Acts 1983, No. 60, § 1, amending La.C.C.P. arts. 7 and 928 to allow the simultaneous filing of all exceptions. We believe, therefore, that in a summary proceeding where under article 2593 an answer is not required the defendant’s dilatory exception is timely if filed prior to the trial of the summary proceeding, regardless of whether he chooses to file an answer with it or not. Therefore, in this case the exception was timely filed.

(3) DAMAGES AND ATTORNEY’S PEES

Since the exception was timely filed here, the claims for damages and attorney’s fees were not properly brought before the trial court, and we therefore reverse the trial court’s awards for these claims.

(4) INDEMNIFICATION

Plaintiff argues that should he be held liable for damages and attorney’s fees, he is entitled to indemnification from the clerk of court. Because we reverse the trial court’s award of these claims, we need not address the indemnification issue.

(5) DECREE

For the foregoing reasons, the judgment of the trial court is affirmed as to the dissolution of the seizure. We reverse as to the awards for attorney’s fees and damages. All costs of this appeal are to be divided equally between the parties.

AFFIRMED IN PART, REVERSED IN PART.


author: LANIER, Judge. PER CURIAM

text:
    Rodney J. MYER v. Jo Ann Roberts Myer PAGAN.
    No. 82 CA 1066.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.
    Rehearing Denied Nov. 22, 1983.

      Jonathan R. Schmidt, Hammond, for plaintiff-appellee.
    Curtis M. Baham, Jr., Hammond, for defendant-appellant.
    Before SHORTESS, LANIER and CRAIN, JJ.
   LANIER, Judge.

This action commenced as a suit by a husband against his ex-wife for damages for breach of a usufruct agreement and for partition by licitation of the community property matrimonial domicile. The only issues in this suspensive appeal by the wife are (1) whether the husband is entitled to rent from the wife for use of the matrimonial domicile after the usufruct agreement terminated, and (2) can a trial court amend a final judgment to recognize such a claim.

FACTS

Rodney J. Myer (husband) and Jo Ann Roberts Myer (wife) were legally separated on June 23, 1973. On January 23, 1974, they entered into a contractual agreement wherein the husband granted to the wife a usufruct over the matrimonial domicile located at 608 Susan Drive in the City of Hammond, Parish of Tangipahoa, Louisiana. The term of the usufruct was for twenty years or until the wife’s remarriage, death or abandonment of the property, whichever came first. The usufruct was conditioned upon the premises being used for the personal use of the wife and the minor children of the parties. The contract specifically stipulated that the premises subject to the usufruct could not be rented or leased and that no other individual could enjoy the use thereof. The wife agreed to pay all mortgage installment payments, taxes, appropriate insurance premiums and to make the usual repairs necessary to keep the premises in good order.

On April 13, 1979, the wife married Harold Pagan. The parties apparently attempted to negotiate a settlement of the ownership of the matrimonial domicile but were unsuccessful. On October 24, 1979, the husband instituted this suit.

In his reasons for judgment issued on September 9,1981, the trial judge made the following findings and rulings:

1. The contractual usufruct by the husband in favor of the wife expired on her remarriage on April 13, 1979;
2. The husband and wife were owners in indivisión of an undivided one-half interest each in the matrimonial domicile, the property was not susceptible to division in kind and the husband was entitled to a partition by licitation;
3. The value of the property at the time of trial was $54,000.00;
4. The fair rental value of the property from April 13, 1979, to date was $400.00 per month and the husband was entitled to one-half of that amount from the date of remarriage until the wife vacated the property or it was sold;
5. The wife was entitled to reimbursement from the husband of one-half of the mortgage payments, taxes and insurance paid from April 13, 1979, until the property was sold;
6. The husband’s claim for attorney fees was rejected; and
7. The wife was cast for all costs of the proceedings.

The formal judgment was read and signed on November 9, 1981, and included the rulings reflected in the reasons for judgment, except that no mention was made of the husband’s entitlement to a fair rental value of $200.00 per month from April 13, 1979, until the wife vacated the property or the property was sold. There was no appeal from this judgment, and it became final.

On June 2,1982, the property was sold at public auction to the husband for $52,-000.00. Also on June 2, 1982, after the sheriffs sale was completed, the wife filed a rule for distribution of the proceeds of the sheriffs sale and asserted a claim for the mortgage payments, taxes and insurance on the premises paid by her from April 13, 1979, through the date of the sale. The husband filed an answer to the rule and asserted that, even though his claim for reimbursement of rent was inadvertently omitted from the final judgment, he was entitled to credit for this claim in the distribution of the proceeds. The husband also claimed that he was entitled to reimbursement for the cost of an air-conditioning system that was removed from the premises prior to the sale. These rules were heard in the trial court on August 13, 1982.

On October 13, 1982, the trial court rendered judgment on the rules as follows:

1. The wife’s rule was dismissed with prejudice at her costs;
2. The husband’s rule was dismissed with prejudice at his costs;
3.The judgment of November 9, 1981, (referred to by the trial court as the judgment of September 9, 1981) was ordered amended to allow the husband reimbursement of $200.00 per month from April 13, 1979, until the wife vacates the subject property or the same is sold, whichever occurs first, and dividing the sheriff’s costs, including commission and advertising, equally between the husband and wife.

The wife suspensively appealed only that portion of the judgment granting the husband reimbursement for rental of the premises. (According to the sheriff’s distribution summary, these rentals totaled $8,794.96.) The husband has not appealed or answered the appeal.

SUBSTANTIVE AMENDMENT OF FINAL JUDGMENT

The wife contends that the action of the trial court on October 13,1982, granting the husband reimbursement for rental on the property effects a substantial amendment to the judgment of November 9, 1981, and thus is not authorized by law.

La.C.C.P. art. 1951 provides as follows: A final judgment may be amended by the trial court at any time, with or without notice, on its own motion or on motion of any party:
(1) To alter the phraseology of the judgment, but not the substance; or
(2) To correct errors of calculation.
(Emphasis added).

The judgment of November 9, 1981, became final as to both parties when it was not timely appealed. The attempted amendment of this judgment by the trial court in October of 1982 was substantive and expressly prohibited by law. La.C.C.P. art. 1951, cf. Hebert v. Hebert, 351 So.2d 1199 (La.1977); Zeigler v. Zeigler, 420 So.2d 1342 (La.App. 3rd Cir.1982). The trial court’s reasons for judgment are not controlling. Harmon v. Harmon, 416 So.2d 614 (La.App. 5th Cir.1982).

CONCLUSION

For the foregoing reasons, the judgment of the trial court granting reimbursement to the husband for rental from the wife on the community property matrimonial domicile is reversed and that portion of the husband’s claim is dismissed with prejudice. The husband is to pay all costs of this appeal.

REVERSED

ON APPLICATION FOR REHEARING

PER CURIAM

The decision of this court was rendered on October 11,1983, and mailed that same date. This application for rehearing was filed on November 9, 1983. Pursuant to La.C.C.P. art. 2166, as amended by Act 451 of 1983 and effective August 30,1983, an application for rehearing must be filed within fourteen days of the mailing of the notice of judgment and the opinion of this court. This application is not timely.

      . Even if the trial court had validly amended the final judgment, the husband could not prevail. When the contractual usufruct terminated, the husband and wife were owners in indi-visión of the matrimonial domicile and each was entitled to possess or use the common property without the obligation to pay rent. Lentz v. Lentz, 411 So.2d 59 (La.App. 4th Cir. 1981); Guilott v. Guilott, 326 So.2d 551 (La.App. 3rd Cir.1976), writ refused 330 So.2d 316 (La. 1976); Arcemont v. Arcemont, 162 So.2d 813 (La.App. 4th Cir. 1964). cf. Juneau v. Laborde, 228 La. 410, 82 So.2d 693 (1955).


text:
    Jean Ann JENKINS v. Henry L. JENKINS, et al.
    No. 82 CA 1067.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.
    Sumpter B. Davis, III, Baton Rouge, for plaintiff-appellant Jean Ann Jenkins.
    Ronald Seale, Baton Rouge, for defendant-appellee Henry L. Jenkins and Horace Mann Ins. Co.
    Frank A. Fertitta, Baton Rouge, for defendant-appellee Shelter Ins. Co.
    Before PONDER, WATKINS and CARTER, JJ.
   PONDER, Judge.

Plaintiff appealed the general damage award rendered by the trial court for injuries incurred in an automobile accident. The only issue is quantum.

Plaintiff, a forty-one year old school teacher, was involved in a one car accident. The only defendant remaining in the suit at the time of the trial was Horace Mann Insurance Company, the omnibus insurer of her husband. The trial judge gave plaintiff judgment for $16,000.00 in general damages and $4,818.00 in special damages.

Plaintiff received three injuries as a result of the accident. The first was a fracture of a bone in her left foot which resulted in a claw deformity of the little toe. Disability of the foot was estimated at five percent and future complications were improbable. There was a possibility of the formation of corns or calluses.

Plaintiff also received facial lacerations consisting of a scar in the left forehead area which extended down to the brow and into the lid causing some drooping of the brow and lid; an avulsion of the left, upper lip just lateral to the nose and a stellate type laceration of the chin.

A plastic surgeon estimated a fifteen to twenty percent facial deformity. However, if the results from the plastic surgery were good, he felt the possibility of a twenty percent deformity would substantially decrease.

Plaintiffs third injury was a fracture of the socket portion of the ball and socket joint of the right hip. Plaintiff’s orthopedist had last examined her almost one year prior to trial and found that plaintiff had recovered a normal range of motion in her hip although she occasionally experienced pain with weather changes. The probability of the plaintiff’s developing some degree of post-traumatic arthritis due to the irregularity in the acetabulum was greater than fifty percent.

A second orthopedist, who examined the plaintiff approximately two months before trial, found she had a mild restriction of motion and post-traumatic fibrosis of her right hip. He estimated a five percent disability of the right hip and a ninety percent probability that plaintiff would not develop arthritis. He saw no problem with plaintiff’s continuing her work, but felt she would have to impose some limitations on her physical activities.

The plaintiff testified that she had been confined to bed for four weeks, á wheel chair for three weeks and on crutches for three months. Although she has been able to return to work, she can no longer wear high heels, water ski or work in the garden. She is still able to fish and swim but has not tried to play tennis.

Before an appellate court can disturb a general damages award made by a trial court, the record must clearly reveal that the trier of fact abused its “great” discretion in making the award. The initial inquiry is directed at whether the trial 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.” Reck v. Stevens, 373 So.2d 498 (La.1979). This finding of abuse must be based on facts in the record rather than past cases which appear to be similar, and a finding that our consciences would be shocked if the award remained untouched. Hanzy v. Sam, 385 So.2d 355 (La.App. 1st Cir.1980).

Although the award is low, we cannot say that it is so shocking as to require a revision. Even after reviewing plaintiff’s cited cases awarding amounts much higher than the trial courts, we find no abuse.

The judgment appealed is affirmed with costs assessed to the plaintiff.

AFFIRMED.

      . An avulsion is caused when tissue is scraped away and is one of the more difficult scars to repair. At the time of examination, the doctor recommended that the scar be left alone in hopes that the skin could granulate or fill in the hole remaining from the injury.

      . A stellate laceration means that it is irregular, with jagged edges.

      .Cases cited by the plaintiff were Miller v. Thomas, 258 La. 285, 246 So.2d 16 (1971), Min-ton v. Saint Bernard Parish School Board, 416 So.2d 167 (La.App. 4th Cir.1982); Chesson v. American Hardware Mutual Insurance Company, 412 So.2d 186 (La.App. 3rd Cir.1982); Dollacker v. Schimek, 411 So.2d 643 (La.App. 4th Cir.1982), writ denied 413 So.2d 908 (La.1982); Harrison v. State, Department of Highways,
        375 So.2d 169 (La.App. 2nd Cir.1979), Martin v. Roberts, 331 So.2d 541 (La.App. 1st Cir.1976).